Exhibit 4.5
THIRD AMENDMENT DATED 19 FEBRUARY 1999
TO
FACILITIES AGREEMENT DATED 30 OCTOBER 1997
THIS THIRD AMENDMENT (this "Amendment") is dated . February 1999 and
entered into by and among:
(1) CHIREX (HOLDINGS) LIMITED, a limited company organised under the laws
of England with registered number 3080257 with its registered office
at Dudley, Cramlington, Northumberland NE23 7QG (the "Borrower")
(2) BANKERS TRUST INTERNATIONAL PLC and MIDLAND BANK PLC, as Joint
Arrangers ("Joint Arrangers")
(3) BANKERS TRUST COMPANY, as Agent ("Agent")
(4) BANKERS TRUST COMPANY, as Security Agent ("Security Agent")
(5) the Lenders referred to in the Facilities Agreement, as defined below
(the "Lenders"); and
(6) for purposes of Section 5 hereof, CHIREX INC., a corporation organised
under the laws of the State of Delaware with its principal office at
300 Atlantic Street, Suite 402, Stamford, CT 06901, U.S.A., CHIREX
(DUDLEY) LIMITED, a limited company organised under the laws of
England with registered number 857670 with its registered office at
Dudley, Cramington, Northumberland NE23 7QG, CHIREX (ANNAN) LIMITED, a
limited company organised under the laws of England with registered
number 3417229 with its registered office at Dudley, Cramlington,
Northumberland NE23 7QG, CHIREX TECHNOLOGY CENTER INC, a corporation
organised under the laws of the State of Delaware with its principal
office at 300 Atlantic Street, Suite 402, Stamford, CT06901, U.S.A.,
CHIREX AMERICA INC, a corporation organised under the laws of the
State of Delaware with its principal office at 300 Atlantic Street,
Suite 402, Stamford, CT06901, U.S.A. each as Guarantors
("Guarantors").
RECITALS
WHEREAS, the parties listed above, among others, are parties to that
certain GBP 62,000,000 Facilities Agreement dated 30th October 1997 as
amended by the First Amendment dated 30th July, 1998 and by the Second
Amendment dated 16 November 1998 (as such facilities Agreement may be
amended, novated
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or supplemented from time to time, the "Facilities Agreement").
Capitalised terms used in this Amendment without definition shall have the
same meanings herein as set forth in the Facilities Agreement;
WHEREAS, the Borrower has requested that the Lenders amend certain
provisions of the Facilities Agreement;
NOW THEREFORE, in consideration of the premises and the agreements,
provisions and covenants contained herein and the receipt of #1, the
adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
1 AMENDMENT
1.1 Clause 13.4.1 (a) of the Facilities Agreement is hereby amended by
deleting the clause in its entirety and substituting the following
therefor:
(a) Maximum Total Debt/EBITDA Ratio
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ChiRex Inc. shall maintain, as of the end of each Accounting Quarter
to occur during the periods shown below a Total Debt/EBITDA Ratio of
not more than the maximum Total/Debt/EBITDA Ratio shown below:
- --------------------------------------------------------------------------
Period Maximum Total
Debt/EBITDA Ratio
==========================================================================
1 April 1998 to 30 June 1998 4.75:1
- -----------------------------------------------------------------------
1 July 1998 to 30 September 1998 4.75:1
- -----------------------------------------------------------------------
1 October 1998 to 31 December 1998 4.0:1
- -----------------------------------------------------------------------
1 January 1999 to 31 March 1999 2.87:1
- -----------------------------------------------------------------------
Thereafter 2.5:1
- -----------------------------------------------------------------------
2 REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Guarantors hereby represents and warrants to
the Agent and the Lenders that:
2.1 as of the date hereof, assuming that the amendments contained herein have
been effected there exists no Event of Default or Potential Event of
Default under the Facilities Agreement, and after giving effect to this
Amendment, there will exist no Event of Default or Potential Event of
Default under the Facilities Agreement;
2.2 all representations and warranties contained in the Facilities Agreement
and the other Finance Documents are true, correct and complete in all
material respects on and as of the date hereof except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they were true, correct and complete in all material respects
on and as of such earlier date;
2.3 as of the date hereof, the Borrower has performed all agreements to be
performed on its part as set forth in the Facilities Agreement;
2.4 it is duly organised and validly existing under the laws of the
jurisdiction of its organisation, and has all necessary power and
authority to execute and deliver this Amendment and to consummate the
transactions contemplated hereby;
2.5 neither the execution and delivery of this Amendment, nor the
consummation of the transactions contemplated hereby, violates (i) any
law, regulation, decree or other legal restriction applicable to it, (ii)
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its charter, by-laws or other constitutional documents or (iii) any
instrument or agreement to which it or any of its assets is subject or by
which it is bound;
2.6 there is no legal requirement of any governmental authority (including
any requirement to make any declaration, filing or registration or to
obtain any consent, approval, license or order) which is necessary to be
met by it in connection with its execution, delivery or performance of
this Amendment; and
2.7 this Amendment has been duly authorised, executed and delivered on its
behalf and this Amendment, the Facilities Agreement, as amended by this
Amendment, and the other Finance Documents to which it is a party
constitute its legal, valid and binding obligation, enforceable against it
in accordance with their terms, except as limited by the Reservations.
3 COUNTERPARTS; EFFECTIVENESS
3.1 This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are
physically attached to the same document.
3.2 This Amendment shall become effective on the date (the "Third
Amendment Effective Date") when the conditions have been satisfied that
(i) each of the Borrower, the Guarantors, the Agent, the Security Agent
and the Lenders shall have signed a counterpart hereof (whether the same
or different counterparts) and shall have delivered (including by way of
facsimile transmission) the same to the Agent, (ii) the Borrower shall
have delivered to the Agent favourable opinions of Cravath, Swaine &
Moore, U.S. legal advisers to the ChiRex Group, and Dibb Lupton Alsop,
English legal advisers to the ChiRex Group, in each case addressed to the
Agent and the Lenders, dated the effective date of this Amendment and in
form and substance satisfactory to the Agent.
3.3 On and after the Third Amendment Effective Date, each reference in the
Facilities Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Facilities Agreement, and each
reference in the other Finance Documents to the "Facilities Agreement",
"thereunder", "thereof" or words of like import referring to the
Facilities Agreement shall mean and be a reference to the Facilities
Agreement as amended by the First Amendment Agreement, the Second
Amendment Agreement and by this Amendment.
3.4 This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the
Facilities Agreement, any provision of any other Finance Document or any
right, power or remedy of the Agent or any Lender under the Facilities
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
3.5 Clause headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for
any other purposes or be given any substantive effect.
4 GOVERNING LAW; JURISDICTION
4.1 This Amendment and the rights and obligations of the parties hereunder
shall be governed by, and shall be construed and enforced in accordance
with, the laws of England.
4.2 Each Guarantor and Borrower hereby ratifies and confirms the
application of the provisions of Clause 30 of the Facilities Agreement to
this Amendment.
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5 ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS
Each of the Guarantors hereby acknowledges that it has read this Amendment
and consents to the terms thereof and further hereby confirms and agrees
that, notwithstanding the effectiveness of this Amendment, the obligations
of such Guarantor under its respective Guarantee shall not be impaired or
affected and such Guarantee is, and shall continue to be, in full force
and effect and is hereby confirmed and ratified in all respects.
6 WAIVER
6.1 Permanent Waiver
Subject to the other terms and conditions set forth herein and in reliance
on the representations and warranties of the Borrower herein contained,
Lenders hereby waive, with effect solely from the Third Amendment
Effective Date and in perpetuity thereafter, any Event of Default under
Clause 14.1.2 of the Facilities Agreement to the extent, and only the
extent, resulting from (a) ChiRex Inc.'s failure to procure that the
Capital Expenditures of the ChiRex Group for the Accounting Reference
Period ending on 31st December 1998 did not exceed the agreed limit and
(b) the breach of Clause 13.2.11 of the Facilities Agreement caused by
ChiRex Dudley Limited entering into a finance lease with United Dominion
Leasings Limited on 22 January 1999 in relation to which the maximum
aggregate liability on termination of such lease exceeded the limit of GBP
1,000,000 (or its equivalent) provided for in the definition of Permitted
Indebtedness in the Facilities Agreement.
6.2 Limitation Of Waiver
Without limiting the generality of the provisions of Clauses 22 or 26 of
the Facilities Agreement, the waiver set forth above and the waiver in
Clause 10.1 below shall be limited precisely as written, and nothing in
this Clause 6 or Clause 10.1 shall be deemed to:
6.2.1 constitute a waiver of any other term, provision or condition of
the Facilities Agreement or any other instrument or agreement
referred to therein or otherwise; or
6.2.2 prejudice any right or remedy that Agent or any Lender may now have
or may have in the future under or in connection with the
Facilities Agreement or any other instrument or agreement referred
to therein.
Except as expressly set forth therein, the terms, provisions and
conditions of the Facilities Agreement and the other Finance
Documents shall remain in full force and effect and in all other
respects are hereby ratified and confirmed.
6.3 Finance Party Expenses; Certain Agency Matters
6.3.1 Without limitation to Clauses 11 (Fees, Expenses and Stamp Duties)
and 27 (Indemnities) of the Facilities Agreement but without
duplication, the Borrower hereby agrees that it will on demand pay
and reimburse, on the basis of a full indemnity, all reasonable
costs and expenses (including reasonable accounting, legal and
engineering consultancy fees and expenses, recordation fees and
other out-of-pocket expenses, including for the avoidance of doubt
the reasonable professional fees of Ernst & Young and Linklaters &
Paines, and any VAT or other similar Tax on any of the foregoing)
incurred by the Agent, the Security Agent or NatWest in connection
with:-
(a) this Amendment and any subsequent variation, recordation,
amendment, supplement, restatement, waiver, consent or suspension
of rights (or any proposal for any of the same or negotiations in
connection with the same) relating to any of the Finance Documents
(and documents, matters or things referred to therein); and
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(b) the investigation of the prospects, financial condition, business,
assets and/or revenues of the Borrower, its subsidiaries and its
affiliates.
6.3.2 Each Lender reaffirms the appointment of NatWest to act as its
representative in assisting the Agent and otherwise in
investigating the prospects, financial condition, business, assets
and revenues of the Borrower, its subsidiaries and its affiliates,
and agrees that NatWest shall be entitled in such capacity to the
benefits of Clause 16 (including without limitation the indemnities
therein and exculpatory provisions thereof) of the Facilities
Agreement as if references to the Agent therein were also to
NatWest, mutatis mutandis.
7 FEES
In consideration of the amendments to the Facilities Agreement made
pursuant to Clause 1 above and the waiver and modification agreed by the
Lenders pursuant to Clause 6.1 above and Clause 10.1 below, the Borrower
agrees to pay to the Agent for the account of each Lender, the following
(together the "Third Amendment Fees"):
7.1 an amendment fee of #186,000, such payment to be due on the Third
Amendment Effective Date but payment to be deferred until 30 June 1999.
Notwithstanding the above, the Borrower hereby confirms that the Fees
Letter from the Agent to the Borrower dated 23 October, 1998 (the "Waiver
Fees Letter"), remains in full force and effect, except that for the
purposes of the Waiver Fees Letter and from the Third Amendment Effective
Date, the references to
(i) "Limited Waiver" therein shall also refer to this Amendment and
(ii) the Facility Agreement dated 30 October 1997 as amended by the
First Amendment dated 30 July 1998 and the Second Amendment
dated 17 November 1998 shall refer to the Facilities Agreement
as further amended by this Amendment.
8 UNDERTAKINGS
8.1 The Borrower undertakes to pay any sums due or owing or incurred
pursuant to this agreement, including but not limited to those sums
becoming due under Clauses 6.3 and 7 above, on the due date for payment.
8.2 Any failure by the Borrower to fulfil its undertakings under this
Clause and Clause 10 in full and at or by the times indicated shall
constitute an Event of Default.
9 AGENTS APPLICATION OF FEES
If any fees are paid to the Agent by the Borrower in accordance with
Clause 7 above, the Agent agrees to pay such sums as are for the account
of each Lender to that Lender within 2 business days of receipt by the
Agent of such fees.
10 SECURITY ISSUES
10.1 Clause 10.2 of the Second Amendment provided that each of the
Borrowers and the Guarantors would procure that (unless they were able to
satisfy the Agent and NatWest acting reasonably on the instructions of the
Majority Lenders that there were valid legal and or commercial reasons for
not doing so) within 21 days of the Second Amendment Effective Date ChiRex
America Inc would provide security in respect of any Intellectual Property
owned by it, in form and substance acceptable to the Security Agent and
NatWest. The Agent and NatWest (acting on the instructions of the Majority
Lenders) have satisfied
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themselves that there are valid legal and or commercial reasons for not
taking such security and ChiRex Inc has offered to provide the security
referred to in Clause 10.2 of this Third Amendment instead. The Lenders
therefore hereby waive with effect solely from the Second Amendment
Effective Date and in perpetuity thereafter, any Event of Default arising
as a result of the failure by ChiRex America Inc to provide security over
Intellectual Property owned by it pursuant to Clause 10.2 of the Second
Amendment.
10.2 Each of the Borrower and the Guarantors undertake that, within such
time period as the Agent and NatWest may reasonably specify by notice in
writing be to served on or after the Third Amendment Effective Date, they
will procure that ChiRex Inc will provide security in respect of the
"ChiRex" trademark owned by it in form and substance acceptable to the
Security Agent and NatWest.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorised as of the date first written above.
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CHIREX (HOLDINGS) LIMITED, in its capacity as the Borrower
By: (s)
Print Name:
Title:
CHIREX INC., in its capacity as a Guarantor
By: (s)
Print Name:
Title:
CHIREX (DUDLEY) LIMITED, in its capacity as a Guarantor
By: (s)
Print Name:
Title:
CHIREX (ANNAN) LIMITED, in its capacity as a Guarantor
By: (s)
Print Name:
Title:
CHIREX AMERICA INC., in its capacity as a Guarantor
By: (s)
Print Name:
Title:
CHIREX TECHNOLOGY CENTER INC., in its capacity as a Guarantor
By: (s)
Print Name:
Title:
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BANKERS TRUST INTERNATIONAL PLC, in its capacity as a Joint Arranger
By: (s)
Print Name:
Title:
MIDLAND BANK PLC, in its capacity as a Joint Arranger and a Lender
By: (s)
Print Name:
Title:
BANKERS TRUST COMPANY, in its capacities as a Lender, Agent and Security
Agent
By: (s)
Print Name:
Title:
THE GOVERNOR AND COMPANY OF
BANK OF IRELAND, in its capacity as a Lender
By: (s)
Print Name:
Title:
BANQUE ET CAISSE D'EPARGNE DE L'ETAT, in its capacity as a Lender
By: (s)
Print Name:
Title:
By: (s)
Print Name:
Title:
DE NATIONALE INVESTERINGSBANK N.V., in its capacity as a Lender
By: (s)
Print Name:
Title:
IKB DEUTSCHE INDUSTRIEBANK AG, in its capacity as a Lender
By: (s)
Print Name:
Title:
By: (s)
Print Name:
Title:
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By: (s)
Print Name:
Title:
AIB CAPITAL MARKETS PLC, in its capacity as a Lender
By: (s)
Print Name:
Title:
MITSUBISHI TRUST & BANKING CORPORATION, in its capacity as a Lender
By: (s)
Print Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, in its capacity as a
Lender
By: (s)
Print Name:
Title:
By: (s)
Print Name:
Title:
NATIONAL WESTMINSTER BANK PLC, in its capacity as a Lender
By: (s)
Print Name:
Title:
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