EXHIBIT 4.5
THIS FOURTH SUPPLEMENTAL AGREEMENT is dated 17th January, 2003 between:
(1) DUNLOP STANDARD AEROSPACE GROUP LIMITED (registered no. 3573726) an
English company with its registered office at Xxxxxxxx Xxxx,
Xxxxxxxx, XX0 0XX (the "Company");
(2) THE OBLIGORS listed in Schedule 1;
(3) MIZUHO CORPORATE BANK, LTD. as arranger of the Facilities (in this
capacity the "Arranger");
(4) MIZUHO CORPORATE BANK, LTD. as agent for the Lenders set out in
Schedule 2 (in this capacity the "Facility Agent");
(5) MIZUHO CORPORATE BANK, LTD. as security agent and trustee for the
Lenders (in this capacity the "Security Agent"); and
(6) MIZUHO CORPORATE BANK, LTD. as syndication manager (in this capacity
the "Syndication Agent").
WHEREAS:
(A) This Fourth Supplemental Agreement is supplemental to a credit
agreement dated 31st July, 1998 (as supplemented and amended by a
Supplemental Credit Agreement dated 28th September, 1998, a Second
Supplemental Agreement dated 7th May, 1999 and a Third Supplemental
Agreement dated 15th February, 2002, the "Original Credit Agreement")
made between, inter alios, the Parent, the Arranger, the Original
Lenders and The Fuji Bank, Limited as Facility Agent and Security
Agent pursuant to which the Lenders agreed to make available to the
Borrowers certain term loan facilities, capital expenditure
facilities and revolving credit facilities.
(B) The Company has requested certain amendments to the Senior Finance
Documents.
(C) The parties to this Fourth Supplemental Agreement have agreed to
supplement and amend the Original Credit Agreement on the terms set
out below.
IT IS AGREED as follows:
1. Interpretation
(a) Capitalised terms not otherwise defined in this Fourth Supplemental
Agreement have the meanings given to them in the Original Credit
Agreement, unless the context otherwise requires.
(b) Terms defined in the Recitals hereto have the same meaning when used
in this Fourth Supplemental Agreement.
(c) Clause 1.2 of the Original Credit Agreement is deemed to be set out
in full in this Fourth Supplemental Agreement but as if references to
the Original Credit Agreement are references to this Fourth
Supplemental Agreement.
2. Amendments to the Original Credit Agreement
(a) The parties to this Fourth Supplemental Agreement hereby agree for
themselves and for their successors, transferees and assignees
pursuant to the Original Credit Agreement that, subject to paragraph
(b) below, upon the Facility Agent confirming to the Company its
satisfaction of the conditions set out in Schedule 3 hereto, the
Original Credit Agreement shall be supplemented and amended by this
Fourth Supplemental Agreement as follows:
(i) Clause 8.5(b) (Tranche E Facility) of the Original Credit
Agreement shall be deleted and replaced by:
"(b) The Tranche E Repayment Instalments shall be
applied first in repayment of all Tranche E
Advances (other than a Tranche E Advance made to a
Borrower resident in Canada) pro rata until such
Tranche E Advances are repaid or prepaid in full,
second in repayment of all Tranche E Advances made
to Borrowers resident in Canada pro rata until such
Tranche E Advances are repaid or prepaid in full,
third in prepayment of all Tranche E Utilisations
made by way of Documentary Credit (other than a
Tranche E Utilisation made by way of a Documentary
Credit on account of a Borrower resident in Canada)
pro rata until such Tranche E Utilisations are
repaid or prepaid in full and fourth in repayment
of all Tranche E Utilisations made by way of
Documentary Credit on account of Borrowers resident
in Canada pro rata until such Tranche E
Utilisations are repaid or prepaid in full."
(ii) Clause 22.1 (Definitions) of the Original Credit Agreement
shall be amended such that in Subclause 22.1(a):
(A) in the definition of "Consolidated Cash Flow" in
sub-paragraph (xi) the word "plus" shall be
deleted, and in its place shall be inserted the
word, "minus";
(B) the "and" at the end of paragraph (v) of the
definition of "Consolidated EBIT" shall be deleted,
and a new paragraph (vi) will be added to that
Clause as follows:
"after adding back any costs (in a maximum amount
not exceeding (pound)3,500,000) incurred and
defrayed during the annual Accounting Period ending
on or about 31st December, 2002, in connection with
any proposed initial public offer by the Company;
and",
and the existing paragraph "(vi)" will become paragraph
"(vii)";
(C) paragraph (ii) of the definition of "Restructuring
Costs" shall be amended:
(1) by the addition of the words "or, in
respect of the annual Accounting Period
ending on or about 31st December, 2002,
(pound)600,000" after the words "not
exceeding (pound)250,000";
(2) the words, "in each case" shall be added
after the word "(or" the first time it
appears; and
(3) the amount "(pound)1,000,000" shall be
deleted and replaced by the amount
"(pound)1,350,000".
(iii) Clause 1.1 (Definitions) of the Original Credit Agreement shall
be amended such that:
(A) the definition of "Capital Expenditure" shall be
amended such that the words, ": (a) subject to
paragraph (b) below," shall be added after the
words "Capital Expenditure means" and, the "." at
the end of that definition shall be deleted and in
its place shall be inserted the following: "; (b)
for the purposes of this definition, any
expenditure constituted by Recoverable A380
Investment Costs made in the period 31st December,
2002 to 31st December, 2005 in an aggregate amount
not exceeding (pound)5,200,000 and which is
accounted for as prepaid expenses or debtors in the
audited consolidated Accounts of the Group in
accordance with Applicable Accounting Principles
shall be excluded"; and
(B) the following new definition shall be added:
""Recoverable A380 Investment Costs" means the
investment costs incurred by the Company in
relation to the development of the A380 and which
are certified by the Company to the Banks prior to
their incurrence as recoverable by the Company from
Airbus Industrie".
(b) The amendments to the Original Credit Agreement set out in this
Clause 2 shall not come into effect and shall be automatically
cancelled or revoked unless the Facility Agent has confirmed to the
Company and the Lenders that all the conditions set out in Schedule 3
have been satisfied before close of business in London on 31st
January, 2003.
3. Representations and Warranties
Each Obligor represents and warrants to the Agents and each Lender
that on the date hereof and on the date on which the Original Credit
Agreement is amended as set out in Clause 2:
(a) Powers and authority: It has the power to enter into and has
taken all necessary action to authorise the entry into and
delivery of, this Fourth Supplemental Agreement and the
transactions contemplated by this Fourth Supplemental
Agreement (including, without limitation, under the Original
Credit Agreement as supplemented and amended by this Fourth
Supplemental Agreement).
(b) Legal Validity: Subject to the Reservations, this Fourth
Supplemental Agreement constitutes, and the Original Credit
Agreement when supplemented and amended by this Fourth
Supplemental Agreement will constitute, its legal, valid and
binding obligation.
(c) Non-conflict: The entry into and performance by it of, and
the transactions contemplated by, this Fourth Supplemental
Agreement and the Original Credit Agreement (as supplemented
and amended by this Fourth Supplemental Agreement) do not
and will not:
(i) conflict in any material respect with any law or
regulation or any official or judicial order
applicable to it; or
(ii) conflict with its constitutional documents; or
(iii) conflict in any respect with, or entitle any third
party to terminate, any agreement or document which
is binding upon it, any other member of the Group
or any asset of any member of the Group in a manner
or to an extent which might have a Material Adverse
Effect or would be reasonably likely to have a
Material Adverse Effect on the business assets or
financial condition of the Company, any Borrower or
any Material Group Subsidiary or in a manner or to
an extent which could result in any liability on
the part of any Finance Party to any third party.
(d) Authorisations:
(i) All authorisations required by any Obligor in connection with the
entry into, performance, validity and enforceability of, and the
transactions contemplated by this Fourth Supplemental Agreement
(including, without limitation, under the Original Credit Agreement)
have been obtained or effected (as appropriate) and are in full force
and effect.
(ii) The Obligors' Agent has been duly authorised by each of the other
Obligors to execute this Fourth Supplemental Agreement on their
behalf.
4. Incorporation
(a) This Fourth Supplemental Agreement is a Senior Finance Document for
the purposes of the Original Credit Agreement and the other Senior
Finance Documents.
(b) This Fourth Supplemental Agreement shall, from the date of this
Fourth Supplemental Agreement, be deemed to be incorporated as part
of the Original Credit Agreement.
(c) Except as otherwise expressly provided in this Fourth Supplemental
Agreement, the Senior Finance Documents remain in full force and
effect.
5. Guarantees and Security
Each Guarantor consents to the amendments to the Original Credit
Agreement as set out in Clause 2 of this Fourth Supplemental
Agreement and:
(a) confirms and agrees that its guarantee of the obligations
and liabilities of the other Obligors under the Senior
Finance Documents remains in full force and effect and will
remain in full force and effect; and
(b) confirms that the charges and security interests created
under the Security Documents continue in full force and
effect.
6. Miscellaneous
(a) The provisions of Clauses 26 (Expenses), 29 (Amendments and Waivers),
36 (Notices) and 37 (Jurisdiction) of the Original Credit Agreement
shall apply to this Fourth Supplemental Agreement as though they were
set out in this Fourth Supplemental Agreement in full, but as if
references in those Clauses to the Original Credit Agreement were
references to or included this Fourth Supplemental Agreement.
(b) Unless expressly provided to the contrary in this Fourth Supplemental
Agreement, a person who is not a party to this Fourth Supplemental
Agreement may not enforce or enjoy the benefit of any of its terms
under the Contracts (Rights of Third Parties) Xxx 0000.
7. Counterparts
This Fourth Supplemental Agreement may be executed in any number of
counterparts, and this has the same effect as if the signatures on
the counterparts were on a single copy of this Fourth Supplemental
Agreement.
8. Governing Law
This Fourth Supplemental Agreement is governed by English law.
This Fourth Supplemental Agreement has been entered into on the date stated at
the beginning of this Fourth Supplemental Agreement.
SCHEDULE 1
The Obligors (other than the Company)
Dunlop Standard Aerospace (UK) Limited
Xxxxx Aviation Limited
Dunlop Standard Aerospace Overseas Limited
Dunlop Standard Aerospace (US) Inc.
Dunlop Standard Aerospace Holdings Plc (previously known as Dunlop Standard
Aerospace Holdings Limited)
Standard Aero Limited
Dunlop Aviation Canada Inc.
Dunlop Aviation North America Inc.
Standard Aero Inc.
Xxxxxxx Xxxxxx South Wind Corporation
Standard Aero (Alliance) Inc.
Dunlop Holdings Limited
Dunlop Limited
Dunlop Aerospace Limited
Standard Aero (San Antonio) Inc.
Dunlop Aerospace Parts Inc.
SCHEDULE 2
Lenders
Mizuho Corporate Bank, Ltd.
The Bank of Nova Scotia
The Royal Bank of Scotland Plc
The Governor and Company of the Bank of Scotland
Dresdner Bank AG London Branch
ABN AMRO Bank N.V.
General Electric Corporation
UFJ Bank Limited
Sumitomo Mitsui Banking Corporation
PPM UK Limited
UBS AG
Abbey National Treasury Services
Lloyds TSB Bank Plc
Duchess I CDO S.A.
Panther CDO
Allied Irish Bank
SCHEDULE 3
Conditions Precedent
1. Receipt by the Facility Agent (in form and substance satisfactory to
it) of each of the following:
(a) a certified copy of a resolution of the board of directors
of the Company:
(i) approving the terms of, and the transactions
contemplated by, the Fourth Supplemental Agreement
and the Original Credit Agreement as supplemented
and amended by the Fourth Supplemental Agreement;
(ii) noting that it has due authority, pursuant to
Clause 2.4 (Obligors' Agent) of the Original Credit
Agreement, from each other Obligor to execute the
Fourth Supplemental Agreement as Obligors' Agent on
its behalf; and
(iii) authorising specified persons to execute the Fourth
Supplemental Agreement and the Assignment (as
defined below);
(b) a certificate from the Obligors' Agent confirming that there
has been no change to the constitutional documents of the
Obligors from those previously delivered to the Facility
Agent or, if there has been any such change, specifying the
changes together with a copy of the articles of association
of the Company;
(c) a certificate signed by two directors of the Company
confirming that there is then no outstanding Default; and
(d) a certificate signed by two directors of the Company
confirming that under the contract with Airbus, Company's
investment costs incurred pursuant to the A380 (up to at
least the equivalent of (pound)5,200,000) are recoverable
from Airbus Industrie in December 2005, contingent only upon
the High Density Carbon Brake being certified and TSO
approved in Airbus' laboratory, delivered and available for
installation on the Airbus Flight Test Aircraft. In the
event that approval extends beyond December 2005, payment
will be made 90 days after such laboratory qualification and
TSO approval.
SIGNATORIES TO THE FOURTH SUPPLEMENTAL AGREEMENT
Company
DUNLOP STANDARD AEROSPACE GROUP LIMITED
By: XXXXX XXXXX
The Obligors' Agent (on behalf of each Obligor other than the Company)
DUNLOP STANDARD AEROSPACE GROUP LIMITED (as Obligors' Agent)
By: XXXXX XXXXX
Arranger
MIZUHO CORPORATE BANK, LTD.
By: XXXXX XXXXXXX
Facility Agent (for and on behalf of itself and the other Lenders)
MIZUHO CORPORATE BANK, LTD.
By: XXXXX XXXXXXX
Security Agent
MIZUHO CORPORATE BANK, LTD.
By: XXXXX XXXXXXX
Syndication Agent
MIZUHO CORPORATE BANK, LTD.
By: XXXXX XXXXXXX
BK:1024488.8
CONFORMED COPY
FOURTH SUPPLEMENTAL
AGREEMENT
DATED 17th January, 2003
Between
DUNLOP STANDARD AEROSPACE GROUP LIMITED
and certain of its Subsidiaries as Borrowers and/or Guarantors
MIZUHO CORPORATE BANK, LTD.
as Arranger
THE LENDERS
MIZUHO CORPORATE BANK, LTD.
as Facility Agent and Security Agent
and
MIZUHO CORPORATE BANK, LTD.
as Syndication Agent
___________________________________________
relating to a Credit Agreement dated
31st July, 1998 as supplemented and
amended by a Supplemental Credit
Agreement dated 28th September, 1998,
a Second Supplemental Agreement
dated 7th May, 1999 and a Third Supplemental
Agreement dated 15th February, 2002
_____________________________________________
XXXXX & XXXXX
London
CONTENTS
Clause Page
1. Interpretation...................................................1
2. Amendments to the Original Credit Agreement......................2
3. Representations and Warranties...................................3
4. Incorporation....................................................4
5. Guarantees and Security..........................................4
6. Miscellaneous....................................................5
7. Counterparts.....................................................5
8. Governing Law....................................................5
Schedules
1. The Obligors.....................................................6
2. Lenders..........................................................7
3. Conditions Precedent.............................................8
Signatories...............................................................9
