Exhibit 10.2
FOURTH AMENDMENT TO LEASE AGREEMENT
FOURTH AMENDMENT TO LEASE AGREEMENT (the "Fourth Amendment") dated as
of June 30, 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, that certain Second Amendment to the Lease Agreement dated
December 31, 2002 and that certain Third Amendment to the Lease Agreement (the
"Third Lease Amendment") dated January 14, 2004 (the "Lease Agreement").
Capitalized terms used in this Fourth 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 Basic Rent, and to certain other changes in the terms of
the Lease Agreement.
1. Amendments.
1.1. SECTION 15A(d). Section 15A(d) of the Lease Agreement is hereby
amended to delete the word "and" immediately before "Section 22(a)(x)" and to
insert ", and Section 5 of Schedule B" immediately after "Section 22(a)(x)."
1.2. SECTION 15A(e). Section 15A(e) of the Lease Agreement is hereby
stricken and deleted in its entirety. The parties confirm that Section 15A(e) of
the Lease Agreement, containing definitions replaced by those contained in
Section 15A(d), was intended to be deleted in the Third Lease Amendment.
1.3. SECTION 31. CERTAIN DEFINITIONS. The definition of "Advance" in
Section 31 of the Lease Agreement is hereby stricken and deleted in its entirety
and replaced with the following in lieu thereof:
"ADVANCES means the Lessor Advances, as defined in the Agency
Agreement."
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1.4. SECTION 5 OF SCHEDULE B. Section 5 ("Definitions") of Schedule B
("Basic Rent") of the Lease Agreement is hereby stricken and deleted in its
entirety and replaced with the following in lieu thereof:
"5. DEFINITIONS. All capitalized terms used in Schedule B have the
meanings given such terms in Sections 15A(d) and Section 31 of the Lease
Agreement, except as provided otherwise herein.
ADJUSTED LIBOR means for any LIBOR Period, an
interest rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by Lessor and Fleet to be equal to
the rate specified in the definition of `LIBOR' in this Section 5
for the LIBOR Period divided by 1 minus the LIBOR Reserve
Percentage (if any) for such LIBOR Period.
APPLICABLE MARGIN means, for any period during which
the Lessee has a Debt Rating as set forth below, the percentage
set forth below opposite such period under the caption "APPLICABLE
MARGIN":
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DEBT RATING (BY STANDARD & POOR'S AND
XXXXX'X INVESTORS SERVICE, RESPECTIVELY) APPLICABLE MARGIN
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Level I: if equal to or greater than either A- or A3 0.375%
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Level II: if less than both A- and A3, but equal to or 0.475%
greater than either BBB+ or Baa1
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Level III: if less than both BBB+ and Baa1, but equal 0.550%
to or greater than either BBB or Baa2
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Level IV: if less than both BBB and Baa2, but equal to 0.750%
or greater than either BBB- or Baa3
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Level V: if less than both BBB- and Baa3, but equal to 1.000%
or greater than either BB+ or Ba1
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Level VI: if less than both BB+ and Ba1 1.500%
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PROVIDED, HOWEVER, that:
(i) (A) in the event of a split rating by Standard &
Poor's and Xxxxx'x Investors Service with respect to
the same Long Term Senior Debt where such ratings
differ only by one level, the higher rating shall
determine the Applicable Margin;
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(B) in the event of a split rating by the two rating
agencies with respect to the same Long Term Senior
Debt where such ratings differ by more than one
level, the rating level that is one level above the
lower level shall determine the Applicable Margin;
(C) in the event that only one of the two rating
agencies issues a Debt Rating, such rating shall
determine the Applicable Margin;
(D) in the event that different types or series of
Long Term Senior Debt have different Debt Ratings,
the Long Term Senior Debt with the highest Debt
Ratings will be used to determine the Applicable
Margin;
(E) determinations of the Applicable Margin, and any
resulting adjustment of the effective interest rate,
shall be made on the same Business Day as any such
change in the Debt Rating (the "ADJUSTMENT DATE") and
shall remain in effect until the next Adjustment
Date, and all adjustments shall take effect on the
applicable Adjustment Date; and
(F) in the event that Standard & Poor's and Xxxxx'x
Investors Service and any Successor Rating Agency
cease to issue Debt Ratings, Lessor, Fleet and the
Lessee shall commence negotiations in good faith to
agree on a new methodology for determining the
Applicable Margin and until such new methodology has
been agreed to in writing by the Lessee, Lessor and
Fleet, the Applicable Margin shall be at the highest
level set forth above; and PROVIDED, FURTHER, in the
event that there is a Successor Rating Agency or
there is a change in rating terminology by Standard &
Poor's or Xxxxx'x Investor Service, each of the
Lessee, Lessor and Fleet shall agree as to the
amendment of the table set forth above taking into
account the explanation of such new rating
terminology by Standard & Poor's, Xxxxx'x Investors
Service or such Successor Rating Agency, as the case
may be, and its comparability to the Debt Ratings set
forth in the table above; and
(ii) So long as the Credit Agreement is in effect:
(A) at all times that outstanding Credit Facility
Loans exceed 50% of the aggregate amount of the
Credit Facility Commitments AND as to which Levels I,
II or III apply, the Applicable Margin shall equal
the sum of the percentage set forth above opposite
such period, PLUS 0.125%;
(B) at all times that outstanding Credit Facility
Loans exceed 50% of the aggregate amount of the
Credit Facility Commitments
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AND as to which Level IV or Level V applies, the
Applicable Margin shall equal the sum of the
percentage set forth above opposite such period, PLUS
0.250%; and
(C) at all times that outstanding Credit Facility
Loans exceed 50% of the aggregate amount of the
Credit Facility Commitments AND as to which Level VI
applies, the Applicable Margin shall equal the sum of
the percentage set forth above opposite such period,
PLUS 0.500%.
BUSINESS DAY means any day on which commercial banks
are not authorized or required to close in Boston,
Massachusetts
that is also a day on which dealings in Dollar deposits are
carried out in the London interbank market.
CREDIT AGREEMENT means that certain Credit Agreement
dated as of December 10, 2003 among the Lessee, the Subsidiary
Guarantors party thereto, the Lenders party thereto, Fleet
National Bank as Administrative Agent, ABN AMRO Bank N.V. as
Syndication Agent and the Bank of Nova Scotia, Citizens Bank of
Massachusetts and Wachovia Bank, National Association as
co-Documentation Agents, or any restatement, replacement,
restructuring, substitution, amendment or refinancing thereof.
CREDIT FACILITY COMMITMENTS means the Commitments,
as defined in the Credit Agreement.
CREDIT FACILITY LOANS means the Loans, as defined in
the Credit Agreement.
DEBT RATING means at all relevant times of reference
thereto, the rating issued from time to time (whether on a
preliminary basis or otherwise) by Standard & Poor's or Xxxxx'x
Investors Service or such other rating service or services as the
Lessee may designate from time to time with the consent of Fleet
(each a "Successor Rating Agency") with respect to unsecured
Indebtedness of the Lessee not maturing within twelve (12) months,
the repayment obligations of the Lessee thereunder are not
supported or otherwise enhanced by any other Person (including,
without limitation, supported by any letter of credit or other
instrument, agreement or document issue by any other Person) and
not subordinated by its terms in right of payment to other
unsecured Indebtedness of the Lessee (such Indebtedness, the "Long
Term Senior Debt").
DOLLARS means lawful money of the United States.
LIBOR means for any LIBOR Period therefor, the
simple average (rounded upwards, if necessary, to the nearest
1/100 of 1%), as determined by Lessor and Fleet, of the rates per
annum which appear on the Dow Xxxxx Markets page 3750 as of 11:00
a.m. London time on the day that is two Business Days prior to the
first day of such LIBOR Period (provided, that if the rate
described
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above does not appear on the Dow Xxxxx Markets on any applicable
interest determination date, then at the rates per annum quoted to
Lessor and Fleet 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 LIBOR Period for the offering by
leading banks in the London interbank market) of Dollar deposits
having a term comparable to such LIBOR Period to be made by Fleet
for such LIBOR Period.
LIBOR INTEREST SETTING DATE means, with respect to
any LIBOR Period, the date that is two Business Days before the
first day of such LIBOR Period.
LIBOR PERIOD means the period commencing on and
including the funding date of such advance and ending on the last
Business Day of such calendar month, and thereafter the period
commencing on the last day of the immediately preceding LIBOR
Period and having a term co-equal with the term of all prior LIBOR
Periods; PROVIDED, THAT, notwithstanding the foregoing:
(i) each LIBOR 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);
(ii) for purposes of calculating the Equity Return
for any LIBOR Period, such a calculation shall include the
first day, but exclude the last day, of any such LIBOR Period;
(iii) for any LIBOR Period that begins on the last
Business Day of a calendar month (or a day for which there is
no corresponding day in the calendar month at the end of the
LIBOR Period) shall end on the last Business Day of the
calendar month at the end of such LIBOR Period; and
(iv) each LIBOR Period shall be for a one, two,
three, six or nine month period (except for LIBOR Periods
beginning on a funding date).
LIBOR RATE means, with respect to each applicable
LIBOR Period, the Adjusted LIBOR applicable to such LIBOR Period.
LIBOR RESERVE PERCENTAGE means, for any LIBOR
Period, the average maximum rate at which reserves (including,
without limitation, any marginal, supplemental or emergency
reserves) are required to be maintained during such LIBOR 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
LIBOR Reserve Percentage shall include any other reserves required
to be maintained by such member banks by reason of
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any Regulatory Change with respect to (i) any category of
liabilities that includes deposits by reference to which LIBOR is
to be determined or (ii) any category of extensions of credit or
other assets that includes Advances made by Fleet.
LONG TERM SENIOR DEBT shall have the meaning given
such term in the definition of `Debt Rating' herein.
SUCCESSOR RATING AGENCY shall have the meaning given
such term in the definition of `Debt Rating' herein."
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Lessor to enter into
and Fleet to consent to this Fourth Amendment, the Lessee makes the following
representations and warranties, all of which shall survive the execution and
delivery of this Fourth Amendment:
(a) The Lessee has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Fourth
Amendment and under the Lease Agreement, as amended hereby. This Fourth
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 Fourth 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 Fourth Amendment,
and the satisfaction of each of the conditions precedent set forth in
Section 3 of this Fourth Amendment, no Default or Event of Default
shall exist and be continuing.
3. CONDITIONS PRECEDENT. The agreements contained herein and the amendments
contemplated hereby shall become effective when the Lessee and Lessor shall have
executed this Fourth Amendment and when each of the following conditions shall
have been fulfilled (the "Effective Date"):
(a) EXECUTION OF DOCUMENTS, ETC. This Fourth Amendment and any
other agreements, documents and instruments to be executed and/or
delivered in connection herewith (collectively the "Fourth Amendment
Documents") shall have been duly and
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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 Fourth 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 Fourth 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 Fourth 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.
(b) This Fourth 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).
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(c) The headings of the several sections of this Fourth
Amendment are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Fourth
Amendment.
(d) This Fourth 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 Fourth 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 FOURTH 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 Fourth Amendment.
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IN WITNESS WHEREOF, this Fourth 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/ XXX X. XXXXX
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Name: Xxx X. Xxxxx
Title: Vice President
LESSEE:
GENZYME CORPORATION
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President, Treasurer
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AGREED AND ACCEPTED:
FLEET NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
FLEET REAL ESTATE, INC.
By: /s/ X.X. XXXX
-----------------------------------------
Name: X.X. Xxxx
Title: President
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