Exhibit 4.22
DATED 23 MARCH 2004
(1) NATIONAL WESTMINSTER BANK PLC
--and -
(2) NIAGARA LASALLE (UK) LIMITED
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SIXTH AMENDMENT AGREEMENT
Relating to a Bank Facilities Agreement
dated 21 May 1999 (as amended)
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CONTENTS
1 INTERPRETATION 1
2 AMENDMENT 1
3 CONFIRMATIONS 1
4 REPRESENTATIONS 2
5 MISCELLANEOUS 2
SCHEDULE - AMENDMENTS TO THE BANK FACILITIES AGREEMENT 3
THIS AMENDMENT AGREEMENT is made on the 23rd day of March 2004 BETWEEN:
(1) NATIONAL WESTMINSTER BANK PLC a company incorporated in England and
Wales acting through its office at 0 Xx Xxxxxxxx Xxxxx Xxxxxxxxxx X0
0XX (the "Bank"); and
(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 "Borrower")
WHEREAS:
(A) Pursuant to a bank facilities agreement dated 21 May 1999 between the
Bank and the Borrower (the "Facilities Agreement") the Bank agreed to
make available to the Borrower certain facilities.
(B) The Facilities Agreement was amended with effect on and from 30 June
2000 pursuant to an Amendment Agreement dated 11 September 2000 (the
"First Amendment Agreement").
(C) The Facilities Agreement was further amended with effect on and from
30 June 2001 pursuant to an Amendment Agreement dated 16 July 2001
(the "Second Amendment Agreement").
(D) The Facilities Agreement was further amended with effect on and from
31 December 2001 pursuant to an Amendment Agreement dated 21 February
2002 (the "Third Amendment Agreement").
(E) The Facilities Agreement was further amended with effect on and from
31 March 2002 pursuant to an Amendment Agreement dated 9 May 2002
(the "Fourth Amendment Agreement").
(F) The Facilities Agreement was further amended by a side letter dated
13 May 2003 between the Bank and the Borrower (the "Side Letter").
(G) The Facilities Agreement was further amended with effect on and from
8 August 2003 pursuant to an Amendment Agreement dated the same date
(the "Fifth Amendment Agreement").
(H) The First Amendment Agreement, the Second Amendment Agreement, the
Third Amendment Agreement, the Fourth Amendment Agreement, the Side
Letter and the Fifth Amendment Agreement are collectively referred to
in this Amendment Agreement as the "Prior Amendment Agreements."
(I) The Borrower and the Bank have subsequently agreed to certain further
amendments to the Facilities Agreement as set out in this Amendment
Agreement.
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 Facilities
Agreement, save that any references to the "Facilities Agreement" in
this Amendment Agreement shall mean such agreement as amended by the
Prior Amendment Agreements.
1.2. Interpretation
Clauses 1.2 - 1.12 (inclusive) of the Facilities 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 31 December 2003, the Facilities Agreement
shall be further amended in accordance with the amendments set out in
the Schedule to this Amendment Agreement.
3. CONFIRMATIONS
3.1. Save as expressly amended by the Prior Amendment Agreements
and this Amendment Agreement, the Facilities Agreement shall
remain in full force and effect.
3.2. Each of the parties hereto confirms that, notwithstanding
the amendment of the Facilities Agreement, each of the
Lending Documents to which it is a party remains in full
force and effect and will continue to secure the obligations
of the Borrower under the Facilities Agreement and that, as
and from the date of this Amendment Agreement, any and all
references in each of the Lending Documents to the
Facilities Agreement will, where applicable, be construed as
references to the Facilities Agreement as amended by the
Prior Amendment Agreements and this Amendment Agreement.
3.3. This Amendment Agreement shall be a Lending Document.
4. REPRESENTATIONS
The Borrower hereby represents and warrants to the Bank that, save as
expressly varied or amended by the Prior Amendment Agreements and
this Amendment Agreement, the representations and warranties referred
to in clauses 8.1 and 8.2 of the Facilities 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 Borrower shall be responsible for, on an indemnity
basis, the Bank's (and any of its advisers) costs including
any VAT and disbursements incurred in connection with this
Amendment Agreement
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 Facilities Agreement
With effect on and from 31 December 2003, the Facilities Agreement shall be
further amended as set out in this Schedule. All references in this Schedule
to clause numbers are references to clauses in the Facilities Agreement and
all references to paragraph numbers are references to paragraphs of this
Schedule.
1. The definition of "Adjusted Tangible Net Worth" in Clause 1.1 of the
Facilities Agreement shall be amended by the addition of the following
a) to the end of the first paragraph of such definition:-
"as determined in accordance with GAAP"
b) to the end of the last paragraph of such definition:-
"provided that no such addition, deduction, exclusion or
adjustment shall be made if it arises or relates to any
event occurring on or prior to 31 December 2003."
2. Clause 7.1.1 of the Facilities Agreement shall be deleted in its entirety
and replaced with the following new clause 7.1.1:-
"7.1.1 the principal amount of the Term Facility in the
following manner:
starting on 31 January 2004 and then at
the end of every month thereafter through
and including 30 April 2006, (pound)90,000
each month in arrears, with a final
payment of (pound)1,348,750 on 21 May 2006."
3. The existing Clause 9.3.2 (Adjusted Tangible Net Worth) contained in the
Facilities Agreement, as amended, shall be amended by the replacement of the
figure "(pound)8,500,000" in the final row of column C with the figure
"(pound)4,600,000". For the avoidance of doubt, the effect of this amendment
is such that the Borrower undertakes to the Bank that Adjusted Tangible Net
Worth will not be less than (pound)4,600,000 on 31 December 2003 and
thereafter.
4. The first paragraph in the existing Clause 9.3.1 contained in the
Facilities Agreement, as amended, shall be deleted in its entirety and
replaced with the following new paragraph:
The ratio of Consolidated EBITDA to Consolidated Fixed Charges as at
31 March, 30 June, 30 September and 31 December in each year
following 2003 shall not be less than 1 to 1. Such ratio shall be
measured for the 12 months ending on such dates on a rolling basis
except that such ratio as at 31 March 2004, 30 June 2004 and 30
September 2004 shall be measured for the 3, 6 and 9 months,
respectively, ending on such dates. For the avoidance of doubt, the
first test date for this covenant shall be 31 March 2004.
SIGNED BY /s/ Xxxxxxx Xxxxxx SIGNED BY /s/ Xxxxx Xxxxxxx
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for and on behalf of for and on behalf of
NIAGARA LASALLE NATIONAL WESTMINSTER
(UK) LIMITED BANK PLC
AGREED
/s/ Xxxxxx X. Xxxx
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Xxxxxx X Xxxx, Vice President
For and on behalf of
M & T Bank
