EXHIBIT 10.12.2.
DATED 7th March, 2003
INYX PHARMA LIMITED
and
VENTURE FINANCE PLC
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PLANT AND MACHINERY LOAN AGREEMENT
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CONTENTS
1 CONSTRUCTION............................................................2
2 THE FACILITY............................................................4
3 TERM AND DRAWDOWN.......................................................5
4 CONDITIONS PRECEDENT....................................................5
5 INTEREST AND FEES.......................................................6
6 REPAYMENT...............................................................6
7 DEFAULT INTEREST........................................................6
8 PAYMENTS................................................................7
9 CHANGES IN CIRCUMSTANCES AND INCREASED COSTS............................7
10 REPRESENTATIONS AND WARRANTIES..........................................7
11 FINANCIAL INFORMATION...................................................8
12 GENERAL COVENANTS.......................................................9
13 EVENTS OF DEFAULT.......................................................9
14 ASSIGNMENT AND TRANSFER................................................10
15 NOTICES................................................................11
16 WAIVERS................................................................11
17 INDEMNITY FOR EXPENSES.................................................11
18 ILLEGALITY.............................................................12
19 SET-OFF................................................................12
20 DEMANDS AND NOTIFICATION BINDING.......................................12
21 GENERAL................................................................12
22 GOVERNING LAW..........................................................13
SCHEDULE 1....................................................................14
SCHEDULE 2 Security Documents.................................................15
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DATE OF LOAN AGREEMENT 2003
PARTIES
(1) INYX PHARMa LIMITED (Company Number 04573515) whose registered office
is at 0 Xxxxxxxxx, Xxxxxx, XX0X 0XX (the "Borrower"); and
(2) VENTURE FINANCE PLC (Company Number 2281768) whose registered office is
at Xxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxxx Xxxxxx, XX00 0XX
("VF")
WHEREAS
(A) VF and the Borrower are parties to an agreement for the purchase of debts
which commenced on or around the date hereof ("the Agreement for the Purchase of
Debts"), and
(B) VF has agreed to make available to the Borrower a loan facility upon the
terms and subject to the conditions set out in this Agreement.
IT IS AGREED as follows:-
1 CONSTRUCTION
1.1 Definitions
In this Agreement, unless the context otherwise requires, the following words
and expressions will have the meaning set out opposite them:-
"Agreement" means this agreement and the Schedules;
"Aggregate Limit" means the amount specified in (or, if appropriate, calculated
in accordance with) paragraph 2 of Schedule 1, or such other greater or lesser
amount as VF may notify to the Borrower from time to time, in each case in VF's
absolute discretion;
"Base Rate" means the Base Rate from time to time set by Venture's Bankers
subject to a minimum rate of 4%.
"Collateral Reporting and Monitoring Requirements" means the reporting and
monitoring requirements of VF in relation to the Eligible Collateral from time
to time including monitoring by way of physical access to premises and access to
such Eligible Collateral by VF or any of its employees servants or agents and
shall for the time being be those detailed in the Schedule;
"Default Rate" means the rate which is 4 per cent per annum above the Interest
Rate;
"Eligible Collateral" means such of the Borrower's undertaking property and
assets as VF may from time to time notify to the Borrower as forming part of the
Borrower's Eligible Collateral which shall until further notice be such of the
undertaking, property and assets of the Borrower as shall be assessed in
accordance with the Eligible Collateral Formula;
"Eligible Collateral Formula" means the formula referred to in paragraph 6 of
Schedule 1 as the same may be varied from time to time (in VF's absolute
discretion) by notice in writing to the Borrower;
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"Encumbrance" means any mortgage, charge, assignment for the purpose of
security, pledge, lien, right of set-off, arrangement for retention of title
(other than in favour of the Borrower), or trust arrangement for the purpose of,
or which has the effect of, granting security or any other interest in the
nature of security of any kind whatsoever or any agreement, whether expressed to
be conditional or otherwise, to create any of the same;
"Event of Default" means any of the events specified in Clause 13;
"Facility" means the loan facility to be made available by VF to the Borrower
pursuant to this Agreement and as more particularly specified in clause 2;
"Facility Fee" means the fee referred to in clause 5.3;
"Interest Rate" means the rate specified in paragraph 4 of Schedule 1 charged on
the Loan Account Balance outstanding from day to day, which interest shall be
debited to the Loan Account upon the last Working Day of each calendar month
"Loan" means the principal sum drawn under the Facility pursuant to Clause 3
from time to time or, as the context requires, the principal amount of such a
sum from time to time outstanding under this Agreement;
"Loan Account" means a loan account or accounts in the name of the Borrower with
VF opened in connection with the Facility;
"Loan Account Balance" means the debit balance of the Loan Account from time to
time;
"Maximum Loan Amount" means the maximum principal amount which may be drawn as a
Loan hereunder as detailed in paragraph 1 of Schedule 1;
"Security Documents" means the documents listed in Schedule 2 and any other
documents for the time being securing (directly or indirectly) all or any of the
Borrower's obligations under this Agreement and/or all or any other obligations
(present or future, actual or contingent) of the Borrower to VF and references
to any such documents shall include the same as varied or amended in writing by
the parties thereto from time to time;
"Schedules" means Schedule 1 and Schedule 2 to this Agreement and "Schedule"
shall mean either or both of them as the context permits;
"Unencumbered" means not subject to any mortgage, charge, assignment for the
purpose of security, pledge, lien, right of set-off, arrangements for retention
of title (other than in favour of the Borrower), or trust arrangement for the
purpose of, or which has the effect of, granting security or any other interest
in the nature of security of any kind whatsoever or any agreement, whether
expressed to be conditional or otherwise, to create any of the same;
"Venture's Bankers" HSBC Bank Plc or such other bank as Venture may from time to
time, at its sole discretion, appoint as its bankers.
"Working Day" means a day upon which VF and clearing Banks in London generally
are open for business of the nature required for the purposes of this Agreement.
1.2 Interpretation
(a) Any reference in this Agreement to:-
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(i) clause, sub-clause, Schedule or Schedules shall (except where
the context otherwise requires) be construed as a reference to
the relevant clause or sub-clause in or Schedule or Schedules
to (and forming a part of) this Agreement;
(ii) a person shall include a body corporate, individual, firm or
an unincorporated body of persons (as the case may be);
(iii) the singular shall include the plural and vice-versa;
(iv) any statutory provision shall be deemed to mean and to include
a reference to any modification, consolidation or re-enactment
thereof for the time being in force;
(v) "Borrower" and "VF" shall, where the context admits, include
their respective personal representatives, successors in title
or assignees (whether immediate or derivative).
(vi) Any reference herein to any document, including to this
Agreement includes such document as amended, novated,
supplemented, substituted, extended, assigned or replaced from
time to time and includes any document which is supplemental
hereto or thereto.
(vii) The meaning of general words introduced by the word "other"
and the word "otherwise" shall not be limited by reference to
any preceding words or enumeration including a particular
class of acts, matters or things.
(b) The headings in this Agreement are inserted for convenience
only and shall not affect its construction or interpretation.
(c) Any right or power which may be exercised or any determination
which may be made hereunder by VF may be exercised or made in
the absolute and unfettered discretion of VF who shall not be
under any obligation to give reasons therefor.
(d) Unless the context otherwise requires, expressions defined in
the Agreement for the Purchase of Debts shall bear the same
meaning herein.
(e) None of the terms of this Agreement is enforceable by any
person other than the parties hereto and their respective
successors in title.
2 THE FACILITY
2.1 The Facility shall consist of a loan drawn pursuant to the terms of
this Agreement of a maximum principal amount not exceeding the Maximum
Loan Amount.
2.2 Unless VF otherwise agrees in writing with the Borrower, the Facility
will be used by the Borrower to fund the acquisition of the Eligible
Collateral and/or its working capital requirements. VF shall not be
bound to enquire as to, nor shall it be responsible for, the use or
application by the Borrower of all or any part of the Facility.
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3 TERM AND DRAWDOWN
3.1 Subject to clause 4, the Facility must be drawn by the Borrower in two
drawings with the first drawing being made upon the date of this
Agreement and the second drawing being made on or before [ ] 2003. Any
part of the Facility not so drawn shall be cancelled.
3.2 VF shall not be obliged to permit any drawing hereunder (other than in
its absolute discretion) if following VF's own assessment of the
Borrower's Eligible Collateral (including Eligible Collateral to be
acquired with the proceeds of that drawing) in accordance with the
Eligible Collateral Formula the drawing would cause the Loan Account
Balance to exceed the sum produced by applying such formula to the
Borrower's Eligible Collateral. If as a consequence of such assessment
the Loan Account Balance is found to be in excess of the sum so
produced, the Borrower shall forthwith upon VF's demand repay to VF
such amount as shall be required to extinguish such excess.
3.3 VF shall not be obliged to permit any drawing hereunder or make any
payment to the Borrower pursuant to any other agreement between VF and
the Borrower including the Agreement for the Purchase of Debts (other
than in its absolute discretion) if following VF's own assessment of
the Borrower's Eligible Collateral in accordance with the Eligible
Collateral Formula, and after a notional or actual combination of all
accounts of the Borrower with VF (including all actual and/or
contingent liabilities of the Borrower to VF at the relevant time)
("the Account Balance") the drawing or payment of such amount would
cause the Account Balance to exceed the Aggregate Limit. If as a
consequence of such assessment and/or combination it is found that the
Account Balance is at that time in excess of the Aggregate Limit the
Borrower shall forthwith upon VF's demand repay to VF such amount as
shall be required to extinguish such excess.
3.4 VF shall be entitled from time to time and at any time to combine all
and any accounts maintained in the name of the Borrower in the books of
VF, such combination being deemed to have taken place on the happening
of any Event of Default. The Borrower will upon demand in writing from
VF pay such amount as may be required to bring the account of the
Borrower within the monetary limits stated in this Agreement.
4 CONDITIONS PRECEDENT
The Facility will only be available for drawing under Clause 3 if:-
(a) the Agreement for the Purchase of Debts has commenced and all
conditions precedent to the making of prepayments thereunder
by VF have been satisfied; and
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(b) the Security Documents duly executed by the Borrower have been
received by VF together with copy Board Minutes authorising
the entry into and execution of the same; and
(c) there is no Event of Default and no event has occurred which,
with the lapse of time or giving of notice or both, might
constitute an Event of Default; and
(d) the representations and warranties set out in Clause 10 are
true and accurate in all material respects; and
(e) the Borrower has notified VF in writing of the amount
requested to be drawn by the Borrower and full details of the
account of the Borrower to which the funds are to be remitted.
The Borrower acknowledges that any notice given in accordance
with this clause 4(e) shall be irrevocable and, unless VF
otherwise agrees, shall oblige the Borrower to borrow the
amount specified.
5 INTEREST AND FEES
5.1 Interest will be charged on the Loan Account Balance at the Interest
Rate and shall accrue from day to day and shall be computed on the
basis of a 365 day year and the number of days elapsed.
5.2 The interest accrued on the Loan Account Balance from and including the
date upon which the facility is drawn shall be debited to the Loan
Account monthly. The Borrower and VF hereby agree that for
administrative convenience all interest payable in respect of the Loan
Account balance and all other sums payable by the Borrower pursuant to
this Agreement may be debited by VF to the Current Account of the
Borrower maintained by VF pursuant to the Agreement for the Purchase of
Debts. VF reserves the right to require actual payment of all interest
by cheque drawn by the Borrower or such other form of remittance as VF
may from time to time specify.
5.3 The Borrower shall pay to VF the Facility Fee in the amount and at the
frequency stated in paragraph 3 of Schedule 1.
6 REPAYMENT
The principal amount of the Facility drawn by the Borrower shall (if
not repayable at an earlier date pursuant to the terms of this
Agreement) be repaid in accordance with the Repayment Terms set out in
paragraph 7 of Schedule 1. Notwithstanding any other term of this
Agreement the Borrower may at any time repay the whole or any part of
the Loan Account Balance from time to time. No part of the Facility
which is repaid may be reborrowed.
7 DEFAULT INTEREST
7.1 If the Borrower shall fail to pay any amount due under this Agreement
on its due date, the Borrower shall be liable (if VF so requires) for
interest on such amount from the date of such default until the date of
actual payment (as well as after as before judgement or demand) at the
Default Rate. The Borrower's liability under this Clause shall be in
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substitution for the liability for interest on such defaulted amount at
the Interest Rate. Such interest shall be payable on demand and, to the
extent not actually paid, shall be compounded monthly in arrears (and
debited to the Loan Account or the Current Account as referred to in
clause 5.2 above) and shall be payable before as well as after any
judgement.
7.2 VF and the Borrower agree that the Default Rate represents a genuine
pre-estimate of VF's additional administrative and funding costs in the
event of the Borrower's failure to pay any sum due to VF and is not a
penalty.
8 PAYMENTS
8.1 The Borrower will make all payments due under this Agreement without
set-off, counterclaim or deduction whatsoever and howsoever arising.
8.2 If the Borrower is compelled by law to make any such deduction or
witholding, the Borrower shall forthwith pay to VF such additional
amount as shall be required to ensure that VF shall receive in
aggregate the amount it would have received but for such deduction or
witholding.
9 CHANGES IN CIRCUMSTANCES AND INCREASED COSTS
9.1 If at any time it becomes unlawful or impossible for VF to maintain or
fund the whole or any part of the Loan Account Balance VF may at any
time by written notice to the Borrower require the Borrower to repay
the Loan Account Balance immediately, together with any outstanding
interest and all other sums due to VF under this Agreement, the
Agreement for the Purchase of Debts and the Security Documents.
9.2 The Borrower shall pay to VF on demand such amount as VF may from time
to time certify as being necessary to compensate it for any increase in
the cost of funding the Loan Account Balance or for any reduction in
the rate of return under this Agreement, incurred by VF as a result of
compliance with any official directives, requirements or requests of
any regulatory authority (whether or not having the force of law) or
any law or regulation (including, without limitation, those relating to
reserve assets, special deposits, taxes, capital adequacy and/or asset
ratios).
10 REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants that:-
10.1 it has the power to enter into and perform its obligations under this
Agreement and the Security Documents and to borrow hereunder and has
taken all necessary action (corporate or otherwise) to authorise the
unconditional entry into and performance of its obligations under this
Agreement and the Security Documents and the utilisation of the
Facility upon the terms and conditions contained herein and
unconditionally to authorise the execution, delivery and performance of
this Agreement and the Security Documents in accordance with their
respective terms;
10.2 all authorisations, approvals, consents, licences, exemptions, filings,
registrations and other procedures required in connection with the
entry into, performance and validity of this Agreement, the utilisation
of the Facility and the execution of the Security Documents have been
obtained and are in full force and effect;
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10.3 this Agreement and the Security Documents constitute legal, valid,
binding and enforceable obligations of the Borrower, subject in the
case of the Security Documents, to due registration at the appropriate
registries;
10.4 the entry into and performance of this Agreement and the Security
Documents and the transactions contemplated hereby and thereby do not
and will not conflict with (i) any law or regulation or any official or
judicial order, or (ii) the Memorandum or Articles of Association of
the Borrower; or (iii) any agreement or document to which the Borrower
is a party or which is binding upon the Borrower or its assets;
10.5 the financial and other business information and documentation
furnished by the Borrower to VF pursuant to this Agreement;
(a) is and was (or shall be) when delivered true and accurate and
does not contain any misstatement or omit any material fact
and
(b) there has been no material adverse change in the Borrower's
business, assets, conditions and operation since the delivery
of such information to VF;
10.6 save as notified in writing to VF prior to the date of this Agreement
all of the Borrower's assets are Unencumbered save for the security
granted or to be granted pursuant to the Security Documents;
10.7 save as disclosed to VF in writing prior to the date of this Agreement,
no litigation, arbitration or administrative proceeding or claim
Documents is current or pending or, to the best of the knowledge of the
Borrower, threatened against it which might reasonably be expected to
have by itself or together with any other such proceedings or claims
either:
(a) a material adverse effect on the business, assets or condition
of the Borrower; or
(b) a material adverse effect on the ability of the Borrower to
observe or perform its obligations under this Agreement or the
Security.
The representations and warranties set out in this Clause 10 shall be
deemed to be repeated on each day that any amount is or may be
outstanding hereunder with reference to the facts and circumstances
then subsisting as if made at each such time.
11 FINANCIAL INFORMATION
VF reserves the right during the term of the Facility to require the
Borrower to provide VF with such financial information about the
Borrower as VF may from time to time reasonably require.
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12 GENERAL COVENANTS
During the time of the Facility the Borrower shall:-
12.1 not without VF's prior written consent:-
(a) create or permit to subsist any mortgage, charge or other
Encumbrance over any of its assets (except pursuant to the
Security Documents); or
(b) make any loans or otherwise make credit (other than normal
trade credit) available to any person; or
(c) by one or a series of transactions, whether related or not,
sell or otherwise dispose of all or any material part of its
property or assets (except in the normal course of its
business).
12.2 throughout the duration of this Agreement comply at all times with all
provisions contained within the Agreement for the Purchase of Debts and
the Security Documents, and shall provide to VF all such information
and physical access to premises owned or under the control of the
Borrower as VF may reasonably require and the Borrower hereby grants an
irrevocable licence to VF for VF (and any of its employees servants or
agents) to enter upon any premises owned or under the control or
authority of the Borrower at any time during normal business hours for
the purposes of this Agreement, for confirming and ensuring the
compliance by the Borrower with the terms hereof, and for the purposes
of VF's assessment and monitoring from time to time as it may require
of the location state nature and value of any Eligible Collateral at
that time;
12.3 comply with all the Collateral Reporting and Monitoring Requirements of
VF as detailed in paragraph 5 of Schedule 1 or as VF may require and
may notify to the Borrower from time to time;
12.4 pay all sums due to VF hereunder or otherwise on the due date for
payment thereof;
12.5 promptly notify VF if any Event of Default arises under Clause 13 and
of anything which might with the passage of time give rise to an Event
of Default.
13 EVENTS OF DEFAULT
13.1 In the event that:-
(a) the Borrower fails to pay on the due date any amount due under
this Agreement or any other agreement between the Borrower and
VF where such failure to pay is caused other than by third
party administrative or technical error and such non-payment
continues for three banking days; or
(b) the Borrower fails to perform any other of its respective
obligations under this Agreement or any other agreement
between VF and the Borrower; or
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(c) any representation, warranty or statement made under or in
connection with this Agreement and/or the Agreement for the
Purchase of Debts and/or the Security Documents is or proves
to be untrue in any material respect on the date as of which
it was made or deemed to be made or repeated; or
(d) the Agreement for the Purchase of Debts is terminated (or is
subject to notice of termination served by the Borrower on VF)
or any event occurs entitling VF to terminate the Agreement
for the Purchase of Debts (whether or not such right is
exercised); or
(e) it becomes impossible or unlawful:-
(i) for the Borrower to perform any of its respective
obligations contained in this Agreement or the
Security Documents or any of them; or
(ii) for VF to exercise any of its rights under this
Agreement and/or the Agreement for the Purchase of
Debts and/or the Security Documents; or
(f) this Agreement and/or the Security Documents do not come into
or cease to be in full force and effect or is/are not for any
reason valid and binding upon and enforceable in all respects
against the Borrower or VF is of the reasonable opinion that
any security conferred thereby is or may be in jeopardy; or
(g) VF is of the opinion that there has been a material adverse
change in the Borrower's trading or financial position or
condition; or
(h) anything is done or permitted or omitted to be done by the
Borrower which VF believes may materially impair the security
created by the Security Documents and/or prejudice or detract
from the Borrower's ability to perform the obligations
contained in this Agreement and the Security Documents or any
of them; or
(i) VF is not furnished with all information required to be
delivered to it at the time required
then, in any such event VF may by notice in writing terminate the
Facility and declare the Loan Account Balance and any other amounts due
hereunder immediately due and payable, whereupon the Borrower will
immediately comply with such demand by repaying the Loan Account
Balance together with all outstanding interest and any other amounts
due under this Agreement.
14 ASSIGNMENT AND TRANSFER
14.1 The Borrower may not transfer or assign any of its rights under this
Agreement and/or the Security Documents.
14.2 VF may, without notice and at any time, transfer or assign all or any
part of this Agreement and/or the Facility and/or the Security
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Documents and the Borrower hereby irrevocably consents to any such
transfer or assignment (and the disclosure by VF to a transferee or
assignee of any information about the Borrower and the Facility as VF
may consider appropriate).
15 NOTICES
Any notice from one party to another hereunder shall be sent to the
addressee and be deemed delivered in accordance with the terms of the
Agreement for the Purchase of Debts.
16 WAIVERS
No failure or delay by VF in exercising any right, power or privilege
under this Agreement and/or the Security Documents or any of them shall
operate as a waiver thereof nor will any single or partial exercise of
any right, power or privilege preclude any further exercise thereof or
prejudice any other or further exercise by VF of any of its rights or
remedies under this Agreement and/or the Security Documents. Such
rights and remedies are cumulative and not exclusive of any right or
remedy provided by law.
17 INDEMNITY FOR EXPENSES
17.1 The Borrower shall pay to VF on demand on a full indemnity basis
whether or not there is a drawing under the Facility:-
(a) all funding breakage costs and/or costs in relation to
arrangements incurred by VF in connection with the funding of
the Loan Account Balance;
(b) any stamp documentary registration and other similar duties or
taxes in connection with this Agreement and/or the Security
Documents;
(c) all costs and expenses incurred in connection with the
negotiation or enforcement of this Agreement and/or the
Security Documents (including reasonably and properly incurred
legal fees, charges, disbursements, survey and valuation fees,
and value added tax), and
(d) the Facility Fee due upon delivery of this Agreement to VF,
and if the Borrower shall fail to pay when due any of the above amounts
VF is entitled to debit such amounts either to the Loan Account or any
other account(s) of the Borrower with VF.
17.2 The Borrower shall also indemnify VF against any loss or expense
incurred by it (including all additional out of pocket expenses (of
whatsoever nature and howsoever arising) and the cost of all additional
management time and effort expended by VF in protecting or enforcing
VF's rights and interests hereunder) as a consequence of any failure by
the Borrower to pay any sum due to VF when payable. For the purposes of
calculating the cost of such additional management time and effort VF
shall apportion the salary costs of its personnel involved on a pro
rata basis according to the time spent by such personnel in managing
the Borrower's account taking account only of such time as would not
have been spent by such personnel had such failure to pay not occurred.
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18 ILLEGALITY
If any of the provisions of this Agreement and/or the Security
Documents become invalid, illegal or unenforceable in any respect,
under any law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired.
19 SET-OFF
In addition to any right of set-off or other similar right to which VF
may be entitled in law, VF may at any time and without notice to the
Borrower combine and consolidate all or any of the accounts between the
Borrower and VF and/or set-off any moneys and in any currency
whatsoever, which VF may at any time hold for the account of the
Borrower, against any liabilities whatsoever which may be due or
accruing due to VF from the Borrower.
20 DEMANDS AND NOTIFICATION BINDING
Any demand notification or certificate given by VF in writing and
signed by a duly authorised officer of VF specifying any rate of
interest or any amounts due and payable under or in connection with any
provision of this Agreement and/or the Security Documents or any of
them shall (in the absence of manifest error or error in law) be
conclusive and binding upon the Borrower and in any proceedings against
the Borrower shall be conclusive evidence of such rate of interest or
amounts so due and payable.
21 GENERAL
21.1 The contents of any report (whether written or oral) prepared by or on
behalf of VF for the purposes of VF considering whether or not to
permit any drawing under or to continue the Facility shall remain
confidential and shall not be available to the Borrower for any reason
or purpose (save for any requirement of law) in whole or in part and
whether in original or copy form.
21.2 VF may in its absolute discretion set-off or reserve against any monies
due to the Borrower by VF the amount of any and/or all actual and/or
contingent liability of the Borrower to VF at any time and from time to
time howsoever arising (and whether pursuant to this Agreement or
otherwise) upon or following the occurrence of an Event of Default or
in the event of the Aggregate Limit being exceeded for whatsoever
reason.
21.3 VF may rely and act upon any instruction or communication received or
purportedly received from or on behalf of the Borrower by facsimile or
electronic transmission notwithstanding that no hard original copy of
such instruction or communication has been or is received by VF before
so relying or acting, provided that any such instruction or
communication is purportedly from or transmitted under the direction of
an authorised signatory of the Borrower, and the Borrower hereby agrees
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to indemnify VF and keep VF indemnified in respect of all losses,
costs, damages, expenses, interest or other liability incurred or
suffered by VF by reason of so relying and/or acting.
22 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English Law and the Borrower hereby submits to the exclusive
jurisdiction of the English Courts.
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SCHEDULE 1
1 Maximum Loan Amount:-(pound)2,000,000 (two million pounds) (clauses 1.1
and 2.1)
2 Aggregate Limit:-(pound)6,000,000 (six million pounds) (clauses 1.1,
3.3 and 21.2)
3 Facility Fee: 1.00% plus VAT of the Maximum Loan Amount payable upon
the delivery of this Agreement to VF duly executed by the Borrower and
1.00% plus VAT of the Loan Account Balance outstanding upon each
anniversary of the date hereof (clauses 1.1, 5.3 and 17.1(d))
4 Interest Rate: 2.25% above the Base Rate (clauses 1.1,5.1 and 7.1)
5 Collateral Reporting and Monitoring Requirements:- (clauses 1.1 and
12(3))
5.1 Fixed Assets - annual valuation (on each anniversary of this
Agreement) at the expense of the Borrower by a valuer
acceptable to VF.
5.2 Eligible Collateral Audits -monthly within five Working Days
of each month end following commencement of this Agreement at
a cost to the Borrower of (pound)500 plus VAT per audit man
day.
5.3 Inventory and Preferential Creditors (as defined in Schedule 6
to the Insolvency Act 1986) - monthly within five Working Days
of each month end.
6 Eligible Collateral Formula: (clauses 1.1, 3.2 and 3.3) - 75% of the
value of plant and machinery (valued on an ex-situ, 120 day open market
value basis)
7 Repayment Terms (clause 6.1) - monthly repayments of (pound)42,000, the
first repayment being due upon the expiry of one month from
commencement of this Agreement, with the final repayment of the Loan
Account Balance then outstanding on the expiry of 36 months from
commencement of this Agreement.
8 Sale of Eligible Collateral (Clause 12.1(c)) - the Borrower must obtain
VF's prior written consent to any sale of any of the Eligible
Collateral. The proceeds of any such sale shall be paid to VF towards
settlement of that part of the Loan Account Balance (as VF shall in
their sole discretion determine) representing sums advanced (and in
addition interest owed) in respect of the Eligible Collateral the
subject of such sale.
9 Insurance - VF must be named as first loss payee on any insurance in
place in respect of any of the Eligible Collateral.
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SCHEDULE 2
Security Documents
1. An All Assets Debenture in such form as VF may require constituting
certain fixed charges and a floating charge over whole of the
Borrower's undertaking and assets.
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IN WITNESS of which the parties have signed this agreement on the date set out
above.
EXECUTED AS A DEED
By
INYX PHARMA LIMITED
/S/ Xxxxx Xxxxxx
....................................................
a Director
/S/ Xxxxxx Xxxxxxx
....................................................
*director/company secretary
EXECUTED AS A DEED
By /S/ Xxxx Xxxxxxxxx
as Attorney for VENTURE FINANCE PLC
in the presence of:
/S/ Xxxx Xxxx
....................................................
Sussex House, Perrymont Road, Haywards Heath
* delete as applicable
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