Exhibit 4.6
FIFTH SUPPLEMENTAL AGREEMENT
DATED: 29TH JANUARY, 2004
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, a Third Supplemental
Agreement dated 15th February, 2002 and a
Fourth Supplemental Agreement
dated 17th January 2003
XXXXX & XXXXX
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation.......................................................................................1
2. Amendments to the Original Credit Agreement..........................................................2
3. Representations and Warranties......................................................................21
4. Amended Credit Agreement............................................................................22
5. New Reports.........................................................................................23
6. Fees................................................................................................23
7. Incorporation.......................................................................................23
8. Guarantees and Security.............................................................................23
9. Miscellaneous.......................................................................................24
10. Counterparts........................................................................................24
11. Governing Law.......................................................................................24
SCHEDULE
Part 1 The Obligors (other than the Company)...............................................................25
Part 2 Lenders.............................................................................................26
Part 3 Conditions Precedent Documents......................................................................27
Signatories..................................................................................................29
THIS FIFTH SUPPLEMENTAL AGREEMENT is dated 29th January, 2004 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 Fifth 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 (the SECOND SUPPLEMENTAL
AGREEMENT), a third supplemental agreement dated 15th February, 2002
(the THIRD SUPPLEMENTAL AGREEMENT) and a fourth supplemental agreement
dated 17th January, 2003 (the FOURTH SUPPLEMENTAL AGREEMENT, together
with the Second Supplemental Agreement and the Third Supplemental
Agreement the SUPPLEMENTAL AGREEMENTS), the ORIGINAL CREDIT AGREEMENT)
made between, inter alios, the Company, the Arranger, the Original
Lenders and Mizuho Corporate Bank, Ltd. (formerly known as 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 Fifth 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 Fifth 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 Fifth Supplemental Agreement.
(c) In this Fifth Supplemental Agreement:
ADDITIONAL BONDS means the 11?% Senior Notes due 2009 issued by the
Issuer in 2004.
ADDITIONAL BOND DOCUMENTS means the Supplemental Indenture and the
Purchase Agreement.
ADDITIONAL FINANCE DOCUMENT means this Fifth Supplemental Agreement
and the amendment letter referred to in Schedule 3 paragraph
1(d)(iii).
BOND COSTS means the costs, fees and expenses incurred by members of
the Group in connection with the offering and sale of the Additional
Bonds in a maximum aggregate amount not exceeding $2,500,000;
FIFTH AMENDMENT EFFECTIVE DATE means the date on which the Facility
Agent gives the notice referred to in Clause 2 to the Company and the
Lenders;
PURCHASE AGREEMENT means the purchase agreement dated on or after the
date hereof (but prior to the Fifth Amendment Effective Date)
providing for the purchase of the Additional Bonds;
REVISED BUSINESS PLAN means the revised base case model prepared by
the Company and approved by the Executives in the agreed form as
amended pursuant to any adjustment notified to the Facility Agent
(prior to such amendment being made) and which is made as a result of
(a) the finalisation and audit of the consolidated accounts of the
Group for the financial year ending 31st December, 2003 or (b) changes
made to the balance sheet and results of operations of the Power 2
Group during the period commencing on 1st January, 2003 and ending on
the Power 2 Completion Date (as defined in Clause 2(a) below);
SUPPLEMENTAL INDENTURE means the supplemental indenture dated
on or after the date hereof (but prior to the Fifth Amendment
Effective Date) supplementing the Bond Documents and providing for the
issuance of the Additional Bonds.
(d) Clause 1.2 of the Original Credit Agreement is deemed to be set out in
full in this Fifth Supplemental Agreement but as if references to the
Original Credit Agreement are references to this Fifth Supplemental
Agreement.
2. AMENDMENTS TO THE ORIGINAL CREDIT AGREEMENT
(a) The parties to this Fifth 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 that it
has received each of the documents and other evidence set out in
Schedule 3 hereto in form and substance satisfactory to it, the
Original Credit Agreement shall be supplemented and amended by this
Fifth Supplemental Agreement as follows:
(i) on page 1 of the Original Credit Agreement in the list of
parties, the words "(now known as Mizuho Corporate Bank,
Ltd.)" shall be inserted after each reference to "THE FUJI
BANK, LIMITED";
(ii) in Clause 1.1 of the Original Credit Agreement: (A) the
following definitions shall be inserted alphabetically:
""2004/2005 GROWTH PROGRAMMES" means Airbus A380;
Joint Strike Fighter; EuroFighter; Xxxxxx X0X0;
Boeing 757 retrofit; Embraer ERJ upgrades; CF34;
Xxxxx GFM to CFM; ART; Dunlop Standard Energy; US
Navy contract; Electric brakes; A400M; UCAV
(Unmanned Combat Air Vehicles); Quick Start;
Eurotrainer; MMC; Eurofighter and Power 2 (should
the Power 2 Completion Date occur) programmes.
"ADDITIONAL BONDS" means the Bonds referred to in
paragraph (b) of the definition of Bonds as set out
in this Clause 1.1.
"ADDITIONAL BOND COMPLETION DATE" means the date on
which Additional Bond Proceeds have been received by
the Issuer from the issue of the Additional Bonds.
"ADDITIONAL BOND PROCEEDS" shall bear the meaning
given to that term in Clause 22.1(a) of this
Agreement.
"BOND PROCEEDS BLOCKED ACCOUNT" means the interest
bearing blocked account in the name of Holdco and
held with the Security Agent or a Lender into which
an amount of $25,000,000 of the Additional Bond
Proceeds was deposited on or before the Fifth
Amendment Effective Date and which is designated by
the Facility Agent and Holdco as the "Bond Proceeds
Blocked Account.
"EXCLUDED COMPANY" means the Company and the Issuer
and any company which is not an Obligor on 21st
January, 2004.
"FIFTH AMENDMENT EFFECTIVE DATE" shall bear the
meaning given to that term in, the fifth
supplemental agreement dated on or about 28th
January, 2004 and relating hereto.
"NEW REPORTS" means each of:
(a) the accountants' report dated 31st December
2003 prepared by PricewaterhouseCoopers;
(b) the legal due diligence report dated 6th
January 2004 prepared by, amongst others,
Skadden, Arps, Slate, Xxxxxxx & Xxxx;
(c) the environmental report dated 15th October
2003 prepared by URS;
(d) the insurance due diligence investigation
dated 1st December 2003 prepared by Xxxxx;
(e) the tax report dated 4th December 2003
prepared by PricewaterhouseCoopers; and
(f) each supplement, amendment and disclosure to
the reports referred to in (a) to (e) above,
to the extent that the matters or things
referred to in or which precipitated such
supplement, amendment or disclosure will not
have a Material Adverse Effect.
"NEW ACQUIRED ASSETS" means the shares and assets
acquired or to be acquired by the Company and
certain of its Subsidiaries pursuant to the terms of
the Power 2 Documents and all other rights, assets
and liabilities (tangible and intangible, present
and future, actual and contingent) acquired by the
Company or its Subsidiaries pursuant to the Power 2
Documents.
"POWER 2" means a single company registered in
England and Wales and more particularly identified
as the target company in the Power 2 Acquisition in
the reports referred to in paragraphs (a) to (e)
inclusive of the definition of "New Reports" in this
Clause 1.1.
"POWER 2 ACQUISITION" means the acquisition of 100%
of the issued share capital of Power 2 by an Obligor
(other than an Excluded Company) pursuant to the
Power 2 Documents.
"POWER 2 ACQUISITION COSTS" means all fees, costs,
expenses, stamp, registration and capital taxes
incurred by the Company (or any member of the Group)
in connection with the negotiation, preparation,
execution and registration of the Power 2 Documents.
"POWER 2 ACQUISITION PRICE" means the total
consideration paid or payable by members of the
Group (or any of them) in respect of the Power 2
Acquisition.
"POWER 2 COMPLETION DATE" means the date of
completion of the Power 2 Acquisition pursuant to
the Power 2 Documents.
"POWER 2 DOCUMENTS" means the share sale and
purchase agreement between the Power 2 Vendor and an
Obligor (other than an Excluded Company) dated on or
after the date of the fifth supplemental agreement
(dated on or about 28th January, 2004) relating
hereto providing, inter alia, for the sale by the
Power 2 Vendor and the purchase by an Obligor (other
than an Excluded Company) of Power 2 and all other
transaction documents entered into in connection
with the Power 2 Acquisition and all transfers and
other instruments made pursuant to any thereof to
which any member of the Group is a party.
"POWER 2 GROUP" means Power 2 and its Subsidiaries
on the Power 2 Completion Date immediately upon
completion of the Power 2 Acquisition.
"POWER 2 VENDOR" means the entity or entities which
sell the entire outstanding share capital of Power 2
pursuant to the Power 2 Documents.
"PURCHASE AGREEMENT" means the purchase agreement
dated on or prior to the Fifth Amendment Effective
Date providing for the purchase of the Additional
Bonds.
"REDEMPTION INTEREST" shall bear the meaning given
to that term in Clause 21.48(c)(i).
"REVISED BUSINESS PLAN" means the revised base case
model prepared by the Company and approved by the
Executives in the agreed form as amended pursuant to
any adjustment notified to the Facility Agent (prior
to such amendment being made) and which is made as a
result of (a) the finalisation and audit of the
consolidated accounts of the Group for the financial
year ending 31st December, 2003 or (b) changes made
to the balance sheet and results of operations of
Power 2 during the period commencing on 1st January,
2003 and ending on the Power 2 Completion Date.
"SUPPLEMENTAL INDENTURE" means the supplemental
indenture dated on or prior to the Fifth Amendment
Effective Date supplementing the Indenture referred
to in paragraph (a) of the definition of Bond
Documents in this Clause 1.1 and providing for the
issue of the Additional Bonds.";
(B) in the definition of "ACQUISITION COSTS" the words
"other than the Power 2 Documents" shall be inserted
at the end of that definition;
(C) in the definition of "APPLICABLE ACCOUNTING
PRINCIPLES" the word "Revised" shall be inserted
before the words "Business Plan";
(D) the definition of "BONDS" shall be deleted and
replaced with the following definition:
""BONDS" means:
(a) the $225,000,000 11?% Senior Notes due 2009
issued by the Issuer in 1999; and
(b) the 11?% Senior Notes due 2009 issued by
the Issuer in 2004 on or prior to the Fifth
Amendment Effective Date.";
(E) the definition of "BOND DOCUMENTS" shall be deleted
and replaced with the following definition:
""BOND DOCUMENTS" means:
(i) the Indenture and the Registration Rights
Agreement relating to and as defined in the
Bonds and the purchase agreement relating
thereto;
(ii) the Supplemental Indenture and Purchase
Agreement; and
(iii) any other agreement or document to which
the Issuer is a party governing the terms
of the Bonds or their issue.";
(F) in the definition of "LC BANK" the words "(now known
as Mizuho Corporate Bank, Ltd.)" shall be inserted
after the words "The Fuji Bank, Limited"
(G) in the definition of "MATERIAL GROUP SUBSIDIARY" the
word "and" shall be deleted at the end of
sub-paragraph (C), the existing sub-paragraph (D)
shall be relettered (E) and a new sub-paragraph (D)
shall be inserted immediately after sub-paragraph
(c) as follows:
"each member of the Group named in the certificate
delivered by the Company pursuant to clause
21.15(f)(xi) shall be deemed to be a Material Group
Subsidiary until either (after delivery of such
certificate) the next list of Material Group
Subsidiaries is delivered to the Facility Agent
pursuant to Clause 21.2(d)(i)(B) or it is shown to
the Facility Agent's reasonable satisfaction not to
be a Material Group Subsidiary by reference to the
latest Accounts delivered to the Facility Agent
under Clause 21.2; and";
(H) In the definition of "TRANSACTION DOCUMENTS" the
word "and" shall be deleted after the words,
"Shareholders Agreement" and in its place shall be
inserted "," and the words "and the Power 2
Documents (if any)" shall be inserted at the end of
that definition;
(iii) in clause 20.1 of the Original Credit Agreement:
(A) the paragraph after the heading "AUTHORISATIONS:" in
clause 20.1(f) shall be numbered as sub-clause (i)
and the words "(other than the Power 2 Documents)"
shall be inserted after each reference in that
paragraph to "Transaction Documents";
(B) a new sub-clause (ii) shall be inserted at the end
of clause 20.1(f) as follows:
"As at the Power 2 Completion Date (it being agreed
that this warranty shall only be given if the Power
2 Completion Date occurs), all authorisations
required by any Obligor in connection with the entry
into, performance, validity and enforceability of,
and the transactions contemplated by, the Power 2
Documents have been obtained or effected (as
appropriate) and are in full force and effect, save
for any filings, applications and registrations to
the extent that the Company has notified the
Facility Agent in writing prior to the Power 2
Completion Date that they can only be obtained after
the Power 2 Completion Date or where the failure to
obtain such authorisation could not reasonably be
expected to have a material impact either on the
business, assets or financial condition of any
Obligor or the Finance Parties or on the validity or
enforceability of the Power 2 Documents.";
(C) the word "and" shall be inserted in clause
20.1(j)(iv) at the end of paragraph (D);
(D) new sub-clauses (v) and (vi) shall be inserted at
the end of clause 20.1(j) as follows:
"(v) To the Company's knowledge as at the Power 2
Completion Date (it being agreed that this
warranty shall only be given if the Power 2
Completion Date occurs):
(A) all material factual information
furnished to each of the firms
which prepared a New Report and
contained or referred to therein
was true at the date (if any)
ascribed thereto or (if none) on
the date of the relevant New
Report;
(B) none of the New Reports are
misleading;
(C) all expressions of opinion or
intention given by or on behalf of
any member of the Group and all
forecasts and projections furnished
by any member of the Group to each
such firm and contained or referred
to in their respective New Reports
were arrived at after careful
consideration, were fair and were
based on reasonable grounds;
(D) such New Reports do not omit any
information which would make any
material information, forecasts or
projections in the New Reports (or
any of them) misleading; and
(E) nothing has occurred or come to
light which renders any of the
material factual information,
expressions of opinion or
intention, projections or
conclusions contained in the
Revised Business Plan or any of the
New Reports, as the case may be,
inaccurate or misleading (or in the
case of expressions of opinion,
conclusions or projections, other
than fair and reasonable),
in each case, in any material respect (or
in the case of (A) or (C) above in all
material respects) in the overall context
of the New Acquired Assets, the Group and
the transactions contemplated hereby or
which would be reasonably likely, if
disclosed, to adversely affect the decision
of a person (including the Original
Lenders) considering whether to enter into
this Agreement.
(vi)
(A) All material factual information
contained in the Revised Business
Plan was true or, in the case of
information provided by any person
other than the Company or its
advisers, was to its knowledge true
in all material respects at the
date (if any) ascribed thereto in
the Revised Business Plan or (if
none) at the date of the relevant
component of the Revised Business
Plan.
(B) All expressions of opinion or
intention and all forecasts and
projections contained in the
Revised Business Plan were arrived
at after careful consideration,
were fair and were based on
reasonable grounds. The forecasts
and projections contained in the
Revised Business Plan are
reasonable and are believed by the
Executives to be attainable.
(C) The Revised Business Plan as of its
date (or the relevant component
thereof) was not misleading in any
material respect and did not omit
to disclose any matter failure to
disclose which would result in any
information contained in the
Revised Business Plan being
misleading in any material respect
in the context of this Agreement.";
(E) sub-clause (iii) in clause 20.1(l) shall be
re-numbered (iv) and a new sub-clause (iii) shall be
inserted after the end of sub-clause (ii) as
follows:
"(iii) The warranty in this sub-Clause 20.1(l)(iii)
shall only be given if the Power 2
Completion Date occurs. The documents, if
any, delivered to the Agents (or any of
them) on or prior to the Power 2 Completion
Date by or on behalf of any Obligor pursuant
to Clause 21.15(f) were when delivered
genuine and in the case of copy documents,
were true, complete and accurate copies in
all material respects, of originals which
had not been amended, varied, supplemented
or superseded in any way which would be
likely materially and adversely to affect
the interests of the Lenders under the
Senior Finance Documents.";
(F) a new sub-clause (v) shall be inserted at the end of
clause 20.1(l) as follows:
"The warranty in this sub-Clause 20.1(l)(v) shall
only be given if the Power 2 Completion Date occurs.
The Power 2 Documents, if any, as furnished to the
Facility Agent pursuant to Clause 21.15(f), contain
all the material terms of the Power 2 Acquisition.";
(G) the paragraph after the heading "REPRESENTATIONS TO
THE COMPANY" in clause 20.1(o) shall be re-numbered
as sub-clause (i) and a new sub-clause (ii) shall be
inserted as follows:
"As at the Power 2 Completion Date (it being agreed
that this warranty shall only be given if the Power
2 Completion Date occurs) the Company has no reason
to believe that any of the representations and
warranties (as qualified by any related disclosure
letter issued by the Power 2 Vendor) given by any
member of the Group and/or by the Power 2 Vendor in
each case in the Power 2 Documents are untrue or
inaccurate in any material respect.";
(H) the words "and New Acquired Assets" shall be
inserted at the end of (and as part of) the heading
in clause 20.1(r) before the semi-colon and the
paragraph after the new heading shall be numbered as
sub-clause (i) and a new sub-clause (ii) shall be
inserted at the end of clause 20.1(r) as follows:
"(ii) Immediately upon the Power 2 Completion Date
(it being agreed that this warranty shall
only be given if the Power 2 Completion Date
occurs) each member of the Group which is
contemplated as acquiring shares pursuant to
the Power 2 Documents will become the
beneficial owner (or owner as the case may
be) of such shares and will be entitled
forthwith (subject to the payment of any
necessary stamp or transfer taxes (which the
Company undertakes to pay or procure the
payment of promptly after the Power 2
Completion Date)) to become the legal
registered owner of such shares free from
all Encumbrances, claims and competing
interests whatsoever save as expressly
permitted under the Senior Finance
Documents.";
(I) a new clause 20.1(y) shall be inserted at the end of
clause 20.1 as follows:
(y) STRUCTURE CHART: If the Power 2 Completion
Date occurs, the structure chart of the
Group delivered by the Company to the
Facility Agent pursuant to Clause
21.15(f)(xi) contains descriptions which
in all material respects are true,
complete and correct of the corporate
ownership structure (legal and beneficial)
of the Group (including details of any
minority shareholdings held by any person
who is not a member of the Group and
details of all partnerships in which any
member of the Group has an interest)
showing each Subsidiary and all
inter-company loans of more than
(pound)1,000,000 (or its equivalent in
other currencies) as they will be
immediately after the Power 2 Completion
Date.";
(iv) in clause 20.2 of the Original Credit Agreement:
(A) the first line after the heading shall be lettered
as sub-clause (a), the existing sub-clauses (a)(i)
and (a)(ii) shall be re-numbered as sub-clauses
(i)(A) and (i)(B) respectively and the existing
sub-clause (b) shall be re-numbered as sub-clause
(ii);
(B) in sub-clause (b) (by reference to the revised
lettering referred to in the immediately preceding
paragraph) the reference to "(s)" shall be replaced
with a reference to "(s))", the words "and on" which
appear after the words "each Utilisation Date" shall
be deleted. In addition, the words "and on the Power
2 Completion Date" shall be inserted after the words
"each Interest Date", and the reference "Clause
20.1(i) ((i), (ii) and (iii)" the first time it
appears shall be replaced with the reference "Clause
20.1(j)(i), (ii), (iii) and (vi)". The words "(other
than with respect to the giving of such
representation 20.1(j)(vi) on the Power 2 Completion
Date)" shall be inserted after the words "provided
that" and the reference "Clause 20.1(j)(i), (ii) and
(iii)" the second time it appears shall be deleted
and replaced with the words "Clause 20.1(j)(i),
(ii), (iii) and (other than with respect to the
giving of such representation on the Power 2
Completion Date) (vi)";
(C) a new sub-clause (b) shall be inserted at the end of
clause 20.2 as follows:
"The representations and warranties set out in
Clauses 20.1(f)(ii), 20.1(j)(v), 20.1(j)(vi),
20.1(l)(iii), 20.1(l)(v), 20.1(o)(ii), 20.1(r)(ii)
and 20.1(y) shall be made by each Obligor on the
Power 2 Completion Date with reference to the facts
and circumstances existing at that time.";
(v) in clause 21.3(a)(ii), of the Original Credit Agreement, the
word "Revised" shall be inserted before the word "Business
Plan";
(vi) in clause 21.4(e) of the Original Credit Agreement the
reference to "(i)," shall be replaced with "(i)", the
reference to "and (ii)" shall be replaced with ", (ii)" and
the following words shall be inserted at the end of that
sub-clause immediately before the semi-colon as follows:
" and (iii) details of any post closing adjustment or other
payment required to be made by any party under the Power 2
Documents";
(vii) clause 21.10(a) of the Original Credit Agreement shall be
deleted and replaced with the following:
"(a) under the Bond Documents in an aggregate principal
amount not exceeding $357,000,000 or (following any
redemption of the Bonds made pursuant to Clause
21.48(c) (Additional Bond Proceeds)) an amount not
exceeding $357,000,000 less the principal amount of
any Bonds redeemed; or
(viii) in clause 21.15(e) of the Original Credit Agreement, the
words "Clause 21.34." shall be deleted and replaced with the
words "Clause 21.34; or";
(ix) a new sub-clause (f) shall be inserted at the end of clause
21.15 of the Original Credit Agreement as follows:
"(f) the Power 2 Acquisition (and the incorporation by an
Obligor of a new 100% owned limited liability
company to purchase Power 2 (provided such new
company becomes an Obligor prior to it purchasing
Power 2)), provided that not less than 5 days prior
to the Power 2 Completion Date the Facility Agent
has received all of the following documents,
evidence and things, in each case, other than with
respect to (xiv) below, in form and substance
satisfactory to it (and, with respect to the
documents and other things to be delivered pursuant
to paragraphs (viii) and (ix) below, the Facility
shall not unreasonably withhold or delay its
determination or satisfaction provided that the
Facility Agent is satisfied that, (A) with respect
to paragraph (ix) below, the execution and
performance of the Power 2 Documents by the Group
(or any member thereof) will not have a Material
Adverse Effect and (B) with respect to paragraph
(viii) below any failure to obtain or deliver any
such authorisation, document, opinion or assurance
or with respect to any authorisation or other
document, opinion or assurance obtained the matters
referred to therein and/or conditions and
obligations imposed on any member of the Group
thereby, will not have a Material Adverse Effect):
(i) (A) evidence that the member of the
Group which will acquire Power 2 is
an Obligor and is not an Excluded
Company ;
(B) confirmation that the Power 2 Group
carries on a similar business to
the business undertaken by the
Group;
(C) confirmation that the Power 2 Group
has its main centre or centres of
operations in England and Wales;
(ii) evidence that:
(A) $25,000,000 of the Additional Bond
Proceeds are standing to the credit
of the Bond Proceeds Blocked
Account ;
(B) the obligations of all parties to
the Power 2 Documents are
unconditional and the conditions to
completion in each of the Power 2
Documents have been satisfied or
waived (to the extent that any such
waiver will not have a Material
Adverse Effect);
(iii) copies of any inter company loan agreement
between Holdco and the Obligor purchaser of
Power 2 evidencing the proposed loan of the
proceeds of the Bond Proceeds Blocked
Account to the Obligor purchaser of Power 2
to be applied by such Obligor in
satisfaction of the Power 2 Acquisition
Price and evidence that any such loan
complies with the provisions of Clause
21.23(b);
(iv) a certificate of the Company signed by two
directors that no Default has occurred and
is continuing under this Agreement at the
time of the Power 2 Acquisition or will
occur as a result of the Power 2
Acquisition;
(v) a certificate of the Company signed by two
directors (one of whom shall be the Chief
Financial Officer) confirming that the
relevant member of the Group which is making
the Power 2 Acquisition has carried out such
due diligence in respect of the Power 2
Acquisition as a reasonable purchaser would
normally undertake and that it is satisfied
with the results thereof and that the Power
2 Group is not subject to any material
liabilities (actual or contingent) (as
confirmed by appropriate due diligence
reports) which will not be discharged prior
to or upon completion of the Power 2
Acquisition except for those liabilities
incurred in the ordinary course of business
and which are permitted to be outstanding in
accordance with the other terms of this
Agreement;
(vi) if a newly incorporated company is
established to acquire Power 2 (as
contemplated in the parenthesis in the first
line of this Clause 21.15(f)), duly executed
security in favour of the Security Agent (or
as otherwise provided in this Agreement) for
the Finance Parties by the relevant members
of the Group in accordance with the Agreed
Security Principles and Clause 19.3, over:
I. the shares of such newly
incorporated company; and
II. the assets of such newly
incorporated company,
together with all instruments, assurances,
acts and things required to be delivered in
respect thereof pursuant to Clause 19.3(e)
(vii) the New Reports;
(viii) a copy of any other authorisation or other
document, opinion or assurance necessary in
connection with the entry into and
performance of and transactions contemplated
by the Power 2 Documents;
(ix) a copy (certified by the Company (or on its
behalf by its legal advisors) as being
correct, complete and in full force and
effect and not having been amended or
superseded) of the Power 2 Documents
together with any related disclosure letter
issued by the Power 2 Vendor in connection
therewith;
(x) a structure chart of the Group containing
descriptions which in all material respects
are true, complete and correct of the
corporate ownership structure (legal and
beneficial) of the Group (including details
of any minority shareholdings held by any
person who is not a member of the Group and
details of all partnerships in which any
member of the Group has an interest) showing
each Subsidiary and all inter-company loans
of more than (pound)1,000,000 (or its
equivalent in other currencies) as they will
be immediately after the completion of the
Power 2 Acquisition;
(xi) a certificate of the Company signed by two
directors, identifying each member of the
Power 2 Group (i) whose pre-tax profits
represent five per cent. or any greater
percentage of the aggregate of Consolidated
EBIT of the Group and consolidated earnings
before interest and tax of the Power 2
Group, or (ii) the book value of whose gross
assets is five per cent. or more of the
aggregate of consolidated gross assets of
the Group and consolidated gross assets of
the Power 2 Group, in either case determined
in accordance with the Applicable Accounting
Principles or (iii) whose aggregate sales to
third parties in any annual Accounting
Period, calculated on a consolidated basis
in accordance with the Applicable Accounting
Principles and excluding VAT and/or sales
tax, are at least five per cent. or more of
the aggregate sales of the Group and the
Power 2 Group to third parties (similarly
calculated), and for this purpose:
(A) in the case of a company which
itself has Subsidiaries, the
calculation shall be made by using
the consolidated pre-tax profits or
gross assets or aggregate sales, as
the case may be, of it and its
Subsidiaries;
(B) the calculation of consolidated
pre-tax profits or gross assets or
aggregate sales shall be made by
reference to:
I. in the case of a member
of the Power 2 Group the
Relevant Accounts (as
defined below) of the
relevant company (or, as
the case may be, a
consolidation of the
accounts of it and its
Subsidiaries), or, if no
such Relevant Accounts
exist in relation to
anyPower 2 Group member,
the PWC Report (as
defined below); and
II. in the case of the Power
2 Group, the report
referred to in paragraph
(a) of the definition of
New Reports in Clause 1.1
(the "PWC Report"); and
III. in the case of the Group,
the latest unaudited
quarterly or audited
annual consolidated
Accounts of the Group
delivered to the Facility
Agent under Clause 21.2;
(xii) if a newly incorporated company is
established to acquire Power 2 (as
contemplated in the parenthesis in the first
line of this Clause 21.15(f)), a Guarantor
Accession Agreement executed by such company
together with each such other instrument,
opinion or document required to be delivered
with respect to an Additional Guarantor
pursuant to Clause 19.2;
(xiii) a certificate of the Company signed by two
directors (one of whom shall be the Chief
Financial Officer) confirming that the Power
2 Acquisition Price is an amount of no more
than (pound)43,000,000; and
(xiv) a copy of the latest management accounts for
each member of the Power 2 Group that
prepare management account as have been
reviewed (and identified as such to the
Facility Agent) by PricewaterhouseCoopers
for the purposes of the PWC Report (the
"Relevant Accounts").
and provided further that on the Power 2 Completion
Date the Facility Agent receives all of the
following documents, evidence and things in form and
substance satisfactory to it:
(A) a Guarantor Accession Agreement executed by
each company identified in the certificate
referred to at Clause 21.15(f)(xi) above
together, in each case, with each such other
instrument, opinion or document required to
be delivered with respect to an Additional
Guarantor pursuant to Clause 19.2 and
(B) duly executed security in favour of the
Security Agent (or as otherwise provided in
this Agreement) for the Finance Parties by
the relevant members of the Group (including
the Power 2 Group) in accordance with the
Agreed Security Principles and Clause 19.3
over:
I. the shares of Power 2;
II. the assets of Power 2 and each
company identified in the
certificate referred to in Clause
21.15(f)(xi) above; and
III. the Power 2 Documents and any New
Report provided in connection with
the acquisition,
together with all instruments, assurances,
acts and things required to be delivered in
respect thereof pursuant to Clause 19.3(e)";
(x) in clause 21.16 of the Original Credit Agreement:
(A) in clause 21.16(b)(i) the words, "; or" at the end
of sub-paragraph (B) shall be deleted, sub-paragraph
(C) shall be re-lettered (D) and a new sub-paragraph
(C) shall be inserted immediately after sub-clause
(B) as follows:
"(C) the recipient of the loan is an Obligor (not
being the Issuer or the Company) and
requires the funds to meet its obligations
under the Power 2 Documents and/or the Power
2 Acquisition Costs and/or the Amendment
Costs and/or the Durango Costs or, in the
case of Holdco, Clause 21.48(a);";
(B) the words "or the payment date for the Redemption
Interest" shall be inserted after the words
"interest payment" in clause 21.16(b)(ii)(A);
(C) the words "or the Redemption Interest payments"
shall be inserted after the words "scheduled
interest payments" in clause 21.16(b)(ii)(B);
(D) in sub-clause 21.16(b)(ii)(C):
(w) the words "or the Redemption Interest
Payments" shall be inserted in the second
line after the words "scheduled interest
payment";
(x) the words "Board Documents" shall be deleted
and in their place shall be inserted the
words "Bond Documents";
(y) the words "or Redemption Interest payment
(as the case may be)" shall be inserted
after the words, "the Bond Documents) the
amount of the schedule interest payment";
(z) the words "or payment date for the
Redemption Interest" shall be inserted at
the end of such sub-clause immediately prior
to the semi-colon;
(xi) in clause 21.35(b) of the Original Credit Agreement the words
"and on and following the issue of the Additional Bonds the
intercompany loan in a principal amount of not more than
$125,000,000" shall be inserted after the amount
"(pound)125,000,000".
(xii) in clause 21.36 of the Original Credit Agreement the words
"when due" at the end of the clause shall be deleted and in
their place shall be inserted the words, "and Redemption
Interest, in each case when due or payments in accordance
with clause 21.48(c)(i)";
(xiii) in clause 21.39 of the Original Credit Agreement the words
"for a period of five days before such redemption is made,
that required for the redemption payment to be made in
accordance with clause 21.48(c)(i) or" shall be inserted
after the words "schedule interest payments under the Bond
Documents or";
(xiv) in clause 21.40(a) of the Original Credit Agreement, the
words "or the Power 2 Vendor under the Power 2 Documents"
shall be inserted after the words "Vendors under the
Acquisition Agreement", the words " or the Power 2 Documents,
as the case may be," shall be inserted after the words
"pursue claims under the Acquisition Agreements" and a new
sub-clause (c) shall be inserted at the end of clause 21.40
as follows:
"(c) On or prior to the Power 2 Completion Date the
Company will not (and no other Obligor will) amend,
vary or waive in any respect which could have a
Material Adverse Effect any provisions of the Power
2 Documents or complete or elect to complete the
Power 2 Documents in circumstances where it would be
entitled not to do so and to do so would have a
Material Adverse Effect.";
(xv) at the end of clause 21 of the Original Credit Agreement a
new clause 21.48 shall be inserted as follows:
"21.48 ADDITIONAL BOND PROCEEDS
(a) The Company shall procure that at all times the Bond
Proceeds Blocked Account shall have standing to its
credit not less than $25,000,000 less the amount of
any Permitted Withdrawal. No amount may be withdrawn
by Holdco from the Bond Proceeds Blocked Account
other than by way of a Permitted Withdrawal. For the
purposes of this Clause 21.48, a "Permitted
Withdrawal" is:
(i) the withdrawal from the Bond Proceeds
Blocked Account by Holdco on the Power 2
Completion Date of the balance standing to
the credit of the Bond Proceeds Blocked
Account provided that the Facility Agent has
received a certificate (in form and
substance satisfactory to it) signed by two
directors of the Company that the Power 2
Acquisition Price has been paid in full or
will be paid in full on the date of such
withdrawal; or
(ii) if the Power 2 Completion Date has not
occurred on or before 31st May, 2004 and the
amount standing to the credit of the Bond
Proceeds Blocked Account has not been
applied in the manner set out in
subparagraph (i) of this definition of
"Permitted Withdrawal" above, the withdrawal
of an amount of not less than $25,000,000 of
the amount standing to the credit of the
Bond Proceeds Blocked Account to be
immediately applied in redemption of the
Redemption Bonds on or prior to 15th July,
2004 and thereafter the balance standing to
the credit of the Bond Proceeds Blocked
Account may be withdrawn by Holdco, provided
that the Facility Agent has received a
certificate (in form and substance
satisfactory to it) signed by two directors
of the Company that the Redemption Bonds
have been repaid.
(b) In addition to the requirements set out in paragraph
(a) above, commencing on the Additional Bond
Completion Date the Company will procure that the
remaining Additional Bond Proceeds (as defined in
clause 22.1(a)) which have not been utilised in
funding the Bond Proceeds Blocked Account and/or in
payment of (or as a provision for) the Amendment
Costs and/or the Durango Acquisition Costs and/or
the Power 2 Acquisition Costs are applied in
repayment of the outstanding Tranche D Advances on
the last day of the Interest Periods thereof.
(c) (i) The Company shall procure that if the Power
2 Completion Date has not occurred on or
before 31st May, 2004 the Issuer shall pay
$25,000,000 (subject to rounding adjustments
in an amount of not more than (pound)50,000)
to its bondholders to redeem Bonds (the
"Redemption Bonds") in accordance with the
terms thereof on or prior to 15th July, 2004
(the "Bond Repayment Date") (and, for the
avoidance of doubt, no amount of interest
("Redemption Interest") (accrued or payable)
on or in respect of the Bonds shall be paid
thereby).
(ii) The Company shall, on the Bond Repayment
Date, provide evidence to the Facility Agent
of the redemption of the Redemption Bonds
referred to in Clause 21.48(c)(i) above.";
(xvi) in clause 22.1(a):
(A) the following definitions shall be inserted
alphabetically:
""ADDITIONAL BONDS PROCEEDS" means the $125,000,000
less Bond Costs received by the Group from proceeds
of the offer and sale of the Additional Bonds.
"AMENDMENT COSTS" means those costs and fees
incurred by members of the Group in any period in
connection with the amendment to this Agreement on
the Fifth Amendment Effective Date up to an
aggregate maximum amount (for all periods) not
exceeding (pound)1,000,000.
"BOND COSTS" means those costs, fees and expenses
incurred by members of the Group in connection with
the offering and sale of the Additional Bonds up to
a maximum aggregate amount (for all periods) not
exceeding $2,500,000.
"DURANGO ACQUISITION COSTS" means those costs
incurred by members of the Group in any period in
connection with the aborted acquisition in 2003 of a
company based in Germany whose principal business is
the repair, overhaul and manufacture of large
aircraft engines in an aggregate amount not
exceeding (pound)4,000,000 (or the equivalent in any
other currencies).
"EXCESS ADDITIONAL BONDS PROCEEDS" means the
Additional Bonds Proceeds minus an amount, if any,
equal to the purchase price of the Power 2 Group.
"POWER 2 ACQUISITION COSTS" means those costs
incurred by members of the Group in any period in
connection with the Power 2 Acquisition in an
aggregate amount not exceeding (pound)2,000,000 (or
the equivalent in any other currencies).
"POWER 2 EQUITY PROCEEDS" means the proceeds of any
subscription in cash for shares (which by their
terms are not redeemable prior to the Senior
Discharge Date (as defined in the Priority
Agreement)) made as contemplated in Clause 23.1(aa)
below by the Investors after the Fifth Amendment
Effective Date.";
(B) in the definition of "CONSOLIDATED CASH FLOW":
I. in sub-clause (ii) the words "Company (other
than any such subscription made pursuant to
the Shareholders Agreement which is not an
Investors Capex Contribution Amount)" shall
be deleted and replaced with the words
"during that period (other than Power 2
Equity Proceeds)";
II. a new sub-clause (iii) shall be inserted
immediately after sub-clause (ii) as
follows:
" PLUS an amount of Power 2 Equity Proceeds
and/or Excess Additional Bonds Proceeds that
a director of the Company certifies as being
notionally applied, in such period (the
"first period"), against Capital Expenditure
or trade working capital with respect to
2004/2005 Growth Programmes. For the
avoidance of doubt, any amounts added
pursuant to a certification by a director of
the Company pursuant to this paragraph (iii)
in the first period shall be deemed to be
added, without further certification, in all
subsequent periods that take into account
the first period;"; and
the existing sub-Clause (iii) shall be
re-numbered as sub-Clause (iv) and so forth;
III. in the sub-clause re-numbered as (v) as
aforesaid, the words "other than the Power 2
Acquisition to the extent such consideration
and costs are funded out of Additional Bonds
Proceeds or Power 2 Equity Proceeds" shall
be inserted after the words "shares acquired
by any member of the Group";
IV. in the sub-clause re-numbered as (xi) as
aforesaid, the words "except that, in
relation to the Consolidated Net Working
Investment for any period which includes the
quarterly Accounting Period in which the
Power 2 Completion Date falls or any of the
three full quarterly Accounting Periods
falling thereafter the Consolidated Net
Working Investments at the beginning of such
period shall be deemed to include the
working capital position of the Power 2
Group as at the date of the completion of
the Power 2 Acquisition" shall be inserted
at the end of that sub-clause immediately
prior to the semi-colon;
V. the reference to "PLUS" in the sub-clause
re-numbered as (xii) shall be deleted and
replaced with the word "MINUS".
(C) in the definition of "CONSOLIDATED EBIT" the word
"and" shall be deleted from the end of sub-clause
(vi), sub-clause (vii) shall be re-numbered as
sub-clause (viii) and a new sub-clause (vii) shall
be inserted as follows:
"(vii) after adding back to the extent deducted
Power 2 Acquisition Costs, Durango
Acquisition Costs, Amendment Costs and Bond
Costs; and"
(xvii) in clause 22.2:
(A) in the table in clause 22.2(a) the dates and
numbers:
"31st December, 2003 1.85
31st March, 2004 1.90
30th June, 2004 1.90
30th September, 2004 2.00
31st December, 2004 2.00
31st March, 2005 2.05
30th June, 2005 2.05
30th September, 2005 2.15
31st December, 2005 2.15
31st March, 2006 2.15
30th June, 2006 2.15"
shall be deleted and replaced with:
"31st December, 2003 1.80
31st March, 2004 1.55
30th June, 2004 1.55
30th September, 2004 1.55
31st December, 2004 1.55
31st March, 2005 1.70
30th June, 2005 1.75
30th September, 2005 1.90
31st December, 2005 2.00
31st March, 2006 2.00
30th June, 2006 2.10"
(B) in clause 22.2(b) the dates and numbers:
"31st December, 2003 1.60
31st March, 2004 1.00
30th June, 2004 1.60
30th September, 2004 1.00
31st December, 2004 1.55
31st March, 2005 1.00
30th June, 2005 1.55
30th September, 2005 1.00
31st December, 2005 1.55
31st March, 2006 1.00
30th June, 2006 1.50
30th September, 2006 1.00
31st December, 2006 1.50
31st March, 2007 1.00
30th June, 2007 1.50"
shall be deleted and replaced with:
"31st December, 2003 0.80
31st March, 2004 0.75
30th June, 2004 0.80
30th September, 2004 0.80
31st December, 2004 1.00
31st March, 2005 1.00
30th June, 2005 1.00
30th September, 2005 1.00
31st December, 2005 1.00
31st March, 2006 1.00
30th June, 2006 1.00
30th September, 2006 1.00
31st December, 2006 1.00
31st March, 2007 1.00
30th June, 2007 1.00"
(C) in clause 22.2(c) the dates and numbers:
"31st December, 2003 1.60
30th June, 2004 1.60
31st December, 2004 1.55
30th June, 2005 1.55
31st December, 2005 1.55"
shall be deleted and replaced with:
"31st December, 2003 1.70
30th June, 2004 1.80
31st December, 2004 1.80
30th June, 2005 1.65
31st December, 2005 1.60"
(D) in clause 22.2(d) the dates and numbers:
"31st December, 2003 2.60
30th June, 2004 2.55
31st December, 2004 2.55"
shall be deleted and replaced with:
"31st December, 2003 3.15
30th June, 2004 2.90
31st December, 2004 2.60"
(xviii) in clause 22.3:
(A) The words "set out in column (2) below opposite the
relevant Expenditure Period:" and the table in
sub-Clause 22.3(a) shall be deleted and replaced
with:
",(A) if the Power 2 Completion Date has
occurred, set out in column (2) below
opposite the relevant Expenditure Period; or
(B) if the Power 2 Completion Date has not
occurred, set out in column (3) below
opposite the relevant Expenditure Period:
(1) (2) (3)
EXPENDITURE PERIOD CAPITAL EXPENDITURE CAPITAL EXPENDITURE
INCLUDING POWER 2 GROUP EXCLUDING POWER 2 GROUP
(POUND) (OR EQUIVALENT IN OTHER (POUND)(OR EQUIVALENT IN OTHER
CURRENCIES) CURRENCIES)
31st December, 1998 19,300,000
31st December, 1999 23,800,000
31st December, 2000 24,500,000
31st December, 2001 29,800,000
31st December, 2002 41,200,000
31st December, 2003 (pound)26,600,000 (pound)26,600,000
31st December, 2004 (pound)39,000,000 (pound)37,000,000
31st December, 2005 (pound)37,000,000 (pound)34,000,000
31st December, 2006 (pound)40,000,000 (pound)39,000,000
31st December, 2007 (pound)39,000,000 (pound)39,000,000"
(B) the words "or (3) (as applicable)" shall be inserted
after each reference to "column (2)" in clause
22.3(a);
(xix) in clause 23.1, at the end of sub-clause (y) the word "or"
shall be deleted, at the end of sub-clause (z) the full stop
shall be deleted and in its place shall be inserted the word
";or" and at the end of clause 23.1 a new sub-clause (aa)
shall be inserted as follows:
"POWER 2 EQUITY PROCEEDS: following the occurrence of the
Power 2 Completion Date (and provided an initial public
offering of not less than (pound)30,000,000 (net of all costs
incurred in connection therewith) by the Company has not
occurred):
(a)(i) the Group (by reference to the accounts delivered to
the Facility Agent pursuant to Clause 21.2(b)):
(I) incurs Capital Expenditure and/or trade
working capital during any Accounting Period
ending on an Accounting Date during the year
ending 31 December 2004 relating to
2004/2005 Growth Programmes and the
Investors fail to subscribe by the Required
Subscription Date in cash for Permitted
Shares in the Company in an aggregate amount
equal to the lower of (a) the amount so
incurred by the Group and (b)
(pound)30,000,000 (such required amount
being hereinafter referred to as the "2004
CAPEX SPEND"); or
(II) incurs Capital Expenditure and/or trade
working capital in an amount less than
(pound)10,000,000, during the year ending 31
December 2004 relating to 2004/2005 Growth
Programmes and the Investors fail to
subscribe, on or prior to 31 December 2004,
for Permitted Shares in the Company in an
amount of at least (pound)10,000,000 less
the 2004 Capex Spend (the "2004 Make-Whole")
except that it shall not be an Event of
Default under this sub-clause (II) if the
Investors do not subscribe the 2004
Make-Whole on or prior to 31 December 2004
if the ratio of Total Net Senior Debt to
Consolidated EBITDA is lower than 2.28:1,
and the level of Consolidated EBITDA is at
least (pound)90,383,000 in each case for the
period comprising THE four consecutive
quarterly Accounting Periods of the Group
(taken together as one period) ending on
30th September, 2004 as determined pursuant
to Clause 22.1(a) and as evidenced in the
quarterly compliance certificate provided to
the Facility Agent pursuant to clause
21.2(d)(ii) for the period ending September
2004; or
(ii) the Group (by reference to the accounts delivered to
the Facility Agent pursuant to Clause 21.2(b)):
(I) incurs Capital Expenditure and/or trade
working capital during any Accounting Period
ending on an Accounting Date during the year
ending 31 December 2005 relating to
2004/2005 Growth Programmes and the
Investors fail to subscribe by the Required
Subscription Date in cash for Permitted
Shares in the Company in an aggregate amount
equal to the lower of (a) the amount so
incurred by the Group and (b)
(pound)30,000,000 less (i) the 2004 Capex
SpEND, if any and (ii) the 2004 Make-Whole,
if any (the "2005 CAPEX SPEND"); or
(II) incurs Capital Expenditure and/or trade
working capital in an amount less than
(pound)30,000,000 less the 2004 Capex Spend,
if any and the 2004 Make-Whole, if any,
during the year ending 31 December 2005
relating to 2004/2005 Growth Programmes and
the Investors fail to subscribe, on or prior
to 31 December 2005, for Permitted Shares in
the Company in an amount equal to at least
(pound)30,000,000 less the 2004 Capex Spend,
if any, the 2004 Make-Whole, if any and the
2005 Capex Spend, if any; or
(b) the Investors have not subscribed in cash for
Permitted Shares in the Company to an amount of at
least (pound)30,000,000 pursuant to paragraph (a)
abovE BY 31 December 2005.
Provided that it shall not be an Event of Default hereunder
if the Investors fail to subscribe an amount pursuant to
paragraphs (a)(i)(I) and (a)(ii)(I) above for Permitted
Shares by the date required therefor if the amount which the
Investors are required to subscribe at that date is less than
(pound)500,000 and provided that amount is so subscribed by
the InvestorS ON the next date on which a subscription
referred to in this Clause is made.
For the purposes of this clause 23.1(aa) REQUIRED
SUBSCRIPTION DATE means, in relation to any amount required
to be subscribed by the Investors pursuant to paragraph
(a)(i)(I) and (a)(ii)(I) above, the date falling not more
than 45 days after the relevant Accounting Date.
"PERMITTED SHARES" means shares permitted to be issued by the
Company in accordance with Clause 21.18(c)."
(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 or
waived by the Majority Lenders before close of business in
London on 31st March 2004.
(c) The Facility Agent will as soon as practicable notify the
Company once all the conditions set out in Schedule 3 have
been satisfied or waived by the Majority Lenders.
3. REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants, and the Company represents and
warrants on behalf of each Obligor, to the Agents and each Lender that
on the date hereof and on the Fifth Amendment Effective Date in each
case with reference to the facts and circumstances pertaining at the
time thereof:
(a) STAMP DUTIES. No stamp duty or registration duty or similar
tax or charge is payable in respect of any Additional Finance
Document.
(b) POWERS AND AUTHORITY. It has the power to enter into and
perform, and has taken all necessary action to authorise the
entry into and performance of, the Additional Finance
Documents to which it is or will be a party and the
transactions contemplated by the Additional Finance Documents
(including, without limitation, under the Original Credit
Agreement as supplemented and amended by this Fifth
Supplemental Agreement).
(c) LEGAL VALIDITY. Each of its obligations in each Additional
Finance Document to which it is a party is its legally
binding, valid and, subject to the Reservations, enforceable
obligation.
(d) NON-CONFLICT. The entry into and performance by it of, and
the transactions contemplated by, this Fifth Supplemental
Agreement and the Original Credit Agreement (as supplemented
and amended by this Fifth 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.
(e) AUTHORISATIONS.
(i) All authorisations required by any Obligor in
connection with the entry into, performance,
validity and enforceability of, and the transactions
contemplated by the Additional Finance Documents
(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 Fifth
Supplemental Agreement on their behalf.
(f) NO DEFAULT.
(i) No Default is outstanding or is reasonably likely to
result from the execution of, or the performance of
any transaction contemplated by any Additional
Finance Document.
(ii) No other event is outstanding which constitutes (or
with the giving of notice, expiry of any grace
period or fulfilment of any other applicable
condition will constitute) a default or termination
event (however described) under any agreement which
is binding on it or on any of its assets, to an
extent or in a manner which has, or is reasonably
likely to have, a Material Adverse Effect.
(g) REVISED BUSINESS PLAN. As at the date of this Fifth
Supplemental Agreement and the Fifth Amendment Effective
Date:
(i) All material factual information contained in the
Revised Business Plan was true or, in the case of
information provided by any person other than the
Company or its advisers, was to its knowledge true
in all material respects at the date (if any)
ascribed thereto in the Revised Business Plan or (if
none) at the date of the relevant component of the
Revised Business Plan.
(ii) All expressions of opinion or intention and all
forecasts and projections contained in the Revised
Business Plan were arrived at after careful
consideration, were fair and were based on
reasonable grounds. The forecasts and projections
contained in the Revised Business Plan are
reasonable and are believed by the Executives to be
attainable.
(iii) The Revised Business Plan as of its date (or the
relevant component thereof) was not misleading in
any material respect and did not omit to disclose
any matter failure to disclose which would result in
any information contained in the Revised Business
Plan being misleading in any material respect in the
context of this Agreement.
(h) DOCUMENTS. The documents delivered to the Facility Agent by
or on behalf of any Obligor as contemplated in Clause 2 are
genuine (or, in the case of copy documents, are true,
complete and accurate copies of originals), are accurate,
up-to-date and in full force and effect (or if a copy, the
original is up-to-date and in full force and effect), unless
otherwise accompanied by a confirmation of which provisions
are not up-to-date and in full force and effect (and the
relevant variations), and have not been amended.
4. AMENDED CREDIT AGREEMENT
(a) On the Fifth Amendment Effective Date, the representations
and warranties referred to in Clause 20.2(a)(ii) of the
Original Credit Agreement as being repeated on an Interest
Date shall be deemed to be repeated by each Obligor and by
the Company on behalf of each Obligor in each case by
reference to the facts and circumstances pertaining at that
time.
(b) On the Fifth Amendment Effective Date the Issuer and the
Company represent and warrant to the Agents and each Lender
that on the date of execution of each of the Additional Bond
Documents, on the date of subscription for the Additional
Bonds and on the Fifth Amendment Effective Date the Issuer
had the power and authority to enter into and had taken all
necessary action to authorise the entry into of the
Additional Bond Documents and the issue of the Additional
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.
5. NEW REPORTS
The Lenders hereby confirm that the reports referred to in paragraphs
(a) to (e) of the definition of "New Reports" in Clause 2 are, in each
case, in form and substance satisfactory to the Facility Agent and the
Lenders further confirm that, for the purposes of Clause 21.15(f)(vii)
of the Original Credit Agreement as amended pursuant to Clause 2, each
supplement, amendment and disclosure to those reports will be in form
and substance satisfactory to the Facility Agent to the extent that
the matters or things referred to in or which precipitated such
supplement, amendment or disclosure will not have a Material Adverse
Effect.
6. FEES
(a) The Company shall pay to the Facility Agent on the Fifth
Amendment Effective Date an amendment fee in an amount equal
to zero point two zero per cent. (0.20%) of the aggregate
Commitments as in force as at the date hereof of those
Lenders who consented to the amendments set forth in Clause 2
on or prior to the date of this Agreement. Such fee shall be
distributed amongst such consenting Lenders pro rata to their
respective Commitments.
(b) The Company shall promptly on demand pay the Facility Agent
the amount of all reasonable costs and expenses (including
reasonable legal and notarial fees and expenses) incurred by
the Facility Agent in connection with the negotiation,
preparation, printing and execution of this Fifth
Supplemental Agreement.
7. INCORPORATION
(a) This Fifth Supplemental Agreement is a Senior Finance
Document for the purposes of the Original Credit Agreement
and the other Senior Finance Documents.
(b) This Fifth Supplemental Agreement shall, from the Fifth
Amendment Effective Date, be deemed to be incorporated as
part of the Original Credit Agreement so that references in
the Original Credit Agreement to "this Agreement", "herein"
and like terms shall include this Fifth Supplemental
Agreement and the Original Credit Agreement as supplemented
and amended by this Fifth Supplemental Agreement.
(c) Except as otherwise provided in this Fifth Supplemental
Agreement, the Senior Finance Documents remain in full force
and effect.
8. GUARANTEES AND SECURITY
Each Guarantor consents to the amendments to the Original Credit
Agreement as set out in Clause 2 of this Fifth 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.
9. 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 Fifth Supplemental
Agreement as though they were set out in this Fifth
Supplemental Agreement in full, but as if references in those
Clauses to the Original Credit Agreement were references to
or included this Fifth Supplemental Agreement.
(b) Clauses 12 (Payments) and 13 (Taxes) of the Original Credit
Agreement shall be incorporated hereto mutatis mutandis.
(c) A person who is not a party to this Fifth Supplemental
Agreement may not enforce any of its terms under the
Contracts (Rights of Third Parties) Xxx 0000 and
notwithstanding any term of this Fifth Supplemental
Agreement, no consent or any third party is required for any
amendment (including any release or compromise of any
liability) or termination of this Fifth Supplemental
Agreement.
(d) The parties confirm that the omission of Dunlop Standard
Aerospace Overseas Investments Limited and Dunlop Standard
Aerospace (Nederland) B.V. from the list of Obligors set out
in schedule 1 of the Second Supplemental Agreement, schedule
1 of the Third Supplemental Agreement and schedule 1 of the
Fourth Supplemental Agreement (the SUPPLEMENTAL SCHEDULES)
was, in each case, a typographical error and hereby agree
that each of the Supplemental Schedules shall be read and
construed (with retrospective effect to the date of the
relevant Supplemental Agreement) as including Dunlop Standard
Aerospace Overseas Investments Limited and Dunlop Standard
Aerospace (Nederland) B.V.. Dunlop Standard Aerospace
Overseas Investments Limited and Dunlop Standard Aerospace
(Nederland) B.V. hereby confirm and agree that the Company
executed and was authorised to execute the Supplemental
Agreements on their behalf and the Company hereby confirms
that it did so execute the Supplemental Agreement on behalf
of Dunlop Standard Aerospace Overseas Investments Limited and
Dunlop Standard Aerospace (Nederland) B.V.. Each of Dunlop
Standard Aerospace Overseas Investments Limited and Dunlop
Standard Aerospace (Nederland) B.V. confirm and agree that
they were (and remain) bound by the terms of each
Supplemental Agreement. Each party to this Agreement agrees
and acknowledges that the Supplemental Agreements have taken
effect in accordance with their terms as if the name of
Dunlop Standard Aerospace Overseas Investments Limited and
Dunlop Standard Aerospace (Nederland) B.V. had appeared in
each Supplemental Schedule.
10. COUNTERPARTS
This Fifth 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 Fifth Supplemental
Agreement.
11. GOVERNING LAW
This Fifth Supplemental Agreement is governed by English law.
This Fifth Supplemental Agreement has been entered into on
the date stated at the beginning of this Fifth 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 Overseas Investments Limited
Dunlop Standard Aerospace (Nederland) B.V.
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 Capital Corporation
GE Leveraged Loans Limited
UFJ Bank Limited
Sumitomo Mitsui Banking Corporation Europe Limited
PPM UK Limited
UBS AG
Lloyds TSB Bank Plc
Duchess I CDO S.A.
Panther CDO
Allied Irish Banks, plc.
SCHEDULE 3
CONDITIONS PRECEDENT DOCUMENTS
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 Additional Finance Documents and the
Original Credit Agreement as supplemented and
amended by the Fifth Supplemental Agreement;
(ii) confirming that it has due authority, pursuant to Clause 2.4
(Obligors' Agent) of the Original Credit Agreement, from each
other Obligor to execute the Additional Finance Documents as
Obligors' Agent on its behalf; and
(iii) authorising specified persons to execute the Additional
Finance Documents;
(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 no outstanding Default; (d) (i) a
certificate signed by two directors of the Issuer confirming
receipt by it of $125,000,000
(subject to rounding adjustments) less Bond Costs in
cash, being the proceeds of the issue of the
Additional Bonds;
(ii) evidence that the amount referred to in the
certificate referred to in sub-paragraph (d)(i) of
this Schedule 3 has been on-lent by the Issuer to
Holdco and a copy of the inter company loan
therefor;
(iii) an amendment agreement to the Priority Agreement to
be entered into by the Senior Creditors (as defined
in the Priority Agreement) and the Obligors amending
clause 8.2 of the Priority Agreement by inserting at
the end of that clause the following sub-clause (c):
"(c) Notwithstanding paragraphs (a) and (b)
above no member of the Group may pay, repay
or prepay any amount outstanding under the
Issuer/Holdco Loan (I) without the prior
written consent of the Majority Creditors
or (II) unless no Event of Default has
occurred and the payment is funded by the
proceeds of a Permitted Withdrawal and such
proceeds are within 5 days used by the
Issuer to redeem the Redemption Bonds in
accordance with Clause 21.48(c) of the
Senior Credit Agreement.
For the purposes of this Clause 8.2,
"Issuer/Holdco Loan" means the loan made (in an
amount equal to $125,000,000 (subject to rounding
adjustments) less Bond Costs) from the proceeds of
the issue of the Additional Bonds by the Issuer to
Holdco on or before the Fifth Amendment Effective
Date."
(iv) confirmation that Holdco has deposited an amount of
$25,000,000 of the proceeds of the issue of the Additional
Bonds in an interest bearing blocked account (the CASH
ACCOUNT) in the name of Holdco held with the Security Agent
or a Lender;
(v) a first fixed charge granted under a Security Document over
the Cash Account and the debt represented thereby and such
document matters and things that are required by clause
19.3(e) of the Original Credit Agreement in relation thereto
(such clause being incorporated herein (with respect to such
Security Document) mutatis mutandis; and
(vi) a letter between Holdco and the Facility Agent designating
the Cash Account as the "Bond Proceeds Blocked Account" for
the purposes of the Original Credit Agreement as amended and
supplemented by the Fifth Supplemental Agreement.
(e) evidence that all fees and expenses due and payable by the
Company under this Fifth Supplemental Agreement have been
paid in full;
(f) a certified copy of each duly executed Additional Bond
Document and evidence that the Additional Bonds were issued
at par, a discount of no greater than 5 per cent. or a
premium;
(g) a letter of confirmation from the Investors that the
Investors have authorised the (pound)30,000,000 ALL cash
subscription by them for shares in the Company as
contemplated by clause 23.1(aa) of the Original Credit
Agreement (which are permitted to be so subscribed by clause
21.18 of the Original Credit Agreement);
(h) the Revised Business Plan;
(i) written confirmations in the agreed form from Lenders'
counsel in each relevant jurisdiction confirming that all
guarantees and security given in favour of the Lenders in
respect of the Facilities will not be affected by the
amendments to Original Credit Agreement made hereby.
SIGNATORIES
TO THE FIFTH SUPPLEMENTAL AGREEMENT
COMPANY
DUNLOP STANDARD AEROSPACE GROUP LIMITED
By:
THE OBLIGORS' AGENT (on behalf of each Obligor other than the Company)
DUNLOP STANDARD AEROSPACE GROUP LIMITED (as Obligors' Agent)
By:
ARRANGER
MIZUHO CORPORATE BANK, LTD.
By:
FACILITY AGENT (for and on behalf of itself and the other Lenders)
MIZUHO CORPORATE BANK, LTD.
By:
SECURITY AGENT
MIZUHO CORPORATE BANK, LTD.
By:
SYNDICATION AGENT
MIZUHO CORPORATE BANK, LTD.
By:
