Exhibit 10.3.3
THIRD AMENDMENT TO LEASE AGREEMENT
THIRD AMENDMENT TO LEASE AGREEMENT (the "Third Amendment") dated as of
January 14, 2004 among and between Xxxxx Fargo Bank Northwest, N.A. (formerly
known as First Security Bank, N.A.), not in its individual capacity except as
expressly set forth in the Agency Agreement, but solely as Trustee under the
Owner Trust Agreement dated as of October 21, 1998 (the "Lessor") and Genzyme
Corporation, as successor-by-merger to GelTex Pharmaceuticals, Inc. (the
"Lessee").
Reference is made to the Lease Agreement dated as of October 21, 1998,
among and between the Lessor and GelTex Pharmaceuticals, Inc., pursuant to which
the Lessee leases from the Lessor a certain parcel of land located in Waltham,
Massachusetts, described in Exhibit A to the Lease Agreement, together with all
buildings, structures, improvements, fixtures, other real or personal property
described in the Lease Agreement and all easements, rights and appurtenances
thereto, as amended by that certain First Amendment to the Lease Agreement dated
March 31, 1999 and that certain Second Amendment to the Lease Agreement dated
December 31, 2002 (the "Lease Agreement"). Capitalized terms used in this Third
Amendment have the meanings given such terms in the Lease Agreement, as amended
hereby, except as provided otherwise herein.
The Lessee has requested that Lessor, Fleet Real Estate, Inc. and Fleet
National Bank (together, with Fleet Real Estate, Inc., "Fleet") agree to certain
modifications in the financial covenants of the Lessee, and to certain other
changes in the terms of the Lease Agreement.
1. Amendments
1.1. SECTION 14(a) - FINANCIAL STATEMENTS; OTHER INFORMATION. Section 14
of the Lease Agreement is hereby amended to strike and delete Section 14
therefrom and to replace it with the following:
(a) Reporting Requirements. Lessee shall deliver to Lessor and
Fleet (either by delivering the following directly to the Lessor or Fleet
or by providing access to copies of each of the following through a
web-site, e-mail, or other service in a manner acceptable to Fleet):
(i) 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 Lessee or the deadline for the Lessee'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 Lessee 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 Lessee 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 Lessee, 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
Lessee 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);
(ii) as soon as available and in any event within the later
of 90 days after the end of each fiscal year of the Lessee or the
deadline for the Lessee'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 Lessee and its
Subsidiaries for such fiscal year and the related Consolidated
balance sheets of the Lessee 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 Lessee and its Subsidiaries as at the end of, and
for, such fiscal year in accordance with GAAP, consistently applied;
(iii) simultaneously with the delivery of the financial
statements required under Section 14(a)(i) and (ii) above, (i) a copy
of the Lessee'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 A to the Third Amendment;
(iv) promptly upon their becoming available, copies of all
(i) regular, periodic and special reports that the Lessee 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
Lessee, (iii) business plans and financial statement forecasts, when
and to the extent prepared and distributed to other creditors of the
Lessee; and (iv) press releases and other statements generally made
available by the Lessee to the public concerning material
developments in the business of the Lessee;
(v) from time to time such other information regarding the
Property, operations, business, financial condition or prospects of
the Lessee or any of its Subsidiaries as Lessor or Fleet may
reasonably request.
(b) RECORDS; ACCESS. Lessee will keep adequate records and books of
account reflecting all its financial transactions with respect to the Lease
and the transactions contemplated hereby. In addition, Lessee agrees upon
prior written request to meet with
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Lessor or Fleet, during normal business hours at mutually convenient times,
from time to time, to discuss this transaction and Lessee's business and
financial condition generally.
1.2. SECTION 15A(a) - LIQUIDITY RATIO/CONSOLIDATED QUICK RATIO. Section
15A(a) of the Lease Agreement is hereby amended to strike and delete Section
15A(a) therefrom and to replace it with the following:
(a) CONSOLIDATED QUICK RATIO. The Lessee will not permit the
Consolidated Quick Ratio on the last day of any fiscal quarter of the
Lessee to be less than 1.50 to 1.00 (commencing with the fiscal quarter of
the Lessee ending in December, 2003).
1.3. SECTION 15A(b) - TANGIBLE CAPITAL BASE/CONSOLIDATED INTEREST
COVERAGE RATIO. Section 15A(b) of the Lease Agreement is hereby amended to
strike and delete Section 15A(b) therefrom and to replace it with the following:
(b) CONSOLIDATED INTEREST COVERAGE RATIO. The Lessee will not
permit the Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters of the Lessee (commencing with the period of
four consecutive fiscal quarters of the Lessee ending in December, 2003) to
be less than 5.00 to 1.00.
1.4. SECTION 15A(c) - DEBT SERVICE COVERAGE/CONSOLIDATED LEVERAGE RATIO.
Section 15A(c) of the Lease Agreement is hereby amended to strike and delete
Section 15A(c) therefrom and to replace it with the following:
(c) CONSOLIDATED LEVERAGE RATIO. The Lessee will not permit, as of
the last day of any fiscal quarter (commencing with the fiscal quarter of
the Lessee ending in December, 2003), the ratio of (a) Consolidated Funded
Debt less all Unrestricted Cash and Marketable Investments of the Lessee
and its Consolidated Subsidiaries in excess of $200,000,000; to (b) EBITDA
of the Lessee for the period of four consecutive fiscal quarters then ended
to exceed 2.00 to 1.00.
1.5. SECTION 15A(d). Section 15A(d) of the Lease Agreement is hereby
amended to strike and delete Section 15A(d) therefrom and to replace it with the
following:
(d) FINANCIAL DEFINITIONS. Notwithstanding any other section of the
Lease Agreement, including, but not limited to, Section 31, as used in
Section 14, Sections 15A(a) through 15A(c), Section 15B, and Section
22(a)(x) the following terms have the meaning set forth below:
"ACCOUNTS RECEIVABLE" shall mean, on any date, the net amount
of accounts receivable of Lessee 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.
"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
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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 Lessee and
its Subsidiaries shall not be Affiliates of each other and (b)
neither Lessor nor Fleet shall be an Affiliate of the Lessee or any
of its Subsidiaries.
"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 Lessee or any of
its Subsidiaries to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements, but
excluding repairs) during such period computed in accordance with
GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease
of (or other agreement conveying the right to use) property to the
extent such obligations are required to be classified and accounted
for as a capital lease on a balance sheet of such Person under GAAP.
"CASH EQUIVALENTS" shall mean any interest bearing investment
of Lessee and its Wholly Owned Subsidiaries that 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).
"COMPLIANCE CERTIFICATE" shall mean the compliance certificate
provided for under Section 14(a)(iii) in substantially the form of
EXHIBIT A to the Third Amendment.
"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 Lessee that are not
Subsidiaries) as applied to the accounts of Lessee (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
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combined) in accordance with GAAP and with appropriate deductions for
minority interests in Subsidiaries, if required by GAAP.
"CONSOLIDATED FUNDED DEBT" shall mean, at any time, the
outstanding balance of all Indebtedness in respect of borrowed money,
Capital Lease Obligations, Synthetic Lease Obligations, letters of
credit and trade acceptances for the Lessee and its Consolidated
Subsidiaries.
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any
period, the ratio of (a) EBITDA for such period to (b) all Interest
Expense for such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, net
income (or loss) for the Lessee and its Consolidated Subsidiaries
(determined in accordance with GAAP), PROVIDED, HOWEVER, that
Consolidated Net Income shall not include amounts included in
computing net income (or loss) in respect of extraordinary and
non-recurring gains or losses.
"CONSOLIDATED QUICK RATIO" shall mean, at any date, the ratio,
for the Lessee 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.
"CURRENT LIABILITIES" shall mean any liability that in
accordance with GAAP would be classified as such.
"EBITDA" shall mean Consolidated Net Income plus Interest
Expense, plus Taxes, plus depreciation, plus amortization, plus non
cash non-recurring charges for acquired research and development (to
the extent deducted in calculating Consolidated Net Income), plus
non-cash non-recurring charges for asset impairments (to the extent
deducted in calculating Consolidated Net Income), each as calculated
in accordance with GAAP.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those that are to be used in
making the calculations for purposes of determining compliance with
the Lease Agreement.
"GUARANTEE" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment
or maintenance of, or otherwise to be or become contingently liable
under or with respect to, the Indebtedness, other obligations, net
worth, working capital or earnings of any Person, or a guarantee of
the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or
lease (as lessee or lessor) Property, products, materials, supplies
or services primarily for the purpose of enabling a debtor to make
payment of such debtor's obligations or an agreement to assure a
creditor against loss, and including, without
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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.
"INDEBTEDNESS" shall mean, for the Lessee 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.
"INTEREST EXPENSE" shall mean, for any period, the sum, for the
Lessee 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.
"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); and (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 Lessee on the
date hereof.
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"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.
"MARKETABLE INVESTMENTS" shall mean any interest-bearing debt
obligations owned by Lessee and its Wholly-Owned Subsidiaries
(excluding directors' qualifying shares and items included as Cash
Equivalents) that 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.
"PERMITTED LINE OF BUSINESS" shall mean any and all of the
following lines of business: biotechnology, pharmaceutical, medical
devices, therapeutic products, medical products, and medical services
and diagnostic services businesses.
"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 Securities Exchange Act of 1934.
"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.
"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
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not constitute a lease for Federal income tax purposes), including,
without limitation, obligations under: (i) the Agency Agreement,
dated as of October 21, 1998 (the "Agency Agreement") between the
Lessee, as successor-by-merger to GelTex Pharmaceuticals, Inc. and
Xxxxx Fargo Bank Northwest, N.A. (formerly known as First Security
Bank, N.A.), not in its individual capacity except as expressly set
forth in the Agency Agreement, but solely as Trustee under the Owner
Trust Agreement dated as of October 21, 1998 (the "Owner Trust
Agreement") between Fleet Real Estate, Inc. and Xxxxx Fargo Bank
Northwest, N.A. (formerly known as 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) the Lease Agreement.
"TAXES" shall mean any present tax (including, without
limitation, any income, documentary, sales, stamp, registration,
property or excise tax), assessment or other charge, levy, impost,
fee, compulsory loan, charge or withholding.
"UNRESTRICTED CASH" shall mean cash and Cash Equivalents of the
Lessee and its Wholly Owned Subsidiaries that are readily available
to Lessee and not subject to any limitation or restriction on their
use by the Lessee.
"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.
1.6 SECTION 15B. Section 15B of the Lease Agreement is hereby amended
to strike and delete Section 15B therefrom and to replace it with the following:
15B. At all times during the Term:
(a) MERGER, CONSOLIDATION, ETC. The Lessee 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 Lessee 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 Lessee 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
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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 15B:
(i) any Subsidiary of the Lessee may be merged or
consolidated with or into, or have its assets liquidated and
distributed to, the Lessee or any other Subsidiary of the Lessee;
PROVIDED that (x) if any such merger or consolidation shall be with
the Lessee, the Lessee shall be the Person surviving such merger or
consolidation and (y) if any such merger or consolidation shall be
between any Subsidiary of the Lessee and a Wholly Owned Subsidiary of
the Lessee, such Wholly Owned Subsidiary shall be the Person
surviving such merger or consolidation;
(ii) the Lessee and its Subsidiaries may acquire any assets
used or useful in the Permitted Line of Business or the stock or
other equity interests or rights as a holder of indebtedness of any
Person that is engaged in a Permitted Line of Business or merge any
Person that is in a Permitted Line of Business with the Lessee or a
Subsidiary or the Lessee or a Subsidiary with any such Person
(provided that the conditions in the provisos in Section 15B(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 Lessee shall be in compliance with the covenants in
Sections 15A(a), (b) and (c) as of the end of the most recent fiscal
quarter or annual period of the Lessee and the transaction will not
be reasonably likely to result in the noncompliance with such
financial covenants;
(iii) the Lessee 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 15B(e) hereof and
make Capital Expenditures in the ordinary course of its business;
(iv) the Lessee or any Subsidiary of the Lessee may convey,
sell, lease, loan, transfer or otherwise dispose of any or all of its
Property to the Lessee or any other Subsidiary of the Lessee (and the
Lessee or such other Subsidiary may acquire such Property);
(v) the Lessee or any Subsidiary may convey, sell, lease,
transfer or otherwise dispose of any non-material Property (of the
Lessee and its Subsidiaries, taken as a whole) including equity
interests in any Person and the licensing of patents and product
rights; and
(vi) the Lessee or any Subsidiary may lease or sublease any
of its real Property.
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(e) The Lessee 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
Lessee or its Subsidiaries or that would be permitted under the terms
of this Section 15B.
1.7. SECTION 22(a)(x). Section 22(a)(x) of the Lease Agreement is hereby
amended to strike and delete Section 22(a)(x) therefrom and to replace it with
the following:
(x) if the Lessee 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
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Lessor to enter into
and Fleet to consent to this Third Amendment, the Lessee makes the following
representations and warranties, all of which shall survive the execution and
delivery of this Third Amendment:
(a) The Lessee has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Third Amendment and
under the Lease Agreement, as amended hereby. This Third Amendment has been
duly authorized, executed and delivered by the Lessee, and does not
conflict with, violate or result in a breach of or require any consent
under (i) any applicable law or regulation or any of the terms of the
charter or by-laws of the Lessee, or (ii) any agreement or instrument to
which the Lessee or any Subsidiary is a party or to which any of them or
their Property is bound or to which any of them is subject; except to the
extent, with respect to the foregoing clause (ii), any such conflict,
violation, or breach, or the failure to have any such consent, (x) could
not reasonably be expected (either individually or in the aggregate) to
have a material adverse effect and (y) does not and will not result in any
liability of the Lessor. This Third Amendment and the Lease Agreement, as
amended hereby, constitute the legal, valid and binding obligation of the
Lessee enforceable against the Lessee in accordance with its terms.
(b) On the date hereof each of the representations and warranties
in the Lease Agreement are true, accurate and complete in all material
respects (other than those representations and warranties made as of a
specific date, which were true, accurate and complete in all material
respects as of such specific date).
(c) Upon the execution and delivery of this Third Amendment, and
the satisfaction of each of the conditions precedent set forth in Section 3
of this Third Amendment, no Default or Event of Default shall exist and be
continuing.
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3. CONDITIONS PRECEDENT. The agreements contained herein and the amendments
contemplated hereby shall become effective when the Lessee and Lessor shall have
executed this Third Amendment and when each of the following conditions shall
have been fulfilled (the "Effective Date"):
(a) EXECUTION OF DOCUMENTS, ETC. This Third Amendment and any other
agreements, documents and instruments to be executed and/or delivered in
connection herewith (collectively the "Third Amendment Documents") shall
have been duly and properly authorized and executed by: the Lessee, Lessor
and Fleet and shall be in full force and effect on and as of the Effective
Date of this Third Amendment and all representations and warranties of the
Lessee hereunder shall continue to be true, accurate and complete.
(b) PROCEEDINGS: RECEIPT OF DOCUMENTS. All requisite corporate
action and proceedings of the Lessee in connection with the execution and
delivery of this Third Amendment shall be satisfactory in form and
substance to the Lessor and Fleet and their respective counsel, and Lessor
and Fleet and their respective counsel shall have received all information
and copies of all documents, including without limitation, records of
requisite corporate action and proceedings that the Lessor or Fleet or
their respective counsel may have requested in connection therewith, such
documents where requested by the Lessor or Fleet or their respective
counsel to be certified by appropriate persons or governmental authorities.
(c) MATERIAL LITIGATION. There shall be no pending or, to the best
knowledge of the Lessee, threatened litigation with respect to the Lessee
before any court, arbitrator or governmental or administrative body or
agency that challenges or relates to (i) the lending transactions
contemplated hereby or (ii) the Operative Documents.
4. REAFFIRMATION AND RATIFICATION OF EXISTING AGREEMENTS, ETC. The Lessee is
the successor-by-merger to GelTex Pharmaceuticals, Inc. pursuant to a Merger
Agreement between GelTex Pharmaceuticals, Inc. and the Lessee effective as of
April 1, 2003 and as a result thereof: (i) reaffirms and ratifies all the
obligations to the Lessor and Fleet, in respect of the Lease Agreement, as
hereby amended and the other Operative Documents; (ii) certifies that there are
no defenses, offsets or counterclaims to such obligations as of the date hereof;
(iii) expressly acknowledges its continuing liability pursuant thereto; (iv)
agrees that each of the Lease Agreement, as hereby amended and the other
Operative Documents shall remain in full force and effect, enforceable against
the Lessee in accordance with its terms; and (v) Lessee, Lessor and Fleet
acknowledge and confirm that that certain Guaranty executed by Lessee on
December 14, 2000, as amended by that certain First Amendment to Guaranty dated
as of June 30, 2001, is no longer in effect.
5. MISCELLANEOUS.
(a) This Third Amendment may be executed on separate counterparts
by the parties hereto, each of which when so executed and delivered shall
be an original, but all of which shall constitute one and the same
agreement.
11
(b) This Third Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and be governed by
the laws of the Commonwealth of Massachusetts (without giving effect to the
conflict of law principles thereof).
(c) The headings of the several sections of this Third Amendment
are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Third Amendment.
(d) This Third Amendment embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
supersedes all prior proposals, negotiation, agreements and understandings
relating to such subject matter.
(e) This Third Amendment shall be deemed to be an Operative
Document under the Lease Agreement.
(f) EACH OF THE LESSEE AND LESSOR 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 THIRD
AMENDMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) The Lessee shall pay on demand the reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and
expenses incurred, or which may be incurred by the Lessor or Fleet in
connection with the negotiation, documentation, administration and
enforcement of this Third Amendment.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, this Third Amendment has been duly executed and
delivered as a sealed instrument at Boston, Massachusetts as of the date first
above written.
LESSOR:
XXXXX FARGO BANK NORTHWEST, N.A.
(formerly known as FIRST SECURITY BANK,
N.A.), not in its individual capacity
except as expressly set forth herein,
but solely as Trustee under the Owner
Trust Agreement dated as of October 21,
1998
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
LESSEE:
GENZYME CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
13
AGREED AND ACCEPTED:
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: XXXXX X. XXXXXXX
Title: VICE PRESIDENT
FLEET REAL ESTATE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: XXXXXXX X. XXXXXXXXXX
Title: PRESIDENT
14
EXHIBIT A TO THIRD AMENDMENT TO
LEASE AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate is provided pursuant to 15A(d) of that certain
Lease Agreement (the "Agreement") dated as of October 21, 1998, between Xxxxx
Fargo Bank Northwest, N.A. (formerly known as 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 dated as of October 21,
1998 and Genzyme Corporation, as successor-by-merger to GelTex Pharmaceuticals,
Inc. (the "Lessee"), as amended. 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 Lessee in the
Agreement and by the Lessee 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 Lessee is in
compliance with the financial covenants set forth in Sections 15A(a) through (c)
of the Agreement.
3. No Default or Event of Default under the Agreement or the Agency
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:
------------------------
A-1
SCHEDULE A
TO EXHIBIT A
SECTION 15A(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 15A(b) CONSOLIDATED INTEREST COVERAGE RATIO
EBITDA -- $__________
Interest Expense -- $_________
Actual Ratio -- ________
Minimum Ratio -- 5.00 to 1.00
SECTION 15A(c) CONSOLIDATED LEVERAGE RATIO
Consolidated Funded Debt -- $________
Unrestricted Cash and Marketable Investments in excess of $200,000,000 -- $____
EBITDA -- $________
Actual Ratio -- ________
Maximum Ratio -- 2.00 to 1.00
A-2
