Exhibit 4.3
FOURTH AMENDMENT TO AMENDED AND
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RESTATED MULTICURRENCY CREDIT AGREEMENT
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THIS FOURTH AMENDMENT TO AMENDED AND RESTATED MULTICURRENCY CREDIT
AGREEMENT, dated as of February 12, 2002 (this "Amendment"), amends the Amended
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and Restated Multicurrency Credit Agreement, dated as of May 15, 2001 (as
heretofore amended, the "Credit Agreement"), among APW Ltd., a Bermuda
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corporation (the "Borrower"), the various financial institutions parties thereto
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(collectively, the "Banks"), Bank One, NA, as syndication agent, The Chase
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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. CONSENT. The Banks hereby consent to the sale of the Specified
Business Unit for a purchase price of not less than $21,000,000. Said purchase
price may be adjusted at closing for an escrow not in excess of $500,000 and
other adjustments, so long as not less than $19,000,000 is wired to the Borrower
at closing and the final purchase price after all post closing adjustments shall
not be less than $19,000,000.
SECTION 2. AMENDMENTS.
(a) Section 2.9(b)(ii) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(ii) If for a period of three consecutive Business
Days, the Borrower and its Subsidiaries hold in aggregate
collected funds in excess of $9,000,000, the excess
thereof on said third Business Day shall be applied as a
prepayment to be applied in the manner set forth in the
UK/US Intercreditor Agreement."
(b) Section 5.2(d) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"(d) Free Cash. The Borrower shall represent that, to
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the best of its knowledge after due inquiry, after giving
effect to a proposed Loan and the application of proceeds
thereof, within two Business Days of making such Loan, the
Borrower and its
Subsidiaries shall not hold aggregate collected funds in
excess of $9,000,000."
(c) As of the date hereof, Exhibit A to the Credit Agreement is amended
and restated in its entirety with Exhibit A attached hereto.
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SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 3 shall have
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been satisfied, and notice thereof shall have been given by the Agent to the
Borrower and the Banks.
(a) 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 to the Administrative Agent:
(i) This Amendment, duly executed by the Borrower, the
Administrative Agent and the Required Banks;
(ii) An amendment to the UK Facility in form satisfactory to the
Administrative Agent; and
(iii) A consent with respect to the Securitization in form
satisfactory to the Administrative Agent.
(iv) An agreement satisfactory to the Administrative Agent and the
Borrower in respect of retainers for further fees and expenses of Mayer, Brown,
Rowe & Maw and the Administrative Agent's consultant.
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, as hereby amended, and the other Loan Documents, and
the Borrower additionally represents and warrants to the Administrative Agent
and each Bank as follows:
(a) 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 contravene the Borrower's Organic Documents; contravene any
contractual restriction, law or governmental regulation or court decree or order
binding on or affecting the Borrower; or result in, or require the creation or
imposition of, any Lien on any of the Borrower's properties.
(b) Governmental Approval, Regulation, etc. No authorization or approval
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or 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.
(c) 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
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thereof is limited by bankruptcy, insolvency or other laws relating to, or
affecting enforcement of, creditors' rights in general, and general principles
of equity.
(d) Purchase Agreement. The Asset Purchase Agreement and Ancillary
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Documents delivered to the Administrative Agent on or before February 12, 2002
are true and correct and have not since been amended in any material aspect.
SECTION 5. MISCELLANEOUS.
(a) 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.
(b) Payment of Costs and Expenses. The Borrower agrees to pay on demand
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all 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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/ Richard D. Carroll
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Name: Richard D Carroll
Title:
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By: /s/ M. Duncan Mcduffie
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Name: M. Duncan McDuffie
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By:____________________________________
Name:
Title:
BANK ONE, NA (Main Office Chicago) as
Syndication Agent and as a Bank
By: /s/ Thomas T. Bower
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Name: Thomas T. Bower
Title: Senior Vice President
Fourth Amendment to Amended and Restated
Multicurrency Credit Agreement
BNP PARIBAS
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
COPPER BEECH HOLDINGS, LLC
By:/s/ Edward Smith Christie
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Name: Edward Smith Christie
Title: Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By:___________________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:/s/ William W. Teegarden
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Name: William W. Teegarden
Title: Senior Vice President
Fourth Amendment to Amended and Restated
Multicurrency Credit Agreement
JPMORGAN CHASE BANK, as
Documentation Agent and a Bank
By:/s/ Michael Lancia
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Name: Michael Lancia
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Title: Vice President
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M&I MARSHALL & ILSLEY BANK
By:/s/ Michael Vellon
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Name: Michael Vellon
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Title: Vice President
By:/s/ Thomas R. Johnson
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Name: Thomas R. Johnson
Title: Senior Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:___________________________________
Name:
Title:
OCM PRINCIPAL OPPORTUNITIES FUND II,
L.P. by Oaktree Capital Management, LLC,
its General Partner
By:/s/ John Frank
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Name: John Frank
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Title: General Counsel
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By:/s/ Jordan Kruse
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Name: Jordan Kruse
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Title: Vice Prsident
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Fourth Amendment to Amended and Restated
Multicurrency Credit Agreement
OCM OPPORTUNITIES FUND III, L.P. by
Oaktree Capital Management, LLC, its General
Partner
By: /s/ Lowell W. Hill
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Name: Lowell W. Hill
Title: Managing Director
By: /s/ [llegible in original]
Name:
PERRY PRINCIPALS, L.L.C.
By:___________________________________________
Name:
Title:
ROYAL BANK OF SCOTLAND, PLC
By: /s/ Ian Roberts
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Name: Ian Roberts
Title: Manager, Specialized Lending Services
SOCIETE GENERALE
By:___________________________________________
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By:___________________________________________
Name:
Title:
Fourth Amendment to Amended and Restated
Multicurrency Credit Agreement
U.S. BANK NATIONAL ASSOCIATION
By:_____________________________
Name:
Title:
WILLIAM E. SIMON & SONS SPECIAL
SITUATIONS PARTNERS II, L.P.
By:/s/ Dale Leshaw
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Name: Dale Leshaw
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Title: Principal
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Fourth Amendment to Amended and Restated
Multicurrency Credit Agreement
EXHIBIT A
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FORM OF NOTICE OF BORROWING
Date:
To: Bank of America, National Association, as Administrative Agent for the
Banks parties to the Amended and Restated Multicurrency Credit Agreement
dated as of May 15, 2001 (as extended, renewed, amended or restated from
time to time, the "Credit Agreement") among APW Ltd, (the "Borrower"),
certain Banks which are signatories thereto, Bank One, NA, as Syndication
Agent, The Chase Manhattan Bank, as Documentation Agent, and Bank of
America, National Association, as Administrative Agent
Ladies and Gentlemen:
The undersigned, APW Ltd., refers to the Credit Agreement, the terms
defined therein being used herein as therein defined, and hereby gives you
notice irrevocably, pursuant to Section 2.3 of the Credit Agreement, of the
Borrowing specified below:
1. The Business Day of the proposed Borrowing is _______________.
2. The aggregate amount of the proposed Borrowing is ___________.
3. The Borrowing is to be comprised of ____________ of [Base Rate]
[Offshore Rate] Loans.
4. The duration of the Interest Period for the Offshore Rate Loans
included in the Borrowing shall be _____ months.
5. The Applicable Currency is _____________________________________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) The representations and warranties of the undersigned Borrower
contained in Article VI of the Credit Agreement are true and correct
as applied to the undersigned as though made on and as of such date;
(b) No Default or Event of Default has occurred and is continuing, or
would result from such proposed Borrowing; and
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(c) To the best of its knowledge after due inquiry, after giving effect to
a proposed Loan and the application of proceeds thereof, within two
Business Days of making such Loan, the Borrower and its Subsidiaries
shall not hold aggregate collected funds in excess of $9,000,000.
APW Ltd.
___________________________________
By:
Title:
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