AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT, dated as of July 14, 2000
(this "Amendment"), is entered into among the Originators (each an "Originator"
and together the "Originators") party hereto, Applied Power Inc. ("API") and
Applied Power Credit Corporation (the "Initial Purchaser").
RECITALS
1. The Originators, API and the Initial Purchaser are parties to the
Amended and Restated Purchase and Sale Agreement, dated as of November 20, 1997
(as amended, supplemented or otherwise modified, the "Agreement").
2. Each of AA Manufacturing, Inc., APW Ltd. f/k/a ▇▇▇▇▇▇ Line Inc., Ancor
Products, Inc., Applied Power Inc., Calterm, Inc., Del City Wire Co., Inc., GB
Electrical, Inc., ▇▇▇▇▇▇▇ Products, Inc., New England Controls, Inc., ▇▇▇▇▇▇▇
Hardware Corporation, and Versa Technologies, Inc. (each, an "Exiting
Originator") desires to cease to be an "Originator" party to the Agreement and
to repurchase the Receivables originated thereby; and
3. The parties hereto desire to amend the Agreement as set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms that are used herein without
definition and that are defined in the Agreement or in Schedule I to the
Receivables Purchase Agreement, dated as of November 20, 1997 (as amended,
supplemented or otherwise modified, the "Receivables Purchase Agreement"),
among API, the Initial Purchaser, ▇▇▇▇▇▇ Capital Corporation (the "Purchaser")
and Societe Generale (the "Agent") shall have the same meanings herein as
therein defined.
2. Amendments to the Agreement. The Agreement is hereby amended as follows:
2.1 Each Exiting Originator is hereby removed as an "Originator" under the
Agreement. All reference to "Originators" in the Agreement and the other
Agreement Documents shall be deemed to exclude the Exiting Originators and the
Exiting Originators shall have no further obligations under the Agreement;
provided, however, that each Exiting Originator shall remain bound by those
terms of the Agreement that survive termination of the Agreement (including,
without limitation, the provisions described in Section 5.9 of the Agreement).
2.2 Schedule III to the Agreement is hereby amended and restated in its
entirety to be, and to read, as set forth in Schedule III hereto.
3. Reconveyance of Receivables Originated by the Exiting Originators.
(a) In consideration of the purchase price agreed to between the
Initial Purchaser and each Exiting Originator (the "Reconveyance Price") in
immediately available funds, the receipt and sufficiency of which is hereby
acknowledged, the Initial Purchaser hereby sells, transfers, assigns, grants and
otherwise conveys to such Exiting Originator all of the Initial Purchaser's
right, title and interest in and to all Receivables originated by such Exiting
Originator and all Related Rights with respect thereto (the "Reconveyed
Assets"). The Initial Purchaser shall pay to each Exiting Originator the
principal and interest outstanding on the date hereof under the Initial
Purchaser Note made to such Exiting Originator, which Initial Purchaser Note
shall be returned to the Initial Purchaser and marked "cancelled". The amount
payable under such Initial Purchaser Note and the Reconveyance Price may be
netted.
(b) The Initial Purchaser hereby releases its right, title and
interest in, to and under the Reconveyed Assets, and the Agent and the Purchaser
hereby consent to such release. Such release is made without representation,
warranty or recourse, except that the Initial Purchaser hereby represents and
warrants that no liens have been created by it with respect to such Reconveyed
Property.
(c) The parties hereto hereby agree that upon the reconveyance
described in this Section 3, the Receivables originated by the Exiting
Originators shall cease to be in the "Receivables Pool" for all purposes under
the Agreement Documents.
4. Representations and Warranties. (a) The Initial Purchaser and the
Originators (other than, with respect to clause (i), the Exiting Originators)
each hereby represents and warrants that:
(i) The representations and warranties thereof contained in the
Agreement Documents are true and correct in all material respects on and as
of the date hereof.
(ii) No event has occurred and would be continuing after giving effect
to the amendments described in Section 2 or the reconveyance and release
described in Section 3, or would result therefrom, that constitutes a
Termination Event or Unmatured Termination Event.
(iii) After giving effect to the reconveyance and release described in
Section 3, the Aggregate Participation Amounts will not exceed the
Participation Amounts Limit.
(iv) It has the power and authority to execute, deliver and perform
this Amendment, and this Amendment constitutes a legal, valid and binding
obligation thereof.
2
5. Effect of Amendment. Except as expressly amended and modified by this
Amendment, all provisions of the Agreement shall remain in full force and
effect. After this Amendment becomes effective, all references in the Agreement
(or in any other Agreement Document) to "this Agreement", "hereof", "herein" or
words of similar effect referring to the Agreement shall be deemed to be
references to the Agreement as amended, including by this Amendment. This
Amendment shall not be deemed, expressly or impliedly, to waive, amend or
supplement any provision of the Agreement other than as set forth herein.
6. Effectiveness. This Amendment shall become effective upon the execution
of such Amendment by all of the parties hereto.
7. Consent to Assigment by Servicer. Each of the parties hereto, the
Agent and the Purchaser, by its signing hereof, hereby consents to API's
assignment to APW North America, Inc. ("APW") of all of API's rights, interests
and obligations under the Related Documents, all as set forth in the Assignment
and Assumption Agreement, dated as of July 31, 2000, between API and APW.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
9. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York (without regard to
any otherwise applicable principles of conflicts of law), except to the extent
that the perfection (and the effect of perfection or nonperfection) of the
Initial Purchaser's interests in the Receivables is governed by the laws of a
jurisdiction other than the State of New York.
10. Section Headings. The various headings of this Amendment are included
for convenience only and shall not affect the meaning or interpretation of this
Amendment, the Agreement or any provision hereof or thereof.
(Continued on following page)
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
Applied Power Credit Corporation,
as the Initial Purchaser
By:
Name:
Title:
Ancor Products, Inc.
By:
Name:
Title:
Applied Power Inc.
By:
Name:
Title:
APW Enclosure Systems, LP
successor to AA Manufacturing, Inc.
By:
Name:
Title:
APW Ltd.
f/k/a ▇▇▇▇▇▇ Line Inc.
By:
Name:
Title:
APW North America, Inc.
f/k/a ZERO Corporation
By:
Name:
Title:
APW Tools & Supplies, Inc.
f/k/a GB Electrical, Inc.
successor to Calterm, Inc.
By:
Name:
Title:
Cambridge Aeroflo, Inc.
By:
Name:
Title:
Del City Wire Co., Inc.
By:
Name:
Title:
▇▇▇▇ Industries, Inc.
By:
Name:
Title:
Electronic Solutions
By:
Name: _______________________
Title:
▇▇▇▇▇▇ Midwest Corporation
By:
Name:
Title:
▇▇▇▇▇▇ West Inc.
f/k/a Air Cooling Technology, Inc.
By:
Name:
Title:
Mox-Med, Inc.
f/k/a ▇▇▇▇▇▇▇ Products, Inc.
By:
Name:
Title:
New England Controls, Inc.
By:
Name:
Title:
▇▇▇▇▇▇▇ Hardware Corporation
By:
Name:
Title:
Precision Fabrication Technologies, Inc.
By:
Name:
Title:
Versa Technologies, Inc.
By:
Name:
Title:
Zero-East Division, Zero Corporation
By:
Name:
Title:
Zero Enclosures, Inc.
By:
Name:
Title:
ACKNOWLEDGED AND CONSENTED TO
by:
Societe Generale,
as Agent
By:
Name:
Title:
By:
Name:
Title:
▇▇▇▇▇▇ Capital Corporation,
as Purchaser
By:
Name:
Title:
SCHEDULE III
ORIGINATORS
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APW North America, Inc. f/k/a Zero Corporation
Cambridge Aeroflo, Inc.
▇▇▇▇ Industries, Inc.
Electronic Solutions
▇▇▇▇▇▇ Midwest Corporation
▇▇▇▇▇▇ West Inc. f/k/a Air Cooling Technology, Inc.
Precision Fabrication Technologies, Inc.
Zero-East Division, Zero Corporation
Zero Enclosures, Inc.