1
CREDIT AGREEMENT
AMONG
GENZYME CORPORATION,
THE SUBSIDIARY GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO,
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT
AND
THE FIRST NATIONAL BANK OF BOSTON,
AS DOCUMENTATION AGENT
DATED: NOVEMBER 14, 1996
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS .......................... 1
1.1 Certain Defined Terms ........................................... 1
1.2 Accounting Terms and Determinations ............................. 14
1.3 Types of Loans .................................................. 15
SECTION 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS ................... 15
2.1 Revolving Credit Loans .......................................... 15
2.2 Borrowings of Revolving Credit Loans ............................ 15
2.3 Changes of Commitments .......................................... 15
2.4 Commitment Fee .................................................. 16
2.5 Lending Offices ................................................. 16
2.6 Several Obligations; Remedies Independent ....................... 16
2.7 Notes ........................................................... 16
2.8 Optional Prepayments and Conversions or Continuations of Loans .. 17
2.9 Extension to Revolving Credit Commitment Termination Date ....... 17
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST .......................... 18
3.1 Repayment of Loans .............................................. 18
3.2 Interest ........................................................ 18
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC. ............ 19
4.1 Payments ........................................................ 19
4.2 Pro Rata Treatment .............................................. 19
4.3 Computations .................................................... 20
4.4 Minimum Amounts ................................................. 20
4.5 Certain Notices ................................................. 20
4.6 Non-Receipt of Funds by the Administrative Agent ................ 21
4.7 Sharing of Payments, Etc. ....................................... 22
SECTION 5. YIELD PROTECTION, ETC. ...................................... 23
5.1 Additional Costs ................................................ 23
5.2 Limitation on Types of Loans .................................... 25
5.3 Illegality ...................................................... 26
5.4 Treatment of Affected Loans ..................................... 26
5.5 Compensation .................................................... 26
SECTION 6. GUARANTEE ................................................... 27
6.1 Guarantee ....................................................... 27
6.2 Obligations Unconditional ....................................... 28
6.3 Reinstatement ................................................... 28
6.4 Subrogation ..................................................... 29
6.5 Remedies ........................................................ 29
6.6 Continuing Guarantee ............................................ 29
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6.7 Rights of Contribution .......................................... 29
6.8 Limitation on Guarantee Obligations ............................. 30
SECTION 7. CONDITIONS PRECEDENT ........................................ 30
7.1 Initial Loan .................................................... 30
7.2 Initial and Subsequent Extensions of Credit ..................... 32
SECTION 8. REPRESENTATIONS AND WARRANTIES .............................. 32
8.1 Existence ....................................................... 32
8.2 Financial Condition ............................................. 33
8.3 Litigation ...................................................... 33
8.4 No Breach ....................................................... 33
8.5 Action .......................................................... 34
8.6 Approvals ....................................................... 34
8.7 Use of Credit ................................................... 34
8.8 ERISA ........................................................... 34
8.9 Taxes ........................................................... 34
8.10 Investment Company Act ......................................... 35
8.11 Public Utility Holding Company Act ............................. 35
8.12 Borrowing Agreements and Liens ................................. 35
8.13 Compliance with Laws Including Environmental and Safety
Matters ........................................................ 35
8.14 Subsidiaries, Etc. ............................................. 36
8.15 Title to Assets; Etc. .......................................... 36
8.16 Intellectual Property Rights ................................... 36
8.17 True and Complete Disclosure ................................... 36
SECTION 9. COVENANTS OF THE COMPANY .................................... 37
9.1 Financial Statements Etc. ....................................... 37
9.2 Litigation ...................................................... 38
9.3 Existence, Etc. ................................................. 38
9.4 Insurance ....................................................... 39
9.5 Prohibition of Fundamental Changes .............................. 40
9.6 Limitation on Liens ............................................. 41
9.7 Indebtedness .................................................... 42
9.8 Investments ..................................................... 43
9.9 Financial Covenants ............................................. 43
9.10 Lines of Business .............................................. 44
9.11 Use of Proceeds ................................................ 45
9.12 Certain Obligations Respecting Subsidiaries .................... 45
9.13 Additional Subsidiary Guarantors ............................... 46
SECTION 10. EVENTS OF DEFAULT .......................................... 46
SECTION 11. THE AGENTS ................................................. 48
11.1 Appointment, Powers and Immunities ............................. 48
11.2 Reliance by Agents ............................................. 49
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11.3 Defaults ....................................................... 50
11.4 Rights as a Lender ............................................. 50
11.5 Indemnification ................................................ 50
11.6 Non-Reliance on Agents and Other Lenders ....................... 50
11.7 Failure to Act ................................................. 51
11.8 Resignation or Removal of Agents ............................... 51
11.9 Consents under Other Loan Documents ............................ 51
SECTION 12. MISCELLANEOUS .............................................. 52
12.1 Waiver ........................................................ 52
12.2 Notices ....................................................... 52
12.3 Expenses, Etc. ................................................ 52
12.4 Indemnification ............................................... 53
12.5 Amendments, Etc. .............................................. 53
12.6 Successors and Assigns ........................................ 54
12.7 Assignments and Participations ................................ 54
12.8 Survival ...................................................... 56
12.9 Captions ...................................................... 56
12.10 Counterparts .................................................. 56
12.11 Governing Law; Submission to Jurisdiction ..................... 56
12.12 Waiver of Jury Trial .......................................... 56
12.13 Confidentiality ............................................... 57
Schedules:
Schedule 7.1 Indebtedness to be paid at closing
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 Revolving Credit Note
Exhibit B Form of Legal Opinion
Exhibit C Form of Compliance Certificate
Exhibit D Form of Joinder Agreement
Exhibit E Form of Notice of Assignment
Exhibit F Form of Pledge Agreement
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CREDIT AGREEMENT
CREDIT AGREEMENT ("Agreement" or "Credit Agreement") dated as of November
14, 1996 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");
FLEET NATIONAL BANK ("FLEET") as administrative agent for the Lenders (in
such capacity, together with the successors in such capacity, the
"ADMINISTRATIVE AGENT");
THE FIRST NATIONAL BANK OF BOSTON ("BANKBOSTON") 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,
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 $225,000,000; 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:
Section 1. Definitions and Accounting Matters
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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
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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, the Company and, if such
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, the percentage set forth below opposite such period under the caption
"APPLICABLE COMMITMENT FEE RATE", and "APPLICABLE MARGIN" shall mean, for any
period set forth below for either Type of Loan set forth below, the percentage
set forth below opposite such period under the caption "APPLICABLE MARGIN" and
under the caption for such Type of Loan:
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Applicable Margin
============================================================================
Applicable
Period Commitment Fee Rate Prime Rate Loans LIBOR Loans
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Level I Period 0.150% 0.000% 0.375%
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Level II Period 0.200% 0.000% 0.500%
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Level III Period 0.250% 0.000% 0.625%
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Level IV Period 0.375% 0.000% 0.875%
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"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each Type
of Loan, the "Lending Office" of such Lender (or of an affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or of an affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and the Company as the
office by which its Loans of such Type are to be made and maintained.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"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.
"BUSINESS DAY" shall mean (a) any day on which commercial banks are not
authorized or required to close in Boston, Massachusetts and (b) if such day
relates to the giving of notices or quotes in connection with a borrowing of, a
payment or prepayment of principal of or interest on, a Conversion of or into,
or an Interest Period for, a LIBOR Loan or a notice by the Company with respect
to any such borrowing, payment, prepayment, Conversion or Interest Period, then
any day referred to in clause (a) that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Company or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
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"CASH EQUIVALENTS" shall mean any interest bearing investment of Company
and its Wholly Owned Subsidiaries which meets the definition of a "cash
equivalent" under GAAP (i.e., purchased with a remaining maturity of 90 days or
less). Such investments shall be at least investment grade (A1/P1 for commercial
paper, BBB or better for bonds and similar investments).
"CLOSING DATE" the date upon which the initial Loans hereunder are made.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"COMMITMENTS" shall mean the Revolving Credit Commitments.
"COMPANY" shall have the meaning given in the preamble, and its successors
and permitted assigns hereunder.
"COMPLIANCE CERTIFICATE" shall mean the compliance certificate provided
for under Section 9.1(c)(ii) in substantially the form of Exhibit C.
"CONSOLIDATED" shall mean, when used with reference to any term, that term
(or the term "combined" in the case of partnerships, joint ventures and
Affiliates 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 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 to (b) all Interest expense for
such period.
"CONSOLIDATED FUNDED DEBT" shall mean, at any time, the outstanding
balance of all Indebtedness in respect of borrowed money, Capital 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
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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 and 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. Furthermore, all charges arising from the acquisition of
Neozyme II Corporation and/or Deknatel Xxxxxxx Xxxxxx, Inc. which are included
in the determination of Consolidated Net Income for any period shall be excluded
from the computation of Consolidated Operating Income whether such charges be of
a cash or non-cash nature.
"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) $50,000,000.
"CONSOLIDATED TANGIBLE NET WORTH" shall mean, as at any date, for the
Company and its Consolidated Subsidiaries, the Consolidated Net Worth of the
Company and its Consolidated Subsidiaries less all intangible assets of the
Company and its Consolidated Subsidiaries.
"CONSOLIDATED TOTAL LIABILITIES" shall mean, as at any date, the sum, for
the Company and its Consolidated Subsidiaries, of all Indebtedness and other
liabilities, in each case, that should be classified as liabilities on a balance
sheet, including, without limitation, all reserves and all deferred taxes and
other deferred items.
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the continuation
pursuant to Section 2.8 hereof of a LIBOR Loan from one Interest Period to the
next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.8 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion,
but subject to Section 5.1(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.
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"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.
"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.
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"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 Fleet on such Business Day on such transactions as determined by
the Administrative Agent.
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those that, in accordance with the last sentence of
Section 1.2(a) hereof, are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent agreement
to purchase or to furnish funds for the payment or maintenance of, or otherwise
to be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to such term in
Section 6.1 hereof.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any petroleum or
petroleum products, explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, and transformers or other equipment that contain
polychlorinated biphenyls ("PCB's") in concentrations that are regulated under
the Toxic Substances Control Act, as amended, or any other Environmental Law,
(b) any chemicals or other materials or substances that are now or hereafter
become defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants", "pollutants" or words of similar import under any Environmental
Law and (c) any other chemical or other material or substance, exposure to which
is now or hereafter prohibited, limited or regulated under any Environmental
Law.
"INDEBTEDNESS" shall mean, for the Company and its Consolidated
Subsidiaries: (a) obligations created, issued or incurred by such Person for
borrowed money (whether by loan, the issuance and sale of debt securities or the
sale of Property to another Person subject to an understanding or agreement,
contingent or otherwise, to repurchase such Property from such Person); (b)
obligations of such Person to pay the deferred purchase or acquisition price of
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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; and (f) Guarantees by such Person of
Indebtedness of others.
"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 xxxx 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.
"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) if any Interest Period for any Revolving Credit Loan would
otherwise end after the Revolving Credit Commitment Termination Date, such
Interest Period shall not be available hereunder;
(ii) each Interest Period that would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day (or, if
such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and
(iii) notwithstanding clauses (i) and (ii) above, no Interest Period
for
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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 (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 2.0 to 1.0 or that the
Consolidated Fixed Charge Coverage Ratio for such period was greater than 5.5 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 II PERIOD" shall mean any period, other than a Level I 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 less than to 2.0 to
1.0 and greater than or equal to 1.0 to 1.0 or that the Consolidated Fixed
Charge Coverage Ratio for such period was greater than or equal to 4.5 to 1.0
and less than or equal to 5.5 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 I Period or
Level II 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
less than to 1.0 to 1.0 and that the Consolidated Fixed Charge Coverage Ratio
for such period was greater than or equal to 3.5 to 1.0 and less than 4.5 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.
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"LEVEL IV PERIOD" shall mean any period, other than a Level I Period,
Level II Period or Level III Period.
"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 quoted to 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 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.
"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.
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"MATERIAL SUBSIDIARY" shall mean any Subsidiary of the Company, the value
of the assets of which exceeds five percent (5%) of the consolidated assets of
the Company and its Subsidiaries, taken as a whole, and, for the purposes of
Sections 6 and 9.13 hereof means such a Subsidiary of the Company that is
organized under the laws of the United States, provided that Genzyme Securities
Corporation shall not be deemed to be a Material Subsidiary for purposes of
Sections 6 and 9.13 hereof.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Company or
any ERISA Affiliate and that is covered by Title IV of ERISA.
"NET EQUITY PROCEEDS" shall mean the aggregate amount of all cash payments
and the fair market value of any non-cash consideration received by the Company
and its Subsidiaries directly or indirectly in connection with any Investment in
the Company or any Subsidiary; PROVIDED that Net Equity Proceeds shall be net of
the amount of any legal expenses, commissions other fees and expenses paid by
the Company and its Subsidiaries to any non-Affiliated Person in connection with
such Investment.
"NOTES" shall mean the Revolving Credit Notes.
"OBLIGATIONS" shall mean any and all of the Revolving Credit Loans,
including any principal, interest, charges, fees, costs and expenses (including
interest arising after the filing of any bankruptcy petition and notwithstanding
any law to the contrary) and all other obligations liabilities and indebtedness
of the Company or any Obligor of any kind, nature or description arising under
this Agreement, the Notes or any other Loan Documents.
"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).
"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 IV 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 Fleet 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
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federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as determined on any day by Fleet.
"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 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
"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.
"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.
"REPLACEMENT LENDERS" shall mean any Lender acceptable to the
Administrative Agent that becomes a Lender pursuant to the Company's right to
replace Lenders under Section 2.9.
"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 obligation of such Lender to make Revolving Credit Loans in an
aggregate principal amount at any one time outstanding up to but not exceeding
(a) in the case of any such Lender originally party hereto, the sum of (i) the
amount set opposite the name of such Lender on the signature pages hereto under
the caption "Revolving Credit Commitment" plus (ii) the aggregate amount of
Revolving Credit Commitments acquired by such Lender from other Lenders pursuant
to Section 12.7(b) hereof minus (iii) the aggregate amount of Revolving Credit
Commitments transferred by such Lender to one or more other Lenders pursuant to
Section 12.7(b) hereof and (b) in the case of any such Lender that was not
originally party hereto, (i) the aggregate amount of Revolving Credit
Commitments acquired by such Lender from other Lenders pursuant to Section
12.7(b) hereof minus (ii) the aggregate amount of Revolving Credit Commitments
transferred by such Lender to one or more other Lenders pursuant to Section
12.7(b) hereof, in each case, as such obligation may be reduced from time to
time pursuant to Section 2.3 hereof.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with respect to any
Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall be November 15, 1999,
which date is subject to extension as provided in Section 2.9.
"REVOLVING CREDIT LENDERS" shall mean the Lenders from time to time
holding Revolving Credit Loans and/or Revolving Credit Commitments.
"REVOLVING CREDIT LOANS" shall mean the loans provided for in Section 2.1
hereof, which may be Prime Rate Loans and/or LIBOR Loans.
"REVOLVING CREDIT NOTES" shall mean the promissory notes provided for by
Section 2.7(a) hereof and all promissory notes delivered in substitution or
exchange for any thereof, in each case as the same shall be modified and
supplemented and in effect from time to time.
"SUBORDINATED DEBT" shall mean Indebtedness of Company and its
Subsidiaries that by its terms is fully subordinated to the payment and
enforcement of the Loans in a manner satisfactory to the Required Lenders.
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"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency), or of
which at least a majority of the limited partnership interests or other similar
ownership interests issued by any limited partnership or other similar entity,
is at the time directly or indirectly owned or controlled by such Person or one
or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person.
"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.
"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.
"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.
1.2O Accounting Terms and Determinations.
-----------------------------------
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered
to the Lenders hereunder shall (unless otherwise disclosed to the Lenders
in writing at the time of delivery thereof in the manner described in
subsection (b) below) be prepared, in accordance with GAAP applied on a
basis consistent with those used in the preparation of the latest annual
or quarterly financial statements furnished to the Lenders hereunder
(which, prior to the delivery of the first annual or quarterly financial
statements under Section 9.1 hereof, shall mean the audited financial
statements as at December 31, 1995 referred to in Section 8.2 hereof).
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(b) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 9 hereof, the Company will not
change its fiscal year.
1.3 TYPES OF LOANS Loans hereunder are distinguished by "Type". The "Type"
of a Loan refers to whether such Loan is a Prime Rate Loan or a LIBOR Loan.
Section 2. Commitments, Loans, Notes and Prepayments.
-----------------------------------------
2.1O REVOLVING CREDIT LOANS. Each Lender severally agrees, on the terms
and conditions of this Agreement, to make loans to the Company in Dollars during
the period from and including the Closing Date to but not including the
Revolving Credit Commitment Termination Date in an aggregate principal amount at
any one time outstanding up to but not exceeding the amount of the Revolving
Credit Commitment of such Lender as in effect from time to time (such Loans
being herein called "REVOLVING CREDIT LOANS"); PROVIDED THAT in no event shall
the Revolving Credit Loans at any time outstanding exceed the aggregate amount
of the Revolving Credit Commitments as in effect from time to time. Subject to
the terms and conditions of this Agreement, during such period the Company may
borrow, repay and reborrow the amount of the Revolving Credit Commitments by
means of Prime Rate Loans and LIBOR Loans and may Convert Revolving Credit Loans
of one Type into Revolving Credit Loans of another Type (as provided in Section
2.8 hereof) or Continue Revolving Credit Loans of one Type as Revolving Credit
Loans of the same Type (as provided in Section 2.8 hereof); and PROVIDED FURTHER
that no more than five separate Interest Periods in respect of LIBOR Loans may
be outstanding at any one time.
2.2. BORROWINGS OF REVOLVING CREDIT LOANS. The Company shall give
the Administrative Agent notice of each borrowing hereunder as provided in
Section 4.5 hereof. 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 0000000 maintained by
the Administrative Agent with Fleet at the Principal Office, 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.
2.3. Changes of Commitments.
----------------------
(a) The aggregate amount of the Revolving Credit Commitments shall
be automatically reduced to zero on the Revolving Credit Commitment
Termination Date.
(b) The Company shall have the right at any time or from time to
time to reduce the aggregate unused amount of the Revolving Credit
Commitments (for which purpose the Revolving Credit Commitments shall be
deemed to be utilized by the amount of the Revolving Credit Loans);
PROVIDED that (x) the Company shall give notice of each such termination
or reduction as provided in Section 4.5 hereof and (y) each partial
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reduction 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, 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 Revolving Credit Commitments are terminated or expire.
Notwithstanding the foregoing, on any day during the period prior to the
Reporting Date occurring in March, 1997, the Applicable Commitment Fee Rate
shall be the percentage set forth in the definition of Applicable Commitment Fee
Rate opposite the designation "Level II Period".
2.5 LENDING OFFICES. The Loans of each Type made by each Lender shall be
made and maintained at such Lender's Applicable Lending Office for Loans of such
Type.
2.6. SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor any Agent shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender, and (except as
otherwise provided in Section 4.6 hereof) no Lender shall have any obligation to
any Agent or any other Lender for the failure by such Lender to make any Loan
required to be made by such Lender. The amounts payable by the Company at any
time hereunder and under the Note to each Lender shall be a separate and
independent debt and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and the Notes, and it shall not be
necessary for any other Lender or any Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.7. Notes.
-----
(a) The Revolving Credit Loans made by each Lender shall be
evidenced by a single promissory note of the Company substantially in the
form of Exhibit A hereto, dated the date hereof, payable to such Lender in
a principal amount equal to the amount of its Revolving Credit Commitment
as originally in effect and otherwise duly completed.
(b) The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Loan made by each Lender to the Company,
and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of any
Note evidencing the Loans held by it, endorsed by such Lender on the
schedule attached to such Note or any continuation thereof; PROVIDED that
the failure of such Lender to make any such recordation or endorsement
shall not affect the obligations of the Company to make a payment when due
of any amount owing hereunder or under such Note in respect of such Loans.
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(c) No Lender shall be entitled to have its 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 or Continue Loans of
one Type as Loans of the same Type, at any time or from time to time, PROVIDED
that:
(a) the Company shall give the Administrative Agent notice of each
such prepayment, Conversion or Continuation as provided in Section 4.5
hereof (and, upon the date specified in any such notice of prepayment, the
amount to be prepaid shall become due and payable hereunder); and
(b) any prepayment or Conversion of LIBOR Loans on any day other
than the last day of an Interest Period for such Loans shall be subject to
the payment of any compensation payable pursuant to Section 5.5 hereof.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10 hereof, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Required Lenders shall) suspend the right of the Company to
Convert any Loan into a LIBOR Loan, or to make or Continue any Loan as a LIBOR
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or made or Continued, as the case may be,
as Prime Rate Loans.
2.9. EXTENSION TO REVOLVING CREDIT COMMITMENT TERMINATION DATE. The
Company may by notice to the Lenders given at least ninety (90) days prior to
the first and second anniversary of the Closing Date, request that the Revolving
Credit Commitment Termination Date be extended by one year for each such
request, for total extensions not to exceed two years. The Revolving Credit
Commitment of any Lender that declines to accept such a request for an extension
or does not respond within the forty-five (45) days after the date of such
request will terminate on the Revolving Credit Commitment Termination Date as
then in effect (without regard to any extensions granted by the other Lenders).
The Company may substitute a Replacement Lender for any such Lender that so
declines the Company's extension request; PROVIDED that prior to contacting any
potential Replacement Lender, the Company shall notify the Lenders that have
agreed to the requested extension which notification shall state the amount of
available Commitments and any extending Lender shall have the right, exercised
by notice to the Company within fifteen (15) days after such notification by the
Company, to increase its Revolving Credit Commitment, up to an aggregate amount
equal to the available Commitments provided that if more than one extending
Lender exercises such right, the available Commitments shall be allocated among
such extending Lenders in such manner as the Administrative Agent and Company
shall determine. No extension shall be granted unless Commitments from the
extending Lenders and Replacement Lenders, if any, equal the aggregate
Commitments requested by the Company (which shall be in an aggregate amount not
less than $175,000,000, or, if prior to the
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request for any such extension, the aggregate Commitments have been reduced to
less than $175,000,000 pursuant to the exercise of the Company's rights in
Section 2.3 hereof, such lesser amount), are given within the foregoing period
and the Company may, at any time during such period, terminate its request for
an extension by notice to the Lenders and Administrative Agent.
Section 3. Payments of Principal and Interest.
----------------------------------
3.1. REPAYMENT OF LOANS. The Company hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding principal
amount of such Lender's Revolving Credit Loans, and each Revolving Credit Loan
shall mature, on the Revolving Credit Commitment Termination Date.
3.2. INTEREST. The Company hereby promises to pay to the Administrative
Agent for account of each Lender interest on the unpaid principal amount of each
Revolving Credit Loan made by such Lender for the period from and including the
date of such Loan to but excluding the date such Revolving Credit Loan shall 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.
Notwithstanding the foregoing, on any day during the period prior to the
Reporting Date occurring in March, 1997, the Applicable Margin shall mean the
respective percentages set forth in the definition of "Applicable Margin"
opposite the designation "Level II Period".
During any period when an Event of Default shall have occurred and be
continuing and upon notice from the Administrative Agent 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.
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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 00000000 maintained by the Company
with Fleet 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) debit the amount of any such payment to any ordinary deposit
account of the Company with such Lender (with notice to the Company and
the Administrative Agent).
(c) The Company shall, at the time of making each payment under this
Agreement or any Note for account of any Lender, subject to Section 4.2
specify to the Administrative Agent(which shall so notify the intended
recipient(s) thereof) the amount payable on the Loans, or other amounts
payable by the Company hereunder to which such payment is to be applied
(and in the event that the Company fails to so specify, or if an Event of
Default has occurred and is continuing, the Administrative Agent may
distribute such payment to the Lenders for application in such manner as
it, subject to Section 4.2 hereof, may determine to be appropriate).
(d) Each payment received by the Administrative Agent under this
Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available
funds, for account of such Lender's Applicable Lending Office for the Loan
or other obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be
payable for any principal so extended for the period of such extension.
(f) Any payment of principal or interest on the Loans not paid
within ten (10) days after the date such payment is due shall be subject
to a late charge equal to five percent (5%) of the amount overdue.
4.2. PRO RATA TREATMENT. Except to the extent otherwise provided herein:
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(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;
(b) except as otherwise provided in Section 5.4 hereof, LIBOR Loans
having the same Interest Period shall be allocated pro rata among the
Lenders according to the amounts of their respective Revolving Credit
Commitments (in the case of the making of Loans) or their respective
Revolving Credit Loans (in the case of Conversions and Continuations of
Loans);
(c) each payment or prepayment of principal of Revolving Credit
Loans by the Company shall be made for account of the Lenders pro rata in
accordance with the respective unpaid principal amounts of the Loans held
by them; and
(d) each payment of interest on Revolving Credit Loans by the
Company shall be made for account of the Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders.
4.3. COMPUTATIONS. Interest on Loans and 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 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 on the number of Business Days prior to the date of the
relevant termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
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of Commitments 3
Borrowing or prepayment of,
or Conversion into,
Prime Rate Loans next Business Day
Borrowing or prepayment of, Conversions
into, Continuations
as, or duration of Interest
Period for, LIBOR Loans 3
Each such notice of termination or reduction shall specify the amount of
the Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or optional prepayment shall specify the amount to be
borrowed, Converted, Continued or prepaid (subject to Section 4.4 hereof) and
Type of each Loan to be borrowed, Converted, Continued or prepaid and the date
of borrowing, Conversion, Continuation or optional prepayment (which shall be a
Business Day). 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 the 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 (if outstanding as a LIBOR Loan) will be
automatically Converted into a Prime Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Prime Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Prime Rate Loan.
4.6. RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have been notified by a Lender or the Company (the
"PAYOR") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "REQUIRED PAYMENT"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not 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
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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.
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
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the case may be) in such amounts, and make such other adjustments from
time to time as shall be equitable, to the end that all the Lenders shall
share the benefit of such excess payment (net of any expenses that may be
incurred by such Lender in obtaining or preserving such excess payment)
pro rata in accordance with the unpaid principal of and/or interest on the
Loans or such other amounts, respectively, owing to each of the Lenders.
To such end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored.
(c) The Company agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans or
other amounts (as the case may be) owing to such Lender in the amount of
such participation.
(d) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any
other indebtedness or obligation of any Obligor. If, under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a set-off to which this Section 4.7 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders
entitled under 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
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Reserve Requirement, utilized in the determination of the Adjusted
LIBO Rate or LIBO Rate for such Loan) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities
of, such Lender (including, without limitation, any of such Loans or
any deposits referred to in the definition of "LIBO Rate" in Section
1.1 hereof), or any commitment of such Lender (including, without
limitation, the Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Note (or any of such extensions of credit or liabilities) or its
Commitment.
If any Lender requests compensation from the Company under this Section 5.1(a),
the Company may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
LIBOR Loans, or to Convert Prime Rate Loans into LIBOR Loans, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 5.4 hereof shall be applicable), PROVIDED that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(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
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which such Lender (or any Applicable Lending Office or such bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request).
(d) Each Lender shall notify the Company of any event occurring
after the date hereof entitling such Lender to compensation under
paragraph (a) or (c) of this Section 5.1 as promptly as practicable, but
in any event within 45 days, after such Lender obtains actual knowledge
thereof; PROVIDED that if (i) any Lender fails to give such notice within
45 days after it obtains actual knowledge of such an event, such Lender
shall, with respect to compensation payable pursuant to this 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 accurately 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
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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 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
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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 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 amount
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 amount 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.
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.
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6.2. OBLIGATIONS UNCONDITIONAL. The obligations of the Subsidiary
Guarantors 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 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 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
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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.
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
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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 GSC, (ii) a long-form good
standing certificate issued by the Secretary of State of the jurisdiction
of incorporation or organization of each Obligor and GSC and (iii)
certified copies of all corporate or partnership authority for each
Obligor (including, without limitation, board of director resolutions and
evidence of the incumbency, including specimen signatures, of officers)
with respect to the execution, delivery and performance of such of the
Loan Documents to which such Obligor is intended to be a party and each
other document to be delivered by such Obligor from time to time in
connection herewith and the extensions of credit hereunder (and each Agent
and each Lender may conclusively rely on such certificate until it
receives notice in writing from such Obligor to the contrary).
(b) OFFICER'S CERTIFICATE. The receipt by the Administrative Agent
of a certificate of a senior officer of the Company, dated the Closing
Date, to the effect set forth in the first sentence of Section 7.2 hereof.
(c) BORROWING NOTICE. The receipt by the Administrative Agent of the
notice of borrowing required by Sections 2.2 and 4.5 hereof, which notice
of borrowing shall specify a borrowing date.
(d) OPINIONS OF COUNSEL TO THE OBLIGORS. The receipt by the
Administrative Agent of an opinion, dated the Closing Date, of Xxxxxx &
Dodge, special counsel to the Obligors, substantially in the form of
Exhibit B hereto and covering such other matters as any Agent or any
Lender may reasonably request.
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(e) NOTES. The receipt by the Administrative Agent of Notes, duly
completed and executed for each Lender.
(f) PLEDGE AGREEMENT. The receipt by the Administrative Agent of the
Pledge Agreement in the form of Exhibit F, together with the certificates
for all shares of capital stock of Genzyme Securities Corporation pledged
thereunder and undated executed stock powers.
(g) SEARCH RESULTS. The receipt by the Administrative Agent of
results satisfactory to the Administrative Agent of UCC, Federal and 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 7.1
hereto that is to be repaid on the Closing Date shall have been (or shall
be simultaneously) paid in full, that any commitments to extend credit
under the agreements or instruments relating to such Indebtedness shall
have been canceled or terminated and that all Guarantees in respect of,
and all Liens securing, any such Indebtedness shall have been released (or
arrangements for such release satisfactory to the Required Lenders shall
have been made); in addition, the Administrative Agent shall have received
from any Person holding any Lien securing any such Indebtedness, such
Uniform Commercial Code termination statements, mortgage releases and
other instruments, in each case in proper form for recording, as the
Administrative Agent shall have requested to release and terminate of
record the Liens securing such Indebtedness (or arrangements for such
release and termination satisfactory to the Required Lenders shall have
been made).
(j) NO ADVERSE LITIGATION OR PROCEEDING. The receipt by the
Administrative Agent of a certificate of a senior officer of the Company
to the effect that, on and as of the Closing Date and except as disclosed
in Schedule 8.3 hereto, no litigation or proceeding shall exist or (to the
Company's knowledge) be threatened against the Company or any of its
Subsidiaries, and, to the Company's knowledge, no law or regulation shall
have been proposed (unless withdrawn) that could reasonably be expected to
(i) have a Material Adverse Effect, (ii) materially and adversely affect
the ability of the Obligors to perform their respective obligations under
this Agreement or the other Loan Documents, (iii) materially and adversely
affect the rights and remedies of the Agents and the Lenders under this
Agreement or the Loan Documents or (iv) purport to adversely affect the
Revolving Credit Loans or Commitments.
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(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, 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) OTHER DOCUMENTS. Such other documents as any Agent or any Lender
or special counsel to Fleet may reasonably request.
7.2. INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT. The obligation of any
Lender to make any Loan or otherwise extend any credit to the Company upon the
occasion of each borrowing or other extension of credit hereunder is subject to
the further conditions precedent that, both immediately prior to such borrowing
or other extension of credit and also after giving effect thereto and to the
intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in
Section 8 hereof, and by each Obligor in each of the other Loan Documents
to which it is a party, shall be true and complete in all material
respects on and as of the date of the making of such Loan or other
extension of credit with the same force and effect as if made on and as of
such date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date).
Each notice of borrowing by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the preceding sentence
(both as of the date of such notice or request and, unless the Company otherwise
notifies the Administrative Agent prior to the date of such borrowing or
issuance, as of the date of such borrowing or issuance).
Section 8. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Agents and the Lenders that:
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,
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authorization, consent or approval would not reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect; and (c) is
qualified to do business and is in good standing in all jurisdictions in which
the nature of the business conducted by it makes such qualification necessary
and where failure so to qualify would not reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect.
8.2. FINANCIAL CONDITION. The Company has heretofore furnished to each of
the Lenders the audited Consolidated balance sheet of the Company as at December
31, 1995 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 Coopers & Xxxxxxx, and the unaudited Consolidated
balance sheet of the Company as at June 30, 1996, 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 June 30,
1996, to normal year-end audit adjustments), all in accordance with generally
accepted accounting principles 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 June 30, 1996, there has been no material adverse change in the
business, operations or financial condition of the Company from that set forth
in said financial statements as at said date.
8.3. LITIGATION. Except as disclosed in Schedule 8.3 hereto, 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 could (either individually or in the aggregate) be
reasonably expected to have a Material Adverse Effect.
8.4. NO BREACH. The execution and delivery of this Agreement and the Notes
and the other Loan Documents, the consummation of the transactions herein and
therein contemplated and the compliance with the terms and provisions hereof and
thereof do not and will not: (a) conflict with, violate or result in a breach
of, or require any consent under the charter or by-laws (or equivalent
constitutional documents) of any Obligor; (b) violate or result in a breach of
any applicable law or regulation; (c) conflict with, violate or result in a
breach of, or require any consent under any order, writ, injunction or decree of
any court or governmental authority or agency, or any agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
or any of their Property is bound or to which any of them is subject; (d)
constitute a default, or result in the termination of any commitment to extend
credit, under any such agreement or instrument; or (e) result in the creation or
imposition of any Lien upon any Property of the Company or any of its
Subsidiaries pursuant to the terms of any such agreement or instrument (except
for any Lien created by the Pledge Agreement); except to the extent, with
respect to the foregoing clauses (c) and (d), any such conflict, violation,
breach or default, or the failure to have any such consent, (i) could not
reasonably be expected (either individually or in the aggregate) to have a
Material Adverse Effect and (ii) does not and will not result in any liability
of
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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 generally accepted accounting
principles. The charges, accruals and reserves on the books of the Company and
its Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Company, adequate. The Company has not given or been requested to
give a waiver of the statute of limitations relating to the payment of any
Federal, state, local and foreign taxes or other impositions in respect of the
Company or any of its Subsidiaries.
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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 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.
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8.14. SUBSIDIARIES, ETC. Set forth on Schedule 8.14 hereto is a complete
and correct list of all of the Subsidiaries of the Company as of the date hereof
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (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 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. 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
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be expected to have a Material Adverse Effect that has not been disclosed
herein, in the other Loan Documents or in a report, financial statement,
exhibit, schedule, disclosure letter or other writing furnished to the Lenders
for use in connection with the transactions contemplated hereby or thereby.
Section 9. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Lenders and the Agents that, so long as any Commitment, or Loan is outstanding
and until payment in full of all amounts payable by the Company hereunder:
9.1. FINANCIAL STATEMENTS ETC.: The Company shall deliver to each of the
Lenders:
(a) as soon as available and in any event within 45 days after the
end of the first three quarterly fiscal periods of each fiscal year of the
Company, 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 90 days after the
end of each fiscal year of the Company, Consolidated statements of
earnings, shareholders' equity and cash flows of the Company and its
Subsidiaries for such fiscal year and the related Consolidated balance
sheets of the Company and its Subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form, to the extent such
figures appear therein, the corresponding Consolidated figures for the
preceding fiscal year, and accompanied by a report thereon of independent
certified public accountants of recognized national standing, which report
shall state that said Consolidated financial statements present fairly in
all material respects the Consolidated financial position and results of
operations of the Company and its Subsidiaries as at the end of, and for,
such fiscal year in accordance with GAAP, consistently applied;
(c) simultaneously with the delivery of the financial statements
required under Section 9.1(a) and (b) above, (i) a copy of the Company's
Form 10-Q or 10-K filing made for the periods covered by such financial
statements or, if such filings are not available, a brief narrative
description of material businesses and financial trends and developments
and significant transactions that have occurred in the period or periods
covered thereby, together with (ii) a Compliance Certificate as of the
date of such financial statements, in the form attached as Exhibit C
hereto;
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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, and (iii) 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); and
(h) from time to time such other information regarding the Property,
operations, business, financial condition or prospects of the Company or
any of its Subsidiaries as any Lender or any Agent may reasonably request.
9.2. LITIGATION. Promptly after the Company obtains knowledge thereof, the
Company will give notice to each Lender of all legal or arbitral proceedings,
and of all proceedings by or before any governmental or regulatory authority or
agency, and any material development in respect of such legal or other
proceedings, affecting the Company or any of its Subsidiaries, except
proceedings that, if adversely determined, would not (either individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect.
9.3. EXISTENCE, ETC. The Company:
(a) will, and will cause each of its Material Subsidiaries to,
preserve and maintain its legal existence and all of its material rights,
privileges, licenses and franchises
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43
(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 generally accepted accounting
principles 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 generally accepted accounting principles consistently
applied; and
(f) will, and will cause each of its Material Subsidiaries to,
permit representatives of any Lender or any Agent, upon reasonable advance
notice to the Company or such Material Subsidiary and during normal
business hours, to examine, copy and make extracts from its books and
records, to inspect any of its Properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by such
Lender or the Administrative Agent (as the case may be); PROVIDED THAT (i)
the Agents and the Lenders will endeavor to cooperate with the Company or
such Material Subsidiary in order to minimize any interference with its
normal business operations that may result from any such inspection and
(ii) except as otherwise provided in Section 12.3 hereof, all expenses of
the Agents and the Lenders in connection with the exercise of their rights
under this Section 9.3(f) shall be for their own account.
9.4. INSURANCE. The Company will, and will cause each of its Subsidiaries
to, maintain insurance with financially sound and reputable insurance companies,
and with respect to Property and risks of a character usually maintained by
corporations engaged in the same or similar business similarly situated, against
loss, damage and liability of the kinds and in the amounts customarily
maintained by such corporations.
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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:
(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 and (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, 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;
(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 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 a Subsidiary 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;
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(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, 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, transfer or other
disposition is to a Subsidiary 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 transferee Subsidiary
shall have assumed all of the obligations of the Company or such
Subsidiary Guarantor hereunder and under the other Loan Documents;
and PROVIDED, further, that the Company or such Subsidiary Guarantor
shall remain fully obligated as an Obligor hereunder;
(v) the Company or any Subsidiary may convey, sell, lease,
transfer or otherwise dispose of any non-material Property (of the
Company and its Subsidiaries, taken as a whole) including equity
interests in any Person and the licensing of patents and product
rights; and
(vi) the Company or any Subsidiary may lease or sublease any
of its real Property.
9.6. LIMITATION ON LIENS. The Company will not, nor will it permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its Property, whether now owned or hereafter acquired, except:
(a) Liens in existence on the date hereof, including, without
limitation, Liens required to be listed on Schedule 8.12 (parts A and B)
hereto (excluding, however, Liens securing Indebtedness to be repaid with
the proceeds of Loans hereunder, as indicated on said Schedule 8.12 (parts
A and B), from and after the date of such repayment);
(b) Liens imposed by any governmental authority for taxes,
assessments or charges not in excess of $1,000,000 or not yet due or that
are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of the
Company or the affected Subsidiaries, as the case may be, in accordance
with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained or the books of the Company or the affected Subsidiaries, as
the case may be, in accordance with GAAP;
(d) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
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(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) Liens on the Genzyme Tissue Repair manufacturing facility and
equipment securing the repayment of Indebtedness permitted under Section
9.7(i);
(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 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 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 or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder and under the other Loan
Documents;
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(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;
(d) Indebtedness constituting Capital Lease Obligations incurred in
the ordinary course of Company's or such Subsidiaries' business;
(e) Indebtedness under or in respect of currency exchange contracts
or interest rate protection obligations incurred in the ordinary course of
business;
(f) Indebtedness in connection with performance bonds or letters of
credit obtained and issued in the ordinary course of business, including
letters of credit related to insurance associated with claims for
work-related injuries;
(g) Subordinated Debt;
(h) Indebtedness incurred to renew, extend, refinance or refund any
Indebtedness expressly permitted by any of the clauses of this Section
9.7; 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 the
Genzyme Tissue Repair Division and for Genzyme (UK) Limited, up to but not
exceeding $35,000,000 at any one time outstanding.
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 o9.9ts
SubFinancial Covenants.uld be permitted under the terms of Section 9.5
9.9. Financial Covenants.
-------------------
(a) CONSOLIDATED QUICK RATIO. The Company will not permit the
Consolidated Quick Ratio on the last day of any fiscal quarter of the
Company to be less than 1.50 to 1.00 (commencing with the fiscal quarter
of the Company ending in December, 1996).
(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 December, 1996)
to be less than the amount set forth
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below opposite such quarter end.
Fiscal Quarter Ending In Ratio
------------------------ -----
December, 1996 1.25 to 1.00
March, 1997 1.50 to 1.00
June, 1997 1.75 to 1.00
September, 1997 2.00 to 1.00
December, 1997 2.25 to 1.00
March, 1998 2.50 to 1.00
June, 1998 2.75 to 1.00
September, 1998 and 3.00 to 1.00
thereafter
(c) CONSOLIDATED FUNDED DEBT TO EBITDA RATIO. The Company will not
permit, as of the last day of any fiscal quarter (commencing with the
fiscal quarter of the Company ending in December, 1996), the ratio of
Consolidated Funded Debt to Consolidated EBITDA of the Company for the
period of four consecutive fiscal quarters then ended to exceed 2.25 to
1.00 at each fiscal quarter end through the fiscal quarter ending in
September, 1998, and 2.00 to 1.00 at each fiscal quarter end thereafter.
(d) CONSOLIDATED TANGIBLE NET WORTH. The Company will not permit the
Consolidated Tangible Net Worth on the last day of any fiscal quarter of
the Company to be less than the amount set forth below opposite such
quarter end:
Fiscal Quarter Ending In Amount
------------------------ ------
December, 1996 $400,000,000
Each fiscal quarter thereafter The minimum amount at the end of the
prior fiscal quarter plus 50%
of the Company's Consolidated Net
Income for the current fiscal
quarter (but without taking into
account any Consolidated Net Income
that is less than zero) plus 50% of
the Company's Net Equity Proceeds
received during the current fiscal
quarter.
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,
medical products, and medical services and diagnostic services businesses.
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9.11. USE OF PROCEEDS. The Company will use the proceeds of the Loans
hereunder to finance transactions permitted under Section 9.5 and to finance the
ongoing working capital and other general corporate needs of the Company and its
Subsidiaries (in each case, in compliance with all applicable legal and
regulatory requirements, including, without limitation, Regulations U and X and
the Securities Act of 1933 and the Securities Exchange Act of 1934); PROVIDED
that neither any Agent nor any Lender shall have any responsibility as to the
use of any of such proceeds.
9.12. Certain Obligations Respecting 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.
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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, cause such Material Subsidiary (a) to execute
and deliver to each Agent and each Lender a joinder agreement in the form of
Exhibit D hereto, (b) to execute and deliver to the Administrative Agent and
each Lender a written instrument in form and substance satisfactory to the
Required Lenders and the Administrative Agent pursuant to which such Material
Subsidiary shall become an "Obligor" hereunder and (c) to deliver such proof of
corporate action, incumbency of officers, opinions of counsel (it being agreed
that any such opinion may be an opinion of internal counsel qualified to
practice law in the jurisdiction(s) relevant to such opinion) and other
documents as are consistent with those delivered by the Company pursuant to
Section 7.1 hereof or as the Administrative Agent shall have reasonably
requested. Upon execution and delivery by such Material Subsidiary of any
agreement referred to in the foregoing clauses, each of the representations and
warranties in Section 8 hereof with respect to such Material Subsidiary and each
Loan Document to which it shall have become a party shall be deemed made by the
Company.
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 $1,000,000 (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
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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), 9.5, 9.6, 9.7,
9.9, 9.10, 9.11, 9.12, and 9.13 hereof; or
(ii) 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 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
(i) A final judgment or judgments for the payment of money in excess
of $1,000,000 in the aggregate (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
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52
strength rating of AA or better from Xxxxx'x) 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);
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 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 each Agent to act as its agent hereunder and under the other Loan
Documents with
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53
such powers as are specifically delegated to each such 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 Agent, together
with the consent of the Company to such assignment or transfer (to the extent
provided in Section 12.7(b) hereof).
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.
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11.3. DEFAULTS. 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 an Agent receives such a
notice of the occurrence of a Default, such Agent shall give prompt notice
thereof to the other Agent 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 Agent 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
BankBoston (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 The First National Bank of Boston
(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 BankBoston (and any such successor) and their
respective affiliates may accept fees and other consideration from the Obligors
for services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
11.5. INDEMNIFICATION. The Lenders agree to indemnify each of the Agents
(to the extent not reimbursed under Section 12.3 hereof, but without limiting
the obligations of the Company under said Section 12.3) ratably in accordance
with their respective Commitments, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against any Agent (including by any Lender) arising out of or by
reason of any investigation in or in any way relating to or arising out of this
Agreement or any other Loan Document or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that the Company is
obligated to pay under Section 12.3 hereof, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents, 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
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55
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 an 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. Upon any such
resignation, 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 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 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
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56
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 (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 (x)
bankruptcy, insolvency, receivership,
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57
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 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 (but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
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.
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 reduction or termination of any of the
Commitments, (ii) extend the date fixed for the payment
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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, or (ix)
waive any of the conditions precedent set forth in Section 7.1 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.
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,
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 E hereto; and
(iv) no consent required of the Company or the Administrative
Agent under this Section 12.7(b) shall be unreasonably withheld or
delayed.
Upon execution and delivery by the assignor and the assignee to the
Company and the Administrative Agent of such Notice of Assignment and upon
the consent thereto by the Company and the Administrative Agent, the
assignee shall have, to the extent of such assignment (unless otherwise
consented to by the Company and the Administrative Agent), the
obligations, rights and benefits of a Lender hereunder holding the
Commitment(s) and Loans (or portions thereof) assigned to it and specified
in such Notice
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59
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 $3,000.
(c) A Lender may sell or agree to sell to one or more other Persons
a participation in all or any part of any Loans held by it, or in its
Commitments, in which event each purchaser of a participation (a
"Participant"), except with respect to a Lender as otherwise provided in
Section 4.7(c) hereof, shall not have any rights or benefits under this
Agreement or any Note or any other Loan Document (the Participant's rights
against such Lender in respect of such participation to be those set forth
in the agreements executed by such Lender in favor of the Participant).
All amounts payable by the Company to any Lender under Section 5 hereof in
respect of Loans held by it, and its Commitments, shall be determined as
if such Lender had not sold or agreed to sell any participations in such
Loans and Commitments, and as if such Lender were funding each of such
Loan and Commitments in the same way that it is funding the portion of
such Loan and Commitments in which no participations have been sold. In no
event shall a Lender that sells a participation agree with the Participant
to take or refrain from taking any action hereunder or under any other
Loan Document except that such Lender may agree with the Participant that
it will not, without the consent of the Participant, agree to (i) increase
or extend the term, or extend the time or waive any requirement for the
reduction or termination, of such Lender's related Commitment, (ii) extend
the date fixed for the payment of principal of or interest on the related
Loan or Loans, or any portion of any fee hereunder payable to the
Participant, (iii) reduce the amount of any such payment of principal,
(iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which
the Participant is entitled to receive such interest or fee, (v) alter the
rights or obligations of the Company to prepay the related Loans or (vi)
consent to any modification, supplement or waiver hereof or of any of the
other Loan Documents to the extent that the same, under Section 11.9 or
12.4 hereof, requires the consent of each Lender.
(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 Lender as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Lender and (ii) assign all or any portion
of its rights under this Agreement and its Loans, and Note to an Affiliate
provided that the Company shall not be required to pay anyincrease in the
cost of borrowing as a result of such assignment and LIBOR Loans must
continue to be made available by such Assignee. Unless the Administrative
Agent and the Company shall otherwise consent thereto, no such assignment
shall release the assigning Lender from its obligations hereunder.
(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
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60
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,
and 12.3 hereof, the obligations of each Subsidiary Guarantor under Section 6.3
hereof, and the obligations of the Lenders under Section 11.5 hereof, shall
survive the repayment of the Loans and the termination of the Commitments and,
in the case of any Lender that may assign any interest in its Commitments or
Loans hereunder, shall survive the making of such assignment, notwithstanding
that such assigning Lender may cease to be a "Lender" hereunder. In addition,
each representation and warranty made, or deemed to be made by a notice of
borrowing herein or pursuant hereto shall survive the making of such
representation and warranty, and no Lender shall be deemed to have waived, by
reason of making any extension of credit, any Default that may arise by reason
of such representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or any Agent may have had notice or knowledge
or reason to believe that such representation or warranty was false or
misleading at the time such extension of credit was made.
12.9. CAPTIONS. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
12.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.11. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and the
Notes shall be governed by, and construed12.11ccorGoverning Law; Submission to
Jurisdiction 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
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61
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 Agent 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 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.
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62
IT 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:
------------------------------------
Title:
Address for Notices:
Genzyme Corporation
Xxx Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Treasurer
Telecopier No.: (000) 000-0000
Telephone No.: (508) _________
SUBSIDIARY GUARANTORS
---------------------
DEKNATEL XXXXXXX XXXXXX, INC.
-----------------------------
By:
------------------------------------
Title:
Address for Notices:
c/o Genzyme Corporation
Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Treasurer
Telecopier No.: (000) 000-0000
Telephone No.: (508)
---------------------------------------
---------------------------------------
---------------------------------------
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63
DSP WORLDWIDE, INC.
By:
------------------------------------
Title:
Address for Notices:
--------------------
c/o Genzyme Corporation
Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Treasurer
Telecopier No.: (000) 000-0000
Telephone No.: (508)
---------------------------------------
---------------------------------------
---------------------------------------
ALLSTON LANDING LIMITED PARTNERSHIP
By: Allston Landing Corporation,
its General Partner
By:
------------------------------------
Title:
Address for Notices:
--------------------
c/o Genzyme Corporation
Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Treasurer
Telecopier No.: (000) 000-0000
Telephone No.: (508)
---------------------------------------
---------------------------------------
---------------------------------------
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64
ADMINISTRATIVE AGENT
--------------------
FLEET NATIONAL BANK
By:
------------------------------------
Title:
Address For Notices:
--------------------
Fleet National Bank
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: High Tech Group
Documentation Agent
-------------------
THE FIRST NATIONAL BANK OF BOSTON
By:
------------------------------------
Title:
Address For Notices:
--------------------
000 Xxxxxxx Xxxxxx
Mail Stop 010806
Xxxxxx, XX 00000
Telecopier No.:
Telephone No.:
Attention: High Tech Division
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65
LENDERS
-------
Revolving Credit Commitment FLEET NATIONAL BANK
---------------------------
$35,000,000.00
--------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
Fleet National Bank
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: High Tech Group
Lending Office For All Loans
----------------------------
Fleet National Bank
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: High Tech Group
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66
Revolving Credit Commitment THE FIRST NATIONAL BANK OF BOSTON
---------------------------
$22,000,000.00
--------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Mail Stop 01-08-04
Xxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Commercial Loan Services
Lending Office For All Loans:
-----------------------------
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Mail Stop 01-08-04
Xxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Commercial Loan Services
-62-
67
Revolving Credit Commitment BANK OF TOKYO-MITSUBISHI TRUST COMPANY
---------------------------
$13,000,000.00
--------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
Bank of Tokyo-Mitsubishi Trust Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Lending Office For All Loans:
-----------------------------
Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Loan Operations Department
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
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68
Revolving Credit Commitment CREDIT LYONNAIS NEW YORK BRANCH
---------------------------
$13,000,000.00
--------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X'Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Lending Office For All Loans:
-----------------------------
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X'Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
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69
Revolving Credit Commitment THE FUJI BANK, LIMITED, NEW YORK BRANCH
---------------------------
$13,000,000.00
--------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
The Fuji Bank, Limited, New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxxx Xxxxxxxx
Lending Office For All Loans:
-----------------------------
The Fuji Bank, Limited, New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxxx Xxxxxxxx
-65-
70
Revolving Credit Commitment MELLON BANK, N.A.
---------------------------
$13,000,000.00
--------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
Mellon Bank, N.A.
Xxx Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx X. Xxxx
Lending Office For All Loans:
-----------------------------
Mellon Bank, N.A.
3 Mellon Bank Center
Room 2303
Xxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxx
-66-
71
Revolving Credit Commitment NATIONSBANK, N.A.
---------------------------
$13,000,000.00
--------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxxxx Xxxxx
Lending Office For All Loans:
-----------------------------
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxxxx Xxxxx
-67-
72
Revolving Credit Commitment REPUBLIC NATIONAL BANK OF NEW YORK
---------------------------
$13,000,000.00
--------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
Republic National Bank of New York
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxx Xxxxxxxx
Lending Office For All Loans:
-----------------------------
Republic National Bank of New York
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxx Xxxxxxxx
-68-
73
Revolving Credit Commitment ABN AMRO BANK N.V.
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
By:
------------------------------------
Title:
Address For Notices:
--------------------
ABN AMRO Bank N.V.
Xxx Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxx Xxxxxxxx
Lending Office For All Loans:
-----------------------------
ABN AMRO Bank N.V.
Xxx Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxx Xxxxxxxx
-69-
74
Revolving Credit Commitment Bank Leumi Trust Company Of New York
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
Bank Leumi Trust Company of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx Xxxxxxxxxxx
Lending Office For All Loans:
-----------------------------
Bank Leumi Trust Company of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx Xxxxxxxxxxx
-70-
75
Revolving Credit Commitment THE BANK OF NOVA SCOTIA
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx Xxxxxxxxx
Lending Office For All Loans:
-----------------------------
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx Xxxxxxxxx
-71-
76
Revolving Credit Commitment CITIZENS BANK OF MASSACHUSETTS
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
Citizens Bank of Massachusetts
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx Xxxxxx Van Nest
Lending Office For All Loans:
-----------------------------
Citizens Bank of Massachusetts
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx Van Nest
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
-72-
77
Revolving Credit Commitment CORESTATES BANK, N.A.
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
CoreStates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Lending Office For All Loans:
-----------------------------
CoreStates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
-73-
78
REvolving Credit Commitment CREDIT SUISSE
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
By:
------------------------------------
Title:
Address For Notices:
--------------------
Credit Suisse
Tower 49, 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxx Xxxxxxx
Lending Office For All Loans:
-----------------------------
Credit Suisse
Tower 49, 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxxx Xxxxxxx
-74-
79
Revolving Credit Commitment KREDIETBANK, N.V.
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
By:
------------------------------------
Title:
Address For Notices:
--------------------
Kredietbank, N.V.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxx Xxxxxx
Lending Office For All Loans:
-----------------------------
Kredietbank, N.V.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxxx Xxxxxx
-75-
80
Revolving Credit Commitment LTCB TRUST CO.
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
LTCB Trust Co.
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxx Xxxxxxx
Lending Office For All Loans:
-----------------------------
LTCB Trust Co.
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxx Xxxxxxx
-76-
81
Revolving Credit Commitment THE NORTHERN TRUST COMPANY
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxx XxXxxx
Lending Office For All Loans:
-----------------------------
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxxx XxXxxx
-77-
82
Revolving Credit Commitment THE SAKURA BANK, LIMITED
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
The Sakura Bank, Limited
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Lending Office For All Loans:
-----------------------------
The Sakura Bank, Limited
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
-78-
83
Revolving Credit Commitment THE SANWA BANK, LIMITED
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
The Sanwa Bank, Limited
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 212-754-2368
Telephone No.: 000-000-0000
Attention: Xxxxx Hara
Lending Office For All Loans:
-----------------------------
The Sanwa Bank, Limited:
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 212-754-2368
Telephone No.: 000-000-0000
Attention: Xxxxx Hara
-79-
84
Revolving Credit Commitment THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
---------------------------
$7,500,000.00
-------------
By:
------------------------------------
Title:
Address For Notices:
--------------------
The Sumitomo Bank, Limited, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
Lending Office For All Loans:
-----------------------------
The Sumitomo Bank, Limited, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
-80-
85
EXHIBIT A
[Form of Revolving Credit Note]
PROMISSORY NOTE
$______________ __________ __, 199_
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,
Xxxxxx, Xxxxxxxxxxxxx 00000, the principal sum of ________________ Dollars (or
such lesser amount as shall equal the aggregate unpaid principal amount of the
Revolving Credit Loans made by the Lender to the Company under the Credit
Agreement), in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Revolving Credit Loan, at such office, in like money and funds, for the
period commencing on the date of such Revolving Credit Loan until such Revolving
Credit Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Revolving Credit Loan made by the Lender to the Company, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, PROVIDED
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Company to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Revolving
Credit Loans made by the Lender.
This Note is one of the Revolving Credit Notes referred to in the Credit
Agreement dated as of ________ __, 1996 (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 and The First National Bank of Boston, as
Documentation Agent, and evidences Revolving Credit Loans made by the Lender
thereunder. Terms used but not defined in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Section 12.7 of the Credit Agreement, this Note may
not be assigned by the Lender to any other Person.
1
86
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:
2
87
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or Converted
under the within-described Credit Agreement to the Company, on the dates, in the
principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
------------------------------------------------------------------------------------------------------------
Amount
Date Paid,
Made, Prepaid,
Continued or Principal Duration of Continued Unpaid
Converted Amount of Type of Loan Interest Rate Interest or Principal Notation
Loan Period Converted Amount Made By
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
1
88
EXHIBIT C TO CREDIT AGREEMENT
-----------------------------
FORM OF COMPLIANCE CERTIFICATE
------------------------------
COMPLIANCE CERTIFICATE
----------------------
This Compliance Certificate is provided pursuant to Section [_______]
[________] [________] of that certain Credit Agreement (the "Agreement") dated
as of __________, 1996, between Genzyme Corporation ("Company"), the Subsidiary
Guarantors party thereto, the Lenders party thereto and Fleet National Bank
("Administrative Agent") and The First National Bank of Boston ("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 ________,
199_.
GENZYME CORPORATION
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
1
89
SCHEDULE A
----------
TO EXHIBIT C
------------
Section 9.9(a) Consolidated Quick Ratio
-------------- ------------------------
cash -- $__________
Cash Equivalents -- $___________
Marketable Investments -- $____________
Accounts Receivable -- $___________
Current Liabilities + $50,000,000 -- $____________
Actual Ratio -- ____________
Minimum Ratio -- 1.50 to 1.00
SECTION 9.9(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO
Consolidated EBITDA -- $___________
Capital Expenditures -- $____________
Taxes -- $___________
Dividend Payments -- $___________
Interest Expense -- $___________
Actual Ratio -- ___________
Minimum Ratio -- ___________
SECTION 9.9(c) CONSOLIDATED FUNDED DEBT TO EBITDA RATIO
Consolidated Funded Debt -- $_________
Consolidated EBITDA -- $___________
Actual Ratio -- ___________
Maximum Ratio -- __________
1
90
SECTION 9.9(d) CONSOLIDATED TANGIBLE NET WORTH
-------------- -------------------------------
Consolidated Net Worth -- $__________
Intangible Assets -- $__________
Consolidated Tangible Net Worth -- $__________
Actual Ratio -- __________
Minimum Ratio -- __________
LEVEL CALCULATION
-----------------
CONSOLIDATED DEBT COVERAGE RATIO
--------------------------------
cash -- $__________
Cash Equivalents -- $__________
Marketable Investments -- $__________
Consolidated Funded Debt -- $__________
Ratio -- __________
CONSOLIDATED FIXED CHARGE COVERAGE RATIO
----------------------------------------
Consolidated EBITDA -- $__________
Capital Expenditures -- $__________
Taxes -- $__________
Dividend Payments -- $__________
Interest Expense -- $__________
Ratio -- __________
Level Period (I, II, III or IV) for Applicable Margin and Applicable Commitment
Fee determination:
-------------------
2
91
EXHIBIT D
[Form of Joinder Agreement]
This Joinder Agreement is delivered pursuant to Section 9.13 of the Credit
Agreement dated as of ___________________, 1996 (the "CREDIT AGREEMENT") between
Genzyme Corporation Incorporated (the "COMPANY"), the Subsidiary Guarantors
party thereto, the Lenders party thereto, Fleet National Bank, as Administrative
Agent, and The First National Bank of Boston, 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]
1
92
EXHIBIT E
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
Genzyme Corporation
Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx, Treasurer
Fleet National Bank,
as Administrative Agent
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: High Tech Group
Re: Credit Agreement dated as of _________________, 1996 (the
"CREDIT AGREEMENT"), between Genzyme Corporation (the
"COMPANY"), the Subsidiary Guarantors party thereto, the
Lenders party thereto and Fleet National Bank, as
Administrative Agent and The First National Bank of Boston, 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 _____% (representing $__________ of the Assignor's outstanding Revolving
Credit Commitment and Revolving Credit Loans (such interest in such rights and
obligations being hereinafter referred to as the "ASSIGNED INTEREST") under the
Credit Agreement to [Name of Assignee] (the "ASSIGNEE"). The Assignee hereby
agrees (a) to become a "Lender" pursuant to Section 12.7(b) of the Credit
Agreement (if not already a Lender under the Credit Agreement) and (b) to assume
all the obligations of the Assignor thereunder with respect to the Assigned
Interest.
The address for notices, Applicable Lender Office(s) and payment
instructions for the Assignee are as follows:
Address for Notices:
------------------------
------------------------
------------------------
1
93
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 $3,000.
Very truly yours,
[NAME OF ASSIGNOR]
By:
---------------------------
Title
[NAME OF ASSIGNEE]
By:
---------------------------
Title
ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
GENZYME CORPORATION
2
94
By:
------------------------
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By:
------------------------
Title:
3
