Exhibit 4.15
VENDOR LOAN AGREEMENT
SUBJECT TO THE TERMS OF AN INTERCREDITOR DEED
between
NOBIA AB
(as Borrower)
and
ENODIS PLC
(as Lender)
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GBP 20,000,000
VENDOR LOAN FACILITY
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CONTENTS
Clause Page
1. INTERPRETATION ................................................ 2
2. PAYMENT UNDERTAKING ........................................... 4
3. STATUS OF THIS AGREEMENT ...................................... 4
4. CONDITIONS PRECEDENT .......................................... 4
5. INTEREST PERIODS .............................................. 4
6. INTEREST ...................................................... 5
7. DEFAULT INTEREST .............................................. 6
8. REPAYMENT AND VOLUNTARY PREPAYMENT ............................ 6
9. MANDATORY PREPAYMENT .......................................... 7
10. REPRESENTATIONS AND WARRANTIES ................................ 7
11. INFORMATION ................................................... 8
12. PAYMENTS ...................................................... 9
13. EVENTS OF DEFAULT ............................................. 10
14. NOTICES ....................................................... 11
15. ASSIGNMENT .................................................... 11
16. GOVERNING LAW AND JURISDICTION ................................ 12
THIS AGREEMENT is made 14 June 2001
BETWEEN:
(1) NOBIA AB, P O Box 5436, SE-402 29 Goteborg, Sweden, a company
incorporated under the laws of Sweden with company registration number
556528-2752 (the "Borrower"); and
(2) ENODIS PLC, 1 Farnham Road, Guildford GU2 4RG, United Kingdom (a
company incorporated under the laws of England with company
registration number 109849) (the "Lender").
WHEREAS:
(A) The Lender and certain persons (the "Vendors") on the one hand and
Inhoco 2297 Limited ("Inhoco") on the other, have entered into a sale
and purchase agreement dated 20 April 2001 ("the Sale and Purchase
Agreement") whereby the Vendors agree to sell and Inhoco agrees to
purchase inter alia the Magnet Shares (as defined in the Sale and
Purchase Agreement).
(B) This Agreement is made in favour of the Lender to part finance the
acquisition under the Sale and Purchase Agreement as prescribed in
Clause 4.3 of the Sale and Purchase Agreement and will be executed on
completion of the Sale and Purchase Agreement.
(C) The Borrower has requested that the Lender shall agree that a part of
the consideration for the acquisition under the Sale and Purchase
Agreement in the amount of GBP 20,000,000 shall remain outstanding as
a loan from the Lender to the Borrower and the Lender has agreed to
this on the terms and conditions set out herein.
1. INTERPRETATION
1.1 The following words and phrases shall bear the meanings set out
opposite them when used in this Agreement:
"Agreement" means this agreement;
"Business Day" means a day on which banks are open for business in
London and Stockholm;
"Change of Control" means Industri Kapital 94 Limited, on its own
account or as general partner or agent on behalf of certain entities
(investors), ceasing to hold more than 40 per cent of the equity in
the Borrower;
"Closing Date" means the date when this Agreement has been duly signed
by the Borrower and the Lender;
"Event of Default" means any of the events listed in Clause 13;
"Existing Mezzanine Facility" means the mezzanine facility agreement
dated 30 September 1996, entered into between the Borrower and
Intermediate Capital Group plc as amended or restated, as the case may
be;
"Final Maturity Date" means the 8/th/ anniversary of the Closing Date;
"Flotation" means the admission to listing of the ordinary shares of
the Borrower on any internationally recognised public stock exchange
or market, for the public trading of shares, anywhere in the world;
"Intercreditor Deed " means the intercreditor deed made on or about
the date hereof and entered into between the Original Borrowers, the
Original Guarantors, the Parent, the Senior Lenders, the Mezzanine
Lenders, the Facility Agent, the Mezzanine Agent, the Security Agent
(each as defined therein) and the Lender an executed copy of which is
attached hereto as Exhibit 1.1, or as amended, restated, or novated or
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as replaced by another intercreditor deed or inter-creditor agreement
pursuant to the terms and conditions of the above Intercreditor Deed
or otherwise as agreed between the parties thereto;
"Interest Period" has the meaning set forth in Clause 5;
"Loan" means the principal amount of credit of GBP 20,000,000 (twenty
million pounds sterling) under this Agreement and for the time being
outstanding;
"Margin" means 3.5 per cent per annum;
"Senior Liabilities" means all present and future amounts, liabilities
and obligations payable owing, due or incurred by the Borrower which,
in accordance with the terms of the Intercreditor Deed, rank in
priority to the rights of the Lender against the Borrower under or in
respect of the Loan; and
"Trade Sale" means the private sale of the entire share capital of the
Borrower to a bona fide arm's length purchaser.
1.2 The Loan is "outstanding" unless it has been redeemed in full.
1.3 "Sterling" and "GBP" denote the lawful currency of the United Kingdom.
1.4 Capitalised terms used herein shall have the meaning ascribed to such
term in the Sale and Purchase Agreement unless otherwise defined
herein or the context requires otherwise.
1.5 The headings in this Agreement do not affect its interpretation.
1.6 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the
benefit of any term of this Agreement.
2. PAYMENT UNDERTAKING
The Borrower hereby promises to pay to the Lender the Loan and all
interest accrued thereon in accordance with the terms of this
Agreement.
3. STATUS OF THIS AGREEMENT
3.1 This Agreement constitutes direct, general, unsecured and
unconditional obligations of the Borrower, subordinated in accordance
with the terms of the Intercreditor Deed.
3.2 In case of any conflict between the terms and provisions of the
Intercreditor Deed and this Agreement the terms and provisions of the
Intercreditor Deed shall supersede and take precedence over the terms
and provisions of this Agreement.
4. CONDITIONS PRECEDENT
This Agreement is subject to the Lender having received and found
satisfactory the conditions precedent set out below:
(i) a certified true copy of minutes from a meeting with the board
of directors evidencing the due authorisation of the
signatory(ies) to this Agreement to bind the Borrower;
(ii) a copy of the Intercreditor Deed, duly executed by each person
that is to be a party thereto, which deed shall be in full force
and effect on the Closing Date; and
(iii) evidence that the agent for service of process as prescribed in
Clause 16 has been duly appointed.
5. INTEREST PERIODS
5.1 The Borrower may select an Interest Period for the Loan in a notice in
writing to the Lender no later than 11.00 a.m. (London time) three (3)
Business Days prior to the commencement of each Interest Period,
specifying the duration of the Interest Period provided that the first
two Interest Periods shall each be for a
period of three months. If no such notice has been received in due
time, the Borrower shall be deemed to have selected an Interest Period
of three (3) months.
5.2 Subject to Clause 5.1 providing that the first two Interest Periods
shall be three months, each Interest Period will be three, six or
twelve months at the option of the Borrower, unless otherwise agreed
between the parties.
5.3 The first Interest Period shall commence on the Closing Date and each
consecutive Interest Period shall commence the day after the expiry of
the preceding Interest Period. The Borrower shall procure that, unless
the Loan is previously repaid or cancelled, the final Interest Period
ends on or before the Final Maturity Date.
5.4 For the purposes of determining an Interest Period, a month shall mean
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided,
however, that if there is no numerically corresponding day in the
month in which the period for such Interest Period is to end then such
Interest Period shall end on the last Business Day of the calendar
month in which such period is to end.
5.5 Whenever the last day of an Interest Period would otherwise be a day
that is not a Business Day, the last day of such Interest Period shall
be extended to the next succeeding Business Day, provided that, if
such extension would cause the last day of such Interest Period to
occur on the following calendar month, the last day of such Interest
Period shall be the immediately preceding Business Day.
5.6 Interest shall be calculated for each number of days actually elapsed
on the basis of a year which consists of 365 days.
6 INTEREST
6.1 In this Agreement, the term "LIBOR" means for any Interest Period:
(i) an interest rate per annum determined on the basis of the
London interbank offered rate for deposits in GBP for a period
equal to such Interest Period commencing on the first day of
such Interest Period, as shown on the page which displays the
British Bankers Association Interest Settlement Rate (Page
3750 or such other page as may replace that page in that
service) on Dow Jones Market Service (or otherwise on such
service) at approximately 11:00 a.m., London time on the first
day of such Interest Period; or
(ii) if the rate as mentioned in (i) above is not available on the
page specified (or such other page as may replace that page
from time to time) or if the British Bankers Association
Interest Settlement Rate is not available on another service,
the rate specified by the Lender as representing its costs of
funds from time to time.
6.2 The Borrower shall pay to the Lender interest on the Loan at a rate
per annum which is the sum of the LIBOR applicable to the Loan and the
Margin, payable on the last day of each Interest Period and on the
Final Maturity Date and at any prepayment date pursuant to Clause 8 or
9 hereinbelow, as the case may be.
7. DEFAULT INTEREST
7.1 If any payment of principal or interest on the Loan, or any other
amount becoming due under this Agreement, is not paid when due, the
Borrower shall pay to the Lender default interest ("Default Interest")
on the Loan or such other amount (each an "Unpaid Amount") at a rate
of the sum of LIBOR plus the Margin plus two (2) per cent per annum.
Default Interest shall be payable on each Unpaid Amount from the
agreed due date until the actual date of payment (as well after as
before judgment) and shall be paid on demand made by the Lender from
time to time.
7.2 The provision of Clause 5.6 shall apply correspondingly to the
calculation of Default Interest.
7.3 If Default Interest has accrued for a period of longer than one month
and has not been paid to the Lender, the Lender may (but shall be
under no obligation to) notify the Borrower that it requires the
amount of such Default Interest to be capitalised and added to the
Loan and Default Interest will be payable on the new amount of the
Loan at the rate specified in Clause 7.1 and on the terms set out
therein.
8. REPAYMENT AND VOLUNTARY PREPAYMENT
8.1 To the extent not previously repaid, the Loan shall be repaid on the
Final Maturity Date, together with all accrued interest up to but
excluding such date and any other sums then outstanding under this
Agreement.
8.2 The Borrower may, subject to it having given the Lender at least ten
(10) Business Days prior written notice, at any time prepay the Loan
in whole or in part (but if in part in a minimum amount of GBP
1,000,000). In the event such voluntary prepayment is made during the
first or the second year after the Closing Date, the Borrower shall
pay the Lender a prepayment fee. Such fee shall, (i)
where prepayment is made on or before the first anniversary of the Closing
Date, be GBP 800,000 or (ii) where prepayment is made before the second
anniversary of the Closing Date but after the first anniversary of the
Closing Date be, GBP 400,000.
9. MANDATORY PREPAYMENT
9.1 The Borrower shall upon the occurrence of (i) a Trade Sale or (ii) a
Flotation or (iii) a Change of Control prepay the Loan, together with
accrued interest and fees and any other sums then outstanding under this
Agreement in accordance with the provisions of this Clause 9.
9.2 The Borrower shall without undue delay and, in any event, at least ten
Business Days prior to completion thereof inform the Lender through written
notice of the occurrence of a Trade Sale or a Flotation or a Change of
Control.
9.3 Following a notice from the Borrower pursuant to Clause 9.2, the Lender
shall be entitled to send a written notice to the Borrower requesting
payment and specifying the account to which repayment of the Loan shall be
made.
9.4 The Borrower shall then be obliged, within thirty (30) days of the date of
the notice in Clause 9.3, to prepay the Loan together with accrued interest
and the fees and any other sums outstanding under this Agreement. Further,
the Borrower shall always be entitled to repay the Loan at any time to the
account specified in Clause 12 (unless in receipt of instructions that
payment shall be made to another account as specified by the Lender in the
notice delivered to the Borrower pursuant to Clause 9.3).
9.5 In the event mandatory prepayment is made pursuant to this Clause 9, during
the first or the second year after the Closing Date, the Borrower shall pay
the Lender a prepayment fee. Such fee shall, (i) where prepayment is made
on or before the first anniversary of the Closing Date, be GBP 800,000 or
(ii) where prepayment is made before the second anniversary of the Closing
Date but after the first anniversary of the Closing Date be, GBP 400,000.
10. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants on the date hereof:
(i) it is a limited liability company duly incorporated under the laws of
the Kingdom of Sweden;
(ii) the acceptance of the terms and the execution of this Agreement have
been duly authorised by all necessary corporate and other (as
appropriate) actions and the performance of the obligations of it
under this Agreement does not contravene its constitutional
documents, any material agreement to which it is a party or which is
binding upon it or any of its assets or any applicable law,
regulation or official or judicial order and all necessary
governmental and other regulatory consents necessary to enter into
this Agreement have been obtained and are in full force and effect;
(iii) this Agreement constitutes valid, legal, and binding obligations of
it enforceable in accordance with its terms;
(iv) no material litigation, arbitration or similar administrative
proceeding is taking place or pending against it;
(v) it is not in default under any agreement or contract to which it is
a party or which is binding upon it which default would materially
adversely affect its ability to duly perform and observe its
obligations under this Agreement;
(vi) it has not created any encumbrance upon any of its assets in respect
of any indebtedness except such encumbrances as are created or
permitted by the terms applicable to such debt of the Borrower as
ranks prior to the debt under this Agreement pursuant to the
Intercreditor Deed;
(vii) no stamp or other taxes or fees with respect to the preparation,
execution, delivery, filing, recording or registering by the
Borrower or the Lender of this Agreement are required by Sweden or
any authority thereof or therein including but not limited to taxing
and fiscal authorities;
(viii) it has not borrowed any other money which ranks in priority to the
Loan other than the Senior Liabilities and all amounts due under the
Existing Mezzanine Facility; and
(ix) it has good title to or valid leases or licences of or is otherwise
entitled to use all of its material assets necessary to carry on its
business as presently conducted.
11. INFORMATION
So long as this Agreement is and will remain in force or any sum is payable
under this Agreement the Borrower shall:
(i) as soon as the same become available, but in any event within six
(6) months after the end of each of its financial years, deliver
to the Lender its consolidated audited financial statements for
such financial year together with the consolidated financial
statements for the immediate prior financial year of the
Borrower;
(ii) not later than forty-five (45) days after the end of the
respective balance day deliver to the Lender its interim
quarterly consolidated financial statements; and
(iii) provide the Lender with such general information as is required
by law to be supplied or made available to all or any class of
shareholders (in their capacity as such) of the Borrower, or its
creditors generally.
12. PAYMENTS
12.1 All amounts to be paid under this Agreement by the Borrower to the Lender
shall be paid on the due dates thereof in GBP in immediately available
funds by not later than 11.00 a.m. (London time) or such other time as
may become customary, to the Lender's account with National Westminster
Bank plc, 23 Hall Quay, Great Yarmouth, Norfolk NR30 IHQ, sort code-
55-81-45, account No. 01122762 or to such other account in London as may
from time to time be notified in writing by the Lender to the Borrower;
and any payments to be made by the Lender hereunder to the Borrower, if
any, shall be paid not later than 11:00 a.m. (London time) on the due
dates thereof in GBP in immediately available funds.
12.2 If a date on which any amount under this Agreement is due and payable is
not a Business Day then the date for payment of such amount shall
automatically be deferred to the next succeeding Business Day, unless it
would thereby fall in the next calendar month, in which case it shall
instead fall on the immediately preceding Business Day.
12.3 All payments to be made by a party under this Agreement (whether in
respect of principal, interest or otherwise and including the additional
amount mentioned hereafter in this Clause 12.3) shall be made in full
without such party being entitled to any set-off or counterclaim and
shall be made free and clear of and without deduction or withholding for
or on account of any present or future income or other taxes. However, if
such party shall be required by law or regulation to make any deduction
or withholding from any payment for the account of the other party under
this Agreement then such party will ensure that such deductions or
withholdings do not exceed the respective minimum legal liabilities
therefor and will forthwith pay to the other party such additional
amounts as will result in the net receipt by the other party (free and
clear of any
such deductions and withholdings) of the full amount which would otherwise
have been received had no such deductions or withholdings been made.
13. EVENTS OF DEFAULT
There shall be an Event of Default if:
(i) the Borrower fails to pay any sum payable under this Agreement when
due or otherwise in accordance with the provisions in this Agreement
unless the failure to pay is caused by administrative or technical
error and payment is made within two (2) Business Days of the due
date;
(ii) any borrowed money of the Borrower is not paid when due or any
borrowed money has been demanded by a creditor to be immediately due
and payable before its stated maturity as a result of a event of
default (howsoever described) (provided, however, that such borrowed
money in all cases above in this Clause 13 (ii) exceeds GBP
5,000,000 or the equivalent in any other currency);
(iii) the Borrower or any other person petitions or applies to any court
for the appointment of, or there shall otherwise be appointed any
receiver (Sw.: konkursforvaltare), liquidator (Sw.: likvidator), or
other similar officer of the Borrower or of all or any material part
of the Borrower's assets and such petition if filed by a person
other than the Borrower is not discharged within 21 days; or
(iv) the Borrower becomes or is declared by any competent authority to be
insolvent or admits in writing its inability to pay its debts as
they fall due or is or becomes subject to or applies for any
suspension of payment, bankruptcy (Sw.: konkurs), reorganisation
proceedings (Sw.: foretags-rekonstruktion) or dissolution or
liquidation proceedings (Sw.: likvidation), if such inability in the
reasonable opinion of the Lender materially adversely affects the
Borrower's ability duly to perform its obligations hereunder;
then, in any such event and at any time thereafter the Lender may, subject,
however, to it being permitted under the terms of the Intercreditor Deed,
by written notice to the Borrower declare the Loan and all or any accrued
interest, fees and other amounts payable under this Agreement to be
forthwith due and payable whereupon these amounts shall become immediately
due and payable without further demand or other notice of any kind being
necessary.
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14. NOTICES
All notices or other communications under or in connection with this
Agreement shall be in writing and shall be delivered personally or by mail
or confirmed telefax transmission and shall be deemed to be duly given or
made when delivered (in case of personal delivery or mail) and when
despatched (in the case of telefax) and shall be addressed to:
(a) if to the Lender:
Enodis plc
1 Farnham Road
Guildford GU2 4RG
United Kingdom
Fax: +44 1483 549580
Attention: Andrew Allner/David Hooper
(b) if to the Borrower:
Nobia AB
P O Box 5436
SE-402 29 Goteborg
Sweden
Fax: +46 31 703 53 60
Attention: Finance Director
15. ASSIGNMENT
15.1 The Lender may not assign or transfer all or any rights and obligations
under this Agreement without (i) the prior written consent of the
Borrower, which consent shall not unreasonably be withheld or delayed, it
being understood that it will be reasonable for the Borrower to withhold
its consent if it considers that the transferee is not a reputable
financial institution, and (ii) the relevant assignee becomes a party to
the Intercreditor Deed and acknowledges all the rights and obligations
created thereunder.
15.2 In the event the Lender wants to assign or transfer a part of the rights
and obligations under this Agreement, such assignment or transfer may not
be made unless such part of the Loan to be assigned or transferred
exceeds GBP 10,000,000.
15.3 The Borrower may not assign or transfer its obligations hereunder without
the consent of the Lender.
16. GOVERNING LAW AND JURISDICTION
16.1 This Agreement and its performance shall be governed by and construed in
accordance with the laws of England.
16.2 The Borrower and the Lender hereby irrevocably and expressly submit to
the non-exclusive jurisdiction of the Courts of England. This submission
shall not (and shall not be construed so as to) limit the right of the
Lender to take proceedings as it deems fit against the Borrower or any of
its assets in any court in Sweden, which may otherwise exercise
jurisdiction over the Borrower and/or any of its assets.
16.3 For the purpose of this Agreement and any opinion or document
contemplated hereby or thereby, the Borrower elects as its agent for
service of process in England:
Advokatfirman Vinge KB
43 New Broad Street
London EC2M 1JD, England
Att: Maria-Pia Midenback Hope
16.4 The Borrower irrevocably agrees to maintain its agent for service of
process in England at all times during the validity of this Agreement and
as long as any amount is outstanding or due or contingently due. The
Borrower may change its agent for service of process in England. Should
for any reason beyond the Borrower's control the elected agent for
service of process no longer be suitable for the purpose mentioned in
Clause 16.3 then the Borrower shall forthwith elect another suitable
agent for service of process within England. The Borrower shall then
immediately notify the Lender thereof in writing.
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IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed in two counterparts on the day and the year first written above.
Place: Place:
NOBIA AB ENODIS PLC
/s/ Lennart Rappe /s/ Peter Brooks
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Lennart Rappe Peter Brooks
/s/ Fredrik Cappelen
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Fredrik Cappelen