EXHIBIT 4.3
THIS SECOND SUPPLEMENTAL AGREEMENT is dated 7th May, 1999 between:
(1) DUNLOP STANDARD AEROSPACE GROUP LIMITED (registered no. 3573726) an
English company with its registered office at 00 Xxxx Xxxx, Xxxxxx
XX0X 0XX (the "Company");
(2) THE OBLIGORS listed in Schedule 1;
(3) THE FUJI BANK, LIMITED as arranger of the Facilities (in this
capacity the "Arranger");
(4) THE FUJI BANK, LIMITED as agent for the Lenders set out in Schedule 2
(in this capacity the "Facility Agent");
(5) THE FUJI BANK, LIMITED as security agent and trustee for the Lenders
(in this capacity the "Security Agent"); and
(6) THE FUJI BANK, LIMITED as syndication manager (in this capacity the
"Syndication Agent").
WHEREAS:
(A) This Second 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, the
"Original Credit Agreement") made between, inter alia, 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) Dunlop Standard Aerospace Holdings plc (the "Issuer") proposes to
issue certain Bonds (as defined below) and has requested certain
amendments to the Senior Finance Documents.
(C) The parties to this Second 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) In this Second Supplemental Agreement:
(i) "Bonds" means the $225,000,000 Senior Notes due May 2009
issued or to be issued by the Issuer;
(ii) "Bond Documents" means the Offering Circular, Indenture,
Purchase Agreement, Registration Rights Agreement and any
other agreements or documents to which the Issuer is a party
pursuant to which the Bonds are issued or otherwise relating
to the Bonds.
(b) Capitalised terms not otherwise defined in this Second Supplemental
Agreement have the meanings given to them in the Original Credit
Agreement, unless the context otherwise requires.
(c) Terms defined in the Recitals hereto have the same meaning when used
in this Second Supplemental Agreement.
(d) Clause 1.2 of the Original Credit Agreement is deemed to be set out
in full in this Second Supplemental Agreement but as if references to
the Original Credit Agreement are references to this Second
Supplemental Agreement.
2. AMENDMENTS TO THE ORIGINAL CREDIT AGREEMENT
(a) The parties to this Second Supplemental Agreement hereby agree for
themselves and for their successors, transferees and assigns pursuant
to the Original Credit Agreement that, subject to paragraph (b)
below, upon the Facility Agent confirming to the Company and the
Lenders satisfaction of the conditions set out in Schedule 3 hereto,
the Original Credit Agreement shall be supplemented and amended by
this Second Supplemental Agreement as follows:
(i) Clause 1.1 (Definitions) of the Original Credit Agreement
shall be amended such that:
(A) in the definition of "Ancillary Bank", the word
"Bank" shall be deleted and replaced by the word
"Lender", other than where it appears in
conjunction with the word "Ancillary";
(B) new definitions in the following terms shall be
inserted:
""Bonds" means the $225,000,000 Senior Notes due
2009 issued by the Issuer.
"Bond Documents" means the Indenture, Registration
Rights Agreement and Purchase Agreement relating to
and as defined in the Bonds and any other agreement
or document to which the Issuer is a party
governing the terms of the Bonds or their issue.";
(C) the definition of "Bridge Documents" shall be
deleted;
(D) paragraph (b) of the definition of "Finance
Documents" shall be deleted and replaced by the
following:
"(b) when designated "Subordinated", the Bridge
Facility Agreement; and";
(E) in the definition of "Material Adverse Effect", the
words ", the Subordinated Facility Agreement" shall
be deleted;
(F) a new definition in the following terms shall be
inserted:
""Second Supplemental Agreement" means the second
supplemental agreement which amends and supplements
this Agreement dated [ ] May, 1999 between, inter
alia, the Company, the Obligors, the Lenders and
The Fuji Bank, Limited as Facility Agent and
Security Agent.";
(G) a new definition in the following terms shall be
inserted:
""Issuer" means Dunlop Standard Aerospace Holdings
plc";
(H) the definitions of "Subordinated Borrower",
"Subordinated Documents", "Subordinated Facility
Agreement" and "Subordinated Lenders" shall be
deleted;
(ii) Clause 2.2(m) (Limitations) of the Original Credit Agreement
shall be amended such that after the words "Tranche B" there
shall be inserted the word "Advances";
(iii) Clause 7 (Ancillary Facilities) of the Original Credit
Agreement shall be amended by the deletion of the word
"Bank" and the replacement thereof by the word "Lender"
wheresoever it appears, other than in conjunction with the
word "Ancillary", in such Clause 7;
(iv) Clause 21.4(a) (Notifications) of the Original Credit
Agreement shall be amended such that the words "any Obligor
to the facility agent under the Subordinated Finance
Documents or to the bond trustee under any bonds or notes
issued by the Subordinated Borrower" shall be deleted and
replaced by the following:
"the Issuer to any bond trustee under the Bond Documents and
copies of all accounts and other information filed by the
Issuer with the Securities and Exchange Commission in
relation to the Bonds";
(v) Clause 21.10(a) (Borrowing) of the Original Credit Agreement
shall be amended such that the words "Subordinated Finance"
shall be deleted and replaced by the word "Bond" and the
words "(pound)125,000,000 (or its equivalent in other
currencies)" shall be deleted and replaced by
"$225,000,000";
(vi) Clause 21.16(b) (Loans out) of the Original Credit Agreement
shall be deleted and replaced by the following:
"(b) loans made by one member of the Group to
another member of the Group where:
(i) (A) the loan is specified in the Structure
Memorandum; or
(B) the recipient of the loan is an
Obligor (not being the Issuer or
the Company) and requires the
funds to meet its normal working
capital requirement or to meet its
obligations under the Finance
Documents; or
(C) loans by a member of the Group
which is not an Obligor to another
member of the Group which is not
an Obligor and which is its
Holding Company or a Subsidiary of
it; and
(ii) in the case of loans to the Issuer only:
(A) such loans are made to the Issuer
no more than 5 Business Days
before the next scheduled interest
payment due under the Bond
Documents; and
(B) such loans are for the purpose of
servicing scheduled interest
payments due under the Bond
Documents; and
(C) all such loans made in the 5
Business Day period before a
scheduled interest payment under
the Board Documents are in an
aggregate amount no greater than
(when aggregated with all other
payments permitted by this Clause
21.16 or by Clause 21.17 to be
made to the Issuer during such 5
Business Day period preceding such
scheduled interest payment date
under the Bond Documents) the
amount of the scheduled interest
payment due under the Bond
Documents on such scheduled
interest payment date; and
(D) at the time of such loan no Event
of Default has occurred which is
continuing; and
(iii) in the case of loans to the Company only:
(A) such loans are for the purpose of
financing the payment of the fees
payable under or referred to in
the Shareholders Agreement as in
force on the Signing Date; and
(B) the aggregate amount of such loans
does not exceed the amount
required to pay such fees; and
(C) such loans are made to the Company
no more than 5 Business Days
before the next scheduled payment
date for such fees; and
(D) at the time of such loan no Event
of Default has occurred which is
continuing; or"
(vii) Clause 21.17 (Dividends and Fees) of the Original Credit
Agreement shall be amended such that:
(A) "(a)" shall be inserted before the words "The
Company will not" and the existing "(a)" and "(b)"
shall, respectively, be deleted and replaced by
"(i)" and "(ii)";
(B) a new sub-Clause 21.17(b) shall be inserted in the
following terms:
"(b) Holdco will not declare, make or pay any
dividend (or interest on any unpaid
dividend), charge, fee or other
distribution (whether in cash or in kind)
on or in respect of any of its shares or
distribute any dividend or share premium
reserve account unless:
(i) (A) such payment is, or is to be, made no more
than 5 Business Days before the next
scheduled interest payment due under the
Bond Documents; and
(B) such payments are for the purpose
of servicing scheduled interest
payments due under the Bond
Documents; and
(C) any such payment made in the 5
Business Day period before a
scheduled interest payment under
the Bond Documents is, or will be,
in an aggregate amount no greater
than (when aggregated with all
other payments permitted by this
Clause 21.17 or by Clause 21.16 to
be made to the Issuer during such
5 Business Day period preceding
such scheduled interest payment
date under the Bond Documents) the
amount of the scheduled interest
payment due under the Bond
Documents on such scheduled
interest payment date; and
(D) no Event of Default has occurred
which is continuing (whether at
the time of declaration or
payment); or
(ii) (A) such payment is, or is to be, made
no more than 5 Business Days
before the next scheduled payment
date for the fees payable under or
referred to in the Shareholders
Agreement as in force on the
Signing Date; and
(B) such payments are for the purpose
of financing the payment of the
fees referred to in Clause
21.17(b)(ii)(A) above; and
(C) the aggregate amount of such
payments does not exceed the
amount required to pay such fees;
and
(D) no Event of Default has occurred
which is continuing."
(viii) Clause 21.18 (Share Capital and Loan Stock) of the Original
Credit Agreement shall be amended such that:
(A) in line 3 of sub-Clause 21.18(a), after the words
"is financed out of the" there shall be inserted the
word "net";
(B) in line 9 of sub-Clause 21.18(a), after the words
"under Clause 21.34" there shall be inserted the
words "in each case made after the Closing Date";
(C) the words "Subordinated Discharge Date" shall be
deleted wheresoever they appear and replaced by the
words "Senior Discharge Date";
(D) in sub-Clause 21.18(c) the words "or the Warrant
Instrument (as defined in the Bridge Facility
Agreement and as in force on the Closing Date)"
shall be deleted, and following the words "class of
its shares" shall be inserted the word "then" and
following the words "in issue" the words "at
Closing" shall be deleted;
(ix) Clause 21.26 (Amendments to Documents) of the Original
Credit Agreement shall be amended by the insertion of a new
sub-Clause 21.26(d) in the following terms:
"(d) The Issuer will not, without the prior written
consent of the Majority Lenders, supplement, amend
or waive (or agree to do so) any of the Bond
Documents in any material respect which might
adversely effect the interests of the Lenders under
the Senior Finance Documents.";
(x) Clause 21.35 (Holding Company) of the Original Credit
Agreement shall be amended such that:
(A) in sub-Clause 21.35(a) before the words "or acquire"
there shall be inserted the word ", own";
(B) in sub-Clause 21.35(a) the words "Dunlop Standard
Aerospace Holdings Limited or the Subordinated
Borrower (if different)" shall be deleted and
replaced by the words "the Issuer";
(C) sub-Clause 21.35(b) shall be deleted and replaced by
the following:
"The Issuer shall not carry on any business other
than the business of a holding company or hold, own
or acquire any assets other than shares in Holdco,
Cash, Cash Equivalent Investments and the benefit of
the intercompany loan in a principal amount of
(pound)125,000,000 (or its equivalent in other
currencies) between the Issuer and Holdco without
the prior written consent of the Majority Lenders.";
(xi) Clause 21.36 (Subordinated Debt) of the Original Credit
Agreement shall be amended such that:
(A) sub-Clauses 21.36(a) and 21.36(b) and "(c)" shall be
deleted; and
(B) following the words "or purchase" the words "or
defease" shall be inserted and following the words
"payments of scheduled interest" there shall be
inserted the words "(including any Additional Amount
(as defined in the Bond Documents))";
(xii) Clause 21.39 (The Company and the Subordinated Borrower) of
the Original Credit Agreement shall be deleted and replaced
by the following:
"21.39 The Company and the Issuer
(a) Neither the Company nor the Issuer will at any time
hold Cash or Cash Equivalent Investments in amounts
greater than (in the case of the Issuer) that
required for the next scheduled interest payment
due under the Bond Documents or (in the case of the
Company) that required for the next scheduled
payment of fees payable under or as referred to in
the Shareholders Agreement (as in force at the
Signing Date) and in either case such other amounts
as are reasonably required for its other forecast
cash requirements arising in the ordinary course of
its business for the next three months.
(b) To the extent that the Company or the Issuer holds
or receives any cash in excess of the amount
permitted under paragraph (a) above, it will
promptly lend such cash on a subordinated basis to
Holdco or apply such cash in subscribing for shares
in the Issuer or Holdco as the case may be.";
(xiii) Clause 23.1 (Events of Default) of the Original Credit
Agreement shall be amended such that:
(A) in the proviso to sub-Clause 23.1(g), before the
words "Material Group Subsidiary" there shall be
inserted the word "relevant";
(B) in sub-Clause 23.1(j)(i), at the end thereof
following the words "that Obligor" there shall be
inserted the words "or that Material Group
Subsidiary";
(C) sub-Clause 23.1(s) shall be deleted and replaced by
the following:
"(s) Bonds: any event of default occurs under
any of the Bond Documents; or"; and
(xiv) Clause 29.2(b) (Exceptions) of the Original Credit Agreement
shall be amended by the insertion of the word "scheduled"
before the word "payment".
(b) The waivers set out in Clause 6 and 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 30th September, 1999.
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 Second Supplemental Agreement and the
transactions contemplated by this Second Supplemental
Agreement (including, without limitation, under the Original
Credit Agreement as supplemented and amended by this Second
Supplemental Agreement).
(b) Legal Validity: Subject to the Reservations, this Second
Supplemental Agreement constitutes, and the Original Credit
Agreement when supplemented and amended by this Second
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 Second Supplemental
Agreement and the Original Credit Agreement (as supplemented
and amended by this Second Supplemental Agreement) and (in
the case of the Issuer) the Bond Documents 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 Second
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 Second
Supplemental Agreement on their behalf.
(e) Bonds: The Issuer has the power and authority to enter into
and has taken all necessary action to authorise the entry
into of the Bond Documents and the issue of the Bonds and
all necessary authorisations required in connection with
such entry or issue have been obtained or effected and are
in full force and effect.
4. INCORPORATION
(a) This Second Supplemental Agreement is a Senior Finance Document for
the purposes of the Original Credit Agreement and the other Senior
Finance Documents.
(b) This Second Supplemental Agreement shall, from the date of this
Second Supplemental Agreement, be deemed to be incorporated as part
of the Original Credit Agreement.
(c) Except as otherwise expressly provided in this Second 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 Second 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. WAIVERS
(a) Subject to Clause 2(b), the Majority Lenders consent, for the
purposes of Clause 21.36(b) (Subordinated Debt) of the Original
Credit Agreement, to the issue of the Bonds on the terms set out in
the draft Offering Memorandum initialled by the Facility Agent and
the Company on the date of this Second Supplemental Agreement for the
purposes of identification, provided that the rate of interest on the
Bonds is less than 12.5% per annum.
(b) The Lenders reserve all rights and remedies that they have in
relation to any outstanding Default.
7. MISCELLANEOUS
The provisions of Clauses 26 (Expenses), 29 (Amendments and Waivers),
36 (Notices) and 37 (Jurisdiction) of the Original Credit Agreement
shall apply to this Second Supplemental Agreement as though they were
set out in this Second Supplemental Agreement in full, but as if
references in those Clauses to the Original Credit Agreement were
references to this Second Supplemental Agreement.
8. COUNTERPARTS
This Second 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 Second Supplemental
Agreement.
9. GOVERNING LAW
This Second Supplemental Agreement is governed by English law.
This Second Supplemental Agreement has been entered into on the date stated at
the beginning of this Second 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
SCHEDULE 2
Lenders
The Fuji Bank, Limited
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
The Industrial Bank of Japan Limited
SCHEDULE 3
Conditions Precedent
Receipt by the Facility Agent (in form and substance satisfactory to it) of
each of the following:
1. A certified copy of a resolution of the board of directors
of the Obligors' Agent (a) approving the terms of, and the
transactions contemplated by, the Second Supplemental
Agreement and the Original Credit Agreement as supplemented
and amended by the Second Supplemental Agreement, (b) 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 Second Supplemental Agreement as
Obligors' Agent on its behalf and (c) authorising specified
persons to execute the Second Supplemental Agreement.
2. 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.
3. Certified copies of the Bond Documents.
4. A certificate signed by two directors of the Issuer
confirming receipt by it of $225,000,000 (net of fees and
expenses relating to the issue of the Bonds) in cash, being
the proceeds of the issue of the Bonds and a copy of
irrevocable payment instructions by the Issuer to pay such
amount to or to the order of:
(i) as to the amount (as confirmed by The Fuji Bank,
Limited as agent under the Bridge Facility
Agreement (the "Bridge Agent")) required to repay
all amounts due under or pursuant to the Bridge
Facility Agreement, The Fuji Bank, Limited as the
Bridge Agent; and
(ii) as to the remainder, The Fuji Bank, Limited as the
Facility Agent (for application in prepayment of
the Term Advances pro rata).
5. A certificate signed by two directors of the Company
confirming that there is then no outstanding Default.
6. A legal opinion of Xxxxx & Xxxxx, English legal advisers to
the Lenders.
SIGNATORIES TO THE SECOND SUPPLEMENTAL AGREEMENT
Company
DUNLOP STANDARD AEROSPACE GROUP LIMITED
By: XXX XXXXX
The Obligors' Agent (on behalf of each Obligor other than the Company)
DUNLOP STANDARD AEROSPACE GROUP LIMITED (as Obligors' Agent)
By: XXX XXXXX
Arranger
THE FUJI BANK, LIMITED
By: XXXX XXXXXX
Facility Agent (for and on behalf of itself and the other Lenders)
THE FUJI BANK, LIMITED
By: XXXX XXXXXX
Security Agent
THE FUJI BANK, LIMITED
By: XXXX XXXXXX
Syndication Agent
THE FUJI BANK, LIMITED
By: XXXX XXXXXX
BK:618410.4
CONFORMED COPY
SECOND SUPPLEMENTAL
AGREEMENT
DATED 7th May, 1999
Between
DUNLOP STANDARD AEROSPACE GROUP LIMITED
and certain of its Subsidiaries as Borrowers and/or Guarantors
THE FUJI BANK, LIMITED
as Arranger
THE LENDERS
THE FUJI BANK, LIMITED
as Facility Agent and Security Agent
and
THE FUJI BANK, LIMITED
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
_____________________________________________
XXXXX & OVERY
London
CONTENTS
Clause Page
1. Interpretation.....................................................1
2. Amendments to the Original Credit Agreement........................2
3. Representations and Warranties.....................................7
4. Incorporation......................................................9
5. Guarantees and Security............................................8
6. Waivers............................................................8
7. Miscellaneous......................................................9
8. Counterparts.......................................................9
9. Governing Law......................................................9
Schedules
Schedule 1 - The Obligors..................................................10
Schedule 2 - Lenders.......................................................11
Schedule 3 - Conditions Precedent..........................................12
Signatories................................................................13
