Exhibit 4.17
THIS AMENDMENT AGREEMENT is made the 15 day of May 2001
BETWEEN
(1) APW ENCLOSURE PRODUCTS & SYSTEMS LIMITED and each of its subsidiaries set
out in Schedule 1 (each a "Borrower" and together the "Borrowers"); and
(2) NATIONAL WESTMINSTER BANK PLC (the "Bank")
WHEREAS
(A) The Bank and the Borrowers entered into a (Pounds)27,000,000 multi-line
facility dated 20 April 2000 (the "Facility Agreement").
(B) On 31 July 0000, XXX Xxx, XXX Xxxxx Xxxxxxx, Inc., APW Holdings (Denmark)
APS, certain financial institutions, Bank One, N.A., as syndication agent,
The Chase Manhattan Bank as documentation agent and Bank of America,
National Association as administrative agent entered into a multicurrency
agreement (as subsequently amended and restated on and with effect from 15
May 2001) (the "Multicurrency Agreement")
(C) Pursuant to a Waiver Request, the Borrowers have requested the Bank to
waive any of its rights under any cross-default or cross-acceleration
provisions in the RBS Group Facilities arising exclusively from any non-
compliance by the Borrowers with the requirements of Section 7.6 (b) and
(c) of the Multicurrency Agreement on and subject to the terms and
conditions as outlined in the Waiver Letter.
(D) The parties wish to enter into this Agreement to record the basis on which
the Facility Agreement is being amended and restated.
IT IS AGREED as follows:-
1 DEFINITIONS AND INTERPRETATION
In this Agreement except where the context otherwise requires, words and
expressions defined and references construed in the Multicurrency Agreement
and the Facility Agreement (but not defined or construed in this Agreement)
shall have the same meaning herein, and, in addition:
"APW Counter Indemnity" means the counter indemnity granted by APW Ltd in
favour of the Bank and dated on or about 25 April 2001 replacing a previous
counter indemnity granted by APW Ltd in favour of the RBS dated 1 August
2000
"APW Group" means APW Ltd and its subsidiaries and affiliates as may be the
case from time to time
"APW" means APW Ltd, a company incorporated in Bermuda
"Debenture" means an agreement creating fixed and floating charges executed
in favour of the Security Trustee acting for and on behalf of the Banks (as
defined therein) by certain members of the APW Group and by any "Additional
Companies" (as defined therein) on or about the date of this Agreement.
-1-
"Effective Date" means the date on which the Bank receives all of the
documents and other evidence listed in Clause 3.1 (Conditions Precedent) of
this Agreement in form and substance satisfactory to it and provides the
Parent with written confirmation to that effect, having received
confirmation from the Administrative Agent that all conditions precedent to
the Multicurrency Agreement would immediately be satisfied upon such written
confirmation being provided by the Bank.
"Event Of Default" means any of the events specified in Clause 16 of the RBS
Facility (as amended from time to time
"Guarantees" mean the guarantees to be executed by certain Subsidiaries that
have not previously executed guarantees in favour of the Bank or RBS (as
applicable) in respect of all of the obligations (present, future, actual or
contingent) of the Parent or any of its other UK subsidiaries under or in
respect of either the Facility Agreement, the RBS Facility or under the APW
Counter Indemnity
"Guaranties" mean the guaranties which certain APW Group companies
incorporated in the USA, have or will execute and deliver in favour of the
UK Security Trustee in accordance with Clause 18 (Guarantees) of this
Agreement in respect of the obligations of their UK affiliates under or in
respect of the UK Finance Documents
"Intercreditor Agreement" means the intercreditor agreement dated as of 15
May 2001 between the Administrative Agent, Bank of America as Security
Trustee, the Banks, the Bank as agent, the Bank as Security Trustee, the
Bank and NatWest
"RBS" means The Royal Bank of Scotland Plc
"RBS Facility" means the facility agreement entered into between (1) APW
Electronics Group plc, APW Electronics Overseas Investments Limited, APW
Electronics Limited, APW Enclosures AB, APW Electronics GmbH, Vero
Electronics Inc., APW Enclosures S.A. and APW Electronics S.r.L and (2) RBS,
dated 20 April 2000
"RBS Group Facilities" means together the RBS Facility, the Facility
Agreement, the APW Counter Indemnity, any loan note guarantees provided by
the Bank or RBS in respect of the obligations of any member of the APW Group
and any other agreement, including any relating to replacement loans,
falling within the definition of "UK Facility" contained in the
Multicurrency Agreement
"Security Trustee" means the Bank of America, N.A.
"Termination Date" means 31 July 2003
"UK Finance Documents" means each of the Facility Agreement, the
Intercreditor Agreement, the Debentures, the Guarantees, the APW Counter
Indemnity, and any other document to be executed in connection with the
Facility Agreement or the RBS Group facilities which is not a US Finance
Document
"UK Parent" means APW Enclosure Products and Systems Limited, a company
incorporated in England and Wales
-2-
"US Finance Documents" means each of the Guaranties, the US Pledge
Agreement, the Intercreditor Agreement and the US Security Agreement and
any other document to be executed in connection therewith
"US Pledge Agreement" means a pledge agreement dated as of 15 May 2001
among APW, certain subsidiaries of APW and the Security Trustee, as amended
or modified from time to time.
"US Security Agreement" means a security agreement dated as of 15 May 2001
among APW, certain subsidiaries of APW and the Security Trustee, as amended
or modified from time to time.
"US Assignment of Security Interest in United States Trademarks and
Patents" means an assignment of security interest in United States
trademarks and patents dated as of 15 May 2001 among APW, certain
subsidiaries of APW and the Security Trustee, as amended or modified from
time to time.
"UK Security Trustee" means RBS in its capacity as such
"Waiver Letter" means the agreement entered into between the RBS and the UK
Parent acting for and on behalf of each of its UK subsidiaries dated 6
April 2001 setting out the terms upon which RBS and the Bank will continue
to make available to the UK Parent and its UK subsidiaries the RBS Group
Facilities
"Waiver Request" means the request issued by the UK Parent, APW Holdings
Denmark and APW North America Inc. dated 27 March 2001
"Warrant Agreement" means an agreement in the form attached as Exhibit I to
the Multicurrency Agreement
"Warrants" mean the share warrants issued by APW to the Bank pursuant to
the Warrant Agreement.
2 AMENDMENT OF FACILITY AGREEMENT
With effect from the Effective Date, the Facility Agreement is amended as
set out in the Agreement. The parties agree to be bound by the Facility
Agreement as amended and restated.
3 CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT TO THIS AMENDMENT AND
RESTATEMENT AGREEMENT
3.1 The obligation of the Bank to continue to make the Facility available is
subject to the condition that the Bank shall have received in a form and
substance satisfactory to it on or before the Effective Date:-
(a) a copy, certified a true and up to date copy by the Secretary of each
Borrower which is a UK Borrower or a US Borrower and each other UK Obligor
or US Obligor and, of the Certificate of Incorporation and Memorandum and
Articles of Association or their equivalent constitutional documents;
-3-
(b) a copy, certified a true and up to date copy by the Secretary of each UK
Obligor and US Obligor, of a resolution of the board of directors of such
UK Obligor or US Obligor approving the execution and delivery of the UK
Finance Documents or the US Finance Documents (as the case may be) to which
it is a party and their performance of its obligations thereunder and
authorising a person or persons (specified by name) on behalf of each UK
Obligor or US Obligor (as the case may be) to sign and deliver the UK
Finance Documents and any other documents to be delivered by it pursuant
thereto and to give all notices which may be required to be given on its
behalf under the UK Finance Documents or US Finance Documents (as the case
may be);
(c) a certificate authenticated by the Secretary of each UK Obligor and US
Obligor setting out the names and signatures of the persons authorised to
sign, on behalf of such UK Obligor and US Obligor, the UK Finance Documents
or the US Finance Documents (as the case may be) and any other documents to
be delivered by such UK Obligor and US Obligor pursuant thereto;
(d) a certificate signed by the Secretary of each UK Obligor and US Obligor
stating that their execution of the UK Finance Documents and the US Finance
Documents to which it is a party and the exercise by it of its rights and
the performance by it of its obligations thereunder are within its
corporate powers, have been approved by all necessary corporate action and
will not cause any limit or restriction on any of its powers (whether
imposed by law, decree, rule, regulation, its Memorandum or Articles of
Association (or equivalent Constitutional documents), agreement or
otherwise) or on the right or ability of its directors to exercise such
powers, to be exceeded or breached;
(e) Counterparts of each UK Finance Document and each US Finance Document duly
executed by each UK Obligor and US Obligor that is a party thereto
including the following:-
(i) Warrant Agreement in the form attached to the Multicurrency
Agreement, together with delivery of Warrants Certificates and
a certified copy of the register of stockholders evidencing the
registration of the Warrant Holders;
(ii) The US Security Agreement, together with such financing
statements and other documents as the Security Trustee may
require;
(iii) The US Pledge Agreement, together with such stock certificates,
blank stock powers and other documents as the Security Trustee
may require;
(iv) The US Assignment of Security Interest in United States Patents
and Trademarks, in a form recordable with the United States
Patent and Trademark office;
(v) The Debenture; and
(iv) The Guarantees and Guaranties to be provided pursuant to Clause
17 (Guarantees) of this Agreement in form and substance
satisfactory to the Security Trustee. For the avoidance of
doubt this includes the Guarantees to be provided by Towerflame
Limited and Air Cargo Equipment (UK) Limited.
(f) Opinions from the US Counsel of APW and the Guarantors in the form
exhibited to the Multicurrency Agreement, but addressed to the Bank and
referring to the RBS Group Facilities; and
-4-
(g) Copies of each of the other conditions precedent delivered pursuant to
Clause 5.1 of the Multicurrency Agreement.
3.2 Conditions Subsequent
It shall be a condition subsequent to this Agreement that the Bank shall
have received in a form and substance satisfactory to it within 60 days of
the Effective Date:-
(a) to the extent not provided on the Effective Date, a copy certified a true
and up to date copy by the Secretary of each Borrower which is a non UK
Borrower or a non US Borrower, and each other non UK Obligor or non US
Obligor, of the Certificate of Incorporation and Memorandum and Articles of
Association or their equivalent constitutional documents; and
(b) to the extent not provided on the Effective Date, a copy, certified a true
and up to date copy by the Secretary of each UK Obligor and US Obligor, of
a resolution of the board of directors of such UK Obligor or US Obligor
approving the execution and delivery of the UK Finance Documents or the US
Finance Documents (as the case may be) to which it is a party and the
performance of its obligations thereunder and authorising a person or
persons (specified by name) on behalf of each UK Obligor or US Obligor (as
the case may be) to sign and deliver the UK Finance Documents and any other
documents to be delivered by it pursuant thereto and to give all notices
which may be required to be given on its behalf under the UK Finance
Documents or US Finance Documents (as the case may be);
(c) to the extent not provided on the Effective Date, a certificate
authenticated by the Secretary of each UK Obligor and US Obligor setting
out the names and signatures of the persons authorised to sign, on behalf
of such UK Obligor and US Obligor, the UK Finance Documents or the US
Finance Documents (as the case may be) and any other documents to be
delivered by such UK Obligor and US Obligor pursuant thereto;
(d) to the extent not provided on the Effective Date, a certificate signed by
the Secretary of each UK Obligor and US Obligor stating that their
execution of the UK Finance Documents and the US Finance Documents to which
it is a party and the exercise by it of its rights and the performance by
it of its obligations thereunder are within its corporate powers, have been
approved by all necessary corporate action and will not cause any limit or
restriction on any of its powers (whether imposed by law, decree, rule,
regulation, its Memorandum or Articles of Association (or equivalent
Constitutional documents), agreement or otherwise) or on the right or
ability of its directors to exercise such powers, to be exceeded or
breached;
(e) (if any resolution described in Clause 3.1(b) above did not expressly refer
to the execution of the Intercreditor Agreement or any other UK Finance
Document or US Finance Document), a copy, certified a true and up to date
copy by the Secretary of each relevant UK Obligor and US Obligor which
executed the Intercreditor Agreement and/or such other Finance Document, of
a resolution of the board of directors of such UK Obligor or US Obligor
ratifying, for the avoidance of doubt, the execution and delivery of the
Intercreditor Agreement.
3.3 Real Estate and Foreign Subsidiaries
The provisions of Clauses 3.3 (Real Estate) and 3.4 (Foreign Subsidiaries)
of the Multicurrency Agreement shall apply mutatis mutandis to this
Agreement, save that references to the "Administrative Agent" shall be
deemed to be references to the "Security Trustee".
-5-
4 SECURITY
4.1 The following shall be added to the end of Clause 4.6, which shall be
renumbered Clause 4.6(a):
"The obligations of the Borrowers shall be secured by any security granted
by the Guarantees, the Debentures, the Guaranties, the US Pledge Agreement,
the US Security Agreement, the US Agreement Security Interest in US
Trademarks and Patents and the APW Counter Indemnity subject to the terms
of the Intercreditor Agreement."
4.2 The following shall be added as a new Clause 4.6(b):-
"The Parent and each Borrower shall procure that APW and each of the
Domestic Subsidiaries and UK Subsidiaries shall comply with the provisions
of Clauses 3.2, 3.3 and 3.4 of the Multicurrency Agreement, the terms of
which shall apply mutatis mutandis to this Agreement save that (a)
references to the "Administrative Agent" shall be deemed to be references
to the "Security Trustee", (b) references to the "Pledge Agreement" shall
be deemed to be references to the "US Pledge Agreement", (c) references to
the "Security Agreement" shall be deemed to be references to the "US
Security Agreement", and (d) references to the "Assignment of Security
Interest in United States Trademarks and Patents" shall be deemed to be
references to the "US Assignment of Security Interest in United States
Trademarks and Patents"."
4.3 The following shall be added as a new Clause 4.6(c):-
"The provisions of Clauses 3.6 (Further Assurances) and 3.7 (Transfer of
Assets) of the Multicurrency Agreement shall apply mutatis mutandis to this
Agreement save that (a) references to the "Administrative Agent" shall be
deemed to be references to the "Security Trustee" (b) references to the
"Required Banks" shall be deemed to be references to the "Bank" and (c)
references to the "Outstanding Obligations" shall be deemed to be
references to the "Secured Obligations (as defined in the Debenture)".
5 FEES AND COSTS
Clause 4.7 (Fees and Costs) shall be amended by the following amendments:
"4.7(a) Commitment Fee
The Borrowers shall (without prejudice to any commitment fees already
accrued prior to the Effective Date) pay to the Bank a commitment fee
calculated at the rate of 0.5% on the undrawn and uncancelled amount of the
Facility from day to day during the period beginning on the Effective Date
and ending on the Termination Date. Such commitment fee shall be payable in
arrears on the last day of each successive period of 3 months which falls
due during such period and on the Termination Date.
4.7(b) Amendment Fee
You shall pay to the Bank an amendment fee of 0.75% of the maximum
aggregate exposure of the Borrowers to the Bank as at the Effective Date
within 2 Banking Days of the Effective Date."
-6-
6 TERMINATION
Clause 4.5 shall be deleted and by way of substitution there shall be
replaced with the following:
"4.5 Termination
The Facility will cease to be available on the Termination Date.
7 OVERDUE PAYMENTS
Clause 4.9 shall be deleted and by way of substitution there shall be
inserted the following provision:
"4.9 Overdue Payments
If you do not make any payment under the agreement on the date it is due,
then unless the provisions of Clause 15 (Default Interest) apply to such
payment without prejudice to our other rights, we will charge interest on
the overdue amount from the date it was due to the date upon which we
receive payment (as well after as before judgement).
This will be calculated (and compounded in accordance with our normal
practice) on the basis of a year of 360 or 365 days depending on the
practice from time to time of the Bank in the London Interbank Market
relating to the relevant currency and the actual number of days elapsed.
You will pay interest to us at a rate which is equal to the sum of:
(a) the Applicable Margin to be increased and varied from time to time in
accordance with the provisions of the Multicurrency Agreement such
that the Applicable Margin shall always be equivalent to that payable
by APW or any of its affiliates under the Multicurrency Agreement;
(b) the LIBOR for such Fixture Period(s) as we, in our discretion, from
time to time determine; and
(c) the MCR Costs.
Any late payments may be debited to a separate account.
Notwithstanding the foregoing, if the Overdraft is outstanding after the
expiry date specified in term 4.5 then interest will be charged in
accordance with the provisions of the General Terms (see section OD2)."
8 THE ACCEPTANCE CREDIT
Clause AC5 shall be deleted and by way of substitution there shall be
inserted the following provision:
"AC5 Commission
You will pay to us on acceptance of each Xxxx an acceptance commission,
calculated from the date of acceptance on the basis of the number of days
tenor of the Xxxx and a year of 365 days,
-7-
at the rate equivalent to the then current Applicable Margin (to be varied
and restated from time to time in accordance with the provisions of the
Multicurrency Agreement such that the Applicable Margin shall always be
equivalent to any Margin payable by APW or any of its affiliates under the
Multicurrency Agreement) on the face amount of the Xxxx. This commission
will be deducted from the proceeds of each discounted Xxxx."
9 THE LOAN
9.1 Clause LN5 (Interest) shall be deleted and by way of substitution there
shall be inserted the following provision:
"LN5 Interest
You will pay interest on a drawing for each Fixture Period at a rate equal
to the sum of:
(i) Applicable Margin to be increased and varied from time to time in
accordance with the provisions of the Multicurrency Agreement such
that the Applicable Margin shall always be equivalent to that payable
by APW or any of its affiliates under the Multicurrency Agreement;
(ii) LIBOR for that Fixture Period;
(iii) the MCR Costs.
We will work out interest on the balance of the Loan outstanding from day to
day on the basis of the actual number of days elapsed and a 360 or a 365 day
year depending on our practice from time to time for the relevant currency.
You must pay interest to us in arrears at the end of each Fixture Period
(and every six months during any Fixture Period which exceeds six months).
We may charge interest to your current account or to your loan account.
If you do not make any payments on the due date under the agreement, then
the rate of interest specified in term 4.9 of the agreement shall apply to
any overdue amounts.
9.2 Clause LN7 (Prepayment) and Clause CD7 (Prepayment) shall be deleted and by
way of substitution there shall be inserted the following provisions:
"LN7 Prepayment
Clauses LN7 (Prepayment) and Clause CD7 (Prepayment) shall be subject to any
overriding provisions contained in the Intercreditor Agreement
(a) The provisions contained in Clause 2.8(b) (Unscheduled Mandatory
Reductions) and Clause 2.9(b)(ii) (Mandatory Prepayments) of the
Multicurrency Agreement shall apply mutatis mutandis to this
Agreement, such that the Bank receives its Pro Rata Share of any such
repayment.
(b) Without prejudice to any other reductions in the Facility Amount
which are required to be made pursuant to the terms of this Agreement,
the Borrowers shall reduce RBS's commitments under the RBS Group
Facilities by the Sterling equivalent of $1,682,242 by February 28,
2002, by the Sterling equivalent of a further $3,364,485 by August 31,
-8-
2002, by the Sterling equivalent of a further $2,523,364 by February
28, 2003 and by the Sterling equivalent of a further $2,523,364 by May
31, 2003. For the purposes of calculating the Sterling equivalent, all
amounts paid in US Dollars shall be converted to Sterling at the rate
of exchange at which RBS notifies the Parent that it could, in
accordance with normal banking procedures, purchase Sterling with US
Dollars three Business Days before the due date for payment. Once
reduced in accordance with this Clause 8.4(b), the relevant commitments
may not be increased.
(c) If for any reason the outstanding obligations to the Bank under the
RBS Group Facilities exceed its commitments, because of any limitation
set forth in this Agreement or otherwise, the Borrowers shall
immediately prepay Advances and/or deposit cash in an interest bearing
cash collateral account held with the Bank in an aggregate amount equal
to such excess (all interest accruing on such account being for the
account of the Borrowers prior to Enforcement).
(d) Any part of the RBS Group Facilities which is prepaid pursuant to
this Clause LN7 may not be reborrowed, and the Bank's commitment shall
be reduced accordingly, unless the prepayment was made because for a
period of five consecutive business days, APW and its Subsidiaries held
in aggregate collected funds in excess of $10,000,000.
(e) If on any Determination Date, the Bank shall have determined that
the aggregate Sterling Amount of its outstanding obligations under the
RBS Group Facilities exceeds its commitment under such facilities, due
to a change in applicable rates of exchange between Sterling and
Optional Currencies, then the Bank shall give notice to the Parent that
a prepayment is required and the Borrowers shall make a prepayment so
as to ensure that the Sterling Amount of the outstanding obligations
under the RBS Group Facilities no longer exceeds the Bank's commitment
under such facilities.
(f) If and to the extent that any payment is properly due pursuant to
this Clause, the Bank is hereby irrevocably and unconditionally
authorised, unless prohibited from doing so by the Intercreditor
Agreement, to debit any account of the Borrowers in order to effect
such payment."
10 THE CORPORATE DEALING LINE
10.1 Clause CD5 (Interest) shall be deleted and by way of substitution there
shall be inserted the following provision:
"CD5 Interest
You will pay interest on a drawing for each Fixture Period at a rate equal
to the sum of:
(a) such rate as is equivalent to the Applicable Margin, as increased and
varied from time to time in accordance with the provisions of the
Multicurrency Agreement;
(b) LIBOR for that Fixture Period;
(c) the MLA Costs.
-9-
We will work out interest on the balance of the Corporate Dealing Line
outstanding from day to day on the basis of the actual number of days
elapsed and a 365 day year.
You must pay interest to us in arrears at the end of each Fixture Period.
We may charge interest to your current account or to your loan account.
If you do not make any payments on the due date under the agreement, then
the rate of interest specified in term 4.9 of the agreement shall apply to
any overdue amounts."
11 THE OVERDRAFT
Clause OD4 (Interest) shall be deleted and by way of substitution there
shall be inserted the following provision:
"OD4 Interest
The rate of interest payable on the Overdraft shall be the aggregate per
annum of the Applicable Margin and our base rate for the time being.
Interest shall accrue at the rate aforesaid from day to day on the daily
cleared debit balances on the account or accounts on which the Overdraft
is made available and shall be payable quarterly on our usual charging
days and on final repayment of the Overdraft.
We shall be entitled to compound interest quarterly (as well as before
termination pursuant to term 4.5 of the agreement, demand for repayment,
or judgement) at the rate aforesaid."
12 REPRESENTATIONS AND WARRANTIES
The Representations and Warranties in Clause 12 of the RBS Facility (as
amended from time to time) shall apply to the Agreement mutatis mutandis.
13 COVENANTS
13.1 Clause 13.1 (Financial Information) of the RBS Facility (as amended from
time to time) shall apply to the Agreement mutatis mutandis.
13.2 The following shall be added as a new Clause 4.13(p):-
"The provisions of Clause 7.6 (Financial Ratios and Restrictions) of the
Multicurrency Agreement shall apply mutatis mutandis to this Agreement,
save that references to the "Administrative Agent" or the "Required Banks"
shall be deemed to be references to the "Bank" .
14 EVENTS OF DEFAULT
The following shall be added as a new Clause 4.13(q):
"Events of Default in Clause 16 of the RBS Facility (as amended from time
to time) shall apply to this Agreement mutatis mutandis."
-10-
15 DEFAULT INTEREST
The following shall be added as a new Clause 4.13(r):
"Clause 17 (Default Interest) of the RBS Facility shall apply to this
Agreement mutatis mutandis."
16 WARRANTS
There shall be inserted the following as a new Clause 18.7.
"18.7 Warrants
The provisions of Clause 2.18 of the Multicurrency Agreement (Warrants)
shall apply mutatis mutandis to this Agreement so that each of the Bank
and NatWest shall receive a proportionate share (equal to its total
commitment on the date of this Agreement under all of the RBS Group
Facilities, including its exposure under any loan notes, divided by the
Combined Commitments on the date of this Agreement) of 5% of the fully
diluted common stock of APW."
17 GUARANTEES AND RELEASE OF GUARANTEES
17.1 All obligations of each Borrower under the RBS Group Facilities shall,
notwithstanding the provisions of the Waiver Letter and the Waiver Request
but subject to Clauses 17.2 and 17.3 below, be guaranteed by each of the
Guarantors (as defined in the Multicurrency Agreement) and the provisions
contained in Clause 3.1(c ) of the Multicurrency Agreement (Action with
Non-Guarantors) shall apply mutatis mutandis to this Agreement.
17.2 The Bank hereby releases, with effect from the Effective Date but subject
to Clause 17.3 below, each of the Dissolution Subsidiaries other than APW
Electronics Overseas Investments Limited from their guarantee obligations
and liabilities, whether actual, contingent or prospective, under any
guarantee previously given to the Bank in respect of the obligations of
the Borrowers to the Bank under the RBS Group Facilities. Any Dissolution
Subsidiary which is a Borrower shall be released from its obligations as
borrower once all relevant borrowings have been repaid or assumed, in a
manner satisfactory to the Bank (acting reasonably), by another Borrower.
17.3 If any Dissolution Subsidiary is not dissolved within 90 days of the
Effective Date (or such longer period as the Bank may in its absolute
discretion permit), each Borrower shall procure that such Dissolution
Subsidiary duly executes each of the following within 120 days of the
Effective Date (or such longer period as the Bank may in its absolute
discretion permit):-
17.3.1 a valid, binding and enforceable guarantee of the obligations of
the Borrowers to the Bank in respect of the RBS Group Facilities,
in substantially the same form as the Guaranties or Guarantees
(depending on the domicile of the Dissolution Subsidiary); and
17.3.2 a valid, binding and enforceable Deed of Accession to the
Debenture, in substantially the form annexed as Schedule 2 to the
Debenture or equivalent security in a form
-11-
satisfactory to the Bank, in the case of any Dissolution
Subsidiary not incorporated in England and Wales..
17.4 The provisions contained in Clause 3.1(c) of the Multicurrency Agreement
(Action with Non-Guarantors) shall apply mutatis mutandis to this
Agreement.
18 DEFINITIONS
Clause 2 (Meaning of Words and Phrases used in the Facility Agreement) of
the Appendix shall be amended to include the following definitions:
"Amendment Agreement" means the amendment agreement dated 15 May 2001,
between the Parent, the Borrowers and the Bank amending certain terms of
this Agreement"
"Applicable Margin" shall have the meaning given to it in the
Multicurrency Agreement, provided that loans denominated in Sterling or
any currency other than Dollars shall be deemed to be Offshore Rate Loans
and loans denominated in Dollars shall be deemed to be Base Rate Loans"
"Finance Documents" means each of this Agreement, the Bills, the Counter
Indemnities, the UK Finance Documents and the US Finance Documents (each
as defined in the Amendment Agreement) and any other document to be
executed in connection with this Agreement."
"Parent" means APW Electronics Group plc
"Termination Date" means July 31 2003"
19 GENERAL
19.1 The Borrowers hereby undertake that the Representations and Warranties set
out in Clause 12 of the RBS Facility (as amended from time to time) are
true and accurate as of the date of this Agreement.
19.2 All other terms and conditions of the Facility Agreement remain unchanged,
save that the creation of the security evidenced by the Collateral
Documents and all other security created in favour of the Security Trustee
and the Bank is expressly permitted. All other terms and conditions of the
Facility Agreement remain unchanged.
19.3 A person who is not a party to this Facility Agreement has no right under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce or enjoy the
benefit of any term of the Facility Agreement.
19.4 The Borrowers shall on demand reimburse the Bank all reasonable costs
including fees, costs and expenses (including legal fees and expenses)
incurred in or in connection with the negotiation and execution of the UK
Finance Documents and the US Finance Documents and shall pay all stamp,
registration and other taxes to which any such document is, or at any time
may be, subject and shall indemnify the Bank against any liabilities,
expenses, costs or claims resulting from any failure to pay, or any delay
in paying, such tax. This Agreement shall be governed by and construed in
accordance with the laws of England and the parties hereto submit to the
jurisdiction of the English courts.
-12-
19.5 This Agreement shall be governed by and construed in accordance with the
laws of England and the parties hereto subject to the jurisdiction of
English courts
-13-
SIGNED FOR AND ON BEHALF OF:-
NATIONAL WESTMINSTER BANK PLC
By: /s/ Xxx X. Xxxxx
APW ENCLOSURE PRODUCTS & SYSTEMS LIMITED
By: /s/ Xxxxxxx Xxxxx
APW ENCLOSURE SYSTEMS (UK) LIMITED
By: /s/ Xxxxxxx Xxxxx
APW INVESTMENTS UK LIMITED
By: /s/ Xxxxxxx Xxxxx
APW HOLDINGS (UK) LIMITED
By: /s/ Xxxxxxx Xxxxx
RUBICON FINANCE LIMITED
By: /s/ Xxxxxxx Xxxxx
APW HOLDINGS (EUROPE) LIMITED
By: /s/ Xxxxxxx Xxxxx
-14-
APW ELECTRONICS GROUP PLC
By: /s/ Xxxxxxx Xxxxx
APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED
By: /s/ Xxxxxxx Xxxxx
APW ELECTRONICS LIMITED
By: /s/ Xxxxxxx Xxxxx
APW POWER SUPPLIES LIMITED
By: /s/ Xxxxxxx Xxxxx
APPLIED POWER LIMITED
By: /s/ Xxxxxxx Xxxxx
APW ENCLOSURE SYSTEMS (HOLDINGS) LIMITED
By: /s/ Xxxxxxx Xxxxx
APW GALWAY LIMITED
-15-
By: /s/ Xxxxxxx Xxxxx
APW NEW FOREST LIMITED
By: /s/ Xxxxxxx Xxxxx
-16-
