CONFORMED COPY
To: Huntingdon Life Sciences Group plc
Huntingdon Life Sciences Limited and
x/x Xxxxxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
7 August 1998
Dear Sirs,
Bridging Facility to be made available by National Westminster Bank Plc (the
"Overdraft Bank") in favour of (1) Huntingdon Life Sciences Group plc (the
"Parent") and (2) Huntingdon Life Sciences Limited ("HLSL") (together the
"Borrowers")
National Westminster Bank Plc in its capacity as Overdraft Bank under this
Letter is pleased to advise you that with the authority of the Banks it is
prepared to offer the Borrowers the bridging facility referred to in Paragraph 2
of this Letter (the "Bridging Facility") on the terms and conditions contained
herein.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Letter capitalised expressions shall, unless otherwise
defined, have the same meanings given to them in the Facilities
Agreement and the following expressions shall have the following
meanings:
"Business Day" means a day (other than a Saturday) on which banks
are open in the City of London for the transaction of Business;
"Circular" means the circular to be issued by the Parent relating
to the Placings;
"DKB" means Dresdner Kleinwort Xxxxxx;
"Existing Overdraft Facilities" means the overdraft facility of
(pound)5,000,000 made available to the Borrowers by the Overdraft
Bank pursuant to the terms of the Original Overdraft Facility
Letter and the Second Overdraft Facility Letter;
"Expiry Date" means 2 September 1998 or such other date as the
parties hereto may agree;
"Facilities Agreement" means the facilities agreement dated 1st
November 1995 between the Borrowers, the Banks and National
Westminster Bank Plc as agent as amended by a letter dated 21st
November 1995, by the Original Overdraft Letter and by the
Amendment Agreement;
"Intercreditor Agreement" means the fourth intercreditor agreement
to be entered into by each of the Borrowers, the Overdraft Bank,
the Agent and the Banks to record the priority of the Overdraft
Bank with respect to the amounts loaned to the Borrowers by means
of the Bridging Facility;.
"Investor Placing" means the raising by the Parent of new equity by
means of a subscription by certain investors for 120,000,000
ordinary shares of 5 xxxxx each in the Parent in order to raise
(pound)15,000,000 (gross);
"Investor Placing Agreement" means the agreement of even date
herewith between the Parent and the investors documenting the
Investor Placing;
"New Facilities Agreement" means the New Facilities Agreement of
even date herewith between National Westminster Bank Plc as Agent,
the Banks and the Borrowers;
"Original Overdraft Letter" means the letter dated 26th February
1998 from the Overdraft Bank to the Borrowers;
"Placings" mean the Investor Placing and the Shareholder Placing;
"Resolutions" mean the resolutions of the shareholders of the
Parent set out in the notice of EGM which is to be sent out with
the Circular;
"Second Overdraft Facility letter" means the facility letter dated
17th March 1998 from the Overdraft Bank to the Borrowers;
"Shareholder Placing" means the raising by the Parent of new equity
by means of a placing and open offer of 57,003,431 ordinary shares
of 5 xxxxx each in the Parent in order to raise not less than
(pound)7,000,000 (gross);
"Shareholder Placing Agreement" means the agreement of even date
herewith between the Parent and DKB relating to the Shareholder
Placing;
"Transaction Proceeds" means the monies (net of costs) raised by
the Parent pursuant to the Placings.
1.2 Interpretation
In this Letter, unless the context otherwise requires:
(a) references to any persons shall be construed so as to
include that person's assigns, transferees or
successors in title;
(b) references to any document (or any specified provisions
of any document) shall be construed as references to
such document or that provision as amended or novated
or supplemented or replaced, as the case may be, from
time to time;
(c) references to the singular shall include the plural and
vice versa and references by way of male, female or
neuter pronoun shall include references to all genders;
and
(d) references to paragraphs are to be construed as
references to the paragraphs of this Letter as amended
or varied from time to time.
2. BRIDGING FACILITY
2.1 Subject to Paragraph 4 the Overdraft Bank agrees to make available
to the Borrowers from the date of this letter an aggregate
principal amount of (pound)1,000,000 by way of sterling overdraft
on the Borrowers' current accounts with the Overdraft Bank.
2.2 No drawing shall be made under the Bridging Facility unless the
existing Overdraft Facilities are drawn down in full at the time of
such drawing.
2.3 The Bridging Facility is in addition to the Existing Overdraft
Facilities.
3. PURPOSE
The Borrowers shall utilise the Bridging Facility for the purposes
of their general corporate purposes.
4. CONDITIONS PRECEDENT TO THE BRIDGING FACILITY
The Bridging Facility shall be made available to the Borrowers when
the Overdraft Bank has received the following in form and substance
satisfactory to it:
(a) the enclosed copy of this Letter with the endorsed acceptance duly
signed on
behalf of each of the Borrowers;
(b) copies, each certified to be true, complete and
up-to-date copies, of resolutions of each of the
relevant Borrower's boards of directors authorising the
acceptance and execution of this Letter, the New
Facilities Agreement and the Intercreditor Agreement
and unanimously supporting, approving and recommending
the Placings to the shareholders of the Parent;
(c) the Intercreditor Agreement, the New Facilities
Agreement, the Investor Placing Agreement and the
Shareholder Placing Agreement duly executed by the
parties thereto;
(d) a certified copy of the Circular;
(e) a copy of the most up to date financial model of the
Investors for the Group; and
(f) a certified copy of a letter addressed to the Parent
and/ or DKB from N M Rothschilds & Sons Limited
confirming the terms on which they hold funds for the
purpose of meeting the Investors obligations under the
Investor Placing Agreement.
5. REPAYMENT ON DEMAND
The Overdraft Bank may with the prior written consent of all the
Banks terminate the Bridging Facility at any time in accordance
with Clause 13.3 of the New Facilities Agreement and make demand
for repayment of all sums (including accrued interest) owing under
the Bridging Facility. In any event, the Bridging Facility shall be
repaid from the Transaction Proceeds.
6. GENERAL TERMS IN RELATION TO THE BRIDGING FACILITY
6.1 Interest
6.1.1 Amount
Interest shall accrue and be calculated in respect of the amount
outstanding under the Bridging Facility on the basis of the number
of days elapsed and a 365-day year, at a rate equal to the base
rate of the Overdraft Bank from time to time plus 3.0 per cent. per
annum.
6.1.2 Default interest
Interest on any sum payable in respect of the Bridging Facility
which is not paid when due shall be charged at 4.0 per cent. per
annum above the Overdraft Bank's base rate from time to time.
6.1.3 Payment of interest
Interest calculated in accordance with Paragraph 6.1.1 shall be
payable in arrears and shall be paid by the Borrowers to the
Overdraft Bank on the expiry or termination of the Bridging
Facility. Default interest calculated in accordance with Paragraph
6.1.2 shall be payable (both before and after judgment) in arrears
and shall be debited to the Parent's current account with the
Overdraft Bank and compounded on the usual monthly charging days of
the Overdraft Bank.
6.1.4 Determination of interest
The statement of the Overdraft Bank as to the rate or amount of
interest payable pursuant to any provision of this Letter in
respect of the Bridging Facility shall be conclusive in the absence
of manifest error.
6.2 Further Assurance
The Borrowers each undertake to perform, execute and deliver such
documents as the Overdraft Bank may reasonably require to implement
the purposes of and perfect the Bridging Facility, any security or
any of the transactions contemplated by this Letter.
6.3. Payments
6.3.1 No withholdings
All payments by the Borrowers under the Bridging Facility are to be
made in immediately available funds free and clear of and without
any withholding or deduction for any and all present or future
taxes, duties, levies, fees or other charges and without any
set-off or counter-claim whatsoever.
6.3.2 Grossing-up
If any deduction or withholding is required in respect of any sum
payable under the Bridging Facility, the Borrowers shall increase
the sum so that the net amount received by the Overdraft Bank after
the deduction or withholding (and after the payment of any tax or
additional tax which is due as a consequence of the increase) shall
be equal to the amount which the Overdraft Bank would have been
entitled to receive in the absence of any requirement to make that
deduction or withholding.
6.3.3 Authority to debit account
The Borrowers irrevocably authorise the Overdraft Bank to debit
from time to time to any account the Borrowers may have with the
Overdraft Bank all or any amounts due to the Overdraft Bank in
connection with the Bridging Facility.
6.4. Set-off
Each of the Borrowers authorise the Overdraft Bank:
(a) to apply any credit balance on any of its accounts with
any of the Banks (by set-off, combination or otherwise)
in satisfaction of any sum due and payable and unpaid
in relation to the Bridging Facility or otherwise under
this Letter; and
(b) to purchase with the moneys standing to the credit of
any such account such other currencies as may be
necessary to effect such application.
6.5 Joint and Several Liability
The obligations of each of the Borrowers to the Overdraft Bank, the
Agent and the Banks under this Letter shall be joint and several.
7. UNDERTAKINGS TO THE BANKS
7.1 The Borrowers undertake with the Overdraft Bank, and the Banks that:
(a) they will continue to provide the Banks with such
further financial information, documents and records
about the financial condition, operations and prospects
of the Group as the Agent may reasonably require
including individual profit and loss statements,
balance sheets and Cash Flow Forecasts in respect of
each Borrower as requested;
(b) they will use their best endeavours provide the Banks
with such information in respect of the Investors and
the Investor Placing as the Agent reasonably requires
and keep the Agent informed of the timetable of the
Investor Placing and any changes to that timetable;
(c) they will provide the Banks with such information as
the Agent reasonably requires in respect of the
Shareholder Placing.
8. COSTS
The Borrowers agree and undertake that they will be responsible for
and will pay on demand on a full indemnity basis all proper and
reasonable costs, charges and expenses incurred by the Banks, the
Agent and/or the Overdraft Bank in connection with this Letter and
the matters contemplated hereunder including without limitation
reasonable legal fees.
9. SUCCESSORS
The agreement evidenced by this Letter shall enure to the benefit
of the Overdraft Bank, the Agent and the Banks and their successors
and permitted assigns from time to time including, without
limitation, any entity with which the Overdraft Bank, the Agent or
the Banks may merge or amalgamate or by which they may be absorbed
or to which they may transfer all or any part of their undertaking
or assets, and any change in the constitution of any of the
Overdraft Bank, the Agent or the Banks or any such merger,
amalgamation, absorption or transfer shall not prejudice or affect
any of their rights under this Letter in any respect. Neither the
Overdraft Bank nor the Borrowers may assign or transfer any of
their rights, benefits or obligations under this Letter.
10. DEMAND OR NOTICE
Any demand or notice on any of the Borrowers under this Letter in
relation to the Bridging Facility shall be made in writing signed
by an officer of the Overdraft Bank and served either by personal
delivery on any officer of the Borrowers at any place or by post or
by hand delivery addressed to its registered office or its place of
business last known to the Overdraft Bank or by facsimile or telex
using the relevant number last known to the Overdraft Bank. Service
by post on the Borrowers shall be deemed to be effective on the
next business day after the date of posting and notwithstanding
that it be returned undelivered. Service by facsimile or telex on
the Borrowers shall be deemed to be effective on despatch. Any
notice to the Overdraft Bank, under this Letter in relation to the
Bridging Facility shall be made to the Overdraft Bank's branch at
the address stated at the head of this Letter or such other address
as may be notified by the Overdraft Bank from time to time.
11. SEVERANCE
If at any time any provision of this Letter is or becomes invalid,
illegal or unenforceable in any respect under any law of any
jurisdiction, the validity, legality and enforceability of the
remaining provisions of this Letter and the validity, legality and
enforceability of those provisions under the law of other
jurisdictions shall not in any way be affected or impaired thereby.
12. PROPER LAW
This Letter shall be governed by and construed in accordance with
the laws of England and the Borrowers submit to the non-exclusive
jurisdiction of the English courts.
13. PERIOD OF OFFER
The Borrowers must confirm their acceptance of the terms and
conditions contained in this Letter by signing the acceptance on
the enclosed duplicate of this Letter and returning it to the
Overdraft Bank together with the documents signed by the Borrowers
referred to in Paragraph 4 within 2 Business Days of the date of
this Letter. If this offer is not so accepted within that period,
it shall lapse.
Yours faithfully
X.X. XXXXXXXX
......................................
for and on behalf of
NATIONAL WESTMINSTER BANK PLC
(as Overdraft Bank)
XXXXXXXXXXX XXXXXX
................................................
Signed by Director
for and on behalf of
HUNTINGDON LIFE SCIENCES GROUP PLC
duly authorised by a board resolution dated 6 August 1998
We acknowledge receipt of the original of this Letter dated 7 August 1998 of
which this is a true copy and accept the terms and conditions thereof.
XXXXXXXXXXX XXXXXX
................................................
Signed by Director
for and on behalf of
HUNTINGDON LIFE SCIENCES LIMITED
duly authorised by a board resolution dated 6 August 1998
We acknowledge receipt of the original of this Letter dated 7 August 1998 of
which this is a true copy and accept the terms and conditions thereof.
