Exhibit 4.2
DATED 21 MAY 1999
(1) NATIONAL WESTMINSTER BANK PLC
(2) NIAGARA CORPORATION
(3) NIAGARA LASALLE (UK) LIMITED
INTERCREDITOR AGREEMENT
Ref : RHH/PAJ/Bircorp176916
Eversheds
000 Xxxxxxx Xxx
Xxxxxxxxxx
X0 0XX
THIS AGREEMENT is made on 21 May 1999
BETWEEN:-
(1) NATIONAL WESTMINSTER BANK PLC (registered number 929027), acting
through its office at XX Xxx 0000, 000 Xxxxxxx Xxx, Xxxxxxxxxx X0 0XX
(the "Bank") as lender under a facilities agreement of today's date
made between the Bank (1) and the Borrower (2) (the "Facilities
Agreement"), which expression shall be deemed to include any
amendments, supplements, accessions, variations or additions made in
accordance with the terms of the Facilities Agreement;
(2) NIAGARA CORPORATION, a Delaware Corporation whose principal place of
business is at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, United
States of America ("Niagara"); and
(3) NIAGARA LASALLE (UK) LIMITED (registered number 3725308) whose
registered office is at Victoria Xxxxx Xxxxx, Xxxx Xxxx, Xxxxxx,
Xxxxxxxxxx, XX00 0XX (the "Borrower") (together the "Parties")
NOW IT IS HEREBY AGREED AS FOLLOWS:-
1. Except where expressly stated to the contrary, or where the context
otherwise requires, terms defined in the Facilities Agreement shall
have the same meanings when used in this Agreement. In this
Agreement, the following terms have the following meanings:
"Bank's Liabilities" means all moneys and liabilities, whatsoever
and wherever, actual or contingent, and
whether as principal or surety, presently or
in the future due, owing or incurred by the
Borrower to the Bank under the Facilities
Agreement and the other Lending Documents;
"Discharge Date" means the date on which the Bank's
Liabilities under the Facilities Agreement
have been irrevocably paid or discharged in
full;
"Shares" means any share capital in the Borrower
whether issued now or in the future;
"Subordinated Liabilities" means all moneys and liabilities, whatsoever
and wherever, actual or contingent, and
whether as principal or surety, presently or
in the future due, owing or incurred by the
Borrower to Niagara under the Intra Group
Loan Agreement including, without
limitation, all interest, fees and related
costs.
2. In consideration of the Bank entering into the Facilities Agreement
and making available the Facilities to the Borrower, until the
Discharge Date, Niagara and the Borrower jointly and severally agree
and undertake with the Bank in the terms set out in this Agreement.
3. The Borrower shall ensure that, until the Discharge Date and other
than as permitted by the terms of the Facilities Agreement, it shall
not pay (or make) any dividend (or other distribution) in respect of
the Shares without the prior written consent of the Bank, or make any
repayments or prepayments of principal (or interest) to Niagara in
respect of the Subordinated Liabilities, but the parties acknowledge
that the provision of this clause 3 and clauses 6.3, 6.5 and 6.9 of
this Agreement will not restrict the repayment of loans made to the
Borrower by the Holding Company pursuant to clause 9.2.2(g) of the
Facilities Agreement unless at that time (i) any payment of principal
or interest due owing or incurred under the Facilities Agreement
remains unpaid or (ii) the financial covenants contained in clause
9.3 of the Facilities Agreement have not been met or (iii) an Event
of Default or Potential Default has occurred and is continuing.
4. Any moneys received by Niagara from the Borrower in breach of the
undertaking in clause 3 shall be deemed never to have been paid by
the Borrower to Niagara.
5. Niagara acknowledges and undertakes to the Bank that any repayments,
prepayments, dividends or distributions received by it from the
Borrower in breach of clause 3 are deemed to be held on trust by
Niagara for and on behalf of the Bank and shall be paid to the Bank,
together with interest accrued at 2 per cent above the Bank's base
rate starting from the date of receipt by Niagara, within 3 Business
Days of receipt.
6. Until the Discharge Date:-
6.1 Niagara undertakes to the Bank that Niagara shall not transfer
any part of the Subordinated Liabilities or the benefit of the
Intra Group Loan Agreement nor transfer any Shares held by
Niagara (or its interest and entitlement thereto) to any
person, and the Borrower undertakes that it shall not register
any transfer of any Shares;
6.2 other than the Shares being issued to Niagara pursuant to
Clause 4.1.10 of the Facilities Agreement, the Borrower
undertakes to the Bank that it shall not issue any further
Shares in the Borrower to any other person;
6.3 the rights of Niagara in respect of the Subordinated
Liabilities (and the obligations of the Borrower in respect of
the Subordinated Liabilities) are subordinated (and postponed
in all respects) to the rights of the Bank (and the obligations
of the Borrower) under the Facilities Agreement and the other
Lending Documents and accordingly repayments of any amount
(whether of principal or interest) under the Subordinated
Liabilities shall only be made to Niagara after the Discharge
Date;
6.4 if the Subordinated Liabilities or any part thereof are
converted into Shares, the Borrower undertakes not to declare
any dividends in respect of such Shares, or make any
distributions, without the written consent of the Bank;
6.5 Niagara and the Borrower undertake that the Subordinated
Liabilities shall not be paid by the Borrower until after the
point in time that the Bank has received repayment of the
Facilities or any other monies or liabilities due, owing or
incurred under the Facilities Agreement;
6.6 Niagara undertakes not to demand, claim, xxx or prove for or
receive payment of any of the Subordinated Liabilities or
continue with any demand, claim, proof or suit in respect
thereof which it may previously have made or commenced;
6.7 the Borrower undertakes not to create any kind of Security
Interest under which the Subordinated Liabilities or any part
or parts thereof are to be secured in favour of Niagara;
6.8 Niagara and the Borrower undertake not to vary, alter or amend
in any way the Intra Group Loan Agreement or the terms upon
which the Subordinated Liabilities have been made available
without obtaining the Bank's prior written consent; and
6.9 the Bank's Liabilities shall always rank above and in priority
to the Subordinated Liabilities in all respects.
7. Other than under the Bank's rights to assign the benefit of the
Facilities Agreement in the circumstances envisaged by Clause 18.3 of
the Facilities Agreement, the rights and obligations under this
Agreement may not be assigned or transferred by any Party to any
other person, without the prior written consent of each of the
others.
8. This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall be an original, but all of
which when taken together shall constitute a single instrument.
9. Every notice made under this Agreement shall be given in writing and
shall be sent:
9.1 in the case of the Borrower, to its address at:
Victoria Steel Works,
Xxxx Xxxx,
Xxxxxx,
Xxxxxxxxxx
Xxxx Xxxxxxxx XX00 0XX
Facsimile : 0121 556 7623
Attention : Xxxx Xxxxxxxx;
with a copy to Niagara at the address and to the addressee
set out below
9.2 in the case of the Bank, to its address at:
XX Xxx 0000
000 Xxxxxxx Xxx
Xxxxxxxxxx
X0 0XX
Facsimile : 0121 234 2504
Attention : The Corporate Director; and
9.3 in the case of Niagara, to its address at:
000 Xxxxxxx Xxxxxx,
Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Facsimile : 001 212 317 1001
Attention : Xxxxxxx Xxxxxx; or
9.4 to such other address or facsimile number as any of the above
Parties may from time to time notify to each of the other
Parties in writing.
10. Every notice sent pursuant to this Agreement:
10.1 personally, shall be deemed to have been received on delivery;
10.2 by facsimile shall be confirmed by posting first class post,
and shall be deemed to have been received three Business Days
after posting and not, for the avoidance of doubt, on
transmission of the facsimile; and
10.3 by first class post, shall be deemed to have been received
three Business Days after posting.
11. This Agreement shall be governed by, and construed in accordance
with, English law and the Parties hereto submit to the exclusive
jurisdiction of the English Courts in respect of any dispute arising
out of it.
EXECUTED as a Deed Signed : Xxxx Xxxxx
by NATIONAL WESTMINSTER BANK PLC
acting by its authorised signatory
in the presence of: Witnessed: Xxxxxxx Xxxxxx
EXECUTED as a Deed Signed: Xxxxxxx Xxxxxx
by NIAGARA CORPORATION
acting by its duly authorised officers:- Signed: Xxxxxxx Xxxxxxxx
Director
Director/Company Secretary
EXECUTED as a Deed Signed: Xxxxxxx Xxxxxx
by NIAGARA LASALLE (UK) LIMITED
acting by its duly authorised officers:- Signed: Xxxxxxx Xxxxxxxx
Director
Director/Secretary
