<PAGE>
AMENDED AND RESTATED 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 FIRST UNION NATIONAL BANK,
AS DOCUMENTATION AGENT
DATED: DECEMBER 14, 2000
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS--------------------------------------------------------------------2
1.1 Certain Defined Terms-------------------------------------------------------------------------------2
1.2 Accounting Terms and Determinations----------------------------------------------------------------21
1.3 Types of Loans/Facilities--------------------------------------------------------------------------21
SECTION 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS------------------------------------------------------------21
2.1 Revolving Credit Loans-----------------------------------------------------------------------------21
2.2 Borrowings of Revolving Credit Loans---------------------------------------------------------------23
2.3 Changes of Commitments-----------------------------------------------------------------------------23
2.4 Commitment Fee-------------------------------------------------------------------------------------23
2.5 Lending Offices------------------------------------------------------------------------------------24
2.6 Several Obligations; Remedies Independent----------------------------------------------------------24
2.7 Notes----------------------------------------------------------------------------------------------24
2.8 Optional Prepayments and Conversions or Continuations of Loans-------------------------------------25
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST-------------------------------------------------------------------25
3.1 Repayment of Loans---------------------------------------------------------------------------------25
3.2 Interest-------------------------------------------------------------------------------------------25
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.-----------------------------------------------------26
4.1 Payments-------------------------------------------------------------------------------------------26
4.2 Pro Rata Treatment---------------------------------------------------------------------------------28
4.3 Computations---------------------------------------------------------------------------------------28
4.4 Minimum Amounts------------------------------------------------------------------------------------28
4.5 Certain Notices------------------------------------------------------------------------------------28
4.6 Non-Receipt of Funds by the Administrative Agent; Delinquent Lenders-------------------------------30
4.7 Sharing of Payments, Etc.--------------------------------------------------------------------------31
SECTION 5. YIELD PROTECTION, ETC.-------------------------------------------------------------------------------32
5.1 Additional Costs-----------------------------------------------------------------------------------32
5.2 Limitation on Types of Loans-----------------------------------------------------------------------34
5.3 Illegality-----------------------------------------------------------------------------------------35
5.4 Treatment of Affected Loans------------------------------------------------------------------------35
5.5 Compensation---------------------------------------------------------------------------------------36
5.6 Rate Selection-------------------------------------------------------------------------------------37
SECTION 6. GUARANTEE--------------------------------------------------------------------------------------------37
6.1 Guarantee------------------------------------------------------------------------------------------37
6.2 Obligations Unconditional--------------------------------------------------------------------------38
6.3 Reinstatement--------------------------------------------------------------------------------------39
6.4 Subrogation----------------------------------------------------------------------------------------39
6.5 Remedies-------------------------------------------------------------------------------------------39
6.6 Continuing Guarantee-------------------------------------------------------------------------------39
6.7 Rights of Contribution-----------------------------------------------------------------------------39
6.8 Limitation on Guarantee Obligations----------------------------------------------------------------40
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
SECTION 7. CONDITIONS PRECEDENT---------------------------------------------------------------------------------40
7.1 Initial Loan---------------------------------------------------------------------------------------40
7.2 Initial and Subsequent Extensions of Credit--------------------------------------------------------43
SECTION 8. REPRESENTATIONS AND WARRANTIES-----------------------------------------------------------------------43
8.1 Existence------------------------------------------------------------------------------------------43
8.2 Financial Condition--------------------------------------------------------------------------------44
8.3 Litigation-----------------------------------------------------------------------------------------44
8.4 No Breach------------------------------------------------------------------------------------------44
8.5 Action---------------------------------------------------------------------------------------------45
8.6 Approvals------------------------------------------------------------------------------------------45
8.7 Use of Credit--------------------------------------------------------------------------------------45
8.8 ERISA----------------------------------------------------------------------------------------------45
8.9 Taxes----------------------------------------------------------------------------------------------46
8.10 Investment Company Act-----------------------------------------------------------------------------46
8.11 Public Utility Holding Company Act-----------------------------------------------------------------46
8.12 Borrowing Agreements and Liens---------------------------------------------------------------------46
8.13 Compliance with Laws Including Environmental and Safety Matters------------------------------------47
8.14 Subsidiaries, Etc.---------------------------------------------------------------------------------47
8.15 Title to Assets; Etc.------------------------------------------------------------------------------47
8.16 Intellectual Property Rights-----------------------------------------------------------------------48
8.17 Year 2000 Compliance-------------------------------------------------------------------------------48
8.18 True and Complete Disclosure-----------------------------------------------------------------------48
8.19 Initial Acquisition Disclosure---------------------------------------------------------------------49
SECTION 9. COVENANTS OF THE COMPANY-----------------------------------------------------------------------------49
9.1 Financial Statements Etc.--------------------------------------------------------------------------49
9.2 Litigation-----------------------------------------------------------------------------------------51
9.3 Existence, Etc.------------------------------------------------------------------------------------51
9.4 Insurance------------------------------------------------------------------------------------------52
9.5 Prohibition of Fundamental Changes-----------------------------------------------------------------52
9.6 Limitation on Liens--------------------------------------------------------------------------------54
9.7 Indebtedness---------------------------------------------------------------------------------------56
9.8 Investments----------------------------------------------------------------------------------------57
9.9 Financial Covenants--------------------------------------------------------------------------------57
9.10 Lines of Business----------------------------------------------------------------------------------57
9.11 Use of Proceeds------------------------------------------------------------------------------------57
9.12 Certain Obligations Respecting Company and Subsidiaries--------------------------------------------58
9.13 Additional Subsidiary Guarantors-------------------------------------------------------------------58
9.14 Subordinated Debt----------------------------------------------------------------------------------59
SECTION 10. EVENTS OF DEFAULT-----------------------------------------------------------------------------------59
SECTION 11. THE AGENTS------------------------------------------------------------------------------------------62
11.1 Appointment, Powers and Immunities.----------------------------------------------------------------62
11.2 Reliance by Agents---------------------------------------------------------------------------------63
11.3 Defaults-------------------------------------------------------------------------------------------63
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
11.4 Rights as a Lender---------------------------------------------------------------------------------64
11.5 Indemnification------------------------------------------------------------------------------------64
11.6 Non-Reliance on Agents and Other Lenders-----------------------------------------------------------64
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11.7 Failure to Act-------------------------------------------------------------------------------------65
11.8 Resignation or Removal of Agents-------------------------------------------------------------------65
11.9 Consents under Other Loan Documents----------------------------------------------------------------65
SECTION 12. MISCELLANEOUS---------------------------------------------------------------------------------------66
12.1 Waiver-----------------------------------------------------------------------------------------------66
12.2 Notices----------------------------------------------------------------------------------------------66
12.3 Expenses, Etc.---------------------------------------------------------------------------------------66
12.4 Indemnification--------------------------------------------------------------------------------------67
12.5 Amendments, Etc.-------------------------------------------------------------------------------------68
12.6 Successors and Assigns-------------------------------------------------------------------------------68
12.7 Assignments and Participations-----------------------------------------------------------------------68
12.8 Survival---------------------------------------------------------------------------------------------70
12.9 Captions---------------------------------------------------------------------------------------------70
12.10 Counterparts-----------------------------------------------------------------------------------------70
12.11 Governing Law; Submission to Jurisdiction------------------------------------------------------------70
12.12 Waiver of Jury Trial---------------------------------------------------------------------------------71
12.13 Confidentiality--------------------------------------------------------------------------------------71
12.14 Compliance with Usury Laws---------------------------------------------------------------------------72
12.15 Replacement Note-------------------------------------------------------------------------------------72
12.16 Transitional Arrangements----------------------------------------------------------------------------72
</TABLE>
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
Exhibits:
Exhibit A Form of Three-Year Facility Revolving Credit Note
Exhibit B Form of 364-Day Facility Revolving Credit Note
Exhibit C Form of Legal Opinion
Exhibit D Form of Compliance Certificate
Exhibit E Form of Joinder Agreement
Exhibit F Form of Notice of Assignment
Exhibit G Form of Pledge Agreement
Exhibit H Form of Notice of Borrowing
Exhibit I Form of Notice of Conversion/Continuation
<PAGE>
Exhibit J Form of Notice of Prepayment
Exhibit K Form of Termination of Prior Credit Agreement
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT ("Agreement" or "Credit Agreement") dated as of
December 14, 2000 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
First Union National Bank ("First Union") as documentation agent for
the Lenders (in such capacity, together with the successors in such capacity,
the "Documentation Agent" 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
$500,000,000.00; 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 COMMITMENT FEE RATE" shall mean, for any period set
forth below for each Facility, the percentage set forth below opposite such
period under the caption "APPLICABLE COMMITMENT FEE RATE" and under the
caption for the respective Facility, 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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<TABLE>
<CAPTION>
------------------------- ---------------------------------------------- ---------------------------------------------
Applicable Margin Applicable Commitment Fee Rate
Period
------------------------- ---------------------------------------------- ---------------------------------------------
Prime Rate Loans LIBOR Loans Three-Year Facility 364-Day Facility
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Level I 0.000% 1.000% 0.250% 0.175%
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Level II 0.000% 0.875% 0.225% 0.150%
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Level III 0.000% 0.750% 0.200% 0.125%
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Level IV 0.000% 0.625% 0.175% 0.100%
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
</TABLE>
PROVIDED, HOWEVER, that:
(a) subject to paragraph (b) below, at all times after the first
Business Day that is six (6) months after the Closing Date
that outstanding Loans exceed 33% 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%;
(b) notwithstanding paragraph (a) above, at all times after the
first Business Day that is six (6) months after the Closing
Date that outstanding Loans exceed 67% 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 0.250%;
(c) at all times after the first Business Day that is six (6)
months after the Closing Date that outstanding Loans exceed
67% of the aggregate amount of the Commitments AND as to which
Level IV 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 0.125%; and
(d) at all times prior to and including the first Business Day
that is six (6) months after the Closing Date (other than any
period when an Event of Default shall have occurred and be
continuing):
(i) the Applicable Margin: (A) for Prime Rate Loans shall mean
the percentages set forth opposite the designation "Level II
Period"; and (B) for LIBOR Loans shall mean the sum of (1) the
percentage set forth in the definition of "Applicable Margin"
opposite the designation "Level II Period" plus (2)
one-quarter of one percent (0.25%); and
(ii) the Applicable Commitment Fee Rate shall be the
percentage set forth opposite the designation "Level II
Period".
"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
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<PAGE>
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.
"BASLE 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.
"BIOMATRIX ACQUISITION" shall mean the transactions contemplated by
the Biomatrix Acquisition Documents.
"BIOMATRIX ACQUISITION DOCUMENTS" shall mean, individually and
collectively, the Agreement and Plan of Merger dated as of March 6, 2000
among the Company, Seagull Merger Corporation, and Biomatrix, Inc., as
amended by that certain Amendment No. 1 to Agreement and Plan of Merger dated
as of April 17, 2000 among the Company, Seagull Merger Corporation, and
Biomatrix, Inc., that certain Amendment No. 2 to Agreement and Plan of Merger
dated as of August 25, 2000 among the Company, Seagull Merger Corporation,
and Biomatrix, Inc., and that certain Amendment No. 3 to Agreement and Plan
of Merger dated October 25, 2000 among the Company, Seagull Merger
Corporation, and Biomatrix, Inc., Waiver and Consent to Agreement and Plan of
Merger dated as of October 25, 2000 among the Company, Seagull Merger
Corporation, and Biomatrix, Inc., Stockholder Voting Agreement dated as of
March 6, 2000 between the Company and each of Endre A. Balays, Rory B. Riggs,
Janet L. Denlinger and Maxime Seifert, and Stock Option Agreement dated as of
March 6, 2000 by and between the Company and Biomatrix, Inc., together with
all other agreements of transfer as are referred to therein and all side
letters with respect thereto, and all agreements, documents and instruments
executed and/or delivered in connection therewith, as all of the foregoing
now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated, or replaced.
"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.
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<PAGE>
"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.
"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 D.
"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 EBITDA" shall mean, for any period, the sum, for the
Company, of the following: (a) Consolidated Operating Income for such period
PLUS (b) depreciation and amortization, but only to the extent deducted in
determining Consolidated Operating Income for such period.
"CONSOLIDATED DEBT COVERAGE 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 to (b) Consolidated Funded Debt on such date.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" shall mean, for any
period, the ratio of (a) the sum of (i) Consolidated EBITDA for such period
LESS (ii) the aggregate amount of Capital
-5-
<PAGE>
Expenditures made during such period LESS (iii) the amount of the taxes paid
during such period LESS (iv) the aggregate amount of all Dividend Payments
made during such period PLUS (v) Synthetic Lease Obligations paid during such
period to (b) the sum of (i) all Interest expense for such period PLUS (ii)
Synthetic Lease Obligations paid during such period, PROVIDED, HOWEVER, that
the Company may designate with respect to one project for improvements to new
leased headquarters and with respect to any consecutive fiscal quarters that
clause (ii) above shall consist instead of the aggregate amount of Capital
Expenditures made during such period in excess of the lesser of (x)
$12,000,000; or (y) the aggregate amount incurred by the Company during those
consecutive fiscal quarters for expenditures for such project for
improvements to new leased headquarters for the Company.
"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 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
(a) the write-up of assets (other than Marketable Investments) after December
31, 1995 and (b) extraordinary and non-recurring gains or losses.
"CONSOLIDATED NET WORTH" shall mean, as at any date, the
shareholder's equity of the Company and its Consolidated Subsidiaries.
"CONSOLIDATED OPERATING INCOME" shall mean, for any period, the
Consolidated Net Income of the Company for such period, PROVIDED, HOWEVER,
that, to the extent the following items have been included in determining
Consolidated Net Income, they shall NOT be considered in computing
Consolidated Operating Income: provision for income taxes, interest expense,
equity in the operating results of unconsolidated subsidiaries (including
partnerships, joint ventures and Affiliates of the Company but only to the
extent that such results represent noncash, nonoperating items) and other
non-operating, non-cash items including, but not limited to, write-off of
acquired technology or acquired, in-process research and development which,
in accordance with GAAP, must be charged to income.
"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.
"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.
-6-
<PAGE>
"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 5.1(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.
"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.
"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 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.
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"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)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(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.
"FACILITY" shall have the meaning given in Section 1.3 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
"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
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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.
"GELTEX ACQUISITION" shall mean the transactions contemplated by the
GelTex Acquisition Documents.
"GELTEX ACQUISITION DOCUMENTS" shall mean, individually and
collectively (i) Agreement and Plan of Merger by and among the Company, Titan
Acquisition Corp. and GelTex Pharmaceuticals, Inc. dated as of September 11,
2000, (ii) Agreement of Joinder executed and delivered by Titan Acquisition
Corp. on September 12, 2000, (iii) Amendment No. 1 to Agreement and Plan of
Merger dated October 19, 2000, among the Company, Titan Acquisition Corp. and
GelTex Pharmaceuticals, Inc., and (iv) Consent dated as of October 30, 2000
by the Company and Titan Acquisition Corp., together with all other
agreements of transfer as are referred to therein and all side letters with
respect thereto, and all agreements, documents and instruments executed
and/or delivered in connection therewith, as all of the foregoing now exist
or may hereafter be amended, modified, supplemented, extended, renewed,
restated, or replaced.
"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 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
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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.
"INITIAL ACQUISITION" shall mean the first to occur of the Biomatrix
Acquisition or the GelTex Acquisition.
"INITIAL ACQUISITION DOCUMENTS" shall mean: (i) the Biomatrix
Acquisition Documents, if the Biomatrix Acquisition is the Initial
Acquisition; or (ii) the GelTex Acquisition Documents, if the GelTex
Acquisition is the Initial Acquisition.
"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; (e) Capital Lease
Obligations of such Person; (f) Synthetic Lease Obligations of such Person;
and (g) Guarantees by such Person of Indebtedness of others.
"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: all
domestic and foreign patents and patent applications; inventions, discoveries
and improvements, whether or not patentable; trademarks, trademark
applications and registrations; service marks, service mark applications and
registrations; copyrights, copyright applications and registrations; all
licenses therefor; trade secrets and all other proprietary information.
"INTEREST" 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.
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"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 or sixth 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) (a) if any Interest Period for any 364-Day Facility
Revolving Credit Loan would otherwise end after the 364-Day Facility
Revolving Credit Commitment Termination Date, such Interest Period
shall not be available hereunder; and (b) if any Interest Period for
any Three-Year Facility Revolving Credit Loan would otherwise end after
the Three-Year Facility 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 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.
"LEVEL I PERIOD" shall mean any period, other than a Level II
Period, Level III Period, or Level IV Period.
"LEVEL II PERIOD" shall mean any period (a) from and including the
Business Day immediately following the Business Day on which a senior
financial officer of the Company shall have delivered to the Administrative
Agent a Compliance Certificate, together with the
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related financial statements referred to in Section 9.1 hereof, demonstrating
in reasonable detail that the Consolidated Debt Coverage Ratio, as of the
last day of the fiscal quarter of the Company most recently ended, is greater
than or equal to 1.0 to 1.0, but less than 1.5 to 1.0, to but excluding the
next succeeding Reporting Date and (b) during which no Event of Default shall
have occurred and be continuing.
"LEVEL III PERIOD" shall mean any period, other than a Level IV
Period, (a) from and including the Business Day immediately following the
Business Day on which a senior financial officer of the Company shall have
delivered to the Administrative Agent a Compliance Certificate, together with
the related financial statements referred to in Section 9.1 hereof,
demonstrating in reasonable detail that the Consolidated Debt Coverage Ratio,
as of the last day of the fiscal quarter of the Company most recently ended,
is greater than or equal to 1.5 to 1.0, to but excluding the next succeeding
Reporting Date and (b) during which no Event of Default shall have occurred
and be continuing.
"LEVEL IV PERIOD" shall mean any period (a) from and including the
Business Day immediately following the Business Day on which a senior
financial officer of the Company shall have delivered to the Administrative
Agent a Compliance Certificate, together with the related financial
statements referred to in Section 9.1 hereof, demonstrating in reasonable
detail that the Consolidated Debt Coverage Ratio, as of the last day of the
fiscal quarter of the Company most recently ended, is greater than or equal
to 1.5 to 1.0, AND for which the Administrative Agent has received written
confirmation from the respective debt rating company that the Senior
Unsecured Debt Rating of the Company, as of the last day of the fiscal
quarter of the Company most recently ended, is at least A- with regard to
Standard & Poor's or A3 with regard to Moody's Investors Service, to but
excluding the next succeeding Reporting Date and (b) during which no Event of
Default shall have occurred and be continuing.
"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 1/32 of 1%), as determined by the Administrative Agent, of the
rates per annum which appear on the Telerate 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 Telerate System 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.
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"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.
"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 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. Effective upon and as of the Initial Acquisition,
the entity acquired pursuant to (or, as applicable, the surviving entity of
any merger effected by) the Initial Acquisition Documents shall be deemed to
be a Material Subsidiary. Effective upon and as of the Second Acquisition,
the entity acquired pursuant to (or, as applicable, the surviving entity of
any merger effected by) the Second Acquisition Documents shall be deemed to
be a Material Subsidiary.
"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
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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.
"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.
"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 4% PLUS the
interest rate for a Loan as provided in one of the lettered paragraphs of
Section 3.2 for a Level I Period.
"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 100 Federal Street, Boston, Massachusetts 02110, or
such other principal office of the Administrative Agent, after written notice
by the Administrative Agent.
"PRIOR CREDIT AGREEMENT" shall mean that certain Credit Agreement
dated as of November 12, 1999, among the Company, the Subsidiary Guarantors
thereto, the Lenders thereto, Fleet, as Administrative Agent, ABN AMRO Bank
N.V., as Syndication Agent, and Mellon Bank, N.A., as Documentation Agent.
"PRIOR CREDIT AGREEMENT PARTIES" shall mean the parties to the Prior
Credit Agreement.
"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.
"PURCHASED BIOMATRIX STOCK" shall mean all of the issued and
outstanding shares of common stock of Biomatrix, Inc.
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"PURCHASED GELTEX STOCK" shall mean all of the issued and
outstanding shares of common stock of GelTex Pharmaceuticals, Inc.
"PURCHASED INITIAL STOCK" shall mean: (i) the Purchased Biomatrix
Stock, if the Biomatrix Acquisition is the Initial Acquisition; or (ii) the
Purchased GelTex Stock, if the GelTex Acquisition is the Initial Acquisition.
"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.
"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 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.
"REPORTING DATE" shall mean the first to occur of (i) the Business
Day following the Business Day that the Administrative Agent receives a
Compliance Certificate of the Company providing the information required to
determine whether a period is a Level I Period, Level II Period, Level III
Period or Level IV Period and (ii) the first Business Day after the date on
which the quarterly or annual financial statement and Compliance Certificate
is required to be delivered to the Lenders pursuant to Section 9.1(a) or (b)
and (c).
"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.
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"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 sum of such Lender's Three-Year Facility Revolving Credit
Commitment and 364-Day Facility Revolving Credit Commitment.
"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 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, and
which may be Three-Year Facility Revolving Credit Loans or 364-Day Facility
Revolving Credit 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.
"SECOND ACQUISITION" shall mean: (ii) the GelTex Acquisition, if the
Biomatrix Acquisition is the Initial Acquisition; or (ii) the Biomatrix
Acquisition, if the GelTex Acquisition is the Initial Acquisition.
"SECOND ACQUISITION CONDITIONS PRECEDENT" shall mean the occurrence
of all of the following, but only if each and all of them have occurred on or
prior to the date that is ninety (90) days after the Closing Date:
(i) The Company shall have made available to the Lenders signed
copies of the Second Acquisition Documents;
(ii) The Administrative Agent shall have received the Company's
certificate that the Second Acquisition Documents posted to
the www.Intralinks.com web-site on or prior to December 13,
2000, have not been amended, and that the transactions
contemplated under the terms thereof have been consummated
prior to or will be consummated contemporaneously with the
requested Loans;
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(iii) The Company shall have made, in writing, all representations
and warranties with respect to the Second Acquisition and the
Second Acquisition Documents as the Company has made with
respect to the First Acquisition pursuant to Section 8.19
hereof; and
(iv) The Company shall have complied with Section 9.13 hereof with
respect to the entity that has become a Material Subsidiary by
virtue of the Second Acquisition.
"SECOND ACQUISITION DOCUMENTS" shall mean: (ii) the Biomatrix
Acquisition Documents, if the Biomatrix Acquisition is the Second
Acquisition; or (ii) the GelTex Acquisition Documents, if the GelTex
Acquisition is the Second Acquisition.
"SENIOR UNSECURED DEBT RATING" shall mean, for any date, the senior
unsecured debt rating, as rated by Standard & Poor's or Moody's Investor
Service as of such date.
"SUBORDINATED DEBT" means (1) the Company's Convertible Debentures,
issued August 29, 1997, in the original aggregate principal amount of $20
million, (2) the Company's Convertible Notes, issued May 19, 1998, in the
original aggregate principal amount of $250 million, (3) 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 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 Three-Year
Facility 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 Three-Year Facility 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
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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), (4) 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 (5) any refinancing of Subordinated Debt incurred pursuant
to subsections (1), (2), (3) or (4), 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.
"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.
"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 GelTex Pharmaceuticals, Inc. and First Security Bank, N.A., not in
its individual capacity except as expressly set forth in the Agency
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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 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 or future 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.
"364-DAY FACILITY REVOLVING CREDIT COMMITMENT" shall mean, for each
Revolving Credit Lender, the obligation of such Lender to make 364-Day
Facility 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 under the appropriate caption: (a)
"Initial 364-Day Facility Revolving Credit Availability", prior to the
consummation of the Second Acquisition and satisfaction of the Second
Acquisition Conditions Precedent, or (b) "Post-Second Acquisition 364-Day
Facility Revolving Credit Commitment", upon and following the consummation of
the Second Acquisition and satisfaction of the Second Acquisition Conditions
Precedent plus (ii) the aggregate amount of 364-Day Facility Revolving Credit
Commitments acquired by such Lender from other Lenders pursuant to Section
12.7(b) hereof minus (iii) the aggregate amount of 364-Day Facility 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 364-Day
Facility Revolving Credit Commitments acquired by such Lender from other
Lenders pursuant to Section 12.7(b) hereof minus (ii) the aggregate amount of
364 Day Facility 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.
"364-DAY FACILITY REVOLVING CREDIT COMMITMENT TERMINATION DATE"
shall be December 12, 2001.
"364-DAY FACILITY REVOLVING CREDIT LOANS" shall have the meaning
given in Section 2.1(b) hereof.
"THREE-YEAR FACILITY REVOLVING CREDIT COMMITMENT" shall mean, for
each Revolving Credit Lender, the obligation of such Lender to make
Three-Year Facility 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 under the appropriate
caption: (a) "Initial Three-Year Facility Revolving Credit Availability",
prior to the consummation of the Second Acquisition and satisfaction of the
Second Acquisition Conditions Precedent, or (b) "Post-Second Acquisition
Three-Year Facility Revolving Credit Commitment", upon and following the
consummation of the Second Acquisition and satisfaction of the Second
Acquisition Conditions Precedent, plus (ii) the aggregate amount of
Three-Year Facility Revolving Credit
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Commitments acquired by such Lender from other Lenders pursuant to Section
12.7(b) hereof minus (iii) the aggregate amount of Three-Year Facility
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
Three-Year Facility Revolving Credit Commitments acquired by such Lender from
other Lenders pursuant to Section 12.7(b) hereof minus (ii) the aggregate
amount of Three-Year Facility 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.
"THREE-YEAR FACILITY REVOLVING CREDIT COMMITMENT TERMINATION DATE"
shall be December 14, 2003.
"THREE-YEAR FACILITY REVOLVING CREDIT LOANS" shall have the meaning
given in Section 2.1(a) hereof.
"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.
"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
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delivery of the first annual or quarterly financial statements under
Section 9.1 hereof, shall mean the audited financial statements as at
December 31, 1999 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/FACILITIES. Loans hereunder are distinguished by
"Type" and "Facility". The "Type" of a Loan refers to whether such Loan is a
Prime Rate Loan or a LIBOR Loan. The "Facility" refers to whether such Loan
is made under the Three-Year Facility or the 364-Day Facility.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.1. REVOLVING CREDIT LOANS.
(a) THREE-YEAR 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 Three-Year Facility Revolving Credit Commitment
Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the Three-Year
Facility Revolving Credit Commitment of such Lender as in effect from
time to time (such Loans being herein called "THREE-YEAR FACILITY
REVOLVING CREDIT LOANS"); PROVIDED THAT (i) the Three-Year Facility
Revolving Credit Loans outstanding shall not exceed $245,000,000 prior
to the consummation of the Second Acquisition and satisfaction of the
Second Acquisition Conditions Precedent; and (ii) in no event shall the
Three-Year Facility Revolving Credit Loans at any time outstanding
exceed the aggregate amount of the Three-Year Facility 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 Three-Year Facility
Revolving Credit Commitments by means of Prime Rate Loans and LIBOR
Loans and may Convert Three-Year Facility Revolving Credit Loans of one
Type into Three-Year Facility Revolving Credit Loans of another Type
(as provided in Section 2.8 hereof) or Continue Three-Year Facility
Revolving Credit Loans of one Type as Three-Year Facility Revolving
Credit Loans of the same Type (as provided in Section 2.8 hereof).
(b) 364-DAY 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 364-Day Facility Revolving Credit Commitment
Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the 364-Day Facility
Revolving Credit Commitment of such Lender as in effect from time to
time (such Loans being herein called "364-DAY FACILITY REVOLVING CREDIT
LOANS"); PROVIDED THAT (i) the 364-Day Facility Revolving Credit Loans
outstanding shall not exceed $105,000,000 prior to the consummation of
the Second Acquisition and satisfaction of the Second Acquisition
Conditions Precedent; and (ii) in no event shall the 364-Day Facility
Revolving Credit Loans at any time outstanding exceed the aggregate
amount of the
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364-Day Facility 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 364-Day Facility Revolving Credit
Commitments by means of Prime Rate Loans and LIBOR Loans and may
Convert 364-Day Facility Revolving Credit Loans of one Type into
364-Day Facility Revolving Credit Loans of another Type (as provided in
Section 2.8 hereof).
(c) INTEREST PERIODS. No more than five separate Interest
Periods in respect of LIBOR Loans may be outstanding at any one time.
(d) REVOLVING CREDIT COMMITMENTS. In no event shall the
Revolving Credit Loans at any time outstanding exceed the aggregate
amount of the Revolving Credit Commitments as in effect from time to
time. Prior to the consummation of the Second Acquisition and
compliance with the Second Acquisition Conditions Precedent, the
aggregate Revolving Credit Loans outstanding shall not exceed
$350,000,000.00.
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 1510351
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) (i) The aggregate amount of the 364-Day Facility Revolving
Credit Commitments shall be automatically reduced to zero on the
364-Day Facility Revolving Credit Commitment Termination Date; and (ii)
the aggregate amount of the Three-Year Facility Revolving Credit
Commitments shall be automatically reduced to zero on the Three-Year
Facility 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 Three-Year
Facility Revolving Credit Commitments and the 364-Day Facility
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, which notice shall specify the amount of the total reduction,
and the amount of the reduction for each Facility, and (y) each partial
reduction to the aggregate Revolving Credit Commitments
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<PAGE>
shall be in an aggregate amount at least equal to $5,000,000 (or
any integral multiple of $1,000,000 in excess thereof).
(c) The Commitments once terminated or reduced may not be
reinstated.
2.4. COMMITMENT FEE. The Company shall pay to the Administrative
Agent for the account of each Lender a commitment fee on the daily average
unused amount of such Lender's Commitment (without regard to whether the
Borrower is permitted by the terms hereof to borrow the full amount of such
Commitment and provided that, for the purposes only of calculating the
commitment fee under this Section 2.4, each Lender's Commitment shall be
calculated as if the Post-Second Acquisition 364-Day Facility Revolving
Credit Commitments and the Post-Second Acquisition Three-Year Facility
Revolving Credit Commitments were in effect), 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 Commitment
Fee Rate. Accrued commitment 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) (i) The Three-Year Facility 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 Three-Year Facility Revolving Credit Commitment as
originally in effect and otherwise duly completed; and (ii) the 364-Day
Facility Revolving Credit Loans made by each Lender shall be evidenced
by a single promissory note of the Company substantially in the form of
EXHIBIT B hereto, dated the date hereof, payable to such Lender in a
principal amount equal to the amount of its 364-Day Facility 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,
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<PAGE>
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.
(c) No Lender shall be entitled to have its Notes 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 (within the same
Facility) or Continue Loans of one Type as Loans of the same Type (within the
same Facility), 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 (a) the entire outstanding
principal amount of such Lender's 364-Day Facility Revolving Credit Loans,
and each 364-Day Facility Revolving Credit Loan shall mature, on the 364-Day
Facility Revolving Credit Commitment Termination Date; and (b) the entire
outstanding principal amount of such Lender's Three-Year Facility Revolving
Credit Loans, and each Three-Year Facility Revolving Credit Loan shall
mature, on the Three-Year Facility 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
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excluding the date such Revolving Credit Loan shall be paid in full, at the
following rates per annum:
(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 58386988
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.
(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)
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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, the
Facility to which such payment applies, 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 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.
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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 commitment 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 under the respective Facility;
(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 under the respective Facility (in the case of the
making of Loans) or their respective Revolving Credit Loans under the
respective Facility (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 under the respective Facility 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 under the respective
Facility then due and payable to the respective Lenders.
4.3. COMPUTATIONS. Interest on Loans and commitment 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 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, of the respective
Facility, 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: (i)
borrowings to be made on the Closing Date; (ii) the Conversion into LIBOR Loans
to be effected on December 18, 2000 in the principal amount of up to
$168,000,000 of Loans; or (iii) the borrowing of LIBOR Loans to be effected on
December 19, 2000 in the principal amount of up to $200,000,000 of Loans, 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:
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<TABLE>
<CAPTION>
Number of
Business
Notice Days Prior
------ ----------
<S> <C>
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
</TABLE>
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 respective Facility and 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 and the respective Facility 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 H hereto (for each notice of borrowing),
EXHIBIT I hereto (for each notice of Conversion or Continuation), or EXHIBIT J
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
Facility or Type of Loan, or the duration of any Interest Period for any LIBOR
Loan, within the time period and otherwise as provided in this Section 4.5, such
Loan: (i) if then outstanding as a LIBOR Loan, will be automatically Converted
into a Prime Rate Loan under the same Facility as such LIBOR Loan on the last
day of the then current Interest Period for such Loan, unless such Facility was
the 364-Day Facility and the 364-Day Facility Revolving Credit Commitment
Termination Date shall have occurred, in which case it will be made as a Prime
Rate Loan under the Three-Year Facility; or (ii) if not then outstanding, will
be made as, a Prime Rate Loan under the Three-Year Facility.
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
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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
be 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 be obligated
retroactively to the Advance Date to pay interest in respect
of the 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
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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 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,
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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 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
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(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.
(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
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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 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.
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
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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:
(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
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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 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.
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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:
(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
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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.
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.
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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.
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
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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 H.
(d) OPINIONS OF COUNSEL TO THE OBLIGORS. The receipt by the
Administrative Agent of an opinion, dated the Closing Date, of Palmer &
Dodge LLP, special counsel to the Obligors, substantially in the form
of EXHIBIT C 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 G, 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
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
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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.
(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.
(l) 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 Brown, Rudnick, Freed & Gesmer, 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 hereunder (to the extent
that statements for such fees and expenses have been delivered to the
Company).
(m) INITIAL ACQUISITION DOCUMENTS. (i) The Company shall have
made available to the Lenders signed copies of the Initial Acquisition
Documents; (ii) the Administrative Agent shall have received the
Company's certificate that the Initial Acquisition Documents most
recently made available to the Lenders have not been amended, and that
the transactions contemplated under the terms thereof have been
consummated prior to or will be consummated contemporaneously with the
Closing Date; and (iii) the Company shall have complied with Section
9.13 hereof with respect to the entity that has become a Material
Subsidiary by virtue of the Initial Acquisition.
(n) PRIOR CREDIT AGREEMENT. Either: (i) the Prior Credit
Agreement Parties shall have delivered a written agreement executed by
all of them terminating the Prior Agreement as of the Closing Date, in
the form of EXHIBIT K hereto, and the Company shall have made all
payments required thereunder; or (ii) the Company shall have delivered
to the Administrative Agent (as defined under the Prior Credit
Agreement) a notice of termination of the credit facilities under the
Prior Credit Agreement, not less
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than three (3) Business Days (as defined in the Prior Credit
Agreement) prior to the Closing Date hereof.
(o) OTHER DOCUMENTS. Such other documents as any Agent or any
Lender or special counsel to Fleet may reasonably request.
(p) PRE-COMMITMENT FEE. The Company shall pay to the
Administrative Agent for the account of each Lender a pre-commitment
fee, for the period from and including December 7, 2000 to but not
including the Closing Date, at a rate per annum equal to 0.10% of such
Lender's Commitment (for the purposes only of calculating the
pre-commitment fee under this Section 7.1(p), each Lender's Commitment
shall be calculated as if the Post-Second Acquisition 364-Day Facility
Revolving Credit Commitments and the Post-Second Acquisition Three-Year
Facility Revolving Credit Commitments were in effect).
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:
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
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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, 1999 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, 2000, 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, 2000, 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, 2000, 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 July 1, 2000 (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 July 1, 2000.
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
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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 the Company would be
under an obligation to furnish a report to the Lenders under Section 9.1(e)
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
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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.
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
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
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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, 1999,
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, 1999, 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
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. YEAR 2000 COMPLIANCE. The Company has taken all reasonably
necessary action to access and evaluate all of the hardware, software, embedded
microchips and other processing capabilities it uses and which is used in the
products it sells, directly or indirectly, and has made inquiry of the Company's
and its Subsidiaries' material suppliers and vendors, to
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be able to ensure that the Company and its Subsidiaries and each product they
sell will be able to function accurately and without interruption using date
information before, during and after January 1, 2000 sufficiently so as not
to cause a Material Adverse Effect. The Company and its Subsidiaries have
corrected, on or before September 30, 1999, all such problems that are
reasonably likely to have a Material Adverse Effect, and the cost of any
reprogramming and testing has not and is not reasonably likely to have a
Material Adverse Effect.
8.18. 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.
8.19. INITIAL ACQUISITION DISCLOSURE.
(a) As of the Closing Date, the Initial Acquisition Documents
and the transactions contemplated thereunder have been duly executed,
delivered, and performed in accordance with their terms by the
respective parties thereto in all respects, including the fulfillment
(not merely the waiver, except as may be disclosed to Administrative
Agent and consented to in writing by the Administrative Agent) of all
conditions precedent set forth therein and, giving effect to the terms
of the Initial Acquisition Documents and the assignments to be executed
and delivered thereunder, the Company acquired and has good and
marketable title to the Purchased Initial Stock, free and clear of all
claims, liens, pledges and encumbrances of any kind, except as
permitted hereunder.
(b) As of the Closing Date, all actions and proceedings
required by the Initial Acquisition Documents, applicable law or
regulation (including, but not limited to, compliance with the
Hart-Scott-Rodino Anti-Trust Improvements Act of 1976, as amended) have
been taken and the transactions required thereunder shall have been
duly and validly taken and consummated.
(c) As of the Closing Date, no court of competent jurisdiction
has issued any injunction, restraining order or other order which
prohibits consummation of the transactions described in the Initial
Acquisition Documents and no governmental or other action or proceeding
shall have been threatened or commenced, seeking any
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injunction, restraining order, or other order which seeks to void or
otherwise modify the transactions described in the Initial
Acquisition Documents.
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:
(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 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 D hereto;
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(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 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 9.1(b) hereof, a listing of each
Subsidiary of the Borrower, 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 Borrower 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;
(i) 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
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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;
(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
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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):
(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 G, together with the certificates for all shares of
capital stock of the continuing or surviving Person pledged
thereunder and undated stock powers;
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(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 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
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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 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 Genzyme (UK) Limited manufacturing facility
and equipment 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
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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;
(l) 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:
(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);
(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;
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(h) Indebtedness incurred to renew, extend, refinance or
refund any Indebtedness expressly permitted by any of the clauses of
this Section 9.7; and
(i) additional Indebtedness of the Company and its
Subsidiaries, including Indebtedness incurred to finance the
construction of manufacturing facilities and the acquisition of the
equipment for Genzyme (UK) Limited, up to but not exceeding ten percent
(10%) of the book value of the Consolidated Tangible Assets, calculated
in accordance with GAAP (in determining whether additional Indebtedness
exceeds the ten percent (10%) maximum under this Section 9.7(i), 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 June, 2000).
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Company will
not permit the Consolidated Fixed Charge 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
June, 2000) to be less than 3.00 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 June, 2000), the ratio of (a)
Consolidated Funded Debt less all Unrestricted Cash and Marketable
Investments of the Company and its Consolidated Subsidiaries in excess
of $125,000,000; to (b) Consolidated 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.
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
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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 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 E hereto, and (b) to deliver such proof of corporate action,
incumbency of officers, opinions of counsel (it being agreed that any such
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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.
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 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), 9.1(f), 9.1(g),
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
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(ii) The Company shall default in the performance
of any of its obligations under any of Sections 9.1(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
(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
reorganization, 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 S&P or a financial
strength rating of AA or better from Moody's) 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 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
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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
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 First Union as Documentation
Agent 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.
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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, the failure
to repay all 364-Day Facility Revolving Credit Loans on the 364-Day Facility
Revolving Credit Commitment Termination Date, or the failure to pay all
Three-Year Facility Revolving Credit Loans on the Three-Year Facility 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 First Union (and any
successor acting as 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 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 First Union (and any successor acting as 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
First Union (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.
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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, 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.
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 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
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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
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
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(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 Brown, Rudnick, Freed & Gesmer, 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; 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, 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
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Person to be indemnified). 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 incurred by reason of the gross negligence or willful misconduct of
the Person to be indemnified) 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. 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 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 all of the Lenders or by the Administrative Agent acting
with the consent of all of the Lenders: (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, (iv) reduce the rate at which interest is payable thereon or any
fee is payable hereunder, (v) alter the rights or obligations of the Company
to prepay Loans, (vi) alter the terms of Section 4.2, 4.7 or 11.9 hereof or
this Section 12.5, (vii) 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, (viii) release any Obligor hereunder, (ix)
waive any of the conditions precedent set forth in Section 7.1 hereof, or (x)
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; (b) any modification or supplement of Section 11
hereof shall require the consent of the Administrative Agent; and (c) 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.
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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;
(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 F 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
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with such Lender in connection with such Agents' and Lenders' rights
and obligations hereunder.
(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 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.
-66-
<PAGE>
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 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, 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
applicable law or court order, each Lender and each Agent shall, prior
to disclosure thereof, notify
-67-
<PAGE>
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. 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 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.
12.16. TRANSITIONAL ARRANGEMENTS. This Agreement, upon the satisfaction
of each of the conditions set forth in Section 7 shall amend, replace and
supercede the Prior Credit Agreement, provided that each of the Obligations
outstanding under the Prior Credit Agreement shall become Obligations under this
Agreement and all interest, fees and charges payable under the Prior Credit
Agreement shall continue in effect and be payable as provided under this
Agreement subject to any change or modification thereto that is provided in this
Agreement.
-68-
<PAGE>
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/ Michael S. Wyzga
--------------------------------------------
Michael S. Wyzga
Senior Vice President, Finance
Address for Notices:
Genzyme Corporation
15 Pleasant Street Connector
Framingham, Massachusetts 01701
Attention: Evan M. Lebson, Treasurer
Telecopier No.: (508) 872-0827
Telephone No.: (508) 270-2334
SUBSIDIARY GUARANTORS
DEKNATEL SNOWDEN PENCER, INC.
By: /s/ Earl M. Collier, Jr.
--------------------------------------------
Earl M. Collier, Jr.
President
Address for Notices:
c/o Genzyme Corporation
15 Pleasant Street Connector
Framingham, MA 01701
Attention: Evan M. Lebson, Treasurer
Telecopier No.: (508) 872-0827
Telephone No.: (508) 270-2334
<PAGE>
GENZYME SURGICAL PRODUCTS
CORPORATION
By: /s/ Evan M. Lebson
---------------------------------------------
Evan M. Lebson
Treasurer
Address for Notices:
c/o Genzyme Corporation
15 Pleasant Street Connector
Framingham, MA 01701
Attention: Evan M. Lebson, Treasurer
Telecopier No.: (508) 872-0827
Telephone No.: (508) 270-2334
<PAGE>
ADMINISTRATIVE AGENT
FLEET NATIONAL BANK
By: /s/ Kimberly A. Martone
--------------------------------------------
Kimberly A. Martone
Senior Vice President/Director
ADDRESS FOR NOTICES:
-------------------
Fleet National Bank
One Federal Street
Boston, MA 02110
Attention: Kimberly A. Martone, Senior Vice
President - High Tech Group
Telecopier No.: (617) 434-2473
Telephone No.: (617) 434-5316
<PAGE>
SYNDICATION AGENT
ABN AMRO BANK N.V.
By: /s/ ABN AMRO Bank N.V.
-------------------------------------------
Title: Senior Vice President
/s/ Patricia Christy
-------------------------------------------
Title: Vice President
ADDRESS FOR NOTICES:
-------------------
ABN AMRO Bank N.V.
-------------------
500 Park Avenue
-------------------
New York, NY 10022
-------------------
Attention: Patricia Christy
--------------------------------
Telecopier No.: (212) 446-4237
---------------------------
Telephone No.: (212) 446-4204
----------------------------
<PAGE>
DOCUMENTATION AGENT
FIRST UNION NATIONAL BANK
By: /s/ Michael Monte
-------------------------------------------
Title: Managing Director
ADDRESS FOR NOTICES:
-------------------
Joyce Barry
-------------------
201 S. College Street, 6th Floor
-------------------
Charlotte, NC 28288-0760
-------------------
Attention: Joyce Barry
--------------------------------
Telecopier No.: (704) 374-4793
---------------------------
Telephone No.: (704) 374-4151
----------------------------
<PAGE>
LENDER
FLEET NATIONAL BANK
By: /s/ Kimberly Marbre
-------------------------------------------
Title: SVP/Director
ADDRESS FOR NOTICES:
-------------------
Fleet National Bank
One Federal Street
Boston, MA 02110
Attention: Kimberly A. Martone, Senior Vice
President - High Tech Group
Telecopier No.: (617) 434-2473
Telephone No.: (617) 434-5316
LENDING OFFICE FOR ALL LOANS:
----------------------------
Fleet National Bank
One Federal Street
Boston, MA 02110
Attention: Kimberly A. Martone, Senior Vice
President - High Tech Group
Telecopier No.: (617) 434-2473
Telephone No.: (617) 434-5316
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $11,025,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $25,725,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $15,750,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $36,750,000.00
<PAGE>
LENDER
------
ABN AMRO BANK N.V.
By: /s/ ABN AMRO Bank N.V.
---------------------------------
Title: Senior Vice President
By: /s/ Patricia Christy
---------------------------------
Title: Vice President
Address for Notices:
--------------------
ABN AMRO Bank N.V.
500 Park Avenue
New York, NY 10022
Attn: Patricia Christy
Telecopier No.: (212) 446-4237
Telephone No.: (212) 446-4204
Lending Office for all Loans:
-----------------------------
ABN AMRO Bank N.V.
208 South LaSalle Street
Suite 1500
Chicago, IL 60604-1003
Attn: Loan Administration
Telecopier No.: 312 992 5111
Telephone No.: 312 992 5096
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 9,975,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $23,275,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $14,250,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $33,250,000.00
<PAGE>
LENDER
------
FIRST UNION NATIONAL BANK
By: /s/ Michael Monte
---------------------------------
Title: Managing Director
Address for Notices:
--------------------
Joyce Barry
201 S. College Street, 6th Floor
Charlotte, NC 28288-0760
Attention: Joyce Barry
--------------------------------------
Telecopier No.: 704-374-4793
Telephone No.: 704-374-4151
Lending Office for all Loans:
-----------------------------
Tonya Rhyne
201 S. College St., CP-24
Charlotte, NC 28288-118
Attn: Tonya Rhyne
Telecopier No.: 704-383-5295
Telephone No.: 704-383-7201
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 9,975,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $23,275,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $14,250,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $33,250,000.00
<PAGE>
LENDER
------
THE BANK OF NOVA SCOTIA
By: /s/ T.M. Pitcher
---------------------------------
Title:
Authorized Signatory
Address for Notices:
--------------------
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Suite 2700
Atlanta, GA 30308
Attn: Jill A. Quiroz
Telecopier No.: (404) 888-8998
Telephone No.: (404) 877-1544
Lending Office for all Loans:
-----------------------------
The Bank of Nova Scotia
Boston Branch
28 State Street, 17th Floor
Boston, MA 02109
Attn: Stephen Foley
Telecopier No.: (617) 624-7607
Telephone No.: (617) 624-7612
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 8,925,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $20,825,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $12,750,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $29,750,000.00
<PAGE>
LENDER
------
SOCIETE GENERALE
By: /s/ Richard Bernal
---------------------------------
Title: Vice President
Address for Notices:
--------------------
Societe Generale
2001 Ross Avenue
Suite 4800
Dallas, TX 75201
Attn: Aretha Velasquez
Telecopier No.: (214) 754-0171
Telephone No.: (214) 979-2758
Lending Office for all Loans:
-----------------------------
Societe Generale
1221 Avenue of the Americas
New York, NY 10020
Attn: Jay Sands
Telecopier No.: (212) 278-7614
Telephone No.: (212) 278-6697
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 8,925,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $20,825,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $12,750,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $29,750,000.00
<PAGE>
LENDER
------
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ J. Kenneth Biegen
---------------------------------
Title: Senior Vice President
Address for Notices:
--------------------
The Industrial Bank of Japan, Limited
1251 Avenue of the Americas
New York, NY 10020-1104
Attn: Wayne Wright
Telecopier No.: (212) 282-4488
Telephone No.: (212) 282-3462
Attn: J. Kenneth Biegen
Telecopier No.: (212) 282-4488
Telephone No.: (212) 282-3460
Lending Office for all Loans:
-----------------------------
The Industrial Bank of Japan, Limited
1251 Avenue of the Americas
New York, NY 10020
Attn: Domestic Money Market Lending
Office
Telecopier No.: (212) 282-4250
Telephone No.: (212) 282-3000
Attn: LIBOR Lending Office
Telecopier No.: (212) 282-4250
Telephone No.: (212) 282-3000
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $2,975,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $6,941,666.67
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $4,250,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $9,916,666.67
<PAGE>
LENDER
------
THE FUJI BANK, LIMITED
By: /s/ The Fuji Bank, Limited
---------------------------------
Title: Vice President & Manager
Address for Notices:
--------------------
The Fuji Bank, Limited
2 World Trade Center
79 Floor
New York, NY 10048
Attn: Chigusa Tada
Telecopier No.: 212-321-9407
Telephone No.: 212-898-2067
Lending Office for all Loans:
-----------------------------
The Fuji Bank, Limited
2 World Trade Center
79 Floor
New York, NY 10048
Attn: Tina Catapano
Telecopier No.: 212-488-8216
Telephone No.: 212-898-2099
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $2,975,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $6,941,666.67
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $4,250,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $9,916,666.67
<PAGE>
LENDER
------
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ The Dai-Ichi Kangyo Bank,
Limited
---------------------------------
Title: Senior Vice-President
Address for Notices:
--------------------
The Dai-ichi Kangyo Bank, Limited
One World Trade Center
48th Floor
New York, NY 10048
Attn: Ivan Lincevski
Telecopier No.: (212) 912-1879
Telephone No.: (212) 432-6632
Lending Office for all Loans:
-----------------------------
The Dai-ichi Kangyo Bank, Limited
One World Trade Center
48th Floor
New York, NY 10048
Attn: Ivan Lincevski
Telecopier No.: (212) 912-1879
Telephone No.: (212) 432-6632
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $2,975,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $6,941,666.67
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $4,250,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $9,916,666.67
<PAGE>
LENDER
------
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Thomas Fennessey
---------------------------------
Title: Vice President
Address for Notices:
--------------------
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas
12th Floor
New York, NY 10020
Attn: Thomas Fennessey
Telecopier No.: (212) 782-6440
Telephone No.: (212) 782-4221
Lending Office for all Loans:
-----------------------------
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas
12th Floor
New York, NY 10020
Attn: Rolando Uy
Telecopier No.: (201) 521-2304
Telephone No.: (201) 413-8570
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 7,350,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $17,150,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $10,500,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $24,500,000.00
<PAGE>
LENDER
------
THE CHASE MANHATTAN BANK
By: /s/ John A. Francis
---------------------------------
Title: Vice President
Address for Notices:
--------------------
The Chase Manhattan Bank
999 Broad Street, 1st Floor
Bridgeport, CT 06510
Attn: John Francis
Telecopier No.: 203-784-3838
Telephone No.: 860-633-7799
Lending Office for all Loans:
-----------------------------
The Chase Manhattan Bank
999 Broad Street, 1st Floor
Bridgeport, CT 06510
Attn: Jackie Santana
Telecopier No.: 203-368-5124
Telephone No.: 203-382-6575
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 7,350,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $17,150,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $10,500,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $24,500,000.00
<PAGE>
LENDER
------
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Scott Haskell
---------------------------------
Title: Vice President
Address for Notices:
--------------------
Citizens Bank of Massachusetts
53 State Street
Boston, MA 02109
Attn: Scott Haskell
Telecopier No.: (617) 742-9548
Telephone No.: (617) 994-7129
Lending Office for all Loans:
-----------------------------
Citizens Bank of Massachusetts
53 State Street
Boston, MA 02109
Attn: Scott Haskell
Telecopier No.: (617) 742-9548
Telephone No.: (617) 994-7129
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 7,350,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $17,150,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $10,500,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $24,500,000.00
<PAGE>
LENDER
------
CITIZENS BANK OF MASSACHUSETTS
By: /s/ J. Wade Bell
---------------------------------
Title: Vice President
Address for Notices:
--------------------
1735 Market Street, 7th Fl.
Philadelphia, PA 19103
Attn: J. Wade Bell
Telecopier No.: 215-553-4899
Telephone No.: 215-553-3875
Lending Office for all Loans:
-----------------------------
3 Mellon Bank Center, 12th Fl.
Pittsburgh, PA 15259
Attn: Sannford M. Richards
Telecopier No.: 412-209-6118
Telephone No.: 412-234-8285
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 7,350,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $17,150,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $10,500,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $24,500,000.00
<PAGE>
LENDER
------
BANCA NAZIONALE DEL LAVORO S.p.A.
NEW YORK BRANCH
By: /s/ Leonardo Valentini
---------------------------------
Title: First Vice President
By: /s/ Frederic W. Hall
---------------------------------
Title: Vice President
Address for Notices:
--------------------
Banca Nazionale del Lavoro SPA,
New York Branch
25 West 51 Street
New York, NY 10019
Tel.: 212-314-0679
Fax: 212-765-2978
Attn: Anna Hernandez
Telecopier No.: 212-765-2978
Telephone No.: 212-314-0679
Lending Office for all Loans:
-----------------------------
Banca Nazionale del Lavoro SPA,
New York Branch
25 West 51 Street
New York, NY 10019
Tel.: 212-314-0263
E-Mail: [email protected]
Fax: 212-765-2978
Attn: Frederic W. Hall
Telecopier No.: 212-765-2978
Telephone No.: 212-314-0263
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 4,200,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $ 9,800,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $ 6,000,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $14,000,000.00
<PAGE>
LENDER
------
CREDIT SUISSE FIRST BOSTON
By: /s/ William S. Lutkins
---------------------------------
Title: Vice President
By: /s/ William O'Daly
---------------------------------
Title: Vice President
Address for Notices:
--------------------
11 Madison Avenue
New York, NY 10010
Attn: William S. Lutkins
Telecopier No.: (212) 325-8319
Telephone No.: (212) 325-9705
Lending Office for all Loans:
-----------------------------
Same as above
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 4,200,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $ 9,800,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $ 6,000,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $14,000,000.00
<PAGE>
LENDER
------
KBC BANK N.V.
By: /s/ Robert Snauffer
---------------------------------
Title: First Vice President
By: /s/ Robert M. Surdam, Jr.
---------------------------------
Title: Vice President
Address for Notices:
--------------------
KBC Bank N.V.
125 West 55th Street, 10th Floor
New York, NY 10019
Attn: Robert Surdam
Telecopier No.: (212) 541-0793
Telephone No.: (212) 541-0704
Lending Office for all Loans:
-----------------------------
KBC Bank N.V.
125 West 55th Street, 10th Floor
New York, NY 10019
Attn: Robert Surdam
Telecopier No.: (212) 541-0793
Telephone No.: (212) 541-0704
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 4,200,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $ 9,800,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $ 6,000,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $14,000,000.00
<PAGE>
LENDER
------
BANK LEUMI U.S.A.
By: /s/ Bank Leumi U.S.A.
---------------------------------
Title: FVP
By: /s/ Bank Leumi U.S.A.
---------------------------------
Title: SVP
Address for Notices:
--------------------
Bank Leumi U.S.A.
562 Fifth Avenue
10th Floor
New York, NY 10036
Attn: Paul Tine
Telecopier No.: (212) 626-1811
Telephone No.: (212) 626-1386
Lending Office for all Loans:
-----------------------------
Bank Leumi U.S.A.
562 Fifth Avenue
10th Floor
New York, NY 10036
Attn: Paul Tine
Telecopier No.: (212) 626-1811
Telephone No.: (212) 626-1386
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $ 3,150,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $ 7,350,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $ 4,500,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $10,500,000.00
<PAGE>
LENDER
------
BANK HAPOALIM B.M.
By: /s/ Bank Hapoalim B.M.
---------------------------------
Title: First Vice President
By: /s/ Gabriel Lubiner
---------------------------------
Title: Assistant Vice President
Address for Notices:
--------------------
Bank Hapoalim
1177 Avenue of the Americas
12th Floor
New York, NY 10036
Attn: Gabriel Lubiner
Telecopier No.: (212) 782-2187
Telephone No.: (212) 782-2197
Lending Office for all Loans:
-----------------------------
Bank Hapoalim
1177 Avenue of the Americas
12th Floor
New York, NY 10036
Attn: Donna Gindoff
Telecopier No.: (212) 782-2187
Telephone No.: (212) 782-2197
INITIAL 364-DAY REVOLVING CREDIT AVAILABILITY: $2,100,000.00
INITIAL THREE-YEAR REVOLVING CREDIT AVAILABILITY: $4,900,000.00
POST-SECOND ACQUISITION 364-DAY REVOLVING CREDIT COMMITMENT: $3,000,000.00
POST-SECOND ACQUISITION THREE-YEAR REVOLVING CREDIT COMMITMENT: $7,000,000.00
<PAGE>
SCHEDULE 8.3
LITIGATION
None.
<PAGE>
SCHEDULE 8.12A
INDEBTEDNESS EVIDENCE BY CREDIT AGREEMENTS,
INDENTURES, GUARANTEES, LETTERS OF CREDIT, ETC.
<TABLE>
<S> <C>
$18,000,000 Revolving credit facility borrowing under Prior Credit Agreement
(to be paid on the Closing Date)
$26,350,000 Guaranty of Genzyme Transgenics Corporation credit facilities with
and letters of credit issued by Fleet National Bank
$ 6,040,000 Guaranty issued to Barclays Bank, PLC to secure duty
deferment account
$ 48,000,000 Genzyme Corporation Guarantee of GelTex Pharmaceuticals, Inc. credit facilities with
Fleet National Bank and synthetic lease transaction with First Security Bank, N.A., as
Owner Trustee, Fleet Real Estate, Inc. and Fleet National Bank
$25,000,000 Synthetic lease transaction between GelTex Pharmaceuticals, Inc. and First Security
Bank, N.A., as Owner Trustee
$ 3,000,000 GelTex Pharmaceuticals, Inc. revolving credit facility with Fleet National Bank
$ 1,987,000 GelTex Pharmaceuticals, Inc. term loan financing leasehold improvements with Fleet
National Bank
$ 1,929,000 GelTex Pharmaceuticals, Inc. term loan financing leasehold improvements with Fleet
National Bank
------------------
$130,306,000 TOTAL
</TABLE>
<PAGE>
SCHEDULE 8.12B
LIENS SECURING INDEBTEDNESS
Equipment and leasehold improvements of GelTex Pharmaceuticals, Inc. securing
credit facilities with Fleet National Bank, together with securities and
investments of GelTex Pharmaceuticals, Inc. securing credit facilities with
Fleet National Bank.
<PAGE>
SCHEDULE 8.14
SUBSIDIARIES
SEE CHART ATTACHED HERETO.
Assets by Subsidiary (Greater than 3%)
As of December 31, 1999
<TABLE>
<CAPTION>
Subsidiary Book Value (Millions) % Of Total
--------------------------------------------------------------------------------------------------
<S> <C> <C>
Genzyme Securities Corporation $ 514.6 28.8%
Deknatel Snowden Pencer, Inc. and
Genzyme Surgical Products Corporation $ 361.0 20.2%
Allston Landing Limited Partnership- $ 79.5 4.4%
Genzyme Limited (UK) $ 64.6 3.6%
Subtotal $1,019.7 57.1%
Genzyme Corporation (Total) $1,787.3 100.0%
</TABLE>
<PAGE>
EXHIBIT A
[Form of Three-Year Facility Revolving Credit Note]
PROMISSORY NOTE
(Three-Year Facility)
$______________ December 14, 2000
Boston, Massachusetts
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, 100
Federal Street, Boston, Massachusetts 02110, the principal sum of
________________ Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Three-Year Facility 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 Three-Year Facility Revolving Credit
Loan, at such office, in like money and funds, for the period commencing on the
date of such Three-Year Facility Revolving Credit Loan until such Three-Year
Facility 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 Three-Year Facility 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 Three-Year Facility Revolving Credit Loans made by
the Lender.
This Note is one of the Three-Year Facility Revolving Credit Notes
referred to in the Amended and Restated Credit Agreement dated as of December
14, 2000 (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 First Union National Bank,
as Documentation Agent, and evidences Three-Year Facility 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
<PAGE>
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
<PAGE>
SCHEDULE OF THREE-YEAR FACILITY REVOLVING CREDIT LOANS
This Note evidences Three-Year Facility 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:
<TABLE>
<CAPTION>
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
Amount
Date Paid,
Made, Prepaid,
Continued or Principal Duration of Continued Unpaid
Converted Amount of Type of Loan Interest Rate Interest or Principal Notation
Loan Period Converted Amount Made By
<S> <C> <C> <C> <C> <C> <C> <C>
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
</TABLE>
A-3
<PAGE>
EXHIBIT B
[Form of 364-Day Facility Revolving Credit Note]
PROMISSORY NOTE
(364-Day Facility)
$______________ December 14, 2000
Boston, Massachusetts
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, 100
Federal Street, Boston, Massachusetts 02110, the principal sum of
________________ Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the 364-Day Facility 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 364-Day Facility Revolving Credit Loan,
at such office, in like money and funds, for the period commencing on the date
of such 364-Day Facility Revolving Credit Loan until such 364-Day Facility
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 364-Day Facility 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 364-Day Facility Revolving Credit Loans made by the
Lender.
This Note is one of the 364-Day Facility Revolving Credit Notes
referred to in the Amended and Restated Credit Agreement dated as of December
14, 2000 (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 First Union National Bank,
as Documentation Agent, and evidences 364-Day Facility 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.
B-1
<PAGE>
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:
B-2
<PAGE>
SCHEDULE OF 364-DAY FACILITY REVOLVING CREDIT LOANS
This Note evidences 364-Day Facility 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:
<TABLE>
<CAPTION>
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
Amount
Date Paid,
Made, Prepaid,
Continued or Principal Duration of Continued Unpaid
Converted Amount of Type of Loan Interest Rate Interest or Principal Notation
Loan Period Converted Amount Made By
<S> <C> <C> <C> <C> <C> <C> <C>
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
</TABLE>
B-3
<PAGE>
C-4
EXHIBIT C
LEGAL OPINION
[For Letterhead of Palmer & Dodge, LLP]
TELEPHONE: (617) 573-0100 FACSIMILE: (617) 227-4420
December 14, 2000
Fleet National Bank, as Administrative Agent
for the Lenders (as defined below)
One Federal Street
Boston, Massachusetts 02110
ABN AMRO Bank N.V., as
Syndication Agent for the Lenders
One Post Office Square, 39th Floor
Boston, MA 02109
First Union National Bank, as Documentation
Agent for the Lenders
[Address]
and
The Lenders that are parties to the
Credit Agreement (as defined below)
Ladies and Gentlemen:
We have acted as counsel to Genzyme Corporation, a Massachusetts
corporation (the "COMPANY"), the Company's subsidiaries who are parties to the
Credit Agreement described herein (the "SUBSIDIARY GUARANTORS") 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 Amended and Restated
Credit Agreement (the "CREDIT AGREEMENT") between the Company, the Subsidiary
Guarantors, 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 First Union National Bank as
Documentation Agent (the "DOCUMENTATION AGENT," 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
$500,000,000 and (iii) the Pledge Agreement between the Company and the
C-1
<PAGE>
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 Guarantors 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 Guarantors 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.
Based on and subject to the foregoing, we are of the opinion as
follows:
1. Each of the Company and the Subsidiary Guarantors 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.
C-2
<PAGE>
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 Guarantors
are a party have been duly authorized by all necessary corporate action on the
part of the Company and each of the Subsidiary Guarantors, have been duly
executed and delivered by the Company and each of the Subsidiary Guarantors and
constitute the valid and binding obligations of the Company and each of the
Subsidiary Guarantors, enforceable against the Company and each of the
Subsidiary Guarantors, respectively, in accordance with their terms.
4. The execution, delivery and performance of the Loan Documents will
not violate, constitute a default or breach 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 any of the Subsidiary Guarantors; 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, 1999, 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 any of the Subsidiary Guarantors.
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 Guarantors in connection with the execution and delivery of the Loan
Documents by the Company or any of the Subsidiary Guarantors.
6. To our knowledge, there is no action, proceeding or investigation
pending or threatened in writing against the Company or any of the Subsidiary
Guarantors 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, 1999, or to any report filed with 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
C-3
<PAGE>
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 any of the Subsidiary Guarantors 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 any of the Subsidiary Guarantors 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,
Palmer & Dodge LLP
C-4
<PAGE>
EXHIBIT D TO AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate is provided pursuant to Section 9.1(c) of
that certain Amended and Restated Credit Agreement (the "Agreement") dated as of
December 14, 2000, 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 First
Union National Bank ("Documentation Agent"). 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 each 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 sealed instrument at Boston, Massachusetts on this ____ day of
________, ____.
GENZYME CORPORATION
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
D-1
<PAGE>
SCHEDULE A
TO EXHIBIT D
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 FIXED CHARGE COVERAGE RATIO
Consolidated EBITDA -- $___________
Capital Expenditures:
Actual Capital Expenditures -- $____________
LESS Capital Expenditures with respect to designated project
---- for improvements to new leased headquarters (the
aggregate of such exclusions for this quarter and
PRIOR QUARTERS DOES NOT EXCEED $12,000,000) --$___________
Capital Expenditures for purposes of Section 9.9(b) -- $____________
Taxes -- $___________
Dividend Payments -- $___________
Synthetic Lease Obligations -- $___________
Interest Expense -- $___________
Synthetic Lease Obligations -- $___________
D-2
<PAGE>
Actual Ratio -- ___________
Minimum Ratio -- 3.00 to 1.00
SECTION 9.9(c) CONSOLIDATED LEVERAGE RATIO
Consolidated Funded Debt -- $_________
Unrestricted Cash and Marketable Investments in excess of $125,000,000 -- $_____
Consolidated EBITDA -- $___________
Actual Ratio -- ___________
Maximum Ratio -- 2.00 to 1.00
LEVEL CALCULATION
CONSOLIDATED DEBT COVERAGE RATIO
cash -- $__________
Cash Equivalents -- $__________
Marketable Investments -- $__________
Consolidated Funded Debt -- $__________
Ratio -- __________
SENIOR UNSECURED DEBT RATING -- _________(written confirmation is attached)
Level Period (I, II, III or IV) for Applicable Margin and Applicable Commitment
Fee determination: __________________
D-3
<PAGE>
EXHIBIT E
[Form of Joinder Agreement]
This Joinder Agreement is delivered pursuant to Section 9.13 of the
Amended and Restated Credit Agreement dated as of December 14, 2000 (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 First Union
National Bank, as Documentation Agent.
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]
E-1
<PAGE>
EXHIBIT F
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
Genzyme Corporation
One Mountain Road
Framingham, Massachusetts 01701
Attention: Mr. Evan M. Lebson, Treasurer
Fleet National Bank,
as Administrative Agent
One Federal Street
Boston, Massachusetts 02110
Attention: High Tech Group
Re: Amended and Restated Credit Agreement dated as of December 14,
2000 (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 First Union National Bank, as Documentation Agent
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, of which $____________ consists of the Assignor's
outstanding 364-Day Revolving Credit Commitment and $___________ consists of the
Assignor's outstanding Three-Year Revolving Credit Commitment (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:
Address for Notices:
------------------------
------------------------
F-1
<PAGE>
------------------------
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
ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
GENZYME CORPORATION
F-2
<PAGE>
By:
-----------------------------------------
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By:
-----------------------------------------
Title:
F-4
<PAGE>
EXHIBIT G
PLEDGE AGREEMENT
PLEDGE AGREEMENT (this "AGREEMENT"), dated as of December 14, 2000, 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, First Union
National Bank, as Documentation Agent, and certain lenders (the "Lenders") are
parties to an Amended and Restated 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 $500,000,000 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 additional capital stock, and all dividends,
distributions, cash, instruments, investment
G-1
<PAGE>
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 and authority 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 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.
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<PAGE>
(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 will execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Administrative Agent may
request, 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.
(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.
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<PAGE>
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, 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
G-4
<PAGE>
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 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.
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<PAGE>
(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 its 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;
(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.
G-6
<PAGE>
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.
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
G-7
<PAGE>
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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<PAGE>
Accepted:
FLEET NATIONAL BANK, as
Administrative Agent
By: ________
Name:
Title:
G-9
<PAGE>
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 14, 2000
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<PAGE>
EXHIBIT H
NOTICE OF BORROWING
Date: _____________, ___
Fleet National Bank,
as Administrative Agent
One Federal Street
Boston, Massachusetts 02110
Attention: High Tech Group
Re: Amended and Restated Credit Agreement dated as of December 14,
2000 (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 First Union National Bank, as Documentation Agent
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. $_______________ of the borrowing is requested under the
364-Day Facility, and $_______________ of the borrowing is
requested under the Three-Year Facility.
4. The borrowing is to be comprised of $_________ of [Prime Rate]
[LIBOR] Loans.
5. 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
H-1
<PAGE>
is a party, are true and complete in all material respects on and as
of the date of the 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);
(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;
(d) such Loan will not cause the aggregate outstanding amount of
364-Day Revolving Credit Loans to exceed the aggregate amount of the
364-Day Revolving Credit Commitments in effect as of the time that such
Loan is made; and
(e) such Loan will not cause the aggregate outstanding amount of
Three-Year Revolving Credit Loans to exceed the aggregate amount of the
Three-Year Revolving Credit Commitments in effect as of the time that
such Loan is made.
GENZYME CORPORATION
By: _____________________________
Title: __________________________
H-2
<PAGE>
EXHIBIT I
NOTICE OF CONVERSION/CONTINUATION
Date: ______________, ____
Fleet National Bank,
as Administrative Agent
One Federal Street
Boston, Massachusetts 02110
Attention: High Tech Group
Re: Amended and Restated Credit Agreement dated as of December 14,
2000 (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 First Union National Bank, as Documentation Agent
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. $________ of these Loans were made under the 364-Day Facility,
and $_________ of these Loans were made under the Three-Year
Facility.
4. The Loans are to be [converted into] [continued as] [LIBOR]
[Prime Rate] Loans.
5. [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
I-1
<PAGE>
is a party, are true and complete in all material respects on and as of
the date of such [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);
(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;
(d) such [Conversion][Continuation] will not cause the aggregate
outstanding amount of 364-Day Revolving Credit Loans to exceed the
aggregate amount of the 364-Day Revolving Credit Commitments in effect
as of the time that such [Conversion][Continuation] is effected; and
(e) such [Conversion][Continuation] will not cause the aggregate
outstanding amount of Three-Year Revolving Credit Loans to exceed the
aggregate amount of the Three-Year Revolving Credit Commitments in
effect as of the time that such [Conversion][Continuation] is effected.
GENZYME CORPORATION
By: __________________________________
Title: _______________________________
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<PAGE>
EXHIBIT J
NOTICE OF PREPAYMENT
Date: _______________, ___
Fleet National Bank,
as Administrative Agent
One Federal Street
Boston, Massachusetts 02110
Attention: High Tech Group
Re: Amended and Restated Credit Agreement dated as of December 14,
2000 (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 First Union National Bank, as Documentation Agent
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. $__________ of the Loans to be prepaid hereunder were made under
the 364-Day Facility, and $__________ of the Loans to be prepaid
hereunder were made under the Three-Year Facility;
4. The Loans to be prepaid consist of [LIBOR] [Prime Rate] Loans.
5. [If applicable:] The duration of the Interest Period for the
LIBOR Loans to be prepaid was ____ months, beginning on ________
___, ___.
GENZYME CORPORATION
By: __________________________________
Title: _______________________________
J-1
<PAGE>
EXHIBIT K
TERMINATION OF CREDIT AGREEMENT
Date: _________________, ___
Fleet National Bank,
as Administrative Agent
One Federal Street
Boston, Massachusetts 02110
Attention: High Tech Group
Re: Credit Agreement dated as of November 12, 1999 (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 Mellon Bank, N.A., as
Documentation Agent
Ladies and Gentlemen:
The undersigned refer to the Credit Agreement, the terms defined
therein being used herein as therein defined, and hereby gives you notice
irrevocably, that the Credit Agreement is hereby terminated.
GENZYME CORPORATION
as the Company
By: __________________________________
Title: _______________________________
DEKNATEL SNOWDEN PENCER, INC.
as a Subsidiary Guarantor
By: __________________________________
Title: _______________________________
GENZYME SURGICAL PRODUCTS
CORPORATION
as a Subsidiary Guarantor
By: __________________________________
Title: _______________________________
K-1
<PAGE>
ALLSTON LANDING LIMITED
PARTNERSHIP
as a Subsidiary Guarantor
By: Allston Landing Corporation
its General Partner
By: __________________________________
Title: _______________________________
ABN AMRO BANK N.V.
as the Syndication Agent and as a Lender
By: __________________________________
Title: _______________________________
MELLON BANK, N.A.
as the Documentation Agent and as a Lender
By: __________________________________
Title: _______________________________
FIRST UNION NATIONAL BANK
as a Lender
By: __________________________________
Title: _______________________________
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
as a Lender
By: __________________________________
Title: _______________________________
THE CHASE MANHATTAN BANK
as a Lender
By: __________________________________
Title: _______________________________
CITIZENS BANK OF MASSACHUSETTS
K-2
<PAGE>
as a Lender
By: __________________________________
Title: _______________________________
AGREED AND ACCEPTED:
FLEET NATIONAL BANK
as the Administrative Agent and as a Lender
By: __________________________________
Title: _______________________________
K-3
