Exhibit 10.7
THE DERBY CYCLE CORPORATION AND OTHERS
as Borrowers and/or Guarantors
CHASE MANHATTAN plc
as Arranger
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Banks
CHASE MANHATTAN INTERNATIONAL LIMITED
as Facility Agent
CHASE MANHATTAN INTERNATIONAL LIMITED
as Security Agent
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SIXTH AMENDMENT AGREEMENT
relating to
a facility agreement dated 12 May 1998
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CONTENTS
1. Interpretation............................................................ 1
2. Amendments................................................................ 1
3. General................................................................... 1
SCHEDULE 1................................................................... 3
The Borrowers.............................................................. 3
SCHEDULE 2................................................................... 4
The Guarantors............................................................. 4
SCHEDULE 3................................................................... 6
The Banks.................................................................. 6
SCHEDULE 4................................................................... 7
Further Amendments to Facility Agreement................................... 7
SCHEDULE 5................................................................... 11
Conditions Precedent....................................................... 11
Exhibit 10.7
THIS AMENDMENT AGREEMENT is made on the 3 February 2000
BETWEEN:
(1) THE DERBY CYCLE CORPORATION on behalf of itself and each of THE COMPANIES
NAMED IN SCHEDULE 1 (the "Borrowers");
(2) THE DERBY CYCLE CORPORATION on behalf of itself and each of THE COMPANIES
NAMED IN SCHEDULE 2 (the "Guarantors");
(3) CHASE MANHATTAN plc (the "Arranger");
(4) CHASE MANHATTAN INTERNATIONAL LIMITED (the "Facility Agent");
(5) CHASE MANHATTAN INTERNATIONAL LIMITED (the "Security Agent"); and
(6) THE FINANCIAL INSTITUTIONS NAMED IN SCHEDULE 3 (the "Banks").
WHEREAS:
(A) By a facility agreement dated 12 May 1998 as amended and restated pursuant
to an amendment and restatement agreement dated 3 February 1999 and as
further amended pursuant to an amendment agreement dated 30 April 1999 and
as further amended pursuant to an Amendment Agreement dated 31 August 1999
and as further amended by an Amendment Agreement dated 25 November 1999 and
as further amended by an Amendment Agreement dated 17 December 1999
(collectively the "Facility Agreement") entered into between the parties
hereto, the Banks have agreed to make certain credit facilities available
to the Borrowers.
(B) The Parties hereto, with effect from the date hereof, have agreed to amend
the Facility Agreement in the manner set out in Schedule 4.
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
Unless the context otherwise requires, words and expressions defined in the
Facility Agreement shall have the same meaning herein.
"Effective Date" means the date on which the Facility Agent has confirmed
in writing to the Company and the Banks that it has received all the
conditions precedent set out in Schedule 5 in each case in form and
substance satisfactory to the Facility Agent.
2. Amendments
Each of the parties agrees that, as from the Effective Date, the amendment
referred to at Schedule 4 shall become effective (subject to the provisions
of Clause 3.8 and 3.9).
3. General
3.1 The Facility Agreement and this Agreement shall be read and construed
as a single document.
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3.2 References in the Facility Agreement to the Facility Agreement
howsoever characterised shall with effect from the date hereof be
references to the Facility Agreement as amended by this Agreement.
3.3 On the date hereof, the Obligors represent and warrant that no Event
of Default or Potential Event of Default has occurred which has not
been remedied or otherwise waived by the Banks other than the
Potential Events of Default which have been notified to the Banks by
the Facility Agent pursuant to a letter of request dated 25 January
2000, and no Event of Default or Potential Event of Default would
occur as a result of the Obligors entering into this Agreement.
3.4 The Company shall reimburse the Agents and the Banks for reasonable
costs and expenses (including reasonable legal fees) incurred by them
and their professional advisers in connection with the negotiation,
preparation and execution of this Agreement and any related
documentation.
3.5 This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
when executed and delivered together shall constitute one and the same
instrument.
3.6 The Facility Agreement shall continue in full force and effect as
amended by this Agreement and, for the avoidance of doubt, each of the
Guarantors reaffirms the Guarantee contained in Clause 23 of the
Facility Agreement and agrees that such Guarantee continues in full
force and effect notwithstanding this Agreement.
3.7 Nothing contained herein shall constitute a waiver of any Event of
Default or Potential Event of Default and the Banks expressly reserve
all or any rights and remedies they may have in relation to the same.
3.8 The Company shall procure by no later than 30 days after the date of
this Agreement that it delivers to the Facility Agent a copy of the
resolutions of the members of each Obligor certified by an Authorised
Signatory (or appropriately authorised person of such Obligor)
ratifying, approving, and confirming the execution and delivery of
this Agreement by the Company as Obligors' Agent and any other
communication or documents delivered by or on behalf of each Obligor
in connection herewith.
3.9 The Company shall procure that by no later than 7 days after 15
February 2000 that it will deliver to the Facility Agent an opinion,
in a form and substance satisfactory to the Facility Agent, addressed
to the Facility Agent, the Security Agent and the Banks, from Xxxxxxxx
& Xxxxx, United States of America legal advisors to the Company
confirming that the amendments contemplated hereunder and the
agreements and transactions contemplated in connection with the
Sponsor Facility (including, but not limited to execution and delivery
of the Sponsor Facility, and the issuance of the warrants referred to
in the Term Sheet and the performance by the Company of its obligation
thereunder) will not violate or result in a breach of the terms of the
Note Indentures, the Senior Notes and the GSIC Note Documents.
3.10 This Agreement shall be governed by and construed in accordance with
English law.
3.11 Clause 38 (Jurisdiction) of the Facility Agreement shall be deemed to
apply as if it had been set out in full in this Agreement.
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SCHEDULE 1
The Borrowers
Raleigh Industries Limited
Sturmey-Xxxxxx Limited
Derby Holding (Deutschland) GmbH
Koninklijke Gazelle BV
The Derby Cycle Corporation
Raleigh Industries of Canada Limited
Raleigh Europe B.V.
Raleigh B.V.
Xxxxxxxxx Xxxxxx Bike Parts GmbH
Xxxxxx-Xxxxxxx GmbH
Derby Holding Limited
Raleigh Fahrrader GmbH
Derby Cycle Werke GmbH
Raleigh International Limited
Curragh Finance Company
Raleigh Ireland Limited
3
SCHEDULE 2
The Guarantors
Derby Holding Limited
Raleigh Industries Limited
Raleigh International Limited
Sturmey-Xxxxxx Limited
Raleigh Industries of Canada Limited
The Derby Cycle Corporation
Raleigh BV
Raleigh Europe BV
Koninklijke Gazelle BV
Derby Nederland BV
Derby Holding BV
Sturmey-Xxxxxx Europa BV
Lyon Investments BV
Derby Holding (Deutschland) GmbH
Raleigh Fahrrader GmbH
NW Sportgerate GmbH
Derby Cycle Werke GmbH
Xxxxxxxxx Xxxxxx Bike Parts GmbH
Univega Worldwide Licence GmbH
Univega Beteiligungen GmbH
Univega Bikes & Sports Europe GmbH
Derby Fahrrader GmbH
Derby WS Vermogenswerwaltungs GmbH
Xxxxxx-Xxxxxxx GmbH
Curragh Finance Company
Raleigh Ireland Limited
4
InterDerby Group Finance N.V.
The British Cycle Corporation Limited
BSA Cycles Limited
Triumph Cycle Co. Limited
Raleigh (Services) Limited
Derby Sweden AB
5
SCHEDULE 3
The Banks
Name
The Chase Manhattan Bank
ABN Amro Bank N.V.
Bank of Scotland
BHF - Bank XX
Xxxxxxxx Bank AG, New York and Grand Cayman
Branches
Lloyds TSB Bank Plc
HSBC Bank Plc
Scotia Bank Europe plc
The Bank of Nova Scotia
The Sumitomo Bank, Limited
Banque Nationale de Paris
San Paolo IMI SPA
Kredietbank (Nederland) N.V.
Oldenburgische Landesbank AG
The Governor and Company of the Bank of Ireland
The Industrial Bank of Japan, Limited
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SCHEDULE 4
Further Amendments to Facility Agreement
1. Clause 1.1 (Definitions) shall be amended by the insertion of the following
amendment:-
"Sponsor Facility" shall mean the unsecured facility of $7,000,000
contemplated by the Term Sheet and to be granted by Xxxxxx and Perseus to
the Company pursuant to the Sponsor Facility Documents (each to be in a
form and substance satisfactory to the Facility Agent) to be entered into
by those parties and under which such facility has been or will be made
available by Xxxxxx and Perseus to the Company by no later than 15 February
2000;
"Sponsor Facility Documents" means each of the documents to be entered into
by, inter alios, Xxxxxx, Perseus and the Company in respect of the Sponsor
Facility, including for the avoidance of doubt, but not limited to any
facility letter and any warrant agreement;
"Sponsor Facility Letter" means the letter dated on or about the date of
this Agreement in an agreed form and made between Xxxxxx, Perseus and the
Facility Agent and Security Agent; and
"Term Sheet" means the term sheet in the agreed form pursuant to which
Xxxxxx and Perseus have agreed to make available to the Company by no later
than 15 February 2000 the Sponsor Facility.
2. The definitions of "Net Proceeds" in Clause 1.1 shall be deleted and
replaced with the following definition:
""Net Proceeds" means in respect of the sale of the property described in
Clause 19.5(b)(xiv) (Pounds)8,400,000".
3. The definition of "Permitted Financial Indebtedness" in Clause 1.1 shall be
amended by deleting part (a) of that definition and replacing it with the
following:-
"(a) in respect of the Company, any indebtedness:-
(i) incurred under the Finance Documents;
(ii) as permitted under Clause 19.5(c) of this Agreement;
(iii) as contemplated in the definition of Permitted Amount; or
(iv) any indebtedness incurred under the Sponsor Facility provided
that such indebtedness is repaid by 1 August 2000 or converted
into equity in accordance with the Term Sheet."
4. Clause 11.1 (Reduction of Facility) shall be deleted and replaced with the
following:
"11.1 Reduction of the Facility
On each date specified in Column 1 below (each such date being a
"Reduction Date") the Total Commitments shall be reduced such that
they are equal to the amount set opposite such Reduction Date in
Column 2 below less the aggregate
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amount of the Commitments that have been previously cancelled under
this Agreement prior to that Reduction Date otherwise than solely as a
result of the operation of this Clause 11.1 or Clause 7, whereupon the
Revolving Commitment of each Bank (including, for the avoidance of
doubt, the Revolving Commitment of each Ancillary Bank and without
double counting a Bank's Ancillary Commitment) shall be reduced by a
proportionate amount and pro rata to their respective Revolving
Commitments at such time and the Standby L/C Commitments of the Banks
shall be reduced by a proportionate amount pro rata and the Company
shall procure that the aggregate Deutschmark Amount of all outstanding
Advances, Standby L/Cs, Ancillary Facilities and amounts owing under
Clause 11.3 (if any) shall on such date (and at all times thereafter)
not exceed the Total Commitments on such date.
Column 1 Column 2
Reduction Date Total Commitments
on or before 30 June 2000 DM214,000,000 minus the
Deutschmark Equivalent of
(Pounds)8,400,000
computed as at the date
falling 4 Business Days
before the Reduction Date
Fifth Anniversary of the date of this Agreement DM194,000,000
Sixth Anniversary of the date of this Agreement DM169,000,000
Final Repayment Date Zero"
5.
(i) A new Clause 11.8 shall be inserted as follows:
"11.8 Mandatory Prepayment of Net Proceeds.
(a) On or before 30 June 2000 the Company shall prepay in cash an
amount equal to the Net Proceeds and all other amounts payable to
the Facility Agent and each Bank hereunder (including any amounts
payable under Clause 25.1(b))
(b) No amount prepaid under this Clause may be reborrowed. Any amount
so prepaid shall be applied in reducing pro rata the Revolving
Commitment of each Bank (including for the avoidance of doubt,
the Revolving Commitment of each Ancillary Bank disregarding for
this purpose its Ancillary Commitment and the Standby L/C
Commitments of the Banks."
(ii) Clauses 11.8 - Clause 11.13 inclusive shall be correspondingly
renumbered Clauses 11.9 to 11.14 inclusive and any references to such
clauses in the Facility Agreement shall be deemed to be references to
the clause numbers so renumbered.
6. Clause 19.5(b) (xii) (Negative Undertakings - disposals) commencing
"disposal of assets which were acquired after the date of this
Agreement..." shall be renumbered Clause 19.5(b) (xiii) and Clause 19.5(b)
(xiii) shall be renumbered Clause 19.5 (xiv) and any reference to such
clauses shall be deemed to be a reference to such clauses as renumbered.
7. Clause 19.5(b) (xiv) (Negative Undertakings) shall be amended as follows:-
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"(xiv) (a) the whole of the land and buildings comprised in title number
NT337369 owned by Sturmey-Xxxxxx Limited;
(b) the whole of the land and buildings comprised in title number P173612
owned by Derby Holding Limited;
(c) the part of the land and building comprised in title number NT329065
owned by Raleigh Industries Limited shown hatched on the plan annexed
(but not any other land in that title); and
(d) that part of the land and buildings comprised in title number
NT127908 owned by Derby Holding Limited shown hatched on the plan
annexed (but not any other land in that title).
Together (the "Nottingham Property") and subject to the provisions of Clause
11.1, the proceeds of the Nottingham Property may, to the extent it does
not have sufficient alternative permitted funding (other than existing
Ancillary Facilities and for the avoidance of doubt, provided that the
Company may utilise the Revolving Facility to establish or maintain
Ancillary Facilities), be utilised by the Group for working capital
purposes only.
8. Clause 19.5(w) (Share Capital) shall be amended by deleting Clause
19.5(w)(iii) and replacing it with the following:-
"save as contemplated by the Recapitalisation Documents (as at the date of this
Agreement) and the Term Sheet issue any new share capital or grant any
option to any Person to subscribe for any shares in its capital other
than another Group Member (provided that if the Security Agent already
has security over the shares of the issuer of any such new shares then
the Company will procure that the Group Member to whom such new shares
are issued promptly provides security over such shares to the Security
Agent to the reasonable satisfaction of the Security Agent)."
9. Clause 19.5 (Negative Undertakings) shall be amended by inserting a new
sub-clause 19.5(ac) as follows:-
"19.5(ac) Sponsor Facility
The Company shall not and shall procure that no Group Company shall repay,
redeem, cancel or repurchase all or any part of the Sponsor Facility or
make any other payment or distribution whether in cash or kind or in any
manner whatsoever in respect of the Sponsor Facility save that such
prohibition shall not apply provided each of the following conditions
are, in the opinion of the Facility Agent, satisfied :-
(i) the Total Commitments are reduced by the Deutschmark Equivalent of
(Pounds)8,400,000 on or before 30 June 2000 in accordance with the
provisions of Clause 11.1; and
(ii) that no Default pursuant to Clause 21.1(a) has occurred which is
continuing, or unwaived in writing by the Facility Agent; and
(iii) the Revolving Facility Available Amount is greater than the amount of
the Sponsor Facility immediately prior to the repayment of the Sponsor
Facility."
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SCHEDULE 5
Conditions Precedent
1. The Term Sheet in respect of the Sponsor Facility duly signed by each of
the parties to the Sponsor Facility.
2. The Sponsor Facility Letter duly signed by each party.
3. Deed of Release in respect of the first fixed security over the Land Sale
Account duly executed, but held in escrow.
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THE DERBY CYCLE CORPORATION )
for itself and on behalf of each of the )
Borrowers and Guarantors as Obligors' Agent )
By:
CHASE MANHATTAN INTERNATIONAL )
LIMITED for itself and as the Facility )
Agent and Security Agent and for and on behalf )
of the Arranger and each of the Banks (other )
than Lloyds TSB Bank Plc, Scotia Bank Europe )
plc and The Bank of Nova Scotia) )
By:
LLOYDS TSB BANK PLC
By:
SCOTIA BANK EUROPE PLC
By:
THE BANK OF NOVA SCOTIA
By:
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