Exhibit 4.11
BRIDGE LOAN AGREEMENT
DATED 20 February, 2002
(pound)150,000,000
BRIDGE LOAN AGREEMENT
FOR
ENODIS PLC
ARRANGED BY
CREDIT SUISSE FIRST BOSTON
and
THE ROYAL BANK OF SCOTLAND plc
WITH
CREDIT SUISSE FIRST BOSTON
as Facility Agent
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INDEX
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Clause Page
1. Interpretation................................................ 1
2. Facility...................................................... 18
3. Purpose....................................................... 20
4. Conditions Precedent.......................................... 20
5. Drawdown of the Facility and Loan Notes....................... 21
6. Repayment..................................................... 21
7. Prepayment and Cancellation .................................. 22
8. Exchange Notes ............................................... 27
9. Interest ..................................................... 29
10. [Reserved.] .................................................. 31
11. Market Disruption ............................................ 31
12. Taxes ........................................................ 32
13. Increased Costs .............................................. 36
14. Mitigation ................................................... 38
15. Payments ..................................................... 39
16. Representations .............................................. 41
17. Information Covenants ........................................ 50
18. Financial Covenants .......................................... 55
19. General Covenants ............................................ 63
20. Default ...................................................... 86
21. Administrative Parties ....................................... 92
22. Evidence and Calculations .................................... 98
23. Fees ......................................................... 98
24. Indemnities and Break Costs .................................. 99
25. Expenses ..................................................... 101
26. Amendments and Waivers ....................................... 101
27. Changes to the Parties ....................................... 103
28. Disclosure of Information .................................... 106
29. Set-Off ...................................................... 107
30. Pro Rata Sharing ............................................. 107
31. Severability ................................................. 108
32. Counterparts ................................................. 109
33. Notices ...................................................... 109
34. Language ..................................................... 110
35. Governing Law ................................................ 111
36. Enforcement .................................................. 111
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Schedules
1. Original Parties ....................................... 116
2. Conditions precedent documents ......................... 117
3. Description of the Exchange Notes ...................... 118
4. Exchange Note Indenture ................................ 119
5. Form of Request ........................................ 120
6. Calculation of the Mandatory Cost ...................... 121
7. Form of Transfer Certificate ........................... 123
8 Form of Compliance Certificate ......................... 125
9. Form of Exchange Request ............................... 127
10. Form of Officers' Certificate of the Company ........... 128
11. Form of Opinion of Clifford Chance ..................... 137
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THIS AGREEMENT is dated 20 February, 2002
BETWEEN:
(1) ENODIS PLC (registered number 00109849) (the "Company");
(2) CREDIT SUISSE FIRST BOSTON and THE ROYAL BANK OF SCOTLAND plc, as arrangers
(in this capacity the "Arrangers");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 hereto as original lenders
(the "Original Lenders"); and
(4) CREDIT SUISSE FIRST BOSTON, as Facility Agent (in this capacity the
"Facility Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
"Accounting Date" means 31st March, 30th June, 30th September and 31st
December, save as adjusted to ensure that all Accounting Dates fall on the same
day of the week or otherwise with the consent of the Majority Lenders.
"Accounting Principles" means:
(a) for the Company and any member of the Group incorporated in England
and Wales accounting principles and practices generally accepted as at
the date hereof in the United Kingdom and approved as at the date
hereof by the Institute of Chartered Accountants of England and Wales
as at the date hereof and which are consistent with those used in the
preparation of the Business Plan and the Original Financial
Statements.
(b) for any other member of the Group, accounting principles and
practices generally accepted as at the date hereof in its jurisdiction
of incorporation and approved as at the date hereof by the relevant
local accounting standards board or other applicable authority
consistently applied.
"Additional Debt" in relation to any obligation or liability means:
(a) any refinancing, novation, deferral or extension of any of those
liabilities;
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(b) any further loan made under any agreement supplemental to or in
replacement of any relevant Senior Finance Document plus all related
interest, fees and costs;
(c) any claim for damages or restitution in the event of rescission of any
such liabilities or otherwise in connection with any relevant Senior
Finance Document or replacement thereof;
(d) any amounts (such as post-insolvency interest) which would otherwise
be included in any such liability but for any discharge,
non-provability, unenforceability or non-allowability of the same in
any insolvency or other proceedings.
"Adjusted LIBOR" means, for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the nearest four decimal places) equal to the
sum of (a) the LIBOR in effect for such Interest Period and (b) the Mandatory
Cost.
"Administrative Party" means an Arranger or the Facility Agent.
"Affiliate" means a Subsidiary or a Holding Company of a person or any
other Subsidiary of that Holding Company.
"Applicable Spread" means, with respect to any Loan, 675 basis points
during the three-month period commencing on the Effective Date, which amount
shall increase by an additional 50 basis points on the three-month anniversary
of the Effective Date and at the end of each successive three-month period
commencing on the three-month anniversary of the Effective Date until but
excluding the Initial Bridge Maturity Date.
"Approved Bank" means The Royal Bank of Scotland plc, National Westminster
Bank Plc and any other bank approved in writing by the Facility Agent and, in
each case, which has been given and has acknowledged all notices (if any) given
to it pursuant to the Security Documents.
"Auditors" means Deloitte & Touche or any other firm of auditors (being one
of PricewaterhouseCoopers, KPMG or Ernst & Young) appointed in replacement
thereof.
"Bond Documents" means the High Yield Refinancing Securities and the Bond
Exchange Notes and any indenture, trust deed, notes, terms and conditions,
subscription agreement, agency agreement or other agreement, in each case
entered into with, inter alia, Credit Suisse First Boston and The Royal Bank of
Scotland plc, in their capacity as lead arrangers thereunder, pursuant to which
the High Yield Refinancing Securities or the Bond Exchange Notes are to be
constituted and issued by the Company.
"Bond Exchange Notes" means any notes registered with the U.S. Securities
and Exchange Commission issued in exchange for the High Yield Refinancing
Securities.
"Break Costs" means the amount (if any) which a Lender is entitled to
receive under this Agreement as compensation if any part of a Loan or overdue
amount is prepaid.
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"Bridge Finance Document" means this Agreement (and the Schedules hereto,
and the exhibits to such schedules), the Fee Letter, the Exchange Note
Indenture, a Transfer Certificate, the Subordination Agreement, the Subordinated
Intercompany Loan Agreement or any other document designated as such by the
Facility Agent and the Company.
"Business Day" means a day (other than a Saturday or a Sunday) on which
banks are open for general business in London.
"Business Plan" means the agreed model prepared by the Company referred to
at paragraph 12 of Part I of Schedule 2 to the Senior Credit Facilities under
the heading "Other documents and evidence".
"Cash" means cash in hand or cash at bank.
"Cash Equivalents" means, at any time:
(a) certificates of deposit, maturing within six months after the relevant
date of calculation, issued by a bank;
(b) any investment in marketable obligations issued or guaranteed by a
person which has a credit rating of either A-1 by Standard & Poor's or
FitchIBCA or P-1 by Moody's or an equivalent credit rating;
(c) open market commercial paper:
(i) for which a recognized trading market exists;
(ii) which matures within six months after the relevant date of
calculation; and
(iii) which has a credit rating of either A-1 by Standard & Poor's or
FitchIBCA or P-1 by Moody's, or, if no rating is available in
respect of the commercial paper or indebtedness, the issuer of
which has, in respect of its long-term debt obligations, an
equivalent rating;
(d) Sterling bills of exchange eligible for rediscount at the Bank of
England and accepted by an acceptable bank; or
(e) any other instrument, security or investment approved in writing by
the Majority Lenders.
"Commitment" means, in relation to a Lender, the principal amount described
as such set forth opposite its name in Schedule 1 hereto or set forth under the
heading "Rights and obligations to be transferred by novation" in the schedule
to any Transfer Certificate, in each case as reduced or cancelled in accordance
with this Agreement.
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"Daylight Facility" means the daylight facility dated the date hereof in an
amount of up to (pound)150,000,000 to be made available to Enodis Holdings
Limited under the terms of the Daylight Facility Agreement.
"Daylight Facility Agreement" means the facility agreement dated on or
about the date hereof between Credit Suisse First Boston and The Royal Bank of
Scotland plc as lenders and Enodis Holdings Limited as borrower.
"Default" means:
(a) an Event of Default; or
(b) an event specified in Clause 20 which would be (with the expiry of a
grace period, the giving of notice or the making of any determination
under the Bridge Finance Documents or any combination of them) an
Event of Default.
"Description of the Exchange Notes" means the Description of the Exchange
Notes attached hereto as Schedule 3.
"Dollars" or "US$" means the lawful currency for the time being of the
United States.
"Effective Date" means the date on which the Original Lenders make the
Loans.
"Environmental Approval" means any authorization required by an
Environmental Law.
"Environmental Claim" means any claim by any person in connection with:
(a) a breach, or alleged breach, of an Environmental Law;
(b) any accident, fire, explosion or other event of any type involving an
emission or substance which is capable of causing harm to any living
organism or the environment; or
(c) any other environmental contamination,
which might result in any liability on any Party or any member of the
Group.
"Environmental Law" means any law or regulation concerning:
(a) the protection of health and safety;
(b) the environment; or
(c) any emission or substance which is capable of causing harm to any
living organism or the environment.
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"Equity Offering" means the rights issue, to be underwritten by Credit
Suisse First Boston pursuant to which ordinary shares in the Company will be
offered by way of pre-emptive rights to certain qualifying shareholders of the
Company.
"Event of Default" is defined in Clause 20.
"Exchange" is defined in Clause 8.1.
"Exchange Date" is defined in Clause 8.3.
"Exchange Note" means any senior note issued by the Company in order to
refinance the Loans as contemplated by Clauses 8.1 and 8.2 and substantially in
the form attached as an exhibit to the Exchange Note Indenture.
"Exchange Note Indenture" means an indenture entered into between the
Company and a trustee pursuant to Clause 19.40, as the same may at any time be
amended, modified and supplemented, relating to the issuance of the Exchange
Notes, and substantially in the form attached hereto as Schedule 4.
"Exchange Notes Availability Date" is defined in Clause 8.5.
"Exchange Request" is defined in Clause 8.4.
"Exchange Spread" means 50 basis points.
"Existing Facility Agreement" means the credit agreement dated 12th March,
2001 (as amended from time to time) and made between the Company, The Royal Bank
of Scotland plc, Salomon Brothers International Limited, Citibank, N.A.,
National Westminster Bank Plc and others and their successors, assigns and
transferees from time to time.
"Extended Loans" is defined in Clause 2.1.
"Facility" means the loan facility referred to in Clause 2.1.
"Facility Office" means the office notified by a Lender to the Facility
Agent in writing on or before the date it becomes a Lender (or, following that
date, by not less than five Business Days' written notice) (i) as the office
through which it will perform its obligations under this Agreement where the
office is situated in Financial Action Task Force countries, or (ii) with the
prior written consent of the Agent, as the office through which it will perform
its obligations under this Agreement situated in non-Financial Action Task Force
countries.
"Fee Letter" means the letter dated February 20, 2002 from the Arrangers to
the Company, countersigned by the Company by way of acceptance simultaneously
with the execution hereof.
"Felsted" means the property known as Station Road, Felsted (excluding
Phases I and II of the project for which building licenses have been granted to
house builders), the
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freehold of which is owned by Enodis Property Developments Limited with title
numbers EX438209, EX415617 and EX400035.
"Final Bridge Maturity Date" means the date which is the tenth anniversary
of the Effective Date.
"Finance Party" means a Lender or an Administrative Party.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any acceptance credit;
(c) any bond, note, debenture, loan stock or other similar instrument;
(d) any finance or capital lease as determined in accordance with UK GAAP;
(e) receivables sold or discounted (otherwise than on a non-recourse
basis);
(f) the acquisition cost of any asset to the extent payable after its
acquisition or possession by the party liable where the deferred
payment is arranged primarily as a method of raising finance or
financing the acquisition of that asset;
(g) any derivative transaction protecting against or benefiting from
fluctuations in any rate or price (and, except for non-payment of an
amount (when that unpaid amount will be used), the then mark to market
value of the derivative transaction will be used to calculate its
amount);
(h) any other transaction (including any forward sale or purchase
agreement) which has the commercial effect of a borrowing;
(i) any counter-indemnity obligation in respect of any guarantee,
indemnity, bond, letter of credit or any other instrument issued by a
bank or financial institution; or
(j) any guarantee, indemnity or similar assurance against financial loss
of any person in respect of any item referred to in paragraphs (a) to
(i) above.
"Funds Flow Statement" means the statement prepared by the Company and
agreed with the Facility Agent showing the funds flow of the proceeds of this
Facility, the Senior Credit Facilities, the Daylight Facility and the
Subordinated Intercompany Loan on or immediately prior to or after the Effective
Date.
"Guarantor" shall have the meaning assigned to such term in the Senior
Credit Facilities.
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"Group" means Topco (if established), the Company and its Subsidiaries
and any company in which the Company or any of its Subsidiaries together with
one or more Subsidiaries of the Company own 51 per cent. or more of the issued
share capital.
"Hedging Bank" means each bank or financial institution (if any) which
is or becomes a party to the Hedging Documents as provider of interest rate or
currency swap or other hedging facilities to any of the Obligors.
"Hedging Debt" means all present and future liabilities (actual or
contingent) payable or owing by any Obligor to any Hedging Bank under or in
connection with the Hedging Documents, whether or not matured and whether or not
liquidated, together with any Additional Debt.
"Hedging Documents" means any ISDA master agreement and other currency
or interest hedging agreements or documents in each case in form and substance
satisfactory to the Facility Agent and which may be entered into by a member of
the Group with a Lender or Affiliate thereof as contemplated in the Hedging
Letter.
"Hedging Letter" means a letter dated on or about the Effective Date
between Enodis Holdings Limited and the Facility Agent relating to the interest
hedging on at least 50% of all amounts outstanding under the Senior Credit
Facilities and currency hedging to be effected by the Group.
"High Yield Refinancing" means the issuance and sale of the High Yield
Refinancing Securities.
"High Yield Refinancing Securities" means senior unsecured notes or
debentures, or other debt securities satisfactory to the Arrangers, with a
maturity of no greater than 10 years and denominated in Sterling or, with the
consent of the Company, euro or U.S. dollars, as the Arrangers may in their good
faith judgment, after consultation with the Company, determine, to be issued by
the Company after the Effective Date to refinance in part the Loans and any
Exchange Notes (including accrued interest thereon) hereunder.
"Hive-Down Agreements" means:
(a) the agreement for the sale and purchase of the business and the
assets of the Company between the Company and Enodis Holdings
Limited;
(b) the deed of agreement in relation to the transfer of the legal
title only of certain shares between the Company and Enodis
Holdings Limited;
(c) the registered intellectual property rights assignment between
the Company and Enodis Holdings Limited;
(d) the deed of release between the Company and Enodis Holdings
Limited;
(e) the agreement for the sale and purchase of the business and the
assets of Enodis Holdings Limited between Enodis Holdings Limited
and Enodis Group Limited;
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(f) a deed of agreement in relation to the transfer of the legal
title only of certain shares between Enodis Holdings Limited and
Enodis Group Limited; and
(g) the registered intellectual property rights assignment between
Enodis Holdings Limited and Enodis Group Limited,
in each case in respect of the Hive-Downs and dated on or about the
Effective Date.
"Hived-Down Assets" means the assets transferred pursuant to the
Hive-Down Documents.
"Hive-Down Documents" means the Hive-Down Agreements and all transfers
and other instruments made pursuant thereto.
"Hive-Downs" means the transfer of all the assets, liabilities and
business functions (other than any such assets, liabilities and business
functions which are identified in Schedule 2 of the Hive-Down Agreements) of the
Company from the Company to Enodis Holdings Limited and from Enodis Holdings
Limited to Enodis Group Limited as described in the Structure Memorandum and
provided for in the Hive-Down Agreements.
"Holding Company" means a holding company within the meaning of section
736 of the U.K. Companies Act 1985.
"Increased Cost" means:
(a) an additional cost incurred by a Finance Party or any of its
Affiliates as a result of it having entered into, or performing,
maintaining or funding its obligations under, any Bridge Finance
Documents;
(b) that portion of an additional cost incurred by a Finance Party or
any of its Affiliates in making, funding or maintaining all or
any advances comprised in a class of advances formed by or
including that Finance Party's participations in the Loans made
by it under this Agreement as is attributable to that Finance
Party making, funding or maintaining those participations;
(c) a reduction in any amount payable to a Finance Party or any of
its Affiliates or the effective return to a Finance Party or any
of its Affiliates under this Agreement or (to the extent that it
is attributable to this Agreement or the transactions
contemplated thereby) on its capital; or
(d) the amount of any payment made by a Finance Party or any of its
Affiliates, or the amount of interest or other return foregone by
a Finance Party or any of its Affiliates, calculated by reference
to any amount received or receivable by a Finance Party or any of
its Affiliates from any other Party under this Agreement.
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"Information Memorandum" means the information memorandum relating to
the Group to be prepared on behalf of Enodis Holdings Limited and approved by
Enodis Holdings Limited for the purposes of general syndication of the Senior
Credit Facilities.
"Initial Bridge Maturity Date" means the date which is 364 days after
the Effective Date.
"Initial Loans" is defined in Clause 2.1.
"Initial Rate" shall be determined on the Initial Bridge Maturity date
and shall be equal to the greatest of (a) the interest rate borne on Loans on
the day immediately preceding the Initial Bridge Maturity Date, (b) 850 basis
points plus the Treasury Rate on the Initial Bridge Maturity Date and (c) 50
basis points plus the Credit Suisse First Boston High Yield Index II Rate on the
Initial Bridge Maturity Date.
"Intellectual Property Rights" means:
(a) any know-how, patent, trade mark, service mark, design, business
name, domain name, topographical or similar right;
(b) any copyright, data base or other intellectual property right; or
(c) any interest in the above,
in each case whether registered or not and includes any related
application.
"Interest Payment Date" means, with respect to any Loan, the last day
of the Interest Period applicable to such Loan, and, in addition, the date of
any prepayment of such Loan.
"Interest Period" means (i) prior to the Initial Bridge Maturity Date,
as to any Loan, the period commencing on the date of the borrowing of such Loan
and ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is three months
thereafter; provided, however, that, during the three-month period prior to the
anticipated issuance by the Company of High Yield Refinancing Securities, the
Company may elect Interest Periods of shorter duration (one day, one week or one
or two months) upon five Business Days prior written notice to the Facility
Agent, and (ii) following the Initial Bridge Maturity Date, the period
commencing on the Initial Bridge Maturity Date and ending on the successive
semi-annual periods thereafter ending on the next succeeding March 1 or
September 1 and the period ending on the Final Bridge Maturity Date or the date
such Loan is repaid or prepaid; provided, however, that if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of clause (i)
above, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day.
"Intra-Group Funding Agreement" means the agreement between Enodis
Holdings Limited and various of its Subsidiaries providing (inter alia) for
those
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Subsidiaries to make loans to Enodis Holdings Limited on demand by it for the
purpose of providing it with funds to (i) meet its payment obligations under the
Senior Finance Documents and (ii) subject to the terms of the Senior Finance
Documents, make servicing payments on the Subordinated Intercompany Loan and
other limited payments to the Company.
"Lenders" means the Original Lenders and any financial institution that
becomes a Lender after the date of this Agreement pursuant to and in accordance
with the terms hereof.
"LIBOR" means for an Interest Period of any Loan or overdue amount:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the Interest Period of that
Loan or overdue amount, the arithmetic mean (rounded upward to
four decimal places) of the rates, as supplied to the Facility
Agent at its request, quoted by the Reference Banks to leading
banks in the London interbank market,
as of 11.00 a.m. on the Rate Fixing Day for the offering of deposits in
Sterling for a period comparable to that Interest Period.
"Loan Notes" is defined in Clause 5.2.
"Loans" means the Initial Loans and the Extended Loans, and shall
include any Loan evidenced by Loan Notes issued in accordance with Clause 5.2.
"Majority Lenders" means, at any time, Lenders:
(a) whose share in the outstanding Loans and whose undrawn
Commitments then aggregate 66 2/3 per cent. or more of the
aggregate of all the outstanding Loans and the undrawn
Commitments of all the Lenders;
(b) if there is no Loan then outstanding, whose undrawn Commitments
then aggregate 66 2/3 per cent. or more of the Total Commitments;
or
(c) if there is no Loan then outstanding and the Total Commitments
have been reduced to zero, whose Commitments aggregated 66 2/3
per cent. or more of the Total Commitments immediately before the
reduction.
"Mandatory Cost" means the cost of complying with certain regulatory
requirements, expressed as a percentage rate per annum and calculated by the
Facility Agent under Schedule 6 hereto.
"Margin Stock" means margin stock or "margin security" within the
meaning of Regulations T, U and X.
"Material Adverse Effect" means a material adverse effect on:
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(a) the ability of the Company (taking into account resources
lawfully available to it from other members of the Group) to
perform its payment obligations under any Bridge Finance
Document;
(b) the ability of the Company to comply with any term of Clause 18
(Financial covenants);
(c) the validity or enforceability of any Bridge Finance Document; or
(d) the rights and remedies of any Finance Party under the Bridge
Finance Documents.
"Material Subsidiary" means, at any time, a Subsidiary of the Company
whose gross assets or profits before interest, Tax and exceptional or
extraordinary items ("EBIT") (excluding intra-Group items) (consolidated with
those of its Subsidiaries in the case of a Subsidiary which itself has
Subsidiaries) then equal or exceed 5 per cent. of the gross assets or EBIT of
the Group.
For this purpose:
(a) the gross assets or EBIT of a Subsidiary of the Company will be
determined from the accounting records of the Group upon which
the latest quarterly financial statements of the Group have been
based;
(b) if a Subsidiary of the Company becomes a member of the Group
after the date on which the latest quarterly financial statements
of the Group have been prepared, the gross assets or EBIT of that
Subsidiary (consolidated if applicable) will be determined from
its latest financial statements;
(c) the gross assets or EBIT of the Group will be determined from its
latest quarterly financial statements, adjusted (where
appropriate) to reflect the gross assets or EBIT of any company
or business subsequently acquired or disposed of;
(d) if a Material Subsidiary disposes of all or substantially all of
its assets to another Subsidiary of the Company, it will
immediately cease to be a Material Subsidiary and the other
Subsidiary (if it is not already) will immediately become a
Material Subsidiary; the subsequent accounting records of the
Group upon which the latest financial statements of the Group
have been prepared will be used to determine whether those
Subsidiaries are Material Subsidiaries or not; and
(e) gross assets does not include goodwill.
If there is a dispute as to whether or not a company is a Material
Subsidiary, a certificate of the Auditors of the Company will be, in
the absence of manifest error, conclusive.
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"Maturity Date" means, at any particular time with respect to a
particular Loan, the date on which the principal and all accrued and unpaid
interest on such Loan is then due, which may be the Initial Bridge Maturity Date
or the Final Bridge Maturity Date, or such other date as may be determined
hereunder as a result of a Default, redemption or otherwise.
"Measurement Period" has the meaning given to that term in Clause 18.
"Net Proceeds" means any amount received or recovered by a member of
the Group in respect of:
(a) the consideration for a Disposal or Share Disposal to a person
who is not a member of the Group (including the amount of any
intercompany loan repaid to continuing members of the Group) net
of all Taxes applicable on, or to any gain resulting from, such
Disposal or Share Disposal and of all reasonable third party
costs, fees or expenses incurred by continuing members of the
Group in arranging and effecting such Disposal or Share Disposal;
or
(b) the proceeds of any claim or claims for loss or damage to its
assets or business.
"Obligor" shall have the meaning assigned to such term in the Senior
Credit Facilities.
"Original Financial Statements" means for the Company its audited
consolidated financial statements for the year ended 30th September, 2001, the
unaudited consolidated financial statements for the Company's financial quarter
ending on 29th December, 2001.
"Party" means a party to this Agreement.
"Permitted Additional Dividend" shall have the meaning assigned to such
term in the Senior Credit Facilities.
"Permitted Distributions" shall have the meaning assigned to such term
in the Senior Credit Facilities.
"PIK Interest Amount" means, with respect to any period in which a Loan
or Exchange Note bears interest at a rate in excess of 14% per annum, the
aggregate amount equal to the excess amount of interest borne by such Loan or
Exchange Note for such period.
"Priority Deed" means the priority deed dated on or about the date
hereof between, among others, the Finance Parties (as defined in the Senior
Credit Facilities) and certain members of the Group as intercompany debtors and
creditors.
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"Pro Rata Share" means:
(a) for the purpose of determining a Lender's share in a Loan, the
proportion which its Commitment in the Facility bears to the
Commitments of all the Lenders in the relevant Facility; and
(b) for any other purpose on a particular date:
(i) the proportion which a Lender's share of the Loans (if
any) bears to all the Loans;
(ii) if there is no Loan outstanding on that date, the
proportion which its Commitment bears to the Total
Commitments on that date; or
(iii) if the Total Commitments have been cancelled, the
proportion which its Commitments bore to the Total
Commitments immediately before being cancelled.
"Rate Fixing Day" means the first day of an Interest Period for a Loan.
"Recognized Stock Exchange" means a recognized stock exchange within
the meaning of section 841 of the U.K. Income and Corporation Taxes Act of 1988.
"Reference Banks" means the Facility Agent, The Royal Bank of Scotland
plc and any other bank or financial institution appointed as such by the
Facility Agent in consultation with the Company under this Agreement.
"Regulations T, U and X" means, respectively, Regulations T, U and X of
the Board of Governors of the Federal Reserve System of the U.S. (or any
successor) as now and from time to time hereafter in effect.
"Repeating Representations" means the representations which are deemed
to be repeated under this Agreement.
"Request" means a request for Initial Loans, substantially in the form
attached hereto as Schedule 5.
"Required Payments" shall have the meaning assigned to such term in the
Senior Credit Facilities.
"Screen Rate" means for LIBOR the British Bankers Association Interest
Settlement Rate (if any) for the Interest Period displayed on the appropriate
page of the Telerate screen selected by the Facility Agent. If the relevant page
is replaced or the service ceases to be available, the Facility Agent (after
consultation with the Company and the Lenders) may specify another page or
service displaying the appropriate rate.
"Securities Act" means the United States Securities Act of 1933.
"Security Document" means each security document listed in Part I of
Schedule 2 to the Senior Credit Facilities under the heading "Security
Documents".
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"Security Interest" means any mortgage, pledge, lien, charge, assignment,
hypothecation or security interest or any other agreement or arrangement having
a similar effect.
"Senior Credit Facilities" shall mean the Senior Credit Agreement dated as
of February 20, 2002, entered into by and among Enodis Holdings Limited, certain
Subsidiaries of Enodis Holdings Limited as original borrowers, certain
Subsidiaries of Enodis Holdings Limited as original guarantors, the lenders
referred to therein, Credit Suisse First Boston and The Royal Bank of Scotland
plc, as Arrangers, and The Royal Bank of Scotland plc, as Facility Agent and
Issuing Bank, together with the related documents thereto (including the term
loans and revolving loans thereunder, any guarantees and security documents), as
amended, extended, renewed, restated, supplemented or otherwise modified (in
whole or in part, and without limitation as to amount, terms, conditions,
covenants and other provisions) from time to time, and any agreement (and
related document) governing Indebtedness (as defined in the Exchange Note
Indenture) incurred to Refinance (as defined in the Exchange Note Indenture), in
whole or in part, the borrowings and commitments then outstanding or permitted
to be outstanding under such Senior Credit Agreement or a successor Credit
Agreement, whether by the same or any other lender or group of lenders.
"Senior Creditor" means each of:
(a) the banks and financial institutions named in Schedule 1 of the Senior
Credit Facilities in their capacity as Original Lenders and/or
Ancillary Lender and/or Issuing Bank under (and as defined in) the
Senior Credit Facilities or the Daylight Facility Agreement;
(b) the Arrangers and the Facility Agent (in each case as defined in the
Senior Credit Facilities); and
(c) any successor, permitted transferee, replacement or assignee of any of
the above.
"Senior Debt" means all present and future liabilities (actual or
contingent) payable or owing by any Obligor to any Senior Creditor under or in
connection with the Senior Finance Documents, whether or not matured and whether
or not liquidated, together with, without duplication, any Additional Debt.
"Senior Discharge Date" means the date on which the Agent (as defined in
the Senior Credit Facilities) is satisfied that all of the Senior Debt and
Hedging Debt has been irrevocably paid and discharged and all Commitments (as
defined in the Senior Credit Facilities) of the Senior Creditors and all
obligations of the Hedging Banks under the Hedging Documents have been
terminated.
"Senior Finance Documents" shall mean the Finance Documents, as such term
is defined in the Senior Credit Facilities.
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"Structure Memorandum" means the Funds Flow Statement, the memorandum and
chart referred to at paragraph 16 of Part I of Schedule 2 to the Senior Credit
Facilities.
"Subordinated Intercompany Loan" means the subordinated intercompany loan
in an amount of up to (pound)150,000,000 made available to Enodis Holdings
Limited pursuant to the terms of the Subordinated Intercompany Loan Agreement.
"Subordinated Intercompany Loan Agreement" means the agreement dated on or
about the Effective Date between the Company as lender and Enodis Holdings
Limited as borrower.
"Subordinated Loan Servicing Payments" shall have the meaning assigned to
such term in the Senior Credit Facilities.
"Subordination Agreement" means the deed dated on or about the Effective
Date among the Company, Enodis Holdings Limited and The Royal Bank of Scotland
as agent for the lenders under the Senior Credit Facilities relating to the
subordination of the Subordinated Intercompany Loan.
"Subsidiary" means (a) a subsidiary within the meaning of section 736 of
the U.K. Companies Act 1985, and (b) unless the context otherwise requires, a
subsidiary undertaking within the meaning of section 258 of the U.K. Companies
Act 1985.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any related penalty or interest).
"Tax Deduction" means a deduction or withholding for or on account of Tax
from a payment under a Bridge Finance Document.
"Tax Payment" means a payment made by the Company to a Finance Party in any
way relating to a Tax Deduction.
"Topco" means any Holding Company of the Company which at the time it
becomes a Holding Company of the Company is owned and controlled by
substantially the same shareholders as own and control the Company immediately
prior to that date.
"Total Commitments" means the aggregate of the Commitments of the Lenders.
"Transaction Documents" means:
(a) the Bridge Finance Documents;
(b) the Bond Documents;
(c) the Senior Finance Documents;
(d) the Daylight Facility Agreement;
(e) the Subordinated Intercompany Loan Agreement;
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(f) the Subordination Agreement; and
(g) the Hive-Down Documents.
"Transfer Certificate" means a document substantially in the form attached
hereto as Schedule 7.
"Treasury Rate" means (a) the rate borne by direct obligations of the
United Kingdom maturing on the tenth anniversary of the Effective Date and (b)
if there are no such obligations, the rate determined by linear interpolation
between the rates borne by two direct obligations of the United Kingdom maturing
closest to, but straddling, the tenth anniversary of the Effective Date, in each
case as published by the U.K. Debt Management Office.
"Trustee" means the trustee under the Exchange Note Indenture.
"U.K." means the United Kingdom.
"U.S." and "United States" means the United States of America.
"U.S. Group Company" means any subsidiary of the Company incorporated in
the United States of America.
"Utilization Date" means the date on which the Initial Loans are made.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) an "amendment" includes a supplement, novation, restatement or
re-enactment and "amended" will be construed accordingly;
"assets" includes present and future properties, revenues and
rights of every description;
an "authorization" includes an authorization, consent,
approval, resolution, license, exemption, filing, registration
or notarization;
"disposal" means a sale, transfer, grant, lease or other
disposal, whether voluntary or involuntary, and "dispose" will
be construed accordingly;
"indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money;
a "person" includes any individual, company, corporation,
unincorporated association or body (including a partnership,
trust, joint venture or consortium), government, state, agency,
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organization or other entity whether or not having separate
legal personality;
a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law but, if not having the force of law, being of a
type with which any person to which it applies is accustomed to
comply) of any governmental, inter-governmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organization;
(ii) a currency is a reference to the lawful currency for the time
being of the relevant country;
(iii) a Default being "outstanding" means that it has not been
remedied or waived;
(iv) a provision of law is a reference to that provision as
extended, applied, amended or re-enacted and includes any
subordinate legislation;
(v) a Clause, a Subclause or a Schedule is a reference to a clause
or subclause of, or a schedule to, this Agreement;
(vi) a person includes its successors in title, permitted assigns
and permitted transferees;
(vii) a Transaction Document or another document is a reference to
that Transaction Document or other document as amended; and
(viii) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a reference to a "month" or
"months" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month or the calendar month in which it is to end, except
that:
(i) if the numerically corresponding day is not a Business Day, the
period will end on the next Business Day in that month (if
there is one) or the immediately preceding Business Day (if
there is not);
(ii) if there is no numerically corresponding day in that month,
that period will end on the last Business Day in that month;
and
(iii) notwithstanding sub-paragraph (i) above, a period which
commences on the last Business Day of a month will end on the
last Business Day in the next month or the calendar month in
which it is to end, as appropriate.
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(c) Unless expressly provided to the contrary in a Bridge Finance
Document, a person who is not a party to a Bridge Finance Document may
not enforce any of its terms under the Contracts (Rights of Third
Parties) Act 1999 and notwithstanding any term of any Bridge Finance
Document, the consent of any third party is not required for any
variation (including any release or compromise of any liability under)
or termination of that Bridge Finance Document.
(d) Unless the contrary intention appears:
(i) a reference to a Party will not include that Party if it has
ceased to be a Party under this Agreement;
(ii) an amount in euro is payable only in the euro unit;
(iii) a term used in any other Bridge Finance Document or in any
notice given in connection with any Bridge Finance Document has
the same meaning in that Bridge Finance Document or notice as
in this Agreement; and
(iv) any obligation of the Company under the Bridge Finance
Documents which is not a payments obligation remains in force
for so long as any payment obligation is or may be outstanding
under the Bridge Finance Documents.
The headings in this Agreement do not affect its interpretation.
2. FACILITY
2.1 Facility
(a) Subject to the terms of this Agreement, each of the Lenders agrees,
severally and not jointly, to make a loan (individually, an "Initial
Loan" and collectively, the "Initial Loans") up to an aggregate
principal amount equal to such Lender's Commitment. The Initial Loans
shall have an aggregate principal amount of (pound)150,000,000.
Amounts paid or prepaid in respect of Loans may not be reborrowed.
(b) Subject to the terms and conditions hereof, each Lender severally
agrees,
(i) if its Initial Loans have not been repaid on the Initial Bridge
Maturity Date, and
(ii) to the extent the Lender has not exercised its option to
receive Exchange Notes prior to the Initial Bridge Maturity
Date in exchange for all or part of its Initial Loan pursuant
to Clause 8,
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to extend the Maturity Date of its Initial Loan until the Final Bridge
Maturity Date (any Initial Loan, or portion thereof, so extended, an
"Extended Loan"). Amounts paid or prepaid in respect of Extended Loans
may not be reborrowed.
(c) Notwithstanding any other term of this Agreement, the Loans shall not,
at any time, exceed the Total Commitments.
2.2 Nature of a Lender's Rights and Obligations
Unless otherwise agreed by all the Finance Parties:
(a) the obligations of a Finance Party under the Bridge Finance Documents
are several;
(b) failure by a Finance Party to perform its obligations does not affect
the obligations of any other Party under the Bridge Finance Documents;
(c) no Finance Party is responsible for the obligations of any other
Finance Party under the Bridge Finance Documents;
(d) the rights of a Finance Party under the Bridge Finance Documents are
separate and independent rights;
(e) a debt arising under the Bridge Finance Documents to a Finance Party
is a separate and independent debt; and
(f) a Finance Party may, except as otherwise stated in the Bridge Finance
Documents, separately enforce those rights.
2.3 Affiliates of Lenders
(a) Each Lender may, if it so elects, fulfill its commitment to make an
Initial Loan by designating a branch or an Affiliate to make that
Initial Loan. However:
(i) the Lender shall remain solely responsible for the performance
of its obligations under this Agreement;
(ii) no such designation shall result in any increased costs or Tax
Payment to the Company; and
(iii) the branch or Affiliate shall comply with all form delivery and
other requirements under this Agreement.
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(b) A Lender may provide for an Affiliate to participate in an Initial
Loan in the manner contemplated in paragraph (a) above by:
(i) joining the relevant Affiliate in as a Lender; and
(ii) giving notice to the Facility Agent and the Company.
In this event that Lender and its Affiliate will be treated as having a
single Commitment, but, for all other purposes other than that mentioned in
paragraph (a) above and paragraph (c) below, will be treated as separate
Lenders.
(c) For the purposes of:
(i) compliance with Clause 27.2; and
(ii) voting in connection with any Bridge Finance Document,
each Lender and its Affiliate will be regarded as a single Lender.
3. PURPOSE
3.1 Purpose of the Loans
The proceeds of the Initial Loans shall only be used:
(a) to make the Subordinated Intercompany Loan to Enodis Holdings Limited
under the Subordinated Intercompany Loan Agreement, which in turn will
be used by Enodis Holdings Limited to repay outstanding indebtedness
under the Daylight Facility; and
(b) to pay related fees and expenses.
3.2 Undertaking by the Company
The Company undertakes that it will only utilize the Initial Loans as
permitted by this Clause 3.
3.3 No Obligation to Monitor
No Finance Party is bound to monitor or verify the use of the Initial
Loans.
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4. CONDITIONS PRECEDENT
4.1 Conditions precedent documents
A Request may not be given until the Facility Agent has notified the
Company and the Lenders that it has received all of the documents and evidence
set out in Schedule 2 hereto in form and substance satisfactory to the Facility
Agent. The Facility Agent must give this notification as soon as reasonably
practicable following receipt of such documents and evidence.
4.2 Further conditions precedent
The obligations of each Lender to participate in any Loan are subject
to the further conditions precedent that on both the date of the Request and the
Utilization Date for that Loan:
(a) the Repeating Representations are correct in all material respects;
and
(b) no Default is outstanding or would result from the Loan.
5. DRAWDOWN OF THE FACILITY AND LOAN NOTES
5.1 Drawdown
Subject to the other terms of this Agreement, the Initial Loans shall
be drawn down in one advance of (pound)150,000,000 on or about the date of this
Agreement upon request by the Company by giving the Facility Agent a duly
completed Request. Upon such drawdown, the Facility shall cease to be available
for utilization and shall be cancelled and the Total Commitments shall be
cancelled.
5.2 Loan Notes
Any Lender may request at any time that Loans made by it be evidenced
by a promissory note (a "Loan Note"). In such event, the Company shall prepare,
execute and deliver to such Lender a Loan Note payable to the order of such
Lender (or, if requested by such Lender, to such Lender and its permitted
assigns) and in a form approved by the Facility Agent (acting reasonably).
Thereafter, the Loans evidenced by such Loan Note and interest thereon shall at
all times (including after assignment pursuant to Clause 27.2) be represented by
one or more Loan Notes in such form payable to the order of the payee named
therein (or, if such Loan Note is a registered note, to such payee and its
permitted assigns). Each Lender shall, and is hereby authorized by the Company
to, endorse on the schedule attached to each Loan Note delivered to such Lender
(or on a continuation of such schedule attached to such Loan Note and made a
part thereof), or otherwise to record in such Lender's internal records, an
appropriate notation evidencing the date and
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amount of each Loan from such Lender, each payment and prepayment of principal
of any such Loan, each payment of a PIK Interest Amount pursuant to Clause
9.1(d), each payment of interest on any such Loan and the other information
provided for on such schedule; provided, however, that the failure of any Lender
to make such a notation or any error therein shall not in any manner affect the
obligation of the Company to repay the Loans made by such Lender in accordance
with the terms of this Agreement and the applicable Loan Note.
6. REPAYMENT
The Company shall repay the Loans in full on the Final Bridge Maturity
Date; provided, however, that if the High Yield Refinancing is completed prior
to the Final Bridge Maturity Date, the entire net proceeds (other than fees and
expenses) of the High Yield Refinancing shall be used to repay the Loans in full
or in part; provided, further, that if the Equity Offering is completed prior to
the Final Bridge Maturity Date, the entire net proceeds (other than fees and
expenses) of the Equity Offering shall be used to repay the Loans in full or in
part.
7. PREPAYMENT AND CANCELLATION
7.1 Definitions and interpretation
In this Clause:
"Consolidated Cashflow", "Consolidated Total Debt Service",
"Consolidated Total Net Debt", "Consolidated EBITDA" and "Measurement Period"
have the meaning given to them in Clause 18;
"Disposal" means a disposal made after the date of this Agreement of
any of the assets (including any disposal of property), business or undertaking
of any member of the Group (other than a disposal referred to in Clause
19.6(b)(ii) to (vii) and other than a Share Disposal) either in a single
transaction or in a series of transactions, whether related or not, the gross
proceeds (including any non-Cash consideration) of which individually exceed
(pound)750,000 or when aggregated with all other such disposals made after the
date of this Agreement exceed (pound)10,000,000; and
"Share Disposal" means a disposal made after the date of this Agreement
by any member of the Group of any shares in any member of the Group.
Any accounting term or terms used in the accounts and used in this
Clause are to be construed in accordance with the Accounting Principles.
7.2 Exchange Note Indenture
On and after the Initial Bridge Maturity Date, Loans and Exchange Notes
will be prepaid in accordance with the Exchange Note Indenture.
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7.3 Mandatory prepayment - illegality
(a) A Lender must notify the Company promptly if it becomes aware
that it is unlawful in any jurisdiction for that Lender to
perform any of its obligations under a Bridge Finance Document
or to fund or maintain its share in any Loan.
(b) After notification under paragraph (a) above:
(i) subject to Enodis Holdings Limited's compliance with
the Senior Credit Facilities, the Company must repay
or prepay the share of that Lender in each Loan or
Exchange Note utilized by it on the date specified in
paragraph (c) below; and
(ii) the Commitment of that Lender will be immediately
cancelled.
(c) The date for repayment or prepayment of a Lender's share in a
Loan or Exchange Note will be:
(i) the last day of the current Interest Period for that
Loan or Exchange Note as at the date of receipt by
the Company of notice from the Lender under paragraph
(a) above; or
(ii) if earlier, the latest date allowed by the relevant
law.
7.4 Mandatory prepayment - change of control/ownership
(a) The Company must promptly notify the Facility Agent if:
(i) it becomes aware of any person (other than Topco) or
group of persons acting in concert gaining control of
the Company, Enodis Holdings Limited, Enodis Group
Limited or (following its establishment) Topco;
(ii) Enodis Holdings Limited ceases to be a wholly-owned
Subsidiary of the Company;
(iii) Enodis Group Limited ceases to be a wholly-owned
Subsidiary of Enodis Holdings Limited;
(iv) all or substantially all of the assets or business of
the Group are sold; or
(v) the Company is aware that any of the above events
will, or are likely to, occur.
(b) After notification under paragraph (a) above, if (1) the
Senior Creditors under the Senior Credit Facilities have
required cancelation and
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acceleration under Clause 11.3 of the Senior Credit Facilities
and (2) the Majority Lenders so require, the Facility Agent
must, by notice to the Company:
(i) cancel the Total Commitments; and
(ii) declare all outstanding Loans and Exchange Notes,
together with accrued interest and all other amounts
accrued under the Bridge Finance Documents, to be
immediately due and payable.
Any such notice will take effect in accordance with its terms.
(c) In paragraph (a) above:
"control" has the meaning given to it in section 416 of the Income and
Corporation Taxes Act 1988; and
"acting in concert" has the meaning given to it in the City Code on
Takeovers and Mergers.
7.5 Mandatory prepayment - Disposals and Share Disposals
(a) Following the Senior Discharge Date, the Company must apply
forthwith after receipt an amount equal to the Net Proceeds
arising from any Disposal or Share Disposal towards prepaying
the Loans and Exchange Notes.
(b) If Compliance Certificates for the two most recent consecutive
Measurement Periods show that the ratio of Consolidated Total
Net Debt to Consolidated EBITDA was below 2.0:1, mandatory
prepayment in accordance with paragraph (a) above will not be
required.
(c) Any prepayment under this Subclause must be made on the last
day of the Interest Period of the Loan or Exchange Note to be
prepaid in which the relevant receipt or recovery occurred or,
if the Company elects by notice to the Facility Agent, on the
date of receipt or recovery of the Net Proceeds by a member of
the Group.
(d) Notwithstanding paragraphs (a) and (c) above any non-Cash
consideration required to be applied towards prepaying Loans
shall be so applied only on the date of the realization in
Cash by any member of the Group of such non-Cash
consideration.
7.6 Mandatory prepayment - Surplus Cashflow
(a) In this Subclause:
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"Surplus Cashflow" means Consolidated Cashflow during any financial
year:
(i) minus Consolidated Total Debt Service during such
period;
(ii) before deducting dividends paid by the Company during
or in respect of such period,
commencing with the financial year ending 28th September,
2002.
(b) Following the Senior Discharge Date, if the annual cashflow
statement of the Group delivered to the Facility Agent
demonstrates that there is Surplus Cashflow for such financial
year, the Company must apply an amount equal to 75 per cent.
of that Surplus Cashflow towards prepaying the Loans and
Exchange Notes (provided that the Company may take into
account any Semi-annual Surplus Cashflow prepayment made
during such financial year when calculating if any amount is
payable with respect to 75 per cent. of Surplus Cashflow for
such financial year).
"Semi-annual Surplus Cashflow"
means Consolidated Cashflow during the first half of any financial
year:
(i) minus Consolidated Total Debt Service during such
period;
(ii) before deducting dividends paid by the Company during
or in respect of such period.
(c) If the Company wishes to distribute a semi-annual Permitted
Additional Dividend, it must deliver to the Facility Agent a
semi-annual cashflow statement of the Group. Following the
Senior Discharge Date, to the extent this demonstrates that
there is Semi-annual Surplus Cashflow for such financial
half-year, prior to the making of any semi-annual dividend the
Company must apply an amount equal to 75 per cent. of that
Semi-annual Surplus Cashflow towards prepaying the Loans and
Exchange Notes.
(d) To the extent a Semi-annual Surplus Cashflow prepayment has
been made in accordance with paragraph (c) above, a Permitted
Additional Dividend may be distributed in accordance with
Clause 19.27.
(e) If Compliance Certificates for two consecutive Measurement
Periods show that the ratio of Consolidated Total Net Debt to
Consolidated EBITDA was below 2.0:1, mandatory prepayment in
accordance with paragraph (b) or paragraph (c) above will not
be required.
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(f) Any prepayment under this Subclause must be made on or before
the last day of the then current Interest Period of the Loans
or Exchange Notes in which (in the case of any prepayment
required under paragraph (b) above) the annual cashflow
statement of the Group establishing that there has been
Surplus Cashflow is delivered to the Facility Agent and (in
the case of any prepayment required under paragraph (c) above)
the semi-annual cashflow statement of the Group establishing
that there has been Surplus Cashflow is delivered to the
Facility Agent.
7.7 Mandatory prepayment - insurance proceeds
(a) Following the Senior Discharge Date, if the total Net Proceeds
from any insurance claim due to the loss of or damage to
assets (excluding in respect of interruption of business, loss
of profit or similar) made after the date of this Agreement
exceeds (pound)750,000 in any financial year of the Group, the
Company must apply (or procure that there is applied) an
amount equal to those Net Proceeds towards prepaying the Loans
and Exchange Notes in accordance with Clause 7.9 unless and to
the extent that those proceeds have been applied or
contractually committed with third party contractors for
application in replacement or reinstatement of damaged assets
within 9 months of receipt of such proceeds.
(b) Any prepayment under this Subclause must be made on or before
the last day of the Interest Period of the Loan or Exchange
Note to be prepaid in which receipt of the relevant insurance
proceeds occurred.
7.8 Voluntary prepayment
(a) Following the Senior Discharge Date and prior to the Initial
Bridge Maturity Date, the Company may, by giving not less than
3 Business Days' prior notice to the Facility Agent, prepay
any Loan or Exchange Note at any time in whole or in part.
(b) A prepayment of part of a Loan or the Exchange Notes must be
in a minimum amount of (pound)5,000,000 and an integral
multiple of (pound)1,000,000.
7.9 Order of application of prepayments
Prepayments of the Loans and Exchange Notes shall be made ratably among
the Loans and Exchange Notes. After the Facility Agent receives the prepayment
amount, such prepayment amount shall be distributed by the Facility Agent, in
cooperation with the Trustee, in accordance with Clause 15.7, with appropriate
adjustments being made to account for the receipt by the Trustee of any
prepayment in respect of the Exchange Notes. Redemptions of Exchange Notes shall
be made in accordance with the provisions relating thereto in the Exchange Note
Indenture, and with applicable law. The
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distribution of the relevant prepayment amount hereunder to Lenders and the
Trustee for the Exchange Notes by the Facility Agent shall be made as soon as
practicable after receipt thereof.
7.10 Automatic cancellation
The Commitments of each Lender will be automatically cancelled
immediately following drawdown.
7.11 Involuntary prepayment and cancellation
(a) If the Company is, or will be, required to pay to a Lender a
Tax Payment or an Increased Cost, the Company may, while the
requirement continues, give notice to the Facility Agent
requesting prepayment and cancellation in respect of that
Lender.
(b) After notification regarding a Lender under paragraph (a)
above:
(i) Following the Senior Discharge Date, the Company must
repay or prepay that Lender's share in each Loan made
to it on the date specified in paragraph (c) below;
and
(ii) the Commitment of that Lender will be immediately
cancelled.
(c) The date for repayment or prepayment of a Lender's share in a
Loan will be the last day of the Interest Period for a Loan
or, if earlier, the date specified by the Company in its
notification.
7.12 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this
Agreement is irrevocable and must specify the relevant date(s)
and the affected Loans and Commitments. The Facility Agent
must notify the Lenders promptly of receipt of any such
notice.
(b) All prepayments under this Agreement must be made with accrued
interest on the amount prepaid. No premium or penalty is
payable in respect of any prepayment except for Break Costs.
(c) The Majority Lenders may agree a shorter notice period for a
voluntary prepayment or a voluntary cancellation.
(d) No prepayment or cancellation is allowed except in accordance
with the express terms of this Agreement.
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(e) No amount of the Total Commitments cancelled under this
Agreement may subsequently be reinstated.
8. EXCHANGE NOTES
8.1 Optional exchange at any time
Each Lender will have the option at any time, and from time to time,
after the earlier of the Exchange Notes Availability Date and the date that is
90 days following the Effective Date, to receive Exchange Notes in exchange for
the Loans (or a portion thereof) (including any interest not required to be paid
in cash (including, for the avoidance of doubt, interest payable but which the
Company has elected to capitalize in respect of the PIK Interest Amount)) of
such Lender then outstanding pursuant to Clause 19.40 of this Agreement (each
such event being referred to herein as an "Exchange"). No interest will be
payable on an Exchange Date unless the Exchange Date is also an Interest Payment
Date.
8.2 [Reserved.]
8.3 Terms of Exchange Notes
The principal amount of the Exchange Notes will equal 100.0% of the
aggregate principal amount (including any accrued interest not required to be
paid in cash (including, for the avoidance of doubt, interest payable but which
the Company has elected to capitalize in respect of the PIK Interest Amount)) of
the Loans (or the portions thereof) for which they are exchanged. The Exchange
Notes will rank pari passu with the Loans, will be issued pursuant to the
Exchange Note Indenture and will have the terms provided for therein; provided,
however, that any Exchange Notes issued prior to the Initial Bridge Maturity
Date will be deemed, in accordance with Article IA of the Exchange Note
Indenture, to have specified terms and rights which are identical to those of
the Initial Loans (which, for the avoidance of doubt, will exclude any right to
the issuance of Loan Notes pursuant to Clause 5.2 hereof) until the Initial
Bridge Maturity Date notwithstanding the terms and rights set forth in the
Description of the Exchange Notes and the Exchange Note Indenture. Following the
date an Exchange occurs (an "Exchange Date"), (i) the Company shall, pursuant to
the provisions of this Clause 8, pay any accrued and unpaid interest required to
be paid in cash on the Loans so exchanged on the next Interest Payment Date
under the Exchange Notes received in exchange therefor, (ii) the Exchange Note
shall represent the obligation of the Company to pay such amounts and (iii) the
Loans so exchanged shall no longer represent such obligation. So long as no
Default or Event of Default has occurred and is continuing, the Company shall
not be responsible for any Break Costs incurred by a Lender in connection with
an Exchange. If a Default (but not an Event of Default) shall have occurred and
be continuing on the date of such Exchange, any notices given or cure periods
commenced while the Loan was outstanding shall be deemed given or commenced (as
of the actual dates thereof) for all purposes with respect to the Exchange Note
(with the same effect as if the Exchange Note had been outstanding as of the
actual dates thereof). If a holder of
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Exchange Notes receives payment of amounts due in respect of the corresponding
Loans through the Exchange Date, such payment shall be in satisfaction of, and
shall constitute the discharge of, the corresponding obligations under the
Loans, along with any applicable Loan Notes, and the Company will have no
further obligations in respect of such Loans or Loan Notes.
8.4 Exchange request
In order to effect an Exchange, a Lender shall provide the Facility
Agent written or telecopy notice (an "Exchange Request") in the form attached
hereto as Schedule 9 at least seven Business Days prior to an Exchange Date
(which shall also be a Business Day) selected by such Lender for an Exchange in
compliance with Clause 8.3 above. Each Exchange Request shall specify the
following:
(a) the Lender's legal name;
(b) the Exchange Date selected by such Lender; and
(c) the principal amount of the Loans to be exchanged pursuant to
the applicable notice (which amount shall be (x) at least
(pound)5,000,000 and integral multiples of (pound)1,000,000 in
excess thereof or (y) if less, the entire remaining aggregate
principal amount of such Lender's Loans).
In addition, such Lender shall provide such other information
reasonably requested by the Facility Agent. Upon receipt of an Exchange
Request, the Facility Agent shall send, on the date that is five
Business Days prior to the Exchange Date specified in such Exchange
Request, written or telecopy notice of such proposed Exchange to the
trustee under the Exchange Note Indenture, with a copy to the Company,
that shall specify the information contained in such Exchange Request.
8.5 Availability
The Company may, at its option, give written notice to the Facility
Agent and the Lenders that it will make Exchange Notes available prior to the
date that is 90 days following the Effective Date for those Lenders who would
like to receive Exchange Notes in exchange for the Loans (or a portion thereof)
of such Lender then outstanding; provided, however, that the Company will give
such notice at least 30 days prior to the date on which Exchange Notes become
available (the "Exchange Notes Availability Date"), which notice shall specify
the proposed Exchange Notes Availability Date. Upon receiving the notice
provided for in this Clause 8.5, the Lenders may exchange their Loans on and
after the Exchange Notes Availability Date pursuant to the provisions of this
Clause 8.
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9. INTEREST
9.1 Interest on Loans
(a) Subject to Clause 9.3, the Initial Loans (including, for the
avoidance of doubt, any Exchange Notes issued prior to the
Initial Bridge Maturity Date) shall bear interest (computed on
the basis of the actual number of days elapsed over a year of
365 days) on the unpaid principal thereof for each Interest
Period at a rate per annum equal to the Adjusted LIBOR in
effect for such Interest Period plus the Applicable Spread.
(b) Subject to Clause 9.3, Extended Loans shall bear interest
(computed on the basis of a year of twelve 30-day months) on
the unpaid principal thereof for each Interest Period at a
rate per annum equal to the Initial Rate plus the Exchange
Spread.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in
this Agreement. The applicable Adjusted LIBOR, Initial Rate,
Applicable Spread and Exchange Spread for each Interest Period
or day within an Interest Period, as the case may be, shall be
determined by the Facility Agent, and such determination shall
be conclusive absent manifest error.
(d) Notwithstanding the foregoing clauses but subject to Clause
9.3, the interest rate borne by the Loans at any time during
the term of the Facility shall not exceed 16% per annum. To
the extent the interest on any Loan exceeds a rate of 14% per
annum, the Company may elect to discharge such excess interest
by capitalizing and adding the applicable PIK Interest Amount
on each relevant Interest Payment Date to the then outstanding
aggregate principal amount of Loans and Exchange Notes in an
aggregate principal amount equal to all or a portion of such
excess interest to be paid.
9.2 Payment of interest
Except where it is provided to the contrary in this Agreement, the
Company must pay accrued interest on each Loan made to it on the last day of
each Interest Period.
9.3 Interest on overdue amounts
(a) If the Company fails to pay any amount payable by it under the
Bridge Finance Documents, it must immediately on demand by the
Facility Agent pay interest on the overdue amount from its due
date up to the date of actual payment, both before, on and
after judgment.
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(b) Interest on an overdue amount is payable at a rate determined by
the Facility Agent to be one per cent. per annum above the rate
which would have been payable if the overdue amount had, during
the period of non-payment, constituted a Loan. For this purpose,
the Facility Agent may (acting reasonably):
(i) select successive Interest Periods of any duration of up to
three months; and
(ii) determine the appropriate Rate Fixing Day for that Interest
Period.
(c) Notwithstanding paragraph (b) above, if the overdue amount is a
principal amount of a Loan and becomes due and payable prior to
the last day of its current Interest Period, then:
(i) the first Interest Period for that overdue amount will be the
unexpired portion of that Interest Period; and
(ii) the rate of interest on the overdue amount for that first
Interest Period will be one per cent. per annum above the
rate then payable on that Loan.
After the expiry of the first Interest Period for that overdue amount,
the rate on the overdue amount will be calculated in accordance with
paragraph (b) above.
(d) Interest (if unpaid) on an overdue amount will be compounded with
that overdue amount at the end of each of its Interest Periods
but will remain immediately due and payable.
9.4 Notification of rates of interest
The Facility Agent must promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
10. [Reserved.]
11. MARKET DISRUPTION
11.1 Failure of a Reference Bank to supply a rate
If LIBOR is to be calculated by reference to the Reference Banks but a
Reference Bank does not supply a rate by 12.00 noon (local time) on a Rate
Fixing Day, the applicable LIBOR will, subject as provided below, be calculated
on the basis of the rates of the remaining Reference Banks.
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11.2 Market disruption
(a) In this Clause, each of the following events is a "market
disruption event":
(i) LIBOR is to be calculated by reference to the Reference Banks
but no, or only one, Reference Bank supplies a rate by 12.00
noon (London or Brussels time, as appropriate) on the Rate
Fixing Day; or
(ii) the Facility Agent receives by close of business on the Rate
Fixing Day notification from Lenders whose shares in the
relevant Loan exceed 30 per cent. of that Loan that the cost
to them of obtaining matching deposits in the relevant
interbank market is in excess of LIBOR for the relevant
Interest Period.
(b) The Facility Agent must promptly notify the Company and the
Lenders of a market disruption event.
(c) After notification under paragraph (b) above, the rate of interest
on each Lender's share in the affected Loan for the relevant
Interest Period will be the aggregate of the applicable:
(i) Applicable Spread;
(ii) rate notified to the Facility Agent by that Lender as soon as
practicable and in any event prior to the end of that
Interest Period to be that which expresses as a percentage
rate per annum the cost to that Lender of funding its share
in that Loan from whatever source it may reasonably select;
and
(iii) Mandatory Cost.
11.3 Alternative basis of interest or funding
(a) If a market disruption event occurs and the Facility Agent or the
Company so requires, the Company and the Facility Agent must enter
into negotiations for a period of not more than 30 days with a
view to agreeing an alternative basis for determining the rate of
interest and/or funding for the affected Loan and any future Loan.
(b) Any alternative basis agreed will be, with the prior consent of
all the Lenders, binding on all the Parties.
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12. TAXES
12.1 General
In this Clause:
"Qualifying Lender" means a U.K. Lender or a Treaty Lender with respect
to the U.K.
"Tax Credit" means a credit against any Tax or any relief or remission
for Tax (or its repayment).
"Treaty Lender" means a Lender which is, on the date a payment of
interest falls due entitled under the provisions of a double taxation treaty to
receive payments of interest from a person resident in the U.K. without a Tax
Deduction (subject to the completion of any necessary procedural formalities).
"U.K. Lender" means a Lender which is:
(a) within the charge to U.K. corporation tax in respect of, and
beneficially entitled to, a payment of interest on a Loan made by
a person that was a bank for the purposes of section 349 of the
Income and Corporation Taxes Act 1988 (as currently defined in
section 840A of the Income and Corporation Taxes Act) at the time
the Loan was made; or
(b) (i) a company resident in the U.K. for tax purposes;
(ii) a partnership each member of which is a company resident in
the U.K. for tax purposes; or
(iii) a company not resident in the U.K. for tax purposes which
carries on a trade in the U.K. through a branch or agency
and brings into account payments made to it under this
Agreement in computing its chargeable profits for the
purpose of section 11(2) of the Income and Corporation
Taxes Act 1988,
which, in each case, is beneficially entitled to payments of
interest on a Loan made or a fee made to it under this Agreement
and which has provided to the Company and not retracted
confirmation of the above in circumstances other than those
detailed in Clause 12.2 (d) (ii) below (in each case a "U.K.
Non-Bank Lender").
"U.S. Lender" means a Lender which is created or organized under the
laws of the United States or of any state (including the District of Columbia)
thereof.
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12.2 Tax gross-up
(a) The Company must make all payments to be made by it under the
Bridge Finance Documents without any Tax Deduction, unless a Tax
Deduction is required by law.
(b) If:
(i) a Lender is not, or ceases to be, a Qualifying Lender; or
(ii) the Company or a Lender is aware that the Company must make
a Tax Deduction (or that there is a change in the rate or
the basis of a Tax Deduction),
it must promptly notify the Facility Agent. The Facility Agent must
then promptly notify the affected Parties.
(c) Except as provided under paragraph (d) and (e) below, if a Tax
Deduction is required by law to be made by the Company or the
Facility Agent, the amount of the payment due from the Company
will be increased to an amount which (after making the Tax
Deduction) leaves an amount equal to the payment which would have
been due if no Tax Deduction had been required.
(d) (i) Except as provided in sub-paragraph (ii) below, the Company
is not required to make an increased payment under paragraph
(c) above to a Lender that is not, or has ceased to be, a
Qualifying Lender in excess of the amount that the Company
would have had to pay under paragraph (c) above had the
Lender been, or not ceased to be, a Qualifying Lender.
(ii) Sub-paragraph (i) above will not apply if the Lender has
ceased to be a Qualifying Lender by reason of any change
after the date it became a Lender under this Agreement in (or
in the interpretation, administration, or application of) any
law or double taxation agreement or any published practice or
concession of any relevant taxing authority.
(e) The Company is not required to make an increased payment to a
Lender under paragraph (c) above if that Lender is a Treaty Lender
and the Company is able to demonstrate that the Tax Deduction
would not have been required if the Lender had complied with its
obligations under paragraph (h) below.
(f) If the Company is required to make a Tax Deduction, the Company
must make the minimum Tax Deduction and must make any payment
required in connection with that Tax Deduction within the time
allowed by law.
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(g) Within 30 days of making either a Tax Deduction or a payment
required in connection with a Tax Deduction, the Company must
deliver to the Facility Agent for the relevant Finance Party an
original receipt, or if this is not available a certified copy
thereof, or other evidence satisfactory to that Finance Party
(acting reasonably) that the Tax Deduction has been made or (as
applicable) the appropriate payment has been paid to the relevant
taxing authority.
(h) (i) A Treaty Lender must co-operate with the Company by using its
reasonable endeavors to complete any procedural formalities
necessary for the Company to obtain authorization to make
that payment without a Tax Deduction.
(ii) Any confirmation by a Lender of its status for the purpose of
the definition of "U.K. Non-Bank Lender" must be given to the
Facility Agent on or promptly after the date it becomes a
Lender. The Facility Agent must promptly forward any
confirmation received by it to the Company. A U.K. Non-Bank
Lender must promptly notify the Company and the Facility
Agent of any change to its status that may affect any
confirmation made by it.
12.3 Tax indemnity
(a) Except as provided below, the Company must indemnify a Finance
Party against any loss or liability which that Finance Party (in
its absolute discretion) determines will be or has been suffered
(directly or indirectly) by that Finance Party for or on account
of Tax in relation to a payment received or receivable (or any
payment deemed to be received or receivable) under a Bridge
Finance Document.
(b) Paragraph (a) above does not apply to any Tax assessed on a
Finance Party under the laws of the jurisdiction in which:
(i) that Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Finance Party
is treated as resident for tax purposes; or
(ii) that Finance Party's Facility Office is located in respect of
amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable by that Finance Party. However, any payment
deemed to be received or receivable, including any amount treated as
income but not actually received by the Finance Party, such as a Tax
Deduction, will not be treated as net income received or receivable for
this purpose.
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(c) A Finance Party making, or intending to make, a claim under
paragraph (a) above must promptly notify the Company of the event
which will give, or has given, rise to the claim.
12.4 Tax Credit
If the Company makes a Tax Payment and the relevant Finance Party (in
its absolute discretion) determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) it has used that Tax Credit (in the case of a U.S. Lender, on an
affiliated group basis),
and the Finance Party at its sole discretion is able to identify that
Tax Credit as being attributable to that Tax Payment, then that Finance
Party shall reimburse to the Company such amount as the Finance Party
shall determine to be the proportion of such Tax Credit as will leave
the Finance Party after that reimbursement in no better or worse
position then it would have been in if the Tax Payment had not been
required.
Nothing in this Clause 12.4 shall interfere with the right of a Finance
Party to arrange its tax affairs in whatever manner it thinks fit and
without limiting the foregoing no Finance Party shall be under any
obligation to claim a Tax Credit or to claim a Tax Credit in priority
to any other claims, relief, credit or deduction available to it. No
Finance Party shall be obliged to disclose any information relating to
its tax affairs or any computations in respect thereof.
12.5 Stamp taxes
The Company must pay and indemnify each Finance Party against any stamp
duty, registration or other similar Tax payable in connection with the entry
into, performance or enforcement of any Bridge Finance Document, except for any
such Tax payable in connection with the entry into of a Transfer Certificate.
12.6 Value added taxes
(a) Any amount (including costs and expenses) payable under a Bridge
Finance Document by the Company is exclusive of any Tax
(including value added tax) which might be chargeable in
connection with that amount. If any such Tax is chargeable, the
Company must pay to the Finance Party (in addition to and at the
same time as paying that amount) an amount equal to the amount of
that Tax.
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(b) The obligation of the Company under paragraph (a) above will be
reduced to the extent that the Finance Party is entitled to repayment
or a credit in respect of the relevant Tax.
13. INCREASED COSTS
13.1 Increased Costs
Except as provided below in this Clause, the Company must pay to a
Finance Party the amount of any Increased Cost incurred by that Finance Party or
any of its Affiliates as a result of:
(a) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation; or
(b) compliance with any law or regulation,
(including any law or regulation relating to taxation, change in currency
of a country or reserve asset, special deposit, cash ratio, liquidity or
capital adequacy requirements or any other form of banking or monetary
control). Any demand made under this Clause 13.1 shall give reasonable
detail of the circumstances giving rise to the increased cost in
question, but nothing in this paragraph requires the Finance Party to
disclose any confidential information regarding tax or other affairs or
computations which it regards as confidential.
13.2 Exceptions
The Company need not make any payment for an Increased Cost to the extent
that the Increased Cost is:
(a) compensated for under another Clause or would have been but for an
exception to that Clause;
(b) a tax on the overall net income of a Finance Party or any of its
Affiliates; or
(c) attributable to a Finance Party or its Affiliate wilfully failing to
comply with any law or regulation.
13.3 Additional Costs
(a) This Clause 13.3 applies if, whether now or in the future, either:
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(i) a requirement to pay fees is imposed by the Financial Services
Authority under the Fees Regulations; or (ii) a reserve
requirement is imposed by the Central European Bank;
(ii) a reserve requirement is imposed by the Central European Bank;
which, in either case, is applied to any Lender (and would be applied
generally to banks or financial institutions of a similar nature to
that Lender) as a consequence of its entering into and/or performing
its obligations under this Agreement and/or assuming or maintaining a
commitment under this Agreement and/or making one or more Loans
hereunder. If, as a result, that Lender's effective return on its
overall capital is reduced, the Company agrees to reimburse that Lender
for the amount claimed.
(b) In the event that Clause 13.3(a) applies, each Lender may submit a
certificate setting out a calculation of the amount claimed by it to
the Facility Agent within the period (the "Certificate Period") of 10
Business Days after the end of each Relevant Period (as defined below).
The Facility Agent will notify the Company of the amount claimed by
that Lender within five Business Days after the end of the relevant
Certificate Period and the Company shall reimburse that Lender for the
amount claimed within three Business Days after the date of such
notification.
(c) In this Clause 13.3 a "Relevant Period" is, as appropriate:
(i) the period beginning on the date of this Agreement and ending on
30 June 2002, or
(ii) each subsequent period of six months starting on the previous day
of the preceding period and ending on 30 June or, as the case may
be, 31 December; and
(iii) the period shorter than six months which starts on the 30 June or
31 December in a year and ends on the Final Bridge Maturity Date;
and
"Fees Regulations" means, as appropriate, either:
(i) the Banking Supervision (Fees) Regulations 2000; or
(ii) such regulations as may be in force from time to time relating to
the payment of fees for banking supervision after 31 March 2001.
13.4 Claims
A Finance Party intending to make a claim for an Increased Cost must
notify the Company promptly of the circumstances giving rise to, and the amount
of, the claim.
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14. MITIGATION
14.1 Mitigation
(a) Each Finance Party must, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and
which result or would result in:
(i) any Tax Payment or Increased Cost being payable to that Finance
Party; or
(ii) that Finance Party being able to exercise any right
of prepayment and/or cancellation under this Agreement by
reason of any illegality,
including transferring its rights and obligations under the Bridge
Finance Documents to an Affiliate or changing its Facility Office.
(b) The Company must indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
any step taken by it under this Subclause.
(c) A Finance Party is not obliged to take any step under this
Subclause if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
14.2 Conduct of business by a Finance Party
No term of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (Tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it in respect of Tax or
the extent, order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (Tax or otherwise) or any computation in respect of
Tax.
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15. PAYMENTS
15.1 Place
Unless a Bridge Finance Document specifies that payments under it are
to be made in another manner, all payments by a Party (other than the Facility
Agent) under the Bridge Finance Documents must be made to the Facility Agent to
its account at such office or bank in London as it may notify to that Party for
this purpose by not less than five Business Days' prior notice.
15.2 Funds
Payments under the Bridge Finance Documents to the Facility Agent must
be made for value on the due date at such times and in such funds as the
Facility Agent may specify to the Party concerned as being customary at the time
for the settlement of transactions in the relevant currency in the place for
payment.
15.3 Distribution
(a) Each payment received by the Facility Agent under the Bridge
Finance Documents for another Party must, except as provided below,
be made available by the Facility Agent to that Party by payment
(as soon as practicable after receipt) to its account with such
office or bank in London as it may notify to the Facility Agent for
this purpose by not less than five Business Days' prior notice.
(b) Where a sum is paid to the Facility Agent under this Agreement for
another Party, the Facility Agent is not obliged to pay that sum to
that Party until it has established that it has actually received
it. However, the Facility Agent may assume that the sum has been
paid to it, and, in reliance on that assumption, make available to
that Party a corresponding amount. If it transpires that the sum
has not been received by the Facility Agent, that Party must
immediately on demand by the Facility Agent refund any
corresponding amount made available to it together with interest on
that amount from the date of payment to the date of receipt by the
Facility Agent at a rate calculated by the Facility Agent to
reflect its cost of funds.
15.4 Currency
(a) Unless a Bridge Finance Document specifies that payments under it
are to be made in a different manner, the currency of each amount
payable under the Bridge Finance Documents is determined under this
Clause.
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(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) A repayment or prepayment of any principal amount is payable in the
currency in which that principal amount is denominated on its due
date.
(d) Amounts payable in respect of costs and expenses are payable in the
currency in which they are incurred.
(e) Each other amount payable under the Bridge Finance Documents is
payable in Sterling.
15.5 No set-off or counterclaim
All payments made by the Company under the Bridge Finance Documents
must be made without set-off or counterclaim.
15.6 Business Days
(a) If a payment under the Bridge Finance Documents is due on a day
which is not a Business Day, the due date for that payment will
instead be the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not) or
whatever day the Facility Agent determines is market practice.
(b) During any extension of the due date for payment of any principal
under this Agreement interest is payable on that principal at the
rate payable on the original due date.
15.7 Partial payments
(a) If the Facility Agent receives a payment insufficient to discharge
all the amounts then due and payable by the Company under the
Bridge Finance Documents, the Facility Agent must apply that
payment towards the obligations of the Company under the Bridge
Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Administrative Parties under the
Bridge Finance Documents, and to the fees and expenses due
and payable to the Trustee under the Exchange Note Indenture;
(ii) secondly, in or towards payment pro rata of any accrued
interest or fee due but unpaid under this Agreement;
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(iii) thirdly, in or towards payment pro rata of any principal
amount due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum
due but unpaid under the Bridge Finance Documents.
(b) The Facility Agent must, if so directed by all the Lenders, vary
the order set out in sub-paragraphs (a)(ii) to (iv) above.
(c) This Subclause will override any appropriation made by the
Company.
15.8 Timing of payments
If a Bridge Finance Document does not provide for when a particular
payment is due, that payment will be due within three Business Days of demand by
the relevant Finance Party.
16. REPRESENTATIONS
16.1 Representations
The representations set out in this Clause are made by the Company to
each Finance Party.
16.2 Status
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of England and Wales.
(b) It and each of its Subsidiaries has the power to own its assets
and carry on its business as it is being conducted.
16.3 Powers and authority
It has the power to enter into and perform, and has taken all necessary
action to authorize the entry into and performance of, the Transaction Documents
to which it is a party and the transactions contemplated by those Transaction
Documents.
16.4 Legal validity
(a) Subject to any general principles of law limiting its obligations
and referred to in any legal opinion required under this
Agreement or to any reservation as set out below, each
Transaction Document to which it is a party is its legally
binding, valid and enforceable obligation.
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(b) A "reservation" for the purposes of paragraph (a) is the principle
that equitable remedies are remedies which may be granted or refused
at the discretion of the court, the limitation on enforcement by laws
relating to bankruptcy, insolvency, liquidation, re-organization,
court schemes, moratoria, administration and other laws generally
affecting the rights of creditors, the time barring of claims under
the Limitation Acts and similar principles.
16.5 Non-conflict
The entry into and performance by it of, and the transactions contemplated
by, each Transaction Document to which it is a party does not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any document which is binding upon it or any of its assets.
16.6 No default
(a) No Default is outstanding or will result from the execution of, or
the performance of any transaction contemplated by, any Transaction
Document to which it is a party; and
(b) no other event is outstanding which constitutes a default under any
document which is binding on it or any of its Subsidiaries or any of
its or its Subsidiaries' assets to an extent or in a manner which is
reasonably likely to have a Material Adverse Effect.
16.7 Authorizations
All authorizations required by it in connection with:
(a) the entry into, performance, validity and enforceability of, and the
transactions contemplated by, the Transaction Documents to which it
is a party; and
(b) the carrying on by it of its business in all material respects as it
is being conducted,
have been obtained or effected (as appropriate) and are in full force and
effect or will be obtained or effected and be in full force and effect
prior to the date required by law for that matter or fact requiring the
relevant authorization.
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16.8 Financial statements
(a) The financial statements of the Company most recently delivered to
the Facility Agent (which at the date of this Agreement are the
Original Financial Statements):
(i) have been prepared in accordance with the Accounting
Principles;
(ii) give a true and fair view of (if audited) or fairly present
(if unaudited) the financial condition (consolidated, if
applicable) of the Company as at the date to which they were
drawn up and results of operations during the period covered;
and
(iii) to the extent consolidated, include or consolidate into such
financial statements the results of each member of the Group
for the relevant period and do not consolidate or include the
results of any other company, limited partnership or like
entity.
except, in each case, as disclosed to the contrary in those financial
statements.
(b) The budgets, forecasts and projections contained in the Business
Plan or in any material delivered to the Facility Agent under this
Agreement were arrived at after careful consideration, having been
prepared (inter alia) on the basis of recent historical information
and the Accounting Principles and on the basis of assumptions which
are believed by the Company to be reasonable.
16.9 No material adverse change
In the case of the Company only, as at the date of this Agreement there
has been no material adverse change in the business, condition (financial or
otherwise), operations, assets, performance, prospects or results of operations
of the Group since 30th September, 2001.
16.10 Litigation
(a) No litigation, arbitration or administrative proceedings or
regulatory enquiry relating to any member of the Group are current
or, to its knowledge, pending or threatened, which are reasonably
likely to be adversely determined and, if adversely determined, are
reasonably likely to have a Material Adverse Effect.
(b) It is not (and none of its Subsidiaries is) in breach of and has
not (and none of its Subsidiaries have) breached any law or
regulation (including any relating to the environment or health and
safety), in a manner or to an extent which is reasonably likely to
have a Material Adverse Effect.
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(c) No labor disputes are current or, to its knowledge, threatened which
are reasonably likely to have a Material Adverse Effect.
16.11 Pari passu ranking
Its obligations under the Bridge Finance Documents rank and will rank at
least pari passu with all its other unsecured and unsubordinated obligations,
except for obligations mandatorily preferred by law applying to companies
generally.
16.12 Taxes
(a) It is not (and none of its Subsidiaries are) overdue in the filing
of any Tax returns or filings where failure to do so is reasonably
likely to have a Material Adverse Effect .
(b) No claims or investigations by any tax authority are being or are
reasonably likely to be made or conducted against it (or any of its
Subsidiaries) which are reasonably likely to have a Material Adverse
Effect.
16.13 Taxes on payments
Subject to the assumptions and reservations contained in the legal
opinion issued under Schedule 2 hereto, as at the date of this Agreement, all
amounts payable by it under the Bridge Finance Documents as at the date of this
Agreement may be made without any Tax Deduction.
16.14 Stamp duties
Subject to the assumptions and reservations contained in the legal
opinion issued under Schedule 2 hereto, as at the date of this Agreement, no ad
valorem stamp or registration duty or similar Tax or charge is payable in the
jurisdiction of incorporation of the Company in respect of any Bridge Finance
Document as at the date of this Agreement.
16.15 Security
No Security Interest exists on any asset of any member of the Group
contrary to Clause 19.5.
16.16 Financial Indebtedness
On and from the Effective Date, no member of the Group has any (actual or
contingent) Financial Indebtedness outstanding which is not permitted by the
terms of this Agreement.
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16.17 Documents
(a) The documents delivered to the Facility Agent by or on behalf of the
Company pursuant to Clause 4.1 were genuine and, in the case of copy
documents, were true, complete and accurate copies of originals,
which are in full force and effect (or if a copy, the original is in
full force and effect) and have not been amended, varied or replaced
in any respect which could adversely affect the interests of the
Finance Parties under the Bridge Finance Documents.
(b) Documents required to be and which are delivered to the Facility
Agent under this Agreement by or an behalf of any Obligor after the
Effective Date were, when delivered, genuine and, in the case of
copy documents, were true, complete and accurate copies of originals
which when delivered were in full force and effect (or, if a copy,
the original was in full force and effect) and such documents or
originals have not been amended, varied or replaced in any respect
which could adversely affect the interest of the Finance Parties
under the Bridge Finance Documents.
(c) The Hive-Down Documents as furnished to the Facility Agent under
this Agreement contain all the material terms of the Hive-Downs.
16.18 Information Package
(a) In this Subclause:
"Information Package" means:
(i) the Business Plan; and
(ii) the Information Memorandum.
(b) In the case of the Company only and as at the date the Information
Package (or part thereof) is delivered to the Arrangers:
(i) All factual information contained in the Information Package
was true and accurate in all material respects as at its date
or (if appropriate) as at the date (if any) at which it is
stated to be given;
(ii) all expressions of opinion or intention contained in the
Information Package were made after careful consideration and
are believed by the Company to be reasonable as at the date at
which it is stated to be given;
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(iii) the financial projections and forecasts contained in the
Information Package have been prepared (inter alia) on the
basis of recent historical information and the Accounting
Principles and on the basis of assumptions which are believed
by the Company to be reasonable;
(iv) the Information Package did not omit as at its date any
information which, if disclosed, would make the Information
Package untrue or misleading in any material respect; and
(v) nothing has occurred since the date of the Information Package
which, if disclosed, would make the factual information or
financial projections contained in the Information Package
untrue or misleading in any material respect.
16.19 Consultants' Reports
(a) In this Subclause, "Consultants' Reports" means any report prepared
by PricewaterhouseCoopers prior to the date of this Agreement and
referred to in Schedule 2 hereto.
(b) In the case of the Company only as at the date of this Agreement and
as at the Effective Date:
(i) all factual information which is contained or referred to in a
Consultants' Report was true in all material respects at its
date or (if appropriate) as at the date (if any) at which it
is stated to be given;
(ii) all expressions of opinion or intention given by or on behalf
of any member of the Group and all forecasts and projections
furnished by or on behalf of any member of the Group to each
such firm and contained in any Consultants' Report was arrived
at after careful consideration and are believed by the Company
to be reasonable as at the date at which it is stated to be
given;
(iii) no Consultants' Report omitted as at its date any information
which, if disclosed, would make that Consultants' Report
untrue or misleading in any material respect;
(iv) nothing has occurred since the date of any Consultants' Report
which, if disclosed, would make the factual information,
forecasts, projections, expressions of opinion or intention or
conclusions contained in that Consultants' Report untrue or
misleading in any material respect; and
(v) the Company has not omitted to disclose to the Arrangers any
information which, if disclosed, would make any of the
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information supplied to the Arrangers by or on behalf of the
Company untrue or misleading in any material respect.
16.20 Structure Memorandum
(a) In the case of the Company only, the Structure Memorandum shows all
members of the Group (including, without limitation all partnerships
and joint ventures) and contains descriptions which in all material
respects are true, complete and correct of the corporate ownership
structure of the Group and all material intercompany loans as they
will be immediately after December 29, 2001; and
16.21 Newcos
(a) Except as may arise under the Transaction Documents neither Enodis
Holdings Limited nor Enodis Group Limited has traded or has any
material liabilities or commitments (actual or contingent, present or
future); and
(b) the Company is the legal and beneficial owner of all of the shares
in Enodis Holdings Limited.
16.22 Assets
It owns or has leased or licensed to it all material assets necessary to
conduct its business as it is being conducted.
16.23 Hived-Down Assets
All of the Hived-Down Assets will, immediately upon the Effective Date
and subject to the terms of the Hive-Down Agreements, be beneficially owned by
Enodis Group Limited and Enodis Group Limited will be entitled forthwith to
become the legal owner (registered in the case of shares and interests in
registered land and/or Intellectual Property) of the Hived-Down Assets free from
all Security Interests (other than those arising under the Security Documents or
permitted under the Senior Credit Facilities), claims and competing interests.
16.24 Intellectual Property Rights
(a) It (and each of its Subsidiaries) owns or has licensed to it all the
Intellectual Property Rights which are required by it in order for it
to carry on its business in all material respects as it is being
conducted and it does not (nor do any of its Subsidiaries), in
carrying on its business, infringe any Intellectual Property Rights
of any third party in any respect which would have a Material
Adverse Effect; and
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(b) none of the Intellectual Property Rights which are material in the
context of its business are, to its knowledge, being infringed nor,
to its knowledge, is there any threatened infringement of those
Intellectual Property Rights by any third party which would have a
Material Adverse Effect.
16.25 Solvency
(a) It is not and none of its Material Subsidiaries is unable, or admits
or has admitted its inability, to pay its debts or has suspended
making payments on any of its debts;
(b) neither it nor any of its Material Subsidiaries by reason of actual
or anticipated financial difficulties has commenced, or intends to
commence, negotiations with one or more of its creditors with a view
to rescheduling any of its indebtedness;
(c) as at the Effective Date, the value of its assets (and the assets of
each of its Material Subsidiaries) is not less than its (or in the
case of a Material Subsidiary, its Material Subsidiary's)
liabilities taking into account contingent and prospective
liabilities;
(d) at all times following the Effective Date, the value of its assets
(and the assets of each of its Material Subsidiaries) is not less
than its (or in the case of a Material Subsidiary, its Material
Subsidiary's) liabilities (taking into account contingent and
prospective liabilities) contingent and prospective liabilities to
an extent which is reasonably likely to have a Material Adverse
Effect; and
(e) no moratorium has been, or may, in the reasonably foreseeable future
be, declared in respect of any indebtedness of it or any of its
Material Subsidiaries.
16.26 Environmental matters
(a) It (and each of its Subsidiaries):
(i) has obtained all requisite Environmental Approvals; and
(ii) is in compliance with all Environmental Law and Environmental
Approvals applicable to it,
where failure to do so is reasonably likely to have a Material
Adverse Effect.
(b) There is no Environmental Claim (whether in respect of any site
previously or currently owned or occupied by any member of the Group
or
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otherwise) pending or threatened and to the best of their knowledge,
there are no past or present acts, omissions, events or
circumstances that would be likely to form the basis of any
Environmental Claim against any member of the Group which in each
case is reasonably likely to be determined against that member of
the Group and which if so decided would have a Material Adverse
Effect.
16.27 Jurisdiction/governing law
(a) Subject to any qualifications as to matters of law referred to in
any legal opinion required under this Agreement, its:
(i) irrevocable submission under this Agreement to the
jurisdiction of the courts of New York;
(ii) agreement that this Agreement is governed by New York law; and
(iii) agreement not to claim any immunity to which it or its assets
may be entitled,
are legal, valid and binding under the laws of its jurisdiction of
incorporation; and
(b) any judgment obtained in New York will be recognized and be
enforceable by the courts of its jurisdiction of incorporation.
16.28 United States laws
(a) In this Subclause:
"holding company", "affiliate" and "subsidiary company" have the
meanings given to them in the United States Public Utility Holding
Company Act of 1935.
"investment company" and "controlled" have the meanings given to them
in the United States Investment Company Act of 1940.
"public utility" has the meaning given to it in the United States
Federal Power Act of 1920.
(b) It is not:
(i) a holding company, an affiliate of a holding company or a
subsidiary company of a holding company, or subject to
regulation, under the United States Public Utility Holding
Company Act of 1935;
(ii) a public utility, or subject to regulation, under the United
States Federal Power Act of 1920;
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(iii) an investment company or a company controlled by an
investment company; or
(iv) subject to regulation under any United States federal
or state law or regulation that limits its ability to
incur or guarantee indebtedness.
16.29 Times for making representations
(a) The representations set out in this Clause are made by the
Company on the date of this Agreement.
(b) Unless a representation is expressed to be given at a specific
date, each representation is deemed to be repeated by:
(i) the Company on the date of a Request, the first day
of each Interest Period.
(c) When a representation is repeated, it is applied to the
circumstances existing at the time of repetition.
16.30 Margin Stock
(a) No U.S. Group Company is engaged nor will it engage
principally, or as one of its important activities, in the
business of owning or extending credit for the purpose of
"buying" or "carrying" any Margin Stock.
(b) None of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of buying or carrying any Margin
Stock, for the purpose of reducing or retiring any Financial
Indebtedness that was originally incurred to buy or carry any
Margin Stock or for any other purpose which might cause all or
any Loans or other extensions of credit under this Agreement
to be considered a "purpose credit" within the meaning of
Regulation U or Regulation X.
(c) No U.S. Group Company or any agent acting on its behalf has
taken or will take any action which might cause the Bridge
Finance Documents to violate any regulation of the Board of
Governors of the Federal Reserve System of the United States.
17. INFORMATION COVENANTS
17.1 Financial statements
(a) The Company shall supply to the Facility Agent in sufficient
copies for all the Lenders:
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(i) the audited consolidated financial statements of the
Company for each of its financial years together with
an annual cashflow statement;
(ii) the unaudited consolidated financial statements of
the Company for each of its financial quarters; and
(iii) the monthly management accounts (being for the usual
periods of 4 or 5 weeks) of the Company and related
information package prepared by the Company.
(b) All financial statements, management accounts and the related
information package prepared by the Company must be supplied
as soon as they are available and:
(i) in the case of the Company's audited consolidated
financial statements and the annual cashflow
statement, within 120 days;
(ii) in the case of the Company's quarterly unaudited
consolidated financial statements, within 45 days;
and
(iii) in the case of the Company's monthly management
accounts, within 45 days,
of the end of the relevant financial period.
17.2 Compliance Certificate
(a) A "Compliance Certificate" is a certificate, substantially in
the form of Schedule 8 hereto setting out, among other things,
calculations of the financial covenants.
(b) The Company shall supply to the Facility Agent a Compliance
Certificate with each set of its annual and quarterly
financial statements sent to the Facility Agent under this
Agreement. The calculations of the financial covenants
contained in the relevant Compliance Certificate will be made
as at the date of the financial statements which that
Compliance Certificate is meant to accompany.
(c) A Compliance Certificate must be signed by two authorized
signatories of the Company.
(d) The Company shall procure that there is also supplied to the
Facility Agent with each Compliance Certificate delivered in
respect of the audited financial statements of the Group a
written statement (the "Report") prepared by the Company's
auditors. The Report must confirm that:
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(i) the financial information contained in the
accompanying Compliance Certificate has been
accurately extracted from the underlying accounting
records;
(ii) the calculations shown in the Compliance Certificate
made in accordance with Clauses 18.3, 18.4 and 18.5
of this Agreement are arithmetically correct;
(iii) the financial information in the Compliance
Certificate is presented in compliance with the
relevant accounting definitions as to its elements
and composition set out in Clauses 7.6 (with respect
to the definition of "Surplus Cashflow") and 1.1 of
this Agreement; and
(iv) based on information extracted from the Group's
accounting records, upon which the latest audited
financial statements of the Group have been based,
the companies listed in paragraph 4 of the Compliance
Certificate meet the definition of Material
Subsidiaries.
17.3 Form of financial statements
(a) The Company shall procure that each set of financial
statements supplied under this Agreement gives (if audited) a
true and fair view of, or (if unaudited) fairly represents,
the financial condition (consolidated or otherwise) of the
Group as at the date to which those financial statements were
drawn up.
(b) The Company shall procure that the Facility Agent is notified
of any change to the basis on which and any departure from the
Accounting Principles adopted on which its audited
consolidated financial statements are prepared.
(c) If requested by the Facility Agent, the Company shall procure
that there is supplied to the Facility Agent:
(i) A full description of any change or departure
notified under paragraph (b) above; and
(ii) sufficient information to enable the Finance Parties
to make a proper comparison between the financial
position shown by the set of financial statements
prepared on the changed or different accounting basis
and its most recent audited consolidated financial
statements delivered to the Facility Agent under this
Agreement.
(d) If requested by the Facility Agent or the Company, the Company
or the Facility Agent must enter into discussions for a period
of not more than 30
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days with a view to agreeing any amendments required to be
made to this Agreement to place the Company and the Lenders in
the same position as they would have been in if the change had
not happened. Any agreement between the Company and the
Facility Agent will be, with the prior consent of the Majority
Lenders, binding on all the Parties.
(e) If no agreement is reached under paragraph (d) above on the
required amendments to this Agreement, the Company shall
procure that there is supplied with each set of the Group's
financial statements another set of its financial statements
prepared on the basis of the Accounting Principles as used in
the Original Financial Statements.
(f) If required by the Facility Agent if there are reasonable
grounds for believing that it is materially inaccurate the
Company will procure that the Auditors (at the cost of the
Company) confirm to the Facility Agent the accuracy of
information supplied pursuant to paragraphs (c) or (e) above
and the effect of any changes or proposed changes to the
financial ratios set out in Clause 18.
17.4 Auditors
If the Facility Agent has reasonable grounds for believing that there
is or may be an outstanding Default and/or that material financial information
provided by any member of the Group is or may be incorrect and wishes to discuss
the financial position of any member of the Group with the Auditors, the
Facility Agent may notify the Company, stating the questions or issues which the
Facility Agent wishes to discuss with the Auditors. In this event, the Company
shall procure that the Auditors are authorized (at the expense of the Company):
(a) to discuss the financial position of each member of the Group
with the Facility Agent on request from the Facility Agent
with a representative of the Company present at such
discussions; and
(b) to disclose to the Facility Agent for the Finance Parties any
information which the Facility Agent may reasonably request.
17.5 Information - miscellaneous
The Company must supply to the Facility Agent:
(a) copies of all documents dispatched by the Company to its
shareholders (or any class of them) or by the Company or
Enodis Holdings Limited or Enodis Holdings Limited's creditors
generally at the same time as they are dispatched;
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(b) promptly upon becoming aware of them, details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending and which, if adversely
determined, are reasonably likely to have a Material Adverse
Effect;
(c) promptly on request following any acquisition or disposal by a
member of the Group (whether intra-Group or otherwise), a list
of the then current Material Subsidiaries; and
(d) promptly on request, such further information regarding the
financial condition and operations of the Group as any Finance
Party through the Facility Agent may reasonably request where
the disclosure would not breach any bona fide confidentiality
undertaking binding on any member of the Group.
17.6 Notification of Default
(a) The Company must notify the Facility Agent of any Default (and
the steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence.
(b) Promptly on request by the Facility Agent, the Company must
supply to the Facility Agent a certificate, signed by two of
its authorized signatories on its behalf, certifying that no
Default is outstanding or, if a Default is outstanding,
specifying the Default and the steps, if any, being taken to
remedy it.
17.7 Year end
The Company shall:
(a) procure that its financial year end is not changed (other than
due to changes in dates arising from having a 52 or 53 week
financial year); and
(b) procure that each financial year and financial quarter of the
Group ends on an Accounting Date.
17.8 Use of websites
(a) Except as provided below, the Company may deliver any
information under this Agreement to a Lender by posting it on
to an electronic website if:
(i) the Facility Agent agrees;
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(ii) the Company and the Facility Agent designate an
electronic website for this purpose;
(iii) the Company notifies the Facility Agent of the
address of and password for the website; and
(iv) the information posted is in a format agreed between
the Company and the Facility Agent.
The Facility Agent must supply each relevant Lender with the address of
and password for the website.
(b) Notwithstanding the above, the Company must supply to the
Facility Agent in paper form a copy of any information posted
on the website together with sufficient copies for:
(i) any Lender not agreeing to receive information via
the website; and
(ii) within ten Business Days of request any other Lender,
if that Lender so requests.
(c) The Company must promptly upon becoming aware of its
occurrence, notify the Facility Agent if:
(i) the website cannot be accessed;
(ii) the website or any information on the website is
infected by any electronic virus or similar software;
(iii) the password for the website is changed; or
(iv) any information to be supplied under this Agreement
is posted on the website or amended after being
posted.
If the circumstances in paragraphs (i) or (ii) above occur, the Company
must supply any information required under this Agreement in paper
form.
17.9 Exchange Note Covenants
Following the Initial Bridge Maturity Date, the covenants specified
above in Clauses 17.1 through 17.8 shall no longer be applicable and the Company
shall comply with the covenants specified in Sections 4.02 and 4.14 of the
Exchange Note Indenture. The provisions of this Clause 17.9 shall not affect any
Default or Event of Default that exists on the Initial Bridge Maturity Date.
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18. FINANCIAL COVENANTS
18.1 Definitions
In this Clause:
"Capital Expenditure" means any expenditure which is treated as capital
expenditure in accordance with the accounting principles applied in the Original
Financial Statements.
"Consolidated Cash and Cash Equivalents" means, at any time Cash and
Cash Equivalents to which any member of the Group is beneficially entitled at
that time and which is capable of being applied against Consolidated Total Debt.
Any amount in a currency other than Sterling is to be taken into
account at its Sterling equivalent calculated on the basis of the rate of
exchange used by the Company in its most recent published profit and loss
account.
"Consolidated Cashflow" means, for a Measurement Period, Consolidated
EBITDA for that Measurement Period, adjusted by:
(a) adding back any extraordinary or exceptional item received in
cash or deducting any extraordinary or exceptional item paid
in cash during that Measurement Period;
(b) deducting Capital Expenditure paid or required to be paid
during that Measurement Period;
(c) deducting all non-cash credits and adding back all non-cash
debits included in Consolidated EBITDA during that Measurement
Period;
(d) deducting all dividends or any other distributions payable
during that Measurement Period to any person which is not a
member of the Group;
(e) deducting all corporation tax and withholding tax paid or
which fell due for payment during that Measurement Period;
(f) deducting any increase or adding back any decrease in working
capital during that Measurement Period; and
(g) deducting (to the extent otherwise included) any proceeds of a
Disposal, Share Disposal or insurance claim to the extent of
the amount of any prepayment required to be made under Clauses
11.4 and/or 11.7 of the Senior Credit Facilities in
consequence of the occurrence thereof.
"Consolidated EBITDA" means the consolidated net pre-taxation profits
of the Group for a Measurement Period, adjusted by:
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(a) adding back Consolidated Interest Payable;
(b) deducting any financing charges received or receivable by the
Group during that Measurement Period;
(c) excluding any amount attributable to minority interests;
(d) excluding any exceptional or extraordinary item;
(e) excluding any profit or loss arising during that Measurement
Period with respect to Felsted after the date of this
Agreement;
(f) adding back depreciation and amortisation including the
amortisation of deferred finance cost;
(g) adding back any up front fees and other finance costs written
off during that Measurement Period;
(h) deducting the amount of profit of any joint venture included
in Consolidated EBITDA during that Measurement Period which
has not been distributed in cash to a member of the Group;
(i) for the purposes of calculating the ratio set out in Clause
19.4 only, including the net pre-taxation profits of a member
of the Group as adjusted in accordance with paragraphs (a) to
(h) above or business acquired during that Measurement Period
for the part of that Measurement Period when it was not a
member of the Group and/or the business or assets were not
owned by a member of the Group; and
(j) for the purposes of calculating the ratio set out in Clause
19.4 only, excluding the net pre-taxation profit attributable
to any member of the Group as adjusted in accordance with
paragraphs (a) to (h) above or to any business sold during
that Measurement Period.
"Consolidated Interest Payable" means all interest and periodic
financing charges including acceptance commission, accrued discount, commitment
fee and the interest element of rental payments on finance or capital leases
(whether, in each case, paid, payable or capitalized), incurred (on an accruals
basis) by the Group in effecting, servicing or maintaining Consolidated Total
Debt during a Measurement Period (adjusted for any net payment or receipt under
any interest rate hedging agreement or instrument and for the interest element
of any net payment or receipt (plus or minus any accrued exchange gains or
losses) under any currency hedging instrument or arrangement), but, for the
avoidance of doubt, excluding:
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(a) the charging of fees incurred in connection with the Existing
Facility Agreement to the profit and loss account for the
financial year ended 30th September, 2002; and
(b) the amortisation of deferred finance costs.
"Consolidated Net Interest Payable" means Consolidated Interest Payable
less all financing charges received or receivable by the Group during the
relevant Measurement Period.
"Consolidated Net Senior Interest Payable" means Consolidated Interest
Payable to the extent only that it is referable to Consolidated Total Senior
Debt less all interest and periodic financing charges (of the type referred to
in Consolidated Interest Payable) received or receivable by the Group during the
relevant Measurement Period.
"Consolidated Net Worth" means at any time the aggregate of:
(a) the amount paid up or credited as paid up on the issued share
capital of the Company; and
(b) the amount standing to the credit of the consolidated capital
and revenue reserves of the Group (including the share premium
account and including amounts previously eliminated against
reserves in accordance with FRS 10),
based on the latest published consolidated balance sheet of the
Company (the "latest balance sheet") but adjusted by:
(i) adding any amount standing to the credit of the
profit and loss account of the Group for the period
ending on the date of the latest balance sheet to the
extent not included in sub-paragraph (b) above;
(ii) deducting any dividend or other distribution declared
or made by any member of the Group to a person who is
not a member of the Group;
(iii) deducting any amount standing to the debit of the
profit and loss account of the Group for the period
ending on the date of the latest balance sheet;
(iv) deducting any amount attributable to any intangible
asset (other than goodwill);
(v) deducting any amount attributable to an upward
revaluation of assets after 30th September, 2001 or,
in the case of assets of a company which becomes a
member of the Group after that date, the date on
which that company becomes a member of the Group
other than any upward revaluation of assets
undertaken by an
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independent third party professional adviser in
accordance with UK GAAP;
(vi) reflecting any variation in the amount of the issued
share capital of the Company and the consolidated
capital and revenue reserves of the Group after the
date of the latest balance sheet;
(vii) reflecting any variation in the interest of the
Company in any other member of the Group since the
date of the latest balance sheet;
(viii) excluding any amount attributable to deferred
taxation;
(ix) excluding any amount attributable to minority
interests;
(x) excluding any amount attributable to the write down
of goodwill as the result of a disposal of business;
and
(xi) adding back any amount attributable to the write back
of goodwill.
"Consolidated Total Debt" means, in respect of the Group, at any time
the aggregate of the following:
(a) the outstanding principal amount of any moneys borrowed;
(b) the outstanding principal amount of any acceptance under any
acceptance credit;
(c) the outstanding principal amount of any bond, note, debenture,
loan stock or other similar instrument;
(d) the capitalized element of indebtedness under a finance or
capital lease;
(e) the outstanding principal amount of all moneys owing in
connection with the sale or discounting of receivables
(otherwise than on a non-recourse basis);
(f) the outstanding principal amount of any indebtedness arising
from any deferred payment agreements arranged primarily as a
method of raising finance or financing the acquisition of an
asset;
(g) any fixed or minimum premium payable on the repayment or
redemption of any instrument referred to in paragraph (c)
above;
(h) the outstanding principal amount of any indebtedness arising
in connection with any other transaction (including any
forward sale or purchase agreement) which has the commercial
effect of a borrowing; and
(i) the outstanding principal amount of any indebtedness
of any person of a type referred to in paragraphs (a)
- (h) above which is
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the subject of a guarantee, indemnity or similar assurance
against financial loss given by a member of the Group,
but excluding any amount included in the above attributable to minority
interests. Any amount outstanding in a currency other than Sterling is to
be taken into account at its Sterling equivalent calculated on the basis of
the rate of exchange used by the Company in its most recent published
profit and loss account.
"Consolidated Total Debt Service" means, for any Measurement Period:
(a) Consolidated Net Interest Payable for that Measurement Period; plus
(b) all Consolidated Total Debt which fell due for repayment or
prepayment during that Measurement Period, other than:
(i) any principal amount repaid or prepaid under a revolving credit
or overdraft or similar facility which remains available for
redrawing; or
(ii) any amount mandatorily prepaid under this Agreement.
"Consolidated Total Net Debt" means at any time Consolidated Total Debt
less Consolidated Cash and Cash Equivalents.
"Consolidated Total Net Senior Debt" means Consolidated Total Senior Debt
less Consolidated Cash and Cash Equivalents.
"Consolidated Total Senior Debt" means Consolidated Total Debt less any
amounts outstanding under the Loans, Exchange Notes, High Yield Refinancing
Securities or Bond Exchange Notes.
"Measurement Period" means a period of approximately 12 months ending on
the last day of a financial quarter (including financial year-end) of the
Company (and for the purposes only of the definition of Semi-annual Surplus
Cashflow and the use of other defined terms in or for the purposes of that
definition, a period comprising the first half of each financial year of the
Company) and references in Clause 22 to 31st March, 30th June, 30th September
and 31st December will be construed as the last day of the financial quarter
(including financial year-end) falling on or about that date.
18.2 Interpretation
Except as provided to the contrary in this Agreement, an accounting term or
terms used in the accounts and used in this Clause are to be construed in
accordance with the principles applied in connection with the Original Financial
Statements.
No item must be credited or deducted more than once in any calculation
under this Clause.
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18.3 Consolidated Net Worth
(a) The Company must ensure that Consolidated Net Worth is not at any time
less than:
(i) (pound)150,000,000 or, if higher, the amount calculated under
paragraph (b) below, less (if there shall be any write down by
the Company of its investment in the business known as Kysor
Warren, being part of the company Kysor Industrial Corporation
("Kysor Warren")
(ii) the lesser of:
(A) (pound)50,000,000; and
(B) the Sterling equivalent (determined in accordance with the
Accounting Principles) of the appropriate amount of any
write-downs by the Company of its investment in Kysor
Warren made on or after the date hereof.
(b) The minimum amount under paragraph (a)(i) above will be increased at
the end of each financial year of the Company by an amount equal to 50
per cent. of the amount standing to the credit of the profit and loss
account of the Group at the end of that financial year.
18.4 Leverage
(a) The Company must ensure that the ratio of Consolidated Total Net Debt
to Consolidated EBITDA does not for and as at the end of any
Measurement Period ending on or about any of the dates set out in the
table set out in Clause 18.7 exceed that set out against that date in
Column V of such table.
(b) The Company must ensure that the ratio of Consolidated Total Net
Senior Debt to Consolidated EBITDA does not for and as at the end of
any Measurement Period ending on or about any of the dates set out in
the table set out in Clause 18.7 exceed that set out in Column W of
that table.
18.5 Interest Cover
(a) The Company must ensure that the ratio of Consolidated EBITDA to
Consolidated Net Interest Payable is not for any Measurement Period
ending on or about any of the dates set out in the table set out in
Clause 18.7 less than that set out against that date in Column X of
that table.
(b) The Company must ensure that the ratio of Consolidated EBITDA to
Consolidated Net Senior Interest Payable is not for any Measurement
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Period ending on or about any of the dates set out in the table set
out in Clause 18.7 less than that set out against that date in Column
Y of that table.
18.6 Cash flow
The Company must ensure that Consolidated Cashflow for any Measurement
Period ending on or about any of the dates set out in the table set out in
Clause 18.7 is not less than the multiple of Consolidated Total Debt Service for
such Measurement Period set out against that date in Column Z of that table.
18.7 Covenant Table
The table referred to in Clauses 18.4, 18.5, and 18.6 is as follows:
Date V W X Y Z
31st March, 2002 4.50:1 3.00:1 2.50:1 3.00:1 1.05
30th June, 2002 4.00:1 2.90:1 2.50:1 3.00:1 1.05
30th September, 2002 4.25:1 2.80:1 2.50:1 3.00:1 1.05
31st December, 2002 3.90:1 2.65:1 2.50:1 3.40:1 1.05
31st March, 2003 3.70:1 2.50:1 2.65:1 4.00:1 1.05
30th June, 2003 3.50:1 2.35:1 2.80:1 4.40:1 1.05
30th September, 2003 3.00:1 2.00:1 3.00:1 4.75:1 1.05
31st December, 2003 2.85:1 1.80:1 3.00:1 5.00:1 1.05
31st March, 2004 2.75:1 1.65:1 3.30:1 5.25:1 1.05
30th June, 2004 2.40:1 1.40:1 3.50:1 5.50:1 1.05
30th September, 2004 2.15:1 1.15:1 3.75:1 5.75:1 1.05
31st December, 2004 2.00:1 1.05:1 3.75:1 5.75:1 1.05
31st March, 2005 2.00:1 1.00:1 4.00:1 6.00:1 1.05
30th June, 2005 2.00:1 1.00:1 4.00:1 6.00:1 1.05
30th September, 2005 2.00:1 1.00:1 4.00:1 6.00:1 1.05
31st December, 2005 2.00:1 1.00:1 4.00:1 6.00:1 1.05
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31st March, 2006 2.00:1 1.00:1 4.00:1 6.00:1 1.05
30th June, 2006 2.00:1 1.00:1 4.00:1 6.00:1 1.05
30th September, 2006 2.00:1 1.00:1 4.00:1 6.00:1 1.05
31st December, 2006 2.00:1 1.00:1 4.00:1 6.00:1 1.05
31st March, 2007 2.00:1 1.00:1 4.00:1 6.00:1 1.05
30th June, 2007 2.00:1 1.00:1 4.00:1 6.00:1 1.05
30th September, 2007 2.00:1 1.00:1 4.00:1 6.00:1 1.05
31st December, 2007 2.00:1 1.00:1 4.00:1 6.00:1 1.05
31st March, 2008 2.00:1 1.00:1 4.00:1 6.00:1 1.05
18.8 Exchange Note Covenants
Following the Initial Bridge Maturity Date, the covenants specified above
in Clauses 18.1 through 18.7 shall no longer be applicable. The provisions of
this Clause 18.8 shall not affect any Default or Event of Default that exists on
the Initial Bridge Maturity Date.
19. GENERAL COVENANTS
19.1 General
The Company agrees to be bound by the covenants set out in this Clause
and, where the covenant is expressed to apply to each member of the Group, the
Company must ensure that each of its Subsidiaries performs that covenant.
19.2 Authorizations
(a) The Company must promptly obtain, maintain and comply with the terms
of any authorization required under any law or regulation to enable
it to perform its obligations under, or for the validity or
enforceability of, any Transaction Document to which it is a party.
(b) Each member of the Group must obtain, maintain and comply with the
terms of any authorization required under any law or regulation to
enable it to carry on its business where failure to do so is
reasonably likely to have a Material Adverse Effect.
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19.3 Compliance with laws
Each member of the Group must comply in all respects with all laws and
regulations to which it is subject where failure to do so is reasonably likely
to have a Material Adverse Effect.
19.4 Pari passu ranking
The Company must ensure that its payment obligations under the Bridge
Finance Documents rank at least pari passu with all its other present and future
unsecured and unsubordinated payment obligations, except for obligations
mandatorily preferred by law applying to companies generally.
19.5 Negative pledge
(a) Except as provided below, no member of the Group may create or allow
to exist any Security Interest on any of its present or future
assets.
(b) Paragraph (a) does not apply to:
(i) any Security Interest constituted by the Security Documents;
(ii) any Security Interest listed in Schedule 6 to the Senior
Credit Facilities except to the extent:
(A) the principal amount secured by that Security Interest
exceeds the amount stated in that Schedule or, if
lower, the principal amount secured by that Security
Interest at the date of this Agreement; and
(B) the principal amount of Financial Indebtedness secured
by all Security Interests listed in Schedule 6 to the
Senior Credit Facilities exceeds (pound)10 million (or
its equivalent) plus any Financial Indebtedness to the
extent covered by a Letter of Credit under the Senior
Credit Facilities or a letter of credit issued under
an Ancillary Facility (as defined in the Senior Credit
Facilities);
(iii) any Security Interest comprising a netting or set-off
arrangement entered into by a member of the Group in the
ordinary course of its or the Group's financing arrangements
(including derivative transactions) for the purpose of
netting debit and credit balances;
(iv) any lien arising by operation of law and in the ordinary
course of trading;
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(v) any Security Interest arising pursuant to the general banking
terms and conditions of any bank holding an account of any
member of the Group in Germany;
(vi) any Security Interest on an asset, or an asset of any person,
acquired by a member of the Group after the date of this
Agreement but only for the period of 6 months from the date
of acquisition and to the extent that the principal amount
secured by that Security Interest has not been incurred or
increased in contemplation of, or since, the acquisition;
(vii) any Security Interest over any asset which has been or is
acquired by a member of the Group where the Security Interest
is security for, or for indebtedness incurred to finance, the
acquisition price of that asset;
(viii) any Security Interest over goods, documents of title to goods
and related documents and insurances and their proceeds to
secure liabilities of any member of the Group in respect of a
letter of credit or other similar instrument issued for all
or part of the purchase price and costs of shipment,
insurance and storage of goods acquired by any member of the
Group in the ordinary course of trading;
(ix) any Security Interest arising out of title retention
provisions in a supplier's standard conditions of supply in
respect of goods acquired by the relevant member of the Group
in the ordinary course of trading;
(x) any Security Interest securing indebtedness the amount of
which (when aggregated with the amount of any other
indebtedness which has the benefit of a Security Interest not
allowed under the preceding sub-paragraphs and the aggregate
amount outstanding under transactions of the type referred to
in paragraph (c) below) does not exceed (pound)5,000,000 or
its equivalent at any time; and
(xi) any Security Interest over the warrants issued by Nobia AB
and relating to the disposal by the Company of Magnet Limited
and various other of its Subsidiaries.
(c) Except as provided below, no member of the Group may:
(i) sell, transfer or otherwise dispose of any of its assets on
terms where it is or may be leased to or re-acquired or
acquired by a member of the Group or any of its related
entities; or
(ii) sell, transfer or otherwise dispose of any of its receivables
on recourse terms,
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in circumstances where the transaction is entered into primarily as a
method of raising Financial Indebtedness or of financing the acquisition of
an asset.
(d) Paragraph (c) does not apply to:
(i) any transactions where the aggregate of:
(A) the outstanding obligations of any member of the Group
which is a Guarantor under a sale, transfer or disposal
under sub-paragraph (c)(i); plus
(B) the outstanding recourse to a member of the Group which
is a Guarantor under a transaction under sub-paragraph
(c)(ii); plus
(C) the principal amount secured by Security Interests
created or permitted to subsist by a Guarantor and
allowed under sub-paragraph (b)(ix) above,
does not exceed (pound)5,000,000 (or its equivalent); or
(ii) any amount outstanding under any transaction under
sub-paragraph (c) above entered into by members of the Group
which are not Guarantors when aggregated with Financial
Indebtedness of all members of the Group (other than
Guarantors) permitted to exist under Clause 19.7 does not
exceed the aggregate amount permitted under Clause 19.7(b)(vi);
or
(iii) intra-Group arrangements of the type described in paragraph (c)
above.
19.6 Disposals
(a) Except as provided below, no member of the Group may, either in a
single transaction or in a series of transactions and whether related
or not, dispose of:
(i) any shares in any member of the Group;
(ii) all or any part of its assets.
(b) Paragraph (a)(i) does not apply to any disposal where all shares owned
by any member of the Group in a Subsidiary are disposed of at the time
of the disposal and, either:
(i) the Net Proceeds of such disposal are applied promptly in
prepayment of the Senior Credit Facilities to the extent
required by
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and in accordance with Clause 11.4 of the Senior Credit
Facilities; or
(ii) the disposal is:
(A) a disposal of shares in a Subsidiary which is not
a Material Subsidiary, and
(B) a disposal of shares to a wholly-owned Subsidiary of the
Company, and
(C) (if the member of the Group disposing of the shares is an
Obligor) a disposal of shares to another Obligor, and
(if the shares being disposed of are secured under the Senior Credit
Facilities), immediately upon completion of the disposal security at
least equivalent to that over such shares existing in favor of the
Facility Agent immediately prior to their disposal is created in favor
of such Facility Agent under the Senior Credit Facilities, in form and
substance satisfactory to such Facility Agent.
(c) Paragraph (a)(ii) does not apply to:
(i) any disposal of all or part of Felsted for Cash;
(ii) any disposal made in the ordinary course of trading of the
disposing entity;
(iii) any disposal of assets in exchange for other assets comparable
or superior as to type, value and quality;
(iv) any disposal from one member of the Group to another member of
the Group provided that (A) if immediately prior to such
disposal security is provided over such assets to the Facility
Agent pursuant to the terms of the Security Documents, like
security shall be provided in a manner satisfactory to the
Facility Agent over such assets in favor of the Facility Agent,
and (B) where the member of the Group effecting such disposal
is an Obligor, the member of the Group to whom the assets are
disposed of shall also be an Obligor;
(v) any disposal of Cash or Cash Equivalents;
(vi) any disposal of obsolete assets which are no longer required
for the purpose of the disposing entity's business;
(vii) any disposal on arm's length terms to a joint venture to which
a member of the Group is a party and in which the relevant
member of the Group has management control or owns a majority
of the voting rights and issued share capital;
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(viii) any disposal where the Net Proceeds of that disposal are
applied promptly in prepayment of the Senior Credit Facilities
to the extent required by and in accordance with Clause 11.4 of
the Senior Credit Facilities; or
(ix) any disposal where the Net Proceeds (when aggregated with the
Net Proceeds for any other disposal not allowed under the
preceding sub-paragraphs) does not exceed (pound)5,000,000 or
its equivalent in any financial year of the Company.
(d) No member of the Group shall enter into any option or similar
arrangement under which a person has a present or contingent right to
require a member of the Group to sell or otherwise dispose of any
material property or interest in property where such disposal would be
prohibited by the provisions of this Clause 19.6.
(e) Notwithstanding the rest of this Clause 19.6, no member of the Group
may make a disposal, as referred to in paragraph (a) above, which is
also a disposal of a Material Subsidiary or a business which if
comprised in an entity would in consequence have been a Material
Subsidiary, except to the extent that the Company has delivered to the
Facility Agent in form and substance satisfactory to the Facility
Agent a certificate signed by two authorized signatories of the
Company certifying that the directors of the Company reasonably
believe that, if the relevant disposal occurred, the financial
covenants contained in Clause 19 will be complied with when tested for
each of the four Measurement Periods succeeding such Measurement
Period.
(f) Notwithstanding the rest of this Clause 19.6, no member of the Group
may make a disposal, as referred to in paragraph (a) above, other than
for Cash consideration payable in full at completion of the disposal,
save that up to 20% (for three months only from the date of this
Agreement) and from then on 15% of the consideration relating to a
disposal may be deferred or in the form of non-Cash consideration.
19.7 Financial Indebtedness
(a) Except as provided below, no member of the Group may incur or permit
to subsist any Financial Indebtedness.
(b) Paragraph (a) does not apply to:
(i) any Financial Indebtedness incurred or permitted under the
Bridge Finance Documents or the Senior Finance Documents;
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(ii) any Financial Indebtedness of any person acquired by a member
of the Group which is incurred under arrangements in existence
at the date of acquisition, but only for a period of 6 months
from the date of acquisition and not established in
contemplation of that acquisition;
(iii) any derivative transaction permitted under Clause 19.24;
(iv) any loan permitted under Clause 19.25;
(v) any Financial Indebtedness to the extent covered by a Letter of
Credit or letter of credit issued under an Ancillary Facility
(as such terms are defined in the Senior Credit Facilities);
(vi) Financial Indebtedness not otherwise permitted under the
preceding sub-paragraphs which in aggregate does not exceed
(pound)10,000,000 or its equivalent at any time.
(c) The Company will not incur, and will procure that Topco will not
incur, any Financial Indebtedness, other than:
(i) in the case of the Company only, any Financial Indebtedness
evidenced by High Yield Refinancing Securities or Bond Exchange
Notes issued by the Company in compliance with the Senior
Credit Facilities and any refinancing thereof provided that
such refinancing is on terms materially no more onerous than
the High Yield Refinancing Securities or Bond Exchange Notes;
(ii) in the case of the Company only, any Financial Indebtedness
incurred under the Bridge Finance Documents;
(iii) between itself and Topco;
(iv) to another member of the Group; or
(v) any loan permitted by Clause 19.25.
19.8 Change of business
The Company must ensure that no substantial change is made to the general
nature of the business of the Group taken as a whole (otherwise than through
disposals permitted pursuant to Clause 19.6) from that carried on at the date of
this Agreement.
19.9 Mergers
The Company will not consolidate with or merge with or into, or convey,
transfer or lease, in one transaction or a series of transactions, directly or
indirectly, all or substantially all its assets to, any corporation,
partnership, limited company, limited
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liability company, joint venture, association, joint-stock company, trust or
unincorporated organization, unless:
(a) the resulting, surviving or transferee entity (the "Successor
Company") shall be organized and existing under the laws of (i)
England and Wales, (ii) any country that is a member of the European
Union on the Effective Date or (iii) the United States of America, any
State thereof or the District of Columbia and the Successor Company
(if not the Company) shall expressly assume, in form satisfactory to
the Facility Agent, all the obligations of the Company under this
Agreement;
(b) immediately after giving pro forma effect to such transaction (and
treating any Financial Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary as a result of such transaction as
having been incurred by such Successor Company or such Subsidiary at
the time of such transaction), no Default shall have occurred and be
continuing;
(c) immediately after giving pro forma effect to such transaction, the
Successor Company would be able to incur an additional (pound)1.00 of
Financial Indebtedness pursuant to Clause 18.4;
(d) immediately after giving pro forma effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount that
is not less than the Consolidated Net Worth of the Company immediately
prior to such transaction;
(e) the Company shall have delivered to the Facility Agent a certificate
and an opinion of counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply
with this Agreement; and
(f) the Company shall have delivered to the Facility Agent an opinion of
counsel to the effect that the Lenders will not recognize income, gain
or loss for U.S. Federal income tax purposes as a result of such
transaction and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such transaction had not occurred;
provided, however, that clauses (3) and (4) will not be applicable to (A)
-------- -------
an Obligor consolidating with, merging into or transferring all or part of
its properties and assets to the Company or (B) the Company merging with an
Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction.
The Successor Company will be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power
of, the
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Company under this Agreement, and the predecessor Company, except in the
case of a lease, shall be released from the obligation to pay the
principal of and interest on the Loans and Exchange Notes.
19.10 Third party guarantees
(a) In this Subclause, a "guarantee" includes a guarantee, an indemnity,
counter-indemnity or other assurance against loss, but excludes for
the avoidance of doubt, any warranty or indemnity commonly included
in a share sale and purchase agreement or asset disposal agreement
entered into on normal commercial terms (other than one related to
Financial Indebtedness).
(b) Except as provided below, no member of the Group may incur or allow
to be outstanding any guarantee in respect of any person.
(c) Paragraph (b) does not apply to:
(i) any guarantee arising under the Senior Finance Documents;
(ii) any guarantee arising under the Hive-Down Agreements;
(iii) any guarantee comprising a netting or set-off arrangement
entered into by a member of the Group in favor of an Approved
Bank in the ordinary course of its banking arrangements for
the purposes of netting debit and credit balances;
(iv) the endorsement of negotiable instruments in the ordinary
course of trade;
(v) performance bonds guaranteeing performance by a member of the
Group under any contract entered into in the ordinary course
of business;
(vi) any indemnity given to a director of a member of the Group;
(vii) guarantees in respect of any Financial Indebtedness of any
member of the Group which is allowed under the Bridge Finance
Documents; or
(viii) guarantees where the aggregate amount so guaranteed by all
members of the Group at any time does not exceed
(pound)5,000,000 or its equivalent.
(d) The Company shall procure that within one month of the Effective
Date there is delivered to the Facility Agent in form and substance
satisfactory to it a schedule of all guarantees of the type referred
to in paragraph (c) above outstanding at the Effective Date which
evidences that the amount
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referred to in paragraph (c)(viii) above was not exceeded at the
Effective Date and to the extent that this amount was exceeded the
Parties agree to discuss in good faith with a view to determining
whether an increase in the amount referred to in paragraph (c)
(viii) above acceptable to the Finance Parties might be agreed.
19.11 Acquisitions
(a) Except as provided below, no member of the Group may:
(i) acquire, subscribe for or invest in any company, business,
shares or securities; or
(ii) incorporate any company.
(b) Paragraph (a) does not apply to:
(i) any transaction expressly set out in the Structure Memorandum;
(ii) Cash Equivalents;
(iii) the subscription for shares in a member of the Group which
immediately prior to the subscription was its direct
Subsidiary and provided that the relevant shares are issued by
that member of the Group in compliance with Clause 19.26 and
(if the existing shares in such member of the Group are
charged) are charged under the Security Documents;
(iv) any acquisition, investment or subscription the aggregate
consideration (including the amount of any indebtedness
outstanding in any such company or business at the date of
such acquisition, subscription or investment) for which, when
aggregated with the consideration for all other such
acquisitions, investments or subscriptions made after the date
of this Agreement, does not exceed (pound)10,000,000;
(v) any non-Cash consideration received pursuant to a disposal
permitted under Clause 19.6; or
(vi) the warrants issued by Nobia AB and relating to the disposal
by the Company of Magnet Limited and various other of its
Subsidiaries.
(c) No member of the Group shall enter into any option or similar
arrangement under which a person has a present or contingent right
to require a member of the Group to acquire any asset or any
interest in any asset where if the right were exercised the
acquisition would breach the terms of any of the Bridge Finance
Documents or the Senior Finance Documents.
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(d) The provisions of this Subclause shall only apply whilst
Compliance Certificates for the two most recent consecutive
Measurement Periods have not shown that the ratio of
Consolidated Total Net Debt to Consolidated EBITDA was below
2.0:1 and such ratio would not be below 2.0:1 for two
consecutive Measurement Periods if any acquisition of the type
referred to above was made.
19.12 Environmental matters
(a) Each member of the Group must:
(i) obtain all requisite Environmental Approvals; and
(ii) ensure that it is in compliance with all
Environmental Law and Environmental Approvals
applicable to it,
(iii) where failure to do so is reasonably likely to have a
Material Adverse Effect.
(b) The Company must promptly upon becoming aware notify the
Facility Agent of:
(i) any Environmental Claim current, or to its knowledge,
pending or threatened; or
(ii) any circumstances reasonably likely to result in an
Environmental Claim,
which is reasonably likely to be adversely substantiated and which, if
substantiated, is reasonably likely either to have a Material Adverse
Effect or result in any liability for a Finance Party.
19.13 Insurance
Each member of the Group must insure its business and assets with
insurance companies to such an extent and against such risks as companies
engaged in a similar business normally insure.
19.14 The Company
(a) The Company must not carry on any business or own any assets,
other than:
(i) the ownership of shares in the capital of Enodis
Holdings Limited and the lending of the Subordinated
Intercompany Loan to Enodis Holdings Limited;
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(ii) incurring Financial Indebtedness under the Bridge
Finance Documents and the Bond Documents or
refinancing thereof;
(iii) the provision of administrative, but not treasury,
services to the members of the Group as and to the
extent generally provided by holding companies such
as it;
(iv) exercising its rights relating to and complying with
its obligations under the terms and conditions of the
Hive-Down Documents;
(v) receiving payments from Enodis Holdings Limited or
other Group members to the extent permitted by Clause
23.27 of the Senior Credit Facilities;
(vi) carrying out and making payments in relation to those
activities permitted to be funded by payments
permitted pursuant to Clause 23.27 of the Senior
Credit Facilities;
(vii) holding and carrying out activities in relation to
the Excluded Assets (as defined in the Hive-Down
Agreements); and
(viii) conducting the Equity Offering launched on the date
hereof; and
(ix) issuing ordinary shares in its capital of the same
class as those to be issued pursuant to the Equity
Offering where an amount equal to the net proceeds of
such issue is subscribed for ordinary shares in the
capital of Enodis Holdings Limited of the same class
as those in issue at the date hereof.
(b) The Company shall procure that Topco does not carry on any
business or own any assets, other than:
(i) the ownership of shares in the capital of the
Company;
(ii) incurring Financial Indebtedness in relation to any
refinancing of the Facility, the Exchange Notes
and/or the High Yield Refinancing Securities or the
Bond Exchange Notes;
(iii) receiving payments from the Company or Enodis
Holdings Limited to the extent permitted by Clause
23.27 of the Senior Credit Facilities;
(iv) carrying out and making payments in relation to those
activities permitted to be funded by payments to
Topco permitted pursuant to Clause 23.27 of the
Senior Credit Facilities; and
(v) issuing ordinary shares in its capital of the same
class as those issued on the establishment of Topco
where an amount equal to the net proceeds of such
issue is subscribed by Topco or the Company
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for ordinary shares in the capital of Enodis Holdings
Limited of the same class as those in issue at the
date hereof.
19.15 [Reserved.]
19.16 Amendments to documents
(a) The Company may not amend either the Subordinated Intercompany
Loan Agreement or the Subordination Agreement without the
prior written consent of the Lenders.
(b) No member of the Group may:
(i) amend any of the Transaction Documents;
(ii) amend its memorandum or articles of association or
other constitutional documents;
(iii) enter into any agreement with any shareholders in the
Company; or
(iv) amend or waive any of the other documents delivered
to the Facility Agent pursuant to Clause 4.1,
without the prior written consent of the Original Lenders on or prior
to the Effective Date and, thereafter (save where Majority Lender
consent has been obtained), in any way which may affect materially and
adversely the interests of the Lenders under the Bridge Finance
Documents.
(c) The Company must promptly supply to the Facility Agent a copy
of any amendment or waiver of the documents referred to in
paragraphs (a) and (b) above.
19.17 [Reserved.]
19.18 Access
Upon reasonable notice being given by the Facility Agent, if the
Facility Agent has reasonable grounds for believing that there is or may be an
outstanding Default, the Company will procure that one or more representatives
of the Facility Agent and/or accountants or other professional advisers
appointed by the Facility Agent are allowed to have access during normal
business hours to the assets, books and records of each member of the Group and
are able to inspect and copy the same.
19.19 Pension schemes
(a) Each member of the Group must:
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(i) be in compliance in all material aspects with any
laws or contract relating to any of its pension
schemes; and
(ii) maintain and fund its pension schemes to at least the
extent required by local law and practice.
(b) The Company must supply the Facility Agent with a copy of any
actuarial report in respect of any pension scheme operated by
a member of the Group which the Facility Agent may reasonably
request.
19.20 Taxes
(a) Each member of the Group shall pay all Taxes due and payable
by it prior to the accrual of any material fine or penalty for
late payment save to the extent that) payment of those Taxes
is being contested in good faith and adequate reserves are
being maintained for those Taxes.
19.21 Joint Ventures
(a) Subject to paragraph (b) below, no member of the Group may
enter into, invest in, acquire any interest in, transfer any
asset to or lend to or guarantee the obligations of any joint
venture, partnership or similar arrangement or enter into any
agreement or obligation where it would have any obligation to
do any of the foregoing.
(b) Paragraph (a) above shall not apply to any joint venture,
partnership or similar arrangement in which a member or
members of the Group:
(i) have management control; or
(ii) own a majority of the issued voting share capital,
of the relevant joint venture, partnership or similar arrangement.
19.22 [Reserved.]
19.23 Arm's length terms
No member of the Group may enter into any material transaction with any
person otherwise than on arm's length terms and for full market value save for
intercompany loans permitted pursuant to Clause 19.25 and transactions required
pursuant to and as permitted by the Bridge Finance Documents and the Senior
Finance Documents.
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19.24 Treasury transactions
(a) In this Subclause "treasury transaction" means any derivative
transaction protecting against or benefiting from fluctuations
in any rate or price.
(b) No member of the Group may enter into any treasury
transaction, other than:
(i) the hedging transactions contemplated by the Hedging
Letter and documented by the Hedging Documents;
(ii) spot foreign exchange contracts entered into in the
ordinary course of business; and
(iii) any treasury transaction entered into for the hedging
of actual or projected exposures arising in the
ordinary course of trading activities of a member of
the Group.
(c) The Company must ensure that the currency and interest rate
hedging arrangements contemplated by the Hedging Letter are
implemented in accordance with the terms of and within the
time period specified in the Hedging Letter and that such
arrangements are not terminated, varied, released or cancelled
without the prior written consent of the Facility Agent save
as permitted by the Priority Deed.
19.25 Loans out
(a) Except as provided below, no member of the Group may be the
creditor in respect of any Financial Indebtedness.
(b) Paragraph (a) does not apply to:
(i) trade credit extended by any member of the Group on
normal commercial terms and in the ordinary course of
its trading activities;
(ii) loans made by members of the Group to other members
of the Group which are Obligors;
(iii) loans made by one member of the Group to another
member of the Group identified in the Structure
Memorandum and other intra-Group loans made after
29th December, 2001 and prior to the Effective Date;
(iv) subject to the terms of the Priority Deed loans made
pursuant to the Intra-Group Funding Agreement;
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(v) loans to the Company which constitute Permitted
Distributions and Permitted Additional Dividends and
loans of the proceeds of such Permitted Distributions
and Permitted Additional Dividends to Topco by the
Company;
(vi) the Nobia AB vendor loan facility in the amount
of (pound)20,000,000 relating to the disposal by the
Company of Magnet Limited and various other of its
Subsidiaries;
(vii) loans made as non-Cash consideration pursuant to a
disposal permitted under Clause 19.6;
(viii) loans made by members of the Group to other members
of the Group which are Obligors subject (where the
lenders are Obligors) to a maximum aggregate
principal amount at any time outstanding of
(pound)5,000,000; or
(ix) loans made by any member of the Group in the ordinary
course of business, including, without limitation, to
its employees, customers and suppliers, subject to a
maximum aggregate principal amount outstanding at any
time of (pound)3,000,000.
(c) The Company shall procure that within one month of the
Effective Date there is delivered to the Facility Agent in
form and substance satisfactory to it a schedule of all loans
in respect of which any member of the Group was a creditor
which were outstanding at the Effective Date which evidences
that the amounts referred to in paragraphs (b)(viii) and (ix)
above were not exceeded at the Effective Date in respect of
such loans and to the extent that either or both of these
amounts were exceeded the Parties agree to discuss in good
faith with a view to determining whether an increase in either
or both of the amounts referred to in those paragraphs
acceptable to the Finance Parties might be agreed.
19.26 Share capital
(a) Except as provided below, no member of the Group may:
(i) redeem, repurchase, defease, retire or repay any of
its share capital or resolve to do so;
(ii) (other than by Enodis Holdings Limited to the Company
or by the Company to Topco) issue any shares which by
their terms are redeemable; or
(iii) issue any share capital to any person.
(b) Paragraph (a) does not apply to:
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(i) the Company (except that if Topco has been formed,
paragraph (a) shall apply to the Company but shall
not apply to Topco);
(ii) any transaction expressly allowed under the Bridge
Finance Documents or Senior Finance Documents; or
(iii) the issue of shares by a member of the Group to
another member of the Group which is its immediate
Holding Company, where such shares become the subject
of a charge in favor of the Lenders on the same terms
as any other shares in such member of the Group which
are charged to the Lenders by way of security (where
any other shares in such member of the Group are the
subject of a Security Interest in favor of the
Lenders).
19.27 Dividends
The Company may not:
(a) declare, make or pay any dividend, charge, fee or other
distribution (or interest on any unpaid dividend, charge, fee
or other distribution), whether in cash or in kind, on or in
respect of any of its share capital;
(b) repay or distribute any dividend or share premium reserve;
(c) pay or allow any member of the Group to pay any management,
advisory or other fee to or to the order of any of the
shareholders of the Company,
other than the payment of (i) the proceeds of Permitted Distributions
to Topco to the extent such proceeds represent indebtedness, financial
obligations or liabilities of Topco under Subclause (e), (g) or (h) of
the definition of Permitted Distributions set forth in the Senior
Credit Facilities, and (ii) dividends from the proceeds of Permitted
Additional Dividends.
19.28 [Reserved.]
19.29 Intellectual Property Rights
(a) Except as provided below, each member of the Group must:
(i) make any registration and pay any fee or other amount
which is necessary to keep the Intellectual Property
Rights which are material to the business of an
Obligor or Material Subsidiary in force;
(ii) record its interest in those Intellectual Property
Rights;
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(iii) take such steps as are necessary and commercially
reasonable (including the institution of legal
proceedings) to prevent third parties infringing
those Intellectual Property Rights;
(iv) not use or permit any Intellectual Property Right to
be used in a way, or take or omit to take any action
which may, adversely effect the existence or value of
such Intellectual Property Right; and
(v) not enter into license arrangements in respect of
those rights.
(b) Paragraph (a)(iv) does not apply to:
(i) license arrangements entered into with members of the
Group for so long as they remain members of the
Group; or
(ii) license arrangements entered into on normal
commercial terms and in the ordinary course of its
business.
19.30 Felsted
No member of the Group may invest any amount in relation to Felsted,
except where such investment (the "Felsted Investment") is made:
(a) in connection with the performance of a binding contract (the
"Felsted Contract") in relation to the development of a part
of the Felsted site (the "Investment Site") where completion
of and receipt of proceeds under such contract is
contractually obliged to occur within eighteen months of any
amount of such Felsted Investment being made;
(b) where the terms of the Felsted Contract require consideration
to be received by a member of the Group upon completion of
such contract in an amount greater than the Felsted Investment
made or to be made in connection with the relevant Investment
Site; and
(c) where the aggregate amount of the Felsted Investments made or
contracted to be made under all Felsted Contracts referred to
in paragraph (a) and (b) above which have not completed
(together with the aggregate amount by which consideration
received in relation to any Felsted Contract was in an amount
less than the related Felsted Investment) is less than
(pound)10,000,000.
19.31 Registered/Principal Offices
The Company will and will procure that each member of the Group will,
promptly notify the Facility Agent in writing of any change in its name or in
the address of its registered or principal office.
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19.32 VAT representative member
(a) The Company will make and will procure that any necessary
members of the Group make all necessary applications to HM
Customs & Excise for Enodis Group Limited to be substituted
for the Company as the representative member of the Group for
VAT purposes and use all reasonable endeavors to receive
acknowledgement thereof from HM Customs & Excise.
(b) The Company will not take any action to remove Enodis Group
Limited as the representative member of the Group for VAT
purposes.
(c) The Company will take all necessary steps to promptly remove
the Company from the VAT group of which the Group forms part.
19.33 [Reserved.]
19.34 United States laws
(a) In this Subclause:
"Code" means, at any date, the United States Internal Revenue Code of
1986 (or any successor legislation thereto) as amended from time to time, and
the regulations promulgated and rulings issued thereunder, all as the same may
be in effect at such date.
"ERISA" means, at any date, the United States Employee Retirement
Income Security Act of 1974 (or any successor legislation thereto) as amended
from time to time, and the regulations promulgated and rulings issued
thereunder, all as the same may be in effect at such date.
"ERISA Affiliate" means any person treated as a single employer with
any Obligor for the purpose of section 414 of the Code.
"Margin Stock" has the meaning given to it in Regulations U and X
issued by the Board of Governors of the United States Federal Reserve System.
"Plan" means an employee benefit plan as defined in section 3(3) of
ERISA:
(a) maintained by the Company or any ERISA Affiliate; or
(b) to which the Company or any ERISA Affiliate is required to
make any payment or contribution.
"Reportable Event" means:
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(a) an event specified as such in section 4043 of ERISA or any
related regulation, other than an event in relation to which
the requirement to give notice of that event is waived by any
regulation; or
(b) a failure to meet the minimum funding standard under section
412 of the Code or section 302 of ERISA, whether or not there
has been any waiver of notice or waiver of the minimum funding
standard under section 412 of the Code.
(b) The Company may not:
(i) extend credit for the purpose, directly or
indirectly, of buying or carrying Margin Stock; or
(ii) use any Loan, directly or indirectly, to buy or carry
Margin Stock or to extend credit to others for the
purpose of buying or carrying Margin Stock.
(c) The Company may not use any part of any Loan to acquire any security in
a transaction that is subject to section 13 or 14 of the United States
Securities Exchange Act of 1934.
(d) The Company must promptly upon becoming aware of it notify the Facility
Agent of:
(i) any Reportable Event;
(ii) the termination of or withdrawal from, or any
circumstances reasonably likely to result in the
termination of or withdrawal from, any Plan subject
to Title IV of ERISA; and
(iii) a claim or other communication alleging material
non-compliance with any law or regulation relating to
any Plan which is reasonably likely to have a
Material Adverse Effect.
(e) The Company and its ERISA Affiliates must be, and remain, in compliance
in all respects with all laws and regulations relating to each of its
Plans, where failure to do so is reasonably likely to have a Material
Adverse Effect.
(f) Each of the Company and its ERISA Affiliates must ensure that no event
or condition exists at any time in relation to a Plan which is
reasonably likely to result in the imposition of a Security Interest on
any of its assets or which is reasonably likely to have a Material
Adverse Effect.
19.35 Structure Memorandum
If any significant reorganization steps are undertaken or any
significant disposals or transfers occur the Company will promptly provide the
Facility Agent with an updated Structure Memorandum reflecting such
transactions.
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19.36 Funds Flow Statement
The Company will make all payments in such amounts, at such times and
in such a manner as provided for in the Funds Flow Statement.
19.37 [Reserved.]
19.38 High Yield Refinancing Securities
(a) The Company agrees to use its best efforts to offer and sell
High Yield Refinancing Securities to be issued in a Rule 144A
or Regulation S offering or any other private placement or
public offering, as the Arrangers may in their sole discretion
determine after consultation with the Company, to refinance in
whole or in part the Loans and Exchange Notes (the "High Yield
Refinancing") and to consummate such High Yield Refinancing as
promptly as practicable after the Effective Date (and, if
unsuccessful, from time to time thereafter at the request of
the Arrangers until the Maturity Date) in an amount sufficient
to refinance no less than(pound)100,000,000 outstanding under
the Bridge Finance Documents, at such times and on such terms
and conditions (including interest rate, yield, redemption
prices, ranking and dates) as the Arrangers may in their good
faith judgment, after consultation with the Company, determine
to be appropriate in light of prevailing circumstances and
market conditions and the financial condition and prospects of
the Company and as are customary for issuances of Sterling,
euro or U.S. dollar denominated senior unsecured notes or
debentures, as the case may be; provided, however, that the
Company will not be required to issue High Yield Refinancing
Securities bearing interest in excess of the maximum interest
rate specified herein for Exchange Notes or paying cash
interest in excess of the maximum cash pay interest rate
specified herein for the Exchange Notes. Although High Yield
Refinancing Securities will not be denominated in any currency
other than Sterling without the Company's consent, the Company
agrees to discuss in good faith with the Arrangers
denomination in euro or U.S. dollars if the Arrangers
recommend denominations in either or both such currencies
after good faith efforts to market Sterling denominated High
Yield Refinancing Securities.
(b) The Company's best efforts to offer and sell the notes to
refinance the Loans and Exchange Notes will include, at a
minimum, but not be limited to, the following:
(i) no later than the Effective Date, the Company will
deliver to the Arrangers an initial draft of an
offering circular for the distribution of the High
Yield Refinancing Securities meeting the prospectus
requirements under Form F-1 under the Securities Act
(other than with respect to financial statements);
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(ii) no later than 14 days following the Effective Date,
the Company will deliver, in complete and final form,
to the Arrangers all financial statements that would
be required to be included in a registration
statement on Form F-1 under the Securities Act;
(iii) no later than 30 days following the Effective Date,
the Company will deliver to the Arrangers a completed
offering circular, in form and substance reasonably
satisfactory to the Arrangers, that would be suitable
for use on a road show for the sale of the High Yield
Refinancing Securities; and
(iv) upon delivery of such completed offering circular,
the Company will cause its senior management to
participate in a customary road show for the sale of
the High Yield Refinancing Securities.
It is understood and agreed that the aforesaid offering circular will,
except as otherwise agreed to in writing by the Arrangers, contain all
the information (financial or otherwise) that would be required to be
included in a prospectus that complied with the requirements of Form
F-1 under the Securities Act, in particular contain all financial
statements (including audited financial statements and accompanying
audit reports and related consents and unaudited financial statements,
prepared in accordance with U.K. GAAP and reconciled to U.S. GAAP), and
other financial information and other data that would be necessary in
an offering of the High Yield Refinancing Securities registered under
the Securities Act with respect to the Company.
(c) The indenture for the High Yield Refinancing Securities shall
be substantially in the form of the Exchange Note Indenture,
modified as appropriate to be consistent with the terms and
conditions of the High Yield Refinancing Securities, and in
form and substance reasonably satisfactory to the Arrangers
and the Company.
(d) The Company shall enter into a purchase agreement and a
registration rights agreement with the Arrangers and any other
initial purchasers covering the High Yield Refinancing
Securities substantially in the form of the Credit Suisse
First Boston standard forms, or on more favorable terms, for
purchase agreements and registration rights agreements for
non-registered offerings, not later than the time of the
pricing of the offering of the High Yield Refinancing
Securities.
(e) The Company agrees to use its best efforts to list the High
Yield Refinancing Securities on the Luxembourg Stock Exchange
prior to the closing of the High Yield Refinancing.
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19.39 [Reserved.]
19.40 Exchange Notes
(a) As promptly as practicable after being requested to do so by
the Facility Agent at any time after the Effective Date and in
any event prior to the date that is the earlier of (i) the
first Exchange Date hereunder and (ii) 90 days following the
Effective Date, the Company agrees to select a trustee for the
Exchange Notes that is reasonably acceptable to the Facility
Agent and enter into the Exchange Note Indenture.
(b) The Company agrees, on any Exchange Date, pursuant to the
Exchange Note Indenture, to take all requisite action,
together with the trustee under the Exchange Note Indenture,
to record the Company's obligations to such Lender under the
Exchange Note Indenture (including, as applicable, the
issuance of an Exchange Note in the form of either Definitive
Notes or the recording of such obligation through Euroclear or
Clearstream Luxembourg as a beneficial ownership interest in
one or more Global Notes (as such terms are defined in the
Exchange Note Indenture)), and such Lender's Loans (including
any accrued interest not required to be paid in cash) shall be
deemed to have been repaid by the amount so exchanged and the
Company's obligations under this Agreement with respect to
such Loans shall be terminated. If following any Exchange, a
Lender shall no longer have outstanding Loans, such Lender
shall return its Loan Note (if any) to the Facility Agent for
cancelation and return to the Company.
(c) The bank or trust company acting as trustee under the Exchange
Note Indenture shall at all times be a corporation organized
and doing business under the laws of the United States of
America or the State of New York, in good standing and having
its principal offices in The Borough of Manhattan, in The City
of New York, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or
examination by Federal or state authority and which has a
combined capital and surplus of not less than
(pound)50,000,000. The Exchange Note Indenture shall be in
such a form that it can be qualified under the Trust Indenture
Act of 1939.
(d) If Exchange Notes are issued pursuant to the terms hereof,
then the holders of such Exchange Notes shall have the
registration rights set forth in the Exchange Note Indenture.
(e) Prior to the first interest payment in respect of the Exchange
Notes, the Company agrees to use its best efforts to list the
Exchange Notes on the Luxembourg Stock Exchange or any other
Recognized Stock Exchange.
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(f) In the event that the Company is neither subject to Section 13
or Section 15(d) of the Exchange Act nor exempt from reporting
pursuant to Rule 12g3-2(b) under the Exchange Act, the Company
shall furnish to any holder of Exchange Notes and to
prospective investors, upon the requests of such holders, any
information required to be delivered pursuant to Rule 144A
(d)(4) under the Securities Act so long as any Exchange Notes
are outstanding.
19.41 Use of Proceeds
The Company agrees to use the net proceeds received by it from the
Equity Offering and from the High Yield Refinancing to repay and redeem the
Loans and the Exchange Notes in accordance with Clause 6 and the applicable
provisions of the Exchange Note Indenture. Such repayment and redemption shall
be made pro rata among the Lenders and holders of Exchange Notes on the basis of
the aggregate amount of Loans and Exchange Notes held by each of them.
19.42 Intercompany Loans
Subject to the Subordination Agreement, the Company agrees to enforce
all its rights under the Subordinated Intercompany Loan to ensure that all
amounts due thereunder are paid to it.
19.43 Rating of Loans
As soon as practicable after the Effective Date, and thereafter for so
long as any Loans or Exchange Notes are outstanding, the Company will use its
best efforts to cause Moody's and S&P to assign a rating to the Loans and
Exchange Notes.
19.44 Exchange Note Covenants
(a) Prior to the Initial Bridge Maturity Date, the Company shall
comply with the covenants specified in Clauses 17, 18 and 19
of this Agreement, and the covenants specified in Articles IV
and V of the Exchange Note Indenture shall be inapplicable.
Following the Initial Bridge Maturity Date, the covenants
specified in Clauses 17.1 through 17.8, 18.1 through 18.7 and
19.1 through 19.36 shall no longer be applicable and the
Company shall comply with the covenants specified in Sections
4.01, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.15, 4.16, 4.17, 4.18 and Article V of the
Exchange Note Indenture (in addition to complying with the
covenants specified in Sections 4.02 and 4.14 of the Exchange
Note Indenture as provided in Clause 17.9). The provisions of
this Clause 19.44 shall not affect any Default or Event of
Default that exists on the Initial Bridge Maturity Date.
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(b) Following the Initial Bridge Maturity Date and for the purpose
of determining compliance with the Exchange Note Indenture and
this Agreement following the Initial Bridge Maturity Date, the
Company shall be required to take account of all events from
the Effective Date to the Initial Bridge Maturity Date
(including, without limitation, Incurrences of Indebtedness
and Liens and making of Restricted Payments and Investments,
in each case as such terms are defined in the Description of
the Exchange Notes), and any classifications or allocations
required to be made at the time of such events in order to
comply with such provisions, as though the Exchange Note
Indenture contained such terms and covenants and had been in
full force and effect from the Effective Date.
20. DEFAULT
20.1 Events of Default
(a) Each of the events set out in this Clause is an Event of
Default.
(b) In this Clause:
"Material Group Member " means a Material Subsidiary; and
"Permitted Transaction" means:
(i) an intra-Group re-organization or voluntary
winding-up of a Material Subsidiary on a solvent
basis which is not reasonably likely to have a
Material Adverse Effect;
(ii) Topco becoming the Holding Company of the Company
pursuant to a scheme of arrangement; or
(iii) any other transaction agreed by the Majority Lenders.
20.2 Non-payment
The Company does not pay on the due date any amount payable by it under
the Bridge Finance Documents in the manner required under the Bridge Finance
Documents, unless the non-payment:
(a) is caused by technical or administrative error; and
(b) is remedied within five Business Days of the due date.
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20.3 Breach of other obligations
(a) The Company does not comply with any term of any of Clauses
18, 19.5, 19.6, 19.26 or 19.27; or
(b) The Company does not comply with any other term of the Bridge
Finance Documents not already referred to in this Clause,
unless the non-compliance:
(i) is capable of remedy; and
(ii) is remedied within twenty one days of the earlier of
the Facility Agent giving notice and the Company
becoming aware of the non-compliance.
20.4 Misrepresentation
A representation made or repeated by the Company in any Bridge Finance
Document or in any document delivered by or on behalf of the Company under any
Bridge Finance Document is incorrect in any material respect when made or deemed
to be repeated.
20.5 Cross-default
Any of the following occurs in respect of a member of the Group:
(a) any amount payable in respect of its Financial Indebtedness is
not paid when due (after the expiry of any originally
applicable grace period);
(b) any of its Financial Indebtedness:
(i) becomes prematurely due and payable;
(ii) is placed on demand; or
(iii) is capable of being declared by a creditor to be
prematurely due and payable or being placed on
demand,
in each case, as a result of an event of default
(howsoever described); or
(c) any commitment for its Financial Indebtedness is cancelled or
suspended as a result of an event of default (howsoever
described),
unless the aggregate amount of Financial Indebtedness falling within
paragraphs (a)-(c) above is less than (pound)5,000,000 or its
equivalent.
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20.6 Insolvency
Any of the following occurs in respect of a Material Group Member or
the Company:
(a) it is, or is deemed for the purposes of any law to be, unable
to pay its debts as they fall due or insolvent;
(b) it admits its inability to pay its debts as they fall due;
(c) it suspends making payments on any of its debts or announces
an intention to do so;
(d) by reason of actual or anticipated financial difficulties, it
begins negotiations with any creditor for the rescheduling of
any of its indebtedness; or
(e) a moratorium is declared in respect of any of its
indebtedness.
20.7 Insolvency proceedings
(a) Except as provided below, any of the following occurs in
respect of a Material Group Member or the Company:
(i) any step is taken with a view to a composition,
assignment or similar arrangement with any of its
creditors;
(ii) a meeting of it is convened for the purpose of
considering any resolution for (or to petition for)
its winding-up, administration or dissolution or any
such resolution is passed;
(iii) any person presents a petition for its winding-up,
administration or dissolution;
(iv) an order for its winding-up, administration or
dissolution is made;
(v) any liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver,
administrative receiver, administrator or similar
officer is appointed in respect of it or any of its
assets;
(vi) its directors or other officers request the
appointment of a liquidator, trustee in bankruptcy,
judicial custodian, compulsory manager, receiver,
administrative receiver, administrator or similar
officer; or
(vii) any other analogous step or procedure is taken in any
jurisdiction.
(b) Paragraph (a) does not apply to:
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(i) any step or procedure which is part of a Permitted
Transaction; or
(ii) a petition for winding-up presented by a creditor which
is being contested in good faith and with due diligence
and is discharged or struck out within twenty one days.
20.8 United States Bankruptcy Laws
(a) In this Subclause:
"U.S. Bankruptcy Law" means the United States Bankruptcy Code 1978 or
any other United States Federal or State bankruptcy, insolvency or similar law.
"U.S. Material Group Member" means any Material Group Member
incorporated or organized under the laws of the United States of America or any
state of the United States of America (including the District of Columbia).
(b) Any of the following occurs in respect of a U.S. Material Group
Member:
(i) it makes a general assignment for the benefit of
creditors;
(ii) it commences a voluntary case or proceeding under any
U.S. Bankruptcy Law; or
(iii) an involuntary case under any U.S. Bankruptcy Law is
commenced against it and is not controverted within 30
days or is not dismissed or stayed within 90 days after
commencement of the case.
20.9 Creditors' process
Any attachment, sequestration, distress, execution or analogous event
affects any asset(s) of a Material Group Member or the Company, having an
aggregate value of at least (pound)5,000,000, and is not discharged within forty
five days.
20.10 Cessation of business
A Material Group Member ceases, or threatens to cease, to carry on
business except:
(a) as part of a Permitted Transaction; or
(b) as a result of any disposal allowed under this Agreement.
20.11 [Reserved.]
20.12 Effectiveness of Transaction Documents
(a) Any Transaction Document ceases to be in full force and effect.
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(b) It is or becomes unlawful for the Company to perform any of its
material obligations under the Transaction Documents to which it
is a party.
(c) Any Transaction Document is alleged by an Obligor to be
ineffective for any reason.
(d) An Obligor repudiates a Transaction Document or evidences an
intention to repudiate a Transaction Document.
20.13 Ownership of Material Group Members
Any Material Group Member (other than the Company) is not or ceases to
be a wholly-owned Subsidiary of the Company, except:
(a) as part of a Permitted Transaction; or
(b) as a result of any disposal allowed under this Agreement;
or, to the extent any Material Group Member is not a wholly-owned
Subsidiary of the Company as at the date of this Agreement, such
Material Group Member does not remain owned by its holding company as
to at least the same percentage of its share capital as was held at the
date of this Agreement, except as permitted under paragraph (a) or (b)
above.
20.14 Priority Deed and Subordination Agreement
(a) (i) Any member of the Group fails to comply with any of its
obligations under the Subordination Agreement; or
(ii) a representation or warranty given by that party in the
Subordination Agreement is incorrect in any material
respect,
and, if the non-compliance or circumstances giving rise to the
misrepresentation are capable of remedy, it is not remedied within
fourteen days of the earlier of the Facility Agent giving notice to
that party or that party becoming aware of the non-compliance or
misrepresentation; or
(b) any other event occurs which is reasonably likely to have a
material adverse effect on the rights of the Finance Parties
under the Subordination Agreement.
20.15 Material adverse change
Any event or series of events occurs which, in the reasonable opinion
of the Majority Lenders, is reasonably likely to have a Material Adverse Effect.
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20.16 Audit qualification
The Auditors qualify their report on any audited consolidated accounts
of the Company in a manner which is reasonably likely to have a Material Adverse
Effect.
20.17 Senior Facilities Default
Any Event of Default (as defined in the Senior Credit Facilities)
occurs under the Senior Credit Facilities.
20.18 Acceleration
If an Event of Default is outstanding, the Facility Agent may, by
notice to the Company:
(a) cancel the Total Commitments; and/or
(b) declare that all or part of any amounts outstanding under the
Bridge Finance Documents are:
(i) immediately due and payable; and/or
(ii) payable on demand by the Facility Agent acting on the
instructions of the Majority Lenders.
Any notice given under this Subclause will take effect in accordance
with its terms.
20.19 Exchange Note Events of Default
Following the Initial Bridge Maturity Date, the defaults and remedies
set forth in this Clause 20 shall be deemed, without notice to or the consent of
any holder or beneficial owner of Bridge Loans or Exchange Notes, to have been
replaced (without any further action necessary by the parties hereto) by the
defaults and remedies contained in Article VI of the Exchange Note Indenture.
The provisions of this Clause 20.19 shall not affect any Default or Event of
Default that exists on the Initial Bridge Maturity Date.
21. ADMINISTRATIVE PARTIES
21.1 Appointment and duties of the Facility Agent
(a) Each Finance Party (other than the Facility Agent) irrevocably
appoints the Facility Agent to act as its agent under the
Bridge Finance Documents.
(b) Each Finance Party irrevocably authorizes the Facility Agent to:
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(i) perform the duties and to exercise the rights, powers
and discretions that are specifically given to it
under the Bridge Finance Documents, together with any
other incidental rights, powers and discretions; and
(ii) execute each Bridge Finance Document expressed to be
executed by the Facility Agent.
(c) The Facility Agent has only those duties which are expressly
specified in the Bridge Finance Documents. Those duties are
solely of a mechanical and administrative nature.
21.2 Role of the Arrangers
Except as specifically provided in the Bridge Finance Documents, no
Arranger has any obligations of any kind to any other Party in connection with
any Bridge Finance Document.
21.3 No fiduciary duties
Except as specifically provided in a Bridge Finance Document, nothing
in the Finance Documents makes an Administrative Party a trustee or fiduciary
for any other Party or any other person. No Administrative Party need hold in
trust any moneys paid to it for a Party or be liable to account for interest on
those moneys.
21.4 Individual position of an Administrative Party
(a) If it is also a Lender, each Administrative Party has the same
rights and powers under the Bridge Finance Documents as any
other Lender and may exercise those rights and powers as
though it were not an Administrative Party.
(b) Each Administrative Party may:
(i) carry on any business with the Company or its related
entities (including acting as an agent or a trustee for
any other financing); and
(ii) retain any profits or remuneration it receives under
the Bridge Finance Documents or in relation to any
other business it carries on with the Company or its
related entities.
21.5 Reliance
The Facility Agent may:
(a) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
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(b) rely on any statement made by any person regarding any matters
which may reasonably be assumed to be within his knowledge or
within his power to verify;
(c) engage, pay for and rely on professional advisers selected by
it (including those representing a Party other than the
Facility Agent); and
(d) act under the Bridge Finance Documents through its personnel
and agents.
21.6 Majority Lenders' instructions
(a) The Facility Agent is fully protected if it acts on the
instructions of the Majority Lenders in the exercise of any
right, power or discretion or any matter not expressly
provided for in the Bridge Finance Documents. Any such
instructions given by the Majority Lenders will be binding on
all the Lenders. In the absence of instructions, the Facility
Agent may act as it considers to be in the best interests of
all the Lenders.
(b) The Facility Agent is not authorized to act on behalf of a
Lender (without first obtaining that Lender's consent) in any
legal or arbitration proceedings in connection with any Bridge
Finance Document.
(c) The Facility Agent may require the receipt of security
satisfactory to it, whether by way of payment in advance or
otherwise, against any liability or loss which it may incur in
complying with the instructions of the Majority Lenders.
21.7 Responsibility
(a) No Administrative Party is responsible to any other Finance
Party for the adequacy, accuracy or completeness of:
(i) any Bridge Finance Document or any other document; or
(ii) any statement or information (whether written or
oral) made in or supplied in connection with any
Bridge Finance Document.
(b) Without affecting the responsibility of the Company for
information supplied by it or on its behalf in connection with
any Bridge Finance Document, each Lender confirms that it:
(i) has made, and will continue to make, its own
independent appraisal of all risks arising under or
in connection with the Bridge Finance Documents
(including the financial condition and affairs of the
Company and its related entities and the nature and
extent of any recourse against any Party or its
assets); and
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(ii) has not relied exclusively on any information provided to it
by any Administrative Party in connection with any Bridge
Finance Document.
21.8 Exclusion of liability
(a) The Facility Agent is not liable to any other Finance Party for
any action taken or not taken by it in connection with any Bridge
Finance Document, unless directly caused by its gross negligence
or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee
or agent of the Facility Agent in respect of any claim it might
have against the Facility Agent or in respect of any act or
omission of any kind by that officer, employee or agent in
connection with any Bridge Finance Document.
21.9 Default
(a) The Facility Agent is not obliged to monitor or enquire whether a
Default has occurred. The Facility Agent is not deemed to have
knowledge of the occurrence of a Default.
(b) If the Facility Agent:
(i) receives notice from a Party referring to this Agreement,
describing a Default and stating that the event is a
Default; or
(ii) is aware of the non-payment of any principal or interest or
any fee payable to a Lender under this Agreement,
it must promptly notify the Lenders.
21.10 Information
(a) The Facility Agent must promptly forward to the person concerned
the original or a copy of any document which is delivered to the
Facility Agent by a Party for that person.
(b) Except where a Bridge Finance Document specifically provides
otherwise, the Facility Agent is not obliged to review or check
the adequacy, accuracy or completeness of any document it
forwards to another Party.
(c) Except as provided above, the Facility Agent has no duty:
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(i) either initially or on a continuing basis to provide
any Lender with any credit or other information
concerning the risks arising under or in connection
with the Bridge Finance Documents (including any
information relating to the financial condition or
affairs of the Company or its related entities or the
nature or extent of recourse against any Party or its
assets) whether coming into its possession before, on
or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Lender in
accordance with a Bridge Finance Document, to request
any certificate or other document from the Company.
(d) In acting as the Facility Agent, the agency division of the
Facility Agent is treated as a separate entity from its other
divisions and departments. Any information acquired by the
Facility Agent which, in its opinion, is acquired by it
otherwise than in its capacity as the Facility Agent may be
treated as confidential by the Facility Agent and will not be
treated as information possessed by the Facility Agent in its
capacity as such.
(e) The Facility Agent is not obliged to disclose to any person
any confidential information supplied to it by a member of the
Group solely for the purpose of evaluating whether any waiver
or amendment is required to any term of the Bridge Finance
Documents.
(f) The Company irrevocably authorizes the Facility Agent to
disclose to the other Finance Parties any information which,
in its opinion, is received by it in its capacity as the
Facility Agent.
21.11 Indemnities
(a) Without limiting the liability of the Company under the Bridge
Finance Documents, each Lender must indemnify the Facility
Agent for that Lender's Pro Rata Share of any loss or
liability incurred by the Facility Agent in acting as the
Facility Agent, except to the extent that the loss or
liability is caused by the Facility Agent's gross negligence
or wilful misconduct.
(b) The Facility Agent may deduct from any amount received by it
for a Lender any amount due to the Facility Agent from that
Lender under a Bridge Finance Document but unpaid.
21.12 Compliance
The Facility Agent may refrain from doing anything (including
disclosing any information) which might, in its opinion, constitute a breach of
any law or regulation or be otherwise actionable at the suit of any person, and
may do anything which, in its opinion, is necessary or desirable to comply with
any law or regulation.
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21.13 Resignation of the Facility Agent
(a) The Facility Agent may resign and appoint any of its Affiliates
as successor Facility Agent by giving notice to the Lenders and
the Company.
(b) Alternatively, the Facility Agent may resign by giving notice to
the Lenders and the Company, in which case the Majority Lenders
may appoint a successor Facility Agent.
(c) If no successor Facility Agent has been appointed under paragraph
(b) above within 30 days after notice of resignation was given,
the Facility Agent may appoint a successor Facility Agent.
(d) The person(s) appointing a successor Facility Agent must consult
with the Company prior to the appointment. Any successor Facility
Agent must have an office in the U.K.
(e) The resignation of the Facility Agent and the appointment of any
successor Facility Agent will both become effective only when the
successor Facility Agent notifies all the Parties that it accepts
its appointment. On giving the notification, the successor
Facility Agent will succeed to the position of the Facility Agent
and the term "Facility Agent" will mean the successor Facility
Agent.
(f) The retiring Facility Agent must, at its own cost, make available
to the successor Facility Agent such documents and records and
provide such assistance as the successor Facility Agent may
reasonably request for the purposes of performing its functions
as the Facility Agent under the Bridge Finance Documents.
(g) Upon its resignation becoming effective, this Clause will
continue to benefit the retiring Facility Agent in respect of any
action taken or not taken by it in connection with the Bridge
Finance Documents while it was the Facility Agent, and, subject
to paragraph (f) above, it will have no further obligations under
any Bridge Finance Document.
(h) The Majority Lenders may, by notice to the Facility Agent,
require it to resign under paragraph (b) above.
21.14 Relationship with Lenders
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and as acting through its Facility
Office(s)
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until it has received not less than five Business Days' prior
notice from that Lender to the contrary.
(b) The Facility Agent may at any time, and must if requested to do
so by the Majority Lenders, convene a meeting of the Lenders.
(c) The Facility Agent must keep a register of all the Parties and
supply any other Party with a copy of the register on request.
The register will include each Lender's Facility Office(s) and
contact details for the purposes of this Agreement.
21.15 Facility Agent's management time
If the Facility Agent requires, any amount payable to the Facility
Agent by any Party under any indemnity or in respect of any costs or expenses
incurred by the Facility Agent under the Bridge Finance Documents after the date
of this Agreement may include the cost of using its management time or other
resources and will be calculated on the basis of such reasonable daily or hourly
rates as the Facility Agent may notify to the relevant Party. This is in
addition to any amount in respect of fees or expenses paid or payable to the
Facility Agent under any other term of the Bridge Finance Documents.
21.16 Notice period
Where this Agreement specifies a minimum period of notice to be given
to the Facility Agent, the Facility Agent may, at its discretion, accept a
shorter notice period.
22. EVIDENCE AND CALCULATIONS
22.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate for the
purpose of any litigation or arbitration proceedings.
22.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or
amount under the Bridge Finance Documents will be, in the absence of manifest
error, conclusive evidence of the matters to which it relates.
22.3 Calculations
Any interest or fee accruing under this Agreement accrues from day to
day and is calculated on the basis of the actual number of days elapsed and a
year of 360 or 365 days or otherwise, depending on what the Facility Agent
determines is market practice.
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23. FEES
23.1 Commitment fee
The Company must pay to the Original Lenders for their own account a
commitment fee in the manner agreed in the Fee Letter.
23.2 Facility Agent's fee
The Company must pay to the Facility Agent for its own account an
agency fee in the manner agreed in the Fee Letter.
23.3 Takedown fee
If and to the extent the Initial Loans are made, the Company must pay a
takedown fee in the manner agreed in the Fee Letter.
23.4 Exchange Fee
If and to the extent the Loans are exchanged for Exchange Notes, the
Company must pay an exchange fee in the manner agreed in the Fee Letter.
24. INDEMNITIES AND BREAK COSTS
24.1 Currency indemnity
(a) The Company must, as an independent obligation, indemnify each
Finance Party against any loss or liability which that Finance
Party incurs as a consequence of:
(i) that Finance Party receiving an amount in respect of the
Company's liability under the Bridge Finance Documents; or
(ii) that liability being converted into a claim, proof, judgment
or order,
in a currency other than the currency in which the amount is expressed
to be payable under the relevant Bridge Finance Document.
(b) Unless otherwise required by law, the Company waives any right it
may have in any jurisdiction to pay any amount under the Bridge
Finance Documents in a currency other than that in which it is
expressed to be payable.
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24.2 Environmental indemnity
The Company agrees to indemnify each Finance Party and their respective
officers, employees, agents and delegates (each an "Indemnified Party") against
any direct loss or liability suffered or incurred by that Indemnified Party
(except to the extent caused by its own negligence or wilful default) which:
(a) arises by virtue of any actual or alleged breach of any
Environmental Law (whether by the Company, an Indemnified Party
or any other person); or
(b) arises in connection with an Environmental Claim,
which relates to the Group, any assets of the Group or the operation of
all or part of the business of the Group (or in each case any member of
the Group) and which would not have arisen if the Bridge Finance
Documents or any of them had not been executed by that Finance Party.
24.3 Other indemnities
(a) The Company must indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default;
(ii) any failure by the Company to pay any amount due under a
Bridge Finance Document on its due date, including any
resulting from any distribution or redistribution of any
amount among the Lenders under this Agreement;
(iii) (other than by reason of negligence or default by that
Finance Party) a Loan not being made after a Request has
been delivered for that Loan; or
(iv) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment.
The Company's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilized to fund any
amount payable under any Bridge Finance Document, any amount repaid or
prepaid or any Loan.
(b) The Company must indemnify the Facility Agent against any loss or
liability incurred by the Facility Agent as a result of:
(i) investigating any event which the Facility Agent reasonably
believes to be a Default; or
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(ii) acting or relying on any notice which the Facility Agent
reasonably believes to be genuine, correct and appropriately
authorized.
24.4 Break Costs
(a) The Company must pay to each Lender its Break Costs.
(b) Break Costs are the amount (if any) determined by the relevant
Lender by which:
(i) the interest (excluding the Applicable Spread) which that
Lender would have received for the period from the date of
receipt of any part of its share in a Loan or an overdue
amount to the last day of the current Interest Period for
that Loan or overdue amount if the principal or overdue
amount received had been paid on the last day of that
Interest Period;
exceeds
(ii) the amount which that Lender would be able to obtain by
placing an amount equal to the amount received by it on
deposit with a leading bank in the London interbank market
for a period starting on the Business Day following receipt
and ending on the last day of the relevant Interest Period.
(c) Each Lender must supply to the Facility Agent for the relevant
Company details of the amount of any Break Costs claimed by it
under this Subclause.
25. EXPENSES
25.1 Initial costs
The Company must pay to each Administrative Party the amount of all
costs and expenses (including legal fees) reasonably incurred by it in
connection with the negotiation, preparation, printing, execution and
syndication of the Bridge Finance Documents.
25.2 Subsequent costs
The Company must pay to the Facility Agent the amount of all costs and
expenses (including legal fees) reasonably incurred by it in connection with:
(a) the negotiation, preparation, printing and execution of any
Bridge Finance Document (other than a Transfer Certificate)
executed after the date of this Agreement;
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(b) any amendment, waiver or consent requested by or on behalf of the
Company or specifically allowed by this Agreement; and
(c) any other matter not of an ordinary administrative nature arising
out of or in connection with any Bridge Finance Document.
25.3 Enforcement costs
The Company must pay to each Finance Party the amount of all costs and
expenses (including legal fees) incurred by it in connection with the
enforcement of, or the preservation of any rights under, any Bridge Finance
Document.
26. AMENDMENTS AND WAIVERS
26.1 Procedure
(a) Except as provided in this Clause, any term of the Bridge Finance
Documents may be amended or waived with the agreement of the
Company and the Majority Lenders. The Facility Agent may effect,
on behalf of any Finance Party, an amendment or waiver allowed
under this Clause.
(b) The Facility Agent must promptly notify the other Parties of any
amendment or waiver effected by it under paragraph (a) above. Any
such amendment or waiver is binding on all the Parties.
26.2 Exceptions
(a) An amendment or waiver which relates to:
(i) the definition of "Majority Lenders" in Clause 1.1;
(ii) an extension of the date of payment of any amount to a
Lender under the Bridge Finance Documents;
(iii) a reduction in the Applicable Spread or a reduction in the
amount of any payment of principal, interest, fee or other
amount payable to a Lender under the Bridge Finance
Documents;
(iv) an increase in, or an extension of, a Commitment;
(v) a release of the Company;
(vi) a term of a Bridge Finance Document which expressly
requires the consent of each Lender;
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(vii) the right of a Lender to assign or transfer its rights or
obligations under the Bridge Finance Documents;
(viii) the ranking or subordination provided for in the
Subordination Agreement; or
(ix) this Clause,
may only be made with the consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations
of an Administrative Party may only be made with the consent of
that Administrative Party.
26.3 Change of currency
If a change in any currency of a country occurs (including where there
is more than one currency or currency unit recognized at the same time as the
lawful currency of a country), the Bridge Finance Documents will be amended to
the extent the Facility Agent (acting reasonably and after consultation with the
Company) determines is necessary to reflect the change.
26.4 Waivers and remedies cumulative
The rights of each Finance Party under the Bridge Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of
that right.
27. CHANGES TO THE PARTIES
27.1 Assignments and transfers by Obligors
The Company may not assign or transfer any of its rights and
obligations under the Bridge Finance Documents without the prior consent of all
the Lenders.
27.2 Assignments and transfers by Lenders
(a) A Lender (the "Existing Lender") may, subject to the following
provisions of this Subclause, at any time assign or transfer
(including by way of novation) any of its rights and obligations
under this Agreement to any
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other person (the "New Lender"). The Facility Agent, as agent for
the Company, shall maintain a book-entry registration transfer
system (the "Register") for the purpose of all transfers made
pursuant to Clause 27.2 or Clause 27.3.
(b) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with the following
provisions of this Clause; or
(ii) the New Lender confirms to the Facility Agent and the
Company in form and substance satisfactory to the Facility
Agent that it is bound by the terms of this Agreement as a
Lender. On the transfer becoming effective in this manner
the Existing Lender will be released from its obligations
under this Agreement to the extent that they are transferred
to the New Lender.
(c) Unless the Facility Agent otherwise agrees, the New Lender must
pay to the Facility Agent for its own account, on or before the
date any assignment or transfer occurs, a fee of (pound)1,000.
(d) Any reference in this Agreement to a Lender includes a New Lender
but excludes a Lender if no amount is or may be owed to or by it
under this Agreement.
(e) Notwithstanding any other provision of this Agreement, the
transfer of all or any part of the rights and/or obligations
under the Bridge Finance Documents shall not be effective until
such transfer is recorded on the Register and prior to such
recordation all amounts owing to the Existing Lender with respect
to such rights and/or obligations shall remain owing to the
Existing Lender. The registration of the assignment, novation or
transfer of all or any part of rights and/or obligations under
the Bridge Finance Documents shall be recorded by the Facility
Agent on the Register only upon the acceptance by the Facility
Agent of a properly executed and delivered Transfer Certificate
pursuant to Clause 27.3 or the satisfaction of the requirements
of Clause 27.2(b)(ii) (at which time the Facility Agent shall be
required to register the relevant transfer on the Register).
27.3 Procedure for transfer by way of novations
(a) In this Subclause:
"Transfer Date" means, for a Transfer Certificate, the later of:
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(i) the proposed Transfer Date specified in that Transfer
Certificate; and
(ii) the date on which the Facility Agent executes that Transfer
Certificate.
(b) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the
Facility Agent a duly completed Transfer Certificate; and
(ii) the Facility Agent executes it.
The Facility Agent must execute as soon as reasonably practicable a
Transfer Certificate delivered to it and which appears on its face to
be in order.
(c) Each Party (other than the Existing Lender and the New Lender)
irrevocably authorizes the Facility Agent to execute any duly
completed Transfer Certificate on its behalf.
(d) On the Transfer Date:
(i) the New Lender will assume the rights and obligations of
the Existing Lender expressed to be the subject of the
novation in the Transfer Certificate in substitution for
the Existing Lender; and
(ii) the Existing Lender will be released from those obligations
and cease to have those rights.
27.4 Limitation of responsibility of Existing Lender
(a) Unless expressly agreed to the contrary, an Existing Lender
is not responsible to a New Lender for the legality,
validity, adequacy, accuracy, completeness or performance of:
(i) any Bridge Finance Document or any other document; or
(ii) any statement or information (whether written or oral) made
in or supplied in connection with any Bridge Finance
Document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made, and will continue to make, its own independent
appraisal of all risks arising under or in connection with
the Bridge
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Finance Documents (including the financial condition and
affairs of each Obligor and its related entities and the
nature and extent of any recourse against any Party or its
assets) in connection with its participation in this
Agreement; and
(ii) has not relied exclusively on any information supplied to it
by the Existing Lender in connection with any Bridge
Finance Document.
(c) Nothing in any Bridge Finance Document requires an Existing Lender
to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under this
Clause; or
(ii) support any losses incurred by the New Lender reason of the
non-performance by the Company of its obligations under any
Bridge Finance Document or otherwise.
27.5 Costs resulting from change of Lender or Facility Office
If:
(a) a Lender assigns or transfers any of its rights and obligations
under the Bridge Finance Documents or changes its Facility Office;
and
(b) as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Company would be obliged to pay a
Tax Payment or an Increased Cost,
then, the Company need only pay that Tax Payment or Increased Cost to
the same extent that it would have been obliged to if no assignment,
transfer or change had occurred.
27.6 Changes to the Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Facility Agent
must (in consultation with the Company) appoint another Lender or an Affiliate
of a Lender to replace that Reference Bank.
28. DISCLOSURE OF INFORMATION
(a) Each Finance Party must keep confidential any information supplied
to it by or on behalf of any Obligor in connection with the Bridge
Finance Documents. However, a Finance Party is entitled to disclose
information:
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(i) which is publicly available, other than as a result of a breach
by that Finance Party of this Clause;
(ii) in connection with any legal or arbitration proceedings;
(iii) if required to do so under any law or regulation;
(iv) to a governmental, banking, taxation or other regulatory
authority with whose directions it is accustomed to comply;
(v) to its professional advisers;
(vi) to the extent allowed under paragraph (b) below; or
(vii) with the agreement of the Company.
(b) A Finance Party may disclose to an Affiliate or any person with whom
it may enter, or has entered into, any kind of transfer, participation
or other agreement in relation to this Agreement (a "participant"):
(i) a copy of any Bridge Finance Document; and
(ii) any information which that Finance Party has acquired under or
in connection with any Bridge Finance Document.
However, before a participant may receive any confidential information, it
must agree with the relevant Finance Party on behalf of the Company to keep
that information confidential on the terms of paragraph (a) above.
(c) This Clause supersedes any previous confidentiality undertaking given
by a Finance Party in connection with this Agreement prior to it
becoming a Party.
29. SET-OFF
A Finance Party may set off any matured obligation owed to it by the Company
under the Bridge Finance Documents (to the extent beneficially owned by that
Finance Party) against any obligation (whether or not matured) owed by that
Finance Party to the Company, regardless of the place of payment, booking branch
or currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set-off.
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30. PRO RATA SHARING
30.1 Redistribution
If any amount owing by the Company under this Agreement to a Lender
(the "recovering Lender") is discharged by payment, set-off or any other manner
other than through the Facility Agent under this Agreement (a "recovery"), then:
(a) the recovering Lender must, within three Business Days, supply
details of the recovery to the Facility Agent;
(b) the Facility Agent must calculate whether the recovery is in
excess of the amount which the recovering Lender would have
received if the recovery had been received by the Facility
Agent under this Agreement; and
(c) the recovering Lender must pay to the Facility Agent an amount
equal to the excess (the "redistribution").
30.2 Effect of redistribution
(a) The Facility Agent must treat a redistribution as if it were a
payment by the Company under this Agreement and distribute it
among the Lenders accordingly.
(b) When the Facility Agent makes a distribution under paragraph
(a) above, the recovering Lender will be subrogated to the
rights of the Finance Parties which have shared in that
redistribution.
(c) If and to the extent that the recovering Lender is not able to
rely on any rights of subrogation under paragraph (b) above,
the Company will owe the recovering Lender a debt which is
equal to the redistribution, immediately payable and of the
type originally discharged.
(d) If:
(i) a recovering Lender must subsequently return a recovery,
or an amount measured by reference to a recovery, to the
Company; and
(ii) the recovering Lender has paid a redistribution in
relation to that recovery,
each Finance Party must reimburse the recovering Lender all or the
appropriate portion of the redistribution paid to that Finance Party,
together with interest for the period while it held the re-
distribution. In this event, the subrogation in paragraph (b) above
will operate in reverse to the extent of the reimbursement.
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30.3 Exceptions
Notwithstanding any other term of this Clause, a recovering Lender need
not pay a redistribution to the extent that:
(a) it would not, after the payment, have a valid claim against the
Company in the amount of the redistribution; or
(b) it would be sharing with another Finance Party any amount which the
recovering Lender has received or recovered as a result of legal or
arbitration proceedings, where:
(i) the recovering Lender notified the Facility Agent of those
proceedings; and
(ii) the other Finance Party had an opportunity to participate in
those proceedings but did not do so or did not take separate
legal or arbitration proceedings as soon as reasonably
practicable after receiving notice of them.
31. SEVERABILITY
If a term of a Bridge Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:
(a) the legality, alidity or enforceability in that jurisdiction of any
other term of the Bridge Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other term of the Bridge Finance Documents.
32. COUNTERPARTS
Each Bridge Finance Document may be executed in any number of
counterparts. This has the same effect as if the signatures on the counterparts
were on a single copy of the Bridge Finance Document.
33. NOTICES
33.1 In writing
(a) Any communication in connection with a Bridge Finance Document must
be in writing and, unless otherwise stated, may be given in person,
by
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post, telex, fax or any electronic communication approved by the
Facility Agent.
(b) For the purpose of the Bridge Finance Documents, an electronic
communication will be treated as being in writing.
(c) Unless it is agreed to the contrary, any consent or agreement
required under a Bridge Finance Document must be given in writing.
33.2 Contact details
(a) Except as provided below, the contact details of each Party for all
communications in connection with the Bridge Finance Documents are
those notified by that Party for this purpose to the Facility Agent
on or before the date it becomes a Party.
(b) The contact details of the Company for this purpose are:
Address: Washington House
40-41 Conduit Street
London W1S 2YQ
Fax number: 020 7304 6001
Attention: Mark Hampton
(c) The contact details of the Facility Agent for this purpose are:
Address: One Cabot Square
London E14 4QJ
Fax number: 020 7888 8398
Attention: Loan Agency
(d) Any Party may change its contact details by giving five Business
Days' notice to the Facility Agent or (in the case of the Facility
Agent) to the other Parties.
(e) Where a Party nominates a particular department or officer to
receive a communication, a communication will not be effective if it
fails to specify that department or officer.
33.3 Effectiveness
(a) Except as provided below, any communication in connection with a
Bridge Finance Document will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
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(ii) if posted, five Business Days after being deposited in the
post, postage prepaid, in a correctly addressed envelope;
(iii) if by telex, when dispatched, but only if, at the time of
transmission, the correct answerback appears at the start and
at the end of the sender's copy of the notice;
(iv) if by fax, when received in legible form; and
(v) by e-mail or any other electronic communication, on receipt.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
(c) A communication to the Facility Agent will only be effective on
actual receipt by it.
34. LANGUAGE
(a) Any notice given in connection with a Bridge Finance Document must
be in English.
(b) Any other document provided in connection with a Bridge Finance
Document must be:
(i) in English; or
(ii) (unless the Facility Agent otherwise agrees) accompanied by a
certified English translation. In this case, the English
translation prevails unless the document is a statutory or
other official document.
35. GOVERNING LAW
THIS AGREEMENT IS GOVERNED BY NEW YORK LAW, REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
36. ENFORCEMENT
36.1 Jurisdiction
(a) Each Party hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New
York State court
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or Federal court of the United States of America sitting in The
Borough of Manhattan, The City of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any
judgment, and each Party hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each Party agrees that a
final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Facility Agent or any Lender may
otherwise have to bring any action or proceeding relating to this
Agreement or the other Bridge Finance Documents against the Company
or its properties in the courts of any jurisdiction. The Company has
appointed Shack Siegel Katz Flaherty & Goodman P.C., with offices on
the date hereof at 530 Fifth Avenue, New York, New York 10036,
Attention: Pamela E. Flaherty, as its authorized agent (the
"Authorized Agent"), upon whom service of process may be served in
any suit, action or proceeding arising out of or based upon this
Agreement or the Financing Documents which may be instituted in any
such court. The Company hereby represents and warrants that the
Authorized Agent has accepted such appointment and has agreed to act
as said agent for service of process, and the Company agrees to take
any and all action, including the filing of any and all documents
that may be necessary to continue such appointment in full force and
effect as aforesaid. Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon
the Company. Each Party irrevocably and unconditionally waives any
objection to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any such
suit, action or proceeding has been brought in an inconvenient
forum. A final judgment in any such suit, action or proceeding
brought in any such court may be enforced in any other courts to
whose jurisdiction such Party is or may be subject, by suit upon
judgment.
(b) Each Party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this
Agreement or the other Bridge Finance Documents in any New York
State or Federal court. Each Party hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
36.2 Service of process
(a) The Company irrevocably appoints Shack Siegel Katz Flaherty &
Goodman P.C. of 530 Fifth Avenue, New York, NY 10036, Attention:
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Pamela E. Flaherty, as its agent for service of process in any
proceedings before any New York State courts.
(b) If any person appointed as process agent is unable for any reason to
act as agent for service of process, the Company must immediately
appoint another agent on terms acceptable to the Facility Agent.
Failing this, the Facility Agent may appoint another agent for this
purpose.
(c) The Company agrees that failure by a process agent to notify it of
any process will not invalidate the relevant proceedings.
(d) This Clause does not affect any other method of service allowed by
law.
36.3 Waiver of immunity
The Company irrevocably and unconditionally:
(a) agrees not to claim any immunity from proceedings brought by a
Finance Party against it in relation to a Bridge Finance Document
and to ensure that no such claim is made on its behalf;
(b) consents generally to the giving of any relief or the issue of any
process in connection with those proceedings; and
waives all rights of immunity in respect of it or its assets.
36.4 Waiver of trial by jury
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
This Agreement has been entered into on the date stated at the
beginning of this Agreement.
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SIGNATORIES
Company
ENODIS PLC
By: /s/ Andrew Allner
By: /s/ David McCulloch
Arrangers
CREDIT SUISSE FIRST BOSTON
By: /s/ Emma Balaam
/s/ Paolo Pascarelli
THE ROYAL BANK OF SCOTLAND plc
By: /s/ M.I. Porter
Original Lenders
CREDIT SUISSE FIRST BOSTON
By: /s/ Emma Balaam
/s/ Paolo Pascarelli
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Douglas Iain Kerr
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Facility Agent
CREDIT SUISSE FIRST BOSTON
By: /s/ Emma Balaam
/s/ Paolo Pascarelli