FOURTH AMENDMENT AGREEMENT DATED 26TH JULY, 2004
Exhibit 2.20
CONFORMED COPY
DATED 26TH JULY, 2004
relating to a Revolving Credit
Facility and Bilateral Facilities originally dated 29th November,
1999 (but amended and restated on a number of occasions, most recently by an
amendment
agreement dated 28th May, 2004).
For
WATERFORD WEDGWOOD PLC
WATERFORD WEDGWOOD U.K. PLC
and certain Subsidiaries
With
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
as Agent
XXXXX & XXXXX LLP
LONDON
BK:1653283.10
CONTENTS
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THIS AGREEMENT is dated 26th July, 2004 between:
(1) WATERFORD WEDGWOOD PLC ( a company incorporated in the Republic of Ireland with registered number. 11861) (the Company);
(2) WATERFORD WEDGWOOD U.K. PLC (incorporated in England with registered number 2058427) (WWUK);
(3) THE SUBSIDIARIES OF THE COMPANY listed in Part 1 of Schedule 1 as borrowers and guarantors (the Original Borrowers);
(4) THE SUBSIDIARIES OF THE COMPANY listed in Part 2 of Schedule 1 as guarantors (the Original Guarantors);
(5) THE SUBSIDIARIES OF THE COMPANY LISTED IN Part 3 of Schedule 1 as security providers (the Security Providers);
(6) THE ROYAL BANK OF SCOTLAND PLC and THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND as arrangers (in this capacity the Arrangers);
(7) THE FINANCIAL INSTITUTIONS listed in Part 4 of Schedule 1 as revolving credit banks (in this capacity the XXX Xxxxx)
(8) THOSE XXX XXXXX (or Affiliates of them) listed in Part 5 of Schedule 1 as providers of bilateral facilities as at the date of this Agreement (in this capacity the Original Bilateral Banks);
(9) THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND as agent (in this capacity the Agent);
(10) THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, THE ROYAL BANK OF SCOTLAND PLC AND BARCLAYS BANK PLC as joint bank co-ordinators (in this capacity the Bank Co-Ordinators);and
(11) BARCLAYS BANK PLC as intercreditor agent and security trustee (the Security Trustee).
BACKGROUND:
(A) This Agreement (the Agreement) is supplemental to and amends a credit agreement originally dated 29th November, 1999 but amended and restated on a number of occasions, most recently by an amendment agreement dated 28th May 2004 between, among others, the Company and the Agent (as so amended, the Credit Agreement).
(B) Certain of the Banks also provide bilateral loans, overdraft and letter of credit issuance facilities to the Group.
(C) The Finance Parties have agreed to amend the terms of the Credit Agreement, and to waive certain of the provisions of the Credit Agreement which are necessary to give the consents set out in Clause 5 (Consents) of this Agreement (and the Banks providing bilateral facilities have agreed to amend and waive the terms on which they are provided and to incorporate the terms on which those bilateral facilities are provided into the Credit Agreement) as set out in Clause 3 of this Agreement, and to waive certain of the provisions of the Credit Agreement which are necessary to give the consents set out in Clause 5 (Consents) of this Agreement. In
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accordance with the provisions of Clause 28 (Amendments and Waivers) of the Credit Agreement, the Agent may effect on behalf of the Finance Parties, the amendments and waivers set out in this Agreement.
IT IS AGREED as follows:
1.1 Definitions
(a) Capitalised terms defined in the Credit Agreement have, unless expressly defined in this Agreement, the same meaning in this Agreement.
(b) Agreed Amount means €1,035,000
All-Clad USA means All-Clad USA, Inc., a Delaware corporation.
Ballygunner means Ballygunner Holdings, an unlimited liability Irish company.
Ballygunner Payable and WW On-Loan have the meanings ascribed to this in the Request Letter.
Ballytruckle means Ballytruckle Holdings, an unlimited liability Irish company
Effective Date means the date upon which the Agent gives the notification referred to in Clause 2.1(a) (Documentary conditions precedent).
Intercreditor Agreement means the intercreditor and security trust agreement dated November 26th, 2003 between inter alia the Security Trustee, the Agent, and the Banks and the Original Bilateral Banks.
Relevant Time means any time during the period from and including the date of this Agreement until the irrevocable application of the net proceeds of the proposed disposal of the shares in All-Clad USA to SEB SA in the prepayment and permanent reduction of the Senior Facilities.
Request Letter means the letter from the Company to the Agent dated 15th July, 2004 requesting certain consents in relation to the Credit Agreement (as annexed to this Agreement).
Senior Debt Discharge Date has the meaning given to it in the Intercreditor Agreement
Senior Facilities has the meaning given to it in the Intercreditor Agreement
XX Xxx means Waterford Wedgwood Luxembourg S.a.r.l, incorporated in Luxembourg.
1.2 Construction
(a) The provisions of Clause 1.2 (Construction) of the Credit Agreement shall also apply to this Agreement as if set out in this Agreement, save that references to this Agreement shall be construed as references to this Agreement.
(b) This Agreement is supplemental to the Credit Agreement. References in those documents to under this Agreement and the like will be deemed to include this Agreement.
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2.1 Documentary conditions precedent
(a) The provisions of Clause 3 (Amendments) shall take effect on and from the date on which the Agent notifies the Company and the Banks that it has received the documents set out in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent. The Agent will give that notification as soon as practicable after receipt of those documents in form and substance satisfactory to it (or, as the case may be, the Banks) (but subject, in each case, to paragraph (b) below).
(b) The Agent shall not give the notice referred to in paragraph (a) above if it is aware that:
(i) a Default has occurred which is continuing; or
(ii) any of the representations and warranties set out in Clause 4 (Representations and Warranties) are untrue or inaccurate with reference to the facts and circumstances then subsisting,
save with the consent of all of the Banks.
The Agent shall promptly supply a Bank with a copy of each document received by the Agent under paragraph (a) above upon the request of that Bank.
2.2 Lapse of this Agreement
If the notification from the Agent referred to in paragraph (a) of Clause 2.1 above has not been given to the Company by 2pm on 31st July, 2004 (or such later date as may be agreed by the Agent (acting on the instructions of all of the Banks) and the Company) then this Agreement shall lapse on that date and be of no further effect and, without prejudice to the obligations of the Company under Clause 6 (Expenses) and Clause 9 (Continuation), none of the parties to this Agreement shall be under any liability under it.
3. AMENDMENTS
On and from the Effective Date, Clause 20.10(b)(iv) (Loans Out) of the Credit Agreement will be amended so that the first six words of that paragraph are replaced by the words “loans made by non-Obligors to Obligors”. The same changes shall be automatically made to the terms of the Bilateral Facilities which are common to the terms of the Credit Agreement.
Each of the Obligors represents and warrants to each of the Finance Parties that on the date of this Agreement, and on the Effective Date, each of the representations and warranties contained in Clause 17 (Representations and Warranties) of the Credit Agreement would, if repeated on that date, be true and accurate in all respects, in each case as if references made on such date to the Credit Agreement were references to the Credit Agreement as amended by this Agreement, provided that the representations and warranties given on the date of this Agreement shall assume that the Effective Date has occurred.
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5. CONSENTS
5.1 Ballygunner transfer
The Finance Parties consent to the acquisition by the Company from Ballygunner of the beneficial ownership and/or the legal ownership of all the shares in the capital of All-Clad USA which are currently held by it.
5.2 Disposal Proceeds
The Finance Parties consent to the incurring of indebtedness by the Company under, and the lending constituted by, the Ballygunner Payable and the WW On-Loan, notwithstanding the terms of Clauses 20.8 (Financial Indebtedness) and 20.10 (Loans Out) of the Credit Agreement.
5.3 Conditions
The consents given in Clauses 5.1 and 5.2 above are given on the conditions that:
(a) Neither Ballygunner nor XX Xxx has any creditors as at any Relevant Time which are not members of the Group;
(b) Ballygunner has no creditors (other than Ballytruckle in an amount not in excess of the Agreed Amount) and XX Xxx has only two creditors (being Xxxxxx Limited in an amount not in excess of US$ 30,000 and Ballygunner);
(c) the Company confirms that:
(i) neither Ballygunner nor XX Xxx have traded and nor will any of those companies incur any liabilities as a result of the arrangements described in Clauses 5.1 and 5.2 above (save for the fees costs and expenses of professional advisers in connection with such arrangements);
(ii) neither Ballygunner nor XX Xxx will trade prior to the Senior Debt Discharge Date; and
(iii) Ballygunner will not incur any Financial Indebtedness prior to the Senior Debt Discharge Date (other than as is in existence at the date of this Agreement); and
(d) the Effective Date occurs.
6. EXPENSES
The Company shall forthwith on demand pay the Agent and the Co-ordinators the amount of all costs and expenses (including legal fees and other advisers’ fees) properly incurred by any of them in connection with:
(a) the negotiation, preparation, printing and execution of this Agreement and any other documents referred to in this Agreement or the Credit Agreement; and
(b) any amendment, waiver, consent or suspension of rights (or any proposal for any of the foregoing) requested by or on behalf of an Obligor and relating to this Agreement,
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the Credit Agreement or a document referred to in this Agreement or the Credit Agreement.
Except as otherwise expressly provided in this Agreement (and the Credit Agreement), the terms of this Agreement (and the Credit Agreement) may be enforced only by a party to it and the operation of the Contracts (Rights of Third Parties) Xxx 0000 is excluded.Notwithstanding any term of this Agreement (and the Credit Agreement), the consent of any third party is not required for any variation (including any release or compromise of any liability under) or termination of this Agreement (or the Credit Agreement or both).
The provisions of Clauses 33 (Severability), 35 (Notices) and 36 (Language) of the Credit Agreement shall also apply to this Agreement as if set out in this Agreement, save that references to the Agreement shall be construed as references to this Agreement.
This Agreement is designated a Finance Document for the purposes of the Credit Agreement.
The Company confirms on behalf of itself and on behalf of each Obligor and each Security Provider that the guarantees and Security Interests created by the Credit Agreement and the Security Documents remain in full force and effect and secure all amounts outstanding under the Finance Documents as amended by this Agreement, notwithstanding the amendments to the Credit Agreement made by this Agreement.
9. CONTINUATION
The Obligors, the Arrangers, the Agent and the Banks agree that the rights and obligations of each of them under the Credit Agreement, and the rights and obligations of each party to a Bilateral Document, shall not be affected or impaired by the execution, delivery and performance of this Agreement except in the manner and to the extent stated in this Agreement.
10. COUNTERPARTS
This Agreement may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
11. JURISDICTION
11.1 Submission
For the benefit of each Finance Party, each Obligor agrees that the courts of England have jurisdiction to settle any disputes in connection with any Finance Document and, accordingly, submits to the jurisdiction of the English courts.
11.2 Service of process
Without prejudice to any other mode of service, each Obligor (other than an Obligor incorporated in England and Wales):
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(a) irrevocably appoints Waterford Wedgwood U.K. Plc (which hereby accepts that appointment) as its agent for service of process relating to any proceedings before the English courts in connection with any Finance Document;
(b) agrees that failure by a process agent to notify the Obligor of the process will not invalidate the proceedings concerned; and
(c) consents to the service of process relating to any such proceedings by prepaid posting of a copy of the process to its address for the time being applying under Clause 35.2 (Addresses for notices) of the Credit Agreement.
11.3 Forum convenience and enforcement abroad
Each Obligor:
(a) waives objection to the English courts on grounds of inconvenient forum or otherwise as regards proceedings in connection with a Finance Document; and
(b) agrees that a judgment or order of an English court in connection with a Finance Document is conclusive and binding on it and may be enforced against it in the courts of any other jurisdiction.
11.4 Non-exclusivity
Nothing in this Clause 11 limits the right of a Finance Party to bring proceedings against an Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
12. GOVERNING LAW
This Agreement is governed by English law.
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE 1
ORIGINAL BORROWERS
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Original Borrower |
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Jurisdiction |
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All-Clad Holdings, Inc. |
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Pennsylvania, USA |
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Waterford Wedgwood GmbH |
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HRB |
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Xxxxxxx |
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(Amtsgericht) at Hof) |
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Xxxxxx Xxxxxxxx & Sons Limited |
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613288 |
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England and Wales |
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Xxxxxx Limited |
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343652 |
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England and Wales |
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Waterford Wedgwood Retail Limited |
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624489 |
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England and Wales |
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Wedgwood Limited |
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44052 |
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England and Wales |
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Waterford Crystal Limited |
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78088 |
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Republic of Ireland |
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Waterford Crystal (Manufacturing) Limited |
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104597 |
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Republic of Ireland |
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Waterford Wedgwood Japan Limited |
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Japan |
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Waterford Wedgwood USA, Inc. |
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New York, USA |
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WW Inc. |
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Delaware, USA |
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Waterford Wedgwood Finance, Inc. |
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Delaware, USA |
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ORIGINAL GUARANTORS
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Original Guarantor |
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Xxxxxx Xxxxxxxx & Sons (Exports) Limited |
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240666 |
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England and Wales |
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Stuart & Sons Limited |
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117548 |
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England and Wales |
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Waterford Wedgwood, Inc. |
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Delaware, USA |
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Waterford Wedgwood Holdings Inc. |
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Delaware, USA |
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Clad Metals LLC |
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Delaware, USA |
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All-Clad Metalcrafters, LLC |
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Delaware, USA |
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Clad Holdings Corp |
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Delaware, USA |
SECURITY PROVIDERS
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Security Providers |
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Jurisdiction |
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Xxxxxx Xxxxxxxx & Sons (Aust) Pty Ltd |
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Australia |
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All Clad USA, Inc. |
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Delaware, USA |
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WW Acquisition (Delaware) Corp. |
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Delaware, USA |
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Waterford Wedgwood Partners |
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Illinois, USA |
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Waterford Wedgwood Linens, Inc. |
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Delaware, USA |
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XXX XXXXX
The Governor and Company of the Bank of Ireland
Ulster Bank Ireland Limited
ABN Amro Bank N.V. Dublin Branch
Allied Irish Banks, p.l.c.
Barclays Bank PLC
Bayerische Landesbank, London Branch
IIB Bank Limited
Mizuho Corporate Bank Limited
Wachovia Bank, National Association
The Royal Bank of Scotland plc
Scotiabank Ireland Limited
Xxxxxxx Xxxxx Capital Markets Bank Limited
Xxxxxxx Xxxxx International
ORIGINAL BILATERAL BANKS
ABN Amro Bank N.V. Dublin Branch
Allied Irish Banks, p.l.c.
Barclays Bank PLC
The Governor and Company of the Bank of Ireland
National Westminster Bank Plc
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SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
1. A subordination deed between, amongst others, the Company, Ballygunner Holdings, the Agent and the Security Trustee subordinating the claims of Ballygunner Holdings against the Company in respect of the Ballygunner Payable (the Subordination Deed).
2. A Luxembourg law security assignment agreement pursuant to which Ballygunner Holdings assigns its rights under inter-company loans made by it to XX Xxx to the Security Trustee (the Luxembourg Security Agreement).
3. A board resolution from the Company authorising the entry into, and the terms and transactions contemplated by, both this Agreement and the Subordination Deed.
4. A specimen signature of each person authorised on behalf of the Company to execute or witness the execution of the Agreement and the Subordination Deed, or to sign or send any document or notice in connection with those documents.
5. A certificate of an authorised signatory of the Company certifying that each copy document provided is correct, complete and in full force and effect and that the constitutional documents provided are the most recent and complete set.
6. A board resolution from Ballygunner authorising the entry into, and the terms and transactions contemplated by, both the Luxembourg Security Agreement and the Subordination Deed.
7. A copy of the constitutional documents of Ballygunner.
8. A specimen signature of each person authorised on behalf of Ballygunner to execute or witness the execution of the Luxembourg Security Agreement and the Subordination Deed, or to sign or send any document or notice in connection with those documents.
9. A certificate of an authorised signatory of Ballygunner certifying that each copy document provided is correct, complete and in full force and effect.
10. A board resolution from XX Xxx authorising the entry into, and the terms and transactions contemplated by, the Luxembourg Security Agreement.
11. A copy of the constitutional documents of XX Xxx.
12. A legal opinion of XX Xxxxxxxx, legal advisers as to Irish law to the Senior Creditors.
13. A legal opinion of Xxxxx & Overy, Luxembourg, legal advisers as to Luxembourg law to the Senior Creditors.
14. Certificates from each of XX Xxx and Ballygunner confirming the conditions set out in Clause 5.3 (Conditions) of this Agreement.
15. Evidence that all fees that have been invoiced prior to the completion of the disposal of the shares in All-Clad USA Inc. to SEB SA are paid prior to, or will be paid by the proceeds of, such disposal.
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16. (a) Irrevocable authorisation from XX Xxx instructing Bank of Ireland to automatically transfer all disposal proceeds received by XX Xxx arising from the sale of the shares in All-Clad USA Inc. to an account in the name of Ballygunner held with Bank of Ireland, immediately upon their receipt; and
(b) irrevocable authorisation from Ballygunner instructing Bank of Ireland to automatically transfer all amounts received from XX Xxx under paragraph 17(a) above to an account in the name of the Company held with Bank of Ireland, immediately upon receipt.
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(for itself and for and on behalf of the Obligors and Security Providers) |
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/s/ XXXXXXX XXXXXXX |
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WWUK |
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WATERFORD WEDGWOOD U.K. PLC |
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By: |
/s/ XXXXXXX XXXXXXX |
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Agent (as Agent and as agent for itself and for each of the Banks, the Arrangers and the Co-ordinators) |
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THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND |
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By: |
/s/ XXXX XXXXXXX |
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Security Trustee |
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BARCLAYS BANK PLC |
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By: |
/s/ XXXXX XXXXXX |
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