CONFORMED COPY
DATED 7th August 0000
XXXXXXXXXX LIFE SCIENCES GROUP plc
- and -
HUNTINGDON LIFE SCIENCES LIMITED
- and -
HUNTINGDON LIFE SCIENCES INC.
- and -
THE BANKS
- and -
NATIONAL WESTMINSTER BANK Plc
as Agent
FACILITIES AGREEMENT
(to replace the facilities agreement dated 1st November 1995)
relating to a revolving loan facility of (pound)24,500,000
WILDE SAPTE
---
LONDON
TABLE OF CONTENTS
Clause Heading Page Number
1. DEFINITIONS AND INTERPRETATION................................1
1.1 Definitions...................................................1
1.2 Clause Headings..............................................10
1.3 Interpretation...............................................10
2. CONDITIONS PRECEDENT.........................................11
3. FACILITIES...................................................11
3.1 Facilities...................................................11
3.2 Obligations Several..........................................12
3.3 Rights Several...............................................12
4. PURPOSE......................................................12
4.1 Purpose of the Revolving Credit Facility.....................12
4.2 Undertaking by the Parent....................................12
4.3 No Liability.................................................12
5. DRAWDOWN AND PARTICIPATIONS..................................13
5.1 Drawdown under the Revolving Credit Facility.................13
5.2 Drawdown.....................................................13
5.3 Participations and Payments..................................14
5.4 Repayment of Existing Facility...............................14
5.5 Confirmation.................................................14
6. INTEREST.....................................................15
6.1 Interest Rate................................................15
6.2 Interest Periods.............................................15
6.3 Default Interest.............................................15
6.4 Calculation and Payment of Interest..........................16
6.5 Agent's Determination........................................16
6.6 Adjustment to Margin.........................................16
7. REPAYMENT AND REDUCTION......................................16
7.1 Repayment....................................................16
7.2 Prepayment...................................................17
7.3 Mandatory Prepayment on Wilmslow Disposal
and other Disposals..........................................17
7.4 Cancellation.................................................17
8. CHANGES IN CIRCUMSTANCES.....................................18
8.1 Illegality...................................................18
8.2 Increased Costs..............................................18
8.3 Market disruption............................................19
8.4 Mitigation...................................................21
8.5 Certificates.................................................21
9. PAYMENTS.....................................................21
9.1 Time and Place...............................................21
9.2 Business Days................................................22
9.3 Indemnity and Breakage Costs.................................22
9.4 Grossing-up..................................................22
9.5 Prepayment Right.............................................24
9.6 Accounts as Evidence.........................................24
9.7 Currency of Account..........................................25
9.8 Borrowers' Payments..........................................25
9.9 Banks' Payments..............................................25
9.10 Appropriation................................................25
10. SECURITY.....................................................26
11. REPRESENTATIONS AND WARRANTIES...............................26
11.1 Acknowledgement of Reliance..................................26
11.2 Representations and Warranties...............................26
11.3 Repetition...................................................29
12. UNDERTAKINGS.................................................29
12.1 Information Undertakings.....................................29
12.2 Positive Covenants...........................................31
12.3 Negative Covenants...........................................32
13. DEFAULT......................................................34
13.1 Defaults.....................................................34
13.2 Acceleration etc.............................................36
13.3 Acceleration of Existing Facilities, Existing Ancillary
Facilities or Bridging Facility ........................ 37
13.4 Appointment of receiver etc..................................37
14. SET-OFF AND PRO RATA PAYMENTS AND DEPOSIT ACCOUNT............37
14.1 Set-Off......................................................37
14.2 Deposit Account..............................................37
14.3 Pro Rata Sharing.............................................38
15. THE AGENT AND THE BANKS......................................39
15.1 Appointment and Duties.......................................39
15.2 Payments and Information Received............................39
15.3 Defaults.....................................................40
15.4 Assumptions..................................................40
15.5 Legal Proceedings............................................40
15.6 No Liability.................................................40
15.7 Credit Decisions.............................................40
15.8 Advisers.....................................................41
15.9 Relationship with Banks......................................41
15.10 Agent's position as a Bank...................................41
15.11 Indemnity....................................................41
15.12 Resignation..................................................42
15.13 Change of Office.............................................42
15.14 Scope of Duties..............................................42
15.15 Consents.....................................................42
15.16 Evidence.....................................................43
15.17 Security.....................................................43
16. FEES AND EXPENSES............................................43
16.1 Expenses.....................................................43
16.2 Agency Fees..................................................44
16.3 Non-Utilisation Fee..........................................44
16.4 Participation Fee............................................44
16.5 Documentary Taxes Indemnity..................................44
16.6 VAT..........................................................44
17. SEVERABILITY, WAIVERS, REMEDIES CUMULATIVE...................45
17.1 Severance....................................................45
17.2 Waivers......................................................45
18. NOTICES......................................................45
18.1 Method.......................................................45
18.2 Delivery.....................................................45
18.3 Addresses....................................................46
18.4 Deemed Receipt...............................................46
18.5 Notices to the Banks.........................................46
19. ASSIGNMENTS AND TRANSFERS....................................46
19.1 Benefit of Agreement.........................................46
19.2 Assignments and Transfers by the Borrowers...................47
19.3 Assignments and Transfers by Banks...........................47
19.4 Disclosure of Information....................................48
20. CURRENCY INDEMNITY...........................................48
20.2 General......................................................49
21. PRIORITIES...................................................49
21.1 Priority Order...............................................49
21.2 Co-Operation.................................................49
22. ANNOUNCEMENTS................................................49
23. CONFLICT.....................................................50
24. LAW AND JURISDICTION.........................................50
24.1 Law..........................................................50
24.2 Jurisdiction.................................................50
SCHEDULE 1 - THE BANKS.....................................................52
SCHEDULE 2 - DRAWDOWN NOTICE...............................................53
SCHEDULE 3 - MANDATORY COST RATE...........................................54
SCHEDULE 4 - FORM OF TRANSFER CERTIFICATE..................................56
SCHEDULE 5 - EXISTING SECURITY.............................................60
SCHEDULE 6 - CONDITIONS PRECEDENT..........................................61
SCHEDULE 7 - PARTICIPATION IN RISK SHARING.................................62
THIS AGREEMENT is made on the 7th day of August 1998
BY:
(1) HUNTINGDON LIFE SCIENCES GROUP Plc, a company incorporated under the laws of
England and Wales with registered number 502370 having its registered office
at Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxx XX00 0XX (the
"Parent");
(2) HUNTINGDON LIFE sciences LIMITED, a company incorporated under the
laws of England and Wales with registered number 01815730 having
its registered office at Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxxx XX00 0XX ("HLSL");
(3) HUNTINGDON LIFE SCIENCES INC., a company incorporated under the
laws of the State of Delaware, USA having its registered office at
0 Xxxx Xxxxxxxxxx Xxxxxx, Xxxx xx Xxxxx, Xxxxxx of Kent, State of
Delaware, United States of America ("HLS");
(4) THE BANKS as defined below; and
(5) NATIONAL WESTMINSTER BANK Plc, of 3rd Floor, Juno Court, 00
Xxxxxxxx Xxxxxx, Xxxxxx X0 0XX as the Agent (as such term is more
particularly defined below).
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement the following expressions shall have the
following meanings (except where the context otherwise requires):
"Accounts" means the audited consolidated annual report and
accounts of the Parent and its Subsidiaries together with the
relative directors' report and auditors' report.
"Agent" means National Westminster Bank Plc in its capacity as
agent and trustee for the Banks and each successor Agent appointed
from time to time under Clause 15.12.
"Auditors" means Xxxxxx Xxxxxxxx or such other firm of chartered
accountants of internationally recognised standing as shall have
been appointed as auditors of the Parent and its Subsidiaries.
"Available Commitment" means, in relation to a Bank, its Commitment
less its Participation in all outstanding Revolving Advances.
"Available Revolving Credit Facility" means the aggregate of the
Available Commitments of the Banks.
"Banks" means each of the banks and financial institutions listed
in Schedule 1, their respective successors and each Bank Transferee
and "Bank" shall be construed accordingly.
"Bank Transferee" has the meaning attributed thereto in Clause 19.
"Borrowers" means all and each of the Parent, HLSL, HLS and
"Borrower" shall be construed accordingly as the context requires.
"Bridging Facility" means a bridging facility of (pound)1,000,000
being provided by NatWest pursuant to the terms of a letter
addressed to the Borrowers of even date herewith.
"Business Day" means a day on which banks and foreign exchange
markets are open in London for the transaction of business of the
nature required by this Agreement.
"Capital Expenditure" has the meaning given thereto by the
established accounting policies of the Group in relation to its
cashflow statements as at the date hereof.
"Ciba Geigy Agreement" means the agreement referred to in paragraph
(d) of the definition of Permitted Indebtedness and the security
relating thereto.
"Certified Copy" means, in relation to any document, a copy of such
document bearing the endorsement "Certified a true, complete and
accurate copy of the original, which has not been amended otherwise
than by a document, a Certified Copy of which is attached hereto"
signed and dated by a duly authorised officer of the company in
question.
"Change" means the introduction, implementation, repeal, withdrawal
or change in, or in the interpretation or application of, (a) any
law, regulation, practice or concession, or (b) any directive,
requirement, request or guidance (whether or not having the force
of law but if not having the force of law, one which applies
generally to a class or category of financial institutions of which
that Bank forms part and compliance with which is in accordance
with the general practice of those financial institutions) of the
European Community, any central bank including the European Central
Bank, or any other fiscal, monetary, regulatory or other authority
which has jurisdiction over that Bank and which in any case is not
known as at the date of this Agreement.
"Charging Group" means each of the Borrowers and each and every
member of the Group that has executed a Security Document.
"Circular" means the circular to be issued by the Parent relating
to the Placings.
"Comerica" means Comerica Bank.
"Commitment" means, in relation to each Bank, the principal amount
described as such set opposite its name in Schedule 1 or under the
"Amount of Commitment Transferred" in the Schedule to any relevant
Transfer Certificate, in each case as reduced or cancelled under
the terms of this Agreement.
"Commitment Percentage" means in relation to each Bank the
percentage specified against its name in Column 3 of Schedule 1.
"Commitment Period" means the period starting on the date hereof
and ending on 30th August 2000.
"Company System" means each item of equipment and the software
programmes used by the Group in the course of its business, which
is material for the purposes of the Group's business.
"Conditions Precedent" means each of the conditions set out in
Schedule 6 and referred to in Clause 2.
"Default" means any of the events specified in Clause 13.1.
"Default Occurrence" means any event, occurrence or omission which
with the passing of time, giving of notice or satisfaction of any
other condition would be a Default.
"Deposit Account" means the deposit account in the name of the
Parent with the Agent into which the Transaction Proceeds are to be
paid.
"DKB" means Dresdner Kleinwort Xxxxxx.
"Disposal" means a sale, transfer or other disposal (including by
way of lease or loan) by a person of all or part of its business or
assets.
"Disposal Proceeds" means, in respect of a Disposal by a member of
the Group, the gross consideration received by the Group for that
Disposal less all costs and expenses directly incurred (including
any VAT chargeable) in respect of that Disposal.
"Dormant Subsidiary" means, at any given time, a company within the
Group which is at such time dormant within the meaning of section
250(3) of the Companies Xxx 0000 the value of whose assets does not
exceed in aggregate (pound)5,000.
"Drawdown Date" means any date, being a Business Day, on which a
Revolving Advance is made, or is proposed to be made pursuant to a
Drawdown Notice.
"Drawdown Notice" means a notice substantially in the form set out
in Schedule 2.
"Encumbrance" means any mortgage, charge, assignment by way of
security, pledge, hypothecation, lien, right of set-off, retention
of title provision, trust or flawed asset arrangement (for the
purpose of, or which has the effect of, granting security) or any
other security interest of any kind whatsoever, or any agreement,
whether conditional or otherwise, to create any of the same, but
excluding any agreement to sell or otherwise dispose of any asset
on terms whereby such asset is or may be leased to or re-acquired
or acquired by any Group Company.
"Environment" means all or any of the following media; air, land
(including buildings and any other structures or erections in, on
or under it and any soil and anything below the surface of land),
land covered with water and water (including sea, ground and
surface water).
"Environmental Claim" means any written notice from any regulatory
authority or government agency, alleging any breach, contravention
or violation of any Environmental Law by any member of the Group
(other than the TMG Companies) or the existence of any liability
arising from any such breach, contravention or violation including,
without limitation, liability to conduct, pay for or for damages in
respect of any clean-up, remediation, administrative cost or charge
or expense, damage to the Environment or any natural resource,
property loss or damage, personal injury or any penalty attaching
or relating to the presence, emission, release or leak of any
Hazardous Material in or to the Environment.
"Environmental Law" means all statutes, treaties and conventions,
directives and regulations whether of a criminal, civil or
administrative nature, and the rules of Common Law, relating to or
concerning:
(a) pollution or contamination of the Environment;
(b) harm, whether actual or potential to ecological systems;
(c) the generation, manufacture, processing, distribution,
use (including abuse), treatment, storage, disposal,
transport or handling of Hazardous Materials; and
(d) the emission, leak, release or discharge into the
Environment of noise, vibration, dust, fumes, gas,
odours, smoke, steam, effluvia, heat, light, radiation
(of any kind), infection, electricity or any Hazardous
Material and any matter or thing capable of
constituting a nuisance or an actionable tort of any
kind in respect of such matters.
"Existing Ancillary Facilities" means the Terminable Indemnity
Facility and the Forex Facility made available to the Parent and
HLSL pursuant to a facility letter dated 7th September 1997 (as
amended).
"Existing Facilities" means the sterling Revolving Credit Facility
of (pound)19,500,000 made available to the Borrowers by the Banks
pursuant to the facilities agreement dated 1st November 1995 and
the overdraft facility of (pound)5,000,000 made available by
National Westminster Bank Plc as overdraft bank pursuant to
facility letters dated 26th February 1998 and 17th March 1998 (as
varied and amended from time to time).
"Existing Facilities Outstandings" means at any time the aggregate
of all amounts outstanding under the Existing Facilities.
"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 SSAP 21 (or any successor thereto) as a finance
lease or in the same way as a finance lease.
"Final Repayment Date" means 31st August 2000.
"Financial Year" in relation to a company has the meaning ascribed
to such expression by section 223 of the Companies Xxx 0000.
"Financing Documents" means this Agreement and the Security
provided that any reference to the expression "Financing Documents"
contained in the Security shall be construed as a reference to this
Agreement and the Security.
"First Drawdown Date" means the date on which the Parent first
draws down a Revolving Advance under this Agreement.
"FNBM" means The First National Bank of Maryland.
"GAAP" means, means accounting principles, concepts, bases and
policies generally adopted and accepted in England.
"Group" means the Parent and each Subsidiary of the Parent from
time to time during the Security Period and Group Company shall be
construed accordingly.
"Hazardous Materials" means any element or substance, whether
natural or artificial, and whether consisting of gas, liquid, solid
or vapour, whether on its own or in any combination with any other
element or substance, which is listed, identified, defined or
determined by any Environmental Law to be harmful to mankind or any
living organism or damaging to the Environment.
"Headroom" means, with respect to the Revolving Credit Facility,
the difference (if any) between the Revolving Credit Facility Limit
and the Revolving Loan at any time (including, in calculating the
amount of the Revolving Loan on any Interest Date, any Revolving
Advance proposed to be drawn on such Interest Date for the purpose
of repaying in whole or in part one or more maturing Revolving
Advances in aggregate in the same or a greater amount).
"Indebtedness" means , in relation to any person, its obligation
(whether present or future, actual or contingent, as principal or
surety) for the payment or repayment of money (whether in respect
of interest, principal or otherwise) incurred in respect of:
(a) moneys borrowed or raised;
(b) any bond, note, loan stock, debenture or similar
instrument;
(c) any acceptance credit, xxxx discounting, note purchase,
factoring or documentary credit facility;
(d) any Finance Lease;
(e) any bond, stand-by letter of credit or other similar
instrument issued in connection with any indebtedness
of the type referred to in any other paragraph of this
definition;
(f) any interest rate or currency swap agreement or any
other hedging or derivatives instrument or agreement;
or
(g) any guarantee, indemnity or similar insurance against
financial loss given in respect of the obligation of
any person in respect of any indebtedness of the type
referred to in this definition.
For the avoidance of doubt Indebtedness does not include credit
incurred in the ordinary course of trading.
"Investor Placing" means the raising by the Parent of new equity by
means of a subscription by the 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, the directors of the Parent and
certain investors documenting the Investor Placing.
"Investors" means the persons defined as the "Subcribers" for the
purposes of the Investor Placing Agreement or such other persons
who may replace or join the foregoing as parties to the Investor
Placing Agreement.
"Interest Date" means the last day of an Interest Period.
"Interest Period" means each period determined in accordance with
Clause 6.2 for the purpose of calculating interest on Revolving
Advances or overdue amounts respectively.
"Lending Office" means, in relation to each Bank, the lending
office details of which are set out in Schedule 1 of the relative
Transfer Certificate or such other lending office through which its
Commitment is maintained and through which its Participation is
made and maintained under this Agreement.
"LIBOR" means, in relation to a Revolving Advance or other sum and
in relation to a particular Interest Period:
(a) the rate of the offered quotation for Sterling deposits
for a period comparable to that Interest Period which
appears on the display designated as "Page 3750" on the
Telerate Service (or such other page or service as may
replace it for the purpose of displaying London
interbank offered rates of prime banks for Sterling
deposits) at or about 11.00 a.m. on the first day of
that Interest Period; or
(b) if no such display rate is available, the rate per
annum (rounded upwards to four decimal places) (as
quoted to the Agent at its request) at which NatWest
was offering deposits in Sterling in an amount
comparable with that Revolving Advance or other sum, as
the case may be, to leading banks in the London
interbank market for a period equal to that Interest
Period at or about 11.00 a.m. on the first day of that
Interest Period.
"Majority Banks" means a group of Banks whose Commitments comprise
at least 662/3 per cent. of the Total Commitments.
"Mandatory Cost Rate" means, the rate determined in accordance with
Schedule 3.
"Margin" means, (i) 1.75 per cent. per annum in respect of drawings
up to (pound)19,500,000 in aggregate under the Revolving Credit
Facility; and (ii) subject to Clause 6.6, 1.0 per cent. per annum
in respect of that portion of the drawings which for the time being
are in excess of (pound)19,500,000 in aggregate under the Revolving
Credit Facility.
"Material Adverse Effect" means a material adverse effect on the
business, assets or financial condition of the Group taken as a
whole which affects the ability of the Borrowers taken as a whole
to perform their payment obligations under the Financing Documents.
"NatWest Obligations" means (pound)100,000 of the monies from time
to time owing to NatWest by the Parent under the Revolving Loan
together with all moneys owing to NatWest in respect of the
Existing Ancillary Facilities.
"NatWest" means National Westminster Bank Plc.
"Net Proceeds" means in relation to the Security the net proceeds
of sale or other realisation of the assets subject to the Security
after discharge of all direct costs incurred in such sale or
realisation, the discharge of any prior ranking claims and, where
appropriate, all costs, charges, fees and expenses of any receiver
or similar officer appointed pursuant to the Security.
"New Jersey Mortgage" means the mortgage over the New Jersey
Property dated 16th January 1998.
"New Jersey Property" means the land and buildings owned by HLS
known as Xxxxxxxx Xxxx, Xxxx Xxxxxxxxx, XX 00000, Xxxxxx Xxxxxx of
America as recorded with the County Clerk of Somerset County as
Lots 11.01, 11.02 and 11.03 in Block 512, Township of Xxxxxxxx,
Somerset County, New Jersey.
"Non-Material Subsidiary" means at any given time, a company within
the Group the value of whose assets does not exceed (pound)200,000.
"Outstandings" means in relation to each Bank, at the time of a
distribution of the Net Proceeds, the amount owing to that Bank by
all the Borrowers under this Agreement in respect of the Priority
Obligations.
"Participation" means, in relation to a Bank and a Revolving
Advance, the part of such Revolving Advance or the Revolving Loan,
as the case may be, made available or to be made available by such
Bank and thereafter the part of such Advance or the Revolving Loan,
as the case may be, owing to such Bank from time to time.
"Participation Percentage" means, at any time, in relation to the
Banks the percentage of their participation in the risk incurred by
the Overdraft Bank under the Overdraft Facility as set out in
Schedule 7 of this Agreement.
"Permitted Encumbrance" means:
(i) any Encumbrance constituted or evidenced by any of the
Financing Documents;
(ii) any rights of set-off or liens arising in the ordinary
course of business;
(iii) any arrangements for retention of title to goods
arising in the ordinary course of business;
(iv) Encumbrances existing as at the date hereof;
(v) any Encumbrance which the Banks have at any time in
writing agreed shall be a Permitted Encumbrance;
(vi) any Encumbrance over goods or documents of title to
goods or negotiable instruments in respect thereof
created in support of any documentary credit or letter
of credit transaction entered into by a company within
the Group in the ordinary course of its trading
activities;
(vii) in the case of a company becoming a member of the Group
after the date hereof, any Encumbrance existing over the
assets of that member of the Group at the time it became
a member of the Group provided that (a)the principal
amount secured thereby is not increased, (b) such
Encumbrance is not created in contemplation of or in
connection with its becoming a member of the Group,
(c) such Encumbrance is discharged within 180 days after
such company becoming a member of the Group, and (d) no
other member of the Group has provided any guarantee,
support or other financial accommodation in relation to
the amount secured thereby;
(viii) any Encumbrance existing over any assets acquired by
any member of the Group at the time of acquisition,
provided that (a) the principal amount secured thereby
is not increased, (b) such Encumbrance is not created
in contemplation of or in connection with the
acquisition of such asset by any member of the Group,
and (c) such Encumbrance is discharged within 180 days
after the asset is required by such member of the
Group;
(ix) any Encumbrance arising out of the right of a clearing
bank to combine or consolidate any accounts or to
set-off or transfer any sum or sums standing to the
credit of any account in or towards satisfaction of any
present or future liabilities to that clearing bank;
and
(x) in the case of HLS, Encumbrances for taxes, assessments
or governmental charges or levies not yet delinquent or
which are being actively contested in good faith by
appropriate proceedings and, where the obligation
secured by such Encumbrance is not more than 60 days
overdue, Encumbrances placed on the property of HLS or
any Subsidiary of it securing claims of mechanics or
suppliers arising in the ordinary course of business.
"Permitted Indebtedness" means:
(a) Indebtedness under any Financing Document;
(b) Indebtedness existing at the date of this Agreement of the
Group Companies;
(c) Indebtedness of any Group Company to another Group Company;
(d) without limitation to (b) above, Indebtedness owing
under an asset purchase agreement dated 14th March 1997
between Ciba Geigy plc, the Parent and HLSL;
(e) Indebtedness incurred with the consent of the Agent
acting on the instructions of the Majority Banks;
(f) Indebtedness under Finance Leases in an aggregate
principal amount of up to (pound)750,000 in each
Financial Year of the Group; and
(g) any Indebtedness which refinances any Indebtedness
referred to in (a), (b), (c), (d), (e) or (f) up to the
amount then outstanding above.
"Placings" mean the Investor Placing and the Shareholder Placing.
"Priority Obligations" means all moneys owing, obligations and
other liabilities of the Borrowers to the Banks and the Agent under
the Revolving Credit Facility.
"Qualifying Bank" means an institution which is a bank as defined
by section 840A of the Income and Corporation Taxes Xxx 0000.
"Revolving Advance" means each revolving advance drawn down under
the Revolving Credit Facility or, as the case may be, the
outstanding principal amount of each such revolving advance.
"Revolving Credit Facility" means the Revolving Credit Facility
referred to in Clause 3.1.1.
"Revolving Credit Facility Limit" means, subject to Clauses 7.3 and
7.4, (pound)24,500,000.
"Revolving Loan" means, at any time, the aggregate of all Revolving
Advances outstanding at that time.
"Security" means the documents listed in Schedule 5 together with
any other guarantees and documents creating security executed and
delivered on or before or after the date hereof by any member of
the Group securing the obligations and liabilities of any of the
Borrowers and the other members of the Group under this Agreement
and the Existing Ancillary Facilities (and Security Documents shall
be defined accordingly).
"Security Period" means the period starting on the date hereof and
ending on the date on which all of the obligations and liabilities
of the members of the Group under each of this Agreement and the
Security are discharged in full and none of the Agent and the Banks
has any continuing obligation in relation to the Revolving Credit
Facility and the Existing Ancillary Facilities.
"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.
"Shareholders" means certain institutional shareholders of the
Parent.
"SSAP" together with a number means the statement of standard
accounting practice issued by the Institute of Chartered
Accountants for application in England and Wales and identified by
reference to that number.
"Sterling", "Pounds" and "(pound)" means the lawful currency for
the time being of the United Kingdom.
"Subsidiary" has the meaning ascribed to it by section 736 of the
Companies Xxx 0000 and "Subsidiaries" shall be construed
accordingly.
"Tax" includes all present and future taxes, charges, imposts,
duties, levies, deductions, withholdings of any kind whatsoever, or
any amount payable on account of or as security for any of the
foregoing, by whomsoever on whomsoever and wherever imposed,
levied, collected, withheld or accrued, together with any
penalties, additions, fines, surcharges or interest relating
thereto and "Taxes" and "Taxation" shall be construed accordingly.
"TMG Companies" means, but only for so long as Xxxxxxx Xxxxxx
Limited, (a company incorporated in England and Wales with
registered number 2232567) is in administration or liquidation, all
and each of Xxxxxxx Xxxxxx Limited, and each of its Subsidiaries as
at the date of this Agreement and "TMG Company" shall be construed
accordingly.
"Total Commitments" means the aggregate of the Banks' Commitments.
"Transaction Proceeds" means the monies (net of costs) raised by
the Parent pursuant to the Placings.
"Transfer Certificate" means a transfer certificate in
substantially the form set out in Schedule 4.
"VAT" means value added tax as provided for in the Value Added Tax
Xxx 0000 and legislation (whether delegated or otherwise)
supplemental to that Act or in any primary or secondary legislation
promulgated by the European Community or any official body or
agency of the European Community, and any tax similar or equivalent
to value added tax imposed by any country other than the United
Kingdom and any similar Tax or any turnover Tax replacing or
introduced in addition to any of the same.
"Wilmslow Disposal" means the Disposal of the Wilmslow Property.
"Wilmslow Property" means the property situated at Wilmslow, near
Manchester and owned by HLSL.
1.2 Clause Headings
Clause headings are for convenience of reference only and shall not
affect the construction of this Agreement.
1.3 Interpretation
In this Agreement, unless the context otherwise requires:
(a) references to this Agreement include the Schedules;
(b) references to Clauses and Schedules are to be construed
as references to the Clauses of, and Schedules to, this
Agreement as amended from time to time;
(c) references to any person shall be construed so as to
include that person's permitted assigns, transferees or
successors in title;
(d) references to statutes and other legislation shall
include all re-enactments and amendments thereof;
(e) references to (or to any specified provisions of) any
Financing Document or any other document shall be
construed as references to such Financing Document,
that provision or that document as amended or novated
or supplemented, as the case may be, from time to time;
(f) references to a document being in the "agreed form"
means that document the form and content of which has
been approved by the Agent and which has been endorsed
on it the words "in an agreed form" and is initialled
on behalf of or by the Agent and the Parent;
(g) accounting terms shall be construed so as to be
consistent with GAAP;
(h) 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;
(i) the words "including" and "in particular" shall be
construed as being by way of illustration or emphasis
only and shall not be construed as, nor shall they take
effect as, limiting the generality of any foregoing
words;
(j) unless otherwise stated herein the obligations and
liabilities of the Borrowers herein are the joint and
several obligations and liabilities of the Borrowers;
and
(k) references to working capital purposes or requirements
or similar expressions shall include without limitation
Capital Expenditure and the payment or repayment of any
other amount payable under the Financing Documents, the
Bridging Facility, the Existing Facilities
and the Existing Ancillary Facilities.
2. CONDITIONS PRECEDENT
2.1 Notwithstanding any other term of this Agreement, none of the Agent
and the Banks shall be under any obligation to make the Revolving
Credit Facility available to the Borrowers unless the Agent has
notified the Parent and the Banks that it has received all the
documents and items listed in Schedule 6.
2.2 The Agent on receipt of all the documents listed in Schedule 6
shall as soon as practicable acknowledge to the Borrowers that such
documents have been received and, accordingly, subject to the
satisfaction of the Conditions Precedent referred to in paragraph
(ii), (iii) and (iv) of Schedule 6 and the applicable conditions
precedent set out in Clause 5.2.1(b), (c) and (d), the Revolving
Credit Facility is available for drawing.
3. FACILITIES
3.1. Facilities
3.1.1 Subject to the terms and conditions of this Agreement the Banks
agree to make available to the Parent, a sterling revolving credit
facility in the maximum principal amount of (pound)24,500,000.
3.1.2 For the avoidance of doubt, it is hereby declared that,
notwithstanding any other provision of this Agreement:
(i) the aggregate of the Revolving Advances shall not, at
any time, exceed the Total Commitments; and
(ii) no Bank shall be obliged to lend more than its Commitment.
3.2 Obligations Several
3.2.1 The obligations of the Banks under this Agreement are several.
3.2.2 The failure of a Bank to carry out its obligations hereunder shall
not relieve any other party hereto of any of its obligations
hereunder.
3.2.3 None of the Banks shall be responsible for the obligations of any
others hereunder.
3.3 Rights Several
3.3.1 Without prejudice to the provisions of this Agreement relating to
or requiring action by all or any of the Banks, the rights of each
of the Banks and the Agent are several and all amounts due, and
obligations owed, to each of them are separate and independent
debts or, as the case may be, obligations.
3.3.2 Each Bank and the Agent may, except as otherwise stated in this
Agreement, separately enforce its rights hereunder.
3.4 Existing Ancillary Facilities
NatWest agrees to continue to provide the Existing Ancillary
Facilities on the same terms and conditions which apply thereto on
the date hereof save that the same may only be withdrawn or
cancelled or required to be repaid in accordance with the
provisions of Clause 13.2.
4. PURPOSE
4.1 Purpose of the Revolving Credit Facility
The proceeds of the Revolving Credit Facility shall be used:
(i) to repay the Existing Facilities Outstandings; and thereafter
(ii) for the general working capital purposes of the Group.
4.2 Undertaking by the Parent
The Parent undertakes that it will use the Revolving Credit
Facility only as permitted by this Clause 4.
4.3 No Liability
Neither the Agent nor any of Banks shall be concerned as to the use
or application of the proceeds of the Revolving Credit Facility.
5. DRAWDOWN AND PARTICIPATIONS
5.1 Drawdown under the Revolving Credit Facility
5.1.1 Revolving Advances shall be made to the Parent at any time during
the Commitment Period when requested by the Parent by means of a
Drawdown Notice in accordance with Clause 5.3. At the close of
business on the last day of the Commitment Period, the Commitment
of each Bank shall be automatically cancelled.
5.1.2 Revolving Advances shall be drawn in Sterling and shall be in an
amount of at least (pound)1,000,000 and be an integral multiple of,
(pound)500,000, or, if less, the amount of the Available Revolving
Credit Facility.
5.1.3 No more than 8 Revolving Advances shall be outstanding at any
one time.
5.1.4 No Revolving Advance shall be made if the making of that Revolving
Advance would result in the Revolving Loan exceeding the Total
Commitments.
5.2 Drawdown
5.2.1 Whenever the Parent wishes a Revolving Advance to be made, it shall
give a Drawdown Notice to the Agent to be received not later than
11.00 a.m. (London time) two (2) Business Days prior to, the
relative Drawdown Date PROVIDED THAT notwithstanding any other
provision of this Agreement (save for Clause 5.2.5), no Drawdown
Notice may be served in respect of a Revolving Advance and no
Revolving Advance will be made:
(a) unless the Conditions Precedent shall have been satisfied; or
(b) if a Default or, a Default Occurrence, has occurred and
is continuing unremedied and unwaived by the Agent
acting on the instructions of the Majority Banks or if
a Default would occur on the making of such Revolving
Advance; or
(c) unless the representations and warranties deemed to be
repeated pursuant to Clause 11.3 are, or will be, true
and accurate in all material respects on the date on
which the relative Drawdown Notice is served and on the
relative Drawdown Date; or
(d) in respect of a Revolving Advance, if the making of
such Revolving Advance would cause the amount of the
Revolving Loan to be greater than the Revolving Credit
Facility Limit.
5.2.2 Subject always to the other terms of this Agreement, a Drawdown
Notice shall be irrevocable and the Parent shall be obliged to
borrow in accordance with its terms.
5.2.3 Revolving Advances shall be made only on a Business Day falling
before the end of the Commitment Period.
5.2.4 Promptly upon receipt of the same, the Agent shall notify the Banks
of its receipt of a Drawdown Notice.
5.2.5 Clauses 5.2.1(b) and (c) shall not apply in the case of the first
drawdown under the Revolving Facility to the extent used to repay
the Existing Facility Outstandings or any other drawdown in respect
of a Revolving Advance used to repay in whole or in part one or
more maturing Revolving Advances in aggregate in the same or a
greater amount.
5.3 Participations and Payments
5.3.1 Subject always to the other terms of this Agreement, each Bank
acting through its Lending Office, agrees to contribute its
Participation in each Revolving Advance in the amount of its
Participation being that proportion which its undrawn Commitment
bears to the undrawn part of the Total Commitments on the relative
Drawdown Date.
5.3.2 Subject to receiving written notification from the Agent of the
terms of a Drawdown Notice, each Bank shall on the relative
Drawdown Date make available to the Agent to such account as the
Agent may have previously specified for this purpose, not later
than 11.00 a.m. (London time) on such date in immediately available
funds, an amount in Sterling equal to its Participation in the
requested Revolving Advance.
5.4 Repayment of Existing Facilities
5.4.1 The Borrowers hereby irrevocably instruct the Agent and the Agent
agrees to apply such part of the Transaction Proceeds as is
necessary to repay the Bridging Facility in full.
5.4.2 The repayment of the Bridging Facility shall be made on the date of
receipt by the Agent of the Transaction Proceeds.
5.4.3 No indemnity payment, breakage costs, prepayment or cancellation
fees or other amounts shall be payable in respect of any repayment
in accordance with this Clause 5.4 other than pursuant to a side
letter dated today's date between the Parent and the Agent.
5.4.4 On and with effect from the date of repayment of the Bridging
Facility, the Bridging Facility shall be terminated and be
cancelled.
5.4.5 The repayment of the Existing Facilities Outstandings by means of
the drawing of the first Revolving Advance on any date shall be
permitted notwithstanding that the repayment would not otherwise be
permitted but for this Clause 5.
5.4.6 On and with effect from the date of repayment of the Existing
Facilities Outstandings, the Existing Facilities shall be
terminated and cancelled.
5.4.7 The Existing Facilities are hereby amended to the extent necessary
to give effect to this Clause 5.4.
5.5 Confirmation
The Banks warrant and undertake to each of the Borrowers that apart
from this Revolving Credit Facility, the Existing Ancillary
Facilities, the Existing Facilities and the Bridging Facility are
the only lending facilities which are made available to the Group
by the Banks as at the date hereof.
6. INTEREST
6.1 Interest Rate
Interest shall accrue on each Revolving Advance in respect of each
Interest Period at the rate, in each case, determined by the Agent
to be the aggregate of:
(i) the Margin;
(ii) LIBOR; and
(iii) Mandatory Cost Rate.
6.2 Interest Periods
6.2.1 The Parent shall select an Interest Period for a Revolving Advance
in the relevant Drawdown Notice. Interest Periods in respect of a
Revolving Advance may be of one or three months' duration or such
other period as the Banks (acting reasonably) may agree with the
Parent.
6.2.2 No Interest Period shall extend beyond Final Repayment Date and if
an Interest Period purports so to do, it shall nevertheless expire
on Final Repayment Date.
6.2.3 Any Interest Period which commences on the last Business Day in a
month or on a Business Day for which there is no numerically
corresponding day in the month in which that Interest Period is to
end, shall (subject to Clause 6.2.4) end on the last Business Day
in that later month.
6.2.4 Any Interest Period which would otherwise end on a day which is not
a Business Day, shall end on the next succeeding Business Day or,
if that day falls in the following month, on the immediately
preceding Business Day.
6.3 Default Interest
6.3.1 If a Borrower fails to pay any sum payable under any Financing
Document on the due date, such Borrower shall pay default interest
on such sum (or, as the case may be, the amount thereof for the
time being due and unpaid) to the Agent for the account of the
Agent or the Banks, as the case may be, from the due date to the
date of actual payment in full calculated by reference to
successive Interest Periods (each of such duration as the Agent
may from time to time select (but not shorter than one week) and
the first beginning on the relative due date) at the
rate per annum being the aggregate of:
(i) 1 per cent. per annum;
(ii) the Margin;
(iii) LIBOR; and
(iv) the Mandatory Cost Rate.
6.3.2 So long as the default continues, such rate shall be recalculated
in accordance with the provisions of this Clause 6.3 on the last
day of each such Interest Period and unpaid interest then payable
but unpaid under this Clause shall if not paid be compounded at the
end of each Interest Period.
6.4 Calculation and Payment of Interest
6.4.1 Promptly following the beginning of each Interest Period, the Agent
will notify the relative Borrower of the rate and amount of
interest payable for such Interest Period (but in the case of such
interest calculated under Clause 6.3, any such notification need
not be made more frequently than weekly). Such notification shall
set out in reasonable detail the basis of computation of the amount
of interest so payable.
6.4.2 Interest due from the relative Borrower to any of the Agent and the
Banks under this Agreement shall:
(i) accrue from day to day at the appropriate rate calculated
under this Clause 6;
(ii) except as otherwise provided in this Agreement, be paid
by the relative Borrower to the Agent for the account
of the Banks or the Agent, as the case may be, in
arrear on each Interest Date, save that in the case of
any Interest Period which is for longer than 3 months,
the relative Borrower shall pay interest at the end of
each 3 month period during such period and on the
relative Interest Date;
(iii) be calculated on the basis of the actual number of days
elapsed and a 365 day year; and
(iv) be payable after as well as before judgment.
6.5 Agent's Determination
The determination by the Agent of any interest payable under any of
Clauses 6.1 and 6.3 shall constitute prima facie evidence of the
amount payable by the relative Borrower.
6.6 Adjustment to Margin
The Margin of 1% per annum applicable to drawings in excess of
(pound)19,500,000 shall only apply for so long as there remains
standing to the credit of the Deposit Account the sum of at least
(pound)5,000,000. For each pound by which the amount standing to
the credit of the Deposit Account is reduced below (pound)5,000,000
the Margin shall be increased to 2% per annum in respect of an
equivalent amount of drawings in excess of (pound)19,500,000.
7. REPAYMENT
7.1 Repayment of the Revolving Loan
7.1.1 Subject to the terms of this Agreement, the Parent shall repay each
Revolving Advance in full on the relevant Interest Date by means of
a payment to the Agent (for the account of the Banks).
7.1.2 Subject to the terms of this Agreement, any amounts repaid under
this Agreement may be re-borrowed.
7.1.3 If all or part of an existing Revolving Advance is to be repaid
from the proceeds of all or part of a new Revolving Advance, then
as between each Bank and the Borrower, the amount to be repaid by
the Borrower shall be set off against the amount to be advanced by
that Bank in relation to the new Revolving Advance and the party to
whom the smaller amount is to be paid shall pay to the other party
a sum equal to the difference between the two amounts.
7.1.4 For the avoidance of doubt the Revolving Loan shall be repaid by
the Borrower in full on the Final Repayment Date.
7.2 Prepayment
Subject to Clauses 7.3, 8 and 9 the Borrower may not prepay any
Revolving Advance before the end of its Interest Period.
7.3 Mandatory Prepayment on Wilmslow Disposal and other Disposals
7.3.1 On completion of the Wilmslow Disposal the Parent shall procure
that there is paid into its current account with NatWest the net
proceeds of sale received by HLSL of the Wilmslow Property after
deduction only of any amounts owing under the Ciba Geigy Agreement
and the direct costs (including any VAT) incurred in relation to
such sale (the "Net Wilmslow Proceeds").
7.3.2 On completion of any Disposals or series of connected Disposals in
respect of which the Disposal Proceeds exceed (pound)50,000 the
Parent shall procure that there is paid into its current account
with NatWest the Disposal Proceeds.
7.3.3 If there is sufficient Headroom in the Revolving Credit Facility
the Revolving Credit Limit shall be reduced by an amount equivalent
to the Net Wilmslow Proceeds or the relevant Disposal Proceeds (as
the case may be). To the extent that there is not sufficient
Headroom the Revolving Credit Limit shall be reduced by an amount
equivalent to the Net Wilmslow Proceeds or the relevant Disposal
Proceeds (as the case may be) on the next Interest Date. Any such
reduction shall reduce each Bank's Commitment rateably.
7.4 Cancellation
7.4.1 The Parent may, by giving the Agent not less than 2 Business Days'
prior notice, cancel all or part of the Available Revolving Credit
Facility (but if in part, in a minimum amount of (pound)1,000,000
and an integral multiples of (pound)500,000).
7.4.2 Any notice of cancellation shall be irrevocable and shall specify
the date on which the cancellation shall take effect and the amount
of the cancellation. The Agent shall promptly notify the Banks of
receipt of any such notice.
7.4.3 The Parent may not borrow any part of the Revolving Credit Facility
which has been cancelled. Any cancellation shall reduce each Bank's
Commitment rateably.
7.4.4 The Parent may not cancel all or part of the Revolving Credit
Facility except as expressly provided in this Agreement.
8. CHANGES IN CIRCUMSTANCES
8.1 Illegality
If by reason of a Change it is or becomes illegal for a Bank to
maintain its Commitment or to continue to make available or fund
its Participation in any Revolving Advance, then:
(a) that Bank shall notify the Agent and the Parent; and
(b) (i) the Commitment of that Bank shall be cancelled
immediately; and
(ii) the Parent shall prepay to the Agent (for
the account of that Bank) that Bank's
Participation in all Revolving Advances
(together with accrued interest on the
amount prepaid and all other amounts owing
to that Bank under this Agreement) within 5
Business Days of demand by that Bank (or,
if permitted by the relevant law, on the
next Interest Date of the relevant
Revolving Advances).
Any such prepayment under paragraph (b)(ii) above shall be subject
to Clause 9.3.
8.2 Increased Costs
8.2.1 If, after the date of this Agreement, a Change occurs which causes
an Increased Cost (as defined in Clause 8.2.3) to a Bank (or any
company of which that Bank is a Subsidiary) then the Parent shall
pay (as additional interest) to the Agent (for the account of that
Bank) within 5 Business Days of demand all amounts which that Bank
certifies to be necessary to compensate that Bank (or any company
of which that Bank is a Subsidiary) for the Increased Cost.
8.2.2 Any demand made under Clause 8.2.1 shall be made by the relevant
Bank through the Agent and shall set out in reasonable detail so
far as is practicable the basis of computation of the Increased
Cost.
8.2.3 In this Clause 8.2:
"Increased Cost" means any cost to, or reduction in the amount
payable to, or reduction in the return on capital or regulatory
capital achieved by, a Bank (or any company of which that Bank is a
Subsidiary) to the extent that it arises, directly or indirectly,
as a result of the Change and is attributable to the Commitment or
Participation in any Revolving Advance of that Bank or the funding
of that Bank's Participation in any Revolving Advance:
(a) any Tax Liability (other than Tax on Overall Net Income)
incurred by that Bank;
(b) any changes in the basis or timing of Taxation (other
than Tax on Overall Net Income) of that Bank in
relation to its Commitment or Participation in any
Revolving Advance or to the funding of that Bank's
Participation in any Revolving Advance;
(c) the cost to that Bank (or any company of which that Bank is a
Subsidiary) of complying with, or the reduction in the amount
payable to or reduction in the return on capital or regulatory
capital achieved by that Bank (or any company of which that
Bank is a Subsidiary) as a result of complying with, any
capital adequacy or similar requirements howsoever arising,
including as a result of an increase in the amount of capital
to be allocated to the Revolving Credit Facility or of a
change to the weighting of that Bank's
Commitment or Participation in any Revolving Advance; and
(d) the cost to that Bank of complying with any reserve,
cash ratio, special deposit or liquidity requirements
(or any other similar requirements).
"Tax Liability" means, in respect of any person:
(a) any liability or any increase in the liability of that
person to make any payment of or in respect of Tax;
(b) the loss of any relief, allowance, deduction or credit
in respect of Tax which would otherwise have been
available to that person;
(c) the setting off against income, profits or gains or
against any Tax liability of any relief, allowance,
deduction or credit in respect of Tax which would
otherwise have been available to that person; and
(d) the loss or setting off against any Tax liability of a
right to repayment of Tax which would otherwise have
been available to that person.
For the purposes of this definition of "Tax Liability", any
question of whether or not any relief, allowance, deduction, credit
or right to repayment of Tax has been lost or set off, and if so,
the date on which that loss or set-off took place, shall be
conclusively determined by the relevant person's auditors.
"Tax on Overall Net Income" means, in relation to a Bank, Tax
(other than Tax deducted or withheld from any payment) imposed on
the net profits of that Bank by the jurisdiction in which its
Lending Office or its head office is situated.
8.2.4 The Parent shall not be obliged to make a payment in respect of an
Increased Cost under this Clause 8.2 to the extent that the
Increased Cost has been compensated for by the payment of Mandatory
Cost Rate or the operation of Clause 9.4 (or would be so
compensated but for the operation of Clause 9.4.4 or Clause 19).
8.2.5 If the Parent is required to pay any amount to a Bank under this
Clause 8.2, then, without prejudice to that obligation and so
long as the circumstances giving rise to the relevant Increased
Cost are continuing and subject to the Parent giving the
Agent and that Bank not less than 10 Business Days' prior notice
(which shall be irrevocable), the Parent may prepay all, but not
part, of that Bank's Participation in the Revolving Loan together
with accrued interest on the amount prepaid. Any such prepayment
shall be subject to Clause 9.3. On any such prepayment the
Commitment of the relevant Bank shall be automatically cancelled.
8.3 Market disruption
8.3.1 If, in relation to an Revolving Advance and a particular Interest
Period:
(a) the Agent determines that, because of circumstances
affecting the London interbank market generally,
reasonable and adequate means do not exist for
ascertaining LIBOR for that Revolving Advance for that
Interest Period; or
(b) the Agent has been notified by a group of Banks whose
Commitments together exceed 50 per cent. of the Total
Commitments that in their opinion:
(i) matching deposits may not be available to
them in the London interbank market in the
ordinary course of business to fund their
Participations in that Revolving Advance
for that Interest Period; or
(ii) the cost to them of obtaining matching
deposits in the London interbank market
would be in excess of LIBOR for that
Interest Period,
the Agent shall promptly notify the Parent and the Banks of that
event (such notice being a "market disruption notice").
8.3.2 If a market disruption notice applies to a proposed Revolving
Advance, that Revolving Advance shall not be made. Instead, the
Agent and the Borrowers shall immediately enter into negotiations
for a period of not more than 30 Business Days with a view to
agreeing a substitute basis for calculating the interest rate for
the Revolving Advance or for funding the Revolving Advance
(whether in Sterling or another currency). Any substitute basis
agreed by the Agent (with the consent of all the Banks) and the
Borrowers shall take effect in accordance with its terms
and be binding on all the Parties. This Clause 8.3.2 shall not
apply in respect of a proposed Revolving Advance used to repay one
or more maturing Revolving Advances in aggregate in the same
amount or a greater amount and Clause 8.3.3 shall apply instead.
8.3.3 If a market disruption notice applies to an outstanding Revolving
Advance, then:
(a) the Agent and the Parent shall immediately enter into
negotiations for a period of not more that 30 Business
Days with a view to agreeing a substitute basis for
calculating the rate of interest for the Revolving
Advance or for funding the Revolving Advance (whether
in Sterling or another currency);
(b) any substitute basis agreed under Clause 8.3.3(a) by
the Agent (with the consent of all the Banks) and the
Parent shall take effect in accordance with its terms
and be binding on all the Parties;
(c) if no substitute basis is agreed under Clause 8.3.3(a),
then, subject to Clause 8.3.4, each Bank shall (through the
Agent) certify before the last day of the Interest Period to
which the market disruption notice relates a substitute
basis for maintaining its Participation in the Revolving
Advance which shall reflect the cost to the Bank of funding
its Participation in the Revolving Advance from whatever
sources it reasonably selects plus the Margin and
(if applicable) Mandatory Cost Rate; and
(d) each substitute basis so certified shall be binding on
the Parent and the certifying Bank and treated as part
of this Agreement.
8.3.4 If no substitute basis is agreed under Clause 8.3.3(a), then, so
long as the circumstances giving rise to the market disruption
notice continue and subject to the Parent giving the Agent and the
Banks not less than 10 days' prior notice (which shall be
irrevocable), the Parent may prepay the Revolving Advance to which
the market disruption notice applies together with accrued interest
on the amount prepaid. Any such prepayment shall be subject to
Clause 9.3.
8.3.5 If circumstances which gave or would give rise to the service of a
market disruption notice cease, the original basis for calculating
LIBOR will again apply.
8.4 Mitigation
8.4.1 If any circumstances arise in respect of any Bank which would, or
upon the giving of notice would, result in the operation of Clause
8.1, 8.2, 8.3 or 9.4 to the detriment of the Parent, then that Bank
shall:
(a) promptly upon becoming aware of those circumstances and their
results, notify the Agent and the Parent; and
(b) in consultation with the Agent and the Parent, take
reasonable steps to mitigate the effects of those
circumstances (including changing its Lending Office or
consulting with the Parent with a view to transferring some
or all of its rights and obligations under this Agreement to
another bank or other financial institution acceptable to
the Parent) in a manner which will avoid the circumstances in
question and on terms reasonably acceptable to the Agent, the\
Parent and thatBank,
provided that no Bank shall be obliged to take any steps which in
its reasonable opinion would or might have an adverse effect on its
business or financial condition or the management of its Tax
affairs or cause it to incur any material additional costs or
expenses.
8.4.2 Nothing in this Clause 8.4 shall limit, reduce, affect or otherwise
qualify the rights of any Bank or the obligations of the Parent
under Clauses 8.1, 8.2, 8.3 and 9.4 other than as expressly
provided.
8.4.3 Each Bank undertakes to notify the Parent as soon as is reasonably
practical of any matter of which the Bank becomes aware which would
or might reasonably be expected to give rise to any obligation or
liability on the part of the Parent under this Clause 8.
8.5 Certificates
The certificate or notification of the Agent or, as the case may
be, the relevant Bank as to any of the matters in relation to which
this Clause 8 provides for a certificate or notification to be
given shall be in reasonable detail and shall be prima facie
evidence of the contents thereof.
9. PAYMENTS
9.1 Time and Place
All payments to be made by the Borrowers in relation to this
Agreement shall be made on the due date in immediately available
funds in Sterling by no later than 12.00 noon (London time) to the
appropriate account in London of the Agent which account shall have
been previously specified by the Agent.
9.2 Business Days
If, but for this Clause, any sum would become due for payment under
this Agreement on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day PROVIDED THAT if
the next succeeding Business Day falls in the next calendar month,
then such payment shall be made on the immediately preceding
Business Day.
9.3 Indemnity and Breakage Costs
9.3.1 Each Borrower agrees to indemnify each Bank on demand against any
loss or expense (including, but not limited to any loss or expense
sustained or incurred or to be sustained or incurred by any Bank in
liquidating or employing deposits acquired or contracted for to
effect or maintain its Participation in the Revolving Loan or any
part thereof other than any loss of Margin) which such Bank has
sustained or incurred as a consequence of any of:
(i) a Revolving Advance not being made, following the
service of a Drawdown Notice by reason of the
non-fulfilment of any of the Conditions Precedent or
otherwise (save as may arise as a result of the failure
of such Bank to comply with its obligations hereunder);
(ii) a failure of the Borrowers to make payment on the due
date of any sum due under this Agreement; and
(iii) the repayment of the Revolving Loan or the termination
of the Revolving Credit Facility pursuant to Clause 13.
9.3.2 If any prepayment or repayment is made otherwise than on an
Interest Date, each Borrower shall on demand pay to the Agent, for
the account of the Banks, such additional amount (not being an
amount to which the indemnity in Clause 9.3.1 applies) as the
Agent may certify is necessary to compensate the Banks or any of
them for any loss or expense on account of funds borrowed,
contracted for or utilised to fund the amounts so repaid or
prepaid. Any certifications issued by the Agent pursuant to this
Clause shall be in reasonable detail and constitute
prima facie evidence of the contents thereof.
9.4 Grossing-Up
9.4.1 Subject to Clause 9.4.2, all sums payable to any of the Agent and
the Banks by a Borrower pursuant to or in connection with any of
the Financing Documents shall be paid in full without any set-off
or counterclaim whatsoever and free and clear of all deductions or
withholdings whatsoever save only as may be required by law.
9.4.2 If any deduction or withholding is required by law in respect of
any payment due to any of the Agent and the Banks pursuant to or in
connection with any of the Financing Documents, the relative
Borrower shall:
(a) ensure or procure that the deduction or withholding is
made and that it does not exceed the minimum legal
requirement therefor;
(b) pay, or procure the payment of, the full amount
deducted or withheld to the relevant Taxation or other
authority in accordance with the applicable law;
(c) (i) subject to Clause 9.4.4 increase the payment in
respect of which the deduction or withholding is
required so that the net amount received by the
payee (which expression when used in this Clause
9.4.2 shall mean the Agent or any Bank) after
the deduction or withholding (and after taking
account of any further deduction or withholding
which is required to be made as a consequence
of the increase) shall be equal to the amount
which the payee would have been entitled to
receive in the absence of any requirement
to make any deductions or withholdings; or
(ii) subject to Clause 9.4.4. if the payment is to be
made by any other Borrower, pay directly to the
payee such sum (a "compensating sum") as will,
after taking into account any deduction or
withholding which the relative Borrower is
obliged to make from the compensating sum,
enable the payee to receive, on the due date for
payment, a net sum equal to the sum which the
payee would have received in the absence of any
obligation to make any deductions or
withholdings; and
(d) as soon as reasonably practicable deliver or procure
the delivery to the relative payee of receipts or other
documentation reasonably satisfactory to the payee
evidencing each of the deductions or withholdings which
has been made.
9.4.3 If the Agent is obliged to make any deduction or withholding from any
payment to any of the Banks (an "agency payment") which represents an
amount or amounts received by the Agent from any Borrower under any of
the Financing Documents, the relative Borrower shall pay directly to
the relative Bank such sum (an "agency compensating sum") as will,
after taking into account any deduction or withholding which the
relative Borrower is obliged to make from the agency compensating sum,
enable such Bank to receive, on the due date for payment of the agency
payment, an amount equal to the agency payment which such Bank would
have received in the absence of any obligation to make any deductions
or withholdings.
9.4.4 The Borrowers shall not be required to pay an additional amount
under this Clause 9.4 if the payment in respect of which the
deduction or withholding is required is a payment of interest on a
Revolving Advance and:
(a) at the time the Revolving Advance was made, the Bank
making the relevant Revolving Advance was not a
Qualifying Bank otherwise than as a consequence of a
Change occurring after the date of this Agreement (and
the obligation to deduct or withhold would not have
arisen if the Advance had been made by a Qualifying
Bank); or
(b) at the time when the interest is paid, the Bank to which
the relevant payment is made is not beneficially entitled
to it or, being beneficially entitled to it, the Bank is
not within the charge to United Kingdom corporation tax as
respects it otherwise than as a consequence of a Change
occurring after the date of this Agreement(and the
obligation to deduct or withhold would not have arisen if
the Bank had been beneficially entitled to the interest
and had been within the charge to United Kingdom
corporation tax as respects it).
9.4.5 (a) If any of the Banks determines, in its absolute discretion
acting in good faith, that it has received, realised,
utilised and retained a Tax benefit by reason of any
deduction or withholding in respect of which a Borrower
has made an increased payment or paid a compensating sum
or an agency compensating sum under Clause 9.4, such Bank
shall, provided that the Agent and each Bank has received
all amounts which are then due and payable by the Borrowers
under any of the Financing Documents, pay to such Borrower
(to the extent that such Bank can do so without prejudicing
the amount of such benefit or repayment and the right of
such Bank, to obtain any other benefit, relief or allowance
which may be available to it) such amount, if any, as such
Bank, in its absolute discretion shall in good faith
determine, will leave such Bank in no worse position than it
would have been in if the deduction
or withholding had not been required PROVIDED THAT:
(i) each Bank shall have an absolute discretion
as to the time at which and the order and
manner in which it realises or utilises any
Tax benefit and shall not be obliged to
arrange its business or its Tax affairs in
any particular way in order to be eligible
for any credit or refund or similar
benefit;
(ii) no Bank shall be obliged to disclose any
information regarding its business, Tax
affairs or Tax computations;
(iii) if a Bank has made a payment to a Borrower pursuant to
this Clause 9.4.5 on account of any Tax benefit and it
subsequently transpires that such Bank did not receive
that Tax benefit, or received a lesser Tax benefit, the
relative Borrower shall, on demand, pay to such Bank
such sum not exceeding the amount of the said payment
made by it to the Borrower as the relative Bank may
determine as being necessary to restore its after-Tax
position to that which it would have been had no
adjustment under this Clause (iii) been necessary.
(b) No Bank shall be obliged to make any payment under this
Clause 9.4.5 if, by doing so, it would contravene the
terms of any applicable law or any notice, direction or
requirement of any governmental or regulatory authority
(whether or not having the force of law).
9.5 Prepayment Right
If a Borrower is required to make an increased payment for the
account of a Bank under Clause 9.4.2 or 9.4.3 (but only so long as
such requirement exists), subject to giving the Agent and such Bank
not less than 10 Business Days' prior written notice (which shall
be irrevocable), the relative Borrower may prepay such Bank's
Participation in the Revolving Credit Facility together with
accrued interest thereon PROVIDED THAT any such prepayment shall be
subject to the provisions of Clause 9.3 above. On any such
prepayment the Commitment of the relevant Bank will be cancelled
and reduced to zero.
9.6 Accounts as Evidence
Each Bank shall maintain in accordance with its usual practice an
account or accounts, which account or accounts shall, in the
absence of manifest error, as between the Borrowers and such Bank
be prima facie evidence of the amounts from time to time advanced
by, owing to, paid and repaid to such Bank under this Agreement.
9.7 Currency of Account
All payments to be made by a Borrower in respect of a Revolving
Advance, whether of interest or principal, shall be made in
Sterling. All payments to be made under any indemnity or
reimbursement provision of this Agreement relating to costs, losses
and expenses shall be paid in Sterling.
9.8 Borrowers' Payments
9.8.1 The Agent may assume that each Borrower will make all payments due
from it under this Agreement on the due date and the Agent may, in
reliance upon such assumption, make available to each Bank on any
payment date an amount equal to such Bank's pro-rata share of such
assumed payment.
9.8.2 If a Borrower does not in fact make such payment to the Agent, each
Bank shall forthwith on demand by the Agent repay to the Agent the
amount made available to such Bank (together with interest thereon
at the rate determined by the Agent as being its cost of funding
such payment).
9.9 Banks' Payments
9.9.1 The Agent may assume that each Bank has made its Participation in a
Revolving Advance available to the Agent on the relative Drawdown
Date and the Agent may in reliance upon such assumption, make
available to the Parent a corresponding amount.
9.9.2 If such corresponding amount is not in fact made available to the
Agent by such Bank, the Agent shall be entitled to recover such
corresponding amount (together with interest thereon at the rate
determined by the Agent as being its cost of funds in the
circumstances) on demand from the relative Borrower.
9.9.3 Where the Agent has made available an amount to a Borrower in
reliance upon the assumption contained in Clause 9.9.1 but a Bank
has not made its Participation in the relevant Revolving Advance
available to the Agent then, unless that Bank notified the Agent in
writing prior to the relevant Drawdown Date that it would not be
making its Participation in such Revolving Advance available, that
Bank shall:
(a) if the relative Borrower does not refund the
corresponding amount to the Agent within three (3)
Business Days, reimburse the Agent for such amount
(together with interest thereon at the rate determined
by the Agent as being its cost of funds in the
circumstances) on demand; and
(b) indemnify the Agent from and against all losses, costs,
charges and expenses which the Agent may incur or
sustain by reason of that Bank not having made its
Participation in the relevant Revolving Advance
available.
9.10 Appropriation
If the Parent shall pay a sum in relation to the Revolving Credit
Facility which is less than the total amount due and payable under
this Agreement on the day on which such sum is paid the Parent
hereby waives any rights it may have to make any appropriation
thereof as between any amounts so due and payable and the sum so
paid shall be applied in or towards satisfaction of principal,
interest, fees and other sums which are due or overdue for payment
on that day in such order as the Banks may determine PROVIDED THAT
each Bank shall receive its pro-rata share of any such sum.
10. SECURITY
Subject to Clause 14 the obligations and liabilities of the
Borrowers to the Agent and each Bank under this Agreement shall be
secured by the interests and rights granted in favour of the Agent
as trustee for itself and the Banks under the Security.
11. REPRESENTATIONS AND WARRANTIES
11.1 Acknowledgement of Reliance
Each Borrower hereby acknowledges that the Agent and each Bank has
entered into this Agreement and accepted the security granted in
favour of the Agent under the Security in full reliance on the
representations and warranties made or deemed to be made and
repeated under this Clause 11.
11.2 Representations and Warranties
The Parent hereby represents and warrants to each of the Banks and
the Agent that save as disclosed in the Circular or in paragraphs
5, 6, 7 and 8 of Schedule 4 to the Investor Placing Agreement:
(a) Status: each member of the Charging Group is a limited
company incorporated under the laws of England and
Wales or, in the case of HLS, under the laws of the
State of Delaware, USA and it possesses the capacity to
xxx and be sued in its own name and has the power to
carry on its business and to own its property and other
assets;
(b) Powers and authority: each member of the Charging Group
has power to execute, deliver and perform its
obligations under the Financing Documents to which it
is a party and to carry out the transactions
contemplated by such Financing Documents and all
necessary corporate, shareholder and other action has
been or will be taken to authorise the execution,
delivery and performance of the same;
(c) Binding obligations: the obligations of each member of
the Charging Group under the Financing Documents to
which it is a party, constitute its legal, valid and
binding obligations and are in full force and effect;
(d) Contraventions: the execution,delivery and performance
by each member of the Charging Group of the Financing
Documents to which it is a party does not:
(i) contravene any applicable law or regulation
or any order of any governmental or other
official authority, body or agency or any
judgment, order or decree of any court
having jurisdiction over it where such
contravention would have a Material Adverse
Effect;
(ii) conflict with, or result in any breach of
any of the terms of, or constitute a
default under, any agreement or other
instrument to which it is a party or any
licence or other authorisation to which it
is subject or by which it or any of its
property is bound other than the Existing
Facility where such conflict, breach or
default would have a Material Adverse
Effect; or
(iii) contravene or conflict with the provisions
of its Memorandum and Articles of
Association (or, in the case of HLS, its
certificate of incorporation and by-laws);
(e) Insolvency: (other than in respect of a solvent winding-up,
dissolution or re-organisation previously notified to the
Agent in writing) no member of the Group (other than the
TMG Companies any Non-Material Subsidiary and any Dormant
Subsidiary) has taken any action nor, to the best of the
knowledge, information or belief of the Parent have any
steps been taken or legal proceedings started or
threatened against it for winding-up, dissolution or
re-organisation, the enforcement of any Encumbrance over
its assets or for the appointment of a receiver,
administrative receiver, or administrator, trustee or
similar officer of it or of any material part or all of its
assets or revenues;
(f) No default: after the First Drawdown Date each member of
the Group(other than the TMG Companies any Non-Material
Subsidiary and any Dormant Subsidiary) is not (nor would be
with any of the giving of notice, lapse of time,
determination of materiality and other condition) in breach
of or in default under any deed, instrument or any agreement
to which it is a party (other than the Ciba Geigy
Agreement) or which is binding on it or any of its assets
to an extent or in a manner which has a Material Adverse
Effect;
(g) Litigation: save as disclosed in writing to the Agent prior
to the date hereof, no action, litigation, arbitration or
administrative proceeding has been served on or, to the best
of the knowledge, information or belief of the Parent is
pending or threatened against any member of the Group
(other than the TMG Companies any Non-Material
Subsidiary and any Dormant Subsidiary) which is reasonably
likely to be adversely determined and if so adversely
determined would have a Material Adverse Effect and nor is
there subsisting any unsatisfied judgment or award given
against any of them by any court, board of
arbitration or other body which has not been disclosed in
writing to the Agent which would have a Material Adverse
Effect;
(h) Accounts:
(i) each of the latest Accounts required to be
delivered pursuant to Clause 12.1(a) is
prepared in accordance with GAAP and gives
a true and fair view of the financial
position of the Parent as at the date to
which the same were prepared and for the
period then ended;
(ii) each set of management accounts required to
be delivered under Clause 12.1(b) shows
with reasonable accuracy in all material
respects the financial condition of the
member of the Group in respect of which
they were prepared during the period to
which they relate; and
(iii) all material liabilities (contingent or
otherwise) which should have been fully
disclosed or reserved against in such
management accounts, were so disclosed or
reserved against therein;
(i) Encumbrances: no Encumbrance (other than Permitted
Encumbrances) exists over all or any part of the
present or future revenues or assets of any member of
the Group (other than the TMG Companies, any Dormant
Subsidiary or any Non-Material Subsidiary) which would
have a Material Adverse Effect;
(j) Authorisations: all material licences, consents, exemptions,
clearances, filings, registrations and authorisations which
are or may be necessary to enable each member of the
Charging Group to perform its obligations under the
Financing Documents to which it is a party and the
fulfilment of the transactions contemplated by such
documents and for the proper conduct of its business or
which are required in connection with the execution,
delivery, validity, enforceability or admissibility in
evidence of the Financing Documents are in full force
and effect save where the absence of any of the same would
not have a Material Adverse Effect;
(k) No Encumbrances created: the execution of the Financing
Documents by the members of the Charging Group and the
exercise of each of their respective rights and the
performance of each of their respective
obligations thereunder will not result in the creation of
any Encumbrance (other than a Permitted Encumbrance) over
or in respect of any of their present or future revenues,
assets or undertakings save where the creation of such
encumbrance would not have a Material Adverse Effect;
(l) Taxes: each of the members of the Group (other than the
TMG Companies, each Non-Material Subsidiary and each
Dormant Subsidiary) has complied in all material
respects with all Taxation laws in all jurisdictions in
which it is subject to Taxation where non-compliance
would have a Material Adverse Effect;
(m) Environmental law: to the best of its knowledge and
belief each of the members of the Group save for the
TMG Companies is currently complying with and has at
all times complied with Environmental Law, every
consent, authorisation, licence or approval required by
each such member of the Group save for the TMG
Companies (including those required under or pursuant
to any Environmental Law) in connection ith the
conduct of their respective business and the ownership,
use, exploitation or occupation of their respective
property and assets has been obtained and is in full
force and effect, there has been no default in the
observance of the conditions and restrictions (if any)
imposed in, or in connection with, any of the same save
where any such non-compliance, breach or default would
not have a Material Adverse Effect and, to the
knowledge of the officers of the Parent, no
circumstances have arisen (i) which would entitle any
person to revoke, suspend, amend, vary, withdraw or
refuse to amend any of the same or (ii) which has
given rise to an Environmental Claim against
any such member of the Group (save for any TMG Company)
in either case which would have a Material Adverse
Effect having regard to the cost to such member of the
Group of meeting such Environmental Claim; and
(n) Year 2000: it will have used all reasonable endeavours
to ensure that the Company System will have been
produced, tested and amended in such a manner on or
before 31st December 1999 which will ensure that:
(i) a change of, reference to or use of a date
before, on or after 31st December 1999 in
the operation of the Company System,
whether alone or in conjunction with each
other Company System, will not have a
Material Adverse Effect; and
(ii) the inclusion of a date or dates before, on
or after 31st December 1999 in the date
information exchanged with any item of
equipment and software programme which is
not a Company System but with which that
Company System routinely exchanges date
information in the course of its business
will not have Material Adverse Effect,
and without prejudice to the generality of (i) and (ii)
above, each Company System will, in responding to
two-digit date input and providing date output, resolve
any ambiguity as to century in a manner which is
consistent, clearly defined and apparent to the user.
11.3 Repetition
The representations and warranties set out in Clause 11.2 shall
survive the execution of this Agreement and (save for the
representations and warranties made under Clauses 11.2(d)(i) and
(ii), (e), (i), (k), (l), and (m) and save in relation to matters
to which the Agent acting on the instructions of the Majority Banks
shall have consented) shall be deemed to be repeated by the Parent
on each Drawdown Date and each Interest Date as if made with
reference to the facts and circumstances existing at that time
PROVIDED THAT the wording in second set of brackets in Clause
11.2(f) shall not apply when such representation and warranty is
deemed to be so repeated.
12. UNDERTAKINGS
12.1 Information Undertakings
The Parent hereby undertakes and agrees with the Agent and each
Bank that throughout the Security Period that other than as the
Agent acting on the instructions of the Majority Banks may consent
it shall:
(a) Accounts: as soon as the same become available, but in
any event within 120 days after the end of each of its
Financial Years, deliver to the Agent for distribution
to the Banks, copies in sufficient numbers for all of
them of the Accounts;
(b) Management Accounts: as soon as the same become
available, but in any event within 35 days after the
end of each period of one month during each Financial
Year of the Parent, deliver to the Agent for
distribution to the Banks, copies in sufficient numbers
for all of them of monthly management accounts (on a
consolidated and non-consolidated basis) of the Group
for such period to include:
(i) a statement of profit and loss;
(ii) a balance sheet;
(iii) a cashflow statement;
(iv) a commentary comparing where appropriate
all such information with the estimates,
forecasts and projections in the cashflow
forecasts provided to the Banks in relation
to such period;
(c) Interim Accounts: as soon as they become available but
in any event within 60 days after the end of each
successive period of 3 months during each of its
Financial Years, deliver to the Agent for distribution
to the Banks, its quarterly accounts, interim statement
and preliminary announcement;
(d) Other Information: furnish to the Agent such
information, documents and records about the business,
financial condition, operations and prospects of any
member of the Group as the Agent may from time to time
reasonably require;
(e) GAAP: ensure that all Accounts and other financial
information submitted to the Agent have been prepared
in accordance with GAAP;
(f) Shareholder documents: deliver to the Agent in
sufficient copies for all of the Banks all documents
despatched by it to its shareholders or creditors
generally at the same time that they are so despatched;
and
(g) Default, litigation, etc: on becoming aware of the same
promptly notify the Agent of:
(i) any Default and any Default Occurrence;
(ii) any litigation, arbitration or
administrative proceeding commenced against
any member of the Group (other than a TMG
Company or a Dormant Subsidiary) in respect
of which the potential liability for such
member of the Group is in excess of
(pound)500,000; and
(iii) any Encumbrance (other than a Permitted
Encumbrance) attaching to the assets or
revenues of any member of the Group.
(h) Cashflow: provide the Agent (when it provides the Agent
with the monthly management accounts) rolling cashflow
forecasts in respect of the Group relating to the 3
month period starting on that date (the need for these
to be reviewed by the Agent 3 months after the date of
this Agreement);
(i) Annual budget: provide the Agent with sufficient copies
for all of the Banks of the Group's budget for 1999 by
31st January 1999; and
(j) Plans and Projections: provide the Agent with
sufficient copies for all of the Banks or any strategy
papers, plans or projections relating to any proposed
Disposals to be made by the Group within 14 days of
such papers being approved by the board of the relevant
Group Company.
12.2 Positive Covenants
The Parent hereby undertakes and agrees with the Agent and each
Bank that, throughout the Security Period, it shall and it shall
procure that each of the companies in the Group (other than the TMG
Companies and in the case of (a), (b) and (c) below, Non-Material
Subsidiaries or Dormant Subsidiaries) shall unless the Agent
(acting on the instructions of the Majority Banks) shall otherwise
agree:
(a) Further documents: at the request of the Agent subject
to Clause 14.2 execute or procure the execution of all
such documents as are in the opinion of the Agent
(acting reasonably), necessary to ensure that the Agent
and the Banks obtain the full benefit of their rights
and benefits under the Financing Documents;
(b) Insurance: comply with all its obligations relating to
insurances contained in the Security and without
limitation to the foregoing maintain insurances in
respect of such assets and in such amounts as are
reasonable with regard to the size of its business and
the value of its assets;
(c) Authorisations: at all times comply with all laws and
regulations applicable to it and which are necessary in
relation to the conduct of its business generally and obtain,
effect and maintain in full force and effect all governmental
and other regulatory consents, licences, exemptions,
clearances, filings, registrations and authorisations
required for (i) the conduct of its business generally where
the non-compliance with or absence of which would have a
Material Adverse Effect and (ii) the validity, enforceability
or, as the case may be, admissibility in evidence of the
Financing Documents;
(d) Environmental Compliance: use all reasonable endeavours to
comply with all requirements of Environmental Law applicable
to each such company (including without limitation, obtaining
and maintaining in full force and effect all consents,
authorisations, licences or approvals required from time to
time in connection with the conduct of its business and the
ownership, use, exploitation or occupation of its property
and assets) save where any non-acceptance, breach of default
would not have a Material Adverse Effect and promptly notify
the Agent of (i) any Environmental Claim which has been made
or threatened against any member of the Group or (to the
knowledge of the Parent) against any occupier of any property
owned or leased by any member of the Group or of any
circumstance that arises which might give rise to
any such Environmental Claim and (ii) any revocation,
suspension, amendment, variation, withdrawal or refusal to
grant any consent, authorisation, licence or approval,
which in the case of either (i) or (ii) would give rise to
an Environmental Claim against any such member
of the Group which would have a Material Adverse Effect; and
(e) Payment of US taxes: in respect of HLS only, will pay all
taxes in the USA which if not paid would result in the
taxation authorities in the USA having a prior claim over
the New Jersey Property or the proceeds of sale thereof
ahead of the Banks, provided that if HLS wants to dispute
the payment of any tax levied against it the Banks
shall allow the non payment of the relevant taxes subject to
HLS first paying an amount equivalent to the amount of the
taxes into a separate deposit account with FNBM which cannot
be reduced or used by HLS until the conclusion of the
dispute with the relevant taxing authority. Provided that no
reduction of any sums in such deposit account by
reason of any application by FNBM in accordance with this
Agreement (whether by way of set-off, consolidation or
combination of accounts or enforcement of Security or
otherwise) shall give rise to a default
under the provisions of this Clause 12.2(e).
12.3 Negative Covenants
The Parent hereby undertakes with the Agent and each Bank that
during the Security Period it shall not and the Parent shall
procure that none of the companies in the Group (other than the TMG
Companies, the Dormant Subsidiaries and, in respect of (b), (c) and
(d) the Non-Material Subsidiaries) shall unless the Agent (acting
on the instructions of the Banks) otherwise agrees:
(a) Negative pledges: other than Permitted Encumbrances,
create or permit to subsist any Encumbrance over any of
its undertaking and assets from time to time where the
same would have a Material Adverse Effect;
(b) Change of business: make any change in its business as
at present conducted, which would result in a
substantial change in the nature of the business
carried on by the Group as a whole or carry on any
other business which is substantial in relation to the
business of the Group as at present conducted;
(c) Mergers: merge or consolidate with any other person
other than a member of the Charging Group;
(d) Disposals: make a Disposal other than:
(i) in the ordinary course of its trading
activities; or
(ii) where the proceeds of the Disposal are used
within a reasonable period to purchase an
asset to replace the asset the subject of
that Disposal; or
(iii) where the Disposal is of obsolete assets; or
(iv) where the Disposal is of a kind referred to in
Clause 7.3; or
(v) where the Disposal is made by a Group Company
to a member of the Charging Group; or
(vi) a Disposal on arm's length terms where the
aggregate value of the assets which are the
subject of a Disposal by Members of the Group
(other than in accordance with paragraphs
(i), (ii), (iii), (iv) and (v) above) in any
Financial Year of the Parent does not exceed
(pound)500,000. For the purposes of this
paragraph, the value of any asset
shall be the greater of its book value and the
consideration received for it;
where such Disposal would have a Material Adverse Effect
(e) Indebtedness: incur any indebtedness other than
Permitted Indebtedness where to do so would have a
Material Adverse Effect;
(f) Dividends: in respect of the Parent, make, pay or
declare before 31st August 2000 any dividend or other
distribution in relation to any shares forming part of
its issued share capital;
(g) Acquisitions: acquire any business of, or shares or
securities of, any company (other than a Group Company)
other than where:
(i) the aggregate of the consideration payable
for, and Indebtedness assumed by members of
the Group in connection with all such
acquisitions made by members of the Group
in any Financial Year of the Parent does
not exceed (pound)100,000; and
(ii) promptly on such acquisition:
(A) if the acquisition is of a business, the
business and assets of the business become
subject to the Existing Security; or
(B) if the acquisition is of shares comprising
more than 50 per cent. of the issued share
capital of a company, subject to any legal or
contractual prohibition or limitation on the
giving of any guarantee and debenture (or its
equivalent under relevant law), that company
executes a guarantee and debenture (or the
equivalent documents (in a form approved by
the Agent) under the laws of the jurisdiction
of that company's incorporation) and delivers
the same to the Agent;
(h) Capital Expenditure:
no member of the Group shall incur any Capital
Expenditure if it would result in the aggregate Capital
Expenditure incurred by the Group in any period set out
in Column A below exceeding the amount set out opposite
such period in Column B below:
Column A Column B
Period Amount ((pound)m)
1st July 1998 to 31st December 1998 4
1st July 1998 to 30th June 1999 8
1st July 1998 to 31st December 1999 12
1st July 1998 to 30th June 2000 16
(i) Deposit Account: withdraw any monies from the Deposit
Account other than for the Group's general working capital
requirements. For the avoidance of doubt the restriction
contained in this Clause 12.3(i) will prevent the Parent
from transferring any monies standing to the credit of the
Deposit Account into any account in the name of, or on
behalf of, any Group Company with another bank or financial
institution (other than FNBM where such monies are to be used
by HLS for its general working capital requirements). For the
avoidance of doubt the provisions of this Clause 12.3(i) will
not prevent the transfer of any such monies to another
account of a Borrower with the Agent for that Borrower's
general working capital requirements.
13. DEFAULT
13.1 Defaults
There shall be a Default if:
(a) Non Payment: any amount payable under this Agreement in
respect of principal, interest or the Participation Fee
referred to in Clause 16.4 is not paid by the relative
Borrower at the place at which it is expressed to be
payable and within 3 Business Days of the due date; or
(b) Other defaults: except where such failure has been disclosed
in the Circular or in paragraphs 5, 6, 7 and 8 of Schedule 4
to the Investor Placing Agreement any member of the Charging
Group fails to comply with any of its obligations and
undertakings under any of the Financing Documents (other
than the obligations and undertakings referred to in the
foregoing Clause 13.1(a)) which failure (other than
any breach of the provisions of Clause 12.3) would have a
Material Adverse Effect and, if such failure is capable of
remedy, such Default is not remedied within 15 Business Days
after notice of such failure has been given by the Parent
to the Agent or (if earlier) within 15 Business Days, of the
Agent becoming aware of such failure and giving
notice thereof to the Parent; or
(c) Breach of representation or warranty: any representation,
warranty or statement made or deemed to be repeated by any
member of the Charging Group under this Agreement or in any
notice, certificate or statement of fact referred to in or
delivered under this Agreement is or proves to have been
incorrect when made or deemed to have been repeated and
such incorrectness would result in a Material Adverse Effect
and if the subject matter of such incorrectness is capable
of correction it is not corrected within 15 Business Days
after notice of the breach in question has been given by the
Parent to the Agent or (if earlier) within 15 Business Days
of the Agent becoming aware of the breach and
giving notice thereof to the Parent; or
(d) Financing Documents: subject to Clauses 13.4 and 14.2
any of the Financing Documents is not or ceases to be
in full force and effect or the validity or
enforceability of any of the terms of any of the
Financing Documents shall be contested by any of the
members of the Group; or
(e) Cross-default: any Indebtedness (other than under the
Existing Ancillary Facilities or, the Existing
Facilities or the Bridging Facility) of any of the
members of the Group (other than the TMG Companies or
any Dormant Company) in aggregate in excess of
(pound)1,000,000:
(i) is declared to be or otherwise becomes due and payable
prior to its specified maturity; or
(ii) is not paid when due or within any applicable grace
period;
(f) Attachments or distress: a creditor or encumbrancer
attaches or takes possession of, or a distress,
execution, sequestration or other process is levied or
enforced upon or sued out against, any part of the
undertaking and assets of any of the members of the
Group other than the TMG Companies or any Dormant
Company (having a value of at least (pound)500,000)
which would have a Material Adverse Effect and the same
is not discharged or terminated within 21 days of
commencement; or
(g) Inability to pay debts: any of the members of the Group
(other than the TMG Companies any Non-Material Subsidiary or
any Dormant Subsidiary):
(i) suspends payment of its debts generally or is
unable or admits its inability to pay its debts
as they fall due; or
(ii) commences negotiations with its creditors
generally with a view to the general
readjustment or rescheduling of all or part
of its Indebtedness which it would
otherwise not be able to pay as it falls
due; or
(iii) proposes or enters into any composition or
other arrangement for the benefit of its
creditors generally or any class of
creditors; or
(iv) takes any steps to wind-up or dissolve
itself or file any petition or action for
relief under any bankruptcy, insolvency or
moratorium law; or
(h) Insolvency proceedings: any proceedings are started for the
winding-up dissolution or reorganisation (otherwise than
while solvent and on terms previously approved in writing
by the Banks) of any Group Company (other than the TMG
Companies, any Non-Material Subsidiary or any Dormant
Subsidiary) except where such a winding-up petition is
discharged within 21 days of its presentation or a receiver,
administrative receiver, trustee, supervisor or similar
officer is appointed in respect of any Group Company
(other than the TMG Companies, any Non-Material Subsidiary
or any Dormant Subsidiary) or any material part of its
revenues and assets;
(i) Adjudication or appointment: any adjudication, order
or, as the case may be, appointment is made under or in
relation to any of the proceedings referred to in
Clause 13.1(h); or
(j) Administrators: a petition is presented for an
administration order to be made in relation to any
Group Company (other than any TMG Company, Non-Material
Subsidiary or Dormant Subsidiary) which is not
withdrawn within 2 Business Days of its presentation
provided that such 2 Business Days grace period shall
not apply if the Court abridges the notice period
required pursuant to Rule 2.7 of the Insolvency Rules
1986; or
(k) Analogous proceedings: any event occurs or proceeding
is taken with respect to any member of the Group (other
than a TMG Company a Non-Material Subsidiary or a
Dormant Subsidiary) in any jurisdiction to which it is
subject which has an effect equivalent or similar to
any of the events mentioned in Clauses 13.1(h), (i) or
(j) and which would result in a Material Adverse
Effect; or
(l) Cessation of business: any of the members of the Group
(other than the TMG Companies, any Non-Material Subsidiary
or any Dormant Subsidiary) suspends, ceases or threatens to
suspend or cease to carry on its business or sells, transfers
or otherwise disposes of in any one transaction or series of
transactions the whole or any substantial part of its assets
other than to a member of the Charging Group without the
prior written consent of the Banks where the same would
result in a Material Adverse Effect; or
(m) Change of control: a person other than any of the
Investors (whether alone or together with any
associated person or persons) becomes the beneficial
owner of the issued share capital of the Parent
carrying a right to exercise more than 50 per cent. of
the votes at a general meeting of the Parent (for the
purposes of this Clause "associated person" is a person
who is "acting in concert" (as defined in the City Code
on Takeovers and Mergers) with that person,
PROVIDED that any action taken pursuant to or in
connection with the Ciba Geigy Agreement shall not be a
Default unless the same results in a Default under
sub-Clauses (g)-(k) above.
13.2 Acceleration etc.
At any time when any Default remains unremedied and unwaived the
Agent may with the agreement of the Majority Banks by notice to the
Parent cancel the Revolving Credit Facility in whole or in part
and:
(i) require the Borrowers immediately to repay the
Revolving Loan and repay or provide cash cover for
contingent liabilities under the Existing Ancillary
Facilities together with accrued interest thereon and
immediately to pay all other sums payable under this
Agreement, whereupon the same shall become immediately
due and payable; or
(ii) place the Revolving Loan and the Existing Ancillary
Facilities on demand, whereupon the same and all other
sums payable hereunder shall become repayable on demand
made by the Agent on the instructions of the Majority
Banks.
Upon the service of any such notice by the Agent the Banks'
obligations shall be terminated and each of the Banks' Commitments
shall be cancelled and reduced to zero.
13.3 Acceleration of Existing Facilities, Existing Ancillary Facilities
or Bridging Facility
During the period between the date of this Agreement and the First
Drawdown Date, the Banks shall not make demand for any amount
outstanding under the Existing Facilities, the Existing Ancillary
Facilities or the Bridging Facility unless (i) a Default remains
unremedied and unwaived hereunder or (ii) either of the Investor
Placing Agreement and the Shareholder Placing Agreement is
terminated by any party thereto or (iii) either of the Investor
Placing Agreement or the Shareholder Placing Agreement fails to
become unconditional in accordance with its respective terms by 4th
September 1998 or such later date as may be agreed for completion
in accordance with its respective terms.
13.4 Appointment of receiver etc
Notwithstanding any of the provisions in the Security neither the
Agent nor the Banks shall be entitled to appoint an administrative
or other receiver or similar officer over the whole or any part of
the property, assets and undertaking of any member of the Charging
Group, or otherwise to enforce the Security, unless there has been
a Default and a demand has been made by the Agent pursuant to
Clause 13.2.
14. SET-OFF AND PRO-RATA PAYMENTS AND DEPOSIT ACCOUNT
14.1 Set-Off
Each Borrower hereby authorises the Agent and each Bank to apply
any credit balance on any account of the relative Borrower with any
of the Agent and the Banks (subject to Clause 14.2) in satisfaction
of any sum due and payable by such Borrower pursuant to the terms
of the Financing Documents. For this purpose each of the Agent and
the Banks is authorised to purchase at its spot rate of exchange
with the monies standing to the credit of any such account such
other currencies as may be necessary to effect such application.
14.2 Deposit Account
14.2.1 Notwithstanding any of the provisions in any of the Security but
subject to Clause 14.2.3 the Agent or FNBM (as the case may be)
shall only be entitled to apply (whether by way of set-off
consolidation or combination of accounts, enforcement of Security
or otherwise) any monies standing to the credit of the Deposit
Account, (or (a) HLS's account with FNBM or (b) any account of a
Borrower with the Agent where such monies have been transferred
from the Deposit Account for the general working capital
requirements of HLS or any other Borrower (as the case may be) or
(c) in the case of monies immediately required to meet payroll
expenditure in the U.S.A. in an account with any other bank or
financial institution) against any liabilities of the Borrowers to
the Banks under the Financing Documents after either (i) the Agent
has made demand for repayment in accordance with Clause 13.2
and has appointed receivers (or in the case of HLS a similar
officer) to the whole or substantially the whole of the property,
assets and undertaking of any of the Borrowers or (ii) an
administrator has been appointed to any of the Borrowers.
14.2.2 When a Default is outstanding the Agent shall have the right to
refuse to allow any withdrawal from the Deposit Account and FNBM
or the Agent shall have the right to refuse to allow withdrawals
of monies transferred to HLS's account or any
account of a Borrower with the Agent from the Deposit Account if
(acting reasonably) the Agent or FNBM (as the case may be) is of
the view that such withdrawal is not being made in the ordinary
course of business to fund bona fide payments required for the
working capital purposes of the Group. Neither the Agent nor FNBM
shall otherwise have the right to restrict any transfer or
withdrawal from the Deposit Account or of monies transferred to
FNBM or any Borrower's account with the Agent from the Deposit
Account in any such case for the general working capital
requirements of the Group.
14.2.3 If any Borrower has defaulted in making any payment due under this
Agreement in respect of interest payable or fees, the Agent is
hereby irrevocably authorised to transfer from the Deposit Account
an amount equivalent to such unpaid amount in satisfaction thereof.
14.2.4 The Agent shall pay interest on the Deposit Account at the best
available rates that it can reasonably obtain for such amounts and
periods as the Parent may specify.
14.3 Pro Rata Sharing
14.3.1 If any Bank (the "Sharing Bank") shall at any time obtain (whether
by way of voluntary or involuntary payment right of set-off, or
otherwise) a proportion in respect of its Participation in the
Revolving Credit Facility which is greater than the proportion
obtained by the Bank or Banks respectively obtaining the smallest
proportion of its Participation in the Revolving Credit Facility,
including a nil receipt, (the amount so obtained by the Sharing
Bank which represents such excess being herein called the "excess
amount") then:
(i) the Sharing Bank shall promptly pay to the Agent, for
the account of the Banks, an amount equal to the excess
amount, whereupon the Agent shall notify the relative
Borrower of such amount and its receipt by the Agent;
(ii) the Agent shall treat such payment as if it were a
payment by the relative Borrower on account of sums
owed to the Banks; and
(iii) as between the Parent and the Sharing Bank the excess
amount shall be treated as not having been paid, while
as between the relative Parent and each Bank it shall
be treated as having been paid to the extent any monies
are received by such Bank.
If, because of the liquidation of any Borrower, or for any other
reason affecting any Borrower, the provisions of Clause (iii) above
cannot be given effect to as between the Banks on the one hand and
the relative Borrower on the other hand then, as between the Banks,
the Sharing Bank shall be treated as having purchased from each
other Bank an amount of the Revolving Loan owed by the relative
Borrower to that Bank which is equal to that part of the excess
amount which is paid to that Bank and the Sharing Bank shall,
accordingly, be entitled to receive all dividends and other
payments received by that Bank in respect of that part of the
Revolving Loan deemed to have been purchased by it.
14.3.2 Each Bank shall forthwith notify the Agent of any such receipt or
recovery by it other than by payment through the Agent.
14.3.3 If any excess amount subsequently has to be wholly or partly
refunded to a Borrower by any Sharing Bank which has paid an
amount equal thereto to the Agent under Clause 14.3.1, each Bank
to which any part of that amount was distributed shall on request
from the Sharing Bank repay to the Sharing Bank such Bank's pro
rata share of the amount which has to be so refunded by the Sharing
Bank. Each Bank shall on request supply to the Agent such
information as the Agent may from time to time request for the
purpose of this Clause 14.3. Notwithstanding the foregoing
provisions of this Clause 14.3, no Sharing Bank shall be obliged to
share any excess amount which it receives or recovers pursuant to
legal proceedings taken by it to recover any sums owing to it
under this Agreement with any other party which has a legal right
to, but does not, either join in such proceedings or commence and
diligently pursue separate proceedings to enforce its rights in the
same or another court, unless the proceedings instituted by the
Sharing Bank are instituted by it without prior notice having been
given to such party through the Agent and an opportunity to such
party to join in such proceedings.
14.3.4 Nothing in this Agreement shall oblige the Agent or any Bank to
apply any credit balance or other benefit received from any
Borrower against the liabilities of the relative Borrower under
this Agreement in priority to any other liabilities of the relative
Borrower to the Agent or that Bank.
15. THE AGENT AND THE BANKS
15.1 Appointment and Duties
15.1.1 Each Bank hereby irrevocably appoints the Agent to act as its agent
in connection with the administration of the Revolving Credit
Facility and to act as its agent and trustee in connection with the
Security and for such purposes irrevocably authorises the Agent to
take such action and to exercise and carry out all the discretions,
authorities, rights, powers and duties as are specifically
delegated to the Agent in this Agreement and each Security Document
together with such powers and discretions as are incidental
thereto.
15.1.2 The Agent shall have no duties or responsibilities except those
expressly set out in the Financing Documents. As to any matters
not expressly provided for by this Agreement, save in respect of
the Security, the Agent shall, subject to the provisions hereof or
thereof, act hereunder or thereunder or in connection herewith or
therewith in accordance with the instructions of the Banks (but in
the absence of any such instructions shall not be obliged to act)
and any such instructions and any action taken by the Agent in
accordance therewith shall be binding upon all the Banks.
15.2 Payments and Information Received
15.2.1 The Agent will promptly account to the Lending Office of each Bank
for such Bank's due proportion of all sums received by the Agent
for such Bank's account, whether by way of repayment or prepayment
of principal or payment of interest, fees or otherwise. The Agent
shall provide the Banks with all information and copies of all
notices which by the terms of this Agreement are to be provided or
given to the Banks. The Agent may retain for its own use and
benefit (and shall not be liable to account to any of the Banks
for all or any part of) any sums received by it by way of agency
or management or arrangement fees or by way of reimbursement
of expenses incurred by it.
15.2.2 The Agent shall maintain a memorandum account showing the principal
amount of each Revolving Advance for the time being outstanding
under this Agreement and the amount of each Bank's Participation in
the Revolving Credit Facility from time to time.
15.2.3 Each Bank confirms in favour of the Agent that unless it notifies
the Agent to the contrary it shall be the beneficial owner of any
interest paid to it under this Agreement.
15.3 Defaults
The Agent shall not be obliged to take any steps to ascertain
whether any Default (other than a default in repayment of principal
or in payment of interest, fees or other sums due pursuant to this
Agreement) or Default Occurrence has happened or exists and, until
the Agent shall have received express notice to the contrary from
any Borrower or any Bank, the Agent shall be entitled to assume
that no Default (other than as aforesaid) or Default Occurrence has
happened or exists. Upon receipt of such notice the Agent shall
promptly inform the Banks.
15.4 Assumptions
The Agent shall be entitled to rely on any communication or
document believed by it to be genuine and correct and to have been
communicated or signed by the person by whom it purports to be
communicated or signed and shall not be liable to any of the
parties to this Agreement for any of the consequences of such
reliance.
15.5 Legal Proceedings
The Agent shall not be obliged to take or commence any legal action
or proceeding against any Borrower or any other person arising out
of or in connection with the Financing Documents until it shall
have been indemnified or secured to its satisfaction against any
and all costs, claims and expenses (including, but not limited to,
any costs award which may be made against it as a result of any
such legal action or proceeding not being successful) which it may
expend or incur in such legal action or proceeding.
15.6 No Liability
Neither the Agent nor any of its directors, employees or agents
shall be liable to the Banks for any action taken or omitted to be
taken by it or any of them under or in connection with the
Financing Documents unless caused by its or their gross negligence
or wilful misconduct. The Agent shall not be responsible to the
Banks for any statements, representations or warranties in the
Financing Documents or for any information supplied or provided or
hereafter to be supplied or provided to any of the Banks by the
Agent, in respect of the Borrowers or any other person or for any
other matter relating to the Revolving Credit Facility, the
Security or for the execution, effectiveness, genuineness,
validity, enforceability or sufficiency of such documents or any of
the other documents referred to herein or therein or for the
recoverability of all or any of the Advances or any of the other
sums to become due and payable pursuant hereto.
15.7 Credit Decisions
15.7.1 Each Bank acknowledges that it has, independently and without
reliance on the Agent and based on such documents and information
as it deemed appropriate, made its own analysis of the transaction
contemplated by, and reached its own decision to enter into, this
Agreement and made its own investigation of the financial condition
and affairs of each of the Borrowers and any surety for the
Borrowers' obligations and its own appraisal of the
creditworthiness of the Borrowers and any surety for the Borrower's
obligations.
15.7.2 Save as specifically provided herein, the Agent shall not be under
any duty or obligation, either initially or on a continuing basis,
to provide any Bank with any credit information or other
information with respect to the financial condition of any of the
Borrowers or which is otherwise relevant to the Revolving Credit
Facility.
15.7.3 Each Bank further acknowledges and confirms that it will,
independently and without reliance on the Agent and based on such
documents and information as it shall deem appropriate at the time,
make its own decisions in taking or not taking action under the
Financing Documents.
15.8 Advisers
The Agent shall be entitled to obtain and rely on the advice of any
professional advisers selected by it given in connection with the
Financing Documents or any of the matters contemplated hereby or
thereby, and shall not be liable to any of the Banks for any of the
consequences of such reliance.
15.9 Relationship with Banks
15.9.1 In performing its functions and duties under this Agreement, the
Agent shall act solely as the agent for the Banks and save as
expressly provided herein and in the Security shall not be deemed
to be acting as trustee for any Bank and shall not assume or be
deemed to have assumed any obligation as agent or trustee for, or
any relationship of agency or trust with any Borrower.
15.9.2 Neither the Agent nor any Bank shall be under any liability or
responsibility of any kind to any Borrower or any of the other
Banks arising out of or in relation to any failure or delay in
performance or breach by any other Bank or Banks or, as the case
may be, any Borrower of any of its or their respective obligations
pursuant to the Financing Documents.
15.10 Agent's position as a Bank
With respect to its own Participation in the Revolving Credit
Facility, the Agent shall have the same rights and powers under and
in respect of the Financing Documents as though it were not also
acting as agent for the Banks. The Agent may, without liability to
account, accept deposits from, lend money to and generally engage
in any kind of banking or trust business with or for any of the
Borrowers as if it were not the agent or the trustee for the Banks
under any Financing Document.
15.11 Indemnity
The Banks agree to indemnify the Agent (to the extent not
reimbursed by the Borrowers) rateably according to the Banks'
respective Participations in the Revolving Credit Facility (or, if
no Revolving Advance shall then be outstanding, their respective
Commitments) from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever (except
in respect of any agency, management or other fee due to the Agent)
which may be imposed on, incurred by or asserted against the Agent
in its capacity as agent or trustee for the Banks or in any way
relating to or arising out of the Financing Documents or any action
taken or omitted by the Agent in enforcing or preserving the rights
of the Banks under the Financing Documents, provided that no Bank
shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross
negligence or wilful misconduct.
15.12 Resignation
15.12.1 Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving to the
Parent and each of the Banks not less than 60 days' notice of its
intention to do so. Upon receipt of such notice of resignation the
Banks shall appoint as successor Agent any bank or financial
institution selected by the Parent and the Banks which is willing
and able to act as such agent for the Banks.
15.12.2 If no such successor Agent selected by the Parent and the Banks
shall have accepted such appointment within 20 days after the
Agent's giving of notice of resignation then the Banks after
consultation with the Parent shall have the right to appoint such a
successor Agent.
15.12.3 If no such successor Agent shall have been so appointed by the
Banks and shall have accepted such appointment within 40 days after
the Agent's giving of notice of resignation then the resigning
Agent may, after consultation with the Parent, appoint as its
successor any reputable and experienced bank or other financial
institution with an office in London.
15.12.4 Any such appointment shall take effect upon notice thereof (which
notice shall specify the bank in London to which payments shall be
made thereafter) being given to the Parent and each Bank.
Thereafter, the resigning Agent shall be discharged from any
further obligation under the Financing Documents and its successor
and each of the other parties hereto and thereto shall have the
same rights and obligations inter se as they would have had if
such successor had been a party to the Financing Documents in
place of the resigning Agent. The resigning Agent shall make over
to its successor all such records as its successor requires to
carry out its duties.
15.13 Change of Office
The Agent may from time to time in its sole discretion by written
notice to the Parent and each Bank designate a different office in
the United Kingdom from which its duties as the Agent will
thereafter be performed.
15.14 Scope of Duties
The Agent may grant waivers, vary the terms of the Financing
Documents and do or omit to do all such acts and things in
connection therewith as may (unless otherwise provided hereunder)
be authorised in writing by the Majority Banks. Any such waiver,
variation, act or omission so authorised and effected by the Agent
shall be binding on all the Banks and the Agent shall be under no
liability whatsoever in respect of any such waiver, consent,
variation, act or omission. Except with the prior written agreement
of all the Banks, nothing in this Clause shall authorise (as
between the Agent and the Banks) (i) any change in the rate at
which any interest on the Revolving Loan is payable under this
Agreement, (ii) any extension of the date for, or alteration in the
amount or currency of, the payment of any principal, interest, fees
or any other amount payable under this Agreement, (iii) any
increase in any Bank's Commitment, (iv) any variation of Clauses 6,
7 or 13 and this Clause 15 or (vi) any provision of this Agreement
which requires the consent of all the Banks.
15.15 Consents
The Agent may at any time upon the application and at the cost of
the Parent and without any consent of any of the Banks (only if and
so far as in its reasonable opinion the interests of the Banks
shall not be materially prejudiced thereby) give any consent,
approval or licence required of the Agent under the terms of this
Agreement, save where this Agreement expressly requires that such
consent, approval or licence should be given only with the approval
of, or on the instructions of, the Banks.
15.16 Evidence
The Agent may accept a certificate signed by any director or the
secretary of the Parent as to any fact or matter on which the Agent
may need or wish to be satisfied as sufficient evidence thereof and
a like certificate that any assets in the opinion of the person so
certifying have a particular value or produce a particular income
or are suitable for a particular purpose as sufficient evidence
that they have that value or produce that income or are so suitable
and the Agent shall not be bound in any such case to call for
further evidence or be responsible for any loss that may be
occasioned by its failing to do so.
15.17 Security
15.17.1 The Agent shall accept without investigation, requisition or
objection such title as any person may have to the undertaking,
property and assets which are subject to the Security and shall
not be bound or concerned to examine or enquire into nor be liable
for any defect or failure in the title of any person whether such
defect or failure was known to the Agent or might have been
discovered upon examination or enquiry and whether capable of
remedy or not nor for any failure on the part of the Agent to give
notice to any third party of the Security to which it is party
or otherwise perfect or register the security thereby created.
15.17.2 The Agent shall hold the benefit of the Security upon trust for
itself and the Banks.
15.17.3 Each of the Banks hereby confirms and agrees that it does not wish
to be registered in accordance with Rule 146 of the Land
Registration Rules 1925 as the joint proprietor of any mortgage or
charge created pursuant to any Financing Document and accordingly
authorises the Agent to hold such mortgage or charge in its sole
name as agent and trustee for the Banks and hereby requests H.M.
Land Registry to register the Agent as the sole proprietor of any
such mortgage or charge.
16. FEES AND EXPENSES
16.1 Expenses
The Borrowers shall, on demand, pay all reasonable expenses
(including, but not limited to, legal, valuation and accounting
fees and, in relation to (i) and (ii) below, to the extent the same
are reasonable) and any VAT thereon incurred by:
(i) the Agent and the Banks in connection with the granting
of any release, waiver or consent or in connection with
any variation of any Financing Document; and
(ii) the Agent and the Banks in enforcing, perfecting,
protecting or preserving (or attempting so to do) any
of their rights, or in suing for or recovering any sum
due from any of the Borrowers or any other person under
any Financing Document.
16.2 Agency Fees
The Parent shall pay to the Agent agency fees of (pound)4,000 per
annum payable in advance on the First Drawdown Date and on the
first anniversary of the First Drawdown Date. In addition the
Parent shall pay a fee of (pound)250 for each drawdown or renewal
of a Revolving Advance such fee to be payable annually in arrear
within 7 days of receipt by the Parent of an invoice for such fees.
16.3 Non-Utilisation Fee
The Parent shall pay a commitment fee to the Agent for the account
of the Banks (pro-rata to their undrawn Commitment) at the rate of
0.25 per cent. per annum on the difference between (i) the Total
Commitments and (ii) the average aggregate during the period in
question of the amount of all Revolving Advances outstanding during
that period. Such fee shall accrue day to day on the basis of a 365
day year and the number of days elapsed in respect of each
successive period of 6 months from the First Drawdown Date and
shall be paid in arrear on the first Business Day after the end of
each such period and on the date when the Total Commitments are
reduced to zero.
16.4 Participation Fee
16.4.1 On the First Drawdown Date the Parent shall pay the Agent (on
behalf of the Banks) a participation fee of (pound)122,500 to be
shared between the Banks in accordance with their Commitment
Percentages. If for any period a Bank is in breach of an obligation
to fund a Revolving Advance hereunder, the participation fee shall
not accrue to such Bank during such period.
16.4.2 On the first anniversary of the First Drawdown Date the Parent
shall pay the Agent (on behalf of the Banks) a further
participation fee of (pound)127,500 to be shared between the Banks
in accordance with the Commitment Percentages.
16.5 Documentary Taxes Indemnity
All stamp, documentary, registration or other like duties or Taxes,
including any penalties, additions, fines, surcharges or interest
relating thereto, (other than any arising from any assignment or
transfer by a Bank pursuant to Clause 19.3) which are imposed or
chargeable on or in connection with any of this Agreement and the
Security shall be paid by the Borrowers PROVIDED THAT the Agent
shall be entitled but not obliged to pay any such duties or Taxes
(whether or not they are its primary responsibility), whereupon the
Borrowers shall on demand indemnify the Agent against those duties
or Taxes and against any costs and expenses so incurred by the
Agent in discharging them.
16.6 VAT
16.6.1 All payments made by the Borrowers under the Financing Documents
are calculated without regard to Value Added Tax. If any such
payment constitutes the whole or any part of the consideration for
a taxable or deemed taxable supply (whether that supply is taxable
pursuant to the exercise of an option or otherwise) by the Agent or
a Bank, the amount of that payment shall be increased by an amount
equal to the amount of Value Added Tax which is chargeable in
respect of the taxable supply in question.
16.6.2 No payment or other consideration to be made or furnished by the
Agent or a Bank, to the Borrowers pursuant to or in connection with
the Financing Documents or any transaction or document contemplated
therein may be increased or added to by reference to (or as a
result of any increase in the rate of) any Value Added Tax which
shall be or may become chargeable in respect of any taxable supply.
17. SEVERABILITY, WAIVERS, REMEDIES CUMULATIVE
17.1 Severance
If at any time any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any respect under the law of
any jurisdiction neither the legality, validity or enforceability
of the remaining provisions hereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
17.2 Waivers
No failure to exercise, nor any delay in exercising, on the part of
the Agent or any Banks, any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise thereof
or the exercise of any other right or remedy. The rights and
remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
18. NOTICES
18.1 Method
Each communication to be made hereunder shall be made in writing
but, unless otherwise stated, may be made by facsimile transmission
or letter.
18.2 Delivery
Any communication (including any notice to be made or given
hereunder) or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless the one has by 15
days' written notice to the other specified another address) be
made or delivered to that other person, in the case of the
Borrowers and the Agent at the respective addresses given in Clause
18.3, in the case of the Banks at the respective addresses given in
Schedule 1 or, as the case may be, the Schedule of the relative
Transfer Certificate.
18.3 Addresses
The addresses referred to in Clause 18.2 above are:
(A) the Borrowers:
c/o Huntingdon Life Sciences Group PLC
Xxxxxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
Attention: The Company Secretary and the Finance Director
Fax: (01480) 892195
(B) the Agent:
National Westminster Bank Plc
3rd Floor
Juno Court
00 Xxxxxxxx Xxxxxx
Xxxxxx X0 0XX
Attention: Head of NWM Agency Group
Fax: (0000) 000 0000
18.4 Deemed Receipt
Any notice given by the Agent or a Borrower shall be deemed to have
been received:
(a) if sent by facsimile transmission, one Business Day after the
day it was transmitted;
(b) in the case of a written notice lodged by hand, at the time of
actual delivery; or
(c) if posted, on the second Business Day following the day
on which it was properly despatched by first class mail
postage prepaid.
18.5 Notices to the Banks
Any notice to be given by a Borrower to the Banks or any of them
may be given by serving such notice on the Agent together with a
written instruction that such notice is to be treated as notice to
one or more specified Banks. In the absence of such written
instructions it shall be deemed to be a notice to the Agent alone.
19. ASSIGNMENTS AND TRANSFERS
19.1 Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of
each party hereto and its successors and assigns.
19.2 Assignments and Transfers by the Borrowers
No Borrower shall be entitled to assign or transfer all or any of
its rights, benefits and obligations under this Agreement.
19.3 Assignments and Transfers by Banks
19.3.1 Any Bank may at any time (after the First Drawdown Date (but not
otherwise)) transfer in accordance with Clause 19.3.3 below all but
not part only of its rights, benefits and obligations under any of
the Financing Documents to any person.
19.3.2 If any Bank assigns all of its rights and benefits under any of the
Financing Documents in accordance with Clause 19.3.1 above, then,
unless and until the assignee has confirmed to the Agent, the other
Banks and the Borrowers that it shall be under the same obligations
towards each of them as it would have been under if it had been a
party hereto as a Bank, the Agent, the other Banks and the
Borrowers shall not be obliged to recognise such assignee as having
the rights against each of them which it would have had if it had
been such a party hereto.
19.3.3 If any Bank (the "Existing Bank") wishes to transfer all of its
Commitment or Participation in the Revolving Credit Facility to
another bank, financial institution or other person or entity (the
"Bank Transferee"), such transfer may be effected by way of a
novation by the delivery to, and the execution by, the Agent of a
duly completed Transfer Certificate.
19.3.4 On the date specified in the Transfer Certificate:
(i) to the extent that in the Transfer Certificate the
Existing Bank seeks to transfer its Commitment or
Participation in the Revolving Credit Facility, the
Borrowers and the Existing Bank shall each be released
from further obligations to each other under this
Agreement and their respective rights against each
other shall be cancelled (such rights and obligations
being referred to in this Clause 19.3.4 as "Discharged
Rights and Obligations");
(ii) the Borrowers and the Bank Transferee shall each assume
obligations towards each other and/or acquire rights
against each other which differ from the Discharged
Rights and Obligations only insofar as the Borrowers
and the Bank Transferee have assumed and/or acquired
the same in place of the Borrowers and the Existing
Bank;
(iii) the Agent, the Borrowers, the Bank Transferee and the
other Banks shall acquire the same rights and assume
the same obligations among themselves as they would
have acquired and assumed had the Bank Transferee been
a party hereunder as a Bank with the rights and/or the
obligations acquired or assumed by it as a result of
the transfer; and
(iv) a proportion of the Existing Bank's rights under the
Security, equal to the proportion of the Existing
Bank's rights under this Agreement being transferred,
shall automatically be transferred to the Bank
Transferee.
19.3.5 The Agent will promptly complete Transfer Certificates on request
by an Existing Bank and upon payment by such Existing Bank of a
(pound)750 fee to the Agent. Each Borrower and each of the Banks
hereby irrevocably authorise the Agent to execute any duly
completed Transfer Certificate on its behalf provided that such
authorisation does not extend to the execution of a Transfer
Certificate on behalf of either the Existing Bank or the Bank
Transferee named therein.
19.3.6 The Agent shall promptly notify the Parent of the receipt and
execution on its behalf by the Agent of any Transfer Certificate.
19.3.7 The Borrowers shall be under no obligation to pay any greater
amount under this Agreement following an assignment or transfer by
a Bank of any of its rights or obligations pursuant to the
foregoing provisions of this Clause 19 if such greater amount would
not have been payable but for the assignment or transfer.
19.3.8 When a Bank assigns or transfers part of its rights and benefits
hereunder it shall assign or transfer, as the case may be, the same
percentage of its rights and benefits in relation to each Facility.
19.4 Disclosure of Information
The Agent and the Banks may disclose any information furnished or
made available to them hereunder by the Borrowers to each other,
their professional advisers and to any actual or potential
assignee, transferee or sub-participant subject to the condition
(except where such information is available in the public domain)
that each of the same executes in favour of the Parent a written
confidentiality undertaking agreeing to keep confidential any such
information.
20. CURRENCY INDEMNITY
20.1 Any payment made to or for the account of or received by the Agent
or any Bank in respect of any moneys or liabilities due, arising or
incurred by the Borrowers to the Agent or any Bank in a currency
(the "Currency of Payment") other than the currency in which the
payment should have been made under this Agreement (the "Currency
of Obligation") in whatever circumstances (including as a result of
a judgment against the Borrowers) and for whatever reason shall
constitute a discharge to the Borrowers only to the extent of the
Currency of Obligation amount which the Agent or that Bank, as the
case may be, is able on the date of receipt of such payment (or if
such date of receipt is not a Business Day, on the next succeeding
Business Day) to purchase with the Currency of Payment amount at
its spot rate of exchange (as conclusively determined by the Agent
or that Bank) in the London foreign exchange market.
20.2 If the amount of the Currency of Obligation which the Agent or that
Bank is so able to purchase falls short of the amount originally
due to the Agent or that Bank, as the case may be, under this
Agreement, then the Borrowers shall immediately on demand indemnify
the Agent or that Bank, as the case may be, against any loss or
damage arising as a result of that shortfall by paying to the Agent
or that Bank, as the case may be, that amount in the Currency of
Obligation certified by the Agent or that Bank, as the case may be,
as necessary so to indemnify it.
20.2 General
20.2.1 Each indemnity in this Clause 20 shall constitute a separate and
independent obligation from the other obligations contained in this
Agreement, shall give rise to a separate and independent cause of
action, shall apply irrespective of any indulgence granted from
time to time and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum or sums
in respect of amounts due under this Agreement or under any such
judgment or order.
20.2.2 The certificate of the Agent or the relevant Bank as to the amount
of any loss or damage sustained or incurred by it shall be
conclusive and binding on the Borrowers except for any manifest
error.
21. PRIORITIES
21.1 Priority Order
21.1.1 It is hereby agreed by and between the parties to this Agreement
that on enforcement of the Security the Net Proceeds shall be
applied:
(i) first, in discharge of the Priority Obligations; and
(ii) second, in discharge of the NatWest Obligations.
21.1.2 The Security is a continuing security and the ranking of the
Priority Obligations and the NatWest Obligations as provided for in
this Agreement shall not be affected by any fluctuation in the
amounts from time to time of the Priority Obligations or the
NatWest Obligations or by the existence at any time of a credit
balance on any current or other accounts.
21.1.3 For the avoidance of doubt it is confirmed that the moneys owing
and obligations and other liabilities of the Borrowers to the Banks
and the Agent under this Agreement in respect of the Priority
Obligations shall rank pari passu in all respects and that on
enforcement the Net Proceeds shall be shared between the Banks pro
rata on the basis of their respective Participation Percentages.
21.2 Co-Operation
The Agent and the Banks shall co-operate to ensure that any moneys
in the hands of a receiver appointed pursuant to any of the
Security are distributed in a manner consistent with the provisions
of this Agreement.
22. ANNOUNCEMENTS
Without the consent of the Agent (acting on behalf of all of the
Banks), none of the parties to this Agreement shall make any
statement or public announcement to the press or other media in
connection with any matters referred to in this Agreement, save for
any such announcement or disclosure that may be required by law or
recognised Stock Exchange Rules or is contained in the Circular, or
in respect of information is in the public domain.
23. CONFLICT
23.1 If and to the extent of any conflict between the provisions of this
Agreement and those of any other Financing Document, the terms of
this Agreement shall prevail.
23.2 For the avoidance of doubt, principal interest and other amounts
outstanding hereunder may only be demanded in accordance with the
terms of this Agreement.
23.3 Any consent which may have been given in relation to any Financing
Document other than this Agreement shall remain in full force and
effect.
23.4 For the avoidance of doubt, the Agent and the Banks confirm that
any breach of Clause 6 of the guarantee and debenture between the
Agent and the Parent as a result of the payment of the Transaction
Proceeds into the Deposit Account is hereby waived.
23.5 The Agent and HLS agree that they shall within 21 days of the
signing of this Agreement execute such instruments or agreements
supplemental to such of the Security Documents to which HLS is a
party which are existing as at the date of this Agreement as are
necessary in order to limit the Agent's or the Banks' rights,
remedies and powers under those Security Documents in accordance
with, and so as to reflect, the provisions of this Agreement. For
the avoidance of doubt the failure by HLS to execute such
instruments or agreements within such 21 day period shall not be a
Default or a Default Occurence.
23.6 For the avoidance of doubt, subject to the provisions of Clause
13.3, the Existing Facilities shall continue to be provided in
accordance with their terms until the First Drawdown Date.
24. LAW AND JURISDICTION
24.1 Law
This Agreement shall be governed by, and construed in all respects
in accordance with, English law.
24.2 Jurisdiction
24.2.1 The courts of England shall have jurisdiction to settle any
disputes which may arise out of or in connection with this
Agreement.
24.2.2 Subject to the following proviso Clause 24.2.1 is for the benefit
of the Agent and the Banks only and is without prejudice to the
right of the Agent and each Bank to bring any proceedings relating
to this Agreement in any other court which has jurisdiction.
PROVIDED THAT the Borrowers may bring proceedings against any Bank
in any court of the jurisdiction in which it is incorporated or has
its main place of business.
24.2.3 For the purposes of this Agreement each Borrower and each Bank hereby:
(i) waives any objections on the grounds of venue or forum
non conveniens or any similar grounds; and
(ii) consents to service of process by mail or in any other
manner permitted by the relevant law.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed on the date set out above.
SCHEDULE 1
THE BANKS
Bank and Lending Commitment (pound) Commitment
Office Percentage
1. National Westminster Bank Plc 12,224,998 49.898
Address for Notices
King's Xxxxx Xxxxx
00xx Xxxxx, Xxxxx I
000 Xxxxxxxxxxx Xxxx
Xxxxxx X0 0XX
Attention: Xxxxx Xxxxxxxx
Telephone: (0000) 000 0000
Fax: (0000) 000 0000
2. The First National Bank 6,971,324 28.454
of Maryland
Address for Notices
00 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx
XX 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxx X Xxxxxxxx
Telephone (000) 000 0000
Fax: (000) 000 0000
3. Comerica Bank 5,303,678 21.648
Address for Notices
XX Xxx 00000
Xxxxxxx
XX 00000-0000
Xxxxxx Xxxxxx of America
Attention: Xxxxx X Xxxxxx
Telephone: (000) 000 0000
Fax: (000) 000 0000
SCHEDULE 2
DRAWDOWN NOTICE
To: National Westminster Bank Plc
3rd Floor
Juno Court
00 Xxxxxxxx Xxxxxx
Xxxxxx X0 0XX
Date
Dear Sirs,
Facilities Agreement dated [*] August 1998 made between Huntingdon Life Sciences
Group plc, Huntingdon Life Sciences Limited, Huntingdon Life Sciences Inc.,
certain banks and you as agent (the "Facilities Agreement").
We hereby give you notice of the following proposed borrowing of a Revolving
Advance under the Facilities Agreement. Words and expressions defined therein
shall have the same meanings when used herein.
1. Facility:
2. Amount of Revolving Advance:
4. Purpose:
5. Proposed Drawdown Date:
6. Duration of Interest Period:
7. Payment Instructions:
SIGNED
For and on behalf of
HUNTINGDON LIFE SCIENCES GROUP plc
SCHEDULE 3
MANDATORY COST RATE
The Mandatory Cost Rate is an addition to the interest rate on a Revolving
Advance to compensate the Banks for the cost attributable to a Revolving Advance
resulting from the imposition from time to time under or pursuant to the Bank of
England Act 1988 (the "Act") and/or by the Bank of England and/or the Financial
Services Authority (the "FSA") (or other United Kingdom governmental authorities
or agencies) of a requirement to place Special Deposits (whether interest
bearing or not) with the Bank of England and/or pay fees to the FSA calculated
by reference to liabilities used to fund the Revolving Advance.
The Mandatory Cost Rate shall be the rate determined by the Agent to be equal to
the arithmetic means (rounded upward, if necessary, to 4 decimal places) as the
rate resulting from the application of the following formula:
[OBJECT OMITTED]
where, in each case, on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any stated
minimum) by reference to which the Agent is required under or
pursuant to the Act to maintain cash ratio deposits with the Bank
of England;
F is the rate of charge equal to the average of the respective rates
of charge notified to the Agent by each Bank as being payable by
that Bank to the FSA pursuant to paragraph 2.02 or 2.03 (as the
case may be) of the Fees Regulations (but where, for this purpose,
the figures at paragraph 2.02b and 2.03b of the Fees Regulations
shall be deemed to be zero) and expressed in pounds per (pound)1
million of the Fee Base of that Bank;
L is the BBA Sterling LIBOR rate quoted at or about 11.00 a.m.
(London time) on Telerate (now at page 3750) on that day;
S is the level of interest bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which the Agent is required to
maintain by the Bank of England (or other United Kingdom
governmental authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to the
Agent on Special Deposits.
(X, L, S and D shall be expressed in the formula as numbers and not as
percentages, e.g. if X = 0.15% and L = 7%, XL will be calculated as 0.15 x 7 and
not as 0.15% x 7%. A negative result obtained from subtracting D from L shall be
counted as zero.).
Each Bank shall supply such information and in such detail as the Agent may
require for the purposes of calculating the above formulae. If any Bank fails to
notify any rate or figures to the Agent, the Mandatory Cost Rate shall be
determined on the basis of the rate(s) or figure(s) notified to the Agent by the
remaining Bank(s).
The Mandatory Cost Rate attributable to an Revolving Advance or other sum for
any period shall be calculated at or about 11.00 a.m. (London time) on the first
day of that period for the duration of that period.
The determination of the Mandatory Cost Rate in relation to any period shall, in
the absence of manifest error, be conclusive and binding on the Parties to this
Agreement.
If there is any change in circumstance (including the imposition of alternative
or additional requirements) which in the reasonable opinion of the Agent renders
or will render the above formula (or any element of the formula, or any defined
term used in the formula) inappropriate or inapplicable, the Agent (following
consultation with the Borrower and the Majority Banks) shall be entitled to vary
the same by giving notice to the Parties to this Agreement. Any such variation
shall, in the absence of manifest error, be conclusive and binding on the
Parties to this Agreement and shall apply from the date specified in such
notice.
For the purposes of this Schedule:
"Eligible Liabilities" and "Special Deposits" have the meanings given to those
terms under or pursuant to the Act or by the Bank of England (as may be
appropriate), on the day of the application of the formula.
"Fee Base" has the meaning given to that term for the purposes of, and shall be
calculated in accordance with, the Fees Regulations.
"Fees Regulations" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1998; or
(b) such regulations as from time to time may be in force, relating to
the payment of fees for banking supervision in respect of periods
subsequent to 31st March 1999.
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
TRANSFER CERTIFICATE
To: National Westminster Bank Plc
and the other parties
to the Facilities Agreement (as defined below)
This transfer certificate ("Transfer Certificate") relates to a Revolving Loan
Agreement dated [ ] August 1998 and made by (1) Huntingdon Life Sciences Group
plc (2) Huntingdon Life Sciences Limited, (3) Huntingdon Life Sciences Inc, (4)
the Banks and (5) National Westminster Bank Plc as Agent (the "Facilities
Agreement" which term shall include any amendments or supplements thereto).
Terms defined in the Facilities Agreement shall, unless otherwise defined, have
the same meanings when used in this Transfer Certificate.
I. *[Details of Existing Bank] (the "Existing Bank"):
1. confirms that to the extent that details appear in the
Schedule to this Transfer Certificate under the
headings "Existing Bank's Commitment" and
"Participation in the Facilities", those details
accurately summarise its Commitment and its
Participation in the Facilities all or part of which is
to be transferred; and
2. requests [Details of Bank Transferee] (the "Bank
Transferee") to accept and procure, in accordance with
Clause 19 of the Facilities Agreement, the substitution
for the Existing Bank of the Bank Transferee in respect
of the amount specified in the Schedule hereto of its
Commitment and its Participation in the Facilities by
signing this Transfer Certificate.
II. The Bank Transferee hereby requests each of the Borrowers, the
Banks and the Agent to accept this executed Transfer Certificate as
being delivered under and for the purposes of Clause 19 of the
Facilities Agreement so as to take effect in accordance with the
terms of that Clause on [date of transfer] being the date on or
before which an executed copy of this Transfer Certificate is
delivered to the Agent.
III. The Bank Transferee:
1. confirms that it has received a copy of the Facilities
Agreement together with such other documents and information
as it has requested in connection with this transaction;
2. confirms that it has not relied and will not rely on
the Existing Bank to check or enquire on its behalf
into the legality, validity, effectiveness, adequacy,
accuracy or completeness of any such documents or
information; and
3. agrees that it has not relied and will not rely on any
of the Existing Bank, the Agent and the Banks to assess
or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status
or nature of any of the Borrowers or any other party to
the Security.
IV. The Bank Transferee undertakes with the Existing Bank and each of
the other parties to the Facilities Agreement that it will perform,
in accordance with their terms, all those obligations which, by the
terms of the Facilities Agreement, will be assumed by it upon
delivery of the executed copy of this Transfer Certificate to the
Agent.
V. On execution of this Transfer Certificate by the Agent on their
behalf, the Borrowers and the Banks accept the Bank Transferee as a
party to the Facilities Agreement in substitution for the Existing
Bank with respect to all those rights and obligations which, by the
terms of the Facilities Agreement, will be assumed by the Bank
Transferee after delivery of the executed copy of this transfer
Certificate to the Agent.
VI. None of the Existing Bank, the Banks and the Agent:
1. makes any representation or warranty or assumes any
responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of any of the
Financing Documents; or
2. assumes any responsibility for the financial condition
of any of the Borrowers or any other party to any of
the Financing Documents or any other document or for
the performance and observance by the Borrowers or any
other party to the Facilities Agreement or any other
document of its or their obligations and any and all
conditions and warranties, whether express or implied
by law or otherwise, are excluded.
VII. The Bank Transferee confirms that its Lending Office and address
for notices for the purposes of the Facilities Agreement are as set
out in the Schedule hereto.
VIII. The Existing Bank hereby gives notice to the Bank Transferee (and
the Bank Transferee hereby acknowledges and agrees with the
Existing Bank) that the Existing Bank is under no obligation to
re-purchase (or in any other manner to assume, undertake or
discharge any obligation or liability in relation to) the
transferred Commitment and Participation at any time after this
Transfer Certificate shall have taken effect.
IX. Following the date upon which this Transfer Certificate shall have
taken effect, without limiting the provisions hereof, each of the
Bank Transferee and the Existing Bank hereby acknowledges and
confirms to the other that in relation to the relative Commitment
and Participation (or part thereof) variations, amendments
or alterations to any of the terms of any of the Financing
Documents arising in connection with any renegotiation or
rescheduling of the obligations hereunder shall apply to and be
binding on the Bank Transferee alone.
X. This Transfer Certificate shall be construed in accordance with,
and governed by, English law.
*[Bank Transferee]
By:..........................
(Duly Authorised)
*[Existing Bank]
By:..........................
(Duly Authorised)
The Agent on behalf of itself and all other parties to the Facilities Agreement.
By:..........................
(Duly Authorised)
Dated:
THE SCHEDULE
Existing Bank's Commitment Amount of Commitment Transferred
Participation in the Facilities Amount of Participation Transferred
[Bank Transferee]
Lending Office Address for notices
* *
Attention: *
Telex: *
Answerback: *
SCHEDULE 5
EXISTING SECURITY
Document Executed by Date
1. Guarantee and Debenture in favour of the Agent as amended by a Parent 1.11.95
Supplemental Deed dated 20th January 1998 and a Supplemental Deed
dated 26th February 1998
2. Guarantee and Debenture in favour of the Agent as amended by a HLSL
21.11.95 Supplemental Deed dated 20th January 1998 and a Supplemental
Deed dated 26th February 1998
3. Guarantee in favour of the Agent as amended by a Supplemental Deed HLS 21.11.95
dated 20th January 1998 and a Supplemental Deed dated 26th
February 1998
4. Security Agreement in favour of the Agent as amended by a HLS 21.11.95
Supplemental Deed dated 20th January 1998 and a Supplemental Deed
dated 26th February 1998
5. Mortgage in favour of the Agent over the New Jersey Property as HLS
16.01.98 amended by a Supplemental Deed dated 26th February 1998
6. Equipment Mortgage in favour of the Agent HLSL 20.04.98
7. Security Agreement incorporating an Equipment Mortgage and a HLS 30.04.98
Charge over an Operating Account in favour of the Agent
SCHEDULE 6
CONDITIONS PRECEDENT
The Revolving Credit Facility shall be made available to the Borrowers when:
(i) the Agent has received the following in form and substance satisfactory
to it:
(a) 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 Agreement and in the
case of the Parent unanimously supporting, approving
and recommending the Placings to the shareholders of
the Parent;
(b) certified copies of the Investor Placing Agreement and the
Shareholder Placing Agreement duly executed by the parties
thereto; and
(c) a certified copy of the Circular.
(ii) the Transaction Proceeds are received by the Agent in the Deposit Account;
(iii) the Agent has received (on behalf of the Banks) the Participation Fee
referred to in Clause 16.4.1;
(iv) NatWest has received repayment in full and on a permanent basis of
all Indebtedness outstanding in respect of the Bridging Facility.
SCHEDULE 7
PARTICIPATION IN RISK SHARING
Bank Participation Percentage
National Westminster Bank Plc 49.693%
Comerica 21.648%
The First National Bank of Maryland 28.454%
The Borrowers
SIGNED by )
)
for and on behalf of ) XXXXXXXXXXX XXXXXX
HUNTINGDON LIFE SCIENCES )
GROUP HOLDINGS plc )
SIGNED by )
)
for and on behalf of ) XXXXXXXXXXX XXXXXX
HUNTINGDON LIFE SCIENCES )
LIMITED )
SIGNED by )
) XXXXXXXXXXX XXXXXX
for and on behalf of )
HUNTINGDON LIFE SCIENCES INC.)
The Agent
SIGNED by )
)
for and on behalf of ) X X XXXXXXXX
NATIONAL WESTMINSTER )
BANK Plc )
The Banks
SIGNED by )
)
for and on behalf of ) X X XXXXXXXX
NATIONAL WESTMINSTER )
BANK Plc )
SIGNED by )
)
for and on behalf of ) XXXXXX XXXXXXXX
THE FIRST NATIONAL BANK OF )
MARYLAND )
SIGNED by )
) XXXXX XXXXXX
for and on behalf of )
COMERICA BANK )
