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EXHIBIT 10.49
FIRST AMENDMENT TO CREDIT AGREEMENT
AND CONSENT TO SUBORDINATION TERMS
FIRST AMENDMENT to Credit Agreement and CONSENT to Subordination Terms
("First Amendment") dated as of March 3, 1997 among and between Genzyme
Corporation (the "Company"); each of the Subsidiaries of the Company identified
under the caption "Subsidiary Guarantors" on the signature pages hereto; each of
the Lenders identified under the caption "Lenders" on the signature pages hereto
(each a "Lender" and collectively, the "Lenders"); Fleet National Bank ("Fleet")
as administrative agent for the Lenders (the "Administrative Agent"); and The
First National Bank of Boston ("BankBoston") as documentation agent for the
Lenders (the "Documentation Agent").
Reference is made to the Credit Agreement dated as of November 14,
1996, among and between the Company, the Subsidiary Guarantors, the Lenders, the
Administrative Agent and the Documentation Agent, pursuant to which the Lenders
furnished to the Company a $225,000,000 revolving line of credit. Capitalized
terms used in this First Amendment have the meanings given such terms in the
Credit Agreement, as amended hereby, except as provided otherwise herein.
The Company has requested that Section 9.5(d)(ii) of the Credit
Agreement be amended as provided by this First Amendment. Under section 12.5 of
the Agreement, to be effective, the amendment to Section 9.5(d)(ii) set forth in
this First Amendment must be signed by the Company, the Administrative Agent and
the Lenders constituting the Required Lenders. In addition, the Company has
requested that the Lenders constituting the Required Lenders confirm that the
subordination terms of a certain Genzyme Corporation Convertible Note dated
February 28, 1997 in the original principal amount of $13,000,000 that are
attached hereto as EXHIBIT A (the "Subordination Terms") are satisfactory.
1. AMENDMENT TO SECTION 9.5 - (PROHIBITION OF FUNDAMENTAL CHANGES -
EXCEPTIONS). Subsection 9.5(d)(ii) of the Credit Agreement is deleted, in its
entirety, and the following is substituted in its place thereof:
"the Company and its Subsidiaries may acquire any assets used or
useful in the lines of business permitted under Section 9.10 or the
stock or other equity interest of any Person that is engaged in a line
of business permitted to the Company under Section 9.10 or merge any
Person that is in a line or lines of business permitted under Section
9.10 with the Company or a Subsidiary or the Company or a Subsidiary
with any such Person (provided that the conditions in the provisos in
Section 9.5(d)(i) are satisfied with respect to such merger) provided
that at the time of the consummation of any such transaction and after
giving effect thereto, the Company shall be in compliance with the
covenants in Section 9.9 as of the end of the most recent fiscal
quarter or annual period of the Company and the transaction will not be
reasonably likely to result in the noncompliance with such financial
covenants;"
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2. CONFIRMATION THAT SUBORDINATION TERMS ARE SATISFACTORY. The undersigned
Lenders confirm that the Subordination Terms are satisfactory, as provided in
the definition of "Subordinated Debt" under Section 1.1 of the Credit Agreement.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agents and
Lenders to enter into this First Amendment, the Company makes the following
representations and warranties, all of which shall survive the execution and
delivery of this First Amendment:
(a) Each of the Company and the Subsidiary Guarantors has all
requisite corporate, partnership or other power and authority to execute,
deliver and perform its obligations under the First Amendment and under the
Credit Agreement, as amended hereby. This First Amendment has been duly
authorized, executed and delivered by the Company and each Subsidiary Guarantor,
and does not conflict with, violate or result in a breach of or require any
consent under any applicable law, rule or regulation or any of the terms of the
charter or by-laws (or equivalent constitutional documents) of any Obligor, any
agreement or instrument to which the Company or any Subsidiary is a party or to
which any of them or their Property is bound or to which any of them is subject.
This First Amendment and the Credit Agreement, as amended hereby, constitute the
legal, valid and binding obligation of each Obligor enforceable against each
Obligor in accordance with its terms.
(b) On the date hereof each of the representations and warranties in
the Credit Agreement are true, accurate and complete in all material respects.
(c) Upon the execution and delivery of this First Amendment, and the
satisfaction of each of the conditions precedent set forth in Section 4 of this
First Amendment, no Default or Event of Default shall exist and be continuing.
4. CONDITIONS PRECEDENT. The agreements contained herein and the
amendments contemplated hereby shall become effective on the date (the
"Effective Date") when Company, the Required Lenders, and the Administrative
Agent shall have executed this First Amendment and when each of the following
conditions shall have been fulfilled:
(a) EXECUTION OF DOCUMENTS, ETC. This First Amendment and any other
agreements, documents and instruments to be executed and/or delivered in
connection herewith (collectively the "First Amendment Documents") shall have
been duly and properly authorized and executed by: the Company, the
Administrative Agent, and the Required Lenders and shall be in full force and
effect on and as of the Effective Date of this First Amendment.
(b) PROCEEDINGS; RECEIPT OF DOCUMENTS. All requisite corporate action
and proceedings of the Company and the Subsidiary Guarantors in connection with
the execution and delivery of this First Amendment and the other First Amendment
Documents shall be satisfactory in form and substance to the Administrative
Agent and its counsel, and the Administrative Agent and its counsel shall have
received all information and copies of all documents, including without
limitation, records of requisite corporate action and proceedings which the
Administrative Agent or its counsel may have requested in connection therewith,
such
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documents where requested by the Administrative Agent or its counsel to be
certified by appropriate persons or governmental authorities.
(c) MATERIAL LITIGATION. There shall be no pending or, to the best
knowledge of the Company, threatened litigation with respect to the Company or
any Subsidiary Guarantor before any court, arbitrator or governmental or
administrative body or agency which challenges or relates to (i) the
transactions contemplated hereby or (ii) the Loan Documents.
5. REAFFIRMATION AND RATIFICATION OF EXISTING AGREEMENT, ETC. The Company:
(i) reaffirms and ratifies all the Obligations to the Agents and the Lenders, in
respect to the Credit Agreement, as hereby amended, and the other Loan
Documents, (ii) certifies that there are no defenses, offsets or counterclaims
to such Obligations as of the date hereof, (iii) expressly acknowledges its
continuing liability pursuant thereto, and (iv) agrees that each of the Credit
Agreement, as amended hereby, and the other Loan Documents shall remain in full
force and effect, enforceable against the Company and Subsidiary Guarantors in
accordance with its terms.
6. MISCELLANEOUS.
(a) This First Amendment may be executed on separate counterparts by
the parties hereto, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same agreement.
(b) This First Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and be governed by the
laws of the Commonwealth of Massachusetts (without giving effect to the conflict
of laws principles thereof).
(c) The headings of the several sections of this First Amendment are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this First Amendment.
(d) This First Amendment, together with the other First Amendment
Documents, embodies the entire agreement and understanding among the parties
relating to the subject matter hereof and supersedes all prior proposals,
negotiation, agreements and understandings relating to such subject matter.
(e) This First Amendment, together with the other First Amendment
Documents, shall be deemed to be Loan Documents under the Credit Agreement.
(f) EACH OF THE OBLIGORS, THE AGENTS AND THE LENDERS HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS FIRST AMENDMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) The Company shall pay on demand the reasonable costs and
expenses, including, without limitation, reasonable attorney's fees and expenses
incurred, or which may be incurred
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by the agents or the Lenders in connection with the negotiation, documentation,
administration and enforcement of this First Amendment.
IN WITNESS WHEREOF, this First Amendment has been duly executed and
delivered as a sealed instrument at Boston, Massachusetts as of the 3rd day of
March, 1997.
THE COMPANY:
GENZYME CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Title: Executive Vice President
SUBSIDIARY GUARANTORS:
DEKNATEL XXXXXXX XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Title: Treasurer
DSP WORLDWIDE, INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Title: Executive Vice President
ALLSTON LANDING LIMITED PARTNERSHIP
By: Allston Landing Corporation,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Title: Vice President and Treasurer
ADMINISTRATIVE AGENT:
FLEET NATIONAL BANK
By: /s/ [signature illegible]
-----------------------------------
Title: Senior Vice President
DOCUMENTATION AGENT:
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------
Title: Director
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: FLEET NATIONAL BANK
$35,000,000.00 By: /s/ [signature illegible]
----------------------------
Title: Senior Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: THE FIRST NATIONAL BANK OF BOSTON
$22,000,000.00 By: /s/ Xxxxxxxxx X. Xxxxxxx
----------------------------
Title: Director
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: BANK OF TOKYO-MITSUBISHI TRUST COMPANY
$13,000,000.00 By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: CREDIT LYONNAIS NEW YORK BRANCH
$13,000,000.00 By: /s/ Xxxxxx Xxxxxxxxx
----------------------------
Title: Senior Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: THE FUJI BANK LIMITED, NEW YORK BRANCH
$13,000,000.00 By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------
Title: Vice President and Manager
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: MELLON BANK, N.A.
$13,000,000.00 By: /s/ Xxxx X. Xxxx
---------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: NATIONSBANK, N.A.
$13,000,000.00 By: /s/ Xxxxxxx X. Xxxxx, III
-------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: REPUBLIC NATIONAL BANK OF NEW YORK
$13,000,000.00 By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Title: First Vice President
By: /s/ Xxxx-Xxxxxx X. Diels
-------------------------------
Title: Executive Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: ABN AMRO BANK N.V.
$7,500,000.00 By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: BANK LEUMI TRUST COMPANY OF NEW YORK
$7,500,000.00 By: /s/ Xxxx Xxxxxxxxxxx
--------------------------------
Title: Vice President
By: /s/ [signature illegible]
--------------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: THE BANK OF NOVA SCOTIA
$7,500,000.00 By: /s/ X. X. Xxxxxxx
--------------------------------
Title: Authorized Signatory
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: CITIZENS BANK OF MASSACHUSETTS
$7,500,000.00 By: /s/ Xxxx Xxxxxx Van Nest
--------------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: CORESTATES BANK, N.A.
$7,500,000.00 By: /s/ [signature illegible]
--------------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: CREDIT SUISSE FIRST BOSTON
$7,500,000.00 By: /s/ [signature illegible]
--------------------------------
Title: Vice President
By: /s/ [signature illegible]
--------------------------------
Title: Associate
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: KREDIETBANK, N.V.
$7,500,000.00 By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Title: Vice President
By: /s/ Xxxxxxx Xxx
--------------------------------
Title: Assistant Treasurer
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: LTCB TRUST CO.
$7,500,000.00 By: /s/ [signature illegible]
--------------------------------
Title: Executive Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: THE NORTHERN TRUST COMPANY
$7,500,000.00 By: /s/ [signature illegible]
--------------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: THE SAKURA BANK, LIMITED
$7,500,000.00 By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------
Title: Senior Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: THE SANWA BANK, LIMITED
$7,500,000.00 By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Title: Senior Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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LENDERS:
The undersigned Lender, with the Revolving Credit Commitment set forth
herein, hereby enters into the foregoing First Amendment to Credit Agreement and
Consent to Subordination Terms dated March 3, 1997.
Revolving Credit Commitment: THE SUMITO BANK, LIMITED,
NEW YORK BRANCH
$7,500,000.00 By: /s/ Xxxxxx X Xxxxxx
--------------------------------
Title: Vice President
[Signature Page to First Amendment to Credit Agreement and Consent to
Subordination Terms dated March 3, 1997]
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EXHIBIT A TO FIRST AMENDMENT TO CREDIT
AGREEMENT AND CONSENT TO
SUBORDINATION TERMS DATED AS
OF MARCH 3, 1997
2. PRIORITY; SUBORDINATION.
(a) NO PAYMENT IF DEFAULT ON SENIOR INDEBTEDNESS. No payment of
principal of, premium, if any, or interest on this Note or on account of any
purchase or redemption or other acquisition of the Note, whether at maturity or
otherwise, shall be made upon, or accepted with respect to, this Note, and the
Holder shall not initiate any action to accelerate the maturity of the Note or
exercise any remedy to seek collection if at the time of such payment the Holder
has received written notice from the Company or a holder of Senior Debt (as
defined below) that there exists or, after giving effect to such payment, there
would exist any default in respect of any Senior Debt or under any agreement
pursuant to which such Senior Debt was issued (a "Default"); PROVIDED, HOWEVER,
that the foregoing restriction shall cease to apply with respect to a Default
upon the earliest to occur of (i) the commencement by any holder of Senior Debt
of the exercise of its remedies against the Company or its property including,
without limitation, any action, suit or other legal proceeding against the
Company or its property based upon such Default, or (ii) at the expiration of
180 days after the date of such notice if no holder of Senior Debt shall have
commenced the exercise of its remedies against the Company or its property
including, without limitation, any action, suit or other legal proceeding
against the Company or its property based upon such Default. Upon the maturity
of any Senior Debt by lapse of time, acceleration or otherwise, all principal
or, premium, if any, interest and other amounts due or to become due on all such
Senior Debt shall first be paid in full in cash, cash equivalents or in any
other manner acceptable to the holders of Senior Debt (hereinafter, "Payment in
Full" or "Paid in Full"), or such payment shall have been provided for to the
satisfaction of the holders of Senior Debt before any payment on account of
principal of, premium, if any, interest or any other amounts shall be made upon
this Note.
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(b) PAYMENT UPON DISSOLUTION, ETC.
(i) In the event of (x) any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, relative to the Company or to its
creditors, as such, or to its assets or (y) the dissolution or other winding up
of the Company whether total or partial, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy proceedings, or (z) any
assignment for the benefit of creditors or any marshaling of the material assets
or material liabilities of the Company, then, and in any such event, (A) the
holders of all Senior Debt shall first be entitled to receive Payment in Full of
all principal, premium, if any, interest and other amounts due or to become due
on the Senior Debt (including, without limitation, any interest and charges
accruing thereon in any such proceeding, notwithstanding any law to the
contrary) before any payment on account of principal, premium, if any, interest
or any other amounts is made on this Note, and (B) in any such proceedings, any
payment that may be payable or deliverable in respect of this Note shall be paid
to the holders of the Senior Debt or their representatives, unless and until the
principal of, premium, if any, interest and other amounts due or to become due
on all such Senior Debt shall have been Paid in Full; PROVIDED, HOWEVER, that in
the event that such payment consists solely of shares of stock or securities of
the Company as reorganized the payment of which is subordinated, at least to the
same extent as the Note, to the payment of all Senior Debt and such payment is
authorized by an order or decree made by a court of competent jurisdiction in a
reorganization proceeding under any applicable law pursuant to a plan of
reorganization and the rights of the holders of Senior Debt are not impaired or
otherwise altered adversely by such reorganization or adjustment, no such
payment shall be required hereby to be made to the holders of the Senior Debt or
their representatives.
(ii) In the event that any such payment shall be received by
the Holder in violation of the subordination provisions hereof before all Senior
Debt is Paid in Full, such payment or distribution shall be received and held in
trust for and shall be paid over to the holders of all Senior Debt remaining
unpaid, or their representatives, until such Senior Debt shall have been Paid in
Full, after giving effect to any concurrent payment or distribution or provision
thereof to the holders of such Senior Debt.
(c) SUBROGATION. Subject to the prior Payment in Full of all Senior
Debt, the Holder shall be subrogated to the rights of the holders of Senior Debt
to receive payments or distributions of assets of the Company applicable to the
Senior Debt to the extent that payments otherwise payable to the Holder under
the Note have been applied to the payment of the Senior Debt; PROVIDED, HOWEVER,
that the subrogation rights of the holder of the Note shall be fully
subordinated to the rights and remedies of the holders of Senior Debt.
(d) AGREEMENTS OF HOLDER.
(i) The Holder agrees that upon the commencement of any
bankruptcy, insolvency or other similar case or proceeding relative to the
Company, or to its creditors, as such, or to its assets, the Holder shall take
such actions as may be necessary or appropriate to effectuate the subordination
provision hereof, including, without limitation, that the Holder shall (i)
timely file a proof of claim in respect of the Note and the indebtedness and
obligations evidenced hereby, provided, however, that if the Holder fails within
thirty (30) days prior to the expiration of any claims bar date to file a proof
of claim, any holder of Senior Debt shall be
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entitled to file such a proof of claim in respect thereof in the name of the
Holder and the Holder irrevocably appoints the holders of Senior Debt and their
representatives as its attorney-in-fact solely for such purpose; (ii) not oppose
any motion filed or supported by any holder of Senior Debt for relief from stay
or adequate protection in respect of the Senior Debt; and (iii) not file or
accept any reorganization plan that impairs or otherwise alters adversely the
rights of the holders of Senior Debt.
(ii) The Company and the Holder, for themselves and their
successors and assigns, covenant to execute and deliver to the holders of Senior
Debt, such further instruments and to take such further action as the holders of
Senior Debt may at any time or times reasonably request in order to carry out
the provisions hereof.
(iii) No holder of Senior Debt shall be prejudiced in its
right to enforce the subordination of this Note by any act or failure to act on
the part of the Company.
(iv) Without notice to or the consent of the Holder, the
holders of Senior Debt may at any time and from time to time, in their
discretion, without impairing or releasing the subordination herein made, change
the manner, place or terms or payment, or change or extend the time of payment
of or renew or alter the Senior Debt, or amend or supplement in any manner any
instrument evidencing the Senior Debt, any agreement pursuant to which the
Senior Debt was issued or incurred or any instrument securing or relating to the
Senior Debt; release any person liable in any manner for the payment or
collection of the Senior Debt; exercise or refrain from exercising any rights in
respect of the Senior Debt against the Company or any other person; apply any
moneys or other property paid by any person or release in any manner to the
Senior Debt; or accept or release any security for the Senior Debt.
(e) CONTINUING OFFER. This Section shall constitute a continuing
offer to all persons who, in reliance on such provisions, become holders of, or
continue to hold, Senior Debt, and such provisions of this Section are made for
the benefit of such holders and may not be amended, modified, changed or waived
without the prior written consent of the holders of Senior Debt.
(f) RIGHTS OF HOLDERS UNIMPAIRED. The foregoing provisions as to
subordination are solely for the purpose of defining the relative rights of the
holders of the Senior Debt on the one hand and the Holder on the other hand.
None of such provisions shall impair, as between the Company and the Holder, the
obligation of the Company, which is unconditional and absolute, to pay the
Holder of this Note the amounts due on this Note in accordance with the terms
hereof and of the Note Purchase Agreement, nor shall any such provisions prevent
the Holder from exercising all remedies otherwise permitted by law. Moreover,
nothing contained herein shall be deemed to limit in any way the right of the
Holder to convert, at any time and from time to time, the principal balance of
this Note into shares of GTR Stock (as defined below) pursuant to Section 3
hereof or to receive shares of GTR Stock as payment of interest hereon pursuant
to Section 2 hereof.
(g) DEFINITION OF SENIOR DEBT. For purposes hereof, "Senior Debt"
shall mean (a) the principal of, premium, if any, accrued and unpaid interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company), and any other
monetary obligations on (i) indebtedness of the Company for money borrowed,
whether
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outstanding on the date of this Note or thereafter created, incurred or assumed
(including but not limited to nonrecourse borrowings secured by receivables),
(ii) guaranties by the Company of indebtedness for money borrowed by any other
person, or reimbursement obligations under letters of credit, in either case,
whether outstanding on the date of this Note or thereafter created, incurred or
assumed, and (iii) indebtedness evidenced by notes (other than the Note),
debentures, bonds or other instruments of indebtedness for the payment of which
the Company is responsible or liable, by guarantees or otherwise, whether
outstanding on the date of this Note or thereafter created, incurred or assumed,
and (b) modification, renewals, extensions, refinancings, refundings and
replacements of any such indebtedness, obligations or guarantees; unless, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is expressly provided that such indebtedness, obligations or
guarantees or such modification, renewal, extension, refinancing, refunding or
replacement thereof are not superior in right of payment to this Note and the
holder of such indebtedness has consented to same; provided, however, that
Senior Debt shall not be deemed to include any obligations of the Company to any
of its subsidiaries. Without in any way limiting the scope of the foregoing, it
is expressly acknowledged and agreed that Senior Debt shall include all
indebtedness, obligations and guaranties of the Company and its subsidiaries
under that certain Credit Agreement dated November 14, 1996 among the Company,
certain of its subsidiaries, Fleet National Bank, as administrative agent, The
First National Bank of Boston, as documentation agent, and the lender parties
thereto and under all notes, instruments, agreements and documents entered into
pursuant thereto or in connection therewith and all modifications, renewals,
extensions, refinancings, refundings and replacements thereof.
