Exhibit 4.18
CONFORMED COPY
DATED 16TH JULY 2001
(1) THE ROYAL BANK OF SCOTLAND INVOICE DISCOUNTING LIMITED
(by its agent The Royal Bank of Scotland Commercial Services Limited)
(2) NIAGARA LASALLE (UK) LIMITED
and
(3) NIAGARA CORPORATION
SECOND AMENDMENT AGREEMENT
relating to an invoice discounting agreement
dated 23 August 1999 (as amended)
EVERSHEDS
000 Xxxxxxx Xxx
Xxxxxxxxxx
X0 0XX
Tel. 0000 000 0000
Fax. 0000 000 0000
Ref: RHH
CONTENTS
1. INTERPRETATION...........................................................1
2. AMENDMENT................................................................1
3. CONFIRMATIONS............................................................2
4. REPRESENTATIONS..........................................................2
5. MISCELLANEOUS............................................................2
SCHEDULE - AMENDMENTS TO THE INVOICE DISCOUNTING FACILITY AGREEMENT..........3
THIS AMENDMENT AGREEMENT is made on 16th July 2001
BETWEEN:
(1) THE ROYAL BANK OF SCOTLAND INVOICE DISCOUNTING LIMITED (by its
agent The Royal Bank of Scotland Commercial Services Limited) a
company incorporated in England and Wales with Company Number
943038 whose registered office is situate at Xxxxx Xxxxx, Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxx XX00 0XX ("RBID");
(2) NIAGARA LASALLE (UK) LIMITED a company incorporated in England
and Wales with Company Number 3725308 and whose registered office
is situate at Victoria Steel Works, Bull Lane, Moxley,
Wednesbury, West Midlands WS10 8RS (the "Initial Client"); and
(3) NIAGARA CORPORATION a Delaware corporation whose principal place
of business is at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Xxxxxx Xxxxxx of America ("Niagara")
WHEREAS:
(A) Pursuant to an invoice discounting agreement dated 23 August
1999, between Lombard NatWest Discounting Limited ("LND") and the
Initial Client (the "Invoice Discounting Agreement") LND agreed
to make available to the Initial Client a committed invoice
discounting facility of a maximum amount of (pound)20,000,000
(twenty million pounds sterling).
(B) By an Amendment Agreement dated 11 September 2000 (the "First
Amendment") the Initial Client and LND agreed to certain
amendments to the Invoice Discounting Agreement.
(C) On 29 December 2000 LND changed its name to RBID and on 1st
January 2001 entered into an agency agreement with The Royal Bank
of Scotland Commercial Services Limited ("RBSCS") whereby RBSCS
has agreed to act as RBID's agent in relation to all
administrative matters under, amongst other things, the Invoice
Discounting Agreement, as amended.
(D) The Client has further requested and RBID has agreed that the
Invoice Discounting Agreement shall be deemed to be further
varied in the following manner.
NOW IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Amendment Agreement (except where the context
otherwise requires or there is express provision herein to
the contrary) all terms and expressions used in this
Amendment Agreement shall have the meanings given to such
terms and expressions in the Invoice Discounting Agreement
as subsequently amended.
1.2 Interpretation
Clause 1.3 of the Invoice Discounting Agreement shall be
deemed to be incorporated in this Amendment Agreement as if
set out in full herein, with all necessary changes.
2. AMENDMENT
As of and with effect from 30 June 2001, the Invoice Discounting
Agreement shall be further amended in accordance with the
amendments set out in the attached Schedule.
3. CONFIRMATIONS
3.1 Save as expressly amended by the First Amendment and this
Amendment Agreement, the Invoice Discounting Agreement shall
remain in full force and effect.
3.2 Each of the parties hereto confirms that notwithstanding the
amendment of the Invoice Discounting Agreement each of the
Discounting Documents to which it is a party remains in full
force and effect and will continue to secure the obligations
of the Initial Client or any Client under the Invoice
Discounting Agreement as so amended, and that as and from
the date of this Agreement any and all references in each of
the Discounting Documents to the Invoice Discounting
Agreement will, where applicable, be construed as references
to the Invoice Discounting Agreement as amended by the First
Amendment and this Amendment Agreement.
3.3 This Amendment Agreement shall be a Discounting Document.
4. REPRESENTATIONS
The Initial Client hereby represents and warrants to RBID that save
as expressly varied or amended by this Amendment Agreement the
representations and warranties referred to in Clause 11.1 of the
Invoice Discounting Agreement as amended by the First Amendment and
this Agreement are correct on the date hereof.
5. MISCELLANEOUS
5.1 This Amendment Agreement may be executed in several
counterparts and any single counterpart or set of
counterparts, signed in either case by all of the parties,
shall be deemed to be an original, and all taken together
shall constitute one and the same instrument.
5.2 This Amendment Agreement shall be governed by and construed
in accordance with English law.
5.3 The Initial Client shall be responsible for, on an indemnity
basis, RBID's (and any of its advisers') costs including any
VAT and disbursements incurred in connection with this
Amendment Agreement.
5.4 Niagara is entering into this Amendment Agreement for the
purposes of acknowledging the variation to the Invoice
Discounting Agreement and not for any other purpose.
IN WITNESS WHEREOF the parties hereto have caused this Amendment Agreement to
be duly executed the day and year first above written.
SCHEDULE
Amendments to the Invoice Discounting Agreement
With effect from 30 June 2001 the Invoice Discounting Agreement as amended
shall be further amended as set out in this Schedule. All references in this
Schedule to clause numbers are references to clauses in the Invoice
Discounting Agreement as amended and all references to paragraph numbers are
references to paragraphs of this Schedule.
All references to "LND" in the Invoice Discounting Agreement, as amended,
shall be deleted and replaced with the initials "RBID".
1. Clause 1.1 of the Invoice Discounting Agreement as amended shall
be further amended in the following manner:-
1.1 a new definition of "Adjustments" shall be added as follows:-
"Adjustments" means any entry on your Customers'
accounts which changes the Notified
Value of Receivables;"
1.2 sub-paragraph (b) of the definition of "Approved Currencies"
shall be deleted and replaced by the following:-
"(b) US Dollars, German Deutschmarks and Italian Lira"
1.3 the words "subject to a minimum rate at all times of 4% pa" shall
be added at the end of the definition of "Base Rate";
1.4 the definition of "Global Deduction Percentage" shall be amended
by the addition of the following words at the end of the
definition:-
"or Clause 5.11";
1.5 a new definition of "Notified Value" shall be inserted as
follows:-
"Notified Value" means the amount of the Receivable
as shown in an Offer or Advice
Transmission
1.6 the definition of "Termination Date" shall be amended so that the
reference to "third anniversary" shall be replaced by the words
"fourth anniversary".
2.
2.1 Clause 5.2.1 of the Invoice Discounting Agreement, as amended,
shall be varied to the effect that the first sentence of that
clause shall be deleted and replaced with the following:-
"After the operation of Clause 5.1, the Client will send RBID at
its address at c/o RBSCS, Xxx House, 90 Great Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, X0 0XX an Offer by way of Advice Transmission once in
each calendar month following the Commencement Date of all
Receivables unpaid and coming into existence in the preceding
calendar month and remaining unpaid. The Client will send a
revised Offer by way of an Advice Transmission to RBID
immediately upon the Client making any Adjustment."
2.2 The following sentence shall be added at the end of Clause
5.2.1:-
"The Client will send RBID at its address at c/o RBSCS, Xxx
House, 90 Great Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, X0 0XX an Offer
by way of Advice Transmission in respect of Receivables created
since the delivery of the previous Offer (together with such
documents as RBID may specify) no later than the tenth working
day in the calendar month following the month in which the
previous such Offer by way of Advice Transmission was sent to
RBID."
3. A new Clause 5.11 shall be added to the Invoice Discounting
Agreement, as amended, as follows:-
"5.11 Sales Ledger Receivable Turn
5.11.1 The Client undertakes to RBID that it will ensure that the
sales ledgers for Sites and Approved Currencies be
maintained and monitored as closely as possible.
Accordingly, if the average period for payment by
Customers of Receivables on the sales ledgers referred to
in Column A below exceeds the number of days opposite such
ledger in Column B, the provisions of Clause 5.11.2 shall
apply.
Column A Column B
Central Ledger 90 days
Macready Ledger 90 days
US Dollar Ledger 150 days
Deutschmark Ledger 75 days
Italian Lira Ledger 110 days
5.11.2 If the requirements of Clause 5.11.1 are not satisfied in
respect of any ledger, RBID shall have the right to
increase the Global Deduction Percentage in respect of
payments by RBID to the Client on that ledger by reference
to the following formula, e.g.:-
If the days outstanding on the Central Ledger is 91 days
1/90 x 100 = 1.11%
therefore, the Global Deduction Percentage in respect
of that ledger would increase to 26.11%."
4. The following sentence shall be added to the end of existing
Clause 7.1:-
"On the third anniversary of the Commencement Date, the parties
shall review the Margin and other costs and expenses payable under
the terms of this Agreement (including, without limitation, the
fees payable under clauses 15.2 and 15.3 of this Agreement) with a
view to agreeing whether to increase or decrease them (as the case
may be) for the period starting with such review until the
Termination Date."
5. The following new Clause 12.2.27 shall be added to the Invoice
Discounting Agreement, as amended:-
"12.2.27 The Client will send the following documents to RBID
each and every calendar month to reach RBID not later
than the tenth working day of such calendar month
(unless otherwise required by RBID):-
12.2.27.1 a copy of their computerised
Cash Postings Report detailing all cash
items posted to the sales ledger during
the preceding month;
12.2.27.2 a copy of their computerised Sales Ledger
Control Account listing all movements to
the Sales Ledger balance brought forward
from the preceding month;
12.2.27.3 copies of all statements to Customers
detailing, on an Open Item basis,
Receivables outstanding at the end of
the preceding month;
12.2.27.4 a list of unpaid Receivables analysed by
reference to their invoice dates as at
the end of the preceding month;
12.2.27.5 a list of unpaid creditors accounts analysed
by reference to invoice due dates for
payment (or if appropriate by reference
to their invoice dates) as at the end of
the preceding month;
12.2.27.6 copies of all bank account statements
in the name of the Client for the preceding
month.
6. The existing Clause 12.4.1.1 contained in the Invoice Discounting
Agreement, as amended, shall be deleted in its entirety and
replaced with the following new Clause 12.4.1.1:-
Fixed Charge Coverage Ratio
The ratio of Consolidated EBITDA to Consolidated Fixed Charges as
at 31 March, 30 June, 30 September and 31 December in each year
and measured for the 12 months ending on such dates on a rolling
basis, shall not be less than 1.1 to 1.
For the purposes of this Clause 12.4.1.1 only, the following
definitions shall apply:-
"Cash Interest Expense" means, for any period, the sum of
the aggregate interest expense
(excluding all amounts
attributable to non-cash items of
interest expense) for such period
in respect of Indebtedness
determined in accordance with
GAAP.
"Consolidated", means the consolidation of the
"Consolidating" accounts of the Group in accordance
or "Consolidated Basis" with GAAP, including principles
of consolidation.
"Consolidated EBITDA" means, for any period, the sum of
the following on a Consolidated
basis:
(a) Profit After Taxation for such
period; plus
(b) without duplication and to the
extent deducted in computing
such Profit After Taxation for
such period, the sum of (i)
Consolidated Cash Interest
Expenses, plus (ii) corporation
taxation charge, plus (iii)
depreciation and amortisation
expense, plus (iv) amortisation
or write-off of debt discount
and debt issuance costs and
commissions, discounts and other
fees and charges associated with
Indebtedness (including the
Invoice Discounting Facility)
included within interest payable
in accordance with GAAP, plus
(v) amortisation of intangibles
(including, but not limited to,
goodwill) and organisation
costs, plus (vi) any exceptional
or extraordinary items as
defined within GAAP (including,
whether or not otherwise
includable as a separate item in
arriving at Profit After
Taxation for such period, losses
on sales of assets outside of
the ordinary course of
business), plus (vii) any other
non-cash charges; and minus
(c) to the extent included in
computing such Profit After
Taxation for such period, the
sum of (i) any exceptional or
extraordinary gains as defined
within GAAP (including, whether
or not otherwise includable as a
separate item in arriving at
Profit After Taxation for such
period, gains on the sales of
assets outside of the ordinary
course of business), plus (ii)
any other non-cash income.
"Consolidated Fixed means, for any period, the sum of
Charges" the following on a Consolidated
basis:
(a) Maintenance Capital
Expenditures; plus
(b) Cash Interest Expense; plus
(c) all regularly scheduled
repayments of principal of
Indebtedness (including
principal repurchases under the
Invoice Discounting Facility and
principal repayments of any
Finance Lease Obligations); plus
(d) corporation tax payable arising
during the period. -
"Finance Lease means the obligations of the Group
Obligations" to pay rent or other amounts under
any lease of (or other arrangement
conveying the right to use) real or
personal property, or a combination
thereof, which obligations are
required to be classified and
accounted for as Finance Leases of
the Group under GAAP, and the amount
of such obligations shall be the
capitalised amount thereof
determined in accordance with GAAP.
"Indebtedness" at a particular time, means all
items which, in conformity with
GAAP, would be classified as
liabilities on a balance sheet of
any member of the Group as at such
time and which constitute:
(a) indebtedness for borrowed money
or for the deferred purchase
price of property or services in
respect of which the relevant
member is liable, contingently
or otherwise, as obligor,
guarantor or otherwise, or any
commitment by which the relevant
member of the Group assures a
credit against loss, (including,
without limitation, all notes
payable and drafts accepted
representing extensions of
credit and all obligations
evidenced by bonds, debentures,
notes or other similar
instruments, but excluding trade
creditors incurred in the
ordinary course of business);
(b) obligations with respect to any
conditional sale agreement or
title retention agreement;
(c) indebtedness arising under
acceptance facilities in
connection with surety or other
similar bonds, and the
outstanding amount of all
letters of credit issued for the
account of the relevant member
of the Group and, without
duplication, all drafts drawn
thereunder;
(d) all liabilities secured by any
security interest in any
property owned by the relevant
member of the Group even though
it has not assumed or otherwise
become liable for the payment
thereof;
(e) Finance Lease Obligations in
respect of which the relevant
member of the Group is liable,
contingently or otherwise, as
obligor, guarantor or otherwise,
or in respect of which
obligations the Client assures a
creditor against loss; and
(f) obligations with respect to
interest rate protection
agreements.
"Maintenance Capital Expenditure" means for such period, all
expenditures for any tangible fixed
assets or replacements or
substitutions which have not been
expensed and which have a useful
life or more than one (1) year,
including, but not limited to, the
direct or indirect acquisition of
such assets by way of increased
product or service charges, offset
items or otherwise, and additions to
assets subject to Finance Leases
recorded in accordance with GAAP,
but excluding expenditure for
capital assets funded by proceeds of
casualty insurance policies.
"Profit After Taxation" means, with respect to any period,
all amounts which, in conformity
with Schedule 4 of the Companies Xxx
0000, would be included in arriving
at profit after taxation on the
profit and loss account for such
period.
SIGNED AND DELIVERED AS A DEED )
on the 16th day of 2001 )
by THE ROYAL BANK OF SCOTLAND )
INVOICE DISCOUNTING LIMITED )
(acting by its agent for )
The Royal Bank of Scotland )
Commercial Services Limited) acting by ) /s/XXXXXXX XXXXXXX
its duly appointed Attorney under a power ) ------------------
granted on the Thirtieth Day of October 1996 ) (Attorney for and on behalf
in the presence of:- ) of The Royal Bank of Scotland
) Commercial Services Limited)
Witness Signature /s/ XXXX XXXXXX
Witness Name XXXX XXXXXX
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Address 00 XXXXX XXXXXXXXXXX XXXXXX
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XXXXXXXXXX X0 0XX
SIGNED AND DELIVERED AS A DEED )
on the 16th day of 2001 )
for and on behalf of )
NIAGARA LASALLE (UK) LIMITED )
by )
XXXXXXX XXXX XXXXXXXX Director /s/XXXXXXX XXXX XXXXXXXX
--------------------- ------------------------
(Print Name) (Signature)
XXXXXXX XXXXXXXX Director/Secretary /s/ XXXXXXX XXXXXXXX
---------------- --------------------
(Print Name) (Signature)
SIGNED AND DELIVERED AS A DEED )
on the 16th day of July 2001 )
for and on behalf of NIAGARA CORPORATION by )
XXXXXXX XXXXXXXX Duly authorised official /s/ XXXXXXX XXXXXXXX
---------------- --------------------
(Print Name) (Signature)
