Dated as of March 5,
2009
Dated as of June 29,
2007
THIS
AMENDMENT NO. 1 (“ Amendment ”) is made as of
March 5, 2009, and effective as of December 31, 2008, by and
among Biogen Idec Inc., a Delaware corporation (the “
Borrower ”), the financial institutions listed on the
signature pages hereof and Bank of America, N.A., as Administrative
Agent (the “ Administrative Agent ”), under that
certain Credit Agreement dated as of June 29, 2007 by and
among the Borrower, the Lenders and the Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”). Capitalized terms used
herein and not otherwise defined herein shall have the respective
meanings given to them in the Credit Agreement.
WHEREAS,
the Borrower has requested that certain modifications be made to
the Credit Agreement;
WHEREAS,
the Borrower, the Lenders party hereto and the Administrative Agent
have agreed to amend the Credit Agreement on the terms and
conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Lenders party hereto and the
Administrative Agent hereby agree to the following amendments to
the Credit Agreement.
1.
Amendments to Credit Agreement . Subject to the satisfaction
of the conditions precedent set forth in Section 2
below, the Credit Agreement is hereby amended as
follows:
(a)
Section 2.03(i) of the Credit Agreement is amended to
delete the phrase “for the account of each Lender”
appearing in the first sentence thereof and to replace such phrase
with the phrase “for the account of each Lender (other than
any Defaulting Lender)”.
(b)
Section 2.06 of the Credit Agreement is amended by
adding “except as explicitly set forth below” at the
end of the penultimate sentence thereof and adding the following at
the end of such Section:
Notwithstanding
the foregoing, the Borrower shall have the right, at any time, upon
at least three Business Days’ notice to a Defaulting Lender
(with a copy to the Administrative Agent), to terminate in whole
such Lender’s Commitment on a non-ratable basis. Such
termination shall be effective, (x) with respect to such
Lender’s unused Commitment, on the date set forth in such
notice, provided , however , that such date shall be
no earlier than three Business Days after receipt of such notice
and (y) with respect to each Loan outstanding to such Lender,
in the case of Base Rate Loans, on the date set forth in such
notice and, in the case of Eurodollar Rate Loans, on the last day
of the then current Interest Period relating to such
Loan.
Upon
termination of a Lender’s Commitment pursuant to the
foregoing, the Borrower will pay or cause to be paid all principal
of, and interest accrued to the date of such payment on, Loans
owing to such Lender and pay any accrued commitment fees payable to
such Lender pursuant to the provisions of Section 2.09
, and all other amounts payable to such Lender hereunder
(including, but not limited to, any increased costs or other
amounts owing under Section 3.04 and any
indemnification for Taxes under Section 3.01 ); and
upon such payments, the obligations of such Lender hereunder
(including, without limitation, any obligation to fund any amount
or extend any credit thereunder) shall, by the provisions hereof,
be released and discharged; provided , however , that
(i) such Lender’s rights under Sections 3.01 ,
3.04 , 3.05 , and 10.04 and other provisions
of the Loan Documents which by their terms would survive the
repayments of the Loans and the termination of the Credit Agreement
shall survive such release and discharge as to matters occurring
prior to such date; and (ii) except to the extent otherwise
separately agreed in writing by the Borrower and such Lender, no
claim that the Borrower may have against such Lender arising out of
such Lender’s default hereunder shall be released or impaired
in any way. The aggregate amount of the Commitments of the Lenders
once reduced may not be reinstated. Upon any termination of a
Lender’s Commitment described above, the Aggregate
Commitments shall be reduced by an amount e
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