Exhibit 10.32.2
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
This FIRST AMENDMENT TO INTERCREDITOR AGREEMENT dated as of December 28,
1998 (this "Amendment") is among Genzyme Corporation (the "Senior Creditor"), a
Massachusetts corporation; Genzyme Transgenics Corporation ("GTC"), a
Massachusetts corporation; the Subsidiaries of GTC listed on the signature pages
hereto (each of GTC and such Subsidiaries, a "Borrower" and collectively such
Subsidiaries with GTC, the "Borrowers"); and FINOVA Technology Finance, Inc.
(formerly known as Financing for Science International, Inc., the "Subordinating
Creditor"), a Delaware corporation.
WHEREAS, the parties previously entered into an Intercreditor Agreement
dated as of July 3, 1995 (the "Original Intercreditor Agreement") providing for
certain subordination of the rights of the Subordinating Creditor pursuant to
the Original Intercreditor Agreement to the rights of Genzyme pursuant to the
Reimbursement Agreement dated as of July 3, 1995 among the Senior Creditor, the
Borrowers, and the Subordinated Creditor; and
WHEREAS, GTC is entering into a new Credit Agreement dated as of the date
hereof with Fleet National Bank ("Fleet") to refinance the indebtedness under
its agreements with BankBoston, N.A. (formerly The First National Bank of
Boston); and
WHEREAS, the parties wish to amend the Original Intercreditor Agreement to
reflect amendments to the documents constituting Senior Debt;
NOW, THEREFORE, in consideration of the foregoing and the agreements contained
herein, the parties hereby agree as follows. Terms used herein and not otherwise
defined shall have the meanings assigned to them in the Original Intercreditor
Agreement.
1. Amendment to the Original Intercreditor Agreement. The Original
Intercreditor Agreement is amended as follows:
(a) Amendment to Recitals. Each of the recitals is hereby deleted in its
entirety and replaced by the following:
WHEREAS, pursuant to a Credit Agreement dated as of December ___,
1998 (as amended and in effect from time to time, the "GTC Credit
Agreement"), Fleet National Bank (the "Bank") agreed, upon the terms and
subject to the conditions contained therein, to make loans to GTC; and
WHEREAS, pursuant to a Master Equipment Lease Agreement (together
with rental schedules thereto, the "Lease Agreement"), certain Sale and
Leaseback Agreements (collectively, together with the Lease Agreement, the
"FSI Lease Agreements") and a Security Agreement (the "Subordinated
Agreement"), each dated September 27, 1994 between the Subordinating
Creditor and TSI, the Subordinating Creditor leased certain equipment
listed in Exhibit A hereto (as defined in the FSI Lease Agreement, the
"Equipment") to TSI; and
WHEREAS, certain subsidiaries of TSI, namely Primedica Argus
Research Laboratories, Inc., Primedica Worcester, Inc., Primedica
Redfield, Inc., Primedica Rockville, Inc., and Health and Sciences
Research Incorporated (collectively, the "Significant Subsidiaries"), each
entered into a Guaranty of Lease (a "Subsidiary Guaranty") dated as of
September 27, 1994 providing for the guarantee by such Significant
Subsidiaries of the obligations of TSI to the Subordinating Creditor under
the FSI Lease Agreement and the Subordinated Agreement; and
WHEREAS, GTC entered into a Subsidiary Guaranty dated December 26,
1996 providing for the guarantee by GTC of the obligations of TSI to the
Subordinating Creditor under the Subordinating Creditor Lease Agreements
and the Subordinated Agreement; and
WHEREAS, GTC and certain of the Significant Subsidiaries, namely
Primedica Argus Research Laboratories, Inc., Primedica Worcester, Inc. and
Primedica Rockville, Inc., each entered into an additional Guaranty of
Lease dated June 30, 1995 (each also a "Subsidiary Guaranty") providing
for the guarantee by such Significant Subsidiaries of the obligations of
TSI to the Subordinating Creditor under rental schedules pursuant to the
Lease Agreement; and
WHEREAS, GTC, TSI and the Subordinating Creditor previously entered
into a Subordination Agreement dated as of September 27, 1994 providing
for certain subordination of the rights of FSI pursuant to the
Subordinated Agreement to the rights of a prior lender to GTC (the
"Original Subordination Agreement"); and
WHEREAS, the Obligations (as defined in the GTC Credit Agreement) of
GTC shall be guarantied pursuant to that certain Guaranty dated as of the
date hereof by the Senior Creditor in favor of the Bank (the "Guaranty");
and
WHEREAS, the reimbursement obligations of GTC pursuant to the
Guaranty are described in the Amended and Restated Reimbursement Agreement
dated as of the date hereof (the "Amended and Restated Reimbursement
Agreement") among the Senior Creditor and the Borrowers; and
WHEREAS, to secure the obligation of GTC and its subsidiaries to
reimburse the Senior Creditor for any payments under the Guaranty and the
Amended and Restated Reimbursement Agreement, GTC and its subsidiaries
have entered into an Amended and Restated Security Agreement dated as of
the date hereof in favor of the Senior Creditor and GTC has also entered
into a Mortgage and Security Agreement in favor of the Senior Creditor, as
amended (the "GTC Security Agreements"); and
WHEREAS, it is a condition precedent to the Senior Creditor's
willingness to provide the Guaranty that GTC, its subsidiaries and the
Subordinating Creditor enter into this Agreement with the Senior Creditor;
(b) Amendment to Definition of Senior Debt. The definition of "Senior
Debt" in Section 1 is hereby deleted in its entirety and replaced by the
following:
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Senior Debt. All principal, interest, fees, costs, enforcement
expenses (including legal fees and disbursements), collateral protection
expenses and other reimbursement or indemnity obligations created or
arising under the Guaranty, the Amended and Restated Reimbursement
Agreement, the GTC Security Agreements or any of the other documents
related thereto as the foregoing may be amended from time to time or any
prior, concurrent, or subsequent notes, instruments or agreements of
indebtedness, liabilities or obligations of any type or form whatsoever
relating thereto in favor of the Senior Creditor. Senior Debt shall
expressly include any and all interest accruing or out-of-pocket costs or
expenses incurred after the date of any filing by or against any Borrower
or Borrowers of any petition under the federal Bankruptcy Code or any
other bankruptcy, insolvency, or reorganization act regardless of whether
the Senior Creditor's claim(s) therefor is allowed or allowable in the
case or proceeding relating thereto.
2. Miscellaneous.
(a) Except to the extent specifically amended hereby, the Intercreditor
Agreement and all related documents shall remain in full force and effect.
Whenever the terms or sections amended hereby shall be referred to in the
Intercreditor Agreement or such other documents (whether directly or by
incorporation into other defined terms), such defined terms shall be deemed to
refer to those terms or sections as amended by this Amendment.
(b) This Amendment may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, but all counterparts
shall together constitute one instrument.
(c) This Amendment shall be governed by the laws of the Commonwealth of
Massachusetts and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment which shall
be deemed to be a sealed instrument as of the date first above written.
GENZYME CORPORATION
By:
-----------------------------------------
Evan Lebson
Treasurer
FINOVA TECHNOLOGY FINANCE, INC.
By: /s/ Linda A. Moschitto
-----------------------------------------
Linda A. Moschitto
Director - Contract Administration
GENZYME TRANSGENICS CORPORATION
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
TSI CORPORATION
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
PRIMEDICA CAMBRIDGE, INC. (formerly
BioDevelopment Laboratories, Inc.)
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
PRIMEDICA ROCKVILLE, INC. (formerly TSI
Washington Laboratories, Inc.)
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
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PRIMEDICA REDFIELD, INC. (formerly TSI
Redfield Laboratories, Inc.)
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
PRIMEDICA WORCESTER, INC., (formerly
TSI Mason Laboratories, Inc.)
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
PRIMEDICA ARGUS RESEARCH LABORATORIES, INC.
(formerly Argus Research Laboratories, Inc.)
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
TRANSGENICS INVESTMENTS, INC.
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
HEALTH SCIENCES RESEARCH INCORPORATED
By: /s/ John B. Green
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment which shall
be deemed to be a sealed instrument as of the date first above written.
GENZYME CORPORATION
By: /s/ Evan M. Lebson
-----------------------------------------
Evan Lebson
Treasurer
FINOVA TECHNOLOGY FINANCE, INC.
By:
-----------------------------------------
Name:
Title:
GENZYME TRANSGENICS CORPORATION
By:
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
TSI CORPORATION
By:
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
PRIMEDICA CAMBRIDGE, INC. (formerly
BioDevelopment Laboratories, Inc.)
By:
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
PRIMEDICA ROCKVILLE, INC. (formerly TSI
Washington Laboratories, Inc.)
By:
-----------------------------------------
John B. Green
Vice President and Chief Financial Officer
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