Exhibit 4.2
THIS AMENDMENT AGREEMENT is made the 12 February 2002
BETWEEN
(1) APW ELECTRONICS GROUP PLC (formerly Vero Group PLC)
(2) APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED (formerly Vero Electronics
Overseas Investments Limited)
(3) APW ELECTRONICS LIMITED (formerly Vero Electronics Limited)
(4) APW ENCLOSURES AB (formerly Vero Enclosures AB)
(5) APW ELECTRONICS GmbH (formerly Vero Electronics GmbH)
(6) VERO ELECTRONICS Inc.
(7) APW ENCLOSURES S.A. (formerly Vero Electronics S.A.) and
(8) APW ELECTRONICS S.r.L (formerly Vero Electronics S.r.L.) (each a "RBS
Borrower" and together the "RBS Borrowers");
(9) THE ROYAL BANK OF SCOTLAND plc ("RBS")
(10) APW ENCLOSURES PRODUCTS & SYSTEMS LIMITED and each of its subsidiaries set
out in Schedule 1 (each a "NatWest Borrower", together the "NatWest
Borrowers" and, together with the RBS Borrowers the "Borrowers"); and
(11) NATIONAL WESTMINSTER BANK PLC ("NatWest").
WHEREAS
(A) RBS and the RBS Borrowers entered into a (pound)27,500,000 revolving credit
facility dated 24 October 1995 (as subsequently amended by two amendment
agreements dated 15 May 1998 and 22 May 1998 respectively) (the "RBS
Facility Agreement"). The RBS Facility Agreement was subsequently amended
and restated under an amendment agreement dated 15 May 2001 and as further
amended by amendment agreements dated 27 September 2001, 13 December 2001,
18 January 2002 and 29 January 2002.
(B) NatWest and the NatWest Borrowers entered into a (pound)27,000,000
multi-line facility dated 20 April 2000 (the "NatWest Facility Agreement").
The NatWest Facility Agreement was subsequently amended and restated under
an amendment agreement dated 15 May 2001 and was further amended by
amendment agreements dated 27 September 2001, 13 December 2001, 18 January
2002 and 29 January 2002.
(C) On 31 July 2000, APW Ltd. APW North America, Inc., APW Holdings (Denmark)
APS, certain financial institutions, Bank One, N.A., as syndication agent.
The Chase Manhattan Bank as documentation agent and Bank of America,
National Association as administrative agent (the "US Agent") entered into
a multicurrency agreement (as subsequently amended and restated on 15 May
2001, 27 September 2001, 13 December 2001 and 15 January 2002) (the
"Multicurrency Agreement") and to be further amended by two agreements to
be agreed on or around the date of this Agreement.
(D) RBS, NatWest, the US Agent and others entered into an intercreditor
agreement dated 15th May 2001 (as subsequently amended and restated on 27
September 2001) regulating,
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inter alia, the application of recoveries under the RBS Facility Agreement,
the NatWest Facility Agreement and the Multicurrency Agreement (the
"Intercreditor Agreement").
(E) The Lenders under the Multicurrency Agreement have agreed to defer interest
payments under the Multicurrency Agreement on the condition that a similar
deferral occurs under both the RBS Facility Agreement and the NatWest
Facility Agreement.
(F) The parties wish to enter into this Agreement to record the basis on which
the RBS Facility Agreement and the NatWest Facility Agreement are being
amended.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
In this Agreement, except where the context otherwise requires, words and
expressions defined and references construed in the RBS Facility Agreement
or the NatWest Facility Agreement (but not defined or construed in this
Agreement) shall have the same meaning herein.
2 DEFERRAL OF INTEREST PAYMENTS
2.1 With effect from the date hereof, subject only to Clause 3, it is agreed
that the terms of both the NatWest Facility Agreement and the RBS Facility
Agreement shall be amended, so that notwithstanding any provision to the
contrary contained in either Agreement, no interest payment or payment in
respect of commission due under the terms of either the NatWest Facility
Agreement, or the RBS Facility Agreement shall be payable until the earlier
date (the "Deferral Date") of:
(i) April 15, 2002; or
(ii) the first date after the date of this Agreement on which the lenders
under the Multicurrency Agreement receive any payment in respect of
interest under the Multicurrency Agreement.
2.2 This consent shall be limited to its terms and shall not constitute a
waiver of any other rights that RBS or NatWest may have from time to time,
including the right, upon the occurrence of an Event of Default (other than
the failure to pay such interest or commission on the due date for payment
which would have applied, but for Clause 2.1 of the Agreement), to
accelerate the maturity of all loans and all payments under the RBS
Facility Agreement and/or the NatWest Facility Agreement, including said
interest and commission payments, with respect thereto.
2.3 The parties agree to be bound by the RBS Facility Agreement and the NatWest
Facility Agreement, each as amended.
3 CONDITIONS PRECEDENT TO THIS AMENDMENT AND RESTATEMENT AGREEMENT
3.1 This Agreement shall become effective once (a) RBS, for itself and on
behalf of NatWest, has received an executed copy of this Agreement duly
executed by all of the
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parties thereto; (b) each of the guarantors of the RBS Facility and the
NatWest Facility have consented hereto by executing an agreement and
consent in the form agreed between RBS, NatWest and the US Agent, and (c)
all outstanding invoices submitted by RBS and NatWest in respect of legal
fees relating to the RBS Facility and the NatWest Facility have been paid
in full.
3.2 It shall be a condition precedent to this Agreement becoming effective that
RBS shall have received in a form and substance satisfactory to it, a
certificate of non-revocation issued by the Secretary/Director of each UK
Obligor, confirming that the resolutions of the board of directors of such
UK Obligor passed on or about 17 January 2002, approving the execution and
delivery of amendments to the RBS Facility Agreement and the NatWest
Facility Agreement and the performance of its obligations thereunder and
authorizing a person or persons (specified by name) on behalf of each UK
Obligor to sign and deliver any documents to be delivered by it pursuant to
such agreements remain in full force and effect.
4 GENERAL
4.1 The Borrowers hereby undertake that the Representations and Warranties set
out in Clause 12 of the RBS Facility Agreement other than those contained
in Clause 12.1(e) (Litigation), 12.1(g) (Accounts), and 12.1(h) (No
Default) are true and accurate as of the date of this Agreement.
4.2 To the extent inconsistent with the Multicurrency Agreement, NatWest and
RBS amend and/or waive any relevant provisions of the NatWest Facility
Agreement and the RBS Facility Agreement in order to incorporate mutatis
mutandis any waiver or amendment in relation to Sections 7.1 and 7.6 of the
Multicurrency Agreement which have or which are to be granted by the
various banks and financial institutions that are a party to the
Multicurrency Agreement.
4.3 All other terms and conditions of the NatWest Facility Agreement and the
RBS Facility Agreement remain unchanged.
4.4 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the
benefit of any term of this Agreement.
4.5 The Borrowers shall on demand reimburse RBS and NatWest all reasonable
costs including fees, costs and expenses (including legal fees and
expenses) incurred in or in connection with the negotiation and execution
of this Agreement shall pay all stamp, registration and other taxes to
which any such document is, or at any time may be, subject and shall
indemnify RBS and NatWest against any liabilities, expenses, costs or
claims resulting from any failure to pay, or any delay in paying, such tax.
4.6 For the avoidance of doubt, this Agreement shall constitute a UK Finance
Document (as defined in the RBS Facility and NatWest Facility).
4.7 This Agreement shall be governed by and construed in accordance with the
laws of England and the parties hereto submit to the jurisdiction of the
English courts.
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SIGNED FOR AND ON BEHALF OF: -
THE ROYAL BANK OF SCOTLAND plc
By: /s/ Ian Roberts
SIGNED FOR AND ON BEHALF OF: -
NATIONAL WESTMINSTER BANK PLC
By: /s/ Ian Roberts
THE RBS BORROWERS
APW ELECTRONICS GROUP PLC
By: /s/ Samantha Kirby
Company Secretary
APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW ELECTRONICS LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW ENCLOSURES AB
By: /s/ [illegible in original]
/s/ Carol A. Frank
APW ELECTRONICS GmbH
By: /s/ Jan De Koning
Jan De Koning
Managing Director
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VERO ELECTRONICS INC.
By: /s/ Richard D. Carroll
APW ENCLOSURES S.A.
By: /s/ [illegible in original]
/s/ Carol A. Frank
APW ELECTRONICS S.r.L.
By: /s/ Richard D. Carroll
THE NATWEST BORROWERS
APW ENCLOSURE SYSTEMS PLC
By: /s/ Samantha Kirby
Company Secretary
APW ENCLOSURE PRODUCTS & SYSTEMS LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW ENCLOSURE SYSTEMS (UK) LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW INVESTMENTS UK LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW HOLDINGS (UK) LIMITED
By: /s/ Samantha Kirby
Company Secretary
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RUBICON FINANCE LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW HOLDINGS (EUROPE) LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW ELECTRONICS GROUP PLC
By: /s/ Samantha Kirby
Company Secretary
APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW ELECTRONICS LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW POWER SUPPLIES LIMITED
By: /s/ Samantha Kirby
Company Secretary
APPLIED POWER LIMITED
By: /s/ Samantha Kirby
Company Secretary
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APW ENCLOSURE SYSTEMS HOLDINGS LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW GALWAY LIMITED
By: /s/ Samantha Kirby
Company Secretary
APW NEW FOREST LIMITED
By: /s/ Samantha Kirby
Company Secretary
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