EXHIBIT 10.10
COMPOSITE CONFORMED COPY
(INCLUDING ALL AMENDMENTS UP TO AND
INCLUDING 26TH JULY, 2002)
AGREEMENT
DATED 20th February, 2002
US$455,000,000
CREDIT FACILITIES
FOR
ENODIS HOLDINGS LIMITED
ARRANGED BY
CREDIT SUISSE FIRST BOSTON
and
THE ROYAL BANK OF SCOTLAND plc
WITH
THE ROYAL BANK OF SCOTLAND plc
as Facility Agent and Issuing Bank
XXXXX & XXXXX
London
NEWCHANGE
BK:898964.15
INDEX
CLAUSE PAGE
1. Interpretation....................................................1
2. Facility.........................................................25
3. Purpose..........................................................27
4. Conditions precedent.............................................27
5. Utilisation - Loans..............................................28
6. Utilisation - Letters of Credit..................................29
7. Letters of Credit................................................31
8. Ancillary Facilities.............................................34
9. Optional Currencies..............................................36
10. Repayment........................................................38
11. Prepayment and cancellation......................................39
12. Interest.........................................................45
13. Interest Periods.................................................48
14. Market disruption................................................49
15. Taxes............................................................49
16. Increased Costs..................................................54
17. Mitigation.......................................................54
18. Payments.........................................................55
19. Guarantee and indemnity..........................................57
20. Representations..................................................62
21. Information covenants............................................70
22. Financial covenants..............................................74
23. General covenants................................................82
24. Default.........................................................101
25. Security........................................................106
26. Administrative Parties..........................................109
27. Evidence and calculations.......................................113
28. Fees............................................................114
29. Indemnities and Break Costs.....................................114
30. Expenses........................................................116
31. Amendments and waivers..........................................116
32. Changes to the Parties..........................................118
33. Disclosure of information.......................................122
34. Set-off.........................................................123
35. Pro rata sharing................................................123
36. Severability....................................................124
37. Counterparts....................................................124
38. Notices.........................................................125
39. Language........................................................126
40. Governing law...................................................126
41. Enforcement.....................................................127
SCHEDULES
1. Original Parties................................................129
2. Conditions precedent documents..................................134
3. Form of Request.................................................145
4. Calculation of the Mandatory Cost...............................146
5. Form of Transfer Certificate....................................148
6. Existing Security...............................................149
7 Form of Compliance Certificate..................................155
8. Form of Accession Deed..........................................156
9. Form of Existing Letters of Credit..............................157
SIGNATORIES............................................................158
THIS AGREEMENT is dated 20th February, 2002
BETWEEN:
(1) ENODIS HOLDINGS LIMITED (registered number 4330209) (the "COMPANY");
(2) THE SUBSIDIARIES OF THE COMPANY listed in Schedule 1 (Original Parties)
as original borrowers (in this capacity the "ORIGINAL BORROWERS");
(3) THE SUBSIDIARIES OF THE COMPANY listed in Schedule 1 (Original Parties)
as original guarantors (in this capacity the "ORIGINAL GUARANTORS");
(4) CREDIT SUISSE FIRST BOSTON and THE ROYAL BANK OF SCOTLAND PLC as
arrangers (in this capacity the "Arrangers");
(5) THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Parties) as
original lenders (the "ORIGINAL LENDERS");
(6) THE ROYAL BANK OF SCOTLAND PLC as issuing bank (in this capacity the
"ISSUING BANK"); and
(7) THE ROYAL BANK OF SCOTLAND PLC as facility agent (in this capacity the
"FACILITY AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION DEED"
means a deed, substantially in the form of Schedule 8 (Form of Accession
Deed), with such amendments as may be required in order to reflect the
jurisdiction of incorporation of the relevant Additional Obligor (if it
is incorporated outside the U.S. or U.K.).
"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, any U.S. Obligor and any member of the Plc 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; and
2
(b) for any other Obligor, 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 BORROWER"
means a member of the Group which becomes a Borrower after the date of
this Agreement.
"ADDITIONAL GUARANTOR"
means a member of the Group which becomes a Guarantor after the date of
this Agreement.
"ADDITIONAL OBLIGOR"
means an Additional Borrower or an Additional Guarantor.
"ADMINISTRATIVE PARTY"
means an Arranger, the Issuing Bank or the Facility Agent.
"AFFILIATE"
means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.
"ANCILLARY COMMITMENT"
means the maximum amount of Ancillary Outstandings that can be incurred
under an Ancillary Facility Document.
"ANCILLARY FACILITY"
means any facility or financial accommodation required in connection
with the business of the Group and established under Clause 8 (Ancillary
Facilities). This may include any overdraft, foreign exchange, guarantee
or banking facility.
"ANCILLARY FACILITY DOCUMENT"
means any document evidencing any Ancillary Facility.
"ANCILLARY LENDER"
means a Lender which becomes an Ancillary Lender under Clause 8
(Ancillary Facilities).
"ANCILLARY OUTSTANDINGS"
means the equivalent in Dollars of the principal amount actually or
contingently outstanding under an Ancillary Facility, as calculated
under the Ancillary Facility Document(s) for that Ancillary Facility.
3
"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.
"AVAILABILITY PERIOD"
means the period from and including opening of business in London on the
date of this Agreement up to and including close of business in London
on:
(a) for Facility A and Facility B, the date of this Agreement;
(b) for the Revolving Credit Facility, the date falling one month
before the Revolving Credit Final Maturity Date.
"BILATERAL DOCUMENTS"
means the Bilaterals Letter and any documents entered into from time to
time by a member of the Group with The Royal Bank of Scotland plc
evidencing a utilisation of the facilities described in the Bilaterals
Letter.
"BILATERALS LETTER"
means the letter or letters between the Company and The Royal Bank of
Scotland plc entered into from time to time and describing bilateral
facilities between members of the Group and The Royal Bank of Scotland
plc in each case as designated a "BILATERALS LETTER" for the purposes of
the Finance Documents by the Company and the Facility Agent.
"BLOCKED ACCOUNT"
means an interest bearing blocked account held in the UK and governed by
English law in the name of a Borrower with the Facility Agent.
"BONDS"
has the meaning given to that term in Clause 23.28 (Bridge Loans, Bonds
and Exchange Notes).
"BOND DOCUMENTS"
means the Bonds and the Bond Exchange Notes and any indenture, trust
deed, notes, terms and conditions, subscription agreement, agency
agreement or other agreement, in each case (other than any indenture)
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 Bonds or the Bond Exchange Notes are to be
constituted and issued by
Enodis plc in accordance with, and as
permitted by, Clause 23.28 (Bridge Loans, Bonds and Exchange Notes).
4
"BOND EXCHANGE NOTES"
means any notes registered with the U.S. Securities and Exchange
Commission issued in exchange for the Bonds.
"BORROWER"
means an Original Borrower or an Additional Borrower.
"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.
"BRIDGE EXCHANGE NOTES"
means any exchange notes issued in exchange for Bridge Loans pursuant to
the Bridge Facility Agreement and the Exchange Note Indenture.
"BRIDGE FACILITY"
means the bridge facility in an amount of up to L150,000,000 to be
made available to
Enodis plc by Credit Suisse First Boston and The Royal
Bank of Scotland plc under the terms of the Bridge Facility Agreement.
"BRIDGE FACILITY DOCUMENTS"
means the Bridge Facility Agreement, the Bridge Exchange Notes and the
Exchange Note Indenture.
"BRIDGE FACILITY AGREEMENT"
means the bridge facility agreement dated on or about the date hereof
between
Enodis plc as borrower and Credit Suisse First Boston and The
Royal Bank of Scotland plc as lenders.
"BRIDGE LOANS"
means any and all loans outstanding under the Bridge Facility Agreement.
"BUSINESS DAY"
means a day (other than a Saturday or a Sunday) on which banks are open
for general business in London and:
(a) if on that day a payment in or a purchase of a currency (other
than euro) is to be made, the principal financial centre of the
country of that currency; or
(b) if on that day a payment in or a purchase of euro is to be made,
which is also a TARGET Day.
"BUSINESS PLAN"
means the agreed financial model dated 12th March, 2002 prepared by
Enodis plc and the Company and delivered to the Arrangers.
5
"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 Xxxxx'x or an equivalent credit
rating;
(c) open market commercial paper:
(i) for which a recognised 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 Xxxxx'x, 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.
"CLOSING"
means the date Facility A and Facility B are each drawndown under the
terms of this Agreement.
"CLOSING ACCOUNTS"
means the current accounts held in the UK with the Facility Agent and
governed by English law in the names of
Enodis plc and the Company
respectively established for the purposes of the transactions to occur
before or at or immediately after Closing as set out in the Structure
Memorandum.
"COMMITMENT"
means a Revolving Credit Commitment, an Ancillary Commitment, a Facility
A Commitment, or a Facility B Commitment (or all or any of them) as the
case may be.
"CREDIT"
means a Loan or a Letter of Credit.
6
"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.
"DAYLIGHT FACILITY"
means the daylight facility dated the date hereof in an amount of up to
L150,000,000 to be made available to Enodis Holdings Limited under the
terms of the Daylight Facility Agreement.
"DEFAULT"
means:
(a) an Event of Default; or
(b) an event specified in Clause 24 (Default) which would be (with
the expiry of a grace period, the giving of notice or the making
of any determination under the Finance Documents or any
combination of them) an Event of Default.
"DOLLARS" or "US$"
means the lawful currency for the time being of the United States.
"ENVIRONMENTAL APPROVAL"
means any authorisation 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.
7
"EQUITY OFFERING"
means the rights issue, to be underwritten by Credit Suisse First Boston
pursuant to which ordinary shares in
Enodis plc will be offered by way
of pre-emptive rights to certain qualifying shareholders of
Enodis plc.
"EURIBOR"
means for an Interest Period for any Loan or overdue amount denominated
in euro:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for that 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 European interbank market,
as of 11.00 a.m. (Brussels time) on the Rate Fixing Day for the offering
of deposits in euro for a period comparable to that Interest Period.
"EURO"
means the single currency of the Participating Member States.
"EVENT OF DEFAULT"
means an event specified as such in this Agreement.
"EXCHANGE NOTE INDENTURE"
means an indenture entered into between
Enodis plc and a trustee
pursuant to the Bridge Facility Agreement relating to the issuance of
the Bridge Exchange Notes.
"EXISTING FACILITY AGREEMENT"
means the credit agreement dated 12th March, 2001 (as amended from time
to time) and made between
Enodis plc, 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.
"EXISTING LETTERS OF CREDIT"
means the existing Letters of Credit listed in Schedule 9 (Existing
Letters of Credit).
"FACILITY"
means Facility A, Facility B or the Revolving Credit Facility.
"FACILITY A"
means the term loan facility referred to in Clause 2.1 (Facility A).
8
"FACILITY A COMMITMENT"
means:
(a) for an Original Lender, the amount set opposite its name in
Schedule 1 (Original Parties) under the heading "FACILITY A
COMMITMENTS" and the amount of any other Facility A Commitment it
acquires; and
(b) for any other Lender, the amount of any Facility A Commitment it
acquires,
to the extent not cancelled, transferred or reduced under this
Agreement.
"FACILITY A FINAL MATURITY DATE"
means the fifth anniversary of the date of this Agreement.
"FACILITY A TERM LOAN"
means the term loan drawn under Facility A.
"FACILITY B"
means the term loan facility referred to in Clause 2.2 (Facility B).
"FACILITY B COMMITMENT"
means:
(a) for an Original Lender, the amount set opposite its name in
Schedule 1 (Original Parties) under the heading "FACILITY B
COMMITMENTS" and the amount of any other Facility B Commitment it
acquires; and
(b) for any other Lender, the amount of any Facility B Commitment it
acquires,
to the extent not cancelled, transferred or reduced under this
Agreement.
"FACILITY B FINAL MATURITY DATE"
means the sixth anniversary of the date of this Agreement.
"FACILITY B TERM LOAN"
means the term loan drawn under Facility B.
"FACILITY OFFICE"
means the office(s) notified by a Lender to the Facility Agent:
(a) on or before the date it becomes a Lender; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform its obligations under
this Agreement.
9
"FEE LETTER"
means any letter entered into by reference to this Agreement between one
or more Administrative Parties and the Company setting out the amount of
certain fees referred to in this Agreement.
"FELSTED"
means the property known as Station Road, Felsted (excluding Phases I
and II of the project for which building licences have been granted to
house builders), the freehold of which is owned by Enodis Property
Developments Limited with title numbers EX438209, EX415617 and EX400035.
"FINANCE DOCUMENT"
means:
(a) this Agreement;
(b) the Syndication Letter;
(c) a Security Document;
(d) a Fee Letter;
(e) a Transfer Certificate;
(f) an Accession Deed;
(g) the Syndication Agreement;
(h) an Ancillary Facility Document;
(i) a Hedging Document;
(j) the Hedging Letter;
(k) the Priority Deed;
(l) the Subordination Agreement;
(m) a Bilateral Document;
(n) the Bilaterals Letter;
(o) the letter dated the date hereof between
Enodis plc, the Company
and the Facility Agent relating to, amongst other things,
payments to be made by the Company and Enodis plc pursuant to the
Funds Flow Statement;
(p) the Daylight Facility Agreement; or
(q) any other document designated as such by the Facility Agent and
the Company.
10
"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 xxxx
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 Enodis plc and agreed with the Facility
Agent showing the funds flow of the proceeds of Facility A and Facility
B, the Bridge Facility, the Daylight Facility and the Subordinated
Intercompany Loan immediately prior to or after Closing.
"GROUP"
means 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.
"GUARANTOR"
means the Company, an Original Guarantor or an Additional Guarantor.
11
"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 Closing between the Company and the
Facility Agent relating to the interest hedging on at least fifty per
cent. (50%) of all amounts outstanding under Facility A and Facility B
and currency hedging to be effected by the Group.
"HIVE-DOWN AGREEMENTS"
means:
(a) the agreement for the sale and purchase of the business and the
assets of Enodis plc between Enodis plc and the Company;
(b) the deed of agreement in relation to the transfer of the legal
title only of certain shares between Enodis plc and the Company;
(c) the registered intellectual property rights assignment between
Enodis plc and the Company;
(d) the deed of release between Enodis plc and the Company;
(e) the agreement for the sale and purchase of the business and the
assets of the Company between the Company and Enodis Group
Limited;
(f) a deed of agreement in relation to the transfer of the legal
title only of certain shares between the Company and Enodis Group
Limited; and
(g) the registered intellectual property rights assignment between
the Company and Enodis Group Limited,
in each case in respect of the Hive-Downs and dated on or about the date
of Closing.
"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 Enodis plc
from Enodis plc to the Company and from the Company to Enodis
12
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
Companies Xxx 0000.
"IBOR"
means LIBOR or EURIBOR.
"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 Finance
Documents; or
(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 Credits made
by it under this Agreement as is attributable to that Finance
Party making, funding or maintaining those participations; or
(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.
"INFORMATION MEMORANDUM"
means the information memorandum relating to the Plc Group to be
prepared on behalf of the Company and approved by the Company for the
purposes of general syndication of the Facilities.
"INTELLECTUAL PROPERTY RIGHTS"
means:
(a) any know-how, patent, trade xxxx, service xxxx, 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.
13
"INTEREST PERIOD"
means each period determined under this Agreement by reference to which
interest on a Loan or an overdue amount is calculated.
"INTRA-GROUP FUNDING AGREEMENT"
means the agreement between Enodis Holdings Limited and various of its
Subsidiaries providing (inter alia) for those 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 Finance
Documents and (ii) subject to the terms of the Finance Documents, make
servicing payments on the Subordinated Intercompany Loan and other
limited payments to Enodis plc.
"LENDER"
means:
(a) an Original Lender; or
(b) any person which becomes a Lender after the date of this
Agreement.
"LETTER OF CREDIT"
means:
(a) each Existing Letter of Credit; and
(b) each letter of credit, substantially in the form agreed by the
Company, the Issuing Bank and the Facility Agent on or before the
date of this Agreement or in any other form agreed by the
Company, the Issuing Bank and the Facility Agent issued under the
terms of this Agreement.
"LIBOR"
means for an Interest Period of any Loan or overdue amount in any
currency other than euro:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant currency or
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
the currency (other than euro) of that Loan or overdue amount for a
period comparable to that Interest Period.
"LOAN"
means, unless otherwise stated in this Agreement, the principal amount
of each borrowing under this Agreement or the principal amount
outstanding of that borrowing.
14
"MAJORITY LENDERS"
means, at any time, Lenders:
(a) whose share in the outstanding Credits and whose undrawn
Commitments then aggregate 66 2/3 per cent. or more of the
aggregate of all the outstanding Credits and the undrawn
Commitments of all the Lenders;
(b) if there is no Credit then outstanding, whose undrawn Commitments
then aggregate 66 2/3 per cent. or more of the Total Commitments;
or
(c) if there is no Credit 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 4 (Calculation of the Mandatory Cost).
"MARGIN"
means the percentage rate per annum applying under Clause 12.2 (Margin).
"MATERIAL ADVERSE EFFECT"
means a material adverse effect on:
(a) the ability of any Obligor (taking into account resources
lawfully available to it from other members of the Group) to
perform its payment obligations under any Finance Document;
(b) the ability of the Company to comply with any term of Clause 22
(Financial covenants);
(c) the validity or enforceability of any Finance Document or subject
to any reservation (as defined in Clause 20.4) the effectiveness
of security over any asset purported to be covered by any
Security Document; or
(d) the rights and remedies of any Finance Party under the 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.
15
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.
"MATURITY DATE"
means:
(a) the last day of the Interest Period of a Loan; or
(b) the last day of the Term of a Letter of Credit.
"MEASUREMENT PERIOD"
has the meaning given to that term in Clause 22.1 (Financial Covenants).
"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.
16
"OBLIGOR"
means a Borrower or a Guarantor.
"ORIGINAL FINANCIAL STATEMENTS"
means for Enodis plc its audited consolidated financial statements for
the year ended 29th September, 2001, the unaudited consolidated
financial statements for Enodis' plc financial quarter ending on 29th
December, 2001.
"ORIGINAL OBLIGOR"
means the Company, an Original Borrower or an Original Guarantor.
"PARTICIPATING MEMBER STATE"
means a member state of the European Communities that adopts or has
adopted the euro as its lawful currency under the legislation of the
European Union for European Monetary Union.
"PARTY"
means a party to this Agreement.
"PERMITTED ADDITIONAL DIVIDEND"
means:
(i) at any time prior to delivery to the Facility Agent of Compliance
Certificates for two consecutive Measurement Periods showing that
the ratio of Consolidated Total Net Debt to Consolidated EBITDA
(each term as defined in Clause 22 (Financial covenants) was
below 2.0:1, any dividend in an amount not exceeding twenty five
per cent. (25%) of the amount of Surplus Cashflow (as defined in
Clause 11.5); and
(ii) at any time following delivery to the Facility Agent of
Compliance Certificates for two consecutive Measurement Periods
showing that the ratio of Consolidated Total Net Debt to
Consolidated EBITDA (each term as defined in Clause 22 (Financial
covenants) was below 2.0:1, any dividend in an amount not
exceeding the amount of Surplus Cashflow (as defined in Clause
11.5),
in each case arising in any financial year (or in the first half of any
financial year), less, in the case only of Surplus Cashflow arising in a
full financial year, any dividend paid in respect of the first half of
that financial year, provided that (a) any prepayment in respect of that
Surplus Cashflow (or any Semi-annual Surplus Cashflow) which is required
to be made under Clause 11.5 shall have been made before payment of that
dividend, and (b) such dividend is not paid until at least 10 days (but
is not paid more than 90 days) after the annual audited (or in the case
of a dividend in respect of the first half of any financial year, the
semi-annual unaudited) consolidated financial statements of Enodis plc
have been delivered to the Facility Agent under Clause 21.1(a), and (c)
the monies to be received by Enodis plc consequent on that dividend are
not applied by Enodis plc in repayment, prepayment of any amount of
principal outstanding under the Bridge Facility, the Bridge Exchange
Notes, the Bonds or the Bond Exchange Notes or for any other purpose
where such application would cause a breach of Clause 23.28(a) (Bridge
Loans, Bonds and Exchange Notes).
17
"PERMITTED DISTRIBUTIONS"
means dividends and other distributions and payments made by the Company
to Enodis plc or from Enodis plc to Topco from time to time in amounts
equal to the following (including any applicable value added and like
Taxes) which are due and payable at the time (or will become payable
within 15 days thereafter):
(a) costs, expenses and fees properly and reasonably incurred and
fees payable at Closing as set out in the Funds Flow Statement by
Enodis plc in obtaining the facilities made available pursuant to
the Bridge Facility Agreement, in issuing and exchanging Bridge
Exchange Notes and in issuing the Exchange Note Indenture and in
issuing, offering and exchanging Bonds and Bond Exchange Notes,
all on terms complying with the requirements of this Agreement;
(b) costs, expenses and fees properly and reasonably incurred by
Enodis plc in connection with the Equity Offering, including
those payable to the United Kingdom Listing Authority and in
connection with acceptance for listing of the related new
ordinary shares on the London Stock Exchange;
(c) costs, expenses and fees properly and reasonably incurred by
Enodis plc in connection with financial reporting, listing and
SEC registration and reporting under any agreements therefor
related to the Bridge Facility Documents or the Bond Documents
and any other reporting or regulatory compliance required on the
part of Enodis plc;
(d) costs, expenses and fees properly and reasonably incurred by
Enodis plc under the underwriting agreement and the registration
rights agreement to be entered into between Enodis plc, Credit
Suisse First Boston and The Royal Bank of Scotland plc, and/or
under any indenture relating to the Bonds or the Bond Exchange
Notes entered into between Enodis plc and a trustee or under any
of the other Bond Documents;
(e) costs, expenses and fees properly and reasonably incurred in
relation to the establishment of Topco;
(f) (subject to a maximum amount of L1,000,000 or its equivalent
in other currencies incurred in aggregate from the date of this
Agreement) any amounts, including costs, fees and expenses,
incurred by Enodis plc in relation to its obligations with
respect to or investment in the joint venture, Welbilt (Thailand)
Limited;
(g) (to the extent not comprised within Required Payments) financial
obligations and liabilities incurred by Enodis plc or Topco in
the ordinary course of maintaining its existence in a state
complying with the terms of the Finance Documents, including,
without limitation, obligations and liabilities for the payment
of Taxes, fees in connection with the maintenance of the listing
of its shares on the London Stock Exchange, the listing of its
American Depository Receipts on the New York Stock Exchange,
compliance with applicable rules and regulations of the
Securities and Exchange Commission, audit fees, non-executive
directors fees, costs of shareholder communications and meetings,
legal expenses, filing fees and other bona fide costs and
expenses incurred by Enodis plc or Topco in the ordinary course
of maintaining its existence;
(h) (to the extent not comprised within Required Payments)
indebtedness and liabilities properly and reasonably incurred by
Enodis plc or Topco in the ordinary course of
18
carrying on (in compliance with the terms of this Agreement) (i)
those activities, and remaining party to and performing its
obligations under those contractual arrangements, identified in
the Hive-Down Agreements as continuing activities and contractual
arrangements (including those related to the Excluded Assets (as
defined in the Hive-Down Agreements)) involving Enodis plc or
Topco, and (ii) other activities reasonably incidental to those
otherwise identified in paragraphs (a) to (h) of this definition;
provided however that:
(i) costs, expenses and fees identified in paragraphs (a), (b), (c)
and (d) incurred by Enodis plc during calendar year 2002 in
respect of which the Structure Memorandum indicates that the
source of funding for Enodis plc shall be the proceeds of the
Bridge Loans and/or the Bonds and/or Bond Exchange Notes and/or
the Equity Offering shall be excluded;
(ii) if so requested by the Facility Agent acting on the instructions
of the Majority Lenders, reasonably detailed evidence
satisfactory to the Facility Agent has been furnished to it
demonstrating that the costs, expenses, fees, indebtedness and
liabilities have been incurred during that calendar year; and
(iii) for the avoidance of doubt no amount comprised in Subordinated
Loan Servicing Payments (or which would have been so included in
the payment thereof by the Company to Enodis plc and receipt and
retention thereof by Enodis plc were not otherwise prohibited by
the terms of the Subordination Agreement) shall be included in
Permitted Distributions.
"PLC GROUP"
means Topco (if established), Enodis plc and its Subsidiaries and any
company in which Enodis plc or any of its Subsidiaries together with one
or more Subsidiaries of Enodis plc own 51 per cent or more of the issued
share capital.
"PRIORITY DEED"
means the priority deed dated on or about the date hereof between, among
others, the Finance Parties and certain members of the Group as
intercompany debtors and creditors.
"PRO RATA SHARE"
means:
(a) for the purpose of determining a Lender's share in a Credit, the
proportion which its Commitment in the relevant 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 Credits (if
any) bears to all the Credits;
19
(ii) if there is no Credit 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:
(a) the second Business Day before the first day of an Interest
Period for a Loan denominated in any currency (other than euro);
or
(b) the second TARGET Day before the first day of an Interest Period
for a Loan denominated in euro,
or such other day as the Facility Agent determines is generally treated
as the rate fixing day by market practice in the relevant interbank
market.
"REFERENCE BANKS"
means the Facility Agent, Credit Suisse First Boston and any other bank
or financial institution appointed as such by the Facility Agent in
consultation with the Company under this Agreement.
"REPAYMENT INSTALMENT"
means each instalment for repayment of the Facility A Term Loan.
"REPEATING REPRESENTATIONS"
means the representations which are deemed to be repeated under this
Agreement.
"REQUEST"
means a request for a Credit, substantially in the form of Schedule 3
(Form of Request).
"REQUIRED PAYMENTS"
means any payment (other than one payable upon effecting the Hive-Downs
which forms part of a payment identified in the Structure Memorandum)
which becomes due and payable by the Company under the terms of the
Hive-Down Documents, including without limitation, all indemnity
obligations of the Company and Enodis Group Limited under the Hive-Down
Documents.
"REVOLVING CREDIT FACILITY"
means the revolving credit facility referred to in Clause 2.3 (Revolving
Credit Facility).
"REVOLVING CREDIT COMMITMENT"
means:
20
(a) for an Original Lender, the amount set opposite its name in
Schedule 1 (Original Parties) under the heading "REVOLVING CREDIT
COMMITMENTS" and the amount of any other Revolving Credit
Commitment it acquires; and
(b) for any other Lender, the amount of any Revolving Credit
Commitment it acquires,
to the extent not cancelled, transferred or reduced under this
Agreement.
"REVOLVING CREDIT FINAL MATURITY DATE"
means the fifth anniversary of the date of this Agreement.
"REVOLVING CREDIT LOAN"
means a loan made under the Revolving Credit Facility.
"ROLLOVER CREDIT"
means one or more Credits:
(a) to be made on the same day that a Credit is due to be repaid or
otherwise matures;
(b) the aggregate amount of which is equal to or less than the Credit
due to be repaid or otherwise matures;
(c) in the same currency as the Credit due to be repaid or otherwise
matures; and
(d) to be made to or for the account of the same Borrower for the
purpose of refinancing a Credit due to be repaid.
"SCREEN RATE"
means:
(a) for LIBOR, the British Bankers Association Interest Settlement
Rate (if any); and
(b) for EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union,
for the relevant currency and 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.
"SECURITY DOCUMENT"
means:
(a) each security document listed in Part I of Schedule 2 (conditions
precedent documents) under the heading "Security Documents"; and
(b) any other document evidencing or creating security over any asset
of an Obligor to secure any obligation of any Obligor to a
Finance Party under the Finance Documents which is entered into
from time to time.
21
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having a similar
effect.
"STRUCTURE MEMORANDUM"
means the Funds Flow Statement, the memorandum and chart referred to at
paragraph 16 of Part I of Schedule 2 (Conditions precedent documents).
"SUBORDINATED INTERCOMPANY LOAN"
means the subordinated intercompany loan in an amount of up to
L150,000,000 (reduced as provided in Clause 23.37) made available to the
Company pursuant to the terms of the Subordinated Intercompany Loan
Agreement.
"SUBORDINATED INTERCOMPANY LOAN AGREEMENT"
means the agreement dated on or about the date of Closing between Enodis
plc as lender and the Company as borrower.
"SUBORDINATION AGREEMENT"
means the deed dated on or about the date of Closing between Enodis plc,
the Company and the Facility Agent relating to the subordination of the
Subordinated Intercompany Loan.
"SUBORDINATED LOAN SERVICING PAYMENTS"
means payments (excluding any payment of or on account of principal of
the loan under the Subordinated Intercompany Loan Agreement falling due
or otherwise required to be made before the original final maturity date
provided for in that Agreement) which become due by the Company to
Enodis plc under the terms of the Subordinated Intercompany Loan
Agreement and are permitted by the terms of the Subordination Agreement
to be paid by the Company and received and retained by Enodis plc.
"SUBSIDIARY"
means:
(a) a subsidiary within the meaning of section 736 of the Companies
Xxx 0000; and
(b) unless the context otherwise requires, a subsidiary undertaking
within the meaning of section 258 of the Companies Xxx 0000.
"SYNDICATION"
means the primary syndication by the Arrangers of the Facility.
"SYNDICATION AGREEMENT"
means the agreement in agreed form between the Parties and other banks
and financial institutions syndicating the Commitments of the Lenders.
22
"SYNDICATION LETTER"
means the letter dated on or about the date of this Agreement from the
Arrangers to Enodis plc, countersigned by Enodis plc by way of
acceptance.
"TARGET DAY"
means a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer payment system is open for the settlement of
payments in euro.
"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 Finance Document.
"TAX PAYMENT"
means a payment made by an Obligor to a Finance Party in any way
relating to a Tax Deduction.
"TERM"
means each period determined under this Agreement for which the Issuing
Bank may be under a liability under a Letter of Credit.
"TERM LOAN"
means the Facility A Term Loan or the Facility B Term Loan (or both or
either of them) as the case may be.
"TERM LOAN FACILITY"
means Facility A or Facility B (or both or either of them) as the case
may be.
"TOPCO"
means any Holding Company of Enodis plc which at the time it becomes
Holding Company of Enodis plc is owned and controlled by substantially
the same shareholders as own and control Enodis plc immediately prior to
that date.
"TOTAL COMMITMENTS"
means the aggregate Commitments of all the Lenders.
"TOTAL FACILITY A COMMITMENTS"
means the Facility A Commitments of all the Lenders.
23
"TOTAL FACILITY B COMMITMENTS"
means the Facility B Commitments of all the Lenders.
"TOTAL REVOLVING CREDIT COMMITMENTS"
means the Revolving Credit Commitments of all the Lenders.
"TRANSACTION DOCUMENTS"
means:
(a) the Finance Documents;
(b) the Bond Documents;
(c) the Bridge Facility Documents;
(d) the Daylight Facility Agreement;
(e) the Intra-Group Funding Agreement;
(f) the Subordinated Intercompany Loan Agreement;
(g) the Subordination Agreement; and
(h) the Hive-Down Documents.
"TRANSFER CERTIFICATE"
means a certificate, substantially in the form of Schedule 5 (Form of
Transfer Certificate), with such amendments as the Facility Agent may
approve or reasonably require or any other form agreed between the
Facility Agent and the Company.
"U.K."
means the United Kingdom.
"U.S." and "UNITED STATES"
means the United States of America.
"U.S. BORROWER"
means any Borrower incorporated or organised under the laws of the
United States of America or any state of the United States of America
(including the District of Columbia).
"U.S. OBLIGOR"
means a Borrower or a Guarantor incorporated or organised under the laws
of the United States.
24
"UTILISATION DATE"
means each date on which a Loan is made or a Letter of Credit is issued
(as applicable).
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 "AUTHORISATION" includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or
notarisation;
"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,
organisation 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
organisation;
(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.
25
(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.
(c) Unless expressly provided to the contrary in a Finance Document, a
person who is not a party to a Finance Document may not enforce any of
its terms under the Contracts (Rights of Third Parties) Xxx 0000 and
notwithstanding any term of any 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 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 Finance Document or in any notice given
in connection with any Finance Document has the same meaning in
that Finance Document or notice as in this Agreement; and
(iv) any obligation of an Obligor under the 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 Finance
Documents.
(e) The headings in this Agreement do not affect its interpretation.
2. FACILITY
2.1 FACILITY A
Subject to the terms of this Agreement, the Lenders make available to
the Company an amortising term loan facility in an aggregate amount
equal to the Total Facility A Commitments.
2.2 FACILITY B
Subject to the terms of this Agreement, the Lenders make available to
the Company a term loan facility in an aggregate amount equal to the
Total Facility B Commitments.
26
2.3 REVOLVING CREDIT FACILITY
Subject to the terms of this Agreement, the Lenders make available to
the Borrowers a revolving credit facility in an aggregate amount equal
to the Total Revolving Credit Commitments. The Revolving Credit Facility
may also be utilised by way of Letters of Credit so long as the
aggregate principal amount of all outstanding Letters of Credit does not
exceed US$40,000,000 (or its equivalent in accordance with Clause 9
(Optional Currencies)) at any time.
2.4 ANCILLARY FACILITIES
Subject to the terms of this Agreement, a Lender may also make available
certain other bi-lateral facilities to the Borrowers in place of all or
part of its Revolving Credit Commitment.
2.5 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
Unless otherwise agreed by all the Finance Parties:
(a) the obligations of a Finance Party under the 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 Finance
Documents;
(c) no Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents;
(d) the rights of a Finance Party under the Finance Documents are
separate and independent rights;
(e) a debt arising under the Finance Documents to a Finance Party is
a separate and independent debt; and
(f) a Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
2.6 AFFILIATES OF LENDERS
(a) Each Lender may, if it so elects, fulfil its commitment as to any Credit
by designating a branch or an Affiliate to make that Credit. 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 Obligors; and
(iii) the branch or Affiliate shall comply with all form delivery and
other requirements under this Agreement.
(b) A Lender may provide for an Affiliate to participate in certain Credits
in the manner contemplated in paragraph (a) above by:
(i) joining the relevant Affiliate in as a Lender; and
27
(ii) giving notice to the Facility Agent and the Company, detailing
the Credits in which that Affiliate will participate.
In this event that Lender and its Affiliate:
(A) 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; and
(B) participate in Credits in the manner described in
sub-paragraph (ii) above.
(c) For the purposes of:
(i) compliance with Clause 32.2 (Assignments and transfers by
Lenders); and
(ii) voting in connection with any Finance Document,
each Lender and its Affiliate will be regarded as a single Lender.
3. PURPOSE
3.1 LOANS
(a) The Term Loans may only be used for the purposes stated in the Structure
Memorandum and shall be disbursed in accordance with the Funds Flow
Statement.
(b) Each Revolving Credit Loan may only be used for the general corporate
purposes of the Group (excluding, for the avoidance of doubt, the
funding of any acquisitions by any member of the Group).
(c) No Loan may be used to refinance any amount of the Bridge Facility.
3.2 LETTERS OF CREDIT
Each Letter of Credit may only be issued to replace any Existing Letter
of Credit issued on behalf of the Company or for the general corporate
purposes of the Group to any other party approved by the Facility Agent
on behalf of the Majority Lenders, such approval not to be unreasonably
withheld.
3.3 NO OBLIGATION TO MONITOR
No Finance Party is bound to monitor or verify the use of any Credit.
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 Part I of Schedule 2 (Conditions precedent
documents) 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.
28
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of each Lender to participate in any Credit are subject
to the further conditions precedent that on both the date of the Request
and the Utilisation Date for that Credit:
(a) the Repeating Representations are correct in all material
respects; and
(b) no Default or, in the case of a Rollover Credit, no Event of
Default is outstanding or would result from the Credit.
4.3 MAXIMUM NUMBER
Unless the Facility Agent agrees, a Request may not be given if, as a
result, there would be more than 10 Loans outstanding.
5. UTILISATION - LOANS
5.1 GIVING OF REQUESTS
(a) A Borrower may borrow a Loan by giving to the Facility Agent a duly
completed Request.
(b) Unless the Facility Agent otherwise agrees, the latest time for receipt
by the Facility Agent of a duly completed Request is 11.00 a.m. one
Business Day before the Rate Fixing Day for the proposed borrowing.
(c) A Request in relation to the Revolving Credit Facility will only be
accepted if the proposed Utilisation Date falls after the date of
Closing.
(d) Each Request is irrevocable.
5.2 COMPLETION OF REQUESTS
A Request will not be regarded as having been duly completed unless:
(a) it identifies the Borrower;
(b) the Utilisation Date is a Business Day falling within the
Availability Period;
(c) the Request specifies whether the Loan is a Term Loan or a
Revolving Credit Loan and specifies the Facility under which that
Loan is to be drawn; and
(d) the proposed currency, amount and Interest Period comply with
this Agreement.
Only one Loan may be requested in a Request.
5.3 AMOUNT OF LOAN
(a) Except as provided below, the amount of the Loan must be a minimum of
US$5,000,000 or its equivalent in accordance with Clause 9 (Optional
Currencies) and an integral multiple of 1,000,000 units of that
currency.
(b) The amount of the Loan may also be:
29
(i) in the case of a Revolving Credit Loan, the balance of the
undrawn Total Revolving Credit Commitments;
(ii) in the case of a Facility A Loan, the balance of the undrawn
Total Facility A Commitments; or
(iii) in the case of a Facility B Loan, the balance of the undrawn
Total Facility B Commitments,
or in each case such other amount as agreed by the Facility Agent.
(c) No more than six Term Loans may be requested under the Term Loan
Facilities.
(d) The amount of each Lender's share of the Loan will be its Pro Rata Share
on the proposed Utilisation Date.
5.4 ADVANCE OF LOAN
(a) The Facility Agent must promptly notify each Lender of the details of
the requested Loan and the amount of its share in that Loan.
(b) No Lender is obliged to participate in making a Loan if, as a result,
the Credits would exceed the Total Commitments.
(c) If the conditions set out in this Agreement have been met, each Lender
must make its share in the Loan available to the Facility Agent for the
relevant Borrower on the Utilisation Date.
6. UTILISATION - LETTERS OF CREDIT
6.1 RECEIPT OF REQUESTS
(a) A Borrower may request a Letter of Credit to be issued by giving to the
Facility Agent a duly completed Request.
(b) Unless the Facility Agent otherwise agrees, the latest time for receipt
by the Facility Agent of a duly completed Request is 11.00 a.m. one
Business Day before the proposed Utilisation Date.
(c) Each Request is irrevocable.
6.2 FORM OF REQUESTS
A Request will not be regarded as being duly completed unless:
(a) it identifies the Borrower;
(b) the Utilisation Date is a Business Day falling within the
Availability Period;
(c) the amount of the Letter of Credit is:
(i) a minimum of US$350,000 (or its equivalent);
(ii) the balance available under this Agreement for Letters of
Credit on the proposed Utilisation Date; or
30
(iii) such other amount as the Facility Agent may agree;
(d) the identity of the proposed beneficiary is approved by the
Facility Agent on behalf of the Majority Lenders, such approval
not to be unreasonably withheld;
(e) the proposed currency and amount of the Letter of Credit comply
with this Agreement;
(f) the form of Letter of Credit has been agreed with the Issuing
Bank and is attached to such Request;
(g) the expiry date of the Letter of Credit falls on or before the
Revolving Credit Final Maturity Date; and
(h) the delivery instructions for the Letter of Credit are specified.
6.3 AMOUNT OF EACH LENDER'S SHARE IN A LETTER OF CREDIT
The amount of each Lender's share in a Letter of Credit will be its Pro
Rata Share on the Utilisation Date.
6.4 ISSUE OF LETTER OF CREDIT
(a) The Facility Agent must promptly notify the Issuing Bank and each Lender
of the details of the requested Letter of Credit and its share of that
Letter of Credit.
(b) The Issuing Bank is not obliged to issue any Letter of Credit if as a
result:
(i) the aggregate amount of all Credits (including the proposed
Letter of Credit) under the Revolving Credit Facility would
exceed the Total Revolving Credit Commitments; or
(ii) the aggregate principal amount of all outstanding Letters of
Credit would exceed US$40,000,000 or its equivalent in accordance
with Clause 9 (Optional Currencies).
(c) If the conditions set out in this Agreement have been met, the Issuing
Bank must issue the Letter of Credit on the Utilisation Date.
6.5 EXISTING LETTERS OF CREDIT
(a) On the first Utilisation Date, the Existing Letters of Credit will be
adopted as Letters of Credit issued under the Revolving Credit Facility
in accordance with the terms of this Agreement and the terms of this
Agreement shall apply to the Existing Letters of Credit as if they had
been issued as Letters of Credit by the Issuing Bank under the terms of
this Agreement.
(b) The Utilisation Date for each Existing Letter of Credit will be the date
of the first Utilisation under this Agreement.
(c) The Facility Agent must promptly notify the Issuing Bank and each Lender
of the Utilisation Date and details of each Existing Letter of Credit
and the share of each Lender in that Existing Letter of Credit.
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7. LETTERS OF CREDIT
7.1 GENERAL
(a) A Letter of Credit is "REPAID" or "PREPAID" if:
(i) a Borrower provides cash cover for that Letter of Credit;
(ii) the maximum amount payable under the Letter of Credit is reduced
in accordance with its terms; or
(iii) the Issuing Bank is satisfied and confirms to the Facility Agent
and a Borrower that it has no further liability under that Letter
of Credit.
The amount by which a Letter of Credit is repaid or prepaid under
sub-paragraphs (i) and (ii) above is the amount of the relevant cash
cover or reduction.
(b) If a Letter of Credit or any amount outstanding under a Letter of Credit
is expressed to be immediately due and payable, that Letter of Credit
must be repaid or prepaid immediately.
(c) "CASH COVER" is provided for a Letter of Credit if a Borrower pays an
amount in the currency of the Letter of Credit to an interest-bearing
account with a Finance Party in London in the name of the Borrower and
the following conditions are met:
(i) the account is with the Facility Agent (if the cash cover is to
be provided for all the Lenders) or with a Lender (if the cash
cover is to be provided for that Lender);
(ii) until no amount is or may be outstanding under that Letter of
Credit, withdrawals from the account may only be made to pay a
Finance Party amounts due and payable to it under that Letter of
Credit or this Clause; and
(iii) the Borrower has executed a security document over that account,
in form and substance satisfactory to the Facility Agent or the
relevant Lender, creating a first ranking security interest over
that account.
(d) The "OUTSTANDING" or "PRINCIPAL" amount of a Letter of Credit at any
time is the maximum amount that is or may be payable by the relevant
Borrower under or in respect of that Letter of Credit at that time.
7.2 ASSIGNMENTS AND TRANSFERS
The consent of the Issuing Bank is required for any assignment or
transfer of any Lender's rights and obligations under this Agreement,
such consent not to be unreasonably withheld.
7.3 FEES IN RESPECT OF LETTERS OF CREDIT
(a) The Company must pay (or ensure that a Borrower pays) to the Issuing
Bank fronting fees in the manner agreed in the Fee Letter between the
Issuing Bank and the Company.
(b) The Company must pay to the Facility Agent for each Lender a letter of
credit fee computed at the rate equal to the current Margin per annum
for the Revolving Credit Facility from time to time, including any
adjustment fee payable under Clause 12.2(d), on the outstanding amount
of each Letter of Credit minus any cash cover.
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(c) Accrued letter of credit fee on each Letter of Credit is payable
quarterly in arrear, commencing on the date of issue of the Letter of
Credit. Accrued letter of credit fee is also payable to the Facility
Agent on the date that the Total Revolving Credit Commitments are
cancelled and the Letters of Credit prepaid or repaid in full.
(d) If any additional amount is payable on drawn and repaid loans under
Clause 12.2(f) to compensate the Lenders for a shortfall, the Company
must, at the same time any amount is paid under Clause 12.2(f), pay to
the Facility Agent for the account of the Lenders an amount to provide
equivalent compensation for a shortfall on the amount of the Letters of
Credit which have already been issued and repaid prior to that date.
7.4 CLAIMS UNDER A LETTER OF CREDIT
(a) Each Borrower irrevocably and unconditionally authorises the Issuing
Bank to pay any claim made or purported to be made under a Letter of
Credit requested by it and which appears on its face to be in order (a
"CLAIM").
(b) Each Borrower must immediately on demand pay to the Facility Agent for
the account of the Issuing Bank an amount equal to the amount of any
claim.
(c) Each Borrower acknowledges that the Issuing Bank:
(i) is not obliged to carry out any investigation or seek any
confirmation from any other person before paying a claim; and
(ii) deals in documents only and will not be concerned with the
legality of a claim or any underlying transaction or any
available set-off, counterclaim or other defence of any person.
(d) The obligations of a Borrower under this Clause will not be affected by:
(i) the sufficiency, accuracy or genuiness of any claim or any other
document; or
(ii) any incapacity of, or limitation on the powers of, any person
signing a claim or other document.
7.5 INDEMNITIES
(a) A Borrower must immediately on demand indemnify the Issuing Bank against
any loss or liability which the Issuing Bank incurs under or in
connection with any Letter of Credit requested by it, except to the
extent that the loss or liability is directly caused by the gross
negligence or wilful misconduct of the Issuing Bank.
(b) Each Lender must immediately on demand indemnify the Issuing Bank
against its share of any loss or liability which the Issuing Bank incurs
under or in connection with any Letter of Credit and which has not been
paid for by an Obligor, except to the extent that the loss or liability
is directly caused by the gross negligence or wilful misconduct of the
Issuing Bank.
(c) A Lender's share of the liability or loss referred to in sub-paragraph
(b) above will be its Pro Rata Share on the Utilisation Date, adjusted
to reflect any subsequent assignment or transfer under this Agreement.
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(d) The relevant Borrower must immediately reimburse any Lender for any
payment it is obliged to make to the Issuing Bank under this subclause.
(e) The obligations of each Lender under this Clause are continuing
obligations and will extend to the ultimate balance of all sums payable
by that Lender under or in connection with any Letter of Credit,
regardless of any intermediate payment or discharge in whole or in part.
(f) The obligations of any Lender under this Clause will not be affected by
any act, omission or thing which, but for this provision, would reduce,
release or prejudice any of its obligations under this Clause (whether
or not known to it or any other person). This includes:
(i) any time or waiver granted to, or composition with, any person;
(ii) any release of any person under the terms of any composition or
arrangement;
(iii) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any person;
(iv) any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to
realise the full value of any security;
(v) any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of any
person;
(vi) any amendment (however fundamental) of a Finance Document, any
Letter of Credit or any other document or security; or
(vii) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document, any Letter of Credit or
any other document or security.
7.6 RIGHTS OF CONTRIBUTION
No Borrower will be entitled to any right of contribution or indemnity
from any Finance Party in respect of any payment it may make under this
Clause.
7.7 CHANGE OF ISSUING BANK
(a) The Issuing Bank may (with the consent of the Facility Agent) resign on
giving 3 months notice to the Company and the Facility Agent, and the
Facility Agent may with the consent of the Lenders concerned, designate
any Lender as a replacement Issuing Bank for future Letters of Credit.
(b) If the Issuing Bank is repaid under Clause 11.14 (Involuntary prepayment
and cancellation), the Company may (with the consent of the Facility
Agent) designate any Lender (with that Lender's consent) as a
replacement Issuing Bank for future Letters of Credit.
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8. ANCILLARY FACILITIES
8.1 AVAILABILITY
(a) If the Company and a Lender under the Revolving Credit Facility agree
and subject as provided below, the Lender may provide an Ancillary
Facility on a bi-lateral basis to a Borrower in place of all or part of
that Lender's undrawn Revolving Credit Commitment.
(b) An Ancillary Facility may not be made available unless the Facility
Agent has first approved it.
(c) If the Facility Agent approves an Ancillary Facility, then:
(i) the Lender concerned will become an Ancillary Lender; and
(ii) the Ancillary Facility will be available,
with effect from the date agreed by the Company and the Ancillary
Lender.
(d) The Facility Agent must promptly notify the other Lenders of the
establishment of an Ancillary Facility.
8.2 APPROVAL PROCESS
The Facility Agent will not approve an Ancillary Facility, unless it has
received:
(a) a notice from the Company specifying:
(i) the members of the Group which may use the Ancillary
Facility;
(ii) the start and expiry dates of the Ancillary Facility;
(iii) the type of Ancillary Facility being provided;
(iv) the Ancillary Lender; and
(v) the applicable Ancillary Commitment;
(b) a copy of the Ancillary Facility Document; and
(c) any other information which the Facility Agent may reasonably
require in connection with the Ancillary Facility.
8.3 TERMS OF ANCILLARY FACILITIES
(a) Except as provided below, the terms of any Ancillary Facility will be
those agreed by the Ancillary Lender and the Company.
(b) However, those terms:
(i) must be based upon normal commercial terms at that time;
(ii) may allow only Borrowers to use the Ancillary Facility;
35
(iii) may not allow the Ancillary Outstandings to exceed the Ancillary
Commitment;
(iv) may not allow the Ancillary Commitment of a Lender to exceed the
undrawn Revolving Credit Commitment of that Lender; and
(v) must ensure that the Ancillary Commitment is reduced to nil, and
that all Ancillary Outstandings are repaid or cash-collateralised
in full, not later than the Revolving Credit Final Maturity Date.
(c) Any document providing for an Ancillary Facility is an Ancillary
Facility Document.
8.4 REVOLVING CREDIT COMMITMENT
(a) For the purposes of:
(i) calculating commitment fee; and
(ii) calculating the amount of a Lender's share in a Credit under the
Revolving Credit Facility:
(A) the Revolving Credit Commitment of a Lender will be reduced
by the amount of its Ancillary Commitment in force at that
time; and
(B) the Revolving Credit Commitment of a Lender will be
increased by the cancelled amount of its Ancillary
Commitment at the time of cancellation.
(b) For the purposes of calculating the Majority Lenders, a Lender's
Ancillary Commitment will be deemed to be a Revolving Credit Commitment
of an equal amount.
8.5 REFINANCING OF ANCILLARY FACILITY
(a) No Ancillary Lender may demand repayment or prepayment of any amounts or
demand cash cover for any liabilities made available or incurred by it
under its Ancillary Facility unless:
(i) the Total Revolving Credit Commitments have been cancelled in
full, or the Facility Agent has declared all outstanding Credits
under the Revolving Credit Facility immediately due and payable;
or
(ii) the Ancillary Outstandings under that Ancillary Facility can be
and are refinanced by a Revolving Credit Loan.
(b) For the purposes of determining whether or not a Revolving Credit Loan
can be used for the purpose referred to in paragraph (a)(ii) above:
(i) the Revolving Credit Commitment of the Ancillary Lender will be
increased by the amount of the Ancillary Outstandings; and
(ii) unless the Facility Agent has declared all outstanding Credits
under the Revolving Credit Facility immediately due and payable
the Revolving Credit Loan may be borrowed irrespective of whether
a Default is outstanding or any other applicable condition
precedent not satisfied.
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(c) The share of the Ancillary Lender in a Revolving Credit Loan being used
to refinance that Ancillary Lender's Ancillary Facility will be that
amount which will result (so far as possible) in the proportion which
its share of all outstanding Credits under the Revolving Credit Facility
bears to the aggregate amount of the outstanding Credits under the
Revolving Credit Facility, being equal to the proportion which its
Revolving Credit Commitment bears to the Total Revolving Credit
Commitments. The share of the other Lenders in any such Revolving Credit
Loan will be adjusted accordingly.
8.6 INFORMATION
Each Obligor and each Ancillary Lender must, promptly upon request by
the Facility Agent, supply the Facility Agent with any information
relating to the operation of an Ancillary Facility (including the
Ancillary Outstandings) as the Facility Agent may reasonably request
from time to time.
9. OPTIONAL CURRENCIES
9.1 GENERAL
In this Clause:
"AGENT'S SPOT RATE OF EXCHANGE"
means the Facility Agent's spot rate of exchange for the purchase of the
relevant currency in the London foreign exchange market with Dollars at
or about 11.00 a.m. on a particular day.
"DOLLAR AMOUNT"
of a Credit or part of a Credit means:
(a) if the Credit is denominated in Dollars, its amount; or
(b) if the Credit is a Letter of Credit denominated in an Optional
Currency for a Term, its equivalent in Dollars calculated on the
basis of the Agent's Spot Rate of Exchange one Business Day
before the Utilisation Date for that Letter of Credit, as
adjusted below at six monthly intervals; or
(c) in the case of any other Credit, if the Credit is denominated in
an Optional Currency for an Interest Period, its equivalent in
Dollars calculated on the basis of the Agent's Spot Rate of
Exchange one Business Day before the Rate Fixing Day for that
Interest Period.
"OPTIONAL CURRENCY"
means any currency (other than Dollars) in which a Credit may be
denominated under this Agreement.
9.2 SELECTION
(a) A Credit may only be denominated in Dollars or an Optional Currency.
(b) A Borrower must select the currency of a Credit in its Request.
37
(c) The amount of a Credit requested in an Optional Currency must be, in the
case of a Loan, a minimum amount of the equivalent of US$5,000,000 and
an integral multiple of 1,000,000 units of that currency and, in the
case of a Letter of Credit, a minimum amount of the equivalent of
US$350,000 and an integral multiple of 100,000 units of that currency or
any other amount agreed by the Facility Agent.
(d) Unless the Facility Agent otherwise agrees, the Credits may not be
denominated at any one time in more than 5 currencies.
9.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A Credit may be denominated in an Optional Currency for an Interest
Period or a Term (as applicable) if:
(i) that Optional Currency is readily available in the amount
required and freely convertible into Dollars in the relevant
interbank market on the Rate Fixing Day and the first day of that
Interest Period or Term (as applicable); and
(ii) that Optional Currency is euro or Sterling or has been previously
approved by the Facility Agent (acting on the instructions of all
the Lenders).
(b) If the Facility Agent has received a request from the Company for a
currency to be approved as an Optional Currency, the Facility Agent
must, within five Business Days, confirm to the Company:
(i) whether or not the Lenders have given their approval; and
(ii) if approval has been given, the minimum amount (and, if required,
integral multiples) for any Credit in that currency.
9.4 REVOCATION OF CURRENCY
(a) Notwithstanding any other term of this Agreement, if before 9.30 a.m. on
any Rate Fixing Day the Facility Agent receives notice from a Lender
that:
(i) the Optional Currency requested is not readily available to it in
the London interbank market in the amount and for the period
required; or
(ii) participating in a Loan in the proposed Optional Currency might
contravene any law or regulation applicable to it,
the Facility Agent must give notice to the Company to that effect
promptly and in any event before 11.00 a.m. on that day.
(b) In this event, at the option of the Borrower who made the Request:
(i) (A) that Lender must participate in the Loan in either
Dollars, euro or Sterling; and
(B) the share of that Lender in the Loan and any other
similarly affected Lender(s) will be treated as a separate
Loan denominated either in Dollars, euro or Sterling, as
selected by that Borrower, during that Interest Period; or
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(ii) the entire Loan will be denominated in either Dollars, euro or
Sterling as selected by that Borrower.
(c) The relevant Borrower must exercise its option under paragraph (b) above
by 2.00 p.m. on the relevant Rate Fixing Day. Failing this, that
Borrower will be deemed to have selected the option in sub-paragraph
(b)(i)(A) above.
(d) Any part of a Loan treated as a separate Loan under this Subclause will
not be taken into account for the purposes of any limit on the number of
Loans or currencies outstanding at any one time.
(e) A Loan will still be treated as a Rollover Credit if it is not
denominated in the same currency as the maturing Loan by reason only of
the operation of this Subclause.
9.5 OPTIONAL CURRENCY EQUIVALENTS
The equivalent in Dollars of a Credit or part of a Credit in an Optional
Currency for the purposes of calculating:
(a) whether any limit under this Agreement has been exceeded;
(b) the amount of a Credit;
(c) the share of a Lender in a Credit;
(d) the amount of any repayment of a Credit; or
(e) the undrawn amount of a Lender's Commitment or Commitments,
is its Dollar Amount.
9.6 NOTIFICATION
The Facility Agent must notify the Lenders and the Company of the
relevant Dollar Amount (and the applicable Agent's Spot Rate of
Exchange) promptly after they are ascertained.
9.7 LETTERS OF CREDIT IN OPTIONAL CURRENCY
(a) If a Letter of Credit is denominated in an Optional Currency, the
Facility Agent must at six monthly intervals after the date of this
Agreement, recalculate the Dollar Amount of that Letter of Credit by
notionally converting the amount of that Letter of Credit into Dollars
on the basis of the Agent's Spot Rate of Exchange on the date of
calculation.
(b) Each Borrower must, if requested by the Facility Agent, ensure that
sufficient Letters of Credit are prepaid to prevent the Dollar Amount of
the Credits under the Revolving Credit Facility exceeding the Total
Revolving Credit Commitments following any adjustment to a Dollar Amount
under this Subclause.
10. REPAYMENT
10.1 REPAYMENT OF REVOLVING CREDIT LOANS
(a) Each Borrower must repay each Revolving Credit Loan made to it in full
on its Maturity Date.
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(b) Subject to the other terms of this Agreement, any amounts repaid under
paragraph (a) above may be re-borrowed.
10.2 REPAYMENT OF TERM LOANS
(a) The Borrower of Facility A must repay the Facility A Term Loan in the
amounts and on the dates set out in the table below:
REPAYMENT DATE REPAYMENT INSTALMENT
(US$ MILLION)
22nd September, 2002 8.19
22nd March, 2003 7.64
22nd September, 2003 17.47
22nd March, 2004 19.65
22nd September, 2004 27.29
22nd March, 2005 22.93
22nd September, 2005 29.49
22nd March, 2006 22.93
22nd September, 2006 14.21
(b) The Borrower of Facility B must repay the Facility B Term Loan in full
on the Facility B Final Maturity Date.
10.3 REPAYMENT OF LETTERS OF CREDIT
(a) Each Borrower must repay each Letter of Credit in full on its Maturity
Date.
(b) Subject to the other terms of this Agreement, any amounts repaid or
pre-paid under paragraph (a) above may be re-utilised.
11. PREPAYMENT AND CANCELLATION
11.1 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 22 (Financial covenants);
"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
40
disposal referred to in Clause 23.6(c)(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 L750,000 or
when aggregated with all other such disposals made after the date of
this Agreement exceed L10,000,000.
"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.
11.2 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 Finance Document or to fund or maintain its share in
any Credit.
(b) After notification under paragraph (a) above:
(i) each Borrower must repay or prepay the share of that Lender in
each Credit utilised 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 Credit
will be:
(i) the last day of the current Interest Period or Term, as
applicable, for that Credit 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.
11.3 MANDATORY PREPAYMENT - CHANGE OF CONTROL/OWNERSHIP
(a) The Company must promptly notify the Facility Agent if:
(i) it becomes aware of any person or group of persons acting in
concert gaining control of Enodis plc (other than Topco), the
Company, Enodis Group Limited or (following its establishment)
Topco;
(ii) the Company ceases to be a wholly-owned Subsidiary of Enodis plc;
(iii) Enodis Group Limited ceases to be a wholly-owned Subsidiary of
the Company;
(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 the Majority Lenders so
require, the Facility Agent must, by notice to the Company:
41
(i) cancel the Total Commitments; and
(ii) declare all outstanding Credits, together with accrued interest
and all other amounts accrued under the 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 Xxx 0000; and
"ACTING IN CONCERT" has the meaning given to it in the City Code on
Takeovers and Mergers.
11.4 MANDATORY PREPAYMENT - DISPOSALS AND SHARE DISPOSALS
(a) The Company must apply (or procure that the Borrowers apply) forthwith
after receipt an amount equal to the Net Proceeds arising from any
Disposal or Share Disposal towards prepaying the Credits.
(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 or Term (as applicable) of the Credit 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 the Credits shall be so applied
only on the date of the realisation in Cash by any member of the Group
of such non-Cash consideration.
11.5 MANDATORY PREPAYMENT - SURPLUS CASHFLOW
(a) In this Subclause:
"SURPLUS CASHFLOW"
means Consolidated Cashflow for any financial year or for the financial
half-year comprising the period from 1st April, 2002 to 28th September,
2002:
(i) minus Consolidated Total Debt Service during such period; and
(ii) before deducting dividends paid by Enodis plc during or in
respect of such period.
"SEMI-ANNUAL SURPLUS CASHFLOW"
means Consolidated Cashflow during the first half of any financial year:
(i) minus Consolidated Total Debt Service during such period; and
(ii) before deducting dividends paid by Enodis plc during or in
respect of such period.
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(b) The Company must apply (or procure that the Borrowers apply) an amount
equal to 75 per cent. of Surplus Cashflow for each financial year (or
financial half-year for the financial half-year comprising the period
from 1st April, 2002 to 28th September, 2002) towards prepaying the
Credits (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).
(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 Plc Group. 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 (or
procure that the Borrowers apply) an amount equal to 75 per cent. of
that Semi-annual Surplus Cashflow towards prepaying the Credits.
(d) To the extent a Semi-annual Surplus Cashflow prepayment has been made in
accordance with paragraph (c) above, (but subject to paragraph (e)
below) a Permitted Additional Dividend may be distributed in accordance
with Clause 23.27 (Dividends and payments).
(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.
(f) Any prepayment under this Subclause must be made on or before the last
day of the then current Interest Period or Term(s) of the Credits in
which (in the case of any prepayment required under paragraph (b) above)
the annual cashflow statement of the Plc 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 Plc Group establishing that there
has been Surplus Cashflow is delivered to the Facility Agent.
11.6 MANDATORY PREPAYMENT - BONDS, EQUITY AND BRIDGE FACILITY
(a) Promptly following (i) repayment in full of the Bridge Facility in
accordance with the terms of the Bridge Facility Agreement, and (ii)
receipt by Enodis plc of the proceeds of the Equity Offering, the
Company will prepay at least US$22,800,000 of the Credits, having
retained L5,000,000 for the purposes of its business.
(b) Any prepayment under this Subclause must be made on the last day of the
Interest Period or Term (as applicable) of the Credit to be prepaid in
which the amount is received or, if the Company elects by notice to the
Facility Agent, on the date of receipt of the amount.
11.7 MANDATORY PREPAYMENT - INSURANCE PROCEEDS
(a) 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
L750,000, the Company must apply (or procure that there is
applied) an amount equal to those Net Proceeds towards prepaying the
Credits in accordance with Clause 11.10 (Order of application of
prepayments) 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.
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(b) Any prepayment under this Subclause must be made on or before the last
day of the Interest Period or Term (as applicable) of the Credit to be
prepaid in which receipt of the relevant insurance proceeds occurred.
11.8 PAYMENT INTO A BLOCKED ACCOUNT
(a) If a Credit is required to be prepaid otherwise than on the last day of
the current Term(s) for those Credits under the terms of this Clause 11,
the Company must ensure that an amount equal to the amounts to be
prepaid is deposited in a Blocked Account promptly following such amount
being received or the obligation to prepay arising.
(b) Each Borrower irrevocably authorises the Facility Agent to apply any
amount deposited with it under paragraph (a) towards prepayment of the
Credits on the last day of the relevant Term(s) or earlier if the
relevant Borrower so directs.
(c) Amounts standing to the credit of a Blocked Account may only be used to
repay or prepay Credits or any other amounts outstanding under the
Finance Documents.
11.9 VOLUNTARY PREPAYMENT
(a) The Company may, by giving not less than 3 Business Days' prior notice
to the Facility Agent, prepay (or ensure that a Borrower prepays) any
Credit at any time in whole or in part.
(b) A prepayment of part of a Credit must be in a minimum amount of
US$5,000,000 or its equivalent in accordance with Clause 9 (Optional
Currencies) and an integral multiple of 1,000,000 units of that
currency.
(c) A prepayment of part of a Letter of Credit must be in a minimum amount
of US$350,000 or its equivalent in accordance with Clause 9 (Optional
Currencies) and an integral multiple of 100,000 units of that currency
or any other amount agreed by the Facility Agent.
11.10 ORDER OF APPLICATION OF PREPAYMENTS
(a) Any amount to be applied in prepayment of the Credits must be applied:
(i) first, in prepayment of the Term Loans;
(ii) secondly, in prepayment of the Revolving Credit Loans; and
(iii) thirdly in prepayment of any Letter of Credit.
(b) Where there is a mandatory prepayment in accordance with Clauses 11.2
(Mandatory prepayment - illegality) to 11.7 (Mandatory prepayment -
insurance proceeds) inclusive, of a Revolving Credit Loan or a Letter of
Credit, the Revolving Credit Commitments will, at the same time, be
reduced by the same amount.
(c) If there is no Revolving Credit Loan or Letter of Credit to be prepaid,
the Revolving Credit Commitment will be reduced by the amount the
Revolving Credit Loans or Letters of Credit which would have been
prepaid if they were outstanding at that time.
(d) A Lender under Facility B may at any time give notice to the Facility
Agent that it wishes to decline prepayment of its participation in the
Facility B Term Loan (a "DECLINING LENDER").
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Such notice will be effective until receipt by Facility Agent of a
notice from the Declining Lender confirming that it no longer wishes to
decline prepayment.
(e) Any partial prepayment of the Term Loans will be applied against the
Term Loans comprised in each Facility pro rata. However, whilst any part
of a Term Loan is outstanding, amounts which would have been prepaid to
a Declining Lender (the "DECLINED AMOUNTS") will be applied, to the
extent that such Declined Amounts can be applied against other
outstanding Term Loans, pro rata against the Term Loans to those Lenders
which are not Declining Lenders.
11.11 PARTIAL PREPAYMENT OF TERM LOANS
(a) Any partial prepayment of the Facility A Term Loan, where such
prepayment is the result of a Disposal or Share Disposal (each as
defined in Clause 11.1 (Definitions and interpretations)) which has had
a negative impact on the EBIT (as defined in the definition of Material
Subsidiary) of the Group, will be applied against the remaining
Repayment Instalments pro rata.
(b) Any other partial prepayment of the Facility A Term Loan will be applied
against the remaining Repayment Instalment in inverse order of maturity.
11.12 AUTOMATIC CANCELLATION
(a) The Commitments of each Lender will be automatically cancelled at the
close of business on the last day of the Availability Period.
(b) Once the Loan under any Term Loan Facility has been made, any unutilised
Commitment under that Term Loan Facility will be automatically cancelled
at the close of business on the last day of the Availability Period.
11.13 VOLUNTARY CANCELLATION
(a) The Company may, by giving not less than 3 Business Days' prior notice
to the Facility Agent, cancel the unutilised amount of the Total
Revolving Credit Commitments in whole or in part.
(b) Partial cancellation of the Total Revolving Credit Commitments must be
in a minimum amount of US$5,000,000 and an integral multiple of
US$1,000,000.
(c) Any cancellation in part will be applied against the relevant Commitment
of each Lender pro rata.
11.14 INVOLUNTARY PREPAYMENT AND CANCELLATION
(a) If an Obligor is, or will be, required to pay to a Lender or the Issuing
Bank 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 or of Letters of
Credit issued by the Issuing Bank.
(b) After notification regarding a Lender under paragraph (a) above:
(i) each Borrower must repay or prepay that Lender's share in each
Credit made to it on the date specified in paragraph (c) below;
and
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(ii) the Commitment of that Lender will be immediately cancelled.
(c) After notification regarding the Issuing Bank under paragraph (a) above,
each Borrower must repay or prepay all outstanding Letters of Credit
issued by the Issuing Bank.
(d) The date for repayment or prepayment of a Lender's share in a Credit, or
Letters of Credit issued by the Issuing Bank, will be the last day of
the Interest Period for a Loan, or the last day of the Term for a Credit
or, if earlier, the date specified by the Company in its notification.
11.15 RE-BORROWING OF CREDITS
(a) Subject to paragraph (b) below, any voluntary prepayment of a Credit may
be re-borrowed on the terms of this Agreement. Any mandatory or
involuntary prepayment of a Credit, including any prepayment in
accordance with Clause 11.2 (Mandatory prepayment - illegality), 11.3
(Mandatory prepayment - Change of control/ownership), 11.4 (Mandatory
prepayment - Disposals and Share Disposals), 11.5 (Mandatory prepayment
- Surplus Cashflow), 11.6 (Mandatory prepayment - Bonds, Equity and
Bridge Facility) or 11.7 (Mandatory prepayment - insurance proceeds) may
not be re-borrowed and the associated Commitment will be cancelled.
(b) Subject to Clause 9 (Optional Currencies) no amount of a Term Loan
repaid or prepaid under this Agreement may subsequently be re-borrowed.
11.16 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
Credits 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.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
12. INTEREST
12.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum equal to the aggregate of the applicable:
(a) Margin;
(b) IBOR; and
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(c) Mandatory Cost.
12.2 MARGIN
(a) In this Clause, Consolidated Total Net Debt, Consolidated EBITDA and
Measurement Period have the meaning given to them in Clause 22
(Financial covenants).
(b) The Margin for the Revolving Credit Facility and Facility A will
initially be two point seven five per cent. (2.75%) per annum. Upon
receipt by the Facility Agent of the Compliance Certificate (as defined
in Clause 21.2 (Compliance Certificate)), and the financial statements
for the period ended 28th September, 2002 and, thereafter, upon receipt
by the Facility Agent of any financial statements of the Company and
related Compliance Certificate covering the previous Measurement Period,
the Margin will be determined by reference to the ratio of Consolidated
Total Net Debt to Consolidated EBITDA for the most recent Measurement
Period, as shown by the most recent Compliance Certificate and
calculated by reference to the relevant consolidated financial
statements, and in accordance with the following table, provided that
the Margin may not reduce by more than one step per Measurement Period:
CONSOLIDATED TOTAL NET DEBT MARGIN
TO CONSOLIDATED EBITDA (PER CENT. PER ANNUM)
Greater than or equal to 4.0:1 2.75%
Greater than or equal to 3.5:1 but less than 4.0:1 2.50%
Greater than or equal to 3.0:1 but less than 3.5:1 2.25%
Greater than or equal to 2.5:1 but less than 3.0:1 2.00%
Greater than or equal to 2.0:1 but less than 2.5:1 1.75%
Greater than or equal to 1.5:1 but less than 2.0:1 1.50%
Less than 1.5:1 1.25%
Provided that prior to 28th September, 2002 but following the issue of
shares pursuant to the Equity Offering launched on the date hereof (the
date of such issue of shares being the "ISSUE DATE"), the Company shall
be permitted to provide to the Facility Agent pro forma consolidated
financial statements for a twelve month period (the "INTERIM MEASUREMENT
PERIOD") ending on 30th April, 2002. If, by reference to such pro forma
consolidated financial statements, the ratio of Consolidated Total Net
Debt to Consolidated EBITDA for the Interim Measurement Period is less
than 4.0:1 the Margin for the Revolving Credit Facility and Facility A
will be two point five zero per cent. (2.50%) per annum for the period
from the date of receipt by the Facility Agent of the pro forma
consolidated financial statements to 28th September, 2002.
(c) The Margin for Facility B will be three point five zero per cent.
(3.50%) per annum.
(d) Notwithstanding paragraph (a) or (b) above, for so long as:
(i) the Company is in default of its obligation under this Agreement
to provide a Compliance Certificate or relevant financial
statements; or
47
(ii) an Event of Default is outstanding,
the Margin with respect to the Revolving Credit Facility and Facility A
will be two point seven five per cent.(2.75%) per annum.
(e) Any change in Margin takes effect upon receipt by the Facility Agent of
the relevant Compliance Certificate and consolidated financial
statements of the Plc Group for the relevant Measurement Period
delivered under Clause 21.2 (Compliance Certificate).
(f) If the Margin has been reduced under this Clause in reliance on the
unaudited financial statements of the Company and related Compliance
Certificate for the previous Measurement Period, and the subsequent
audited financial statements of the Company for such Measurement Period
do not confirm the reduction, the reduction will be reversed with
retrospective effect so that the Margin will instead be that calculated
by reference to the relevant audited financial statements of the
Company. If, in this event, any amount of interest has been paid by a
Borrower on the basis of the unaudited financial statements of the
Company and related Compliance Certificate, that Borrower must
immediately pay to the Facility Agent any shortfall in the amount which
would have been paid to the Lenders if the Margin had been calculated by
reference to the relevant audited financial statements.
12.3 PAYMENT OF INTEREST
Except where it is provided to the contrary in this Agreement, each
Borrower must pay accrued interest on each Loan made to it on the last
day of each Interest Period and also, if the Interest Period is longer
than six months, on the dates falling at six-monthly intervals after the
first day of that Interest Period.
12.4 INTEREST ON OVERDUE AMOUNTS
(a) If an Obligor fails to pay any amount payable by it under the 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.
(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 in the currency of the overdue amount.
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.
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(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.
12.5 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.
13. INTEREST PERIODS
13.1 SELECTION
(a) Each Revolving Credit Loan has one Interest Period only.
(b) Each Term Loan has successive Interest Periods.
(c) A Borrower must select the (or the first) Interest Period for a Loan in
the relevant Request. In respect of a Term Loan which has been borrowed,
the Borrower will select the Interest Period in a notice to be delivered
to the Facility Agent no later than the date falling three Business Days
before the first day of the new Interest Period. If the Borrower does
not deliver a notice, the Interest Period will be three months.
(d) Subject to the following provisions of this Clause, each Interest Period
for a Loan will be one, three or six months or any other period agreed
by the Company and the Lenders.
13.2 NO OVERRUNNING THE FINAL MATURITY DATE
If an Interest Period for a Credit would otherwise overrun the Revolving
Credit Final Maturity Date, the Facility A Final Maturity Date or the
Facility B Final Maturity Date (each a "FINAL MATURITY DATE") (as
applicable for that Credit), it will be shortened so that it ends on the
relevant Final Maturity Date.
13.3 OTHER ADJUSTMENTS
The Parties agree that the Loans may be split into a maximum of six
separate Loans. The Facility Agent and the Company may enter into such
arrangements as they may agree for the adjustment of Interest Periods
for the purpose of the consolidation and/or splitting of Loans and
otherwise for effecting the splitting of the Loans as permitted hereby.
13.4 SYNDICATION
Until the date which is the earlier of six months after Closing and the
date on which the Facility Agent notifies the Company that Syndication
is complete, the duration of each Interest Period shall be one month or
such other period (not exceeding six months) as may be agreed between
the Company and the Facility Agent.
13.5 NOTIFICATION
The Facility Agent must notify the Borrower and the Lenders of the
duration of each Interest Period promptly after ascertaining its
duration.
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14. MARKET DISRUPTION
14.1 FAILURE OF A REFERENCE BANK TO SUPPLY A RATE
If IBOR 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 IBOR will, subject as provided below, be
calculated on the basis of the rates of the remaining Reference Banks.
14.2 MARKET DISRUPTION
(a) In this Clause, each of the following events is a "MARKET DISRUPTION
EVENT":
(i) IBOR 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 IBOR 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) Margin;
(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.
14.3 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.
15. TAXES
15.1 GENERAL
In this Clause:
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"QUALIFYING LENDER"
means
(a) in respect of a payment made by an Obligor incorporated in the
U.K. a Lender or the Issuing Bank which is:
(i) a U.K. Lender; or
(ii) a Treaty Lender with respect to the U.K.;
(b) in respect of a payment made by a U.S. Obligor, a Lender or the
Issuing Bank which is:
(i) a U.S. Lender; or
(ii) a Treaty Lender with respect to the United States that is
entitled to receive payments under the Finance Documents
without deduction or withholding of any United States
federal income Taxes; or
(iii) entitled to receive payments under the Finance Documents
without deduction or withholding of any United States
federal income Taxes; and
(c) in respect of a payment made by an Obligor incorporated in The
Netherlands or for Dutch tax purposes resident in The
Netherlands, the Issuing Bank or any Lender.
"TAX CREDIT"
means a credit against any Tax or any relief or remission for Tax (or
its repayment).
"TREATY LENDER"
means, in respect of a jurisdiction, a Lender or the Issuing Bank which
is, on the date a payment of interest falls due or a letter of credit
fee becomes payable under this Agreement entitled under the provisions
of a double taxation treaty to receive payments of interest or letter of
credit fees from a person resident in such jurisdiction without a Tax
Deduction (subject to the completion of any necessary procedural
formalities).
"U.K. LENDER"
means a Lender or Issuing Bank which is:
(a) a Lender or the Issuing Bank which is within the charge to U.K.
corporation tax in respect of, and beneficially entitled to, a
payment of interest on a Loan made or a letter of credit fee on a
Letter of Credit issued 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 the
Letter of Credit issued; or
(b) a Lender or Issuing Bank which is:
(i) a company resident in the U.K. for tax purposes;
51
(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 Xxx 0000,
which, in each case, is beneficially entitled to payment of
interest on a Loan made or a letter of credit fee on any Letter
of Credit and which has provided to the Company and not retracted
confirmation of the above in circumstances other than those
detailed in Clause 15.2 (d) (ii) below (in each case a "U.K.
NON-BANK LENDER").
"U.S. LENDER"
means a Lender or the Issuing Bank which is created or organised under
the laws of the United States or of any state (including the District of
Columbia) thereof.
15.2 TAX GROSS-UP
(a) Each Obligor must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required
by law.
(b) If:
(i) a Lender or the Issuing Bank is not, or ceases to be, a
Qualifying Lender; or
(ii) an Obligor or a Lender is aware that an Obligor 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 an Obligor or the Facility Agent, the
amount of the payment due from the Obligor 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, an Obligor is not
required to make an increased payment under paragraph (c) above
to a Lender or the Issuing Bank that is not, or has ceased to be,
a Qualifying Lender in excess of the amount that the Obligor
would have had to pay under paragraph (c) above had the Lender or
the Issuing Bank been, or not ceased to be, a Qualifying Lender.
(ii) Sub-paragraph (i) above will not apply if the Lender or the
Issuing Bank has ceased to be a Qualifying Lender by reason of
any change after the date it became a Lender or the Issuing Bank
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) An Obligor is not required to make an increased payment to a Lender or
the Issuing Bank under paragraph (c) above if that Lender or the Issuing
Bank is a Treaty Lender and the
52
Obligor making the payment is able to demonstrate that the Tax Deduction
would not have been required if the Lender or the Issuing Bank had
complied with its obligations under paragraph (h) below.
(f) If an Obligor is required to make a Tax Deduction, that Obligor must
make the minimum Tax Deduction and must make any payment required in
connection with that Tax Deduction within the time allowed by law.
(g) Within 30 days of making either a Tax Deduction or a payment required in
connection with a Tax Deduction, the Obligor making that Tax Deduction
or payment 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 each Obligor by using its
reasonable endeavours to complete any procedural formalities
necessary for that Obligor to obtain authorisation to make that
payment without a Tax Deduction.
(ii) A Treaty Lender, in respect of the United States, must timely
deliver to the Facility Agent for transmission to the U.S.
Obligor making the payment two original copies of Internal
Revenue Service Form W-8BEN (or any successor form) certifying
that it is a resident of a foreign country with which the United
States has an income tax treaty.
(iii) A Lender or the Issuing Bank, as referred to in sub-paragraph
(b)(iii) of the definition of Qualifying Lender, must timely
deliver to the Facility Agent for transmission to the U.S.
Obligor making such payment two original copies of either:
(A) Internal Revenue Service Form W-8ECI (or any successor
form) certifying that the payments made pursuant to the
Finance Documents are effectively connected with the
conduct by that Lender or the Issuing Bank of a trade or
business within the United States; or
(B) Internal Revenue Service Form W-8BEN (or any successor
form) claiming exemption from withholding in respect of
payments made pursuant to the Finance Documents under the
portfolio interest exemption; or
(C) such other applicable form prescribed by the Internal
Revenue Service certifying as to such Lender's or the
Issuing Bank's entitlement to exemption from United States
withholding tax with respect to all payments to be made to
such Lender or the Issuing Bank under the Finance
Documents.
(i) 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.
15.3 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
53
payment received or receivable (or any payment deemed to be received or
receivable) under a 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.
(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.
15.4 TAX CREDIT
If an Obligor 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 relevant Obligor 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 15.4 (Tax Credit) 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.
15.5 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 Finance Document, except
for any such Tax payable in connection with the entry into of a Transfer
Certificate.
15.6 VALUE ADDED TAXES
(a) Any amount (including costs and expenses) payable under a Finance
Document by an Obligor is exclusive of any Tax (including value added
tax) which might be chargeable in connection
54
with that amount. If any such Tax is chargeable, the Obligor 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.
(b) The obligation of any Obligor 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.
16. INCREASED COSTS
16.1 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 16.1 (Increased
Costs) 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.
16.2 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.
16.3 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.
17. MITIGATION
17.1 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:
55
(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 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.
17.2 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.
18. PAYMENTS
18.1 PLACE
Unless a 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 Finance Documents must be made to the Facility Agent to
its account at such office or bank:
(a) in the principal financial centre of the country of the relevant
currency; or
(b) in the case of euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to that Party for this purpose by not less than five
Business Days' prior notice.
18.2 FUNDS
Payments under the 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.
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18.3 DISTRIBUTION
(a) Each payment received by the Facility Agent under the 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:
(i) in the principal financial centre of the country of the relevant
currency; or
(ii) in the case of euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Facility Agent for this purpose by not less than
five Business Days' prior notice.
(b) The Facility Agent may apply any amount received by it for an Obligor in
or towards payment (as soon as practicable after receipt) of any amount
due from that Obligor under the Finance Documents or in or towards the
purchase of any amount of any currency to be so applied.
(c) 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.
18.4 CURRENCY
(a) Unless a Finance Document specifies that payments under it are to be
made in a different manner, the currency of each amount payable under
the Finance Documents is determined under this Clause.
(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 Finance Documents is payable in
Dollars.
18.5 NO SET-OFF OR COUNTERCLAIM
All payments made by an Obligor under the Finance Documents must be made
without set-off or counterclaim.
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18.6 BUSINESS DAYS
(a) If a payment under the 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.
18.7 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment insufficient to discharge all
the amounts then due and payable by the Obligors under the Finance
Documents, the Facility Agent must apply that payment towards the
obligations of the Obligors under the 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 Finance
Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest
or fee due but unpaid under this Agreement;
(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 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 an Obligor.
18.8 TIMING OF PAYMENTS
If a 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.
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE AND INDEMNITY
Each Guarantor jointly and severally (and in the case of Louisiana
solidarily) and irrevocably and unconditionally:
(a) guarantees to each Finance Party punctual performance by each
Obligor of all its payment obligations under the Finance
Documents;
(b) undertakes with each Finance Party that, whenever an Obligor does
not pay any amount when due under any Finance Document, it must
immediately on demand by the Facility Agent pay that amount as if
it were the principal obligor; and
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(c) indemnifies each Finance Party immediately on demand against any
loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal; the amount of the loss or liability under this
indemnity will be equal to the amount the Finance Party would
otherwise have been entitled to recover.
19.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
19.3 REINSTATEMENT
(a) If any discharge (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) or arrangement is
made in whole or in part on the faith of any payment, security or other
disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of each
Guarantor under this Clause will continue as if the discharge or
arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration.
19.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause will not be affected
by any act, omission or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Clause
(whether or not known to it or any Finance Party). This includes:
(a) any time or waiver granted to, or composition with, any person;
(b) any release of any person under the terms of any composition or
arrangement;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any person;
(d) any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to
realise the full value of any security;
(e) any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of any
person;
(f) any amendment (however fundamental) of a Finance Document or any
other document or security; or
(g) any unenforceability, illegality, invalidity or non-provability
of any obligation of any person under any Finance Document or any
other document or security.
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19.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other right or security or claim payment from any person
before claiming from that Guarantor under this Clause.
19.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may:
(a) without affecting the liability of any Guarantor under this
Clause:
(i) refrain from applying or enforcing any other moneys,
security or rights held or received by that Finance Party
(or any trustee or agent on its behalf) in respect of those
amounts; or
(ii) apply and enforce them in such manner and order as it sees
fit (whether against those amounts or otherwise); and
(b) hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of that Guarantor's liability
under this Clause.
19.7 NON-COMPETITION
Unless:
(a) all amounts which may be or become payable by the Obligors under
the Finance Documents have been irrevocably paid in full; or
(b) the Facility Agent otherwise directs,
no Guarantor will, after a claim has been made or by virtue of any
payment or performance by it under this Clause:
(i) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf);
(ii) be entitled to any right of contribution or indemnity in respect
of any payment made or moneys received on account of that
Guarantor's liability under this Clause; or
(iii) receive, claim or have the benefit of any payment, distribution
or security from or on account of any Obligor, or exercise any
right of set-off as against any Obligor.
Each Guarantor must hold in trust for and immediately pay or transfer to
the Facility Agent for the Finance Parties any payment or distribution
or benefit of security received by it contrary to paragraph (a) above or
in accordance with any directions given by the Facility Agent under this
Subclause or pursuant to any claim or proof in the winding-up or
liquidation of any Obligor.
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19.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by any Finance Party.
19.9 RELEASES OF GUARANTORS
At the time of any sale or other disposal which is permitted by the
terms of this Agreement and will not result or could not reasonably be
expected to result in any breach of any term of any Finance Document, to
a person or persons outside (and which will remain outside) the Group of
all of the shares in the capital of any Guarantor (or of all of the
shares in any other member of the Group such that any Guarantor ceases
as a result thereof to be a member of the Group) such Guarantor shall be
released from all past, present and future liabilities (both actual and
contingent and including, without limitation, any liability to any other
Guarantor by way of contribution) hereunder and under the Security
Documents to which it is a party (other than liabilities which it has in
its capacity as a Borrower).
19.10 U.S. GUARANTORS
(a) In this Subclause:
"FRAUDULENT TRANSFER LAW"
means any applicable United States bankruptcy and State fraudulent
transfer and conveyance statute and any related case law;
"U.S. GUARANTOR"
means any Guarantor incorporated or organised under the laws of the
United States of America or any state of the United States of America
(including the District of Columbia); and
terms used in this Subclause are to be construed in accordance with the
fraudulent transfer laws.
(b) Each U.S. Guarantor acknowledges that:
(i) it will receive valuable direct or indirect benefits as a result
of the transactions contemplated by the Finance Documents;
(ii) those benefits will constitute reasonably equivalent value and
fair consideration for the purpose of any fraudulent transfer
law; and
(iii) it accepts that each Finance Party has acted in good faith in
connection with the guarantee given by that U.S. Guarantor and
the transactions contemplated by the Finance Documents.
(c) Any term or provision of this Clause 19 or any other term in this
Agreement or any Finance Document notwithstanding, the maximum aggregate
amount of the obligations for which any U.S. Guarantor shall be liable
under this Clause 19 shall not exceed the maximum amount for which such
U.S. Guarantor can be liable without rendering this Agreement or any
other Finance Document, as it relates to the U.S. Guarantor, subject to
avoidance under any fraudulent transfer law, in each case after taking
into account:
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(i) all other liabilities of the U.S. Guarantor, contingent or
otherwise, that are relevant under such fraudulent transfer law
(specifically excluding, however, any liabilities of the U.S.
Guarantor in respect of intercompany indebtedness to any Borrower
to the extent that such indebtedness would be discharged in an
amount equal to the amount paid by the U.S. Guarantor under this
Clause 19); and
(ii) the value as assets of the U.S. Guarantor (as determined under
such fraudulent transfer law) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights pursuant
to:
(A) applicable law; or
(B) any other agreement providing for an equitable allocation
among the U.S. Guarantor and the other Obligors of
obligations arising under this Agreement or any guarantees
of those obligations.
19.11 MAINTENANCE OF LIABLE CAPITAL
(a) In this Subclause:
"GERMAN GUARANTOR"
means any Guarantor incorporated under the laws of Germany.
(b) To the extent the guarantee referred to in this Clause 19 (Guarantee and
indemnity) secures any of the obligations of an affiliated company
(VERBUNDENES UNTERNEHMEN) of a German Guarantor (which is constituted in
the form of a GmbH) within the meaning of Section 15 of the German Stock
Corporation Act (AKTIENGESETZ) (other than a German Guarantor's
subsidiaries), the enforcement of the guarantee shall be, at all times,
limited to the extent that such enforcement would lead to the relevant
German Guarantor not retaining sufficient assets to maintain its
registered share capital (STAMMKAPITAL) provided that the enforcement
limitations set out in this Subclause 19.11 (Maintenance of liable
capital) shall not apply in relation to any amounts borrowed by a
Borrower under this Agreement for so long and to the extent on-lent to a
German Guarantor or any Subsidiary from time to time of the relevant
German Guarantor and further provided that for the purposes of
calculating such assets the following balance sheet items shall be
adjusted as follows:
(i) the amount of any increase of registered share capital of the
relevant German Guarantor out of retained earnings
(KAPITALERHOHUNG AUS GESELLSCHAFTSMITTELN) after the date of this
Agreement that has been effected without the prior written
consent of the Facility Agent shall be deducted from the
registered share capital of the relevant German Guarantor; and
(ii) loans and other contractual liabilities incurred in violation of
the provisions of the Finance Documents shall be disregarded.
(c) Furthermore, if and to the extent legally permissible and commercially
justifiable in respect of a German Guarantor's business, the relevant
German Guarantor shall, in a situation where:
(i) the relevant German Guarantor does not have sufficient assets to
maintain its registered share capital; and
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(ii) the Facility Agent would (but for this Clause) be entitled to
enforce the guarantee granted under Clause 19 (Guarantee and
indemnity) of this Agreement,
realise any and all of its assets that are shown in the balance sheet
with a book value (BUCHWERT) which is significantly lower than the
market value of the assets if such asset is not necessary for the
relevant German Guarantor's business (BETRIEBSNOTWENDIG).
(d) None of the above restrictions shall apply to the extent this Agreement
secures a German Guarantor's own obligations.
19.12 LIMITATIONS
(a) This guarantee does not apply to any liability to the extent that it
would result in this guarantee constituting unlawful financial
assistance within the meaning of Section 151 of the Companies Xxx 0000.
(b) This guarantee does not include any amounts the guaranteeing of which
would constitute the providing of unlawful financial assistance within
the meaning of article 2:207(c) of the Dutch Civil Code. For the
avoidance of doubt, the above carve-out for unlawful financial
assistance included in this Clause 19.12(b) only applies to the extent
any amount guaranteed under this Clause 19 has been used for the purpose
of a (re-)financing of the subscription of, paying up or acquisition of
any of the shares (or depository receipts) in the Obligors incorporated
in The Netherlands and/or in their (direct or indirect) parent
companies.
19.13 HEDGING BANK
A Hedging Bank may rely on this Clause but may not make demand on any
Guarantor under this Clause unless permitted to do so by the Priority
Deed.
20. REPRESENTATIONS
20.1 REPRESENTATIONS
The representations set out in this Clause are made by each Obligor or
(if it so states) the Company to each Finance Party.
20.2 STATUS
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or, in the
case of each U.S. Obligor only, it is an entity duly organised and
validly existing under the laws of its jurisdiction of formation.
(b) It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
20.3 POWERS AND AUTHORITY
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of, the Transaction
Documents to which it is or will be a party and the transactions
contemplated by those Transaction Documents.
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20.4 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.
(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-organisation, 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.
20.5 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, each Transaction Document 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.
20.6 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; 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.
20.7 AUTHORISATIONS
All authorisations required by it in connection with:
(a) the entry into, performance, validity and enforceability of, and
the transactions contemplated by, the Transaction Documents; 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 authorisation, save for the registration or
filing of any Security Document which can only be done after the
execution of the relevant documents, which registration or filing will
be effected promptly and in any event within any prescribed time period.
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20.8 FINANCIAL STATEMENTS
(a) In the case of the Company only, the financial statements of Enodis plc
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 Enodis plc 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 Plc 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.
20.9 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 Plc Group since 30th September, 2001.
20.10 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.
(c) No labour disputes are current or, to its knowledge, threatened which
are reasonably likely to have a Material Adverse Effect.
20.11 PARI PASSU RANKING
Its obligations under the 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.
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20.12 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.
20.13 TAXES ON PAYMENTS
Save with respect to amounts referred to in any legal opinion issued
under Part I of Schedule 2 (Conditions precedent documents), as at the
date of this Agreement, all amounts payable by it under the Finance
Documents may be made without any Tax Deduction.
20.14 STAMP DUTIES
Save with respect to amounts referred to in any legal opinion issued
under Part I of Schedule 2 (Conditions precedent documents), as at the
date of this Agreement, no ad valorem stamp or registration duty or
similar Tax or charge is payable in any jurisdiction of incorporation of
any Obligor in respect of any Finance Document.
20.15 SECURITY
(a) No Security Interest exists on any asset of any member of the Group
contrary to Clause 23.5 (Negative pledge).
(b) Each Security Document to which it is a party creates or evidences the
security interest which that Security Document purports to create or
evidence.
20.16 FINANCIAL INDEBTEDNESS
On and from Closing, no member of the Group has any (actual or
contingent) Financial Indebtedness outstanding which is not permitted by
the terms of this Agreement.
20.17 DOCUMENTS
(a) The documents delivered to the Facility Agent by or on behalf of an
Obligor pursuant to Clause 4.1(a) (Conditions precedent documents) 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 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 Closing 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 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.
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20.18 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;
(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.
20.19 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 Part I of Schedule 2 (Conditions precedent documents).
(b) In the case of the Company only as at the date of this Agreement and as
at Closing:
(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 Plc Group and all forecasts and projections
furnished by or on behalf of any member of the Plc 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;
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(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
information supplied to the Arrangers by or on behalf of the
Company untrue or misleading in any material respect.
20.20 STRUCTURE MEMORANDUM
(a) In the case of the Company only, the Structure Memorandum shows all
members of the Plc 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 Plc Group and all material intercompany loans as at
29th December, 2001.
20.21 NEWCOS
(a) Except as may arise under the Transactions Documents neither the
Company 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 Group Limited.
20.22 ASSETS
(a) It is the legal and beneficial owner of the shares and other material
property which it charges or purports to charge under the Security
Documents.
(b) It owns or has leased or licensed to it all material assets necessary to
conduct its business as it is being conducted.
20.23 HIVED-DOWN ASSETS
All of the Hived-Down Assets will, immediately upon Closing 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 hereunder), claims and
competing interests.
20.24 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.
20.25 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 Closing, 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; and
(d) at all times following the date of Closing, 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.
20.26 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
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.
20.27 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 England and New York;
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(ii) agreement that this Agreement is governed by English 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 England or in New York will be recognised and
be enforceable by the courts of its jurisdiction of incorporation.
20.28 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;
(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.
20.29 TIMES FOR MAKING REPRESENTATIONS
(a) The representations set out in this Clause are made by each Original
Obligor 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) each Additional Obligor and the Company on the date that
Additional Obligor becomes an Obligor; and
(ii) each Obligor on the date of each Request, the first day of each
Interest Period.
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(c) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
(d) When Clause 20.6 (No default) is repeated in relation to a Rollover
Loan, the reference to "Default" will be construed as a reference to
"Event of Default".
21. INFORMATION COVENANTS
21.1 FINANCIAL STATEMENTS
(a) The Company shall procure that there are supplied to the Facility Agent
in sufficient copies for all the Lenders:
(i) the audited consolidated financial statements of Enodis plc for
each of its financial years together with an annual cashflow
statement and an unaudited half-year cashflow statement for the
financial half-year comprising the period from 1st April, 2002 to
28th September, 2002 and extracts from the accounting records of
the Plc Group in respect of accounting groups incorporating the
Obligors upon which the latest audited consolidated financial
statements of the Plc Group have been based substantially in the
form agreed by the Company and the Facility Agent (the
"EXTRACTS");
(ii) the unaudited consolidated financial statements of Enodis plc for
each of its financial quarters; and
(iii) the monthly management accounts (being for the usual periods of 4
or 5 weeks) of Enodis plc and related information package
prepared by Enodis plc.
(b) All financial statements, management accounts and the related
information package prepared by Enodis plc must be supplied as soon as
they are available and:
(i) in the case of Enodis plc's audited consolidated financial
statements, the annual (or half-year) cashflow statement and the
Extracts, within 120 days;
(ii) in the case of Enodis plc's quarterly unaudited consolidated
financial statements, within 60 days; and
(iii) in the case of Enodis plc's monthly management accounts, within
45 days,
of the end of the relevant financial period.
21.2 COMPLIANCE CERTIFICATE
(a) A "COMPLIANCE CERTIFICATE" is a certificate, substantially in the form
of Schedule 7 (Form of Compliance Certificate) setting out, among other
things, calculations of the financial covenants.
(b) The Company shall procure that Enodis plc supplies 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.
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(c) A Compliance Certificate must be signed by two authorised signatories of
Enodis plc.
(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 Plc Group a written statement (the
"REPORT") prepared by Enodis plc's auditors. The Report must confirm
that:
(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 22.3 (Consolidated Net Worth), 22.4
(Leverage), 22.5 (Interest cover) and 22.8 (Guarantor cover) of
the 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 11.5
(Mandatory prepayment - Surplus Cashflow) (with respect to the
definition of "Surplus Cashflow") and 1.1 (Definitions) of the
Agreement; and
(iv) based on information extracted from the Plc Group's accounting
records, upon which the latest audited financial statements of
the Plc Group have been based, the companies listed in paragraph
4 of the Compliance Certificate meet the definition of Material
Subsidiaries.
21.3 FORM OF FINANCIAL STATEMENTS
(a) The Company shall procure that each set of financial statements supplied
under this Agreement (including the Extracts) gives (if audited) a true
and fair view of, or (if unaudited) fairly represents, the financial
condition (consolidated or otherwise) of the relevant person, accounting
group or the Plc 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 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.
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(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 Plc 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 22 (Financial covenants).
21.4 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 Plc Group is or may be
incorrect and wishes to discuss the financial position of any member of
the Plc 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 authorised (at the expense of the Company):
(a) to discuss the financial position of each member of the Plc 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.
21.5 INFORMATION - MISCELLANEOUS
The Company must supply to the Facility Agent:
(a) copies of all documents despatched by the Company to its
shareholders or by Enodis plc to its shareholders (or, in each
case, any class of them) or its or Enodis plc's creditors
generally at the same time as they are despatched;
(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 Plc 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 Plc
Group.
21.6 NOTIFICATION OF DEFAULT
(a) Unless the Facility Agent has already been so notified by another
Obligor, each Obligor 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.
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(b) Promptly on request by the Facility Agent, the Company must supply to
the Facility Agent a certificate, signed by two of its authorised
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.
21.7 YEAR END
The Company shall:
(a) procure that the financial year end of Enodis plc 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 Plc
Group ends on an Accounting Date.
21.8 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;
(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.
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If the circumstances in paragraphs (i) or (ii) above occur, the Company
must supply any information required under this Agreement in paper form.
22. FINANCIAL COVENANTS
22.1 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
Plc 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) DEDUCTING any increase and ADDING any decrease in Net Working
Capital over that Measurement Period and adjusting, in a manner
consistent with the methodology employed in the Original
Financial Statements, for any changes in other long term assets
and long term liabilities (excluding changes in Financial
Indebtedness, Tax, dividend and fixed asset balance sheet
accounts), to the extent not already reflected in determining
Consolidated EBITDA;
(b) ADDING any extraordinary or exceptional item received in Cash or
DEDUCTING any extraordinary or exceptional item paid in Cash
during that Measurement Period (ignoring, and neither deducting
nor adding back, any up front fees and other financing costs
relating to this Agreement and/or the Bond Documents and/or the
Equity Offering which are incurred during such Measurement
Period);
(c) DEDUCTING Capital Expenditure paid or required to be paid during
that Measurement Period;
(d) DEDUCTING any net gains and ADDING BACK any net losses for that
Measurement Period arising on the disposal of fixed assets to the
extent reflected in Consolidated EBITDA;
(e) ADDING the net proceeds received in Cash during that Measurement
Period of any disposal of fixed assets;
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(f) DEDUCTING all non-Cash credits and ADDING BACK all non-Cash
debits (in each case to the extent not otherwise specifically
dealt with in this definition) included in Consolidated EBITDA
during that Measurement Period;
(g) DEDUCTING the Cash cost of acquiring any subsidiary undertakings
or minority interests incurred during that Measurement Period;
(h) ADDING the net proceeds of any disposals of Subsidiaries,
subsidiary undertakings or minority interests received in Cash
during that Measurement Period;
(i) DEDUCTING all dividends or any other distributions payable during
that Measurement Period to any person which is not a member of
the Plc Group;
(j) DEDUCTING all corporate tax and withholding tax paid or which
fell due for payment during that Measurement Period; and
(k) 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 in consequence of the occurrence thereof,
in each case ensuring that no item is effectively credited or deducted
more than once in determining Consolidated Cashflow.
"CONSOLIDATED EBITDA"
means the consolidated net pre-taxation profits of the Plc Group for a
Measurement Period, adjusted by:
(a) ADDING BACK Consolidated Interest Payable;
(b) DEDUCTING any financing charges received or receivable by the Plc
Group in respect of that Measurement Period;
(c) EXCLUDING any amount attributable to minority interests and, for
the avoidance of doubt, this amount shall be the Equity minority
interest figure shown in the Group profit and loss account for
the Measurement Period;
(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, including
up-front costs payable under this Agreement and/or under the Bond
Documents and /or in connection with the Equity Offering, in each
case in connection with the arrangement or underwriting thereof,
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 Plc Group;
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(i) for the purposes of calculating the ratio set out in Clause 22.4
(Leverage) only, INCLUDING the net pre-taxation profits of a
member of the Plc 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 Plc Group and/or the business or assets were not
owned by a member of the Plc Group; and
(j) for the purposes of calculating the ratio set out in Clause 22.4
(Leverage) only (and, for each of the Measurement Periods ending
on 31st March, 2002, 30th June, 2002, 30th September, 2002 and
31st December, 2002 only, for the purposes of calculating the
ratio set out in Clause 22.5 (Interest Cover)), EXCLUDING the net
pre-taxation profit attributable to any member of the Plc 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 capitalised), incurred (on an accruals basis) by the
Plc 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:
(a) the charging of fees incurred in connection with the Existing
Facility Agreement to the profit and loss account for the
financial year ended 28th 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 Plc Group during the relevant Measurement Period,
except that for each of the Measurement Periods ending on 31st March,
2002, 30th June, 2002, 30th September, 2002 and 31st December, 2002
only, Consolidated Net Interest Payable will be calculated as if the
Measurement Period was from Closing (in the case of the Measurement
Period ending on 31st March, 2002) and from 1st April, 2002 (in the case
of the Measurement Periods ending on 30th June, 2002, 30th September,
2002 and 31st December, 2002) to the end of the actual Measurement
Period, and then annualising the amount of Consolidated Net Interest
Payable so obtained by multiplying it by a fraction of which the
numerator is 365 and the denominator is the number of days in the period
from Closing or 1st April, 2002 (as the case may be) to the end of the
actual 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 Plc Group during the
relevant Measurement Period, except that for each of the Measurement
Periods ending on 31st March, 2002, 30th June, 2002, 30th September,
2002 and 31st December, 2002 only, Consolidated Net Senior Interest
Payable will be calculated as if the Measurement Period was from Closing
(in the case of the Measurement Period ending on 31st March, 2002) and
from 1st
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April, 2002 (in the case of the Measurement Periods ending on 30th June,
2002, 30th September, 2002 and 31st December, 2002) to the end of the
relevant Measurement Period, and then annualising the amount of
Consolidated Net Interest Payable so obtained by multiplying it by a
fraction of which the numerator is 365 and the denominator is the number
of days in the period from Closing or 1st April, 2002 (as the case may
be) to the end of the actual 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 Plc 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 Plc 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 Plc Group to a person who is not a member of
the Plc Group;
(iii) deducting any amount standing to the debit of the profit and loss
account of the Plc 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 28th September, 2001 or, in the case of assets of a
company which becomes a member of the Plc Group after that date,
the date on which that company becomes a member of the Plc Group
other than any upward revaluation of assets undertaken by an
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 Plc 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 Plc 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 a business; and
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(xi) adding back any amount attributable to the write back of
goodwill.
"CONSOLIDATED TOTAL DEBT"
means, in respect of the Plc 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 capitalised 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 the subject of a guarantee, indemnity or similar assurance
against financial loss given by a member of the Plc 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; and
(ii) any amount mandatorily prepaid under this Agreement.
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"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
Bridge Facility, the Bridge Exchange Notes, the Bonds or the 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
Enodis plc), and references in Clause 22 (Financial covenants) 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.
"NET WORKING CAPITAL"
means all stock (other than with respect to Felsted) for the time being
owned by members of the Plc Group,
(a) adding amounts for the time being owing (whether or not due) to
members of the Plc Group (on a consolidated basis) which
constitute current assets of the Plc Group including, for the
avoidance of doubt, prepayments (other than amounts of or in
respect of Financial Indebtedness and Tax and amounts with
respect to Felsted);
(b) deducting amounts for the time being owing (whether or not due)
by members of the Plc Group (on a consolidated basis) which
constitute current liabilities including, for the avoidance of
doubt, accruals (other than amounts of or in respect of Financial
Indebtedness, Tax and dividends and amounts with respect to
Felsted),
in each case as determined in accordance with the Accounting Principles.
22.2 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.
22.3 CONSOLIDATED NET WORTH
(a) The Company must ensure that Consolidated Net Worth is not at any time
less than:
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(i) L150,000,000 or, if higher, the amount calculated under paragraph
(b) below, less any relevant amount under paragraph (ii) below
(if there shall be any write down by Enodis plc of its investment
in the business known as Xxxxx Xxxxxx, being part of the company
Xxxxx Industrial Corporation ("XXXXX XXXXXX")).
(ii) for the purposes of paragraph (i) above, the "relevant amount" is
the lesser of:
(A) L50,000,000; and
(B) the Sterling equivalent (determined in accordance with the
Accounting Principles) of the aggregate amount of any
write-downs by Enodis plc of its investment in Xxxxx Xxxxxx
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 Plc Group at the end of that financial year.
22.4 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 22.7 (Covenant Table) 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 22.7 (Covenant Table) exceed that set out
against that date in column W of that table.
22.5 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 22.7 (Covenant Table) 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
Period ending on or about any of the dates set out in the table set out
in Clause 22.7 (Covenant Table) less than that set out against that date
in Column Y of that table.
22.6 CASH FLOW
The Company must ensure that Consolidated Cashflow for any Measurement
Period, starting with the Measurement Period ending on 31st December,
2002, ending on or about any of the dates set out in the table set out
in Clause 22.7 (Covenant Table), 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.
22.7 COVENANT TABLE
The table referred to in Clauses 22.4 (Leverage), 22.5 (Interest Cover),
and 22.6 (Cash flow) is as follows:
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DATE V W X Y Z
31st March, 2002 4.50:1 3.00:1 2.00:1 3.20:1 -
30th June, 2002 4.00:1 2.90:1 2.15:1 3.20:1 -
30th September, 2002 4.15:1 2.80:1 2.15:1 3.20:1 -
31st December, 2002 3.95:1 2.65:1 2.30:1 3.50:1 1.05
31st March, 2003 3.70:1 2.50:1 2.50:1 3.85:1 1.05
30th June, 2003 3.55:1 2.35:1 2.75:1 4.30:1 1.05
30th September, 2003 3.10:1 1.90:1 3.00:1 4.90:1 1.05
31st December, 2003 2.85:1 1.80:1 3.20:1 5.30:1 1.05
31st March, 2004 2.75:1 1.65:1 3.40:1 5.70:1 1.05
30th June, 2004 2.45:1 1.40:1 3.65:1 6.00:1 1.05
30th September, 2004 2.05:1 1.05:1 3.90:1 6.00:1 1.05
31st December, 2004 2.00:1 1.00:1 4.00:1 6.00:1 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
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
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22.8 GUARANTOR COVER
(a) If the aggregate gross assets or profits before interest, Tax and
exceptional or extraordinary items ("EBIT") of the Guarantors (excluding
intra-Group items) are at any time less than 75 per cent. of the total
gross assets or EBIT (as applicable) of the Group at that time, then
within 14 days of becoming aware of this fact the Company must ensure
that sufficient Additional Guarantor(s) accede to this Agreement to
ensure that the aggregate gross assets or EBIT of the Guarantors
(excluding intra-Group items) are not less than 75 per cent. of the
total gross assets or EBIT of the Group at that time.
(b) For the purpose of this Clause:
(i) the gross assets or EBIT of a Guarantor will be determined from
the accounting records of the Group upon which the latest audited
financial statements of the Group have been based;
(ii) if a company becomes a Guarantor after the date on which the
latest audited financial statements of the Group have been
prepared, the gross assets or EBIT of that Guarantor will be
determined from its latest financial statements;
(iii) the gross assets or EBIT of the Group will be determined from its
latest audited financial statements, adjusted (where appropriate)
to reflect the gross assets or EBIT of any company or business
which has been subsequently disposed of or acquired; and
(iv) gross assets does not include goodwill.
(c) Each Additional Guarantor must accede to the Agreement in accordance
with Clause 32.6 subject, for the avoidance of doubt, to Clause 32.6(e))
(Additional Obligors), including providing security over its assets by
the execution and delivery of Security Documents as listed in Part III
of Schedule 2 (Conditions precedent documents).
23. GENERAL COVENANTS
23.1 GENERAL
Each Obligor agrees to be bound by the covenants set out in this Clause
relating to it and, where the covenant is expressed to apply to each
member of the Group, each Obligor must ensure that each of its
Subsidiaries performs that covenant.
23.2 AUTHORISATIONS
(a) Each Obligor must promptly obtain, maintain and comply with the terms of
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of,
any Transaction Document.
(b) Each member of the Group must obtain, maintain and comply with the terms
of any authorisation 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.
83
23.3 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.
23.4 PARI PASSU RANKING
Each Obligor must ensure that its payment obligations under the 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.
23.5 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 (Existing Security)
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 (Existing
Security) exceeds L10 million (or its equivalent) plus any
Financial Indebtedness to the extent covered by a Letter of
Credit or a letter of credit issued under an Ancillary
Facility;
(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;
(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;
84
(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 L5,000,000 or its equivalent at any time;
and
(xi) any Security Interest over the warrants issued by Nobia AB and
relating to the disposal by Enodis plc 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,
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 L5,000,000 (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 23.7 (Financial Indebtedness) does not exceed the
aggregate amount permitted under Clause 23.7 (b)(vi) (Financial
Indebtedness); or
(iii) intra-Group arrangements of the type described in paragraph (c)
above.
85
23.6 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 Facilities to the extent required by and in
accordance with Clause 11.4 (Mandatory prepayment - Disposals and
Share Disposals); 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 this
Agreement), immediately upon completion of the disposal security
at least equivalent to that over such shares existing in favour
of the Facility Agent immediately prior to their disposal is
created in favour of the Facility Agent, in form and substance
satisfactory to the 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 favour 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;
86
(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;
(viii) any disposal where the Net Proceeds of that disposal are applied
promptly in prepayment of the Facilities to the extent required
by and in accordance with Clause 11.4 (Mandatory prepayment -
Disposals and Share Disposals); 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 L5,000,000 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 23.6.
(e) Notwithstanding the rest of this Clause 23.6 (Disposals), 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 authorised 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 22 (Financial covenants) will be complied with when tested for
each of the four Measurement Periods succeeding such Measurement Period.
(f) Notwithstanding the rest of this Clause 23.6 (Disposals), 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 per cent. (for three months only from the
date of this Agreement) and from then on 15 per cent. of the
consideration relating to a disposal may be deferred or in the form of
non-Cash consideration.
23.7 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 under this Agreement
(including under any Ancillary Facility) or the Subordinated
Intercompany Loan Agreement, in force as at the date hereof, and
subject to Clause 23.37 (Capitalisation of the Subordinated
Intercompany Loan);
(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 23.24 (Treasury
transactions);
(iv) any loan permitted under Clause 23.25 (Loans out);
87
(v) any Financial Indebtedness to the extent covered by a Letter of
Credit or letter of credit issued under an Ancillary Facility; or
(vi) Financial Indebtedness not otherwise permitted under the
preceding sub-paragraphs which in aggregate does not exceed
L10,000,000 or its equivalent at any time.
(c) The Company will procure that neither Enodis plc nor Topco will incur
any Financial Indebtedness, other than:
(i) in the case only of Enodis plc, any Financial Indebtedness
evidenced by Bonds or Bond Exchange Notes issued by Enodis plc in
compliance with Clauses 23.28 (Bridge Loans, Bonds and Exchange
Notes) and any refinancing thereof provided that such refinancing
is on terms materially no more onerous than the Bonds or Bond
Exchange Notes and 23.25(v) (Loans out);
(ii) in the case only of Enodis plc, any Financial Indebtedness
incurred under the Bridge Facility or under the Bridge Exchange
Notes; or
(iii) between Enodis plc and Topco.
23.8 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 23.6 (Disposals))
from that carried on at the date of this Agreement.
23.9 MERGERS
No Obligor may enter into any amalgamation, demerger, merger or
reconstruction other than:
(i) a merger of two Obligors;
(ii) a merger of two companies which are non-Obligors (provided that
if the resulting entity would be deemed to be a Material
Subsidiary such entity shall comply with the requirements of this
document as to the giving of guarantees and security by Material
Subsidiaries immediately upon completion of such merger);
(iii) a merger of a non-Obligor into an Obligor where the surviving
entity is such Obligor; or
(iv) any other transaction agreed in writing by the Majority Lenders.
23.10 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 entering
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.
88
(c) Paragraph (b) does not apply to:
(i) any guarantee arising under the 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 favour 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 this Agreement; or
(viii) guarantees where the aggregate amount so guaranteed by all
members of the Group at any time does not exceed L5,000,000
or its equivalent.
(d) The Company shall procure that within one month of Closing 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 Closing which evidences that the amount referred to
in paragraph (c)(viii) above was not exceeded at Closing 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.
23.11 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 23.26 (Share capital) 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
89
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 L10,000,000;
(v) any non-Cash consideration received pursuant to a disposal
permitted under Clause 23.6 (Disposals); or
(vi) the warrants issued by Nobia AB and relating to the disposal by
Enodis plc 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 Finance Documents.
(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.
23.12 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,
where failure to do so is reasonably likely to have a Material
Adverse Effect.
(b) Each Obligor 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.
23.13 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.
23.14 THE COMPANY
(a) The Company must not carry on any business or own any assets, other
than:
90
(i) the ownership of shares in the capital of Enodis Group Limited;
(ii) incurring Financial Indebtedness under the Finance Documents and
the Subordinated Intercompany Loan Agreement;
(iii) receiving amounts from members of the Group and distributing such
amounts, including to Enodis plc and Topco, as and to the extent
permitted by the terms of this Agreement;
(iv) exercising its rights relating to and complying with its
obligations under the terms and conditions of the Hive-Down
Documents; and
(v) making payment to Enodis plc to the extent permitted by Clause
23.27 (Dividends and payments).
(b) The Company shall procure that Enodis plc does not carry on any business
or own any assets, other than:
(i) the ownership of shares in the capital of the Company and the
lending of the Subordinated Intercompany Loan to the Company;
(ii) incurring Financial Indebtedness under the Bridge Facility, the
Bridge Exchange Notes and/or the Bonds or the Bond Exchange Notes
or refinancing thereof (as permitted by Clause 23.28(d)(ii)(B)
(Bridge Loans, Bonds and Exchange Notes);
(iii) the provision of administrative, but not treasury, services to
the members of the Plc 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 the Company to the extent permitted by
Clause 23.27 (Dividends and payments);
(vi) carrying out and making payments in relation to those activities
permitted to be funded by payments permitted pursuant to Clause
23.27 (Dividends and payments);
(vii) holding and carrying out activities in relation to the Excluded
Assets (as defined in the Hive-Down Agreements);
(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 the Company of the same class
as those in issue at the date hereof.
(c) 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 Enodis plc;
91
(ii) incurring Financial Indebtedness in relation to any refinancing
of the Bridge Facility, the Bridge Exchange Notes and/or the
Bonds or the Bond Exchange Notes as permitted by Clause
23.28(d)(ii)(B) (Bridge Loans, Bonds and Exchange Notes);
(iii) receiving payments from the Company or Enodis plc to the extent
permitted by Clause 23.27 (Dividends and payments);
(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 (Dividends and payments); 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 Enodis plc
for ordinary shares in the capital of the Company of the same
class as those in issue at the date hereof.
23.15 INTER-COMPANY DEBT
(a) Save as permitted pursuant to the Subordination Agreement, the Company
shall not (and shall procure that no other member of the Group shall)
pay any amount of principal, interest or other amount pursuant to or
relating to the Subordinated Intercompany Loan.
(b) No member of the Group which is the creditor in respect of any Financial
Indebtedness of any other member of the Group shall take any action to
cause that Financial Indebtedness to become due or to be paid (i) where
the relevant member of the Group does not have sufficient cash resources
to meet such payment and to continue to carry on its business in the
ordinary course, or (ii) in breach of the terms of the Priority Deed.
23.16 AMENDMENTS TO DOCUMENTS
(a) The Company may not and shall procure that Enodis plc does 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
in Enodis plc; or
(iv) amend or waive any of the other documents delivered to the
Facility Agent pursuant to Clause 4.1 (Conditions precedent
documents),
without the prior written consent of the Original Lenders on or prior to
Closing 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 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.
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23.17 CASH IN NON-OBLIGORS
(a) The Company shall procure that the aggregate amount of Cash and Cash
Equivalents held by all members of the Group which are not Obligors
shall not exceed L10,000,000 in aggregate at any time. Any Cash or
Cash Equivalents in excess of such amount shall be loaned to an Obligor
within five Business Days of the Company becoming aware of the excess.
(b) On or before Closing, the Company shall deliver to the Facility Agent a
copy of the cash statement for the Group as at 8th February, 2002 and
either a certificate signed by two authorised signatories of the Company
certifying that such statement complies with the limits applied in
paragraph (a) above or, a certificate signed by two authorised
signatories of the Company certifying that such statement does not
comply with the limits applied in paragraph (a) above.
(c) If the cash statement for the Group as at 8th February, 2002 shows that
the limits applied in paragraph (a) above have been exceeded, on or
before 22nd February, 2002, the Company shall further deliver to the
Facility Agent a copy of the cash statement for the Group as at 15th
February, 2002 and a certificate signed by two authorised signatories of
the Company certifying that such statement complied with the limits
applied in paragraph (a) above.
23.18 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.
23.19 PENSION SCHEMES
(a) Each member of the Group must:
(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.
23.20 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.
23.21 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,
93
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.
23.22 LIMITATION ON RESTRICTIONS AFFECTING MOVEMENT OF CASH INTRA-GROUP
(a) No Obligor shall and each Obligor shall procure that no member of the
Group may agree to any restriction on its ability to move cash to
another member of the Group, whether by way of dividend, inter-company
loan or otherwise to any extent which would be reasonably likely
materially and adversely to affect free flow of cash around the Group to
meet working capital and debt servicing requirements.
(b) Paragraph (a) above does not apply to any restriction contained in a
Finance Document or the constitutional documents of a member of the
Group delivered to the Facility Agent on or prior to the first
Utilisation Date as a documentary condition precedent under this
Agreement.
23.23 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 23.25 (Loans
out) and transactions required pursuant to and as permitted by the
Finance Documents.
23.24 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.
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23.25 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
Closing;
(iv) subject to the terms of the Priority Deed loans made pursuant to
the Intra-Group Funding Agreement; or
(v) loans to Enodis plc which constitute the making of Permitted
Distributions or Permitted Additional Dividends;
(vi) the Nobia AB vendor loan facility in the amount
of L20,000,000 relating to the disposal by Enodis plc of
Magnet Limited and various other of its Subsidiaries;
(vii) loans made as non-Cash Consideration pursuant to a disposal
permitted under Clause 23.6 (Disposals);
(viii) loans made by members of the Group to other members of the Group
which are not Obligors subject (where the lenders are Obligors)
to a maximum aggregate principal amount at any time outstanding
of L5,000,000; 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 L3,000,000.
(c) The Company shall procure that within one month of Closing 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 Closing which evidences that the
amounts referred to in paragraphs (b)(viii) and (ix) above were not
exceeded at Closing 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.
23.26 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;
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(ii) issue any shares which by their terms are redeemable; or
(iii) (other than by the Company to Enodis plc) issue any share capital
to any person.
(b) Paragraph (a) does not apply to:
(i) any transaction expressly allowed under the Finance Documents; or
(ii) 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 favour 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 favour of the Lenders).
23.27 DIVIDENDS AND PAYMENTS
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; or
(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 its
shareholders, or
(d) make or allow any member of the Group to make any other payment
whatsoever to Enodis plc other than payments to be made on
Closing which are provided for in the Structure Memorandum.
Provided that the foregoing will not restrict:
(A) any payment of Required Payments;
(B) any payment of any Permitted Distribution where (but
only where) no Material Event of Default has occurred
and is continuing;
(C) any payment of any Permitted Additional Dividend
where (but only where) no Default has occurred and is
continuing;
(D) any payment of any Subordinated Loan Servicing
Payments where (but only where) (i) no Default under
Clause 24.2 (Non-payment) has occurred and is
continuing, and (ii) no Event of Default under any of
Clauses 24.6 (Insolvency), 24.7 (Insolvency
proceedings) or 24.8 (United States Bankruptcy Laws)
has occurred and is continuing, and (iii) no Loan
Payment Blocking Period (as defined in the
Subordination Agreement) is then in effect,
in each case at the date of declaration or payment.
For the purposes of this Clause 23.27 only, "MATERIAL EVENT OF DEFAULT"
means:
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(a) any Event of Default falling within Clauses 24.2 (Non-payment),
24.3(a) (Breach of other obligations), 24.6 (Insolvency), 24.7
(Insolvency Proceedings), 24.8 (United States Bankruptcy Laws),
24.9 (Creditors' process), 24.11 (Bonds), 24.15 (Material Adverse
change), 24.17 (Bridge Default);
(b) any Event of Default not referred to in sub-paragraph (a) above
which, in the reasonable opinion of the Majority Lenders is
reasonably likely to have a Material Adverse Effect; and
(c) any Event of Default in respect of which a notice has been served
pursuant to Clause 24.18 (Acceleration).
23.28 BRIDGE LOANS, BONDS AND EXCHANGE NOTES
(a) No Obligor will, and each Obligor will procure that no member of the Plc
Group will:
(i) pay, prepay, or pay any amount in respect of, or discharge or
defease any principal, interest or other amount which may be or
become payable by Enodis plc under or in respect of any of the
Bridge Facility Documents or the Bond Documents;
(ii) purchase, redeem, subparticipate in, guarantee, secure or
otherwise assume any interest in or liability in respect of the
Bridge Loans, the Bonds, the Exchange Notes or the Bridge
Exchange Notes, or any amount which may be or become payable
under any of the Bond Documents and/or the Bridge Facility
Documents;
Provided that the Company shall be entitled to make (i) Subordinated
Loan Servicing Payments as and when due in accordance with the terms of
the Subordinated Intercompany Loan Agreement as and to the extent
permitted under Clauses 23.27 and 23.28(c) (i) and the Subordination
Agreement, and (ii) dividends and other payments referred to in Clause
23.27 as and to the extent permitted under Clause 23.27 and provided
further that, subject to the terms of the Subordination Agreement,
Enodis plc shall be entitled to apply all Subordinated Loan Servicing
Payments in payment of the corresponding sums due and payable under the
Bond Documents or Bridge Facility Documents, as the case may be.
(b) The Company shall procure that:
(i) the gross proceeds of the Bridge Loans shall be lent to the
Company by Enodis plc upon the terms of the Subordinated
Intercompany Loan Agreement and in accordance with the Funds Flow
Statement forthwith upon drawdown of the Bridge Loans by Enodis
plc;
(ii) if Enodis plc issues any bonds ("BONDS") as contemplated by the
Bond Documents and the Structure Memorandum:
(A) such Bonds shall be unsecured;
(B) neither the Bond Documents nor the Bridge Facility
Documents shall benefit from any Security Interest from or
over all or any part of the assets of any member of the
Group or any guarantee, indemnity or other assurance
against loss issued by any member of the Group;
(C) the maturity date of the Bonds and any Exchange Notes shall
be at least 12 months after the Facility B Final Maturity
Date; and
97
(D) the net proceeds received by Enodis plc shall be applied in
prepayment of the Bridge Loans and, subject thereto, in
connection with Clause 11.6 (Mandatory prepayment - Bonds,
Equity and Bridge Facility) (if applicable).
(c) The Company shall ensure that:
(i) Subordinated Loan Servicing Payments shall only be made when due
and payable in the amounts and otherwise as provided for in the
Subordinated Intercompany Loan Agreement and as permitted by the
Subordination Agreement;
(ii) Permitted Distributions shall only be made in amounts
corresponding to those items identified in the definition of
Permitted Distributions which have become due and payable or will
during the ensuing 15 days become due and payable by the Company;
and
(iii) Required Payments shall only be made in amounts corresponding to
amounts which have become due and payable or will during the
ensuing 15 days become due and payable by the Company under the
Hive-Down Documents.
(d) The Company shall procure that:
(i) the terms to be contained in any Bond Documents, as set out in
the offering circular, shall be no more onerous for the Company
than the terms of the Bridge Exchange Notes;
(ii) No Holding Company of the Company will issue any Bonds, Bridge
Exchange Notes or Bond Exchange Notes or incur any Financial
Indebtedness, other than:
(A) Enodis plc pursuant to the Bond Documents and the Bridge
Facility Documents;
(B) the Bridge Loans at drawdown shall not exceed
L150,000,000 in the aggregate and the face amount of
the Bonds and Bond Exchange Notes issued shall not exceed
L150,000,000;
(C) Enodis plc and Topco pursuant to any refinancing of the
Bond Documents on terms materially no more onerous than the
Bonds or Bond Exchange Notes and to the extent such
refinancing does not exceed the principal amount thereof
outstanding as at the date of such refinancing;
(D) Enodis plc and Topco with respect to amounts received by
them as loans pursuant to Clause 23.27 (Dividends and
payments); and
(E) Enodis plc and Topco with respect to any Financial
Indebtedness incurred to each other.
(iii) Enodis plc or Topco, as applicable, within 15 days of receipt,
shall:
(A) apply all Permitted Distributions received by it towards
payment of the amounts due for payment by Enodis plc or
Topco in respect of which those Permitted Distributions
were made;
98
(B) apply all Required Payments (to the extent not paid direct
by the Company to the ultimate creditor of Enodis plc or
Topco) in payment of (or so as to defray payments already
made of) the amounts in respect of which such Required
Payments were made; and
(C) apply all Subordinated Loan Servicing Payments in payment
of the corresponding sums due and payable under the Bond
Documents or Bridge Facility Documents, as the case may be.
23.29 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;
(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 licence arrangements in respect of those rights.
(b) Paragraph (a)(iv) does not apply to:
(i) licence arrangements entered into with members of the Group for
so long as they remain members of the Group; or
(ii) licence arrangements entered into on normal commercial terms and
in the ordinary course of its business.
23.30 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
99
(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 L10,000,000.
23.31 REGISTERED/PRINCIPAL OFFICE
Each Obligor 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.
23.32 VAT REPRESENTATIVE MEMBER
(a) Enodis Group Limited will make and will procure that Enodis plc makes
all necessary applications to HM Customs & Excise for Enodis Group
Limited to be substituted for Enodis plc as the representative member of
the Group for VAT purposes and use all reasonable endeavours to receive
acknowledgement thereof from HM Customs & Excise.
(b) No Obligor will take any action to remove Enodis Group Limited as the
representative member of the Group for VAT purposes.
(c) The Company will and will procure that Enodis plc will take all
necessary steps to promptly remove Enodis plc from the VAT group of
which the Group forms part.
23.33 PERFECTION OF SECURITY
Each Obligor will, and procure that each member of the Group will, use
its best endeavours to take such steps as are reasonably necessary to
perfect each Security Document at Closing and, in any event, to perfect
such Security Documents promptly thereafter and within any prescribed
perfection periods including the serving of notices required under each
Security Document, the delivery of title documentation and the making of
all filings and registrations.
23.34 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.
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"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 any Obligor or any ERISA Affiliate; or
(b) to which any Obligor or any ERISA Affiliate is required to make
any payment or contribution.
"REPORTABLE EVENT"
means:
(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) No Obligor may:
(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) No Obligor may 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) Each Obligor 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) Each Obligor 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.
101
(f) Each of the Obligors 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.
23.35 STRUCTURE MEMORANDUM
If any significant reorganisational 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.
23.36 FUNDS FLOW STATEMENT
The Company will and will procure that Enodis plc will make all payments
in such amounts, at such times and in such a manner as provided for in
the Funds Flow Statement.
23.37 CAPITALISATION OF THE SUBORDINATED INTERCOMPANY LOAN
Promptly after the payment in full of the Bridge Facility, the Company
will and will procure that Enodis plc will, pursuant to clause 3.2 of
the Subordinated Intercompany Loan Agreement or otherwise, settle an
amount of the Subordinated Intercompany Loan by the issue of ordinary
shares of the Company to Enodis plc so that the amount of the
Subordinated Intercompany Loan then outstanding will not exceed the
aggregate face amount of the Bonds.
23.38 EQUITY OFFERING - SUBSCRIPTION IN THE COMPANY
Promptly following (i) repayment in full of the Bridge Facility in
accordance with the terms of the Bridge Facility Agreement, and (ii)
receipt by Enodis plc of the proceeds of the Equity Offering, the
Company will procure that Enodis plc will use all cash held by Enodis
plc after payment of all costs and expenses incurred by Enodis plc in
connection with the matters contemplated by the Structure Memorandum up
to the amount therefor reflected in the Funds Flow Statement to
subscribe for ordinary shares in the Company of the same class as those
in issue at the date hereof.
24. DEFAULT
24.1 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 an Obligor or a Material Subsidiary; and
"PERMITTED TRANSACTION" means:
(i) an intra-Group re-organisation or voluntary winding-up of a
Material Subsidiary (other than a Borrower) on a solvent basis
which is not reasonably likely to have a Material Adverse Effect;
(ii) Topco becoming the Holding Company of Enodis plc pursuant to a
scheme of arrangement; or
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(iii) any other transaction agreed by the Majority Lenders.
24.2 NON-PAYMENT
An Obligor does not pay on the due date any amount payable by it under
the Finance Documents in the manner required under the 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.
24.3 BREACH OF OTHER OBLIGATIONS
(a) The Company does not comply with any term of any of Clauses 22
(Financial covenants), 23.5 (Negative pledge) 23.6 (Disposals), 23.26
(Share capital) 23.27 (Dividends and payments) and 23.28 (Bridge Loans,
Bonds and Exchange Notes); or
(b) an Obligor does not comply with any other term of the 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 Obligor becoming aware of the
non-compliance.
24.4 MISREPRESENTATION
A representation made or repeated by an Obligor in any Finance Document
or in any document delivered by or on behalf of any Obligor under any
Finance Document is incorrect in any material respect when made or
deemed to be repeated.
24.5 CROSS-DEFAULT
Any of the following occurs in respect of a member of the Plc 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 L5,000,000 or its
equivalent.
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24.6 INSOLVENCY
Any of the following occurs in respect of a Material Group Member or
Enodis plc:
(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.
24.7 INSOLVENCY PROCEEDINGS
(a) Except as provided below, any of the following occurs in respect of a
Material Group Member or Enodis plc:
(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:
(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.
24.8 UNITED STATES BANKRUPTCY LAWS
(a) In this Subclause:
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"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 organised 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.
24.9 CREDITORS' PROCESS
Any attachment, sequestration, distress, execution or analogous event
affects any asset(s) of a Material Group Member or Enodis plc, having an
aggregate value of at least L5,000,000, and is not discharged within
forty five days.
24.10 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.
24.11 BONDS
An event of default (howsoever described) occurs under any of the Bond
Documents.
24.12 EFFECTIVENESS OF TRANSACTION DOCUMENTS
(a) Any Transaction Document ceases to be in full force and effect.
(b) It is or becomes unlawful for any Obligor to perform any of its material
obligations under the Transaction Documents.
(c) Any Transaction Document is alleged by an Obligor to be ineffective for
any reason.
(d) A Security Document does not create the security it purports to create
in a manner and to an extent reasonably considered by the Majority
Lenders to be materially adverse to the interests of the Lenders under
the Finance Documents.
(e) An Obligor repudiates a Transaction Document or evidences an intention
to repudiate a Transaction Document.
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24.13 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.
24.14 PRIORITY DEED AND SUBORDINATION AGREEMENT
(a) (i) Any member of the Group fails to comply with any of its
obligations under the Priority Deed or Enodis plc or the Company,
fails to comply with any of its obligations under the
Subordination Agreement; or
(ii) a representation or warranty given by that party in the Priority
Deed or 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;
(b) any other event occurs which is reasonably likely to have a material
adverse effect on the rights of the Finance Parties under the Priority
Deed or the Subordination Agreement;
(c) the subordination created or purported to be created by the Priority
Deed or the Subordination Agreement is not effective or is alleged by a
party to it (other than a Finance Party) to be ineffective; or
(d) any party to the Priority Deed (other than a Finance Party or Obligor)
repudiates the Priority Deed or the Subordination Agreement or evidences
an intention to repudiate it.
24.15 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.
24.16 AUDIT QUALIFICATION
The Auditors qualify their report on any audited consolidated accounts
of Enodis plc in a manner which is reasonably likely to have a Material
Adverse Effect.
24.17 BRIDGE DEFAULT
Any Event of Default (as defined in the Bridge Facility Agreement)
occurs under the Bridge Facility Agreement.
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24.18 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
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.
24.19 IMMEDIATE ACCELERATION FOR U.S. BORROWERS
If an Event of Default is outstanding under Subclause 24.8 (United
States Bankruptcy Laws) then:
(a) all of the Credits, together with accrued interest, borrowed by
that U.S. Borrower under the Finance Documents will be
immediately and automatically due and payable; and
(b) the U.S. Borrower will not be entitled to request, and the
Lenders will not be obliged to participate in, any Credit
requested by that U.S. Borrower prior to the relevant event.
For the avoidance of any doubt, none of the Finance Parties need take
any action or to provide any notice whether to the Company, any other
Obligor or any person in order for this paragraph (b) to become
effective in accordance with its terms and each Obligor expressly and
irrevocably waives any requirement for any such action or notification.
25. SECURITY
25.1 FACILITY AGENT AS TRUSTEE
Unless expressly provided to the contrary, the Facility Agent holds any
security created by a Security Document on trust for the Finance
Parties.
25.2 RESPONSIBILITY
The Facility Agent is not liable or responsible to any other Finance
Party for:
(a) any failure in perfecting or protecting the security created by
any Security Document;
(b) any other action taken or not taken by it in connection with any
Security Document,
unless directly caused by its gross negligence or wilful misconduct.
25.3 TITLE
The Facility Agent may accept, without enquiry, the title (if any) an
Obligor may have to any asset over which security is intended to be
created by any Security Document.
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25.4 POSSESSION OF DOCUMENTS
The Facility Agent is not obliged to hold in its own possession any
Security Document, title deed or other document in connection with any
asset over which security is intended to be created by a Security
Document.
25.5 INVESTMENTS
Except as otherwise provided in any Security Document, all moneys
received by the Facility Agent under a Security Document may be invested
in the name of, or under the control of, the Facility Agent in any
investments selected by the Facility Agent. Additionally, those moneys
may be placed on deposit in the name of, or under the control of, the
Facility Agent at any bank or institution (including itself) and upon
such terms as it may think fit.
25.6 APPROVAL
Each Finance Party confirms its approval of each Security Document.
25.7 RELEASE OF SECURITY
(a) If:
(i) a Guarantor ceases to be a member of the Group; or
(ii) a Guarantor is released from all its obligations under the
Finance Documents,
in a manner allowed by this Agreement, any security created by that
Guarantor over its assets under the Security Documents will be released.
(b) If a disposal of any asset subject to security created by a Security
Document is made to a person (which is and will remain) outside the
Group in the following circumstances:
(i) the Majority Lenders agree to the disposal;
(ii) the disposal is allowed by the terms of the Finance Documents and
will not result or could not reasonably be expected to result in
any breach of any term of any Finance Document;
(iii) the disposal is being made at the request of the Facility Agent
in circumstances where any security created by the Security
Documents has become enforceable; or
(iv) the disposal is being effected by enforcement of a Security
Document,
the asset being disposed of will be released from any security over it
created by a Security Document provided that if the disposal falls
within Clause 23.6(b)(iii) the Facility Agent shall be satisfied that
security equivalent to that granted over such asset immediately prior to
its release from the Security Documents has been, or will, immediately
upon completion of the disposal, be granted to it by the transferee of
such assets. However, the proceeds of any disposal (or an amount
corresponding to them) must be applied in accordance with the
requirements of the Finance Documents (if any).
(c) If the Facility Agent is satisfied that a release is allowed under this
Subclause, the Facility Agent must execute (at the request and expense
of the relevant Obligor) any document which
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is reasonably required to achieve that release. Each other Finance Party
irrevocably authorises the Facility Agent to execute any such document.
25.8 CO-SECURITY AGENT
(a) The Facility Agent may appoint a separate security agent or a
co-security agent in any jurisdiction outside England and Wales:
(i) if the Facility Agent considers that without the appointment the
interests of the Lenders under the Finance Documents will be
materially and adversely affected;
(ii) for the purpose of complying with any law, regulation or other
condition in any jurisdiction; or
(iii) for the purpose of obtaining or enforcing a judgment or enforcing
any Finance Document in any jurisdiction.
(b) Any appointment under this Subclause will only be effective if the
security agent or co-security agent 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 if it were the
Facility Agent.
(c) The Facility Agent may remove any security agent or co-security agent
appointed by it and may appoint a new security agent or co-security
agent in its place.
(d) The Company must pay to the Facility Agent any reasonable remuneration
paid by the Facility Agent to any security agent or co-security agent
appointed by it, together with any related costs and expenses properly
incurred by the security agent or co-security agent.
25.9 FACILITY AGENT AS JOINT AND SEVERAL CREDITOR
(a) Each of the Obligors and each Finance Party agree that the Facility
Agent shall be the joint and several creditor together with each Finance
Party of each and every present or future obligation of any Obligor
towards each Finance Party under or in connection with any Finance
Document (other than the Bilateral Documents) and that accordingly the
Facility Agent will have its own independent right to demand performance
by the relevant Obligor of these obligations. However, any discharge of
an Obligor of any of these obligations to the relevant Facility Agent or
a Finance Party shall to the same extent discharge that Obligor
vis-a-vis the other and a Finance Party and the Facility Agent shall not
by virtue of this Clause 25.9 (Facility Agent as joint and several
creditor) be entitled to pursue the Obligor concurrently for the same
obligation.
(b) Without limiting or affecting the Facility Agent's rights against any
Obligor (whether under this Clause 25.9 (Facility Agent as joint and
several creditor) or under any other provision of any Finance Document,
the Facility Agent agrees with each Finance Party (on a several and
divided basis) that, subject to what is set out in the next sentence, it
will only exercise its rights as a joint and several creditor together
with a Finance Party, with the consent of that Finance Party. However,
for the avoidance of doubt, nothing in the previous sentence shall in
any way limit the Facility Agent's right to act in order to protect or
preserve rights under any Security Document or to enforce any security
created thereby, as contemplated by the provisions of this Agreement,
the Priority Deed and/or the relevant Security Document (or to perform
any act reasonably incidental to any of the foregoing).
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(c) Subject to the provisions of this Clause 25.9 (Facility Agent as joint
and several creditor), the Facility Agent holds any security created by
any Security Document in its own name and the Facility Agent shall have
full and unrestricted title to and authority in respect of that
security, subject always to the terms of the Finance Documents.
(d) For the avoidance of doubt, references in this Clause 25.9 to the
Facility Agent include references to it in its capacity as agent for the
Finance Parties under this Agreement and as holder of the security
created by the Security Documents as referred to above.
(e) With respect to any Security Document governed by Dutch law and for
Dutch translation purposes only, joint and several creditor shall be
translated as HOOFDELIJK SCHULDEISER.
26. ADMINISTRATIVE PARTIES
26.1 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 Finance Documents.
(b) Each Finance Party irrevocably authorises the Facility Agent to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically given to it under the Finance
Documents, together with any other incidental rights, powers and
discretions; and
(ii) execute each Finance Document expressed to be executed by the
Facility Agent.
(c) The Facility Agent has only those duties which are expressly specified
in the Finance Documents. Those duties are solely of a mechanical and
administrative nature.
26.2 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, no Arranger
has any obligations of any kind to any other Party in connection with
any Finance Document.
26.3 NO FIDUCIARY DUTIES
Except as specifically provided in a 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.
26.4 INDIVIDUAL POSITION OF AN ADMINISTRATIVE PARTY
(a) If it is also a Lender, each Administrative Party has the same rights
and powers under the 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 any Obligor or its related entities
(including acting as an agent or a trustee for any other
financing); and
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(ii) retain any profits or remuneration it receives under the Finance
Documents or in relation to any other business it carries on with
any Obligor or its related entities.
26.5 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;
(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 Finance Documents through its personnel and agents.
26.6 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 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 authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings in connection with any 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.
26.7 RESPONSIBILITY
(a) No Administrative Party is responsible to any other Finance Party for
the adequacy, accuracy or completeness of:
(i) any Finance Document or any other document; or
(ii) any statement or information (whether written or oral) made in or
supplied in connection with any Finance Document.
(b) Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any 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
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); and
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(ii) has not relied exclusively on any information provided to it by
any Administrative Party in connection with any Finance Document.
26.8 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 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 Finance Document. Any
officer, employee or agent of the Facility Agent may rely on this
Subclause and enforce its terms under the Contracts (Rights of Third
Parties) Xxx 0000.
26.9 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.
26.10 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 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:
(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 Finance Documents (including any
information relating to the financial condition or affairs of any
Obligor 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 Finance Document, to request any certificate or other
document from any Obligor.
(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
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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 Finance Documents.
(f) Each Obligor irrevocably authorises 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.
26.11 INDEMNITIES
(a) Without limiting the liability of any Obligor under the 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
Finance Document but unpaid.
26.12 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.
26.13 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
Finance Documents.
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(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 Finance Documents while it was
the Facility Agent, and, subject to paragraph (f) above, it will have no
further obligations under any Finance Document.
(h) The Majority Lenders may, by notice to the Facility Agent, require it to
resign under paragraph (b) above.
26.14 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) 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.
26.15 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 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 Finance Documents.
26.16 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.
27. EVIDENCE AND CALCULATIONS
27.1 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.
27.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under the Finance Documents will be, in the absence of manifest
error, conclusive evidence of the matters to which it relates.
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27.3 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.
28. FEES
28.1 ARRANGEMENT FEE
The Company must pay to the Arrangers for their own account an
arrangement fee in the manner agreed in the Fee Letter between the
Arrangers and the Company.
28.2 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 between the Facility Agent
and the Company.
28.3 COMMITMENT FEE
(a) The Company must pay a commitment fee computed at the rate of 50 per
cent. of the applicable Margin per annum (subject to a maximum of 0.875
per cent. per annum) on the undrawn, uncancelled amount of the total of
each Lender's Revolving Credit Commitment during the period from and
including the date of this Agreement to and including the expiry of the
relevant Availability Period.
(b) Accrued commitment fee is payable quarterly in arrear. Accrued
commitment fee is also payable to the Facility Agent for a Lender on the
date its Revolving Credit Commitment is cancelled in full.
29. INDEMNITIES AND BREAK COSTS
29.1 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 an Obligor's
liability under the 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 Finance Document.
(b) Unless otherwise required by law, each Obligor waives any right it may
have in any jurisdiction to pay any amount under the Finance Documents
in a currency other than that in which it is expressed to be payable.
29.2 ENVIRONMENTAL INDEMNITY
Each Obligor agrees to indemnify each Finance Party, each receiver
appointed under any Security Document and their respective officers,
employees, agents and delegates (each an
115
"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 any Obligor, 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 Finance Documents or
any of them had not been executed by that Finance Party.
29.3 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 an Obligor to pay any amount due under a Finance
Document on its due date, including any resulting from any
distribution or redistribution of any amount among the Banks
under this Agreement;
(iii) (other than by reason of negligence or default by that Finance
Party) a Loan not being made or a Letter of Credit not being
issued after a Request has been delivered for that Credit; or
(iv) a Credit (or part of a Credit) 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 utilised to fund any amount
payable under any Finance Document, any amount repaid or prepaid or any
Credit.
(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
(ii) acting or relying on any notice which the Facility Agent
reasonably believes to be genuine, correct and appropriately
authorised.
29.4 BREAK COSTS
(a) Each Borrower must pay to each Bank its Break Costs.
(b) Break Costs are the amount (if any) determined by the relevant Lender by
which:
(i) the interest (excluding the Margin) 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
116
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 Borrower
details of the amount of any Break Costs claimed by it under this
Subclause.
30. EXPENSES
30.1 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 Finance Documents.
30.2 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
Finance Document (other than a Transfer Certificate) executed
after the date of this Agreement;
(b) any amendment, waiver or consent requested by or on behalf of an
Obligor 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 Finance Document.
30.3 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 Finance
Document.
31. AMENDMENTS AND WAIVERS
31.1 PROCEDURE
(a) Except as provided in this Clause, any term of the Finance Documents may
be amended or waived with the agreement of the Company, on behalf of
each Obligor, 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.
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31.2 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) the definition of "MAJORITY LENDERS" in Clause 1.1 (Definitions);
(ii) an extension of the date of payment of any amount to a Lender
under the Finance Documents;
(iii) a reduction in the Margin (other than in accordance with Clause
12.2 (Margin)) or a reduction in the amount of any payment of
principal, interest, fee or other amount payable to a Lender
under the Finance Documents;
(iv) an increase in, or an extension of, a Commitment;
(v) a release of an Obligor (other than in respect of the Company in
its capacity as Guarantor in accordance with Clause 25.7 (Release
of security));
(vi) a term of a Finance Document which expressly requires the consent
of each Lender;
(vii) the right of a Lender to assign or transfer its rights or
obligations under the Finance Documents;
(viii) the ranking or subordination provided for in the Priority Deed
and/or the Subordination Agreement;
(ix) unless provided for in this Agreement (including, without
limitation, due to a disposal permitted under this Agreement), a
release of security over any shares or a release of security over
any assets worth L2,500,000 or its equivalent or more, granted
under the Security Documents; or
(x) 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.
31.3 CHANGE OF CURRENCY
If a change in any currency of a country occurs (including where there
is more than one currency or currency unit recognised at the same time
as the lawful currency of a country), the 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.
31.4 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the 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.
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Delay in exercising or non-exercise of any right is not a waiver of that
right.
32. CHANGES TO THE PARTIES
32.1 ASSIGNMENTS AND TRANSFERS BY OBLIGORS
No Obligor may assign or transfer any of its rights and obligations
under the Finance Documents without the prior consent of all the
Lenders.
32.2 ASSIGNMENTS AND TRANSFERS BY LENDERS
(a) A Lender (the "EXISTING LENDER") may, subject to the following
provisions of this Subclause and Subclause 7.2 (Assignments and
transfers), at any time assign or transfer (including by way of
novation) any of its rights and obligations under this Agreement to any
other person (the "NEW LENDER"). The Facility Agent, as agent for the
Borrowers, shall maintain a book-entry registration transfer system (the
"REGISTER") for the purpose of all transfers made pursuant to Clause
32.2 or Clause 32.3.
(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 L1,000.
(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 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
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 32.3 or
the satisfaction of the requirements of Clause 32.2(b)(ii) (at which
time the Facility Agent shall be required to register the relevant
transfer on the Register).
(f) Unless the Facility Agent and the New Lender agree otherwise, the New
Lender must accede to the German Law Security Trust Agreement referred
to in Part I of Schedule 2 (Conditions precedent documents) in paragraph
B(n) under the heading "Security Documents" on the date the transfer of
obligations to the New Lender becomes effective.
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32.3 PROCEDURE FOR TRANSFER BY WAY OF NOVATIONS
(a) In this Subclause:
"TRANSFER DATE"
means, for a Transfer Certificate, the later of:
(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 authorises 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;
(ii) the Existing Lender will be released from those obligations and
cease to have those rights; and
(iii) the New Lender will become a party to the Priority Deed as a
Senior Creditor (as defined in the Priority Deed).
32.4 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 Finance Document or any other document; or
(ii) any statement or information (whether written or oral) made in or
supplied in connection with any 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
Finance Documents (including the financial condition and affairs
of each Obligor and its related entities and the nature and
extent
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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 Finance Document.
(c) Nothing in any 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 by reason of the
non-performance by any Obligor of its obligations under any
Finance Document or otherwise.
32.5 COSTS RESULTING FROM CHANGE OF LENDER OR FACILITY OFFICE
If:
(a) a Lender assigns or transfers any of its rights and obligations
under the Finance Documents or changes its Facility Office; and
(b) as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to pay a
Tax Payment or an Increased Cost,
then, the Obligor 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.
32.6 ADDITIONAL OBLIGORS
(a) If the Company wishes one of its Subsidiaries to become an Additional
Obligor, then it may (following consultation with the Facility Agent)
deliver to the Facility Agent the relevant documents and evidence listed
in Part II of Schedule 2 (Conditions precedent documents).
(b) The prior consent of all the Lenders is required if the Additional
Borrower is not a wholly-owned Subsidiary incorporated in the U.K. or
the U.S. and, unless all the Lenders agree otherwise, each Additional
Borrower which is not already a Guarantor must accede to this Agreement
as an Additional Guarantor at the same time it becomes an Additional
Borrower. The Lenders may impose such limitations on the ability of an
Additional Borrower to borrow under any Facility as they deem reasonably
necessary.
(c) The Company must ensure that each wholly-owned Material Subsidiary at
the date of this Agreement is a Party at the date of this Agreement.
(d) The Company must ensure that each Material Subsidiary, other than those
referred to in paragraph (c) above, becomes an Additional Guarantor
within 45 days of the date of the previous financial year end or
financial half-year end on which it is or becomes a Material Subsidiary,
except that no Material Subsidiary which is a joint venture company will
be required to become an Additional Guarantor unless necessary for the
purposes of Clause 22.7 (Guarantor cover).
(e) (i) The Company need only perform its obligations under paragraph
(d) above if it is not unlawful for the relevant Material
Subsidiary to become an Additional Guarantor or it
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would not result in personal liability for that Material
Subsidiary's directors or other management.
(ii) The Company must use reasonable endeavours to avoid any
unlawfulness or personal liability in the circumstances mentioned
in sub-paragraph (i) above. This includes agreeing to a limit on
the amount secured or guaranteed. The Facility Agent may agree to
such a limit if to do so might avoid the relevant unlawfulness or
personal liability.
(f) The relevant Subsidiary will become an Additional Obligor when the
Facility Agent notifies the other Finance Parties and the Company that
it has received all of the documents and evidence referred to in
paragraph (a) above in form and substance satisfactory to it, acting
reasonably. The Facility Agent must give this notification as soon as
reasonably practicable.
(g) Delivery of an Accession Deed, executed by the relevant Subsidiary and
the Company, to the Facility Agent constitutes confirmation by that
Subsidiary and the Company that the Repeating Representations are then
correct.
32.7 SECURITY
(a) Each Obligor must, and must procure that each Material Subsidiary, on
acquiring any asset which:
(i) would not be immediately and effectively charged by the then
existing Security Documents: and
(ii) is of a type which is charged by the then existing Security
Documents,
executes and delivers to the Facility Agent such further or additional
Security Documents in relation to such assets as the Majority Lenders
may reasonably require and in form and substance satisfactory to them.
(b) Each Obligor shall execute and deliver to the Facility Agent such
further or additional Security Documents in such form as the Majority
Lenders shall require pledging the shares in any entity which becomes a
Material Subsidiary after Closing.
(c) Upon the occurrence of a Default which is continuing any and each
Obligor, if so required by the Majority Lenders, shall execute and
deliver to the Facility Agent such further or additional Security
Documents in such form and in relation to such assets as the Majority
Lenders may require, subject in each case to any provisions of law
prohibiting such person from entering into such Security Documents.
(d) (i) The Obligors need only perform their obligations under
paragraphs (a), (b) and (c) above if it is not unlawful for the
relevant person to execute such Security Documents or it would
not result in personal liability for that person's directors or
other management.
(ii) Each Obligor must use reasonable endeavours lawfully to avoid any
unlawfulness or personal liability in the circumstances mentioned
in sub-paragraph (i) above. This includes agreeing to a limit on
the amount secured or guaranteed. The Facility Agent may (but
shall not be obliged to) agree to such a limit if, in its
opinion, to do so might avoid the relevant unlawfulness or
personal liability.
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(e) Each Obligor shall, and shall procure that each other relevant member of
the Group which is its Subsidiary shall, at its own expense execute and
do all such assurances, acts and things as the Facility Agent may
reasonably require for:
(i) perfecting or protecting the security intended to be afforded by
the Security Documents;
(ii) if the Security Documents have become enforceable for
facilitating the realisation of all or any part of the assets
which are subject to the Security Documents and the exercise of
all powers, authorities and discretions vested in the Facility
Agent or in any receiver of all or any part of those assets,
and in particular shall execute all transfers, conveyances, assignments
and releases of that property whether to the Facility Agent or to its
nominees and give all notices, orders and discretions which the Facility
Agent may reasonably think expedient.
(f) On each date that a Security Document is entered into after Closing,
each Obligor shall procure that the documents listed in Part II of
Schedule 2 (Conditions precedent documents) in respect of the Obligor
entering into such Security Document are delivered to the Facility
Agent.
32.8 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.
32.9 SUB-PARTICIPATION
If a Lender sub-participates a proportion of its Commitment or its share
of a Credit to a sub-participant during Syndication (the
"SUB-PARTICIPANT"), and both the Company and the Facility Agent agree,
when such Lender receives a request for instructions from the Facility
Agent it must, if so instructed by the Sub-participant, exercise an
additional vote (in relation to the proportion of its Commitment or its
share of a Credit which has been sub-participated to the
Sub-participant) in accordance with the instructions of the
Sub-participant and such Lender's own vote (in relation to the
proportion of its Commitment or its share of a Credit which has not been
sub-participated) will decrease accordingly.
33. 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 Finance Documents.
However, a Finance Party is entitled to disclose information:
(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;
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(v) to its professional advisers;
(vi) to the extent allowed under paragraph (b) below; or
(vii) with the agreement of the relevant Obligor.
(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 Finance Document; and
(ii) any information which that Finance Party has acquired under or in
connection with any 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.
34. SET-OFF
A Finance Party may set off any matured obligation owed to it by an
Obligor under the Finance Documents (to the extent beneficially owned by
that Finance Party) against any obligation (whether or not matured) owed
by that Finance Party to that Obligor, 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.
35. PRO RATA SHARING
35.1 REDISTRIBUTION
If any amount owing by an Obligor 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").
35.2 EFFECT OF REDISTRIBUTION
(a) The Facility Agent must treat a redistribution as if it were a payment
by the relevant Obligor under this Agreement and distribute it among the
Lenders accordingly.
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(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 relevant
Obligor 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 an Obligor; 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.
35.3 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
relevant Obligor 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.
36. SEVERABILITY
If a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of
any other term of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions
of that or any other term of the Finance Documents.
37. COUNTERPARTS
Each 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 Finance Document.
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38. NOTICES
38.1 IN WRITING
(a) Any communication in connection with a Finance Document must be in
writing and, unless otherwise stated, may be given in person, by post,
telex, fax or any electronic communication approved by the Facility
Agent.
(b) For the purpose of the 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 Finance Document must be given in writing.
38.2 CONTACT DETAILS
(a) Except as provided below, the contact details of each Party for all
communications in connection with the 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: Xxxxxxxxxx Xxxxx
00-00 Xxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Fax number: 000 0000 0000
Attention: Xxxx Xxxxxxx
(c) The contact details of the Facility Agent for this purpose are:
Address: 0xx Xxxxx
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax number: 000 0000 0000
Attention: Xxxxxx Xxxxxxx, Loans 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.
38.3 EFFECTIVENESS
(a) Except as provided below, any communication in connection with a Finance
Document will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
(ii) if posted, five Business Days after being deposited in the post,
postage prepaid, in a correctly addressed envelope;
126
(iii) if by telex, when despatched, 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) if 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.
38.4 OBLIGORS
(a) All communications under the Finance Documents to or from an Obligor
must be sent through the Facility Agent.
(b) All communications under the Finance Documents to or from an Obligor
(other than the Company) must be sent through the Company.
(c) Each Obligor (other than the Company) irrevocably appoints the Company
to act as its agent:
(i) to give and receive all communications under the Finance
Documents; and
(ii) to sign all documents under or in connection with the Finance
Documents.
(d) Any communication given to the Company in connection with a Finance
Document will be deemed to have been given also to the other Obligors.
(e) The Facility Agent may assume that any communication made by the
Company is made with the consent of each other Obligor.
39. LANGUAGE
(a) Any notice given in connection with a Finance Document must be in
English.
(b) Any other document provided in connection with a 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.
40. GOVERNING LAW
This Agreement is governed by English law.
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41. ENFORCEMENT
41.1 JURISDICTION
(a) The English courts have exclusive jurisdiction to settle any dispute in
connection with any Finance Document.
(b) Notwithstanding paragraph (a) above, any New York State court or Federal
court sitting in New York City also has jurisdiction to settle any
dispute in connection with any Finance Document.
(c) The English and New York courts are the most appropriate and convenient
courts to settle any such dispute.
(d) This Clause is for the benefit of the Finance Parties only. To the
extent allowed by law, a Finance Party may take:
(i) proceedings in any other court; and
(ii) concurrent proceedings in any number of jurisdictions.
41.2 SERVICE OF PROCESS
(a) Each Obligor not incorporated in England and Wales irrevocably appoints
the Company as its agent under the Finance Documents for service of
process in any proceedings before the English courts The Company accepts
this appointment.
(b) Each Obligor not incorporated in New York State irrevocably appoints
Shack Xxxxxx Xxxx Xxxxxxxx & Xxxxxxx P.C. of 000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000 (Attention: Xxxxxx X. Xxxxxxxx) as its agent for service of
process in any proceedings before any New York State courts.
(c) If any person appointed as process agent is unable for any reason to act
as agent for service of process, the Company (on behalf of all the
Obligors) must immediately appoint another agent on terms acceptable to
the Facility Agent. Failing this, the Facility Agent may appoint another
agent for this purpose.
(d) Each Obligor agrees that failure by a process agent to notify it of any
process will not invalidate the relevant proceedings.
(e) This Clause does not affect any other method of service allowed by law.
41.3 WAIVER OF IMMUNITY
Each Obligor irrevocably and unconditionally:
(a) agrees not to claim any immunity from proceedings brought by a
Finance Party against it in relation to a 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
128
(c) waives all rights of immunity in respect of it or its assets.
41.4 WAIVER OF TRIAL BY JURY
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION IN CONNECTION WITH ANY FINANCE DOCUMENT OR ANY
TRANSACTION CONTEMPLATED BY ANY FINANCE DOCUMENT. THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO TRIAL BY COURT.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
ORIGINAL PARTIES
NAME OF ORIGINAL BORROWER COUNTRY/STATE OF REGISTRATION NUMBER
INCORPORATION/ORGANISATION (OR EQUIVALENT, IF ANY)
Enodis Holdings Limited United Kingdom 4330209
Enodis Group Limited United Kingdom 4330202
Enodis Corporation US - Delaware
Xxxxx Industrial Corporation US -Michigan
NAME OF ORIGINAL GUARANTOR COUNTRY/STATE OF REGISTRATION NUMBER (OR
INCORPORATION/ORGANISATION EQUIVALENT, IF ANY)
Enodis Holdings Limited United Kingdom 4330209
Enodis Group Limited United Kingdom 4330202
Xxxxxxx U.K. Limited United Kingdom 2625278
Xxxxxxxxx-Charter Residential Limited United Kingdom 494545
Enodis Property Group Limited United Kingdom 2629464
Enodis Investments Limited United Kingdom 455541
Enodis Property Developments Limited United Kingdom 493522
Enodis UK Limited United Kingdom 1037372
Merrychef Limited United Kingdom 487712
Viscount Catering Limited United Kingdom 2656967
Whitlenge Drink Equipment Limited United Kingdom 1271570
Xxxxxxxxx Bristar (Investments) United Kingdom 2505998
Limited
Xxxxxxxxx Bristar Limited United Kingdom 1031367
Xxxxxxxxx Holdings Limited United Kingdom 2629465
130
NAME OF ORIGINAL BORROWER COUNTRY/STATE OF REGISTRATION NUMBER (OR
INCORPORATION/ORGANISATION EQUIVALENT, IF ANY)
Xxxxxxxxx Industrial Holdings Limited United Kingdom 2887689
Xxxxxxxxx Industries Limited United Kingdom 1850857
Xxxxxxxxx International Limited United Kingdom 2992272
Convotherm Limited United Kingdom 1172730
Ecclesfield Properties Limited Xxxxxx Xxxxxxx 0000000
Xxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx 1680157
Homark Holdings Limited United Kingdom 2711165
XX Xxxxxx (Mincing Lane) Limited United Kingdom 704098
Kitchen Ventilation Services Limited United Kingdom 540556
Meliora Spectare Limited United Kingdom 2845804
Merrychef Holdings Limited United Kingdom 3274972
S&W Xxxxxxxxx Limited United Kingdom 1803796
Saw Technologies Limited United Kingdom 3195830
Scotsman Beverage Systems Limited United Kingdom 2884087
Steamhammer Limited United Kingdom 1211110
Temp-Rite International Limited United Kingdom 1422689
The Homark Group Limited United Kingdom 763384
Vent Master (Europe) Limited United Kingdom 2099311
Whitlenge Acquisition Limited United Kingdom 2669979
Mile High Equipment Company US - Colorado
Xxxxxxx Bros., Inc. US - Delaware
Xxxxxxxxx General Partnership US - Delaware
Xxxxxxxxx Inc. US - Delaware
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NAME OF ORIGINAL BORROWER COUNTRY/STATE OF REGISTRATION NUMBER (OR
INCORPORATION/ORGANISATION EQUIVALENT, IF ANY)
Cleveland Range, Inc. US - Delaware
DFC Holding Corporation US - Delaware
Enodis Corporation US - Delaware
Enodis Technology Center, Inc. US - Delaware
Xxxxxxx MSC Inc. US - Delaware
Xxxxx Business Trust US - Delaware
Xxxxx Holdings Inc. US - Delaware
Merco/Savory, Inc. US - Delaware
Nashville Holding Company US - Delaware
Prolon, Inc. US - Delaware
Scotsman Industries, Inc. US - Delaware
Scotsman Group Inc. US - Delaware
The Delfield Company US - Delaware
Welbilt Holding Company US - Delaware
Welbilt Walk-Ins, LP US - Delaware
Lincoln Foodservice Products, Inc. US - Indiana
Frymaster L.L.C. US - Louisiana
Xxxxx CNI, Inc. US - Michigan
Xxxxx Industrial Corporation US - Michigan
Westran Corporation US - Michigan
Garland Commercial Industries, Inc. US - New York
Aladdin Temp-Rite LLC US - Tennessee
Xxxxxxx Xxxxxxx Industries, Inc. US - Texas
Aladdin Temp-Rite Canada, Inc. Canada - Ontario 1316717
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NAME OF ORIGINAL BORROWER COUNTRY/STATE OF REGISTRATION NUMBER (OR
INCORPORATION/ORGANISATION EQUIVALENT, IF ANY)
Cleveland Range Ltd. Canada - Ontario 573749
Garland Commercial Ranges Limited Canada - Ontario 812150
Xxxxxxxxxx-Xxxxxxxxxxxxx XxxX Xxxxxxx XXX 00000
Enodis Deutschland GmbH Germany HRB 4452
Hartek Beverage Handling GmbH Germany HRB 1361
Temp-Rite International Gesellschaft Germany HRB 5698
mit beschrankter Haftung
Temp-Rite International Holdings GmbH Germany HRB 17237
Glenluce Limited The Isle of Man
Beleggingsmaatschappij Interrub B.V. The Netherlands 33286045
Boek-en Offsetdrukkerij Kuyte B.V. The Netherlands 23087166
Enodis Nederland B.V. The Netherlands 27116495
X. Xxxxxxxx Beheer B.V. The Netherlands 38016453
X. Xxxxxxxx Exploitatie B.V. The Netherlands 38016576
Temp-Rite International Holdings B.V. The Netherlands 20084858
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NAME OF ORIGINAL LENDER REVOLVING CREDIT FACILITY A FACILITY B
COMMITMENTS COMMITMENTS COMMITMENTS
US$ US$ US$
Credit Suisse First Boston 42,500,000 150,000,000 35,000,000
National Westminster Bank Plc 42,500,000 150,000,000 35,000,000
----------- ----------- -----------
TOTAL COMMITMENTS 85,000,000 300,000,000 70,000,000
----------- ----------- -----------
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SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST REQUEST
ORIGINAL OBLIGORS
1. A copy of the constitutional documents of each Original Obligor and
Enodis plc or confirmation that its constitutional documents have not
been changed or altered since those delivered to the Facility Agent in
relation to the Existing Facility Agreement.
2. A copy of a resolution of the board of directors of each Original
Obligor and Enodis plc (or, in the case of Enodis plc, a committee of
its board of directors) (other than each Original Obligor incorporated
in Canada or Germany) approving the terms of, and the transactions
contemplated by, this Agreement.
3. If applicable, a copy of a resolution of the board of directors of
Enodis plc establishing the committee referred to in paragraph 2 above.
4. In the case of each Original Guarantor incorporated in Canada, The
Netherlands or Germany, a copy of a unanimous resolution signed by each
shareholder of that Original Guarantor approving the terms of, and the
transactions contemplated by, this Agreement.
5. A specimen of the signature of each person authorised on behalf of an
Original Obligor and Enodis plc to execute or witness the execution of
any Finance Document or to sign or send any document or notice in
connection with any Finance Document.
6. In the case of an Original Guarantor incorporated in the U.K. and the
Isle of Man, a copy of a resolution signed by all of the holders of the
issued or allotted shares in each Original Guarantor approving the terms
of, and the transactions contemplated by, this Agreement.
7. If applicable, a copy of a resolution of the board of directors of each
corporate shareholder in each Original Guarantor approving the terms of
the resolution referred to in paragraph 6 above.
8. A certificate of an authorised signatory of the Company and/or each
Obligor (and, with respect to paragraph (b) below, Enodis plc):
(a) confirming that utilising the Total Commitments in full would not
breach any limit binding on any Original Obligor; and
(b) certifying that each copy document specified in Part I of this
Schedule is correct, complete and in full force and effect as at
a date no earlier than the date of this Agreement.
9. Evidence that the agent of the Original Obligors under the Finance
Documents for service of process in New York has accepted its
appointment.
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SECURITY DOCUMENT
A. The following Security Agreements each to be amended in form and
substance satisfactory to the Original Lenders:
(a) the English law Security Agreement dated 20th November, 2001
between the Company, various of its English Subsidiaries and the
Facility Agent;
(b) the English law Mortgage of Shares dated 11th December, 2001
between Glenluce Limited and the Facility Agent;
(c) the English law Mortgage of Shares dated 11th December, 2001
between Boek-en Offsetdrukkerij Kuyte B.V. and the Facility
Agent;
(d) the English law Mortgage of Shares dated 10th December, 2001
between Convotherm-Elektrogerate GmbH and the Facility Agent;
B. The following Security Documents each to be entered into:
(a) the Canadian law General Security Agreement between Cleveland
Range Ltd. and the Facility Agent;
(b) the Canadian law General Security Agreement between Garland
Commercial Ranges Limited and the Facility Agent;
(c) the Canadian law General Security Agreement between Aladdin
Temp-Rite Canada, Inc. and the Facility Agent;
(d) the Canadian law Share Pledge Agreement between Enodis Nederland
B.V. and the Facility Agent;
(e) the Canadian law Share Pledge Agreement between Boek-en
Offsetdrukkerij Kuyte B.V. and the Facility Agent;
(f) the Canadian law Share Pledge Agreement between Garland
Commercial Ranges Limited and the Facility Agent;
(g) the Dutch law Share Pledge Agreement between Enodis Group
Limited, Enodis Nederland B.V. and the Facility Agent;
(h) the Dutch law Share Pledge Agreement between Enodis Nederland
B.V., Temp-Rite International Holdings B.V. and the Facility
Agent;
(i) the Dutch law Share Pledge Agreement between Xxxxxxxxx
International Limited, Scotsman Group Inc., Boek-en
Offsetdrukkerij Kuyte B.V. and the Facility Agent;
(j) the three Dutch law Share Pledge Agreements each between Boek-en
Offsetdrukkerij Kuyte B.V. and the Facility Agent (in respect of
the shares held by the pledgor in each of Beleggingsmaatschappij
Interrub B.V., X. Xxxxxxxx Exploitatie B.V. and X. Xxxxxxxx
Beheer B.V.);
(k) the German law Share Pledge Agreement between
Beleggingsmaatschappij Interrub B.V as pledgor and the Finance
Parties as pledgees (in respect of the pledge of
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Beleggingsmaatschappij Interrub B.V.'s present and future shares
in Hartek Beverage Handling GmbH);
(l) the German law Share Pledge Agreement between Enodis Nederland
B.V. as pledgor and the Finance Parties as pledgees (in respect
of the pledge of Enodis Nederland B.V.'s present and future
shares in Enodis Deutschland GmbH);
(m) the German Law Share Pledge Agreement between Temp-Rite
International Holdings B.V. as pledgor and the Finance Parties as
pledgees (in respect of the pledge of Temp-Rite International
Holdings B.V.'s present and future shares in Temp-Rite
International Holding GmbH);
(n) the German law Security Trust Agreement between the Facility
Agent and the other Finance Parties, Temp-Rite International
Holding GmbH, Temp-Rite International Holding B.V., Enodis
Nederland B.V., Beleggingsmaatschappij Interrub B.V., Xxxxx
Xxxxxxx and Xxxxxx Xxxxxxxxxxxxx;
(o) the German law Share Pledge Agreements between Temp-Rite
International Holdings GmbH, Xxxxx Xxxxxxx and Xxxxxx
Xxxxxxxxxxxxx as pledgors on the one side and the Finance Parties
as pledgees on the other side (in respect of the Temp-Rite
International Holdings GmbH's present and future shares in
Temp-Rite International GmbH as well as the pledgors' present and
future share in Convotherm-Elektrogerate GmbH);
(p) the English law Security Agreement between Enodis Holdings
Limited, Enodis Group Limited and the Facility Agent relating to
this Agreement;
(q) the English law Supplemental Security Agreement between the
Company, various of the English Subsidiaries and the Facility
Agent;
(r) three English law Supplemental Mortgage of Shares entered into by
each of Glenluce Limited, Boek-en Offsetdrukkerij Kuyte B.V. and
Convotherm-Elektrogerate GmbH;
(s) the Manx law Mortgage of Shares between Xxxxxxxxx Industrial
Holdings Limited and the Facility Agent;
(t) the Italian law Share Pledge Agreement between
Beleggingsmaatschappij Interrub B.V., Credit Suisse First Boston,
The Royal Bank of Scotland plc and National Westminster Bank Plc;
(u) the New York law General Security Agreement between Scotsman
Group Inc. and the Facility Agent;
(v) the New York law Pledge Agreement between Xxxxx Business Trust
and the Facility Agent;
(w) the New York law Pledge Agreement between Westran Corporation and
the Facility Agent;
(x) the New York law Pledge Agreement between X. Xxxxxxxx Beheer B.V.
and the Facility Agent;
137
(y) the New York law Pledge Agreement between X. Xxxxxxxx Exploitatie
B.V. and the Facility Agent;
(z) the New York law Pledge Agreement between Xxxxx CNI, Inc. and the
Facility Agent;
(aa) the New York law General Security Agreement between Mile High
Equipment Company and the Facility Agent;
(bb) the New York law General Security Agreement between Xxxxxxx
Bros., Inc. and the Facility Agent;
(e) the New York law General Security Agreement between Cleveland
Range, Inc. and the Facility Agent;
(f) the New York law General Security Agreement between Enodis
Corporation and the Facility Agent;
(g) the New York law General Security Agreement between Enodis
Technology Center, Inc. and the Facility Agent;
(h) the New York law General Security Agreement between Xxxxxxx MSC
Inc. and the Facility Agent;
(i) the New York law General Security Agreement between Merco/Savory,
Inc. and the Facility Agent;
(j) the New York law General Security Agreement between Prolon, Inc.
and the Facility Agent;
(k) the New York law General Security Agreement between Scotsman
Industries, Inc. and the Facility Agent;
(l) the New York law General Security Agreement between The Delfield
Company and the Facility Agent;
(m) the New York law General Security Agreement between Welbilt
Walk-Ins, LP and the Facility Agent;
(n) the New York law General Security Agreement between Lincoln
Foodservice Products, Inc. and the Facility Agent;
(o) the New York law General Security Agreement between Frymaster
L.L.C. and the Facility Agent;
(p) the New York law General Security Agreement between Xxxxx
Industrial Corporation and the Facility Agent;
(q) the New York law General Security Agreement between Garland
Commercial Industries, Inc. and the Facility Agent;
(r) the New York law General Security Agreement between Aladdin
Temp-Rite LLC and the Facility Agent;
138
(qq) the New York law Pledge Agreement between Xxxxxxxxx General
Partnership, X. Xxxxxxxx Beheer B.V. and X. Xxxxxxxx Exploitatie
B.V., jointly and severally, and the Facility Agent;
(rr) the New York law Pledge Agreement between Scotsman Industries,
Inc. and the Facility Agent;
(ss) the New York law Pledge Agreement between Xxxxxxxxx, Inc. and the
Facility Agent;
(tt) the New York law Pledge Agreement between Frymaster L.L.C. and
the Facility Agent;
(uu) the New York law Pledge Agreement between Enodis Corporation and
the Facility Agent;
(vv) the two New York law Pledge Agreements between Welbilt Holding
Company and the Facility Agent;
(ww) the New York law Pledge Agreement between Scotsman Group Inc. and
the Facility Agent;
(xx) the New York law Pledge Agreement between Xxxxx Industrial
Corporation and the Facility Agent;
(yy) the New York law Pledge Agreement between Lincoln Foodservice
Products, Inc. and the Facility Agent;
(s) the New York law Pledge Agreement between DFC Holding Corporation
and the Facility Agent;
(t) the New York law Pledge Agreement between Xxxxxxx Xxxxxxx
Industries, Inc. and the Facility Agent;
(u) the New York law Pledge Agreement between Xxxxx Holdings, Inc.
and the Facility Agent;
(v) the New York law Pledge Agreement between Nashville Holding
Company and the Facility Agent.
C. 1. A copy of all notices required to be sent under the
Security Documents.
2. A copy of all transfers, share certificates, duly executed
stock transfer forms or equivalent relating to assets
charged by the Security Documents.
3. A copy of the title deeds, if applicable.
4. (a) A copy of the notice of Financial Assistance to the
sole shareholder of Aladdin Temp-Rite Canada, Inc.
required pursuant to section 20 of the Business
Corporation Act (Ontario);
(b) A copy of the notice of Financial Assistance to the
sole shareholder of Cleveland Range Ltd., required
pursuant to section 20 of the Business Corporation
Act (Ontario); and
139
(c) A copy of the notice of Financial Assistance to the
sole shareholder of Garland Commercial Ranges
Limited, required pursuant to section 20 of the
Business Corporation Act (Ontario).
LEGAL OPINIONS
1. A legal opinion of Xxxxx & Xxxxx, legal advisers to the Arrangers and
the Facility Agent, addressed to the Finance Parties.
2. If an Obligor is incorporated in a jurisdiction other than England, a
legal opinion from legal advisers in that jurisdiction to the Arrangers,
addressed to the Finance Parties.
3. A legal opinion of Shack Xxxxxx Xxxx Xxxxxxxx & Xxxxxxx P.C., legal
advisers to the Company, addressed to the Finance Parties.
OTHER DOCUMENTS AND EVIDENCE
1. Evidence that all fees and expenses then due and payable from the
Company under this Agreement have been or will be paid by the first
Utilisation Date.
2. Evidence that an irrevocable prepayment and cancellation notice has been
served on the Facility Agent under the Existing Facility Agreement (in
accordance with the terms thereof) to prepay and cancel the Existing
Facility in full on or before the first Utilisation Date.
3. A copy of the Original Financial Statements.
4. A copy of the Daylight Facility and evidence that it has been fully
drawn by Enodis Holdings Limited and that the proceeds thereof at least
equal to the relevant proceeds as shown in the Funds Flow Statement and
in an amount not greater than L150,000,000 have been paid into a Closing
Account held with the Facility Agent.
5. Evidence that:
(a) the aggregate amounts of Facility A and Facility B, together with
the proceeds of the Daylight Facility, are at least equal to the
amount required to prepay and cancel the Existing Facility
Agreement in full; and
(b) irrevocable payment instructions providing that those amounts
will be upstreamed to Enodis plc by way of cancellation of
intercompany account and applied to prepay and cancel the
Existing Facility Agreement in full on the first Utilisation
Date.
6. Confirmation from the lenders of the Bridge Facility that they will
advance the Bridge Facility in an amount at least equal to the relevant
proceeds as shown in the Funds Flow Statement and in an amount not
greater than L150,000,000 to Enodis plc on terms satisfactory to the
Arrangers immediately upon repayment and cancellation of the Existing
Facility Agreement.
7. Evidence in the form of irrevocable payment instructions that, on
receipt of the proceeds of the Bridge Facility, the Subordinated
Intercompany Loan will be immediately advanced in a minimum amount equal
to the relevant proceeds as shown in the Funds Flow Statement and in an
amount not greater than L150,000,000 from Enodis plc to Enodis Holdings
Limited.
140
8. Delivery to the Facility Agent of completed and valid Requests to draw
Facility A and Facility B in full and payment instructions requesting
the proceeds to be upstreamed to Enodis plc.
9. A copy of the Funds Flow Statement.
10. Evidence that the Hive-Downs have been completed in accordance with the
terms of the Hive-Down Documents, including evidence that the Hived-Down
Assets have been transferred in accordance with the terms of the
Hive-Down Agreements.
11. (a) A copy for each Original Lender of the following Consultants'
Reports prepared by PricewaterhouseCoopers and in form and
substance satisfactory to the Arrangers and addressed to and
capable of being relied upon by the Facility Agent, the
Arrangers, the Original Lenders and any initial syndicate member:
(i) the long form report (including the distributable reserves
planning paper);
(ii) the tax and structure report;
(iii) the valuation report and valuation opinion in respect of
the Hived-Down Assets pursuant to the Hive-Down Documents;
and
(b) Confirmation of the Company's agreement to subordinate its rights
against PricewaterhouseCoopers to those of the Lenders with
respect to the Consultants' Reports referred to in paragraph (a)
above, in form and substance satisfactory to the Arrangers.
12. A copy of the Business Plan initialled for the purposes of
identification by the Company and the Facility Agent.
13. A copy or original (as applicable) of each Transaction Document.
14. A copy of the final draft of the Equity Offering documentation,
including the underwriting agreement between Credit Suisse First Boston
and Enodis plc.
15. A copy of a statement as at 8th February, 2002 evidencing that at least
a L20,000,000 cash balance was held within the Group as at that date.
16. A copy of the Structure Memorandum, showing the structure of the Plc
Group resulting from the incorporation of Enodis Holdings Limited and
Enodis Group Limited and the effects of the members of the Plc Group
entering into the Transaction Documents (and appending details of all
material intra-Group Loans as at 29th December, 2002).
17. Evidence that Enodis Group Limited is the representative member of the
Group for VAT purposes.
18. Confirmation from The Royal Bank of Scotland plc that the aggregate
outstanding amount of the Existing Letters of Credit does not exceed
US$40,000,000.
19. A copy of the Inland Revenue tax clearance in relation to the
Hive-Downs.
20. A copy of the signed final opinion from Xxxxxxx Xxxx QC in form and
substance satisfactory to the Arrangers in relation to the Hive-Downs
and certain financial assistance questions.
141
21. A copy of the letter from The Royal Bank of Scotland plc to the Company
confirming that the agreement between The Royal Bank of Scotland plc and
the Company dated on or about the date hereof, providing for an
overdraft facility for the Company and certain of its Subsidiaries, is
an Ancillary Facility for the purpose of this Agreement.
22. A copy of any other authorisation or other document, opinion or
assurance which the Facility Agent has notified the Company is necessary
or desirable in connection with the entry into and performance of, and
the transactions contemplated by, any Finance Document or for the
validity and enforceability of any Finance Document.
142
PART II
FOR AN ADDITIONAL OBLIGOR
ADDITIONAL OBLIGORS
1. An Accession Deed, duly executed by the Company and the Additional
Obligor.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors of the Additional
Obligor approving the terms of, and the transactions contemplated by,
the Accession Deed.
4. A specimen of the signature of each person authorised on behalf of the
Additional Obligor to execute or witness the execution of any Finance
Document or to sign or send any document or notice in connection with
any Finance Document.
5. In the case of an Additional Guarantor incorporated in the U.K. or (if
required by its articles of association) The Netherlands, a copy of a
resolution, signed by all of the holders of its issued or allotted
shares, approving the terms of, and the transactions contemplated by,
the Accession Deed.
6. If applicable, a copy of a resolution of the board of directors of each
corporate shareholder in the Additional Guarantor approving the
resolution referred to in paragraph 5 above.
7. A certificate of an authorised signatory of the Additional Obligor:
(a) confirming that utilising the Total Commitments in full would not
breach any limit binding on it; and
(b) certifying that each copy document specified in Part II of this
Schedule is correct, complete and in full force and effect as at
a date no earlier than the date of the Accession Deed.
8. If available, a copy of the latest audited accounts of the Additional
Obligor.
9. Evidence that the agent of the Additional Obligor under the Finance
Documents for service of process in New York has accepted its
appointment.
SECURITY DOCUMENT(S)
1. Security Document(s) over its assets, duly executed by the Additional
Obligor.
2. A copy of any notices required to be sent under the Security
Document(s).
3. A copy of all transfers, share certificates, duly executed stock
transfer forms or equivalent relating to assets charged by the Security
Documents, if applicable.
4. A copy of the title deeds, if applicable.
5. Evidence that the procedure contemplated by sections 155-158 of the
Companies Xxx 0000 has been completed in relation to any relevant
Finance Document, if applicable.
143
LEGAL OPINIONS
1. A legal opinion of Xxxxx & Xxxxx, legal advisers to the Facility Agent,
addressed to the Finance Parties.
2. If the Additional Obligor is incorporated in a jurisdiction other than
England, a legal opinion from legal advisers in that jurisdiction,
acceptable to the Facility Agent and addressed to the Finance Parties.
OTHER DOCUMENTS AND EVIDENCE
A copy of any other authorisation or other document, opinion or
assurance which the Facility Agent has notified the Company is necessary
or desirable in connection with the entry into and performance of, and
the transactions contemplated by, the Accession Deed or for the validity
and enforceability of any Finance Document.
144
PART III
FOR ADDITIONAL SECURITY
1. A copy of the constitutional documents of the relevant Obligor or, if
agreed by the Facility Agent, confirmation that they have not been
amended since the date they were last delivered to the Facility Agent.
2. A copy of a resolution of the board of directors of the relevant Obligor
approving entry into the Security Document.
3. A specimen of the signature of each person authorised on behalf of the
relevant Obligor to execute or witness the execution of the Security
Document or to sign or send any document or notice in connection with
such Security Document.
4. If the relevant Obligor is incorporated in the U.K. (or if required by
its articles of association) The Netherlands, a copy of a resolution,
signed by all of the holders of its issued or allotted shares, approving
the execution of the Security Document.
5. If applicable, a copy of a resolution of the board of directors of each
corporate shareholder in the relevant Obligor approving the resolution
referred to in paragraph 4 above.
6. If the relevant Obligor is incorporated in Germany, a copy of the
shareholders' resolution to the extent required by the shareholders'
agreement.
7. A certificate of an authorised signatory of the relevant Obligor
certifying that each copy document specified in Part III of this
Schedule is correct, complete and in full force and effect and has not
been amended or superseded as at a date no earlier than the date of the
additional Security Document.
8. A legal opinion from legal advisers acceptable to the Facility Agent in
the jurisdiction of incorporation of the relevant Obligor, and, if
different, legal advisers acceptable to the Facility Agent in the
jurisdiction of the governing law of the additional Security Document.
145
SCHEDULE 3
FORM OF REQUEST
To: THE ROYAL BANK OF SCOTLAND plc as Facility Agent
From: [ ]**
Date: [ ]
ENODIS HOLDINGS LIMITED - US$455,000,000 CREDIT AGREEMENT
DATED 20TH FEBRUARY, 2002 (THE "AGREEMENT")
1. We refer to the Agreement. This is a Request.
2. We wish to [borrow a [Revolving Credit/Term]* Loan under the Revolving
Credit Facility*/ Facility [A/B]*/arrange for a Letter of Credit to be
issued under the Revolving Credit Facility]* on the following terms:
(a) Utilisation Date:[ ]
(b) Amount/[currency]:[ ]
(c) [Interest Period/Term]*:[ ].
3. Our [payment/delivery]* instructions are:[ ].
4. We confirm that each condition precedent under the Agreement which must
be satisfied on the date of this Request is so satisfied.
5. This Request is irrevocable.
6. [We attach a copy of the proposed Letter of Credit.]*
By:
[ ]
----------
** [A Term Loan may only be requested by the Company].
* Delete as applicable.
146
SCHEDULE 4
CALCULATION OF THE MANDATORY COST
1. GENERAL
The Mandatory Cost is the weighted average of the rates for each Lender
calculated below by the Facility Agent on the first day of an Interest
Period. The Facility Agent must distribute each amount of Mandatory Cost
among the Lenders on the basis of the rate for each Lender.
2. FOR A LENDER LENDING FROM A FACILITY OFFICE IN THE U.K.
(a) The relevant rate for a Lender lending from a Facility Office in the
U.K. is calculated by reference to the Reference Banks in accordance
with the following formulae:
for a Loan in Sterling:
AB + C(B-D) + E X 0.01 per cent. per annum
----------------------
100-(A + C)
for any other Loan:
E X 0.01 per cent. per annum
--------
300
where on the day of application of the formula:
A is the percentage of that Reference Bank's eligible liabilities
(in excess of any stated minimum) which the Bank of England
requires it to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
B is LIBOR for that Interest Period;
C is the percentage of that Reference Bank's eligible liabilities
which the Bank of England requires it to place as a special
deposit;
D is the interest rate per annum allowed by the Bank of England on
a special deposit; and
E is the charge payable by each Reference Bank to the Financial
Services Authority under the fees rules (but, for this purpose,
calculated by the Facility Agent on a national basis as being the
average of the fee tariffs within fee-block Category A1 (Deposit
acceptors) of the fees rules, applying any applicable discount
and ignoring any minimum fee required under the fees rules) and
expressed in pounds per L1 million of the tariff base of that
Reference Bank.
(b) For the purposes of this paragraph 2:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSIT" have the meanings
given to them at the time of application of the formula by the
Bank of England;
(ii) "FEES RULES" means the then current rules on periodic fees in the
Supervision manual in the FSA Handbook; and
147
(iii) "TARIFF BASE" has the meaning given to it in the fees rules.
(c) (i) In the application of the formulae, A, B, C and D are included as
figures and not as percentages, e.g. if A = 0.5% and B = 15%, AB
is calculated as 0.5 x 15. A negative result obtained by
subtracting D from B is taken as zero.
(ii) Each rate calculated in accordance with a formula is, if
necessary, rounded upward to four decimal places.
(d) (i) Each Reference Bank must supply to the Facility Agent the
information required by it to make a calculation of the rate for
that Lender. The Facility Agent may assume that this information
is correct in all respects.
(ii) If a Reference Bank fails to do so, the Facility Agent may assume
that the Reference Bank's obligations in respect of cash ratio
deposits, special deposits and the fees rules are the same as
those of a typical bank from its jurisdiction of incorporation
with a Facility Office in the same jurisdiction as its Facility
Office.
(iii) The Facility Agent has no liability to any Party if its
calculation over or under compensates any Lender.
3. FOR A LENDER LENDING FROM A FACILITY OFFICE IN A PARTICIPATING MEMBER
STATE
(a) The relevant rate for a Lender lending from a Facility Office in a
Participating Member State is the percentage rate per annum notified by
that Lender to the Facility Agent as its cost of complying with the
minimum reserve requirements of the European Central Bank.
(b) If a Lender fails to specify a rate under paragraph (a) above, the
Facility Agent will assume that the Lender has not incurred any such
cost.
4. CHANGES
The Facility Agent may, after consultation with the Company and the
Lenders, notify all the Parties of any amendment to this Schedule which
is required to reflect:
(a) any change in law or regulation; or
(b) any requirement imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case,
any successor authority).
Any notification will be, in the absence of manifest error, conclusive
and binding on all the Parties.
148
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: THE ROYAL BANK OF SCOTLAND plc as Facility Agent
From: [THE EXISTING LENDER] (the "EXISTING LENDER") and [THE NEW LENDER] (the
"NEW LENDER")
Date: [ ]
ENODIS HOLDINGS LIMITED - US$455,000,000 CREDIT AGREEMENT
DATED 20TH FEBRUARY, 2002 (THE "AGREEMENT")
We refer to the Agreement. This is a Transfer Certificate.
1. The Existing Lender transfers by novation to the New Lender the Existing
Lender's rights and obligations referred to in the Schedule below in
accordance with the terms of the Agreement.
2. The proposed Transfer Date is [ ].
3. The administrative details of the New Lender for the purposes of the
Agreement are set out in the Schedule.
4. This Transfer Certificate is governed by English law.
THE SCHEDULE
RIGHTS AND OBLIGATIONS TO BE TRANSFERRED BY NOVATION
[insert relevant details, including applicable Commitment (or part)]
ADMINISTRATIVE DETAILS OF THE NEW LENDER
[insert details of Facility Office, address for notices and payment
details etc.]
[EXISTING LENDER] [NEW LENDER]
By: By:
The Transfer Date is confirmed by the Facility Agent as [ ].
THE ROYAL BANK OF SCOTLAND plc
By:
149
SCHEDULE 6
EXISTING SECURITY
1. Mortgage on plant and certain equipment of Mile High Equipment Company
to secure the indebtedness of Miles High and Welbilt with respect to (i)
the $4,500,000 Industrial Development Revenue Bonds of the City and
County of Denver, Colorado (Sunbeam Corporation Project) Series 1977
issued by the City and County of Denver, Colorado and (ii) the Financing
Agreement dated as of May 1, 1977 between the City and County of Denver,
Colorado and Sunbeam Corporation executed in connection with such bonds.
2. Mortgage on Cleveland's land and building to secure Cleveland's
obligations under the Loan Agreement with the City of Cleveland.
3. Capitalised leases or purchase money liens for the deferred purchase
price for equipment existing on the date of the Credit Agreement and
reflected in the Xxxxxxxxx consolidated financial statements in an
amount not in excess of $3,000,000.
4. Cash collateralisation of existing letters of credit having a face value
of less than $500,000.
SCOTSMAN COMPANIES
1. Security interest granted in all right and title to the lease and
certain proceeds under the lease and indenture, granted pursuant to a
Trust Indenture, dated as of August 1, 1981, between The Industrial
Development Board of the Town of Xxxxxxxxx and First Tennessee Bank,
N.A., relating to The Industrial Development Board of the Town of
Xxxxxxxxx Industrial Revenue Bonds (Xxxxxx Industries, Inc. Project)
Series 1981.
2. Lease by Xxxxx Industrial Corporation on plant and certain equipment of
Xxxxx Industrial Corporation located at 0 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxx
with respect to $6,600,000 Industrial Development Revenue Bonds (Xxxxx
Industrial Project) Series 1996 owned by Xxxxx Industrial Corporation.
3. Security interest granted in all right and title to certain equipment
and proceeds under the lease and indenture, granted pursuant to an
Indenture and Security Agreement, dated as of September 1, 1984, between
The Industrial Development Board of the Town of Xxxxxxxxx and NCNB
National Bank of North Carolina, relating to The Industrial Development
Board of the Town of Xxxxxxxxx Industrial Revenue Bonds (Alco Standard
Foodservice Equipment Company Project) Series 1984.
4. Encumbrances and easements contained or referred to in the documents of
title of the real property of Whitlenge Acquisition Ltd. listed below,
which property has an aggregate net book value of not more than
$180,000:
(a) Xxxx 0, Xxxxxxxxx Xxxxxxxxxx Xxxx, Chancel Way, Halesowen, West
Midlands;
(b) Xxxx 0 Xxxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxx Xxxxxxxx;
(c) Units 10, 11 and 00 Xxxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx Xxx,
Xxxxxxxxx, Xxxx Xxxxxxxx; and
(d) Xxxx 00, Xxxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx Xxx, Xxxxxxxxx, Xxxx
Midlands.
150
5. Whitlenge Acquisition Ltd. has leased through Barclays Mercantile
Business Finance certain automobiles and plant and machinery.
6. Whitlenge Acquisition Ltd. has leased from Pallas Group Ltd. a computer
software system.
XXXXXXX MSC, INC.
Sale and Lease Back Program - Pursuant to the Grant Agreement and Lease
Agreement both dated November 3, 1999, the State of Kentucky made a grant to the
City of Barbourville to purchase $200,000 of manufacturing equipment from
Xxxxxxx. Xxxxxxx leases the equipment back for $20 ($1 per year) over a term of
20 years.
UK OBLIGORS
------------------------------------------------------------------------------------------------------------------
MEMBER OF THE GROUP
CREATING SECURITY DETAILS OF SECURITY BENEFICIARY OF SECURITY
------------------------------------------------------------------------------------------------------------------
Enodis Property Developments Limited Legal Charge created 3 July 2000 Xxxxx Xxxxxx Homes Limited
------------------------------------------------------------------------------------------------------------------
Enodis Property Developments Limited Legal Charge created 3 July 2000 Redrow Homes (South East)
Limited
------------------------------------------------------------------------------------------------------------------
Enodis Property Developments Limited Legal Charge created 13 July 2001 Knight Developments Limited
------------------------------------------------------------------------------------------------------------------
Enodis Property Developments Limited Legal Charge created 18 September 2001 Xxxxxx XxXxxxxx Homes Ltd.
------------------------------------------------------------------------------------------------------------------
Enodis Property Developments Limited Legal Charge created 18 September 2001 Wilcon Homes Ltd.
------------------------------------------------------------------------------------------------------------------
NEW ZEALAND
------------------------------------------------------------------------------------------------------------------
Xxxxxx Refridgeration Pty Limited Charge Bank of New Zealand and/or
the third party shareholder
in the Chargor
------------------------------------------------------------------------------------------------------------------
REGISTRATION GENERAL
NAME AND ONTARIO ADDRESS OF COLLATERAL PERIOD COLLATERAL
SECURED PARTY CLASSIFICATION FILE NO. REGISTRATION NO(S). (YEARS) DESCRIPTION
------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & 852704208 19990705 1758 1715 3427 5 None
0000 Xxxxx Xxxxxx, Other (expiry date:
Xxxxx Xxxx, X0X 0X0 05/07/2004)
------------------------------------------------------------------------------------------------------------------
151
GARLAND COMMERCIAL RANGES LIMITED
------------------------------------------------------------------------------------------------------------------------------------
REGISTRATION GENERAL
NAME AND ONTARIO ADDRESS OF COLLATERAL PERIOD COLLATERAL
SECURED PARTY CLASSIFICATION FILE NO. REGISTRATION NO(s). (YEARS) DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & Other 879791103 20020117 1211 1715 8991 3 None
0000 Xxxxx xx, Xxxxx Xxxx, (xxxxxx
X0X 0X0 date
17/01/2005)
------------------------------------------------------------------------------------------------------------------------------------
CRUSADER LEADING (a Equipment 879398784 20020104 1620 7067 0368 1 One Xxxxx TMG-20
division of X.X.XXXXX (expiry Serial number
MACHINERY LIMITED) date TMG248-0020-7494
000 Xxxxxxx Xxxx, 00/00/0000)
Xxxxxxxxxxx, X0X 0X0
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & Other 874001538 20010629 1203 1715 7787 5 None
0000 Xxxxx Xx, Xxxxx Xxxx, (xxxxxx
X0X 0X0 date
29/06/2006)
------------------------------------------------------------------------------------------------------------------------------------
ROYAL BANK ASSET BASED Accounts & Other 807694821 19940610 2027 1529 9058 8 None
FINANCE 19940623 2212 1529 9438 (expiry
Royal Trust Tower 19950526 1838 1529 3944 date:
00 Xxxx Xxxxxx X., 0xx 19960508 1938 1529 8058 10/06/2002)
floor, 19970516 1831 1531 0000
Xxxxxxx, X0X 0X0 19990414 1442 1530 2092
19990416 1447 1530 5170
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & Other 823456152 19960712 1533 1715 5621 6 None
0000 Xxxxx Xxxxxx, 00xx (xxxxxx
xxxxx, Xxxxx Xxxx, X0X 0X0 date:
12/07/2002)
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & Other 835773165 19971106 1437 1715 9375 5 None
0000 Xxxxx Xxxxxx, 00xx (xxxxxx
xxxxx, Xxxxx Xxxx, X0X 0X0 date:
06/11/2002)
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & Other 838062828 19980205 0935 1715 0045 5 None
0000 Xxxxx Xxxxxx, 00xx (xxxxxx
xxxxx, Xxxxx Xxxx, X0X 0X0 date:
05/02/2003)
------------------------------------------------------------------------------------------------------------------------------------
BAYSHORE LEASING CORPORATION Equipment & Other 838589301 19980226 1914 1672 4527 5 Lease for equipment
000 Xxxxx Xxxxxx, Xxxxx (expiry and all attachments,
1710, Xxxxxxx, X0X 0X0 date: accessories and
26/02/2003) proceeds thereof.
------------------------------------------------------------------------------------------------------------------------------------
152
------------------------------------------------------------------------------------------------------------------------------------
REGISTRATION GENERAL
NAME AND ONTARIO ADDRESS OF COLLATERAL PERIOD COLLATERAL
SECURED PARTY CLASSIFICATION FILE NO. REGISTRATION NO(s). (YEARS) DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
GENERAL ELECTRIC CAPITAL Equipment, Other & 840600414 19980511 0952 1254 6613 5 All present and
CANADA INC. 2300 Meadowvale Motor Vehicle Included (expiry after acquired motor
Blvd, date: vehicles, trailers,
2nd floor, 11/05/2003) tractors, vans and
Xxxxxxxxxxx, X0X 0X0 buses under lease
and proceeds thereof.
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA Equipment & Other 844632999 19980923 0851 1715 1421 6 None
0000 Xxxxx Xxxxxx, Xxxxx (xxxxxx
Xxxx, X0X 0X0 date:
23/09/2004)
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA Equipment & Other 846194877 19981117 1740 1715 1876 6 None
0000 Xxxxx Xxxxxx, 00xx (xxxxxx
xxxxx, Xxxxx Xxxx, X0X 0X0 date:
17/11/2004)
------------------------------------------------------------------------------------------------------------------------------------
RICOH CANADA INC. Equipment & Other 849038085 19990310 1251 7029 9727 5 None
PO Box 37 20000524 1631 7029 8681 (expiry
Station A date:
Mississuga 10/03/2004)
X0X 0X0
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & Other 852206202 19990618 1421 1715 3281 4 None
0000 Xxxxx Xxxxxx, Xxxxx (xxxxxx
Xxxx, X0X 0X0 date:
18/06/2003)
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & Other 857991771 19991229 1702 1715 4753 6 None
0000 Xxxxx Xxxxxx, Xxxxx (xxxxxx
Xxxx, X0X 0X0 date:
29/12/2005)
------------------------------------------------------------------------------------------------------------------------------------
XXXXXX GLOBAL VENDOR Equipment & Other 858024153 20000104 0842 7029 5355 4 All goods supplied
FINANCE CANADA INC (expiry before or hereafter
0000 Xxxxx Xxxxxxx Xx, date: by secured party.
04/01/2004) All parts and
W Ste 27 accessories thereto
and accessions
Xxxxxxxx, X0X 0X0 thereto and all
proceeds thereof.
------------------------------------------------------------------------------------------------------------------------------------
XEROX CANADA LTD. Equipment & Other 858165273 20000106 1132 1715 4837 6 None
0000 Xxxxx Xxxxxx, Xxxxx (xxxxxx
Xxxx, X0X 0X0 date:
06/01/2006)
------------------------------------------------------------------------------------------------------------------------------------
PRIMUS AUTOMOTIVE FINANCIAL Goods, Inventory, Other 859327614 20000217 1753 1531 0080 2 None
SERVICES CANADA INC. & Motor Vehicle (expiry
0000 Xxxxx Xxxxxxx Xx, Included (1997 Mazda date:
Xxxxxxxx, X0X 0X0 626, V.I.N. 20000517 1142 7029 8499 17/02/2002)
#0XXXX00X0X0000000)
------------------------------------------------------------------------------------------------------------------------------------
153
------------------------------------------------------------------------------------------------------------------------------------
REGISTRATION GENERAL
NAME AND ONTARIO ADDRESS OF COLLATERAL PERIOD COLLATERAL
SECURED PARTY CLASSIFICATION FILE NO. REGISTRATION NO(s). (YEARS) DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
RICOH CANADA INC. Equipment & Other 859617279 20000301 1123 7029 6560 3 None
XX Xxx 00, Xxxxxxx X, (xxxxxx
Xxxxxxxxxxx, X0X 0X0 date:
01/03/2003)
------------------------------------------------------------------------------------------------------------------------------------
CRUSADER LEASING Equipment 862314426 20000530 1241 7067 0214 2 Three new Xxxxx
(a division of X.X. XXXXX (expiry forklift trucks -
MACHINERY LIMITED) date: model TMG 20 serial
360 Xxxxx Ave, 30/05/2002) nos.
Xxxxxxxxx, X0X 0X0 TMG248-0179-7494 &
TMG248-0181-7494 &
TMG248-0138-7496
------------------------------------------------------------------------------------------------------------------------------------
CRUSADER LEASING Equipment 863380422 20000630 1345 7067 0225 2 Two new Crown
(a division of X.X. XXXXX (expiry forklift trucks -
MACHINERY LIMITED) date: model RR5010-35TT
000 Xxxxx Xxx, 30/06/2002) serial nos. 1A228068
Xxxxxxxxx, X0X 0X0 & 1A228067
------------------------------------------------------------------------------------------------------------------------------------
X.X. XXXXXXXX EQUIPMENT CO. Equipment, Other & 863647083 20000711 1433 1097 0630 4 One battery S/N
LTD. Motor Vehicle Included (expiry A19934 & one charger
0000 Xxxxxxxx Xxxx Xxxxx, (0000 BT Lift Truck LSR date: S/N 107304 ref no
Mississauga, L5T 1H1 1200, V.I.N. 11/07/2004) 2903
#360158AA/2000)
------------------------------------------------------------------------------------------------------------------------------------
CRUSADER LEASING Equipment 865407618 20000905 1209 7067 0236 2 Xxxxx forklift truck
(a division of X.X. XXXXX (expiry - model TMG 20
MACHINERY LIMITED) date: serial no
000 Xxxxx Xxx, 05/09/2002) XXX000-0000-0000
Xxxxxxxxx, X0X 0X0
------------------------------------------------------------------------------------------------------------------------------------
X.X. XXXXXXXX EQUIPMENT CO. Equipment, Other & 867374982 20001108 1350 1097 0738 4 Two batteries S/N
LTD. Motor Vehicle Included (expiry 20628 & 20629 & two
0000 Xxxxxxx Xx, (0000 BT Lift Truck date: chargers S/N 104706
Xxxxxxxxxxx, X0X 0X0 LSF1250, V.I.N. 08/11/2004) & 104707 ref no 3055
#367875AA/2000 and 2000
BT Lift Truck LSF1250,
V.I.N. #367874AA/2000)
------------------------------------------------------------------------------------------------------------------------------------
154
------------------------------------------------------------------------------------------------------------------------------------
REGISTRATION GENERAL
NAME AND ONTARIO ADDRESS OF COLLATERAL PERIOD COLLATERAL
SECURED PARTY CLASSIFICATION FILE NO. REGISTRATION NO(S). (YEARS) DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
CRUSADER LEASING Equipment 869373801 20010123 1549 7067 0283 2 New Xxxxx forklift
(a division of X.X. XXXXX (expiry truck - model TMG 20
MACHINERY LIMITED) 360 date: serial no
Xxxxx Ave, 23/01/2003) XXX000-0000-0000
Xxxxxxxxx, X0X 0X0
------------------------------------------------------------------------------------------------------------------------------------
CRUSADER LEASING Equipment 869605227 20010201 0959 7067 0286 2 Xxxxx forklift truck
(a division of X.X. XXXXX (expiry - model TMG 20
MACHINERY LIMITED) 360 date: serial no
Xxxxx Ave, 01/02/2003) XXX000-0000-0000
Xxxxxxxxx, X0X 0X0
------------------------------------------------------------------------------------------------------------------------------------
155
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To: THE ROYAL BANK OF SCOTLAND plc as Facility Agent
From: ENODIS PLC
Date: [ ]
ENODIS HOLDINGS LIMITED - US$455,000,000 CREDIT AGREEMENT
DATED 20TH FEBRUARY, 2002 (THE "AGREEMENT")
1. We refer to the Agreement. This is a Compliance Certificate.
2. We confirm that as at [relevant testing date]:
(a) Consolidated Net Worth is [ ]; the minimum amount required
under Clause 22.3 (Consolidated Net Worth) is [ ];
(b) Consolidated Total Net Debt are [ ] and Consolidated EBITDA
was [ ]; therefore, the ratio of Consolidated Total Net
Debt to Consolidated EBITDA was [ ] to 1;
(c) Consolidated EBITDA was [ ] and Consolidated Net Interest
Payable was [ ]; therefore, the ratio of Consolidated EBITDA
to Consolidated Net Interest Payable was [ ] to 1;
(d) the gross assets and EBIT of the Guarantors constitute, [ ]% of
the gross assets and EBIT of the Plc Group; and
(e) "SURPLUS CASHFLOW", as defined in Clause 11.5 (Mandatory
prepayment - Surplus Cashflow) was [ ].
3. We set out below calculations establishing the figures in paragraph 2
above:
[ ].
4. We confirm that the following companies were Material Subsidiaries at
[relevant testing date]:
[ ].
5. [We confirm that no Default is outstanding as at [relevant testing
date].*
6. We confirm that at the relevant test date the aggregate amount of all
Felsted Investments outstanding under all Felsted Contracts which have
not been completed, as specified in Clause 23.30 (Felsted), is [ ].
ENODIS PLC
By:
----------
* If this statement cannot be made, the certificate should identify any
Default that is outstanding and the steps, if any, being taken to remedy
it.
156
SCHEDULE 8
FORM OF ACCESSION DEED
To: THE ROYAL BANK OF SCOTLAND plc as Facility Agent
From: ENODIS HOLDINGS LIMITED and [Proposed Borrower/Proposed Guarantor]*
Date: [ ]
ENODIS HOLDINGS LIMITED - US$455,000,000 CREDIT AGREEMENT
DATED 20TH FEBRUARY, 2002 (THE "AGREEMENT")
We refer to the Agreement. This is an Accession Deed.
[Name of company] of [address/registered office] agrees to become an Additional
Borrower/[and an Additional] Guarantor* and to be bound by the terms of the
Agreement as an Additional Borrower/[and an Additional] Guarantor* [and by the
terms of the Priority Deed as an Obligor].
This Accession Deed [is executed as a deed and] is governed by English law.
ENODIS HOLDINGS LIMITED
By:
[PROPOSED BORROWER/GUARANTOR]*
By:
----------
* Delete as applicable
157
SCHEDULE 9
EXISTING LETTERS OF CREDIT
REF NO CREATED ON EXPIRES ON CURRENCY AMOUNT
L4724363 11/05/2001 31/12/2002 US$ 1,560,000.00
L472464 11/05/2001 01/12/2001 US$ 5,075,000.00
L473000 12/07/2001 11/07/2002 US$ 9,597,645.82
L473173 13/08/2001 31/05/2002 US$ 250,000.00
L473593 23/01/2002 16/01/2003 US$ 1,300,000.00
L473579 11/10/2001 30/06/2004 US$ 10,000.00
L474207 17/01/2002 15/01/2003 US$ 1,000,000.00
L474488 13/02/2002 31/12/2004 euro 1,200,472.43
158
SIGNATORIES
COMPANY
ENODIS HOLDINGS LIMITED
By: XXXX XXX
ORIGINAL BORROWERS
ENODIS HOLDINGS LIMITED
By: XXXX XXX
ENODIS GROUP LIMITED
By: XXXXX XXXXXX
ENODIS CORPORATION
By: XXXXX XXXXXX
XXXXX INDUSTRIAL CORPORATION
By: XXXXX XXXXXX
ORIGINAL GUARANTORS
ENODIS HOLDINGS LIMITED
ENODIS GROUP LIMITED
XXXXXXX U.K. LIMITED
XXXXXXXXX-CHARTER RESIDENTIAL LIMITED
ENODIS PROPERTY GROUP LIMITED
ENODIS INVESTMENTS LIMITED
ENODIS PROPERTY DEVELOPMENTS LIMITED
ENODIS UK LIMITED
MERRYCHEF LIMITED
VISCOUNT CATERING LIMITED
WHITLENGE DRINK EQUIPMENT LIMITED
XXXXXXXXX BRISTAR (INVESTMENTS) LIMITED
XXXXXXXXX BRISTAR LIMITED
XXXXXXXXX HOLDINGS LIMITED
XXXXXXXXX INDUSTRIAL HOLDINGS LIMITED
XXXXXXXXX INDUSTRIES LIMITED
159
XXXXXXXXX INTERNATIONAL LIMITED
CONVOTHERM LIMITED
ECCLESFIELD PROPERTIES LIMITED
ELVADENE LIMITED
GLENLUCE LIMITED
HOMARK HOLDINGS LIMITED
XX XXXXXX (MINCING LANE) LIMITED
KITCHEN VENTILATION SERVICES LIMITED
MELIORA SPECTARE LIMITED
MERRYCHEF HOLDINGS LIMITED
S&W XXXXXXXXX LIMITED
SAW TECHNOLOGIES LIMITED
SCOTSMAN BEVERAGE SYSTEMS LIMITED
STEAMHAMMER LIMITED
TEMP-RITE INTERNATIONAL LIMITED
THE HOMARK GROUP LIMITED
VENT MASTER (EUROPE) LIMITED
WHITLENGE ACQUISITION LIMITED
By: XXXXX XXXXXX
MILE HIGH EQUIPMENT COMPANY
XXXXXXX BROS., INC.
XXXXXXXXX INC.
XXXXXXXXX GENERAL PARTNERSHIP
CLEVELAND RANGE, INC.
DFC HOLDING CORPORATION
ENODIS CORPORATION
ENODIS TECHNOLOGY CENTER, INC.
XXXXXXX MSC INC.
XXXXX BUSINESS TRUST
XXXXX HOLDINGS, INC.
MERCO/SAVORY, INC.
NASHVILLE HOLDING COMPANY
PROLON, INC.
SCOTSMAN GROUP INC.
SCOTSMAN INDUSTRIES, INC.
THE DELFIELD COMPANY
WELBILT HOLDING COMPANY
WELBILT WALK-INS, XX
XXXXXXX CORPORATION
LINCOLN FOODSERVICE PRODUCTS, INC.
FRYMASTER L.L.C.
XXXXX CNI, INC.
XXXXX INDUSTRIAL CORPORATION
GARLAND COMMERCIAL INDUSTRIES, INC.
ALADDIN TEMP-RITE LLC
XXXXXXX XXXXXXX INDUSTRIES, INC.
ALADDIN TEMP-RITE CANADA, INC.
160
CLEVELAND RANGE LTD.
GARLAND COMMERCIAL RANGES LIMITED
By: XXXXX XXXXXX
CONVOTHERM-ELEKTROGERATE GmbH
By: XXXXXX XXXXXX
ENODIS DEUTSCHLAND GmbH
HARTEK BEVERAGE HANDLING GmbH
TEMP-RITE INTERNATIONAL GESELLSCHAFT MIT BESCHRANKTER HAFTUNG
TEMP-RITE INTERNATIONAL HOLDING GmbH
By: XXXXX XXXXXX
BELEGGINGSMAATSCHAPPIJ INTERRUB B.V.
BOEK-EN OFFSETDRUKKERIJ KUYTE B.V.
ENODIS NEDERLAND B.V.
H. TIESKENS BEHEER B.V.
H. TIESKENS EXPLOITATIE B.V.
TEMP-RITE INTERNATIONAL HOLDINGS B.V.
By: XXXXX XXXXXX
ARRANGERS
CREDIT SUISSE FIRST BOSTON
By: XXXX XXXXXX XXXXX XXXXXXXXXX
THE ROYAL BANK OF SCOTLAND plc
By: XXXXXXX XXXXXX
ORIGINAL LENDERS
CREDIT SUISSE FIRST BOSTON
By: XXXX XXXXXX XXXXX XXXXXXXXXX
NATIONAL WESTMINSTER BANK PLC
By: XXXXXXX XXXX
161
FACILITY AGENT AND ISSUING BANK
THE ROYAL BANK OF SCOTLAND plc
By: XXXXXXX XXXX
