Exhibit 10.2
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
This First Amendment to Intercreditor Agreement dated as of September 27,
2001 (the Amendment amends the Intercreditor Agreement dated as of May 15, 2001
(the "Intercreditor Agreement") by and among Bank of America, National
Association, as Administrative Agent (the "US Agent") under the Amended and
Restated Multicurrency Credit Agreement, dated as of May 15, 2001, among APW
Ltd. (the "US Borrower"), various financial institutions (the "US Banks"), Bank
One, NA as Syndication Agent and the US Agent (as such Multicurrency Credit
Agreement may from time to time be amended, modified, restated or refinanced,
the "US Credit Agreement"); Bank of America, National Association as Security
Trustee (the "US Security Trustee") under the Debenture, dated as of May 15,
2001, the Second Debenture dated as of July 13, 2001, the Standard Securities
dated as of July 13, 2001 and the Irish Debenture dated as of August 15, 2001
(collectively, the "US Debenture"), among the companies set forth on the
Schedules attached thereto and Bank of America, N.A. as Security Trustee; the US
Banks (via the execution and delivery of the Intercreditor Agreement by the
Required Banks (as such term is defined in the US Credit Agreement)); Royal Bank
of Scotland, PLC, as agent ("UK Agent") for itself and National Westminster
Bank, PLC ("National Westminster"); Royal Bank of Scotland, PLC as Security
Trustee (the "UK Security Trustee") under the Debenture, dated as of May 15,
2001, the Second Debenture dated as of July 13, 2001, the Standard Securities as
of July 13, 2001 and the Irish Debenture dated as of August 15, 2001 ("UK
Debenture"), among the companies set forth on the Schedules attached thereto and
Royal Bank of Scotland, PLC as Security Trustee; and Royal Bank of Scotland, PLC
and National Westminster (collectively, the "UK Banks").
WITNESSETH:
WHEREAS, the parties have entered into the Intercreditor Agreement to
provide for their respective rights in the Collateral, as defined in the
Intercreditor Agreement; and
WHEREAS, the parties desire to amend the Intercreditor 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. DEFINITIONS.
1.1 Definitions. Section 1.1 of the Intercreditor Agreement is hereby
-----------
amended by the addition of the following terms in proper alphabetical order:
"Denmark Collateral Proceeds" shall mean all proceeds of Non-Shared
Collateral located in Denmark and subject to security interests to be created by
APW Power Supplies A/S in favor of the UK Security Trustee.
"Excluded Bank" shall have the meaning set forth in the Germany Security
Agreement.
"German Law Security Documents" shall have the meaning set forth in the
German Security Agreement.
"German Security Agreement" shall mean the Security Agreement
to be entered between The Royal Bank of Scotland plc as Security Agent and
certain banks.
"Germany Collateral Proceeds" shall mean all proceeds of Collateral located
in Germany and subject to the German Law Security Documents.
1.2 Principal Payments. Section 2 of the Intercreditor Agreement is hereby
------------------
amended by the addition after the number "5" in the first line following: ", 9".
1.3 Collateral Proceeds. Section 3 of the Credit Agreement is hereby
-------------------
amended by the deletion of the words "Section 33" in the third line and the
substitution of the words "Sections 9 and 33" therefor.
1.4 Non-Shared Collateral, Section 9 of the Intercreditor Agreement is
---------------------
hereby amended to state in its entirety as follows:
"9. Non-Shared Collateral.
---------------------
(a) Notwithstanding any provisions of Sections 2 or 3 to the contrary
but subject to clauses (b) and (c) of this Section, any proceeds of Non-Shared
Collateral shall be applied to the payment of the US Obligations or the UK
Obligations, whichever are secured by the such collateral.
(b) If Denmark Collateral Proceeds are applied to the UK Obligations
(and not, based on Pro Rata Shares, to the US Obligations), all payments
thereafter under Section 2 of principal (including, without limitation, Letter
of Credit Usage as defined in the US Credit Agreement) and applications of
Collateral proceeds thereafter under Section 3 shall be applied to the US
Obligations until the outstanding US Obligations and the outstanding UK
Obligations shall be in the same proportion as prior to the application of such
Denmark Collateral Proceeds.
(c) If Germany Collateral Proceeds are applied to the UK Obligations
and the US Obligations, but not US Obligations held by Excluded Banks, all
payments thereafter under Section 2 of principal (including, without limitation,
Letter of Credit Usage as defined in the US Credit Agreement) and applications
of Collateral proceeds thereafter under Section 3 shall be applied to the US
Obligations held by the Excluded Banks until the outstanding US Obligations held
by Excluded Banks, the other US Obligations and the UK Obligations shall be in
the same proportion as prior to the application of such Germany Collateral
Proceeds."
1.5 Insolvency Proceedings. Section 15(a) and (b) of the Intercreditor
----------------------
Agreement are hereby amended to state in their entirety as follows:
(a) Until the US Obligations and the UK Obligations shall have been
paid in full, any distribution of any kind made in any Insolvency Proceeding of
a Loan Party on account of the Shared Collateral shall be allocated and
distributed in accordance with the provisions of Section 3 hereof (or Section 33
hereof, if that latter provision instead should be applicable) but subject to
Section 9 and in the event, for whatever reason, such a distribution does not
occur, the party receiving any portion of a distribution made in violation of
Section 3 hereof (or Section 33 hereof, if that latter provision instead should
be applicable) but subject to Section 9 shall hold
2
such position in trust consistent with the provisions of Section 13 hereof and
shall promptly deliver such portion to the party that should have instead
received it pursuant to Section 3 hereof (or Section 33 hereof, if that latter
provision instead should be applicable) but subject to Section 9 to then be
further distributed by such party as provided in Section 3 hereof (or Section 33
hereof, if that latter provision should be applicable) but subject to Section 9.
Without limiting the generality of Section 3 hereof (or Section 33 hereof, if
that latter provision instead should be applicable) but subject to Section 9 or
of any other provision of this Intercreditor Agreement, if, in any Insolvency
Proceeding of any Loan Party, a party hereto obtains a cash or other payment in
connection with any asserted or determined impairment to its interest in any of
the Shared Collateral or otherwise as a form of "adequate protection" of its
interest in any of the Shared Collateral, such payment shall be deemed, for
purposes of this Intercreditor Agreement, to be Net Proceeds of Shared
Collateral and such party shall thereupon redistribute such payment in
accordance with the priority of payment set forth in Section 3 hereof (or
Section 33 hereof, if that latter provision instead should be applicable) but
subject to Section 9.
(b) Each party may file in any Insolvency Proceeding of any Loan Party
proofs of claim and other motions and pleadings with respect to its claims and
liens and security interests, if and only if consistent with the terms hereof
and the limitations of such party imposed hereby. Consistent with, but not in
limitation of, the foregoing, each party expressly reserves: (i) its right to
vote in any Insolvency Proceeding of any Loan Party; (ii) any and all of its
claims or defenses in favor of or in opposition to any plan of reorganization
proposed for any Loan Party in an Insolvency Proceeding; and (iii) any and all
of its claims, rights, powers and/or remedies under any law governing the Loan
Party that any other creditor with security interests and liens in the assets of
the Loan Party would have; provided, however, each party expressly agrees that
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it shall exercise all of such claims, rights, powers, and or remedies in a
manner that is consistent with the provisions of this Intercreditor Agreement
and that it shall not exercise (and it shall be expressly prohibited from
exercising) any such claims, rights (including, without limitation, any right to
vote its claim to accept or reject any plan of reorganization for any Loan
Party), powers, and/or remedies in a manner that is intended to deprive or that
has the likely effect of depriving other parties of the benefits of this
Intercreditor Agreement (and any such exercise shall be deemed to be null and
void). Each party shall have the right to enforce the provisions of this
Intercreditor Agreement (including the provisions of this Section 15(b)) in an
Insolvency Proceeding of any Loan Party. Without limiting the generality of the
foregoing, no party shall have the right to waive or fail to assert its claims
or to support a plan of reorganization that provides for a priority of
distribution that is inconsistent with the provisions of Section 3 hereof (or
Section 33 hereof, if that latter provision instead should be applicable) but
subject to Section 9 in an Insolvency Proceeding of any Loan Party and in the
event that US Agent reasonably determines that any member of the UK Lender
Group, or that the UK Agent reasonably determines that any member of the US
Lender Group, may be on the verge of doing so in any Insolvency Proceeding of
any Loan Party, the US Agent or the UK Agent (as the case may be) shall be
deemed to be the assignee (and thus the holder) of such claim and shall have the
right to assert and vote (including pursuant to a deemed power of attorney) such
claim in the Insolvency Proceeding of any Loan Party, including through the
filing of a proof of claim therein and/or casting ballots in connection with any
proposed plan of reorganization for any Loan Party."
SECTION 2. APPOINTMENT OF SECURITY TRUSTEE.
3
2.1 Germany. The US Banks, the US Agent, the UK Banks and the UK Agent
-------
hereby appoint Royal Bank of Scotland, PLC as security trustee under Collateral
Documents related to assets in Germany.
2.2 Brazil. The US Banks, the US Agent, the UK Banks and the UK Agent
------
hereby appoint Bank of America, N.A. as security trustee under Collateral
Documents related to assets in Brazil.
SECTION 3. EFFECTIVENESS. This Amendment shall be effective when executed
and delivered by the US Agent, the US Security Trustee, the Required Banks, the
UK Agent, the UK Banks, and the UK Security Trustee and when the attached Loan
Party Acknowledgement shall be executed and delivered by each Loan Party.
SECTION 4. MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. This amendment shall be deemed to be an
-----------------------------
amendment to the Intercreditor Agreement, and the Intercreditor 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 Intercreditor
Agreement in the Loan Documents or in any other document, instrument, agreement
or writing shall be deemed to refer to the Intercreditor Agreement as amended
hereby.
4.2 Severability. Any provision of this Amendment which is prohibited or
------------
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.
4.3 Headings. The various headings of this Amendment are inserted for
--------
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
4.4 Execution in Counterparts. This Amendment may be executed by the
-------------------------
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.
4.5 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
-------------
UNDER AN GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
4.6 Successors and Assigns. This Amendment shall be binding upon and shall
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BANK OF AMERICA, NATIONAL
ASSOCIATION, as US Agent, US
Security Trustee and a US Bank
By: /s/ M. Duncan McDuffie
--------------------------------------
Name: M. Duncan McDuffie
Title: Managing Director
ROYAL BANK OF SCOTLAND, PLC, as UK
Agent, as UK Security Trustee, as a
UK Bank and as a US Bank
By: /s/ T.J. SMITH
-----------------------------------
Name: T.J. SMITH
Title: SENIOR MANAGER SLS
BANK ONE, NA, as a US Bank
By: /s/ Thomas T. Bower
-----------------------------------
Name: THOMAS T. BOWER
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as a US Bank
By: /s/ Michael Lancia
-----------------------------------
Name: Michael Lancia
Title: Vice President
FIRST UNION NATIONAL BANK, as a US Bank
By: /s/ Joel Thomas
------------------------------------
Name: Joel Thomas
Title: Vice President
WILLIAM E. SIMON & SONS SPECIAL
SITUATIONS PARTNERS II, L.P., as a US Bank
By: /s/ DALE LESHAW
------------------------------------
Name: DALE LESHAW
Title: PRINCIPAL
LASALLE BANK NATIONAL ASSOCIATION,
as a US Bank
By: /s/ Margaret P. Heger
-----------------------------------
Name:
Title: First Vice President
THE BANK OF TOKYO-MITSUISHI, LTD.,
CHICAGO BRANCH, as a US Bank
By: /s/ SHINICHIRO MUNECHIKA
-----------------------------------
Name: SHINICHIRO MUNECHIKA
Title: DEPUTY GENERAL MANAGER
CREDIT LYONNAIS CHICAGO BRANCH, as a US
Bank
By: /s/ Mary Ann Klemm
-----------------------------------
Name: MARY ANN KLEMM
Title: VICE PRESIDENT
U.S. BANK NATIONAL ASSOCIATION, as a US
Bank
By:
-----------------------------------
Name:
Title:
FIRSTAR BANK, N.A., as a US Bank
By:
-----------------------------------
Name:
Title:
Its Attorney-In-Fact
THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
-----------------------------------
Name: Peter L. Chinnici
Title: Senior Vice President & Group Head
FLEET NATIONAL BANK, as a US Bank
By: /s/ Margot Doering
-----------------------------------
Name: Margot Doering
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD., as a US
Bank
By: /s/ Nobuyasu Fukatsu
-----------------------------------
Name: Nobuyasu Fukatsu
Title: General Manager
M&I MARSHALL & ILSLEY BANK, as a US Bank
By: /s/ Michael Vellon
-----------------------------------
Name: Michael Vellon
Title: Vice President
By: /s/ Mark R. Hogan
-----------------------------------
Name: Mark R. Hogan
Title: Senior Vice President
BNP PARIBAS, as a US Bank
By: /s/ Duane P. Helkowski
-----------------------------------
Name: Duane P. Helkowski
Title: Director
By: /s/ Shayne P. March
-----------------------------------
Name: Shayne P. March
Title: Vice President
SOCIETE GENERALE, as a US Bank
By:
----------------------------
Name:
Title:
WACHOVIA BANK, N.A., as a US Bank
By: /s/ Edward H. Hutchison
-----------------------------------
Name: Edward H. Hutchison
Title: Senior Vice President/Group
Executive
SUMITOMO MITSUI BANKING
CORPORATION, as a US Bank
By: /s/ Peter R.C. Knight
-----------------------------------
Name: Peter R.C. Knight
Title: Senior Vice President
THE MITSUBISHI TRUST & BANKING
CORPORATION, as a US Bank
By:
----------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK, PLC, as a
UK Bank
By: /s/ Geoff Cruickshank
-----------------------------------
Name: Geoff Cruickshank
Title: Head of Corporate Restructuring
Unit, Specialized Lending Services
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as a US Bank
By: /s/ Mark Denatale
-----------------------------------
Name: MARK DENATALE
Title: AUTHORIZED SIGNATORY
LOAN PARTY ACKNOWLEDGMENT
-------------------------
Each of the undersigned Loan Parties hereby acknowledges receipt of a copy
of the foregoing First Amendment to Intercreditor Agreement, waives notice of
acceptance thereof by the parties to such amendment, and agrees to be bound by
the terms and provisions of the Intercreditor Agreement, as so amended, to make
no payments or distributions contrary to the terms and provisions, and to do
every other act and thing necessary or appropriate to carry out such terms and
provisions.
Dated as of September 27, 2001
APW LTD.
By: /s/ Richard D. Carroll
----------------------------
Name: Richard D. Carroll
Title: Vice President and Chief
Financial Officer
APW NORTH AMERICA INC.
By: /s/ James Maxwell
----------------------------
Name: James Maxwell
Title: Treasurer
APW ENCLOSURE SYSTEMS, INC.
APW ENCLOSURE SYSTEMS HOLDING, INC.
APW WRIGHT LINE LLC
APW-ERIE, INC.
ASPEN MOTION TECHNOLOGIES INC.
CAMBRIDGE AEROFLO, INC.
EDER INDUSTRIES INC.
ELECTRONIC SOLUTIONS
INNOVATIVE METAL FABRICATION, INC.
MCLEN WEST INC.
MCLEAN MIDWEST CORPORATION
METAL ARTS MANUFACTURING, INC.
PRECISION FABRICATION
TECHNOLOGIES INC.
VERO ELECTRONICS, INC.
ZERO-EAST DIVISION, ZERO CORPORATION
By: /s/ James Maxwell
---------------------------------
Name: JAMES MAXWELL
Title: TREASURER, ASSISTANT TREASURER,
or CFO, as applicable
APW ENCLOSURES SYSTEMS, LP by APW
ENCLOSURE SYSTEMS HOLDING,
INC., its General Partner
By: /s/ James Maxwell
---------------------------------
Name: James Maxwell
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 Louise Kirby
--------------------------------------
Name: Samantha Louise Kirby
Title: Company Secretary
APW ENCLOSURES (DUBLIN) LIMITED
By: /s/ Richard D. Carroll
-------------------------------
Name: Richard D. Carroll
Title: Vice President
APW GALWAY LIMITED
By: /s/ Samantha Louise Kirby
-------------------------------
Name: Samantha Louise Kirby
Title: Director
HOERMANN SECURITY SYSTEMS LTD.
By: /s/ Richard D. Carroll
------------------------------
Name: Richard D. Carroll
Title: Vice President
APW POWER SUPPLIES LTD.
By: /s/ Richard D. Carroll
-------------------------------------
Name: Richard D. Carroll
Title: Vice President
APW NEW FOREST LIMITED
By: /s/ Samantha Louise Kirby
-------------------------------
Name: Smantha Louise Kirby
Title: Company Secretary
TOWERFLAME LIMITED
By: /s/ Richard D. Carroll
-------------------------------
Name: Richard D. Carroll
Title: Vice President
APW ELECTRONICS GROUP PLC
By: /s/ Samantha Louise Kirby
-------------------------------------
Name: Samantha Louise Kirby
Title: Company Secretary
APW ENCLOSURE PRODUCTS AND
SYSTEMS LIMITED
By: /s/ Samantha Louise Kirby
--------------------------------
Name: Samantha Louise Kirby
Title: Company Secretary
APW ENCLOSURE SYSTEMS PLC
By: /s/ Samantha Louise Kirby
------------------------------
Name: Samantha Louise Kirby
Title: Company Secretary
AIR CARGO EQUIPMENT (UK) LIMITED
By: /s/ Richard D. Carroll
-------------------------------------
Name: Richard D. Carroll
Title: Vice President
APW Enclosures Limited
By: /s/ Richard D. Carroll
-------------------------------------
Name: Richard D. Carroll
Title: Vice President
HOERMANN ELECTRONICS LIMITED
By: /s/ Richard D. Carroll
-------------------------------------
Name: Richard D. Carroll
Title: Vice President
WRIGHT LINE EUROPE B.V.
By: /s/ Richard D. Carroll
-------------------------------------
Name: Richard D. Carroll
Title: Vice President
APW NETHERLANDS B.V.
By: /s/ Samantha Louise Kirby
-------------------------------------
Name: Samantha Louise Kirby
Title: Director
APW HOLDING B.V.
By: /s/ Richard D. Carroll
----------------------------------
Name: Richard D. Carroll
Title: Vice President
APW PRODUCTS AND SYSTEMS B.V.
By: /s/ Samantha Louise Kirby
-------------------------------------
Name: Samantha Louise Kirby
Title: Director
CIPRESMAD HUNGARY GROUP FINANCING LLC
By: /s/ [illegible in Original]
-------------------------------------
Name:
Title:
APW ELECTRONICS GMBH
By: /s/ Richard D. Carroll
-------------------------------------
Name: Richard D. Carroll
Title: Vice President
CIPRESMAD-CONSULTORES E SERVICOS, LTD.
By: /s/ [illegible in original]
-------------------------------------
Name:
Title:
Schedule 7.6(a)(i)
------------------
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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