Exhibit 4.14
CONFORMED COPY
DATED 16TH JULY 2001
(1) NATIONAL WESTMINSTER BANK PLC
and
(2) NIAGARA LASALLE (UK) LIMITED
SECOND AMENDMENT AGREEMENT
relating to a bank facilities agreement
dated 21 May 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 BANK FACILITIES AGREEMENT.....................2
THIS AMENDMENT AGREEMENT is made on 16th July 2001
BETWEEN:
(1) NATIONAL WESTMINSTER BANK PLC, a company incorporated in England
and Wales acting through its office at P O Box 4641, 000 Xxxxxxx
Xxx, 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) By an Amendment Agreement dated 11 September 2000 (the "First
Amendment") the Borrower and the Bank agreed to certain
amendments to the Facilities Agreement.
(C) The Borrower has further requested and the Bank has agreed that
the Facilities Agreement, as amended, 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 Facilities Agreement, as
amended.
1.2 Interpretation
Clauses 1.2 to 1.12 (inclusive) of the Facilities Agreement,
as amended, 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 Facilities
Agreement, as amended, 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 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 as so amended, 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 First Amendmend 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 First Amendment and
this Amendment Agreement the representations and warranties
referred to in Clauses 8.1 and 8.2 of the Facilities Agreement
as amended 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 from 30 June 2001 the Facilities 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 Facilities Agreement as
amended and all references to paragraph numbers are references to paragraphs
of this Schedule.
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 Clause
9.3.1:-
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 9.3.1 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" or accounts of the Group in accordance
"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 Expense, plus (ii)
corporation tax 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 under the
Facilities Agreement)
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 gain 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 Charges" means, for any period, the sum of
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 repayments under the
Facilities Agreement and
principal repayments of any
Finance Lease Obligations); plus
(d) corporation tax payable arising
during the period.
"Finance Lease Obligations" means the obligations of the Group
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.
SIGNED AND DELIVERED AS A DEED )
on the 16th day of July 2001 )
by NATIONAL WESTMINSTER BANK PLC )
in the presence of:-
/s/ XXXXX XXXXXXXXX
(Attorney for and on behalf of
National Westminster Bank PLC )
Witness Signature /s/ X.X.XXXXX-XXXXXX
Witness Name X.X. XXXXX-XXXXXX
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Address 000 XXXXXXX XXX
XXXXXXXXXX X0 0XX
SIGNED AND DELIVERED AS A DEED )
on the 16th day of July 2001 )
for and on behalf of )
NIAGARA LASALLE (UK) LIMITED )
by )
XXXXXXX XXXX XXXXXXXX Director /s/XXXXXXX XXXX XXXXXXXX
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(Print Name) (Signature)
XXXXXXX XXXXXXXX Director/Secretary /s/ XXXXXXX XXXXXXXX
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(Print Name) (Signature)
