Exhibit 10.41
CREDIT AGREEMENT
AMONG
GENZYME CORPORATION,
THE SUBSIDIARY GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO,
AND
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT,
ABN AMRO BANK N.V.,
AS SYNDICATION AGENT
AND MELLON BANK, N.A.,
AS DOCUMENTATION AGENT
DATED: NOVEMBER 12, 1999
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS--------------------------------------------------------------1
1.1 Certain Defined Terms-------------------------------------------------------------------------------2
1.2 Accounting Terms and Determinations----------------------------------------------------------------18
1.3 Types of Loans/Facilities--------------------------------------------------------------------------19
SECTION 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS------------------------------------------------------19
2.1 Revolving Credit Loans-----------------------------------------------------------------------------19
2.2 Borrowings of Revolving Credit Loans---------------------------------------------------------------20
2.3 Changes of Commitments-----------------------------------------------------------------------------20
2.4 Commitment Fee-------------------------------------------------------------------------------------20
2.5 Lending Offices------------------------------------------------------------------------------------21
2.6 Several Obligations; Remedies Independent----------------------------------------------------------21
2.7 Notes----------------------------------------------------------------------------------------------21
2.8 Optional Prepayments and Conversions or Continuations of Loans-------------------------------------22
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST-------------------------------------------------------------22
3.1 Repayment of Loans---------------------------------------------------------------------------------22
3.2 Interest-------------------------------------------------------------------------------------------22
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.-----------------------------------------------23
4.1 Payments-------------------------------------------------------------------------------------------23
4.2 Pro Rata Treatment---------------------------------------------------------------------------------24
4.3 Computations---------------------------------------------------------------------------------------25
4.4 Minimum Amounts------------------------------------------------------------------------------------25
4.5 Certain Notices------------------------------------------------------------------------------------25
4.6 Non-Receipt of Funds by the Administrative Agent; Delinquent Lenders-------------------------------26
4.7 Sharing of Payments, Etc.--------------------------------------------------------------------------28
SECTION 5. YIELD PROTECTION, ETC.-------------------------------------------------------------------------29
5.1 Additional Costs-----------------------------------------------------------------------------------29
5.2 Limitation on Types of Loans-----------------------------------------------------------------------31
5.3 Illegality-----------------------------------------------------------------------------------------31
5.4 Treatment of Affected Loans------------------------------------------------------------------------31
5.5 Compensation---------------------------------------------------------------------------------------32
5.6 Rate Selection-------------------------------------------------------------------------------------33
SECTION 6. GUARANTEE--------------------------------------------------------------------------------------33
6.1 Guarantee------------------------------------------------------------------------------------------33
6.2 Obligations Unconditional--------------------------------------------------------------------------34
6.3 Reinstatement--------------------------------------------------------------------------------------35
6.4 Subrogation----------------------------------------------------------------------------------------35
6.5 Remedies-------------------------------------------------------------------------------------------35
6.6 Continuing Guarantee-------------------------------------------------------------------------------35
6.7 Rights of Contribution-----------------------------------------------------------------------------36
6.8 Limitation on Guarantee Obligations----------------------------------------------------------------36
SECTION 7. CONDITIONS PRECEDENT---------------------------------------------------------------------------36
7.1 Initial Loan---------------------------------------------------------------------------------------36
7.2 Initial and Subsequent Extensions of Credit--------------------------------------------------------38
SECTION 8. REPRESENTATIONS AND WARRANTIES-----------------------------------------------------------------39
8.1 Existence------------------------------------------------------------------------------------------39
8.2 Financial Condition--------------------------------------------------------------------------------39
8.3 Litigation-----------------------------------------------------------------------------------------40
8.4 No Breach------------------------------------------------------------------------------------------40
8.5 Action---------------------------------------------------------------------------------------------40
8.6 Approvals------------------------------------------------------------------------------------------40
8.7 Use of Credit--------------------------------------------------------------------------------------41
8.8 ERISA----------------------------------------------------------------------------------------------41
8.9 Taxes----------------------------------------------------------------------------------------------41
8.10 Investment Company Act-----------------------------------------------------------------------------41
8.11 Public Utility Holding Company Act-----------------------------------------------------------------41
8.12 Borrowing Agreements and Liens---------------------------------------------------------------------41
8.13 Compliance with Laws Including Environmental and Safety Matters------------------------------------42
8.14 Subsidiaries, Etc.---------------------------------------------------------------------------------42
8.15 Title to Assets; Etc.------------------------------------------------------------------------------42
8.16 Intellectual Property Rights-----------------------------------------------------------------------43
8.17 Year 2000 Compliance-------------------------------------------------------------------------------43
8.18 True and Complete Disclosure-----------------------------------------------------------------------43
SECTION 9. COVENANTS OF THE COMPANY-----------------------------------------------------------------------44
9.1 Financial Statements Etc.--------------------------------------------------------------------------44
9.2 Litigation-----------------------------------------------------------------------------------------45
9.3 Existence, Etc.------------------------------------------------------------------------------------45
9.4 Insurance------------------------------------------------------------------------------------------46
9.5 Prohibition of Fundamental Changes-----------------------------------------------------------------47
9.6 Limitation on Liens--------------------------------------------------------------------------------48
9.7 Indebtedness---------------------------------------------------------------------------------------50
9.8 Investments----------------------------------------------------------------------------------------51
9.9 Financial Covenants--------------------------------------------------------------------------------51
9.10 Lines of Business----------------------------------------------------------------------------------51
9.11 Use of Proceeds------------------------------------------------------------------------------------51
9.12 Certain Obligations Respecting Subsidiaries--------------------------------------------------------51
9.13 Additional Subsidiary Guarantors-------------------------------------------------------------------52
9.14 Subordinated Debt----------------------------------------------------------------------------------53
SECTION 10. EVENTS OF DEFAULT------------------------------------------------------------------------------53
SECTION 11. THE AGENTS-------------------------------------------------------------------------------------55
11.1 Appointment, Powers and Immunities.----------------------------------------------------------------55
11.2 Reliance by Agents---------------------------------------------------------------------------------56
11.3 Defaults-------------------------------------------------------------------------------------------57
11.4 Rights as a Lender---------------------------------------------------------------------------------57
11.5 Indemnification------------------------------------------------------------------------------------57
11.6 Non-Reliance on Agents and Other Lenders-----------------------------------------------------------58
11.7 Failure to Act-------------------------------------------------------------------------------------58
11.8 Resignation or Removal of Agents-------------------------------------------------------------------58
11.9 Consents under Other Loan Documents----------------------------------------------------------------59
SECTION 12. MISCELLANEOUS----------------------------------------------------------------------------------59
12.1 Waiver---------------------------------------------------------------------------------------------59
12.2 Notices--------------------------------------------------------------------------------------------59
12.3 Expenses, Etc.-------------------------------------------------------------------------------------60
12.4 Indemnification------------------------------------------------------------------------------------60
12.5 Amendments, Etc.-----------------------------------------------------------------------------------61
12.6 Successors and Assigns-----------------------------------------------------------------------------61
12.7 Assignments and Participations---------------------------------------------------------------------61
12.8 Survival-------------------------------------------------------------------------------------------63
12.9 Captions-------------------------------------------------------------------------------------------64
12.10 Counterparts---------------------------------------------------------------------------------------64
12.11 Governing Law; Submission to Jurisdiction----------------------------------------------------------64
12.12 Waiver of Jury Trial-------------------------------------------------------------------------------64
12.13 Confidentiality------------------------------------------------------------------------------------64
12.14 Compliance with Usury Laws-------------------------------------------------------------------------65
12.15 Replacement Note-----------------------------------------------------------------------------------66
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 Three-Year Facility Revolving Credit Note
Exhibit B Form of 364-Day Facility Revolving Credit Note
Exhibit C Form of Legal Opinion
Exhibit D Form of Compliance Certificate
Exhibit E Form of Joinder Agreement
Exhibit F Form of Notice of Assignment
Exhibit G Form of Pledge Agreement
Exhibit H Form of Notice of Borrowing
Exhibit I Form of Notice of Conversion/Continuation
Exhibit J Form of Notice of Prepayment
CREDIT AGREEMENT
CREDIT AGREEMENT ("Agreement" or "Credit Agreement") dated as of
November 12, 1999 among and between:
GENZYME CORPORATION, a corporation duly organized and validly existing
under the laws of The Commonwealth of Massachusetts (together with its permitted
successors and assigns, the "Company");
Each of the Subsidiaries of the Company identified under the caption
"SUBSIDIARY GUARANTORS" on the signature pages hereto or that may hereafter
become a "Subsidiary Guarantor" pursuant to Section 9.13 hereof (together with
its permitted successors and assigns, individually, a "SUBSIDIARY GUARANTOR"
and, collectively, the "SUBSIDIARY GUARANTORS" and, together with the Company,
the "OBLIGORS");
Each of the lenders identified under the caption "LENDERS" on the
signature pages hereto or that may hereafter become a "Lender" pursuant to
Section 12.7(b) hereof (together with its successors and permitted assigns,
individually, a "LENDER" and, collectively, the "Lenders"); and
FLEET NATIONAL BANK ("FLEET") as administrative agent for the Lenders
(in such capacity, together with the successors in such capacity, the
"ADMINISTRATIVE AGENT");
ABN AMRO BANK N.V. ("ABN AMRO") as syndication agent for the Lenders
(in such capacity, together with the successors in such capacity, the
"Syndication Agent");
MELLON BANK, N.A. ("MELLON") as documentation agent for the Lenders (in
such capacity, together with the successors in such capacity, the "Documentation
Agent" and together with the Administrative Agent and the Syndication Agent, the
"AGENT" or "AGENTS").The Company has requested that the Lenders extend credit to
the Company in an aggregate principal or stated amount not exceeding
$150,000,000; 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 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 for each Facility, the percentage set forth below opposite such period
under the caption "APPLICABLE COMMITMENT FEE RATE" and under the caption for the
respective Facility, and "APPLICABLE MARGIN" shall mean, for any period set
forth below for either Type of Loan set forth below, the percentage set forth
below opposite such period under the caption "APPLICABLE MARGIN" and under the
caption for such Type of Loan:
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Applicable Margin Applicable Commitment Fee Rate
Period Prime Rate LIBOR Loans Three-Year 364-Day Facility
Loans Facility
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Level I 0.000% 0.875% 0.250% 0.175%
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Level II 0.000% 0.750% 0.225% 0.150%
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Level III 0.000% 0.625% 0.200% 0.125%
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Level IV 0.000% 0.500% 0.175% 0.100%
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
PROVIDED, HOWEVER, that:
(a) subject to paragraph (b) below, at all times after November
15, 1999 that outstanding Loans exceed 33% of the aggregate
amount of the Commitments and as to which Levels I, II or III
apply, the Applicable Margin for LIBOR Loans shall equal the
sum of the percentage set forth above opposite such period
under the caption "LIBOR Loans," PLUS 0.125%;
(b) notwithstanding paragraph (a) above, at all times after
November 15, 1999 that outstanding Loans exceed 67% of the
aggregate amount of the Commitments AND as to which Levels I,
II or III apply, the Applicable Margin for LIBOR Loans shall
equal the sum of the percentage set forth above opposite such
period under the caption "LIBOR Loans," PLUS 0.250%; and
(c) at all times after November 15, 1999 that outstanding Loans
exceed 67% of the aggregate amount of the Commitments AND as
to which Level IV applies, the Applicable Margin for LIBOR
Loans shall equal 0.625%.
"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.
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"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.
"CAPITAL STOCK" shall mean capital stock of the Company that does not
rank prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of the
Company, to shares of capital stock of any other class of the Company.
"CASH EQUIVALENTS" shall mean any interest bearing investment of
Company and its Wholly Owned Subsidiaries which meets the definition of a "cash
equivalent" under GAAP (i.e., purchased with a remaining maturity of 90 days or
less). Such investments shall be at least investment grade (A1/P1 for commercial
paper, BBB or better for bonds and similar investments).
"CLOSING DATE" the date upon which the initial Loans hereunder are
made, provided, however, that such date shall be no earlier than the Prior
Credit Agreement Termination Date.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENTS" shall mean the Revolving Credit Commitments.
"COMPANY" shall have the meaning given in the preamble, and its
successors and permitted assigns hereunder.
"COMPLIANCE CERTIFICATE" shall mean the compliance certificate provided
for under Section 9.1(c)(ii) in substantially the form of EXHIBIT D.
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"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, PROVIDED, HOWEVER, that the Company may designate with respect to
one project for improvements to new leased headquarters and with respect to any
consecutive fiscal quarters that clause (ii) above shall consist instead of the
aggregate amount of Capital Expenditures made during such period in excess of
the lesser of (x) $12,000,000; or (y) the aggregate amount incurred by the
Company during those consecutive fiscal quarters for expenditures for such
project for improvements to new leased headquarters for the Company.
"CONSOLIDATED FUNDED DEBT" shall mean, at any time, the outstanding
balance of all Indebtedness in respect of borrowed money, Capital Lease
Obligations, letters of credit and trade acceptances for the Company and its
Consolidated Subsidiaries.
"CONSOLIDATED NET INCOME" shall mean, for any period, net income (or
loss) for the Company and its Consolidated Subsidiaries (determined in
accordance with GAAP), PROVIDED, HOWEVER, that Consolidated Net Income shall not
include amounts included in computing net income (or loss) in respect of (a) the
write-up of assets (other than Marketable Investments) after December 31, 1995
and (b) extraordinary and non-recurring gains or losses.
"CONSOLIDATED NET WORTH" shall mean, as at any date, the shareholder's
equity of the Company and its Consolidated Subsidiaries.
"CONSOLIDATED OPERATING INCOME" shall mean, for any period, the
Consolidated Net Income of the Company for such period, PROVIDED, HOWEVER, that,
to the extent the following items have been included in determining Consolidated
Net Income, they shall NOT be considered in computing Consolidated Operating
Income: provision for income taxes, interest expense, equity in the operating
results of unconsolidated subsidiaries (including partnerships, joint ventures
and Affiliates but only to the extent that such results represent noncash,
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nonoperating items) and other non-operating, non-cash items including, but not
limited to, write-off of acquired technology or acquired, in-process research
and development which, in accordance with GAAP, must be charged to income.
"CONSOLIDATED QUICK RATIO" shall mean, at any date, the ratio, for the
Company and its Consolidated Subsidiaries, of (a) the sum of (i) Unrestricted
Cash on such date PLUS (ii) Marketable Investments on such date PLUS (iii)
Accounts Receivable on such date to (b) Current Liabilities on such date.
"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.
"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
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"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.
"FACILITY" shall have the meaning given in Section 1.3 hereof.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, PROVIDED that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to the Administrative Agent on such Business
Day on such transactions as determined by the Administrative Agent.
"FUNDAMENTAL CHANGE" shall mean any of the following:
(i) a "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), becoming the "beneficial owner" (as defined in Rule 13d-3
under the exchange Act) of Voting Shares of the
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Company entitled to exercise more than 50% of the total voting power of all
outstanding Voting Shares of the Company (including any right to acquire Voting
Shares that are not then outstanding of which such person or group is deemed the
beneficial owner); or
(ii) a change in the Board of Directors in which the
individuals who constituted the Board of Directors at the beginning of the
two-year period immediately preceding such change (together with any other
director whose election by the Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a vote of at least
two-thirds of the directors then in office who either were directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
directors then in office; or
(iii) any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company, or any sale or transfer of all or substantially all of the assets of
the Company to another Person (other than (w) a merger which does not result in
any reclassification, conversion, exchange or cancellation of outstanding shares
of Capital Stock, (x) a merger which is effected solely to change the
jurisdiction of incorporation of the Company, (y) any consolidation with or
merger of the Company into a Wholly Owned Subsidiary of the Company, or any sale
or transfer by the Company of all or substantially all of its assets to one or
more of its Wholly Owned Subsidiaries, in any one transaction or a series of
transactions, provided, in any such case, that the resulting corporation or each
such Wholly Owned Subsidiary assumes the Obligations under the Loan Documents;
or (z) a merger or consolidation in which the holders of the Company's Voting
Shares immediately prior to such event continue to hold more than 50% of the
Voting Shares outstanding immediately after such event).
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those that, in accordance with the last sentence of
Section 1.2(a) hereof, are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"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.
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"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
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 mark applications and registrations; copyrights,
copyright applications and registrations; all licenses therefor; trade secrets
and all other proprietary information.
"INTEREST" shall mean, for any period, the sum, for the Company and its
Consolidated Subsidiaries, of the following: (a) all interest in respect of
Indebtedness (including, without limitation, the interest component of any
payments in respect of Capital Lease Obligations) accrued or capitalized during
such period (whether or not actually paid during such period); and (b) all other
amounts that would be accrued or capitalized during such period as "interest
expense" in accordance with GAAP.
"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
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may select as provided in Section 4.5 hereof, except that each Interest Period
that commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month; PROVIDED, that, notwithstanding the foregoing:
(i) (a) if any Interest Period for any 364-Day Facility
Revolving Credit Loan would otherwise end after the 364-Day Facility
Revolving Credit Commitment Termination Date, such Interest Period
shall not be available hereunder; and (b) if any Interest Period for
any Three-Year Facility Revolving Credit Loan would otherwise end after
the Three-Year Facility Revolving Credit Commitment Termination Date,
such Interest Period shall not be available hereunder;
(ii) each Interest Period that would otherwise end on a day
that is not a Business Day shall end on the next succeeding Business
Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and
(iii) notwithstanding clauses (i) and (ii) above, no Interest
Period for any LIBOR Loan shall have a duration of less than one month
and, if the Interest Period for any LIBOR Loan would otherwise be a
shorter period, such Loan shall not be available as a LIBOR Loan
hereunder for such period.
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale); (b) the making of any deposit with, or advance, loan or other extension
of credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit arising in connection with the sale of inventory or supplies
by such Person in the ordinary course of business so long as such advance, loan
or extension of credit is made on terms (including as to maturity) consistent
with those terms offered by the Company on the date hereof; and (c) the entering
into of any Guarantee of, or other contingent obligation with respect to,
Indebtedness or other liability of any other Person and (without duplication)
any amount committed to be advanced, lent or extended to such Person.
"LEVEL I PERIOD" shall mean any period, other than a Level II Period,
Level III Period, or Level IV Period.
"LEVEL II PERIOD" shall mean any period (a) from and including the
Business Day immediately following the Business Day on which a senior financial
officer of the Company shall have delivered to the Administrative Agent a
Compliance Certificate, together with the 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
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Company most recently ended, is greater than or equal to 1.0 to 1.0, but less
than 1.5 to 1.0, to but excluding the next succeeding Reporting Date and (b)
during which no Event of Default shall have occurred and be continuing.
"LEVEL III PERIOD" shall mean any period, other than a Level IV Period,
(a) from and including the Business Day immediately following the Business Day
on which a senior financial officer of the Company shall have delivered to the
Administrative Agent a Compliance Certificate, together with the related
financial statements referred to in Section 9.1 hereof, demonstrating in
reasonable detail that the Consolidated Debt Coverage Ratio, as of the last day
of the fiscal quarter of the Company most recently ended, is greater than or
equal to 1.5 to 1.0, to but excluding the next succeeding Reporting Date and (b)
during which no Event of Default shall have occurred and be continuing.
"LEVEL IV PERIOD" shall mean any period (a) from and including the
Business Day immediately following the Business Day on which a senior financial
officer of the Company shall have delivered to the Administrative Agent a
Compliance Certificate, together with the related financial statements referred
to in Section 9.1 hereof, demonstrating in reasonable detail that the
Consolidated Debt Coverage Ratio, as of the last day of the fiscal quarter of
the Company most recently ended, is greater than or equal to 1.5 to 1.0, AND for
which the Administrative Agent has received written confirmation from the
respective debt rating company that the Senior Unsecured Debt Rating of the
Company, as of the last day of the fiscal quarter of the Company most recently
ended, is at least A- with regard to Standard & Poor's, A3 with regard to
Moody's Investors Service, or A- with regard to Duff & Phelps Credit Rating Co.,
to but excluding the next succeeding Reporting Date and (b) during which no
Event of Default shall have occurred and be continuing.
"LIBO RATE" shall mean, with respect to any LIBOR Loan for any Interest
Period therefor, the simple average (rounded upwards, if necessary, to the
nearest 1/32 of 1%), as determined by the Administrative Agent, of the rates per
annum which appear on the Telerate page 3750 as of 11:00 a.m. London time on the
day that is two Business Days prior to the first day of such Interest Period
(provided, that if the rate described above does not appear on the Telerate
System on any applicable interest determination date, then at the rates per
annum quoted to the Administrative Agent at approximately 11:00 a.m. London time
(or as soon thereafter as practicable) on the date two Business Days prior to
the first day of such Interest Period for the offering by leading banks in the
London interbank market) of Dollar deposits having a term comparable to such
Interest Period and in an amount comparable to the principal amount of the LIBOR
Loan to be made by the Lenders for such Interest Period.
"LIBOR LOANS" shall mean loans bearing interest at the rate determined
under Section 3.2(b).
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any
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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.
"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.
"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.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof) and
shall include any syndicate or group which would be deemed to be a "person"
under Section 13(d)(3) of the Exchange Act.
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"PLEDGE AGREEMENT" shall mean the Pledge Agreement provided under
Section 7.1(f) as the same such shall be modified, amended and supplemented from
time to time.
"POST-DEFAULT RATE" shall mean a rate per annum equal to 4% PLUS the
interest rate for a Loan as provided in one of the lettered paragraphs of
Section 3.2 for a Level I Period.
"PRIME RATE" shall mean for any day the rate equal to the higher from
time to time of (A) the rate of interest announced by the Administrative Agent
at the Principal Office from time to time as its prime rate; and (B) a rate
equal to 1/2 of 1% per annum above the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as determined on any day by the
Administrative Agent.
"PRIME RATE LOANS" shall mean loans bearing interest at the rate
determined under Section 3.2(a).
"PRINCIPAL OFFICE" shall mean the principal office of Fleet, located on
the date hereof at One Federal Street, Boston, Massachusetts 02110, or such
other principal office of the Administrative Agent, after written notice by the
Administrative Agent.
"PRIOR CREDIT AGREEMENT TERMINATION DATE" shall mean the date specified
in the notice given by the Company to the Administrative Agent under that
certain Credit Agreement dated as of November 14, 1996 among the Company, the
Subsidiary Guarantors thereto, the Lenders thereto, Fleet, as Administrative
Agent, and BankBoston, N.A., as Documentation Agent (the "Prior Credit
Agreement") for the termination of the Revolving Credit Commitments (as defined
under the Prior Credit Agreement) under Sections 2.3 and 4.5 of the Prior Credit
Agreement, PROVIDED, HOWEVER, that the Prior Credit Agreement Termination Date
shall not be earlier than three (3) Business Days (as defined under the Prior
Credit Agreement) after the date of such notice.
"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.
"PURCHASE MONEY INDEBTEDNESS" shall mean Indebtedness incurred by a
Person to purchase machinery, equipment and other fixed assets, but only (i) if
the amount of such
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Indebtedness is not greater than 100% of the invoice amount of such purchased
machinery, equipment and other fixed assets, and (ii) such Indebtedness, if
secured, is secured by a security interest in only the purchased machinery,
equipment and other fixed assets and such Person has not granted a lien or
security interest to secure such Indebtedness on any other property of such
Person other than such purchased fixed assets; and (iii) such purchased fixed
assets do not constitute all or substantially all of the fixed assets of any
Person or any division of any Person.
"QUARTERLY DATES" shall mean the last Business Day of March, June,
September and December of each year, the first of which shall be the first such
day after the date hereof.
"REGULATIONS A, D, U AND X" shall mean, respectively, Regulations A, D,
U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"REPORTING DATE" shall mean the first to occur of (i) the Business Day
following the Business Day that the Administrative Agent receives a Compliance
Certificate of the Company providing the information required to determine
whether a period is a Level I Period, Level II Period, Level III Period or Level
IV Period and (ii) the first Business Day after the date on which the quarterly
or annual financial statement and Compliance Certificate is required to be
delivered to the Lenders pursuant to Section 9.1(a) or (b) and (c).
"REQUIRED LENDERS" shall mean Lenders having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have
terminated, Lenders holding at least 51% of the aggregate unpaid principal
amount of the Loans.
"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
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reference to which the LIBOR Loan is to be determined or (ii) any category of
extensions of credit or other assets that includes LIBOR Loans.
"REVOLVING CREDIT COMMITMENT" shall mean, for each Revolving Credit
Lender, the sum of such Lender's Three-Year Facility Revolving Credit Commitment
and 364-Day Facility Revolving Credit Commitment.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with respect to
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"REVOLVING CREDIT LENDERS" shall mean the Lenders from time to time
holding Revolving Credit Loans and/or Revolving Credit Commitments.
"REVOLVING CREDIT LOANS" shall mean the loans provided for in Section
2.1 hereof, which may be Prime Rate Loans and/or LIBOR Loans, and which may be
Three-Year Facility Revolving Credit Loans or 364-Day Facility Revolving Credit
Loans.
"REVOLVING CREDIT NOTES" shall mean the promissory notes provided for
by Section 2.7(a) hereof and all promissory notes delivered in substitution or
exchange for any thereof, in each case as the same shall be modified and
supplemented and in effect from time to time.
"SENIOR UNSECURED DEBT RATING" shall mean, for any date, the senior
unsecured debt rating, as rated by Standard & Poor's, Moody's Investor Service,
or Duff & Phelps Credit Rating Co. as of such date.
"SUBORDINATED DEBT" means (1) the Company's Convertible Note, issued
February 28, 1997, in the original aggregate principal amount of $13 million,
(2) the Company's Convertible Debentures, issued August 29, 1997, in the
original aggregate principal amount of $20 million, (3) the Company's
Convertible Notes, issued May 19, 1998, in the original aggregate principal
amount of $250 million, (4) unsecured Indebtedness of the Company or a
Subsidiary of the Company which, by its terms, is explicitly subordinated to the
prior payment in full of the Obligations to at least the following extent: (a)
no payments of principal of (or premium, if any) or interest on (or otherwise
due in respect of) such Indebtedness may be permitted for so long as any Default
or Event of Default in the payment of principal (or premium, if any) or interest
on the Loans exists; (b) in the event that any other Default or Event of Default
exists, upon notice by the Required Lenders, the Administrative Agent shall have
the right to give notice to the Company and the holders of such Indebtedness (or
agents therefor) of a payment blockage, and thereafter no payments of principal
of (or premium, if any) or interest on (or otherwise due in respect of) such
Indebtedness may be made for a period of 179 days from the date of such notice
unless, prior to such time, such Default or Event of Default is cured or waived;
PROVIDED, HOWEVER, that only one such notice of a payment blockage shall be
effective during any 365 consecutive day period and PROVIDED, FURTHER, that no
such other Default or Event of Default that existed upon first delivery of such
a notice shall be the basis for a subsequent notice of payment blockage unless
such Default or Event of Default shall have been cured or waived for a period of
180 consecutive days; (c) such Indebtedness may not (i) provide for payments of
principal of
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such Indebtedness at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance, retirement
or repurchase thereof by the Company or any Subsidiary (including any
redemption, retirement or repurchase which is contingent upon events or
circumstances but not including any exchange, conversion or payment with equity
or other Subordinated Debt), in each case prior to the Three-Year Facility
Revolving Credit Commitment Termination Date or (ii) permit redemption or other
retirement (including pursuant to an offer to purchase made by the Company or
any Subsidiary) of such other Indebtedness at the option of the holder thereof
prior to the Three-Year Facility Revolving Credit Commitment Termination Date
other than by conversion to Capital Stock or other equity of the Company or
other Subordinated Debt; PROVIDED, HOWEVER, in the case of either (i) or (ii),
such Indebtedness may provide for payment prior to the stated maturity of such
Indebtedness if any event which causes, or (with the giving of any notice or the
lapse of time or both) permits the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause such Indebtedness
to become due, or to be prepaid (whether by redemption, purchase, offer to
purchase or otherwise), prior to its stated maturity would also cause a Default
or an Event of Default (subject, however, to the limitations of clauses (a),
(b), (d) and (e) hereof); (d) the terms of such Indebtedness shall provide, to
the extent not prohibited in the Trust Indenture Act of 1939, as amended, that
no action to enforce the payment thereof or to exercise any remedy with respect
thereto shall occur unless the holders of such Indebtedness (or agents therefor)
give the Administrative Agent notice of such default and thereafter no such
enforcement action or exercise of remedies shall occur until 180 days shall have
elapsed from the date of such notice without the cure or waiver of such default,
provided that such standstill period shall continue for as long as a Default or
an Event of Default under clause (a) above exists; provided, further, however,
that the restrictions described in this clause (d) shall not apply if the event
which gives rise to the right to enforce such payment or exercise such remedy
triggers a Default or an Event of Default (subject, however, to the limitations
of clauses (a), (b), (c), and (e); and (e) such Indebtedness shall further
provide that, upon any bankruptcy, insolvency, liquidation or similar case or
proceeding relative to the Company or any of its Subsidiaries, or upon the
realization of any amounts by the holders of the Indebtedness (or the agents
therefor) resulting from an action under clause (d) above, the Obligations shall
first be paid in full to the Administrative Agent or such payment shall have
been provided for to the satisfaction of the Required Lenders before any payment
or distribution is made to or retained by the holders of the Indebtedness (or
the agents therefor), (5) any other Indebtedness of the Company or its
Subsidiaries, incurred after the date hereof, containing subordination terms,
which are specifically consented to in writing by the Required Lenders and (6)
any refinancing of Subordinated Debt incurred pursuant to subsections (1), (2),
(3), (4) or (5), in which (x) the principal amount of Subordinated Debt
resulting from such refinancing does not exceed the sum of (i) the principal
amount of the Subordinated Debt so refinanced plus (ii) customary fees and
expenses incurred in connection with such refinancing and (y) the Indebtedness
resulting from such refinancing satisfies the criteria for Subordinated Debt
hereunder.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
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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.
"364-DAY FACILITY REVOLVING CREDIT COMMITMENT" shall mean, for each
Revolving Credit Lender, the obligation of such Lender to make 364-Day Facility
Revolving Credit Loans in an aggregate principal amount at any one time
outstanding up to but not exceeding (a) in the case of any such Lender
originally party hereto, the sum of (i) the amount set opposite the name of such
Lender on the signature pages hereto under the caption "364-Day Facility
Revolving Credit Commitment" plus (ii) the aggregate amount of 364-Day Facility
Revolving Credit Commitments acquired by such Lender from other Lenders pursuant
to Section 12.7(b) hereof minus (iii) the aggregate amount of 364-Day Facility
Revolving Credit Commitments transferred by such Lender to one or more other
Lenders pursuant to Section 12.7(b) hereof and (b) in the case of any such
Lender that was not originally party hereto, (i) the aggregate amount of 364-Day
Facility Revolving Credit Commitments acquired by such Lender from other Lenders
pursuant to Section 12.7(b) hereof minus (ii) the aggregate amount of 364 Day
Facility Revolving Credit Commitments transferred by such Lender to one or more
other Lenders pursuant to Section 12.7(b) hereof, in each case, as such
obligation may be reduced from time to time pursuant to Section 2.3 hereof.
"364-DAY FACILITY REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall
be November 10, 2000.
"364-DAY FACILITY REVOLVING CREDIT LOANS" shall have the meaning given
in Section 2.1(b) hereof.
"THREE-YEAR FACILITY REVOLVING CREDIT COMMITMENT" shall mean, for
each Revolving Credit Lender, the obligation of such Lender to make
Three-Year Facility Revolving Credit Loans in an aggregate principal amount
at any one time outstanding up to but not exceeding (a) in the case of any
such Lender originally party hereto, the sum of (i) the amount set opposite
the name of such Lender on the signature pages hereto under the caption
"Three-Year Facility Revolving Credit Commitment" plus (ii) the aggregate
amount of Three-Year Facility Revolving Credit Commitments acquired by such
Lender from other Lenders pursuant to Section 12.7(b) hereof minus (iii) the
aggregate amount of Three-Year Facility Revolving Credit Commitments
transferred by such Lender to one or more other Lenders pursuant to Section
12.7(b) hereof and (b) in the case of any such Lender that was not originally
party hereto, (i) the aggregate amount of Three-Year Facility Revolving
Credit Commitments acquired by such Lender from other Lenders pursuant to
Section 12.7(b) hereof minus (ii) the aggregate amount of Three-Year
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Facility Revolving Credit Commitments transferred by such Lender to one or
more other Lenders pursuant to Section 12.7(b) hereof, in each case, as such
obligation may be reduced from time to time pursuant to Section 2.3 hereof.
"THREE-YEAR FACILITY REVOLVING CREDIT COMMITMENT TERMINATION DATE"
shall be November 12, 2002.
"THREE-YEAR FACILITY REVOLVING CREDIT LOANS" shall have the meaning
given in Section 2.1(a) hereof.
"TYPE" shall have the meaning given such term in Section 1.3 hereof.
"UNRESTRICTED CASH" shall mean cash and Cash Equivalents of the Company
and its Wholly Owned Subsidiaries that are readily available to Company and not
subject to any limitation or restriction on their use by the Company.
"U.S. PERSON" shall mean a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or
under any laws of the United States of America or any State thereof, or any
estate or trust that is subject to Federal income taxation regardless of the
source of its income.
"VOTING SHARES" shall mean all outstanding shares of any class or
series (however designated) of Capital Stock entitled to vote generally in the
election of members of the Board of Directors of the Company.
"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity to which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares or, in the case of a limited partnership, not more
than 1% of the aggregate partnership interests issued by such limited
partnership) are directly or indirectly owned or controlled by such Person or
one or more Wholly Owned Subsidiaries of such Person or by such Person and one
or more Wholly Owned Subsidiaries of such Person.
1.2. ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall (unless
otherwise disclosed to the Lenders in writing at the time of delivery
thereof in the manner described in subsection (b) below) be prepared,
in accordance with GAAP applied on a basis consistent with those used
in the preparation of the latest annual or quarterly financial
statements furnished to the Lenders hereunder (which, prior to the
delivery of the first annual or quarterly financial statements under
Section 9.1 hereof, shall mean the audited financial statements as at
December 31, 1998 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/FACILITIES. Loans hereunder are distinguished
by "Type" and "Facility". The "Type" of a Loan refers to whether such Loan is a
Prime Rate Loan or a LIBOR Loan. The "Facility" refers to whether such Loan is
made under the Three-Year Facility or the 364-Day Facility.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.1. REVOLVING CREDIT LOANS.
(a) THREE-YEAR FACILITY. Each Lender severally agrees, on the
terms and conditions of this Agreement, to make loans to the Company in
Dollars during the period from and including the Closing Date to but
not including the Three-Year Facility Revolving Credit Commitment
Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the Three-Year
Facility Revolving Credit Commitment of such Lender as in effect from
time to time (such Loans being herein called "THREE-YEAR FACILITY
REVOLVING CREDIT LOANS"); PROVIDED THAT in no event shall the
Three-Year Facility Revolving Credit Loans at any time outstanding
exceed the aggregate amount of the Three-Year Facility Revolving Credit
Commitments as in effect from time to time. Subject to the terms and
conditions of this Agreement, during such period the Company may
borrow, repay and reborrow the amount of the Three-Year Facility
Revolving Credit Commitments by means of Prime Rate Loans and LIBOR
Loans and may Convert Three-Year Facility Revolving Credit Loans of one
Type into Three-Year Facility Revolving Credit Loans of another Type
(as provided in Section 2.8 hereof) or Continue Three-Year Facility
Revolving Credit Loans of one Type as Three-Year Facility Revolving
Credit Loans of the same Type (as provided in Section 2.8 hereof).
(b) 364-DAY FACILITY. Each Lender severally agrees, on the terms
and conditions of this Agreement, to make loans to the Company in
Dollars during the period from and including the Closing Date to but
not including the 364-Day Facility Revolving Credit Commitment
Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the 364-Day Facility
Revolving Credit Commitment of such Lender as in effect from time to
time (such Loans being herein called "364-DAY FACILITY REVOLVING CREDIT
LOANS"); PROVIDED THAT in no event shall the 364-Day Facility Revolving
Credit Loans at any time outstanding exceed the aggregate amount of the
364-Day Facility Revolving Credit Commitments as in effect from time to
time. Subject to the terms and conditions of this Agreement, during
such period the Company may borrow, repay and reborrow the amount of
the 364-Day Facility Revolving Credit Commitments by means of Prime
Rate Loans and LIBOR Loans and may Convert 364-Day Facility Revolving
Credit Loans of one Type into 364-Day Facility Revolving Credit Loans
of another Type (as provided in Section 2.8 hereof).
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(c) INTEREST PERIODS. No more than five separate Interest Periods
in respect of LIBOR Loans may be outstanding at any one time.
(d) REVOLVING CREDIT COMMITMENTS. In no event shall the Revolving
Credit Loans at any time outstanding exceed the aggregate amount of the
Revolving Credit Commitments as in effect from time to time.
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 1510351 maintained by
the Administrative Agent with Fleet at the Principal Office, or, after written
notice by the Administrative Agent to the Lenders, at such other account
maintained by the Administrative Agent, in immediately available funds, for the
account of the Company. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Company by depositing the same, in immediately available funds, in an
account of the Company maintained with Fleet at the Principal Office designated
for the Company, or at such other account designated in writing by the
Administrative Agent.
2.3. CHANGES OF COMMITMENTS.
(a) (i) The aggregate amount of the 364-Day Facility Revolving
Credit Commitments shall be automatically reduced to zero on the
364-Day Facility Revolving Credit Commitment Termination Date; and (ii)
the aggregate amount of the Three-Year Facility Revolving Credit
Commitments shall be automatically reduced to zero on the Three-Year
Facility Revolving Credit Commitment Termination Date.
(b) The Company shall have the right at any time or from time to
time to reduce the aggregate unused amount of the Three-Year Facility
Revolving Credit Commitments and the 364-Day Facility Revolving Credit
Commitments (for which purpose the Revolving Credit Commitments shall
be deemed to be utilized by the amount of the Revolving Credit Loans);
PROVIDED that (x) the Company shall give notice of each such
termination or reduction as provided in Section 4.5 hereof, which
notice shall specify the amount of the total reduction, and the amount
of the reduction for each Facility, and (y) each partial reduction to
the aggregate Revolving Credit Commitments 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
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Date and on the date the respective Revolving Credit Commitments are terminated
or expire. Notwithstanding the foregoing, on any day during the period prior to
the Reporting Date occurring with respect to the quarter ended September 30,
1999, the Applicable Commitment Fee Rate shall be the percentage set forth in
the definition of Applicable Commitment Fee Rate opposite the designation "Level
III 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) (i) The Three-Year Facility Revolving Credit Loans made by
each Lender shall be evidenced by a single promissory note of the
Company substantially in the form of EXHIBIT A hereto, dated the date
hereof, payable to such Lender in a principal amount equal to the
amount of its Three-Year Facility Revolving Credit Commitment as
originally in effect and otherwise duly completed; and (ii) the 364-Day
Facility Revolving Credit Loans made by each Lender shall be evidenced
by a single promissory note of the Company substantially in the form of
EXHIBIT B hereto, dated the date hereof, payable to such Lender in a
principal amount equal to the amount of its 364-Day Facility Revolving
Credit Commitment as originally in effect and otherwise duly completed.
(b) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan made by each Lender to the
Company, and each payment made on account of the principal thereof,
shall be recorded by such Lender on its books and, prior to any
transfer of any Note evidencing the Loans held by it, endorsed by such
Lender on the schedule attached to such Note or any continuation
thereof; PROVIDED that the failure of such Lender to make any such
recordation or endorsement shall not affect the obligations of the
Company to make a payment when due of any amount owing hereunder or
under such Note in respect of such Loans.
(c) No Lender shall be entitled to have its Notes substituted or
exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all
or any portion of such Lender's relevant
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Commitment, Loans and Note pursuant to Section 12.7 hereof (and, if
requested by any Lender, the Company agrees to so exchange any Note).
2.8. OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF
LOANS. Subject to Section 4.4 hereof, the Company shall have the right to prepay
Loans or to Convert Loans of one Type into Loans of another Type (within the
same Facility) or Continue Loans of one Type as Loans of the same Type (within
the same Facility), at any time or from time to time, PROVIDED that:
(a) the Company shall give the Administrative Agent notice of
each such prepayment, Conversion or Continuation as provided in Section
4.5 hereof (and, upon the date specified in any such notice of
prepayment, the amount to be prepaid shall become due and payable
hereunder); and
(b) any prepayment or Conversion of LIBOR Loans on any day other
than the last day of an Interest Period for such Loans shall be subject
to the payment of any compensation payable pursuant to Section 5.5
hereof.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10 hereof, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Required Lenders shall) suspend the right of the Company to
Convert any Loan into a LIBOR Loan, or to make or Continue any Loan as a LIBOR
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or made or Continued, as the case may be,
as Prime Rate Loans.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.1. REPAYMENT OF LOANS. The Company hereby promises to pay to the
Administrative Agent for account of each Lender (a) the entire outstanding
principal amount of such Lender's 364-Day Facility Revolving Credit Loans, and
each 364-Day Facility Revolving Credit Loan shall mature, on the 364-Day
Facility Revolving Credit Commitment Termination Date; and (b) the entire
outstanding principal amount of such Lender's Three-Year Facility Revolving
Credit Loans, and each Three-Year Facility Revolving Credit Loan shall mature,
on the Three-Year Facility Revolving Credit Commitment Termination Date.
3.2. INTEREST. The Company hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Revolving Credit Loan made by such Lender for the period from and
including the date of such Loan to but 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
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(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 with respect to the quarter ended on September 30, 1999, the
Applicable Margin shall mean the respective percentages set forth in the
definition of "Applicable Margin" opposite the designation "Level III 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.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.1. PAYMENTS.
(a) Except to the extent otherwise provided in this Agreement,
all payments of principal, interest, and other amounts to be made by
the Company under this Agreement and the Notes, and, except to the
extent otherwise provided therein, all payments to be made by the
Obligors under any other Loan Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or
counterclaim, to the Administrative Agent at account number 58386988
maintained by the Company with the Administrative Agent, or at any
other account designated in writing by the Administrative Agent, at the
Principal Office, not later than 1:00 p.m. Boston, Massachusetts time
on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on
the next succeeding Business Day). The Obligors authorize the
Administrative Agent to debit such account for all such payments.
(b) If any such payment owing to any Lender is not made when due
(beyond any applicable grace period), such Lender may (but shall not be
obligated to)
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debit the amount of any such payment to any ordinary deposit account of
the Company with such Lender (with notice to the Company and the
Administrative Agent).
(c) The Company shall, at the time of making each payment under
this Agreement or any Note for account of any Lender, subject to
Section 4.2 specify to the Administrative Agent (which shall so notify
the intended recipient(s) thereof) the amount payable on the Loans, the
Facility to which such payment applies, or other amounts payable by the
Company hereunder to which such payment is to be applied (and in the
event that the Company fails to so specify, or if an Event of Default
has occurred and is continuing, the Administrative Agent may distribute
such payment to the Lenders for application in such manner as it,
subject to Section 4.2 hereof, may determine to be appropriate).
(d) Each payment received by the Administrative Agent under this
Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available
funds, for account of such Lender's Applicable Lending Office for the
Loan or other obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such
date shall be extended to the next succeeding Business Day, and
interest shall be payable for any principal so extended for the period
of such extension.
(f) Any payment of principal or interest on the Loans not paid
within ten (10) days after the date such payment is due shall be
subject to a late charge equal to five percent (5%) of the amount
overdue.
4.2. PRO RATA TREATMENT. Except to the extent otherwise provided
herein:
(a) each borrowing of Loans from the Lenders under Section 2.1
hereof shall be made from the Lenders, each payment of commitment fee
under Section 2.4 hereof in respect of Commitments shall be made for
account of the Lenders, and each termination or reduction of the amount
of the Commitments under Section 2.3 hereof shall be applied to the
respective Commitments of the Lenders, pro rata according to the
amounts of their respective Commitments under the respective Facility;
(b) except as otherwise provided in Section 5.4 hereof, LIBOR
Loans having the same Interest Period shall be allocated pro rata among
the Lenders according to the amounts of their respective Revolving
Credit Commitments under the respective Facility (in the case of the
making of Loans) or their respective Revolving Credit Loans under the
respective Facility (in the case of Conversions and Continuations of
Loans);
(c) each payment or prepayment of principal of Revolving Credit
Loans by the Company shall be made for account of the Lenders pro rata
in accordance with the
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respective unpaid principal amounts of the Loans under the respective
Facility held by them; and
(d) each payment of interest on Revolving Credit Loans by the
Company shall be made for account of the Lenders pro rata in accordance
with the amounts of interest on such Loans under the respective
Facility then due and payable to the respective Lenders.
4.3. COMPUTATIONS. Interest on Loans and commitment fees shall be
computed on the basis of a year of 360 days and actual days elapsed, including
the first day but excluding the last day occurring in the period for which
payable.
4.4. MINIMUM AMOUNTS. Except for Conversions or prepayments made
pursuant to Section 5.4 hereof, each borrowing, Conversion and partial
prepayment of principal of Loans shall be in an aggregate amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (borrowings,
Conversions or prepayments of or into Loans of different Types or, in the case
of LIBOR Loans, having different Interest Periods at the same time hereunder to
be deemed separate borrowings, Conversions and prepayments for purposes of the
foregoing, one for each Type or Interest Period).
4.5. CERTAIN NOTICES. Notices by the Company to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans, of the respective
Facility, and of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative Agent
not later than 10:00 a.m. Boston, Massachusetts time 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
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
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Each such notice of termination or reduction shall specify the respective
Facility and the amount of the Commitments to be terminated or reduced. Each
such notice of borrowing, Conversion, Continuation or optional prepayment shall
specify the amount to be borrowed, Converted, Continued or prepaid (subject to
Section 4.4 hereof) and Type and the respective Facility of each Loan to be
borrowed, Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day), and shall
be in the form, as applicable, of either EXHIBIT H hereto (for each notice of
borrowing), EXHIBIT I hereto (for each notice of Conversion or Continuation), or
EXHIBIT J hereto (for each notice of prepayment). Each such notice of the
duration of an Interest Period shall specify the Loans to which such Interest
Period is to relate. The Administrative Agent shall promptly notify the Lenders
of the contents of each such notice. In the event that the Company fails to
select a Facility or Type of Loan, or the duration of any Interest Period for
any LIBOR Loan, within the time period and otherwise as provided in this Section
4.5, such Loan: (i) if then outstanding as a LIBOR Loan, will be automatically
Converted into a Prime Rate Loan under the same Facility as such LIBOR Loan on
the last day of the then current Interest Period for such Loan, unless such
Facility was the 364-Day Facility and the 364-Day Facility Revolving Credit
Commitment Termination Date shall have occurred, in which case it will be made
as a Prime Rate Loan under the Three-Year Facility; or (ii) if not then
outstanding, will be made as, a Prime Rate Loan under the Three-Year Facility.
4.6. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT; DELINQUENT
LENDERS.
(a) Unless the Administrative Agent shall have been notified by a
Lender or the Company (the "PAYOR") prior to the date on which the
Payor is to make payment to the Administrative Agent of (in the case of
a Lender) the proceeds of a Loan to be made by such Lender hereunder or
(in the case of the Company) a payment to the Administrative Agent for
account of one or more of the Lenders hereunder (such payment being
herein called the "REQUIRED PAYMENT"), which notice shall be effective
upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may
assume that the Required Payment has been made and may, in reliance
upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date; and, if
the Payor has not in fact made the Required Payment to the
Administrative Agent and the Administrative Agent has made the payment
to the recipient(s), the recipient(s) of such payment shall, on demand,
repay to the Administrative Agent the amount so made available together
with interest thereon in respect of each day during the period
commencing on the date (the "ADVANCE DATE") such amount was so made
available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to the Federal
Funds Rate for such day and, if such recipient(s) shall fail promptly
to make such payment, the Administrative Agent shall be entitled to
recover such amount, on demand, from the Payor, together with interest
as aforesaid, PROVIDED that if neither the recipient(s) nor the Payor
shall return the Required Payment to the Administrative Agent within
three Business Days of the date of the notice from the Administrative
Agent, then the Payor and the recipient(s) shall each be obligated to
pay interest on the Required Payment as follows:
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(i) if the Required Payment shall represent a payment
to be made by the Company to the Lenders, the Company and the
recipient(s) shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required
Payment at the Post-Default Rate (without duplication of the
obligation of the Company under Section 3.2 hereof to pay
interest on the Required Payment at the Post-Default Rate), it
being understood that the return by the recipient(s) of the
Required Payment to the Administrative Agent shall not limit
such obligation of the Company under said Section 3.2 to pay
interest at the Post-Default Rate in respect of the Required
Payment; and
(ii) if the Required Payment shall represent proceeds
of a Loan to be made by the Lenders to the Company, the Payor
and the Company shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required
Payment pursuant to Section 3.2 hereof (without duplication of
the obligation of the Company under Section 3.2 hereof to pay
interest on the Required Payment), it being understood that
the return by the Company of the Required Payment to the
Administrative Agent shall not limit any claim the Company may
have against the Payor in respect of such Required Payment.
(b) If for any reason any Lender shall fail or refuse to abide
by its obligations under this Loan Agreement, including, without
limitation, its obligation to make available to Administrative Agent
its share of any Revolving Credit Loans, expenses, or setoff (a
"Delinquent Lender"), any non-delinquent Lender shall have the right,
but not the obligation, in its respective, sole and absolute
discretion, to acquire (x) for no cash consideration (PRO RATA, based
on the respective Commitments of those Lenders electing to exercise
such right) the Delinquent Lender's Commitment to fund future Revolving
Credit Loans; and (y) for consideration equal to the amount of the
outstanding Revolving Credit Loans from such Lender (PRO RATA, based on
the respective Commitments of those Lenders electing to exercise such
right) the Delinquent Lender's rights with respect to outstanding
Revolving Credit Loans (the rights purchased under clauses (x) and (y),
the "Purchased Rights"), but only if, in the aggregate, all of the
Delinquent Lender's rights with respect to outstanding Revolving Credit
Loans and Commitments are acquired hereunder by one or more
non-delinquent Lender(s). Upon any such purchase of the PRO RATA share
of any Delinquent Lender's Purchased Rights, the Delinquent Lender's
rights with respect to outstanding Revolving Credit Loans, Commitment,
share in future Revolving Credit Loans, and rights under the Loan
Documents with respect thereto shall terminate on the day of purchase
(other than indemnification rights that survive termination of the
Commitments under Section 12.8 hereof and rights to receive accrued but
unpaid interest and fees through the date of purchase), and the
Delinquent Lender shall promptly execute all documents reasonably
requested to surrender and transfer such interests (other than
indemnification rights that survive termination of the Commitments
under Section 12.8 hereof and rights to receive accrued but unpaid
interest and fees through the date of purchase), including, if so
requested, a Notice of Assignment (provided that the assignment fee in
connection with such Notice of Assignment shall not be charged).
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4.7. SHARING OF PAYMENTS, ETC.
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a
Lender may otherwise have, each Lender shall be entitled, at its option
(to the fullest extent permitted by law), to set off and apply any
deposit (general or special, time or demand, provisional or final), or
other indebtedness, held by it for the credit or account of such
Obligor at any of its offices, in Dollars or in any other currency,
against any principal of or interest on any of such Lender's Loans, or
any other amount payable to such Lender hereunder, that is not paid
when due (regardless of whether such deposit or other indebtedness are
then due to such Obligor and of the existence or adequacy of any
security therefor), in which case it shall promptly notify such Obligor
and the Administrative Agent thereof, PROVIDED that such Lender's
failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan owing to it or payment of any
other amount under this Agreement or any other Loan Document through
the exercise any right of set-off, banker's lien or counterclaim or
similar right or otherwise (other than from the Administrative Agent as
provided herein), and, as a result of such payment, such Lender shall
have received a greater percentage of the principal of or interest on
the Loans or such other amounts then due hereunder or thereunder by
such Obligor to such Lender than the percentage received by any other
Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such Lender,
direct interests in) the Loans or such other amounts, respectively,
owing to such other Lenders (or in interest due thereon, as the case
may be) in such amounts, and make such other adjustments from time to
time as shall be equitable, to the end that all the Lenders shall share
the benefit of such excess payment (net of any expenses that may be
incurred by such Lender in obtaining or preserving such excess payment)
pro rata in accordance with the unpaid principal of and/or interest on
the Loans or such other amounts, respectively, 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
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Lender shall, to the extent practicable, exercise its rights in respect
of such secured claim in a manner consistent with the rights of the
Lenders entitled under this Section 4.7 to share in the benefits of any
recovery on such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.1. ADDITIONAL COSTS.
(a) The Company shall pay directly to each Lender from time to
time such amounts as such Lender may determine to be necessary to
compensate such Lender for any costs that such Lender determines are
attributable to its making or maintaining of any LIBOR Loans or its
obligation to make any LIBOR Loans hereunder, or any reduction in any
amount receivable by such Lender hereunder in respect of any of such
Loans or such obligation (such increases in costs and reductions in
amounts receivable being herein called "ADDITIONAL COSTS"), resulting
from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable
Lending Office for any of such Loans) to any tax, duty or
other charge in respect of such Loans or its Note or changes
the basis of taxation of any amounts payable to such Lender
under this Agreement or its Note in respect of any of such
Loans (excluding any Taxes based on net income or in lieu of
net income imposed on such Lender by the jurisdiction in which
such Lender has its principal office or its Applicable Lending
Office); or
(ii) imposes or modifies any reserve, special deposit
or similar requirements (other than any thereof, including,
without limitation, the Reserve Requirement, utilized in the
determination of the Adjusted LIBO Rate or LIBO Rate for such
Loan) relating to any extensions of credit or other assets of,
or any deposits with or other liabilities of, such Lender
(including, without limitation, any of such Loans or any
deposits referred to in the definition of "LIBO Rate" in
Section 1.1 hereof), or any commitment of such Lender
(including, without limitation, the Commitments of such Lender
hereunder); or
(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
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the amount of a category of deposits or other liabilities of such
Lender that includes deposits by reference to which the interest rate
on LIBOR Loans is determined as provided in this Agreement or a
category of extensions of credit or other assets of such Lender that
includes LIBOR Loans or (ii) becomes subject to restrictions on the
amount of such a category of liabilities or assets that it may hold,
then, if such Lender so elects by notice to the Company (with a copy to
the Administrative Agent), the obligation of such Lender to make or
Continue, or to Convert Prime Rate Loans into, LIBOR Loans hereunder
shall be suspended until such Regulatory Change ceases to be in effect
(in which case the provisions of Section 5.4 hereof shall be
applicable).
(c) Without limiting the effect of the foregoing provisions of
this Section 5.1 (but without duplication), the Company shall pay
directly to each Lender from time to time on request such amounts as
such Lender may determine to be necessary to compensate such Lender
(or, without duplication, the bank holding company of which such Lender
is a subsidiary) for any costs that it determines are attributable to
the maintenance by such Lender (or any Applicable Lending Office or
such bank holding company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the force
of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority (i)
following any Regulatory Change or (ii) implementing any risk-based
capital guideline or other requirement (whether or not having the force
of law and whether or not the failure to comply therewith would be
unlawful) hereafter issued by any government or governmental or
supervisory authority implementing at the national level the Basle
Accord, of capital in respect of its Commitments or Loans (such
compensation to include, without limitation, an amount equal to any
reduction of the rate of return on assets or equity of such Lender (or
any Applicable Lending Office or such bank holding company) to a level
below that which such Lender (or any Applicable Lending Office or such
bank holding company) could have achieved but for such law, regulation,
interpretation, directive or request).
(d) Each Lender shall notify the Company of any event occurring
after the date hereof entitling such Lender to compensation under
paragraph (a) or (c) of this Section 5.1 as promptly as practicable,
but in any event within 45 days, after such Lender obtains actual
knowledge thereof; PROVIDED that if (i) any Lender fails to give 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
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Lender for compensation under paragraph (a) or (c) of this Section 5.1.
Determinations and allocations by any Lender for purposes of this
Section 5.1 of the effect of any Regulatory Change pursuant to
paragraph (a) or (b) of this Section 5.1, or of the effect of capital
maintained pursuant to paragraph (c) of this Section 5.1, on its costs
or rate of return of maintaining Loans or its obligation to make Loans,
or on amounts receivable by it in respect of Loans, and of the amounts
required to compensate such Lender under this Section 5.1, shall be
conclusive, PROVIDED that such determinations and allocations are made
on a reasonable basis.
5.2. LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any LIBO Rate for any
Interest Period:
(a) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the relevant
deposits referred to in the definition of "LIBO Rate" in Section 1.1
hereof are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for
LIBOR Loans as provided herein; or
(b) the Required Lenders determine which determination shall be
conclusive, and notify (or notifies, as the case may be) the
Administrative Agent that the relevant rates of interest referred to in
the definition of "LIBO Rate" in Section 1.1 hereof upon the basis of
which the rate of interest for LIBOR Loans for such Interest Period is
to be determined do not adequately and fairly reflect the cost to such
Lenders of making or maintaining LIBOR Loans for such Interest Period;
then the Administrative Agent shall give the Company and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional LIBOR Loans, to Continue LIBOR
Loans or to Convert Prime Rate Loans into LIBOR Loans, and the Company shall, on
the last day(s) of the then current Interest Period(s) for the outstanding LIBOR
Loans, either prepay such Loans or Convert such Loans into Prime Rate Loans in
accordance with Section 2.8 hereof.
5.3. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain LIBOR
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly 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
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LIBOR Loans (or, in the case of a Conversion required by Section 5.1(b) or 5.3
hereof, on such earlier date as is required pursuant to applicable law or
regulation and as such Lender may specify to the Company with a copy to the
Administrative Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 5.1 or 5.3 hereof that gave
rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Prime Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as Prime Rate
Loans, and all Prime Rate Loans of such Lender that would otherwise be
Converted into LIBOR Loans shall remain as Prime Rate Loans.
If such Lender gives notice to the Company with a copy to the Administrative
Agent that the circumstances specified in Section 5.1 or 5.3 hereof that gave
rise to the Conversion of such Lender's LIBOR Loans pursuant to this Section 5.4
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when LIBOR Loans made by other Lenders are
outstanding, such Lender's Prime Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
LIBOR Loans, to the extent necessary so that, after giving effect thereto, all
Loans held by the Lenders holding LIBOR Loans and by such Lender are held pro
rata (as to principal amounts, Types and Interest Periods) in accordance with
their respective Commitments.
5.5. COMPENSATION. The Company shall pay to the Administrative
agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion
of a LIBOR Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10
hereof) on a date other than the last day of the Interest Period for
such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 7 hereof to be satisfied) to borrow, Continue or Convert a
LIBOR Loan from such Lender on the date for such borrowing,
Continuation or Conversion specified in the relevant notice given
pursuant to Sections 2.2 and 4.5 hereof.
Without limiting the effect of the preceding sentence, such compensation shall,
if so requested, include an amount equal to the product of: (a) the amount so
paid, prepaid, Converted or not borrowed times (b) the excess of (i) the rate of
interest that otherwise would have accrued on the principal amount so paid,
prepaid, Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
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Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein (excluding, however, any Applicable Margin included therein) less
(ii) the rate of interest that otherwise would have accrued on such principal
amount at a rate per annum equal to the interest component of the amount such
Lender would have bid in the London interbank market (for Dollar deposits of
leading banks in amounts comparable to such principal amount and with maturities
comparable to such period (as reasonably determined by such Lender), which
product shall be multiplied by a fraction the numerator of which is the number
of days from the date of such occurrence to the last day of the applicable
Interest Period and the denominator of which is 360 days.
5.6. RATE SELECTION. If the Company has provided a notice of
borrowing under Section 4.5 hereof and any Lender determines (which
determination shall be conclusive and binding on the Company) that:
(a) deposits of the necessary amount for the selected Interest
Period are not available to such Lender in either the London interbank
market or the market for Federal funds transactions or, by reason of
circumstances affecting such markets, adequate and reasonable means do
not exist for ascertaining the LIBO Rate or the Federal Funds Rate for
such Interest Period; or
(b) the LIBO Rate or the Federal Funds Rate, as applicable, will
not adequately and fairly reflect the cost to such Lender of making or
funding a Loan for such Interest Period; or
(c) the making or funding of Loans has become impracticable as a
result of any event occurring after the date of this Agreement which,
in the opinion of such Lender, materially and adversely affects such
Loans or the London interbank market or the market for Federal funds
transactions;
then such Lender shall notify the Company of this condition and of the rate that
the Lender has selected to apply to such Loan pursuant to the following
sentence, provided, however, that the Company shall have the opportunity to
withdraw such notice of borrowing prior to the making of the Loan on the date
specified in the notice. If, after such notice from the Lender, the Company does
not withdraw such notice of borrowing prior to the making of the Loan, then any
notice of borrowing shall be deemed to be a notice to request a borrowing of
such Loan at such higher rate per annum, if any, which in such Lender's opinion
will adequately fairly compensate such Lender for the cost to such Lender of
making or funding such Loan plus the Applicable Margin under this Agreement; or
if such Lender determines that no such rate exists, then such Lender shall
promptly notify the Agent and shall not be obligated to fund the Loan.
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
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in full when due (whether at stated maturity, by acceleration or otherwise) of
the principal of and interest on the Loans made by the Lenders to, and the Notes
held by each Lender of, the Company and all other amounts from time to time
owing to the Lenders or any Agent by the Company under this Agreement and under
the Notes and by any Obligor under any of the other Loan Documents, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "GUARANTEED OBLIGATIONS"). The Subsidiary Guarantors
hereby further jointly and severally agree that if the Company shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of the Guaranteed Obligations, the Subsidiary Guarantors will promptly pay the
same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal.
6.2. OBLIGATIONS UNCONDITIONAL. The obligations of each Subsidiary
Guarantor under Section 6.1 hereof are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Company or any Obligor (other than such
Subsidiary Guarantor) under this Agreement, the Notes, the other Loan Documents
or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 6.2 that the obligations of the
Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Subsidiary Guarantors hereunder
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice
to the Subsidiary Guarantors, the time for any performance of or
compliance with any of the Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the
provisions of this Agreement or the Notes or any other agreement
or instrument referred to herein or therein shall be done or
omitted;
(iii) the maturity of any of the Guaranteed
Obligations shall be accelerated, or any of the Guaranteed
Obligations shall be modified, supplemented or amended in any
respect, or any right under this Agreement or the Notes or any
other agreement or instrument referred to herein or therein shall
be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
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(iv) any lien or security interest granted to, or in
favor of, any Agent or Agents or any Lender or Lenders as
security for any of the Guaranteed Obligations shall fail to be
perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that any
Agent or any Lender exhaust any right, power or remedy or proceed against the
Company under this Agreement or the Notes or the other Loan Documents or any
other agreement or instrument referred to herein or therein, or against any
other Person under any other guarantee of, or security for, any of the
Guaranteed Obligations.
6.3. REINSTATEMENT. The obligations of the Subsidiary Guarantors
under this Section 6 shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Company in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Subsidiary Guarantors jointly
and severally agree that they will indemnify each Agent and each Lender on
demand for all reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by such Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
6.4. SUBROGATION. Each Subsidiary Guarantor hereby agrees that,
until the payment and satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under this
Agreement, such Subsidiary Guarantor shall not exercise any right or remedy
arising by reason of any performance by such Subsidiary Guarantor of its
guarantee in Section 6.1 hereof, whether by subrogation or otherwise, against
the Company or any other Obligor or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations.
6.5. REMEDIES. The Subsidiary Guarantors jointly and severally
agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Company under this Agreement and the Notes may be declared to
be forthwith due and payable as provided in Section 10 hereof (and shall be
deemed to have become automatically due and payable in the circumstances
provided in said Section 10(g) or (h)) for purposes of Section 6.1 hereof
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Company and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Company) shall forthwith
become due and payable by the Subsidiary Guarantors for purposes of said Section
6.1.
6.6. CONTINUING GUARANTEE. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
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6.7. RIGHTS OF CONTRIBUTION. The Subsidiary Guarantors hereby
agree, as between themselves, that if any Subsidiary Guarantor (an "EXCESS
FUNDING GUARANTOR") shall pay Guaranteed Obligations in excess of such Excess
Funding Guarantor's Pro Rata Share (as defined below) of such Guaranteed
Obligations (such excess payment, an "EXCESS PAYMENT"), each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence hereof), pay to such Excess Funding Guarantor an amount equal to
such other Subsidiary Guarantor's Pro Rata Share (such Pro Rata Share, for the
purpose of determining the amount due to the Excess Funding Guarantor under this
Section 6.7, to be determined without reference to the Excess Funding Guarantor)
of such Excess Payment. The payment obligation of each other Subsidiary
Guarantor to an Excess Funding Guarantor under this Section 6.7 shall be
subordinate and subject in right of payment to the prior payment in full of the
Obligations, and such Excess Funding Guarantor shall not exercise any right or
remedy with respect to such Excess Payment until payment and satisfaction in
full of the Obligations. For the purposes hereof, "PRO RATA SHARE" shall mean,
with respect to each Subsidiary Guarantor, the ratio (expressed as a percentage)
of (a) the net worth of such Subsidiary Guarantor (determined on an
unconsolidated basis in accordance with GAAP as of the last day of the fiscal
quarter of such Subsidiary Guarantor most recently ended prior to the date such
Person became a Subsidiary Guarantor) to (b) the sum of the amounts determined
pursuant to clause (a) for all of the Subsidiary Guarantors.
6.8. LIMITATION ON GUARANTEE OBLIGATIONS. In any action or
proceeding involving any state corporate or partnership law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.1 hereof would otherwise, taking into account the provisions of
Section 6.7 hereof, be held or determined to be void, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under said Section 6.1, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, any Lender, any Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
Section 7. CONDITIONS PRECEDENT.
7.1 INITIAL LOAN. The obligation of any Lender to make its initial
Loan hereunder is subject to the satisfaction of each of the following
conditions (with each document being satisfactory to each Agent and each Lender
in form and substance):
(a) CORPORATE DOCUMENTS. The receipt by the Administrative Agent
of (i) certified copies of the charter and by-laws (or equivalent
constitutional documents) of each Obligor and 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,
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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 AND PRIOR CREDIT AGREEMENT TERMINATION DATE.
The receipt by the Administrative Agent of (i) the notice of the Prior
Credit Agreement Termination Date; and (ii) the notice of borrowing
required by Sections 2.2 and 4.5 hereof in the form of EXHIBIT H, which
notice of borrowing shall specify a borrowing date that is not earlier
than the Prior Credit Agreement Termination Date.
(d) OPINIONS OF COUNSEL TO THE OBLIGORS. The receipt by the
Administrative Agent of an opinion, dated the Closing Date, of Palmer &
Dodge LLP, special counsel to the Obligors, substantially in the form
of EXHIBIT C hereto and covering such other matters as any Agent or any
Lender may reasonably request.
(e) NOTES. The receipt by the Administrative Agent of Notes, duly
completed and executed for each Lender.
(f) PLEDGE AGREEMENT. The receipt by the Administrative Agent of
the Pledge Agreement in the form of EXHIBIT G, together with the
certificates for all shares of capital stock of Genzyme Securities
Corporation pledged thereunder and undated executed stock powers.
(g) SEARCH RESULTS. The receipt by the Administrative Agent of
results satisfactory to the Administrative Agent of UCC, Federal and
state tax lien and judgment searches conducted by a search firm
acceptable to the Administrative Agent with respect to each Obligor in
each jurisdiction specified by the Administrative Agent.
(h) INSURANCE. The receipt by the Administrative Agent of (i)
certificates of insurance evidencing the existence of all insurance
required to be maintained pursuant to Section 9.4 hereof and (ii) a
certificate of a senior financial officer of the Company stating that
the insurance obtained by it in accordance with the requirements of
said Section 9.4 is in full force and effect and that all premiums then
due and payable thereon have been paid.
(i) REPAYMENT OF EXISTING INDEBTEDNESS. Evidence that the
principal of and interest on, and all other amounts owing in respect
of, the Indebtedness (including, without limitation, any contingent or
other amounts payable in respect of letters of credit) indicated on
SCHEDULE 7.1 hereto that is to be repaid on the Closing Date shall have
been
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(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.
(k) CONSENTS, ETC. The receipt by the Administrative Agent of a
certificate of a senior officer of the Company to the effect that, on
and as of the Closing Date, all necessary governmental and third party
consents and approvals in connection with the transactions contemplated
by this Agreement have been obtained and remain in effect and that all
applicable waiting periods have expired.
(l) PAYMENT OF FEES. The payment by the Company of such fees as
the Company shall have agreed to pay or deliver to any Lender or any
Agent in connection herewith, including, without limitation, any and
all arrangement and administrative, syndication, or documentation fees
due to any Agent, up-front fees due to the Lenders, and the reasonable
fees and expenses of Brown, Rudnick, Freed & Gesmer, special counsel to
Fleet in connection with the negotiation, preparation, execution and
delivery of this Agreement and the Notes and the other Loan Documents
and the making of the extensions of credit hereunder (to the extent
that statements for such fees and expenses have been delivered to the
Company).
(m) 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
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borrowing or other extension of credit hereunder is subject to the further
conditions precedent that, both immediately prior to such borrowing or other
extension of credit and also after giving effect thereto and to the intended use
thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in
Section 8 hereof, and by each Obligor in each of the other Loan
Documents to which it is a party, shall be true and complete in all
material respects on and as of the date of the making of such Loan or
other extension of credit with the same force and effect as if made on
and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date).
Each notice of borrowing by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the preceding sentence
(both as of the date of such notice or request and, unless the Company otherwise
notifies the Administrative Agent prior to the date of such borrowing or
issuance, as of the date of such borrowing or issuance).
Section 8. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Agents and the Lenders that:
8.1. EXISTENCE. Each of the Company and the Material Subsidiaries:
(a) is a corporation, partnership, limited liability company or other entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate, partnership
or other power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and carry on its business as
now being or as proposed to be conducted, except to the extent that the failure
to have any such license, authorization, consent or approval would not
reasonably be expected (either individually or in the aggregate) to have a
Material Adverse Effect; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business 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, 1998 and the related Consolidated statements of earnings,
shareholders' equity and cash flows of the Company for the fiscal year ended on
said date, with the report thereon of PriceWaterhouseCoopers, and the unaudited
Consolidated balance sheet of the Company as at June 30, 1999, 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,
1999, 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-
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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, 1999, 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 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
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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.
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
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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.
8.14. SUBSIDIARIES, ETC. Set forth on SCHEDULE 8.14 hereto is a list
of all of the Subsidiaries of the Company as of the date hereof complete and
correct in all material respects, together with, for each such Subsidiary, (i)
the jurisdiction of organization of such Subsidiary, (ii) each Person holding
ownership interests in such Subsidiary 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
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Section 9.6 hereof) to the material Properties shown to be owned in the audited
financial statements referred to in Section 8.2 hereof (other than properties
disposed of in the ordinary course of business or otherwise permitted to be
disposed of pursuant to Section 9.5 hereof). The Company and its Subsidiaries
own and have on the date hereof good and marketable or merchantable title to, or
lease, and enjoy on the date hereof peaceful and undisturbed possession of, all
material Properties (subject only to Liens permitted by Section 9.6 hereof) that
are necessary for the operation and conduct of its businesses.
8.16. INTELLECTUAL PROPERTY RIGHTS. Except with respect to events or
matters which are not reasonably expected to have a Material Adverse Effect, (a)
the Company and its Subsidiaries own or license all material Intellectual
Property necessary for the conduct of its business as presently conducted; (b)
all material agreements pursuant to which the Company and its Subsidiaries
license the manufacture, marketing or sale of products employing its
Intellectual Property are in full force and effect; (c) no claims, demands,
suits, or proceedings are pending or, to the knowledge of the Company and its
Subsidiaries, threatened which impair their rights in any material Intellectual
Property used in the conduct of their business or any material agreement
relating thereto; and (d) the Company and its Subsidiaries have not infringed
(without any license therefor) any Intellectual Property of any other Person,
and the present conduct of the Company and its Subsidiaries' business does not
infringe any such rights in any way which would have a Material Adverse Effect.
8.17. YEAR 2000 COMPLIANCE. The Company has taken all reasonably
necessary action to access and evaluate all of the hardware, software, embedded
microchips and other processing capabilities it uses and which is used in the
products it sells, directly or indirectly, and has made inquiry of the Company's
and its Subsidiaries' material suppliers and vendors, to be able to ensure that
the Company and its Subsidiaries and each product they sell will be able to
function accurately and without interruption using date information before,
during and after January 1, 2000 sufficiently so as not to cause a Material
Adverse Effect. The Company and its Subsidiaries have corrected, on or before
September 30, 1999, all such problems that are reasonably likely to have a
Material Adverse Effect, and the cost of any reprogramming and testing has not
and is not reasonably likely to have a Material Adverse Effect.
8.18. TRUE AND COMPLETE DISCLOSURE. The reports, financial
statements, exhibits, schedules and other documents furnished by or on behalf of
the Obligors to the Administrative Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Loan
Documents or included herein or therein or delivered pursuant hereto or thereto,
when taken as a whole do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by the
Company and its Subsidiaries to the Administrative Agent and the Lenders in
connection with this Agreement and the other Loan Documents and the transactions
contemplated hereby and thereby will be true, complete and accurate in every
material respect, or (in the case of projections) based on reasonable estimates,
on the date as of which such information is stated or certified. There is no
fact known to the Company that could reasonably be expected to have a Material
Adverse Effect that has not been disclosed herein, in the other
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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 D hereto;
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(d) promptly upon their becoming available, copies of all (i)
regular, periodic and special reports that the Company shall have filed
with the Securities and Exchange Commission (or any governmental agency
substituted therefor) pursuant to the Securities Exchange Act of 1934,
as amended (ii) financial statements, reports, notices or proxy or
other statements sent to shareholders of the Company, 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) (i) will preserve and maintain its legal existence; (ii) will
preserve and maintain and all of its material rights, privileges,
licenses and franchises; and (iii) will cause each of its Material
Subsidiaries to, preserve and maintain its legal existence and all
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of its material rights, privileges, licenses and franchises (PROVIDED
that nothing in this Section 9.3 shall prohibit any transaction
expressly permitted under Section 9.5 hereof);
(b) will, and will cause each of its Subsidiaries to, comply with
the requirements of all applicable laws, rules, regulations and orders
of governmental or regulatory authorities if failure to comply with
such requirements could reasonably be expected (either individually or
in the aggregate) to have a Material Adverse Effect;
(c) will, and will cause each of its Subsidiaries to, pay and
discharge all taxes, assessments and governmental charges or levies
imposed on it or on its income or profits or on any of its Property
prior to the date on which penalties attach thereto, except for any
such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which
adequate reserves are being maintained in accordance with 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 or rights as
a holder of indebtedness of any Person that is engaged in a line
of business permitted to the Company under Section 9.10 or merge
any Person that is in a line or lines of business permitted under
Section 9.10 with the Company or a Subsidiary or the Company or a
Subsidiary with any such Person (provided that the conditions in
the provisos in Section 9.5(d)(i) are satisfied with respect to
such merger) provided that at the time of the consummation of any
such transaction and after giving effect thereto, the Company
shall be in compliance with the covenants in Section 9.9 as of
the end of the most recent fiscal quarter or annual period of the
Company and the
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transaction will not be reasonably likely to result in the
noncompliance with such financial covenants;
(iii) the Company or any of its Subsidiaries may
purchase inventory and other Property to be sold or used in the
ordinary course of business, make Investments permitted by
Section 9.8 hereof and make Capital Expenditures in the ordinary
course of its business;
(iv) the Company or any Subsidiary of the Company may
convey, sell, lease, 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
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respect thereto are maintained or the books of the Company or the
affected Subsidiaries, as the case may be, in accordance with GAAP;
(d) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(e) (i) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business and (ii) Liens
arising from a seller's title retention provisions with respect to
goods or services acquired in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or imperfections in title thereto
that, in the aggregate, are not material in amount, and that do not in
any case materially detract from the value of the Property subject
thereto or interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries;
(g) Liens on Property of any Person that becomes a Subsidiary of
the Company after the date hereof, PROVIDED that such Liens are in
existence at the time such Person becomes a Subsidiary of the Company
and were not created in anticipation thereof;
(h) Liens upon fixed or capital assets to secure purchase money
Indebtedness or Capital Lease Obligations of the Company or a
Subsidiary; PROVIDED, THAT, (i) such Lien does not extend to or cover
any other Property of the Company or such Subsidiary and (ii) such Lien
does not secure any Indebtedness other than the Indebtedness so
incurred;
(i) 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.
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9.7. INDEBTEDNESS. The Company will not, nor will it permit any of
its Subsidiaries to, create, incur, assume, or suffer to exist any Indebtedness
except:
(a) Indebtedness to the Lenders hereunder and under the other
Loan Documents;
(b) Indebtedness outstanding on the date hereof including
Indebtedness in excess of $1,000,000 that is required to be listed on
SCHEDULE 8.12 hereto (excluding however, the Indebtedness to be repaid
with the proceeds of Loans hereunder, as indicated on said SCHEDULE
8.12, from and after the date of such repayment);
(c) Indebtedness of (i) Subsidiaries of the Company to the
Company, (ii) the Company to any of its Subsidiaries or (iii) of
Subsidiaries to Subsidiaries, PROVIDED, HOWEVER, that any Indebtedness
of the Company to any of its Subsidiaries (other than the Subsidiary
Guarantors and Genzyme Securities Corporation), and any Indebtedness of
any Subsidiary Guarantor or Genzyme Securities Corporation to any of
the Company's other Subsidiaries (other than the Subsidiary Guarantors
and Genzyme Securities Corporation), shall be subject to a
subordination agreement unconditionally providing that: (x) such
Indebtedness is subordinate and subject in right of payment to the
prior payment in full of the Obligations; (y) that no payments shall be
made on such Indebtedness, nor shall the holder of such Indebtedness
exercise any right or remedy with respect to such Indebtedness, until
payment and satisfaction in full of the Obligations; and (z)
notwithstanding clauses (x) and (y), payments may be made on account of
such Indebtedness UNLESS there has occurred an Event of Default that is
continuing or such payment(s) would result in an Event of Default;
(d) Indebtedness constituting Purchase Money Indebtedness or
Capital Lease Obligations incurred in the ordinary course of Company's
or such Subsidiaries' business;
(e) Indebtedness under or in respect of currency exchange
contracts or interest rate protection obligations incurred in the
ordinary course of business;
(f) Indebtedness in connection with performance bonds or letters
of credit obtained and issued in the ordinary course of business,
including letters of credit related to insurance associated with claims
for work-related injuries;
(g) Subordinated Debt;
(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 $50,000,000 at any one time outstanding.
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9.8. INVESTMENTS. The Company will not, nor will it permit any of
its Subsidiaries to, make or permit to remain outstanding any Investments except
Investments made in the ordinary course of business of the Company or its
Subsidiaries or that would be permitted under the terms of Section 9.5.
9.9. FINANCIAL COVENANTS.
(a) CONSOLIDATED QUICK RATIO. The Company will not permit the
Consolidated Quick Ratio on the last day of any fiscal quarter of the
Company to be less than 1.50 to 1.00 (commencing with the fiscal
quarter of the Company ending in September, 1999).
(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
September, 1999) to be less than 3.00 to 1.00.
(c) CONSOLIDATED LEVERAGE RATIO. The Company will not permit, as
of the last day of any fiscal quarter (commencing with the fiscal
quarter of the Company ending in September, 1999), the ratio of (a)
Consolidated Funded Debt less all Unrestricted Cash and Marketable
Investments of the Company and its Consolidated Subsidiaries in excess
of $125,000,000; to (b) Consolidated EBITDA of the Company for the
period of four consecutive fiscal quarters then ended to exceed 2.00 to
1.00.
9.10. LINES OF BUSINESS. The Company will not, and will not permit
any of its Subsidiaries to, engage to any significant extent in any line or
lines of business activity other than the biotechnology, pharmaceutical, medical
devices, therapeutic products, medical products, and medical services and
diagnostic services businesses.
9.11. USE OF PROCEEDS. The Company will use the proceeds of the
Loans hereunder to finance transactions permitted under Section 9.5 and to
finance the ongoing working capital and other general corporate needs of the
Company and its Subsidiaries (in each case, in compliance with all applicable
legal and regulatory requirements, including, without limitation, Regulations U
and X and the Securities Act of 1933 and the Securities Exchange Act 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.
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(b) The Company will not, and will not permit any of its Material
Subsidiaries to, enter into, after the Closing Date, any indenture,
agreement, instrument or other arrangement (other than entering into
one or more of the Loan Documents) that, directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the
incurrence or payment of Indebtedness, the granting of Liens, the
declaration or payment of dividends, the making of loans, advances or
other Investments or the sale, assignment, transfer or other
disposition of Property, other than (i) any indenture, agreement,
instrument or other arrangement relating to Indebtedness of a
Subsidiary of the Company acquired by the Company after the date hereof
which was entered into by such Subsidiary prior to the date on which
the Company acquired such Subsidiary (and which was not entered into in
contemplation of such acquisition), provided that the terms and
conditions thereof only relate to such Subsidiary and not the Company
or its other Subsidiaries and are no more restrictive than the terms
and conditions hereof, (ii) any indenture, agreement, instrument or
other arrangement effecting the refinancing of any Indebtedness
referred to in clause (i) above so long as the prohibitions and
restrictions contained in the documents relating to such refinancing
are as a whole no less favorable to the Lenders or the obligor in
respect of such Indebtedness than the prohibitions and restrictions
contained in the documents relating to the Indebtedness being
refinanced, (iii) customary non-assignment provisions in leases
governing leasehold interests to the extent such provisions restrict
transfer of rights under the related lease, (iv) restrictions on the
transfer of or the granting of Liens on Property of the Company or any
of its Subsidiaries subject to a Lien expressly permitted by Section
9.6 hereof securing Indebtedness expressly permitted by Section 9.7
hereof to the extent such restrictions are contained in documents
evidencing or relating to such Indebtedness and (v) restrictions on the
transfer of Property of the Company or any of its Subsidiaries that is
the subject of a disposition expressly permitted by Section 9.5 hereof
to the extent such restrictions are contained in the documents relating
to such disposition.
9.13. ADDITIONAL SUBSIDIARY GUARANTORS. In the event that the
Company shall, after the date of this Agreement, hold or acquire any Material
Subsidiary that is not already a Subsidiary Guarantor, the Company will, and
will cause each of its other Subsidiaries to, cause such Material Subsidiary (a)
to execute and deliver to each Agent and each Lender a joinder agreement in the
form of EXHIBIT E hereto, (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.
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9.14. SUBORDINATED DEBT. The Company shall not, and shall cause its
Subsidiaries to not, make any prepayments of principal, any non-mandatory
payments of principal, or any other payments of principal other than regularly
scheduled payments of principal on account of Subordinated Debt, other than by
conversion to Capital Stock or other equity of the Company or other Subordinated
Debt.
Section 10. EVENTS OF DEFAULT. If one or more of the following events (herein
called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Company shall default in the payment when due (whether at
stated maturity or upon mandatory or optional prepayment) of any
principal of or interest on any Loan, provided, however, that as to the
non-payment of interest, there shall be a one (1) Business Day grace
period without any requirement of notice, but the Company shall not be
entitled to such grace period more than once in any consecutive
twelve-month period; or
(b) The Company shall default in the payment of any fee or any
other amount (other than principal of or interest on any Loan) payable
by it hereunder or under any other Loan Document and such default shall
continue unremedied for a period of five (5) days after notice to the
Company from the Administrative Agent; or
(c) The Company or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness aggregating to at least $5,000,000 (after the expiration
of any grace period originally provided for); or any event specified in
any note, agreement, indenture or other document evidencing or relating
to any such Indebtedness shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both)
to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness
to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated
maturity; or
(d) Any representation, warranty or certification made or deemed
made herein or in any other Loan Document (or in any modification or
supplement hereto or thereto) by any Obligor, or any certificate
furnished to any Lender or any Agent pursuant to the provisions hereof
or thereof, shall prove to have been false or misleading as of the time
made or furnished in any material respect; or
(e) (i) The Company shall default in the performance of any of
its obligations under any of Sections 9.1(c), 9.1 (e), 9.1(f), 9.1(g),
9.3(a)(i), 9.3(f), 9.5, 9.6, 9.7, 9.9, 9.10, 9.11, 9.12, 9.13, and 9.14
hereof; or
(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
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thereof to the Company by the Administrative Agent or any Lender
(through the Administrative Agent); or
(f) The Company or any of its Material Subsidiaries shall admit
in writing its inability to, or be generally unable to, pay its debts
as such debts become due; or
(g) The Company or any of its Material Subsidiaries shall (i)
apply for or consent to the appointment of, or the taking of possession
by, a receiver, custodian, trustee, examiner or liquidator of itself or
of all or a substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary
case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to convert in a timely
and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, (vi) cause
or be subject to any event with respect to it which, under the
applicable laws of any foreign jurisdiction, has an analogous effect to
any of the events specified in the foregoing clauses (i) to (v) or
(vii) take any corporate action for the purpose of effecting any of the
foregoing; or
(h) A proceeding or case shall be commenced, without the
application or consent of the Company or any of its Material
Subsidiaries, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of the
Company or such Material Subsidiary or of all or any substantial part
of its Property, (iii) similar relief in respect of the Company or such
Material Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and
such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days or (iv) relief with respect to it which, under the applicable laws
of any foreign jurisdiction, has an analogous effect to any of the
actions specified in foregoing clauses (i) to (iii); or an order for
relief against the Company or such Material Subsidiary shall be entered
in an involuntary case under the Bankruptcy Code; or
(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 strength rating of
AA or better from Moody's) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against
the Company or any of its Subsidiaries and the same shall not be
discharged (or provision shall not be made for such discharge) or
vacated, or a stay of execution thereof shall not be procured, within
30 days from the date of entry thereof and the Company or the relevant
Subsidiary shall not, within said period of 30 days, or such longer
period during which execution of the
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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); or
(l) Any Fundamental Change shall occur;
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 the Administrative Agent to act as its agent hereunder
and under the other Loan Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Each Agent (which term as used in this sentence and in
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Section 11.5 and the first sentence of Section 11.6 hereof shall include
reference to their respective affiliates and their own and their affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be
a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, presentations or warranties contained in this Agreement or
in any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Loan Document or any other document
referred to or provided for herein or therein or for any failure by the
Company or any other Person to perform any of its obligations hereunder
or thereunder;
(c) shall not, except to the extent expressly instructed by the
Required Lenders, be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document; and
(d) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other Loan Document or under any
other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own
gross negligence, bad faith or willful misconduct.
Each Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith. Each Agent may deem and treat the payee of a Note
as the holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent, together with the consent of the Company to such assignment or transfer
(to the extent provided in Section 12.7(b) hereof). The identification of ABN
AMRO as Syndication Agent and the identification of Mellon Bank as Documentation
Agent hereunder shall not create any rights in favor of such parties in such
capacities, nor subject them to any duties or obligations, in such capacity.
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. Except with respect to Events of Default consisting
of the failure to make regularly scheduled interest payments hereunder, the
failure to repay all 364-Day Facility Revolving Credit Loans on the 364-Day
Facility Revolving Credit Commitment Termination Date, or the failure to pay all
Three-Year Facility Revolving Credit Loans on the Three-Year Facility Revolving
Credit Commitment Termination Date, no Agent shall be deemed to have knowledge
or notice of the occurrence of a Default unless the Administrative Agent has
received notice from a Lender or the Company specifying such Default and stating
that such notice is a "Notice of Default". In the event that the Administrative
Agent receives such a notice of the occurrence of a Default, the Administrative
Agent shall give prompt notice thereof to the other Agents and the Lenders. The
Administrative Agent shall (subject to Sections 11.1 and 11.7 hereof) take such
action with respect to such Default as shall be directed by the Required
Lenders, PROVIDED that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may but shall not be
obligated to take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the other
Agents and the Lenders except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the consent or
upon the authorization of the Required Lenders or all of the Lenders.
11.4. RIGHTS AS A LENDER. With respect to its Commitments and the
Loans made by it, Fleet (and any successor acting as Administrative Agent) and
ABN AMRO (and any successor acting as Syndication Agent) and Mellon (and any
successor acting as Documentation Agent) in their capacity as a Lender hereunder
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as an Agent, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include any
such Agent in its individual capacity. Fleet (and any successor acting as
Administrative Agent) and ABN AMRO (and any successor acting as Syndication
Agent) and Mellon (and any successor acting as Documentation Agent) and their
respective affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to, make investments in and generally engage in
any kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if they were not acting as an Agent, and Fleet
(and any such successor) and ABN AMRO (and any such successor) and Mellon (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
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performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents, PROVIDED that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the person to be indemnified.
11.6. NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender agrees
that it has, independently and without reliance on the Agents or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Agents or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement or under any other Loan Document. No Agent shall be required to keep
itself informed, as to the performance or observance by any Obligor of this
Agreement or any of the other Loan Documents or any other document referred to
or provided for herein or therein or to inspect the Properties or books of the
Company or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Agents hereunder, the Agents shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition or business of the Company or any of its Subsidiaries (or
any of their affiliates) that may come into the possession of any Agent or any
of their respective affiliates.
11.7. FAILURE TO ACT. Except for action expressly required of any
Agent hereunder and under the other Loan Documents, each Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction from the Lenders
of their indemnification obligations under Section 11.5 hereof against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
11.8. RESIGNATION OR REMOVAL OF AGENTS. Subject to the appointment
and acceptance of a successor Agent as provided below, an Agent may resign at
any time by giving notice thereof to the Lenders and the Company. Any Agent may
be removed as Agent hereunder upon the written consent of all Lenders exclusive
of such Agent upon the following: (i) willful misconduct in the performance of
such Agent's duties or responsibilities under this Agreement as finally
determined by a court of competent jurisdiction; or (ii) if a receiver, trustee
or conservator is appointed for such Agent or any state or federal regulatory
authority assumes management or control of such Agent or if, under applicable
law, the administrative or discretionary duties of such Agent hereunder become
controlled by or subject to the approval of any state or federal regulatory
authority. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent to such capacity (and in that connection,
so long as no Event of Default shall have occurred and be continuing, subject to
the consent of the Company, not to be unreasonably withheld or delayed). If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after such removal or the retiring
Agent's giving of notice of resignation then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent to such capacity, that shall be a bank
with a combined
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capital and surplus of at least $250,000,000 (and in that connection, so long as
no Event of Default shall have occurred and be continuing, subject to the
consent of the Company, not to be unreasonably withheld or delayed)). Upon the
acceptance of any appointment as an Agent hereunder by a successor Agent, (a)
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent and (b) the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as an Agent, the provisions of
this Section 11 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
11.9. CONSENTS UNDER OTHER LOAN DOCUMENTS. Except as otherwise
provided in Section 12.5 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Required Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the other Loan Documents, PROVIDED that, without the prior consent of each
Lender, the Administrative Agent shall not (except as provided herein) release
any collateral or any Obligor or otherwise terminate any Lien under any Loan
Document providing for collateral security, or agree to additional obligations
being secured by such collateral security.
Section 12. MISCELLANEOUS
12.1 WAIVER. No failure on the part of any Agent or any Lender to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or any Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Each Obligor irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by any Agent
or any Lender relating in any way to this Agreement should be dismissed or
stayed by reason, or pending the resolution, of any action or proceeding
commenced by any Obligor relating in any way to this Agreement whether or not
commenced earlier. To the fullest extent permitted by applicable law, the
Obligors shall take all measures necessary for any such action or proceeding
commenced by any Agent or any Lender to proceed to judgment prior to the entry
of judgment in any such action or proceeding commenced by any Obligor.
12.2. NOTICES. All notices, requests and other communications provided
for herein and under the Security Documents (including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (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.
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Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid.
12.3. EXPENSES, ETC. The Company agrees to pay or reimburse each of
the Lenders and each of the Agents for: (a) all reasonable out-of-pocket costs
and expenses of the Agents (including, without limitation, the reasonable fees
and expenses of Brown, Rudnick, Freed & Gesmer, special counsel to Fleet) in
connection with (i) the negotiation, preparation, execution and delivery of this
Agreement and the other Loan Documents and the extensions of credit hereunder,
(ii) the syndication of the Commitments and the Loans and (iii) the negotiation
or preparation of any modification, supplement or waiver of any of the terms of
this Agreement or any of the other Loan Documents (whether or not consummated);
(b) all reasonable out-of-pocket costs and expenses of each of the Lenders and
each of the Agents (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (w) the
exercise of the Agents' and Lenders' rights under Section 9.3(f) hereof, (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 12.3; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any of the other Loan
Documents or any other document referred to herein or therein and all reasonable
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by any Loan Document or any other document referred to therein.
12.4. INDEMNIFICATION. The Company hereby agrees to indemnify each
Agent, each Lender, their affiliates and their respective directors, officers,
employees, attorneys and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims, damages or expenses incurred by any of
them (including, without limitation, any and all losses, liabilities, claims,
damages or expenses incurred by any Agent to any Lender, whether or not any
Agent or any Lender is a party thereto) arising out of or by reason of any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to 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
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(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 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 or to an Affiliate of any Lender,
and no such consent by the Company shall be required in
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the case of any assignment effected while an Event of Default has
occurred and is continuing;
(ii) except to the extent the Company and the
Administrative Agent shall otherwise consent, any such partial
assignment (other than to another Lender) shall be in an amount
at least equal to $5,000,000;
(iii) upon each such assignment, the assignor and
assignee shall deliver to the Company and the Administrative
Agent a Notice of Assignment in the form of EXHIBIT F hereto; and
(iv) no consent required of the Company or the
Administrative Agent under this Section 12.7(b) shall be
unreasonably withheld or delayed.
Upon execution and delivery by the assignor and the assignee to
the Company and the Administrative Agent of such Notice of Assignment
and upon the consent thereto by the Company and the Administrative
Agent, the assignee shall have, to the extent of such assignment
(unless otherwise consented to by the Company and the Administrative
Agent), the obligations, rights and benefits of a Lender hereunder
holding the Commitment(s) and Loans (or portions thereof) assigned to
it and specified in such Notice of Assignment (in addition to the
Commitment(s) and Loans, if any, theretofore held by such assignee) and
the assigning Lender shall, to the extent of such assignment, be
released from the Commitment(s) (or portion(s) thereof) so assigned.
Upon each such assignment the assigning Lender shall pay the
Administrative Agent an assignment fee of $4,500.
(c) 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
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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 Bank
as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank and (ii) assign all or any
portion of its rights under this Agreement and its Loans, and Note to
an Affiliate provided that the Company shall not be required to pay any
increase in the cost of borrowing as a result of such assignment and
LIBOR Loans must continue to be made available by such Assignee.
(e) A Lender may furnish any information concerning the Company
or any of its Subsidiaries in the possession of such Lender from time
to time to assignees and participants (including prospective assignees
and participants), subject, however, to the provisions of Section 12.13
hereof.
(f) Anything in this Section 12.7 to the contrary
notwithstanding, no Lender may assign or participate any interest in
any Commitment or Loan held by it hereunder to the Company or any of
its Affiliates or Subsidiaries, and the Company shall not, and shall
not permit any of its Subsidiaries to, acquire any such interest in any
Commitment or Loan, without the prior consent of each Lender.
12.8. SURVIVAL. The obligations of the Company under Sections 5.1,
5.5, 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.
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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 construed in accordance with, the law of The
Commonwealth of Massachusetts. Each Obligor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the District of
Massachusetts and of the Superior Court of the Commonwealth of Massachusetts
sitting in Suffolk County, and any appellate court in the Commonwealth of
Massachusetts, for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. Each Obligor
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any objection that it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
12.12. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
12.13. CONFIDENTIALITY.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or
provided to the Company or one or more of its Subsidiaries (in
connection with this Agreement or otherwise) by any Lender or by one or
more subsidiaries or affiliates of such Lender and the Company hereby
authorizes each Lender to share any information delivered to such
Lender by the Company and its Subsidiaries pursuant to this Agreement
and the other Loan Documents, or in connection with the decision of
such Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or affiliate
receiving such information shall be bound by the provisions of
paragraph (b) below as if it were a Lender hereunder. Such
authorization shall survive the repayment of the Loans and the
termination of the Commitments.
(b) Each Lender and each Agent agrees (on behalf of itself and
each of its affiliates, directors, officers, employees and
representatives) to keep confidential, in accordance with their
customary procedures for handling confidential information of the same
nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Company pursuant to this
Agreement and the other Documents, provided that nothing herein shall
limit the disclosure of any such
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information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel for any of the Lenders or the Agents,
(iii) to bank examiners, auditors or accountants, (iv) to any other
Agent or any other Lender, (v) in connection with any litigation to
which any one or more of the Lenders or one or more of the Agents is a
party in which such Lender or the Agents has been required or, in the
opinion of its legal counsel, deems it necessary to produce such
information, (vi) to a subsidiary or affiliate of such Lender as
provided in paragraph (a) above or (vii) to any assignee or participant
(or prospective assignee or participant) assignee or participant (or
prospective assignee or participant); provided, further, that (x)
unless specifically prohibited by applicable law or court order, each
Lender and each Agent shall, prior to disclosure thereof, notify the
Company of any request for disclosure of any such non-public
information, except when the request is (A) made by any governmental
agency or representative thereof or (B) pursuant to legal process and
(y) that in no event shall any Lender or any Agent be obligated to
return any materials furnished by the Company. The obligations of each
Lender under this Section 12.13 shall supersede and replace the
obligations of such Lender under the confidentiality letter in respect
of this financing signed and delivered by such Lender to the Company
prior to the date hereof.
12.14. COMPLIANCE WITH USURY LAWS.
All agreements between any Obligor, the Agents, and any Lender are
hereby expressly limited so that in no contingency or event whatsoever, whether
by reason of acceleration of maturity of the indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to any Agent or any Lender
for the use or the forbearance of the indebtedness evidenced hereby exceed the
maximum permissible under applicable law. As used herein, the term "applicable
law" shall mean the law in effect as of the date hereof, PROVIDED, HOWEVER, that
in the event there is a change in the law which results in a higher permissible
rate of interest, then this Agreement shall be governed by such new law as of
its effective date. In this regard, it is expressly agreed that it is the intent
of the Obligors, the Agents and the Lenders in the execution, delivery and
acceptance of this Agreement to contract in strict compliance with the laws of
the Commonwealth of Massachusetts from time to time in effect. If, under or from
any circumstances whatsoever, fulfillment of any provision hereof or of any of
the Loan Documents at the time performance of such provision shall be due, shall
involve transcending the limit of validity prescribed by applicable law, then
the obligation to be fulfilled shall automatically be reduced to the limit of
such validity, and if under or from any circumstances whatsoever any Agent or
any Lender should ever receive as interest an amount which would exceed the
highest lawful rate, such amount which would be excessive interest shall be
applied to the reduction of the principal balance evidenced hereby and not to
the payment of interest. This provision shall control every other provision of
all agreements between the Obligors, the Agents, and the Lenders.
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12.15. REPLACEMENT NOTE.
Upon receipt of an affidavit of an officer of any Agent or any Lender
as to the loss, theft, destruction or mutilation of any Revolving Credit Note or
any other Loan Documents which is not of public record, and, in the case of any
such loss, theft, destruction or mutilation, upon receipt of an affidavit of
surrender and cancellation of such Revolving Credit Note or other Loan Document,
the Company will issue, in lieu thereof, a replacement Revolving Credit Note or
other Loan Document in the same principal amount thereof and otherwise of like
tenor.
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EXHIBIT A
[Form of Three-Year Facility Revolving Credit Note]
PROMISSORY NOTE
(Three-Year Facility)
$______________ November 12 1999_
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, One
Federal Street, Boston, Massachusetts 02110, the principal sum of
________________ Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Three-Year Facility Revolving Credit Loans made
by the Lender to the Company under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Three-Year Facility Revolving Credit
Loan, at such office, in like money and funds, for the period commencing on the
date of such Three-Year Facility Revolving Credit Loan until such Three-Year
Facility Revolving Credit Loan shall be paid in full, at the rates per annum and
on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Three-Year Facility Revolving Credit Loan made by the
Lender to the Company, and each payment made on account of the principal
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Note, endorsed by the Lender on the schedule attached hereto or any
continuation thereof, PROVIDED that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Company to
make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Three-Year Facility Revolving Credit Loans made by
the Lender.
This Note is one of the Three-Year Facility Revolving Credit Notes
referred to in the Credit Agreement dated as of November 12, 1999 (as modified
and supplemented and in effect from time to time, the "CREDIT AGREEMENT")
between the Company, the Subsidiary Guarantors party thereto, the Lenders party
thereto and Fleet National Bank, as Administrative Agent, ABN AMRO Bank N.V., as
Syndication Agent, and Mellon Bank, N.A., as Documentation Agent, and evidences
Three-Year Facility Revolving Credit Loans made by the Lender thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
1
Except as permitted by Section 12.7 of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
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
SCHEDULE OF THREE-YEAR FACILITY REVOLVING CREDIT LOANS
This Note evidences Three-Year Facility Revolving Credit Loans made,
Continued or Converted under the within-described Credit Agreement to the
Company, on the dates, in the principal amounts, of the Types, bearing interest
at the rates and having Interest Periods (if applicable) of the durations set
forth below, subject to the payments, Continuations, Conversions and prepayments
of principal set forth below:
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
Amount
Date Paid,
Made, Prepaid,
Continued Principal Duration Continued Unpaid
or Amount Type of Interest of Interest or Principal Notation
Converted of Loan Loan Rate Period Converted Amount Made By
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
1
EXHIBIT B
[Form of 364-Day Facility Revolving Credit Note]
PROMISSORY NOTE
(364-Day Facility)
$______________ November 12, 1999_
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, One
Federal Street, Boston, Massachusetts 02110, the principal sum of
________________ Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the 364-Day Facility Revolving Credit Loans made by
the Lender to the Company under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such 364-Day Facility Revolving Credit Loan,
at such office, in like money and funds, for the period commencing on the date
of such 364-Day Facility Revolving Credit Loan until such 364-Day Facility
Revolving Credit Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each 364-Day Facility Revolving Credit Loan made by the
Lender to the Company, and each payment made on account of the principal
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Note, endorsed by the Lender on the schedule attached hereto or any
continuation thereof, PROVIDED that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Company to
make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the 364-Day Facility Revolving Credit Loans made by the
Lender.
This Note is one of the 364-Day Facility Revolving Credit Notes
referred to in the Credit Agreement dated as of November 12, 1999 (as modified
and supplemented and in effect from time to time, the "CREDIT AGREEMENT")
between the Company, the Subsidiary Guarantors party thereto, the Lenders party
thereto and Fleet National Bank, as Administrative Agent, ABN AMRO Bank N.V., as
Syndication Agent, and Mellon Bank, N.A., as Documentation Agent, and evidences
364-Day Facility Revolving Credit Loans made by the Lender thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
1
Except as permitted by Section 12.7 of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
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
SCHEDULE OF 364-DAY FACILITY REVOLVING CREDIT LOANS
This Note evidences 364-Day Facility Revolving Credit Loans made,
Continued or Converted under the within-described Credit Agreement to the
Company, on the dates, in the principal amounts, of the Types, bearing interest
at the rates and having Interest Periods (if applicable) of the durations set
forth below, subject to the payments, Continuations, Conversions and prepayments
of principal set forth below:
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
Amount
Date Paid,
Made, Prepaid,
Continued Principal Duration Continued Unpaid
or Amount Type of Interest of Interest or Principal Notation
Converted of Loan Loan Rate Period Converted Amount Made By
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
- ----------------- -------------- ------------- -------------- -------------- -------------- -------------- --------------
1
EXHIBIT D TO CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
This Compliance Certificate is
provided pursuant to Section 9.1(c) of that certain Credit Agreement (the
"Agreement") dated as of November
12, 1999, between Genzyme Corporation ("Company"), the Subsidiary Guarantors
party thereto, the Lenders party thereto and Fleet National Bank
("Administrative Agent"), ABN AMRO Bank, N.V. ("Syndication Agent") and Mellon
Bank, N.A. ("Documentation Agent"). The capitalized terms used herein shall have
the meanings ascribed to such terms in the Agreement. The undersigned hereby
certifies as follows as of this date:
1. The representations and warranties made by the Company in the
Agreement and by the Company and each Obligor in each certificate, document or
financial or other statement furnished under or in connection therewith are true
and accurate in all material respects.
2. The financial information and calculations shown on the attached
Schedule A are true and accurate as of the date hereof and the Company is in
compliance with the financial covenants set forth in Section 9.9 of the
Agreement.
3. No Default or Event of Default under the Agreement has occurred.
IN WITNESS WHEREOF, this Certificate has been duly executed and
delivered as a sealed instrument at Boston, Massachusetts on this ____ day of
________, ____.
GENZYME CORPORATION
By: ___________________________________
Name:______________________________
Title:_____________________________
1
SCHEDULE A
TO EXHIBIT D
SECTION 9.9(A) CONSOLIDATED QUICK RATIO
cash -- $__________
Cash Equivalents -- $___________
Marketable Investments -- $____________
Accounts Receivable -- $___________
Current Liabilities -- $____________
Actual Ratio -- ____________
Minimum Ratio -- 1.50 to 1.00
SECTION 9.9(B) CONSOLIDATED FIXED CHARGE COVERAGE RATIO
Consolidated EBITDA -- $___________
Capital Expenditures:
Actual Capital Expenditures -- $_______
LESS Capital Expenditures with respect to designated project
for improvements to new leased headquarters (the
aggregate of such exclusions for this quarter and
PRIOR QUARTERS DOES NOT EXCEED $12,000,000) -- $_______
Capital Expenditures for purposes of Section 9.9(b) -- $_______
Taxes -- $___________
Dividend Payments -- $___________
Interest Expense -- $___________
Actual Ratio -- ___________
Minimum Ratio -- 3.00 to 1.00
1
SECTION 9.9(C) CONSOLIDATED LEVERAGE RATIO
Consolidated Funded Debt -- $_________
Unrestricted Cash and Marketable Investments in excess of $125,000,000 -- $_____
Consolidated EBITDA -- $___________
Actual Ratio -- ___________
Maximum Ratio -- 2.00 to 1.00
LEVEL CALCULATION
CONSOLIDATED DEBT COVERAGE RATIO
cash -- $__________
Cash Equivalents -- $__________
Marketable Investments -- $__________
Consolidated Funded Debt -- $__________
Ratio -- __________
SENIOR UNSECURED DEBT RATING -- _________(written confirmation is attached)
Level Period (I, II, III or IV) for Applicable Margin and Applicable Commitment
Fee determination: ___________________
2
EXHIBIT E
[Form of Joinder Agreement]
This Joinder Agreement is delivered pursuant to Section 9.13 of the
Credit Agreement dated as of November 12, 1999 (the "CREDIT AGREEMENT") between
Genzyme Corporation (the "COMPANY"), the Subsidiary Guarantors party thereto,
the Lenders party thereto, and Fleet National Bank, as Administrative Agent, ABN
AMRO Bank N.V., as Syndication Agent, and Mellon Bank, N.A., as Documentation
Agent.
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
EXHIBIT F
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
Genzyme Corporation
One Mountain Road
Framingham, Massachusetts 01701
Attention: Mr. Evan M. Lebson, Treasurer
Fleet National Bank,
as Administrative Agent
One Federal Street
Boston, Massachusetts 02110
Attention: High Tech Group
Re: Credit Agreement dated as of November 12, 1999 (the "CREDIT
AGREEMENT"), between Genzyme Corporation (the "COMPANY"), the
Subsidiary Guarantors party thereto, the Lenders party thereto
and Fleet National Bank, as Administrative Agent, ABN AMRO
Bank N.V., as Syndication Agent and Mellon Bank, N.A., as
Documentation Agent
Ladies and Gentlemen:
We hereby give notice that, effective as of the date hereof, [Name of
Assignor] (the "ASSIGNOR") has assigned its rights and obligations with respect
to _____% of its outstanding Revolving Credit Commitment (representing
$__________ of the Assignor's outstanding Revolving Credit Commitment and
Revolving Credit Loans, of which $____________ consists of the Assignor's
outstanding 364-Day Revolving Credit Commitment and $___________ consists of the
Assignor's outstanding Three-Year Revolving Credit Commitment (such interest in
such rights and obligations being hereinafter referred to as the "ASSIGNED
INTEREST") under the Credit Agreement to [Name of Assignee] (the "ASSIGNEE").
The Assignee hereby agrees (a) to become a "Lender" pursuant to Section 12.7(b)
of the Credit Agreement (if not already a Lender under the Credit Agreement) and
(b) to assume all the obligations of the Assignor thereunder with respect to the
Assigned Interest.
The address for notices, Applicable Lender Office(s) and payment
instructions for the Assignee are as follows:
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Address for Notices:
------------------------
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Attention:
Telephone:
Telecopier:
Lending Office for Prime Rate
Loans and LIBOR Loans:
-------------------------
Payment Instructions:
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Please sign and return the enclosed copy of this letter to the
undersigned to indicate your receipt hereof, and your consent to or notice of
(as applicable) the above-mentioned assignment and assumption, and your
agreement to the release of the Assignor from its obligations under the Credit
Agreement with respect to the Assigned Interest. As a condition to the
effectiveness of the above-mentioned assignment and assumption, the Assignee
hereby agrees to pay to the Administrative Agent on the date hereof an
assignment fee of $4,500.
Very truly yours,
[NAME OF ASSIGNOR]
By: ________________________________
Title
[NAME OF ASSIGNEE]
By: ________________________________
Title
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ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
GENZYME CORPORATION
By: _____________________________
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By: _____________________________
Title:
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