Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND
RESTATED MULTICURRENCY CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO AMENDED AND RESTATED MULTICURRENCY CREDIT
AGREEMENT, dated as of September 27, 2001 (this "Amendment"), amends the Amended
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and Restated Multicurrency Credit Agreement, dated as of May 15, 2001 (the
"Credit Agreement"), among APW Ltd., a Bermuda corporation (the "Borrower"), the
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various financial institutions parties thereto (collectively, the "Banks"), Bank
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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 AMENDMENTS. Effective as of the date hereof, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.15 below.
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1.1 Consolidated Net Income. The definition of "Consolidated Net Income"
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in Section 1.1 of the Credit Agreement is hereby amended to state in its
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entirety as follows:
"Consolidated Net Income" means, for any period, all amounts which, in
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conformity with GAAP, would be included under net income on a consolidated
income statement of a Person and its Subsidiaries for such period,
exclusive of Affiliate equity earnings, inclusive of Affiliate cash
dividends (to the extent of Affiliate equity earnings) and exclusive of
extraordinary gains and/or nonrecurring gains.
1.2 EBITDARR. The definition of "EBITDARR" in Section 1.1 of the Credit
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Agreement is hereby amended to state in its entirety as follows:
"EBITDARR" means, for any period, the sum of EBITDA plus GAAP
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Restructuring Expenses plus Non-GAAP Restructuring Expenses plus, to
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the extent deducted in the calculation of EBITDA, the cash amendment
fee paid under the First Amendment hereto.
1.3 New Definition. Section 1.1 of the Credit Agreement is hereby amended
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by adding the following definitions in proper alphabetical order:
"Collateral Guarantor" means a Guarantor with respect to which the
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Administrative Agent has a first priority security interest, subject to the
UK/US Intercreditor Agreement, in substantially all its assets.
"Non Collateral Guarantor" means a Guarantor with respect to which the
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Administrative Agent does not have a first priority security interest,
subject to the UK/US Intercreditor Agreement, in substantially all its
assets."
"Specified Business Unit" means the business unit described in the
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Borrower's letter dated September 26, 2001 to the Administrative Agent.
"Tier One Collateral Guarantor" means a Collateral Guarantor organized in,
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and with all its assets located in, the United States, England, Scotland or
Ireland.
"Tier Two Collateral Guarantor" means a Collateral Guarantor, other than a
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Tier One Collateral Guarantor.
1.4 Unscheduled Mandatory Reductions. Section 2.8(b) of the Credit
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Agreement is hereby amended to state in its entirety as follows:
"(b) Unscheduled Mandatory Reductions.
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(i) Issuance of Equity. Upon the issuance of any equity in the
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Borrower or any of its Subsidiaries, the Combined Commitments shall be
reduced, in the manner set forth in the UK/US Intercreditor Agreement,
by an aggregate amount equal to 50% of the Net Issuance Proceeds.
(ii) Issuance of Indebtedness. Upon the issuance of any Funded
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Debt, Special Securities or Trust Preferred Securities of the Borrower
or any of its Subsidiaries, the Combined Commitments shall be reduced,
in the manner set forth in the UK/US Intercreditor Agreement, by an
aggregate amount equal to the Net Issuance Proceeds.
(iii) Net Proceeds of Disposition of Assets. Upon the disposition
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of any assets of the Borrower or any of its Subsidiaries, except sales
of inventory in the ordinary course of business, the sales of
receivables pursuant to the Securitization and dispositions less than
$1,000,000 per disposition, but subject to a $10,000,000 aggregate
limit during the term of this Agreement, the Combined Commitments
shall be reduced, in the manner set forth in the UK/US Intercreditor
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Agreement by an aggregate amount equal to the Net Proceeds raised by
such disposition; provided, however, that in the case of the
disposition of the Specified Business Unit, the Combined Commitments
shall be reduced by an amount equal to 40% of the Net Proceeds of such
disposition, in the manner set forth in the UK/US Intercreditor
Agreement. Availability under the Commitments shall be temporarily
restricted by a proportionate share (equal to the "Pro Rata Share" as
defined in the UK/US Intercreditor Agreement) of the estimated tax
component of any disposition until the earlier of nine months or the
payment of the Taxes incurred as a direct result of the disposition.
If the Taxes on the disposition are not paid within nine months of the
disposition, the Commitments shall be additionally reduced by a share
of the estimated tax component of the Net Proceeds from such
disposition as required under the UK/US Intercreditor Agreement. If
the actual cash Taxes on any disposition are less than the estimated
tax component of Net Proceeds, the Commitments shall be reduced by
said share of the excess of the estimated tax component less the
actual Taxes."
1.5 Required Guaranties. Section 3.1(b) of the Credit Agreement shall be
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amended to state in its entirety as follows:
"(b) Required Guaranties. All Domestic Subsidiaries of APW, Ltd.,
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other than Applied Power Credit Corporation and any of the Dissolution
Subsidiaries, shall provide or reaffirm existing guaranties. All
Dissolution Subsidiaries not dissolved within 30 days of the closing of the
First Amendment hereto shall provide guaranties. Subject to Section 3.1(c),
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the Borrower shall, at the request of the Administrative Agent or the
Required Banks, cause each of its Subsidiaries required to guarantee its
Obligations pursuant to Section 3.1(a), which shall not previously have
delivered a Guaranty to execute and deliver such guaranties and deliver
such evidence of authority, correctness of signatures and opinions of
counsel as the Administrative Agent or the Required Banks may from time to
time reasonably request. Notwithstanding the foregoing, the Administrative
Agent shall not request, and the Borrower shall not cause, Applied Power
Credit Corporation to guaranty the Obligations of the Borrower and the
Borrower may designate Foreign Subsidiaries not to be Guarantors, so long
as at no time shall the combined Tangible Net Assets of such Foreign
Subsidiaries (excluding stock of Guarantors) exceed $100,000,000 and so
long as, except as otherwise provided herein, the Borrower has used its
commercially reasonable best efforts to provide Guarantees from all
Subsidiaries located in Brazil, Germany, the United Kingdom, Ireland and
Denmark. The Administrative Agent is authorized to release any Guaranty of
a Dissolution Subsidiary, upon its dissolution."
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1.6 Action with Non Guarantors. Section 3.1(c) of the Credit Agreement is
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hereby amended to state in its entirety as follows:
"(c) Action with Non Guarantors and Non Collateral Guarantors.
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(i) Subject to clauses (v) and (vi) below, neither the Borrower
nor any Collateral Guarantor shall purchase or acquire, or make any
commitment therefor, any capital stock, equity interest or other
securities of, or any interest in, any existing Affiliate (other than
a Tier One Collateral Guarantor), or make or commit to make any
capital contribution to, or any investment in, any existing Affiliate
(other than a Tier One Collateral Guarantor).
(ii) Subject to clauses (v) and (vi) below, neither the Borrower
nor any Guarantor shall make any loan, advance, extension of credit or
transfer or sell any assets to any Affiliate (other than the Borrower
or a Tier One Collateral Guarantor).
(iii) Subject to clauses (v) and (vi) below, no Guarantor shall
declare or make any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of any
shares of any class of its capital stock, or purchase, redeem, or
otherwise acquire for value any shares of its capital stock or any
warrants, rights or options to acquire such shares, now or hereafter
outstanding, unless all such payments or distributions are made
directly or indirectly to the Borrower or a Tier One Collateral
Guarantor (it being understood that a payment or distribution is made
indirectly to the Borrower or Tier One Collateral Guarantor if all the
proceeds thereof are in fact received by the Borrower or a Tier One
Collateral Guarantor); provided, that such payments and distributions
may also be made by a Non Collateral Guarantor directly or indirectly
to a Non Collateral Guarantor or a Tier Two Collateral Guarantor
directly or indirectly to a Tier Two Collateral Guarantor.
(iv) Subject to clauses (v) and (vi) below, neither the Borrower
nor any Collateral Guarantor shall make any payments on Debt to any
Affiliate other than payments to the Borrower or a Tier One Collateral
Guarantor.
(v) The Borrower and the Guarantors may make purchases,
acquisitions, commitments, capital contributions, loans, advances,
extensions of credit, transfers of assets, sales of assets,
declarations of dividends, payments and distributions otherwise
prohibited under clauses (i) - (iv) involving transfers of funds or
other assets to Non Collateral Guarantors, so long as the sum of all
the foregoing shall not exceed $5,000,000 in any Fiscal Year. In
addition, the Borrower and the Guarantors may make investments in APW
Shangai Ltd. up to
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$7,500,000 in cash and up to $2,500,000 by transfer of assets in the
aggregate after the date hereof.
(vi) The Borrower and the Guarantors may make purchases,
acquisitions, commitments, capital contributions, loans, advances,
extensions of credit, transfers of assets, sales of assets,
declarations of dividends, payments and distributions otherwise
prohibited under clause (i) - (iv) involving transfers of funds or
other assets to Tier Two Collateral Guarantors, so long as the sum of
all the foregoing shall not exceed $5,000,000 after the date hereof
less repayments thereof to the Borrower and the Guarantors."
1.7 Transfer of Assets. Section 3.7 of the Credit Agreement is hereby
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amended to state in its entirety as follows:
"3.7 Transfer of Assets. The Borrower shall not, and shall not permit,
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any Subsidiary, to sell, lease or transfer assets in which the
Administrative Agent has a perfected security interest to the Borrower, a
Subsidiary or an Affiliate, if the effect is to cause the Administrative
Agent to no longer have a valid first priority perfected security interest
(subject to the UK/US Intercreditor Agreement), except for transfers
permitted under Section 3.1(c)(v) up to the amounts permitted in such
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Section 3.1(c)(v) and Section 3.1(c)(vi)."
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1.8 Reports. Section 7.1 of the Credit Agreement is hereby amended by
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relettering clause (m) as clause (o) and inserting the following clauses in
proper order:
"(m) Restructuring Actions. Within 15 days after each month, a written
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summary of all restructuring actions taken during such month, in such
detail as reasonably acceptable to the Administrative Agent.
(n) Net Proceeds. Promptly upon receipt of any Net Proceeds or Net
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Issuance Process requiring a reduction of Commitments under Section 2.8, a
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certificate of an Authorized Officer calculating such Net Proceeds or Net
Issuance Proceeds and the required Commitment reductions, in such detail as
reasonably acceptable to the Administrative Agent."
1.9 Quarterly Financial Covenants. Schedules 7.6(a)(i), 7.6(a)(ii),
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7.6(a)(iii) and 7.6(a)(iv) to the Credit Agreement shall be restated in their
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entirety to state as set forth in Schedules 7.6(a)(i), 7.6(a)(ii), 7.6(a)(iii)
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and 7.6(a)(iv) hereto respectively.
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1.10 Monthly Financial Covenant. Section 7.6(b) of the Credit Agreement is
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hereby amended to state in its entirety as follows:
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"(b) Monthly Financial Covenant. The Borrower shall not permit revenue
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amounts for itself and its Subsidiaries as at any month end for the three
months then ending to be less than the amount set forth in Schedule 7.6(b).
After compliance with this covenant through February 28, 2002, the Borrower
may request that the monthly financial covenant in this Section 7.6(b) be
waived by the Required Banks."
1.11 Schedule 7.6(b). Schedule 7.6(b) to the Credit Agreement shall be
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restated in its entirety as set forth in Schedule 7.6(b) hereto.
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1.12 Sales of Assets. Section 7.20(c) of the Credit Agreement is hereby
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amended to state in its entirety as follows:
"(c) so long as no Event of Default or Default exists or would result
therefrom, any sale, transfer, conveyance or lease of any other asset for
cash provided that the aggregate book value (disregarding any write-downs
of such book value other than ordinary depreciation and amortization) of
all assets disposed of by the Borrower and its Subsidiaries pursuant to
this clause (c) does not exceed 10% of Tangible Net Assets of the Borrower
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and its Subsidiaries (measured as of the last day of the most recently
ended Fiscal Year). The Administrative Agent shall, at the request of the
Borrower and without any requirement for approval from the Banks, release
any Lien on Collateral sold pursuant to Section 7.20(c). In connection with
any action permitted under this clause (c), the Borrower will deliver a
certificate to the Administrative Agent calculating compliance with this
clause (c)."
1.13 Investments. Section 7.21(c) of the Credit Agreement is hereby amended
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to state in its entirety as follows:
"(c) Investments by the Borrower in any of its Subsidiaries or by any
of its Subsidiaries in another of its Subsidiaries, except as prohibited
under Article III;"
1.14 Limitation on Debt and Subsidiary Debt. Section 7.22 of the Credit
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Agreement is hereby amended to state in its entirety as follows:
"7.22 Limitation on Debt and Subsidiary Debt. The Borrower shall not,
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and shall not suffer or permit any Subsidiary to, create, incur, assume,
suffer to exist, or otherwise become or remain directly or indirectly
liable with respect to any Debt of the Borrower and Subsidiaries other than
Debt associated with the Receivables Securitization, the UK Debt, the
Obligations, Debt listed on attached Schedule 7.22, additional Debt not to
exceed $7,500,000 at any time outstanding and Debt to the Borrower or a
Guarantor to the extent the loan by the Borrower or Guarantor would be
permitted under Section 3.1(c)."
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1.15 Business Plan. The Borrower shall deliver to the Administrative Agent
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and each Bank on or before April 30, 2002 a business plan for the 2003 Fiscal
Year and shall agree on or before July 31, 2002 to financial covenants for the
2003 Fiscal Year satisfactory to the Required Banks.
SECTION 2 AUTHORIZATION. The Administrative Agent is hereby authorized to
enter into amendments (a) to the Security Agreement to permit transfers of
assets outside the United States so long as the Administrative Agent continues
to have a first priority security interest or charge therein (subject to the
UK/US Intercreditor Agreement) or if such transfer is otherwise permitted under
Article III hereof, (b) to the Debentures to permit lease amendments without
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approval of the Administrative Agent or any Banks and to permit transfers of
assets so long as the Administrative Agent continues to have a first priority
security interest or charge therein (subject to the UK/US Intercreditor
Agreement) or if such transfer is otherwise permitted under Article III hereof
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and (c) to the other Collateral Documents consistent with clauses (a) and (b).
SECTION 3 CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 3 shall have been
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satisfied, and notice thereof shall have been given by the Agent to the Borrower
and the Lenders.
3.1 Receipt of Documents. The Administrative Agent shall have received all
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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 the Administrative Agent:
(a) Amendment. This Amendment, duly executed by the Borrower, the
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Administrative Agent and the Required Lenders.
(b) Consents. Consents of all Guarantors hereto.
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(c) UK Facility. Amendments to the UK Facility in form satisfactory to
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the Administrative Agent consistent herewith.
(d) UK/US Intercreditor Agreement. An amendment to the UK/US
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Intercreditor Agreement in substantially the form attached hereto as
Exhibit A.
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3.2 Fees. The Borrower shall have paid:
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(a) Amendment Fee. An amendment fee to each Bank executing and
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delivering this Amendment prior to 12:00 p.m., Central time, on September
27, 2001 of 10 basis points on its Commitment.
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(b) Administrative Agent's Fee. A fee to the Administrative Agent for
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its own account in the amount agreed to between the Borrower and the
Administrative Agent.
(c) Expenses. All accrued and unpaid fees, costs and expenses to the
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extent then due and payable, together with Attorney Costs of Bank of
America to the extent invoiced, and fees and expenses of the Administrative
Agent's Consultant including such additional amounts as shall be necessary
to ensure any such costs, fees and expenses arising under or referenced in
Sections 2.13 and 10.5 of the Credit Agreement plus $150,000 to the
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Administrative Agent's Consultant and $150,000 to ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ on
retainer for further fees and expenses.
SECTION 4 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 and the other Loan Documents, and the Borrower
additionally represents and warrants to the Administrative Agent and each Banks
as follows:
4.1 Due Authorization, Non-Contravention, etc. The execution, delivery and
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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.
4.2 Governmental Approval, Regulation, etc. No authorization or approval or
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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.
4.3 Validity, etc. This Amendment constitutes the legal, valid and binding
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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.
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SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an
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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 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.
5.2 Payment of Costs and Expenses. The Borrower agrees to pay on demand all
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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.
5.3 Severability. Any provision of this Amendment which is prohibited or
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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.
5.4 Headings. The various headings of this Amendment are inserted for
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convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
5.5 Execution in Counterparts. This Amendment may be executed by the
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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.
5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
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UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
5.7 Successors and Assigns. This Amendment shall be binding upon and shall
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inure to the benefit of the parties hereto and their respective successors and
assigns.
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President and Chief
Financial Officer
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BANK OF AMERICA, N.A.,
individually and as Administrative Agent
By /s/ ▇. ▇▇▇▇▇▇ McDuffler
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Title: ▇. ▇▇▇▇▇▇ McDuffler
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Managing Director
BANK ONE, NA (Main Office Chicago) as
Syndication Agent and as a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
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THE CHASE MANHATTAN BANK, as
Documentation Agent and a Bank
By /s/ ▇▇▇▇▇▇▇ Lancia
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Title: Vice President
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ROYAL BANK OF SCOTLAND, PLC
By: /s/ ▇. ▇. ▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇
Title: Senior Manager, SLS
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & SONS SPECIAL
SITUATIONS PARTNERS II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
THE BANK OF TOKYO-MITSUISHI, LTD.,
CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: VICE PRESIDENT
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U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
FIRSTAR BANK, N.A.
By:
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Name:
Title:
Its Attorney-In-Fact
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President & Group Head
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ ▇. ▇▇▇▇▇▇▇
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Name: Nobuyasu Fukatsu
Title: General Manager
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: SSP
BNP PARIBAS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. March
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SOCIETE GENERALE
By:
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Name:
Title:
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Sr. Vice Pres./Group Exec.
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Title: Senior Vice President
THE MITSUBISHI TRUST & BANKING
CORPORATION
By:
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Name:
Title:
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
AGREEMENT AND CONSENT
The undersigned Guarantors hereby agree and consent to the terms and
provisions of the foregoing First Amendment to Credit Agreement, and agree that
the Loan Documents executed by the undersigned Guarantors shall remain in full
force and effect notwithstanding the provisions of the foregoing First Amendment
to Credit Agreement.
Dated: September 27, ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
APW ENCLOSURE SYSTEMS, INC.
APW ENCLOSURE SYSTEMS HOLDING, INC.
APW ▇▇▇▇▇▇ LINE LLC
APW-ERIE, INC.
ASPEN MOTION TECHNOLOGIES INC.
CAMBRIDGE AEROFLO, INC.
▇▇▇▇ INDUSTRIES INC.
ELECTRONIC SOLUTIONS
INNOVATIVE METAL FABRICATION, INC.
MCLEN WEST INC.
▇▇▇▇▇▇ MIDWEST CORPORATION
METAL ARTS MANUFACTURING, INC.
PRECISION FABRICATION
TECHNOLOGIES INC.
VERO ELECTRONICS, INC.
ZERO-EAST DIVISION, ZERO CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: TREASURER, ASSISTANT TREASURER,
or CFO, as applicable
APW ENCLOSURES SYSTEMS, LP by APW
ENCLOSURE SYSTEMS HOLDING,
INC., its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: TREASURER
APPLIED POWER LTD.
APW ELECTRONICS INVESTMENTS OVERSEAS LTD.
APW ELECTRONICS LTD.
APW ENCLOSURE SYSTEMS HOLDINGS LTD.
APW ENCLOSURE SYSTEMS (UK) LTD.
By: /s/ Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Company Secretary
APW ENCLOSURES (DUBLIN) LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
APW GALWAY LIMITED
By: /s/ Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
▇▇▇▇▇▇▇▇ SECURITY SYSTEMS LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
APW POWER SUPPLIES LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
APW NEW FOREST LIMITED
By: /s/ Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
TOWERFLAME LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
APW ELECTRONICS GROUP PLC
By: /s/ Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Company Secretary
APW ENCLOSURE PRODUCTS AND SYSTEMS LIMITED
By: /s/ Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Company Secretary
APW ENCLOSURE SYSTEMS PLC
By: /s/ Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Company Secretary
AIR CARGO EQUIPMENT (UK) LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
APW Enclosures Limited
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇ ELECTRONICS LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ LINE EUROPE B.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
APW NETHERLANDS B.V.
By: /s/ Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
APW HOLDING B.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
APW PRODUCTS AND SYSTEMS B.V.
By: /s/ Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: Samantha ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
CIPRESMAD HUNGARY GROUP FINANCING LLC
By: /s/ [illegible in Original]
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Name:
Title:
APW ELECTRONICS GMBH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CIPRESMAD-CONSULTORES E SERVICOS, LTD.
By: /s/ [illegible in original]
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Name:
Title:
Schedule 7.6(a)(i)
------------------
---------------------------------------------------------------------------------------------------------------
EBITDARR: Q102 Q202 Q302 Q402
---- ---- ---- ----
---------------------------------------------------------------------------------------------------------------
EBITDA (per Income Statement) 32,721 14,697 29,581 36,756
- Adjusted for "Other Expenses" - 45 44 44
EBITDA (adjusted for "Other Expenses") 32,721 14,652 29,537 36,712
- Less Gain on Asset Sale (24,000) - - -
EBITDA, less Gain on Asset Sale 8,721 14,652 29,537 36,712
+ GAAP Restructuring Expense 8,925 2,503 - -
+ Non-GAAP Restructuring Expense 2,802 3,437 2 -
=================================================================
EBITDARR, less Gain on Asset Sale 20,448 20,592 29,539 36,712
1Q Rolling 2Q Rolling 3Q Rolling 4Q Rolling
---------- ---------- ---------- ----------
Rolling EBITDARR 20,448 41,040 70,579 107,290
Total not Less Than 13,948 31,040 60,579 97,290
Schedule 7.6(a)(ii)
-------------------
--------------------------------------------------------------------------------------------------------------
Non - GAAP Restructuring expenses: Q1 02E Q2 02E Q3 02E Q4 02E
------ ------ ------ ------
--------------------------------------------------------------------------------------------------------------
Non - GAAP Restructuring 2,802 3,437 2 0
Write-off of Assets 2,173 1,780 1,430 0
Total Non - GAAP Restructuring 4,975 5,217 1,432 0
Non - GAAP Restructuring (cumulative) 4,975 10,192 11,624 11,624
Non - GAAP Restructuring Covenant -not to exceed 7,500 11,000 12,500 12,500
Schedule 7.6(a)(iii)
--------------------
-------------------------------------------------------------------------------------------------------------------
GAAP Restructuring expenses: Q1 02E Q2 02E Q3 02E Q4 02E
------ ------ ------ ------
-------------------------------------------------------------------------------------------------------------------
GAAP Restructuring 8,925 2,503 0 0
GAAP Restructuring (cumulative) 8,925 11,428 11,428 11,428
GAAP Restructuring Covenant -not to exceed 12,500 12,500 12,500 12,500
Schedule 7.6(a)(iv)
-------------------
---------------------------------------------------------------------------------------------------------------
Free Cash Flow: Q1 02E Q2 02E Q3 02E Q4 02E
------ ------ ------ ------
---------------------------------------------------------------------------------------------------------------
Cash Flow (608) (9,677) (5,289) 13,448
Cash Flow (Cumulative) (608) (10,285) (15,574) (2,126)
Cumulative Cash Flow Covenant Minimum (7,108) (18,785) (25,574) (12,126)
Schedule 7.6(b)
---------------
----------------------------------------------------------------------------------------------------------------
Rolling 3-month Revenue Test Q4 01E Q1 02E Q2 02E Q3 02E Q4 02E
------ ------ ------ ------ ------
----------------------------------------------------------------------------------------------------------------
Revenue Projections 290,200 285,000 280,000 310,000 335,000
Month 1 30% 87,060 85,500 84,000 93,000 100,500
Month 2 60% 174,120 171,000 168,000 186,000 201,000
Month 3 90% 261,180 256,500 252,000 279,000 301,500
Monthly Sales Covenant 256,500 252,000 279,000 301,500
(3 month rolling)
September 2001 259,620
October 2001 258,060
November 2001 256,500
December 2001 255,000
January 2002 253,500
February 2002 252,000
March 2002 261,000
April 2002 270,000
May 2002 279,000
June 2002 286,500
July 2002 294,000
August 2002 301,500