Exhibit 4.10
SPIRENT plc
THIRD AMENDMENT, CONSENT
AND
WAIVER AGREEMENT
DATED MARCH 1,
2005
US$10,000,000
AMENDED AND RESTATED SERIES A SENIOR NOTES DUE NOVEMBER 23,
2006
US$63,406,000
AMENDED AND RESTATED SERIES B SENIOR NOTES DUE NOVEMBER 23,
2009
US$115,000,000
AMENDED AND RESTATED SERIES C SENIOR NOTES DUE NOVEMBER 23,
2009
US$29,594,000
AMENDED AND RESTATED SERIES D SENIOR NOTES DUE NOVEMBER 23,
2009
BINGHAM MCCUTCHEN LLP
LONDON
SPIRENT plc
THIRD AMENDMENT, CONSENT
AND
WAIVER AGREEMENT
US$10,000,000
AMENDED AND RESTATED SERIES A SENIOR NOTES DUE NOVEMBER 23,
2006
US$63,406,000
AMENDED AND RESTATED SERIES B SENIOR NOTES DUE NOVEMBER 23,
2009
US$115,000,000
AMENDED AND RESTATED SERIES C SENIOR NOTES DUE NOVEMBER 23,
2009
US$29,594,000
AMENDED AND RESTATED SERIES D SENIOR NOTES DUE NOVEMBER 23,
2009
Dated March 1, 2005
To each of the Current Noteholders
Named in Annex 1 hereto:
Ladies and Gentlemen:
SPIRENT plc,
a limited company organized and
existing under the laws of England and Wales with registered number
470893 (together with its successors and assigns, the
“Company” ), hereby agrees with you as
follows:
1.
PRIOR ISSUANCE OF NOTES,
ETC.
Pursuant to the separate Note
Purchase Agreements, dated November 23, 1999, among the
Company (formerly known as Bowthorpe plc) and, respectively, the
purchasers named in Schedule A thereto (as amended and
restated pursuant to the Amended and Restated Note Purchase
Agreement dated March 11, 2003 and as further amended pursuant
to the Amendment and Consent Agreement dated December 31, 2003
and the Second Amendment and Consent Agreement dated
August 13, 2004, and as in effect immediately prior to giving
effect to the Amendments (defined below) provided for by this
Agreement, collectively, the “Existing Note Purchase
Agreement” , and as may be amended pursuant to the
Amendments or further amended, restated or otherwise modified from
time to time, collectively, the “Note Purchase
Agreement” ), the Company issued and sold
(a) US$10,000,000 aggregate original principal amount of its
Amended and Restated Series A Senior Notes due
November 23, 2006, (b) US$63,406,000 aggregate original
principal amount of its Amended and Restated Series B Senior
Notes due November 23, 2009,
(c) US$115,000,000 aggregate original
principal amount of its Amended and Restated Series C Senior
Notes due November 23, 2009, and (d) US$29,594,000
aggregate original principal amount of its Amended and Restated
Series D Notes due November 23, 2009 (as in effect
immediately prior to the Effective Time (as defined below), the
“Existing Notes” and, as may be amended
pursuant to the Amendments or further amended, restated or
otherwise modified from time to time, the
“Notes” ).
This Third Amendment, Consent and
Waiver Agreement is referred to herein as this
“Agreement” . The register
kept by the Company for the registration and transfer of the Notes
indicates that each of the Persons named in Annex 1 (collectively,
the “Current Noteholders” ) is currently
a holder of the Notes in the aggregate principal amount indicated
opposite such Person’s name in such Annex and that the
Persons named in Annex 1 currently hold 100% of the outstanding
Notes.
2.
DEFINED TERMS.
Capitalized terms used herein and
not otherwise defined have the meanings ascribed to them in the
Existing Note Purchase Agreement.
3.
REQUEST FOR CONSENT.
The Company requests that each of
you consent to the Amendments with respect to certain terms of the
Existing Note Purchase Agreement and to certain other matters
specified in this Agreement.
4.
COMPANY WARRANTIES AND
REPRESENTATIONS.
To induce you to enter into this
Agreement, the Company warrants and represents as follows (it being
agreed, however, that nothing in this Section 4 shall affect
any of the warranties and representations previously made by the
Company in or pursuant to the Note Purchase Agreement and that all
of such other warranties and representations, as well as the
warranties and representations in this Section 4, shall
survive the effectiveness of the Amendments and the
Waiver):
4.1
Corporate Organization and
Authority.
(a)
The Company and
each of its Material Subsidiaries is a corporation or other legal
entity duly organized, validly existing and, in the case of each
such Material Subsidiary organized under the laws of any state of
the United States of America, in good standing under the laws of
its jurisdiction of incorporation.
(b)
The Company and
each of its Material Subsidiaries has the corporate or other power
and authority to own or hold under lease the properties it purports
to own or hold under lease, to transact its business as now
conducted and as presently proposed to be conducted.
(c)
The Company and
each of its Material Subsidiaries is duly qualified and, in the
case of each such Material Subsidiary conducting business in any
state of the United States of America, is in good standing as a
foreign corporation in each jurisdiction wherein the nature of the
business transacted by it, or the nature of the property owned or
leased by it, makes such qualification required by law and
where
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failure to be so
qualified or in good standing would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect
on the business, operations or financial condition of the Company
and its Subsidiaries, taken as a whole.
4.2
Financial
Indebtedness.
The Financial Indebtedness of the
Company and its Subsidiaries as at December 31, 2004 is
described in Part 4.2 of Annex 2.
4.3
Agreements Authorized;
Obligations Enforceable.
(a)
The execution and
delivery by the Company of this Agreement has been duly authorized
by all necessary corporate action on its part. This Agreement
has been executed and delivered by one or more duly authorized
officers or directors of the Company, and each of this Agreement,
the Notes and the Note Purchase Agreement, after giving effect to
the Amendments and the Waiver, constitute a legal, valid and
binding obligation of the Company, enforceable in accordance with
its terms, except that the enforceability hereof and thereof may be
limited by:
(i)
applicable bankruptcy,
reorganization, arrangement, insolvency, moratorium, or other
similar laws affecting the enforceability of creditors’
rights generally; and
(ii)
general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law).
(b)
The execution and
delivery by the Guarantors of the Acknowledgement and Consent
attached hereto has been duly authorized by all necessary action on
the part of each Guarantor. The Acknowledgement and Consent
attached hereto has been executed and delivered by one or more duly
authorized officers or directors of each Guarantor, and the
Subsidiary Guarantees, after giving effect to the Amendments and
the Waiver, will constitute a legal, valid and binding obligation
of each Guarantor in respect thereof, enforceable in accordance
with their terms, except that the enforceability hereof and thereof
may be limited by:
(i)
applicable bankruptcy,
reorganization, arrangement, insolvency, moratorium, or other
similar laws affecting the enforceability of creditors’
rights generally; and
(ii)
general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law).
4.4
No Conflicts.
Neither the execution nor delivery
of this Agreement, nor performance by the Company with the terms
and provisions of the Notes or the Note Purchase Agreement, after
giving effect to the Amendments and the Waiver, nor compliance by
each Guarantor with the terms and provisions of its respective
Subsidiary Guarantee, will conflict with, or result in a breach of
the terms, conditions or provisions of, or constitute a default
under, or result in any violation of, or result in the creation of
any Lien upon any of the properties of the Company or any of its
Subsidiaries under the
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memorandum or articles of
association (or charter or by-laws) of the Company or any of its
Subsidiaries, or any award of any arbitrator or any agreement,
instrument, order, judgment, decree, statute, law, rule or
regulation to which the Company or any of its Subsidiaries is
subject (including, without limitation, the 2005 Bank Facility
(defined below) and any agreement with shareholders).
4.5
Full Disclosure.
Neither this Agreement nor any other
written statement furnished by or on behalf of the Company or any
of its Subsidiaries to the Current Noteholders in connection with
the proposal and negotiation of the Amendments and the Waiver, or
the other terms and provisions of this Agreement, contains any
untrue statement of a material fact or omits a material fact
necessary to make the statements contained therein, taken as a
whole, under the circumstances under which made, not
misleading. Except as previously disclosed in writing to each
Current Noteholder, there is no fact known to the Company or any
Material Subsidiary that could reasonably be expected to have a
Material Adverse Effect upon the business, operations or principal
properties of the Company and its Subsidiaries taken as a
whole.
4.6
Amendments to 2005 Bank
Facility.
There have been no amendments,
waivers or other modifications to the new credit facility dated
February 2, 2005 which replaces the New Bank Facility (as
defined in the Amendment and Consent Agreement dated
December 31, 2003) and provides for total commitments or
borrowing availability in an aggregate amount of at least
£30,000,000 (the “2005 Bank
Facility” ) subsequent to February 2, 2005, and
the 2005 Bank Facility is in full force and effect on the date
hereof.
4.7
No Defaults.
After giving effect to the Waiver
provided in Section 6, no Default or Event of Default has
occurred and is continuing. No event has occurred and no
condition exists that would constitute a default, event of default
or potential default (howsoever described) under the 2005 Bank
Facility.
4.8
Guaranties.
No Subsidiary of the Company, other
than Subsidiaries which are Guarantors as at the Effective Time,
has entered into or is liable under any guaranty of any Financial
Indebtedness of any Person arising under the 2005 Bank
Facility.
5.
AMENDMENTS TO EXISTING NOTE PURCHASE
AGREEMENT.
Subject to the conditions specified
in Section 7, the Existing Note Purchase Agreement is hereby
amended in the manner provided in Exhibit A to this Agreement
(the “Amendments” ).
6.
WAIVER.
Subject to the conditions specified
in Section 7, each Noteholder party hereto hereby waives (the
“ Waiver ”), from the date of this
Agreement, the Event of Default constituted by the breach by the
Company of the provision of the letter agreement dated
February 18, 2004
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between the Company and the Current Noteholders
attached hereto as Annex 3 requiring the Company to extend or
refinance the New Bank Facility prior to January 30, 2005 (the
existence of which Event of Default the Company hereby acknowledges
and confirms). The Company acknowledges and confirms that the
Current Noteholders do not confirm or waive, and fully reserve all
their rights with respect to, any other Default or Event of Default
that may have occurred or may occur.
7.
CONDITIONS TO
EFFECTIVENESS.
The Amendments and the Waiver shall
each become effective, if at all, at such time (the
“Effective Time” ) as the Company and the
Required Holders shall have executed and delivered counterparts of
this Agreement and the following conditions shall have been
satisfied by the Company (or waived by the Required
Holders):
7.1
Representations and
Warranties.
The representations and warranties
set forth in Section 4 shall be true and correct.
7.2
Due Authorization,
etc.
The Company shall have authorized,
by all necessary corporate action, the execution and delivery of
this Agreement, the performance of all of its obligations under
this Agreement, and the consummation of all transactions by it
contemplated by this Agreement, and each Guarantor shall have
authorized, by all necessary corporate action, the execution and
delivery of the Acknowledgement and Consent attached hereto, and
the Current Noteholders and their special counsel shall have
received such certificates and other evidence to such effect
(including, without limitation, secretary’s certificates and
board resolutions) as the Required Holders and their special
counsel may reasonably request.
7.3
Fees and
Expenses.
The Company shall have paid all
amounts required to have been paid to date pursuant to
Section 8, including, without limitation, the reasonable fees
and expenses of Bingham McCutchen LLP, special counsel for the
holders of the Notes, and PricewaterhouseCoopers LLP, reporting
accountants to the holders of the Notes, as reflected in statements
to be presented to the Company before the Effective
Time.
7.4
Consent of
Guarantors.
Each Guarantor shall have indicated
its acknowledgement and consent in respect of this Agreement by
executing and delivering the Acknowledgement and Consent attached
hereto.
8.
EXPENSES.
Whether or not the Amendments and/or
the Waiver become effective, the Company will promptly (and in any
event within thirty (30) days of receiving any statement or invoice
therefor) pay all reasonable out-of-pocket costs and expenses of
the Current Noteholders relating to this Agreement and all related
documentation contemplated herein, including, but not limited to,
(a) the cost of reproducing this Agreement and any other
documents delivered in connection herewith and the transactions
contemplated hereby, and (b) the reasonable fees
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and expenses of Bingham McCutchen LLP, special
counsel for the holders of the Notes, and PricewaterhouseCoopers
LLP, reporting accountants to the holders of the Notes, incurred in
connection with such matters.
9.
MISCELLANEOUS.
9.1
Part of Note Purchase
Agreement, Future References, etc.
This Agreement shall be construed in
connection with and as a part of the Notes and the Note Purchase
Agreement and, except as expressly amended by this Agreement, all
terms, conditions and covenants contained in the Notes, the Note
Purchase Agreement and the Subsidiary Guarantees are hereby
ratified and shall be and remain in full force and effect.
Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this
Agreement may refer to the Notes and the Note Purchase Agreement
without making specific reference to this Agreement, but
nevertheless all such references shall include this Agreement
unless the context otherwise requires.
9.2
Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES
SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN
SUCH STATE.
9.3
Duplicate Originals, Execution in
Counterpart.
Two (2) or more duplicate
originals hereof may be signed by the parties, each of which shall
be an original but all of which together shall constitute one and
the same instrument. This Agreement may be executed in one or
more counterparts and shall be effective at the time provided in
Section 7 and each set of counterparts that, collectively,
show execution by the Company and each consenting Current
Noteholder shall constitute one duplicate original.
[signature pages immediately
follow]
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If this Agreement is satisfactory to
you, please so indicate by signing the applicable acceptance on a
counterpart hereof and returning such counterpart to the
Company.
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Very truly yours,
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SPIRENT plc
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By
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Name:
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Title:
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[Signature page for THIRD
AMENDMENT, CONSENT AND WAIVER AGREEMENT of SPIRENT
PLC]
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
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By:
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Delaware Investment Advisers, a Series of
Delaware
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Management Business Trust, Its
Attorney-in-Fact
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LINCOLN LIFE & ANNUITY COMPANY OF NEW
YORK
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By:
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Delaware Investment Advisers, a Series of
Delaware
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Management Business Trust, Its
Attorney-in-Fact
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FIRST PENN-PACIFIC LIFE INSURANCE
COMPANY
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By:
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Delaware Investment Advisers, a Series of
Delaware
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Management Business Trust, Its
Attorney-in-Fact
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METROPOLITAN LIFE INSURANCE
COMPANY
METROPOLITAN PROPERTY AND
CASUALTY
INSURANCE COMPANY
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By:
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Metropolitan Life Insurance Company
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Its Investment Manager
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METROPOLITAN TOWER LIFE INSURANCE
COMPANY
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By:
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Metropolitan Life Insurance Company
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Its Investment Manager
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TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
THE TRAVELERS INSURANCE COMPANY
PRIMERICA LIFE INSURANCE COMPANY
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
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By:
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CIGNA Investments, Inc. (authorized
agent)
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LIFE INSURANCE COMPANY OF NORTH
AMERICA
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By:
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CIGNA Investments, Inc. (authorized
agent)
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MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
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By:
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Babson Capital Management LLC as
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