EXHIBIT 10.21
[RBC ROYAL BANK LOGO]
JOHN MCCANNEL ROYAL BANK OF CANADA
Senior Account Manager Greater Victoria Business Banking Centre
Tel: (250) 356-4517 2nd Floor, 707 Fort Street
Email john.mccannel@rbc.com Victoria, British Columbia V8W 3G3
Transit 08030
Fax: (250) 356-4583
April 23, 2004
PRIVATE AND CONFIDENTIAL
Aspreva Pharmaceuticals Corporation
1201-4464 Markham Street
Victoria, B.C. V8Z 7X8
ATTENTION: MR. RICHARD GLICKMAN, CHAIRMAN & CEO
Dear Sir:
We are pleased to offer the credit facilities described below (the "CREDIT
FACILITIES"), subject to the following terms and conditions.
DEFINITIONS AND SCHEDULES
The attached schedules are incorporated into this agreement by reference.
Schedule "A" contains definitions of capitalized terms used and not otherwise
defined in this agreement. Unless otherwise provided, all dollar amounts are in
Canadian currency and accounting terms are to be interpreted in accordance with
GAAP.
BORROWER
ASPREVA PHARMACEUTICALS CORPORATION (the "BORROWER")
LENDER
Royal Bank of Canada (the "Bank")
CREDIT FACILITIES
Facility (1): $500,000 revolving demand facility, by way of:
(a) RBP based loans ("RBP LOANS").
Facility (2): US $370,000 revolving demand facility, by way of:
(a) RBUSBR based loans in US currency ("RBUSBR LOANS").
Facility (3): $600,000 revolving demand facility, by way of:
ASPREVA PHARMACEUTICALS CORPORATION Page 2 April 23, 2004
(a) Letters of Credit ("LCs");
(b) Letters of Guarantee ("LGs").
Each use of the Credit Facilities is a "BORROWING" and all such usages
outstanding at any time are "BORROWINGS". Schedule "B" contains notice
provisions applicable to Borrowings that must be complied with. Schedule "C"
contains terms and conditions applicable to Borrowings made otherwise than by
way of RBP Loans or RBUSBR Loans which must be complied with.
FEF CONTRACTS
At the Borrower's request the Bank may enter into Foreign Exchange Forward
Contracts ("FEF CONTRACTS") with the Borrower from time to time. The Bank makes
no commitment to enter into any FEF Contract and may at any time in its sole
discretion decline to enter into any FEF Contract. FEF Contracts will be
governed by the terms and conditions set forth in the FEF Contracts Schedule
attached hereto.
TERMS OF OTHER FACILITIES
The Credit Facilities are in addition to the following:
(a) a lease line of credit in an aggregate principal amount of
$2,000,000 which facility is made available, provided:
- the aggregate outstanding amount under this lease line of
credit and Facility (3) shall not exceed $2,000,000;
- this lease line of credit is made available at the sole
discretion of the Bank and the Bank may cancel or restrict
availability of any unutilized portion of this facility at any
time and from time to time without notice;
- the determination by the Bank as to whether it will enter into
any lease transaction under this facility will be entirely at
its sole discretion and, in the event that the Bank shall
determine to enter into any particular lease transaction, the
lease transaction will be governed by this agreement and
separate agreements between the Borrower and the Bank;
(b) corporate VISA to a maximum amount of $200,000 which is governed by
this agreement and separate agreements between the Borrower and the
Bank.
In the event of conflict between this agreement and any separate agreement
delivered in connection with any such other facilities, the terms of such
separate agreement shall govern.
PURPOSE
Facility (1)
To cover potential fund/investment transfer/redemption delays.
Facility (2)
To cover potential USD fund/investment transfer/redemption delays.
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Facility (3)
To cover potential security requirements should client select to finance office
equipment/fixtures through Steelcase Financial versus the Bank.
AVAILABILITY
Facilities (1) and, (2)
The Borrower may borrow, repay and reborrow up to the amount of these revolving
facilities, provided:
(a) these facilities are made available at the sole discretion of the
Bank and the Bank may cancel or restrict availability of any
unutilized portion of this facility at any time and from time to
time without notice or demand.
Facility (3)
The Borrower may borrow, convert, repay and reborrow up to the amount of these
revolving facilities, provided:
(a) the aggregate outstanding amount under this facility and the lease
line of credit shall not exceed $2,000,000;
(b) this facility is made available at the sole discretion of the Bank
and the Bank may cancel or restrict availability of any unutilized
portion of this facility at any time and from time to time without
notice or demand.
REPAYMENT
Facilities (1) and (2)
Borrowings under these facilities are expected to revolve with operating
requirements.
Notwithstanding compliance with the covenants and all other terms and conditions
of this agreement, and regardless of the maturities of any outstanding
instruments or contracts, Borrowings under these facilities are repayable on
demand and the Bank may terminate these facilities at any time, without notice
or demand.
Facility (3)
Borrowings under this facility are expected to revolve with operating
requirements. Notwithstanding compliance with the covenants and all other terms
and conditions of this agreement, and regardless of the maturities of any
outstanding instruments or contracts,
Borrowings under this facility are repayable on demand and the Bank may
terminate this facility at any time, without notice or demand.
Upon demand or termination, the Borrower shall pay to the Bank all Borrowings
outstanding under this facility including, without limitation, an amount equal
to the aggregate of the face amounts of all LCs and LGs which are unmatured or
unexpired, which amount shall be held by the Bank as security for the Borrower's
obligations to the Bank in respect of such instruments or contracts. The Bank
may enforce its rights to realize upon its security and retain an amount
ASPREVA PHARMACEUTICALS CORPORATION Page 4 April 23, 2004
sufficient to secure the Bank for the Borrower's obligations to the Bank in
respect of such instruments or contracts.
INTEREST RATES AND FEES
Facility (1)
RBP Loans: REP plus 0.125% per annum.
Facility (2)
RBUSBR Loans: RBUSBR plus 0.125% per annum.
Facility (3)
LCs: fee to be quoted by the Bank at the time of issue of each LC.
LGs: fee to be quoted by the Bank at the time of issue of each LG,
subject to a minimum fee of $100 in the currency of issue.
Application Fee
The application fee of $5,000 is waived.
Revolvement Fee-Facility (1)
An administration fee of $25 per month, for revolving RBP Loans under Facility
(1) is payable monthly in arrears on such date as the Bank may determine.
Revolvement Fee - Facility (2)
An administration fee of $25 in US currency per month, for revolving RBUSBR
Loans under Facility (2) is payable monthly in arrears on such date as the Bank
may determine.
CALCULATION AND PAYMENT OF INTEREST AND FEES
RBP Loans and RBUSBR Loans
The Borrower shall pay interest on each RBP Loan and RBUSBR Loan, monthly in
arrears, on the 21st day of each month. Such interest will be calculated monthly
and will accrue daily on the basis of the actual number of days elapsed and a
year of 365 days. Interest on RBUSBR Loans shall be paid in US currency.
LC Fees
The Borrower shall pay an LC fee on the date of any payment made by the Bank
pursuant to a drawing under any LC calculated on the amount drawn, based upon
the number of days the LC was outstanding and a year of 365 days. If the total
amount available under any LC has not been drawn prior to the expiry of such LC,
the Borrower shall pay an LC fee calculated on the undrawn portion of such LC on
the expiry date thereof, based upon the number of days the LC was outstanding
and a year of 365 days.
LG Fees
The Borrower shall pay an LG fee on the date of issuance of any LG calculated on
the face amount of the LG issued and based on the number of days in the term
thereof and a year of 365 days.
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Limit on Interest
The Borrower shall not be obligated to pay any interest, fees or costs under or
in connection with this agreement in excess of what is permitted by law.
Overdue Payments
Any amount that is not paid when due hereunder shall, unless interest is
otherwise payable in respect thereof in accordance with the terms of this
agreement or the instrument or contract governing same, bear interest until paid
at the rate of RBP plus 5% per annum or, in the case of an amount in US
currency, RBUSBR plus 5% per annum.
Equivalent Yearly Rates
The annual rates of interest or fees to which the rates calculated in accordance
with this agreement are equivalent, are the rates so calculated multiplied by
the actual number of days in the calendar year in which such calculation is made
and divided by 365.
Time and Place of Payment
Amounts payable by the Borrower hereunder shall be paid at the Branch of Account
in the applicable currency. Amounts due on a day other than a Business Day shall
be deemed to be due on the Business Day next following such day. Interest and
fees payable under this agreement are payable both before and after any or all
of default, maturity date, demand and judgement.
EXCHANGE RATE FLUCTUATIONS
If, for any reason, the amount of Borrowings outstanding under any facility,
when converted to the Equivalent Amount in Canadian currency, exceeds the amount
available under such facility, the Borrower shall immediately repay such excess
or shall secure such excess to the satisfaction of the Bank.
EVIDENCE OF INDEBTEDNESS
The Bank shall open and maintain at the Branch of Account accounts and records
evidencing the Borrowings made available to the Borrower by the Bank under this
agreement. The Bank shall record the principal amount of each Borrowing, the
payment of principal and interest and all other amounts becoming due to the Bank
under this agreement. The Bank's accounts and records constitute, in the absence
of manifest error, conclusive evidence of the indebtedness of the Borrower to
the Bank pursuant to this agreement.
The Borrower authorizes and directs the Bank to automatically debit, by
mechanical, electronic or manual means, any bank account of the Borrower for all
amounts payable by the Borrower to the Bank pursuant to this agreement.
GENERAL ACCOUNT
The Borrower shall establish current accounts with the Bank in each of Canadian
currency and US currency (each a "GENERAL ACCOUNT") for the conduct of the
Borrower's day to day banking business. If the balance in a General Account:
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(a) is a credit, the Bank may apply, at any time in its discretion, the
amount of such credit or part thereof, rounded to the nearest
$10,000 in Canadian currency or US currency, as applicable, as a
repayment of Borrowings outstanding by way of RBP Loans or RBUSBR
Loans, as applicable, under Facilities (1) and (2), or
(b) is a debit, the Bank may, subject to availability, make available a
Borrowing by way of an RBP Loan or RBUSBR Loans, as applicable,
under Facilities (1) and (2) in an amount, rounded to the nearest
$10,000 in Canadian currency or US currency, as applicable, as is
required to place the General Account at not less than a zero
balance.
CONDITIONS PRECEDENT
The availability of any Borrowing is conditional upon the receipt of
(a) a duly executed copy of this agreement;
(b) the security provided for herein, in form and substance satisfactory
to the Bank, registered as required to perfect and maintain the
security created thereby and such certificates, authorizations,
resolutions and legal opinions as the Bank may reasonably require;
(c) the following documents:
- audited financial statements for the year ended December 31,
2003;
- fiscal 2004 budget/projections, to the Bank's satisfaction
(not applicable to Facility (3)); and
- current breakdown of new share capital structure, to the
Bank's satisfaction.; and
(d) such financial and other information or documents relating to the
Borrower as the Bank may reasonably require.
SECURITY
Security for the Borrowings and all other obligations of the Borrower to the
Bank shall include:
(a) General security agreement on the Bank's form 924 signed by the
Borrower constituting a first ranking security interest in all
personal property of the Borrower;
(b) Letter of Undertaking, signed by the Borrower and acknowledged by
RBC Dominion Securities ("RBCDS"), to maintain a minimum $10,000
cash and equivalents within portfolio at RBCDS.
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REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank, which representations and
warranties are deemed to be repeated as at the time of each Borrowing hereunder,
that:
(a) it is a corporation duly incorporated, validly existing and duly
registered or qualified to carry on business in all jurisdictions
where it carriers on business, including in the Province of British
Columbia;
(b) the execution, delivery and performance by it of this agreement have
been duly authorized by all necessary actions and do not violate its
constating documents or any Applicable Laws or agreements to which
it is subject or by which it is bound;
(c) no event has occurred which constitutes, or which, with notice,
lapse of time, or both, would constitute, a breach of any covenant
or other term or condition of this agreement or any security
agreement given in connection therewith.
REPORTING COVENANTS
The Borrower covenants and agrees with the Bank, while this agreement is in
effect, to provide the Bank with:
(a) Monthly: RBCDS Investment Summary/Statement on Investment Holdings,
within 30 days of each month end;
(b) Quarterly: company prepared unit and consolidated financial
statements for the Borrower within 60 days of each fiscal quarter
end;
(c) Annually: audited unit and consolidated financial statements for the
Borrower, within 120 days of each fiscal year end; and
(d) such other financial and operating statements and reports as and
when the Bank may reasonably require.
GENERAL COVENANTS
The Borrower covenants and agrees with the Bank, while this agreement is in
effect:
(a) to pay all sums of money when due by it under this agreement;
(b) to provide the Bank with prompt written notice of any event which
constitutes, or which, with notice, lapse of time, or both, would
constitute a breach of any covenant or other term or condition of
this agreement or any security agreement given in connection
therewith;
(c) to give the Bank 30 days prior written notice of any intended change
in the ownership of its shares and not to consent to or facilitate a
change in the ownership of its shares without the prior written
consent of the Bank;
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(d) to keep its assets fully insured against such perils and in such
manner as would be customarily insured by companies carrying on a
similar business or owning similar assets;
(e) if the Borrower owns any commercial buildings located in
Metropolitan Vancouver, the Lower Fraser Valley, Metropolitan
Victoria or Saanich Peninsula, then, in addition to (d) above, the
Borrower shall insure and keep fully insured such commercial
buildings against risk of earthquake;
(f) to file all material tax returns which are to be filed by it from
time to time, to pay or make provision for payment of all taxes
(including interest and penalties) and Potential Prior-Ranking
Claims when due, and to provide adequate reserves for the payment of
any tax, the payment of which is being contested;
(g) to comply in all material respects with all Applicable Laws
including, without limitation, all Environmental Laws;
(h) not to, without the prior written consent of the Bank, grant,
create, assume or suffer to exist any mortgage, charge, lien,
pledge, security interest or other encumbrance affecting any of its
properties, assets or other rights;
(i) not to, without the prior written consent of the Bank, sell,
transfer, convey, lease or otherwise dispose of any of its
properties or assets other than in the ordinary course of business
and on commercially reasonable terms;
(j) not to, without the prior written consent of the Bank, guarantee or
otherwise provide for, on a direct, indirect or contingent basis,
the payment of any monies or performance of any obligations by any
other Person, except as may be provided for herein;
(k) not to, without the prior written consent of the Bank, merge,
amalgamate, or otherwise enter into any other form of business
combination with any other Person;
(l) to provide the Bank with prompt written notice of any non-compliance
by the Borrower with any Environmental Laws or any Release from the
land of the Borrower of a Contaminant into the natural environment
and to indemnify and save harmless the Bank from all liability of
loss as a result of an Environmental Activity or any non-compliance
with any Environmental Law;
(m) to permit the Bank or its representatives, from time to time, to
visit and inspect the Borrower's premises, properties and assets and
examine and obtain copies of the Borrower's records or other
information and discuss the Borrower's affairs with the auditors,
counsel and other professional advisers of the Borrower.
ASPREVA PHARMACEUTICALS CORPORATION Page 9 April 23, 2004
Nothing contained in the foregoing Covenants sections shall limit any right of
the Bank under this agreement to terminate or demand payment of, or cancel or
restrict availability of any unutilized portion of, any demand or other
discretionary facility made available under this agreement.
SUCCESSORS AND ASSIGNS
This agreement shall be binding upon and enure to the benefit of the parties and
their respective successors and permitted assigns.
The Bank may assign all or part of its rights and obligations under this
agreement to any Person. The rights and obligations of the Borrower under this
agreement may not be assigned without the prior written consent of the Bank.
The Bank may disclose to potential or actual assignees confidential information
regarding the Borrower (including, any such information provided by the Borrower
to the Bank) and shall not be liable for any such disclosure.
GENERAL
Expenses
The Borrower agrees to pay all fees (including legal fees), costs and expenses
incurred by the Bank in connection with the preparation, negotiation and
documentation of this agreement and the security provided for herein and the
operation or enforcement of this agreement and the security provided for herein.
Review
The Bank may conduct periodic reviews of the affairs of the Borrower, as and
when determined by the Bank, for the purpose of evaluating the financial
condition of the Borrower. The Borrower shall make available to the Bank such
financial statements and other information and documentation as the Bank may
reasonably require and shall do all things reasonably necessary to facilitate
such review by the Bank.
Potential Prior-Ranking Claims
The Borrower hereby grants its consent (such grant to remain in force as long as
this agreement is in effect or any Borrowings are outstanding) to any Person
having information relating to any
Potential Prior-Ranking Claim arising by any law, statute, regulation or
otherwise and including, without limitation, claims by or on behalf of
government to release such information to the Bank at any time upon its written
request for the purpose of assisting the Bank to evaluate the financial
condition of the Borrower.
Set Off
The Bank is authorized, but not obligated, at any time, to apply any credit
balance, whether or not then due, to which the Borrower is entitled on any
account in any currency at any branch or office of the Bank in or towards
satisfaction of the obligations of the Borrower due to the Bank
ASPREVA PHARMACEUTICALS CORPORATION Page 10 April 23, 2004
under this agreement. The Bank is authorized to use any such credit balance to
buy such other currencies as may be necessary to effect such application.
Non-Merger
The provisions of this agreement shall not merge with any security provided to
the Bank, but shall continue in full force for the benefit of the parties
hereto.
Amendments and Waivers
No amendment or waiver of any provision of this agreement will be effective
unless it is in writing signed by the Borrower and the Bank. No failure or
delay, on the part of the Bank, in exercising any right or power hereunder or
under any security document shall operate as a waiver thereof.
Severability
If any provision of this agreement is or becomes prohibited or unenforceable in
any jurisdiction, such prohibition or unenforceability shall not invalidate or
render unenforceable the provision concerned in any other jurisdiction nor
invalidate, affect or impair any of the remaining provisions of this agreement.
Life Insurance Options
The Borrower acknowledges that Borrowings are not insured under the Bank's
Business Loan Insurance Program.
Judgement Currency
If for the purpose of obtaining judgement in any court in any jurisdiction with
respect to this agreement, it is necessary to convert into the currency of such
jurisdiction (the "Judgement Currency") any amount due hereunder in any currency
other than the Judgement Currency, then conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which judgement is
given. For this purpose "rate of exchange" means the rate at which the Bank
would, on the relevant date, be prepared to sell a similar amount of such
currency in the Toronto foreign exchange market, against the Judgement Currency,
in accordance with normal banking procedures.
In the event that there is a change in the rate of exchange prevailing between
the Business Day before the day on which judgement is given and the date of
payment of the amount due, the Borrower will, on the date of payment, pay such
additional amounts as may be necessary to ensure that the amount paid on such
date is the amount in the Judgement Currency which, when converted at the rate
of exchange prevailing on the date of payment, is the amount then due under this
agreement in such other currency together with interest at RBP and expenses
(including legal fees on a solicitor and client basis). Any additional amount
due from the Borrower under this section will be due as a separate debt and
shall not be affected by judgement being obtained for any other sums due under
or in respect of this agreement.
Governing Law
This agreement shall be construed in accordance with and governed by the laws of
the Province of British Columbia and of Canada applicable therein.
ASPREVA PHARMACEUTICALS CORPORATION Page 11 April 23, 2004
Whole Agreement
This agreement, the security and any other written agreement delivered pursuant
to or referred to in this agreement constitute the whole and entire agreement
between the parties in respect of the Credit Facilities. There are no verbal
agreements, undertakings or representations in connection with the Credit
Facilities.
Joint and Several
Where more than one Person is liable as Borrower [or Guarantor] for any
obligation under this agreement, then the liability of each such Person for such
obligation is joint and several with each other such Person.
Time
Time shall be of the essence in all provisions of this agreement.
Acceptance
This offer is open for acceptance until MAY 14, 2004, after which date it will
be null and void, unless extended in writing by the Bank.
Please confirm your acceptance of this agreement by signing the attached copy of
this letter in the space provided below and returning it to the undersigned.
Yours truly,
/s/ JOHN MCCANNEL
We acknowledge and accept the foregoing terms and conditions as of April 28,
2004.
ASPREVA PHARMACEUTICALS CORPORATION
By: /s/ BRUCE COUSINS
------------------------------------
Name: Bruce Cousins
Title: VP Finance & Admin.
By: /s/ RICHARD GLICKMAN
------------------------------------
Name: Richard Glickman
Title: CEO
I/We have authority to bind the corporation.
Schedule "A" to the agreement dated April 23, 2004, between ASPREVA
PHARMACEUTICALS CORPORATION, as Borrower, and Royal Bank of Canada, as the Bank.
DEFINITIONS
For the purpose of this agreement, the following terms and phrases shall have
the following meanings:
"APPLICABLE LAWS" means, with respect to any Person, property, transaction or
event, all present or future Applicable Laws, statutes, regulations, rules,
orders, codes, treaties, conventions, judgements, awards, determinations and
decrees of any governmental, regulatory, fiscal or monetary body or court of
competent jurisdiction in any applicable jurisdiction;
"BRANCH OF ACCOUNT" means the branch of the Bank at which the Borrower's
accounts are maintained. As at the date of this agreement, the "BRANCH OF
ACCOUNT" is the Bank's branch at 1079 Douglas Street, Victoria, B.C.;
"BUSINESS DAY" means a day, excluding Saturday, Sunday and any other day which
shall be a legal holiday or a day on which banking institutions are closed in
the province of the Branch of Account;
"CONTAMINANT" includes, without limitation, any pollutant, dangerous substance,
liquid waste, industrial waste, hazardous material; hazardous substance or
contaminant including any of the foregoing as defined in any Environmental Law;
"ENVIRONMENTAL ACTIVITY" means any activity, event or circumstance in respect of
a Contaminant, including, without limitation, its storage, use, holding,
collection, purchase, accumulation, assessment, generation, manufacture,
construction, processing, treatment, stabilization, disposition, handling or
transportation, or its Release into the natural environment, including movement
through or in the air, soil, surface water or groundwater;
"ENVIRONMENTAL LAWS" means all Applicable Laws relating to the environment or
occupational health and safety, or any Environmental Activity;
"EQUIVALENT AMOUNT" means, with respect to an amount of any currency, the amount
of any other currency required to purchase that amount of the first mentioned
currency through the Bank in Toronto, in accordance with normal banking
procedures;
"GAAP" means, generally accepted accounting principles in effect from time to
time in Canada applied in a consistent manner from period to period;
"LETTER OF CREDIT" or "LC" means a documentary credit issued by the Bank on
behalf of the Borrower for the purpose of paying suppliers of goods;
ASPREVA PHARMACEUTICALS CORPORATION Page 2 April 23, 2004
"LETTER OF GUARANTEE" or "LG" means a documentary credits issued by the Bank on
behalf of the Borrower for the purpose of providing security to a third parry
that the Borrower or a person designated by the Borrower will perform a
contractual obligation owed to such third party.
"PERSON" includes an individual, a partnership, a joint venture, a trust, an
unincorporated organization, a company, a corporation, an association, a
government or any department or agency thereof, and any other incorporated or
unincorporated entity;
"POTENTIAL PRIOR-RANKING CLAIMS" means all amounts owing or required to be paid,
where the failure to pay any such amount could give rise to a claim pursuant to
any law, statute, regulation or otherwise, which ranks or is capable of ranking
in priority to the Bank's security or otherwise in priority to any claim by the
Bank for repayment of any amounts owing under this agreement;
"RBP" and "ROYAL BANK PRIME" each means the annual rate of interest announced by
the Bank from time to time as being a reference rate then in effect for
determining interest rates on commercial loans made in Canadian currency in
Canada;
"RBUSBR" and "ROYAL BANK US BASE RATE" each means the annual rate of interest
announced by the Bank from time to time as a reference rate then in effect for
determining interest rates on commercial loans made in US currency in Canada;
"RELEASE" includes discharge, spray, inject, inoculate, abandon, deposit, spill,
leak, seep, pour, emit, empty, throw, dump, place and exhaust, and when used as
a noun has a similar meaning;
"US" means United States of America.
Schedule "B" to the agreement dated April 23, 2004, between ASPREVA
PHARMACEUTICALS CORPORATION, as Borrower, and Royal Bank of Canada, as the Bank.
NOTICE REQUIREMENTS
AMOUNT PRIOR NOTICE
Under $10,000,000, Canadian or US By 10:00 a.m. on the day of Borrowing
currency
Schedule "C" to the agreement dated April 23, 2004, between ASPREVA
PHARMACEUTICALS CORPORATION, as Borrower, and Royal Bank of Canada, as the Bank.
BORROWING CONDITIONS
Borrowings made otherwise than by way of RBP Loans or RBUSBR Loans will be
subject to the following terms and conditions:
LCs or LGs:
(a) each LC and LG shall expire on a Business Day and shall have a term
of not more than 365 days;
(b) at least 2 Business Days prior to the issue of an LC or LG, the
Borrower shall execute a duly authorized application with respect to
such LC or LG and each LC and LG shall be governed by the terms and
conditions of the relevant application for such contract;
(c) an LC or LG may not be revoked prior to its expiry date unless the
consent of the beneficiary of the LC or LG has been obtained; and
(d) if there is any inconsistency at any time between the terms of this
agreement and the terms of the application for LC or LG, the terms
of the application for LC or LG shall govern.
FEF CONTRACTS SCHEDULE TO THE AGREEMENT DATED APRIL 23, 2004, BETWEEN ASPREVA
PHARMACEUTICALS CORPORATION, AS BORROWER, AND ROYAL BANK OF CANADA, AS THE BANK
FEF Contract Definitions
"FOREIGN EXCHANGE FORWARD CONTRACT" or "FEF CONTRACT" means a currency exchange
transaction or agreement or any option with respect to any such transaction now
existing or hereafter entered into between the Borrower and the Bank,
Conditions Applicable to FEF Contracts
At the Borrower's request, the Bank may agree to enter into FEF Contracts with
the Borrower from time to time. The Borrower acknowledges that the Bank makes no
formal commitment herein to enter into any FEF Contract and the Bank may, at any
time and at all times, in its sole and absolute discretion, accept or reject any
request by the Borrower to enter into a FEF Contract. If the Bank does enter
into a FEF Contract with the Borrower, it will do so subject to the following:
(a) the Borrower shall promptly issue or countersign and return a
confirmation or acknowledgement of the terms of each such FEF
Contract as required by the Bank,
(b) the Borrower shall, if required by the Bank, promptly enter into a
Foreign Exchange and Options Master Agreement or such other
agreement in form and substance satisfactory to the Bank to govern
the FEF Contract(s);
(c) in the event of demand for payment under the agreement of which this
schedule forms a part, the Bank may terminate all or any FEF
Contracts. If the agreement governing any FEF Contract does not
contain provisions governing termination, any such termination shall
be effected in accordance with customary market practice. The Bank's
determination of amounts owing under any terminated FEF Contract
shall be conclusive in the absence of manifest error. The Bank shall
apply any amount owing by the Bank to the Borrower on termination of
any FEF Contract against the Borrower's obligations to the Bank
under the agreement and any amount owing to the Bank by the Borrower
on such termination shall be added to the Borrower's obligations to
the Bank under the agreement and secured by the Bank's security;
(d) the Borrower shall pay all required fees in connection with any FEF
Contracts and indemnify and hold the Bank harmless against any loss,
cost or expense incurred by the Bank in relation to any FEF
Contract;
(e) any rights of the Bank herein in respect of any FEF Contract are in
addition to and not in limitation of or substitution for any rights
of the Bank under any agreement governing such FEF Contract. In the
event that there is any inconsistency at any
time between the terms hereof and any agreement governing such FEF
Contract, the terms of such agreement shall prevail; and
(f) in addition to any security which may be held at any time in respect
of any FEF Contract, upon request by the Bank from time to time, the
Borrower will deliver to the Bank such security as is acceptable to
the Bank as continuing collateral security for the Borrower's
obligations to the Bank in respect of FEF Contracts.