EXHIBIT 4.13
DATED 23 AUGUST 1999
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(1) LOMBARD NATWEST DISCOUNTING LIMITED
(2) NIAGARA CORPORATION
(3) NIAGARA LASALLE (UK) LIMITED
INTERCREDITOR AGREEMENT
Ref: RHH/PAJ/Bircorp186053
Eversheds
000 Xxxxxxx Xxx
Xxxxxxxxxx
X0 0XX
THIS AGREEMENT is made on the 23rd August 1999
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BETWEEN:-
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(1) Lombard NatWest Discounting Limited (registered number 943038), whose
registered office is at Xxxxx House, PO Box 50, Elmwood Avenue,
Feltham, Middlesex, TW13 7WD ("LND") as financier under an invoice
discounting agreement dated 23 August 1999 made between LND (1) and
the Borrower (2) (the "Invoice Discounting Agreement"), which
expression shall be deemed to include any amendments, supplements,
accessions, variations or additions made in accordance with the terms
of the Invoice Discounting 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:
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1. Except where expressly stated to the contrary, or where the context
otherwise requires, terms defined in the Invoice Discounting Agreement
shall have the same meanings when used in this Agreement. In this
Agreement, the following terms have the following meanings:
"Discharge Date" means the date on which LND's
Liabilities under the Invoice
Discounting Agreement have been
irrevocably paid or discharged in full;
"LND'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 LND
under the Invoice Discounting
Agreement and the other Discounting
Documents;
"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 LND entering into the Invoice Discounting
Agreement and making available the Invoice Discounting Facility to the
Borrower, until the Discharge Date, Niagara and the Borrower jointly
and severally agree and undertake with LND 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 Invoice Discounting Agreement,
it shall not pay (or make) any dividend (or other distribution) in
respect of the Shares without the prior written consent of LND, 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 Niagara pursuant to clause 12.3.4 or 12.2.20
of the Invoice Discounting Agreement unless at that time (i) any
payment of monies due owing or incurred under the Invoice Discounting
Agreement remains unpaid or (ii) the financial covenants contained in
clause 12.4 of the Invoice Discounting Agreement have not been met or
(iii) a 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 LND 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 LND and shall be paid to LND, together
with interest accrued at 2 per cent above the base rate of National
Westminster Bank Plc from time to time starting from the date of
receipt by Niagara, within 3 Business Days of receipt.
6. Until the Discharge Date:-
6.1 Niagara undertakes to LND 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 already issued to Niagara and referred to
in Clause 2.3 of paragraph 2 of Schedule 1 to the Invoice
Discounting Agreement, the Borrower undertakes to LND 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 LND (and the obligations of
the Borrower) under the Invoice Discounting Agreement and the
other Discounting 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 prior written consent of LND;
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 LND has received repayment of the Invoice
Discounting Facility or any other monies or liabilities due,
owing or incurred under the Invoice Discounting 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 LND's prior written consent;
6.9 LND's Liabilities shall always rank above and in priority to
the Subordinated Liabilities in all respects; and
6.10 Available Headroom: it will ensure that, at all times during
the Invoice Discounting Facility, the Available Headroom is a
minimum amount of (pound)2,500,000 (two million five hundred
thousand pounds Sterling) and to the extent that the Available
Headroom falls below such amount and to the extent that loans
("Intra Group Loans") to the Initial Client (but excluding for
this purpose the Subordinated Loan which shall not be counted
towards calculation of the Available Headroom) are less than
(pound)2,500,000, will procure that the Holding Company will
lend to the Initial Client such sums (on an interest free and
unsecured basis so as to increase the amount of the Intra Group
Loans up to a maximum amount of (pound)2,500,000) as will
result in the Available Headroom being restored to the
amount referred to above.
If the opinion of LND, (after the increase of such Intra Group
Loans) the Available Headroom is still less than
(pound)2,500,000 it will take all steps open to it to create
the circumstances to permit that the Holding Company will lend
to the Initial Client such additional sums (on an interest free
and unsecured basis) up to an additional maximum amount of
(pound)2,500,000 (Two million five hundred thousand Pounds
Sterling) subject to the Holding Company obtaining all required
approvals from MTT (as agent) and NWB
PROVIDED THAT the Holding Company's obligations to inject such
funds by way of loan under this Clause 12.2.20 can never exceed
the principal amount of (pound)5,000,000 (Five million Pounds
Sterling)
7. Other than under LND's rights to assign or transfer the benefit of the
Invoice Discounting Agreement in the circumstances envisaged by
Clauses 19.3 and 19.4 of the Invoice Discounting 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 LND, to its address at:
Xxxxx House
XX Xxx 00
Xxxxxxx Xxxxxx,
Xxxxxxx
Xxxxxxxxx XX00 0XX
Facsimile : 0181 895 7568
Attention : The Company Secretary; and
with a copy to :
Lombard Nat West Commercial Services Limited
Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx
Xxxxx
XX00 0XX
Facsimile : 0113 230 6690
Attention : Xxx Xxxxxx
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
by LOMBARD NATWEST DISCOUNTING LIMITED /s/ XXX XXXXXX
acting by its authorised signatory in the presence of:-
X.X. Xxxxx-Xxxxxx
000 Xxxxxxx Xxx
Xxxxxxxxxx
X0 0XX
EXECUTED as a Deed
by NIAGARA CORPORATION
acting by its duly authorised officers:-
/s/ XXXXXXX XXXXXX
PRESIDENT
/s/ XXXXXXX XXXXXXXX
VICE PRESIDENT
EXECUTED as a Deed
by NIAGARA LASALLE (UK) LIMITED
acting by its duly authorised officers:-
/s/ XXXX XXXXXXXX
/s/ XXXXXXX XXXXXXXX
