Exhibit 10.6
FOURTH AMENDMENT TO
TERM LOAN AGREEMENT
THIS FOURTH AMENDMENT TO TERM LOAN AGREEMENT (this "Fourth Amendment")
is made and entered into as of the 17th day of June, 1997, by and between
GENZYME TRANSGENICS CORPORATION, a Massachusetts corporation having its
principal place of business at Xxx Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000 (the "Borrower"), and THE FIRST NATIONAL BANK OF BOSTON (the "Bank"), a
national banking association with its head office at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Borrower and the Bank entered into a Term Loan Agreement
dated as of December 15, 1995, as amended by the First Amendment to Term Loan
Agreement dated as of March 29, 1996, the Second Amendment to Term Loan
Agreement dated as of October 1, 1996, and the Third Amendment to Term Loan
Agreement dated as of February 21, 1997 (as further amended and in effect
from time to time, the "Credit Agreement") pursuant to which the Bank
extended credit to the Borrower on the terms set forth therein;
WHEREAS, the Bank and the Borrower have agreed to amend the Credit
Agreement as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used herein without definition have
the meanings ascribed to them in the Credit Agreement.
2. AMENDMENT TO Section 7.2(A) OF THE CREDIT AGREEMENT.
Section 7.2(a) of the Credit Agreement is hereby deleted in its entirety
and the following substituted in place thereof:
"(a) the Borrower will not create, incur or assume and will not
permit its Subsidiaries to create, incur, or assume, any
Indebtedness other than (i) Indebtedness to the Bank; (ii)
Indebtedness incurred after the date hereof in respect of the
acquisition of property or in respect of new capital leases which
does not exceed $500,000 in the aggregate; (iii) current
liabilities not incurred through the borrowing of money or the
obtaining of credit except credit on an open account customarily
extended; (iv) Indebtedness in respect of taxes or other
governmental charges contested in good faith and by appropriate
proceedings and for which adequate reserves have been taken; (v)
Indebtedness not included above and listed on Schedule 7.2(a)
hereto or on the Form 10-Q of the Borrower dated March 31, 1995;
(vi) Indebtedness consisting of intercompany loans among the
Borrower and its Subsidiaries (except such loans as would render
any of such entities insolvent); (vii) Indebtedness of
BioDevelopment Laboratories, Inc. outstanding at the time of
acquisition thereof with respect to a standby letter of credit
issued by Silicon Valley Bank or any replacement thereof in an
aggregate amount not to exceed $157,500; (viii) Indebtedness to the
Guarantor arising under the Convertible Debt and Development
Funding Agreement dated as of March 29, 1996, as such agreement may
be amended, restated or supplemented from time to time, provided
that the principal amount of such Indebtedness shall not be
increased; and provided further that such Indebtedness is
subordinated to the Obligations on terms satisfactory to the Bank;
(ix) Indebtedness of (a) TSI Corporation to Finova Technology
Finance, Inc. (formerly Financing for Science International, Inc.
("Finova")) pursuant to the terms of the Master Equipment Lease
Agreement dated as of September 27, 1994 by and between TSI
Corporation and Financing for Science International, Inc., and of
the Borrower, Argus Research Laboratories, Inc., TSI Xxxxx
Laboratories, Inc., TSI Redfield Laboratories, Inc., and TSI
Washington Laboratories, Inc. to Finova pursuant to guaranties of
such lease; and (b) the Borrower to Transamerica Business Credit
Corporation ("TBCC") pursuant to the terms of the Master Lease
Agreement dated as of December 30, 1996 by and between TBCC and the
Borrower, and of TSI Corporation, BioDevelopment Laboratories,
Inc., TSI Xxxxx Laboratories, Inc., TSI Washington Laboratories,
Inc., TSI Redfield Laboratories, Inc., and Argus Research
Laboratories, Inc. to TBCC pursuant to guaranties of such lease,
provided that the aggregate outstanding amount of all such
Indebtedness shall not exceed $5,300,000; (x) Indebtedness of TSI
Redfield Laboratories, Inc. to Jefferson County, Arkansas in an
aggregate principal amount not to exceed $350,000, and Indebtedness
of the Borrower with respect to the guaranty thereof; (xi)
Indebtedness of TSI Redfield Laboratories, Inc. to Xxxxxxx First
National Bank in an aggregate principal amount not to exceed
$1,050,000, and Indebtedness of the Borrower and TSI Corporation
with respect to the guaranty thereof; (xii) Indebtedness of Argus
Research Laboratories, Inc. to Unisys Leasing Corporation in an
aggregate principal amount not to exceed $145,000 and Indebtedness
of the Borrower with respect to the guaranty thereof; and (xiii)
Indebtedness of TSI Xxxxx Laboratories, Inc. to the Massachusetts
Development Finance Agency in an aggregate principal amount not to
exceed $5,000,000, and Indebtedness of the Borrower with respect to
the guaranty thereof."
3. AMENDMENT TO Section 7.2(B) OF THE CREDIT AGREEMENT.
Section 7.2(b) of the Credit Agreement is hereby deleted in its entirety
and the following substituted in place thereof:
"(b) the Borrower will not create or
incur, and will not permit its Subsidiaries to create or
incur, any Liens on any of .the property or assets of the
Borrower or any of its Subsidiaries except (i) Liens
securing taxes or other governmental charges not yet due;
(ii) deposits or pledges made in connection with social
security obligations; (iii) Liens of carriers,
warehousemen, mechanics and materialmen, less than 120
days old as to obligations not yet due; (iv) easements,
rights-of-way, zoning restrictions and similar minor
Liens which individually and in the aggregate do not have
a Materially Adverse Effect; (v) purchase money security
interests in or purchase money mortgages on real or
personal property securing purchase money Indebtedness
permitted by Section 7.2(a)(ii), covering only the
Property so acquired; (vi) other Liens existing on the
date hereof and listed on Schedule 7.2(b) hereto or
existing on the date
hereof and securing Indebtedness not to exceed $500,000
in the aggregate; (vii) the rights of lessors under
capital leases permitted by Section 7.2(a) hereof; (viii)
subject to the terms and conditions of Section
7.2(a)(ii), purchase money liens on the assets of any
Subsidiary at the time such Subsidiary is acquired by the
Borrower pursuant to Section 7.2(f) hereof, provided that
such Liens may cover only the property so acquired; (ix)
mortgage Liens on the real property owned by TSI Redfield
Laboratories, Inc. in favor of Jefferson County, Arkansas
and Xxxxxxx First National Bank securing Indebtedness
permitted by Section 7.2(a)(x) and (xi) hereof; (x) Liens
on the personal property of TSI Redfield Laboratories,
Inc. securing the Indebtedness permitted by Section 7.2
(a)(xi) hereof; (xi) a mortgage Lien on the real property
located at 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
owned by TSI Xxxxx Laboratories, Inc. securing the
Indebtedness permitted by Section 7.2(a)(xiii) hereof;
and (xii) Liens on the personal property of TSI Xxxxx
Laboratories, Inc. purchased with the proceeds of and
securing the Indebtedness permitted by Section
7.2(a)(xiii) hereof.
4. RATIFICATION, ETC.
Except as expressly amended hereby, the Credit Agreement, the other Loan
Documents and all documents, instruments and agreements related thereto are
hereby ratified and confirmed in all respects and shall continue in full
force and effect. This Fourth Amendment and the Credit Agreement shall
hereafter be read and construed together as a single document, and all
references in the Credit Agreement or any related agreement or instrument to
the Credit Agreement shall hereafter refer to the Credit Agreement as amended
by this Fourth Amendment. By executing this Fourth Amendment where indicated
below the Guarantor hereby ratifies and confirms its guaranty of the
Obligations pursuant to the terms of the Guaranty, as amended, and
acknowledges and consents to the terms of this Fourth Amendment.
5. GOVERNING LAW.
THIS FOURTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL TAKE EFFECT AS A
SEALED INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
6. COUNTERPARTS. This Fourth Amendment may be executed in any number
of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which counterparts taken together shall be deemed to constitute one and the
same instrument. A complete set of counterparts shall be lodged with the
Bank.
7. EFFECTIVENESS. This Fourth Amendment shall become effective upon
its execution and delivery by the respective parties hereto.
8. ENTIRE AGREEMENT. THE CREDIT AGREEMENT AS AMENDED REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
under seal as of the date first set forth above.
THE BORROWER:
GENZYME TRANSGENICS CORPORATION
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
Address of the Borrower:
Xxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
THE BANK:
BANKBOSTON, N.A. (formerly known
as The First National Bank of Boston)
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
ACCEPTED AND AGREED TO BY:
The Guarantor:
--------------
GENZYME CORPORATION
By: /s/ Xxxx Xxxxxx
---------------------------------------
Title: Vice President and Treasurer