Exhibit 4.2
THIS AMENDMENT AGREEMENT is made the 18 January 2002
BETWEEN
(1) APW ELECTRONICS GROUP PLC (formerly Vero Group PLC)
(2) APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED (formerly Vero Electronics
Overseas Investments Limited)
(3) APW ELECTRONICS LIMITED (formerly Vero Electronics Limited)
(4) APW ENCLOSURES AB (formerly Vero Enclosures AB)
(5) APW ELECTRONICS GmbH (formerly Vero Electronics GmbH)
(6) VERO ELECTRONICS Inc.
(7) APW ENCLOSURES S.A. (formerly Vero Electronics S.A.) and
(8) APW ELECTRONICS S.r. L (formerly Vero Electronics S.R.L.) (each a "RBS
Borrower" and together the "RBS Borrowers");
(9) THE ROYAL BANK OF SCOTLAND plc ("RBS")
(10) APW ENCLOSURES PRODUCTS & SYSTEMS LIMITED and each of its subsidiaries
set out in Schedule 1 (each a "NatWest Borrower", together the "NatWest
Borrowers" and, together with the RBS Borrowers the "Borrowers"); and
(11) NATIONAL WESTMINSTER BANK PLC ("NatWest").
WHEREAS
(A) RBS and the RBS Borrowers entered into a (pound)27,500,000 revolving
credit facility dated 24 October 1995 (as subsequently amended by two
amendment agreements dated 15 May 1998 and 22 May 1998 respectively) (the
"RBS Facility Agreement"). The RBS Facility Agreement was subsequently
amended and restated under an amendment agreement dated 15 May 2001 and
as further amended by amendment agreements dated 27 September 2001 and 13
December 2001.
(B) NatWest and the NatWest Borrowers entered into a (pound)27,000,000
multi-line facility dated 20 April 2000 (the "NatWest Facility
Agreement"). The NatWest Facility Agreement was subsequently amended and
restated under an amendment agreement dated 15 May 2001 and was further
amended by amendment agreements dated 27 September 2001 and 13 December
2001.
(C) 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 (the "US
Agent") entered into a multicurrency agreement (as subsequently amended
and restated on 15 May 2001, 27 September 2001 and 13 December 2001) (the
"Multicurrency Agreement").
(D) RBS, NatWest, the US Agent and others entered into an intercreditor
agreement dated 15/th/ May 2001 (as subsequently amended and restated on
27 September 2001) regulating,
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inter alia, the application of recoveries under the RBS Facility
Agreement, the NatWest Facility Agreement and the Multicurrency
Agreement (the "Intercreditor Agreement").
(E) The Lenders under the Multicurrency Agreement have agreed to defer
interest payments under the Multicurrency Agreement on the condition that
a similar deferral occurs under both the RBS Facility Agreement and the
NatWest Facility Agreement.
(F) The parties wish to enter into this Agreement to record the basis on
which the RBS Facility Agreement and the NatWest Facility Agreement are
being amended.
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 RBS Facility
Agreement or the NatWest Facility Agreement (but not defined or construed
in this Agreement) shall have the same meaning herein.
2 DEFERRAL OF INTEREST PAYMENTS
2.1 With effect from the date hereof, subject only to Clause 3, it is agreed
that the terms of both the NatWest Facility Agreement and the RBS
Facility Agreement shall be amended, so that notwithstanding any
provision to the contrary contained in either Agreement, no interest
payment or payment in respect of commission due under the terms of either
the NatWest Facility Agreement, or the RBS Facility Agreement shall be
payable until the earlier date (the "Deferral Date") of:
(i) February 15, 2002; or
(ii) the first date three business days following the receipt by
APW Limited of the proceeds of the sale of the Specified
Business Unit (as defined in the Multicurrency Agreement); or
(iii) the first date after the date of this Agreement on which the
lenders under the Multicurrency Agreement receive any payment
in respect of interest under the Multicurrency Agreement.
2.2 This consent shall be limited to its terms and shall not constitute a
waiver of any other rights that RBS or NatWest 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 or commission on the due
date for payment which would have applied, but for Clause 2.1 of the
Agreement), to accelerate the maturity of all loans and all payments
under the RBS Facility Agreement and/or the NatWest Facility Agreement,
including said interest and commission payments, with respect thereto.
3 AMENDMENT TO RBS FACILITY AGREEMENT
3.1 The definition of "Facility Amount" shall be amended to read as follows:
"Facility Amount" means (pound)31,191,000, as the same may be adjusted
from time to time pursuant to the terms of this Agreement."
3.2 Clause 2.2 of the RBS Facility Agreement shall be amended, so as to read
as follows:
"2.2 Facility Limit and Options
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2.2.1 The Bank grants to the Borrowers upon and subject to the terms of
this Agreement, a facility of (pound)27,500,000 whereby the Bank will:
(a) make available an Overdraft in Sterling;
(b) make Advances in Sterling or any Optional Currency;
(c) accept Sterling Bills drawn by any Borrowers; and
(d) issue Bonds in Sterling or any Optional Currency.
2.2.2 The Bank grants to the Borrowers upon and subject to the terms of
this Agreement, an additional facility of (pound)3,691,000 (the
"Additional Bond Facility") whereby the Bank will issue Bonds in
Sterling.
3.3 All other terms of the RBS Facility Agreement remain unchanged.
3.4 The parties agree to be bound by the RBS Facility Agreement and the
NatWest Facility Agreement, each as amended.
4 CONDITIONS PRECEDENT TO THIS AMENDMENT AND RESTATEMENT AGREEMENT
4.1 This Agreement shall become effective once (a) RBS, for itself and on
behalf of NatWest, has received an executed copy of this Agreement duly
executed by all of the parties thereto; (b) each of the guarantors of
the RBS Facility and the NatWest Facility have consented hereto by
executing an agreement and consent in the form agreed between RBS,
NatWest and the US Agent, and (c) all outstanding invoices submitted by
RBS and NatWest in respect of legal fees relating to the RBS Facility
and the NatWest Facility have been paid in full.
4.2 It shall be a condition precedent to the making of any drawdown request
under the Additional Bond Facility made available pursuant to Clause
3.2 of this Agreement that RBS shall have received in a form and
substance satisfactory to it, a copy, certified as true and up to date
copy by the Secretary of each UK Obligor, of a resolution of the board
of directors of such UK Obligor approving the execution and delivery of
this Agreement and the performance of its obligations hereunder and
authorising a person or persons (specified by name) on behalf of each
UK Obligor to sign and deliver this Agreement and any other documents
to be delivered by it pursuant thereto.
5 GENERAL
5.1 The Borrowers hereby undertake that the Representations and Warranties
set out in Clause 12 of the RBS Facility Agreement are true and accurate
as of the date of this Agreement.
5.2 All other terms and conditions of the NatWest Facility Agreement and the
RBS Facility Agreement remain unchanged.
5.3 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or enjoy the
benefit of any term of this Agreement.
5.4 The Borrowers shall on demand reimburse RBS and NatWest all reasonable
costs including fees, costs and expenses (including legal fees and
expenses) incurred in or in connection with the negotiation and
execution of this Agreement shall pay all stamp,
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registration and other taxes to which any such document is, or at any
time may be, subject and shall indemnify RBS and NatWest against any
liabilities, expenses, costs or claims resulting from any failure to
pay, or any delay in paying, such tax.
5.5 For the avoidance of doubt, this Agreement shall constitute a UK
Finance Document (as defined in the RBS Facility and NatWest Facility).
5.6 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.
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Schedule
Company Registered Number Registered Office
APW Enclosure Products &
Systems Limited 3518668 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Enclosure Systems (UK)
Limited 962534 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Investments UK Limited 2873016 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Holdings (UK) Limited 2894364 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
Rubicon Finance Limited 2868702 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Holdings (Europe) Limited 2868712 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Electronics Group plc 02889677 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Electronics Overseas 02889679 Electron Way, Chandlers Ford,
Investments Limited Hampshire, S053 4ZR
APW Electronics Limited 00701364 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Power Supplies Limited 02037578 Xxxxxx Xxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxx, XX0 0XX
Applied Power Limited 03528602 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Enclosure Systems
Holdings Limited 03618666 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
APW Enclosure Systems plc 98900 Electron Way, Chandlers Ford,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
XXX Xxxxxx Limited 00000 Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxx, Xxxxxxxx of Ireland
APW New Forest Limited 1357306 Xxxxxxxx Xxx, Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx, X000 0XX
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SIGNED FOR AND ON BEHALF OF:
THE ROYAL BANK OF SCOTLAND plc
By: /s/ [Illegible in Original]
SIGNED FOR AND ON BEHALF OF:
NATIONAL WESTMINSTER BANK PLC
By: /s/ [Illegible in Original]
THE RBS BORROWERS
APW ELECTRONICS GROUP PLC
By: /s/ X.X. Xxxxx
Company Secretary
APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW ELECTRONICS LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW ENCLOSURES AB
By: /s/ [Illegible in Original]
APW ELECTRONICS GmbH
By: /s/ Xxxx Xxxxxxxxxx
Geschaftsfuhrer
VERO ELECTRONICS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
APW ENCLOSURES S.A.
By: /s/ X.X. Xxxxx
APW ELECTRONICS S.r.L
By: /s/ X.X. Xxxxx
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THE NATWEST BORROWERS
APW ENCLOSURE SYSTEMS PLC
By: /s/ X.X. Xxxxx
Company Secretary
APW ENCLOSURE PRODUCTS & SYSTEMS LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW ENCLOSURE SYSTEMS (UK) LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW INVESTMENTS UK LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW HOLDINGS (UK) LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
RUBICON FINANCE LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW HOLDINGS (EUROPE) LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW ELECTRONICS GROUP PLC
By: /s/ X.X. Xxxxx
Company Secretary
APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
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APW ELECTRONICS LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW POWER SUPPLIES LIMITED
By: /s/ X.X. Xxxxx
APPLIED POWER LIMITED
By: /s/ X.X.Xxxxx
Company Secretary
APW ENCLOSURE SYSTEMS HOLDING LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
APW GALWAY LIMITED
By: /s/ X.X. Xxxxx
APW NEW FOREST LIMITED
By: /s/ X.X. Xxxxx
Company Secretary
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