Exhibit 4.2
FIRST AMENDMENT TO AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT ("First Amendment") is dated as of May 15, 2001 among APPLIED POWER
CREDIT CORPORATION as Seller (the "Seller"), APW NORTH AMERICA, INC.,
individually and as Servicer ("APW"), BARTON CAPITAL CORPORATION as Purchaser
(the "Purchaser") and SOCIETE GENERALE as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the Seller, APW, the Purchaser and the Agent are parties to
an Amended and Restated Receivables Purchase Agreement, dated as of April 18,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Purchase Agreement;" capitalized terms not otherwise defined herein have the
meanings given to them in the Purchase Agreement);
WHEREAS, the Seller has requested that the Purchaser and Agent agree
to amend certain provisions of the Purchase Agreement, and the Purchaser and
Agent are agreeable to such requests, but only on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Purchase Agreement. Effective as of the
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date hereof but subject to the satisfaction of the conditions precedent in
Section 3 hereof the Purchase Agreement is hereby amended as follows:
(a) Section 1.02 is hereby amended by deleting "May 15, 2001" in
subsection (i) and replacing it with "May 14, 2002."
(b) Section 2.04(b) is hereby amended by deleting the definition of
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Dilution Reserve and replacing it with the following:
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"(b) "Dilution Reserve" at any time shall be an amount equal to
the greater of (x) $3,000,000 and (y) the Undivided Interest at
such time multiplied by the Dilution Factor. The Dilution
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Factor shall be the highest Dilution Ratio occurring in the
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previous twelve months multiplied by 2.5."
(c) Section 7.02 is hereby amended by adding the following
after Section 7.02(f) and before Section 7.03:
"(g) Financial Covenants. Comply and cause its affiliates
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to comply with all of the financial covenants in the Bank
Credit Agreement as if all such financial covenants were
set forth in the Purchase Agreement whether or not such
covenants are waived, modified or amended by the lender
under the Bank Credit Agreement and whether or not the
Bank Credit Agreement is cancelled or terminated."
(d) Section 7.03(g) is hereby amended by deleting the word
"and" at the end of 7.03(g).
(e) Section 7.03(h) is hereby amended by redesignating
Section 7.03(h) as 7.03(i), and inserting after Section 7.03(g) the following:
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"(h) Financial Covenant Compliance. Simultaneously with
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its delivery of such reports under the Bank Credit
Agreement, APW will deliver to the Agent and Purchaser
copies of all financial reports delivered to the agent or
the lenders under the Bank Credit Agreement which set
forth APW's compliance or lack of compliance with the
financial covenants under the Bank Credit Agreement; and"
(f) Section 7.05(d)(v) is hereby amended by replacing the
words "provided that, if such Subsidiary is an Originator and if the Agent shall
so request" on the first and second lines thereof with: "provided that if such
sale is of an Originator or a substantial portion of an Originator's assets,".
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(g) Section 9.01(e) is hereby amended and restated as
follows:
"(e) The average of the Delinquency Ratios for any three
successive Month End Dates measured through the Month
End Date in July 2001 exceeds 15%, the Delinquency Ratio
for the Month End Date in August 2001 exceeds 13%, the
average of the Delinquency Ratios for the two successive
Month End Dates measured through September 2001 exceeds
13%, or the average of the Delinquency Ratios for any
three successive Month End Dates measured on and after
the Month End Date in October 2001 exceeds 13%."
(h) Section 9.01(m) is hereby amended and restated as
follows:
"(m) The average of the Dilution Ratios for any three
successive Month End Dates measured through the Month
End Date in July 2001 exceeds 8%, the Dilution Ratio for
the Month End Date in August 2001 exceeds 3%, the
average of the Dilution Ratios for the two successive
Month End Dates measured through September 2001 exceeds
3%, or the average of the Dilution Ratios for any three
successive Month End Dates measured on and after the
Month End Date in October exceeds 3%."
(i) Section 9.01(r) is hereby amended by deleting the period
at the end of Section 9.01(r) and replacing it with "; or".
(j) Section 9.01 is hereby amended by adding the following
after Section 9.01(r):
"(s) The aggregate Unpaid Balance of all Defaulted
Receivables as of any Month End Date through the Month
End Date in July 2001 is greater than 12% of the
aggregate Unpaid Balance of all Pool Receivables as of
such Month End
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Date or the aggregate Unpaid Balance of all Defaulted
Receivables as of any Month End Date commencing with the Month
End Date in August 2001 is greater than 11% of the aggregate
Unpaid Balance of all Pool Receivables as of such Month End
Date."
(k) Schedule I is hereby amended by inserting the following in its
appropriate alphabetical order:
"Bank Credit Agreement" means the Amended and Restated
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Multicurrency Credit Agreement dated as of May 15, 2001 among
APW, Ltd., National Association, as administrative agent, Bank
One, N.A., as syndication agent, The Chase Manhattan Bank, as
documentation agent, certain financial institutions party
thereto as lenders dated as of July 31, 2000 (as amended,
supplemented or modified from time to time)."
(l) Schedule I is hereby amended by replacing "20%" in (i) in the
first line of the definition of "Loss Percentage" with "25%".
SECTION 2. Fees.
(a) Amendment Fee. Seller shall pay to the Agent, for its own
account, an amendment fee equal to 0.75% of the Purchase Limit, which shall be
payable on the date hereof. Such fee shall be fully earned and nonrefundable on
the date hereof.
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(b) Program Fee. Seller acknowledges that subsequent to April 18, 2001
Seller has been paying Purchaser a program fee in the amount stated in the Fee
Letter on each Business Day of each month. On each Business Day from (and
including) the date hereof until (but excluding) the date, following the
Commitment Termination Date, on which the Aggregate Purchaser's Investment shall
be reduced to zero, Seller shall pay to Purchaser a program fee ("Program Fee")
equal to the product of the Purchase Limit on such day, times (x) 1.25% times
(y) 1/360 times (z) the number of days since the last Business Day on which the
Program Fee was paid. Such Program Fee shall be paid on each Business Day of
each calendar month in the amount of such Program Fee that shall have accrued
since the prior Business Day and which shall not have been previously paid.
SECTION 3. Effectiveness. This First Amendment shall become
effective upon the Agent's receipt of (a) this First Amendment, duly executed by
the Seller, APW and the Purchaser, (b) a duly executed copy of a waiver or
amendment to the Bank Credit Agreement containing such terms and conditions as
are acceptable to the Agent in its sole discretion; (c) an amount equal to all
fees payable hereunder upon the execution hereof and (d) an amount equal to the
fees and expenses of counsel to the Agent.
SECTION 4. Representations and Warranties of the Seller and APW. The
Seller and APW each represents and warrants as follows:
(a) The execution, delivery and performance by the Seller and APW
of this First Amendment and the Purchase Agreement, as amended hereby, and the
consummation of the transactions contemplated hereby and thereby, are within the
Seller's and APW's powers, have been duly authorized by all necessary corporate
action on the part of the Seller and APW, and do not and will not (i) contravene
the Agreement Documents, (ii) violate any law, order, writ, judgment,
injunction, decree, determination or award of any court or other governmental
authority binding on the Seller or APW or any assets of the Seller or APW, (iii)
conflict with or result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting the Seller or APW, or any of their assets or
(iv) result in or require the creation or imposition of any Adverse Claim upon
or with respect to any of the assets of the Seller or APW.
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(b) No authorization or approval or other action by, and no notice
to or filing with, any governmental or regulatory body or any other third party
is required for the due execution, delivery or performance by the Seller and APW
of this First Amendment and the Purchase Agreement, as amended hereby, except
for the authorizations, approvals, actions and notices which have been duly
obtained, taken, given, or made and are in full force and effect.
(c) This First Amendment has been duly executed and delivered by
the Seller and APW. The Purchase Agreement, as amended hereby, is the legal,
valid and binding obligation of the Seller and APW, enforceable against the
Seller and APW, in accordance with its terms, subject to applicable bankruptcy,
insolvency, liquidation, reorganization, moratorium and other laws affecting the
rights of creditors generally and to the exercise of judicial discretion in
accordance with general principles of equity (whether applied by a court of law
or equity).
(d) All of the Seller's and APW's representations and warranties
contained in the Agreement Documents are true and correct in all material
respects on and as of the date hereof, except to the extent such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date).
(e) After giving effect to this First Amendment, no Termination
Event has occurred and is continuing.
(f) As of the date hereof, the Aggregate Purchaser's Investments
are $57,859,093 and such amounts, together with the accrued and unpaid Earned
Discount thereon are not subject to any setoff, dispute, claim, counterclaim or
defense of any kind. To the extent any such setoff, dispute, claim, counterclaim
or defense exists, it is hereby waived.
SECTION 5. Reference to and Effect on the Agreement Documents.
(a) Upon the effectiveness of this First Amendment, on and after
the date hereof, each reference in the Purchase Agreement to "this Agreement,"
"hereunder," "hereof," "herein" and words of like import, and such words or
words of like import in each reference in the Agreement Documents, shall mean
and be a reference to the Purchase Agreement as modified hereby.
(b) Except as specifically amended and modified hereby, all of the
terms and provisions of the Purchase Agreement and the other Agreement Documents
shall remain in full force and
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effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this First
Amendment shall not, except as expressly provided herein, operate as an
amendment to or a waiver of any right, power or remedy of the Agent under any of
the Agreement Documents, or constitute an amendment to or a waiver of any
provision of any of the Agreement Documents. This First Amendment shall not
constitute the Agent's consent or indicate its willingness to consent to any
other amendment, modification or waiver of the Purchase Agreement or any other
Agreement Document.
(d) This First Amendment shall be deemed to be an Agreement
Document for all purposes.
SECTION 6. Execution in Counterparts, Etc. This First Amendment may
be executed in counterparts, and by separate parties on separate counterparts
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
Telecopied counterparts of the signature pages hereof shall be deemed effective
as of the Agent's receipt thereof.
SECTION 7. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND
ENFORCEMENT OF THIS FIRST AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF ILLINOIS.
SECTION 8. Expenses. The Seller agrees to pay to the Agent, on
demand, (a) all of the out-of-pocket costs and expenses incurred by the Agent in
connection with the preparation, negotiation, execution and delivery of this
First Amendment, including, without limitation, the fees and disbursements of
counsel to the Agent and (b) the fees and expenses of any financial consultant
retained by or on behalf of the Agent. This Section shall not limit the
Seller's obligations under Section 2 hereof and under Section 13.06 of the
Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their respective duly authorized officers as of the
date first above written.
APPLIED POWER CREDIT CORPORATION, as Seller
By:________________________________________________
Name:
Title:
Address: N22 W23685 Ridgeview Parkway West
Waukesha, Wisconsin 53188-1013
Telephone No.: (262) 523-7620
Facsimile No.: (262) 523-7580
Attention: Treasurer
APW NORTH AMERICA, INC., individually and as Servicer
By:________________________________________________
Name:
Title:
Address: N22 W23685 Ridgeview Parkway West
Waukesha, Wisconsin 53188-1013
Telephone No.: (262) 523-7620
Facsimile No.: (262) 523-7580
Attention: Treasurer
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BARTON CAPITAL CORPORATION, as Purchaser
By:___________________________________________________
Name:
Title:
Address: c/o AMACAR Group, L.L.C.
6525 Morrison Boulevard
Suite 318
Charlotte, North Carolina 28211
Telephone No.: (704) 365-0569
Facsimile No.: (704) 365-1362
Attention: Douglas K. Johnson
SOCIETE GENERALE, as Agent
By:___________________________________________________
Name:
Title:
Address: 181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Telephone No.: (312) 578-5167
Facsimile No.: (312) 578-5199
Attention: Asset Securitization Group
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