Exhibit 10.1


 


EXECUTION COPY


 




 





$350,000,000


 


 


CREDIT
AGREEMENT


 


among


 


GENZYME CORPORATION,


as
Parent Borrower,


THE
SUBSIDIARY BORROWERS,


 


The
Several Lenders from Time to Time Parties Hereto,


 


 


BANK OF AMERICA, N.A.,


as
Syndication Agent,


 


 


ABN
AMRO BANK N.V.,


CITIZENS
BANK OF MASSACHUSETTS,


and


WACHOVIA
BANK, NATIONAL ASSOCIATION,


as
Co-Documentation Agents


and


 


 


JPMORGAN CHASE BANK, N.A.,


as
Administrative Agent


Dated
as of July 14, 2006


 


 






 




	
  J.P. MORGAN SECURITIES INC.

  	
   

  	
  BANK OF AMERICA SECURITIES LLC

  






as
Co-Lead Arrangers and Joint Bookrunners




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
   

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Defined
  Terms

  	
  1

  
	
  1.2

  	
   

  	
  Other
  Definitional Provisions

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
   

  	
  AMOUNT AND TERMS OF COMMITMENTS

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Commitments

  	
  18

  
	
  2.2

  	
   

  	
  Procedure
  for Loan Borrowing

  	
  19

  
	
  2.3

  	
   

  	
  Swingline
  Commitment

  	
  19

  
	
  2.4

  	
   

  	
  Procedure
  for Swingline Borrowing; Refunding of Swingline Loans

  	
  20

  
	
  2.5

  	
   

  	
  Facility
  Fees, Utilization Fees, etc.

  	
  21

  
	
  2.6

  	
   

  	
  Termination
  or Reduction of Commitments

  	
  21

  
	
  2.7

  	
   

  	
  Additional
  Commitments

  	
  21

  
	
  2.8

  	
   

  	
  Optional
  Prepayments

  	
  22

  
	
  2.9

  	
   

  	
  Mandatory
  Prepayments and Commitment Reductions

  	
  22

  
	
  2.10

  	
   

  	
  Conversion
  and Continuation Options

  	
  22

  
	
  2.11

  	
   

  	
  Limitations
  on Eurocurrency Tranches

  	
  23

  
	
  2.12

  	
   

  	
  Interest
  Rates and Payment Dates

  	
  23

  
	
  2.13

  	
   

  	
  Computation
  of Interest and Fees

  	
  24

  
	
  2.14

  	
   

  	
  Inability
  to Determine Interest Rate

  	
  24

  
	
  2.15

  	
   

  	
  Pro
  Rata Treatment and Payments

  	
  25

  
	
  2.16

  	
   

  	
  Requirements
  of Law

  	
  26

  
	
  2.17

  	
   

  	
  Taxes

  	
  27

  
	
  2.18

  	
   

  	
  Indemnity

  	
  28

  
	
  2.19

  	
   

  	
  Change
  of Lending Office

  	
  29

  
	
  2.20

  	
   

  	
  Replacement of
  Lenders

  	
  29

  
	
  2.21

  	
   

  	
  Judgment
  Currency

  	
  30

  
	
  2.22

  	
   

  	
  Foreign
  Currency Exchange Rate

  	
  30

  
	
  2.23

  	
   

  	
  Subsidiary
  Borrowers

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
   

  	
  LETTERS OF CREDIT

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  L/C
  Commitment

  	
  31

  
	
  3.2

  	
   

  	
  Procedure
  for Issuance of Letter of Credit

  	
  32

  
	
  3.3

  	
   

  	
  Fees and Other
  Charges

  	
  32

  
	
  3.4

  	
   

  	
  L/C
  Participations

  	
  32

  
	
  3.5

  	
   

  	
  Reimbursement
  Obligation of the Borrowers

  	
  33

  
	
  3.6

  	
   

  	
  Obligations
  Absolute

  	
  33

  
	
  3.7

  	
   

  	
  Letter
  of Credit Payments

  	
  34

  
	
  3.8

  	
   

  	
  Applications

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
  34

  



 

















 


	
  4.1

  	
   

  	
  Financial
  Condition

  	
  34

  
	
  4.2

  	
   

  	
  No
  Change

  	
  34

  
	
  4.3

  	
   

  	
  Existence;
  Compliance with Law

  	
  35

  
	
  4.4

  	
   

  	
  Power;
  Authorization; Enforceable Obligations

  	
  35

  
	
  4.5

  	
   

  	
  No
  Legal Bar

  	
  35

  
	
  4.6

  	
   

  	
  Litigation

  	
  35

  
	
  4.7

  	
   

  	
  No
  Default

  	
  35

  
	
  4.8

  	
   

  	
  Liens

  	
  35

  
	
  4.9

  	
   

  	
  Intellectual
  Property

  	
  35

  
	
  4.10

  	
   

  	
  Taxes

  	
  36

  
	
  4.11

  	
   

  	
  Federal
  Regulations

  	
  36

  
	
  4.12

  	
   

  	
  Labor
  Matters

  	
  36

  
	
  4.13

  	
   

  	
  ERISA

  	
  36

  
	
  4.14

  	
   

  	
  Investment
  Company Act; Other Regulations

  	
  36

  
	
  4.15

  	
   

  	
  Material
  Subsidiaries

  	
  37

  
	
  4.16

  	
   

  	
  Use
  of Proceeds

  	
  37

  
	
  4.17

  	
   

  	
  Accuracy
  of Information, etc

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
   

  	
  CONDITIONS PRECEDENT

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Conditions
  to Initial Extension of Credit

  	
  37

  
	
  5.2

  	
   

  	
  Conditions
  to Each Extension of Credit

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Financial Statements

  	
  39

  
	
  6.2

  	
   

  	
  Certificates;
  Other Information

  	
  40

  
	
  6.3

  	
   

  	
  Payment of
  Obligations

  	
  40

  
	
  6.4

  	
   

  	
  Maintenance
  of Existence; Compliance

  	
  40

  
	
  6.5

  	
   

  	
  Maintenance
  of Property; Insurance

  	
  40

  
	
  6.6

  	
   

  	
  Inspection
  of Property; Books and Records; Discussions

  	
  40

  
	
  6.7

  	
   

  	
  Notices

  	
  41

  
	
  6.8

  	
   

  	
  Additional
  Subsidiary Guarantors

  	
  41

  
	
  6.9

  	
   

  	
  Guarantee
  Coverage Ratio

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
   

  	
  NEGATIVE COVENANTS

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Financial
  Condition Covenants

  	
  42

  
	
  7.2

  	
   

  	
  Indebtedness

  	
  42

  
	
  7.3

  	
   

  	
  Liens

  	
  43

  
	
  7.4

  	
   

  	
  Fundamental
  Changes

  	
  44

  
	
  7.5

  	
   

  	
  Disposition of
  Property

  	
  44

  
	
  7.6

  	
   

  	
  Restricted
  Payments

  	
  45

  
	
  7.7

  	
   

  	
  Investments

  	
  45

  
	
  7.8

  	
   

  	
  Transactions
  with Affiliates

  	
  46

  
	
  7.9

  	
   

  	
  Sales and
  Leasebacks

  	
  46

  



 

















 


	
  SECTION 8.

  	
   

  	
  EVENTS OF DEFAULT

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
   

  	
  THE AGENTS

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Appointment

  	
  49

  
	
  9.2

  	
   

  	
  Delegation of
  Duties

  	
  49

  
	
  9.3

  	
   

  	
  Exculpatory
  Provisions

  	
  49

  
	
  9.4

  	
   

  	
  Reliance
  by Administrative Agent

  	
  49

  
	
  9.5

  	
   

  	
  Notice
  of Default

  	
  50

  
	
  9.6

  	
   

  	
  Non-Reliance
  on Agents and Other Lenders

  	
  50

  
	
  9.7

  	
   

  	
  Indemnification

  	
  50

  
	
  9.8

  	
   

  	
  Agent
  in Its Individual Capacity

  	
  51

  
	
  9.9

  	
   

  	
  Successor
  Administrative Agent

  	
  51

  
	
  9.10

  	
   

  	
  Agents

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
   

  	
  MISCELLANEOUS

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

  	
  Amendments and
  Waivers

  	
  51

  
	
  10.2

  	
   

  	
  Notices

  	
  52

  
	
  10.3

  	
   

  	
  No
  Waiver; Cumulative Remedies

  	
  53

  
	
  10.4

  	
   

  	
  Survival
  of Representations and Warranties

  	
  53

  
	
  10.5

  	
   

  	
  Payment
  of Expenses and Taxes

  	
  53

  
	
  10.6

  	
   

  	
  Successors
  and Assigns; Participations and Assignments

  	
  54

  
	
  10.7

  	
   

  	
  Set-off

  	
  57

  
	
  10.8

  	
   

  	
  Counterparts

  	
  57

  
	
  10.9

  	
   

  	
  Severability

  	
  57

  
	
  10.10

  	
   

  	
  Integration

  	
  57

  
	
  10.11

  	
   

  	
  GOVERNING LAW

  	
  58

  
	
  10.12

  	
   

  	
  Submission
  To Jurisdiction; Waivers

  	
  58

  
	
  10.13

  	
   

  	
  Acknowledgements

  	
  58

  
	
  10.14

  	
   

  	
  Releases of
  Guarantees

  	
  58

  
	
  10.15

  	
   

  	
  Confidentiality

  	
  59

  
	
  10.16

  	
   

  	
  USA
  Patriot Act

  	
  59

  
	
  10.17

  	
   

  	
  WAIVERS OF JURY
  TRIAL

  	
  59

  



 

















 


	
  SCHEDULES:

  
	
   

  	
   

  
	
  1.1A

  	
  Commitments

  
	
  1.1B

  	
  Subsidiary Borrowers

  
	
  1.1C

  	
  Mandatory Cost

  
	
  1.1D

  	
  Agents

  
	
  4.4

  	
  Consents, Authorizations, Filings and Notices

  
	
  4.6

  	
  Litigation

  
	
  4.15

  	
  Subsidiaries

  
	
  7.2(d)

  	
  Existing Indebtedness

  
	
  7.3(f)

  	
  Existing Liens

  
	
   

  	
   

  
	
  EXHIBITS:

  
	
   

  	
   

  
	
  A

  	
  Form of
  Compliance Certificate

  
	
  B

  	
  Form of
  Closing Certificate

  
	
  C

  	
  Form of
  Assignment and Assumption

  
	
  D

  	
  Form of
  Legal Opinion of Ropes & Gray LLP

  
	
  E

  	
  Form of
  Exemption Certificate

  
	
  F

  	
  Form of
  Guarantee

  
	
  G

  	
  Form of
  Joinder Agreement

  
	
  H

  	
  Form of
  Pledge Agreement

  



 

















 


CREDIT AGREEMENT (this “Agreement”),
dated as of July 14, 2006, among GENZYME CORPORATION, a Massachusetts
corporation (the “Parent Borrower”), the SUBSIDIARY BORROWERS (as herein
defined), the several banks and other financial institutions or entities from
time to time parties to this Agreement (the “Lenders”), the Co-Agents
named on Schedule 1.1D hereto (the “Co-Agents”), BANK OF AMERICA,
N.A., as syndication agent (in such capacity, the “Syndication Agent”), ABN
AMRO BANK N.V., CITIZENS BANK OF MASSACHUSETTS and WACHOVIA BANK, NATIONAL
ASSOCIATION, as co-documentation agents (in such capacity, the “Co-Documentation
Agents”), and JPMORGAN CHASE BANK, N.A., as administrative agent.


 


The parties hereto hereby agree as follows:


 


SECTION 1.  DEFINITIONS


 


1.1                                 Defined
Terms. As used in this Agreement, the terms listed in this Section 1.1
shall have the respective meanings set forth
in this Section 1.1.


 


“ABR”:  for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1⁄2 of 1%. For purposes hereof:  “Prime Rate” shall mean the rate of
interest per annum publicly announced from time to time by JPMorgan Chase Bank,
N.A. as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by
JPMorgan Chase Bank, N.A. in connection with extensions of credit to debtors). Any
change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.


 


“ABR Loans”:  Dollar Loans the rate of interest applicable
to which is based upon the ABR.


 


“Adjustment Date”:  as defined in the Pricing Grid.


 


“Administrative Agent”:  JPMorgan Chase Bank, N.A., together with its
affiliates, as the arranger of the Commitments and as the administrative agent
for the Lenders under this Agreement and the other Loan Documents, together
with any of its successors.


 


“Affiliate”:  as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, “control” of a
Person means the effective control of such Person for purposes of GAAP.


 


 “Agents”:  the collective reference to the Co-Agents,
the Co-Documentation Agents, the Syndication Agent and the Administrative
Agent.


 


“Aggregate Exposure”:  with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender’s Commitments at such time and (b) thereafter, the amount of such
Lender’s Commitment then in effect or, if the Commitments have been terminated,
the amount of such Lender’s Revolving Extensions of Credit then outstanding.


 


“Aggregate Exposure
Percentage”:  with respect to any
Lender at any time, the ratio (expressed as a percentage) of such Lender’s
Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at
such time.


 

















 


“Agreement”:  as defined in the preamble hereto.


 


“Agreement Currency”:
as defined in Section 2.21(b).


 


“Applicable Creditor”:
as defined in Section 2.21(b).


 


“Applicable Margin”:  the applicable rate per annum set forth in
the Pricing Grid.


 


“Application”:  an application, in such form as the
Issuing Lender may specify from time to time, requesting the Issuing
Lender to open a Letter of Credit.


 


“Approved Fund”:  as defined in Section 10.6(b).


 


“Assignee”:  as defined in Section 10.6(b).


 


“Assignment and
Assumption”:  an Assignment and
Assumption, substantially in the form of Exhibit C.


 


“Available Commitment”:  as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender’s Commitment then in effect over
(b) such Lender’s Revolving Extensions of Credit then outstanding; provided,
that in calculating any Lender’s Revolving Extensions of Credit for the purpose
of determining such Lender’s Available Commitment pursuant to Section 2.5(a),
the aggregate principal amount of Swingline Loans then outstanding shall be
deemed to be zero.


 


“Board”:  the Board of Governors of the Federal Reserve
System of the United States (or any successor).


 


“Borrowers”:  the collective reference to Parent Borrower
and the Subsidiary Borrowers.


 


“Borrowing Date”:  any Business Day specified by a Borrower as a
date on which such Borrower requests the relevant Lenders to make Loans
hereunder.


 


“Business Day”:  a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to close, provided, that (a) with respect to notices and
determinations in connection with, and payments of principal and interest on,
Eurocurrency Loans, Multicurrency Swingline Loans or Letters of Credit
denominated in a Foreign Currency, such day is also a day (i) open for
general business in the principal financial center of the relevant jurisdiction
and (ii) open for general business in London and (b) with respect to
notices and determinations in connection with, and payments of principal and
interest on, Loans denominated in Euros, such day is also a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer System (T)
(or, if such clearing system ceases to be operative, such other clearing system
(if any) determined by the Administrative Agent to be a suitable replacement)
is open for settlement of payment in Euros.


 


“Calculation Date”:  with respect to each Foreign Currency, the
last day of each calendar month (or, if such day is not a Business Day, the
next succeeding Business Day) and such other days from time to time as the
Administrative Agent shall reasonably designate as a “Calculation Date”; provided,
that the third Business Day preceding each Borrowing Date with respect to, and
preceding each date of any continuation of, any Multicurrency Loan shall also
be a “Calculation Date” with respect to the relevant Foreign Currency.


 


2

















 


“Capital Lease
Obligations”:  as to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any time
shall be the capitalized amount thereof at such time determined in accordance
with GAAP.


 


“Capital Stock”:  any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of the
foregoing.


 


“Cash Equivalents”:  (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition; (b) certificates
of deposit, time deposits, eurocurrency time deposits or overnight bank
deposits having maturities of six months or less from the date of acquisition
issued by any Lender or by any commercial bank organized under the laws of the
United States or any state thereof having combined capital and surplus of not
less than $500,000,000; (c) commercial paper of an issuer rated at least
A-1 by Standard & Poor’s Ratings Services (“S&P”) or P-1 by
Moody’s Investors Service, Inc. (“Moody’s”), or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days,
with respect to securities issued or fully guaranteed or insured by the United
States government; (e) securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed by any state, commonwealth
or territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be)
are rated at least A by S&P or A by Moody’s; (f) securities with
maturities of six months or less from the date of acquisition backed by standby
letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; (g) money market
mutual or similar funds that invest primarily in assets satisfying the
requirements of clauses (a) through (f) of this definition; (h) money
market funds that (i) comply with the criteria set forth in SEC Rule 2a-7
under the Investment Company Act of 1940, as amended, (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000; and (iv) other marketable investments within the scope of
Parent Borrower’s investment policy as approved by its board of directors.


 


“Closing Date”:  the date on which the conditions precedent
set forth in Section 5.1 shall have been satisfied, which date is July 14,
2006.


 


“Co-Agents”:  as defined in the preamble hereto.


 


“Co-Documentation Agents”:  as defined in the preamble hereto.


 


“Code”:  the Internal Revenue Code of 1986, as amended
from time to time.


 


“Commitment”:  as to any Lender, the obligation of such
Lender, if any, to make Loans (which includes Multicurrency Loans) and
participate in Swingline Loans (which include Multicurrency Swingline Loans)
and Letters of Credit (which includes Multicurrency L/C Obligations) in an
aggregate principal and/or face amount not to exceed the amount set forth under
the heading “Commitment” (or


 


3

















 


“Multicurrency Subcommitment”)
opposite such Lender’s name on Schedule 1.1A or in the Assignment and
Assumption pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof. The original amount of
the Total Commitments is $350,000,000.


 


“Commitment Period”:  the period from and including the Closing
Date to the Revolving Termination Date.


 


“Commitment Utilization
Percentage”: on any day the percentage equivalent of a fraction (a) the
numerator of which is the aggregate outstanding principal amount of the Loans
and (b) the denominator of which is the Total Commitment (or, on any day
after termination of the Commitments, the Total Commitment in effect
immediately preceding such termination).


 


“Commonly Controlled
Entity”:  an entity, whether or not
incorporated, that is under common control with the Parent Borrower within the
meaning of Section 4001 of ERISA or is part of a group that includes
the Parent Borrower and that is treated as a single employer under Section 414
of the Code.


 


“Compliance Certificate”:  a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit A.


 


“Conduit Lender”:  any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required
to be made by such Lender and designated by such Lender in a written
instrument; provided, that the designation by any Lender of a Conduit
Lender shall not relieve the designating Lender of any of its obligations to
fund a Loan under this Agreement if, for any reason, its Conduit Lender fails
to fund any such Loan, and the designating Lender (and not the Conduit Lender)
shall have the sole right and responsibility to deliver all consents and
waivers required or requested under this Agreement with respect to its Conduit
Lender, and provided, further, that no Conduit Lender shall (a) be
entitled to receive any greater amount pursuant to Section 2.18, 2.19,
2.20 or 10.5 than the designating Lender would have been entitled to receive in
respect of the extensions of credit made by such Conduit Lender or (b) be
deemed to have any Commitment.


 


“Confidential Information
Memorandum”:  the Confidential
Information Memorandum dated June 2006 and furnished to certain Lenders.


 


“Consolidated EBITDA”:  for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the
sum of (a) income tax expense, (b) interest expense, amortization or
writeoff of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but
not limited to, impairment of goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, non-cash losses on sales of assets
outside of the ordinary course of business), (f) noncash charges for compensation
expense attributable to the issuance of equity interests and options therefor
and (g) purchase of in-process research and development, and minus,
(a) to the extent included in the statement of such Consolidated Net
Income for such period, the sum of (i) interest income, (ii) any
extraordinary, unusual or non-recurring income or gains (including, whether or
not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside
of the ordinary course of business), (iii) income tax credits (to the
extent not netted from income tax expense) and (iv) any other non-cash
income and (b) any cash payments made during such period in


 


4

















 


respect of items described
in clauses (e) and (f) above subsequent to the Reference Period (as
defined below) in which the relevant non-cash expenses or losses were reflected
as a charge in the statement of Consolidated Net Income, all as determined on a
consolidated basis. For the purposes of calculating Consolidated EBITDA for any
period of four consecutive fiscal quarters (each, a “Reference Period”)
pursuant to any determination of the Consolidated Leverage Ratio, (i) if
at any time during such Reference Period the Parent Borrower or any Subsidiary
shall have made any Material Disposition, the Consolidated EBITDA for such
Reference Period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Reference
Period and (ii) if during such Reference Period the Parent Borrower or any
Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such
Reference Period shall be calculated after giving pro  forma
effect thereto as if such Material Acquisition occurred on the first day of
such Reference Period. As used in this definition, “Material Acquisition” means
any acquisition of property or series of related acquisitions of property
that requires disclosure in a public filing with the SEC under the Securities
Exchange Act of 1934, as amended, on Form 8-K; and “Material Disposition”
means any Disposition of property or series of related Dispositions of
property that requires separate disclosure under GAAP as a discontinued
operation.


 


“Consolidated Interest
Coverage Ratio”:  for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.


 


“Consolidated Interest
Expense”:  for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
the Parent Borrower and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Parent Borrower and its Subsidiaries (including
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers’ acceptance financing and net costs under Swap
Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP).


 


“Consolidated Leverage
Ratio”:  as at the last day of any
period, the ratio of (a) Consolidated Total Debt to (b) Consolidated
EBITDA for such period.


 


“Consolidated Net Income”:  for any period, the consolidated net income
(or loss) of the Parent Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.


 


“Consolidated Net Worth”:  at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of the Parent
Borrower and its Subsidiaries under stockholders’ equity at such date.


 


“Consolidated Tangible
Net Worth”:  at any date, all amounts that would, in conformity with
GAAP, be included on a consolidated balance sheet of the Parent Borrower and
its Subsidiaries under stockholders’ equity at such date less the sum of
unamortized debt discount and expenses and other unamortized deferred charges,
goodwill, patents, trade-marks, service marks, trade names, copyrights,
licenses and other intangible items as to which Statement of Financial
Accounting Standards No. 142 (“Goodwill and Other Intangible Assets”)
applies.


 


“Consolidated Total Debt”:  at any date, the aggregate principal amount
of all Indebtedness of the Parent Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.


 


5

















 


“Contractual Obligation”:  as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.


 


“Default”:  any of the events specified in Section 8,
whether or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.


 


“Disposition”:  with respect to any property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms “Dispose” and “Disposed of” shall
have correlative meanings.


 


“Dollars” and “$”:  dollars in lawful currency of the United
States.


 


“Dollar Equivalent”:  at any time as to any amount denominated in a
Foreign Currency, the equivalent amount in Dollars as determined by the
Administrative Agent at such time on the basis of the Exchange Rate for the
purchase of Dollars with such Foreign Currency on the most recent Calculation
Date for such Foreign Currency.


 


“Dollar L/C Obligations”:  at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit
that have not then been reimbursed pursuant to Section 3.5.


 


“Dollar Loan”: any Loan
denominated in Dollars.


 


“Dollar Letter of Credit”:
any Letter of Credit denominated in Dollars.


 


“Dollar Swingline Loans”:  as defined in Section 2.3.


 


“Domestic Subsidiary”:  any Subsidiary of the Parent Borrower
organized under the laws of any jurisdiction within the United States.


 


“Environmental Laws”:  any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.


 


“ERISA”:  the Employee Retirement Income Security Act
of 1974, as amended from time to time.


 


“EURIBOR Base Rate”:  with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan denominated in Euros, the rate per
annum determined on the basis of the rate for deposits in Euros for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 248 of the Telerate screen (it being understood
that this rate is the Euro interbank offered rate sponsored by the Banking
Federation of the European Union and the Financial Markets Association) as of
11:00 A.M., Local Time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 248
of the Telerate screen (or otherwise on such screen), the “EURIBOR Base Rate”
shall be determined by reference to the Bloomberg service or such other
comparable publicly available service for displaying eurocurrency rates as may be
selected by the Administrative Agent or, in the absence of such availability,
by reference to the rate at which the principal office of each Reference Bank
offers deposits to prime banks in the relevant currency


 


6

















 


at or about 11:00 A.M.,
Local Time, two Business Days prior to the beginning of such Interest Period in
the interbank eurocurrency market where its relevant eurocurrency and foreign
currency and exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein.


 


“EURIBOR Rate”:  with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan denominated in Foreign Currency, a
rate per annum determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):


 


	
   

  	
  EURIBOR
  Base Rate

  	
   

  
	
   

  	
  1.00 - Eurocurrency
  Reserve Requirements

  	
   

  



 


;
provided that with respect to Eurocurrency Loans denominated in Euros,
the EURIBOR Rate shall mean the EURIBOR Base Rate plus, if applicable,
any increases provided for pursuant to the Mandatory Cost formula on Schedule 1.1C
hereto.


 


“Euro”:  the single currency of Participating Member
States of the EMU introduced in accordance with the provisions of Article 123
of the Treaty and, in respect of all payments to be made under this Agreement
in Euro, means immediately available, freely transferable funds in such
currency.


 


“Eurocurrency Loans”:  Dollar Loans or Multicurrency Loans the rate
of interest applicable to which is based upon the Eurocurrency Rate.


 


“Eurocurrency Rate”:  the collective reference to (x) with respect
to Eurocurrency Loans denominated in Dollars or Foreign Currency (other than
Euros), the Eurodollar Rate and (y) with respect to Eurocurrency Loans
denominated in Euros, the EURIBOR Rate.


 


“Eurocurrency Reserve
Requirements”:  for any day as
applied to a Eurocurrency Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.


 


“Eurocurrency Tranche”:  the collective reference to Eurocurrency
Loans under the Revolving Facility the then current Interest Periods with
respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).


 


“Eurodollar Base Rate”:  with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan denominated in Dollars or Foreign
Currency (other than Euros), the rate per annum determined on the basis of the
rate for deposits in the relevant currency for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on the
relevant Telerate screen as of 11:00 A.M., Local Time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate
does not appear on the relevant Telerate screen (or otherwise on such screen),
the “Eurodollar Base Rate” shall be determined by reference to the
Bloomberg service or such other comparable publicly available service for
displaying eurocurrency rates as may be selected by the Administrative
Agent or, in the absence of such availability, by reference to the rate at
which the principal office of each Reference Bank offers deposits to prime
banks in the relevant currency at or about 11:00


 


7

















 


A.M., Local Time, two
Business Days prior to the beginning of such Interest Period in the interbank
eurocurrency market where its relevant eurocurrency and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.


 


“Eurodollar Rate”:  with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan denominated in Dollars or Foreign
Currency (other than Euros), a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):


 


	
   

  	
  Eurodollar
  Base Rate

  	
   

  
	
  1.00
  - Eurocurrency Reserve Requirements

  



 


;
provided that with respect to Eurodollar Loans denominated in Foreign
Currency (other than Euros), the Eurodollar Rate shall mean the Eurodollar Base
Rate plus, if applicable, any increases provided for pursuant to the
Mandatory Cost formula on Schedule 1.1C hereto.


 


“Event of Default”:  any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.


 


“Excess Utilization Day”:
each day on which the Commitment Utilization Percentage exceeds 50%.


 


“Exchange Rate”:  on any day, the rate at which the starting
currency may be exchanged into the other relevant currency, as set forth
at approximately 11:00 A.M., Local Time, on such date on the Reuters World
Currency Page for such starting currency. In the event that such rate does
not appear on any Reuters World Currency Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates reasonably selected by the Administrative Agent, or, in the
event no such service is selected, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent in
the market where its foreign currency exchange operations in respect of such
starting currency are then being conducted, at or about 11:00 A.M., Local
Time, on such date for the purchase of such other relevant currency for
delivery two Business Days later; provided that if at the time of any
such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be presumed correct absent
manifest error.


 


“Existing Credit
Agreement”: the Credit Agreement, dated as of December 10, 2003 (as
amended, restated, supplemented or otherwise modified), among Genzyme
Corporation, the subsidiary guarantors party thereto, the lenders party thereto,
Bank of America, N.A. (as successor to Fleet National Bank), as administrative
agent, ABN AMRO Bank, N.V., as syndication agent, and The Bank of Nova Scotia,
Citizens Bank of Massachusetts and Wachovia Bank, National Association, as
co-documentation agents.


 


“Facility Fee Rate”:  the applicable rate per annum set forth in
the Pricing Grid.


 


“Federal Funds Effective
Rate”:  for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the
average of the


 


8

















 


quotations for the day of
such transactions received by JPMorgan Chase Bank, N.A. from three federal
funds brokers of recognized standing selected by it.


 


“Fee Payment Date”:  (a) the third Business Day following the
last day of each March, June, September and December and (b) the
last day of the Commitment Period.


 


“Foreign Currency”:  Euros, and, (i) in the case of
Multicurrency Swingline Loans, as agreed by the Multicurrency Swingline Lender,
(ii) in the case of Multicurrency Letters of Credit, as agreed by Issuing
Lender and (iii) in the case of any other Multicurrency Loan, as agreed by
the Multicurrency Lenders, any other currency which is freely traded and
convertible into Dollars in the London interbank market and for which the
Dollar Equivalent thereof can be calculated.


 


“Funding Office”:  the office of the Administrative Agent
specified in Section 10.2 or such other office as may be specified
from time to time by the Administrative Agent as its funding office by written
notice to the Parent Borrower and the Lenders.


 


“GAAP”:  generally accepted accounting principles in
the United States as in effect from time to time, except that for purposes of Section 7.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in Section 4.1. In the event that
any “Accounting Change” (as defined below) shall occur and such change results
in a change in the method of calculation of financial covenants, standards or
terms in this Agreement, then the Parent Borrower and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this
Agreement so as to reflect equitably such Accounting Changes with the desired
result that the criteria for evaluating the Parent Borrower’s financial
condition shall be the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as such an amendment shall have been
executed and delivered by the Parent Borrower, the Administrative Agent and the
Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting
Changes had not occurred. “Accounting Changes” refers to changes in accounting
principles required by the promulgation of any rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or, if applicable, the SEC.


 


“Governmental Authority”:  any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).


 


“Group Members”:  the collective reference the Parent Borrower
and its Subsidiaries.


 


“Guarantee”: the
Guarantee to be executed and delivered by the Parent Borrower and each
Subsidiary Guarantor, substantially in the form of Exhibit G.


 


“Guarantee Obligation”:  as to any Person (the “guaranteeing person”),
any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing Person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees, any Indebtedness, leases, dividends or other obligations
(the “primary obligations”) of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, including any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any


 


9

















 


property constituting direct
or indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable
are not stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person’s maximum reasonably anticipated
liability in respect thereof as determined by the Parent Borrower in good
faith.


 


“Guarantors”:  the collective reference to the Parent
Borrower and the Subsidiary Guarantors.


 


“Indebtedness”:  of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of
such Person’s business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in
respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) the liquidation value of all mandatorily redeemable
preferred Capital Stock of such Person, (h) all Guarantee Obligations of
such Person in respect of obligations of the kind referred to in clauses (a) through
(g) above, (i) all obligations of the kind referred to in clauses (a) through
(h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation,
and (j) for the purposes of Section 8(e) only, all obligations of
such Person in respect of Swap Agreements. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.


 


“Index
Debt”:  the Loans under this
Agreement.


 


“Insolvency”:  with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.


 


“Insolvent”:  pertaining to a condition of Insolvency.


 


“Intellectual Property”:  the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to sue at law or
in equity for any


 


10

















 


infringement or other
impairment thereof, including the right to receive all proceeds and damages
therefrom.


 


“Interest Payment Date”:  (a) as to any ABR Loan (other than any
Swingline Loan), the last day of each March, June, September and December to
occur while such Loan is outstanding and the final maturity date of such Loan, (b) as
to any Eurocurrency Loan having an Interest Period of three months or less, the
last day of such Interest Period, (c) as to any Eurocurrency Loan having
an Interest Period longer than three months, each day that is three months, or
a whole multiple thereof, after the first day of such Interest Period and the
last day of such Interest Period, (d) as to any Loan (other than any Loan
that is an ABR Loan and any Swingline Loan), the date of any repayment or
prepayment made in respect thereof and (e) as to any Swingline Loan, the
day that such Loan is required to be repaid.


 


“Interest Period”:  as to any Eurocurrency Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurocurrency Loan and ending one, two, three or six (or,
if available, nine or twelve) months thereafter, as selected by the Parent
Borrower in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such
Eurocurrency Loan and ending one, two, three or six (or, if available, nine or
twelve) months thereafter, as selected by the Parent Borrower by irrevocable
notice to the Administrative Agent not later than 11:00 A.M., Local Time,
on the date that is three Business Days prior to the last day of the then
current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:


 


(i)                                     if any Interest
Period would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately
preceding Business Day;


 


(ii)                                  the Parent
Borrower may not select an Interest Period that would extend beyond the
Revolving Termination Date;


 


(iii)                               any Interest
Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of a
calendar month; and


 


(iv)                              the Parent
Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurocurrency Loan during an Interest Period for such Loan.


 


“Investment Subsidiary”:  Genzyme Securities Corporation, a
Massachusetts corporation, to the extent it (i) constitutes a “securities
corporation” for purposes of Massachusetts state tax purposes, (ii) to the
extent required by Massachusetts tax laws and regulations, has no material
operations or assets other than holding portfolio investment securities and (iii) does
not incur, create, assume or suffer to exist any (A) Indebtedness (other
than intercompany Indebtedness pursuant Section 7.2(b)), (B) Guarantee
Obligations (other than intercompany Guarantee Obligations pursuant Section 7.2(c))
or (C) Liens.


 


“Investments”:  as defined in Section 7.7.


 


“Issuing Lender”:  JPMorgan Chase Bank, N.A. or any affiliate
thereof, in its capacity as issuer of any Letter of Credit.


 


11

















 


“Joinder Agreement”:
a joinder agreement, substantially in the form of Exhibit H hereto,
pursuant to which a Subsidiary becomes a Subsidiary Borrower hereunder.


 


“Judgment Currency”:
as defined in Section 2.21(b).


 


“L/C Commitment”:  $25,000,000.


 


“L/C Obligations”:
the collective reference to Dollar L/C Obligations and Multicurrency L/C
Obligations.


 


“L/C Participants”:  the collective reference to all the Lenders
other than the Issuing Lender.


 


“Lenders”:  as defined in the preamble hereto; provided,
that unless the context otherwise requires, each reference herein to the
Lenders shall be deemed to include any Conduit Lender.


 


“Letters of Credit”:  as defined in Section 3.1(a).


 


“Lien”:  any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge
or other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).


 


“Loan”:  any loan made by any Lender pursuant to this
Agreement.


 


“Loan Documents”:  this Agreement, the Guarantee, the Pledge
Agreement, the Notes and any amendment, waiver, supplement or other
modification to any of the foregoing.


 


“Loan Parties”:  each Group Member that is a party to a Loan
Document.


 


“Local Time” means (a) in
the case of Loans denominated in Euros, Frankfurt time, (b) in the case of
any other Multicurrency Loans, London time and (c) in all other cases, New
York City time.


 


“Mandatory Cost”:  as described in Schedule 1.1C.


 


“Material Adverse Effect”:  a material adverse effect on (a) the
business, property, operations, or financial condition of the Parent Borrower
and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement and the other Loan Documents or the rights or
remedies of the Administrative Agent or the Lenders hereunder or thereunder.


 


“Materials of
Environmental Concern”:  any gasoline
or petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.


 


“Material Domestic
Subsidiary”:  any Domestic Subsidiary
that constitutes a Material Subsidiary.


 


“Material Subsidiary”:
on any date, any Subsidiary the total assets of which exceed 5% of the
consolidated total assets of the Parent Borrower and its consolidated
Subsidiaries, each as of the last day of the most recently ended fiscal year.


 


12

















 


“Multicurrency L/C
Obligations”: at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding
Multicurrency Letters of Credit and (b) the aggregate amount of drawings
under Multicurrency Letters of Credit that have not then been reimbursed pursuant
to Section 3.5.


 


“Multicurrency Lender”:  any Lender that holds Multicurrency Loans; provided,
that, for the avoidance of doubt, “Multicurrency Lender” shall include
any Affiliate of such Lender.


 


“Multicurrency Letter of
Credit”: any Letter of Credit denominated in any one of the Foreign
Currencies.


 


“Multicurrency Loan”:  any Loan denominated in a Foreign Currency.


 


“Multicurrency Revolving
Extensions of Credit”: as to any Multicurrency Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount (based on
the Dollar Equivalent thereof) of all Multicurrency Loans held by such Lender
then outstanding and (b) such Multicurrency Lender’s Multicurrency
Revolving Percentage of the Multicurrency L/C Obligations then outstanding
(based on the Dollar Equivalent thereof) and (c) such Multicurrency Lender’s
Multicurrency Revolving Percentage of the aggregate principal amount of
Multicurrency Swingline Loans then outstanding.


 


“Multicurrency Revolving
Percentage”: as to any Multicurrency Lender at any time, the percentage
which such Multicurrency Lender’s Multicurrency Revolving Subcommitment then
constitutes of the aggregate of Multicurrency Revolving Subcommitments or, at
any time after the Multicurrency Revolving Subcommitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender’s
Multicurrency Revolving Extensions of Credit then outstanding then constitute
of the aggregate amount of the Multicurrency Revolving Extensions of Credit
then outstanding.


 


“Multicurrency Revolving
Subcommitment”: as to any Lender, the obligation of such Lender to make
Multicurrency Loans and participate in Multicurrency Swingline Loans and
Multicurrency Letters of Credit in an aggregate principal amount (based on the
Dollar Equivalent thereof) not to exceed the amount set forth under the heading
“Multicurrency” opposite such Lender’s name on Schedule 1.1A or in the
Assignment and Acceptance pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof.
The original amount of the Total Multicurrency Revolving Subcommitments shall
equal the Multicurrency Sublimit of the Revolving Facility.


 


“Multicurrency Sublimit”:  $250,000,000.


 


“Multicurrency Swingline
Loans”:  as defined in Section 2.3.


 


“Multiemployer Plan”:  a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.


 


“Non-Consenting Lender”:
as defined in Section 2.20(b).


 


“Non-Excluded Taxes”:  as defined in Section 2.17(a).


 


“Non-Guarantor Subsidiary:
any Subsidiary of the Parent Borrower that is not a Subsidiary Guarantor.


 


“Non-U.S. Lender”:  as defined in Section 2.17(d).


 


13

















 


“Notes”:  the collective reference to any promissory
note evidencing Loans.


 


“Other Taxes”:  any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.


 


“Participant”:  as defined in Section 10.6(c).


 


“PBGC”:  the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any successor).


 


“Permitted Sale/Leaseback
Transaction”:  any arrangement with
any Person providing for the leasing by the Parent Borrower or any of its
Subsidiaries of real or personal property that has been or is to be sold or
transferred by the Parent Borrower or such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of such Restricted
Subsidiary; provided, that the aggregate amount of outstanding
Permitted/Sale Leaseback Transactions shall not exceed 5% of Consolidated
Tangible Net Worth at any one time outstanding.


 


 “Person”:  an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.


 


“Plan”:  at a particular time, any employee benefit
plan that is subject to Title IV of ERISA and in respect of which the Parent
Borrower or a Commonly Controlled Entity is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to be) an “employer”
as defined in Section 3(5) of ERISA.


 


“Pledge Agreement”:
the Pledge Agreement to be executed and delivered by the Parent Borrower,
substantially in the form of Exhibit H.


 


“Pricing Grid”:  the table set forth below.


 


	
  Category

  	
   

  	
  Rating

  Level

  	
   

  	
  Applicable Margin for

  Eurocurrency/Multicurrency

  Loans (other than

  Multicurrency Swingline

  Loans)

  	
   

  	
  Applicable

  Margin for

  Multicurrency

  Swingline

  Loans

  	
   

  	
  Applicable

  Margin for

  ABR

  Loans

  	
   

  	
  Facility Fee

  Rate

  	
   

  	
  Utilization

  Fee Rate

  	
   

  
	
  I

  	
   

  	
  A or A2 and
  higher

  	
   

  	
  0.180%

  	
   

  	
  0.430%

  	
   

  	
  0.000%

  	
   

  	
  0.070%

  	
   

  	
  0.100%

  	
   

  
	
  II

  	
   

  	
  A- or A3

  	
   

  	
  0.220%

  	
   

  	
  0.470%

  	
   

  	
  0.000%

  	
   

  	
  0.080%

  	
   

  	
  0.100%

  	
   

  
	
  III

  	
   

  	
  BBB+ or Baa1

  	
   

  	
  0.260%

  	
   

  	
  0.510%

  	
   

  	
  0.000%

  	
   

  	
  0.090%

  	
   

  	
  0.100%

  	
   

  
	
  IV

  	
   

  	
  BBB or Baa2

  	
   

  	
  0.350%

  	
   

  	
  0.600%

  	
   

  	
  0.000%

  	
   

  	
  0.100%

  	
   

  	
  0.100%

  	
   

  
	
  V

  	
   

  	
  BBB- or Baa3

  	
   

  	
  0.475%

  	
   

  	
  0.725%

  	
   

  	
  0.000%

  	
   

  	
  0.150%

  	
   

  	
  0.100%

  	
   

  
	
  VI

  	
   

  	
  BB+ or Ba1
  and lower

  	
   

  	
  0.675%

  	
   

  	
  0.925%

  	
   

  	
  0.000%

  	
   

  	
  0.200%

  	
   

  	
  0.100%

  	
   

  



 


14

















 


For the purposes of the
Pricing Grid, changes in the Applicable Margin or in the Facility Fee Rate
resulting from changes in the Index Debt rating by S&P or Moody’s shall
become effective on the Business Date following the announcement of such new
Index Debt rating or if no announcement is made, the Business Date following
the ratings action (the “Adjustment Date”). In the event that S&P
and Moody’s rate the Parent Borrower at different levels, the Facility Fee
Rate, the Applicable Margin for Eurocurrency Loans and Multicurrency Loans, and
the Applicable Margin for ABR Loans in effect at any time will be based upon (a) the
category consistent with the higher Index Debt rating if the Index Debt ratings
differ by only one level, or (b) the category consistent with one Index
Debt ratings level below the higher Index Debt rating if the Index Debt ratings
differ by two or more levels. If (i) neither Moody’s nor S&P shall
have in effect a Index Debt rating, (ii) the rating system of Moody’s or
S&P shall change, or (iii) if either such rating agency shall cease to
be in the business of rating corporate debt obligations, the Parent Borrower
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the Index
Debt rating shall be determined by reference to the rating most recently in
effect prior to such change or cessation.


 


“Proposed Change”: as
defined in Section 2.20(b).


 


“Reference Banks”:
the collective reference to JPMorgan Chase Bank, N.A. and Bank of America, N.A.


 


“Refunded Swingline Loans”:  as defined in Section 2.4.


 


“Register”:  as defined in Section 10.6(b).


 


“Regulation U”:  Regulation U of the Board as in effect from
time to time.


 


“Reimbursement Obligation”:  the obligation of the Borrowers to reimburse
the Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters
of Credit.


 


“Reorganization”:  with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.


 


“Reportable Event”:  any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.


 


“Required Lenders”:  at any time, the holders of more than 50% of (a) until
the Closing Date, the Commitments then in effect and (b) thereafter the
Total Commitments then in effect or, if the Commitments have been terminated,
the Total Revolving Extensions of Credit then outstanding.


 


“Requirement of Law”:  as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.


 


15

















 


“Reset Date”: as
defined in Section 2.22(a).


 


“Responsible Officer”:  the chief executive officer, president, chief
financial officer or treasurer of the Parent Borrower, but in any event, with
respect to financial matters, the chief financial officer or treasurer of the
Parent Borrower.


 


“Restricted Payments”:  as defined in Section 7.6.


 


“Revolving Extensions of
Credit”:  as to any Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of
all Loans (or the Dollar Equivalent thereof in the case of Multicurrency Loans)
held by such Lender then outstanding, (b) such Lender’s Revolving
Percentage of the L/C Obligations (or the Dollar Equivalent thereof in the case
of Multicurrency L/C Obligations) then outstanding and (c) such Lender’s
Revolving Percentage of the aggregate principal amount of Swingline Loans then
outstanding (or the Dollar Equivalent thereof in the case of Multicurrency
Swingline Loans).


 


“Revolving Facility”:  the Commitments and the extensions of credit
made thereunder, including the multicurrency subfacility.


 


“Revolving Percentage”:  as to any Lender at any time, the percentage
which such Lender’s Commitment then constitutes of the Total Commitments or, at
any time after the Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender’s Loans then outstanding
constitutes of the aggregate principal amount of the Loans then outstanding, provided,
that, in the event that the Loans are paid in full prior to the reduction to
zero of the Total Revolving Extensions of Credit, the Revolving Percentages
shall be determined in a manner designed to ensure that the other outstanding
Revolving Extensions of Credit shall be held by the Lenders on a comparable basis.


 


“Revolving Termination
Date”:  July 14, 2011.


 


“SEC”:  the Securities and Exchange Commission, any
successor thereto and any analogous Governmental Authority.


 


“Single Employer Plan”:  any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.


 


“Subsidiary”:  as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening of
a contingency) to elect a majority of the board of directors or other managers
of such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Parent Borrower.


 


“Subsidiary Borrower”:  each Subsidiary of the Parent Borrower listed
as a Subsidiary Borrower in Schedule 1.1B.


 


“Subsidiary Borrower
Opinion”: with respect to any Subsidiary Borrower, a legal opinion of
counsel to such Subsidiary Borrower addressed to the Administrative Agent and
the Lenders covering matters set forth on Exhibit I, with such
assumptions, qualifications and deviations therefore as the Administrative
Agent shall approve (such approval not to be unreasonably withheld).


 


16

















 


“Subsidiary Guarantor”:  each Material Domestic Subsidiary, other than
the Investment Subsidiary.


 


“Swap Agreement”:  any
agreement with respect to any swap, forward, future or derivative transaction
or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination of these
transactions; provided that no phantom stock or similar plan
providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Parent Borrower or
any of its Subsidiaries shall be a “Swap Agreement”.


 


“Swingline Commitment”:  the obligation of the Swingline Lender to
make Swingline Loans pursuant to Section 2.3 in an aggregate principal
amount at any one time outstanding not to exceed $20,000,000.


 


“Swingline Lender”:  JPMorgan Chase Bank, N.A., in its capacity as
the lender of Swingline Loans.


 


“Swingline Loans”:  the collective reference to the Dollar
Swingline Loans and the Multicurrency Swingline Loans.


 


“Swingline Multicurrency Quoted Rate”:  for any day, with respect to any Swingline
Loan denominated in Foreign Currency, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the average rate at which
overnight deposits in the currency in which such Swingline Loan is denominated
and approximately equal in principal amount to such Swingline Loan are
obtainable by the Swingline Lender on such day at its lending office for such
Swingline Loan in the interbank market (or any other market for overnight funds
in such currency utilized by the Swingline Lender), adjusted to reflect any
direct or indirect costs of obtaining such deposits. The Swingline
Multicurrency Quoted Rate shall be determined for each day by the Swingline
Lender and such determination shall be presumed correct in the absence of facts
or circumstances indicating that it has been made in error.


 


“Swingline Participation
Amount”:  as defined in Section 2.4.


 


“Syndication Agent”:  as defined in the preamble hereto.


 


“Total Commitments”:  at any time, the aggregate amount of the
Commitments then in effect.


 


“Total Revolving
Extensions of Credit”:  at any time,
the aggregate amount of the Revolving Extensions of Credit of the Lenders
outstanding at such time.


 


“Transferee”:  any Assignee or Participant.


 


“Type”:  as to any Loan, its nature as an ABR Loan or
a Eurocurrency Loan, and as a Swingline Loan or Loan made directly by all the
Lenders.


 


“United States”:  the United States of America.


 


“Utilization Fee Rate”:  the applicable rate per annum set forth in
the Pricing Grid.


 


17

















 


“Wholly Owned Subsidiary”:  as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares, local resident
shares and other minimal amounts required by law) is owned by such Person
directly and/or through other Wholly Owned Subsidiaries.


 


“Wholly Owned Subsidiary
Guarantor”:  any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Parent Borrower.


 


1.2                                 Other
Definitional Provisions. (a) Unless otherwise specified therein, all
terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.


 


(b)  As used herein and
in the other Loan Documents, and any certificate or other document made or
delivered pursuant hereto or thereto, (i) accounting terms relating to any
Group Member not defined in Section 1.1 and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP, (ii) the words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”, (iii) the word “incur” shall be construed to mean incur,
create, issue, assume, become liable in respect of or suffer to exist (and the
words “incurred” and “incurrence” shall have correlative meanings), (iv) the
words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights, and (v) references to agreements
or other Contractual Obligations shall, unless otherwise specified, be deemed
to refer to such agreements or Contractual Obligations as amended,
supplemented, restated or otherwise modified from time to time.


 


(c)  The words “hereof”,
“herein” and “hereunder” and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, Schedule and Exhibit references
are to this Agreement unless otherwise specified.


 


(d)  The meanings given
to terms defined herein shall be equally applicable to both the singular and
plural forms of such terms.


 


SECTION 2.  AMOUNT AND TERMS OF COMMITMENTS


 


2.1                                 Commitments.
(a) Subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans to any
Borrower in Dollars or in any Foreign Currency from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
which (i) when added to such Lender’s Revolving Percentage of the sum of
(x) the L/C Obligations then outstanding and (y) the aggregate principal amount
of the Swingline Loans then outstanding, does not exceed the amount of such
Lender’s Commitment and (ii) in the case of any Loans or Letters of Credit
denominated in any Foreign Currency, when added to such Lender’s Multicurrency
Revolving Percentage of the sum of (x) the Multicurrency L/C Obligations then
outstanding and (y) the aggregate principal amount of the Multicurrency
Swingline Loans then outstanding, does not exceed the amount of such Lender’s
Multicurrency Revolving Subcommitment. During the Commitment Period any
Borrower may use the Commitments by borrowing, prepaying the Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Dollar Loans may from time to time be Eurocurrency
Loans or ABR Loans, as determined by the relevant Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.10. The
Multicurrency Loans (except for Multicurrency Swingline Loans) shall be
Eurocurrency Loans. The Loans shall bear interest in accordance with Section 2.12.


 


18

















 


(b)  Each Borrower
shall repay all outstanding Loans made to it on the Revolving Termination Date.


 


2.2                                 Procedure
for Loan Borrowing. A Borrower may borrow under the Commitments during
the Commitment Period on any
Business Day, provided that the Parent Borrower (on its own behalf or on
behalf of any Subsidiary Borrower) shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 12:00 noon, Local Time, (a) three Business Days prior to the
requested Borrowing Date, in the case of Eurocurrency Loans or (b) one
Business Day prior to the requested Borrowing Date, in the case of ABR Loans) (provided
that any such notice of a borrowing of ABR Loans under the Revolving Facility
to finance payments required by Section 3.5 may be given not later
than 11:00 A.M., Local Time, on the date of the proposed borrowing),
specifying (i) the amount, currency and Type of Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of Eurocurrency Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Period therefor. Any Loans made on the Closing Date shall initially
be ABR Loans. Each borrowing under the Commitments shall be in an amount equal
to (x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if
the then aggregate Available Commitments are less than $1,000,000, such lesser
amount) and (y) in the case of Eurocurrency Loans, $5,000,000 or a whole
multiple of $1,000,000 in excess thereof (or in the case of Multicurrency
Loans, the approximate Dollar Equivalent thereof); provided, that the
Swingline Lender may request, on behalf of the Parent Borrower, borrowings
under the Commitments that are ABR Loans in other amounts pursuant to Section 2.4.
Upon receipt of any such notice from the Parent Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro  rata share of each borrowing available to the
Administrative Agent for the account of the relevant Borrower at the Funding
Office prior to 12:00 Noon, Local Time, on the Borrowing Date requested by the
Parent Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the relevant Borrower by the
Administrative Agent crediting the account of such Borrower on the books of
such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.


 


2.3                                 Swingline
Commitment. (a) Subject to the terms and conditions hereof, the
Swingline Lender agrees to make a
portion of the credit otherwise available to any Borrower under the Commitments
from time to time during the Commitment Period by making swing line loans in
Dollars (“Dollar Swingline Loans”) or in Foreign Currency (“Multicurrency
Swingline Loans”) to the Borrowers; provided that (i) the
Dollar Equivalent aggregate principal amount of Swingline Loans outstanding at
any time shall not exceed the Swingline Commitment then in effect
(notwithstanding that the Swingline Loans outstanding at any time, when
aggregated with the Swingline Lender’s other outstanding Loans, may exceed
the Swingline Commitment then in effect) and (ii) a Borrower shall not
request, and the Swingline Lender shall not make, any Swingline Loan if, after
giving effect to the making of such Swingline Loan, the aggregate amount of the
Available Commitments would be less than zero. During the Commitment Period,
any Borrower may use the Swingline Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Dollar
Swingline Loans shall be ABR Loans only. Multicurrency Swingline Loans shall
bear interest at the Swingline Multicurrency Quoted Rate.


 


(b)  Each Borrower
shall repay to the Swingline Lender the then unpaid principal amount of each
Swingline Loan made to it on the earlier of the Revolving Termination Date and
the first date after such Swingline Loan is made that is the 15th or last day
of a calendar month and is at least two Business Days after such Swingline Loan
is made; provided that on each date that a Loan is borrowed, the relevant
Borrower shall repay all Swingline Loans then outstanding.


 


19

















 


2.4                                 Procedure
for Swingline Borrowing; Refunding of Swingline Loans. (a) Whenever a
Borrower desires that the
Swingline Lender make Swingline Loans it shall give the Swingline Lender
irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Swingline Lender not later than (x) with respect
to Dollar Swingline Loans, 1:00 P.M., Local Time, on the proposed
Borrowing Date and (y) with respect to Multicurrency Swingline Loans, 11:00 A.M.,
Local Time, on the proposed Borrowing Date), specifying (i) the amount to
be borrowed, (ii) the requested Borrowing Date (which shall be a Business
Day during the Commitment Period) and (iii) whether such Loan is to be a
Dollar Swingline Loan or a Multicurrency Swingline Loan and (iv) in the
case of Multicurrency Swingline Loans, the length of the initial and any
subsequent Interest Period therefor. Each borrowing under the Swingline
Commitment shall be in an amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof (or in the case of Multicurrency Swingline Loans,
the approximate Dollar Equivalent thereof). Not later than 3:00 P.M.,
Local Time, on the Borrowing Date specified in a notice in respect of Swingline
Loans, the Swingline Lender shall make available to the Administrative Agent at
the Funding Office an amount in immediately available funds equal to the amount
of the Swingline Loan to be made by the Swingline Lender. The Administrative
Agent shall make the proceeds of such Swingline Loan available to the relevant
Borrower on such Borrowing Date by depositing such proceeds in the account of
such Borrower with the Administrative Agent on such Borrowing Date in
immediately available funds.


 


(b)  The Swingline
Lender, at any time and from time to time in its sole and absolute discretion
may, on behalf of each Borrower (which hereby irrevocably direct the Swingline
Lender to act on their behalf), on one Business Day’s notice given by the
Swingline Lender no later than 12:00 Noon, Local Time, request each Lender to
make, and each Lender hereby agrees to make, a Loan, in an amount equal to such
Lender’s Revolving Percentage of the aggregate amount of the Swingline Loans
(the “Refunded Swingline Loans”) outstanding on the date of such notice,
to repay the Swingline Lender. Each Lender shall make the amount of such Loan
available to the Administrative Agent at the Funding Office in immediately
available funds, not later than 10:00 A.M., Local Time, one Business Day
after the date of such notice. The proceeds of such Loans shall be immediately
made available by the Administrative Agent to the Swingline Lender for
application by the Swingline Lender to the repayment of the Refunded Swingline
Loans. Each Borrower irrevocably authorizes the Swingline Lender to charge such
Borrower’s accounts with the Administrative Agent (up to the amount available
in each such account) in order to immediately pay the amount of such Refunded
Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full such Refunded Swingline Loans.


 


(c)  If prior to the
time a Loan would have otherwise been made pursuant to Section 2.4(b), one
of the events described in Section 8(f) shall have occurred and be
continuing with respect to any of the Borrowers or if for any other reason, as
determined by the Swingline Lender in its sole discretion, Loans may not
be made as contemplated by Section 2.4(b), each Lender shall, on the date
such Loan was to have been made pursuant to the notice referred to in Section 2.4(b),
purchase for cash an undivided participating interest in the then outstanding
Swingline Loans by paying to the Swingline Lender an amount (the “Swingline
Participation Amount”) equal to (i) such Lender’s Revolving Percentage
times (ii) the sum of the aggregate principal amount of Swingline
Loans then outstanding that were to have been repaid with such Loans.


 


(d)  Whenever, at any
time after the Swingline Lender has received from any Lender such Lender’s
Swingline Participation Amount, the Swingline Lender receives any payment on
account of the Swingline Loans, the Swingline Lender will distribute to such
Lender its Swingline Participation Amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender’s pro  rata portion of
such payment if such payment is not sufficient to pay the principal of and
interest on all Swingline Loans then due); provided, however,
that in the event


 


20

















 


that such payment received by the Swingline Lender
is required to be returned, such Lender will return to the Swingline Lender any
portion thereof previously distributed to it by the Swingline Lender.


 


(e)  Each Lender’s
obligation to make the Loans referred to in Section 2.4(b) and to
purchase participating interests pursuant to Section 2.4(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right
that such Lender or any Borrower may have against the Swingline Lender,
any Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Section 5, (iii) any
adverse change in the financial condition of the Parent Borrower, (iv) any
breach of this Agreement or any other Loan Document by any Borrower, any other
Loan Party or any other Lender or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.


 


2.5                                 Facility
Fees, Utilization Fees, etc.(a)  The Parent Borrower agrees to pay to
the Administrative Agent for the
account of each Lender a facility fee (payable in Dollars) for the period from
and including the date hereof to the last day of the Commitment Period,
computed at the Facility Fee Rate on the average daily amount of the Commitment
of such Lender (whether used or unused) during the period for which payment is
made, payable quarterly in arrears on each Fee Payment Date, commencing on the
first such date to occur after the date hereof.


 


(b)  The Parent
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a utilization fee (payable in Dollars) for the period from and including
the date hereof to the last day of the Commitment Period, computed at the
Utilization Fee Rate on the average daily amount of the Revolving Extensions of
Credit outstanding of such Lender for each Excess Utilization Day during the
period for which payment is made, payable quarterly in arrears on each Fee
Payment Date, commencing on the first such date to occur after the date hereof.


 


(c)  The Parent
Borrower agrees to pay to the Administrative Agent the fees in the amounts
(payable in Dollars) and on the dates as set forth in any fee agreements with
the Administrative Agent and to perform any other obligations contained
therein.


 


2.6                                 Termination
or Reduction of Commitments. The Parent Borrower shall have the right, upon
not less than three
Business Days’ notice to the Administrative Agent, to terminate the Commitments
or, from time to time, to reduce the amount of the Commitments; provided
that no such termination or reduction of Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Loans and Swingline
Loans made on the effective date thereof, the Total Revolving Extensions of
Credit would exceed the Total Commitments. Any such reduction shall be in an
amount equal to $1,000,000, or a whole multiple thereof (or in the case of
Multicurrency Loans, the Dollar Equivalent thereof), and shall reduce
permanently the Commitments then in effect.


 


2.7                                 Additional
Commitments. The Parent Borrower may request, in minimum amounts of
$10,000,000, at any time and from
time to time that the existing Lenders increase their respective Commitments
(and ratably increase their Multicurrency Revolving Subcommitment) and/or that
additional Lenders be added to this Agreement as Lenders with Commitments (and
pro rata Multicurrency Revolving Subcommitments) until such time as the Total
Commitments are equal to $700,000,000 (and that the Multicurrency Sublimit is
so ratably increased); provided, that (i) at the time of the
relevant request, no Default or Event of Default shall have occurred and be
continuing and that the representations and warranties of the Parent Borrower
shall continue to be accurate in all material respects, and (ii) any such
additional Lender shall be approved by the Administrative Agent and Issuing
Lender (such approval not to be unreasonably withheld or delayed). Each
existing Lender shall have the right (but not the obligation) to increase its
Commitment based on its Revolving Percentage on the same


 


21

















 


terms and conditions being offered to any additional
Lenders.  By its signature of a
confirmation of its increased or additional Commitment in a form satisfactory
to the Parent Borrower and the Administrative Agent (and subsequent to its
delivery of a completed or revised administrative questionnaire to the
Administrative Agent), each increasing or additional Lender shall be a “Lender”
for all purposes hereunder with its increased or additional Commitment, and Schedule 1.1A
shall be automatically amended to reflect any such additional Lender’s new
Commitment and any such increasing Lender’s new Commitment.  Upon increasing its Commitment or becoming a “Lender”
hereunder, each Lender shall automatically be responsible for its Revolving
Percentage of the Aggregate Exposure and to pay to the Administrative Agent its
Revolving Percentage of the Loans (with interest rates and currencies
applicable thereto as under this Agreement).


 


2.8           Optional Prepayments.  Any Borrower may at any time and from time to
time prepay the Loans, in whole or in
part, without premium or penalty, upon irrevocable notice delivered to the
Administrative Agent no later than (w) 12:00 noon, Local Time, three Business
Days prior thereto, in the case of Eurocurrency Loans, (x) 12:00 noon, Local
Time, one Business Day prior thereto, in the case of ABR Loans (other than
Dollar Swingline Loans), (y) 11:00 A.M., Local Time, on the date of
prepayment for Multicurrency Swingline Loans and (z) 12:00 noon, Local Time, on
the date of prepayment for Dollar Swingline Loans, which notice shall specify
the date and amount of prepayment and whether the prepayment is of Eurocurrency
Loans or ABR Loans; provided, that if a Eurocurrency Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the
Borrowers shall also pay any amounts owing pursuant to Section 2.18.  Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.  If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of Loans that are ABR Loans and
Swingline Loans) accrued interest to such date on the amount prepaid.  Partial prepayments of Loans shall be in an
aggregate principal amount of $1,000,000 or a whole multiple thereof (or in the
case of Multicurrency Loans, the approximate Dollar Equivalent thereof).  Partial prepayments of Swingline Loans shall
be in an aggregate principal amount of $100,000 or a whole multiple thereof (or
in the case of Multicurrency Swingline Loans, the approximate Dollar Equivalent
thereof).  If the Borrowers reduce the
Commitments, the Multicurrency Sublimit shall subsequently be reduced on a pro
rata basis


 


2.9           Mandatory
Prepayments and Commitment Reductions. 
If on any date (i) the Total Revolving Extensions of Credit exceed the amount
of the Total Commitments or (ii) the Dollar Equivalent of the
Multicurrency Revolving Extensions of Credit outstanding on such date exceeds
the Multicurrency Sublimit, an amount equal to the difference between the Total
Revolving Extensions of Credit and the Total Commitments or the difference
between the Multicurrency Sublimit and the Dollar Equivalent of the
Multicurrency Revolving Extensions of Credit outstanding, respectively, shall
be applied on such date towards the prepayment of the Loans and/or Swingline
Loans or Multicurrency Loans and/or Multicurrency Swingline Loans,
respectively; provided that if the aggregate principal amount of Loans
and Swingline Loans then outstanding is less than the amount of such excess
(because L/C Obligations constitute a portion thereof), the relevant Borrower
shall, to the extent of the balance of such excess, replace outstanding Letters
of Credit and/or deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions reasonably satisfactory to the Administrative Agent.  The application of any prepayment of Dollar
Loans pursuant to Section 2.9 shall be made, first, to ABR Loans
and, second, to Eurocurrency Loans. 
Each prepayment of the Loans under Section 2.9 (except in the case
of Loans that are ABR Loans and Swingline Loans) shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid.


 


2.10         Conversion and
Continuation Options.  (a)   The Parent Borrower may elect from time to
time to convert Eurocurrency
Loans to ABR Loans by giving the Administrative Agent prior


 


22

















 


irrevocable notice of such
election no later than 12:00 noon, Local Time, on the Business Day preceding
the proposed conversion date, provided that any such conversion of
Eurocurrency Loans may only be made on the last day of an Interest Period with
respect thereto.  The Parent Borrower may
elect from time to time to convert ABR Loans to Eurocurrency Loans by giving
the Administrative Agent prior irrevocable notice of such election no later
than 12:00 noon, Local Time, on the third Business Day preceding the proposed
conversion date (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan may be converted into a
Eurocurrency Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Required Lenders have determined in its or their
sole discretion not to permit such conversions. 
Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof.


 


(b)  Any Eurocurrency
Loan may be continued as such upon the expiration of the then current Interest
Period with respect thereto by the Parent Borrower giving irrevocable notice to
the Administrative Agent, in accordance with the applicable provisions of the
term “Interest Period” set forth in Section 1.1, of the length of the next
Interest Period to be applicable to such Loans, provided that no
Eurocurrency Loan may be continued as such when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such
continuations, and provided, further, that if the Parent Borrower
(on its own behalf or on behalf of any Subsidiary Borrower) shall fail to give
any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period.  Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.


 


2.11         Limitations on
Eurocurrency Tranches. 
Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurocurrency Loans and all selections of Interest Periods
shall be in such amounts and be made pursuant to such elections so that, (a) after
giving effect thereto, the aggregate principal amount of the Eurocurrency Loans
comprising each Eurocurrency Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 (or in the case of Multicurrency Loans, the approximate
Dollar Equivalent thereof) in excess thereof and (b) no more than ten
Eurocurrency Tranches shall be outstanding at any one time.


 


2.12         Interest Rates and Payment
Dates.  (a)   Each Eurocurrency Loan denominated in Dollars
or Foreign Currency (other
than Euros) shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurodollar Rate determined for
such day plus the Applicable Margin.


 


(b)  Each Eurocurrency
Loan denominated in Euros shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the EURIBOR Rate
determined for such day plus the Applicable Margin.


 


(c)  Each ABR Loan
shall bear interest at a rate per annum equal to the ABR plus the Applicable
Margin.


 


(d)  Each Dollar
Swingline Loan shall bear interest at a rate per annum equal to the ABR plus
the Applicable Margin.


 


(e)  Each Multicurrency
Swingline Loan shall bear interest at a rate per annum equal to the Swingline
Multicurrency Quoted Rate plus the Applicable Margin.


 


(f)  (i) If all or
a portion of the principal amount of any Loan or Reimbursement Obligation shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such


 


23

















 


overdue amount shall bear interest at a rate
per annum equal to (x) in the case of the Loans, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section plus
2% or (y) in the case of Reimbursement Obligations, the rate applicable to ABR
Loans or Eurocurrency Loans, as applicable, under the Revolving Facility plus
2%, and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any facility fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal
to the rate then applicable to ABR Loans plus 2% (unless such overdue
amount is denominated in a Foreign Currency, in which case such overdue amount
shall bear interest at a rate per annum equal to the highest rate then
applicable under this Agreement to Multicurrency Loans denominated in such
Foreign Currency plus 2%), in each case, with respect to clauses (i) and
(ii) above, from the date of such non-payment until such amount is paid in
full (as well after as before judgment).


 


(g)  Interest shall be
payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (c) of this Section shall be payable
from time to time on demand.


 


2.13         Computation of
Interest and Fees.  (a)   Interest and fees payable pursuant hereto
shall be calculated on the basis
of a 360-day year for the actual days elapsed, except that, with respect to (x)
ABR Loans the rate of interest on which is calculated on the basis of the Prime
Rate or (y) Multicurrency Loans where market practice so differs, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed. 
The Administrative Agent shall as soon as practicable notify the Parent
Borrower and the relevant Lenders of each determination of a Eurocurrency
Rate.  Any change in the interest rate on
a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective.  The
Administrative Agent shall as soon as practicable notify the Parent Borrower
and the relevant Lenders of the effective date and the amount of each such
change in interest rate.


 


(b)  Each determination
of an interest rate by the Administrative Agent pursuant to any provision of
this Agreement shall be conclusive and binding on each Borrower and the Lenders
in the absence of manifest error.  The
Administrative Agent shall, at the request of the Parent Borrower, deliver to
the Parent Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section 2.12(a).


 


2.14         Inability to Determine
Interest Rate.  If prior to the first
day of any Interest Period:


 


(a)  the Administrative Agent shall have
reasonably determined (which determination shall be conclusive and binding upon
each Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate
for such Interest Period, or


 


(b)  the Administrative Agent shall have received
notice from the Required Lenders that the Eurocurrency Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,


 


the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Parent Borrower and the relevant Lenders as soon as practicable
thereafter.  If such notice is given (x)
any Eurocurrency Loans requested to be made on the first day of such Interest
Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurocurrency Loans shall
be


 


24

















 


continued
as ABR Loans and (z) any outstanding Eurocurrency Loans shall be converted, on
the last day of the then-current Interest Period, to ABR Loans.  Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans shall be made or continued
as such, nor shall any Borrower have the right to convert Loans to Eurocurrency
Loans.


 


2.15         Pro Rata Treatment and
Payments.  (a)   Each borrowing by a Borrower from the Lenders
hereunder, each payment by a
Borrower on account of any facility fee and any reduction of the Commitments of
the Lenders shall be made pro  rata according to the Revolving
Percentages of the relevant Lenders.


 


(b)  Each payment
(including each prepayment) by a Borrower on account of principal of and
interest on the Loans shall be made pro  rata according to the
respective outstanding principal amounts of the Loans then held by the Lenders.


 


(c)  All payments
(including prepayments) to be made by a Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, Local Time, on the due date
thereof to the Administrative Agent, for the account of the Lenders, at the
Funding Office, in Dollars, with respect to Dollar Loans and any fees or other
payments (other than principal and interest) with respect to Multicurrency
Loans, or the relevant Foreign Currency, with respect to the principal and
interest on Multicurrency Loans, in each case in immediately available
funds.  The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received.  If any payment hereunder
(other than payments on the Eurocurrency Loans) becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day.  If any payment
on a Eurocurrency Loan becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into
another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.  In the
case of any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.


 


(d)  Unless the
Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its
share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount.  If such amount is
not made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon, at a rate (i) with respect to
all Loans other than Multicurrency Loans, equal to the greater of (x) the
Federal Funds Effective Rate and (y) a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation
and (ii) with respect to Multicurrency Loans, the interest rate reasonably
determined by the Administrative Agent to reflect the cost of funds for the
amount paid by the Administrative Agent on behalf of the relevant Borrower,
each for the period until such Lender makes such amount immediately available
to the Administrative Agent.  A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this paragraph shall be conclusive in the absence of
manifest error.  If such Lender’s share
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days after such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at
the rate per annum applicable to ABR Loans on demand from the relevant
Borrower.


 


(e)  Unless the
Administrative Agent shall have been notified in writing by the relevant
Borrower prior to the date of any payment due to be made by such Borrower
hereunder that such


 


25

















 


Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that such Borrower is
making such payment, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Lenders
their respective pro  rata shares of a corresponding amount.  If such payment is not made to the
Administrative Agent by the relevant Borrower within three Business Days after
such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate.  Nothing herein shall be deemed to limit the
rights of the Administrative Agent or any Lender against the relevant Borrower.


 


2.16         Requirements of Law.  (a)  
If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:


 


(i)  shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application, any
Eurocurrency Loan or any Multicurrency Swingline Loan made by it, or change the
basis of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.17 and changes in the rate of tax
on the overall net income of such Lender);


 


(ii)  shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any office
of such Lender that is not otherwise included in the determination of the
Eurocurrency Rate; or


 


(iii)    shall impose on
such Lender any other condition;


 


and the result of any of the foregoing is to
increase the cost to such Lender (in the case of Dollar Loans only, by an
amount that such Lender deems to be material) of making, converting into,
continuing or maintaining Eurocurrency Loans, Multicurrency Swingline Loans or
issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Parent
Borrower shall promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced
amount receivable.  If any Lender becomes
entitled to claim any additional amounts pursuant to this paragraph, it shall
promptly notify the Parent Borrower (with a copy to the Administrative Agent)
of the event by reason of which it has become so entitled.


 


(b)  If any Lender
shall have determined that the adoption of or any change in any Requirement of
Law regarding capital adequacy or in the interpretation or application thereof
or compliance by such Lender or any corporation controlling such Lender with
any request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such Lender’s or
such corporation’s capital as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such corporation’s
policies with respect to capital adequacy) (in the case of Dollar Loans only, by
an amount deemed by such Lender to be material), then from time to time, after
submission by such Lender to the Parent Borrower (with a copy to the
Administrative Agent) of a written request therefor, the Parent Borrower


 


26

















 


shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such corporation for such
reduction.


 


(c)  A certificate
showing computations as to any additional amounts payable pursuant to this Section submitted
by any Lender to the Parent Borrower (with a copy to the Administrative Agent)
shall be conclusive in the absence of manifest error, provided that the computations
and any allocations therein are on a reasonable basis.  Notwithstanding anything to the contrary in
this Section, the Borrowers shall not be required to compensate a Lender
pursuant to this Section for any amounts incurred, in the case of Dollar
Loans, more than nine months or, in the case of Multicurrency Loans, more than
12 months prior to the date that such Lender notifies the Parent Borrower of
such Lender’s intention to claim compensation therefor; provided that,
if the circumstances giving rise to such claim have a retroactive effect, then
such nine-month or 12-month period, as the case may be, shall be extended to
include the period of such retroactive effect. 
The obligations of Parent Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.


 


2.17         Taxes.  (a) All payments made by any Borrower
under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or
any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document).  If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings (“Non-Excluded Taxes”) or Other Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that a
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to
such Lender’s failure to comply with the requirements of paragraph (d) or (e) of
this Section or (ii) that are United States withholding taxes imposed
on amounts payable to such Lender at the time such Lender becomes a party to
this Agreement, except to the extent that such Lender’s assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from any
Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.


 


(b)  In addition, the
relevant Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)  Whenever any
Non-Excluded Taxes or Other Taxes are payable by any Borrower, as promptly as
possible thereafter such Borrower shall send to the Administrative Agent for
its own account or for the account of the relevant Lender, as the case may be,
a certified copy of an original official receipt received by such Borrower
showing payment thereof.  If the relevant
Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or
any Lender as a result of any such failure.


 


27

















 


(d)   Each Lender (or Transferee) that is not a “U.S.
Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S.
Lender”) shall deliver to the Parent Borrower and the Administrative Agent
(or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of “portfolio interest”, a
statement substantially in the form of Exhibit E and a Form W-8BEN,
or any subsequent versions thereof or successors thereto, properly completed
and duly executed by such Non-U.S. Lender claiming complete exemption from, or
a reduced rate of, U.S. federal withholding tax on all payments by any Borrower
under this Agreement and the other Loan Documents.  Such forms shall be delivered by each Non-U.S.
Lender on or before the date it becomes a party to this Agreement (or, in the
case of any Participant, on or before the date such Participant purchases the
related participation).  In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.  Each Non-U.S. Lender shall promptly notify
the Parent Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Parent Borrower
(or any other form of certification adopted by the U.S. taxing authorities for
such purpose).  Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to deliver
any form pursuant to this paragraph that such Non-U.S. Lender is not legally
able to deliver.


 


(e)  A Lender that is
entitled to an exemption from or reduction of non-U.S. withholding tax under
the law of the jurisdiction in which a Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Parent Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Parent Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender’s judgment such completion, execution or submission would
not materially prejudice the legal position of such Lender.


 


(f)  If the Administrative Agent or any Lender
determines, in its sole discretion, that it has received a refund of any
Non-Excluded Taxes or Other Taxes as to which it has been indemnified by any
Borrower or with respect to which such Borrower have paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund to such
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section 2.17 with respect to the
Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the relevant Borrower, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to such Borrower
(plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to any
Borrower or any other Person.


 


(g)  The agreements in
this Section shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.


 


2.18         Indemnity.  Each Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any
loss or expense that such Lender may sustain or incur as a consequence of (a) default
by such Borrower in making a borrowing of, conversion into or continuation of
Eurocurrency Loans or Multicurrency Swingline Loans after the relevant Borrower
has given a notice


 


28

















 


requesting the same in accordance
with the provisions of this Agreement, (b) default by such Borrower in
making any prepayment of or conversion from Eurocurrency Loans or Multicurrency
Swingline Loans after the relevant Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurocurrency Loans or Multicurrency Swingline Loans on a day that
is not the last day of an Interest Period with respect thereto.  Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest
(as reasonably determined by such Lender) that would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank eurocurrency market.  A certificate as to any amounts payable
pursuant to this Section submitted to any Borrower by any Lender shall be
conclusive in the absence of manifest error. 
This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.


 


2.19         Change of Lending
Office.  Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of Section 2.16 or 2.17(a) with
respect to such Lender, it will, if requested by the Parent Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in
this Section shall affect or postpone any of the obligations of any
Borrower or the rights of any Lender pursuant to Section 2.16 or 2.17(a).


 


2.20         Replacement of Lenders.  (a) The Parent Borrower shall be
permitted to replace any Lender that (i) requests reimbursement for amounts owing pursuant
to Section 2.16 or 2.17(a) or (ii) defaults in its obligation to
make Loans hereunder, with a replacement financial institution; provided
that (A) such replacement does not conflict with any Requirement of Law, (B) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (C) prior to any such replacement, such Lender shall have
taken no action under Section 2.19 so as to eliminate the continued need
for payment of amounts owing pursuant to Section 2.16 or 2.17(a), (D) the
replacement financial institution shall purchase, at par, all Loans and other
amounts owing to such replaced Lender on or prior to the date of replacement, (E) the
relevant Borrower shall be liable to such replaced Lender under Section 2.18
if any Eurocurrency Loan owing to such replaced Lender shall be purchased other
than on the last day of the Interest Period relating thereto, (F) the
replacement financial institution shall be reasonably satisfactory to the
Administrative Agent, (G) the replaced Lender shall be obligated to make
such replacement in accordance with the provisions of Section 10.6
(provided that the Parent Borrower shall be obligated to pay the registration
and processing fee referred to therein), (H) until such time as such replacement
shall be consummated, the relevant Borrower shall pay all additional amounts
(if any) required pursuant to Section 2.16 or 2.17(a), as the case may be,
and (I) any such replacement shall not be deemed to be a waiver of any
rights that any Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender.


 


(b) If, in connection with any proposed amendment, modification,
waiver or termination pursuant to Section 10.1 (a “Proposed Change”)
requiring the consent of all affected Lenders, the consent of at least a
majority of the Lenders is obtained, but the consent of other Lenders whose
consent is required is not obtained (any such Lender whose consent is not
obtained as described in this clause (b) being referred to as a “Non-Consenting
Lender”), then, a Person designated by the Parent Borrower and reasonably
acceptable to the Administrative Agent, shall have the right (but shall have no
obligation) to


 


29

















 


purchase from such Non-Consenting Lenders, and such
Non-Consenting Lenders agree that they shall, upon the Administrative Agent’s
request, sell and assign to such Person, all of the Loans or Multicurrency
Loans and Commitments or Multicurrency Revolving Subcommitment of such Non-Consenting
Lenders for an amount equal to the principal balance of all Loans or
Multicurrency Loans held by the Non-Consenting Lenders and all accrued interest
and fees with respect thereto through the date of sale, such purchase and sale
to be consummated at par pursuant to an Assignment and Assumption.


 


2.21         Judgment Currency.  (a)  
If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which, in
accordance with normal banking procedures in the relevant jurisdiction, the
first currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.


 


(b)  The obligations of
each Borrower in respect of any sum due to any party hereto or any holder of
the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”)
other than the currency in which such sum is stated to be due hereunder (the “Agreement
Currency”), be discharged only to the extent that, on the Business Day
following receipt by the Applicable Creditor of any sum adjudged to be so due
in the Judgment Currency, the Applicable Creditor may in accordance with normal
banking procedures in the relevant jurisdiction purchase the Agreement Currency
with the Judgment Currency; if the amount of the Agreement Currency so
purchased is less than the sum originally due to the Applicable Creditor in the
Agreement Currency, the relevant Borrower as a separate obligation and
notwithstanding any such judgment, agrees to indemnify the Applicable Creditor
against such loss.  The obligations of
the Borrowers contained in this Section 2.21 shall survive the termination
of this Agreement and the payment of all other amounts owing hereunder.


 


2.22         Foreign Currency
Exchange Rate.  (a)  No later
than 1:00 P.M., Local Time, on each Calculation Date with respect to a Foreign Currency,
the Administrative Agent shall determine the Exchange Rate as of such
Calculation Date with respect to such Foreign Currency, provided that,
upon receipt of a borrowing request of a Multicurrency Loan pursuant to Section 2.2
or the issuance of any Multicurrency Letter of Credit, the Administrative Agent
shall determine the Exchange Rate with respect to the relevant Foreign Currency
on the related Calculation Date (it being acknowledged and agreed that the
Administrative Agent shall use such Exchange Rate for the purposes of
determining compliance with Section 2.2 with respect to such borrowing
request).  The Exchange Rates so
determined shall become effective on the relevant Calculation Date (a “Reset
Date”), shall remain effective until the next succeeding Reset Date and
shall for all purposes of this Agreement (other than Section 2.21(a)) be
the Exchange Rates employed in converting any amounts between Dollars and
Foreign Currencies.


 


(b)  No later than 5:00 P.M.,
Local Time, on each Reset Date, the Administrative Agent shall determine the
aggregate amount of the Dollar Equivalents of the principal amounts of the
relevant Multicurrency Revolving Extensions of Credit then outstanding (after
giving effect to any Multicurrency Revolving Extensions of Credit to be made or
repaid on such date).


 


(c)  The Administrative
Agent shall promptly notify the Parent Borrower of each determination of an
Exchange Rate hereunder.


 


2.23         Subsidiary Borrowers.  (a) The Parent Borrower may at any time,
with the prior consent of the Administrative
Agent (such consent not to be unreasonably withheld or delayed), add as a party
to this Agreement any Wholly-Owned Subsidiary to be a Subsidiary Borrower, provided
that there shall be not more than three Subsidiary Borrowers at any time.  Upon (i) execution and delivery by the


 


30

















 


Parent Borrower, any such
Subsidiary Borrower and the Administrative Agent, of a Joinder Agreement providing
for any such Subsidiary to become a Subsidiary Borrower, and (ii) delivery
to the Administrative Agent of (A) a Subsidiary Borrower Opinion in
respect of such additional Subsidiary Borrower and (B) such other
documents with respect thereto as the Administrative Agent shall reasonably
request, such Subsidiary shall for all purposes be a party hereto as a
Subsidiary Borrower as fully as if it had executed and delivered this
Agreement.  The Administrative Agent
shall notify the Lenders at least five Business Days prior to granting such
consent, and if any Lender notifies the Administrative Agent within five
Business Days that it is not permitted by applicable Requirements of Law or any
of its organizational policies to make Loans to, or participate in Letters of
Credit for the account of, the relevant Subsidiary, shall withhold such consent
or shall give such consent only upon effecting changes to the provisions of
this Section 2 as are contemplated by paragraph (c) of this Section 2.23
that will assure that such Lender is not required to make Loans to, or
participate in Letters of Credit for the account of, such Subsidiary.


 


(b)  So long as the
principal of and interest on any Loans made to any Subsidiary Borrower under
this Agreement shall have been paid in full and all other obligations of such
Subsidiary Borrower under this Agreement shall have been fully performed, the
Parent Borrower may, by not less than five Business Days’ prior notice to the
Administrative Agent (which shall promptly notify the relevant Lenders
thereof), terminate such Subsidiary’s status as a “Subsidiary Borrower”.


 


(c)  In order to
accommodate the addition of a Wholly-Owned Subsidiary as a Subsidiary Borrower
where one or more Lenders are able and willing to lend Loans to, and participate
in Letters of Credit issued for the account of, such Wholly-Owned Subsidiary,
but other Lenders are not so able and willing, the Administrative Agent shall
be permitted, with the consent of the Parent Borrower, to effect such changes
to the provisions of this Section 2 as it reasonably believes are
appropriate in order for such provisions to operate in a customary and usual
manner for “multiple-currency” syndicated lending agreements to a corporation
and certain of its subsidiaries, all with the intention of providing procedures
for the Lenders who are so able and willing to extend credit to such
Wholly-Owned Subsidiaries and for the other Lenders not to be required to do
so.  Prior to effecting any such changes,
the Administrative Agent shall give all Lenders at least five Business Days’
notice thereof and an opportunity to comment thereon.


 


SECTION 3.  LETTERS OF CREDIT


 


3.1           L/C Commitment.  (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements
of the other Lenders set forth in Section 3.4(a), agrees to issue letters
of credit (“Letters of Credit”) for the account of any Borrower on any
Business Day during the Commitment Period in such form as may be approved from
time to time by the Issuing Lender; provided that the Issuing Lender
shall have no obligation to issue any Letter of Credit if, after giving effect
to such issuance, (i) the L/C Obligations would exceed the L/C Commitment
or (ii) the aggregate amount of the Available Commitments would be less
than zero.  Each Letter of Credit shall (i) be
denominated in Dollars or any one of the Foreign Currencies and (ii) expire
no later than the earlier of (x) the first anniversary of its date of issuance
and (y) the date that is five Business Days prior to the Revolving Termination
Date, provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).


 


(b)  The Issuing Lender
shall not at any time be obligated to issue any Letter of Credit if such
issuance would conflict with, or cause the Issuing Lender or any L/C
Participant to exceed any limits imposed by, any applicable Requirement of Law.


 


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3.2           Procedure for
Issuance of Letter of Credit.  A
Borrower may from time to time request that the Issuing Lender issue a Letter of
Credit by delivering to the Issuing Lender at its address for notices specified
herein an Application therefor, completed to the reasonable satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may reasonably request.  Upon receipt of any Application, the Issuing
Lender will process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and
other papers and information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by
the Issuing Lender and the relevant Borrower. 
The Issuing Lender shall furnish a copy of such Letter of Credit to the
relevant Borrower promptly following the issuance thereof.  The Issuing Lender shall promptly furnish to
the Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount thereof).


 


3.3           Fees and Other
Charges.  (a) The relevant
Borrower will pay a fee (payable in Dollars) on all outstanding Letters of Credit at a per annum rate
equal to the Applicable Margin then in effect with respect to Eurocurrency
Loans under the Revolving Facility, shared ratably among the Lenders and payable
quarterly in arrears on each Fee Payment Date after the issuance date.  In addition, the Borrowers shall pay to the
Issuing Lender for its own account a fronting fee of 0.125% per annum on the
undrawn and unexpired amount of each Letter of Credit, payable quarterly in
arrears on each Fee Payment Date after the issuance date.


 


(b)   In addition to the foregoing fees, the
relevant Borrower shall pay or reimburse (payable in Dollars) the Issuing
Lender for such normal and customary costs and expenses (but in no event
including counsel fees for issuances of and amendments to Letters of Credit
without the written consent of the Borrower) as are incurred or charged by the
Issuing Lender in issuing, negotiating, effecting payment under, amending or
otherwise administering any Letter of Credit.


 


3.4           L/C Participations.  (a)  The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Issuing Lender, on the terms and conditions set forth below,
for such L/C Participant’s own account and risk an undivided interest equal to
such L/C Participant’s Revolving Percentage in the Issuing Lender’s obligations
and rights under and in respect of each Letter of Credit and the amount of each
draft paid by the Issuing Lender thereunder. 
Each L/C Participant agrees with the Issuing Lender that, if a draft is
paid under any Letter of Credit for which the Issuing Lender is not reimbursed
in full by the relevant Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay, with respect to Dollar Letters of
Credit, in Dollars, and with respect to Multicurrency Letters of Credit, in the
relevant Foreign Currency, to the Issuing Lender upon demand at the Issuing
Lender’s address for notices specified herein an amount equal to such L/C
Participant’s Revolving Percentage of the amount of such draft, or any part
thereof, that is not so reimbursed.  Each
L/C Participant’s obligation to pay such amount shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right that such L/C Participant
may have against the Issuing Lender, any Borrower or any other Person for any
reason whatsoever, (ii) the occurrence or continuance of a Default or an
Event of Default or the failure to satisfy any of the other conditions
specified in Section 5, (iii) any adverse change in the financial
condition of the Parent Borrower, (iv) any breach of this Agreement or any
other Loan Document by any Borrower, any other Loan Party or any other L/C
Participant or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.


 


32

















 


(b)  If any amount
required to be paid by any L/C Participant to the Issuing Lender pursuant to Section 3.4(a) in
respect of any unreimbursed portion of any payment made by the Issuing Lender
under any Letter of Credit is paid to the Issuing Lender within three Business
Days after the date such payment is due, such L/C Participant shall pay to the
Issuing Lender on demand an amount equal to the product of (i) such
amount, times (ii) (A) with respect to Dollar Letters of Credit, the
daily average Federal Funds Effective Rate and (B) with respect to
Multicurrency Letters of Credit, the interest rate reasonably determined by the
Administrative Agent to reflect the cost of funds incurred by the
Administrative Agent, in each case during the period from and including the
date such payment is required to the date on which such payment is immediately
available to the Issuing Lender, times (iii) a fraction the numerator of
which is the number of days that elapse during such period and the denominator
of which is 360.  If any such amount
required to be paid by any L/C Participant pursuant to Section 3.4(a) is
not made available to the Issuing Lender by such L/C Participant within three
Business Days after the date such payment is due, the Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to ABR Loans under the Revolving Facility (unless such overdue amount is
denominated in a Foreign Currency, in which case such overdue amount shall bear
interest at a rate per annum equal to the highest rate then applicable under
this Agreement to Multicurrency Loans denominated in such Foreign
Currency).  A certificate of the Issuing
Lender submitted to any L/C Participant with respect to any amounts owing under
this Section shall be conclusive in the absence of manifest error.


 


(c)  Whenever, at any time
after the Issuing Lender has made payment under any Letter of Credit and has
received from any L/C Participant its pro  rata share of such
payment in accordance with Section 3.4(a), the Issuing Lender receives any
payment related to such Letter of Credit (whether directly from any Borrower or
otherwise, including proceeds of collateral applied thereto by the Issuing
Lender), or any payment of interest on account thereof, the Issuing Lender will
distribute to such L/C Participant its pro  rata share thereof; provided,
however, that in the event that any such payment received by the Issuing
Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.


 


3.5           Reimbursement
Obligation of the Borrowers.  If any
draft is paid under any Letter of Credit, the relevant Borrower shall reimburse
the Issuing Lender for the amount of (a) the draft so paid and (b) any
taxes, fees, charges or other costs or expenses incurred by the Issuing Lender
in connection with such payment, not later than 12:00 Noon, Local Time, on (i) the
Business Day that the relevant Borrower receives notice of such draft, if such
notice is received on such day prior to 10:00 A.M., Local Time, or (ii) if
clause (i) above does not apply, the Business Day immediately following
the day that the relevant Borrower receives such notice.  Each such payment shall be made to the
Issuing Lender at its address for notices referred to herein, with respect to
Dollar Letters of Credit, in Dollars, and with respect to Multicurrency Letters
of Credit, in the relevant Foreign Currency, and in each case in immediately
available funds.  Interest shall be payable
on any such amounts from the date on which the relevant draft is paid until
payment in full at the rate set forth in (x) until the Business Day next
succeeding the date of the relevant notice, Sections 2.12 (a) or (b), as
applicable, and (y) thereafter, Section 2.12(c).


 


3.6           Obligations Absolute.  Each Borrower’s obligations under this Section 3
shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment that the relevant Borrower may have or have had against the
Issuing Lender, any beneficiary of a Letter of Credit or any other Person.  Each Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the relevant
Borrower’s Reimbursement Obligations under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among such Borrower
and any beneficiary of any Letter


 


33

















 


of Credit or any other party to
which such Letter of Credit may be transferred or any claims whatsoever of such
Borrower against any beneficiary of such Letter of Credit or any such
transferee.  The Issuing Lender shall not
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Issuing
Lender.  Each Borrower agrees that any
action taken or omitted by the Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct, shall be binding on such Borrower and
shall not result in any liability of the Issuing Lender to such Borrower.


 


3.7           Letter of Credit
Payments.  If any draft shall be
presented for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the relevant Borrower of the date and amount thereof.  The responsibility of the Issuing Lender to
the relevant Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.


 


3.8           Applications.  To the extent that any provision of any
Application related to any Letter of Credit is inconsistent
with the provisions of this Section 3, the provisions of this Section 3
shall apply.


 


SECTION 4.  REPRESENTATIONS AND WARRANTIES


 


To induce the Administrative
Agent and the Lenders to enter into this Agreement and to make the Loans and
issue or participate in the Letters of Credit, the Parent Borrower hereby
represents and warrants to the Administrative Agent and each Lender that:


 


4.1           Financial Condition.  The audited consolidated balance sheets of
the Parent Borrower and its consolidated Subsidiaries
as at December 31, 2003, December 31, 2004 and December 31,
2005, and the related consolidated statements of income and of cash flows for
the fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from PricewaterhouseCoopers LLP, present fairly in all
material respects the consolidated financial condition of the Parent Borrower
and its consolidated Subsidiaries as at such date, and the consolidated results
of its operations and its consolidated cash flows for the respective fiscal years
then ended.  The unaudited consolidated
balance sheet of the Parent Borrower and its consolidated Subsidiaries as at March 31,
2006, and the related unaudited consolidated statements of income and cash
flows for the three-month period ended on such date, present fairly in all
material respects the consolidated financial condition of the Parent Borrower
and its consolidated Subsidiaries as at such date, and the consolidated results
of its operations and its consolidated cash flows for the three-month period
then ended (subject to normal year-end audit adjustments and the addition of
footnotes).  All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein).  No Group Member has
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph.


 


4.2           No Change.  Since December 31, 2005, there has been
no development or event that has had or could reasonably
be expected to have a Material Adverse Effect.


 


34

















 


4.3           Existence;
Compliance with Law.  Each Group
Member (a) is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign corporation or other organization and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except where the failure to so qualify could not reasonably be
expected to result in a Material Adverse Effect, and (d) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


4.4           Power;
Authorization; Enforceable Obligations. 
Each Loan Party has the power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrowers, to obtain extensions of credit hereunder.  Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the Borrowers, to
authorize the extensions of credit on the terms and conditions of this
Agreement.  No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the extensions of
credit hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except consents,
authorizations, filings and notices described in Schedule 4.4, which
consents, authorizations, filings and notices have been obtained or made and
are in full force and effect.  Each Loan
Document has been duly executed and delivered on behalf of each Loan Party
party thereto.  This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).


 


4.5           No Legal Bar.  The execution, delivery and performance of
this Agreement and the other Loan Documents, the
issuance of Letters of Credit, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any material
Contractual Obligation of any Group Member and will not result in, or require,
the creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation.


 


4.6           Litigation.  Except as set forth in Schedule 4.6, no
litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Parent Borrower, threatened by or against any Group
Member or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) that could reasonably be expected to have a
Material Adverse Effect.


 


4.7           No Default.  No Group Member is in default under or with
respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse
Effect.  No Default or Event of Default
has occurred and is continuing.


 


4.8           Liens.  No property of any Group Member is subject to
any Lien except as permitted by Section 7.3.


 


4.9           Intellectual
Property.  Each Group Member owns, or
is licensed to use, all Intellectual Property necessary for the conduct of its business as
currently conducted, except where the failure to do so is not reasonably likely
to result in a Material Adverse Effect. 
No material claim has been


 


35

















 


asserted and is pending by any
Person challenging or questioning the use of any Intellectual Property or the
validity or effectiveness of any Intellectual Property, nor does the Parent
Borrower know of any valid basis for any such claim so as to be reasonably
likely to result in a Material Adverse Effect. 
The use of Intellectual Property by each Group Member does not infringe
on the rights of any Person so as to be reasonably likely to result in a
Material Adverse Effect.


 


4.10         Taxes.  Each Group Member has filed or caused to be
filed all federal, state and other material tax returns that
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than immaterial amounts and any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the relevant Group Member); no tax Lien has been filed,
and, to the knowledge of the Parent Borrower, no claim is being asserted, with
respect to any such tax, fee or other charge.


 


4.11         Federal Regulations.  No part of the proceeds of any Loans, and no
other extensions of credit hereunder, will
be used (a) for “buying” or “carrying” any “margin stock” within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect for any purpose that violates the
provisions of the Regulations of the Board or (b) for any purpose that
violates the provisions of the Regulations of the Board.  If reasonably requested by any Lender or the
Administrative Agent, the Parent Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity with
the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.


 


4.12         Labor Matters.  Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:  (a) there are no strikes or other labor
disputes against any Group Member pending or, to the knowledge of the Parent
Borrower, threatened; (b) hours worked by and payment made to employees of
each Group Member have not been in material violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters; and (c) all payments due from any Group Member on account of
employee health and welfare insurance have been paid or accrued as a liability
on the books of the relevant Group Member.


 


4.13         ERISA.  Neither a Reportable Event nor an “accumulated
funding deficiency” (within the meaning of Section 412
of the Code or Section 302 of ERISA) has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code.  No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period.  The present value of
all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount.  Neither the Parent
Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal
from any Multiemployer Plan that has resulted or could reasonably be expected
to result in a material liability under ERISA, and neither the Parent Borrower
nor any Commonly Controlled Entity would become subject to any material
liability under ERISA if the Parent Borrower or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made.  No such
Multiemployer Plan is in Reorganization or Insolvent.


 


4.14         Investment Company
Act; Other Regulations.  No Loan
Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the


 


36

















 


Investment Company Act of 1940,
as amended.  No Loan Party is subject to
regulation under any Requirement of Law (other than Regulation X of the Board)
that limits its ability to incur Indebtedness.


 


4.15         Material Subsidiaries.  Except as disclosed to the Administrative
Agent by the Parent Borrower in writing from
time to time after the Closing Date, Schedule 4.15 sets forth the name and
jurisdiction of incorporation of each Material Subsidiary and, as to each such
Material Subsidiary, the percentage of each class of Capital Stock owned by any
Loan Party.


 


4.16         Use of Proceeds.  (a)  The proceeds of the Loans and the
Swingline Loans, and the Letters of Credit, shall be used to finance the working capital needs
and general corporate purposes (including acquisitions) of the Parent Borrower
and its Subsidiaries.


 


4.17         Accuracy of
Information, etc.  The statements and
information contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum and any other document, certificate or statement
furnished by or on behalf of any Loan Party to the Administrative Agent or the
Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, taken as a whole,
did not contain as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained herein or therein not misleading under the circumstances in which
they were made.  The projections
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Parent Borrower to be reasonable
at the time made, it being recognized by the Lenders that such financial
information as it relates to future events is not to be viewed as fact and that
actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.  Forward-looking
statements contained in the materials referenced above are subject to risks and
uncertainties, including those risks and uncertainties described in the Company’s
most recent annual report on Form 10-K and quarterly report on Form 10-Q
filed with the SEC under the Securities Exchange Act of 1934, as amended,
including under the heading “Factors Affecting Future Operating Results”.


 


SECTION 5.  CONDITIONS PRECEDENT


 


5.1           Conditions to
Initial Extension of Credit.  The
agreement of each Lender to make the initial extension of credit requested to be made
by it is subject to the satisfaction, prior to or concurrently with the making
of such extension of credit on the Closing Date, of the following conditions
precedent:


 


(a)  Credit Agreement; Guarantee; Pledge Agreement.  The Administrative Agent shall have received (i) this
Agreement, executed and
delivered by the Administrative Agent, the Borrowers and each Person listed on Schedule 1.1A,
(ii) the Guarantee, executed and delivered by the Guarantors, and (iii) the
Pledge Agreement, executed and delivered by the Parent Borrower.


 


(b)   Financial
Statements.  The Lenders shall have
received (i) audited consolidated financial statements of the Parent Borrower for the 2003, 2004 and
2005 fiscal years and (ii) unaudited interim consolidated financial
statements of the Parent Borrower for each fiscal quarter ended after the date
of the latest applicable financial statements delivered pursuant to clause (i) of
this paragraph as to which such financial statements are available, and such
financial statements shall not, in the reasonable judgment of the Lenders,
reflect any material adverse change in the


 


37

















 


consolidated
financial condition of the Parent Borrower and its Subsidiaries, as reflected
in the financial statements or projections contained in the Confidential
Information Memorandum.


 


(c)  Approvals.  All governmental and third party approvals necessary
in connection with the continuing operations of
the Group Members and the transactions contemplated hereby shall have been
obtained and be in full force and effect.


 


(d)  Fees. 
The Lenders and the Administrative Agent shall have received all fees
required to be paid, and all expenses for which
invoices have been presented (including the reasonable fees and expenses of
legal counsel), on or before the Closing Date. 
All such amounts will be paid with proceeds of Loans made on the Closing
Date and will be reflected in the funding instructions given by the Parent
Borrower to the Administrative Agent on or before the Closing Date.


 


(e)  Closing Certificate; Certified Certificate
of Incorporation; Good Standing Certificates.  The Administrative Agent shall have received (i) a
certificate of each Loan Party, dated the Closing Date, substantially in the
form of Exhibit B, with appropriate insertions and attachments, including
the certificate of incorporation of each Loan Party that is a corporation
certified by the relevant authority of the jurisdiction of organization of such
Loan Party, and (ii) a long form good standing certificate for each Loan
Party from its jurisdiction of organization.


 


(f)  Legal Opinions.  The Administrative Agent shall have received
the following executed legal opinions:


 


(i)  the
legal opinion of Ropes & Gray LLP, counsel to the Parent Borrower and
its Subsidiaries, substantially in the form of Exhibit D-1; and


 


(ii)  the
legal opinion of local counsel in Luxembourg and of such other special and
local counsel as may be reasonably required by the Administrative Agent or the
Required Lenders.


 


Each such legal opinion
shall cover such other matters incident to the transactions contemplated by
this Agreement as the Administrative Agent may reasonably require.


 


(g)  Termination of Existing Credit Agreement.  (i) The Administrative Agent shall have
received satisfactory evidence
that the Existing Credit Agreement shall have been terminated and all amounts
thereunder shall have been paid in full and satisfactory arrangements shall
have been made for the termination of all Liens granted in connection
therewith.


 


(h)  Pledged Stock; Stock Powers. 
The Administrative Agent shall have received the certificates
representing the shares of Capital
Stock of the Investment Subsidiary pledged pursuant to the Pledge Agreement,
together with an undated stock power for each such certificate executed in
blank by a duly authorized officer of the pledgor thereof.


 


(i)  Lien Searches.  The
Administrative Agent shall have received the results of a recent lien search in
the jurisdiction of organization of each of
the Parent Borrower and the Subsidiary Guarantors, and such search shall reveal
no liens on any of the assets of the Parent Borrower or the Subsidiary
Guarantors except for liens permitted by Section 7.3 or discharged on or
prior to the Closing Date pursuant to documentation satisfactory to the
Administrative Agent.


 


(j)  Filings, Registrations and Recordings. 
Each document (including any Uniform Commercial Code financing statement) required by
the Pledge Agreement or under law or


 


38

















 


reasonably requested by the Administrative Agent to be
filed, registered or recorded in order to create in favor of the Administrative
Agent, for the benefit of the Lenders, a perfected Lien on the Collateral
described therein, prior and superior in right to any other Person (other than
with respect to Liens expressly permitted by Section 7.3), shall be in
proper form for filing, registration or recordation.


 


5.2           Conditions to Each
Extension of Credit.  The agreement
of each Lender to make any extension of credit requested to be made by it
on any date (including its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:


 


(a)  Representations and Warranties.  Each of the representations and warranties
made by any Loan Party in or pursuant
to the Loan Documents shall be true and correct in all material respects on and
as of such date as if made on and as of such date.


 


(b)  No Default.  No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the extensions of credit requested to be
made on such date.


 


(c)  Rating.  The Parent Borrower shall maintain an Index
Debt rating from at least one of Moody’s and S&P.


 


Each borrowing by and
issuance of a Letter of Credit on behalf of a Borrower hereunder shall
constitute a representation and warranty by the relevant Borrower as of the
date of such extension of credit that the conditions contained in this Section 5.2
have been satisfied.


 


SECTION 6.  AFFIRMATIVE COVENANTS


 


The Parent Borrower hereby
agrees that, so long as the Commitments remain in effect, any Letter of Credit
remains outstanding or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, the Parent Borrower shall and shall cause each
of its Subsidiaries to:


 


6.1           Financial Statements.  Furnish to the Administrative Agent and each
Lender (directly or by making such items
available through posting on a website service):


 


(a)  as soon as available, but in any event within
90 days after the end of each fiscal year of the Parent Borrower, a copy
of the audited consolidated balance sheet of the Parent Borrower and its
consolidated Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting
forth in each case in comparative form the figures for the previous year,
reported on without a “going concern” or like qualification or exception, or
qualification arising out of the scope of the audit, by PricewaterhouseCoopers
LLP or other independent certified public accountants of nationally recognized
standing; and


 


(b)  as soon as available, but in any event not
later than 45 days after the end of each of the first three quarterly periods
of each fiscal year of the Parent Borrower, the unaudited consolidated balance
sheet of the Parent Borrower and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of income and of
cash flows for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures for
the previous year, certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end audit adjustments and the
addition of footnotes);


 


39

















 


All such financial
statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied (except as
approved by such accountants or officer, as the case may be, and disclosed in
reasonable detail therein) consistently throughout the periods reflected
therein and with prior periods.


 


6.2           Certificates; Other
Information.  Furnish to the
Administrative Agent and each Lender (or, in the case of clause (c), to the relevant
Lender):


 


(a)  as soon as available, but in any event within
90 days after the end of each fiscal year of the Parent Borrower with
respect to the delivery of any financial statements pursuant to Section 6.1(a) or
within 45 days after the end of each of the first three quarterly periods of
each fiscal year of the Parent Borrower with respect to the delivery of any
financial statements pursuant to Section 6.1(b), (i) a certificate of
a Responsible Officer stating that, to the best of each such Responsible
Officer’s knowledge, each Loan Party during such period has observed or
performed all of its covenants and other agreements in all material respects,
and satisfied in all material respects every condition contained in this
Agreement and the other Loan Documents to which it is a party to be observed,
performed or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in such
certificate and (ii) a Compliance Certificate containing all information
and calculations necessary for determining compliance by each Group Member with
the provisions of this Agreement referred to therein as of the last day of the
fiscal quarter or fiscal year of the Parent Borrower, as the case may be; and


 


(b)  promptly, such additional financial and other
information as any Lender may from time to time reasonably request.


 


6.3           Payment of
Obligations.  Pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the relevant Group Member.


 


6.4           Maintenance of
Existence; Compliance.  (a)(i) 
Preserve, renew and keep in full force and effect its organizational existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 7.4 and except, in the
case of clause (ii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) comply
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


6.5           Maintenance of
Property; Insurance.  (a)  Keep
all property useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and (b) maintain with financially sound
and reputable insurance companies insurance on all its property in at least
such amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business.


 


6.6           Inspection of
Property; Books and Records; Discussions. 
(a)  Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities and (b) permit representatives of any Lender to visit and
inspect any of its properties and


 


40

















 


examine and make abstracts from
any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Group Members with officers and employees
of the Group Members and with their independent certified public accountants.


 


6.7           Notices.  Promptly give notice to the Administrative
Agent and each Lender of:


 


(a)  the occurrence of any Default or Event of
Default;


 


(b)  any (i) default or event of default
under any Contractual Obligation of any Group Member or (ii) litigation,
investigation or proceeding that may exist at any time between any Group Member
and any Governmental Authority, that in either case, could reasonably be
expected to have a Material Adverse Effect;


 


(c)  any litigation or proceeding affecting any
Group Member (i) in which the amount involved is $20,000,000 or more and
not covered by insurance, (ii) in which injunctive or similar relief is
sought with respect to a material portion of the business of the Group Members
or (iii) which relates to any Loan Document;


 


(d)  the following events, as soon as possible and
in any event within 30 days after the Parent Borrower knows or has reason to
know thereof:  (i) the occurrence of
any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Parent Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal
from, or the termination, Reorganization or Insolvency of, any Plan; and


 


(e)  any development or event that has had or
could reasonably be expected to have a Material Adverse Effect.


 


Each notice pursuant to this Section 6.7
shall be accompanied by a statement of a Responsible Officer setting forth
details of the occurrence referred to therein and stating what action the
relevant Group Member proposes to take with respect thereto.


 


6.8           Additional
Subsidiary Guarantors.  In the event
that any Person (other than Immaterial Subsidiaries) (i)  becomes a wholly-owned
(directly or indirectly) Material Domestic Subsidiary after the Closing Date
pursuant to an acquisition (whether of stock or assets) or merger, or as a
result of the creation of such Person and a transfer to such Person of any
property or assets, or (ii) that is an existing Subsidiary (other than the
Investment Subsidiary) becomes a Material Domestic Subsidiary, the Parent
Borrower shall promptly, if such Person as a result of such acquisition,
merger, or creation and transfer conducts a substantial portion of the business
of the Parent Borrower and its Subsidiaries, or otherwise within 45 days after
the end of the fiscal quarter in which such Person becomes a Material Domestic
Subsidiary, cause such Material Domestic Subsidiary to become a Subsidiary
Guarantor by execution and delivery of an assumption agreement to the Guarantee
and by delivery of such other documentation as the Administrative Agent may reasonably
request in connection therewith, including, without limitation, certified
resolutions of such Material Domestic Subsidiary, certified organizational and
authorizing documents of such Material Domestic Subsidiary, all in form,
content and scope reasonably satisfactory to the Administrative Agent; provided,
however, that no such Person which becomes a Material Domestic
Subsidiary shall be required to become a Subsidiary Guarantor if the incurrence
of such obligation would violate any material agreement binding on such Person
and in


 


41

















 


existence on the date of such
Person becoming a Material Domestic Subsidiary or any law or regulation
applicable to such Person.


 


6.9           Guarantee Coverage
Ratio.  As at any date, maintain that
the consolidated total assets of the Guarantors constitute at least 80% of
consolidated total assets of the Parent Borrower and its Domestic Subsidiaries
(other than the Investment Subsidiary).


 


SECTION 7.  NEGATIVE COVENANTS


 


The Parent Borrower hereby
agrees that, so long as the Commitments remain in effect, any Letter of Credit
remains outstanding or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, the Parent Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly:


 


7.1           Financial Condition
Covenants.


 


(a)  Consolidated
Leverage Ratio.  Permit the
Consolidated Leverage Ratio as at the last day of any period of four consecutive fiscal quarters of the
Parent Borrower to exceed 3.00:1.00.


 


(b)  Consolidated
Interest Coverage Ratio.  Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal quarters
of the Parent Borrower to be less than 4.00:1.00.


 


7.2           Indebtedness.  Create, issue, incur, assume, become liable
in respect of or suffer to exist any Indebtedness, except:


 


(a)  Indebtedness of any Loan Party pursuant to
any Loan Document;


 


(b)  Indebtedness of the Parent Borrower to any
Subsidiary and of any Subsidiary to the Parent Borrower or any other
Subsidiary; provided,
however, that any
Indebtedness of any Borrower, any Subsidiary Guarantor or the Investment
Subsidiary to any non-Guarantor Subsidiary 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
(as defined in the Guarantee); (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;


 


(c)  Guarantee Obligations incurred in the
ordinary course of business by the Parent Borrower or any of its Subsidiaries
of obligations of any Subsidiary; provided, however, that any Guarantee Obligations of any Borrower, any
Subsidiary Guarantor or the Investment Subsidiary to any non-Guarantor
Subsidiary shall be subject to a subordination agreement unconditionally
providing that: (x) such Guarantee Obligation is subordinate and subject in
right of payment to the prior payment in full of the Obligations (as defined in
the Guarantee); (y) that no payments shall be made on such Guarantee
Obligation, nor shall the holder of such Guarantee Obligation exercise any
right or remedy with respect to such Guarantee Obligation, until payment and
satisfaction in full of the Obligations; and (z) notwithstanding clauses (x)
and (y), payments may be made on account of such Guarantee Obligation unless
there has occurred an Event of Default that is continuing or such payment(s)
would result in an Event of Default;


 


42

















 


(d)  Indebtedness outstanding on the date hereof
and listed on Schedule 7.2(d) and any refinancings, refundings,
renewals or extensions thereof (without increasing, or shortening the maturity
of, the principal amount thereof);


 


(e)  pari passu or subordinated Indebtedness of the
Parent Borrower and the Subsidiary Guarantors; provided any such
Indebtedness permitted under this subsection 7.2(e) may be incurred
only if the Parent Borrower shall be in compliance, on a pro forma basis after
giving effect to such incurrence and any related repayment, repurchase,
redemption or defeasance of Indebtedness, with the covenants contained in subsection 7.1
recomputed as at the last day of the most recently ended fiscal quarter of the
Parent Borrower as if such incurrence had occurred on such day;


 


(f)  additional Indebtedness of any Non-Guarantor
Subsidiary in an aggregate principal amount not to exceed, together with the
aggregate amount of Permitted Sale/Leaseback Transactions outstanding and the
aggregate principal amount of obligations secured by a Lien incurred pursuant
to Section 7.3(k), 10% of Consolidated Tangible Net Worth at any one time
outstanding;


 


(g)  Indebtedness under or in respect of currency
exchange contracts or interest rate protection obligations incurred in the
ordinary course of business;


 


(h)  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;


 


(i)  Indebtedness (including, without limitation,
Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) incurred
in the ordinary course of the Parent Borrower’s or such Subsidiary’s business;
and


 


(j)  Indebtedness of any Person that becomes a
Subsidiary of the Parent Borrower after the date hereof, provided that
such Indebtedness is in existence at the time such Person becomes a Subsidiary
of the Parent Borrower and was not incurred in anticipation thereof and so long
as immediately after giving effect thereto, no Event of Default exists.


 


7.3           Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, whether now owned or hereafter acquired, except:


 


(a)  Liens for taxes not yet due or that are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of the
Parent Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;


 


(b)  carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business that are not overdue for a period of more than 60 days or that are
being contested in good faith by appropriate proceedings;


 


(c)  pledges or deposits in connection with
workers’ compensation, unemployment insurance and other social security
legislation;


 


(d)  deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;


 


43

















 


(e)  easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of business that, in
the aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Parent Borrower or
any of its Subsidiaries;


 


(f)  Liens in existence on the date hereof listed
on Schedule 7.3(f), securing Indebtedness permitted by Section 7.2(d),
provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured thereby is
not increased;


 


(g)  Liens securing Indebtedness of the Parent
Borrower or any other Subsidiary incurred pursuant to Section 7.2(i) to
finance or refinance the acquisition of fixed or capital assets, provided
that (i) such Liens shall be created substantially simultaneously with, or
within 180 days after, the acquisition of or any refinancings of such fixed or
capital assets, (ii) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and (iii) the amount
of Indebtedness secured thereby is not increased;


 


(h)  any interest or title of a lessor under any
lease entered into by the Parent Borrower or any other Subsidiary in the
ordinary course of its business and covering only the assets so leased;


 


(i)  Liens on property of any Person that becomes
a Subsidiary of the Parent Borrower after the date hereof, provided that
such Liens are in existence at the time such Person becomes a Subsidiary of the
Parent Borrower and were not created in anticipation thereof;


 


(j)  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 sixty (60) days, and only so long as
execution thereon shall be stayed; and


 


(k)  Liens not otherwise permitted by this Section securing
obligations of the Parent Borrower or any of its Subsidiaries in an aggregate
principal amount not to exceed 5% of Consolidated Tangible Net Worth at any one
time outstanding.


 


7.4           Fundamental Changes.  Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or
substantially all of its property or business, except that:


 


(a)  any Subsidiary of the Parent Borrower may be
merged or consolidated with or into the Parent Borrower or with or into any
other Subsidiary;


 


(b)  any Subsidiary of the Parent Borrower may
Dispose of any or all of its assets (i) to the Parent Borrower or any
other Subsidiary (upon voluntary liquidation or otherwise) or (ii) pursuant
to a Disposition permitted by Section 7.5; and


 


(c)  any Investment expressly permitted by Section 7.7
may be structured as a merger, consolidation or amalgamation.


 


7.5           Disposition of
Property.  Dispose of any of its
property, whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary’s Capital Stock to any Person, except:


 


44

















 


(a)  the Disposition of obsolete or worn out
property or defaulted receivables in the ordinary course of business;


 


(b)  the sale of inventory in the ordinary course
of business;


 


(c)  Dispositions permitted by clause (i) of Section 7.4(b);


 


(d)  the sale or issuance of any Subsidiary’s
Capital Stock to the Parent Borrower, any Subsidiary Borrower, any Wholly Owned
Subsidiary or, in the case of the Capital Stock of a non-Guarantor Subsidiary,
to another non-Guarantor Subsidiary;


 


(e)  Permitted Sale/Leaseback Transactions;


 


(f)  the Disposition (other than the sale and
leaseback) of any non-material property;


 


(g)  the lease or sublease of any real property;
and


 


(h)  the Disposition of other property having a
fair market value not to exceed 15% of Consolidated Net Worth in the aggregate.


 


7.6           Restricted Payments.  Declare or pay any dividend (other than
dividends payable solely in common stock of
the Person making such dividend) on, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Capital Stock
of any Group Member, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of any Group Member (collectively, “Restricted
Payments”), except that:


 


(a)  any Subsidiary may make Restricted Payments
to (i) the Parent Borrower, (ii) any Subsidiary Borrower, (iii) unless
an Event of Default under Section 8(a) with respect to the Borrowers
shall have occurred and be continuing, any Wholly Owned Subsidiary (but, for
the avoidance of doubt, in no case to any non-Wholly Owned Subsidiary), or, (iv) in
the case of a non-Guarantor Subsidiary, to another non-Guarantor Subsidiary;
and


 


(b)  unless an Event of Default under Section 8(a) with
respect to the Borrowers shall have occurred and be continuing, Restricted
Payments not otherwise permitted by this Section may be made so long as
the Parent Borrower shall be in compliance, on a pro forma basis after giving
effect to such making and any related incurrence of Indebtedness, with the
covenants contained in subsection 7.1 recomputed as at the last day of the
most recently ended fiscal quarter of the Parent Borrower as if such incurrence
had occurred on such day.


 


7.7           Investments.  Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution
to, or purchase any Capital Stock, bonds, notes, debentures or other debt
securities of, or any assets constituting a business unit of, or make any other
investment in, any Person (all of the foregoing, “Investments”), except:


 


(a)  extensions of trade credit in the ordinary
course of business;


 


(b)  investments in Cash Equivalents;


 


(c)  transactions permitted by Section 7.2;


 


45

















 


(d)  loans and advances to employees of any Group
Member in the ordinary course of business (including for travel, entertainment
and relocation expenses) in an aggregate amount for all Group Members not to exceed
$10,000,000 at any one time outstanding;


 


(e)  intercompany Investments by the Parent
Borrower in any Subsidiary and by any Subsidiary in the Parent Borrower or any
other Subsidiary; provided, however, that any intercompany
Indebtedness or Guarantees must be permitted by Sections 7.2(b) or (c),
respectively;


 


(f)  purchases or acquisitions (including pursuant to any
merger with any Person that was not a Wholly Owned Subsidiary prior to such
merger) of all or a majority of the Capital Stock or voting Capital Stock of
any Person that was not a Wholly Owned Subsidiary prior thereto, or purchases
or acquisitions (in one transaction or a series of transactions) of all or
substantially all of the assets of any such Person or all or substantially all
of the assets of any such Person constituting a business unit; provided
any such Investment permitted under this subsection 7.7(f) may be
made only if the Parent Borrower shall be in compliance, on a pro forma basis
after giving effect to such making and any related incurrence of Indebtedness,
with the covenants contained in subsection 7.1 recomputed as at the last
day of the most recently ended fiscal quarter of the Parent Borrower as if such
incurrence had occurred on such day;


 


(g)  in addition to Investments otherwise
expressly permitted by this Section, Investments by the Parent Borrower or any
of its Subsidiaries in an aggregate amount (valued at cost) not to exceed 15%
of Consolidated Tangible Net Worth during the term of this Agreement.


 


7.8           Transactions with
Affiliates.  Enter into any
transaction, including any purchase, sale, lease or exchange of property, the rendering of any
service or the payment of any management, advisory or similar fees, with any
Affiliate (other than the Parent Borrower or any Wholly Owned Subsidiary
Guarantor) unless such transaction is (a) otherwise permitted under this
Agreement and (b) upon fair and reasonable terms no less favorable to the
relevant Group Member than it would obtain in a comparable arm’s length
transaction with a Person that is not an Affiliate.


 


7.9           Sales and Leasebacks.  Enter into any arrangement with any Person
providing for the leasing by any Group Member
of real or personal property that has been or is to be sold or transferred by
such Group Member to such Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental
obligations of such Group Member, other than Permitted Sale/Leaseback
Transactions.


 


SECTION 8.  EVENTS OF DEFAULT


 


If any of the following
events shall occur and be continuing:


 


(a)  any Borrower shall fail to pay any principal
of any Loan or Reimbursement Obligation when due in accordance with the terms
hereof; or any Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes due
in accordance with the terms hereof; or


 


(b)  any representation or warranty made or deemed
made by any Loan Party herein or in any other Loan Document or that is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such


 


46

















 


other Loan Document shall
prove to have been inaccurate in any material respect on or as of the date made
or deemed made; or


 


(c)  any Loan Party shall default in the
observance or performance of any agreement contained in clause (i) or (ii) of
Section 6.4(a) (with respect to the Parent Borrower only), Section 6.7(a) or
Section 7 of this Agreement; or


 


(d)  any Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c) of
this Section), and such default shall continue unremedied for a period of 30
days after notice to the Parent Borrower from the Administrative Agent or the
Required Lenders; or


 


(e)  any Group Member shall (i) default in
making any payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding the Loans) on the scheduled or original due
date with respect thereto; or (ii) default in making any payment of any interest
on any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii) default
in the observance or performance of any other agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or (in the case of any such Indebtedness constituting a Guarantee
Obligation) to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e) shall
not at any time constitute an Event of Default unless, at such time, one or
more defaults, events or conditions of the type described in clauses (i), (ii) and
(iii) of this paragraph (e) shall have occurred and be continuing
with respect to Indebtedness the outstanding principal amount of which exceeds
in the aggregate $40,000,000; or


 


(f)  (i) The Parent Borrower, any Subsidiary
Borrower or any Material Subsidiary shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or any Group
Member shall make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Parent Borrower, any Subsidiary Borrower or any
Material Subsidiary any case, proceeding or other action of a nature referred
to in clause (i) above that (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed
or undischarged for a period of 60 days; or (iii) there shall be commenced
against the Parent Borrower, any Subsidiary Borrower or any Material Subsidiary
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Parent
Borrower, any Subsidiary Borrower or any Material Subsidiary shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Parent Borrower, any Subsidiary Borrower or any


 


47

















 


Material Subsidiary shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or


 


(g)  (i) any Person shall engage in any “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any “accumulated funding deficiency”
(as defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise
on the assets of any Group Member or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) any Group Member or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required Lenders
is likely to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other
event or condition shall occur or exist with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could, in the
reasonable judgment of the Required Lenders, reasonably be expected to have a
Material Adverse Effect; or


 


(h)  one or more judgments or decrees shall be
entered against any Group Member involving in the aggregate a liability (not
paid or fully covered by insurance as to which the relevant insurance company has
not disputed coverage) of $40,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or


 


(i)  any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)), shall become, or obtain rights
(whether by means or warrants, options or otherwise) to become, the “beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of more than 35% of the outstanding common stock of the
Parent Borrower.


 


then, and in any such event,
(A) if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) above with respect to any Borrower, automatically the
Commitments shall immediately terminate and the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken:  (i) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Parent Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Parent Borrower, declare the Loans (with accrued interest thereon) and all
other amounts owing under this Agreement and the other Loan Documents
(including all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.  With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this paragraph,
the relevant Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit.


 


48

















 


Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon,
if any, shall be applied to repay other obligations of the Borrowers hereunder
and under the other Loan Documents. 
After all such Letters of Credit shall have expired or been fully drawn
upon, all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrowers hereunder and under the other Loan Documents shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Parent Borrower (or such other Person as may be lawfully
entitled thereto).  Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived by the Borrowers.


 


SECTION 9.  THE AGENTS


 


9.1           Appointment.  Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent
of such Lender under this Agreement and the other Loan Documents, and each such
Lender irrevocably authorizes the Administrative Agent, in such capacity, to
take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto.   Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent.


 


9.2           Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement and the
other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties.  The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.


 


9.3           Exculpatory
Provisions.  Neither any Agent nor
any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken
by it or such Person under or in connection with this Agreement or any other
Loan Document (except to the extent that any of the foregoing are found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person’s own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agents under or in connection with, this Agreement or
any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder.  The Agents
shall not be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.


 


9.4           Reliance by
Administrative Agent.  The
Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper


 


49

















 


Person or Persons and upon
advice and statements of legal counsel (including counsel to the Borrowers),
independent accountants and other experts selected by the Administrative
Agent.  The Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent.  The
Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, if so
specified by this Agreement, all Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.  The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.


 


9.5           Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence
of any Default or Event of Default unless the Administrative Agent has received
notice from a Lender or the Parent Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice
of default”.  In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
if so specified by this Agreement, all 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 or Event of
Default as it shall deem advisable in the best interests of the Lenders.


 


9.6           Non-Reliance on
Agents and Other Lenders.  Each
Lender expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. 
Each Lender represents to the Agents that it has, independently and
without reliance upon any Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their affiliates
and made its own decision to make its Loans hereunder and enter into this
Agreement.  Each Lender also represents
that it will, independently and without reliance upon any Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Loan Parties and their affiliates.  Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


9.7           Indemnification.  The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do
so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on


 


50

















 


which indemnification is sought
under this Section (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (whether before or
after the payment of the Loans) be imposed on, incurred by or asserted against
such Agent in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent’s gross negligence or willful
misconduct.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.


 


9.8           Agent in Its
Individual Capacity.  Each Agent and
its affiliates may make loans to, accept deposits from and generally engage in any kind
of business with any Loan Party as though such Agent were not an Agent.  With respect to its Loans made or renewed by
it and with respect to any Letter of Credit issued or participated in by it,
each Agent shall have the same rights and powers under this Agreement and the
other Loan Documents as any Lender and may exercise the same as though it were not
an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.


 


9.9           Successor
Administrative Agent.  The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders and
the Parent Borrower.  If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 8(a) or Section 8(f) with
respect to the Borrowers shall have occurred and be continuing) be subject to
approval by the Parent Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term “Administrative
Agent” shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. 
If no successor agent has accepted appointment as Administrative Agent
by the date that is 30 days following a retiring Administrative Agent’s notice
of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above.  After any retiring Administrative
Agent’s resignation as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.


 


9.10         Agents.  None of the Syndication Agent, the
Co-Documentation Agents or the Co-Agents shall have any duties
or responsibilities hereunder in its capacity as such.


 


SECTION 10.  MISCELLANEOUS


 


10.1         Amendments and Waivers.  Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof
may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.1. 
The Required Lenders and each Loan Party to the relevant Loan Document
may, or, with the written consent of the Required Lenders, the Administrative
Agent and each


 


51

















 


Loan Party to the relevant Loan Document may, from time to time, (a) enter
into written amendments, supplements or modifications hereto and to the other
Loan Documents for the purpose of adding any provisions to this Agreement or
the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such terms
and conditions as the Required Lenders or the Administrative Agent, as the case
may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default
and its consequences; provided, however, that no such waiver and
no such amendment, supplement or modification shall (i) forgive the
principal amount or extend the final scheduled date of maturity of any Loan,
reduce the stated rate of any interest or fee payable hereunder (except (x) in
connection with the waiver of applicability of any post-default increase in
interest rates (which waiver shall be effective with the consent of the
Required Lenders) and (y) that any amendment or modification of defined terms
used in the financial covenants in this Agreement shall not constitute a
reduction in the rate of interest or fees for purposes of this clause (i)) or
extend the scheduled date of any payment thereof, or increase the amount or
extend the expiration date of any Lender’s Commitment, in each case without the
written consent of each Lender directly affected thereby; (ii) eliminate
or reduce the voting rights of any Lender under this Section 10.1 without
the written consent of such Lender; (iii) reduce any percentage specified
in the definition of Required Lenders, consent to the assignment or transfer by
the Borrowers of any of their rights and obligations under this Agreement and
the other Loan Documents, or release all or substantially all of the Guarantors
from their obligations under the Guarantee without the written consent of all
Lenders; (iv) amend, modify or waive any provision of Section 2.15
without the written consent of the Required Lenders; (v) amend, modify or
waive any provision of Section 9 without the written consent of the
Administrative Agent; (vi) amend, modify or waive any provision of Section 2.3
or 2.4 without the written consent of the Swingline Lender; or (vii) amend,
modify or waive any provision of Section 3 without the written consent of
the Issuing Lender. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders
and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.


 


Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated)
with the written consent of the Required Lenders (other than for incremental
credit facilities permitted by Section 2.7), the Administrative Agent and
the Borrowers (a) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share
ratably in the benefits of this Agreement and the other Loan Documents with
Revolving Extensions of Credit and the accrued interest and fees in respect
thereof and (b) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders.


 


10.2                           Notices.
All notices, requests and demands to or upon the respective parties hereto to
be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrowers and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties
hereto:


 


	
  Borrowers:

  	
   

  	
  c/o
  Genzyme Corporation

  15 Pleasant Street Connector
P.O. Box 9322

  



 


52

















 


	
   

  	
   

  	
  Framingham,
  MA 01701-9322

  
	
   

  	
   

  	
  Attention:
  Treasurer

  
	
   

  	
   

  	
  Telecopy:
  508-872-0827

  
	
   

  	
   

  	
  Telephone:
  508-270-2334

  
	
   

  	
   

  	
   

  
	
  Administrative Agent:

  	
   

  	
  JPMorgan
  Chase Bank, N.A.

  270 Park Avenue, 5th
  Floor
New York, New York 10017

  
	
   

  	
   

  	
  Attention:
  Jay Droogan

  
	
   

  	
   

  	
  Telecopy:
  212-270-1063

  
	
   

  	
   

  	
  Telephone:
  212-270-1649

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with
  a copy to (for Multicurrency Loans):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMorgan
  Chase Bank, N.A.

  125 London Wall
London EC2Y 5AJ

  
	
   

  	
   

  	
  Attention:
  Steve Clarke

  
	
   

  	
   

  	
  Telecopy:
  44 20 7777 2360

  
	
   

  	
   

  	
  Telephone:
  44 20 7325 5424

  



 


provided that any notice, request or demand to or
upon the Administrative Agent or the Lenders shall not be effective until
received.


 


Notices
and other communications to the Lenders hereunder may be delivered or
furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrowers may, in their discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.


 


10.3                           No
Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder or under
the other Loan Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


10.4                           Survival
of Representations and Warranties. All representations and warranties made
hereunder, in the other
Loan Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans and other extensions of credit
hereunder.


 


10.5                           Payment
of Expenses and Taxes. The Parent Borrower and the Subsidiary Borrowers
agree (a) to pay or reimburse
the Administrative Agent for (i) all reasonable fees and disbursements of
counsel to the Administrative Agent and (ii) all of their other reasonable
out-of-pocket costs and expenses not to exceed $20,000 incurred in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan 


 


53

















 


Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including the filing and recording fees and
expenses, with statements with respect to the foregoing to be submitted to the
Parent Borrower prior to the Closing Date (in the case of amounts to be paid on
the Closing Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, (b) to
pay or reimburse each Lender and the Administrative Agent for all their
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including the reasonable fees and disbursements of
one counsel for all Lenders other than the Administrative Agent and of counsel
to the Administrative Agent, (c) to pay, indemnify, and hold each Lender
and the Administrative Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other taxes, if any, that may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective officers, directors, employees,
affiliates, agents and advisors (each, an “Indemnitee”) harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, and reasonable costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents and any such other documents, including any of the
foregoing relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of any Group Member or any of its properties and the reasonable fees
and expenses of legal counsel in connection with claims, actions or proceedings
by any Indemnitee against any Loan Party under any Loan Document (all the
foregoing in this clause (d), collectively, the “Indemnified Liabilities”),
provided, that neither the Parent Borrower nor any Subsidiary Borrower
shall have any obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
other Persons associated with the same affiliated group. Without limiting the
foregoing, and to the extent permitted by applicable law, the Parent Borrower
and the Subsidiary Borrowers agree not to assert and to cause their respective
Subsidiaries not to assert, and hereby waive and agree to cause their
respective Subsidiaries to waive, all rights for contribution or any other
rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them might have by
statute or otherwise against any Indemnitee. All amounts due under this Section 10.5
shall be payable not later than 10 days after written demand therefor. Statements
payable by the Parent Borrower or any Subsidiary Borrower pursuant to this Section 10.5
shall be submitted to Evan Lebson (Telephone No. 508-270-2334)  (Telecopy No. 508-872-0237), at the
address of the Parent Borrower set forth in Section 10.2, or to such other
Person or address as may be hereafter designated by the Parent Borrower in
a written notice to the Administrative Agent. The agreements in this Section 10.5
shall survive repayment of the Loans and all other amounts payable hereunder.


 


10.6                           Successors
and Assigns; Participations and Assignments. (a)  The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any affiliate of the Issuing Lender that issues any
Letter of Credit), except that (i) no Borrower may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by any
Borrower without such consent shall be null and void) and (ii) no Lender may assign
or otherwise transfer its rights or obligations hereunder except in accordance
with this Section.


 


54

















 


(b)(i)  Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign to one or more
assignees (each, an “Assignee”) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and/or its Multicurrency Revolving Subcommitments, and the Loans and/or the
Multicurrency Loans, as applicable, at the time owing to it) with the prior
written consent of:


 


(A) the Parent Borrower
(such consent not to be unreasonably withheld), provided that no consent
of the Parent Borrower shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of
Default under Section 8(a) or (f) has occurred and is
continuing, any other Person; and


 


(B) the Administrative
Agent (such consent not to be unreasonably withheld).


 


(ii) Assignments shall
be subject to the following additional conditions:


 


(A) except in the case
of an assignment to a Lender, an affiliate of a Lender or an Approved Fund or
an assignment of the entire remaining amount of the assigning Lender’s
Commitments, Multicurrency Revolving Subcommitment, Loans or Multicurrency
Loans, the amount of the Commitments or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 (or in the case of Multicurrency
Revolving Subcommitments or Multicurrency Loans, the Dollar Equivalent thereof)
unless each of the Parent Borrower and the Administrative Agent otherwise
consent, provided that (1) no such consent of the Parent Borrower
shall be required if an Event of Default under Section 8(a) or (f) has
occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its affiliates or Approved Funds, if any;


 


(B) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500
(payable in Dollars); and


 


(C) the Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
administrative questionnaire in which the Assignee designates one or more
credit contacts to whom all syndicate-level information (which may contain
material non-public information about the Parent Borrower and its Affiliates
and their related parties or their respective securities) will be made
available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including federal and
state securities law.


 


For the purposes of this Section 10.6, “Approved Fund”
means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate
of an entity that administers or manages a Lender.


 


(iii) Subject to acceptance and recording
thereof pursuant to paragraph (b)(iv) below, from and after the
effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party 


 


55

















 


hereto
but shall continue to be entitled to the benefits of Sections 2.16, 2.17,
2.18 and 10.5). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 10.6 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.


 


(iv)  The Administrative Agent, acting for this
purpose as an agent of each Borrower, shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and each Borrower, the
Administrative Agent, the Issuing Lender and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.


 


(v)  Upon its receipt of a duly completed
Assignment and Assumption executed by an assigning Lender and an Assignee, the
Assignee’s completed administrative questionnaire (unless the Assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative
Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.


 


(c)(i)  Any Lender may, without the consent of
the Parent Borrower or the Administrative Agent, sell participations to one or
more banks or other entities (a “Participant”) in all or a portion of
such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitments and/or Multicurrency Revolving Subcommitments, and
the Loans and/or Multicurrency Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrowers, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver that (1) requires the consent of each
Lender directly affected thereby pursuant to the proviso to the second sentence
of Section 10.1 and (2) directly affects such Participant. Subject to
paragraph (c)(ii) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as
though it were a Lender.


 


(ii)  A Participant
shall not be entitled to receive any greater payment under Section 2.16 or
2.17 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Parent Borrower’s prior
written consent. Any Participant that is a Non-U.S. Lender shall not be
entitled to the benefits of Section 2.17 unless such Participant complies
with Section 2.17(d).


 


(d)  Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such 


 


56

















 


pledge
or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or Assignee for such Lender
as a party hereto.


 


(e)  Each Borrower,
upon receipt of written notice from the relevant Lender, agrees to issue Notes
to any Lender requiring Notes to facilitate transactions of the type described
in paragraph (d) above.


 


(f)  Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may have
funded hereunder to its designating Lender without the consent of the Borrowers
or the Administrative Agent and without regard to the limitations set forth in Section 10.6(b).
Each of the Borrowers, each Lender and the Administrative Agent hereby confirms
that it will not institute against a Conduit Lender or join any other Person in
instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided,
however, that each Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.


 


10.7                           Set-off.
In addition to any rights and remedies of the Lenders provided by law, each
Lender shall have the right, without prior notice
to the Borrowers, any such notice being expressly waived by each Borrower to
the extent permitted by applicable law, upon any amount becoming due and
payable by any Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of any Borrower. Each Lender
agrees promptly to notify the Parent Borrower and the Administrative Agent
after any such setoff and application made by such Lender, provided that
the failure to give such notice shall not affect the validity of such setoff
and application.


 


10.8                           Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page of
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Parent Borrower
and the Administrative Agent.


 


10.9                           Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


10.10                     Integration.
This Agreement and the other Loan Documents represent the entire agreement of
the Borrowers, the Administrative Agent and
the Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.


 


57

















 


10.11                     GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.


 


10.12                     Submission
To Jurisdiction; Waivers. Each Borrower hereby irrevocably and
unconditionally:


 


(a) submits for itself
and its property in any legal action or proceeding relating to this Agreement
and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States for the Southern District of New York, and appellate courts from
any thereof;


 


(b) consents that any such
action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or claim the same;


 


(c) agrees that service of
process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Parent Borrower at its address set forth in Section 10.2
or at such other address of which the Administrative Agent shall have been
notified pursuant thereto;


 


(d) agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any other jurisdiction; and


 


(e) waives, to the maximum
extent not prohibited by law, any right it may have to claim or recover in
any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.


 


10.13                     Acknowledgements.
Each Borrower hereby acknowledges that:


 


(a) it has been advised by
counsel in the negotiation, execution and delivery of this Agreement and the
other Loan Documents;


 


(b) neither the
Administrative Agent nor any Lender has any fiduciary relationship with or duty
to the Borrowers arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and the Borrowers, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and


 


(c) no joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue of
the transactions contemplated hereby among the Lenders or among the Borrowers
and the Lenders.


 


10.14                     Releases
of Guarantees.  (a)  Notwithstanding anything to the contrary
contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each
Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 10.1) to take any action requested by the
Parent Borrower having the effect of releasing any 


 


58

















 


guarantee obligations to the extent necessary to permit consummation of
any transaction not prohibited by any Loan Document or that has been consented
to in accordance with Section 10.1.


 


10.15                     Confidentiality. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public
information provided to it by any Loan Party, the Administrative Agent or any
Lender pursuant to or in connection with this Agreement that is designated by
the provider thereof as confidential; provided that nothing herein shall
prevent the Administrative Agent or any Lender from disclosing any such
information (a) to the Administrative Agent, any other Lender or any
affiliate thereof, (b) subject to an agreement to comply with the
provisions of this Section, to any actual or prospective Transferee or any
direct or indirect counterparty to any Swap Agreement (or any professional
advisor to such counterparty), (c) to its employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of its
affiliates, (d) upon the request or demand of any Governmental Authority, (e) in
response to any order of any court or other Governmental Authority or as may otherwise
be required pursuant to any Requirement of Law, (f) if requested or
required to do so in connection with any litigation or similar proceeding, (g) that
has been publicly disclosed, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender’s investment
portfolio in connection with ratings issued with respect to such Lender, or (i) in
connection with the exercise of any remedy hereunder or under any other Loan
Document.


 


Each
Lender acknowledges that information furnished to it pursuant to this Agreement
may include material non-public information concerning the Parent Borrower
and its Affiliates and their related parties or their respective securities,
and confirms that it has developed compliance procedures regarding the use of
material non-public information and that it will handle such material non-public
information in accordance with those procedures and applicable law, including
Federal and state securities laws.


 


All
information, including requests for waivers and amendments, furnished by the
Parent Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement will be syndicate-level information, which may contain
material non-public information about the Parent Borrower and its Affiliates
and their related parties or their respective securities. Accordingly, each
Lender represents to the Parent Borrower and the Administrative Agent that it
has identified in its administrative questionnaire a credit contact who may receive
information that may contain material non-public information in accordance
with its compliance procedures and applicable law, including Federal and state
securities laws.


 


10.16                     USA
Patriot Act. Each Lender subject to
the Act hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is hereby required to obtain, verify and record information that identifies
the Borrowers, which information includes the names and addresses of the
Borrowers and other information that will allow such Lender to identify the
Borrowers in accordance with the Act.


 


10.17                     WAIVERS OF
JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


59

















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.


 


	
   

  	
  GENZYME CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael S. Wyzga

  
	
   

  	
   

  	
  Name:

  	
  Michael S. Wyzga

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President, Finance; Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SANGSTAT LUXEMBOURG
  S.A.R.L.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carl Speecke

  
	
   

  	
   

  	
  Universal Management
  Services S.a.r.l.

  
	
   

  	
   

  	
  Title:

  	
  Class B Manager

  
	
   

  	
   

  	
  By: 

  	
  Carl Speecke

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SANGSTAT LUXEMBOURG
  S.A.R.L.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ruth Brand

  
	
   

  	
   

  	
  Universal Management
  Services S.a.r.l.

  
	
   

  	
   

  	
  Title: Class B
  Manager

  
	
   

  	
   

  	
  By:   Ruth Brand

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SANGSTAT LUXEMBOURG
  S.A.R.L.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael S. Wyzga

  
	
   

  	
   

  	
  Michael S. Wyzga

  
	
   

  	
   

  	
  Title: Class A
  Manager

  
					



 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,
  as Administrative 

  Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter M. Killea

  
	
   

  	
   

  	
  Name:   Peter M. Killea

  
	
   

  	
   

  	
  Title:      Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as
  Syndication Agent and

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Zubin R. Shroff

  
	
   

  	
   

  	
  Name: Zubin R. Shroff

  
	
   

  	
   

  	
  Title:  Vice President

  



 

















 


	
   

  	
  ABN AMRO
  BANK N.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ George Dugan

  
	
   

  	
   

  	
  Name: George Dugan

  
	
   

  	
   

  	
  Title:   Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patricia Christy

  
	
   

  	
   

  	
  Name: Patricia Christy

  
	
   

  	
   

  	
  Title:    Director

  



 

















 


	
   

  	
  Citizens Bank of Massachusetts

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. Scott Haskell

  
	
   

  	
   

  	
  Name: 

  	
  R. Scott Haskell

  
	
   

  	
   

  	
  Title: 

  	
  Senior Vice President

  



 

















 


	
   

  	
  Wachovia Bank,
  National Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Scott Santa Cruz

  
	
   

  	
   

  	
  Name: 

  	
  Scott Santa
  Cruz

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Director

  	
   

  



 

















 


	
   

  	
  Mellon Bank,
  N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Feathers

  
	
   

  	
   

  	
  Name: 

  	
  William M. Feathers

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  



 

















 


	
   

  	
  Bank of Tokyo-Mitsubishi UFJ Trust Company

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Lillian Kim

  
	
   

  	
  Name: 

  	
  Lillian Kim

  
	
   

  	
  Title: 

  	
  Vice President

  
				



 

















 


	
   

  	
  Citibank, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Juan Carlos Lorenzo

  
	
   

  	
  Name: Juan Carlos Lorenzo

  
	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  Sovereign Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Greg Batsevitsky

  
	
   

  	
   

  	
  Name: 

  	
  Greg Batsevitsky

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  



 

















 


	
   

  	
  KBC BANK N.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Jean-Pierre Diels

  
	
   

  	
   

  	
  Name: 

  	
  Jean-Pierre Diels

  
	
   

  	
   

  	
  Title: 

  	
  First Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wei-Chun Wang

  
	
   

  	
   

  	
  Name: 

  	
  Wei-Chun Wang

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Assistant Vice President

  	
   

  
						



 

















 


	
   

  	
  The Governor and Company of the Bank of
  Ireland

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Kevin Healy

  	 

	
   

  	
  Name:

  	
  Kevin Healy

  	 

	
   

  	
  Title:

  	
  Associate

  	 

	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Padraig Rushe

  
	
   

  	
  Name:

  	
  Padraig Rushe

  
	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  J.P. MORGAN EUROPE LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alastair Stevenson

  
	
   

  	
   

  	
  Name: 

  	
  Alastair Stevenson

  
	
   

  	
   

  	
  Title: 

  	
  Managing Director

  



 

















SCHEDULE 1.1A


 


Commitments


 


	
  Name of Lender

  	
   

  	
  Commitment

  	
   

  	
  Multicurrency

  Subcommitment

  	
   

  
	
  JPMorgan
  Chase Bank, N.A.

  	
   

  	
  $

  	
  47,500,000

  	
   

  	
  $

  	
  33,928,971.43

  	
   

  
	
  Bank of
  America, N.A.

  	
   

  	
  $

  	
  47,500,000

  	
   

  	
  $

  	
  33,928,971.43

  	
   

  
	
  ABN AMRO
  Bank N.V.

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  $

  	
  28,571,428.57

  	
   

  
	
  Citizens
  Bank of Massachusetts

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  $

  	
  28,571,428.57

  	
   

  
	
  Wachovia
  Bank, National Association

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  $

  	
  28,571,428.57

  	
   

  
	
  Mellon Bank,
  N.A.

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  17,857,142.86

  	
   

  
	
  Bank of
  Tokyo-Mitsubishi UFJ Trust Company

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  17,857,142.86

  	
   

  
	
  Citibank,
  N.A.

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  17,857,142.86

  	
   

  
	
  Sovereign
  Bank

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  17,857,142.86

  	
   

  
	
  KBC Bank NV

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
  14,285,714.29

  	
   

  
	
  The Governor
  and Company of the Bank of Ireland

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  10,714,285.71

  	
   

  
	
  Total

  	
   

  	
  $

  	
  350,000,000

  	
   

  	
  $

  	
  250,000,000

  	
   

  



 

















 


SCHEDULE 1.1B


 


Subsidiary
Borrowers


 


SangStat Luxembourg S.à.r.l


 

















 


SCHEDULE 1.1C


 


Mandatory
Cost


 


1.                                The Mandatory Cost is
an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the
Financial Services Authority (or, in either case, any other authority which
replaces all or any of its functions) or (b) the requirements of the European
Central Bank.


 


2.                                On the first day of
each Interest Period (or as soon as possible thereafter) the Administrative
Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
Rate”) for each Lender, in accordance with the paragraphs set out below.
The Mandatory Cost will be calculated by the Administrative Agent as a weighted
average of the Lenders’ Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will be
expressed as a percentage rate per annum.


 


3.                                The Additional Cost
Rate for any Lender lending from a facility office in a participating member
state will be the percentage notified by that Lender to the Administrative
Agent. This percentage will be certified by that Lender in its notice to the
Administrative Agent to be its reasonable determination of the cost (expressed
as a percentage of that Lender’s participation in all Loans made from that
facility office) of complying with the minimum reserve requirements of the European
Central Bank in respect of loans made from that facility office.


 


4.                                The Additional Cost
Rate for any Lender lending from a facility office in the United Kingdom will
be calculated by the Administrative Agent as follows:


 


(a)                                         in relation to a
Multicurrency Loan denominated in sterling:


 


	
  AB + C(B – D)
  + E x 0.01

  	
    per cent. per annum

  
	
  100 – (A +
  C)

  



 


(b)                                 in relation to a
Multicurrency Loan in any currency other than sterling:


 


	
  E x 0.01

  	
    per cent. per annum.

  
	
  300

  



 


Where:


 


A                            is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time required
to maintain as an interest free cash ratio deposit with the Bank of England to
comply with cash ratio requirements.


 


B                              is the percentage rate of interest (excluding the Applicable Margin and
the Mandatory Cost and, if the Loan is an unpaid sum, the additional rate of
interest specified in Section 2.12(f) payable for the relevant
Interest Period on the Loan.


 


C                              is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits
with the Bank of England.


 


 

















 


D                             is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.


 


E                               is designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Administrative Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Administrative
Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.


 


5.                                For the purposes of
this Schedule:


 


(a)                                  “Eligible Liabilities”
and “Special Deposits” have the meanings
given to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;


 


(b)                                 “Fees Rules”
means the rules on periodic fees contained in the FSA Supervision Manual
or such other law or regulation as may be in force from time to time in
respect of the payment of fees for the acceptance of deposits;


 


(c)                                  “Fee Tariffs”
means the fee tariffs specified in the Fees Rules under the activity group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate); and


 


(d)                                 “Tariff Base”
has the meaning given to it in, and will be calculated in accordance with, the
Fees Rules.


 


6.                                In application of the
above formulae, A, B, C and D will be included in the formulae as percentages
(i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The
resulting figures shall be rounded to four decimal places.


 


7.                                If requested by the
Administrative Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Administrative
Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for this purpose
by that Reference Bank as being the average of the Fee Tariffs applicable to
that Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Bank.


 


8.                                Each Lender shall
supply any information required by the Administrative Agent for the purpose of
calculating its Additional Cost Rate. In particular, but without limitation,
each Lender shall supply the following information on or prior to the date on
which it becomes a Lender:


 


(a)                                  the jurisdiction of
its facility office; and


 

















 


(b)                                 any other information
that the Administrative Agent may reasonably require for such purpose.


 


Each Lender shall
promptly notify the Administrative Agent of any change to the information
provided by it pursuant to this paragraph.


 


9.                                The percentages of
each Lender for the purpose of A and C above and the rates of charge of each
Reference Bank for the purpose of E above shall be determined by the
Administrative Agent based upon the information supplied to it pursuant to
paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies
the Agent to the contrary, each Lender’s obligations in relation to cash ratio
deposits and Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same jurisdiction
as its Facility Office.


 


10.                          The Administrative
Agent shall have no liability to any person if such determination results in an
Additional Cost Rate which over or under compensates any Lender and shall be
entitled to assume that the information provided by any Lender or Reference
Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all
respects.


 


11.                          The Administrative
Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender and each Reference Bank
pursuant to paragraphs 3, 7 and 8 above.


 


12.                          Any determination by
the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on
all Parties.


 


13.                          The Administrative
Agent may from time to time, after consultation with the Parent Borrower
and the Lenders, determine and notify to all parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank of
England, the Financial Services Authority or the European Central Bank (or, in
any case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be conclusive
and binding on all parties.


 

















 


SCHEDULE 1.1D


 


Co-Agents


 


Mellon
Bank, N.A.


 


Bank
of Tokyo-Mitsubishi UFJ Trust Company


 


Citibank,
N.A.


 


Sovereign Bank


 

















 


SCHEDULE 4.4


 


Consents,
Authorizations, Filings and Notices 


 


None.

















 


SCHEDULE 4.6


 


Litigation


 


None, although the Parent Borrower refers to
the litigation disclosed in the Parent Borrower’s Form 10-Q filing for the
fiscal quarter ending March 31, 2006 with the U.S. Securities and Exchange
Commission pursuant to the Securities Act of 1934, as amended, none of which is
reasonably expected to have a Material Adverse Effect.


 

















 


SCHEDULE 4.15


 


Material Subsidiaries


 


See attached.


 

















 


SCHEDULE
7.2(d)


 


Existing
Indebtedness


 


See attached.


 

















 


SCHEDULE
7.3(f)


 


Existing Liens


 


None.


 

















 


EXHIBIT A


 


FORM OF

COMPLIANCE CERTIFICATE


 


This Compliance Certificate is delivered pursuant to
Section 6.2(b) of the Credit Agreement, dated as of July 14, 2006 (as amended,
supplemented or otherwise modified from time to time (the “Credit Agreement”),
among Genzyme Corporation (the “Parent Borrower”), the subsidiary
borrowers thereto (the Subsidiary Borrowers”; and together with the
Parent Borrower, the “Borrowers”), the Lenders party thereto, the
Syndication Agent named therein and JPMorgan Chase Bank, N.A., as
administrative agent (in such capacity, the “Administrative Agent”). Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.


 


1.             I am the duly elected, qualified and acting [list title
of Responsible Officer] of the Parent Borrower.


 


2.             I have reviewed and am familiar with the contents of
this Certificate.


 


3.             I have reviewed the terms of the Credit Agreement and
the Loan Documents and have made or caused to be made under my supervision, a
review in reasonable detail of the transactions and condition of the Parent
Borrower during the accounting period covered by the financial statements
attached hereto as Attachment 1 (the “Financial Statements”). Such
review did not disclose the existence during or at the end of the accounting
period covered by the Financial Statements, and I have no knowledge of the
existence, as of the date of this Certificate, of any condition or event which
constitutes a Default or Event of Default[, except as set forth below].


 


4.             Attached hereto as Attachment 2 are the
computations showing compliance with the covenants set forth in Section 7.1,
7.2, 7.3, 7.5, 7.6, and 7.7  of the
Credit Agreement.


 


IN WITNESS WHEREOF, I have executed this Certificate
this            day of
        , 200    .


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Attachment 1

to Compliance Certificate


 


[Attach
Financial Statements]


 

















 


Attachment 2

to Compliance Certificate


 


The information described
herein is as of             ,
        , and pertains to the
period from                   ,
         to                            
    ,         .


 


[Set forth
Covenant Calculations]


 

















 


EXHIBIT B


 


FORM OF

CLOSING CERTIFICATE


 


Pursuant to Section 5.1(e) of the Credit Agreement,
dated as of July 14, 2006 (the “Credit Agreement”; terms defined therein
being used herein as therein defined), among Genzyme Corporation (the “Parent
Borrower”), the subsidiary borrowers thereto (the Subsidiary Borrowers”;
and together with the Parent Borrower, the “Borrowers”), the Lenders
party thereto, the Syndication Agent named therein and JPMorgan Chase Bank,
N.A., as administrative agent (in such capacity, the “Administrative Agent”),
the undersigned [INSERT TITLE OF OFFICER] of [INSERT NAME OF LOAN PARTY] (the “Certifying
Loan Party”) hereby certifies as follows:


 


1.             The representations and warranties of the Certifying
Loan Party set forth in each of the Loan Documents to which it is a party or
which are contained in any certificate furnished by or on behalf of the
Certifying Loan Party pursuant to any of the Loan Documents to which it is a
party are true and correct in all material respects on and as of the date
hereof with the same effect as if made on the date hereof, except for
representations and warranties expressly stated to relate to a specific earlier
date, in which case such representations and warranties were true and correct
in all material respects as of such earlier date.


 


2.                                                   
is the duly elected and qualified Corporate Secretary of the Certifying Loan
Party and the signature set forth for such officer below is such officer’s true
and genuine signature.


 


3.             No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to the Loans to be made
on the date hereof and the use of proceeds thereof. [Borrowers only]


 


4.             The conditions precedent set forth in Section 5.1 of the
Credit Agreement were satisfied as of the Closing Date. [Borrowers only]


 


The undersigned Corporate Secretary of the
Certifying Loan Party certifies as follows:


 


5.             There are no liquidation or dissolution proceedings
pending or to my knowledge threatened against the Certifying Loan Party, nor
has any other event occurred adversely affecting or threatening the continued
corporate existence of the Certifying Loan Party.


 


6.             The Certifying Loan Party is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its organization.


 


7.             Attached hereto as Annex 1 is a true and complete
copy of resolutions duly adopted by the Board of Directors of the Certifying
Loan Party on                                   ;
such resolutions have not in any way been amended, modified, revoked or
rescinded, have been in full force and effect since their adoption to and
including the date hereof and are now in full force and effect and are the only
corporate proceedings of the Certifying Loan Party now in force relating to or
affecting the matters referred to therein.


 


8.             Attached hereto as Annex 2 is a true and complete
copy of the By-Laws of the Certifying Loan Party as in effect on the date
hereof.


 


9.             Attached hereto as Annex 3 is a true and complete
copy of the Certificate of Incorporation of the Certifying Loan Party as in
effect on the date hereof.


 

















 


10.           The following persons are now duly elected and qualified
officers of the Certifying Loan Party holding the offices indicated next to
their respective names below, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such officers,
and each of such officers is duly authorized to execute and deliver on behalf
of the Certifying Loan Party each of the Loan Documents to which it is a party
and any certificate or other document to be delivered by the Certifying Loan
Party pursuant to the Loan Documents to which it is a party:


 


	
  Name

  	
   

  	
  Office

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


IN WITNESS WHEREOF, the
undersigned have hereunto set our names as of the date set forth below.


 


 


	
   

  	
   

  	
   

  
	
  Name:

  	
  Name:

  
	
  Title:

  	
  Title: Corporate Secretary

  



 


Date:  July       ,
2006


 


2

















 


EXHIBIT C


 


FORM OF

ASSIGNMENT AND ASSUMPTION


 


Reference is made to the Credit Agreement, dated as
of  July 14, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Genzyme Corporation (the “Parent Borrower”), the subsidiary
borrowers thereto (the Subsidiary Borrowers”; and together with the
Parent Borrower, the “Borrowers”), the Lenders party thereto, the
Syndication Agent named therein and JPMorgan Chase Bank, N.A., as
administrative agent (in such capacity, the “Administrative Agent”). Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.


 


The Assignor identified on Schedule l hereto (the “Assignor”)
and the Assignee identified on Schedule l hereto (the “Assignee”) agree
as follows:


 


1.             The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the “Assigned Interest”) in and to the Assignor’s rights and
obligations under the Credit Agreement with respect to those credit facilities
contained in the Credit Agreement as are set forth on Schedule 1 hereto
(individually, an “Assigned Facility”; collectively, the “Assigned
Facilities”), in a principal amount for each Assigned Facility as set forth
on Schedule 1 hereto.


 


2.             The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim and (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower, any of their Affiliates or any other
obligor or the performance or observance by any Borrower, any of their
Affiliates or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto.


 


3.             The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Assumption; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of
the financial statements delivered pursuant to Section 4.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption; (c)
agrees that it will, independently and without reliance upon the Assignor, the
Agents or any Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto; (d) appoints and authorizes the Agents to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Agents by the
terms thereof, together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender including,
if it


 

















 


is organized under the laws
of a jurisdiction outside the United States, its obligation pursuant to Section
2.17(d) of the Credit Agreement.


 


4.             The effective date of this Assignment and Assumption
shall be the Effective Date of Assignment described in Schedule 1 hereto (the “Effective
Date”). Following the execution of this Assignment and Assumption, it will
be delivered to the Administrative Agent for acceptance by it and recording by
the Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).


 


5.             Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the Agent for
periods prior to the Effective Date or with respect to the making of this assignment
directly between themselves.


 


6.             From and after the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this
Assignment and Assumption, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Assumption, relinquish its rights and be released from its
obligations under the Credit Agreement.


 


7.             This Assignment and Assumption shall be governed by and
construed in accordance with the laws of the State of New York.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Assignment and Assumption to be executed as of the date first above
written by their respective duly authorized officers on Schedule 1 hereto.


 


2

















 


Schedule 1

to Assignment and Assumption with respect to

the Credit Agreement, dated as of July 14, 2006,

among Genzyme Corporation (the “Parent Borrower”), the subsidiary
borrowers thereto (the Subsidiary

Borrowers”; and together with the Parent Borrower, the “Borrowers”),


the Lenders party thereto,

the Syndication Agent named therein

and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative
Agent”)


 


Name of Assignor:                                               


 


Name of Assignee:                                               


 


Effective Date of
Assignment:                             


 




	
  Credit Facility Assigned

  	
   

  	
  Principal

  Amount Assigned

  	
   

  	
  Commitment
  Percentage Assigned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  %

  






 


 


	
  [Name of Assignee]

  	
  [Name of Assignor]

  
	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
     Title:

  	
   

  	
     Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Accepted for Recordation in the Register:

  	
  Required Consents (if any):

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A., as

  Administrative Agent

  	
  GENZYME CORPORATION

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Title:

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
    Title:

  



 

















 


Exhibit D


Form of Ropes & Gray LLP Legal Opinion


 


[On letterhead of Ropes & Gray LLP]


July 14, 2006


 


To the
Administrative Agent

and each Lender party to the 

Credit Agreement referred to below


 


Re: Genzyme
Corporation


 


Ladies and Gentlemen:


 


This opinion is being
furnished to you pursuant to the Credit Agreement dated as of July 14, 2006
(the “Credit Agreement”), among Genzyme Corporation, a Massachusetts
corporation (the “Company”), the Subsidiary Borrower (as defined below)
party thereto, the Lenders from time to time party thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, and Bank of America, N.A., as Syndication
Agent, in connection with the closing held this day under the Credit Agreement.
Unless otherwise defined herein, capitalized terms used herein have the
meanings set forth in the Credit Agreement.


 


We have acted as counsel
to the Loan Parties (as defined below) in connection with the Credit Agreement,
the Guarantee, the Pledge Agreement, and the Notes being delivered by the
Company today under the Credit Agreement (which agreements and Notes are collectively
referred to herein as the “Credit Documents”). The subsidiaries of the
Company listed in Parts A and B of Schedule I hereto are referred
to herein respectively as the “Massachusetts LP Guarantor” and the “Delaware
LLC Guarantor”. The Massachusetts LP Guarantor and the Delaware LLC
Guarantor are referred to herein collectively as the “Covered Guarantors”.
The Company and the Covered Guarantors are referred to herein collectively as
the “Loan Parties”.


 


We have examined
originals or copies, certified or otherwise identified to our satisfaction, of
such documents and records and have made such investigation of fact and such
examination of law as we have deemed appropriate in order to enable us to
render the opinions set forth herein. In conducting such investigation, we have
relied, without independent verification, upon certificates of officers of the
Loan Parties and one or more of their Subsidiaries, public officials and other
appropriate Persons, and on the representations and warranties as to matters of
fact and on the covenants as to the application of proceeds contained in the
Credit Documents.


 


The opinions expressed
herein are limited to matters governed by the laws of the State of New York,
the laws of the Commonwealth of Massachusetts, the Delaware Limited Liability
Company Act, and the federal laws of the United States of America
(collectively, the “Covered Laws”).


 


Based upon and subject to
the foregoing and subject to the additional qualifications set


 

















 


forth below, we are of
the opinion that:


 


1.                                       (a)  The Company (i) is a corporation validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts and (ii) has the corporate power and authority to conduct the
business in which it is engaged and to execute, deliver and perform its
obligations under each of the Credit Documents to which it is a party.


 


(b)  The Massachusetts LP Guarantor (i) is a
limited partnership validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and (ii) has the power and authority under its
limited partnership agreement and the Massachusetts Uniform Limited Partnership
Act to conduct the business in which it is engaged and to execute, deliver, and
perform its obligations under each of the Credit Documents to which it is a
party.


 


(c)  The Delaware LLC Guarantor (i) is a limited
liability company validly existing and in good standing under the laws of the
State of Delaware and (ii) has the power and authority under its limited
liability company agreement and the Delaware Limited Liability Company Act to
conduct the business in which it is engaged and to execute, deliver, and
perform its obligations under each of the Credit Documents to which it is a
party.


 


2.             Each of the Company and the Covered
Guarantors has duly authorized, executed, and delivered each of the Credit
Documents to which it is a party.


 


3.             Each of the Credit Documents to
which each of the Loan Parties is a party constitutes the valid and binding
obligation of each such Person as is party thereto and is enforceable against
each such Person in accordance with its terms.


 


4.             The execution and delivery by each
of the Company and the Covered Guarantors of the Credit Documents to which such
Person is party and the performance by such Person of its obligations
thereunder will not violate or require the repurchase of securities under the
articles of organization, by-laws, limited liability company agreement, or
limited partnership agreement, as applicable, of such Person. The execution and
delivery by each of the Loan Parties of the Credit Documents to which such
Person is party and the performance by such Person of its obligations
thereunder (a) will not violate any Covered Laws and (b) will not result
in a breach or violation of, or constitute a default under, any of the
agreements, instruments, court orders, judgments or decrees listed on Schedule
II hereto.


 


5.             Under the Covered Laws, no consent,
approval, license or exemption by, or order or authorization of, or filing,
recording or registration with, any governmental authority is required to be
obtained by the Loan Parties in connection with the execution and delivery of
the Credit Documents to which each such Person is party or the performance by
each such Person of its obligations thereunder.


 


6.             We are not representing any of the
Loan Parties in any pending litigation in which it is a named defendant that challenges
the validity or enforceability of, or seeks to enjoin the performance of, the
Credit Documents.


 


2

















 


7.             None of the Loan Parties is an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.


 


8.             Neither the making of the loans
under the Credit Agreement, nor the application of the proceeds thereof as
provided in the Credit Agreement, will violate Regulations T, U or X of the
Board of Governors of the Federal Reserve System as in effect on the date
hereof.


 


9.             The Pledge Agreement creates a
valid security interest in favor of the Administrative Agent for the benefit of
the Lenders in the Pledged Stock described therein to the extent that a
security interest in such Pledged Stock can be created under Article 9 of the
New York Uniform Commercial Code.


 


10.           Upon the delivery in the State of New
York to the Administrative Agent of the Pledged Stock listed on Schedule III
and the related stock powers pursuant to the Pledge Agreement and assuming that
neither the Lenders nor the Administrative Agent had “notice of an adverse
claim” (within the meaning of Section 8-105 of the New York Uniform Commercial
Code) with respect to such Pledged Stock at the time such Pledged Stock is
delivered to the Administrative Agent, the respective security interests in
such Pledged Stock created in favor of the Administrative Agent for the benefit
of the Lenders under the Pledge Agreement constitute perfected security
interests in such Pledged Stock, free of any “adverse claim” (as defined in the
New York Uniform Commercial Code).


 


Our opinion that each of
the Credit Documents to which each of the Loan Parties is a party constitutes
the valid and binding obligation of each such Person, enforceable against each
such Person in accordance with its terms, is subject to (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other laws of
general application affecting the rights and remedies of creditors and secured
parties, (ii) general principles of equity.


 


The opinions expressed
herein do not purport to cover, and we express no opinion with respect to, the
applicability of Section 548 of the federal Bankruptcy Code or any comparable
provision of state law.


 


The opinions expressed
herein are subject to the qualification that the enforceability of provisions
in the Credit Documents providing for indemnification or contribution may be
limited by public policy considerations. In addition, we express no opinion as
to (i) the extent to which broadly worded waivers, conclusive presumptions or
determinations or powers of attorney may be enforced, (ii) the enforceability
of any provision of the Credit Documents which purports to grant the right of
setoff to an affiliate of a lender or a purchaser of a participation in the
loans outstanding thereunder, which permits the exercise of a right of setoff
against amounts not then due, or which constitutes a penalty or forfeiture, or
(iii) the enforceability of any provision which provides for non-effectiveness
of oral modifications, waiver of or consent to service of process and venue,
waiver of offset or defenses, or judgment currency. In connection with the
provisions of the Credit Documents whereby the parties submit to the
jurisdiction of the courts of the United States of America located in the State
of New York, we note the limitations of 28 U.S.C. §§ 1331 and 1332 on subject
matter jurisdiction of the federal courts.


 


3

















 


In addition, certain
provisions contained in the Pledge Agreement may be unenforceable in whole or
in part, but the inclusion of such provisions in the Pledge Agreement does not
affect the validity of any of the other provisions thereof, and the remaining
provisions of the Credit Documents are sufficient for the practical realization
of the benefits intended to be provided thereby.


 


We call your attention to
the fact that section 552 of the Bankruptcy Code limits the extent to which
property acquired by a debtor after the commencement of a case under the
Bankruptcy Code may be subject to a lien resulting from any security agreement
entered into by the debtor before the commencement of the case.


 


In
giving the foregoing opinions, we have assumed that (i) each Lender is subject
to control, regulation or examination by a state or federal regulatory agency
for purposes of M.G.L. c. 271, section 49, (ii) the Lenders have made and will
maintain the filings required for non-exempt Lenders under such statute or
(iii) amounts payable to the Lenders as interest and expenses (computed as
provided in such statute) in respect of the extensions of credit under the
Credit Agreement will not exceed the limit provided in such statute.


 


This opinion is being
furnished only to the addressees and is solely for their benefit and the
benefit of their participants and assignees permitted by the Credit Agreement.
This opinion may not be relied upon for any other purpose or by any other
Person without our prior written consent.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Ropes
  & Gray LLP

  



 


4

















 


Schedule I


 


Covered Guarantors


 


 


 

















 


Schedule II


 


Material Agreements


 


 


 

















 


Schedule III


 


Pledged Stock


 


 

















 


EXHIBIT E


 


FORM OF EXEMPTION
CERTIFICATE


 


Reference is made to the Credit Agreement, dated as
of July 14, 2006 (as amended, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among Genzyme Corporation (the “Parent
Borrower”), the subsidiary borrowers thereto (the Subsidiary Borrowers”;
and together with the Parent Borrower, the “Borrowers”), the Lenders
party thereto, the Syndication Agent named therein and JPMorgan Chase Bank,
N.A., as administrative agent (in such capacity, the “Administrative Agent”).
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.                                             
(the “Non-U.S. Lender”) is providing this certificate pursuant to Section
2.17(d) of the Credit Agreement. The Non-U.S. Lender hereby represents and
warrants that:


 


1. The Non-U.S. Lender is the sole record and
beneficial owner of the Loans in respect of which it is providing this
certificate.


 


2. The Non-U.S. Lender is not a “bank” for purposes
of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”).
In this regard, the Non-U.S. Lender further represents and warrants that:


 


(a) the Non-U.S. Lender is
not subject to regulatory or other legal requirements as a bank in any
jurisdiction; and


 


(b) the Non-U.S. Lender has
not been treated as a bank for purposes of any tax, securities law or other
filing or submission made to any Governmental Authority, any application made
to a rating agency or qualification for any exemption from tax, securities law
or other legal requirements.


 


3. The Non-U.S. Lender is not a 10-percent
shareholder of any Borrower within the meaning of Section 881(c)(3)(B) of the
Code.


 


4. The Non-U.S. Lender is not a controlled foreign
corporation receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code.


 


IN WITNESS WHEREOF, the undersigned has duly
executed this certificate.


 


	
   

  	
  [NAME OF NON-U.S. LENDER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
						



 

















 


EXHIBIT F


 


 




 





 


GUARANTEE


 


 


made by


 


 


GENZYME
CORPORATION


 


 


and certain of
its Subsidiaries


 


 


in favor of


 


 


JPMORGAN CHASE
BANK, N.A.,


 


as
Administrative Agent


 


 


Dated as of
July 14, 2006


 




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
  SECTION
  1.

  	
  DEFINED
  TERMS

  	
   

  	
  1

  
	
  1.1

  	
  Definitions

  	
   

  	
  1

  
	
  1.2

  	
  Other Definitional
  Provisions

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  2.

  	
  GUARANTEE

  	
   

  	
  3

  
	
  2.1

  	
  Guarantee

  	
   

  	
  3

  
	
  2.2

  	
  Right of Contribution

  	
   

  	
  4

  
	
  2.3

  	
  No Subrogation

  	
   

  	
  4

  
	
  2.4

  	
  Amendments, etc.
  with respect to the Borrower Obligations

  	
   

  	
  4

  
	
  2.5

  	
  Guarantee
  Absolute and Unconditional

  	
   

  	
  4

  
	
  2.6

  	
  Reinstatement

  	
   

  	
  5

  
	
  2.7

  	
  Payments

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  3.

  	
  MISCELLANEOUS

  	
   

  	
  6

  
	
  3.1

  	
  Amendments in Writing

  	
   

  	
  6

  
	
  3.2

  	
  Notices

  	
   

  	
  6

  
	
  3.3

  	
  No Waiver by
  Course of Conduct; Cumulative Remedies

  	
   

  	
  6

  
	
  3.4

  	
  Enforcement
  Expenses; Indemnification

  	
   

  	
  6

  
	
  3.5

  	
  Successors and Assigns

  	
   

  	
  6

  
	
  3.6

  	
  Set-Off

  	
   

  	
  6

  
	
  3.7

  	
  Counterparts

  	
   

  	
  7

  
	
  3.8

  	
  Severability

  	
   

  	
  7

  
	
  3.9

  	
  Section Headings

  	
   

  	
  7

  
	
  3.10

  	
  Integration

  	
   

  	
  7

  
	
  3.11

  	
  GOVERNING LAW

  	
   

  	
  7

  
	
  3.12

  	
  Submission To
  Jurisdiction; Waivers

  	
   

  	
  7

  
	
  3.13

  	
  Acknowledgements

  	
   

  	
  8

  
	
  3.14

  	
  Additional Guarantors

  	
   

  	
  8

  
	
  3.15

  	
  Releases

  	
   

  	
  8

  
	
  3.16

  	
  WAIVER OF
  JURY TRIAL

  	
   

  	
  8

  
	
  3.17

  	
  Application of Proceeds

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1

  	
  Notice Addresses

  	
   

  	
   

  



 


i

















 


GUARANTEE


 


GUARANTEE, dated as of July 14, 2006, made by
each of the signatories hereto, in favor of JPMORGAN CHASE BANK, N.A., as
Administrative Agent (in such capacity, the “Administrative Agent”) for
the banks and other financial institutions or entities (the “Lenders”)
from time to time parties to the Credit Agreement, dated as of July 14, 2006
(as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Genzyme Corporation (the “Parent Borrower”), the
subsidiary borrowers thereto (the “Subsidiary Borrowers”; together with
the Parent Borrower, the “Borrowers”), the Lenders, the Syndication
Agent, and the Administrative Agent.


 


W I  T  N  E  S  S  E  T
H:


 


WHEREAS, pursuant to the Credit Agreement,
the Lenders have severally agreed to make extensions of credit to each Borrower
upon the terms and subject to the conditions set forth therein;


 


WHEREAS, each Borrower is a member of an
affiliated group of companies that includes each other Guarantor;


 


WHEREAS, the proceeds of the extensions of
credit under the Credit Agreement will be used in part to enable each Borrower
to make valuable transfers to one or more of the other Guarantors in connection
with the operation of their respective businesses;


 


WHEREAS, each Borrower and the other
Guarantors are engaged in related businesses, and each Guarantor will derive
substantial direct and indirect benefit from the making of the extensions of
credit under the Credit Agreement; and


 


WHEREAS, it is a condition precedent to the
obligation of the Lenders to make their respective extensions of credit to each
Borrower under the Credit Agreement that the Guarantors shall have executed and
delivered this Guarantee to the Administrative Agent for the ratable benefit of
the Secured Parties;


 


NOW, THEREFORE, in consideration of the
premises and to induce the Administrative Agent and the Lenders to enter into
the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to each Borrower thereunder, each Guarantor hereby agrees
with the Administrative Agent, for the ratable benefit of the Secured Parties,
as follows:


 


SECTION 1.           DEFINED
TERMS


 


1.1           Definitions.  (a)  Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the
Credit Agreement.


 


(b)           The following terms shall have the
following meanings:


 


“Borrower
Obligations”: the collective reference to (i) the Parent Borrower
Obligations and (ii) the Subsidiary Borrowers
Obligations.


 


“Foreign Subsidiary”:  any Subsidiary organized under the laws of
any jurisdiction outside the United States of America.


 

















 


“Guarantee”:  this Guarantee, as the same may be amended,
supplemented or otherwise modified from time to time.


 


“Guarantor Obligations”:  with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Guarantee (including, without limitation, Section 2) or
any other Loan Document, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be paid by
such Guarantor pursuant to the terms of this Guarantee or any other Loan
Document).


 


“Guarantors”:  the collective reference to (i) with respect
to the Borrower Obligations of the Parent Borrower, each signatory to this
Guarantee other than the Parent Borrower and (ii) with respect to the Borrower
Obligations of the Subsidiary Borrowers, the Parent Borrower.


 


“Obligations”:  (i) in the case of each Borrower, the
Borrower Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.


 


“Parent Borrower Obligations”:  the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and all
other obligations and liabilities of the Parent Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement Obligations
and interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to the Parent
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) to the Administrative Agent or any Lender, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, this Guarantee, the other Loan Documents, any
Letter of Credit or any other document made, delivered or given in connection
with any of the foregoing, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be paid by
the Parent Borrower pursuant to the terms of any of the foregoing agreements).


 


“Secured Parties”:  the collective reference to the
Administrative Agent, the Lenders and any affiliate of any Lender to which
Borrower Obligations or Guarantor Obligations, as applicable, are owed.


 


“Subsidiary Borrowers Obligations”:  the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and all
other obligations and liabilities of the each Subsidiary Borrower (including,
without limitation, interest accruing at the then applicable rate provided in
the Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in the
Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the relevant Subsidiary Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the Administrative
Agent or any Lender, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, the Credit Agreement, this Agreement, the other
Loan Documents, any Letter of Credit, or any other document made, delivered or
given in connection with any of the foregoing, in each case whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of


 


2

















 


counsel to the Administrative Agent or to the
Lenders that are required to be paid by the relevant Subsidiary Borrower
pursuant to the terms of any of the foregoing agreements).


 


1.2           Other
Definitional Provisions.  (a)  The words “hereof,” “herein”, “hereto” and “hereunder”
and words of similar import
when used in this Guarantee shall refer to this Guarantee as a whole and not to
any particular provision of this Guarantee, and Section and Schedule references
are to this Guarantee unless otherwise specified.


 


(b)           The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of
such terms.


 


(c)           Where the context
requires, terms relating to the Collateral or any part thereof, when used in
relation to a Guarantor, shall refer to such Guarantor’s Collateral or the relevant
part thereof.


 


SECTION 2.           GUARANTEE


 


2.1           Guarantee.  (a)  (i)
Each of the Subsidiary Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to
the Administrative Agent, for the ratable benefit of the Secured Parties and
their respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Parent Borrower when due (whether at
the stated maturity, by acceleration or otherwise) of the Parent Borrower
Obligations and (ii) the Parent Borrower hereby unconditionally and
irrevocably, guarantees to the Administrative Agent, for the ratable benefit of
the Secured Parties and their respective successors, indorsees, transferees and
assigns, the prompt and complete payment and performance by each Subsidiary
Borrower when due (whether at the stated maturity, by acceleration or
otherwise) of the Subsidiary Borrowers Obligations.


 


(b)           Anything herein or in any other Loan
Document to the contrary notwithstanding, the maximum liability of each
Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under applicable federal
and state laws relating to the insolvency of debtors (after giving effect to
the right of contribution established in Section 2.2).


 


(c)           Each Guarantor agrees that the
Borrower Obligations may at any time and from time to time exceed the amount of
the liability of such Guarantor hereunder without impairing the guarantee
contained in this Section 2 or affecting the rights and remedies of the
Administrative Agent or any Lender hereunder.


 


(d)           The guarantee contained in this
Section 2 shall remain in full force and effect until all the Borrower
Obligations and the obligations of each Guarantor under the guarantee contained
in this Section 2 shall have been satisfied by payment in full, no Letter of
Credit shall be outstanding and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
any Borrower may be free from any Borrower Obligations.


 


(e)           No payment made by any Borrower, any
of the Guarantors, any other guarantor or any other Person or received or
collected by the Administrative Agent or any Lender from any Borrower, any of
the Guarantors, any other guarantor or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application at any time or
from time to time in reduction of or in payment of the Borrower Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
any Guarantor hereunder which shall, notwithstanding any such payment (other
than any payment made by such Guarantor in respect of the Borrower Obligations
or any payment received or collected from such Guarantor in respect of the
Borrower Obligations), remain liable for the Borrower Obligations up to the


 


3

















 


maximum liability of such Guarantor hereunder
until the Borrower Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated.


 


2.2           Right of
Contribution. Each Subsidiary Guarantor hereby agrees that to the extent
that a Subsidiary Guarantor shall have
paid more than its proportionate share of any payment made hereunder, such
Subsidiary Guarantor shall be entitled to seek and receive contribution from
and against any other Subsidiary Guarantor hereunder which has not paid its
proportionate share of such payment. Each Subsidiary Guarantor’s right of
contribution shall be subject to the terms and conditions of Section 2.3. The
provisions of this Section 2.2 shall in no respect limit the obligations and
liabilities of any Subsidiary Guarantor to the Administrative Agent and the
Lenders, and each Subsidiary Guarantor shall remain liable to the
Administrative Agent and the Lenders for the full amount guaranteed by such
Subsidiary Guarantor hereunder.


 


2.3           No Subrogation.
Notwithstanding any payment made by any Guarantor hereunder or any set-off or
application of funds of any Guarantor by the
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against any Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from any Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by any Borrower
on account of the Borrower Obligations are paid in full, no Letter of Credit
shall be outstanding and the Commitments are terminated. If any amount shall be
paid to any Guarantor on account of such subrogation rights at any time when
all of the Borrower Obligations shall not have been paid in full, such amount
shall be held by such Guarantor in trust for the Administrative Agent and the
Lenders, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Administrative Agent in
the exact form received by such Guarantor (duly indorsed by such Guarantor to
the Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.


 


2.4           Amendments, etc.
with respect to the Borrower Obligations. Each Guarantor shall remain
obligated hereunder notwithstanding
that, without any reservation of rights against any Guarantor and without
notice to or further assent by any Guarantor, any demand for payment of any of
the Borrower Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender and any of the Borrower
Obligations continued, and the Borrower Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and the Credit Agreement and the other Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or
any Lender for the payment of the Borrower Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any
Lender shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Borrower Obligations or for the
guarantee contained in this Section 2 or any property subject thereto.


 


2.5           Guarantee
Absolute and Unconditional. Each Guarantor waives any and all notice of the
creation, renewal, extension
or accrual of any of the Borrower Obligations and notice of or proof of
reliance by the Administrative Agent or any Lender upon the guarantee contained
in this Section 2 or


 


4

















 


acceptance of the guarantee
contained in this Section 2; the Borrower Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guarantee contained
in this Section 2; and all dealings between the Borrower and any of the
Guarantors, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon any Borrower or any of the Guarantors with
respect to the Borrower Obligations. Each Guarantor understands and agrees that
the guarantee contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Credit Agreement or any other Loan Document,
any of the Borrower Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any defense, set-off
or counterclaim (other than a defense of payment or performance) which may at
any time be available to or be asserted by any Borrower or any other Person
against the Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of any Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of any Borrower for the Borrower Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the Administrative Agent
or any Lender may, but shall be under no obligation to, make a similar demand
on or otherwise pursue such rights and remedies as it may have against the
relevant Borrower, any other Guarantor or any other Person or against any
collateral security or guarantee for the Borrower Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any
Lender to make any such demand, to pursue such other rights or remedies or to
collect any payments from the relevant Borrower, any other Guarantor or any
other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the relevant Borrower, any
other Guarantor or any other Person or any such collateral security, guarantee
or right of offset, shall not relieve any Guarantor of any obligation or
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent or any Lender against any Guarantor. For the purposes hereof “demand”
shall include the commencement and continuance of any legal proceedings.


 


2.6           Reinstatement.
The guarantee contained in this Section 2 shall continue to be effective, or be
reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the relevant Borrower or any Guarantor or any substantial part of
its property, or otherwise, all as though such payments had not been made.


 


2.7           Payments. Each
Guarantor hereby guarantees that payments hereunder will be paid to the
Administrative Agent without set-off or
counterclaim in the currency in which such Obligations are denominated pursuant
to the Credit Agreement at the Funding Office.


 


5

















 


SECTION 3.           MISCELLANEOUS


 


3.1           Amendments in
Writing. None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified
except in accordance with Section 10.1 of the Credit Agreement.


 


3.2           Notices. All
notices, requests and demands to or upon the Administrative Agent or any
Guarantor hereunder shall be effected in the
manner provided for in Section 10.2 of the Credit Agreement; provided that any
such notice, request or demand to or upon any Guarantor shall be addressed to
such Guarantor at its notice address set forth on Schedule 1.


 


3.3           No Waiver by
Course of Conduct; Cumulative Remedies. Neither the Administrative Agent
nor any Lender shall by any
act (except by a written instrument pursuant to Section 3.1), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default. No failure
to exercise, nor any delay in exercising, on the part of the Administrative
Agent or any Lender, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or
such Lender would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.


 


3.4           Enforcement
Expenses; Indemnification.  (a)  Each Guarantor agrees to pay or reimburse
each Lender and the Administrative
Agent for all its reasonable costs and expenses incurred in collecting against
such Guarantor under the guarantee contained in Section 2 or otherwise
enforcing or preserving any rights under this Guarantee and the other Loan
Documents to which such Guarantor is a party, including, without limitation,
the reasonable fees and disbursements of counsel to each Lender and of counsel
to the Administrative Agent and one additional counsel for all other Lenders as
a group.


 


(b)           Each Guarantor agrees to pay, and to
save the Administrative Agent and the Lenders harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be
payable in connection with any of the transactions contemplated by this
Guarantee.


 


(c)           Each Guarantor agrees to pay, and to
save the Administrative Agent and the Lenders harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Guarantee to the extent any Borrower would be required to do so
pursuant to Section 10.5 of the Credit Agreement.


 


(d)           The agreements in this Section 3.4
shall survive repayment of the Obligations and all other amounts payable under
the Credit Agreement and the other Loan Documents.


 


3.5           Successors and
Assigns. This Guarantee shall be binding upon the successors and assigns of
each Guarantor and shall inure to the
benefit of the Administrative Agent and the Lenders and their successors and
assigns; provided that no Guarantor may assign, transfer or delegate any of its
rights or obligations under this Guarantee without the prior written consent of
the Administrative Agent.


 


3.6           Set-Off. Each
Guarantor hereby irrevocably authorizes the Administrative Agent and each
Lender at any time and from time to time while an
Event of Default pursuant to Section 8(a) of the


 


6

















 


Credit Agreement shall have
occurred and be continuing, without notice to such Guarantor or any other
Guarantor, any such notice being expressly waived by each Guarantor, to set-off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender to or for the credit or the
account of such Guarantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against and on account of the
obligations and liabilities of such Guarantor to the Administrative Agent or
such Lender hereunder and claims of every nature and description of the
Administrative Agent or such Lender against such Guarantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Loan Document
or otherwise, as the Administrative Agent or such Lender may elect, whether or
not the Administrative Agent or any Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Administrative Agent and each Lender shall notify such Guarantor
promptly of any such set-off and the application made by the Administrative
Agent or such Lender of the proceeds thereof, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Administrative Agent and each Lender under this Section 3.6 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent or such Lender may have.


 


3.7           Counterparts.
This Guarantee may be executed by one or more of the parties to this Guarantee
on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.


 


3.8           Severability.
Any provision of this Guarantee which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


3.9           Section Headings.
The Section headings used in this Guarantee are for convenience of reference
only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.


 


3.10         Integration. This
Guarantee and the other Loan Documents represent the agreement of the
Guarantors, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.


 


3.11        GOVERNING
LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.


 


3.12         Submission To
Jurisdiction; Waivers. Each Guarantor hereby irrevocably and
unconditionally:


 


(a)           submits for itself and its property in
any legal action or proceeding relating to this Guarantee and the other Loan
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;


 


7

















 


(b)           consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;


 


(c)           agrees that service of process in any
such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to such Guarantor at its address referred to in Section 3.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;


 


(d)           agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction; and


 


(e)           waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.


 


3.13         Acknowledgements.
Each Guarantor hereby acknowledges that:


 


(a)           it has been advised by counsel in the
negotiation, execution and delivery of this Guarantee and the other Loan
Documents to which it is a party;


 


(b)           neither the Administrative Agent nor
any Lender has any fiduciary relationship with or duty to any Guarantor arising
out of or in connection with this Guarantee or any of the other Loan Documents,
and the relationship between the Guarantors, on the one hand, and the
Administrative Agent and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and


 


(c)           no joint venture is created hereby or
by the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Guarantors and the Lenders.


 


3.14         Additional
Guarantors. Each Subsidiary of the Borrower that is required to become a
party to this Guarantee pursuant to
Section 6.8 of the Credit Agreement shall become a Guarantor for all purposes
of this Guarantee upon execution and delivery by such Subsidiary of an
Assumption Agreement in the form of Annex 1 hereto.


 


3.15         Releases.  (a)  At
such time as the Loans, the Reimbursement Obligations and the other Obligations
shall have been paid in full, the Commitments
have been terminated and no Letters of Credit shall be outstanding, this
Guarantee and all obligations (other than those expressly stated to survive
such termination) of each Guarantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party. At the
request and sole expense of any Guarantor following any such termination, the
Administrative Agent shall execute and deliver to such Guarantor such documents
as such Guarantor shall reasonably request to evidence such termination.


 


3.16        WAIVER
OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


8

















 


3.17         Application of
Proceeds. At such intervals as may be agreed upon by the Parent Borrower
and the Administrative Agent, or,
if an Event of Default shall have occurred and be continuing, at any time at
the Administrative Agent’s election, the Administrative Agent may apply any
proceeds of the guarantee set forth in Section 2, in payment of the Obligations
in the following order:


 


First, to pay
incurred and unpaid reasonable fees and expenses of the Administrative Agent
under the Loan Documents;


 


Second, to the
Administrative Agent, for application by it towards payment of amounts then due
and owing and remaining unpaid in respect of the Obligations, pro  rata
among the Secured Parties according to the amounts of the Obligations then due
and owing and remaining unpaid to the Secured Parties;


 


Third, to the
Administrative Agent, for application by it towards prepayment of the
Obligations, pro  rata among the Secured Parties according to the
amounts of the Obligations then held by the Secured Parties; and


 


Fourth, any balance
remaining after the Obligations shall have been paid in full, no Letters of
Credit shall be outstanding and the Commitments shall have terminated shall be
paid over to the relevant Borrower or to whomsoever may be lawfully entitled to
receive the same.


 


9

















 


IN WITNESS WHEREOF, each of the undersigned
has caused this Guarantee to be duly executed and delivered as of the date
first above written.


 


	
   

  	
  GENZYME THERAPEUTIC PRODUCTS LIMITED
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GENZYME THERAPEUTIC PRODUCTS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


10

















 


Schedule
1


 


NOTICE
ADDRESSES OF GUARANTORS


 


c/o Genzyme
Corporation


15 Pleasant
Street Connector


P.O. Box 9322


Framingham,
MA  01701-9322


Attention:
Treasurer


Telecopy:
508-872-0827


Telephone:
508-270-2334


 

















 


Annex 1 to


Guarantee


 


ASSUMPTION AGREEMENT, dated as of                                 ,
200  , made by                                                         
(the “Additional Guarantor”), in favor of JPMORGAN CHASE BANK, N.A., as
administrative agent (in such capacity, the “Administrative Agent”) for
the banks and other financial institutions or entities (the “Lenders”)
parties to the Credit Agreement referred to below. All capitalized terms not
defined herein shall have the meaning ascribed to them in such Credit
Agreement.


 


W
I  T  N  E  S  S  E  T  H
:


 


WHEREAS, Genzyme Corporation (the “Parent
Borrower”), the subsidiary borrowers thereto (the “Subsidiary Borrowers”;
and together with the Parent Borrower, the “Borrowers”), the Lenders and
the Administrative Agent have entered into a Credit Agreement, dated as of July
14, 2006 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”);


 


WHEREAS, in connection with the Credit
Agreement, each Borrower and certain of their Affiliates (other than the
Additional Guarantor) have entered into the Guarantee, dated as of July 14, 2006
(as amended, supplemented or otherwise modified from time to time, the “Guarantee”)
in favor of the Administrative Agent for the ratable benefit of the Secured
Parties;


 


WHEREAS, the Credit Agreement requires the
Additional Guarantors to become a party to the Guarantee; and


 


WHEREAS, the Additional Guarantor has agreed
to execute and deliver this Assumption Agreement in order to become a party to
the Guarantee;


 


NOW, THEREFORE, IT IS AGREED:


 


1. Guarantee. By executing and
delivering this Assumption Agreement, the Additional Guarantor, as provided in
Section 3.14 of the Guarantee, hereby becomes a party to the Guarantee as a
Guarantor thereunder with the same force and effect as if originally named
therein as a Guarantor and, without limiting the generality of the foregoing,
hereby expressly assumes all obligations and liabilities of a Guarantor
thereunder. The information set forth in Annex 1-A hereto is hereby added to
the information set forth in the Schedules to the Guarantee.


 


2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.


 

















 


IN WITNESS WHEREOF, the undersigned has
caused this Assumption Agreement to be duly executed and delivered as of the
date first above written.


 


	
   

  	
  [ADDITIONAL GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


2

















 


Annex 1-A to


Assumption Agreement


 


Supplement to Schedule 1


 

















 


EXHIBIT G


 


FORM OF JOINDER AGREEMENT


 


JOINDER
AGREEMENT, dated as of                 
    ,         ,
made by each of the corporations that are signatories hereto (the “Subsidiary
Borrowers”), in favor of JPMORGAN CHASE BANK, N.A., as administrative agent
(in such capacity, the “Administrative Agent”) for the several banks and
other financial institutions (the “Lenders”) from time to time parties
to the Credit Agreement, dated as of July 14, 2006, among Genzyme Corporation
(the “Parent Borrower”), the subsidiaries of Parent Borrower from time
to time parties thereto (the “Subsidiary Borrowers”), the several banks
and other financial institutions from time to time parties thereto (the “Lenders”),
Bank of America, N.A., as Syndication Agent, and the Administrative Agent, as
the same may be amended, supplemented, waived or otherwise modified from time
to time (the “Credit Agreement”).


 


W I T N E S S E T H:


 


WHEREAS,
the parties to this Joinder Agreement wish to add Subsidiary Borrowers to the
Credit Agreement in the manner hereinafter set forth; and


 


WHEREAS,
this Joinder Agreement is entered into pursuant to subsection 2.23(a)(i) of the
Credit Agreement;


 


NOW,
THEREFORE, in consideration of the premises, the parties hereto hereby agree as
follows:


 


1.
Each of the undersigned Subsidiaries of Parent Borrower, hereby acknowledges
that it has received and reviewed a copy of the Credit Agreement, and
acknowledges and agrees to: (a) join the Credit Agreement as a Subsidiary
Borrower, as indicated with its signature below; (b) be bound by all covenants,
agreements and acknowledgments attributable to a Subsidiary Borrower in the
Credit Agreement; and (c) perform all obligations and duties required of it by
the Credit Agreement.


 


2.
Each of the undersigned Subsidiaries of Parent Borrower hereby represents and
warrants that the representations and warranties with respect to it contained
in Section 4 of the Credit Agreement and each of the other Loan Documents to
which such Subsidiary of Parent Borrower is a party or which are contained in
any certificate furnished by or on behalf of such Subsidiary of Parent Borrower
are true and correct in all material respects on the date hereof.


 


3.
The address and jurisdiction of incorporation of each of the undersigned
Subsidiaries of Parent Borrower is set forth in Annex I to this Joinder Agreement.


 


4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.


 

















 


IN
WITNESS WHEREOF, each of the undersigned has caused this Joinder Agreement to
be duly executed and delivered in [New York, New York] by its proper and duly
authorized officer as of the date set forth below.


 


	
   

  	
  [NAME
  OF SUBSIDIARY],

  
	
   

  	
  as
  a Subsidiary Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME
  OF SUBSIDIARY],

  
	
   

  	
  as
  a Subsidiary Borrower

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENZYME
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  ACKNOWLEDGED
  AND AGREED TO:

  	
   

  
	
   

  	
   

  
	
  JPMORGAN
  CHASE BANK, N.A.,

  	
   

  
	
  as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 

















 


ANNEX I


 


[Insert administrative information concerning Subsidiary Borrowers]


 

















 


EXHIBIT H


 


 




 


 





PLEDGE AGREEMENT


 


FOR THE STOCK OF GENZYME
SECURITIES CORPORATION


 


 


made by


 


 


GENZYME
CORPORATION


 


 


in favor of


 


 


JPMORGAN CHASE
BANK, N.A.,

as Administrative Agent


 


 


Dated as of
July 14, 2006


 




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION
  1.

  	
  DEFINED
  TERMS

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Other Definitional
  Provisions

  	
  2

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.

  	
  PLEDGE
  OF CAPITAL STOCK; GRANT OF SECURITY INTEREST

  	
  2

  
	
   

  	
   

  	
   

  
	
  SECTION
  3.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  2

  
	
  3.1

  	
  Perfected First
  Priority Liens

  	
  3

  
	
  3.2

  	
  Pledged Stock

  	
  3

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.

  	
  COVENANTS

  	
  3

  
	
  4.1

  	
  Delivery
  of Instruments, Certificated Securities and Chattel Paper

  	
  3

  
	
  4.2

  	
  Payment of
  Obligations

  	
  3

  
	
  4.3

  	
  Maintenance
  of Perfected Security Interest; Further Documentation

  	
  3

  
	
  4.4

  	
  Pledged Stock

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION
  5.

  	
  REMEDIAL
  PROVISIONS

  	
  4

  
	
  5.1

  	
  Pledged Stock

  	
  4

  
	
  5.2

  	
  Application of
  Proceeds

  	
  5

  
	
  5.3

  	
  Code and Other
  Remedies

  	
  5

  
	
  5.4

  	
  Registration
  Rights

  	
  6

  
	
  5.5

  	
  Deficiency

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION
  6.

  	
  THE
  ADMINISTRATIVE AGENT

  	
  7

  
	
  6.1

  	
  Administrative
  Agent’s Appointment as Attorney-in-Fact, etc

  	
  7

  
	
  6.2

  	
  Duty of
  Administrative Agent

  	
  8

  
	
  6.3

  	
  Execution
  of Financing Statements

  	
  8

  
	
  6.4

  	
  Authority
  of Administrative Agent

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION
  7.

  	
  MISCELLANEOUS

  	
  9

  
	
  7.1

  	
  Amendments in
  Writing

  	
  9

  
	
  7.2

  	
  Notices

  	
  9

  
	
  7.3

  	
  No
  Waiver by Course of Conduct; Cumulative Remedies

  	
  9

  
	
  7.4

  	
  Enforcement
  Expenses; Indemnification

  	
  9

  
	
  7.5

  	
  Successors and
  Assigns

  	
  9

  
	
  7.6

  	
  Set-Off

  	
  9

  
	
  7.7

  	
  Counterparts

  	
  10

  
	
  7.8

  	
  Severability

  	
  10

  
	
  7.9

  	
  Section Headings

  	
  10

  
	
  7.10

  	
  Integration

  	
  10

  
	
  7.11

  	
  GOVERNING
  LAW

  	
  10

  
	
  7.12

  	
  Submission
  To Jurisdiction; Waivers

  	
  10

  
	
  7.13

  	
  Acknowledgements

  	
  11

  
	
  7.14

  	
  Releases

  	
  11

  
	
  7.15

  	
  WAIVER
  OF JURY TRIAL

  	
  12

  



 


i

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
  Notice Addresses

  	
   

  
	
  Schedule 2

  	
  Pledged Stock

  	
   

  



 


ii

















 


PLEDGE
AGREEMENT


 


PLEDGE AGREEMENT, dated as of July 14, 2006,
made by GENZYME CORPORATION, a Massachusetts corporation (the “Pledgor”),
in favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such
capacity, the “Administrative Agent”) for the banks and other financial
institutions or entities (the “Lenders”) from time to time parties to
the Credit Agreement, dated as of July 14 2006 (as amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the
Pledgor, the subsidiary borrowers party thereto, the Lenders, the Syndication
Agent and the Administrative Agent.


 


W I  T  N  E  S  S  E  T
H:


 


WHEREAS, pursuant to the Credit Agreement,
the Lenders have severally agreed to make extensions of credit to the Pledgor
upon the terms and subject to the conditions set forth therein;


 


WHEREAS, it is a condition precedent to the
obligation of the Lenders to make their respective extensions of credit to each
Borrower under the Credit Agreement that the Pledgor shall have executed and
delivered this Agreement with respect to the pledge of stock of Genzyme Securities
Corporation to the Administrative Agent for the ratable benefit of the Secured
Parties;


 


NOW, THEREFORE, in consideration of the
premises and to induce the Administrative Agent and the Lenders to enter into
the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to each Borrower thereunder, the Pledgor hereby agrees
with the Administrative Agent, for the ratable benefit of the Secured Parties,
as follows:


 


SECTION 1.           DEFINED
TERMS


 


1.1           Definitions.  (a)  Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the
Credit Agreement, and the following terms are used herein as defined in the New
York UCC:  Certificated Security, Chattel
Paper and Instruments.


 


(b)           The following terms shall have the
following meanings:


 


“Agreement”:  this Pledge Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.


 


“Collateral”:  the Pledged Stock and all Proceeds thereof.


 


“Guarantor Obligations”:  with respect to the Pledgor, in its capacity
as a Guarantor, all obligations and liabilities of the Pledgor which may arise
under or in connection with this Agreement, the Guarantee or any other Loan
Document, in each case whether on account of guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid by the
Pledgor pursuant to the terms of this Agreement, the Guarantee or any other
Loan Document).


 


“Issuer”:  Genzyme Securities Corporation, a
Massachusetts corporation.


 


“New York UCC”:  the Uniform Commercial Code as from time to
time in effect in the State of New York.


 

















 


“Obligations”:  collectively, (i) the Parent Borrower
Obligations, and (ii) the Guarantor Obligations.


 


“Parent Borrower Obligations”:  the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and all
other obligations and liabilities of the Parent Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement Obligations
and interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to the Parent
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) to the Administrative Agent or any Lender, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, this Agreement, the other Loan Documents, any
Letter of Credit, or any other document made, delivered or given in connection
with any of the foregoing, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be paid by
the Parent Borrower pursuant to the terms of any of the foregoing agreements).


 


“Pledged Stock”:  the shares of Capital Stock listed on Schedule
2, together with any other shares, stock certificates, options, interests
or rights of any nature whatsoever in respect of the Capital Stock of the Issuer
that may be issued or granted to, or held by, the Pledgor while this Agreement
is in effect.


 


“Proceeds”:  all “proceeds” as such term is defined in
Section 9-102(a)(64) of the New York UCC and, in any event, shall include,
without limitation, all dividends or other income from the Pledged Stock,
collections thereon or distributions or payments with respect thereto.


 


“Secured Parties”:  the collective reference to the
Administrative Agent, the Lenders and any affiliate of any Lender to which
Subsidiary Borrower Obligations or Guarantor Obligations, as applicable, are
owed.


 


 “Securities
Act”:  the Securities Act of 1933, as
amended.


 


1.2           Other
Definitional Provisions.  (a)  The words “hereof,” “herein”, “hereto” and “hereunder”
and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Section and Schedule references
are to this Agreement unless otherwise specified.


 


(b)           The meanings given to terms defined herein
shall be equally applicable to both the singular and plural forms of such
terms.


 


SECTION 2.           PLEDGE
OF CAPITAL STOCK; GRANT OF SECURITY INTEREST


 


(a)           The
Pledgor hereby assigns and transfers to the Administrative Agent, and hereby
grants to the Administrative Agent, for the ratable benefit of the Secured
Parties, a security interest in the Collateral owned by it, as collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of the Obligations.


 


2

















 


SECTION 3.           REPRESENTATIONS
AND WARRANTIES


 


To induce the Administrative Agent and the
Lenders to enter into the Credit Agreement and to induce the Lenders to make
their respective extensions of credit to the Borrowers thereunder, the Pledgor
hereby represents and warrants to the Administrative Agent and each Lender
that:


 


3.1           Perfected First
Priority Liens. The security interest granted pursuant to this Agreement (a) constitutes a valid perfected security interest in
all of the Collateral in favor of the Administrative Agent, for the ratable
benefit of the Secured Parties, as collateral security for the Obligations,
enforceable in accordance with the terms hereof against all creditors of the
Pledgor and any Persons purporting to purchase any Collateral from the Pledgor
and (b) is prior to all other Liens on
the Collateral in existence on the date hereof except for unrecorded Liens
permitted by the Credit Agreement which have priority over the Liens on the
Collateral by operation of law.


 


3.2           Pledged Stock.
 (a) 
The shares of Pledged Stock pledged by the Pledgor hereunder constitute
all the issued and outstanding shares of all
classes of the Capital Stock of the Issuer.


 


(b)           All the shares of the Pledged Stock
have been duly and validly issued and are fully paid and nonassessable.


 


(c)           The Pledgor is the record and
beneficial owner of, and has good and marketable title to, the Pledged Stock
pledged by it hereunder, free of any and all Liens or options in favor of, or
claims of, any other Person, except the security interest created by this
Agreement.


 


SECTION 4.           COVENANTS


 


The Pledgor covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until the Obligations shall have been paid in full, no Letter of
Credit shall be outstanding and the Commitments shall have terminated:


 


4.1           Delivery of
Instruments, Certificated Securities and Chattel Paper. If any amount
payable under or in connection with any of the Collateral
shall be or become evidenced by any Instrument, Certificated Security or
Chattel Paper, such Instrument, Certificated Security or Chattel Paper shall be
immediately delivered to the Administrative Agent, duly indorsed in a manner
reasonably satisfactory to the Administrative Agent, to be held as Collateral
pursuant to this Agreement.


 


4.2           Payment of
Obligations. The Pledgor will pay and discharge or otherwise satisfy at or
before maturity or before they become
delinquent, as the case may be, all taxes, assessments and governmental charges
or levies imposed upon the Collateral or in respect of income or profits
therefrom, as well as all claims of any kind (including, without limitation,
claims for labor, materials and supplies) against or with respect to the
Collateral, except that no such charge need be paid if the amount or validity
thereof is currently being contested in good faith by appropriate proceedings,
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Pledgor and such proceedings could not reasonably be expected to
result in the sale, forfeiture or loss of any material portion of the
Collateral or any interest therein.


 


4.3           Maintenance of
Perfected Security Interest; Further Documentation.  (a)  The
Pledgor shall maintain the security interest created by this
Agreement as a perfected security interest having at least the priority
described in Section 3.1 and shall defend such security interest against the
claims and demands of all Persons whomsoever, subject to the rights of the
Pledgor under the Loan Documents to dispose of the Collateral.


 


3

















 


(b)           At any time and from time to time,
upon the written request of the Administrative Agent, and at the sole expense
of the Pledgor, the Pledgor will promptly and duly execute and deliver, and
have recorded, such further instruments and documents and take such further
actions as the Administrative Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, (i) filing any
financing or continuation statements under the Uniform Commercial Code (or
other similar laws) in effect in any jurisdiction with respect to the security
interests created hereby and (ii) taking any actions necessary to enable the
Administrative Agent to obtain “control” (within the meaning of the applicable
Uniform Commercial Code) of the Collateral.


 


4.4           Pledged Stock.
 (a) 
If the Pledgor shall become entitled to receive or shall receive any
certificate (including, without limitation,
any certificate representing a dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Capital Stock of the Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, the Pledgor shall accept the same as the agent of
the Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by the Pledgor
to the Administrative Agent, if required, together with an undated stock power
covering such certificate duly executed in blank by the Pledgor and with, if
the Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations.


 


(b)           Without the prior written consent of
the Administrative Agent, the Pledgor will not (i) vote to enable, or take any
other action to permit, the Issuer to issue any Capital Stock of any nature or
to issue any other securities convertible into or granting the right to
purchase or exchange for any Capital Stock of any nature of the Issuer, (ii)
sell, assign, transfer, exchange, or otherwise dispose of, or grant any option
with respect to, the Pledged Stock or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Credit Agreement), (iii) create, incur
or permit to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Pledged Stock or Proceeds thereof, or any interest
therein, except for the security interests created by this Agreement or (iv)
enter into any agreement or undertaking restricting the right or ability of the
Pledgor or the Administrative Agent to sell, assign or transfer any of the
Pledged Stock or Proceeds thereof.


 


SECTION 5.           REMEDIAL
PROVISIONS


 


5.1           Pledged Stock.
 (a) 
Unless an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have given notice
to the Pledgor of the Administrative Agent’s intent to exercise its
corresponding rights pursuant to Section 5.1(b), the Pledgor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock paid in the
normal course of business of the Issuer and consistent with past practice, to
the extent permitted in the Credit Agreement, and to exercise all voting and
corporate or other organizational rights with respect to the Pledged Stock; provided,
however, that no vote shall be cast or corporate or other organizational right
exercised or other action taken which, in the Administrative Agent’s reasonable
judgment, would impair the Collateral or which would be inconsistent with or
result in any violation of any provision of the Credit Agreement, this
Agreement or any other Loan Document.


 


(b)           If an Event of Default shall occur
and be continuing and the Administrative Agent shall give notice of its intent
to exercise such rights to the Pledgor, (i) the Administrative Agent shall
have the right to receive any and all cash dividends, payments or other
Proceeds paid in respect of the Pledged Stock and make application thereof to
the Obligations in such order as the Administrative Agent may


 


4

















 


determine, and (ii) any or all of the Pledged
Stock shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise
(x) all voting, corporate and other rights pertaining to such Pledged Stock at
any meeting of shareholders of the Issuer or otherwise and (y) any and all
rights of conversion, exchange and subscription and any other rights,
privileges or options pertaining to such Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
or other organizational structure of the Issuer, or upon the exercise by the
Pledgor or the Administrative Agent of any right, privilege or option
pertaining to such Pledged Stock, and in connection therewith, the right to
deposit and deliver any and all of the Pledged Stock with any committee,
depositary, transfer agent, registrar or other designated agency upon such
terms and conditions as the Administrative Agent may determine), all without
liability except to account for property actually received by it, but the
Administrative Agent shall have no duty to the Pledgor to exercise any such
right, privilege or option and shall not be responsible for any failure to do
so or delay in so doing.


 


(c)           The Pledgor hereby authorizes and
instructs the Issuer to (i) comply with any instruction received by it from the
Administrative Agent in writing that (x) states that an Event of Default has
occurred and is continuing and (y) is otherwise in accordance with the terms of
this Agreement, without any other or further instructions from the Pledgor, and
the Pledgor agrees that the Issuer shall be fully protected in so complying,
and (ii) unless otherwise expressly permitted hereby, pay any dividends or
other payments with respect to the Pledged Stock directly to the Administrative
Agent.


 


5.2           Application of
Proceeds. If an Event of Default shall have occurred and be continuing, at
any time at the Administrative Agent’s
election, the Administrative Agent may apply all or any part of Proceeds
constituting Collateral in payment of the Obligations in the following order:


 


First, to pay
incurred and unpaid reasonable fees and expenses of the Administrative Agent
under the Loan Documents;


 


Second, to the
Administrative Agent, for application by it towards payment of amounts then due
and owing and remaining unpaid in respect of the Obligations, pro  rata
among the Secured Parties according to the amounts of the Obligations then due
and owing and remaining unpaid to the Secured Parties;


 


Third, to the
Administrative Agent, for application by it towards prepayment of the
Obligations, pro  rata among the Secured Parties according to the
amounts of the Obligations then held by the Secured Parties; and


 


Fourth, any balance
remaining after the Obligations shall have been paid in full, no Letters of
Credit shall be outstanding and the Commitments shall have terminated shall be
paid over to the relevant Borrower or to whomsoever may be lawfully entitled to
receive the same.


 


5.3           Code and Other
Remedies. If an Event of Default shall occur and be continuing, the
Administrative Agent, on behalf of
the Lenders, may exercise, in addition to all other rights and remedies granted
to them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the New York UCC or any other applicable law. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon the
Pledgor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof,


 


5

















 


and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker’s board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Administrative Agent or any Lender
shall have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in the
Pledgor, which right or equity is hereby waived and released. The
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 5.3, after deducting all reasonable costs and expenses
of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Administrative Agent and the Lenders hereunder, including,
without limitation, reasonable attorneys’ fees and disbursements, to the
payment in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-615(a)(3) of the New York UCC, need
the Administrative Agent account for the surplus, if any, to the Pledgor. To
the extent permitted by applicable law, the Pledgor waives all claims, damages
and demands it may acquire against the Administrative Agent or any Lender
arising out of the exercise by them of any rights hereunder. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition.


 


5.4           Registration
Rights.  (a)  If the Administrative Agent shall reasonably
determine to exercise its right to sell any or all of the Pledged Stock pursuant to Section
5.3, and if in the reasonable opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the Pledgor will
cause the Issuer thereof to (i) execute and deliver, and cause the directors
and officers of the Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
reasonable opinion of the Administrative Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering
of the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the reasonable
opinion of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. The
Pledgor agrees to cause the Issuer to comply with the provisions of the
securities or “Blue Sky” laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.


 


(b)           The Pledgor recognizes that the
Administrative Agent may be unable to effect a public sale of any or all the
Pledged Stock, by reason of certain prohibitions contained in the Securities
Act and applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of purchasers
which will be obliged to agree, among other things, to acquire such securities
for their own account for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner. The Administrative Agent shall be under no obligation to delay a sale
of any of the Pledged Stock for the period of time necessary to permit the
Issuer to register such securities for public sale under the Securities Act, or
under applicable state securities laws, even if the Issuer would agree to do
so.


 


6

















 


(c)           The Pledgor agrees to use its best
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Stock pursuant to
this Section 5.4 valid and binding and in compliance with any and all other
applicable Requirements of Law. The Pledgor further agrees that a breach of any
of the covenants contained in this Section 5.4 will cause irreparable injury to
the Administrative Agent and the Lenders, that the Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 5.4 shall
be specifically enforceable against the Pledgor, and the Pledgor hereby waives
and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has
occurred and is continuing under the Credit Agreement.


 


5.5           Deficiency. The
Pledgor shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are
insufficient to pay its Obligations and the reasonable fees and disbursements
of any attorneys employed by the Administrative Agent or any Lender to collect
such deficiency.


 


SECTION 6.           THE
ADMINISTRATIVE AGENT


 


6.1           Administrative
Agent’s Appointment as Attorney-in-Fact, etc.  (a)  The
Pledgor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of the Pledgor and in the name of the Pledgor or in its own
name, for the purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, the Pledgor
hereby gives the Administrative Agent the power and right, on behalf of the
Pledgor, without notice to or assent by the Pledgor, to do any or all of the
following:


 


(i)            pay or discharge taxes and Liens
levied or placed on or threatened against the Collateral;


 


(ii)           execute, in connection with any sale
provided for in Section 5.3 or 5.4, any indorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral; and


 


(iii)          (1)  direct
any party liable for any payment under any of the Collateral to make payment of
any and all moneys due or to become due thereunder directly to the
Administrative Agent or as the Administrative Agent shall direct;  (2) ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising out of any
Collateral;  (3) sign and indorse
any drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral;  (4) commence and prosecute any suits, actions
or proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other right in
respect of any Collateral; (5) defend any suit, action or proceeding
brought against the Pledgor with respect to any Collateral; (6) settle,
compromise or adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as the Administrative Agent may
deem appropriate; and (7) generally, sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though the Administrative Agent were the absolute owner
thereof for all purposes, and do, at the Administrative Agent’s option and the
Pledgor’s expense, at any time, or from time to time, all acts and things which
the Administrative Agent deems necessary to protect, preserve or realize upon
the Collateral and the Administrative Agent’s and the Lenders’ security
interests therein and to effect the intent of this Agreement, all as fully and
effectively as the Pledgor might do.


 


7

















 


Anything in
this Section 6.1(a)  to the contrary
notwithstanding, the Administrative Agent agrees that it will not exercise any
rights under the power of attorney provided for in this Section 6.1(a) unless
an Event of Default shall have occurred and be continuing.


 


(b)           If the Pledgor fails to perform or
comply with any of its agreements contained herein, the Administrative Agent,
at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.


 


(c)           The reasonable expenses of the
Administrative Agent incurred in connection with actions undertaken as provided
in this Section 6.1, together with interest thereon at a rate per annum equal
to the highest rate per annum at which interest would then be payable on any
category of past due ABR Loans under the Credit Agreement, from the date of
payment by the Administrative Agent to the date reimbursed by the Pledgor,
shall be payable by the Pledgor to the Administrative Agent on demand.


 


(d)           The Pledgor hereby ratifies all that
said attorneys shall lawfully do or cause to be done by virtue hereof. All
powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.


 


6.2           Duty of
Administrative Agent. The Administrative Agent’s sole duty with respect to
the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
New York UCC or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar property for its own account. Neither
the Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect
or realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent and the Lenders hereunder are solely to
protect the Administrative Agent’s and the Lenders’ interests in the Collateral
and shall not impose any duty upon the Administrative Agent or any Lender to
exercise any such powers. The Administrative Agent and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to the Pledgor for any act or failure
to act hereunder, except for the gross negligence or willful misconduct of
themselves or members of the same associated group.


 


6.3           Execution of
Financing Statements. Pursuant to any applicable law, the Pledgor
authorizes the Administrative Agent to file or record financing
statements and other filing or recording documents or instruments with respect
to the Collateral without the signature of the Pledgor in such form and in such
offices as the Administrative Agent reasonably determines appropriate to
perfect the security interests of the Administrative Agent under this
Agreement.


 


6.4           Authority of
Administrative Agent. The Pledgor acknowledges that the rights and responsibilities
of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreement and
by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Administrative Agent and the Pledgor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting, and
no Pledgor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.


 


8

















 


SECTION 7.           MISCELLANEOUS


 


7.1           Amendments in
Writing. None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise
modified except in accordance with Section 10.1 of the Credit Agreement.


 


7.2           Notices. All
notices, requests and demands to or upon the Administrative Agent or the
Pledgor hereunder shall be effected in the manner
provided for in Section 10.2 of the Credit Agreement; provided that any such
notice, request or demand to or upon the Pledgor shall be addressed to the
Pledgor at its notice address set forth on Schedule 1.


 


7.3           No Waiver by
Course of Conduct; Cumulative Remedies. Neither the Administrative Agent
nor any Lender shall by any
act (except by a written instrument pursuant to Section 7.1), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default. No failure
to exercise, nor any delay in exercising, on the part of the Administrative
Agent or any Lender, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or
such Lender would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.


 


7.4           Enforcement
Expenses; Indemnification.  (a)  The Pledgor agrees to pay or reimburse the
Administrative Agent for all
its reasonable costs and expenses incurred in collecting against Pledgor under
the pledge contained in this Agreement or otherwise enforcing or preserving any
rights under this Agreement and the other Loan Documents to which the Pledgor
is a party, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and one additional counsel
for all other Lenders as a group.


 


(b)           The Pledgor agrees to pay, and to
save the Administrative Agent and the Lenders harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.


 


(c)           The Pledgor agrees to pay, and to
save the Administrative Agent and the Lenders harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement to the extent any Borrower would be required to do so
pursuant to Section 10.5 of the Credit Agreement.


 


(d)           The agreements in this Section 7.4
shall survive repayment of the Obligations and all other amounts payable under the
Credit Agreement and the other Loan Documents.


 


7.5           Successors and
Assigns. This Agreement shall be binding upon the successors and assigns of
the Pledgor and shall inure to the
benefit of the Administrative Agent and the Lenders and their successors and
assigns; provided that the Pledgor may not assign, transfer or delegate any of
its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent.


 


7.6           Set-Off. The
Pledgor hereby irrevocably authorizes the Administrative Agent and each Lender
at any time and from time to time while an Event
of Default pursuant to Section 8(a) of the Credit


 


9

















 


Agreement shall have occurred
and be continuing, without notice to the Pledgor, any such notice being
expressly waived by the Pledgor, to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent or such Lender
to or for the credit or the account of the Pledgor, or any part thereof in such
amounts as the Administrative Agent or such Lender may elect, against and on
account of the obligations and liabilities of the Pledgor to the Administrative
Agent or such Lender hereunder and claims of every nature and description of
the Administrative Agent or such Lender against the Pledgor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Loan Document
or otherwise, as the Administrative Agent or such Lender may elect, whether or
not the Administrative Agent or any Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Administrative Agent and each Lender shall notify the Pledgor
promptly of any such set-off and the application made by the Administrative
Agent or such Lender of the proceeds thereof, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Administrative Agent and each Lender under this Section 7.6 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent or such Lender may have.


 


7.7           Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.


 


7.8           Severability.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


7.9           Section Headings.
The Section headings used in this Agreement are for convenience of reference
only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.


 


7.10         Integration. This
Agreement and the other Loan Documents represent the agreement of the Pledgor,
the Administrative Agent and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Loan Documents.


 


7.11        GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.


 


7.12         Submission To
Jurisdiction; Waivers. The Pledgor hereby irrevocably and unconditionally:


 


(a)           submits for itself and its property
in any legal action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;


 


10

















 


(b)           consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;


 


(c)           agrees that service of process in any
such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Pledgor at its address referred to in Section 7.2 or at
such other address of which the Administrative Agent shall have been notified
pursuant thereto;


 


(d)           agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction; and


 


(e)           waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.


 


7.13         Acknowledgements.
The Pledgor hereby acknowledges that:


 


(a)           it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents to which it is a party;


 


(b)           neither the Administrative Agent nor
any Lender has any fiduciary relationship with or duty to the Pledgor arising
out of or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Pledgor, on the one hand, and the
Administrative Agent and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and


 


(c)           no joint venture is created hereby or
by the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Pledgor and the Lenders.


 


7.14         Releases.  (a)  At
such time as the Loans, the Reimbursement Obligations and the other Obligations
shall have been paid in full, the Commitments
have been terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created hereby, and this Agreement
and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and the Pledgor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Pledgor. At the
request and sole expense of the Pledgor following any such termination, the
Administrative Agent shall deliver to the Pledgor any Collateral held by the
Administrative Agent hereunder, and execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.


 


(b)           If any of the Collateral shall be
sold, transferred or otherwise disposed of by the Pledgor in a transaction
permitted by the Credit Agreement, then the Administrative Agent, at the
request and sole expense of the Pledgor, shall execute and deliver to the
Pledgor all releases or other documents reasonably necessary or desirable for
the release of the Liens created hereby on such Collateral. At the request and
sole expense of the Parent Borrower, the Pledgor shall be released from its
obligations hereunder in the event that all the Capital Stock of the Issuer
shall be sold, transferred or otherwise disposed of in a transaction permitted
by the Credit Agreement.


 


(c)           In the event the Issuer (i) ceases to
constitute a “securities corporation” for purposes of Massachusetts state tax
purposes, (ii) to the extent in violation of Massachusetts tax laws and
regulations, has material operations or assets other than holding portfolio
investment securities or (iii) incurs, creates,


 


11

















 


assumes or suffers to exist any (A)
Indebtedness (other than intercompany Indebtedness pursuant Section 7.2(b) of
the Credit Agreement), (B) Guarantee Obligations (other than intercompany
Guarantee Obligations pursuant Section 7.2(c) of the Credit Agreement) or (C)
Liens, this
Agreement and all obligations (other than those expressly stated to survive
such termination) of the Administrative Agent and the Pledgor hereunder shall
terminate all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Pledgor; provided
that in such event the Issuer shall become a Subsidiary Guarantor pursuant to
Section 6.8 of the Credit Agreement to the extent it constitutes a Material
Domestic Subsidiary. At the request and sole expense of the Pledgor following
any such termination, the Administrative Agent shall deliver to the Pledgor any
Collateral held by the Administrative Agent hereunder, and execute and deliver
to the Pledgor such documents as the Pledgor shall reasonably request to
evidence such termination.


 


7.15        WAIVER
OF JURY TRIAL. THE PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.


 


12

















 


IN WITNESS WHEREOF, each of the undersigned
has caused this Pledge Agreement to be duly executed and delivered as of the
date first above written.


 


	
   

  	
  GENZYME CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


13

















 


Schedule
1


 


NOTICE ADDRESS
OF PLEDGOR


 


Genzyme Corporation


15 Pleasant
Street Connector


P.O. Box 9322


Framingham,
MA  01701-9322


Attention:
Treasurer


Telecopy:
508-872-0827


Telephone:
508-270-2334


 

















 


Schedule
2


 


DESCRIPTION OF
PLEDGED STOCK


 


Pledged
Stock:


 


	
  Issuer

  	
   

  	
  Class of Stock

  	
   

  	
  Stock Certificate No.

  	
   

  	
  No. of Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Genzyme Securities Corporation

  	
   

  	
  Common

  	
   

  	
  3

  	
   

  	
  100

  	
   

  



 

















 


ACKNOWLEDGEMENT
AND CONSENT


 


The
undersigned hereby acknowledges receipt of a copy of the Pledge Agreement dated
as of July 14, 2006 (the “Agreement”), made by Genzyme Corporation for
the benefit of JPMorgan Chase Bank, N.A., as Administrative Agent. The
undersigned agrees for the benefit of the Administrative Agent and the Lenders
as follows:


 


1.             The undersigned will be bound by the terms of the
Agreement and will comply with such terms insofar as such terms are applicable
to the undersigned.


 


2.             The undersigned will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
4.4(a) of the Agreement.


 


3.             The terms of Sections 5.1(c) and 5.4 of the Agreement
shall apply to it, mutatis  mutandis, with respect to all actions
that may be required of it pursuant to Section 5.1(c) or 5.4 of the Agreement.


 


 


	
   

  	
  GENZYME SECURITIES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax: