Fifth Amendment to Amended and Restated Multicurrency Credit Agreement among APW Ltd., Bank of America, N.A., and Other Lenders

Summary

This amendment updates the terms of a multicurrency credit agreement between APW Ltd., several financial institutions, and Bank of America, N.A. as administrative agent. It allows APW Ltd. to defer certain interest payments until April 15, 2002, and temporarily waives compliance with specific financial requirements. The amendment also revises reporting obligations and confirms that all parties remain bound by the original agreement, as modified. The changes become effective once all required documents and consents are received.

EX-4.1 3 dex41.txt FIFTH AMEND - MULTICURRENCY CREDIT AGRMNT Exhibit 4.1 FIFTH AMENDMENT TO AMENDED AND RESTATE MULTICURRENCY CREDIT AGREEMENT THIS FIFTH AMENDMENT TO AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT, dated as of February 15, 2002 (this "Amendment"), amends the Amended and Restated Multicurrency Credit Agreement, dated as of May 15, 2001 (as heretofore amended, the "Credit Agreement"), among APW Ltd., a Bermuda corporation (the "Borrower"), the various financial institutions parties thereto (collectively, the "Banks"), Bank One, NA, as syndication agent, The Chase Manhattan Bank, as documentation agent and Bank of America, N.A., as administrative agent. Terms defined in the Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used herein as defined therein. WHEREAS, the parties hereto have entered into the Credit Agreement, which provides for the Banks to extend certain credit facilities to the Borrower from time to time; and WHEREAS, the parties hereto desire to amend the Credit Agreement in certain respects as hereinafter set forth; NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows: SECTION 1. CONSENT. The Banks hereby agree that notwithstanding the provisions of Section 2.12(b) of the Credit Agreement, the interest payments scheduled to be due prior to April 15, 2002 (the "Deferral Date"), shall not be payable until the earliest date of: (i) the Deferral Date, or (ii) the first date after January 15, 2002 on which the lenders under the UK Facility receive any payment in respect of interest or commissions under the UK Facility. SECTION 2. WAIVER. The Banks hereby waive the right to require compliance by the Borrower and its Subsidiaries with the requirements of Section 7.6 of the Credit Agreement for the period from January 31, 2002 to but excluding April 15, 2002. SECTION 3. LIMITATION OF CONSENT AND WAIVER. The consent and waiver set forth herein shall be limited to their terms and shall not constitute a waiver of any other rights the Banks may have from time to time, including the right, upon the occurrence of an Event of Default other than the failure to pay such interest prior to the Deferral Date or the breach of any agreement specifically waived hereunder, to accelerate the maturity of the Loans and all payments, including interest payment, with respect thereto. SECTION 4. AMENDMENTS. As of the date hereof, the Credit Agreement is amended as follows: 4.1 Interim Reports. Section 7.1(b) of the Credit Agreement is hereby amended to state in its entirety as follows: "(b) Interim Reports (i) Promptly when available and in any event within 45 days after the end of each Fiscal Quarter (except the Last Fiscal Quarter of each Fiscal Year), consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter, consolidated statements of earnings and a consolidated statement of cash flow for such Fiscal Quarter and for the period beginning with the first day of such Fiscal Year and ending on the last day of such Fiscal Quarter of the Borrower and its Subsidiaries, with, in the case of each Fiscal Quarter ending on or after November 30, 2001, comparable information at the close of and for the corresponding portion of such prior Fiscal Year, together with a certificate of the chief financial officer or the Treasurer of the Borrower to the effect that such financial statements fairly present the financial condition and results of operations of the Borrower and its Subsidiaries of the date and periods indicated (subject to normal year-end adjustments). (ii) Promptly when available and in any event within 30 days after the end of each calendar month, consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such month, consolidated statements of earnings and a consolidated statement of cash flow for such month and for the period beginning with the first day of such Fiscal Year and ending on the last day of such month of the Borrower and its Subsidiaries, together with a certificate of the chief financial officer or the Treasurer of the Borrower to the effect that such financial statements fairly represent the financial condition and results of operations of the Borrower and its Subsidiaries as of the date and periods indicated (subject to normal year-end adjustments)." 4.2 Representations. Section 6.5 of the Credit Agreement is hereby amended to state in its entirety as follows: "6.5 No Material Adverse Effect. No event has occurred or condition has arisen that has had or is reasonably likely to have a Material Adverse Effect since February 28, 2001, with respect to the Borrower and its Subsidiaries, except as described in Item 6.5 of the Disclosure Schedule or otherwise disclosed in writing to the Banks prior to the date of the Fifth Amendment hereto." SECTION 5. CONDITIONS PRECEDENT. This Amendment shall become effective when each of the conditions precedent set forth in this Section 3 shall have been satisfied, and notice thereof shall have been given by the Agent to the Borrower and the Lenders. 2 5.1 Receipt of Documents. This Administrative Agent shall have received all of the following documents duly executed, dated the date hereof or such other date as shall be acceptable to the Administrative Agent, and in form and substance satisfactory to the Administrative Agent: a) Amendment. This Amendment, duly executed by the Borrower, the Administrative Agent and the Lenders. b) Consents. Consents of all Guarantors hereto. c) UK Facility. Amendments to the UK Facility providing that interest on the UK Facility shall not be payable prior to the Deferral Date and making other changes consistent herewith. SECTION 6. REPRESENTATIONS AND WARRANTIES. To induce the Banks and the Administrative Agent to enter into this Amendment, the Borrower hereby reaffirms, as of the date hereof, its representations and warranties contained in the Credit Agreement, as hereby amended, and the other Loan Documents, and the Borrower additionally represents and warrants to the Administrative Agent and each Bank as follows: 6.1 Due Authorization, Non-Contravention, etc. The execution, delivery and performance by the Borrower of this Amendment are within the Borrower's corporate powers, have been duly authorized by all necessary corporation action, and do not a) contravene the Borrower's Organic Documents; b) contravene any contractual restriction, law or governmental regulation or court decree or order binding on or affecting the Borrower; or c) result in, or require the creation or imposition of, any Lien on any of the Borrower's properties. 6.2 Governmental Approval, Regulations, etc. No authorization or approval o other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by the Borrower of this Amendment. 6.3 Validity, etc. This Amendment constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except to the extent enforceability thereof is limited by bankruptcy, insolvency or other laws relating to, or affecting enforcement of, creditors' rights in general, and general principles of equity. SECTION 7. MISCELLANEOUS 7.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an amendment to the Credit Agreement, and the Credit Agreement, as amended hereby, shall remain in full force and effect and is hereby ratified, approved and confirmed in each and every respect. After the effectiveness of this Amendment in accordance with its terms, all references to 3 the Credit Agreement in the Loan Documents or in any other document, instrument, agreement or writing shall be deemed to refer to the Credit Agreement as amended hereby. 7.2 Payment of Costs and Expenses. The Borrower agrees to pay on demand all expenses of the Administrative Agent (including the fees and out-of-pocket expenses of counsel to the Administrative Agent) in connection with the negotiation, preparation, execution and delivery of this Amendment. 7.3 Severability. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Amendment or affecting the validity or enforceability of such provision in any other jurisdiction. 7.4 Headings. The various headings of this Amendment are inserted for convenience only and shall not affect the meaning or interpretation of this Amendment or any provisions hereof. 7.5 Execution in Counterparts. This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. 7.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. 7.7 Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 4 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written. APW LTD. By: /s/ Richard D. Carroll ---------------------- Name: Richard D. Carroll Title: VP-CFO BANK OF AMERICAN, N.A., as Administrative Agent and as a Bank By: /s/ M. Duncan McDuffie ------------------------ Name: M. Duncan McDuffie Title: Managing Director THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH By: /s/ Shinichiro Munechika -------------------------- Name: Shinichiro Munechika Title: Deputy General Manager BANK ONE, N.A. (Main Office Chicago) as Syndication Agent and as a Bank By: /s/ Thomas T. Bower --------------------- Name: Thomas T. Bower Title: Senior Vice President BNP PARIBAS By: /s/ Barbara Eppolito ---------------------- Name: Barbara Eppolito Title: Vice President By: /s/ Kathryn Quinn ------------------- Name: Kathryn Quinn Title: Vice President COPPER BEECH HOLDINGS, LLC By: /s/ Edward Smith Christie --------------------------- Name: Edward Smith Christie Title: Vice President CREDIT LYONNAIS CHICAGO BRANCH By: /s/ Richard Teitelbaum ------------------------ Name: Richard Teitelbaum Title: Vice President THE DAI-ICHI KANGYO BANK, LTD. By: /s/ Nobuyasu Fukatsu ---------------------- Name: Nobuyasu Fukatsu Title: General Manager FIRST UNION NATIONAL BANK By: /s/ William W. Teegarden -------------------------- Name: William W. Teegarden Title: Senior Vice President JPMORGAN CHASE BANK, as Documentation Agent and a Bank By: /s/ Michael Lancia -------------------- Name: Michael Lancia Title: Vice President M&I MARSHALL & ILSLEY BANK By: /s/ Michael Vellon -------------------- Name: Michael Vellon Title: Vice President By: /s/ Thomas R. Johnson ----------------------- Name: Thomas R. Johnson Title: Senior Vice President THE MITSUBISHI TRUST AND BANKING CORPORATION By: /s/ Thomas A. Pennington -------------------------- Name: Thomas A. Pennington Title: Executive Vice President 2 OCM PRINCIPAL OPPORTUNITIES FUND II, L.P. by Oaktree Capital Management, LLC, its General Partner By: /s/ John B. Frank ------------------- Name: John B. Frank Title: General Counsel By: /s/ Jordon L. Kruse --------------------- Name: Jordon L. Kruse Title: Vice President OCM OPPORTUNITIES FUND III, L.P. by Oaktree Capital Management, LLC, its General Partner By: /s/ John B. Frank ------------------- Name: John B. Frank Title: General Counsel PERRY PRINCIPALS, L.L.C. By: /s/ Nat Klipper ----------------- Name: Nat Klipper Title: ROYAL BANK OF SCOTLAND, PLC By: /s/ Ian Roberts ----------------- Name: Ian Roberts Title: Manager Specialised Lending Services SOCIETE GENERALE By: /s/ Eric E.O. Siebert Jr. -------------------------- Name: Eric E.O. Siebert Jr. Title: Director U.S. BANK NATIONAL ASSOCIATION By: /s/ Greg Wilson ----------------- Name: Greg Wilson Title: VP 3 WILLIAM E. SIMON & SONS SPECIAL SITUATIONS PARTNERS II, L.P. By: /s/ Dale Leshaw ----------------- Name: Dale Leshaw Title: Principal LEHMAN COMMERCIAL PAPER, INC. By: /s/ Jeffrey D. Tuck --------------------- Name: Jeffrey D. Tuck Title: Authorized Signatory 4 AGREEMENT AND CONSENT The undersigned Guarantors hereby agree and consent, as of the date and year first above written, to the terms and provisions of the Fourth and Fifth Amendments to the Amended and Restated Multicurrency Credit Agreement and to the terms and provisions of the Amendment Agreement amending the UK Facility, dated February 12, 2002, and agree that the Loan Documents, guarantee documents and facility agreements executed by the undersigned Guarantors shall remain in full force and effect notwithstanding the provisions of the foregoing Fifth Amendment to the Credit Agreement and the Amendment Agreement amending the UK Facility. AIR CARGO EQUIPMENT (UK) LIMITED By: /s/ Chris Green --------------------------- Name: Chris Green Title: Director APPLIED POWER LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW CASES EUROPE LTD. (formerly known as ZERO CASES EUROPE LTD.) By: /s/ Chris Green --------------------------- Name: Chris Green Title: Director APW ELECTRONICS GMBH By: /s/ Jan De Koning --------------------------- Name: Jan De Koning Title: Managing Director APW ELECTRONICS GROUP PLC By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW ELECTRONICS LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURE PRODUCTS AND SYSTEMS LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURE SYSTEMS (UK) LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary 2 APW ENCLOSURE SYSTEMS HOLDING, INC. By: /s/ James Maxwell --------------------------- Name: Title: APW ENCLOSURE SYSTEMS HOLDINGS, LTD. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURES SYSTEMS, LP by APW Enclosure Systems Holding, Inc., its General Partner By: /s/ James Maxwell --------------------------- Name: Title: APW ENCLOSURE SYSTEMS PLC By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURE SYSTEMS, INC. By: /s/ James Maxwell --------------------------- Name: Title: 3 APW ENCLOSURES (DUBLIN) LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURES LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW FINANCE LIMITED By: /s/ Jan De Koning --------------------------- Name: Jan De Koning Title: Director APW GALWAY LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW HOLDING B.V. By: /s/ Jan De Koning --------------------------- Name: Jan De Koning Title: Director APW HOLDINGS (EUROPE) LTD. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary 4 APW HOLDINGS (UK) LTD. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW INVESTMENTS UK LTD. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW MAYVILLE LLC By: /s/ James Maxwell --------------------------- Name: Title: APW MAYVILLE LTD. By: James Maxwell --------------------------- Name: Title: APW NETHERLANDS B.V. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW NEW FOREST LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary 5 APW NORTH AMERICA, INC. By: /s/ James Maxwell --------------------------- Name: Title: APW POWER SUPPLIES AS By: /s/ Eliot Swan --------------------------- Name: Eliot Swan Title: Director By: /s/ Kash Pandya --------------------------- Name: Kash Pandya Title: Director APW POWER SUPPLIES LTD. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW PRODUCTS AND SYSTEMS B.V. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary APW WRIGHT LINE LLC By: /s/ James Maxwell --------------------------- Name: Title: APW-ERIE, INC. By: /s/ James Maxwell --------------------------- Name: Title: 6 ASPEN MOTION TECHNOLOGIES INC. By: /s/ James Maxwell --------------------------- Name: Title: BEELEY WOOD HOLDINGS LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary C FAB DEVELOPMENT LTD. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary CAMBRIDGE AEROFLO, INC. By: /s/ James Maxwell --------------------------- Name: Title: CIPRESMAD-CONSULTORES E SERVICOS, LTD. By: /s/ Howard Lederman --------------------------- Name: Title: CIPRESMAD HUNGARY GROUP FINANCING LLC By: /s/ Howard Lederman --------------------------- Name: Title: 7 EDER INDUSTRIES INC. By: /s/ James Maxwell --------------------------- Name: Title: ELECTRONIC SOLUTIONS By: /s/ James Maxwell --------------------------- Name: Title: ELECTRONICS PACKAGING LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary HIGH SPEED PRODUCTION (HOLDINGS) LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary HOERMANN ELECTRONICS LIMITED By: /s/ Eliot Swan --------------------------- Name: Eliot Swan Title: Director By: /s/ Kash Pandya --------------------------- Name: Kash Pandya Title: Director HOERMANN SECURITY SYSTEMS LTD. By: /s/ Eliot Swan --------------------------- Name: Eliot Swan Title: Director By: /s/ Kash Pandya --------------------------- Name: Kash Pandya Title: Director 8 HSP SHEFFIELD LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary HSP STRATHCLYDE LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary IMHOF-BEDCO LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary IMHOF-BEDCO STANDARD PRODUCTS LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary IMHOF-BEDCO SPECIAL PRODUCTS LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary INNOVATIVE METAL FABRICATION, INC. By: /s/ James Maxwell --------------------------- Name: Title: 9 J HIGGINS MANUFACTURING (IRELAND) LTD. By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary MCLEAN MIDWEST CORPORATION By: /s/ James Maxwell --------------------------- Name: Title: MCLEAN WEST INC. By: /s/ James Maxwell --------------------------- Name: Title: METAL ARTS MANUFACTURING, INC. By: /s/ James Maxwell --------------------------- Name: Title: PRECISION FABRICATION TECHNOLOGIES INC. By: /s/ James Maxwell --------------------------- Name: Title: RUBICON FINANCE LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary 10 TOWERFLAME LIMITED By: /s/ Chris Green --------------------------- Name: Chris Green Title: Director VERO CIRCUITBOARDS LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary VERO CONNECTORS LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary VERO ELECTRONICS (EXPORTS) LTD By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary VERO ELECTRONICS, INC. By: /s/ James Maxwell --------------------------- Name: Title: WRIGHT LINE EUROPE B.V. By: /s/ Jan De Koning --------------------------- Name: Jan De Koning Title: Director WRIGHT LINE LIMITED By: /s/ Samantha Kirby --------------------------- Name: Samantha Kirby Title: Company Secretary ZERO-EAST DIVISION, ZERO CORPORATION By: /s/ James Maxwell --------------------------- Name: Title: 11