Exhibit 99
CONFORMED COPY
FOURTH AMENDMENT DATED 14 MAY 1999
TO
FACILITIES AGREEMENT DATED 30 OCTOBER 1997
THIS FOURTH AMENDMENT (this "Amendment") is dated 14 May 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, Cramlington,
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 and by the Third Amendment dated 19 February 1999 (as such facilities
Agreement may be amended, novated 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 prepaid all of the Advances currently outstanding
under the Tranche B Multicurrency Revolving Facility and intends to reschedule
repayment of the Advances under the Tranche A Term Facility.
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 (Pound)1, the
adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
1 ACKNOWLEDGEMENT OF PAYMENT
The Agent acknowledges receipt of the sum of (Pounds)4,444,444.44 paid on
31 March 1999 which has been applied against the Amortisation due on 31
December 1998 as deferred by clause 6.1.4 of the Second Amendment
Agreement.
2 AMENDMENT/AGREEMENT
2.1 Clause 1.1. of the Facilities Agreement is hereby amended by:
2.1.1 deleting in its entirety the existing definition of "Margin"
including the provisos added by the First Amendment Agreement and
the Second Amendment Agreement and substituting the following
therefor with effect from the Fourth Amendment Effective Date:
"Margin" means 1.00% for the period commencing on the Fourth
Amendment Effective Date and ending on 30 September 1999 and
thereafter 0.75% upon ChiRex Inc. (on a consolidated basis)
achieving a level of Total Debt/EBITDA Ratio equal to or less
than 1.5:1 (and only for such time as such level continues to be
achieved), tested as at the last day of the immediately preceding
Accounting Quarter and calculated as provided in Clause 13.4
provided that:
(i) there shall be no decrease in the Margin if there has
occurred an Event of Default or a Potential Event of
Default which is continuing and the Margin shall remain at
or increase to 1.00% until such time as such Event of
Default or Potential Event of Default is no longer
continuing, whereupon the Margin shall be determined as
aforesaid;
(ii) any reduction or increase in the Margin shall take effect
as from the date of receipt by the Agent of the relevant
accounts in accordance with Clause 13.3.4 (on the basis
that in the case of a reduction or increase taking effect
during an Interest Period the interest payable on the
Interest Payment Date will reflect such reduction or
increase on a time apportioned basis);
(iii) if at any time the Tranche A Facility is classified by the
Auditors as a current or short term liability for the
purposes of the accounting standards applicable to ChiRex
Inc. then the Margin shall be 1.5% from the date of such
classification until the earlier of the Final Repayment
Date or the date upon which such classification ceases.
2.1.2 replacing the reference to 31 December 2002 in the definition of
"Final Repayment Date" with a reference to 1 January 2001.
2.2 clause 6.2.4 of the Facilities Agreement is hereby amended by deleting the
clause in its entirety and substituting the following therefor:
Subject to the terms of this Agreement on 1st January 2001 the
Borrower shall repay all remaining outstanding Tranche B Multicurrency
Revolving Advances.
2.3 Schedule 2 of the Facilities Agreement is hereby amended by deleting the
schedule in its entirety and substituting the following therefor:
Repayment Schedule
Repayment Date Scheduled Repayment of Term Loans
GBP
31 March 1999 4,444,444.44
the next rollover date which will be
within 10 business days of the Fourth 8,888,888.88
Amendment Effective Date
31 December 1999 4,500,000.00
30 June 2000 4,500,000.00
1 January 2001 17,666,666.68
2.4 Clause 6.1.3 of the Second Amendment Agreement is hereby amended by
replacing the reference to 31 December 1999 as the end date of the
Monitoring Period with a reference to 31 December 2000, and by altering the
obligation to deliver consolidated monthly management accounts from not
later than the 21st day of the following month to not later than the 30th
day of the following month.
2.5 NatWest and the Agent, acting on the instructions of the Majority Lenders
hereby agree that the Payment by the Borrower on 31 March 1999 and the
alteration of the Facilities Agreement is an effective restructuring of the
Facilities on terms acceptable to NatWest and the Agent within the
provisions of Clause 9.3.1 of the Second Amendment Agreement thus it is
hereby confirmed for the avoidance of doubt that the provisions of Clause
9.4 of the Second Amendment Agreement are no longer effective and the
Borrower is under no obligation to make the two payments of Pounds 250,000
which otherwise would become due and payable on 30 September 1999 and 31
December 1999 respectively.
3 REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Guarantors hereby represents and warrants to
the Agent and the Lenders that:
3.1 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;
3.2 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;
3.3 as of the date hereof, the Borrower has performed all agreements to be
performed on its part as set forth in the Facilities Agreement;
3.4 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;
3.5 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) 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;
3.6 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
3.7 this Amendment has been duly authorised, executed and delivered on its
behalf and this Amendment, the Facilities Agreement, as amended by this
Agreement, 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.
4 COUNTERPARTS; EFFECTIVENESS
4.1 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.
4.2 This Amendment shall become effective on the date (the "Fourth 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.
4.3 On and after the Fourth Amendment Effective Date, each reference in the
Facilities Agreement to "this Agreement", hereunder","hereof", "herein" or
words of like important 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
the Third Amendment Agreement and by this Amendment.
4.4 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.
4.5 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.
5 GOVERNING LAW; JURISDICTION
5.1 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.
5.2 Each Guarantor and Borrower hereby ratifies and confirms the application of
the provisions of Clause 30 of the Facilities Agreement to this Amendment.
6 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.
7 WAIVER
7.1 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 Fourth
Amendment Effective Date and in perpetuity thereafter, any breach of
the Facilities Agreement to the extent, and only to the extent,
resulting from the Borrowers failure to provide the Agent with ten
Business Days Notice of the proposed date and the amount of the sum
paid on 31 March 1999.
7.2 Limitation Of Waiver
Without limiting the generality of the provisions of Clauses 22 or 26
of the Facilities Agreement, the waiver set forth above shall be
limited precisely as written, and nothing in this Clause 7 shall be
deemed to:
7.2.1 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
7.2.2 prejudice any right or remedy that the 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.
7.3 Finance Party Expenses; Certain Agency Matters
7.3.1 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
and legal expenses, recordation fees and other out-of-pocket
expenses, including for the avoidance of doubt the reasonable
professional fees of Linklaters & Paines, and any VAT or
similar Tax on any of the foregoing) incurred by the Agent, the
Security Agent or NatWest in connection with 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 in
connection with the security to be given by ChiRex Inc in
respect of the "ChiRex" trademark owned by it pursuant to the
Third Amendment.
7.3.2 In addition to but without prejudice to the generality of
Clause 7.3.1 the Borrower hereby agrees that it will within 5
working days of the Fourth Amendment Effective Date;
(a) pay to Ernst & Young the sum of (Pounds) 50,865.96 in
satisfaction of their invoice rendered in respect of their fees
incurred since November 1998 up until the Fourth Amendment
Effective Date; and
(b) pay to Linklaters & Paines the sum of (Pounds) 20,064.16 in
satisfaction of their invoice dated 12 April 1999 which relates
to work carried out by them from December 1998 until 19
February 1999
7.3.3 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.
8 FEES
In consideration of the amendments to the Facilities Agreement made
pursuant to Clause 2 above and the waiver agreed by the Lenders
pursuant to Clause 7.1 above the Borrower agrees to pay to the Agent
for the account of each Lender the outstanding amendment fees and
monitoring fees payable under clauses 8.1 and 8.2 of the Second
Amendment Agreement and clause 7.1 of the Third Amendment (totalling
(Pound)1,116,000 at the date of this Amendment) in full within not more
than 10 Business Days of the Fourth Amendment Effective Date.
8.2 The Borrower also agrees to pay NatWest further monthly monitoring and lead
bank fees of (Pound)5,000:
Such fees shall become due on the first day of each month from 1 July 1999
to 1 December 2000 and shall be paid not later than the end of each such
month.
8.3 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 Fourth 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 and the Third Amendment dated 19 February 1999
shall refer to the Facilities Agreement as further amended by
this Amendment.
9 UNDERTAKINGS
9.1 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 1, 7.3 and 8 above, on the date for payment.
9.2 Any failure by the Borrower to fulfil its undertakings under this Clause in
full and at or by the times indicated shall constitute an Event of Default.
10 AGENTS APPLICATION OF FEES
If any fees are paid to the Agent or NatWest by the Borrower in accordance
with Clause 8 above, each of the Agent and NatWest agree 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.
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.
CHIREX (HOLDINGS) LIMITED, in its capacity as the Borrower
By: (s)
Print Name: Jon E Tropsa
Title: Director
CHIREX INC., in its capacity as a Guarantor
By: (s)
Print Name: Jon E Tropsa
Title: Director
CHIREX (DUDLEY) LIMITED, in its capacity as a Guarantor
By: (s)
Print Name Jon E Tropsa
Title: Director
CHIREX (ANNAN) LIMITED, in its capacity as a Guarantor
By: (s)
Print Name Jon E Tropsa
Title: Director
CHIREX AMERICA INC., in its capacity as a Guarantor
By: (s)
Print Name Jon E Tropsa
Title: Director
CHIREX TECHNOLOGY CENTER INC., in its capacity as a Guarantor
By: (s)
Print Name Jon E Tropsa
Title: Director
BANKERS TRUST INTERNATIONAL PLC. in its capacity as a Joint Arranger
By: (s)
Print Name: Stephen O'Neil
Title: Director
MIDLAND BANK PLC, in its capacity as a Joint Arranger and a Lender
By: (s)
Print Name: Paul Thompson
Title: Senior Manager
BANKERS TRUST COMPANY, in its capacities as a Lender, Agent and Security
By: (s)
Print Name: Stephen O'Neil
Title: Director
THE GOVERNOR AND COMPANY OF
BANK OF IRELAND, in its capacity as a Lender
By: (s)
Print Name: Brendan McLoughlin/David Walsh
Title: Manager/Senior Manager
BANQUE ET CAISSE D'EPARGNE DE L'ETAT, in its capacity as a Lender
By: (s)
Print Name: Jean-Pierre Thein
Title: Consellier de Direction adjoint
By:(s)
Print Name: John Dhur
Title: Sous-Director
DE NATIONALE INVESTERINGSBANK N.V., in its capacity as a Lender
By:(s)
Print Name: Gerard Burgers/Tim Crossley
Title: Head of Acquisition Finance/Senior Manager
IKB DEUTSCHE INDUSTRIEBANK AG, in its capacity as a Lender
By:(s)
Print Name: Manfred Ziwey
Title: Director
By:(s)
Print Name: Edwin Brecht
Title: Executive Director
By:(s)
Print Name:
Title:
AIB CAPITAL MARKETS PLC, in its capacity as a Lender
By:(s)
Print Name: Barry Pitcher
Title: Director, Special Finance Unit
MITSUBISHI TRUST & BANKING CORPORATION, in its capacity as a Lender
By:(s)
Print Name: Sheila Lambert
Title: Chief Manager - Head of Credit
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, in its capacity as a
Lender
By: (s)
Print Name: A de Gromard
Title: Senior Manager
By: (s)
Print Name: T D Prestwich
Title: Relationship Manager
NATIONAL WESTMINSTER BANK PLC, in its capacity as a Lender
By: (s)
Print Name: NT Smith
Title: Senior Manager