FACILITY AGREEMENT Exhibit 10.27
BY
THE ROYAL BANK OF SCOTLAND PLC
AS ARRANGER AND AGENT
AND
INVERESK RESEARCH GROUP, INC.
TERM AND MULTICURRENCY REVOLVING FACILITIES AGREEMENT
US $50,000,000 TERM FACILITY
US $25,000,000 MULTICURRENCY REVOLVING FACILITY
[XXXXXXXX XXXXXX LOGO]
Princes Exchange
0 Xxxx Xxxx Xxxxxx
XXXXXXXXX
XX0 0XX
Telephone: 0000 000 0000
Facsimile: 0131 777 7003
E-Mail: xxxxxxxxx@xxxxxxxxx.xxx
Web Site: xxxx://xxx.xxxxxxxxx.xxx
305629_6
TABLE OF CONTENTS
CLAUSE HEADING PAGE NO.
1 DEFINITIONS AND INTERPRETATION.................................. 1
1.1 Definitions..................................................... 1
1.2 Construction.................................................... 17
1.3 Third Party Rights.............................................. 18
2 THE FACILITIES.................................................. 18
2.1 Lenders' rights and obligations................................. 18
3 PURPOSE......................................................... 19
3.1 Purpose......................................................... 19
3.2 Monitoring...................................................... 19
4 CONDITIONS OF UTILISATION....................................... 19
4.1 Initial conditions precedent.................................... 19
4.2 Further conditions precedent.................................... 19
4.3 Conditions relating to Optional Currencies under Facility B..... 20
4.4 Maximum number of Loans......................................... 20
5 UTILISATION..................................................... 21
5.1 Delivery of a Utilisation Request............................... 21
5.2 Completion of a Utilisation Request............................. 21
5.3 Currency and amount............................................. 21
5.4 Lenders' participation.......................................... 21
5.5 Other Utilisation of Facility B................................. 22
6 OPTIONAL CURRENCIES............................................. 23
6.1 Selection of currency........................................... 23
6.2 Unavailability of a currency.................................... 23
6.3 Agent's calculations............................................ 23
7 REPAYMENT....................................................... 24
7.1 Repayment of Facility A......................................... 24
7.2 Repayment of Facility B Loans................................... 24
8 PREPAYMENT AND CANCELLATION..................................... 25
8.1 Illegality...................................................... 25
8.2 Right of repayment and cancellation in relation to a
single Lender................................................. 25
8.3 Voluntary cancellation.......................................... 25
8.4 Voluntary prepayment of Facility A Loans........................ 25
8.5 Voluntary Prepayment of Facility B Loans........................ 26
8.6 Restrictions.................................................... 26
9 INTEREST........................................................ 27
9.1 Calculation of interest......................................... 27
9.2 Payment of interest............................................. 27
9.3 Default interest................................................ 27
9.4 Notification of rates of interest............................... 27
10 INTEREST PERIODS................................................ 27
10.1 Selection of Interest Periods................................... 27
10.2 Non-Business Days............................................... 28
(i)
CLAUSE HEADING PAGE NO.
10.3 Consolidation and division of Facility A Loans.................. 28
11 CHANGES TO THE CALCULATION OF INTEREST.......................... 29
11.1 Absence of quotations........................................... 29
11.2 Market disruption............................................... 29
11.3 Alternative basis of interest or funding........................ 29
11.4 Break Costs..................................................... 30
12 FEES............................................................ 30
12.1 Commitment fee.................................................. 30
12.2 Arrangement fee................................................. 30
12.3 Agency fee...................................................... 30
13 TAX GROSS UP AND INDEMNITIES.................................... 30
13.1 Definitions..................................................... 30
13.2 Tax gross-up.................................................... 31
13.3 Tax indemnity................................................... 32
13.4 Tax Credit...................................................... 32
13.5 Stamp taxes..................................................... 33
13.6 Value added tax................................................. 33
14 INCREASED COSTS................................................. 33
14.1 Increased costs................................................. 33
14.2 Increased cost claims........................................... 33
14.3 Exceptions...................................................... 34
15 OTHER INDEMNITIES............................................... 34
15.1 Currency indemnity.............................................. 34
15.2 Other indemnities............................................... 34
15.3 Indemnity to the Agent.......................................... 35
16 MITIGATION BY THE LENDERS....................................... 35
16.1 Mitigation...................................................... 35
16.2 Limitation of liability......................................... 35
17 COSTS AND EXPENSES.............................................. 35
17.1 Transaction expenses............................................ 35
17.2 Amendment costs................................................. 36
17.3 Enforcement costs............................................... 36
18 GUARANTEE....................................................... 36
18.1 Guarantee and indemnity......................................... 36
18.2 Continuing guarantee............................................ 36
18.3 Reinstatement................................................... 37
18.4 Waiver of defences.............................................. 37
18.5 Immediate recourse.............................................. 37
18.6 Appropriations.................................................. 37
18.7 Deferral of Guarantors' rights.................................. 38
18.8 Additional security............................................. 38
19 REPRESENTATIONS................................................. 38
19.1 Status.......................................................... 38
(ii)
CLAUSE HEADING PAGE NO.
19.2 Binding obligations............................................. 38
19.3 Non-conflict with other obligations............................. 38
19.4 Power and authority............................................. 39
19.5 Validity and admissibility in evidence.......................... 39
19.6 Governing law and enforcement................................... 39
19.7 Deduction of Tax................................................ 39
19.8 No filing or stamp taxes........................................ 39
19.9 No default...................................................... 40
19.10 No Security..................................................... 40
19.11 Corporate Structure............................................. 40
19.12 No Borrowings................................................... 40
19.13 Reports......................................................... 40
19.14 Taxes........................................................... 40
19.15 Intellectual Property Rights.................................... 40
19.16 Environmental................................................... 40
19.17 ERISA........................................................... 41
19.18 Licences........................................................ 42
19.19 Financial statements............................................ 42
19.20 Pari passu ranking.............................................. 42
19.21 No proceedings pending or threatened............................ 42
19.22 Margin Stock.................................................... 42
19.23 Solvency........................................................ 42
19.24 Repetition...................................................... 43
19.25 Listing......................................................... 43
20 INFORMATION UNDERTAKINGS........................................ 43
20.1 Financial Information........................................... 44
20.2 Financial Statements............................................ 44
20.3 Investigation................................................... 44
21 FINANCIAL COVENANTS............................................. 45
21.1 Covenants....................................................... 45
22 GENERAL UNDERTAKINGS............................................ 52
22.1 Positive Undertakings........................................... 52
22.2 Negative Undertakings........................................... 55
23 EVENTS OF DEFAULT............................................... 57
23.1 Non-payment..................................................... 57
23.2 Certain Obligations............................................. 57
23.3 Other Obligations............................................... 57
23.4 Misrepresentation............................................... 57
23.5 Cross default................................................... 58
23.6 Inability to pay debts.......................................... 58
23.7 Legal Process................................................... 58
23.8 Insolvency Proceedings.......................................... 58
23.9 Administration.................................................. 59
23.10 Repossession of goods........................................... 59
23.11 Analogous proceedings........................................... 59
23.12 De-Listing...................................................... 59
23.13 Litigation...................................................... 59
23.14 Subsidiaries.................................................... 59
(iii)
CLAUSE HEADING PAGE NO.
23.15 Invalidity...................................................... 59
23.16 Change in nature of business.................................... 59
23.17 Government Action............................................... 60
23.18 Licences........................................................ 60
23.19 Qualified Accounts.............................................. 60
23.20 ERISA Termination Event......................................... 60
23.21 Material Adverse Effect......................................... 60
23.22 Acceleration.................................................... 60
24 CHANGES TO THE LENDERS.......................................... 61
24.1 Assignments and transfers by the Lenders........................ 61
24.2 Conditions of assignment or transfer............................ 61
24.3 Assignment or transfer fee...................................... 62
24.4 Limitation of responsibility of Existing Lenders................ 62
24.5 Procedure for transfer.......................................... 63
24.6 Disclosure of information....................................... 63
24.7 Syndication..................................................... 63
24.8 Costs of Syndication............................................ 64
25 ChANGES TO THE OBLIGORS......................................... 64
25.1 Assignments and transfer by Obligors............................ 64
25.2 Additional Borrowers............................................ 64
25.3 Resignation of a Borrower....................................... 65
25.4 Additional Guarantors........................................... 65
25.5 Repetition of Representations................................... 66
25.6 Resignation of a Guarantor...................................... 66
26 ROLE OF THE AGENT THE SECURITY TRUSTEE AND THE ARRANGER......... 66
26.1 Appointment of the Agent........................................ 66
26.2 Duties of the Agent............................................. 66
26.3 Role of the Arranger............................................ 66
26.4 No fiduciary duties............................................. 66
26.5 Business with the Group......................................... 67
26.6 Rights and discretions of the Agent............................. 67
26.7 Majority Lenders' instructions.................................. 67
26.8 Responsibility for documentation................................ 68
26.9 Exclusion of liability.......................................... 68
26.10 Lenders' indemnity to the Agent................................. 68
26.11 Resignation of the Agent........................................ 69
26.12 Confidentiality................................................. 69
26.13 Relationship with the Lenders................................... 69
26.14 Credit appraisal by the Lenders................................. 70
26.15 Lenders' tax status confirmation................................ 70
26.16 Reference Banks................................................. 71
26.17 Appointment of the Security Trustee............................. 71
27 CONDUCT OF BUSINESS BY THE FINANCE PARTIES...................... 71
28 SHARING AMONG THE LENDERS....................................... 71
28.1 Payments to Lenders............................................. 71
28.2 Redistribution of payments...................................... 72
(iv)
CLAUSE HEADING PAGE NO.
28.3 Recovering Lender's rights...................................... 72
28.4 Reversal of redistribution...................................... 72
28.5 Exceptions...................................................... 72
29 PAYMENT MECHANICS............................................... 73
29.1 Payments to the Agent........................................... 73
29.2 Distributions by the Agent...................................... 73
29.3 Distributions to an Obligor..................................... 73
29.4 Clawback........................................................ 73
29.5 Partial payments................................................ 73
29.6 No set-off by Obligors.......................................... 74
29.7 Business Days................................................... 74
29.8 Currency of account............................................. 74
29.9 Change of currency.............................................. 75
30 SET-OFF......................................................... 75
31 NOTICES......................................................... 75
31.1 Communications in writing....................................... 75
31.2 Addresses....................................................... 75
31.3 Delivery........................................................ 76
31.4 Notification of address, fax number and telex number............ 77
31.5 English language................................................ 77
32 CALCULATIONS AND CERTIFICATES................................... 77
32.1 Accounts........................................................ 77
32.2 Certificates and Determinations................................. 77
32.3 Day count convention............................................ 77
33 PARTIAL INVALIDITY.............................................. 78
34 REMEDIES AND WAIVERS............................................ 78
35 AMENDMENTS AND WAIVERS.......................................... 78
35.1 Required consents............................................... 78
35.2 Exceptions...................................................... 78
36 COUNTERPARTS.................................................... 79
37 GOVERNING LAW................................................... 79
38 ENFORCEMENT..................................................... 79
38.1 Jurisdiction of English courts.................................. 79
38.2 Service of process.............................................. 79
SCHEDULES
SIGNATORIES
Schedule 1 Part 1 ....................................The Original Parties 80
Schedule 1 Part II ...................................The Original Lenders 81
Schedule 2 Part I ....................................Conditions Precedent 82
(v)
Schedule 2 Part II ...................................Conditions Precedent 85
Schedule 3 Part I ................................................Requests 87
Schedule 3 Part II ...............................................Requests 88
Schedule 5 Part I ...........................Form of Transfer Certificates 92
Schedule 5 Part II........................................................ 94
Schedule 6 Form of Accession Letter....................................... 99
Schedule 7 Form of Resignation Letter..................................... 100
Schedule 8 Form of Compliance Certificate................................. 101
Schedule 9 Dormant Companies.............................................. 102
Schedule 10 Confidentiality Letter........................................ 103
Schedule 11 Timetables.................................................... 107
Schedule 12 Post IPO Group Structure...................................... 109
Schedule 13 Material Companies............................................ 110
(vi)
THIS AGREEMENT is dated June 25, 2002 and made between:
(1) INVERESK RESEARCH GROUP, INC. (the "COMPANY");
(2) THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 as
original guarantors (together with the Company the "ORIGINAL
GUARANTORS");
(3) THE ROYAL BANK OF SCOTLAND PLC (the "ARRANGER");
(4) THE ROYAL BANK OF SCOTLAND PLC as Security Trustee for the Lenders (the
"SECURITY TRUSTEE");
(5) THE ROYAL BANK OF SCOTLAND PLC as counterparty to the Hedging Agreement
(the "HEDGING COUNTERPARTY");
(6) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders
(the "ORIGINAL LENDERS"); and
(7) THE ROYAL BANK OF SCOTLAND PLC as agent of the Lenders (the "AGENT").
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out
in Schedule 6 (Form of Accession Letter);
"ADDITIONAL BORROWER" means a company which becomes an Additional
Borrower in accordance with Clause 25 (Changes to the Obligors);
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with Clause 25 (Changes to the Obligors);
"ADDITIONAL OBLIGOR" means an Additional Borrower or an Additional
Guarantor;
"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company;
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
London foreign exchange market at or about 11:00 a.m. on a particular
day;
"APPROPRIATE ACCOUNTING PRINCIPLES" means the accounting principles,
policies, standards, practices and bases stated in the Original
Financial Statements;
1
"APPROVED FINANCIER" means any institution providing banking
arrangements not involving Financial Indebtedness to certain Group
Companies previously notified in writing by the Company to the Agent.
"ARTICLES" means the by-laws and certificate of incorporation of the
Company as they may be amended from time to time;
"AUDITORS" means in relation to each Group Company Xxxxxx Xxxxxxxx,
chartered accountants, of 00 Xxxxxxx Xxxxx, Xxxxxxxxx XX0 0XX or, as
the case may be, such other reputable firm of chartered or certified
public accountants of international repute as shall have been appointed
as auditors of the relative member of the Group and notified to the
Agent;
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration;
"AVAILABILITY PERIOD" means:
(a) in relation to Facility A, the period from and including the
date of this Agreement to and including 30 August 2002; and
(b) in relation to Facility B, the period from the date of this
Agreement to but not including the third anniversary thereof;
"AVAILABLE COMMITMENT" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) in the case of Facility A
(i) the amount of its participation in any outstanding
Loans under that Facility; and
(ii) in relation to any proposed Utilisation, the amount
of its participation in any Loans that are due to be
made under that Facility on or before the proposed
Utilisation Date;
(b) in the case of Facility B
(i) the Base Currency Amount of its participation in any
outstanding Loans under that Facility; and
(ii) in relation to any proposed Utilisation, the Base
Currency Amount of its participation in any Loans
that are due to be made under that Facility on or
before the proposed Utilisation Date, other than that
Lender's participation in any Facility B Loans that
are due to be repaid or prepaid on or before the
proposed Utilisation Date;
2
"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate
for the time being of each Lender's Available Commitment in respect of
that Facility;
"BASE CURRENCY" means in respect of Facility B dollars;
"BASE CURRENCY AMOUNT" means, in relation to a Loan under Facility B,
the amount specified in the Utilisation Request delivered by a Borrower
for that Loan (or, if the amount requested is not denominated in the
Base Currency, that amount converted into the Base Currency at the
Agent's Spot Rate of Exchange on the date which is three Business Days
before the Utilisation Date or, if later, on the date the Agent
receives the Utilisation Request) adjusted to reflect any repayment,
prepayment, consolidation or division of the Loan;
"BORROWER" means an Original Borrower or an Additional Borrower unless
it has ceased to be a Borrower in accordance with Clause 25 (Changes to
the Obligors);
"BREAK COSTS" means the amount (if any) by which:
(a) the interest which a Lender should have received for the
period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the
current Interest Period in respect of that Loan or Unpaid Sum,
had the principal amount or Unpaid Sum received been paid on
the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the Business Day
following receipt or recovery and ending on the last day of
the current Interest Period;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London, New York: and
(a) (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of the country
of that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day;
"CANADIAN REPORT ON TITLE" means the updated report on title in respect
of Clintrials BioResearches Limited' facility at 00 Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxx, X0X 0X0 to be prepared by Xxxxxxxxxx Xxxxxxxx Xxxxx
Xxxxxx;
3
"CANDOVER LOANS" means the L71,771,590 unsecured subordinated Loan
stock 2008 issued by Inveresk Research Group Limited pursuant to an
instrument originally dated 20 September 1999 as amended;
"COMMITMENT" means a Facility A Commitment or Facility B Commitment;
"COMPLETION" means the commencement of trading on NASDAQ of the common
stock of the Company;
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 8 (Form of Compliance Certificate);
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule
10 (LMA Form of Confidentiality Undertaking) or in any other form
agreed between the Company and the Agent;
"DEFAULT" means an Event of Default or any event or circumstance
specified in Clause 23 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default;
"DISTRIBUTION" means any Dividend or other distribution whether in cash
or in specie which is declared or due and whether or not actually paid;
"DORMANT COMPANIES" means any Group Company which has not traded or has
ceased trading (all such companies as at the date of execution of this
Agreement being listed in Schedule 9);
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which is subject to ERISA and:
(a) is maintained by any Borrower or any ERISA Affiliate; or
(b) is a pension plan that has at any time within the preceding
six years been maintained for the employees of any Borrower or
any current or former ERISA Affiliate (but only if maintained
at the time such entity was an ERISA Affiliate);
"ENVIRONMENT" means all or any gases, airs, vapours, liquids, land
(including building and any other structures, enclosures or erections
in, on or under it and any rock or soil and anything below the surface
of it), flora, fauna, wetlands, land covered with water and water
(including sea, ground and surface water) and all other nature
resources of any kind;
"ENVIRONMENTAL LAW" means all or any laws, statutes, treaties,
regulations, directives, ordinances, rules publicly available codes of
practice, circulars, guidance and notices having legal or judicial
import or effect whether of a criminal, civil or administrative nature
and the rules of common law concerning:
(a) pollution or contamination of the Environment;
(b) harm, whether actual or potential, to mankind and human sense,
living organisms and ecological systems;
4
(c) the generation, manufacture, processing, distribution, use
(including abuse), treatment, storage, disposal, transport or
handling of Dangerous Substances; and
(d) the emission, leakage, release or discharge into the
Environment of noise, vibration, dusts, fumes, gas, odours,
smoke, steam effluvia, heat, light, radiation (of any kind),
infection, electricity or any Dangerous Substance and any
matter or thing capable of constituting a nuisance or an
actionable wrong of any kind in respect of such matters;
for these purposes "DANGEROUS SUBSTANCE" means any radioactive
emissions and any natural or artificial substance (whether in solid or
liquid form or in the form of a gas or vapour and whether alone or in
combination with any other substance) capable of causing harm to man or
any other living organism or damaging the Environment or public health
or welfare, including (without limitation) any controlled, special,
hazardous, toxic, radioactive or dangerous waste;
"ERISA" means the Employee Retirement Income Security Act of 1974 (of
the United States of America), and the rules and regulations
thereunder, each as amended, supplemented or otherwise modified;
"ERISA AFFILIATE" means any person who together with any Borrower or
Group Company is treated as a single employer within the meaning of
Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of
ERISA;
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 23;
"EXISTING INVERESK FACILITIES" means those facilities made available to
Inveresk Research Group Limited and others pursuant to a Facilities
Agreement dated 26 February 2001 as amended;
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 23 (Events of Default);
"FACILITY" means Facility A or Facility B;
"FACILITY A" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facilities);
"FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount set opposite its
name under the heading "FACILITY A COMMITMENT" in Part II of
Schedule 1 (The Original Parties) and the amount of any other
Facility A Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount of any Facility A
Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement;
"FACILITY A FINAL REPAYMENT DATE" means the Business Day immediately
prior to the fifth anniversary of the date of first drawdown of
Facility A;
"FACILITY A LENDER" means a Lender having a Facility A Commitment;
5
"FACILITY A LOAN" means a loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan;
"FACILITY B" means the revolving loan facility made available under
this Agreement as described in Clause 2 (The Facilities);
"FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "FACILITY B
COMMITMENT" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility B Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility B Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement;
"FACILITY B FINAL REPAYMENT DATE" means the Business Day immediately
prior to the third anniversary of the date of this Agreement;
"FACILITY B LENDER" means a Lender having a Facility B Commitment;
"FACILITY B LOAN" means a loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan;
"FACILITY B OUTSTANDINGS" means, at any time, the aggregate of:
(a) all amounts outstanding in respect of Facility B Loans;
(b) the guaranteed amount of any bank guarantee issued by the
Other Utilisation Bank; and
(c) in relation to any other facilities or financial accommodation
provided under Facility B, such other amounts as the Other
Utilisation Bank determines in accordance with normal practice
of the Other Utilisation Bank fairly represents the aggregate
exposure of the Other Utilisation Bank in respect of that
facility or accommodation;
"FACILITY OFFICE" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement;
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Arranger and the Company (or the Agent and
the Company) setting out any of the fees referred to in Clause 12
(Fees);
"FINANCE DOCUMENT" means this Agreement, any Fee Letter, any Accession
Letter, each Security Document, any Hedging Agreement and any other
document designated as such by the Agent and the Company;
6
"FINANCE LEASE" means any lease, hire agreement, credit sale agreement,
purchase agreement, conditional sale agreement or instalment sale and
purchase agreement which should be treated in accordance with
Applicable Accounting Principles as a finance or capital lease or in
the same way as a finance or capital lease;
"FINANCE PARTY" means the Agent, the Arranger, the Security Trustee or
a Lender;
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to
the extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken
into account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or
any other instrument issued by a bank or financial
institution; and
(i) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a)
to (h) above;
"FULL GROUP SECURITY" means (to the extent Legally Possible in respect
of security created or to be created after the date of this Agreement)
in respect of an Obligor a guarantee in favour of each Finance Party as
it or the Agent may require (in each case in form and substance
satisfactory to the Security Trustee, acting reasonably) from the
relevant Obligor in respect of the obligations of each Obligor to the
Finance Parties under the Finance Documents, security documentation
constituting such fixed and/or floating security interests in respect
of the relevant Obligor's assets as the Agent or the Security Trustee
may reasonably require and such other supporting documents as the Agent
or the Security Trustee may reasonably require;
7
"GAAP" means in relation to a company incorporated in any jurisdiction
generally accepted accounting policies in the relevant jurisdiction;
"GROUP" means the Company and its Subsidiaries for the time being and
"GROUP COMPANY" or "member of the Group" means any one of them (and,
for the avoidance of any doubt, no company shall be a member of the
Group until it becomes a Subsidiary of a member of the Group);
"GUARANTOR" means an Original Guarantor or an Additional Guarantor,
unless it has ceased to be a Guarantor in accordance with Clause 25
(Changes to the Obligors);
"HEDGING AGREEMENTS" means any agreements entered into for the purpose
of managing or hedging currency and/or interest rate obligations
pursuant to Clause 22.1.3(l);
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary;
"INSOLVENCY EVENT" means any of the events specified in any of Clauses
23.6 to 23.11 (inclusive);
"INSURANCE REPORT" means a letter from the Company's Insurance broker
detailing all insurances taken out by the Group;
"INTELLECTUAL PROPERTY RIGHTS" means all know-how, patents, patent
applications, trade marks, community trade marks, service marks, trade
names, brand names, business names, registered designs, copyright and
all other industrial and intellectual property rights and any interests
(including by way of licence) in any of the foregoing (in each case
whether registered or not and including all applications for the same);
"INTEREST PERIOD" means, in relation to a Loan, each period determined
in accordance with Clause 10 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.3
(Default interest);
"IPO" means the initial public offering of common stock of the Company
as referred to in the prospectus dated on or around 28 June 2002;
"LEGALLY POSSIBLE" means to the extent permitted by applicable law on
the assumption that all possible steps have been taken by the relevant
Group Company to remove any legal impediment including without
limitation the obtaining of consents, waivers or following requisite
procedures;
8
"LENDER" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 24 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement;
"LIBOR" means in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or period of
that Loan) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to
the Interest Period for that Loan;
"LOAN" means a Facility A Loan or a Facility B Loan;
"LMA" means the Loan Market Association;
"MAJORITY LENDERS" means:
(a) in respect of Facility A:
(iii) if there are no Facility A Loans then outstanding, a
Facility A Lender or Lenders whose Facility A
Commitments aggregate more than 66 2/3% of the Total
Facility A Commitments (or, if the Total Facility A
Commitments have been reduced to zero, aggregated
more than 66 2/3% of the Total Facility A Commitments
immediately prior to the reduction); or
(iv) at any other time, a Facility A Lender or Lenders
whose participations in the Facility A Loans then
outstanding aggregate more than 66 2/3% of all the
Facility A Loans then outstanding;
(b) in respect of Facility B:
(i) if there are no Facility B Loans then outstanding, a
Facility B Lender or Lenders whose Facility B
Commitments aggregate more than 66 2/3% of the Total
Facility B Commitments (or, if the Total Facility B
Commitments have been reduced to zero, aggregated
more than 66 2/3% of the Total Facility B Commitments
immediately prior to the reduction); or
(ii) at any other time, a Facility B Lender or Lenders
whose participations in the Facility B Loans then
outstanding aggregate more than 66 2/3% of all the
Facility B Loans then outstanding;
9
"MANAGEMENT ACCOUNTING PERIOD" means each period of one quarter ending
on 31 March, 30 June, 30 September and 31 December in each year;
"MANAGEMENT ACCOUNTS" means:
(a) the management accounts for the Group for each Management
Accounting Period in the agreed form which shall include a
profit and loss account for the Management Accounting Period
and the financial year to date;
(b) a balance sheet as at the last day of the relevant Management
Accounting Period; and
(c) a cash flow for the Management Accounting Period and financial
year to date.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae);
"MARGIN" means in respect of Facility A one and one quarter per cent
(1.25%) per annum and in respect of Facility B one and one quarter per
cent (1.25%) per annum;
"MATERIAL ADVERSE EFFECT" means an event or matter:
(a) having, or reasonably likely to have a material adverse effect
on the financial condition, assets, or revenues of the Group
taken as a whole; or
(b) having a material adverse effect on the ability of the Company
or any Group Company either to perform in a timely manner all
or any of its payment obligations under any of the Finance
Documents or to comply with the terms of Clause 21 (Financial
Covenants); or
(c) (where the context so admits) resulting in all or any of the
Security Documents not providing the Security Trustee (on
behalf of the Lenders) with effective enforceable security
over the assets expressed to be charged by the relevant
Security Document or Security Documents to an extent
reasonably considered to be material by the Majority Lenders;
"MATERIAL COMPANY" means a member of the Group which is trading and has
net assets (ignoring intra group assets and liabilities) in excess of
L750,000 (all the companies listed in Schedule 13 being the Material
Companies as at the date of execution of this Agreement);
"MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically
corresponding day is not a Business Day, that period shall end
on the next Business Day in that calendar month in which that
period is to end if there is one, or if there is not, on the
immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest
Period is to end.
10
The above rules will only apply to the last Month of any period;
"MULTIEMPLOYER PLAN" means a "MULTIEMPLOYER PLAN" as defined in Section
4001(a)(3) of ERISA to which any Borrower, any Group Company or any
ERISA Affiliate is making, or is accruing an obligation to make,
contributions within the preceding six years;
"OBLIGOR" means a Borrower or a Guarantor;
"OPTIONAL CURRENCY" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies);
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Company, the audited consolidated financial
statements of the Group for the financial year ended 30
December 2001; and
(b) in relation to each Original Obligor other than the Company,
its audited financial statements, if any, for its financial
year ended on or around 30 December 2001;
"ORIGINAL OBLIGOR" means an Original Borrower or an Original Guarantor;
"OTHER UTILISATION" means a Utilisation of Facility B to which the
provisions of Clause 5.5 shall also apply;
"OTHER UTILISATION BANK" means The Royal Bank of Scotland plc;
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Monetary Union;
"PARTY" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees;
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency;
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV or
ERISA or Section 412 of the Code and which:
(a) is maintained for employers of any Borrower, Group Company or
ERISA Affiliate; or
(b) has at any time within the preceding six years been maintained
for the employees of any Borrower, Group Company or current or
former ERISA Affiliate;
11
"PERMITTED DISPOSAL" means in respect of assets other than heritable,
real or leasehold property:
(a) any sale or disposal of assets which is a sale or disposal in
the ordinary course of trading activities and for market-value
on an arms-length basis for consideration payable in cash on
normal commercial terms;
(b) any sale or disposal of assets which are obsolete or
redundant;
(c) a sale or disposal to an Obligor or a disposal by a Group
Company which is not an Obligor to another Group Company which
is an Obligor provided the transferee has granted Full Group
Security;
(d) any sale or disposal of assets where the proceeds are used to
acquire replacement assets within 120 days of such sale or
disposal;
(e) any disposal on arm's length terms where the aggregate value
of the assets the subject of the disposal by Group Companies
in any 12 month period other than in accordance with
paragraphs (a) to (d) above in any financial year does not
exceed $500,000 (based on the higher of book value or
consideration);
Provided in each case that any monies thereby received by the member of
the Group making the sale or disposition are credited to an account
with the Agent or an Approved Financier and in the case of paragraph
(d) such monies shall only be withdrawn for the purpose of funding the
relevant replacement assets;
"PERMITTED FINANCIAL INDEBTEDNESS" means Financial Indebtedness:
(a) of the Group from time to time under this Agreement;
(b) arising between Material Companies where each has granted Full
Group Security;
(c) arising between Material Companies which have granted Full
Group Security and other Group Companies not being Material
Companies:
(i) in existence as at the date of this Agreement, to the
extent previously notified or disclosed to the Agent;
and
(ii) up to $1,000,000 per annum granted after the date
hereof,
provided that in aggregate the maximum such Financial Indebtedness
under (i) and (ii) above shall not exceed $2,500,000 in respect of all
such non-Material Group Companies taken together nor $500,000 in
respect of any individual non-Material Group Companies;
(d) arising under Hedging Agreements entered into by any Group
Company;
(e) under any lease or hire purchase contract which would in
accordance with GAAP be treated as a Finance Lease in terms of
which assets with an aggregate outstanding capital value not
exceeding US$5,000,000 (or such greater amount as the Agent
may from time to time agree) are hired or leased;
(f) unsecured and full subordinated debt the terms of which and
the subordination thereof have previously been approved in
writing by the Agent acting reasonably;
12
(g) the loan of 335,400 Canadian dollars made by the Canadian
government to Clintrials Bio-Research Limited provided the
same is repaid by 30 August 2003;
(h) approved in writing by the Agent;
"PERMITTED SECURITY INTEREST" means:
(a) rights of retention of title and liens which are implied by
law or custom of trade or are incorporated in the standard
terms of contract of another contracting party and which arise
in any such case in the ordinary course of trade of any Group
Company;
(b) any liens and rights of set off arising by operation of law in
the ordinary course of trading of any Group Company;
(c) any Security which is expressly permitted by the terms of
Security Documents or which the Agent has at any time in
writing agreed shall be a Permitted Security Interest;
(d) any Security created under the Finance Documents;
(e) any Security created by any court order in favour of the
plaintiff or the defendant in any action as security for costs
or expenses provided the relevant Group Company is pursuing or
defending such action in the bona fide interests of that Group
Company and provided further that such action is not an Event
of Default or Default;
(f) any Security other than otherwise permitted under this
Agreement securing Financial Indebtedness in an aggregate
principal amount not exceeding $500,000;
(g) any Security over credit balances and bank accounts of members
of the Group with an Approved Financier created in order to
facilitate the operation of such bank accounts;
(h) liens in respect of tax liabilities being disputed in good
faith and on the basis of professional advice which
liabilities have nevertheless been fully provided for in the
most recent financial statements provided to the Agent;
(i) any Security in respect of acquired assets or companies such
security in aggregate in amount not exceeding $250,000
provided the same are discharged as soon as practicable and in
any event no later than 6 months after the date of
acquisition;
"PROPERTY" means Elphinstone Research Centre, Tranent, East Lothian;
The Origo Centre, Riccarton, Midlothian; and 00 Xxxxxx Xxxxxxxx,
Xxxxxxxxx;
13
"QUOTATION DAY" means, in relation to any period for which an
interest rate is to be determined:
(a) (if the currency is sterling) the first day of that
period;
(b) (if the currency is euro) two TARGET Days before the first
day of that period; or
(c) (for any other currency) two Business Days before the
first day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given
by leading banks in the Relevant Interbank Market on more than one
day, the Quotation Day will be the last of those days);
"REFERENCE BANKS" means, in relation to LIBOR and Mandatory Cost, the
principal London offices of The Royal Bank of Scotland plc and such
other banks as may be appointed by the Agent in consultation with the
Company;
"RELEVANT INTERBANK MARKET" means the London interbank market;
"REPEATING REPRESENTATIONS" means each of the representations given
pursuant to Clause 19 save for those in Clauses 19.1(a), 19.13,
19.14, 19.17, 19.19, 19.21, 19.22 and 19.23;
"REPORTS" means the Insurance Report and Canadian Report on Title;
"RESERVATIONS" means the principle that equitable remedies are
remedies which may be granted or refused at the discretion of the
court and damages may be regarded as an adequate remedy, the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration
and other laws generally affecting the rights of creditors, the
time-barring of claims under the Limitation Acts (and similar
legislation), the possibility that an undertaking to assume liability
for or to indemnify a person against non-payment of stamp duty may be
void, the fact that a court may refuse to give effect to a purported
contractual obligation to pay costs imposed upon another party in
respect of the costs of any unsuccessful litigation brought against
that party or may not award by way of costs all of the expenditure
incurred by a successful litigant in proceedings brought before that
court, or that a court may stay proceedings if concurrent proceedings
based on the same grounds and between the same parties have
previously been brought before another court, that a court may not
give effect to the provisions of Clause 33 (or any similar provision
in another Finance Document) and that interest at a default rate on
overdue amounts may be a penalty and not recoverable;
"RESIGNATION LETTER" means a letter substantially in the form set out
in Schedule 7 (Form of Resignation Letter);
"ROLLOVER LOAN" means one or more Facility B Loans:
(a) made or to be made on the same day that a maturing
Facility B Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility B Loan;
14
(c) in the same currency as the maturing Facility B Loan
(unless it arose as a result of the operation of Clause
6.2 (Unavailability of a currency)); and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Facility B Loan;
"SCREEN RATE" means in relation to LIBOR, the British Bankers
Association Interest Settlement Rate for the relevant currency and
period and displayed on the appropriate page of the Telerate screen.
If the agreed page is replaced or service ceases to be available, the
Agent may specify another page or service displaying the appropriate
rate after consultation with the Company and the Lenders;
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or arrangement having a similar effect;
"SECURITY DOCUMENTS" means the Security Documents to be granted by
each Obligor to the Security Trustee and listed in Schedule 2 and all
other documents from time to time creating, evidencing or granting
Security in favour of the Finance Parties (or any of them) and
granted by the Obligor as security for the obligations of the
Obligors to the Lenders from time to time under any of the Finance
Documents and "Security Document" shall be construed accordingly;
"SECURITY TRUSTEE" means The Royal Bank of Scotland plc in its
capacity as security trustee of the Security Documents under and in
terms of Clause 26.17 and its successors and assigns in that
capacity;
"SPECIFIED PURPOSE" means in respect of any particular Facility, the
purpose of such Facility as specified in Clause 3;
"SELECTION NOTICE" means a notice substantially in the form set out
in Part II of Schedule 3 (Requests) given in accordance with Clause
10 (Interest Periods) in relation to Facility A;
"SPECIFIED TIME" means a time determined in accordance with Schedule
11 (Timetables);
"SUBSIDIARY" means in respect of any company or corporation, any
company or corporation:
(a) which is controlled directly or indirectly, by the
first-mentioned company or corporation; or
(b) more than half the issued share capital (or equivalent) of
which is beneficially owned, directly or indirectly, by
the first-mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation;
and for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body;
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system;
"TARGET DAY" means any day on which TARGET is open for the settlement
of payments in euro;
15
"TAX" means any tax, levy, impost, duty or other charge or
withholding of a similar nature (including any penalty or interest
payable in connection with any failure to pay or any delay in paying
any of the same);
"TAXES ACT" means the Income and Corporation Taxes Xxx 0000;
"TERMINATION EVENT" means:
(a) a "REPORTABLE EVENT" described in Section 4043 of ERISA
with respect to a Pension Plan for which the PBGC has not
waived the notice requirement; or
(b) the withdrawal of any Borrower, Group Company or any ERISA
Affiliate from a Pension Plan during a plan year in which
it was a "SUBSTANTIAL EMPLOYER" as defined in Section
4001(a)(2) of ERISA; or
(c) the termination of a Pension Plan, the filing of a notice
of intent to terminate a Pension Plan or the treatment of a
Pension Plan amendment as a termination under Section 4041
of ERISA; or
(d) the institution of proceedings to terminate, or the
appointment of a trustee with respect to, any Pension Plan
by the PBGC; or
(e) any other event or condition which would constitute grounds
under Section 4042(a) of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension
Plan; or
(f) the partial or complete withdrawal of any Borrower, Group
Company or ERISA Affiliate from a Multiemployer Plan; or
(g) the imposition of a Lien pursuant to Section 412 of the
Code or Section 302 of ERISA; or
(h) except to the extent it would not have a Material Adverse
Effect, any event or condition which results in the
reorganisation or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 or ERISA; or
(i) except to the extent it would not have a Material Adverse
Effect, any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of
ERISA or the institution by PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA;
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A
Commitments and the Total Facility B Commitments, being $75,000,000
at the date of this Agreement;
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments, being $50,000,000 at the date of this Agreement;
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments, being $25,000,000 at the date of this Agreement;
"TRANSFER CERTIFICATE" means a certificate substantially in one of
the forms set out in Schedule 5 (Form of Transfer Certificates) or
any other form agreed between the Agent and the Company.
16
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and
(b) the date on which the Agent executes the Transfer
Certificate;
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor
under the Finance Documents;
"UTILISATION" means a utilisation of a Facility;
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made;
"UTILISATION REQUEST" means a notice substantially in the form set
out in Part I of Schedule 3 (Requests);
"VAT" means value added tax as provided for in the Value Added Tax
Xxx 0000 and any other tax of a similar nature;
1.2 CONSTRUCTION
(a) Any reference in this Agreement to:
(i) "AGREED FORM" means in relation to a document
the form agreed by the Company and the Agent
and initialled by them or on their behalf for
the purpose of identification on the date of
this Agreement or if not then agreed, in form
and substance acceptable to the Agent acting
reasonably;
(ii) "ASSETS" includes present and future
properties, revenues and rights of every
description;
(iii) the "EUROPEAN INTERBANK MARKET" means the
interbank market for euro operating in
Participating Member States;
(iv) a "FINANCE DOCUMENT" or any other agreement or
instrument is a reference to that Finance
Document or other agreement or instrument as
amended or novated;
(v) "INDEBTEDNESS" includes any obligation (whether
incurred as principal or as surety) for the
payment or repayment of money, whether present
or future, actual or contingent;
(vi) a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a
state or any association, trust or partnership
(whether or not having separate legal
personality) or two or more of the foregoing;
(vii) a "REGULATION" includes any regulation, rule,
official directive, request or guideline
(whether or not having the force of law) of any
governmental, intergovernmental or supranational
body, agency, department or regulatory,
self-regulatory or other authority or
organisation;
17
(viii) "DOLLAR" and "$" means US dollar;
(ix) a provision of law is a reference to that
provision as amended or re-enacted; and
(x) unless a contrary indication appears, a time of
day is a reference to London time;
(b) Section, Clause and Schedule headings are for ease of
reference only;
(c) Unless a contrary indication appears, a term used in any
other Finance Document or in any notice given under or in
connection with any Finance Document has the same meaning
in that Finance Document or notice as in this Agreement;
(d) A Default (other than an Event of Default) is "CONTINUING"
if it has not been remedied or waived and an Event of
Default is "CONTINUING" if it has not been remedied or
waived.
1.3 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or enjoy the
benefit of any term of this Agreement.
2 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available to
the Borrowers:
(a) a dollar term loan facility in an aggregate amount equal
to the Total Facility A Commitments; and
(b) a multicurrency revolving loan facility in an aggregate
amount equal to the Total Facility B Commitments.
2.1 LENDERS' RIGHTS AND OBLIGATIONS
(a) The obligations of each Lender under the Finance Documents
are several. Failure by a Lender to perform its obligations
under the Finance Documents does not affect the obligations
of any other Party under the Finance Documents. No Finance
Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
(b) The rights of each Lender under or in connection with the
Finance Documents are separate and independent rights and
any debt arising under the Finance Documents to a Lender
from an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the
Finance Documents, separately enforce its rights under the
Finance Documents.
18
3 PURPOSE
3.1 PURPOSE
(a) Each Borrower shall apply all amounts borrowed by it under
Facility A towards the repayment of Existing Inveresk
Facilities, the repayment of the Candover Loans and the
payment of any fees and expenses incurred in connection
therewith or with the IPO and (upon satisfaction of those
amounts) for general corporate purposes;
(b) Each Borrower shall apply all amounts borrowed by it under
Facility B towards general working capital and general
corporate purposes.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4 CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
(a) No Borrower may deliver a Utilisation Request unless the
Agent has received all of the documents and other evidence
listed in Part I of Schedule 2 (Conditions precedent) in
form and substance satisfactory to the Agent. The Agent
shall notify the Company and the Lenders promptly upon
being so satisfied;
(b) The Lenders will only be obliged to comply with Clause 5.4
in respect of the first Utilisation Request hereunder with
effect from the date on which the Company:
(i) provides the Agent with written evidence of the
occurrence of Completion; and
(ii) provides the Agent with evidence that the
Candover Loans and the Existing Inveresk
Facilities have been irrevocably repaid in
full, or will be contemporaneously with the
first drawdown hereunder.
4.2 FURTHER CONDITIONS PRECEDENT
(a) The Lenders will only be obliged to comply with Clause 5.4
(Lenders' participation) if on the date of the Utilisation
Request and on the proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Event of
Default is continuing or would result from the
proposed Loan and, in the case of any other
Loan, no Default is continuing or would result
from the proposed Loan; and
(ii) the Repeating Representations to be made by
each Obligor are true in all material respects;
19
(b) The Lenders will only be obliged to comply with Clause 6.3
(Change of currency) if, on the first day of an Interest
Period, no Default is continuing or would result from the
change of currency and the Repeating Representations to be
made by each Obligor are true in all material respects.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES UNDER FACILITY B
(a) A currency will constitute an Optional Currency in
relation to a Facility B Loan if:
(i) It is readily available in the amount required
and freely convertible into the Base Currency in
the Relevant Interbank Market on the Quotation
Day and the Utilisation Date for that Facility B
Loan; and
(ii) It is sterling, euros, Canadian dollars or has
been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to
receipt by the Agent of the relevant Utilisation
Request or Selection Notice for that Loan;
(b) If the Agent has received a written request from the
Company for a currency to be approved under paragraph (a)
(ii) above, the Agent will confirm to the Company by the
Specified Time:
(i) whether or not the Lenders have granted their
approval; and
(ii) if approval has been granted, the minimum
amount (and, if required, integral multiples)
for any subsequent Utilisation in that
currency;
(c) If the euro constitutes an Optional Currency at any time, a
Loan will only be made available in euro unit.
4.4 MAXIMUM NUMBER OF LOANS
(a) Facility A shall be utilised initially by means of a
single Loan;
(b) A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation:
(i) 15 or more Facility B Loans would be
outstanding; or
(ii) 4 or more Facility A Loans would be
outstanding;
(c) a Borrower may not request that the Facility A Loan be
divided if, as a result of the proposed division 4 or more
Facility A Loans would be outstanding;
Any Loan made by a single Lender under Clause 6.2 (Unavailability of
a currency) shall not be taken into account in this Clause 4.4.
20
5 UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day
within the Availability period applicable to
that Facility;
(iii) the currency and amount of the Utilisation
comply with Clause 5.3 (Currency and amount);
and
(iv) the proposed Interest Period complies with
Clause 10 (Interest Periods).
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be
dollars in respect of Facility A and the Base Currency or
an Optional Currency in respect of Facility B;
(b) the amount of the proposed Loan in respect of Facility A
must be an amount which is not more than the Available
Facility and which is a minimum of $10,000,000 or, if
less, the Available Facility;
(c) the amount of the proposed Loan in respect of Facility B
must be:
(i) if the currency selected is the Base Currency,
a minimum of $500,000 or in either case, if
less, the Available Facility; or
(ii) if the currency selected is an Optional
Currency, the minimum amount (or an integral
multiple, if required) specified by the Agent
pursuant to paragraph (b)(ii) of Clause 4.3
(Conditions relating to Optional Currencies)
or, if less, the Available Facility.
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met,
each Lender shall make its participation in each Loan
available through its Facility Office.
(b) The amount of each Lender's participation in each Loan will
be equal to the proportion borne by its Available
Commitment to the Available Facility immediately prior to
making the Loan.
21
(c) The Agent shall notify each Lender of the amount, (and in
respect of Facility B the currency and the Base Currency
Amount) of each Loan at the Specified Time.
5.5 OTHER UTILISATION OF FACILITY B
(a) Subject to the other terms of this Agreement the Other
Utilisation Bank agrees to make Facility B available to the
Borrower by way of the issue of bank guarantees or such
other facilities as the Facility B Lenders and the Borrower
may agree.
(b) No Utilisation of Facility B or Other Utilisation may be
made if the Facility B Outstandings would exceed the
Facility B Commitments.
(c) Each Other Utilisation may only be made subject to the
Borrower executing and delivering to the Other Utilisation
Bank such other further documentation, in form and
substance satisfactory to it, as it requires in accordance
with its normal practice for commercial borrowers and shall
be made on the customary rates and scales of the Other
Utilisation Bank as notified to the Borrower from time to
time;
(d)
(i) If the relevant Borrower fails to pay to the
Other Utilisation Bank any amount due under
this Agreement in respect of Facility B within
two Business Days of its due date (the
difference between the amount due and the
amount paid being the "SHORTFALL") then,
without limitation to all other rights and
remedies of the Parties in respect thereof, the
Other Utilisation Bank shall inform the Agent
of such failure, specifying the amount and
currency of the Shortfall whereupon the Agent
shall issue a notification (a "SHORTFALL
NOTIFICATION") to the Facility B Lenders
stating the amount and currency of the
Shortfall.
(ii) Following the issue of a Shortfall Notification
each Facility B Lender shall pay to the Agent
for the account of the Other Utilisation Bank
an amount equal to a proportion of the
Shortfall equal to such Facility B Lender's
Participation (as defined in Clause 5.5(e)
below) in Facility B together with interest
thereon from the due date referred to in
paragraph (d) to the date of such payment to
the Agent at the rate which is equal to the
aggregate of:
1) the Margin; and
2) an amount equivalent to the cost of
funds to the Other Utilisation Bank
(as certified by the Other
Utilisation Bank).
Such payments shall be made on the next Business Day following the
issuance of the Shortfall Notification and shall, subject to
paragraph d(iii) below satisfy the amount due (including interest
thereon) from the relevant Borrower in respect of which such
Shortfall arose to the extent of such payments.
(i) The relevant Borrower shall indemnify the
Facility B Lenders on demand against any amount
payable by them under this Clause and in respect
of such indemnity the protective provisions in
favour of the Security Trustee contained in any
guarantee granted to the Security Trustee by any
Group Company shall be deemed to apply mutatis
mutandis.
22
(ii) For the avoidance of doubt, neither the Company
nor the relevant Borrower shall be obliged to
make any payment in respect of the same amount
more than once.
(e) For the purposes of paragraphs (d) and (f) the
"PARTICIPATION" of a Facility B Lender at any time in
Facility B shall be the proportion of the Facility B equal
to the proportion borne by the Facility B Lenders'
Facility B Commitment to the Total Facility B Commitments
at such time.
(f) Upon receipt of the same the Other Utilisation Bank shall
pay to the Agent for the account of the Facility B Lenders
the Margin which it receives in respect of Other
Utilisations under Facility B.
(g) Each other Utilisation shall for the purposes of any
Security Document be deemed to be a Loan and secured
thereby.
6 OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
A Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Facility B Loan in a Utilisation Request.
6.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on any Quotation Day:
(a) the Agent has received notice from a Lender that the
Optional Currency requested is not readily available to it
in the amount required; or
(b) a Lender notifies the Agent that compliance with its
obligation to participate in a Facility B Loan in the
proposed Optional Currency would contravene a law or
regulation applicable to it,
the Agent will give notice to the relevant Borrower to that effect by
the Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 6.2 will be required to participate in
the Facility B Loan in the Base Currency (in an amount equal to that
Lender's proportion of the Base Currency Amount or, in respect of a
Rollover Loan, an amount equal to that Lender's proportion of the
Base Currency Amount of the maturing Facility B Loan that is due to
be repaid) and its participation will be treated as a separate
Facility B Loan denominated in the Base Currency during that Interest
Period.
6.3 AGENT'S CALCULATIONS
Each Lender's participation in a Facility B Loan will be determined
in accordance with paragraph (b) of Clause 5.4 (Lenders'
participation).
23
7 REPAYMENT
7.1 REPAYMENT OF FACILITY A
7.1.1 The Borrower shall repay Facility A by paying the Agent on each date
set out under Column A below (each a "FACILITY A REPAYMENT DATE")
that amount (each a "FACILITY A REPAYMENT INSTALMENT") equal to (A X
B) where:
A = the aggregate amount of Facility A Loans as at the expiry of
the Availability Period; and
B = the percentage specified in Column B below corresponding to
the relevant Facility A Repayment Date;
Column A Column B
Facility A Repayment Dates %
30 June 2004 14.3
31 December 2004 14.3
30 June 2005 14.3
31 December 2005 14.3
30 June 2006 14.3
31 December 2006 14.3
30 June 2007 (or if earlier the 14.2
Facility A Final Repayment Date)
7.1.2 Facility A shall be repaid in full by the Facility A Final Repayment
Date.
7.1.3 No Borrower may re-borrow any part of Facility A which is repaid.
7.2 REPAYMENT OF FACILITY B LOANS
(a) Each Borrower which has drawn a Facility B Loan shall
repay that Loan on the last day of its Interest Period;
(b) All Facility B Loans shall be finally repaid and not
available for re-borrowing on the Facility B Final
Repayment Date.
24
8 PREPAYMENT AND CANCELLATION
8.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender to perform
any of its obligations as contemplated by this Agreement or to fund
its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming
aware of that event;
(b) upon the Agent notifying the Company, the Commitment of
that Lender will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in
the Loans made to that Borrower on the last day of the
Interest Period for each Loan occurring after the Agent
has notified the Company or, if earlier, the date
specified by the Lender in the notice delivered to the
Agent (being no earlier than the last day of any
applicable grace period permitted by law).
8.2 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by an Obligor is
required to be increased under paragraph (c) of
Clause 13.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the
Company under Clause 13.3 (Tax indemnity) or
Clause 14.1 (Increased costs);
the Company may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice of
cancellation of the Commitment of that Lender and its intention to
procure the repayment of that Lender's participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above,
the Commitment of that Lender shall immediately be reduced
to zero.
(c) On the last day of each Interest Period which ends after
the Company has given notice under paragraph (a) above (or,
if earlier, the date specified by the Company in that
notice), each Borrower to which a Loan is outstanding shall
repay that Lender's participation in that Loan.
8.3 VOLUNTARY CANCELLATION
The Company may, if it gives the Agent not less than 10 Business
Days' (or such shorter period as the Majority Lenders may agree)
prior notice, cancel the whole or any part (being a minimum amount of
$2,500,000 of an Available Facility. Any cancellation under this
Clause 8.3 shall reduce the Commitments of the Lenders rateably under
that Facility.
8.4 VOLUNTARY PREPAYMENT OF FACILITY A LOANS
(a) The Company may, if it gives the Agent not less than 10
Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, prepay the whole or any
part of the Facility A Loan (but, if in part, being an
amount that reduces the Amount of the Facility A Loan by a
minimum amount of $1,000,000
25
(b) The Facility A Loan may only be prepaid after the last day
of the Availability Period (or, if earlier, the day on
which the applicable Available Facility is zero); and
(c) Any prepayment under this Clause 8.4 shall satisfy the
obligations under Clause 7.1 (Repayment of Facility A Loan)
pro rata.
8.5 VOLUNTARY PREPAYMENT OF FACILITY B LOANS
The Borrower to which a Facility B Loan has been made may, if it
gives the Agent not less than 10 Business Days' (or such shorter
period as the Majority Lenders may agree) prior notice, prepay the
whole or any part of a Facility B Loan (but if in part, being an
amount that reduces the Base Currency Amount of the Facility B Loan
by a minimum amount of $1,000,000).
8.6 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any
Party under this Clause 8 shall be irrevocable and, unless
a contrary indication appears in this Agreement, shall
specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of
that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject
to any Break Costs, without premium or penalty except as
stated in paragraph (c) below.
(c) Where any prepayment or cancellation of all or any part of
the Loans or the Facilities other than in the
circumstances contemplated in Clause 8.1 or 8.2 is made
pursuant to, in contemplation of or otherwise in
connection with a refinancing of the Facilities (or part
of them) by any bank or financial institution other than
the Lenders, the Company shall promptly on demand by the
Agent pay the Agent on account of the Lenders a prepayment
fee equal to one per cent (1%) of the amount prepaid or
cancelled on the Business Day immediately prior to such
prepayment or cancellation provided that the foregoing
prepayment fee shall not be payable if (first) the
refinancing is pursuant to a larger fundraising exercise
or transaction (whether or not involving the acquisition
of companies or businesses from third parties) which does
not have as one of its principal purposes the refinancing
of these Facilities and (second) the Lenders having been
timeously supplied with all relevant information and been
given an opportunity to conduct all reasonable due
diligence have declined to participate in such refinancing
on the same financial terms and very substantially the
same non-financial terms as those under which it proceeds.
(d) No Borrower may reborrow any part of Facility A which is
prepaid.
(e) Unless a contrary indication appears in this Agreement,
any part of Facility B which is prepaid may be reborrowed
in accordance with the terms of this Agreement.
(f) The Borrowers shall not repay or prepay all or any part of
the Loans or cancel all or any part of the Commitments
except at the times and in the manner expressly provided
for in this Agreement.
(g) No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
26
(h) If the Agent receives a notice under this Clause 8 it shall
promptly forward a copy of that notice to either the
Company or the affected Lender, as appropriate.
9 INTEREST
9.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
9.2 PAYMENT OF INTEREST
The Borrower to which a Loan has been made shall pay accrued interest
on that Loan on the last day of each Interest Period (and, if the
Interest Period is longer than six Months, on the dates falling at
six monthly intervals after the first day of the Interest Period).
9.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under
a Finance Document on its due date, interest shall accrue
on the overdue amount from the due date up to the date of
actual payment (both before and after judgment) at a rate
1 per cent higher than the rate which would have been
payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a
duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 9.3 shall be
immediately payable by the Obligor on demand by the Agent.
(b) Default interest (if unpaid) arising on an overdue amount
will to the extent permitted by applicable law be
compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
9.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the relevant Borrower
of the determination of a rate of interest under this Agreement.
10 INTEREST PERIODS
10.1 SELECTION OF INTEREST PERIODS
(a) A Borrower (or the Company on behalf of a Borrower) may
select an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already been
borrowed) in a Selection Notice.
(b) The Selection Notice for the Facility A Loan is irrevocable
and must be delivered to the Agent by the Borrower (or the
Company on behalf of a Borrower) to which the Facility A
Loan was made not later than the Specified Time.
27
(c) If a Borrower (or the Company) fails to deliver a Selection
Notice to the Agent in accordance with paragraph (b) above,
the relevant Interest Period will, subject to Clause 10.2
(Changes to Interest Periods), be one Month.
(d) Subject to this Clause 10, a Borrower (or the Company) may
select an Interest Period of one, three or six Months or
any other period agreed between the Company and the Agent
(acting on the instructions of all the Lenders) or such
shorter period as may be necessary to coincide with the
next relevant Facility A Repayment Date.
(e) An Interest Period for a Loan shall not extend beyond the
relevant Facility A or Facility B Final Repayment Date
applicable to its Facility.
(f) The Interest Period for the Facility A Loan shall start on
the Utilisation Date.
(g) A Facility B Loan has one Interest Period only.
10.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the
preceding Business Day (if there is not).
10.3 CONSOLIDATION AND DIVISION OF FACILITY A LOANS
(a) Subject to paragraph (b) below, if two or more Interest
Periods:
(i) relate to Facility A Loans;
(ii) end on the same date; and
(iii) are made to the same Borrower,
those Facility A Loans will, unless that Borrower (or the Company on
its behalf) specifies to the contrary in the Selection Notice for the
next Interest Period, be consolidated into, and treated as, a single
Facility A Loan on the last day of the Interest Period.
(iv) Subject to Clause 4.4 (Maximum number of
Loans), Clause 5.3 (Currency and amount), and
to the Agent being satisfied that the Hedging
Agreements would not be affected thereby if a
Borrower (or the Company on its behalf)
requests in a Selection Notice that a Facility
A Loan be divided into two or more Facility A
Loans, that Facility A Loan will, on the last
day of its Interest Period, be so divided with
amounts specified in that Selection Notice,
being an aggregate amount equal to the amount
of the Facility A Loan immediately before its
division.
11 CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (Market disruption), if LIBOR is to be
determined by reference to the Reference Banks but a Reference Bank
does not supply a quotation by the Specified Time on the Quotation
Day, the applicable LIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks.
11.2 MARKET DISRUPTION
28
(a) If a Market Disruption Event occurs in relation to a Loan
for any Interest Period, then the rate of interest on each
Lender's share of that Loan for the Interest Period shall
be the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender
as soon as practicable and in any event before
interest is due to be paid in respect of that
Interest Period, to be that which expresses as
a percentage rate per annum the cost to that
Lender of funding its participation in that
Loan from whatever source it may reasonably
select; and
(iii) the Mandatory Cost, if any, applicable to that
Lender's participation in the Loan.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the
relevant Interest Period the Screen Rate is not
available and none or only one of the Reference
Banks supplies a rate to the Agent to determine
LIBOR for the relevant currency and period; or
(ii) before close of business in London on the
Quotation Day for the relevant Interest Period,
the Agent receives notifications from a Lender
or Lenders (whose participations in a Loan
exceed 50 per cent. of that Loan) that the cost
to it of obtaining matching deposits in the
Relevant Interbank Market would be in excess of
LIBOR.
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the
Company so requires, the Agent and the Company shall enter
into negotiations (for a period of not more than thirty
days) with a view to agreeing a substitute basis for
determining the rate of interest;
(b) any alternative basis agreed pursuant to paragraph (a)
above shall, with the prior consent of all the Lenders and
the Company, be binding on all Parties.
29
11.4 BREAK COSTS
(a) Each Borrower shall, within three Business Days of demand
by a Finance Party, pay to that Finance Party its Break
Costs attributable to all or any part of a Loan or Unpaid
Sum being paid by that Borrower on a day other than the
last day of an Interest Period for that Loan or Unpaid Sum;
(b) each Lender shall, as soon as reasonably practicable after
a demand by the Agent, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which
they accrue.
12 FEES
12.1 COMMITMENT FEE
(a) The Company shall pay to the Agent (for the account of each
Lender) a fee in the Base Currency computed at the rate of
0.375 per cent. per annum on that Lender's Available
Commitment under Facility B for the Availability Period
applicable to Facility B.
(b) The accrued commitment fee is payable on the last day of
each successive period of three Months which ends during
the relevant Availability Period, on the last day of the
Availability Period and on the cancelled amount of the
relevant Lender's Commitment at the time the cancellation
is effective.
12.2 ARRANGEMENT FEE
The Company shall pay to the Arranger an arrangement fee in the
amount and at the times agreed in a Fee Letter.
12.3 AGENCY FEE
The Company shall pay to the Agent (for its own account) an agency
fee in the amount and at the times agreed in a Fee Letter.
13 TAX GROSS UP AND INDEMNITIES
13.1 DEFINITIONS
(a) In this Clause 13:
"PROTECTED PARTY" means a Finance Party which is or will be, for or
on account of Tax, subject to any liability or required to make any
payment in relation to a sum received or receivable (or any sum
deemed for the purposes of Tax to be received or receivable) under a
Finance Document;
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of any Tax;
"TAX DEDUCTION" means a deduction or withholding for or on account of
Tax from a payment under a Finance Document provided that it shall
not included Taxes referenced under Clause 13.3(b) of this Agreement;
30
"TAX PAYMENT" means an increased payment made by an Obligor to a
Finance Party under Clause 13.2 (Tax gross-up) or a payment under
Clause 13.3 (Tax indemnity);
(a) In this Clause 13 a reference to "DETERMINES" or
"DETERMINED" means a determination made in the absolute
discretion of the person making the determination.
13.2 TAX GROSS-UP
(a) Each Obligor shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is
required by law;
(b) if a Tax Deduction is required by law to be made by an
Obligor, the amount of the payment due from that Obligor
shall be increased to an amount which (after making any
Tax Deduction) leaves an amount equal to the payment which
would have been due if no Tax Deduction had been required,
except as provided in paragraph (c) below;
(c) the Obligor shall not be liable to pay the additional
amount described in paragraph (b) in the following
circumstances:
(i) if the Tax Deduction is required to be made as
a result of the failure of that Lender to
comply with paragraph (f) below; or
(ii) to the extent that at the time of the transfer
of the relevant Transfer Certificate the
Obligor would not be able to make the
representation in paragraph 19.7 as to payments
to be made to the transferee;
(d) if an Obligor is required to make a Tax Deduction, that
Obligor shall make that Tax Deduction and any payment
required in connection with that Tax Deduction within the
time allowed and in the minimum amount required by law;
(e) within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the
Agent for the Finance Party entitled to the payment
evidence reasonably satisfactory to that Finance Party that
the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority;
(f) each Finance Party and each Obligor which makes a payment
to which that Finance Party is entitled shall co-operate in
completing any procedural formalities including, without
limitation providing timely, completed, executed Internal
Revenue Services form W-8BEN or W-8EC1 necessary for that
Obligor to make that payment without a Tax Deduction.
31
13.3 TAX INDEMNITY
(a) The Company shall (within three Business Days of demand by
the Agent) pay to a Protected Party an amount equal to the
loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party
with respect to payments received under a Finance
Document.
(b) Paragraph (a) above shall not apply with respect to any
Tax assessed on:
(i) a Finance Party:
1) under the law of the jurisdiction in
which that Finance Party is
incorporated or, if different, the
jurisdiction (or jurisdictions) in
which that Finance Party is treated
as resident for tax purposes; or
2) under the law of the jurisdiction in
which that Finance Party's Facility
Office is located in respect of
amounts received or receivable in
that jurisdiction,
if that Tax is imposed on or
calculated by reference to the net
income of that Finance Party; or
(ii) the Agent, as a result of the failure by a
Lender to satisfy on the due date of a payment
of interest either of the conditions set out in
paragraphs (a) and (b) of Clause 26.16
(Lenders' tax status confirmation);
(iii) a Finance Party if the Tax Deduction would not
have been subject to Clause 13.2(b) by virtue
of Clause 13.2(c);
(c) A Protected Party making, or intending to make a claim
pursuant to paragraph (a) above shall promptly notify the
Agent of the event which will give, or has given, rise to
the claim, following which the Agent shall notify the
Company.
(d) A Protected Party shall, on receiving a payment from an
Obligor under this Clause 13.3, notify the Agent.
13.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines in its sole discretion that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained
that Tax Credit;
the Finance Party shall pay an amount to the Obligor which that
Finance Party determines will leave it (after that payment) in the
same after-Tax position as it would have been in had the Tax Payment
not been made by the Obligor.
32
13.5 STAMP TAXES
The Company shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
13.6 VALUE ADDED TAX
(a) All consideration payable under a Finance Document by an
Obligor to a Finance Party shall be deemed to be exclusive
of any VAT. If VAT is chargeable, the Obligor shall pay to
the Finance Party (in addition to and at the same time as
paying the consideration) an amount equal to the amount of
the VAT;
(b) where a Finance Document requires an Obligor to reimburse a
Finance Party for any costs or expenses, that Obligor shall
also at the same time pay and indemnify that Finance Party
against all VAT incurred by that Finance Party in respect
of the costs or expenses save to the extent that that
Finance Party is entitled to repayment or credit in respect
of the VAT.
14 INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.3 (Exceptions) the Company shall,
within three Business Days of a demand by the Agent, pay
for the account of a Finance Party the amount of any
Increased Costs incurred by that Finance Party or any of
its Affiliates as a result of (i) the introduction of or
any change in (or in the interpretation or application of)
any law or regulation or (ii) compliance with any law or
regulation made after the date of this Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the
Facility or on a Finance Party's (or its
Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under
any Finance Document;
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing its
obligations under any Finance Document.
14.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to
Clause 14.1 (Increased costs) shall notify the Agent of the
event giving rise to the claim, following which the Agent
shall promptly notify the Company.
(b) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Increased Costs.
33
14.3 EXCEPTIONS
(a) Clause 14.1 (Increased costs) does not apply to the extent
any Increased Cost is:
(i) attributable to a Tax Deduction required by law
to be made by an Obligor;
(ii) compensated for by Clause 13.3 (Tax indemnity)
(or would have been compensated for under
Clause 13.3 (Tax indemnity) but was not so
compensated solely because one of the
exclusions in paragraph (b) of Clause 13.3 (Tax
indemnity) applied);
(iii) compensated for by the payment of the Mandatory
Cost; or
(iv) attributable to the wilful breach by the
relevant Finance Party or its Affiliates of any
law or regulation.
(b) In this Clause 14.3, a reference to a "TAX DEDUCTION" has
the same meaning given to the term in Clause 13.1
(Definitions).
15 OTHER INDEMNITIES
15.1 CURRENCY INDEMNITY
(a) If any sum due from an Obligor under the Finance Documents
(a "SUM"), or any order, judgment or award given or made
in relation to a Sum, has to be converted from the
currency (the "FIRST CURRENCY") in which that Sum is
payable into another currency (the "SECOND CURRENCY") for
the purpose of:
(i) making or filing a claim or proof against that
Obligor;
(ii) obtaining or enforcing an order, judgment or
award in relation to any litigation or
arbitration proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or as a
result of the conversion including any discrepancy between (A) the
rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents
in a currency or currency unit other than that in which it
is expressed to be payable.
15.2 OTHER INDEMNITIES
The Company shall (or shall procure that an Obligor will), within
three Business Days of demand, indemnify each Lender against any
cost, loss or liability incurred by that Lender as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a
Finance Document on its due date, including without
limitation, any cost, loss or liability arising as a result
of Clause 28 (Sharing among the Lenders);
34
(c) funding, or making arrangements to fund, its participation
in a Loan requested by a Borrower in a Utilisation Request
but not made by reason of the operation of any one or more
of the provisions of this Agreement (other than by reason
of default or negligence by that Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by a Borrower or the
Company.
15.3 INDEMNITY TO THE AGENT
The Company shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result
of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) entering into or performing any foreign exchange contract
for the purposes of Clause 6 (Optional Currencies); or
(c) acting or relying on any notice, request or instruction
which it reasonably believes to be genuine, correct and
appropriately authorised.
16 MITIGATION BY THE LENDERS
16.1 MITIGATION
(a) Each Finance Party shall, in consultation with the
Company, take all reasonable steps to mitigate any
circumstances which arise and which would result in any
amount becoming payable under, or cancelled pursuant to,
any of Clause 8.1 (Illegality), Clause 13 (Tax gross-up
and indemnities) or Clause 14 (Increased costs) including
(but not limited to) transferring its rights and
obligations under the Finance Documents to another
Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the
obligations of any Obligor under the Finance Documents.
16.2 LIMITATION OF LIABILITY
(a) The Company shall indemnify each Finance Party for all
costs and expenses reasonably incurred by that Finance
Party as a result of steps taken by it under Clause 16.1
(Mitigation).
(b) A Finance Party is not obliged to take any steps under
Clause 16.1 (Mitigation) if, in the opinion of that Finance
Party (acting reasonably), to do so might be prejudicial to
it.
17 COSTS AND EXPENSES
17.1 TRANSACTION EXPENSES
The Company shall promptly on demand pay the Agent and the Arranger
the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the
negotiation, preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of
this Agreement.
35
17.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 29.9 (Change of currency),
the Company shall, within three Business Days of demand, reimburse
the Agent for the amount of all costs and expenses (including legal
fees) reasonably incurred by the Agent in responding to, evaluating,
negotiating or complying with that request or requirement.
17.3 ENFORCEMENT COSTS
The Company shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
18 GUARANTEE
18.1 GUARANTEE AND INDEMNITY
(a) Each Guarantor irrevocably and unconditionally jointly and
severally:
(i) guarantees to each Finance Party punctual
performance by each Borrower of all that
Borrower's obligations under the Finance
Documents;
(ii) undertakes with each Finance Party that
whenever a Borrower does not pay any amount
when due under or in connection with any
Finance Document, that Guarantor shall
immediately on demand pay that amount as if it
was the principal obligor; and
(i) indemnifies each Finance Party immediately on
demand against any cost, loss or liability
suffered by that Finance Party if any
obligation guaranteed by it is or becomes
unenforceable, invalid or illegal. The amount
of the cost, loss or liability shall be equal
to the amount which that Finance Party would
otherwise have been entitled to recover.
(b) Notwithstanding Clause 18.1(a) and the other provisions of
this Clause 18 the obligations of Clintrials BioResearch
Limited under this Clause 18 shall be limited to the
maximum amount allowed by the financial and solvency tests
provided under Section 123.66 of the Companies Act
(Quebec).
18.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of sums payable by any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in
whole or in part.
18.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance
Party (whether in respect of the obligations of any Obligor or any
security for those obligations or otherwise) is avoided or reduced as
a result of insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the
payment, discharge, avoidance or reduction had not
occurred; and
36
(b) each Finance Party shall be entitled to recover the value
or amount of that security or payment from each Obligor,
as if the payment, discharge, avoidance or reduction had
not occurred.
18.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 18 will not be
affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations
under this Clause 18 (without limitation and whether or not known to
it or any Finance Party) including:
(a) any time, waiver or consent granted to, or composition
with, any Obligor or other person;
(b) the release of any other Obligor or any other person under
the terms of any composition or arrangement with any
creditor of any member of the Group;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of,
any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the
full value of any security;
(d) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of an Obligor or any other person;
(e) any amendment (however fundamental) or replacement of a
Finance Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security; or
(g) any insolvency or similar proceedings.
18.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from
any person before claiming from that Guarantor under this Clause 18.
This waiver applies irrespective of any law or any provision of a
Finance Document to the contrary.
18.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors
under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent
on its behalf) may:
(a) refrain from applying or enforcing any other moneys,
security or rights held or received by that Finance Party
(or any trustee or agent on its behalf) in respect of
those amounts, or apply and enforce the same in such
manner and order as it sees fit (whether against those
amounts or otherwise) and no Guarantor shall be entitled
to the benefit of the same; and
37
(b) hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any
Guarantor's liability under this Clause 18.
18.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors
under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Agent otherwise directs, no
Guarantor will exercise any rights which it may have by reason of
performance by it of its obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by
way of subrogation or otherwise) of any rights of the
Finance Parties under the Finance Documents or of any
other guarantee or security taken pursuant to, or in
connection with, the Finance Documents by any Finance
Party.
18.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other guarantee or security now or subsequently held by any
Finance Party.
19 REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 19 to each Finance Party on the date of this Agreement.
19.1 STATUS
(a) it is a corporation, duly incorporated and validly
existing under the law of its jurisdiction of
incorporation;
(b) it has the power to own its assets and carry on its
business as it is being conducted.
19.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance
Document are, subject to the Reservations, legal, valid, binding and
enforceable obligations.
19.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents (save as referred to in the
Canadian legal opinion) do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) the constitutional documents of any member of the Group;
or
(c) any material agreement or material instrument binding upon
it or any member of the Group or any of its or any member
of the Group's assets.
19.4 POWER AND AUTHORITY
38
It has the power to enter into, perform and deliver, and has taken
all necessary action to authorise its entry into, performance and
delivery of, the Finance Documents to which it is a party and the
transactions contemplated by those Finance Documents and no
limitation on its powers or those of its directors shall be exceeded
as a result of the drawdown of any Loan or utilisation of the
Facilities.
19.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or necessary:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to
which it is a party; and
(b) to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation;
have been obtained or effected and are in full force and effect.
19.6 GOVERNING LAW AND ENFORCEMENT
(a) The system of law expressed to be chosen as the governing
law in any Finance Document) will be recognised and enforced
in the jurisdiction of incorporation of the granter thereof;
and
(b) any judgment obtained in England in relation to a Finance
Document will be recognised and enforced in its jurisdiction
of incorporation, subject to Reservations and in respect of
any Group Company incorporated in Canada or Quebec subject
to usual public order qualifications and local procedural
requirement.
19.7 DEDUCTION OF TAX
It is not required under the law of its jurisdiction of incorporation
to make any deduction for or on account of Tax from any payment it
may make under any Finance Document provided that the Finance Party
complies with Clause 13.2.
19.8 NO FILING OR STAMP TAXES
Under the law of its jurisdiction of incorporation it is not
necessary that the Finance Documents be filed, recorded or enrolled
with any court or other authority in that jurisdiction or that any
stamp, registration or similar tax be paid on or in relation to the
Finance Documents or the transactions contemplated by the Finance
Documents.
19.9 NO DEFAULT
(a) No Event of Default has occurred or might reasonably be
expected to result from the making of any Utilisation; and
(b) no other event or circumstance is outstanding which
constitutes a default under any other agreement or
instrument which is binding on it or to which its assets
are subject which might have a Material Adverse Effect.
19.10 NO SECURITY
No Material Company has assets which are affected by any Security,
nor is any such company a party to, nor is it or any of its assets
bound by, any order, agreement or
39
instrument under which it is, or may be, required to create, assume
or permit to arise any Security, other than in each case any
Permitted Security Interest.
19.11 CORPORATE STRUCTURE
The corporate structure of the Group immediately following Completion
shall be as set out in Schedule 12.
19.12 NO BORROWINGS
No Group Company has any Financial Indebtedness save for Permitted
Financial Indebtedness;
19.13 REPORTS
All written information supplied by or on behalf of the Company and
by its respective agents and advisers in connection with this
Agreement and the preparation of the Reports was true, complete and
accurate in all material respects at the dates supplied.
19.14 TAXES
All necessary returns have been delivered by or on behalf of each
Material Company to the relevant taxation authorities and no such
member is in default in the payment of any Taxes taking into account
any grace periods and no claim is being asserted with respect to Tax
which is not disclosed in its latest published financial statements.
19.15 INTELLECTUAL PROPERTY RIGHTS
Each Material Company owns all necessary Intellectual Property Rights
and such information systems and equipment as are required by it in
order for it to carry on its business and no notification has been
received alleging infringement of any such rights which would have a
material and adverse effect on the business of such Material Company;
all such rights are free from Security Interests (other than the
Permitted Security Interests), are not subject to the rights of any
other party and so far as the Company is aware are not presently
being infringed by any person.
19.16 ENVIRONMENTAL
No Material Company has infringed, or received any claim in respect
of, any provision of Environmental Law or any Environmental Licence
which would or would be reasonably likely to have a Material Adverse
Effect.
19.17 ERISA
(a) As of the Completion, no Borrower, nor any Group Company,
nor any ERISA Affiliate maintains or contributes to, or
has any obligation under, any Employee Benefit Plans other
than those identified on Schedule 6.1(i) hereto;
(b) each Borrower, each Group Company and each ERISA Affiliate
is in material compliance with all applicable provisions
of ERISA and the regulations and published interpretations
thereunder with respect to all Employee Benefit Plans.
Each Employee Benefit Plan other than a Multiemployer Plan
that is intended to be qualified under Section 401(a) of
the Code has received a determination letter from the
Internal Revenue Service to the effect that such plan and
its related savings vehicle meet the requirements of
Sections 401(a) and 501(a) of the Code
40
or will apply for such a determination within the remedial
amendment period prescribed by Code Section 401(b). No
material liability has been incurred by any Borrower, any
Group Company or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any
Pension Plan or any Multiemployer Plan;
(c) except as otherwise disclosed to and agreed in writing by
the Agent prior to or as at the date hereof by reference
to this Clause, no accumulated funding deficiency (as
defined in Section 412 of the Code) has been incurred
(without regard to any waiver granted under Section 412 of
the Code), nor has any funding waiver from the Internal
Revenue Service been received or requested with respect to
any Pension Plan, nor has any Borrower, any Subsidiary or
any ERISA Affiliate failed to make any contributions or to
pay any amounts due and owing as required by Section 412
of the Code, Section 302 of ERISA or the terms of any
Pension Plan prior to the due dates of such contributions
under Section 412 of the Code or Section 302 of ERISA, nor
has there been any event requiring any disclosure under
Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to
any Pension Plan;
(d) No Borrower, Group Company or ERISA Affiliate has:
(i) except as would not have a Material Adverse
Effect, engaged in a nonexempt prohibited
transaction described in Section 406 of ERISA
or Section 4975 of the Code;
(ii) incurred any liability to the PBGC which
remains outstanding other than the payment of
premiums and there are no premium payments
which are due and unpaid;
(iii) failed to make a required contribution or
payment to a Multiemployer Plan; or
(iv) failed to make a required instalment or other
required payment under Section 412 of the Code;
(e) No Termination Event has occurred or is reasonably
expected to occur; and
(f) No proceeding, claim, lawsuit and/or investigation is
existing or, to the best knowledge of each Borrower and
each Group Company after due inquiry, threatened,
concerning or involving any:
(i) employee welfare benefit plan (as defined in
Section 3(1) of ERISA) currently maintained by
any Borrower; or
(ii) Pension Plan.
(g) No Multiemployer Plan or the trustees of such
Multiemployer Plan have made or threatened to make any
claim against the Borrower or any ERISA Affiliate, or
otherwise asserted that there is any current liability of
the Borrower or any ERISA Affiliate owed to such
Multiemployer Plan.
19.18 LICENCES
All licences, consents, exemptions, clearances, filings,
registrations, payments of duties or taxes, notarisations and
authorisations as are or may be necessary or desirable for the proper
41
conduct of its business, trade and ordinary activities and
for the performance and discharge of its obligations and
liabilities under each of the Finance Documents are in
full force and effect, where failure would be reasonably
likely to have a Material Adverse Effect.
19.19 FINANCIAL STATEMENTS
(a) The Original Financial Statements of the Group were
prepared in accordance with GAAP consistently applied.
(b) The Original Financial Statements of the Group present
fairly in all material respects its financial condition
and operations (consolidated in the case of the Company)
during the relevant financial year; and
(c) There has been no material adverse change in its business
or financial condition of the Group since the date to
which its most recent unaudited financial statements were
prepared.
19.20 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least
pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily
preferred by law applying to companies generally.
19.21 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which might reasonably be expected
to have a Material Adverse Effect have (to the best of its knowledge
and belief) been started or threatened against it or any Material
Company.
19.22 MARGIN STOCK
No Borrower or Group Company is engaged principally or as one of its
activities in the business of extending credit for the purpose of
purchasing or carrying any margin stock (as each such term is defined
or used in Regulation U of the Board of Governors of the Federal
Reserve System). No part of the proceeds of any of the Loans will be
used for purchasing or carrying margin stock or for any purpose which
violates, or which would be inconsistent with, the provisions of
Regulation T, U or X of such Board of Governors.
19.23 SOLVENCY
Excluding intercompany indebtedness, each Material Company
incorporated in any state of the USA is, and after receipt and
application of the first advance under this Agreement will be,
solvent such that:
(a) the fair value of its assets (including without limitation
the fair saleable value of the goodwill and other
intangible property of such Material Company) is greater
than the total amount of its liabilities, including
without limitation, contingent liabilities;
(b) the present fair saleable value of its assets (including
without limitation the fair saleable value of the goodwill
and other intangible property of such Material Company) is
not less than the amount that will be required to pay the
probable liability on their debts as they become absolute
and matured; and
42
(c) they are able to realise upon their assets and pay their
debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of
business. No Material Company intends to, nor believes
that it will, incur debts or liabilities beyond its
ability to pay as such debts and liabilities mature, and
no Material Company is engaged in a business or
transaction, or about to engage in a business or
transaction, for which its property would constitute
unreasonably small capital after giving due consideration
to the prevailing practice and industry in which it is
engaged. For purposes of this Clause, in computing the
amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the
amount which, in light of all the facts and circumstances
existing at such time, represents the amount that
reasonably can be expected to become an actual matured
liability of the applicable Material Company.
19.24 REPETITION
The Repeating Representations are deemed to be made by each Obligor
by reference to the facts and circumstances then existing on:
(a) the date of each Utilisation Request and the first day of
each Interest Period; and
(b) in the case of an Additional Obligor, the day on which the
company becomes (or it is proposed that the company
becomes) an Additional Obligor.
19.25 LISTING
Upon effectiveness of the IPO Registration Statement the common stock
registered pursuant to the IPO Registration Statement will be listed
for trading on either (a) a national securities exchange or (b) the
Nasdaq National Market.
20 INFORMATION UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
20.1 FINANCIAL INFORMATION
The Company undertakes to supply to the Agent (unless the Agent
acting on the instruction of the Lenders otherwise agrees) in
sufficient copies for the Lenders:
(a) as soon as they become available but in any event within
90 days after the end of each of its financial years its
audited consolidated financial statements for that
financial year together with a Compliance Certificate;
from the directors of the Company;
(b) as soon as they become available but in any event no later
than 45 days after the end of each successive Management
Accounting Period consolidated Group Management Accounts
for that Management Accounting Period, together with a
Compliance Certificate from the directors of the Company;
(c) as it becomes available but in any event not later than 90
days after the end of each financial year a certificate
from the financial director of the Company or (if the
Agent in the exercise of its sole discretion so
determines) Auditors addressed to the Agent and the
Lenders and in a form acceptable to the Agent certifying
(with
43
supporting calculations) the Company's compliance (or
otherwise) with the financial covenants in Clause 21;
(d) at each time financial statements are delivered pursuant
to Clause 20.1(a), a certificates of the Auditors (i)
certifying such financial statements and (ii) stating that
in making the examination necessary for the certification
of such financial statements, they obtained no knowledge
of any Default or Event of Default or if that is not the
case, specifying any such Default or Event of Default and
its nature and period of existence;
(e) promptly send such further information in its possession
regarding the financial condition and operation of the
Group as the Agent may reasonably request.
20.2 FINANCIAL STATEMENTS
The Company undertakes to ensure that all financial statements
contemplated by Clause 20.1(a) and (b) shall be prepared in
accordance with GAAP, consistently applied, and that all financial
statements contemplated by Clause 20.1(a) fairly represents in all
material respects the state of affairs of the Group as at the date of
the same.
20.3 INVESTIGATION
The Company hereby agrees that:
(a) following such period of discussion, if any, with the
finance director of the Company as the Agent in its sole
discretion deems appropriate, it will if so required by
the Agent who believes in good faith that either:
(i) any financial statements or calculations
provided by the Company are inaccurate or
incomplete in any material respect; or
(ii) the financial performance of the Group has or
would give rise to a breach of one or more of
the financial covenants in Clause 20.1,
at the expense of the Company (provided all such expenses are
estimated for the Company in advance and properly incurred) instruct
the Auditors or other firm of accountants of international repute
selected by the Company to discuss the financial position of the
Group with the Agent and to disclose to the Agent (and provide that
Agent with copies of) such information as the Agent may reasonably
request regarding the financial condition and business of the Company
and any of its Subsidiaries; and
(b) if, having taken the steps in 20.3(a) above, the Agent
acting in good faith continues to have concerns in
relation to the financial performance of the Group, the
accuracy of information provided by any member of the
Group or compliance with the financial covenants in Clause
21 or any other legitimate concern relating to the affairs
of the Group, the Agent may instruct the Auditors or other
firm of accountants selected by the Agent to carry out an
investigation at the Company's expense (provided all such
expenses are estimated for the Company in advance and
properly incurred) into the affairs of the Group and/or
the financial performance of the Group and/or the
accounting and other reporting procedures and standards of
the Group and the Company will procure that full
co-operation is given to the Auditors or other firm of
accountants so selected.
21 FINANCIAL COVENANTS
44
21.1 COVENANTS
The Company undertakes to and covenants with the Agent as follows:
21.1.1 The Company undertakes that the Group shall comply with the following
financial undertakings which will be calculated in accordance with
the provisions of this Clause 21.
21.1.2 Consolidated Net Tangible Assets of the Group shall not at the times
set out in Column A be less than the figure set out opposite such
times in Column B:
COLUMN A COLUMN B
$000
As at 31 December 2002 35,000
1st January 2003 to 30 December 2003 35,000
As at 31 December 2003 and thereafter in the period to 30 December 35,000 plus x
2003
As at 31 December 2003 and thereafter 35,000 plus x and y
where
x means a figure to be added at each Fiscal Year End being one half
of the after tax profits (if any) of the Group made during the
preceding Fiscal Year. For clarity no adjustment or reduction to the
figures quoted in the table shall be made in respect of losses
incurred; and
y means the aggregate of all previous amounts of x computed in
respect of previous Fiscal Years.
21.1.3 The ratio of Consolidated EBITDAR to Consolidated Borrowing Costs
plus Rents during each period set out in Column A below shall be not
less than the ratio set out in Column B opposite for that period:
COLUMN A COLUMN B
(PERIOD) (RATIO)
As at 31 December 2002 3:1
From 1 January 2003 until 31 March 2003 3.5:1
1 April 2003 to 31 December 2003 4:1
1 January 2004 and thereafter 5:1
21.1.4 The ratio of Consolidated Net Cashflow to Consolidated Debt Service
Liability during each period set out in Column A below shall not be
less than the ratio indicated in Column B opposite for that period:
COLUMN A COLUMN B
(PERIOD) (RATIO)
Date of first drawdown and thereafter in the period to 30 December 2.5:1
2004
45
As at 31 December 2004 and thereafter in the period to 30 September 2.25:1
2005
As at 1 October 2005 and thereafter 2.5:1
21.1.5 The ratio of Consolidated Gross Borrowings less Credit Balances to
EBITDA during each period set out in Column A below shall be not more
than the ratio indicated in Column B opposite for that period:
COLUMN A COLUMN B
(PERIOD) (RATIO)
Date of first drawdown to 31 December 2002 until the period ending 2:1
31 December 2003
1st January 2004 to 31 December 2004 1.8:1
1st January 2005 and thereafter 1.6:1
21.1.6 The financial covenants set out above shall be tested as follows:
(a) the financial covenant in Clauses 21.1.2 shall apply daily
and be tested on a quarterly basis, the first test being 31
December 2002 and each subsequent test being three monthly
thereafter;
(b) the financial covenants in Clauses 21.1.3 and 21.1.4 shall
be tested on a quarterly basis, the first test being 31
December 2002 and each subsequent test being three monthly
thereafter. The test at 31 December 2002 shall apply in
respect of the preceding 6 month period and the test at 31
March 2003 shall apply in respect of the preceding 9 month
period. Thereafter each of these covenants shall be tested
in respect of the 12 month period preceding the relevant
test date; and
(c) the financial covenant in Clause 21.1.5 shall be tested on
a quarterly basis the first test being 31 December 2003 and
each subsequent test being three monthly thereafter. The
covenant shall be tested in respect of the 12 month period
preceding the relevant test date.
21.1.7 All financial covenants shall be tested by reference to the latest
audited financial statements of the Group or, if more recent, by
reference to the latest aggregated Management Accounts of the Group
provided that where any financial covenant is tested by reference to
year end Management Accounts it shall be tested again by reference to
the audited financial statements of the Group for the relevant period
when those audited financial statements become available.
21.1.8 A Compliance Certificate shall be signed and delivered to the Agent
immediately following each of the test dates referred to in Clause
21.1.6.
21.1.9 In the event that the Company is in default or breach of any of the
financial covenants contained in this Clause 21.1, the Agent shall be
entitled to make such investigations and obtain such legal,
accountancy and/or valuation reports as it shall deem appropriate at
the cost of the company and the Borrower and each Group Company shall
provide all assistance required in connection with such
investigations and reports.
46
21.1.10 The calculation of the financial covenants detailed in Clause 21.1
shall be carried out by the Agent in accordance with the accounting
principles and policies applied in the most recent audited financial
statements and/or Management Accounts to which it is referring.
21.1.11 If the Company changes the accounting policies applied, whether as a
result of a change in GAAP or otherwise, in a way that the Agent
considers may adversely affect the interests of the Lenders in
respect of the financial covenants detailed in this Clause 21.1 the
Agent shall be entitled to recalculate such covenants (following
discussion, with the finance director of the Company for such period
as the Agent in its sole discretion considers appropriate in the
circumstances) as if such changes had not taken place. If there is a
change in GAAP which the Company believes adversely affects its
interests in respect of the financial covenants in this Clause 0 the
Agent and the Company shall negotiate in good faith any revision to
the financial covenants as may be necessary as if such changes in
GAAP had not occurred, but the existing covenants shall continue in
full force until such change is agreed.
21.1.12 If there is any dispute as to any computation under Clause 21.1.7 or
Clause 21.1.9 or as to the interpretation of any of the relevant
definitions set out herein, the decision of the Agent (acting on the
instructions of the Lenders) shall, in the absence of manifest error
be conclusive and binding on each Borrower.
21.1.13 For the purposes of this Agreement and this Clause 21.1 in
particular, the following expressions shall have the following
meanings (unless the context otherwise requires):
"CONSOLIDATED BORROWING COSTS" means, in relation to any accounting
period of the Group, the aggregate of all interest, commission, fees,
and charges payable by the Group in respect of its Consolidated Gross
Borrowings during such period including without limitation:
(a) capitalised interest;
(b) finance lease charges; and
(c) dividends on shares issued on the basis that they are or
may become redeemable;
but excluding interest payable by associates and joint ventures and
net of interest receivable by the Group in the relevant period
"CONSOLIDATED BORROWING COSTS PAID" means, in relation to any
accounting period of the Group, the aggregate of all interest,
commission, fees, and charges paid and due to be paid by the Group in
respect of its Consolidated Gross Borrowings during such period
including without limitation:
(a) capitalised interest;
(b) Finance Lease charges; and
(c) dividends on shares issued on the basis that they are or
may become redeemable,
but excluding interest paid by associates and joint ventures and net
of interest received by the Group in the relevant period
"CONSOLIDATED DEBT SERVICE LIABILITY" means in relation to any
accounting period of the Group, the aggregate of Consolidated
Borrowing Costs Paid and all repayment on Consolidated Gross
Borrowings scheduled to be made during the period but excluding
payments and repayment of the Existing Inveresk Facilities, permitted
prepayments of
47
Facility A, payment of interest under and repayment of the Candover
Loan and any repayment of Facility B;
"CONSOLIDATED GROSS BORROWINGS" means at any time the aggregate of
all obligations of the Group for the repayment of money, whether
present or future, actual or contingent incurred in respect of:
(i) money borrowed from all sources;
(ii) any bonds, notes, loan stock, debentures or similar
instruments;
(iii) acceptance credits, bills of exchange or documentary
credits;
(iv) gross obligations under Finance Leases;
(v) the factoring of debts;
(vi) guarantees, indemnities or other legally binding assurances
against financial loss; and
(vii) amounts raised or obligations incurred in respect of any
other transaction which has the commercial effect of
borrowing
"CONSOLIDATED NET CASH FLOW" means in relation to any accounting
period of the Group, Consolidated PBIT for that period, plus:
(i) any decrease in Consolidated Net Working Capital during the
period;
(ii) (to the extent deducted) any loss on the sale of tangible
fixed assets;
(iii) (to the extent deducted) any loss on the sale of
investments;
(iv) (to the extent deducted) any increase in provisions not
having a cash effect;
(v) (to the extent deducted) depreciation;
(vi) (to the extent deducted) exceptional/extraordinary charges
not having a cash effect (not already dealt with under
(ii), (iii), (iv) or (v) above); and
(vii) Credit Balances
and less:
(viii) any increase in Consolidated Net Working Capital during the
period;
(ix) (to the extent included) any profit on the sale of tangible
fixed assets;
(x) (to the extent included) any profit on the sale of
investments;
(xi) (to the extent included) any release of provisions;
(xii) (to the extent included) exceptional/extraordinary income
not having a cash effect (not dealt with under (viii),
(ix), or (x) above);
(xiii) tax paid; and
48
(xiv) Dividends paid
"CONSOLIDATED NET TANGIBLE ASSETS" means at any time the aggregate of
the amount paid up or credited as paid up on the issued share capital
of the Borrower plus or minus (a) any amount standing to the credit
or debit of the consolidated capital and revenue reserves of the
Group (including any share premium account or capital redemption
reserve) and (b) any credit or debit balance on the consolidated
profit and loss account of the Group (excluding for the avoidance of
doubt any amount attributable to minority interests), less the
aggregate of any amounts attributable to:
(i) pension fund prepayments (net of related deferred tax
provisions), capitalised goodwill or any other intangible
assets;
(ii) shares issued on the basis that they are or may become
redeemable (at redemption value);
(iii) advance corporation tax recoverable or to the extent they
exceed deferred tax liabilities deferred tax assets; and
(iv) the upward revaluation of any asset after 19th June 2002
except to the extent that such revaluation is approved in
writing for the purposes of this definition by the Agent.
"CONSOLIDATED NET WORKING CAPITAL" means in relation to any
accounting period of the Group current assets (excluding:
(i) cash at bank and in hand;
(ii) debtors due more than one year after the end of the
accounting period;
(iii) income tax assets; and
(iv) deferred tax assets)
less current liabilities (excluding:
(v) obligations to pay money in respect of Consolidated Gross
Borrowings (a) on demand, or (b) within one year after the
end of the accounting period;
(vi) Dividends payable; and
(vii) income tax payable)
"CONSOLIDATED PBIT" means, in relation to any accounting period of
the Group, the profit/loss of the Group on ordinary activities before
tax and after exceptional items but after adding back:
(i) Consolidated Borrowing Costs (net of capitalised interest
and dividends on redeemable shares);
(ii) amortisation of goodwill and other intangible assets;
(iii) interest payable by associates and joint ventures;
(iv) the Group's share of operating losses arising in associates
and joint ventures; and
49
(v) the Group's share of exceptional losses arising in
associates and joint ventures;
and after deducting:
(vi) the Group's share of operating profits arising in
associates and joint ventures;
(vii) interest receivable by associates and joint ventures;
(viii) the Group's share of exceptional gains arising in
associates and joint ventures;
(ix) interest receivable and other similar income; and
(x) income from fixed asset investments
"CONSOLIDATED EBITDA" means, in relation to any accounting period of
the Group, the profit/loss of the Group on ordinary activities before
tax and after exceptional items but after adding back:
(i) amortisation of goodwill and other intangible assets;
(ii) depreciation;
(iii) losses on fixed asset disposals;
(iv) exceptional losses of the Group (including for the
avoidance of doubt all compensation charges in respect of
share options and in respect of changes in the relative
equity ownership of certain employees of the Group as
referred to in the IPO prospectus);
(v) Consolidated Borrowing Costs (net of capitalised interest
and dividends on redeemable shares);
(vi) interest payable by associates and joint ventures;
(vii) the Group's share of operating losses arising in associates
and joint ventures; and
(viii) the Group's share of exceptional losses arising in
associates and joint ventures
and after deducting:
(ix) interest receivable and other similar income;
(x) income from fixed asset investments;
(xi) gains on fixed asset disposals;
(xii) exceptional gains of the Group;
(xiii) interest receivable by associates and joint ventures;
(xiv) the Group's share of operating profits arising in
associates and joint ventures; and
(xv) the Group's share of exceptional profits arising in
associates and joint ventures.
provided that no amount included, added or deducted shall be taken
into account more than once in calculating Consolidated EBITDA.
50
"CONSOLIDATED EBITDAR" means, in relation to any accounting period of
the Group, the profit/loss of the Group on ordinary activities before
tax and after exceptional items but after adding back:
(i) amortisation of goodwill and other intangible assets;
(ii) depreciation;
(iii) losses on fixed asset disposals;
(iv) exceptional losses of the Group (including for the
avoidance of doubt all compensation charges in respect of
share options and in respect of changes in the relative
equity ownership of certain employees of the Group as
referred to in the IPO prospectus);
(v) Consolidated Borrowing Costs (net of capitalised interest
and dividends on redeemable shares);
(vi) interest payable by associates and joint ventures;
(vii) the Group's share of operating losses arising in associates
and joint ventures;
(viii) the Group's share of exceptional losses arising in
associates and joint ventures; and
(ix) Rents
and after deducting:
(x) interest receivable and other similar income;
(xi) income from fixed asset investments;
(xii) gains on fixed asset disposals;
(xiii) exceptional gains of the Group;
(xiv) interest receivable by associates and joint ventures;
(xv) the Group's share of operating profits arising in
associates and joint ventures; and
(xvi) the Group's share of exceptional profits arising in
associates and joint ventures.
provided that no amount included, added or deducted shall be taken
into account more than once in calculating Consolidated EBITDAR.
"CREDIT BALANCES" means cash balances of the Group held by any Lender
or Approved Financier.
"DIVIDENDS" means, in relation to any accounting period of the Group,
all dividends on the Company's Common and Preferred stock:
"RENTS" means for any relevant period all rental payments on
operational or Finance Leases during such period, net of rental
income.
22 GENERAL UNDERTAKINGS
51
The undertakings in this Clause 22 remain in force from the Drawdown
Date for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
22.1 POSITIVE UNDERTAKINGS
22.1.1 Use of Facilities
The Company shall use and shall procure that the other Borrowers
shall use the Facilities only for the relevant Specified Purposes.
22.1.2 Notification of defaults etc
The Company undertakes to notify the Lender of:
(a) any Default or Event of Default immediately upon becoming
aware of its occurrence;
(b) any litigation, arbitration or administrative proceedings
or claims in which any Material Company is concerned or to
which it is a party involving a sum in excess of $250,000
immediately upon becoming aware that it is so concerned or
on becoming a party;
(c) any Security (other than a Permitted Security Interest)
attaching to any of the assets of any Material Company; and
(d) any company becoming or ceasing to be a Material Company.
22.1.3 The Company undertakes to the Agent and the other Finance Parties
that it shall, and it shall procure that each Material Company shall,
save with the prior written consent of the Agent:
(a) Insurances: effect and maintain such insurance over its
assets and business in such manner and to such extent as is
reasonable and customary for a business engaged in the same
or a similar activity and the same or similar localities to
it (subject always to the terms of any Security Document)
and shall maintain such policies of insurance in full force
and effect and comply with all its obligations relating
thereto;
(b) Banking: maintain and continue to maintain its current
accounts, exchange, interest hedging and electronic and
transmission banking business with the Approved Financiers;
(c) Tax: pay and discharge all Taxes and governmental charges
payable by or assessed upon it prior to the date on which
the same become overdue or before any material penalty is
incurred, unless and to the extent that such Taxes shall be
contested in good faith by appropriate proceedings, pending
determination of which payment may be lawfully withheld,
and there shall be set aside adequate reserves with respect
to such Taxes or charges so contested in accordance with
GAAP;
(d) Security: procure each Material Company shall grant Full
Group Security and in such form as the Security Trustee for
the Agents and the Lenders, may reasonably specify and
shall take all such steps, sign all such documents in
relation to such security and give all such assurances as
may be necessary to protect such security and ensure
compliance with its obligations thereunder;
52
(e) Licences: at all times have and keep in force all licences,
consents, permits and authorisations required:
(i) for the conduct of its business, trade and
ordinary activities generally where failure to
comply or failure to obtain and maintain, as the
case may be, is reasonably likely to have a
Material Adverse Effect; and
(ii) to enable it to perform its obligations under
the Finance Documents; and
(iii) will upon request provide to the Agent a copy of
such licences, consents, permits and
authorisations, and will operate its business in
accordance with all applicable rules,
regulations and codes of good practice;
(f) Transactions with Non-Material Companies: ensure that all
transactions with non-Material Companies (other than the
provision of Permitted Financial Indebtedness) whether or
not otherwise permitted hereunder are on arms length
commercial terms;
(g) Environmental Compliance: do all things necessary lawfully
to comply with and to ensure compliance by all of its and
their officers, employees and other persons with all
Environmental Laws and Environmental Licences in all
material respects and promptly on:
(i) receipt of any communication alleging a breach
of Environmental Laws and/or Environmental
Licences; and/or
(ii) becoming aware of any such breach or any claim
relating to Environmental Laws and/or
Environmental Licences or to any such breach;
(in either case likely to result in a liability in excess of
$250,000) notify the Agent of that event and of the steps it is
taking (and hereby agrees to take) to prevent, remove or mitigate
that event;
(h) Environmental Indemnity: indemnify the Finance Parties,
any receiver appointed by the Security Trustee and their
respective officers, employees and agents against all
costs and reasonable expenses suffered or incurred by them
(save in the case of such party's own gross negligence or
wilful default) which arise as a result of:
(i) any actual or threatened breach of Environmental
Law by it;
(ii) any actual or threatened release or exposure to
a Dangerous Substance on, at or from the
premises or operations of any member of the
Group; or
(iii) any actual or threatened claim referred to in
(h) above;
(i) Maintain Intellectual Property: preserve its Intellectual
Property Rights and observe all covenants and stipulations
affecting them where any failure to do so is likely or
reasonably likely to have a Material Adverse Effect;
(j) Dormant Companies: unless the terms of Clause 22.1.3(k)
are complied with, procure that none of the companies
listed in Part 2 of Schedule 13 ceases to be a Dormant
Company, other than as a result of a liquidation of any
such company which would not be an Event of Default, and do
not acquire any assets which would make them a Material
Company and do not assume any liabilities;
53
(k) Non-material Companies: procure that any member of the
Group which becomes a Material Company shall within 20
Business Days thereafter become an Obligor hereunder and
grant Full Group Security;
(l) Hedging: within a reasonable period following first
drawdown hereunder and at all times thereafter enter into
such arrangements as the Agent and the Company may agree
are to be required in order to hedge against the Group's
exposure to fluctuation of interest rates. All such
arrangements with the Hedging Counterparty shall
constitute obligations secured by the Full Group Security;
(m) Compliance with laws: comply in all respects with all laws
to which it may be subject, if failure to do so would have
a Material Adverse Effect;
(n) ERISA:
(i) comply in all material respects with all
applicable provisions of ERISA and the
regulations and published interpretations
thereunder with respect to all Employee Benefit
Plans;
(ii) not take any action or fail to take action the
result of which would reasonably be expected to
be a material liability to the PBGC or to a
Multiemployer Plan (other than to pay premiums
or make contributions in the ordinary course);
(iii) not participate in any non-exempt prohibited
transaction that would result in any material
penalty under ERISA or tax under the Code;
(iv) furnish to the Administrative Agent upon the
Administrative Agent's request such additional
information about any Pension Plan as may be
reasonably requested by the Administrative
Agent.
(o) Reports: provide the Agent annually with an Insurance
Report;
22.2 NEGATIVE UNDERTAKINGS
22.2.1 The Company undertakes it shall not, and it shall procure that, save
with the prior written consent of the Agent, none of the Material
Companies will:
(a) Negative Pledge: create or permit to subsist (with the
exception of any Permitted Security Interest) any Security
on the whole or any part of its present or future assets,
property or revenue;
(b) Financial Indebtedness: incur or permit to subsist any
Financial Indebtedness other than Permitted Financial
Indebtedness;
(c) Loans: make any loans or grant any credit to or for the
benefit of any person other than:
(i) amounts of credit allowed by the relevant
Material Company in the normal course of its
trading activities; or
(ii) loans made by one Obligor to another Obligor; or
(iii) loans made by a Group Company which is not an
Obligor to another such Group Company; or
54
(iv) loans made by a Group Company to its employees
where such loans do not, when aggregated with
all such loans made by all Group Companies,
exceed $250,000 at any time; or
(v) any loan which constitutes Permitted Financial
Indebtedness
(d) Change of Business: make or threaten to make any material
change in the nature or scope of its business except to the
extent that the nature of such business is one presently
conducted or is ancillary to one conducted by another
Material Company but provided that the overall nature of
the Group's business shall not materially change from that
as presently conducted;
(e) Disposals: (whether by a single transaction or a member of
related or unrelated transactions and whether at the same
time or over a period of time) sell, transfer, lease or
otherwise dispose of or cease to exercise direct control
over all or any part of its undertaking, assets or revenues
or any interest thereon or the right to receive or be paid
the same or agree or attempt to do so, save that this
restriction shall not apply to any Permitted Disposal;
(f) Acquisitions: utilise Facility B, directly or indirectly to
acquire or make any investment in (regardless of the source
of proceeds) any companies, joint ventures or partnerships
or to acquire any businesses (or interests therein), unless
each of the following three conditions is met namely
(first) no Default or Event of Default has occurred and is
continuing, and such acquisition will not cause a Default
or Event of Default; (second) the part of the consideration
in relation to such transaction financed other than by the
issue of shares by the Company is less than $25,000,000,
and (third) the consent of stockholders is not required
pursuant to the rules of (a) the jurisdiction in which the
Company is incorporated or (b) the national securities
exchange on which the common stock of the Company is listed
or the Nasdaq National Market, as the case may be;
(g) Constitutional Documents: amend or consent to the amendment
of any provision of its memorandum or articles of
association or equivalent constitutional documents in any
way which is adverse to the interests of any Finance Party
under the Finance Documents;
(h) Merger: merge or consolidate with any other person other
than an Obligor (unless pursuant to a reconstruction or
amalgamation previously approved in writing by the Agent or
pursuant to a merger under an acquisition permitted under
paragraph (f) above provided the lenders' security
interests are not adversely affected thereby);
(i) Redemptions: redeem, purchase or otherwise acquire for
consideration any shares or warrants issued by it or set
apart any sum for any such purpose or otherwise reduce its
capital in each case for a total aggregate consideration in
respect of all such transactions of more than $2,500,000;
(j) Accounting Policies: it will not adopt any accounting
policy or change the consistency of application of its
accounting principles from the Appropriate Accounting
Principles unless:
(i) the revised policy and practice adopted from
time to time is in accordance with GAAP; and
55
(ii) provided that prior to any revised policy and
practice being adopted the Company will notify
the Agent thereof and, if required by the Agent,
will negotiate in good faith with the Agent in
order that the financial covenants set out in
Clause 21 may be amended as required by the
Agent acting reasonably in order for the Finance
Parties to be able to make the same judgements
as to the financial performance of the Group as
they are able to under the present accounting
policy provided that if such negotiations are
not concluded to the satisfaction of the Agent
within a period of 30 days from the commencement
of such negotiations the Company agrees that it
will provide either financial statements on the
same basis as before or provide financial
statements containing a statement reconciling
the previous and the then current accounting
policy in order that the Finance Parties may
determine the financial condition of the Group
having regard to the terms of this Agreement;
(k) Fiscal Year: change its fiscal year end from a twelve month
period ending on 31 December (or permit any of its
Subsidiaries to do so) or change its Auditors except to
another firm of international repute and provided that such
new Auditors have satisfied the Agent that they would be
able to and would provide the information and documentation
required of the Auditors under this Agreement;
(l) Tax residence: change its place of residence for tax
purposes;
(m) Dividends: declare or pay, directly or indirectly, any
Dividends other than in favour of an other Obligor which is
a wholly owned Subsidiary of the Company;
(n) Bank Accounts: open or maintain any account for banking
purposes other than with a Lender or an Approved Financier;
(o) Amendments to Documents: amend or waive any provisions of
the Articles which have, or would be likely to have, an
adverse effect on the interests of any Finance Party under
the Finance Documents;
(p) Hedging: enter into any arrangements for the hedging of its
exposure to floating interest rates other than in terms of
the Hedging Agreements;
(q) Payment of Indebtedness: repay, prepay or otherwise satisfy
any indebtedness owed by it to any member of the Group
other than an Obligor if the aggregate of all such
repayments and the like would exceed $250,000;
23 EVENTS OF DEFAULT
23.1 NON-PAYMENT
An Obligor fails to pay any amount of principal or interest payable
by it under a Finance Document at the place and in the currency and
funds in which it is expected to be payable on demand, if so payable,
or on its due date or if such non-payment is caused by any technical
malfunction in the banking system (as the same may be determined by
the Agent or Lenders) within 3 Business Days after such demand or due
date or fails to pay any other such amount within 3 Business Days of
its due date; or
23.2 CERTAIN OBLIGATIONS
If an Obligor fails to comply with any of the provisions of Clauses
21, and 22.2.1(a), (b), (c), (i), (l) or (m) of this Agreement; or
56
23.3 OTHER OBLIGATIONS
An Obligor fails to comply with any of the covenants or undertakings
under any Finance Document (other than the obligations referred to in
Clauses 23.1 and 23.2) and, if that breach is capable of remedy it is
not remedied within ten Business Days after notice of that breach has
been given by the Agent to the Company; or
23.4 MISREPRESENTATION
Any representation or warranty or statement by any Obligor in any
Finance Document or in any notice or other document, certificate or
statement delivered pursuant thereto or in connection therewith or
repeated at any time in accordance with the terms thereof is or
proves to have been incorrect in any material respect when made or
when deemed to be repeated; or
23.5 CROSS DEFAULT
Any Material Company defaults in the performance of any other
agreement in respect of or relating to Financial Indebtedness in
excess of, in aggregate $300,000, so as to accelerate or render
capable of acceleration the due date of payment or repayment
thereunder or any such Financial Indebtedness is not repaid or paid
in full on the due date or repayment of any such Financial
Indebtedness is due on demand and is not paid in full forthwith on
such demand being made or any undrawn facilities in excess of such
amount (when aggregated with any other such amounts) are withdrawn by
any creditor by reason of default or financial difficulties on the
part of such Material Company; or
23.6 INABILITY TO PAY DEBTS
Any Material Company is unable or admits its inability to pay its
debts or otherwise suspends making payments to all or any class of
its respective creditors or announces an intention to do so or begins
negotiations with any creditor with a view to the general
readjustment or rescheduling of all or any class of its Financial
Indebtedness or proposes or enters into any composition or other
arrangement for the benefits of its creditors generally or any class
of creditors; or
23.7 LEGAL PROCESS
Any distress, execution, arrestment, attachment, inhibition or other
diligence or legal process affects any asset of any Material Company
in respect of a liability in excess of $250,000 (or its equivalent),
other than any such distress, execution, arrestment, attachment,
inhibition or other diligence or legal process which is contested in
good faith and is fully discharged within 14 Business Days (or in
respect of such proceedings arising in the USA 45 days); or
23.8 INSOLVENCY PROCEEDINGS
Any person takes any action or any legal proceedings are started or
other steps taken (including the presentation of a petition but
excluding any vexatious actions or proceedings or ones being disputed
in good faith on the basis of all appropriate legal advice and which
are discharged within 21 days of commencement) for:
(a) any Group Company to be adjudicated or found insolvent;
(b) the winding up or dissolution of any Group Company other
than:
57
(i) for the purpose of a solvent reconstruction or
amalgamation the terms of which have previously
been approved by the Agent in writing; or
(ii) a winding up petition which is proved to the
satisfaction of the Agent acting reasonably to
be frivolous or vexatious and which is
discharged within 21 days of its presentation
and before it is advertised; or
In the event that any of the foregoing or an event described in
paragraph (c) below occurs in respect of a Group Company that is not
a Material Company the Company shall be entitled to make
representation to the Agent explaining the circumstances giving rise
to such events. The Agent shall not be under any obligation to waive
the Event of Default otherwise occurring nor to delay or avoid taking
any action pursuant thereto whether or not such representations have
been or may be made.
(c) the appointment of a trustee, receiver, administrative
receiver or similar office in respect of any Group Company
or any of its assets.
23.9 ADMINISTRATION
An application is made to the court for an administration order under
the Insolvency Xxx 0000 against any member of the Group; or
23.10 REPOSSESSION OF GOODS
Any other creditor(s) repossess any goods in the possession of any
Material Company under any hire purchase, conditional sale, leasing,
retention of title or similar agreement and such steps have a
Material Adverse Effect on the business assets or financial condition
of any Material Company; or
23.11 ANALOGOUS PROCEEDINGS
Any condition, event or action is taken, occurs or exists under the
laws of any other country or political subdivision thereof, to the
jurisdiction of which any member of the Group or its respective
assets or revenues is subject, which has a substantially equivalent
effect to any of the conditions, events or acts mentioned in Clause
23.6 to 23.10 (inclusive); or
23.12 DE-LISTING
After the date of this Agreement the Company ceases to be listed on
The Nasdaq National Market; or
23.13 LITIGATION
Any Material Company becomes subject to any litigation, arbitration
or administrative, proceeding which in the reasonable opinion of the
Agent (having regard to the circumstances of such litigation,
arbitration or administrative proceeding and to any legal opinion or
advice taken by the Agent or provided to the Agent by the Company) is
likely to be adversely determined and, if adversely determined, would
have a Material Adverse Effect; or
23.14 SUBSIDIARIES
Any Obligor (other than the Company) ceases to be a wholly owned
Subsidiary of the Company on or after the first drawdown date save as
permitted by this Agreement or with the prior written consent of the
Agent; or
58
23.15 INVALIDITY
Any provision of this Agreement or the Security Documents which the
Agent (acting reasonably) considers material is, or becomes for any
reason, invalid or unenforceable; or
23.16 CHANGE IN NATURE OF BUSINESS
Any Obligor makes or threatens to make any material change in the
nature or scope of its business (except to the extent that the nature
of such business is one presently conducted (or is ancillary to that
conducted) by another Material Company but provided that the overall
nature of the Groups business is not materially changed from that a
presently concluded); or suspends, leases or threatens to suspend all
or a substantial part of its present business and operations which it
now conducts directly or indirectly; or
23.17 GOVERNMENT ACTION
Any governmental authority expropriates or threatens to expropriate
or nationalise all or a significant part of its assets and the result
of any of the foregoing will, in the opinion of the Finance Parties
have a Material Adverse Effect; or
23.18 LICENCES
Any authorisation, approval, consent, licence, exemption, filing,
registration or notarisation or other requirement necessary to enable
any Obligor to perform its material obligations under any Finance
Document to which it is a party is modified, revoked or withheld or
does not remain in full force and effect and the same has a Material
Adverse Effect; or
23.19 QUALIFIED ACCOUNTS
The Auditors qualify their report to any audited financial statements
of the Group in any way which is (in the reasonable opinion of the
Agent) material in the context of the Facilities; or
23.20 ERISA TERMINATION EVENT
The occurrence of any of the following events if it has or in the
reasonable opinion of the Agent would have a Material Adverse Effect:
23.20.1 any Borrower, any Group Company or any ERISA Affiliate fails to make
full payment when due of all amounts which, under the provisions of
any Pension Plan or Section 412 of the Code, such Borrower,
Subsidiary or ERISA Affiliate is required to pay as contributions
thereto;
23.20.2 an accumulated funding deficiency in excess of $250,000 occurs or
exists, whether or not waived, with respect to any Pension Plan;
23.20.3 a Termination Event; or
23.20.4 any Borrower, any Group Company or any ERISA Affiliate as employers
under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of
such Multiemployer Plans notifies such withdrawing employer that such
employer has incurred a withdrawal liability requiring payments in an
amount exceeding $250,000.
59
23.21 MATERIAL ADVERSE EFFECT
Any adverse change in the business, prospects of financial condition
of an Obligor occurs which, in the reasonable opinion of the Lenders
has or is likely to have a Material Adverse Effect.
23.22 ACCELERATION
On and at any time after the occurrence of an Event of Default which
is continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Company:
(a) cancel the Total Commitments whereupon they shall
immediately be cancelled;
(b) declare that all or part of the Loans, together with
accrued interest, and all other amounts accrued under the
Finance Documents be immediately due and payable, whereupon
they shall become immediately due and payable;
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand
by the Agent on the instructions of the Majority Lenders.
24 CHANGES TO THE LENDERS
24.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 24, a Lender (the "EXISTING LENDER") may at
any time:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations
to another bank or financial institution (the "NEW LENDER").
24.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Company is required for an assignment or
transfer by a Lender, unless the assignment or transfer is
to another Lender or an Affiliate of a Lender.
(b) The consent of the Company to an assignment to transfer
must not be unreasonably withheld or delayed. The Company
will be deemed to have given its consent five Business Days
after the Lender has requested it unless consent is
expressly refused by the Company within that time.
(c) The consent of the Company to an assignment or transfer
must not be withheld solely because the assignment or
transfer may result in an increase to the Mandatory Cost.
(d) An assignment will only be effective on receipt by the
Agent of written confirmation from the New Lender (in form
and substance satisfactory to the Agent) that the New
Lender will assume the same obligations to the other
Finance Parties as it would have been under if it was an
Original Lender.
(e) A transfer will only be effective if the procedure set out
in Clause 24.5 (Procedure for transfer) is complied with.
(f) If:
60
(i) a Lender assigns or transfers any of its rights
or obligations under the Finance Documents or
changes its Facility Office; and
(ii) as a result of circumstances existing at the
date the assignment, transfer or change occurs,
an Obligor would be obliged to make a payment to
the New Lender or Lender acting through its new
Facility Office under Clause 3 (Tax gross-up and
indemnities) or Clause 4 (Increased Costs);
then the New Lender or Lender acting through its new Facility Office
is only entitled to receive payment under those Clauses to the same
extent as the Existing Lender or Lender acting through its previous
Facility Office would have been if the assignment, transfer or change
had not occurred.
24.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or
transfer takes effect, pay to the Agent (for its own account) such
fee as may be agreed.
24.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy
or enforceability of the Finance Documents or
any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of
its obligations under the Finance Documents or
any other documents; or
(iv) the accuracy of any statements (whether written
or oral) made in or in connection with any
Finance Document or any other document;
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the
other Finance Parties that it:
(i) has made (and shall continue to make) its own
independent investigation and assessment of the
financial condition and affairs of each Obligor
and its related entities in connection with its
participation in this Agreement and has not
relied exclusively on any information provided
to it by the Existing Lender in connection with
any Finance Document; and
(ii) will continue to make its own independent
appraisal of the creditworthiness of each
Obligor and its related entities whilst any
amount is or may be outstanding under the
Finance Documents or any Commitment is in force;
(c) Nothing in any Finance Document obliges an Existing Lender
to:
(i) accept a re-transfer from a New Lender of any of
the rights and obligations assigned or
transferred under this Clause 24; or
61
(ii) support any losses directly or indirectly
incurred by the New Lender by reason of the
non-performance by any Obligor of its
obligations under the Finance Documents or
otherwise.
24.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 24.2
(Conditions of assignment or transfer) a transfer is
effected in accordance with paragraph (b) below when the
Agent executes an otherwise duly completed Transfer
Certificate delivered to it by the Existing Lender and the
New Lender. The Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed
Transfer Certificate appearing on its face to comply with
the terms of this Agreement and delivered in accordance
with the terms of this Agreement, execute that Transfer
Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate
the Existing Lender seeks to transfer by
novation its rights and obligations under the
Finance Documents each of the Obligors and the
Existing Lender shall be released from further
obligations towards one another under the
Finance Documents and their respective rights
against one another shall be cancelled (being
the "DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) each of the Obligors and the New Lender shall
assume obligations towards one another and/or
acquire rights against one another which differ
from the Discharged Rights and Obligations only
insofar as that Obligor and the New Lender have
assumed and/or acquired the same in place of
that Obligor and the Existing Lender;
(iii) the Agent, the Arranger, the New Lender and
other Lenders shall acquire the same rights and
assume the same obligations between themselves
as they would have acquired and assumed had the
New Lender been an Original Lender with the
rights and/or obligations acquired or assumed by
it as a result of the transfer and to that
extent the Agent, the Arranger and the Existing
Lender shall each be released from further
obligations to each other under this Agreement;
and
(iv) the New Lender shall become a Party as a
"LENDER".
24.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other
person:
(a) to (or through) whom that Lender assigns or transfers (or
may potentially assign or transfer) all or any of its
rights and obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to
be made by reference to, this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required
to be disclosed by any applicable law or regulation,
62
any information about any Obligor, the Group and the Finance
Documents as that Lender shall consider appropriate if, in relation
to paragraphs (a) and (b) above, the person to whom the information
is to be given has entered into a Confidentiality Undertaking.
24.7 SYNDICATION
24.7.1 Obligors' undertakings
The Obligors acknowledge that syndication of the Facilities will take
place and undertake to take reasonable steps to assist and co-operate
with the Agent in syndication by, among other things:
(a) co-operating with site visits by the Lenders and persons
invited by the Agent and/or any Lender to participate in
the Facilities (each such person, a "PROPOSED SYNDICATE
Lender");
(b) participating in presentations to the Proposed Syndicate
Lenders concerning the Group Companies and their
activities;
(c) using reasonable endeavours to obtain appropriate
authorisations from the Auditors, other accountants,
consultants and professional advisers to release for the
benefit of the Proposed Syndicate Lenders any information
addressed to any Finance Party;
(d) refraining from making any statement, announcement or
publication or doing any act or thing which is designed to
obstruct syndication in any way;
(e) providing the Proposed Syndicate Lenders with such
information relating to the Group Companies and their
activities as the Proposed Syndicate Lenders reasonably
request;
(f) assisting the Agent and each Lender in the preparation and
review of any information which the Agent and/or a Lender
reasonably requires for the purposes of syndication;
(g) passing on to the Agent any enquiries received by them
from potential Lenders;
(h) agreeing to amendments to the Finance Documents of an
administrative or technical nature or to correct
typographical or clerical errors; and
(i) instructing (at its cost) such additional diligence as may
be agreed by the Agent and the Company (each acting
reasonably and in good faith), a Lender or a Proposed
Syndicate Lender.
24.8 COSTS OF SYNDICATION
All reasonable legal costs and expenses payable by the Agent or any
other Finance Party in connection with any syndication will be
reimbursed by the Company to the Agent on demand by the Agent
together with value added tax (if any).
63
25 CHANGES TO THE OBLIGORS
25.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
25.2 ADDITIONAL BORROWERS
(a) The Company may request that any of its wholly owned
Subsidiaries becomes an Additional Borrower. That Subsidiary
shall become an Additional Borrower if:
(i) all the Lenders approve the addition of that
Subsidiary;
(ii) the Company delivers to the Agent a duly completed
and executed Accession Letter;
(iii) the Company confirms that no Default is continuing or
would occur as a result of that Subsidiary becoming
an Additional Borrower; and
(iv) the Agent has received all of the documents and other
evidence listed in Part II of Schedule 2 (Conditions
precedent) in relation to that Additional Borrower,
each in form and substance satisfactory to the Agent.
(b) The Agent shall notify the Company and the Lenders promptly
upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other
evidence listed in Part II of Schedule 2 (Conditions
precedent).
25.3 RESIGNATION OF A BORROWER
(a) The Company may request that a Borrower (other than the
Company) ceases to be a Borrower by delivering to the Agent a
Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the
Company and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the
acceptance of the Resignation Letter (and the Company
has confirmed this is the case); and
(ii) the Borrower is under no actual or contingent
obligations as a Borrower under any Finance
Documents,
whereupon that company shall cease to be a Borrower and shall have no
further rights or obligations under the Finance Documents.
25.4 ADDITIONAL GUARANTORS
(a) The Company may request that any of its wholly owned
Subsidiaries become an Additional Guarantor. That Subsidiary
shall become an Additional Guarantor if:
(i) the Company delivers to the Agent a duly completed
and executed Accession Letter; and
64
(ii) the Agent has received all of the documents and other
evidence listed in Part II of Schedule 2 (Conditions
precedent) in relation to that Additional Guarantor,
each in form and substance satisfactory to the Agent.
(b) The Agent shall notify the Company and the Lenders promptly
upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other
evidence listed in Part II of Schedule 2 (Conditions
precedent).
25.5 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the
relevant Subsidiary that the Repeating Representations are true and
correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
25.6 RESIGNATION OF A GUARANTOR
(a) The Company may request that a Guarantor (other than the
Company) ceases to be a Guarantor by delivering to the Agent a
Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the
Company and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the
acceptance of the Resignation Letter (and the Company
has confirmed this is the case);
(ii) all the Lenders have consented to the Company's
request;
26 ROLE OF THE AGENT THE SECURITY TRUSTEE AND THE ARRANGER
26.1 APPOINTMENT OF THE AGENT
(a) Each of the Arranger and the Lenders appoints the Agent to act
as its agent under and in connection with the Finance
Documents.
(b) Each of the Arranger and the Lenders authorises the Agent to
exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with
the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
26.2 DUTIES OF THE AGENT
(a) The Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Agent for that
Party by any other Party.
(b) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify
the Lenders.
(c) The Agent shall promptly notify the Lenders of any Default
arising under Clause 23.1 (Non-payment).
(d) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
26.3 ROLE OF THE ARRANGER
65
Except as specifically provided in the Finance Documents, the Arranger
has no obligations of any kind to any other Party under or in
connection with any Finance Document.
26.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent or the
Arranger as a trustee or fiduciary of any other person;
(b) Neither the Agent nor the Arranger shall be bound to account
to any Lender for any sum or the profit element of any sum
received by it for its own account.
26.5 BUSINESS WITH THE GROUP
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group.
26.6 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
(i) any representation, notice or document believed by it
to be genuine, correct and appropriately authorised;
and
(ii) any statement made by a director, authorised
signatory or employee of any person regarding any
matters which may reasonably be assumed to be within
his knowledge or within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under Clause 23.1
(Non-payment));
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised; and
(iii) any notice or request made by the Company (other than
a Utilisation Request or Selection Notice) is made on
behalf of and with the consent and knowledge of all
the Obligors.
(c) The Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
26.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document,
the Agent shall (a) act in accordance with any instructions
given to it by the Majority Lenders (or, if so instructed by
the Majority Lenders, refrain from acting or exercising any
right, power, authority or discretion vested in it as Agent)
and (b) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with such an
instruction of the Majority Lenders.
66
(b) Unless a contrary indication appears in a Finance Document,
any instructions given by the Majority Lenders will be binding
on all the Lenders and the Arranger.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) the Agent may act (or refrain
from taking action) as it considers to be in the best interest
of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal
or arbitration proceedings relating to any Finance Document.
26.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor the Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the
Agent, the Arranger, an Obligor or any other person given in
or in connection with any Finance Document or the Information
Memorandum; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any
other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance
Document.
26.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Agent will not be
liable for any action taken by it under or in connection with
any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it
might have against the Agent or in respect of any act or
omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or
agent of the Agent may rely on this Clause.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the
Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system
used by the Agent for that purpose.
26.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the
Agent's
67
gross negligence or wilful misconduct) in acting as Agent under the
Finance Documents (unless the Agent has been reimbursed by an Obligor
pursuant to a Finance Document).
26.11 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving
notice to the Lenders and the Company.
(b) Alternatively the Agent may resign by giving notice to the
Lenders and the Company, in which case the Majority Lenders
(after consultation with the Company) may appoint a successor
Agent.
(c) If the Majority Lenders have not appointed a successor Agent
in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation
with the Company) may appoint a successor Agent (acting
through an office in the United Kingdom).
(d) The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under
the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 26. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
(g) After consultation with the Company, the Majority Lenders may,
by notice to the Agent, require it to resign in accordance
with paragraph (b) above. In this event, the Agent shall
resign in accordance with paragraph (b) above.
26.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions
or departments.
(b) If information is received by another division or department
of the Agent, it may be treated as confidential to that
division or department and the Agent shall not be deemed to
have notice of it.
(c) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor the Arranger are obliged
to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure
would or might in its reasonable opinion constitute a breach
of any law or a breach of a fiduciary duty.
68
26.13 RELATIONSHIP WITH THE LENDERS
(a) The Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has received not less than five Business Days
prior notice from that Lender to the contrary in accordance
with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information
required by the Agent in order to calculate the Mandatory Cost
in accordance with Schedule 4 (Mandatory Cost formulae).
26.14 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent and the Arranger that it
has been, and will continue to be, solely responsible for making its
own independent appraisal and investigation of all risks arising under
or in connection with any Finance Document including but not limited
to:
(a) the financial condition, status and nature of each member of
the Group;
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document;
(c) whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective
assets under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document; and
(d) the adequacy, accuracy and/or completeness of the information
memorandum and any other information provided by the Agent,
any Party or by any other person under or in connection with
any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
under or in connection with any Finance Document.
26.15 LENDERS' TAX STATUS CONFIRMATION
Each Lender confirms in favour of the Agent on the date of this
Agreement or, in the case of a Lender which becomes a Party pursuant to
a transfer or assignment, on the date on which the relevant transfer or
assignment becomes effective that either:
(a) it is entitled to claim the benefits of a tax treaty between
its country of residence and the US which would allow for the
payment of all amounts due under any Finance Documents without
deduction for any US taxes; or
(b) subject to providing proper documentation it is entitled to
receive all payments due under any Finance Document without
deduction for US taxes without regard to the application of a
tax treaty;
69
26.16 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent
shall (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
26.17 APPOINTMENT OF THE SECURITY TRUSTEE
26.17.1 Each Finance Party (except the Security Trustee) appoints the Security
Trustee which accepts such appointment) as its trustee to hold the
Security Documents and all rights, powers and benefits, and the
proceeds of realisation thereunder in trust for the benefit of the
Finance Parties according to their respective entitlements under this
Agreement and the other Finance Documents, with the right and power to
exercise the rights, powers, authorities and discretions conferred on
the Security Trustee under the Security Documents and the other Finance
Documents, together with any other incidental rights, powers,
authorities and discretions, as if it were beneficially entitled
thereto in its own right.
26.17.2 The provisions of Clause 26.3, Clause and Clauses 26.5 to 26.12
(inclusive) and Clause 26.11 shall apply mutatis mutandis to the
Security Trustee as if reference to the "AGENT" were references also to
the Security Trustee, except that the Security Trustee's resignation or
removal shall not take effect until all necessary documents have been
entered into to substitute its successor as holder of the Security
Documents under the trust hereby constituted.
27 CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating
to its affairs (tax or otherwise) or any computations in
respect of Tax.
28 SHARING AMONG THE LENDERS
28.1 PAYMENTS TO LENDERS
If a Lender (a "RECOVERING LENDER") receives or recovers any amount
from an Obligor other than in accordance with Clause 29 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Lender shall, within three Business Days,
notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is
in excess of the amount the Recovering Lender would have been
paid had the receipt or recovery been received or made by the
Agent and distributed in accordance with Clause 29 (Payment
mechanics), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or
distribution; and
70
(c) the Recovering Lender shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "SHARING
PAYMENT") equal to such receipt or recovery less any amount
which the Agent determines may be retained by the Recovering
Lender as its share of any payment to be made, in accordance
with Clause 29.5 (Partial payments).
28.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Lender) in accordance with Clause 29.5 (Partial
payments).
28.3 RECOVERING LENDER'S RIGHTS
(a) On a distribution by the Agent under Clause 28.2
(Redistribution of payments), the Recovering Lender will be
subrogated to the rights of the Finance Parties which have
shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to
rely on its rights under paragraph (a) above, the relevant
Obligor shall be liable to the Recovering Lender for a debt
equal to the Sharing Payment which is immediately due and
payable.
28.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a
Recovering Lender becomes repayable and is repaid by that Recovering
Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 28.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account
of that Recovering Lender an amount equal to its share of the
Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Lender for its proportion of any
interest on the Sharing Payment which that Recovering Lender
is required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of
any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing Lender for the amount so
reimbursed.
28.5 EXCEPTIONS
(a) This Clause 28 shall not apply to the extent that the
Recovering Lender would not, after making any payment pursuant
to this Clause, have a valid and enforceable claim against the
relevant Obligor.
(b) A Recovering Lender is not obliged to share with any other
Lender any amount which the Recovering Lender has received or
recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified the other Lenders of the legal or
arbitration proceedings; and
(ii) the other Lender had an opportunity to participate in
those legal or arbitration proceedings but did not do
so as soon as reasonably practicable having received
notice or did not take separate legal or arbitration
proceedings.
71
29 PAYMENT MECHANICS
29.1 PAYMENTS TO THE AGENT
(a) On each date on which an Obligor or a Lender is required to
make a payment under a Finance Document, that Obligor or
Lender shall make the same available to the Agent (unless a
contrary indication appears in a Finance Document) for value
on the due date at the time and in such funds specified by the
Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal
financial centre of the country of that currency (or, in
relation to euro, in a principal financial centre in a
Participating Member State or London) with such bank as the
Agent specifies.
29.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 29.3 (Distributions to an
Obligor) and Clause 29.4 (Clawback) be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a
Participating Member State or London).
29.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the Obligor or in accordance with
Clause 30 (Set-off)) apply any amount received by it for that Obligor
in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be
so applied.
29.4 CLAWBACK
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to
be the case that the Agent had not actually received that
amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was paid by the Agent shall on
demand refund the same to the Agent together with interest on
that amount from the date of payment to the date of receipt by
the Agent, calculated by the Agent to reflect its cost of
funds.
29.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply that
payment towards the obligations of that Obligor under the
Finance Documents in the following order:
72
(i) first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent under the
Finance Documents;
(ii) secondly, in or towards payment pro rata of any
accrued interest or commission due but unpaid under
this Agreement;
(iii) thirdly, in or towards payment pro rata of any
principal due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.
29.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
29.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any
principal or an Unpaid Sum under this Agreement interest is
payable on the principal at the rate payable on the original
due date.
29.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, the Base Currency is
the currency of account and payment for any sum due from an
Obligor under any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or
Unpaid Sum shall be made in the currency in which that Loan or
Unpaid Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was
denominated when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than
the Base Currency shall be paid in that other currency.
73
29.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency
or currency unit are at the same time recognised by the
central bank of any country as the lawful currency of that
country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in,
the currency of that country shall be translated
into, or paid in, the currency or currency unit of
that country designated by the Agent (after
consultation with the Company); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this
Agreement will, to the extent the Agent (acting reasonably and
after consultation with the Company) specifies to be
necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank
Market and otherwise to reflect the change in currency.
30 SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance
Party to that Obligor, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation
at a market rate of exchange in its usual course of business for the
purpose of the set-off.
31 NOTICES
31.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
31.2 ADDRESSES
The address, fax number and telex number (and the department or
officer, if any, for whose attention the communication is to be made)
of each Party for any communication or document to be made or delivered
under or in connection with the Finance Documents is:
(a) in the case of the Company, that identified with its name
below;
Inveresk Research Group, Inc
00000 Xxxxxxx
Xxxxx 000
Xxxx
Xxxxx Xxxxxxxx 0000
Phone: 000 000 000 0000
Fax: 000 000 000 0000
74
And copy to: Xxxx Xxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx XX00 0XX
Phone: 00000 000 000
Fax: 00000 000 000
(b) in the case of each Lender or any other Original Obligor, that
notified in writing to the Agent on or prior to the date on
which it becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
The Royal Bank of Scotland plc
0xx Xxxxx
0-0 Xxxxxx Xxxxxx
Xxxxxxxxx
XX0 0XX
Phone: 0000 000 0000
Fax: 0000 000 0000
(d) in the case of the Security Trustee, that identified with its
name below,
The Royal Bank of Scotland plc
0xx Xxxxx
0-0 Xxxxxx Xxxxxx
Xxxxxxxxx
XX0 0XX
Phone: 0000 000 0000
Fax: 0000 000 0000
(e) or any substitute address, fax number, telex number or
department or officer as the Party may notify to the Agent (or
the Agent may notify to the other Parties, if a change is made
by the Agent) by not less than five Business Days' notice.
31.3 DELIVERY
(a) Any communication or document made or delivered by one person
to another under or in connection with the Finance Documents
will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address; or
(iii) if by way of telex, when despatched, but only if, at
the time of transmission, the correct answerback
appears at the start and at the end of the sender's
copy of the notice;
and, if a particular department or officer is specified as part of its
address details provided under Clause 31.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the
Agent will be effective only when actually received by the
Agent and then only if it is expressly marked for the
attention of the department or officer identified with the
Agent's
75
signature below (or any substitute department or officer as
the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
(d) Any communication or document made or delivered to the Company
in accordance with this Clause will be deemed to have been
made or delivered to each of the Obligors.
31.4 NOTIFICATION OF ADDRESS, FAX NUMBER AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 31.2 (Addresses) or changing its own address, fax number or
telex number, the Agent shall notify the other Parties.
31.5 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance
Document must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent,
accompanied by a certified English translation and,
in this case, the English translation will prevail
unless the document is a constitutional, statutory or
other official document.
32 CALCULATIONS AND CERTIFICATES
32.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
32.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
32.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
33 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
76
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
34 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
35 AMENDMENTS AND WAIVERS
35.1 REQUIRED CONSENTS
(a) Subject to Clause 35.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors and any such amendment
or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
35.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or
which relates to the definition of "MAJORITY LENDERS" in
Clause 1.1 (Definitions);
(i) an extension to the date of payment of any amount
under the Finance Documents;
(ii) a reduction in the Margin or the amount of any
payment of principal, interest, fees or commission
payable;
(iii) an increase in Commitment;
(iv) a change to the Borrowers or Guarantors other than in
accordance with Clause 25 (Changes to the Obligors);
(v) any provision which expressly requires the consent of
all the Lenders; or
(vi) Clause 2.2 (Lenders' rights and obligations), Clause
24 (Changes to the Lenders) or this Clause 35.
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or
obligations of the Agent or the Arranger may not be effected
without the consent of the Agent or the Arranger.
36 COUNTERPARTS
Each Finance Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
37 GOVERNING LAW
77
This Agreement is governed by English law
38 ENFORCEMENT
38.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle
any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "DISPUTE").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 38.1 is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
38.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (other than an Obligor incorporated in
England and Wales):
(a) irrevocably appoints the Company as its agent for service of
process in relation to any proceedings before the English
courts in connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
This Agreement has been entered into on the date stated at the
beginning of this Agreement.
78
SCHEDULES
SCHEDULE 1 PART 1
THE ORIGINAL PARTIES
THE ORIGINAL OBLIGORS
NAME OF ORIGINAL BORROWER COUNTRY OF INCORPORATION COMPANY NUMBER
(WHERE RELEVANT)
Inveresk Research Group, Inc. US (Delaware)
NAME OF ORIGINAL GUARANTOR
Inveresk Research Group Limited UK SC198206
Inveresk Research Holdings Limited UK 3662374
Inveresk Research International Limited UK SC091725
Inveresk Clinical Research Limited UK SC109802
Inveresk Research (Canada) Inc. Canada 3844811
Inveresk Research North Carolina Inc. US (North Carolina)
Inveresk Research Limited UK 02211403
Inveresk Research Inc. US (Delaware)
Clintrials BioResearch Limited (Quebec) 1145923539
79
SCHEDULE 1 PART II
THE ORIGINAL LENDERS
NAME OF ORIGINAL LENDER FACILITY A COMMITMENT FACILITY B COMMITMENT
The Royal Bank of Scotland plc $50 million $25 million
80
SCHEDULE 2 PART I
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1 ORIGINAL OBLIGORS
(a) A copy of the constitutional documents of each Original
Obligor.
(b) A copy of a resolution of the board of directors (or
equivalent body) of each Original Obligor:
(i) approving the terms of, and the transactions
contemplated by, the Finance Documents to which it is
a party and resolving that it execute the Finance
Documents to which it is a party;
(ii) authorising a specified person or persons to execute
the Finance Documents to which it is a party on its
behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and
notices (including, if relevant, any Utilisation
Request and Selection Notice) to be signed and/or
despatched by it under or in connection with the
Finance Documents to which it is a party.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(d) A certificate of the Company (signed by a director or officer)
confirming that borrowing or guaranteeing, as appropriate, the
Total Commitments would not cause any borrowing, guaranteeing
or similar limit binding on any Original Obligor to be
exceeded.
(e) A certificate of an authorised signatory of the relevant
Original Obligor certifying that each copy document relating
to it specified in this Part I of Schedule 2 is correct,
complete and in full force and effect as at a date no earlier
than the date of this Agreement.
2 LEGAL OPINIONS
(a) A Report on Title and legal opinion to the Lenders from the
Borrower's US Counsel in respect of the Finance Documents;
(b) A report on title in respect of the Canadian Property and
legal opinion to the Lenders from the Lenders' Canadian
Counsel in respect of the Finance Documents.
3 SECURITY
81
(a) UK:
(i) a first and only standard security over each Property
in favour of the Security Trustee;
(ii) a first and only
- floating charge in favour of the Security
Trustee from Inveresk Research Group
Limited, Inveresk Research International
Limited, Inveresk Clinical Research Limited;
- debenture in favour of the Security Trustee
from Inveresk Research Holdings Limited and
debenture from Inveresk Research Limited
(iii) Charges searches in respect of each of the above.
(b) Canada
(i) Deed of Hypothecation by Inveresk Research (Canada)
Inc;
(ii) Deed of Hypothecation by ClinTrials BioResearch
Limited;
(iii) Deed of Pledge from Inveresk Research Canada for
Inveresk Research Inc. with Schedule A Securities
Schedule B Transfer Restrictions;
(iv) Delivery of Stock Certificates and Stock Powers
regarding (iii);
(c) US
(i) Security Agreement together with Exhibit A: Security
Questionnaire by Inveresk Research Group, Inc.;
(ii) Security Agreement together with Exhibit A: Security
Questionnaire by Inveresk Research Inc.;
(iii) Security Agreement together with Exhibit A: Security
Questionnaire by Inveresk Research North Carolina
Inc.;
(iv) UCC-1 financing statements in a form for filing with
those jurisdictions reasonably requested by the Agent
(for Inveresk Research Group Inc., Inveresk Research
Inc., Inveresk Research North Carolina Inc.);
(v) Good standing certificates for Inveresk Research
Group, Inc., Inveresk Research Inc., and Inveresk
Research North Carolina Inc.;
(vi) Secretary's Certificates for Inveresk Research Group
Inc., Inveresk Research Inc., Inveresk Research North
Carolina;
(vii) Lien searches against Inveresk Research Group, Inc.,
Inveresk Research Inc., Inveresk Research North
Carolina Inc..
(viii) UCC tax and judgement searches for Inveresk Research
Group Inc., Inveresk Research Inc., Inveresk Research
North Carolina Inc.;
82
4 INSURANCE
(a) A duly certified full, complete and up to date schedule of all
insurances maintained by each member of the Group, referring
to the relevant policies.
(b) A certificate from a broker approved by the Agent that such
policies are in full force and effect with premiums paid to
date, and stating that all the assets of the Group are insured
in the manner specified in the Insurance Report.
5 MISCELLANEOUS
(a) Form 10 reports for UK property; and
(b) Bank Mandates.
6 FEES LETTER
83
SCHEDULE 2 PART II
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL OBLIGOR
1 An Accession Letter, duly executed by the Additional Obligor and the
Company.
2 A copy of the constitutional documents of the Additional Obligor.
3 A copy of a resolution of the board of directors of the Additional
Obligor:
(a) approving the terms of, and the transactions contemplated by,
the Accession Letter and the Finance Documents and resolving
that it execute the Accession Letter;
(b) authorising a specified person or persons to execute the
Accession Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices
(including, in relation to an Additional Borrower, any
Utilisation Request or Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance
Documents.
4 A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5 A certificate of the Additional Obligor (signed by a director)
confirming that borrowing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or similar
limit binding on it to be exceeded.
6 A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part II of Schedule 2
is correct, complete and in full force and effect as at a date no
earlier than the date of the Accession Letter.
7 A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable in
connection with the entry into and performance of the transactions
contemplated by the Accession Letter or for the validity and
enforceability of any Finance Document.
8 If available, the latest audited financial statements of the Additional
Obligor.
9 A legal opinion of the legal advisers to the Arranger and the Agent in
Scotland and England.
10 If the Additional Obligor is incorporated in a jurisdiction other than
Scotland or England and Wales, a legal opinion of the legal advisers to
the Agent in the jurisdiction in which the Additional Obligor is
incorporated.
84
11 If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales or Scotland, evidence that the process
agent specified in Clause 38.2, if not an Obligor, has accepted its
appointment in relation to the proposed Additional Obligor.
85
SCHEDULE 3 PART I
REQUESTS
UTILISATION REQUEST
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
INVERESK RESEARCH GROUP, INC. FACILITY AGREEMENT
DATED [ ] (THE "FACILITY AGREEMENT")
1 We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business Day, the
next Business Day)
Facility to be utilised: [Facility A]/[Facility B]
Currency of Loan (Facility B only): [ ]
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
2 We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
3 The proceeds of this Loan should be credited to [account].
4 This Utilisation Request is irrevocable.
Yours faithfully
---------------------------
Authorised Signatory for
[name of relevant Borrower]
86
SCHEDULE 3 PART II
REQUESTS
SELECTION NOTICE
APPLICABLE TO FACILITY A LOAN
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
INVERESK RESEARCH GROUP, INC. FACILITY AGREEMENT
DATED [ ] (THE "FACILITY AGREEMENT")
1 We refer to the Facility A Loan with an Interest Period ending on [ ]*.
2 We request that the next Interest Period for the Facility A Loan is
[ ].***
3 This Selection Notice is irrevocable.
Yours faithfully
---------------------------
authorised signatory for
[the Company on behalf of]
[name of relevant Borrower]
87
SCHEDULE 4
MANDATORY COST FORMULAE
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 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 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 Agent. This percentage will be certified by that lender in
its notice to the 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 Agent as follows:
(a) in relation to a sterling Loan:
AB + C (B - D) + E x 0.01
------------------------- per cent. per annum
100 - ( A + C)
(b) in relation to a 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 Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of
interest specified in paragraph (a) of Clause 9.3 (Default interest))
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.
88
E is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per L1,000,000.
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
"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 Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the 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 L1,000,000 of the Tariff Base of that Reference
Bank.
8 Each Lender shall supply any information required by the 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 Agent may reasonably require for such
purpose.
Each Lender shall promptly notify the 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 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.
89
10 The 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 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 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 Agent may from time to time, after consultation with the Company 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.
90
SCHEDULE 5 PART I
FORM OF TRANSFER CERTIFICATES
To: [ ] as Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender]
(the "NEW LENDER")
Dated:
INVERESK RESEARCH GROUP, INC. FACILITY AGREEMENT
DATED [ ] (THE "FACILITY AGREEMENT")
1 We refer to Clause 24.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 24.5 (Procedure for
transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of Clause 31.2
(Addresses) are set out in the Schedule.
2 The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 24.4 (Limitation
of responsibility of Existing Lenders).
3 This Transfer Certificate is governed by English law.
91
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
92
SCHEDULE 5 PART II
TRANSFER CERTIFICATE (PAR)
BANK: Date:
TRANSFEREE:
This Transfer Certificate is entered into pursuant to
(i) the agreement (the "SALE AGREEMENT") evidenced by the
Confirmation dated between the Bank and the Transferee (acting
directly or through their respective agents) and
(ii) the Facilities Agreement.
On the Transfer Date, the transfer by way of novation from the Bank to the
Transferee on the terms set out herein and in the Facilities Agreement shall
become effective subject to:
(iii) the Sale Agreement and the terms and conditions incorporated
in the Sale Agreement;
(iv) the terms and conditions annexed hereto; and
(v) the schedule annexed hereto,
all of which are incorporated herein by reference.
THE BANK THE TRANSFEREE
[ ] [ ]
By: By:
93
THE SCHEDULE
FACILITIES AGREEMENT DETAILS:
Borrower(s):
-----------------------------------------
Facilities Agreement Dated
-----------------------------------------
Guarantor(s):
-----------------------------------------
Agent Bank:
-----------------------------------------
Security: [ ] No [ ] Yes (specify)
------------
Total Facility Amount:
-----------------------------------------
Governing Law:
-----------------------------------------
Additional Information:
-----------------------------------------
TRANSFER DETAILS:
Name of Tranche Facility:
----------------- ------------------
Nature (Revolving, Term, Acceptances
----------------- ------------------
Guarantee/Letter of Credit, Other):
----------------- ------------------
Final Maturity:
----------------- ------------------
Participation Transferred
----------------- ------------------
Commitment transferred(1)
----------------- ------------------
Drawn Amount (details below):(1)
----------------- ------------------
Undrawn Amount:(1)
----------------- ------------------
Settlement Date:
-----------------
Details of outstanding Facilities(1)
-----------------
Specify in respect of each Facility:
-----------------
Transferred Portion (amount):
-----------------
Tranche/Facility:
Nature: [ ] Term [ ] Revolver [ ]
Acceptance [ ] Guarantee/Letter of Credit
[ ] Other (specify) _________________
[ ] Details of other Credits are set out on the attached sheet
--------
(1) As at the date of the Transfer Certificate
94
ADMINISTRATION DETAILS
Bank's Receiving Account:
--------------------------------
Transferee's Receiving Account:
--------------------------------
ADDRESSES
Bank Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref: Attn/Ref:
95
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "TRANSFER CERTIFICATE") to which they are
annexed.
1 INTERPRETATION
In these Terms and Conditions words and expressions shall (unless
otherwise expressly defined herein) bear the meaning given to them in the
Transfer Certificate, the Facilities Agreement or the Sale Agreement.
2 TRANSFER
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the
Bank under the Facilities Agreement as is set out in the relevant part of
the Transfer Certificate under the heading "Participation Transferred"
(the "PURCHASED ASSETS") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice
specified in the Facilities Agreement. On the Transfer Date the Transferee
shall pay to the Bank the Settlement Amount as specified in the pricing
letter between the Bank and the Transferee dated the date of the Transfer
Certificate (adjusted, if applicable, in accordance with the Sale
Agreement) and completion of the transfer will take place.
3 EFFECTIVENESS OF TRANSFER
The Transferee hereby requests the Agent to accept the Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of the Facilities Agreement so as to take effect in accordance
with the terms of the Facilities Agreement on the Transfer Date or on such
later date as may be determined in accordance with the terms thereof.
4 TRANSFEREE'S UNDERTAKING
The Transferee hereby undertakes with the Agent and the Bank and each of
the other parties to the Facility Documents that it will perform in
accordance with its terms all those obligations which by the terms thereof
will be assumed by it after delivery of the Transfer Certificate to the
Agent and satisfaction of the conditions (if any) subject to which the
Transfer Certificate is to take effect.
5 PAYMENTS
5.1 PLACE
All payments by either party to the other under the Transfer Certificate
shall be made to the Receiving Account of that other party. Each party may
designate a different account as its Receiving Account for payment by
giving the other not less than five Business Days notice before the due
date for payment.
5.2 FUNDS
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times
and in such funds as are customary at the time for settlement of
transactions in that currency.
6 THE AGENT
The Agent shall not be required to concern itself with the Sale Agreement
and may rely on the Transfer Certificate without taking account of the
provisions of such agreement.
96
7 ASSIGNMENT OF RIGHTS
The Transfer Certificate shall be binding upon and enure to the benefit of
each party and its successors and permitted assigns provided that neither
party may assign or transfer its rights thereunder without the prior
written consent of the other party.
8 THIRD PARTY RIGHTS
A person who is not a party to the Transfer Certificate has no rights
under the Contracts (Rights of Third Parties) Xxx 0000 to enforce or to
enjoy the benefit of any term of the Transfer Certificate.
9 GOVERNING LAW AND JURISDICTION
The Transfer Certificate (including, without limitation, these Terms and
Conditions) shall be governed by and construed in accordance with the laws
of England, and the parties submit to the non-exclusive jurisdiction of
the English courts.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of
any action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for
any reason the appointing party shall notify the other party and shall
promptly appoint another person incorporated within England and Wales to
act as its process agent.
97
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Company]
Dated:
Dear Sirs
INVERESK RESEARCH GROUP, INC. FACILITY AGREEMENT
DATED [ ] (THE "FACILITY AGREEMENT")
1 [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and
to be bound by the terms of the Facility Agreement as an Additional
[Borrower]/[Guarantor] pursuant to Clause [25.2 (Additional
Borrowers)]/[Clause 25.4 (Additional Guarantors)] of the Facility
Agreement. [Subsidiary] is a company duly incorporated under the laws
of [name of relevant jurisdiction].
2 [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
3 This letter is governed by English law.
[This Guarantor Accession Letter is entered into by deed.]
[Company] [Subsidiary]
98
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [ ] as Agent
From: [resigning Obligor] and [Company]
Dated:
Dear Sirs
[INVERESK RESEARCH GROUP, INC. FACILITY AGREEMENT
DATED [ ] (THE "FACILITY AGREEMENT")
1 Pursuant to [Clause 25.3 (Resignation of a Borrower)]/[Clause 25.6
(Resignation of a Guarantor), we request that [resigning Obligor] be
released from its obligations as a [Borrower]/[Guarantor] under the
Facility Agreement.
2 We confirm that:
(a) no Default is continuing or would result from the acceptance
of this request; and
(b) [ ]
3 This letter is governed by English law.
[Company] [Subsidiary]
By: By:
99
SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: [ ] as Agent
From: [Company]
Dated:
Dear Sirs
INVERESK RESEARCH GROUP, INC. FACILITY AGREEMENT
DATED [ ] (THE "FACILITY AGREEMENT")
1 We refer to the Facility Agreement. This is a Compliance Certificate.
2 We confirm that: [Insert details of covenants to be certified].
3 [We confirm that no Default is continuing]*
Signed:
---------- ----------
Director Director
of of
[Company] [Company]
[insert applicable certification language]
--------------------------------------
for and on behalf of
[name of auditors of the Company]
100
SCHEDULE 9
DORMANT COMPANIES
Healthmark Limited
Inveresk Research
Kentucky Inc.
Clintrials Acquisition Corp Inc.
2645-2151Quebec Inc.
101
SCHEDULE 10
CONFIDENTIALITY LETTER
[LETTERHEAD OF ARRANGER]
To:
[insert name of Potential Lender]
Re: THE FACILITIES
BORROWER:
AMOUNT:
AGENT:
Dear Sirs
We understand that you are considering participating in the Facilities. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
CONFIDENTIALITY UNDERTAKING YOU UNDERTAKE:
TO KEEP THE CONFIDENTIAL INFORMATION CONFIDENTIAL AND NOT TO DISCLOSE IT TO
ANYONE EXCEPT AS PROVIDED FOR BY PARAGRAPH 2 BELOW AND TO ENSURE THAT THE
CONFIDENTIAL INFORMATION IS PROTECTED WITH SECURITY MEASURES AND A DEGREE OF
CARE THAT WOULD APPLY TO YOUR OWN CONFIDENTIAL INFORMATION;
TO KEEP CONFIDENTIAL AND NOT DISCLOSE TO ANYONE THE FACT THAT THE CONFIDENTIAL
INFORMATION HAS BEEN MADE AVAILABLE OR THAT DISCUSSIONS OR NEGOTIATIONS ARE
TAKING PLACE OR HAVE TAKEN PLACE BETWEEN US IN CONNECTION WITH THE FACILITIES;
TO USE THE CONFIDENTIAL INFORMATION ONLY FOR THE PERMITTED PURPOSE;
TO USE ALL REASONABLE ENDEAVOURS TO ENSURE THAT ANY PERSON TO WHOM YOU PASS ANY
CONFIDENTIAL INFORMATION (UNLESS DISCLOSED UNDER PARAGRAPH 2(B) BELOW)
ACKNOWLEDGES AND COMPLIES WITH THE PROVISIONS OF THIS LETTER AS IF THAT PERSON
WERE ALSO A PARTY TO IT; AND
NOT TO MAKE ENQUIRIES OF ANY MEMBER OF THE GROUP OR ANY OF THEIR OFFICERS,
DIRECTORS, EMPLOYEES OR PROFESSIONAL ADVISERS RELATING DIRECTLY OR INDIRECTLY TO
THE FACILITIES.
PERMITTED DISCLOSURE WE AGREE THAT YOU MAY DISCLOSE CONFIDENTIAL INFORMATION:
TO MEMBERS OF THE PARTICIPANT GROUP AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND
PROFESSIONAL ADVISERS TO THE EXTENT NECESSARY FOR THE PERMITTED PURPOSE AND TO
ANY AUDITORS OF MEMBERS OF THE PARTICIPANT GROUP;
102
(b) WHERE REQUESTED OR REQUIRED BY ANY COURT OF COMPETENT
JURISDICTION OR ANY COMPETENT JUDICIAL, GOVERNMENTAL,
SUPERVISORY OR REGULATORY BODY,
(c) WHERE REQUIRED BY THE RULES OF ANY STOCK EXCHANGE ON WHICH THE
SHARES OR OTHER SECURITIES OF ANY MEMBER OF THE PARTICIPANT
GROUP ARE LISTED OR
(d) WHERE REQUIRED BY THE LAWS OR REGULATIONS OF ANY COUNTRY WITH
JURISDICTION OVER THE AFFAIRS OF ANY MEMBER OF THE PARTICIPANT
GROUP; OR
WITH THE PRIOR WRITTEN CONSENT OF US AND THE BORROWER.
NOTIFICATION OF REQUIRED OR UNAUTHORISED DISCLOSURE YOU AGREE (TO THE EXTENT
PERMITTED BY LAW) TO INFORM US OF THE FULL CIRCUMSTANCES OF ANY DISCLOSURE UNDER
PARAGRAPH 2(B) OR UPON BECOMING AWARE THAT CONFIDENTIAL INFORMATION HAS BEEN
DISCLOSED IN BREACH OF THIS LETTER.
RETURN OF COPIES IF WE SO REQUEST IN WRITING, YOU SHALL RETURN ALL CONFIDENTIAL
INFORMATION SUPPLIED TO YOU BY US AND DESTROY OR PERMANENTLY ERASE ALL COPIES OF
CONFIDENTIAL INFORMATION MADE BY YOU AND USE ALL REASONABLE ENDEAVOURS TO ENSURE
THAT ANYONE TO WHOM YOU HAVE SUPPLIED ANY CONFIDENTIAL INFORMATION DESTROYS OR
PERMANENTLY ERASES SUCH CONFIDENTIAL INFORMATION AND ANY COPIES MADE BY THEM, IN
EACH CASE SAVE TO THE EXTENT THAT YOU OR THE RECIPIENTS ARE REQUIRED TO RETAIN
ANY SUCH CONFIDENTIAL INFORMATION BY ANY APPLICABLE LAW, RULE OR REGULATION OR
BY ANY COMPETENT JUDICIAL, GOVERNMENTAL, SUPERVISORY OR REGULATORY BODY OR IN
ACCORDANCE WITH INTERNAL POLICY, OR WHERE THE CONFIDENTIAL INFORMATION HAS BEEN
DISCLOSED UNDER PARAGRAPH 2(B) ABOVE.
CONTINUING OBLIGATIONS THE OBLIGATIONS IN THIS LETTER ARE CONTINUING AND, IN
PARTICULAR, SHALL SURVIVE THE TERMINATION OF ANY DISCUSSIONS OR NEGOTIATIONS
BETWEEN YOU AND US. NOTWITHSTANDING THE PREVIOUS SENTENCE, THE OBLIGATIONS IN
THIS LETTER SHALL CEASE (A) IF YOU BECOME A PARTY TO OR OTHERWISE ACQUIRE (BY
ASSIGNMENT OR SUB PARTICIPATION) AN INTEREST, DIRECT OR INDIRECT IN THE
FACILITIES OR (B) TWELVE MONTHS AFTER YOU HAVE RETURNED ALL CONFIDENTIAL
INFORMATION SUPPLIED TO YOU BY US AND DESTROYED OR PERMANENTLY ERASED ALL COPIES
OF CONFIDENTIAL INFORMATION MADE BY YOU (OTHER THAN ANY SUCH CONFIDENTIAL
INFORMATION OR COPIES WHICH HAVE BEEN DISCLOSED UNDER PARAGRAPH 2 ABOVE (OTHER
THAN SUB-PARAGRAPH 2(A)) OR WHICH, PURSUANT TO PARAGRAPH 4 ABOVE, ARE NOT
REQUIRED TO BE RETURNED OR DESTROYED).
NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC YOU ACKNOWLEDGE AND AGREE THAT:
NEITHER WE NOR ANY OF OUR OFFICERS, EMPLOYEES OR ADVISERS (EACH A "RELEVANT
PERSON")
(e) MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS
TO, OR ASSUME ANY RESPONSIBILITY FOR, THE ACCURACY,
RELIABILITY OR COMPLETENESS OF ANY OF THE CONFIDENTIAL
INFORMATION OR ANY OTHER INFORMATION SUPPLIED BY US OR ANY
MEMBER OF THE GROUP OR THE ASSUMPTIONS ON WHICH IT IS BASED OR
(f) SHALL BE UNDER ANY OBLIGATION TO UPDATE OR CORRECT ANY
INACCURACY IN THE CONFIDENTIAL INFORMATION OR ANY OTHER
INFORMATION SUPPLIED BY US OR ANY
103
MEMBER OF THE GROUP OR BE OTHERWISE LIABLE TO YOU OR ANY OTHER
PERSON IN RESPECT TO THE CONFIDENTIAL INFORMATION OR ANY SUCH
INFORMATION; AND
WE OR MEMBERS OF THE GROUP MAY BE IRREPARABLY HARMED BY THE BREACH OF THE TERMS
OF THIS LETTER AND DAMAGES MAY NOT BE AN ADEQUATE REMEDY; EACH RELEVANT PERSON
OR MEMBER OF THE GROUP MAY BE GRANTED AN INJUNCTION OR SPECIFIC PERFORMANCE FOR
ANY THREATENED OR ACTUAL BREACH OF THE PROVISIONS OF THIS LETTER BY YOU.
NO WAIVER; AMENDMENTS, ETC THIS LETTER SETS OUT THE FULL EXTENT OF YOUR
OBLIGATIONS OF CONFIDENTIALITY OWED TO US IN RELATION TO THE INFORMATION THE
SUBJECT OF THIS LETTER. NO FAILURE OR DELAY IN EXERCISING ANY RIGHT, POWER OR
PRIVILEGE UNDER THIS LETTER WILL OPERATE AS A WAIVER THEREOF NOR WILL ANY SINGLE
OR PARTIAL EXERCISE OF ANY RIGHT, POWER OR PRIVILEGE PRECLUDE ANY FURTHER
EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGES UNDER
THIS LETTER. THE TERMS OF THIS LETTER AND YOUR OBLIGATIONS UNDER THIS LETTER MAY
ONLY BE AMENDED OR MODIFIED BY WRITTEN AGREEMENT BETWEEN US.
INSIDE INFORMATION YOU ACKNOWLEDGE THAT SOME OR ALL OF THE CONFIDENTIAL
INFORMATION IS OR MAY BE PRICE-SENSITIVE INFORMATION AND THAT THE USE OF SUCH
INFORMATION MAY BE REGULATED OR PROHIBITED BY APPLICABLE LEGISLATION RELATING TO
INSIDER DEALING AND YOU UNDERTAKE NOT TO USE ANY CONFIDENTIAL INFORMATION FOR
ANY UNLAWFUL PURPOSE.
NATURE OF UNDERTAKINGS THE UNDERTAKINGS GIVEN BY YOU UNDER THIS LETTER ARE GIVEN
TO US AND (WITHOUT IMPLYING ANY FIDUCIARY OBLIGATIONS ON OUR PART) ARE ALSO
GIVEN FOR THE BENEFIT OF THE BORROWER AND EACH OTHER MEMBER OF THE GROUP.
THIRD PARTY RIGHTS
SUBJECT TO PARAGRAPH 6 AND PARAGRAPH 9 THE TERMS OF THIS LETTER MAY BE ENFORCED
AND RELIED UPON ONLY BY YOU AND US AND THE OPERATION OF THE CONTRACTS (RIGHTS OF
THIRD PARTIES) XXX 0000 IS EXCLUDED.
NOTWITHSTANDING ANY PROVISIONS OF THIS LETTER, THE PARTIES TO THIS LETTER DO NOT
REQUIRE THE CONSENT OF ANY RELEVANT PERSON OR ANY MEMBER OF THE GROUP TO RESCIND
OR VARY THIS LETTER AT ANY TIME.
GOVERNING LAW AND JURISDICTION THIS LETTER (INCLUDING THE AGREEMENT CONSTITUTED
BY YOUR ACKNOWLEDGEMENT OF ITS TERMS) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF ENGLAND AND THE PARTIES SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF THE ENGLISH COURTS.
DEFINITIONS IN THIS LETTER (INCLUDING THE ACKNOWLEDGEMENT SET OUT BELOW):
"CONFIDENTIAL INFORMATION" means any information relating to the
Borrower, the Group, and the Facilities including, without limitation,
the information memorandum, provided to you by us or any of our
affiliates or advisers, in whatever form, and includes information
given orally and any document, electronic file or any other way of
representing or recording information which contains or is derived or
copied from such information but excludes information that (a)
104
is or becomes public knowledge other than as a direct or indirect
result of any breach of this letter or (b) is known by you before the
date the information is disclosed to you by us or any of our affiliates
or advisers or is lawfully obtained by you after that date, other than
from a source which is connected with the Group and which, in either
case, as far as you are aware, has not been obtained in violation of,
and is not otherwise subject to, any obligation of confidentiality;
"GROUP" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"PARTICIPANT GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985); and
"PERMITTED PURPOSE" means considering and evaluating whether to enter
into the Facilities.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
-----------------------------------
For and on behalf of
[Arranger]
To: [Arranger]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
-----------------------------------
For and on behalf of
[Potential Lender]
105
SCHEDULE 11
TIMETABLES
Loans in dollars Loans in sterling Loans in other
currencies
Approval as an Optional Currency, if N/A N/A 11:00 am
required (Clause 4.3 (Conditions relating
to Optional Currencies)) D-5
Agent notifies the Company if a currency N/A N/A 3:00 pm
is approved as an Optional Currency in
accordance with Clause 4.3 (Conditions
relating to Optional Currencies) D-4
Delivery of a duly completed Utilisation 11:00 am 11:00 am 11:00 am
Request (Clause 5.1 (Delivery of a
Utilisation Request) or a Selection
Notice (Clause 10.1 (Selection of X-0 X-0 X-0
Interest Periods))
or in the case of the
first loan, D-2
Agent determines (in relation to a N/A 12:00 pm 12:00 pm
Utilisation) the Base Currency Amount of
the Loan, if required under Clause 5.4
(Lenders' participation) X-0 X-0
Agent notifies the Lenders of the Loan in 1:00 pm 1:00 pm 1:00 pm
accordance with Clause 5.4 (Lenders'
participation) X-0 X-0 X-0
or in the case of the
first loan, N/A
Agent receives a notification from a N/A 9:30 am 9:30 am
Lender under Clause 6.2 (Unavailability
of a currency) D D-2
Agent gives notice in accordance with N/A 11:00 am 11:00 am
Clause 6.2 (Unavailability of a
currency) D D-2
LIBOR is fixed 11:00 am 11:00 am 11:00 am
X-0 X X-0
000
Xxxxx "D" represents the date of drawdown, "-1", "-2" and "-3" etc represents
the number of Business Days before that date and all times are UK times.
107
SCHEDULE 12
POST IPO GROUP STRUCTURE
[POST IPO GROUP STRUCTURE FLOWCHART]
108
SCHEDULE 13
MATERIAL COMPANIES
NAME OF ORIGINAL BORROWER COUNTRY OF INCORPORATION COMPANY NUMBER
(WHERE RELEVANT)
Inveresk Research Group, Inc. US (Delaware)
NAME OF ORIGINAL GUARANTOR
Inveresk Research Group Limited UK SC198206
Inveresk Research Holdings Limited UK 3662374
Inveresk Research International Limited UK SC091725
Inveresk Clinical Research Limited UK SC109802
Inveresk Research (Canada) Inc. Canada 38444811
Inveresk Research North Carolina Inc. US (North Carolina)
Inveresk Research Limited UK 02211403
Inveresk Research Inc. US (Delaware)
Clintrials BioResearch Limited (Quebec) 1145923539
109
SIGNATORIES
EXECUTED FOR AND ON BEHALF OF
INVERESK RESEARCH GROUP, INC.
BY
/s/ Xxxxxx X. Xxxxx (TITLE)
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
INVERESK RESEARCH GROUP LIMITED
BY
/s/ Xxxxxx X. Xxxxx DIRECTOR/AUTHORISED SIGNATORY
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
INVERESK RESEARCH HOLDINGS LIMITED
BY
/s/ Xxxxxx X. Xxxxx DIRECTOR/AUTHORISED SIGNATORY
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
INVERESK RESEARCH INTERNATIONAL LIMITED
BY
/s/ Xxxxxx X. Xxxxx DIRECTOR/AUTHORISED SIGNATORY
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
INVERESK CLINICAL RESEARCH LIMITED
BY
/s/ Xxxxxx X. Xxxxx DIRECTOR/AUTHORISED SIGNATORY
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
INVERESK RESEARCH (CANADA) INC.
BY
/s/ Xxxxxx X. Xxxxx (TITLE)
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
110
EXECUTED FOR AND ON BEHALF OF
INVERESK RESEARCH NORTH CAROLINA INC.
BY
/s/ Xxxxxx X. Xxxxx (TITLE)
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
INVERESK RESEARCH LIMITED
BY
/s/ Xxxxxx X. Xxxxx DIRECTOR/AUTHORISED SIGNATORY
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
INVERESK RESEARCH INC.
BY
/s/ Xxxxxx X. Xxxxx (TITLE)
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
CLINTRIALS BIORESEARCH LIMITED
BY
/s/ Xxxxxx X. Xxxxx (TITLE)
------------------------------------------
Xxxxxx X. Xxxxx FULL NAME
------------------------------------------
EXECUTED FOR AND ON BEHALF OF
THE ROYAL BANK OF SCOTLAND PLC
IN ITS CAPACITIES AS ARRANGER, SECURITY
TRUSTEE, HEDGING COUNTERPARTY, ORIGINAL
LENDER AND AGENT
BY
/s/ Xxxx Xxxxxxx AUTHORISED SIGNATORY
------------------------------------------
Xxxx Xxxxxxx FULL NAME
------------------------------------------
111
