EXHIBIT 10.9
Dated 19 July, 2001
BEAR XXXXXXX CORPORATE LENDING INC
AS RETIRING ARRANGER
BEAR XXXXXXX CORPORATE LENDING INC
AS RETIRING AGENT
THE ROYAL BANK OF SCOTLAND PLC and
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
AS NEW ARRANGERS
THE ROYAL BANK OF SCOTLAND PLC
AS NEW AGENT
BEAR XXXXXXX CORPORATE LENDING INC
AS MAJORITY LENDER
THE COMPANIES NAMED HEREIN
AS OBLIGORS
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ARRANGER, AGENT AND SECURITY TRUSTEE
SUBSTITUTION DEED
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SHEARMAN & STERLING
LONDON
ARRANGER, AGENT AND SECURITY TRUSTEE
SUBSTITUTION DEED
THIS DEED is made on 19 July, 2001
BETWEEN:-
(1) BEAR XXXXXXX CORPORATE LENDING INC as retiring arranger (the "RETIRING
ARRANGER");
(2) BEAR XXXXXXX CORPORATE LENDING INC as retiring agent and as retiring
security trustee for the Lenders (the "RETIRING AGENT");
(3) THE ROYAL BANK OF SCOTLAND PLC and THE GOVERNOR AND COMPANY OF THE BANK
OF SCOTLAND as the new arrangers (the "NEW ARRANGERS");
(4) THE ROYAL BANK OF SCOTLAND PLC as the new agent and new security
trustee for the Lenders (the "NEW AGENT");
(5) BEAR XXXXXXX CORPORATE LENDING INC as the Majority Lender (the
"MAJORITY LENDER"); and
(6) THE COMPANIES NAMED HEREIN as Obligors (the "OBLIGORS").
RECITALS
(A) Bear Xxxxxxx Corporate Lending Inc is currently arranger, agent and
security trustee in connection with the Finance Documents and wishes to
resign from such roles.
(B) The Majority Lender wishes to appoint (a) The Royal Bank of Scotland
and The Governor and Company of The Bank of Scotland as the new
arrangers, acting severally, and The Royal Bank of Scotland plc and The
Governor and Company of The Bank of Scotland have agreed to accept such
appointments and (b) The Royal Bank of Scotland plc as the new agent
and new security trustee in relation to the Finance Documents and The
Royal Bank of Scotland plc has agreed to accept such appointments.
(C) This deed is entered into in record such substitution and the
assignment and transfer of all rights under, inter alia, the Facilities
Agreement, the Intercreditor Deed, the Debenture and under all other
Finance Documents from Bear Xxxxxxx Corporate Lending Inc to The Royal
Bank of Scotland plc and The Governor and Company of The Bank of
Scotland as described above.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 DEFINITIONS: In this deed, unless the context otherwise requires, the
following expressions have the following meanings:-
"CANADIAN ASSIGNMENT DEED" means the deed of assignment to be entered
into on or about the date of this deed by the Retiring Agent and the
New Agent in relation to certain of the Security Documents governed
under the laws of the province of Quebec;
"CHARGOR" means Inveresk Research Holdings Limited, a company
incorporated in England and Wales with registered no. 3662374;
"DEBENTURE" means the debenture dated 3 April, 2001 executed by the
Chargor in favour of the Retiring Agent in its capacity as Security
Trustee;
"FACILITIES AGREEMENT" means the facilities agreement dated 22
February, 2001 (as amended and restated from time to time) made between
(1) the Parent, (2) Canada Holdco, (3) the companies named therein as
Original Guarantors, (4) the Arranger, (5) the Original Lender, (6) the
Agent, (7) the Security Trustee and (8) the Working Capital Bank
pursuant to which the Lenders agreed to make available credit
facilities to the Borrowers named therein;
"INTERCREDITOR DEED" means the intercreditor deed dated 3 April, 2001
(as amended and restated from time to time) between (1) the Parent, (2)
Canada Holdco, (3) the companies named therein as Subsidiaries, (4) the
companies and institutions named therein as Investors, (5) the
institutions named therein as Lenders, (6) the Agent, (7) the Security
Trustee, (8) the Working Capital Bank and (9) the Arranger, regulating
the priority of security granted by and indebtedness owed by the Parent
and its Subsidiaries;
"PARTICIPATION AGREEMENT" means the participation and indemnity
agreement dated 22 February 2001 between Bear Xxxxxxx Corporate Lending
Inc. as lender and The Governor and Company of The Bank of Scotland and
The Royal Bank of Scotland plc as participants; and
"TRANSFER CERTIFICATES" means the transfer certificates dated on or
about the date of this deed pursuant to which the Majority Lender shall
transfer all of its commitments and participations in the Facilities to
The Governor and Company of The Bank of Scotland and The Royal Bank of
Scotland plc.
1.2 Terms defined in the Facilities Agreement or in the Intercreditor Deed
shall have the same meaning when used herein.
1.3 CONSTRUCTION: In this deed, unless a contrary intention appears:-
(a) a reference to any person is, where relevant, deemed to be a
reference to or to include, as appropriate, that person's
successors and permitted assignees or transferees;
(b) references to clauses and schedules are references to,
respectively, clauses of and schedules to this deed and
references to this deed include its schedules;
(c) a reference to (or to any specified provision of) any
agreement, deed or other instrument (including the Facilities
Agreement) is to be construed as a reference to that
agreement, deed or other instrument (or that provision) as it
may have been or hereafter be, from time to time, amended,
varied, supplemented, restated or novated but excluding for
this purpose any amendment, variation, supplement or
modification which is contrary to any provision of this deed
or the Facilities Agreement;
(d) a reference to a statute or statutory instrument or accounting
standard or any provision thereof is to be construed as a
reference to that statute or statutory instrument or
accounting standard or such provision thereof, as the same may
from time to time be amended or re-enacted;
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(e) a time of day is a reference to London time;
(f) the index to and the headings in this deed are inserted for
convenience only and are to be ignored in construing this
deed; and
(g) the terms of the documents under which the Senior Debt arises
and of any side letters between an Obligor and the Fine
Parties (or any of them) relating thereto are incorporated in
this deed to the extent required for any purported disposition
of the Security Assets (as defined in the Debenture) contained
in this deed to be a valid disposition under section 2(1) of
the Law of Property (Miscellaneous Provisions) Xxx 0000;
(h) the parties intend that this document shall take effect as a
deed;
(i) words importing the plural shall include the singular and vice
versa; and
(j) a person who is not a party to this deed has no right under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce
any of its terms.
2. SUBSTITUTION OF ARRANGER
2.1 The New Arrangers are hereby appointed as Arrangers in place of the
Retiring Arranger for all purposes under the Finance Documents with
immediate effect.
2.2 The New Arrangers acknowledge and agree to their appointment as the new
Arrangers, as specified in clause 2.1 above.
2.3 The Retiring Arranger hereby assigns and transfers to the New Arrangers
all its interests in and all its rights and entitlements as Arranger
under the Finance Documents.
3. SUBSTITUTION OF THE AGENT AND THE SECURITY TRUSTEE
3.1 The New Agent is hereby appointed as Agent and as Security Trustee in
place of the Retiring Agent for all purposes under the Finance
Documents with immediate effect.
3.2 The New Agent acknowledges and agrees to its appointment as the new
Agent and Security Trustee as specified in clause 3.1 above.
3.3 The New Agent is hereby substituted for the Retiring Agent in its
capacities as Agent and Security Trustee for all purposes of the
Finance Documents and for the avoidance of doubt, the Retiring Agent
shall no longer have any interests, rights or entitlements under any of
the Finance Documents.
3.4 The New Agent confirms that it will hold the benefit of the Security
Documents on trust for itself and the Finance Parties and will apply
all payments and other benefits received by it under the Security
Documents in accordance with the provisions of the Intercreditor Deed.
3.5 The Retiring Agent undertakes in favour of the New Agent to promptly
deliver such originals of the Finance Documents as are in its
possession to the New Agent upon receipt of written request from the
New Agent.
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4. CONFIRMATION OF SECURITY
4.1 Each Obligor hereby consents to the appointment of (a) the New
Arrangers in place of the Retiring Arranger under clauses 2.1 and 2.2
above and (b) the New Agent in place of the Retiring Agent under
clauses 3.1 and 3.2 above and confirms:
(a) the continuation of all guarantees and security constituted by
the Finance Documents in favour of the Lenders and the New
Agent as new Security Trustee following the New Agent's
appointment as new Security Trustee pursuant to this deed;
(b) that it will continue to be bound by the terms of the Finance
Documents as if the New Arrangers and the New Agent had been
original parties thereto in such capacities; and
(c) the appointment of the New Agent as its attorney by way of
security for its obligations in accordance with clause 15 of
the Debenture.
4.2 Canada Holdco executed a Pledge Agreement in favour of Retiring Agent
dated April 3, 2001 (as it may be amended, modified or supplemented
from time to time, the "Pledge Agreement") whereby Canada Holdco
pledged to the Retiring Agent 100% of the issued and outstanding shares
of capital stock of Indigo Acquisition Corp., a Delaware Corporation
("INDIGO"). On April 5, 2001, Indigo Acquisition Corp, merged with and
into ClinTrials Research, Inc., a Delaware corporation (the "MERGER"),
and ClinTrials Research, Inc. was the surviving corporation of such
Merger. Canada Holdco, Retiring Agent and New Agent confirm as follows:
(a) Capitalized terms used in this clause 4.2 and not otherwise
defined shall have the meanings assigned to them in the Pledge
Agreement;
(b) The pledge of the Collateral by Canada Holdco set forth in the
Pledge Agreement shall be and shall be deemed to be in favour
of the New Agent;
(c) On April 3, 2001, the 100 shares of stock of Indigo pledged by
Canada Holdco to the Retiring Agent and delivered to the New
Agent in certificated form constituted all of the outstanding
shares of stock of Indigo prior to the Merger. Upon the
consummation of the Merger, the 100 pledged shares of stock of
Indigo were converted to 100 shares of stock of ClinTrials
Research, Inc. pursuant to the terms of the Agreement and Plan
of Merger dated as of February 22, 2001 by and among Inveresk
Research Group Limited, Indigo and ClinTrials Research Inc;
(d) Canada Holdco delivered an original stock certificate for 100
shares of ClinTrials Research, Inc., together with three
originally executed stock powers, to the New Agent, to replace
the stock certificate for 100 shares of stock of Indigo
originally delivered to New Agent;
(e) Canada Holdco has delivered a revised Schedule A to the Pledge
Agreement ("SCHEDULE A-2") which is attached hereto and
reflects the consummation of the Merger and the conversion of
the 100 shares of stock of Indigo to 100 shares of stock of
ClinTrials Research, Inc. The attached Schedule A-2 amends and
restates Schedule A to the Pledge Agreement in its entirety,
and the 100 shares of stock of ClinTrials Research, Inc.
constitute "SECURITIES" as defined in the Pledge Agreement;
and
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(f) Canada Holdco hereby makes each of the representations and
warranties set forth in section 2 of the Pledge Agreement, as
of the date hereof, after giving effect to the substitution of
the Collateral described herein.
4.3 Indigo executed a Security Agreement dated April 3, 2001 in favour of
the Retiring Agent, or upon its resignation, its appointed successor
Security Trustee pursuant to the Facilities Agreement ("SECURITY
AGREEMENT"). The Retiring Agent and the New Agent agree that as of the
date of the Merger, the Retiring Agent and New Agent are deemed to have
released their security interest in the Collateral (as such term is
defined in the Security Agreement). The New Agent agrees to take any
and all actions and file all documents reasonably requested by
ClinTrials Research, Inc. (at the expense of ClinTrials Research, Inc.)
to effect the intent of such release.
5. RELEASE OF THE RETIRING AGENT AND INDEMNITY
(a) The New Arrangers, the New Agent, the Majority Lender and the
Obligors each confirm and agree that the Retiring Arranger and
the Retiring Agent shall be irrevocably released from all of
their respective liabilities and obligations as Arranger,
Agent and Security Trustee under the Finance Documents.
(b) The Obligors agree that clause 27.10 (Lenders' indemnity to
the Agent) of the Facilities Agreement will continue to apply
with respect to the Retiring Agent (in its capacities as Agent
and Security Trustee) and will also apply for the benefit of
the New Agent (in its capacities as Agent and Security
Trustee).
6. EFFECTIVENESS
It is hereby agreed that upon due execution and delivery by all
relevant parties of this deed, the Canadian Assignment Deed and the
Transfer Certificates:
(a) the transfers contemplated by clause 12 (Assignment and
Transfer) of the Participation Agreement shall become
effective for the purposes of clause 12.4 (Termination) of the
Participation Agreement; and
(b) clauses 27.11 (Resignation of the Agent) and 27.17
(Appointment of the Security Trustee) of the Facilities
Agreement, respectively, shall be deemed satisfied.
7. FURTHER ASSURANCE
Each of the parties to this deed agrees that it will (and that it will
procure that its subsidiaries or affiliates will) as soon as possible
but in any event no later than thirty Business Days after the date of
this deed, do all such acts and things and execute such further
agreements, deeds or other documents as may be reasonably required in
order to perfect the resignation of the Retiring Arranger and the
Retiring Agent, the appointment of the New Arrangers and the New Agent
(in its capacities as new Agent and new Security Trustee) for all
purposes of the Finance Documents including, without limitation, any
agreements, deeds or other documents required by applicable law to
effect the transfer of all rights, obligations and interests of the
Retiring Agent (in its capacity as Security Trustee) to the New Agent
under the Security Documents.
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8. STATUS OF FINANCE DOCUMENTS AND PARTICIPATION AGREEMENT
Each of the parties to this deed hereby confirms that, save as
specifically amended or varied by this deed, the terms of the Finance
Documents and the Participation Agreement remain in full force and
effect.
9. NOTICES
9.1 MODE OF SERVICE:
(a) Except as specifically provided otherwise in this deed, any
notice, demand, consent, agreement or other communication (a
"NOTICE") to be served under or in connection with this deed
will be in writing and will be made by letter or by facsimile
transmission to the party to be served.
(b) The address and facsimile number of each party to this deed
for the purposes of clause 32 (Notices) of the Facilities
Agreement (and the Finance Documents generally) are:-
(i) the address and facsimile number shown immediately
after its name on the signature pages of this deed;
or
(ii) any other address and facsimile number notified by
that party for this purpose to the Security Trustee
by not less than five Business Days' notice.
9.2 DEEMED SERVICE:
(a) A Notice will be deemed to be given as follows:-
(i) if by letter, when delivered personally or on actual
receipt; and
(ii) if by facsimile, one hour after the time of
transmission.
(b) A Notice given in accordance with Clause 9.2(a) but received
on a non-working day or after business hours in the place of
receipt will only be deemed to be given on the next working
day in that place.
10. PERPETUITY PERIOD
The perpetuity period applicable to the trusts established by this deed
is 80 years.
11. FINANCE DOCUMENT
This deed shall constitute a Finance Document for the purposes of the
Facilities Agreement.
12. GOVERNING LAW AND JURISDICTION
This deed shall be governed by and construed in all respects in
accordance with English law. The English courts shall have exclusive
jurisdiction to settle any dispute arising from or connected with this
deed.
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13. COUNTERPARTS
This deed may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the
same instrument.
IN WITNESS WHEREOF this deed has been duly executed the day and year first
before written.
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SCHEDULE A-2
TO THE PLEDGE AGREEMENT DATED APRIL 3, 2001
BY INVERESK RESEARCH (CANADA) INC.
IN FAVOUR OF BEAr, XXXXXXX CORPORATE LENDING
AS SECURITY TRUSTEE
100 common shares of ClinTrials Research, Inc., par value $0.01 per share, held
by Inveresk Research (Canada) Inc., represented by certificate Number 1 dated
April 5, 2001.
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EXECUTION
THE RETIRING ARRANGER
EXECUTED as a deed by )
BEAR XXXXXXX CORPORATE LENDING INC )
acting by )
/s/
-----------------------------
Authorised Signatory
-----------------------------
Authorised Signatory
Address: 000 Xxxx Xxxxxx
Xxx Xxxx
XX 00000
Facsimile: x0 000 000 0000
Attention: G & A SERVICES
THE RETIRING AGENT
EXECUTED as a deed by )
BEAR XXXXXXX CORPORATE LENDING INC )
acting by )
/s/
-----------------------------
Authorised Signatory
-----------------------------
Authorised Signatory
Address: As above
Facsimile: As above
Attention: As above
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THE NEW ARRANGERS
EXECUTED as a deed by )
THE ROYAL BANK OF SCOTLAND )
acting by Xxxxx Xxxx XxXxxxxx )
under Power of Attorney dated )
19 July, 2001 )
/s/ Xxxxx XxXxxxxx
-----------------------------
Authorised Signatory
-----------------------------
Authorised Signatory
In the presence of: Xxxxx Xxxxx /s/ Xxxxx Xxxxx
-----------------------------
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx X0 0XX
Facsimile: 0000-000-0000
Attention: XXXX XXXXXXXX
EXECUTED as a deed by )
THE GOVERNOR AND COMPANY OF THE )
BANK OF SCOTLAND )
acting by )
-----------------------------
Authorised Signatory
-----------------------------
Authorised Signatory
In the presence of:
Address: Xxxxxxx Xxxxx
00 Xxxxxxxxxxx
Xxxxxxxxx XX0 0XX
Facsimile:
Attention:
10
THE NEW ARRANGERS
EXECUTED as a deed by )
THE ROYAL BANK OF SCOTLAND )
acting by )
-----------------------------
Authorised Signatory
-----------------------------
Authorised Signatory
In the presence of:
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx X0 0XX
Facsimile:
Attention:
EXECUTED as a deed by )
THE GOVERNOR AND COMPANY OF THE )
BANK OF SCOTLAND )
acting by )
Xxxxxx X. Xxxxxxx
Director of Structured Finance
/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Authorised Signatory
In the presence of:
Address: New Uberior House
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxx XX0 0XX
Facsimile:
Attention:
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THE NEW AGENT
EXECUTED as a deed by )
THE ROYAL BANK OF SCOTLAND )
acting by Xxxxx Xxxx XxXxxxxx )
under Power of Attorney dated )
19 July, 2001 )
/s/ Xxxxx XxXxxxxx
Authorised Signatory
-----------------------------
Authorised Signatory
In the presence of: Xxxxxxx Xxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Address: As above
Facsimile: As above
Attention: As above
THE MAJORITY LENDER
EXECUTED as a deed by )
BEAR XXXXXXX CORPORATE LENDING INC. )
acting by )
-----------------------------
Authorised Signatory
-----------------------------
Authorised Signatory
Address: As above
Facsimile: As above
Attention: As above
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THE NEW AGENT
EXECUTED as a deed by )
THE ROYAL BANK OF SCOTLAND )
acting by )
-----------------------------
Authorised Signatory
-----------------------------
Authorised Signatory
In the presence of:
Address: As above
Facsimile: As above
Attention: As above
THE MAJORITY LENDER
EXECUTED as a deed by )
BEAR XXXXXXX CORPORATE LENDING INC. )
acting by )
/s/
-----------------------------
Authorised Signatory
-----------------------------
Authorised Signatory
Address: As above
Facsimile: As above
Attention: As above
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THE OBLIGORS
EXECUTED as a deed by )
INVERESK RESEARCH GROUP LIMITED )
acting by )
/s/ Xxxxxx Xxxxx
-----------------------------
Director
/s/ Xxxxxxx Xxxxxx
-----------------------------
Director/Secretary
Address: Elphinstrone Xxxxxxxx Xxxxxx
Xxxxxxx XX00 0XX
Xxxxxxxxx: 01875 613 844
Attention: Xxxxxx Xxxxx
EXECUTED as a deed by )
INVERESK RESEARCH (CANADA) INC. )
acting by )
/s/ Xxxxxx Xxxxx
-----------------------------
Director
-----------------------------
Director/Secretary
Address: Elphinstrone Xxxxxxxx Xxxxxx
Xxxxxxx XX00 0XX
Xxxxxxxxx: 01875 613 844
Attention: Xxxxxx Xxxxx
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EXECUTED as a deed by )
CLINTRIALS RESEARCH, INC. )
acting by )
/s/ Xxxxxx Xxxxx
-----------------------------
Director
-----------------------------
Director/Secretary
Address: Elphinstrone Xxxxxxxx Xxxxxx
Xxxxxxx XX00 0XX
Xxxxxxxxx: 01875 613 844
Attention: Xxxxxx Xxxxx
EXECUTED as a deed by )
INVERESK RESEARCH HOLDINGS LIMITED )
acting by )
/s/ Xxxxxx Xxxxx
-----------------------------
Director
/s/ Xxxxxxx Xxxxxx
-----------------------------
Director/Secretary
Address: Elphinstrone Xxxxxxxx Xxxxxx
Xxxxxxx XX00 0XX
Xxxxxxxxx: 01875 613 844
Attention: Xxxxxx Xxxxx
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EXECUTED as a deed by )
INVERESK RESEARCH INTERNATIONAL )
acting by )
/s/ Xxxxxx Xxxxx
-----------------------------
Director
/s/ Xxxxxxx Xxxxxx
-----------------------------
Director/Secretary
Address: Elphinstone Xxxxxxxx Xxxxxx
Xxxxxxx XX00 0XX
Xxxxxxxxx: 01875 613 844
Attention: Xxxxxx Xxxxx
EXECUTED as a deed by )
INVERESK RESEARCH INTERNATIONAL )
acting by )
/s/ Xxxxxx Xxxxx
-----------------------------
Director
/s/ Xxxxxxx Xxxxxx
-----------------------------
Director/Secretary
Address: Elphinstone Xxxxxxxx Xxxxxx
Xxxxxxx XX00 0XX
Xxxxxxxxx: 01875 613 844
Attention: Xxxxxx Xxxxx
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EXECUTED as a deed by )
CLINTRIALS BIORESEARCHES LIMITED )
acting by )
/s/ Xxxxxx Xxxxx
-----------------------------
Director
-----------------------------
Director/Secretary
Address: x/x Xxxxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxx XX00 0XX
Facsimile: 01875 613 844
Attention: Xxxxxx Xxxxx
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