EX-10.1 2 ortx-ex101_12.htm EX-10.1 ortx-ex101_12.htm

EXHIBIT 10.1

 

CERTAIN CONFIDENTIAL INFORMATION MARKED BY [***] HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

 

Originally dated 24 May 2019 as amended and restated on the First Effective Date (as defined below)

 

 

Orchard Therapeutics plc

as the Company

 

 

- and -

 

 

The entities listed as Original Guarantors

 

 

- and -

 

 

Midcap Financial (Ireland) Limited

as Mandated Lead Arranger

 

 

- and -

 

 

Midcap Financial (Ireland) Limited

acting as Agent

 

 

- and -

 

 

Midcap Financial (Ireland) Limited

acting as Security Agent

 

 

Senior Term Facilities Agreement originally dated 24 May 2019 as amended and restated on the First Effective Date (as defined below)

 

 

 

 

0000Matter ref 036639/000096F3A/GIBSONSC/6340698Hogan Lovells International LLPAtlantic House, Holborn Viaduct, London EC1A 2FG

 

 

 


 

 

Contents

ClausePage

3.

Purpose37

 

10.

Interest49

 

13.

Fees52

 

32.

Set-off142

 

33.

Notices142

 

 

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Schedules

1.

The Original Parties157

Part 1 The Original Obligors157

Part 2 The Original Lenders (as at the First Effective Date)158

2.

Conditions Precedent159

Part 1 Conditions precedent to signing of the Agreement on the Original Effective Date159

Part 2 Conditions precedent required to be delivered by an Additional Obligor163

3.

Requests167

Part 1 Utilisation Request167

Part 2 Selection Notice168

4.

Form of Transfer Certificate169

5.

Form of Assignment Agreement173

6.

Form of Accession Deed177

7.

Form of Resignation Letter179

8.

Form of Compliance Certificate180

9.

Timetables181

10.

Form of Increase Confirmation182

11.

Agreed Security Principles185

 

 

 

 

 

LIB03/ALMONDTH/8160221.4Hogan Lovells

 


 

 

This Agreement is originally dated 24 May 2019 as amended and restated on the First Effective Date (as defined below)

Between:

(1)

Orchard Therapeutics plc, a company incorporated in England and Wales with company number 11494381 (the "Company");

(2)

The entity listed in Part 1 of Schedule 1 (The Original Parties) as original borrower (the "Original Borrower");

(3)

The entities listed in Part 1 of Schedule 1 (The Original Parties) as original guarantors (the "Original Guarantors");

(4)

Midcap Financial (Ireland) Limited as mandated lead arranger (the "Arranger");

(5)

The Financial Institutions listed in Part 2 of Schedule 1 (The Original Parties) as lenders (the "Original Lenders");

(6)

Midcap Financial (Ireland) Limited as agent of the other Finance Parties (the "Agent"); and

(7)

Midcap Financial (Ireland) Limited as security trustee for the Secured Parties (the "Security Agent").

It is agreed:

Section 1

Interpretation

1.

Definitions and Interpretation

1.1

Definitions

In this Agreement:

2021 Fee Letter” means the fee letter dated on or about the First Effective Date between the Agent and the Company.  

"Acceptable Bank" means:

 

(a)

a bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of BBB or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or Baa2 or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or

 

(b)

any other bank or financial institution approved by the Agent.

"Accession Deed" means a document substantially in the form set out in Schedule 6 (Form of Accession Deed).

"Accounting Principles" means GAAP.

"Additional Borrower" means a company which becomes a Borrower in accordance with Clause 26 (Changes to the Obligors).

 

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"Additional Guarantor" means a company which becomes a Guarantor in accordance with Clause 26 (Changes to the Obligors).

"Additional Obligor" means an Additional Borrower or an Additional Guarantor.

"Affiliate" means, in relation to any person: (a) a Subsidiary of that person; (b) a Holding Company of that person or any other Subsidiary of that Holding Company; or (c) in the case of a Lender, any person which controls directly or indirectly that person.

"Agent's Spot Rate of Exchange" means:

 

(a)

the Agent's spot rate of exchange; or

 

(b)

(if the Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Agent (acting reasonably),

for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 am on a particular day.

"Agreed Security Principles" means the principles set out in Schedule 11 (Agreed Security Principles).

"Annual Financial Statements" has the meaning given to that term in Clause 21 (Information Undertakings).

"Assignment Agreement" means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.

"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

"Authority" means any of the United Nations, the European Union, Her Majesty's Treasury, the Department for Business, Innovation and Skills or any other UK government authority, any European Union member state, or the United States government.  

"Availability Period" means:

 

(a)

in relation to Facility A1, the period from and including the Original Effective Date to and including the date falling two Business Days after the Original Effective Date;

 

(b)

in relation to Facility A2, the period from and including the First Effective Date to and including the date falling two Business Days after the First Effective Date;

 

(c)

in relation to Facility B, the period from and including 1 July 2022 to and including 1 July 2023; and

 

(d)

in relation to Facility C, the period from and including 1 July 2023 to and including 1 July 2024.

"Available Commitment" means, in relation to a Facility, a Lender's Commitment under that Facility minus (subject as set out below):

 

(a)

the amount of its participation in any outstanding Utilisations under that Facility; and

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(b)

in relation to any proposed Utilisation, the amount of its participation in any other Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date.

"Available Facility" means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.

"Bank Levy" means the UK bank levy as set out in the Finance Act 2011 or any tax in any jurisdiction levied on a materially similar basis, in each case, as in force as at the Original Effective Date.

"Base Case Model" means the budget of the Group for the Financial Year ending on 31 December 2019.

"Base Currency" means US dollars.

"Base Currency Equivalent" means, the amount of the relevant currency required to purchase the relevant amount of the Base Currency at the Agent's Spot Rate of Exchange.

BLA” means a biologics license application (as defined in the Public Health Services Act, 42 U.S.C. § 262) for authorization to introduce, or deliver for introduction, a biologic product into commerce in the U.S., or any successor application or procedure.

"Borrower" means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 26 (Changes to the Obligors).

"Break Costs" means the amount (if any) by which:

 

(a)

the interest, excluding the Margin, which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

 

(b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

"Budget" means:

 

(a)

in relation to the period beginning on the Original Effective Date and ending on 31 December 2019, the Base Case Model to be delivered by the Company to the Agent pursuant to Clause 4.1 (Initial conditions precedent); and

 

(b)

in relation to any other period, any budget delivered by the Company to the Agent in respect of that period pursuant to Clause 21.4 (Budget).

"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London and New York.

"Cash Equivalent Investments" means at any time:

 

(a)

certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;

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(b)

any investment in marketable debt obligations issued or guaranteed by the government of the United States, the United Kingdom, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;

 

(c)

commercial paper not convertible or exchangeable to any other security:

 

(i)

for which a recognised trading market exists;

 

(ii)

issued by an issuer incorporated in the United States, the United Kingdom, any member state of the European Economic Area or any Participating Member State;

 

(iii)

which matures within one year after the relevant date of calculation; and

 

(iv)

which has a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F-1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

(d)

Sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);

 

(e)

any investment in money market funds which:

 

(i)

have a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F-1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service Limited; and

 

(ii)

invest substantially all their assets in securities of the types described in sub-paragraphs (a) to (d) above,

 

(iii)

to the extent that investment can be turned into cash on not more than 30 days' notice;

 

(f)

any investment made in accordance with the Investment Policy; or

 

(g)

any other debt security approved by the Majority Lenders,

in each case, to which any member of the Group is alone (or together with other any members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).

"Cash Proceeds" means proceeds of the Charged Property which are in the form of cash.

"Change of Control" means any person or group of persons acting in concert gains direct or indirect Control of the Company, where "acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Company by any of them, either directly or indirectly, to obtain or consolidate control of the Company.

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"Charged Property" means all of the assets of the Group which from time to time are, or are expressed to be, the subject of the Transaction Security.

"Chief Financial Officer" means the principal financial officer of the Company from time to time (or any director or officer of the Company acting as such officer's deputy in that capacity or performing those functions).

"Closing Date" means the date on which first Utilisation under this Agreement occurs.

"Code" means the US Internal Revenue Code of 1986.

"Commitment" means a Facility A Commitment, a Facility B Commitment or a Facility C Commitment.

"Commodity Exchange Act" means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

"Common Currency Amount" means, in relation to an amount, that amount converted (to the extent not already denominated in the Base Currency) into the Base Currency at the Security Agent's Spot Rate of Exchange on the Business Day prior to the relevant calculation.

"Company's Auditors" means PricewaterhouseCoopers LLP or any other firm appointed by the Company to act as its statutory auditors.

"Competitor" means, at any time of determination, any person engaged in the same or substantially the same line of business as the Group and such business accounts for all or substantially all the revenue or net income of such person at the time of such determination.

"Compliance Certificate" means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate).

"Confidential Information" means all information relating to the Company, any Obligor, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

(a)

any member of the Group or any of its advisers; or

 

(b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

(i)

information that:

 

(1)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 38.1 (Confidentiality); or

 

(2)

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

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(3)

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

 

(ii)

any Funding Rate or Reference Bank Quotation.

"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA for the relevant type of proposed transaction or in any other form agreed between the Company and the Agent.

"Constitutional Documents" means the constitutional documents of the Company.

"Contribution Notice" means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.

"Control" means:

 

(a)

the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:

 

(i)

cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of an entity;

 

(ii)

appoint or remove all, or the majority, of the directors or other equivalent officers of an entity; or

 

(iii)

give directions with respect to the operating and financial policies of an entity with which the directors or other equivalent officers of that entity are obliged to comply; or

 

(b)

the holding beneficially of more than 50% of the issued share capital of an entity (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).

"CTA" means the Corporation Tax Act 2009.

"Declared Default" means: (a) an Event of Default in respect of which the Agent has exercised any of its rights under Clause 24.18 (Acceleration); or (b) in relation to any US Obligor, automatic acceleration pursuant to (i) Clause 24.19 (Acceleration for US insolvency proceedings) of this Agreement as a result of an Event of Default by such US Obligor under Clause 24.17 (US insolvency proceedings) of this Agreement.

"Default" means an Event of Default or any event or circumstance specified in Clause 24 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

"Defaulting Lender" means any Lender:

 

(a)

which has failed to make its participation in a Loan available or has notified the Agent or the Company (which has notified the Agent) that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance

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with Clause 5.4 (Lenders' participation) or which has failed to provide cash collateral;

 

(b)

which has otherwise rescinded or repudiated a Finance Document; or

 

(c)

with respect to which a Finance Party Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a):

 

(i)

its failure to pay is caused by:

 

(1)

administrative or technical error; or

 

(2)

a Disruption Event; and

payment is made within 5 Business Days of its due date; or

 

(ii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

"Designated Parties List" means the Specially Designated Nationals List, the Sectoral Sanctions Identifications List and the Foreign Sanctions Evaders List maintained by the Office of Foreign Assets Control of the US Department of the Treasury, or any similar list of sanctioned persons or entities maintained by any Authority.

"Disposal" has the meaning given to that term in Clause 8.2 (Disposal, Insurance and Acquisition Proceeds).

"Disruption Event" means either or both of:

 

(a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

(b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i)

from performing its payment obligations under the Finance Documents; or

 

(ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

"Dormant Subsidiary" means a member of the Group which is not an Obligor and does not:

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(a)

own, legally or beneficially, gross assets (including indebtedness owed to it) which in aggregate have a value of $10,000,000 or more (or its Base Currency Equivalent); or

 

(b)

have liabilities in excess of $10,000,000 (or its Base Currency Equivalent).

"Eligible Institution" means any Lender or other bank, financial institution, trust, fund or other entity selected by the Company and which, in each case, is not a member of the Group.

"EMA" means the European Medicines Agency and any successor agency thereof.

"Environment" means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

 

(a)

air (including, without limitation, air within natural or man‑made structures, whether above or below ground);

 

(b)

water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

 

(c)

land (including, without limitation, land under water).

"Environmental Claim" means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.

"Environmental Law" means any applicable law or regulation which relates to:

 

(a)

the pollution or protection of the Environment;

 

(b)

the conditions of the workplace; or

 

(c)

the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.

"Environmental Permits" means any permit or other Authorisation or the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group.

"ERISA" means the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder;

"ERISA Affiliate" means any person treated as a single employer with any Obligor for the purpose of sections 414(b), (c), (m) or (o) of the Code.

"ERISA Event" means:

 

(a)

a reportable event specified as such in Section 4043 of ERISA and the regulations issued thereunder with respect to any Plan, other than an event in relation to which the requirement to give notice of that event is waived by any regulation;

 

(b)

the failure to meet the minimum funding standard under sections 412 of the Code with respect to any Plan, whether or not waived in accordance with Section 412(c) of the Code;

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(c)

the provision by the administrator of any Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such Plan in a distress termination described in Section 4041(c) of ERISA;

 

(d)

the institution of proceedings under Section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Plan;

 

(e)

the incurrence of any liability under Title IV of ERISA with respect to the termination of any Plan or withdrawal from any Plan (other than premiums due and not delinquent under Section 4007 of ERISA);

 

(f)

the incurrence by any Obligor or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Multiemployer Plan;

 

(g)

the receipt by any Obligor or any ERISA Affiliate of any notice that a Multiemployer Plan is insolvent or in reorganisation, within the meaning of Title IV of ERISA; or

 

(h)

the determination that any Plan is in "at risk status" (within the meaning of Section 430 of the Code and Section 303 of ERISA);

 

(i)

the requirement that a Plan provide security pursuant to Section 436(f) of the Code;

 

(j)

engagement in a "prohibited transaction" within the meaning of Section 406 of ERISA and Section 4975 of the Code with respect to any Plan; or

 

(k)

the institution of a proceeding by a fiduciary of any Multiemployer Plan to enforce Section 515 of ERISA which proceeding is not dismissed within 30 days.

"Excluded Account" has the meaning given to that term in the New York law Transaction Security Documents.

"Excluded Swap Obligation" means, with respect to any Obligor, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Obligor of (including by virtue of the joint and several liability provisions contained herein), or the grant by such Obligor of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Obligor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Obligor or the grant of such security interest becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

"Event of Default" means any event or circumstance specified as such in Clause 24 (Events of Default).

"Facility" means Facility A, Facility B or Facility C.

Facility A” means the term loan facility made available under this Agreement as described in sub-paragraphs (a) and (b) of Clause 2.1 (The Facilities), and consisting of Facility A1 and Facility A2.

Facility A Commitment” means a Facility A1 Commitment and/or a Facility A2 Commitment.

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Facility A Loan” means a Facility A1 Loan and/or a Facility A2 Loan.

Facility A1” means the tranche of Facility A which is made available by those Lenders with a Facility A1 Commitment.

"Facility A1 Commitment" means:

 

(a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Facility A1 Commitment" in Part 2 of Schedule 1 (The Original Parties) and the amount in the Base Currency of any other Facility A1 Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

(b)

in relation to any other Lender, the amount in the Base Currency of any Facility A1 Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

"Facility A1 Loan" means a loan made or to be made under Facility A1 or the principal amount outstanding for the time being of that loan.

Facility A2” means the tranche of Facility A which is made available by those Lenders with a Facility A2 Commitment.

"Facility A2 Commitment" means:

 

(a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Facility A2 Commitment" in Part 2 of Schedule 1 (The Original Parties) and the amount in the Base Currency of any other Facility A2 Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

(b)

in relation to any other Lender, the amount in the Base Currency of any Facility A2 Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

"Facility A2 Loan" means a loan made or to be made under Facility A2 or the principal amount outstanding for the time being of that loan.

"Facility B" means the term loan facility made available under this Agreement as described in sub-paragraph (c) of Clause 2.1 (The Facilities).

"Facility B Commitment" means:

 

(a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Facility B Commitment" in Part 2 of Schedule 1 (The Original Parties) and the amount in the Base Currency of any other Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

(b)

in relation to any other Lender, the amount in the Base Currency of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

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to the extent not cancelled, reduced or transferred by it under this Agreement.

"Facility B Loan" means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.

"Facility C" means the term loan facility made available under this Agreement as described in sub-paragraph (d) of Clause 2.1 (The Facilities).

"Facility C Commitment" means:

 

(a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Facility C Commitment" in Part 2 of Schedule 1 (The Original Parties) and the amount in the Base Currency of any other Facility C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

 

(b)

in relation to any other Lender, the amount in the Base Currency of any Facility C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

"Facility C Loan" means a loan made or to be made under Facility C or the principal amount outstanding for the time being of that loan.

"Facility Office" means:

 

(a)

in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement; or

 

(b)

in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.

"FATCA" means:

 

(a)

sections 1471 to 1474 of the Code or any associated regulations; or

 

(b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

(c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

"FATCA Application Date" means:

 

(a)

in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

 

(b)

in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

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"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.

"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.

"FDA" means the Food and Drug Administration of the United States, any comparable state, provincial or local governmental authority or regulator, and any successor agency of any of the foregoing.

"FDCA" means the Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C. Section 301 et seq., and all regulations promulgated thereunder.

"Fee Letter" means:

 

(a)

any letter or letters dated on or about Original Effective Date between the Arranger and the Company (or the Agent and the Company or the Security Agent and the Company) setting out any of the fees referred to in Clause 13 (Fees);

 

(b)

the 2021 Fee Letter; and

 

(c)

any agreement setting out fees payable to a Finance Party referred to in paragraph (f) of Clause 2.2 (Increase).

"Finance Document" means this Agreement, the First Amendment and Restatement Agreement, any Accession Deed, any Compliance Certificate, any Fee Letter, any Resignation Letter, any Selection Notice, any Transaction Security Document, any Utilisation Request and any other document designated as a "Finance Document" by the Agent and the Company.

"Finance Lease" means any lease or hire purchase contract, a liability under which would, in accordance with the Accounting Principles, be treated as a balance sheet liability.

"Finance Party" means the Agent, the Arranger, the Security Agent or a Lender.

"Finance Party Insolvency Event" in relation to an entity means that the entity:

 

(a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

(c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

(d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

(e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or

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presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

(i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

(ii)

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

(f)

has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;

 

(g)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(h)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

(i)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

(j)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or

 

(k)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

"Financial Indebtedness" means any indebtedness for or in respect of:

 

(a)

moneys borrowed and debit balances at banks or other financial institutions;

 

(b)

any acceptance under any acceptance credit or bill discounting facility or dematerialised equivalent;

 

(c)

any note purchase facility or the issue of bonds (but not Trade Instruments), notes, debentures, loan stock or any similar instrument;

 

(d)

the amount of any liability in respect of Finance Leases;

 

(e)

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

 

(f)

any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);

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(g)

any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of:

 

(i)

an underlying liability (but not, in any case, Trade Instruments) of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition; or

 

(ii)

any liabilities of any member of the Group relating to any post-retirement benefit scheme;

 

(h)

any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under the Accounting Principles;

 

(i)

any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under the Accounting Principles; and

 

(j)

the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (i) above.

"Financial Quarter" means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.

"Financial Support Direction" means a financial support direction issued by the Pensions Regulator under Section 43 of the Pensions Act 2004.

"Financial Year" means the annual accounting period of the Group ending on or about 31 December in each year.

First Amendment and Restatement Agreement” means the amendment and restatement agreement amending and restating this Agreement and made between, amongst others, the Company, the Agent and the Security Agent dated 28 May 2021” .

First Effective Date” means the date upon which the Agent gives written confirmation to the Company that the Agent has received (or has waived its requirement to receive) all of the documents and/or evidence set out in Schedule 3 (Conditions Precedent) of the First Amendment and Restatement Agreement, in each case in form and substance satisfactory to the Agent.  

"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause ‎12.4 (Cost of funds).

"GAAP" means generally accepted accounting principles in the United States as at the Original Effective Date.

"Group" means the Company and each of its Subsidiaries for the time being.

"Group Structure Chart" means the group structure chart showing the Group as at the Original Effective Date.

"Group Unrestricted Cash" means cash and Cash Equivalent Investments made pursuant to the Investment Policy of the Group that:

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(a)

are subject to a first priority perfected Security in favour of Security Agent and that are not subject to any other Security (other than Permitted Security);

 

(b)

are held in a bank account which satisfies the requirements of Section 9.1 of the Agreed Security Principals; and

 

(c)

are not funds for the payment of a drawn or committed but unpaid draft, ACH or EFT transaction.

"Guarantor" means an Original Guarantor or an Additional Guarantor unless it has ceased to be a Guarantor in accordance with Clause 26 (Changes to the Obligors).

"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.

"Impaired Agent" means the Agent at any time when:

 

(a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

(b)

the Agent otherwise rescinds or repudiates a Finance Document;

 

(c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a), (b) or (c) of the definition of "Defaulting Lender"; or

 

(d)

a Finance Party Insolvency Event has occurred and is continuing with respect to the Agent;

unless, in the case of paragraph (a) above:

 

(i)

its failure to pay is caused by:

 

(1)

administrative or technical error; or

 

(2)

a Disruption Event; and

payment is made within 5 Business Days of its due date; or

 

(ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

"Increase Confirmation" means a confirmation substantially in the form set out in Schedule 10 (Form of Increase Confirmation).

"Increase Lender" has the meaning given to that term in Clause 2.2 (Increase).

"Intellectual Property" means:

 

(a)

any patents, trademarks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and

 

(b)

the benefit of all applications and rights to use such assets of each member of the Group (which may now or in the future subsist).

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"Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.3 (Default interest).

"Interpolated Screen Rate" means, in relation to any Loan, the rate which results from interpolating on a linear basis between:

 

(a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

(b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time for the currency of that Loan.

"ITA" means the Income Tax Act 2007.

"Investment Policy" means the investment policy of the Obligors dated 7 February 2018, as amended from time to time by the Obligors.

"Joint Venture" means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

"Lead Product" means each of [***], and any other Product mutually agreed between Agent and Borrower, acting reasonably, provided, however, in no event will any of [***] be a “Lead Product”.

"Legal Opinion" means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 26 (Changes to the Obligors).

"Legal Reservations" means:

 

(a)

the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

 

(b)

the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim; and

 

(c)

similar principles, rights and defences under the laws of any Relevant Jurisdiction.

"Lender" means:

 

(a)

any Original Lender; and

 

(b)

any bank, financial institution, trust, fund or other entity which has become a Party as a "Lender" in accordance with Clause 2.2 (Increase) or Clause 25 (Changes to the Lenders),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

"LIBOR" means, in relation to any Loan:

 

(a)

the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or

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(b)

as otherwise determined pursuant to Clause 12.1 (Unavailability of Screen Rate),

and, if that rate is less than one per cent, LIBOR shall be deemed to be one per cent.  

"Lien" means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge, security interest, hypothecation, or encumbrance of any kind in respect of such asset.  For the purposes of this Agreement, Person shall be deemed to own any asset subject to a Lien which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease obligation or other title retention agreement relating to such asset.

"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.

"LMA" means the Loan Market Association.

"Loan" means a Facility A Loan, a Facility B Loan or a Facility C Loan.

"Majority Lenders" means a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔ per cent. of the Total Commitments immediately prior to that reduction).

"Marketing Authorization Application" means, with respect to [***] or [***], the application for Regulatory Approval required by applicable laws to sell [***] or [***], as applicable, in a country or region.

"Margin" means:

 

(a)

in relation to any Facility A Loan 5.95 per cent per annum;

 

(b)

in relation to any Facility B Loan 5.95 per cent per annum; and

 

(c)

in relation to any Facility C Loan 5.95 per cent per annum.

"Material Adverse Effect" means a material adverse effect on:

 

(a)

the business, operations, property or condition (financial or otherwise) of the Group taken as a whole; or

 

(b)

the ability of the Obligors to perform their payment obligations under the Finance Documents; or

 

(c)

the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents.

"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

(a)

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

(b)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

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(c)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules will only apply to the last Month of any period.

"Monthly Cash Burn Amount" means an amount equal to the Group's change in cash and Cash Equivalent Investments, without giving effect to any increase resulting from contributions or proceeds of financings, for either:

 

(a)

the six month period ending on the last day of the month immediately preceding the proposed completion of the Permitted Acquisition and based upon the financial statements delivered to Agent in accordance with this Agreement for such period; or

 

(b)

the six month period immediately following the six month period referred to in paragraph (a) above and based upon the Transaction Projections (as defined in the definition of "Permitted Acquisition"),

using whichever calculation as between clause (a) and clause (b) demonstrates a higher burn rate (or, in other words, more cash used), in either case, divided by six.

"Multiemployer Plan" means a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA which is covered by Title IV of ERISA and which is contributed to (or to which there is an obligation to contribute) by any Obligor or ERISA Affiliate.

Net Revenue” means, for any period, the consolidated revenue of Obligors for such period, as determined in accordance with GAAP; provided that in no event shall Net Revenue include any upfront or milestone payments or similar non-recurring payment received by Obligors in connection with any out-bound license agreement or other commercial contract.  

"New Lender" has the meaning given to that term in Clause 25 (Changes to the Lenders).

"Non-US Subsidiary" means any direct or indirect Subsidiary that is not organised under the laws of the United States or any state or territory thereof or the District of Columbia.

"Obligations" means all present and future obligations and liabilities (whether actual or contingent and whether owed jointly, severally or in any other capacity whatsoever) of the Obligors to the Finance Parties (or any of them) under the Finance Documents.

"Obligor" means the Company, the Borrower or a Guarantor.

"Obligors' Agent" means the Company, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.4 (Obligors' Agent).

Original Effective Date” means 24 May 2019.

"Original Financial Statements" means:

 

(a)

the audited consolidated financial statements of the Company for the Financial Year ended 31 December 2018; and

 

(b)

in relation to any other Obligor, its audited financial statements delivered to the Agent as required by Clause 26 (Changes to the Obligors).

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"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the Original Effective Date or, in the case of an Additional Obligor, as at the date on which that Additional Obligor becomes Party as a Borrower or a Guarantor (as the case may be).

"Original Obligor" means the Original Borrower or an Original Guarantor.

"[***]" means [***].

"[***]" means [***].

"[***]" means [***].

"[***]" means [***]..

"[***]" means [***].

"[***]" means [***].

"Participating Member State" means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

"Party" means a party to this Agreement.

"PBGC" means the United States Pension Benefit Guaranty Corporation or any successor to it.

"Pensions Regulator" means the body corporate called the Pensions Regulator established under Part 1 of the Pensions Act 2004.

"Permitted Acquisition" means:

 

(a)

an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;

 

(b)

an acquisition of shares or securities pursuant to a Permitted Share Issue;

 

(c)

an acquisition of securities which are Cash Equivalent Investments so long as, in the case of an Obligor, those Cash Equivalent Investments become subject to the Transaction Security as soon as is reasonably practicable;

 

(d)

the acquisition of stock in trade in the ordinary course of trading on arm's length terms (for the avoidance of doubt, excluding the acquisition (including through licensing) of any Product, Product line or Intellectual Property of or from any other person);

 

(e)

the incorporation of a company which on incorporation becomes a member of the Group, but only if:

 

(i)

that company is incorporated in the European Union, the United Kingdom or the United States with limited liability; and

 

(ii)

if the shares in the company are owned by an Obligor, Security over the shares of that company, in form and substance satisfactory to the Agent, is

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created in favour of the Security Agent within 30 days of the date of its incorporation;

 

(f)

an acquisition (not being an acquisition by the Company), for cash consideration, (i) of all of the issued share capital of a limited liability company; (ii) of (if the acquisition is made by a limited liability company whose sole purpose is to make the acquisition) a business or undertaking carried on as a going concern; or (iii) (including through licensing) of any Product, Product line or Intellectual Property of or from any other person, but, in each case, only if:

 

(i)

no Event of Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition;

 

(ii)

in the case of the acquisition of a company, business or undertaking, the acquired company, business or undertaking is incorporated or established, and carries on its principal business in the European Union, the United Kingdom or the United States and is engaged in a business substantially the same as or complementary to that carried on by the Group; and

 

(iii)

in the case of an acquisition of a company, the acquired company becomes an Additional Guarantor and grants Transaction Security in accordance with Clause 26.2 (Additional Guarantors) within 30 days following the date of completion of the acquisition; and

 

(g)

any acquisition with the prior consent of the Majority Lenders.

"Permitted Disposal" means (apart from any transaction involving shares in any member of the Group, which is not a Permitted Disposal in any circumstances) any sale, lease, licence, surrender, transfer or other disposal which, except in the case of paragraph (c), is on arm's length terms:

 

(a)

of trading stock or cash made by any member of the Group in the ordinary course of business of the disposing entity;

 

(b)

of any Intellectual Property that does not relate to a Lead Product;

 

(c)

of any asset by a member of the Group (the "Disposing Company") to another member of the Group (the "Acquiring Company"), but if:

 

(i)

the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;

 

(ii)

the Disposing Company had given Security over the asset, the Acquiring Company must give equivalent  Security over that asset; and

 

(iii)

the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company;

 

(d)

of tangible assets which are not expressed to be subject to a fixed charge, in exchange for other tangible assets comparable or superior as to type, value and quality;

 

(e)

of obsolete, surplus or redundant tangible assets on arm's length terms which are not required for the efficient operation of its business;

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(f)

of Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;

 

(g)

so long as no Default or Event of Default has occurred and is continuing (or would result from such transaction), of cash or Cash Equivalent Investments to a Permitted Joint Venture, to the extent permitted by Clause 23.12 (Joint Ventures);

 

(h)

arising as a result of any Permitted Security;

 

(i)

to which the Majority Lenders have given their prior written consent (and this may include consent to a transaction including shares in any member of the Group); and

 

(j)

so long as no Default or Event of Default has occurred and is continuing (or would result from such transaction), of tangible assets (other than the disposal or exclusive licence of Intellectual Property) for cash where the higher of the market value and net consideration receivable (when aggregated with the higher of the market value and net consideration receivable for any other sale, lease, licence, transfer or other disposal not allowed under the preceding paragraphs or as a Permitted Transaction) does not exceed $2,500,000 (or its equivalent) in any Financial Year of the Company.

"Permitted Distribution" means:

 

(a)

the payment of a dividend to the Company or any of its wholly-owned Subsidiaries;

 

(b)

dividends payable solely in common stock; and

 

(c)

repurchases of stock of former employees, directors or consultants pursuant to stock purchase agreements so long as an Event of Default is not continuing at the time of such repurchase and would not occur after giving effect to such repurchase, provided, however, that such repurchase does not exceed $2,500,000 (or its equivalent) in any Financial Year of the Company.

"Permitted Financial Indebtedness" means Financial Indebtedness:

 

(a)

arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade, but not a foreign exchange transaction for investment or speculative purposes;

 

(b)

arising under a letter of credit, guarantee or indemnity, overdraft or credit card facility provided that the outstanding amount does not exceed $10,000,000 (or its Base Currency Equivalent) in aggregate for the Group at any time;

 

(c)

arising under a Permitted Loan or a Permitted Guarantee or as permitted by Clause 23.31 (Treasury Transactions);

 

(d)

under Finance Leases of vehicles, plant, equipment or computers, provided that the aggregate capital value of all such items so leased under outstanding leases by members of the Group does not exceed $10,000,000 (or its Base Currency Equivalent) at any time; and

 

(e)

not permitted by the preceding paragraphs or as a Permitted Transaction and the outstanding amount of which does not exceed $5,000,000 (or its Base Currency Equivalent) in aggregate for the Group at any time.

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"Permitted Guarantee" means:

 

(a)

the endorsement of negotiable instruments in the ordinary course of trade;

 

(b)

any performance or similar bond guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of trade;

 

(c)

any guarantee of a Joint Venture to the extent permitted by Clause 23.12 (Joint Ventures);

 

(d)

any guarantee of Permitted Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness except under paragraph (d) of that definition;

 

(e)

any guarantee of a Permitted Loan, provided that no Obligor shall guarantee the Financial Indebtedness of any member of the Group which is not an Obligor unless the amount of the relevant guaranteed obligation is within the de minimis threshold in paragraph (e) of the definition of "Permitted Loan" at all times;

 

(f)

any guarantee given in respect of the netting or set-off arrangements permitted pursuant to paragraph (b) of the definition of "Permitted Security";

 

(g)

any indemnity given in the ordinary course of the documentation of an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal which indemnity is in a customary form and subject to customary limitations; and

 

(h)

guarantees not otherwise permitted by the preceding paragraphs, the aggregate principal outstanding amount guaranteed by which (when aggregated with all such other guarantees and with any Financial Indebtedness incurred by the Group) does not exceed $2,500,000 at any time.

"Permitted Joint Venture" means any cash investment in any Joint Venture where:

 

(a)

the Joint Venture is incorporated, or established, and carries on its principal business in the European Union, the United Kingdom or the United States and is a vehicle incorporated with limited liability;

 

(b)

the Joint Venture is engaged in a business substantially the same as, or complementary to that carried on by the Group; and

 

(c)

in any Financial Year of the Company, the aggregate of:

 

(i)

all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group;

 

(ii)

the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and

 

(iii)

the market value of any cash or Cash Equivalent Investments transferred by any member of the Group to any such Joint Venture,

does not exceed $10,000,000 (or its Base Currency Equivalent) in any Financial Year of the Company.

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"Permitted Loan" means:

 

(a)

any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities;

 

(b)

Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness except under paragraph (d) of that definition;

 

(c)

a loan made to a Joint Venture to the extent permitted under Clause 28.11 (Joint Ventures);

 

(d)

a loan made by an Obligor to another Obligor or made by a member of the Group which is not an Obligor to another member of the Group;

 

(e)

any loan made by an Obligor to a member of the Group which is not an Obligor so long as the aggregate amount of the Financial Indebtedness under any such loans does not exceed $250,000 (or its equivalent) at any time;

 

(f)

a loan made by a member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group does not exceed $250,000 (or its equivalent) at any time; and

 

(g)

any loan (other than a loan made by a member of the Group to another member of the Group) so long as the aggregate amount of Financial Indebtedness under any such loans does not exceed $250,000 (or its equivalent) at any time,

so long as in the case of paragraphs (d) and (e) above the creditor of such Financial Indebtedness shall (if it is an Obligor) grant security over its rights in respect of such Financial Indebtedness in favour of the Secured Parties on terms acceptable to the Agent (acting on the instructions of the Majority Lenders).

"Permitted Security" means:

 

(a)

any lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;

 

(b)

any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of members of the Group;

 

(c)

any payment or close out netting or set-off arrangement pursuant to any Treasury Transaction or foreign exchange transaction entered into by a member of the Group which constitutes Permitted Financial Indebtedness, excluding any Security or Quasi-Security under a credit support arrangement;

 

(d)

to the extent such Security relates to, or is granted in support of facilities permitted pursuant to paragraph (b) of "Permitted Financial Indebtedness";

 

(e)

any Security or Quasi-Security over or affecting any asset acquired by a member of the Group after the Original Effective Date if:

 

(i)

the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Group;

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(ii)

the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and

 

(iii)

the Security or Quasi-Security is removed or discharged within three months of the date of acquisition of such asset;

 

(f)

any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier's standard or usual terms and not arising as a result of any default or omission by any member of the Group;

 

(g)

any Quasi-Security arising as a result of a disposal which is a Permitted Disposal; or

 

(h)

any Security or Quasi-Security arising as a consequence of any Finance Lease permitted pursuant to paragraph (f) of the definition of "Permitted Financial Indebtedness";

 

(i)

any Security or Quasi-Security for taxes, assessments and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA) (i) not yet due or to which the period of grace, if any, related thereto has not expired of (ii) which are being contested in good faith, and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP;

 

(j)

any Security or Quasi-Security relating to claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for labour, materials, supplies or rentals incurred in the ordinary course of business, which (i) claims are being contested in good faith and by appropriate proceedings with adequate reserves maintained to the extent required by GAAP and (ii) do not, individually or in the aggregate, materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries;

 

(k)

deposits or pledges made in the ordinary course of business in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of bids, trade contracts and leases (other than Financial Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business;

 

(l)

encumbrances in the nature of zoning restrictions, easements and rights or restrictions of record on the use of real property, which in the aggregate are not substantial in amount and which do not, in any case, materially impair the use thereof in the ordinary conduct of business;

 

(m)

any Security or Quasi-Security arising from the filing of precautionary UCC financing statements relating solely to personal property leased pursuant to operating leases entered into in the ordinary course of business of the Borrower and its Subsidiaries;

 

(n)

any Security or Quasi-Security securing judgments for the payment of money not constituting an Event of Default hereunder or securing appeal or other surety bonds relating to such judgments;

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(o)

any interest or title of a licensor, sub-licensor, lessor or sub-lessor with respect to any assets under any license or lease agreement entered into in the ordinary course of business which do not (i) interfere in any material respect with the business of the Borrower or its Subsidiaries or (ii) secure any Indebtedness; or

 

(p)

Security or Quasi-Security not otherwise permitted hereunder securing Financial Indebtedness or other obligations in an aggregate principal amount not to exceed $5,000,000 at any time outstanding.

"Permitted Share Issue" means an issue of:

 

(a)

shares by the Company, where such issue does not lead to a Change of Control of the Company; and

 

(b)

shares by a member of the Group (other than the Company) which is a Subsidiary to its immediate Holding Company for non-cash consideration where (if the existing shares of the Subsidiary are the subject of the Transaction Security) the newly-issued shares also become subject to the Transaction Security on the same terms.

"Permitted Transaction" means:

 

(a)

any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or Quasi-Security given, or other transaction arising, under the Finance Documents;

 

(b)

the solvent liquidation or reorganisation of any member of the Group which is not an Obligor or whose shares have not been charged or pledged under the Transaction Security Documents so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other members of the Group; or

 

(c)

transactions (other than (i) any sale, lease, licence, transfer or other disposal; and (ii) the granting or creation of Security, the incurring or permitting to subsist of Financial Indebtedness or the disposal of the shares of any member of the Group), conducted in the ordinary course of trading on arm's length terms.

"Plan" means an employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), subject to the provisions of Title IV of ERISA or Section 412 of the Code that is maintained or contributed to, or required to be contributed to, by any Obligor or ERISA Affiliate.

"Product" means any products, services, and diagnostic tests developed by the Group or any of its Subsidiaries or sold or marketed by any member of the Group or any of its Subsidiaries to third parties (and not for internal use by any member of the Group).

"Property" means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

"Qualified ECP Guarantor" means, in respect of any Swap Obligation, each Obligor that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

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"Qualifying Lender" has the meaning given to that term in Clause 14 (Tax Gross-Up and indemnities).

"Quarter Date" means each of 31 March, 30 June, 30 September and 31 December.

"Quarterly Financial Statements" has the meaning given to that term in Clause 21 (Information undertakings).

"Quasi-Security" has the meaning given to that term in Clause 23.17 (Negative pledge).

"Quotation Day" means, in relation to any period for which an interest rate is to be determined the first day of that period (unless market practice differs in the Relevant Market for that currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days)).

"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

"Reference Bank Quotation" means any quotation supplied to the Agent by a Reference Bank.

"Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks as either:

 

(a)

if:

 

(i)

the Reference Bank is a contributor to the applicable Screen Rate; and

 

(ii)

it consists of a single figure,

the rate (applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or

 

(b)

in any other case, the rate at which the relevant Reference Bank could fund itself in the relevant currency for the relevant period with reference to the unsecured wholesale funding market.

"Reference Banks" means the principal London offices of such banks as may be appointed by the Agent in consultation with the Company.

"Regulatory Agency" means governmental authority or regulator with responsibility for the regulation of the research, development, marketing or sale of drugs or pharmaceuticals in any jurisdiction, including the FDA and the EMA.

"Regulatory Approval" means, with respect to a product or device in any country or regulatory jurisdiction, all actions, approvals (including, where applicable, pricing and reimbursement approval and schedule classifications), licenses, registrations or authorizations of any Regulatory Agency necessary for the making, manufacture, sale, offer for sale, distribution, import, export, promotion, marketing or other use of such product or device in such country or jurisdiction.

"Related Fund" means any (a) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing, holding or otherwise investing in

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commercial loans and similar extensions of credit in the ordinary course of business, or (b) any person (other than a natural person) which temporarily warehouses loans for any Lender or any entity described in the preceding clause (a) and that, with respect to each of the preceding clauses (a) and (b), is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) a person (other than a natural person) or an Affiliate of a person (other than a natural person) that administers or manages a Lender.

"Relevant Jurisdiction" means, in relation to an Obligor:

 

(a)

its Original Jurisdiction;

 

(b)

any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;

 

(c)

any jurisdiction where it conducts its business;

 

(d)

the jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it; and

 

(e)

in the case of a US Obligor:

 

(i)

the jurisdiction where it maintains its principal place of business; and

 

(ii)

any jurisdiction the laws of which govern any Transaction Security Document or the attachment or perfection of any charge, lien, security interest or other encumbrance established or created pursuant thereto.

"Relevant Market" means the London interbank market.

"Repayment Date" means the first Business Day of each calendar Month.

"Repayment Instalment" means a Facility A Repayment Instalment as defined in Clause 6.1 (Repayment of Facility A Loans), a Facility B Repayment Instalment as defined in Clause 6.1(b) (Repayment of the Facility B Loan) or a Facility C Repayment Instalment as defined in Clause 6.3 (Repayment of the Facility C Loan).

"Repeating Representations" means each of the representations set out in Clause 20.2 (Status) to Clause 20.7 (Governing law and enforcement), Clause 20.11 (No default), Clause 20.20 (Ranking) to Clause 20.22 (Legal and beneficial ownership) and Clause 20.30 (Sanctions).

"Report" means any due diligence report prepared in connection with a Permitted Acquisition.

"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

"Resignation Letter" means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).

"Screen Rate" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters.  If such page or service ceases to be

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available, the Agent may specify another page or service displaying the relevant rate after consultation with the Company.

"Secured Parties" means each Finance Party, any Receiver or Delegate.

"Security" means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

"Security Agent's Spot Rate of Exchange" means, in respect of the conversion of one currency (the "First Currency") into another currency (the "Second Currency") the Security Agent's spot rate of exchange for the purchase of the Second Currency with the First Currency in the London foreign exchange market at or about 11:00 am (London time) on a particular day, which shall be notified by the Security Agent in accordance with paragraph (e) of Clause 28.6 (Duties of the Security Agent).

"Selection Notice" means a notice substantially in the form set out in Part 2 of Schedule 3 (Requests and Notices) given in accordance with Clause 11 (Interest Periods) in relation to a Facility.

"Specified Time" means a time determined in accordance with Schedule 9 (Timetables).

"Sterling" and "£" means the lawful currency of the UK.

"Subsidiary" means an entity of which a person:

 

(a)

has direct or indirect Control; or

 

(b)

owns directly or indirectly more than fifty per cent. (50%) of the share capital or similar right of ownership; or

 

(c)

is entitled to receive more than fifty per cent. (50%) of the dividends or distributions,

and any entity (whether or not so controlled) treated as a subsidiary in the latest financial statements of that person from time to time and disregarding, for the purpose of this definition, the fact that any shares in that entity may be held by way of security, that the beneficiary of the security (or its nominee) may be registered as a member of the relevant undertaking and/or that such beneficiary of the security (or its nominee) may be entitled to exercise voting powers and rights with respect to those charged shares.

"Swap Obligation" means, with respect to any Obligor or the Company, any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the meaning of section 1a(47) of the Commodity Exchange Act.

"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

"Termination Date" means in relation to each Facility, the date falling 60 months after the First Effective Date.

"Total Commitments" means the aggregate of the Total Facility A1 Commitments, Total Facility A2 Commitments, the Total Facility B Commitments and the Total Facility C Commitments, being $100,000,000 at the First Effective Date.

"Total Facility A1 Commitments" means the aggregate of the Facility A1 Commitments, being $25,000,000 at the First Effective Date.

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"Total Facility A2 Commitments" means the aggregate of the Facility A2 Commitments, being $8,000,000 at the First Effective Date.

"Total Facility B Commitments" means the aggregate of the Facility B Commitments, being $33,000,000 at the First Effective Date.

"Total Facility C Commitments" means the aggregate of the Facility C Commitments, being $34,000,000 at the First Effective Date.

"Trade Instruments" means any performance bonds, advance payment bonds or documentary letters of credit issued in respect of the obligations of any member of the Group arising in the ordinary course of trading of that member of the Group.

"Transaction Documents" means the Finance Documents and the Constitutional Documents.

"Transaction Security" means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.

"Transaction Security Documents" means each of the documents listed as being a Transaction Security Document in paragraph 13(a) of Part 1 of Schedule 2 (Conditions precedent), any document required to be delivered to the Agent under paragraph 13 of Part 2 of Schedule 2 (Conditions precedent) together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents.

"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company.

"Transfer Date" means, in relation to an assignment or transfer, the later of:

 

(a)

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

(b)

the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

"Treasury Transactions" means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.

"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if by reason of mandatory provisions of law, the perfection, the effect of perfection or non-perfection or the priority of the security interests in any collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, "UCC" means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

"UK" and "United Kingdom" means the United Kingdom of Great Britain and Northern Ireland.

"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.

"US" and "United States" means the United States of America.

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"US Bankruptcy Code" means Title 11 of The United Stated Code (entitled "Bankruptcy"), as amended from time to time and as now or hereafter in effect, or any successor thereto.

"US Debtor Relief Laws" means the US Bankruptcy Code and all other federal and state liquidation, bankruptcy, assignment for the benefit of creditors, conservatorship, moratorium, receivership, insolvency, rearrangement, reorganization or similar debtor relief laws in effect from time to time.

"US Guarantor" means any Guarantor that is incorporated or organised under the laws of the United States or any State or territory thereof or the District of Columbia.

"US Obligor" means any Obligor that is incorporated or organised under the laws of the United States, any State or territory thereof or the District of Columbia.

"US Tax Obligor" means:

 

(a)

a Borrower which is resident for tax purposes in the US; or

 

(b)

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

"Utilisation" means a Loan.

"Utilisation Date" means the date of a Utilisation being the date on which the relevant Loan is to be made.

"Utilisation Request" means a notice substantially in the relevant form set out in Schedule 3 (Requests).

"VAT" means:

 

(a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(b)

any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

"Withdrawal Liability" means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

1.2

Construction

 

(a)

Unless a contrary indication appears, a reference in this Agreement to:

 

(i)

the "Agent", the "Arranger", any "Finance Party", any "Lender", any "Obligor", any "Party", any "Secured Party", the "Security Agent" or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

 

(ii)

a document in "agreed form" is a document which is previously agreed in writing by or on behalf of the Company and the Agent or, if not so agreed, is in the form specified by the Agent;

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(iii)

"assets" includes present and future properties, revenues and rights of every description;

 

(iv)

a "Finance Document" or a "Transaction Document" or any other agreement or instrument is a reference to that Finance Document or Transaction Document or other agreement or instrument as amended, novated, supplemented or extended (in any case, however fundamentally);

 

(v)

a "group of Lenders" includes all of the Lenders in that group;

 

(vi)

"guarantee" means (other than in Clause 19 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

(vii)

"Guarantor", "Original Guarantor", "Additional Guarantor" and "this guarantee" shall not be construed restrictively and shall include the payment undertakings and indemnities contained in Clause 19 (Guarantee and Indemnity);

 

(viii)

"including" and "in particular" shall not be construed restrictively but shall mean "including without prejudice to the generality of the foregoing" and "in particular, but without limitation";

 

(ix)

"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(x)

a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, joint venture, trust, consortium, partnership or other entity (whether or not having separate legal personality);

 

(xi)

a "regulation" includes any regulation, rule, official directive, request, or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency or department of any regulatory, self-regulatory or other authority or organisation;

 

(xii)

"wholly owned subsidiary" means a company or corporation that has no members except for:

 

(1)

another company or corporation and that other company's or corporation's wholly-owned subsidiaries; or

 

(2)

persons acting on behalf of that other company or corporation and that other company's or corporation's wholly-owned subsidiaries.

 

(xiii)

a provision of law is a reference to that provision as amended or re-enacted and any subordinate legislation made under it; and

 

(xiv)

a time of day is a reference to London time.

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(b)

The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

(c)

Section, Clause and Schedule headings are for ease of reference only.

 

(d)

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

(e)

A Default or an Event of Default is "continuing" if it has not been remedied or waived.

 

(f)

Any consent, waiver or approval required from a Finance Party under a Finance Document must be in writing and will be of no effect if not in writing.

 

(g)

Reference to a monetary sum specified in the Base Currency in Clause 20 (Representations), Clause 21 (Information undertakings), Clause 22 (Financial covenants), Clause 23 (General undertakings) and/or Clause 24 (Events of Default) shall be deemed to include reference to the Base Currency Equivalent of such sum.

1.3

Third party rights

 

(a)

Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or enjoy the benefit of any term of this Agreement.

 

(b)

Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.


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Section 2

The Facilities

2.

The Facilities

2.1

The Facilities

Subject to the terms of this Agreement, the Lenders make available to the Borrowers:

 

(a)

a Base Currency term loan facility in an aggregate amount equal to the Total Facility A1 Commitments;

 

(b)

a Base Currency term loan facility in an aggregate amount equal to the Total Facility A2 Commitments;

 

(c)

a Base Currency term loan facility in an aggregate amount equal to the Total Facility B Commitments; and

 

(d)

a Base Currency term loan facility in an aggregate amount equal to the Total Facility C Commitments.

2.2

Increase

 

(a)

The Company may by giving prior notice to the Agent after the effective date of a cancellation of:

 

(i)

the Available Commitments of a Defaulting Lender in accordance with Clause 7.5 (Right of cancellation in relation to a Defaulting Lender); or

 

(ii)

the Commitments of a Lender in accordance with:

 

(1)

Clause 7.1 (Illegality), or

 

(2)

Paragraph (a) of Clause 7.4 (Right of cancellation and repayment in relation to a single Lender),

request that the Commitments relating to any Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled as follows:

 

(iii)

the increased Commitments will be assumed by one or more Eligible Institutions (each an "Increase Lender") selected by the Company and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments;

 

(iv)

each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;

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(v)

each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;

 

(vi)

the Commitments of the other Lenders shall continue in full force and effect; and

 

(vii)

any increase in the Commitments relating to a Facility shall, subject to the conditions set out in paragraphs (d) and (e) below, take effect on the date specified by the Company in the notice referred to above or any later date on which the Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender.

 

(b)

The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.

 

(c)

The Agent shall only be obliged to execute an Increase Confirmation  delivered to it by an Increase Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender.  

 

(d)

Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.

 

(e)

The Company shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee of $3,500 and the Company shall promptly on demand pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.2.

 

(f)

The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a Fee Letter.

 

(g)

Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

 

(h)

Clause 25.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

 

(i)

an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase;

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(ii)

the "New Lender" were references to that "Increase Lender"; and

 

(iii)

a "re-transfer" and "re-assignment" were references to respectively a "transfer" and "assignment".

2.3

Finance Parties' rights and obligations

 

(a)

The obligations of each Finance Party under the Finance Documents are several.  Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents.  No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

(b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

(c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

2.4

Obligors' Agent

 

(a)

Each Obligor (other than the Company) by its execution of this Agreement or an Accession Deed irrevocably appoints the Company (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

(i)

the Company on its behalf to supply all information concerning itself contemplated by the Finance Documents to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to make any agreements and to effect any amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

 

(ii)

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,

and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

(b)

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other

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Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it.  In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.

3.

Purpose

3.1

Purpose

Each Borrower shall apply all amounts borrowed by it under a Facility towards the general corporate and working capital purposes of the Group.

3.2

Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4.

Conditions of utilisation

4.1

Initial conditions precedent

 

(a)

The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent.  The Agent shall notify the Company and the Lenders promptly upon being so satisfied.

 

(b)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification.  The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

4.2

Further conditions precedent

Subject to Clause 4.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if:

 

(a)

on the date of the Utilisation Request and on the proposed Utilisation Date:

 

(i)

no Default is continuing or would result from the proposed Loan; and

 

(ii)

the Repeating Representations to be made by each Obligor are true in all material respects;

 

(b)

in the case of a Facility B Loan, no earlier than five Business Days before the proposed Utilisation Date, the Company has delivered to the Agent a certificate signed by two officers of the Company:

 

(i)

confirming that either:

 

(1)

the FDA has accepted the Company’s BLA for the testing, manufacturing, marketing and commercial sale of [***]; or

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(2)

the EMA has approved the Company’s Marketing Authorization Application for the testing, manufacturing, marketing and commercial sale of [***]; and

 

(ii)

evidencing that the Group has at least $100,000,000 of Group Unrestricted Cash (the conditions in paragraph (b)(i) and (ii), above, collectively, the “Facility B Utilisation Conditions”); and

 

(c)

in the case of a Facility C Loan, no earlier than five Business Days before the proposed Utilisation Date, the Company has delivered to the Agent a certificate signed by two officers of the Company:

 

(i)

evidencing that Net Revenue for the twelve (12) month period ending on the month-end date for which a Compliance Certificate was most recently delivered (or required to be delivered pursuant to Clause 21.2), was at least $[***]; and

 

(ii)

evidencing that the Group has at least $100,000,000 of Group Unrestricted Cash.

4.3

Maximum number of Loans

 

(a)

The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation:

 

(i)

more than one Facility A1 Loan would be outstanding;

 

(ii)

more than one Facility A2 Loan would be outstanding;

 

(iii)

more than one Facility B Loan would be outstanding; or

 

(iv)

more than one Facility C Loan would be outstanding.

 

(b)

The Borrower may not request that a Facility A Loan, the Facility B Loan or the Facility C Loan be divided.


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Section 3

Utilisation

5.

Utilisation

5.1

Delivery of a Utilisation Request

A Borrower (or the Company of its behalf) may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

5.2

Completion of a Utilisation Request

 

(a)

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

(i)

it identifies the Facility to be utilised;

 

(ii)

the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

 

(iii)

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and

 

(iv)

the proposed Interest Period complies with Clause 11 (Interest Periods).

 

(b)

Only one Utilisation may be requested in each Utilisation Request.

5.3

Currency and amount

 

(a)

The currency specified in a Utilisation Request must be the Base Currency.

 

(b)

The amount of the proposed Utilisation must be:

 

(i)

an amount equal to the Available Facility for Facility A1;

 

(ii)

an amount equal to the Available Facility for Facility A2;

 

(iii)

an amount equal to the Available Facility for Facility B; or

 

(iv)

an amount equal to the Available Facility for Facility C.

5.4

Lenders' participation

 

(a)

If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

(b)

The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

5.5

Cancellation of Commitment

 

(a)

The Facility A1 Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility A1.

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(b)

The Facility A2 Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility A2.

 

(c)

The Facility B Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility B.

 

(d)

The Facility C Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility C.


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Section 4

Repayment, prepayment and cancellation

6.

Repayment

6.1

Repayment of Facility A Loans

 

(a)

The Borrower under Facility A shall, commencing on the first Repayment Date following the date falling:

 

(i)

if the Facility B Utilisation Conditions have not been satisfied as of such date, 18 Months after the First Effective Date; or

 

(ii)

if the Borrower has delivered a certificate to Agent certifying that the Facility B Utilisation Conditions have been (and remain) satisfied as of such date, 30 Months after the First Effective Date; and

 

(iii)

in each case, on each Repayment Date thereafter,

repay the Facility A Loans in instalments (each a "Facility A Repayment Instalment") by repaying on each such Repayment Date an amount equal to the aggregate amount of the Facility A Loans on either the date falling 18 Months pursuant to paragraph (i), or 30 Months pursuant to paragraph (ii) above (as applicable) after the First Effective Date is divided by the number of Repayment Dates remaining (including the Repayment Date on which the first payment is made) before the occurrence of the Termination Date, until such time as the Facility A Loans have been repaid in full.

 

(b)

Notwithstanding paragraph (a) above, if the Borrower has delivered a certificate to Agent certifying that the Facility B Utilisation Conditions have been (and remain) satisfied as of such date at any time during the period commencing on the date that is 18 months after the First Effective Date and ending on 1 July 2023,  the Borrower shall not be required to make any additional scheduled principal payments under Facility A on any Repayment Date occurring after the date on which the Utilisation of Facility B occurs until the date that is 30 months after the Original Effective Date and the Facility A Repayment Instalments for the remaining Repayment Dates will be recalculated accordingly.

6.2

Repayment of the Facility B Loan

 

(a)

The Borrower under Facility B shall, commencing on the first Repayment Date following the date falling:

 

(i)

30 Months after the First Effective Date; and

 

(ii)

in each case, on each Repayment Date thereafter,

repay the Facility B Loan in instalments (each a "Facility B Repayment Instalment") by repaying on each such Repayment Date an amount equal to the aggregate amount of the Facility B Loan divided by the number of Repayment Dates remaining (including the Repayment Date on which the first payment is made) before the occurrence of the Termination Date, until such time as the Facility B Loan has been repaid in full.

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(b)

The Borrower under Facility B shall, commencing on the first Repayment Date following the date falling 30 Months after the First Effective Date and, in each case, on each Repayment Date thereafter, repay the Loans in instalments (each a "Facility B Repayment Instalment") by repaying on each such Repayment Date an amount equal to the aggregate amount of the Facility B Loan divided by the number of Repayment Dates remaining (including the Repayment Date on which the first payment is made) before the occurrence of the Termination Date, until such time as the Facility B Loan has been repaid in full.

6.3

Repayment of the Facility C Loan

 

(a)

The Borrower under Facility C shall, commencing on the first Repayment Date following the date falling:

 

(i)

if the Facility B Utilisation Conditions have not been satisfied as of such date, 18 Months after the First Effective Date; or

 

(ii)

if the Borrower has delivered a certificate to Agent certifying that the Facility B Utilisation Conditions have been (and remain) satisfied as of such date, 30 Months after the First Effective Date; and

repay the Facility C Loan in instalments (each a "Facility C Repayment Instalment") by repaying on each such Repayment Date an amount equal to the aggregate amount of the Facility C Loan on the date falling 18 Months or 30 Months, as applicable, after the First Effective Date divided by the number of Repayment Dates remaining (including the Repayment Date on which the first payment is made) before the occurrence of the Termination Date, until such time as the Facility C Loan has been repaid in full.

6.4

Repayment of Loans

 

(a)

Notwithstanding the provisions of Clause 6.1 (Repayment of Facility A Loans), Clause 6.1(b) (Repayment of the Facility B Loan) and Clause 6.3 (Repayment of the Facility C Loan), the relevant Borrower of each Loan shall repay the outstanding principal amount of each Loan on the Termination Date.

 

(b)

No Borrower may reborrow any part of a Facility which is repaid.

6.5

Effect of cancellation and prepayment on scheduled repayments and reductions

 

(a)

If the Company cancels the whole or any Available Commitment in accordance with Clause 7.4 (Right of cancellation and repayment in relation to a single Lender) or Clause 7.5 (Right of Cancellation in relation to a Defaulting Lender) or if the Available Commitment of any Lender is cancelled under Clause 7.1 (Illegality) (other than, in any relevant case, to the extent that any part of relevant Available Commitment(s) so cancelled is subsequently increased pursuant to Clause 2.2 (Increase)); then the amount of the Repayment Instalment for each Repayment Date falling after that cancellation will reduce pro rata by the amount cancelled.

 

(b)

If any Loan is repaid or prepaid in accordance with Clause 7.4 (Right of cancellation and repayment in relation to a single Lender) or Clause 7.1 (Illegality) then, other than to the extent that any part of the relevant Commitment is subsequently increased pursuant to Clause 2.2 (Increase) in the case of that Loan, the amount of the Repayment Instalments for the relevant Facility for each Repayment Date falling

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after that repayment or prepayment will reduce pro rata by the amount of the Loan repaid or prepaid.

7.

Illegality, voluntary prepayment and cancellation

7.1

Illegality

If in any applicable jurisdiction, it becomes unlawful for a Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in any Utilisation or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

 

(a)

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

(b)

upon the Agent notifying the Company, each Available Commitment of that Lender will be immediately cancelled; and

 

 

(i)

each Borrower shall repay that Lender's participation in the Utilisations made to that Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law); and

 

(ii)

that Lender's corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

7.2

Voluntary cancellation

The Company may, if it gives the Agent not less than 10 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole but not part of an Available Facility.  Any cancellation under this Clause 7.2 shall reduce the Commitments of the Lenders rateably under that Facility.

7.3

Voluntary prepayment of Loans

 

(a)

A Borrower to which a Loan has been made may, if it or the Company gives the Agent not less than 30 days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole but not part of that Loan.

 

(b)

A Loan may only be prepaid after the last day of the Availability Period for the applicable Facility (or, if earlier, the day on which the applicable Available Facility is zero).

7.4

Right of cancellation and repayment in relation to a single Lender

 

(a)

If:

 

(i)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or

 

(ii)

any Lender claims indemnification from the Company or an Obligor under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs),

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the Company may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues give the Agent notice of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender's participation in the Utilisations.

 

(b)

On receipt of a notice referred to in paragraph (a) above in relation to a Lender, the Commitment(s) of that Lender shall immediately be reduced to zero.

 

(c)

On the last day of each Interest Period which ends after the Company has given notice under paragraph (a)) above in relation to a Lender (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Utilisation is outstanding shall repay that Lender's participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents.

7.5

Right of cancellation in relation to a Defaulting Lender

 

(a)

If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent five Business Days' notice of cancellation of each Available Commitment of that Lender.

 

(b)

On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

(c)

The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

8.

Mandatory prepayment and cancellation

8.1

Exit

 

(a)

Upon the occurrence of:

 

(i)

a Change of Control; or

 

(ii)

the sale of all or substantially all of the assets of the Group whether in a single transaction or a series of related transactions,

the Facilities will be cancelled and all outstanding Utilisations, together with accrued interest, and all other amounts accrued under the Finance Documents, shall become immediately due and payable.

8.2

Disposal, Insurance and Acquisition Proceeds

 

(a)

For the purposes of this Clause 8.2 and Clause 8.3 (Application of mandatory prepayments and cancellations):

"Acquisition Proceeds" means the proceeds of a claim or refund (a "Recovery Claim") against the vendor or any of its Affiliates (or any employee, officer or adviser) in relation to a Permitted Acquisition or against the provider of any Report (in its capacity as a provider of that Report) except for Excluded Acquisition Proceeds, and after deducting:

 

(i)

any reasonable expenses which are incurred by any member of the Group to persons who are not members of the Group; and

 

(ii)

any Tax incurred and required to be paid by a member of the Group (as reasonably determined by the relevant member of the Group on the basis

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of existing rates and taking into account any available credit, deduction or allowance),

in each case in relation to that Recovery Claim.

"Disposal" means a sale, lease, licence, transfer, loan or other disposal by a person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).

"Disposal Proceeds" means the consideration receivable by any member of the Group (including any amount receivable in repayment of intercompany debt) for any Disposal made by any member of the Group except for Excluded Disposal Proceeds and after deducting:

 

(i)

any reasonable expenses which are incurred by any member of the Group with respect to that Disposal to persons who are not members of the Group; and

 

(ii)

any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance).

"Excluded Acquisition Proceeds" means any proceeds of a Recovery Claim which the Company notifies the Agent are, or are to be, applied:

 

(i)

in payment of amounts payable to the vendor in relation to a Permitted Acquisition by way of adjustment to the purchase price in respect of the relevant Permitted Acquisition (except to the extent relating to a working capital adjustment);

 

(ii)

to satisfy (or reimburse a member of the Group which has discharged) any liability, charge or claim upon a member of the Group by a person which is not a member of the Group; or

 

(iii)

in the replacement, reinstatement and/or repair of assets of members of the Group which have been lost, destroyed or damaged,

in each case as a result of the events or circumstances giving rise to that Recovery Claim, if those proceeds are so applied as soon as possible (but in any event within 180 days, or such longer period as the Majority Lenders may agree) after receipt.

"Excluded Disposal Proceeds" means

 

(i)

Disposal Proceeds which have been derived from a Disposal of a type described in paragraphs (a), (b), (c), (d), (f) (but only if and to the extent that such Disposal is in exchange for other Cash Equivalent Investments), (g) or (h) of the definition of "Permitted Disposal"; and

 

(ii)

any other Disposal Proceeds which are applied towards the purchase of replacement assets of the same general nature as those disposed of as soon as possible (but in any event within 180 days or such longer period as the Majority Lenders may agree) after receipt.

"Excluded Insurance Proceeds" means any proceeds of an insurance claim which the Company notifies the Agent are, or are to be, applied:

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(i)

to meet a third party claim; or

 

(ii)

to cover operating losses in respect of which the relevant insurance claim was made; or

 

(iii)

to the replacement, reinstatement and/or repair of the assets or otherwise in amelioration of the loss in respect of which the relevant insurance claim was made,

in each case as soon as possible (but in any event within 180 days, or such longer period as the Majority Lenders may agree) after receipt.

"Insurance Proceeds" means the proceeds of any insurance claim under any insurance maintained by any member of the Group except for Excluded Insurance Proceeds and after deducting any reasonable expenses in relation to that claim which are incurred by any member of the Group to persons who are not members of the Group.

 

(b)

The Company shall ensure that the Borrowers prepay Utilisations and cancel Available Commitments, in amounts equal to the following amounts at the times and in the order of application contemplated by Clause 8.3 (Application of mandatory prepayments and cancellations):

 

(i)

the amount of Acquisition Proceeds;

 

(ii)

the amount of Disposal Proceeds; and

 

(iii)

the amount of Insurance Proceeds.

8.3

Application of mandatory prepayments and cancellations

 

(a)

A prepayment of Utilisations or cancellation of Available Commitments made under Clause 8.2 (Disposal, Insurance and Acquisition Proceeds) shall be applied in prepayment of Loans as contemplated in paragraphs (b) to (e) inclusive below.

 

(b)

Unless the Company makes an election under paragraph (d) below, the Borrowers shall prepay Loans in the case of any prepayment relating to the amounts of Acquisition Proceeds, Disposal Proceeds or Insurance Proceeds, promptly upon receipt of those proceeds.

 

(c)

A prepayment under Clause 8.2 (Disposal, Insurance and Acquisition Proceeds) shall prepay the Loans as follows:

 

(i)

in amounts which reduce the Facility A Loans, the Facility B Loan and the Facility C Loan by the same proportion; and

 

(ii)

in reducing the relevant Repayment Instalment for each Repayment Date falling after the date of prepayment in the manner contemplated by paragraph (d) of Clause 6.5 (Effect of cancellation and prepayment on scheduled repayments and reductions).

 

(d)

Subject to paragraph (e) below, the Company may elect that any prepayment under Clause 8.2 (Disposal, Insurance and Acquisition Proceeds) be applied in prepayment of a Loan on the last day of the Interest Period relating to that Loan.  If the Company makes that election then a proportion of the Loan equal to the amount

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of the relevant prepayment will be due and payable on the last day of its Interest Period.

 

(e)

If the Company has made an election under paragraph (d) above but a Default has occurred and is continuing, that election shall no longer apply and a proportion of the Loan in respect of which the election was made equal to the amount of the relevant prepayment shall be immediately due and payable (unless the Majority Lenders otherwise agree in writing).

8.4

Excluded proceeds

Where Excluded Acquisition Proceeds, Excluded Disposal Proceeds and Excluded Insurance Proceeds include amounts which are intended to be used for a specific purpose within a specified period (as set out in the relevant definition of Excluded Acquisition Proceeds, Excluded Disposal Proceeds or Excluded Insurance Proceeds), the Company shall ensure that those amounts are used for that purpose and shall promptly deliver a certificate to the Agent  at the time of such application and at the end of such period confirming the amount (if any) which has been so applied within the requisite time periods provided for in the relevant definition.

9.

Restrictions

9.1

Notices of cancellation or prepayment

Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 7 (Illegality, voluntary prepayment and cancellation) or paragraph (d) of Clause 8.3 (Application of mandatory prepayments and cancellations) (subject to the terms of those Clauses) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

9.2

Interest and other amounts

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and any prepayment fees that are payable under Clause 13.3 and, subject to any Break Costs, without premium or penalty.

9.3

No reborrowing of Facilities

No Borrower may reborrow any part of a Facility which is prepaid.

9.4

Prepayment in accordance with Agreement

No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

9.5

No reinstatement of Commitments

Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

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9.6

Agent's receipt of notices

If the Agent receives a notice under Clause 7 (Illegality, voluntary prepayment and cancellation), it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

9.7

Effect of repayment and prepayment on Commitments

If all or part of any Lender's participation in a Utilisation under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of that Lender's Commitment (equal to the amount in the Base Currency of the participation that is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

9.8

Application of prepayments

Any prepayment of a Utilisation (other than a prepayment pursuant to Clause 7.1 (Illegality) or Clause 7.4 (Right of cancellation and repayment in relation to a single Lender)) shall be applied pro rata to each Lender's participation in that Utilisation.


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Section 5

Costs of Utilisation

10.

Interest

10.1

Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

(a)

Margin; and

 

(b)

LIBOR.

10.2

Payment of interest

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six Monthly intervals after the first day of the Interest Period).

10.3

Default interest

 

(a)

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 1 per cent per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).  Any interest accruing under this Clause 10.3 shall be immediately payable by the Obligor on demand by the Agent.

 

(b)

If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

(i)

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

(ii)

the rate of interest applying to the overdue amount during that first Interest Period shall be 2 per cent per annum higher than the rate which would have applied if the overdue amount had not become due.

 

(c)

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

10.4

Notification of rates of interest

 

(a)

The Agent shall promptly notify the relevant Lenders and the relevant Borrower (or the Company) of the determination of a rate of interest under this Agreement.

 

(b)

The Agent shall promptly notify the relevant Borrower (or the Company) of each Funding Rate relating to a Loan.

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10.5

Maximum Rate of Interest

In relation to the obligation of a US Obligor under this Agreement, notwithstanding anything to the contrary contained in any Finance Document, the interest paid or agreed to be paid under the Finance Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the "Maximum Rate").  If a US Obligor is liable in relation to interest to be received by the Agent or any Lender in an amount that exceeds the Maximum Rate, the excess interest shall, in relation to any US Obligor only, be applied to the principal of the Loans or, if and as long as it exceeds such unpaid principal, the US Obligor shall not be liable under this Agreement and such amount shall be refunded to such US Obligor. In determining whether the interest contracted for, charged, or received by the Agent or a Lender exceeds the Maximum Rate, such person may, to the extent permitted by applicable law, (i) characterise any payment that is not principal as an expense, fee, or premium rather than interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortise, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Loans and Letters of Credit hereunder.

11.

Interest Periods

11.1

Selection of Interest Periods and Terms

 

(a)

A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.

 

(b)

Each Selection Notice for a Loan is irrevocable and must be delivered to the Agent by the Borrower (or the Company on behalf of the Borrower) not later than the Specified Time.

 

(c)

If a Borrower (or the Company) fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will, subject to Clause 11.2 (Changes to Interest Periods), be one Month.

 

(d)

Subject to this Clause 11, a Borrower (or the Company) may select an Interest Period of one Month or of any other period agreed between the Company, the Agent (and all the Lenders in relation to the relevant Loan).  In addition a Borrower (or the Company on its behalf) may select an Interest Period of a period of less than one Month, if necessary to ensure that the Interest Period for the Loan ends on a Repayment Date relating to the relevant Facility for the Borrowers to make the Repayment Instalment due on that date.

 

(e)

An Interest Period for a Loan shall not extend beyond the Termination Date.

 

(f)

Each Interest Period for a Loan shall start on the relevant Utilisation Date or (if already made) on the last day of its preceding Interest Period.

11.2

Changes to Interest Periods

 

(a)

Prior to determining the interest rate for any Loan, the Agent may shorten an Interest Period for that Loan to ensure the Interest Period for that Loan ends on the relevant Repayment Date for the Borrowers to make the relevant Repayment Instalment due on that date.

 

(b)

If the Agent makes any of the changes to an Interest Period referred to in this Clause 11.2, it shall promptly notify the Company and the Lenders.

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11.3

Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

12.

Changes to the calculation of interest

12.1

Unavailability of Screen Rate

 

(a)

Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period of a Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

 

(b)

Reference Bank Rate: If no Screen Rate is available for LIBOR for:

 

(i)

US dollars; or

 

(ii)

the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.

 

(c)

Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period there shall be no LIBOR for that Loan and Clause 12.4 (Cost of funds) shall apply to that Loan for that Interest Period.

12.2

Calculation of Reference Bank Rate

 

(a)

Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

 

(b)

If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.

12.3

Market disruption  

If before close of business in London on the Quotation Day for the relevant Interest Period the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 12.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

12.4

Cost of funds

 

(a)

If this Clause ‎12.4 applies, the rate of interest on the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

(i)

the Margin; and

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(ii)

the weighted average of the rates notified to the Agent by each Lender as soon as practicable and in any event by close of business on the date falling one Business Day after the Quotation Day (or, if earlier, on the date falling one Business Day before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

(b)

If this Clause ‎‎12.4 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

(c)

Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

 

(d)

If this Clause ‎‎12.4 applies pursuant to Clause 12.3 (Market disruption) and:

 

(i)

a Lender's Funding Rate is less than LIBOR; or

 

(ii)

a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,

the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be LIBOR.

12.5

Notification to Company

If Clause 12.4 (Cost of funds) applies the Agent shall, as soon as is practicable, notify the Company.

12.6

Break Costs

 

(a)

Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

(b)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

13.

Fees

13.1

Arrangement fee

The Company shall pay to the Arranger an arrangement fee in the amount, manner and at the times agreed in a Fee Letter.

13.2

Agency and Security Agent fee

The Company shall pay to the Agent an agency fee in the amount, manner and at the times agreed in a Fee Letter.

13.3

Prepayment fee

If any Facility (or any part thereof) is prepaid or all or any part of the Commitments are cancelled for any reason, other than pursuant to Clause 8.2 (Disposal, Insurance and

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Acquisition Proceeds) (whether by voluntary prepayment by the Borrower, by reason of the occurrence of an Event of Default or the acceleration of any Facility, or otherwise, or if any Facility shall become accelerated and due and payable in full), in each case, prior to the third anniversary of the First Effective Date, the Borrower shall pay with the proposed prepayment a fee in an amount equal to:

 

(i)

on or prior to the first anniversary of the First Effective Date, three per cent. of the amount of the principal repaid;

 

(ii)

after the first anniversary but on or prior to the second anniversary of the First Effective Date, two per cent. of the amount of the principal repaid; and

 

(iii)

after the second anniversary but on or prior to the third anniversary of the First Effective Date, one per cent. of the amount of the principal repaid.

13.4

Final Payment fee

The Company shall pay to the Agent a final payment fee in the amount, manner and at the times agreed in a Fee Letter.

 


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Section 6

Additional payment obligations

14.

Tax Gross Up and indemnities

14.1

Definitions

In this Agreement:

"Borrower DTTP Filing" means an HM Revenue & Customs' Form DTTP2 duly completed and filed by the relevant Borrower, which:

 

(a)

where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name in Part 2 of Schedule 1 (The Original Parties), and:

 

(i)

where the Borrower is an Original Borrower is filed with HM Revenue & Customs within 30 days of the Original Effective Date; or

 

(ii)

where the Borrower is an Additional Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower, or

 

(b)

where it relates to a Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender, and:

 

(i)

where the Borrower is a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or

 

(ii)

where the Borrower is not a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower;

"Protected Party" means a Finance Party which is or will be subject to any liability or required to make any payment for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document;

"Qualifying Lender" means:

 

(a)

a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

(i)

a Lender:

 

(1)

which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

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(2)

in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

(ii)

a Lender which is:

 

(1)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

(2)

a partnership each member of which is:

(aa)a company so resident in the United Kingdom; or

 

(bb)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;

 

(3)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

 

(iii)

a Treaty Lender; or

 

(b)

a Lender which is a building society (as defined for the purposes of section 880 of the ITA) making an advance under a Finance Document;

"Tax Confirmation" means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

(a)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

(b)

a partnership each member of which is:

 

(i)

a company so resident in the United Kingdom; or

 

(ii)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(c)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company;

"Tax Credit" means a credit against, relief or remission for, or repayment of, any Tax.

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"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax indemnity).

"Treaty Lender" means a Lender which:

 

(a)

is treated as a resident of a Treaty State for the purposes of the Treaty;

 

(b)

does not carry on a business in the United Kingdom through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and

 

(c)

meets all other conditions in the Treaty for full exemption from Tax on interest imposed by the United Kingdom (except that for this purpose it shall be assumed that there is no special relationship between the Borrower and the Lender or between both of them and a third person), subject to completion of procedural formalities.

"Treaty State" means a jurisdiction having a double taxation agreement (a "Treaty") with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest;

"UK Non-Bank Lender" means:

 

(a)

An Original Lender listed in Part 2 of Schedule 1 (The Original Parties); and

 

(b)

a Lender which is not an Original Lender and which gives a Tax Confirmation in the documentation which it executes on becoming a Party as a Lender.

Unless a contrary indication appears, in this Clause 14.1 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.

14.2

Tax gross-up

 

(a)

Each Obligor shall make all payments to be made by it under a Finance Document without any Tax Deduction, unless a Tax Deduction is required by law.