DATED 19 FEBRUARY 2001
XXXXXXXX GROUP, INC.
(as Agent)
- and -
HLSF LLC
(as a Bank)
- and -
ALLFIRST BANK
(as a Bank)
- and -
COMERICA BANK
(as a Bank)
- and -
HUNTINGDON LIFE SCIENCES GROUP plc
HUNTINGDON LIFE SCIENCES LIMITED
- and -
HUNTINGDON LIFE SCIENCES, INC.
- and -
XXXXXX XXXXX
- and -
XXXXXXXX GROUP, INC.
(as Funder)
------------------------------------------
FIFTH INTERCREDITOR AGREEMENT
Replacing the Fourth Intercreditor Agreement
Between the same parties dated 7 August 1998
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CONTENTS
PAGE
1. Interpretation...............................................2
2. Priorities...................................................5
3. Making Demand................................................5
4. Cooperation..................................................5
5. No Obligations to Borrowers..................................5
6. Replacement..................................................6
7. Fees.........................................................6
8. Confidentiality..............................................6
9. Guarantee....................................................6
10. Put Option...................................................6
11. Sale of Assets...............................................7
12. Counterparts.................................................7
13. Law and Jurisdiction.........................................7
THIS AGREEMENT is made the 19 day of February 2001
BETWEEN:
(1) XXXXXXXX GROUP, Inc. of Suite 2500, 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000, Xxxxxx Xxxxxx of America (as Agent) the
"Agent");
(2) HLSF LLC of X/x xx Xxxxx Xxxx, Xxxxx 0000, 000 Xxxxxxxxx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx 00000, Xxxxxx Xxxxxx of America (as a
Bank) ("HLSF");
(3) ALLFIRST BANK (formerly the First National Bank of Maryland) of 00
Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, XX 00000,
Xxxxxx Xxxxxx of America (as a Bank) ("Allfirst");
(4) COMERICA BANK of X.X. Xxx 00000, Xxxxxxx, XX 00000 0000, Xxxxxx Xxxxxx
xx Xxxxxxx (as a Bank) ("Comerica");
(5) HUNTINGDON LIFE SCIENCES GROUP plc a company incorporated in England
and Wales with registered number 502370 of Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxx XX00 0XX ("the Parent");
(6) HUNTINGDON LIFE SCIENCES LIMITED a company incorporated in England
and Wales with registered number 01815730 of Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxx XX00 0XX ("HLSL");
(7) HUNTINGDON LIFE SCIENCES, INC. a company incorporated under the
laws of the State of Delaware, USA having its registered
office at 0 Xxxx Xxxxxxxxxx Xxxxxx, Xxxx xx Xxxxx, Xxxxxx of Kent,
State of Delaware, United States of America ("HLS");
(8) XXXXXX XXXXX of 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Xxxxxx Xxxxxx of America ("Xx. Xxxxx"); and
(9) XXXXXXXX GROUP, INC. of Suite 2500, 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000, Xxxxxx Xxxxxx of America as a funder
(the "Funder").
WHEREAS:
(A) By a facilities agreement dated 7 August 1998 between the Borrowers
(1), the Banks (as defined therein) (2) and the Agent (previously
National Westminster Bank plc) (3) as subsequently amended and most
recently amended by an amendment agreement dated on or about the date
of this Agreement (the "Facilities Agreement") the Banks made available
to the Borrowers certain facilities.
(B) By various security agreements and guarantees and debentures the
Borrowers granted security over their respective assets in favour of
the Agent (previously National Westminster Bank plc) as continuing
security for their obligations under the Facilities Agreement.
(C) National Westminster Bank plc has now resigned as the agent and has
been replaced by the Agent.
(D) National Westminster Bank plc has assigned all of its rights, benefits
and obligations under the Financing Documents to HLSF.
(E) Each of the parties entered into a heads of terms dated 20 January
2001 (the "Heads of Terms") and wish to enter into this
Agreement pursuant thereto.
NOW THIS AGREEMENT WITNESSES as follows:
1 Interpretation
1.1 In this Agreement (including the Recitals), unless the context
otherwise requires or unless otherwise defined or provided for
in this Agreement, words and expressions shall have the same
meanings as are attributable to them under the Facilities
Agreement. In addition the following words and expressions
shall have the respective meanings ascribed to them:
"First Participation Percentage" means at any time the
percentage of the participation in the risk incurred by the
Senior Lenders under the Facilities Agreement as set out in
Column 2 of Schedule 1;
"HLSF Facility" means the(pound)16,269,856.35 facility
provided by HLSF to the Borrower in terms of the Facilities
Agreement;
"Junior Debt" means the amounts due to the Junior Lenders
pursuant to the Junior Facility;
"Junior Facility" means the aggregate amount made available to
the Borrowers by the Junior Lenders not exceeding the
aggregate principal amount of (pound)4,000,000;
"Junior Lenders" means each of Xx. Xxxxx and the Funder;
"Junior Obligation" means all moneys owing, obligations and
other liabilities of the Borrowers to the Junior Lenders
pursuant to the Junior Facility;
"Junior Security" means all the security (if any) now or
hereafter executed by the Borrowers in favour of the Junior
Lenders pursuant to the Junior Facility in accordance with the
Heads of Terms together with any further security so created
by the Borrowers or any of them in favour of the Junior
Lenders;
"Net Proceeds" means, in relation to the Security, the net
proceeds of sale or other realization of the assets subject to
the Security after discharge of all direct costs incurred in
such sale or realization, the discharge of any prior ranking
claims and, where appropriate, all costs, charges, fees and
expenses of any receiver appointed pursuant to the Security;
"Outstandings" means, in relation to each Bank, at the time of
a distribution of the Net Proceeds, the amount owing to that
Bank by all the Borrowers under the Facilities Agreement;
"Priority Obligations" means all moneys owing, obligations and
other liabilities of the Borrowers to the Banks and the Agent
pursuant to the facilities Agreement;
"Security" means the Senior Security and the Junior Security;
"Senior Debt" means the amounts due to the Senior Lenders
pursuant to the Senior Facility;
"Senior Facility" means the aggregate amount made available to
the Borrowers by the Senior Lenders pursuant to the Facilities
Agreement not exceeding the principal amount of
(pound)22,585,809.88;
"Senior Lenders" means each of HLSF, Allfirst and Comerica;
"Senior Security" means all the security executed by the
Borrowers in favour of the Agent as security trustee for the
Secured Parties details of which are listed in Schedule 2 to
this Agreement together with any further security so created
by the Borrowers or any of them in favour of the Agent;
"Sharing Percentages" means, in relation to each Bank, a
percentage calculated using the following formula:
A = B x 100
-
C
A = Sharing Percentage of the Bank in question
B = Outstandings of the Bank in question
C = Total Outstandings; and
"Total Outstandings" means at the time of a distribution of
the Net Proceeds, the aggregate amount owing to all the Banks
by the Borrowers under the Facilities Agreement.
1.2 Interpretation
In this Agreement, unless the context otherwise requires:
(a) references to any persons shall be construed so as
to include that person's assigns, transferees or
successors in title;
(b) references to any document (or any specified
provisions of any document) shall be construed as
references to such document or that provision as
amended or novated or supplemented or replaced, as
the case may be, from time to time;
(c) references to the singular shall include the plural
and vice versa and references by way of male, female
or neuter pronoun shall include references to all
genders; and
(d) references of Clauses and Schedules are to be
construed as references to the Clauses of, and
Schedules to, this Agreement as amended or varied
from time to time.
2 Priorities
2.1 It is hereby agreed by and between the parties to this
Agreement that, subject to the provisions of clause 11
hereof, on enforcement of the Security the Net Proceeds shall
be applied:
(i) first, in discharge of the Priority Obligations on a
pro-rata basis based on the Shared Percentages; and
(ii) second, in discharge of the Junior Obligations.
2.2 The Security is a continuing security and the ranking of the
Priority Obligations, and the Junior Obligations as provided
for in this Agreement shall not be affected by any fluctuation
in the amounts from time to time of the Priority Obligations
or the Junior Obligations or by the existence at any time of a
credit balance on any current or other accounts.
2.3 In the event of the Group making any early repayment of the
Facilities or of amounts due under the Facilities Agreement
whether by voluntary repayment from cashflow or from the sale
of any assets such reduction will be applied in accordance
with the priorities set out in Clause 2.1 as if they were Net
Proceeds.
3 Making Demand
Each of the Banks hereby agrees with the other bank that HLSF in its
capacity as Agent shall not and shall not be obliged to make any demand
for repayment of the facilities without having obtained the prior
written authority of all of the Banks.
4 Cooperation
The Agent and the Banks shall cooperate to ensure that any moneys in
the hands of a receiver appointed pursuant to any of the Security are
distributed in a manner consistent with the provisions of this
Agreement.
5 No Obligations to Borrowers
5.1 The Borrowers join in this Agreement to acknowledge the
arrangements made between the Banks and the Agent in this
Agreement but shall have no rights under this Agreement.
5.2 Nothing in this Agreement shall as between the Borrowers on
the one hand and the Banks on the other hand affect or
prejudice any rights or remedies under the Senior Security.
6 Replacement
This Agreement supersedes and replaces all previous Intercreditor
Agreements between the parties and/or any of their respective
predecessors.
7 Fees
The Parent shall pay all costs and expenses of the Banks including but
not limited to legal fees and expenses in connection with the
preparation of this Agreement.
8 Confidentiality
The parties hereto agree that they shall not disclose this Agreement or
the terms and conditions hereof or thereof (collectively the
"Confidential Terms") to any person or entity, or the identity of the
parties thereto other than to the parties' respective advisors and
except as may be required by applicable law, legal processes, the
United Kingdom Listing Authority or any other duly authorized
regulatory authorities.
9 Guarantee
In consideration of Allfirst and Comerica entering into this Agreement,
the Funder hereby unconditionally guarantees to Allfirst and Comerica
the payment or discharge of all the obligations of HLSF under this
Agreement.
10 Put Option
HLSF hereby undertakes to provide a put option to each of Allfirst and
Comerica whereby on 18 January 2002 each of Allfirst and Comerica may
require HLSF to purchase from them their remaining participations under
the Facilities Agreement for cash at par payable by CHAPS payment (or
equivalent) in sterling during business hours on or before 22 January
2002 and, in the event of failure to provide such put option, each of
Allfirst and Comerica shall be entitled to rely on the letters of
credit issued on or about 25 January 2001 by Bank of America.
11 Sale of Assets
Each of the Parent, HLSL and HLS shall take all reasonable steps as
soon as practicable to sell off such of the assets of the Parent, HLSL
and HLS as may be necessary to discharge in full all of the obligations
of each of the Parent, HLSL and HLS to each of Allfirst and Comerica
(and, once they have been fully discharged, to HLSF) and each of the
Parent, HLSL and HLS shall procure that the Net Proceeds shall be
remitted as soon as possible thereafter to each of Allfirst and
Comerica (and once they have been fully discharged, to HLSF)
notwithstanding any other provisions in this Agreement or in any of the
other Financing Documents.
12 Counterparts
This Agreement may be executed in any number of counterparts and all of
such counterparts take together shall be deemed to constitute one and
the same instrument.
13 Law and Jurisdiction
This Agreement shall be governed by, and construed in all respects in
accordance with English law.
IN WITNESS whereof the parties hereto causes this Agreement to be duly executed
on the date set out above.
SCHEDULE 1
Participation in Risk-Sharing
Bank Participaton Percentage
HLSF 72.03575
Allfirst 15.74729
Comerica 12.21696
SCHEDULE 2
Senior Security
Document Executed By Date
1 Guarantee and Debenture in favour of the Agent as amended by a Parent 1.11.1995
Supplemental Deed dated 20 January 1998 and a Supplemental Deed dated 26
February 1998
2 Guarantee and Debenture in favour of the Agent as amended by a HLSL 21.11.1995
Supplemental Deed dated 20 January 1998 and a Supplemental Deed dated 26
February 1998
3 Guarantee in favour of the Agent as amended by a HLS Supplemental Deed HLS 21.11.1995
dated 20 January 1998 and a Supplemental Deed dated 26 February 1998
4 Security Agreement in favour of the Agent as amended by a Supplemental HLS 21.11.1995
Deed dated 20 January 1998 and a Supplemental Deed dated 26 February 1998
5 Mortgage in favour of the Agent over the New Jersey Property as amended HLS 16.01.1998
by a Supplemental Deed dated 26 February 1998
6 Equipment Mortgage in favour of the Agent HLSL 20.04.1998
7 Security agreement incorporating an Equipment Mortgage and a Charge over HLS 30.04.1998
an Operating Account in favour of the Agent
SIGNED by Xxxxxx Xxxxxxxx-Xxxxxxx )
for an on behalf of HLSF LLC )
(as Agent) )
SIGNED by Xxxxxx Xxxxxxxx-Xxxxxxx )
For and on behalf of HLSF LLC )
(as a Bank)
SIGNED by X. X. Xxxxx )
For and on behalf of ALLFIRST BANK )
(as a Bank) )
SIGNED by Xxxxx Xxxxxx )
For and on behalf of COMERICA BANK )
(as a Bank) )
SIGNED by Xxxxxx Xxxxx )
For and on behalf of HUNTINGDON )
LIFE SCIENCES GROUP plc )
SIGNED by Xxxxxx Xxxxx )
For and on behalf of HUNTINGDON )
LIFE SCIENCES LIMITED )
SIGNED by Xxxxxx Xxxxx )
For and on behalf of HUNTINGDON )
LIFE SCIENCES, INC. )
SIGNED by )
XXXXXX XXXXX )
SIGNED by Xxxxxx Xxxxxxxx-Xxxxxxx )
For and on behalf of XXXXXXXX )
GROUP, INC. )
