-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ImYkvRepCdAIc7WL9HWC7Jnnl+t4n10kKf/zP/UeqtdIwi2sVpusn54Zo1zwmrxz kakUQcqG2iLGFPC2b3erRg== 0000950131-01-504604.txt : 20020413 0000950131-01-504604.hdr.sgml : 20020413 ACCESSION NUMBER: 0000950131-01-504604 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20011213 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20011221 FILER: COMPANY DATA: COMPANY CONFORMED NAME: APW LTD CENTRAL INDEX KEY: 0001111938 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-ELECTRONIC PARTS & EQUIPMENT, NEC [5065] IRS NUMBER: 042576375 FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-15851 FILM NUMBER: 1820168 BUSINESS ADDRESS: STREET 1: N22 W23685 RIDGEVIEW PKWY WEST CITY: WAUKESHA STATE: WI ZIP: 53188-1013 BUSINESS PHONE: 2625237600 MAIL ADDRESS: STREET 1: N22 W23685 RIDGEVIEW PKWY WEST CITY: WAUKESHA STATE: WI ZIP: 53188-1013 8-K 1 d8k.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): December 13, 2001 APW LTD. (Exact name of Registrant as specified in its charter) Bermuda 1-15851 04-2576375 (State or other jurisdiction (Commission File (I.R.S. Employer of incorporation) Number) Identification No.) Clarendon House 2 Church Street P.O Box HM 666 Hamilton HM CX Bermuda N22 W23685 Ridgeview Parkway West Waukesha, Wisconsin 53188-1013 (Address of principal executive offices) (Zip code) Registrant's telephone number, including area code:(262) 523-7600 Item 5. Other Events. As of December 13, 2001, APW Ltd. has renegotiated its credit facility agreements, including its Multi-Currency Credit Agreement, Facility Agreement with the Royal Bank of Scotland and Receivables Purchasing Agreement, to provide additional flexibility. Among other changes, the amendments relax certain financial covenants and the Company issued additional warrants to its lenders allowing the purchase of shares equal to 9.9% of the outstanding shares (subject to cancellation if the credit facility is repaid by certain dates) and amended the earlier warrants to purchase shares (by reducing the exercise price to $1.98 and eliminating the possible reduction in warrants if the facility was prepaid by a certain date). Copies of the amended agreements are filed as exhibits hereto and incorporated by reference herein. A copy of the press release issued by APW Ltd. on December 14, 2001, describing the details of the negotiations and amendments, is attached hereto as Exhibit 99.1. Item 7. Exhibits Please see exhibit page which is incorporated by reference herein. 1 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. APW LTD. (Registrant) Date: December 20, 2001 By: /s/ Richard D. Carroll -------------------------------- Richard D. Carroll Vice President and Chief Financial Officer (Duly authorized to sign on behalf of the Registrant) S-1 APW LTD. (the "Registrant") (Commission File No. 1-15851) EXHIBIT INDEX to FORM 8-K CURRENT REPORT Date of Report: December 13, 2001 Exhibit Filed Number Description Herewith Exhibit 4.1 Second Amendment to Amended and Restated X Multicurrency Credit Agreement among APW Ltd., Various Financial Institutions, Bank One N.A., Chase Manhattan Bank and Bank of America, National Association Exhibit 4.2 Third Amendment to Amended and Restated Receivables X Purchasing Agreement among Applied Power Credit Corporation, APW North America, Inc., Barton Capitol Corporation and Societe Generale Exhibit 4.3 First Amendment to Warrant and Registration Rights X Agreement (U.S. Banks) Exhibit 4.4 First Amendment to Warrant and Registration Rights X Agreement (U.K. Banks) Exhibit 4.5 Form of Amendment Agreement to the Facility X Agreement between APW Electronics Group plc, other Borrowers under the Agreement, The Royal Bank of Scotland plc and National Westminster Bank plc Exhibit 99.1 Press release dated December 14, 2001, by APW Ltd. X E-1 EX-4.1 3 dex41.txt AMENDED RESTATED MULTICURRENCY CREDIT AGREEMENT Exhibit 4.1 SECOND AMENDMENT TO AMENDED AND ------------------------------- RESTATED MULTICURRENCY CREDIT AGREEMENT --------------------------------------- THIS SECOND AMENDMENT TO AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT, dated as of December 13, 2001 (this "Amendment"), amends the Amended --------- and Restated Multicurrency Credit Agreement, dated as of May 15, 2001 (as heretofore amended, the "Credit Agreement"), among APW Ltd., a Bermuda ---------------- corporation (the "Borrower"), the various financial institutions parties thereto -------- (collectively, the "Banks"), Bank One, NA, as syndication agent, The Chase ----- 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. AMENDMENTS. Effective as of the date hereof, the Credit Agreement shall be amended in accordance with Sections 1.1 through 1.11 below. ------------ ---- 1.1 Interest Payment Date. The definition of "Interest Payment Date" in --------------------- Section 1.1 of the Credit Agreement is hereby amended to state in its entirety - ----------- as follows: "Interest Payment Date" means, as to any Committed Loan, the last --------------------- Business Day of each month. 1.2 Scheduled Mandatory Reductions. Section 2.8(a) of the Credit Agreement ------------------------------ -------------- is hereby amended to state in its entirety as follows: "(a) "Scheduled Mandatory Reductions. The Borrower shall reduce the ------------------------------ Commitments by $20,000,000 on August 31, 2002; an additional $15,000,000 on February 28, 2003; and an additional $15,000,000 on May 31, 2003." 1.3 Net Proceeds of Disposition of Assets. Section 2.8(b)(iii) of the ------------------------------------- ------------------- Credit Agreement is hereby amended to state in its entirety as follows: "(iii) Net Proceeds of Disposition of Assets. Upon the ------------------------------------- disposition of any assets of the Borrower or any of its Subsidiaries, except sales of inventory in the ordinary course of business, the sales of receivables pursuant to the Securitization and dispositions less than $1,000,000 per disposition, but subject to a $10,000,000 aggregate limit during the term of this Agreement, the Combined Commitments shall be reduced, in the manner set forth in the UK/US Intercreditor Agreement by an aggregate amount equal to the Net Proceeds raised by such disposition; provided, however, that in the case of the disposition of the Specified Business Unit, the Combined Commitments shall not be reduced. Availability under the Commitments shall be temporarily restricted by a proportionate share (equal to the "Pro Rata Share" as defined in the UK/US Intercreditor Agreement) of the estimated tax component of any disposition until the earlier of nine months or the payment of the Taxes incurred as a direct result of the disposition. If the Taxes on the disposition are not paid within nine months of the disposition, the Commitments shall be additionally reduced by a share of the estimated tax component of the Net Proceeds from such disposition as required under the UK/US Intercreditor Agreement. If the actual cash Taxes on any disposition are less than the estimated tax component of Net Proceeds, the Commitments shall be reduced by said share of the excess of the estimated tax component less the actual Taxes." 1.4 Fees. Section 2.13(b) of the Credit Agreement shall be amended to ---- --------------- state in its entirety as follows: "(b) Non-Use Fees. The Borrower shall pay to the Administrative ------------ Agent for the account of each Bank a non-use fee payable on the daily unused portion of such Bank's Commitment, computed on a monthly basis payable in arrears on the last Business Day of each month commencing December 31, 2001 and on the Termination Date based upon the daily utilization for that quarter as calculated by the Administrative Agent, equal to the Applicable Non-Use Fee Rate. For purposes of calculating the non-use fee, Letter of Credit Usage shall be deemed usage of the Commitments and Swing Line Loans shall not be deemed usage of the Commitments. The non-use fees provided in this Section ------- 2.13(b) shall accrue at all times, including at any time during which ------- one or more conditions in Article V are not met. 1.5 Audit Report. Section 7.1(a) of the Credit Agreement is hereby amended ------------ -------------- to state in its entirety as follows: "(a) Audit Report. Promptly when available and in any event ------------ within 90 days after the close of each Fiscal Year (except not later than December 17, 2001 with respect to the year ending August 31, 2001), (i) a copy of the annual audit report of the Borrower and its Subsidiaries for such Fiscal Year, including therein consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year and consolidated statements of earnings and cash flow of the Borrower and its Subsidiaries for such Fiscal Year certified, without qualification as to going concern or scope, by independent auditors of recognized national standing selected by the Borrower and reasonably acceptable to the Required Banks, and (ii) an unaudited consolidating balance sheet and statements of earnings of such Fiscal Year." -2- 1.6 Quarterly Financial Covenants. Schedules 7.6(a)(i), 7.6(a)(ii), ----------------------------- ------------------- ---------- 7.6(a)(iii), 7.6(a)(iv) and 7.6(a)(v) to the Credit Agreement shall be restated - ----------- ---------- --------- in their entirety to state as set forth in Schedules 7.6(a)(i), 7.6(a)(ii), ------------------- ---------- 7.6(a)(iii), 7.6(a)(iv) and 7.6(v) hereto respectively. - ----------- ---------- ------ 1.7 Monthly Financial Covenant. Schedule 7.6(b) to the Credit Agreement -------------------------- --------------- shall be restated in its entirety as set forth in Schedule 7.6(b) hereto. --------------- 1.8 Restricted Payments. Section 7.23 of the Credit Agreement is hereby ------------------- ------------ amended to state in its entirety as follows: "7.23 Restricted Payments. The Borrower shall not, and shall not ------------------- suffer or permit any Subsidiary to, declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its capital stock, or purchase, redeem or otherwise acquire for value any shares of its capital stock or any warrants, rights or options to acquire such shares, now or hereafter outstanding; except that: (a) the Borrower and its Subsidiaries may declare and make dividend payments or other distributions payable solely in its common stock; (b) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received from the substantially concurrent issue of new shares of its common stock; (c) the Subsidiaries of the Borrower may pay dividends to the Borrower and its Subsidiaries; and (d) dividends of $42,000 semiannually may be paid on the preferred stock of McLean Midwest Corporation and any such dividends paid prior to the effectiveness of this clause (d) are hereby consented to by the Banks." 1.9 Amendment Fee. The Borrower agrees to pay an amendment fee to each ------------- Bank executing and delivering this Amendment prior to 4:00 p.m., (Central time), on December 13, 2001 of 10 basis points on its Commitment. Such fee shall be payable at the earlier of January 17, 2002 or the sale of the Specified Business Unit. 1.10 Information. The Borrower reaffirms its obligation to deliver ----------- information as required under Section 7.1(o) of the Credit Agreement. -------------- 1.11 Business Plan. The Borrower hereby reaffirms its obligation to deliver ------------- to the Administrative Agent and each Bank on or before April 30, 2002 a business plan for the 2003 Fiscal Year and to agree on or before July 31, 2002 to financial covenants for the 2003 Fiscal Year satisfactory to the Required Banks. -3- SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become effective when each of the conditions precedent set forth in this Section 3 shall have been --------- satisfied, and notice thereof shall have been given by the Agent to the Borrower and the Lenders. 2.1 Receipt of Documents. The Administrative Agent shall have received all -------------------- 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 the Administrative Agent: (a) Amendment. This Amendment, duly executed by the Borrower, the --------- Administrative Agent and the Required Lenders (except that execution by all the Lenders shall be required for the effectiveness of Section 1.2 hereof). ----------- (b) Consents. Consents of all Guarantors hereto. -------- (c) UK Facility. Amendments to the UK Facility in form satisfactory ----------- to the Administrative Agent consistent herewith. (d) Securitization. An amendment to the Securitization in form -------------- satisfactory to the Administrative Agent consistent herewith. (e) Amendment to Warrant Agreement. An amendment to the Warrant and ------------------------------ Registration Rights Agreement previously issued in connection with the Credit Agreement, in the form attached as Exhibit A. --------- (f) First Tranche Warrant. An amendment to the First Tranche Warrant --------------------- Certificate, in the form attached as Exhibit B. (g) Second Tranche Warrant. A Second Tranche Warrant Certificate, in ---------------------- the form attached as Exhibit C. (h) Opinions. Opinions of U.S. counsel and Bermuda counsel to the -------- Borrower in form satisfactory to the Administrative Agent. 2.2 Fees. The Borrower shall have paid: ---- (a) Administrative Agent's Fee. A fee to the Administrative Agent for -------------------------- its own account in the amount agreed to between the Borrower and the Administrative Agent. (b) Expenses. All accrued and unpaid fees, costs and expenses to the -------- extent then due and payable, together with Attorney Costs of Bank of America to the extent invoiced, and fees and expenses of the Administrative Agent's Consultant including such additional amounts as shall be necessary to ensure any such costs, fees and expenses arising under or referenced in Sections 2.13 and ------------- 10.5 of the Credit Agreement plus $150,000 to the Administrative Agent's - ---- Consultant and $150,000 to Mayer, Brown & Platt on retainer for further fees and expenses. -4- SECTION 3. 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 and the other Loan Documents, and the Borrower additionally represents and warrants to the Administrative Agent and each Bank as follows: 3.1 Due Authorization, Non-Contravention, etc. The execution, delivery and ----------------------------------------- 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 (a) contravene the Borrower's Organic Documents; (b) contravene any contractual restriction, law or governmental regulation or court decree or order binding on or affecting the Borrower; or (c) result in, or require the creation or imposition of, any Lien on any of the Borrower's properties. 3.2 Governmental Approval, Regulation, etc. No authorization or approval -------------------------------------- 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. 3.3 Validity, etc. This Amendment constitutes the legal, valid and binding ------------- obligation of the Borrower enforceable in accordance with its terms, except to the extent enforceability thereof is limited by bankruptcy, insolvency or other laws relating to, or affecting enforcement of, creditors' rights in general, and general principles of equity. SECTION 4. MISCELLANEOUS. 4.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an ----------------------------- 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. 4.2 Payment of Costs and Expenses. The Borrower agrees to pay on demand ----------------------------- 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. 4.3 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. -5- 4.4 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. 4.5 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. 4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE ------------- UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. 4.7 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. -6- 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 ------------------------------------ Name: Richard D. Carroll Title: Vice President and Chief Financial Officer BANK OF AMERICA, N.A. as Administrative Agent and as a Bank By: /s/ M. Duncan McDuffie ------------------------------------ Name: M. Duncan McDuffie Title: Managing Director THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH By: /s/ Shinichiro Monechika ------------------------------------ Name: Shinichiro Monechika Title: Deputy General Manager BANK ONE, NA (Main Office Chicago) as Syndication Agent and as a Bank By: /s/ Thomas T. Bower ------------------------------------ Name: Thomas T. Bower Title: Senior Vice President BNP PARIBAS By: /s/ Duane P. Helkowski ------------------------------------ Name: Duane P. Helkowski Title: Director By: /s/ Kathryn B. Quinn ------------------------------------ Name: Kathryn B. Quinn Title: Vice President Second Amendment to Amended and Restated Multicurrency Credit Agreement CREDIT LYONNAIS CHICAGO BRANCH By: /s/ Richard Teitelbaum ------------------------------------ Name: Richard Teitelbaum Title: Vice President THE DAI-ICHI KANGYO BANK, LTD. By: /s/ Nobuyasu Fukatsu ------------------------------------ Name: Nobuyasu Fukatsu Title: General Manager FIRST UNION NATIONAL BANK By: /s/ William W. Teegarden ------------------------------------ Name: William W. Teegarden Title: Senior Vice President THE FUJI BANK, LIMITED By: /s/ John D. Doyle ------------------------------------ Name: John D. Doyle Title: Vice President JPMORGAN CHASE BANK, as Documentation Agent and a Bank By: /s/ Michael Lancia ------------------------------------ Name: Michael Lancia Title: Vice President Second Amendment to Amended and Restated Multicurrency Credit Agreement M&I MARSHALL & ILSLEY BANK By: /s/ Michael Vellon ------------------------------------ Name: Michael Vellon Title: Vice President By: /s/ Thomas R. Johnson ------------------------------------ Name: Thomas R. Johnson Title: Senior Vice President THE MITSUBISHI TRUST & BANKING CORPORATION By: /s/ Thomas A. Pennington ------------------------------------ Name: Thomas A. Pennington Title: Executive Vice President OCM PRINCIPAL OPPORTUNITIES FUND II, L.P. By: Oaktree Capital Management, LLC, its General Partner By: /s/ Christopher S. Brothers ------------------------------------ Name: Christopher S. Brothers Title: Managing Director By: /s/ [Illegible in Original] ------------------------------------ OCM OPPORTUNITIES FUND III, L.P. By: Oaktree Capital Management, LLC, its General Partner By: /s/ John Frank ------------------------------------ Name: John Frank Title: General Counsel By: /s/ [Illegible in Original ------------------------------------ ROYAL BANK OF SCOTLAND, PLC By: /s/ Ian Roberts ------------------------------------ Name: Ian Roberts Title: Manager, Specialized Lending Services Second Amendment to Amended and Restated Multicurrency Credit Agreement SOCIETE GENERALE By: /s/ Eric E.O. Siebert Jr. -------------------------------- Name: Eric E.O. Siebert Jr. Title: Director SUMITOMO MITSUI BANKING CORPORATION By: /s/ David A. Buck -------------------------------- Name: David A. Buck Title: Senior Vice President U.S. BANK NATIONAL ASSOCIATION By: /s/ Greg Wilson -------------------------------- Name: Greg Wilson Title: A.V.P. WILLIAM E. SIMON & SONS SPECIAL SITUATIONS PARTNERS II, L.P. By: /s/ Dale Leshaw -------------------------------- Name: Dale Leshaw Title: Principal Second Amendment to Amended and Restated Multicurrency Credit Agreement AGREEMENT AND CONSENT --------------------- The undersigned Guarantors hereby agree and consent, as of the date and year first above written, to the terms and provisions of the foregoing Second Amendment to Credit Agreement, and agree that the Loan Documents executed by the undersigned Guarantors shall remain in full force and effect notwithstanding the provisions of the foregoing Second Amendment to Credit Agreement. 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 Second Amendment to Amended and Restated Multicurrency Credit Agreement APPLIED POWER LIMITED APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED APW ELECTRONICS LIMITED APW ENCLOSURE SYSTEMS HOLDINGS LIMITED By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURE SYSTEMS (UK) LIMITED By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary WRIGHT LINE LIMITED By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURES (DUBLIN) LIMITED By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Director APW GALWAY LIMITED By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Director HOERMANN SECURITY SYSTEMS LTD. By:________________________________ Name: Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement APPLIED POWER LIMITED APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED APW ELECTRONICS LIMITED APW ENCLOSURE SYSTEMS HOLDINGS LIMITED By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: APW ENCLOSURE SYSTEMS (UK) LIMITED By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: WRIGHT LINE LIMITED By: /s/ P.L. Harricote ------------------------------- Name: P.L. Harricote Title: Director APW ENCLOSURES (DUBLIN) LIMITED By:________________________________ Name: Title: APW GALWAY LIMITED By:________________________________ Name: Title: HOERMANN SECURITY SYSTEMS LTD. By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement APW POWER SUPPLIES AS By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: APW NEW FOREST LIMITED By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary TOWERFLAME LIMITED By: /s/ Richard D. Carroll ------------------------------- Name: Title: APW ELECTRONICS GROUP PLC By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURE PRODUCTS AND SYSTEMS LIMITED By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary APW ENCLOSURE SYSTEMS PLC By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary Second Amendment to Amended and Restated Multicurrency Credit Agreement APW POWER SUPPLIES AS By:________________________________ Name: Title: APW NEW FOREST LIMITED By:________________________________ Name: Title: TOWERFLAME LIMITED By: /s/ David Pumphrey ------------------------------- Name: David Pumphrey Title: Company Secretary APW ELECTRONICS GROUP PLC By:________________________________ Name: Title: APW ENCLOSURE PRODUCTS AND SYSTEMS LIMITED By:________________________________ Name: Title: APW ENCLOSURE SYSTEMS PLC By:________________________________ Name: Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement AIR CARGO EQUIPMENT (UK) LIMITED By: /s/ [illegible in original] ------------------------------- Name: Title: APW ENCLOSURES LIMITED By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: HOERMANN ELECTRONICS LIMITED By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: WRIGHT LINE EUROPE B.V. By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: APW NETHERLANDS B.V. By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: APW HOLDING B.V. By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement AIR CARGO EQUIPMENT (UK) LIMITED By: /s/ David Pumphrey ------------------------------- Name: David Pumphrey Title: Company Secretary APW ENCLOSURES LIMITED By:________________________________ Name: Title: HOERMANN ELECTRONICS LIMITED By:________________________________ Name: Title: WRIGHT LINE EUROPE B.V. By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Proxy APW NETHERLANDS B.V. By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Director APW HOLDING B.V. By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Proxy Second Amendment to Amended and Restated Multicurrency Credit Agreement APW PRODUCTS AND SYSTEMS B.V. By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: CIPRESMAD HUNGARY GROUP FINANCING LLC By: /s/ Howard Lederman ------------------------------- Name: Howard Lederman Title: APW ELECTRONICS GMBH By: /s/ John Stephenson ------------------------------- Name: John Stephenson Title: Geschaftsfuhrer CIPRESMAD-CONSULTORES E SERVICOS, LTD. By: /s/ Howard Lederman ------------------------------- Name: Howard Lederman Title: APW FINANCE LIMITED By: /s/ Jan De Koning ------------------------------- Name: Jan De Koning Title: Director Second Amendment to Amended and Restated Multicurrency Credit Agreement APW PRODUCTS AND SYSTEMS B.V. By: /s/ Jan DeKonig ------------------------------- Name: Jan DeKonig Title: Director CIPRESMAD HUNGARY GROUP FINANCING LLC By:________________________________ Name: Title: APW ELECTRONICS GMBH By:________________________________ Name: Title: CIPRESMAD-CONSULTORES E SERVICOS, LTD. By:________________________________ Name: Title: APW FINANCE LIMITED By: /s/ [Illegible in original] ------------------------------- Name: Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement ZERO MCLEAN EUROPE LTD By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: ZERO CASES EUROPE LTD By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: MCLEAN EUROPE LTD By: /s/ Richard D. Carroll ------------------------------- Name: Richard D. Carroll Title: RUBICON FINANCE LIMITED By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary APW HOLDINGS (UK) LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary EAST ANGLIAN METAL MERCHANTS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary Second Amendment to Amended and Restated Multicurrency Credit Agreement ZERO MCLEAN EUROPE LTD By:________________________________ Name: Title: ZERO CASES EUROPE LTD By:________________________________ Name: Title: MCLEAN EUROPE LTD By:________________________________ Name: Title: RUBICON FINANCE LIMITED By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: APW HOLDINGS (UK) LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: EAST ANGLIAN METAL MERCHANTS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement ELECTRONICS PACKAGING LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary VERO CONNECTORS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary VERO ELECTRONICS (EXPORTS) LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary VERO CIRCUITBOARDS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary IMHOF-BEDCO LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary IMHOF-BEDCO STANDARD PRODUCTS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary IMHOF-BEDCO SPECIAL PRODUCTS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary Second Amendment to Amended and Restated Multicurrency Credit Agreement ELECTRONICS PACKAGING LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: VERO CONNECTORS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: VERO ELECTRONICS (EXPORTS) LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: VERO CIRCUITBOARDS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: IMHOF-BEDCO LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: IMHOF-BEDCO STANDARD PRODUCTS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: IMHOF-BEDCO SPECIAL PRODUCTS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement INSTANT FINISHERS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary MALCOE ENCLOSURES LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary MALCOE SECURITY PRODUCTS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary MALCOE TELECOMMUNICATIONS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary APW HOLDINGS (EUROPE) LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary HIGH SPEED PRODUCTION (HOLDINGS) LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary BEELEY WOOD HOLDINGS LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary Second Amendment to Amended and Restated Multicurrency Credit Agreement INSTANT FINISHERS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: MALCOE ENCLOSURES LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: MALCOE SECURITY PRODUCTS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: MALCOE TELECOMMUNICATIONS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: APW HOLDINGS (EUROPE) LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: HIGH SPEED PRODUCTION (HOLDINGS) LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: BEELEY WOOD HOLDINGS LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement HSP SHEFFIELD LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary HIGH SPEED PRODUCTION (SCOTLAND) LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary HSP STRATHCLYDE LTD By: /s/ Samantha Kirby ------------------------------- Name: Samantha Kirby Title: Company Secretary Second Amendment to Amended and Restated Multicurrency Credit Agreement HSP SHEFFIELD LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: HIGH SPEED PRODUCTION (SCOTLAND) LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: HSP STRATHCLYDE LTD By: /s/ Todd A. Adams ------------------------------- Name: Todd A. Adams Title: Second Amendment to Amended and Restated Multicurrency Credit Agreement SCHEDULE 7.6(a)(i) ------------------
Minimum EBITDARR Q4 2001 Q1 2002 Q2 2002 Q3 2002 Q4 2002 - ----------------- A. Net Income (184,339) (37,654) (28,090) (8,313) (910) B. Interest 14,621 14,500 14,029 13,578 13,394 C. Taxes (10,347) (12,551) (9,363) (2,771) (303) D. Depreciation 10,717 10,800 10,800 11,400 11,800 E. Amortization 174,320 7,425 7,325 7,255 7,215 F. Gain on Asset Sale - - - - - ----------------------------------------------------------------- G. EBITDA 4,972 (17,480) (5,299) 21,149 31,196 H. GAAP Restructuring Expense 4,497 10,325 4,175 - - I. Non-GAAP Restructuring Expense 8,106 9,755 8,300 3,445 - ----------------------------------------------------------------- J. EBITDARR, from Company's projections 17,575 2,600 7,176 24,594 31,196 K. Amendment Fees/1/ - (80) - - ---------------------------------------------------- L. EBITDARR 2,600 7,096 24,594 31,196 M. EBITDARR (Cumulative) 2,600 9,696 34,290 65,486 N. Cushion (1,000) (3,000) (5,000) (10,000) O. Proposed EBITDARR Covenant 1,600 6,696 29,290 55,486 Existing EBITDARR Covenant 13,948 31,040 60,579 97,290
__________________________ /1/ 10 bps on $80 million commitment for A/R loan facility; must be shown as SAE expense on Income Statement (thereby reducing EBITDARR) due to off-balance sheet financing of A/R facility SCHEDULE 7.6(a)(ii) -------------------
Non-GAAP Restructuring Expenses Q1 2002 Q2 2002 Q3 2002 Q4 2002 - ------------------------------- A. Non-GAAP Restructuring 2,994 2,697 3,445 - B. Write-off of Assets 6,761 5,603 - - ------------------------------------------------- C. Total Non-GAAP Restructuring 9,755 8,300 3,445 - D. Non-GAAP Restructuring (Cumulative) 9,755 18,055 21,500 21,500 E. Cushion 500 500 500 500 F. Proposed Non-GAAP Restructuring Covenant 10,255 18,555 22,000 22,000 Existing Non-GAAP Restructuring Covenant 7,500 11,000 12,500 12,500
SCHEDULE 7.6(a)(iii) --------------------
GAAP Restructuring Expenses Q1 2002 Q2 2002 Q3 2002 Q4 2002 - --------------------------- A. GAAP Restructuring 10,325 4,175 - - B. GAAP Restructuring (Cumulative) 10,325 14,500 14,500 14,500 C. Cushion 500 500 500 500 D. Proposed GAAP Restructuring Covenant 10,825 15,000 15,000 15,000 Existing GAAP Restructuring Covenant 12,500 12,500 12,500 12,500
SCHEDULE 7.6(a)(iv) -------------------
Minimum Free Cash Flow Q1 2002 Q2 2002 Q3 2002 Q4 2002 - ---------------------- A. Free Cash Flow (from Company's projections) (23,540) (18,341) (3,576) 6,337 B. Specified Business Unit Sale - 24,000 - - C. Amendment Fees/2/ - (725) - - ------------------------------------------------ D. Free Cash Flow (23,540) 4,934 (3,576) 6,337 E. Cash Flow (Cumulative) (23,540) (18,606) (22,182) (15,845) F. Cushion (5,000) (6,000) (7,500) (10,000) G. Proposed Cash Flow Covenant (28,540) (24,606) (29,682) (25,845) Existing Cash Flow Covenant (7,108) (18,785) (25,574) (12,126)
__________________ /2/ 10 bps on $570 million, $75 million and $80 million commitments for Senior Multi-Currency Agreement, RBS facility, and A/R loan facility, respectively SCHEDULE 7.6(a)(v) ------------------
Maximum Capital Expenditures Q4 2001 Q1 2002 Q2 2002 Q3 2002 Q4 2002 - ---------------------------- A. Capital Expenditures 7,595 6,000 6,000 5,000 5,000 B. Capital Expenditures (Two Quarter Rolling) 13,595 12,000 11,000 10,000 C. Cushion 500 500 500 500 D. Proposed Capital Expenditures Covenant 36,000 14,095 12,500 11,500 10,500 Existing Capital Expenditures Covenant 36,000 24,000 24,000 22,000 22,000
SCHEDULE 7.6(b) ---------------
Minimum Revenue Sep-2001 Oct-2001 Nov-2001 Dec-2001 Jan-2002 Feb-2002 - --------------- A. Proposed Monthly Sales Covenant/3/ 241,014 220,857 200,700 199,200 197,700 196,200 (Rolling 3 Month) Mar-2002 Apr-2002 May-2002 Jun-2002 Jul-2002 Aug-2002 208,500 220,800 233,100 239,400 245,700 252,000
______________ /3/ 10% cushion from the Company's projections EX-4.2 4 dex42.txt AMENDED RESTATED RECEIVABLES PURCHASING AGREEMENT EXHIBIT 4.2 THIRD AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT THIS THIRD AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT ("Third Amendment") is dated as of December 12, 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 twice amended to date (as so amended to date and as further 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 further 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 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 7.03(b) is hereby amended by adding after the words "within 90 days after the close of each Fiscal Year" therein the following parenthetical expression: "(except not later than December 17, 2001 with respect to the year ending August 31, 2001)." (b) Schedule I is hereby amended by amending and restating the definition of "Bank Credit Agreement" therein in its entirety to read as --------------------- follows: "Bank Credit Agreement" means the Amended --------------------- and Restated Multicurrency Credit Agreement dated as of May 15, 2001, as amended by the First Amendment to Amended and Restated Multicurrency Credit Agreement dated as of September 27, 2001 and the Second Amendment to Amended and Restated Multicurrency Credit Agreement dated as of December 13, 2001, a true and complete copy of which is attached hereto as Annex A, among APW, Ltd., Various 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, but without including or giving effect to any further amendment, supplement or modification thereto, unless the parties hereto so agree. SECTION 2. Effectiveness. This Third Amendment shall become effective ------------- upon the Agent's receipt of (a) this Third Amendment, duly executed by the Seller, APW and the Purchaser, (b) an amount equal to the fees and expenses of counsel to the Agent, and (c) evidence satisfactory to it of a substantially contemporaneous amendment, in form and substance satisfactory to the Agent and the Purchaser, to the Bank Credit Agreement and the U.K. Facility (as defined in the Bank Credit Agreement). The effectiveness of this Third Amendment shall also be subject to the following condition subsequent: the payment of an "Amendment Fee" described and calculated in the fee letter dated as of December 12, 2001 from the Agent to the Seller and APW, payable on the date provided in such fee letter. SECTION 3. 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 Third 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. (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 Third 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 Third Amendment has been duly executed and delivered by the Seller and APW. The Purchase Agreement, as amended hereby, is the legal, valid -2- 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 Third Amendment, no Termination Event has occurred and is continuing. (f) As of the date hereof, the Aggregate Purchaser's Investments are $45,347,917 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 4. Reference to and Effect on the Agreement Documents. -------------------------------------------------- (a) Upon the effectiveness of this Third 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 effect and are hereby ratified and confirmed. (c) The execution, delivery and effectiveness of this Third 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 Third 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 Third Amendment shall be deemed to be an Agreement Document for all purposes. -3- SECTION 5. Execution in Counterparts, Etc. This Third 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 6. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT ------------- OF THIS THIRD AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS. SECTION 7. 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 Third 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 13.06 of the Purchase Agreement. -4- IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed by their respective duly authorized officers as of the date first above written. APPLIED POWER CREDIT CORPORATION, as Seller By: /s/ James Maxwell -------------------------------------------- Name: James Maxwell Title: Treasurer 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: /s/ James Maxwell -------------------------------------------- Name: James Maxwell Title: Treasurer Address: N22 W23685 Ridgeview Parkway West Waukesha, Wisconsin 53188-1013 Telephone No.: (262) 523-7620 Facsimile No.: (262) 523-7580 Attention: Treasurer BARTON CAPITAL CORPORATION, as Purchaser By: /s/ Evelyn Echevarria -------------------------------------------- Name: Evelyn Echevarria Title: Vice President Address: c/o AMACAR Group, L.L.C 6525 Morrison Boulevard Suite 318 Charlotte, North Carolina 28211 -5- Telephone No.: (704) 365-0569 Facsimile No.: (704) 365-1362 Attention: Douglas K. Johnson SOCIETE GENERALE, as Agent By: /s/ Martin J. Finan -------------------------------------------- Name: Martin J. Finan Title: Managing Director Address: 181 West Madison Street Suite 3400 Chicago, Illinois 60602 Telephone No.: (312) 578-5167 Facsimile No.: (312) 578-5199 Attention: Asset Securitization Group -6- EX-4.3 5 dex43.txt WARRANT REGISTRATION RIGHTS AGREEMENT (U.K BANKS) EXHIBIT 4.3 FIRST AMENDMENT TO WARRANT AND REGISTRATION RIGHTS AGREEMENT This First Amendment, dated December 13, 2001 (the "First Amendment "), --------------- amending that certain Warrant and Registration Rights Agreement dated as of May 15, 2001 by and among the Company and the Investors (the "Agreement"), is by and --------- among the following parties: A. with regards to the entire First Amendment, APW LTD., a Bermuda company (the "Company"); ------- B. with regards to those sections of the First Amendment affecting the First Tranche Warrant Certificates, the Holders of First Tranche Warrant Certificates (as defined below) on the Company's records on the Second Effective Date and listed on Schedule A hereto; and C. with regards to those sections of this First Amendment affecting the Second Tranche Warrant Certificates, the holders of Second Tranche Warrant Certificates (as defined below) listed on Schedule B hereto who are being issued Second Tranche Warrants in connection with the Credit Agreement. NOW THEREFORE, in consideration of the foregoing and other consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. Certain Definitions. Section 1 is hereby amended as follows: ------------------- (a) The following new definitions are added to Section 1 of the Agreement in appropriate alphabetic order: (i) "Amendment Number One to First Tranche Warrant Certificate" --------------------------------------------------------- shall mean the amendment to the First Tranche Warrant Certificate evidenced by the amendment in form of Exhibit C hereto. (ii) "First Tranche Warrant" shall mean those Warrants issued for an --------------------- initial aggregate of 1,771,348 Warrant Shares by the Company on May 15, 2001, as amended by Amendment Number One to First Tranche Warrant Certificate. (iii) "First Tranche Warrant Certificate" shall mean the Warrant --------------------------------- Certificate dated May 15, 2001 as amended by Amendment Number One to First Tranche Warrant Certificate (iv) "Second Effective Date" shall mean the date the Second Amendment --------------------- to the Credit Agreement becomes effective. (v) "Second Tranche Holder" shall mean the Holder of a Second --------------------- Tranche Warrant Certificate. (vi) "Second Tranche Warrant" shall mean those Warrants issued for an ---------------------- initial aggregate of 3,455,610 Warrant Shares by the Company on the date hereof pursuant to the Second Tranche Warrant Certificates. (vii) "Second Tranche Warrant Certificate" shall mean the certificate ---------------------------------- evidencing the issuance of the Second Tranche Warrants in the form of Exhibit D hereto. (b) The following definitions shall be amended in their entirety to read as follows: (i) "Warrants" shall mean the aggregate of the First Tranche -------- Warrants and, unless otherwise cancelled in accordance with Section 10(b) of this Agreement, the Second Tranche Warrants. (ii) "Warrant Certificates" shall mean the First Tranche Warrant -------------------- Certificates and the Second Tranche Warrant Certificates. (iii) "Warrant Shares" shall mean the aggregate of all Warrant Shares -------------- as defined in the First Tranche Warrant Certificates and the Second Tranche Warrant Certificates. 2. Issuance of Warrants. Section 2 of the Agreement is amended such that the -------------------- current language shall become Section 2(a) and the following language shall be added as Sections 2(b) and Section 2(c): "(b) On the Second Effective Date, the Company and the Holders of the First Tranche Warrant Certificates shall amend the First Tranche Warrant Certificates by issuing and accepting the Amendment Number One to the First Tranche Warrant Certificates. "(c) On the Second Effective Date, in consideration for the Lenders entering into the Second Amendment to the Credit Agreement, the Company shall issue to each Lender a Second Tranche Warrant Certificate representing Warrants to purchase the number of Common Shares to which such Lender is entitled as set forth on Exhibit D hereto (initially totaling 3,455,610 in the aggregate)." 3. Representations, Warranties and Covenants of the Company. The Company -------------------------------------------------------- hereby makes, as of the Second Effective Date, each of the representations, warranties and covenants set forth in Section 3, except for the following language found in Section 3(d)(i), which is hereby specifically amended as of the Second Effective Date: "As of the Second Effective Date, the authorized capital stock of the Company consists solely of 250,000,000 Common Shares of which (assuming no Lender or Designated Affiliate exercises any Warrant) 40,810,170 shares of Common Shares are issued and outstanding and 50,000,000 preferred shares, par value $0.01 per share, of which 1,000,000 have been designated as Series A Junior Participating Preferred Stock, par value $0.01 per share, issuable in accordance Company Rights Plan, of which no shares are issued and outstanding. All of such outstanding capital stock is validly issued, fully paid and nonassessable and has been issued in compliance with all applicable laws. As of the Second Effective Date, there are options, warrants and convertible securities exercisable or convertible into 7,026,282 Common Shares." 4. Compliance with Securities Laws; Legends. Section 4 is hereby amended as ---------------------------------------- follows. 2 (a) Section 4(d)(iii) is hereby amended by deleting the phrase "May 15, 2001" and replacing it with the phrase "the Original Issuance Date (as defined in the applicable Warrant Certificate)". (b) Section 4(d)(iv) is hereby amended in its entirety as follows: "(iv) Except as provided in Sections 5(j) and 4(d)(ii), each ------------- -------- subsequently issued certificate for any Warrants or Warrant Shares shall be imprinted with a legend substantially in the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH -------------- SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND AN OPINION OF COUNSEL WITH RESPECT TO SUCH EXEMPTION IS PROVIDED TO THE EXTENT REQUIRED IN A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND PROVISIONS OF A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICES. UPON WRITTEN REQUEST TO THE COMPANY'S SECRETARY, A COPY OF SUCH AGREEMENT WILL BE PROVIDED WITHOUT CHARGE TO APPROPRIATELY INTERESTED PERSONS." 5. Warrant Reduction. Section 10 is hereby amended in its entirety to read as ----------------- follows: "(a) No Reduction in First Tranche. There shall be no reduction of the ----------------------------- Warrant Shares issuable under the First Tranche Warrants. (b) Second Tranche Full Warrant Reduction. All of Warrant Shares ------------------------------------- issuable under the Second Tranche Warrants shall be cancelled if the Administrative Agent under the Credit Agreement and the agent under the UK Credit Facilities certify, by July 31, 2002, that (i) all outstanding Loans (as defined in the Credit Agreement) have been repaid in full in cash, by wire transfer or certified or cashier's check, (ii) all Commitments (as defined in the Credit Agreement) have 3 been terminated under the Credit Agreement, (iii) all credit extensions under the UK Credit Facilities have been paid in full (or, in respect to contingent liabilities, fully collateralized in cash, by wire transfer or certified or cashier's check) and (iv) all commitments have been terminated under the UK Credit Facilities. Such certification shall be filed with the Secretary of the Company by the close of business Bermuda time on July 31, 2002, with copies sent to all Second Tranche Holders as soon as practicable thereafter. Upon the receipt of such certification by the Secretary of the Company, each Second Tranche Warrant Certificate shall automatically be cancelled. Upon notification to the Second Tranche Holders that a full repayment has occurred and upon the filing of such certification, no further action is required to effect the reduction. (c) Second Tranche Partial Reduction. The number of Warrant Shares -------------------------------- issuable under the Second Tranche Warrants shall be reduced by 49.5% if the Administrative Agent under the Credit Agreement and the agent under the UK Credit Facilities certify, by September 30, 2002, that (i) all outstanding Loans (as defined in the Credit Agreement) have been repaid in full in cash, by wire transfer or certified or cashier's check, (ii) all Commitments (as defined in the Credit Agreement) have been terminated under the Credit Agreement, (iii) all credit extensions under the UK Credit Facilities have been paid in full (or, in respect to contingent liabilities, fully collateralized in cash, by wire transfer or certified or cashier's check) and (iv) all commitments have been terminated under the UK Credit Facilities. Such certification shall be filed with the Secretary of the Company by the close of business Bermuda time on September 30, 2002, with copies sent to all Second Tranche Holders as soon as practicable thereafter. Upon the receipt of such certification by the Secretary of the Company, each Second Tranche Warrant Certificate shall automatically represent 50.5% of the Warrants indicated on the first page of the Second Tranche Warrant Certificate (as adjusted from time to time as provided therein). Upon notification to the Second Tranche Holders that a reduction has occurred and upon the filing of such certification, no further action is required to effect the reduction. In the event a reduction is effected in accordance herewith, (x) upon the request of any Second Tranche Holder and the surrender of such Holder's Second Tranche Warrant Certificate, the Company shall prepare and deliver a new Second Tranche Warrant Certificate reflecting the reduced number of Warrants or (y) upon the request of the Company, each Holder shall surrender such Holder's Second Tranche Warrant Certificate and the Company shall prepare and deliver a new Second Tranche Warrant Certificate reflecting the reduced number of Warrants." 6. Miscellaneous. Section 11 is hereby amended as follows: ------------- (a) Section 11(c) is hereby amended in its entirety to read as follows: "Amendment; Notice. No supplement, modification, waiver or ----------------- termination of this Agreement (including without limitation any amendment or modification of any defined term used herein which is defined in any other agreement or instrument referred to herein) shall be binding unless agreed to in writing by the Company and the holders of Warrants and Warrant Shares representing 60% of the Warrant Shares issuable hereunder, excluding any Warrant Shares 4 sold to the public pursuant to an effective registration statement or Rule 144 under the Securities Act. Notwithstanding the foregoing, with respect to (i) any supplement, modification, waiver or termination which relates only to rights or obligations of the First Tranche Warrants, such supplement, modification, waiver or termination must be signed by the Holders of First Tranche Warrants and Warrant Shares representing 60% of the Warrant Shares issuable under the First Tranche Warrant Certificates, rather than the holders of Warrants and Warrant Shares representing 60% of all Warrant Shares issuable hereunder, excluding any Warrant Shares sold to the public pursuant to an effective registration statement or Rule 144 under the Securities Act, and (ii) any supplement, modification, waiver or termination which relates only to rights or obligations of the Second Tranche Warrants, such supplement, modification, waiver or termination must be signed b y the Holders of Second Tranche Warrants and Warrant Shares representing 60% of the Warrant Shares issuable under the Second Tranche Warrant Certificates, rather than the holders of Warrants and Warrant Shares representing 60% of all Warrant Shares issuable hereunder, excluding any Warrant Shares sold to the public pursuant to an effective registration statement or Rule 144 under the Securities Act. In the event that less than 100% of the Holders of the relevant Warrants consent to a supplement, modification, waiver or termination, the Company shall promptly provide notice of the adoption of such supplement, modification, waiver or termination, to each non-consenting Holder at the Holder's address as it appears on the records of the Company." (b) Section 11(m) is amended in its entirety to read as follows: "Credit Agreement and Warrant Certificates. Nothing in this Agreement ----------------------------------------- or Exhibits A, C or D is intended to permit any action or event which is prohibited by the Credit Agreement or by the Warrant Certificates, as long as the Credit Agreement or the Warrant Certificates, respectively, remain in effect." 7. Schedule 3(d) is amended in its entirety as reflected on Schedule 3(d) attached hereto. 8. General. ------- (a) Confirmation of the Agreement. Except as amended hereby, the Agreement ----------------------------- shall remain in full force and effect and it hereby ratified and confirmed in all respects. (b) References to the Agreement. Each reference in the Agreement to "this --------------------------- Agreement", "hereunder" or "hereof", or words of like import, and each reference to the Agreement in any and all instruments or documents provided for in the Agreement or delivered or to be delivered thereunder or in connection therewith, shall, except where the context otherwise requires, be deemed a reference to the Agreement as amended hereby. (c) Defined Terms. Capitalized terms used herein which are not otherwise ------------- defined are used with the meanings ascribed to them in the Agreement. 5 IN WITNESS WHEREOF, the undersigned have caused this First Amendment to be duly executed as of the date first above written. APW LTD. By: /s/ Michael Gasick ---------------------------- Name: Michael Gasick ------------------------ Title: Treasurer ----------------------- BANK OF AMERICA, NATIONAL ASSOCIATION By: /s/ M. Duncan McDuffie -------------------------------------- Name: M. Duncan McDuffie Title: Managing Director Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate BANK ONE, NA (Main Office Chicago) By: /s/ Thomas T. Bower -------------------------------------- Name: Thomas T. Bower Title: Senior Vice President Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate THE CHASE MANHATTAN BANK (as successor to The Chase Manhattan Bank) By: /s/ Michael Lancia -------------------------------------- Name: Michael Lancia Title: Vice President Attention: Facsimile: 212-622-4834 As a Holder of a First Tranche Warrant Certificate FIRST UNION NATIONAL BANK By: /s/ William W. Teegarder -------------------------------------- Name: William W. Teegarder Title: Senior Vice President Attention: Facsimile: 404-332-1396 As a Holder of a First Tranche Warrant Certificate WEST REGISTER INVESTMENTS By: /s/ T.J. Smith -------------------------------------- Name: T.J. Smith Title: Senior Manager Specialised Lending Services Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH By: /s/ Shinichiro Monechika ---------------------------------------------- Name: Shinichiro Monechika Title: Deputy General Manager Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate CREDIT LYONNAIS CHICAGO BRANCH By: /s/ Richard Teitelbaum ---------------------------------------------- Name: Richard Teitelbaum Title: Vice President Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate U.S. BANK NATIONAL ASSOCIATION By: /s/ Greg Wilson ---------------------------------------------- Name: Greg Wilson Title: A.V.P. Attention: Facsimile: 612-973-2148 As a Holder of a First Tranche Warrant Certificate THE FUJI BANK, LIMITED By: /s/ John D. Doye ---------------------------------------------- Name: John D. Doye Title: Vice President Attention: John Doye Facsimile: 212 282 4386 As a Holder of a First Tranche Warrant Certificate FLEET NATIONAL BANK By:_______________________________________ Name:__________________________________ Title:_________________________________ Attention:_____________________________ Facsimile:_____________________________ As a Holder of a First Tranche Warrant Certificate THE DAI-ICHI KANGYO BANK, LTD. By: /s/ Nobuyasu Fukatsu ---------------------------------------------- Name: Nobuyasu Fukatsu Title: General Manager Attention: Michael Pleasants Facsimile: 312 876 2011 As a Holder of a First Tranche Warrant Certificate M&I CAPITAL MARKETS GROUP, LLC By: /s/ Michael Vellon ---------------------------------------------- Name: Michael Vellon Title: Vice President Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate BNP PARIBAS By: /s/ Kathryn B. Quinn ---------------------------------------------- Name: Kathryn B. Quinn Title: Vice President Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate SOCIETE GENERALE By: /s/ Eric E.O. Siebert Jr. ---------------------------------------------- Name: Eric E.O. Siebert Jr. Title: Director Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate THE BANK OF NEW YORK By:_______________________________________ Name:__________________________________ Title:_________________________________ Attention:_____________________________ Facsimile:_____________________________ As a Holder of a First Tranche Warrant Certificate WACHOVIA CAPITAL INVESTMENTS By: /s/ William W. Teegarder ---------------------------------------------- Name: William W. Teegarder Title: Attention: Facsimile: 404 332 1396 As a Holder of a First Tranche Warrant Certificate SUMITOMO MITSUI BANKING CORPORATION By: /s/ David A. Buck ---------------------------------------------- Name: David A. Buck Title: Senior Vice President Attention: Facsimile: As a Holder of a First Tranche Warrant Certificate THE MITSUBISHI TRUST & BANKING CORPORATION By: /s/ Thomas A. Pennington -------------------------------------- Name: Thomas A. Pennington ---------------------------------- Title: Executive Vice President -------------------------------- Attention:_____________________________ Facsimile:_____________________________ As a Holder of a First Tranche Warrant Certificate J.P. MORGAN AS AGENT FOR THE CHASE MANHATTAN BANK By:_______________________________________ Name:__________________________________ Title:_________________________________ Attention:_____________________________ Facsimile:_____________________________ As a Holder of a First Tranche Warrant Certificate WILLIAM E. SIMON & SONS SPECIAL SITUATIONS PARTNERS II, L.P. By: /s/ Dale Leshaw -------------------------------------- Name: Dale Leshaw --------------------------------- Title: Principal -------------------------------- Attention:_____________________________ Facsimile:_____________________________ As a Holder of a First Tranche Warrant Certificate OCM PRINCIPAL OPPORTUNITIES FUND II, L.P. By: Oaktree Capital Management, LLC, its general partner By: /s/ Christopher S. Brothers -------------------------------------- Name: Christopher S. Brothers --------------------------------- Title: Managing Director -------------------------------- Attention:_____________________________ Facsimile:_____________________________ As a Holder of a First Tranche Warrant Certificate By: /s/ [illegible in original] OCM OPPORTUNITIES FUND III, L.P. By: Oaktree Capital Management, LLC, its general partner By: /s/ John Frank -------------------------------------- Name: John Frank --------------------------------- Title: General Counsel -------------------------------- Attention:_____________________________ Facsimile:_____________________________ By: /s/ [Illegible in Original] -------------------------------------- As a Holder of a First Tranche Warrant Certificate BANK OF AMERICA, NATIONAL ASSOCIATION By: /s/ M. Duncan Mc Duffie ----------------------------------- Name: M. Duncan Mc Duffie ------------------------------ Title: Managing Director ----------------------------- Attention: M. Duncan Mc Duffie ------------------------- Facsimile: 213-228-6003 ------------------------- As a party to whom a Second Tranche Warrant Certificate will be issued. THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH By: /s/ Shinichiro Monechika ----------------------------------- Name: Shinichiro Monechika ------------------------------ Title: Deputy General Manager ----------------------------- Attention:__________________________ Facsimile:__________________________ As a party to whom a Second Tranche Warrant Certificate will be issued. BANK ONE, NA (Main Office Chicago) By: /s/ Thomas T. Bower ----------------------------------- Name: Thomas T. Bower ------------------------------ Title: Senior Vice President ----------------------------- Attention:__________________________ Facsimile:__________________________ As a party to whom a Second Tranche Warrant Certificate will be issued. BNP PARIBAS By: /s/ Kathryn Quinn --------------------------------------- Name: Kathryn Quinn Title: Vice President Attention: Facsimile: As a party to whom a Second Tranche Warrant Certificate will be issued. CREDIT LYONNAIS CHICAGO BRANCH By: /s/ Richard Teitelbaum ----------------------------------- Name: Richard Teitelbaum Title: Vice President Attention: Facsimile: As a party to whom a Second Tranche Warrant Certificate will be issued. THE DAI-ICHI KANGYO BANK, LTD. By: /s/ Nobuyasu Fukatsu ----------------------------------- Name: Nobuyasu Fukatsu Title: General Manager Attention: Michael Pleasents Facsimile: 312-876-2011 As a party to whom a Second Tranche Warrant Certificate will be issued. FIRST UNION NATIONAL BANK By: /s/ William W. Telgarden --------------------------------------- Name: William W. Telgarden Title: Senior Vice President Attention: Facsimile: 424-332-1396 As a party to whom a Second Tranche Warrant Certificate will be issued. THE FUJI BANK, LIMITED By: /s/ John D. Doyle --------------------------------------- Name: John D. Doyle Title: Vice President Attention: John D. Doyle Facsimile: (212) 282-4386 As a party to whom a Second Tranche Warrant Certificate will be issued. JP MORGAN CHASE BANK By: /s/ Michael Lancia --------------------------------------- Name: Michael Lancia Title: Vice President Attention: Facsimile: As a party to whom a Second Tranche Warrant Certificate will be issued. M&I CAPITAL MARKETS GROUP, LLC By: /s/ Michael Vellon ----------------------------------- Name: Michael Vellon ------------------------------ Title: Vice President ----------------------------- Attention: Michael Vellon ------------------------- Facsimile: 414-765-7625 ------------------------- As a party to whom a Second Tranche Warrant Certificate will be issued. THE MITSUBISHI TRUST & BANKING CORPORATION By: /s/ Thomas A. Pennington ----------------------------------- Name: Thomas A. Pennington ------------------------------ Title: Executive Vice President ----------------------------- Attention: Michael Dorin ------------------------- Facsimile: (212) 644-6825 ------------------------- As a party to whom a Second Tranche Warrant Certificate will be issued. OCM PRINCIPAL OPPORTUNITIES FUND II By: Oaktree Capital Management, LLC, its general partner By: /s/ Christopher S. Brothers ----------------------------------- Name: Christopher S. Brothers ------------------------------ Title: Managing Director ----------------------------- Attention: Christopher S. Brothers ------------------------- Facsimile: 213-830-6395 ------------------------- As a party to whom a Second Tranche Warrant Certificate will be issued. By: /s/ [illegible in original] OCM OPPORTUNITIES FUND III By: Oaktree Capital Management, LLC, its general partner By: /s/ John Frank ----------------------------------- Name: John Frank ------------------------------ Title: General Counsel ----------------------------- Attention:__________________________ Facsimile:__________________________ By: /s/ [Illegible in Original] -------------------------------------- As a party to whom a Second Tranche Warrant Certificate will be issued. THE ROYAL BANK OF SCOTLAND PLC By: /s/ T.J. Smith ----------------------------------- Name: T.J. Smith ------------------------------ Title: Senior Manager, Specialized Lending Services ----------------------------- Attention:__________________________ Facsimile:__________________________ As a party to whom a Second Tranche Warrant Certificate will be issued. SOCIETE GENERALE By: /s/ Eric E.O. Siebert Jr. ------------------------------- Name: Eric E.O. Siebert Jr. Title: Director Attention: Eric Siebert Facsimile: As a party to whom a Second Tranche Warrant Certificate will be issued. SUMITOMO MITSUI BANKING CORPORATION By: /s/ David A. Buck ---------------------------------- Name: David A. Buck Title: Senior Vice President Attention: Facsimile: As a party to whom a Second Tranche Warrant Certificate will be issued. U.S. BANK NATIONAL ASSOCIATION By: /s/ Greg Wilson ----------------------------------- Name: Greg Wilson Title: A.V.P. Attention: Greg Wilson Facsimile: 612-973-2148 As a party to whom a Second Tranche Warrant Certificate will be issued. WILLIAM E. SIMON & SONS SPECIAL SITUATIONS PARTNERS II, L.P. By: /s/ Dale Leshaw ----------------------------------- Name: Dale Leshaw Title: Principal Attention: Facsimile: As a party to whom a Second Tranche Warrant Certificate will be issued. List of Schedules and Exhibits ------------------------------ Schedule A: List of Holders of First Tranche Warrant Certificates on date hereof Schedule B: List of Investors under Second Amendment to the Credit Agreement, who will be issued Second Tranche Warrants. Schedule 3(d): List of APW Ltd. Options Plan Exhibit C: Amendment Number One to First Tranche Warrant Certificates. Exhibit D: Second Tranche Warrant Certificate. SCHEDULE A FIRST TRANCHE WARRANT CERTIFICATE HOLDERS Number of Investor Shares - -------- ------ BANK OF AMERICA, NATIONAL ASSOCIATION ............................... 177,135 BANK ONE, NA (Main Office Chicago) .................................. 116,536 THE CHASE MANHATTAN BANK ............................................ 147,612 FIRST UNION NATIONAL BANK ........................................... 24,861 WEST REGISTER INVESTMENTS (designated affiliate of THE ROYAL BANK OF SCOTLAND PLC) .................................................... 118,090 THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH ...................................................... 118,090 CREDIT LYONNAIS CHICAGO BRANCH ...................................... 88,567 U.S. BANK NATIONAL ASSOCIATION ...................................... 48,613 THE FUJI BANK, LIMITED .............................................. 88,567 FLEET NATIONAL BANK ................................................. 88,567 THE DAI-ICHI KANGYO BANK, LTD. ...................................... 44,284 M&I CAPITAL MARKETS GROUP, LLC (designated affiliate of M&I MARSHALL & ILSLEY BANK) ............................................. 44,284 BNP PARIBAS ......................................................... 59,045 SOCIETE GENERALE .................................................... 59,045 THE BANK OF NEW YORK ................................................ 44,284 WACHOVIA CAPITAL INVESTMENTS (designated affiliate of WACHOVIA BANK, N.A.) ......................................................... 27,969 SUMITOMO MITSUI BANKING CORPORATION ................................. 59,045 THE MITSUBISHI TRUST & BANKING CORPORATION .......................... 44,284 J.P. MORGAN as agent for THE CHASE MANHATTAN BANK ................... 62,153 WILLIAM E. SIMON & SONS SPECIAL SITUATIONS PARTNERS II, L.P ......... 15,538 OCM PRINCIPAL OPPORTUNITIES FUND II, L.P ............................ 287,010 OCM OPPORTUNITIES FUND III, L.P. .................................... 7,769 - ------------------------------------------------------------------------------- 1,771,348 SCHEDULE B SECOND TRANCHE WARRANT CERTIFICATE HOLDERS Number of Investor Shares - -------- ------ BANK OF AMERICA, NATIONAL ASSOCIATION ............................. 345,561 THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH ................ 230,374 BANK ONE, NA (Main Office Chicago) ................................ 227,343 BNP PARIBAS ....................................................... 115,187 CREDIT LYONNAIS CHICAGO BRANCH .................................... 172,780 THE DAI-ICHI KANGYO BANK, LTD. .................................... 86,390 FIRST UNION NATIONAL BANK ......................................... 48,500 THE FUJI BANK, LIMITED ............................................ 172,780 JP MORGAN CHASE BANK .............................................. 495,607 M&I CAPITAL MARKETS GROUP, LLC .................................... 86,390 THE MITSUBISHI TRUST & BANKING CORPORATION ........................ 86,390 OCM PRINCIPAL OPPORTUNITIES FUND II ............................... 651,293 OCM OPPORTUNITIES FUND III ........................................ 128,828 THE ROYAL BANK OF SCOTLAND PLC .................................... 230,374 SOCIETE GENERALE .................................................. 115,187 SUMITOMO MITSUI BANKING CORPORATION ............................... 115,187 U.S. BANK NATIONAL ASSOCIATION .................................... 94,836 WILLIAM E. SIMON & SONS SPECIAL SITUATIONS PARTNERS II, L.P. ................................................. 52,603 - ------------------------------------------------------------------------------- TOTAL ............................................................. 3,455,610 Schedule 3(d) List of APW Ltd. Options Plan
Amount Outstanding Number of Securities with a Name as of May 15, 2001* Below Warrant Exercise Price ---- ------------------- ---------------------------- APW Ltd. 2000 Stock Option Plan 3,565,120 42,871 APW Ltd. 2001 Stock Option Plan 1,073,350 0 APW Ltd. Outside Director Stock 24,000 0 Option Plan APW Ltd. Deferred Stock Plan 562,447 562,447 (For 4 participants) Amount Outstanding Number of Securities with a as of Below Second Tranche Name December 13, 2001* Warrant Exercise Price ---- ------------------ ---------------------- APW Ltd. 2000 Stock Option Plan 4,609,827 0 APW Ltd. 2001 Stock Option Plan 1,837,600 0 APW Ltd. Outside Director Stock 20,000 0 Option Plan APW Ltd. Deferred Stock Plan 558,855 0 (For 3 participants)
APW Ltd. also has an employee stock purchase plan allowing employees to purchase shares of Common Stock at a discount and on May 15, 2001 issued warrants for 2,069,831 shares of Common Stock to its lenders. Effective December 31, 2001 and in accordance with the Asset Purchase Agreement between APW Ltd. and Connell Limited Partnership, the Seller will likely return 754,717 shares of Common Stock to APW Ltd. * After consideration of cancellations and surrenders. EXHIBIT C THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). -------------- SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND AN OPINION OF COUNSEL WITH RESPECT TO SUCH EXEMPTION IS PROVIDED TO THE EXTENT REQUIRED IN A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND PROVISIONS OF A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICES. UPON WRITTEN REQUEST TO THE COMPANY'S SECRETARY, A COPY OF SUCH AGREEMENT WILL BE PROVIDED WITHOUT CHARGE TO APPROPRIATELY INTERESTED PERSONS. APW LTD. FIRST AMENDMENT TO WARRANT CERTIFICATE Original Dated as of May 15, 2001 Amendment Dated as of December 13, 2001 APW Ltd., a Bermuda company (the "Company"), pursuant to the First ------- Amendment to Warrant and Registration Rights Agreement dated the date hereof, hereby amends the Warrant Certificate issued to _____________, or registered assigns (the "Holder"), dated _____________, 2001 for ____________ Warrants (as ------ adjusted from time to time as provided herein), as follows: 1. Title. The Warrant Certificate amended hereby shall be deemed to be ----- called the "First Tranche Warrant Certificate" for purposes of the Warrant and Registration Rights Agreement. 2. Introductory Paragraph. The introductory paragraph of the Warrant ---------------------- Certificate is amended as follows: a. The Exercise Price shall be U.S.$1.98 per share (as adjusted from time to time as provided herein). 1 b. The Commencement Date shall be October 1, 2002 (subject to acceleration as provided in Section 3(f)). ------------- 3. Duration and Exercise of Warrants. Section 3(f) of the Warrant --------------------------------- Certificate is amended in its entirety to read as follows: "The beginning of the Exercise Period shall be accelerated to permit the Holder of this Warrant Certificate to exercise this Warrant immediately (i) prior to the consummation of an Organic Change (as defined in Section 7(d)); (ii) upon the occurrence of an event which ------------- with the passage of time would result in the occurrence of a Separation Date (as defined in the Company Rights Plan) under the Company Rights Plan (as defined hereunder) or (iii) subsequent to a Refinancing Event. A "Refinancing Event" shall be deemed to have ----------------- occurred when the Company refinances or repays all the Obligations (as defined in the Credit Agreement) under the Credit Agreement such that the Termination Date (as defined in the Credit Agreement) shall have occurred under the Credit Agreement. No Holder shall be required to provide any representation (other than as to its title to this Warrant or the Warrant Shares), covenants or indemnification in connection with an Organic Change, a Separation Date or a Refinancing Event, provided, however that a Holder may be required to complete a -------- ------- customary letter of transmittal or other comparable document which is sent to all other public shareholders of the Company." 4. Adjustments of Price and Number of Warrant Shares. Section 7 of the ------------------------------------------------- Warrant Certificate is amended as follows: (a) Section 7(d) of the Warrant Certificate is revised to delete the words "Subject to the terms of Section 7(j)". ------------ (b) Section 7(h) of the Warrant Certificate is revised in its entirety to read as follows: "Certain Exceptions to Antidilution Protection. --------------------------------------------- Notwithstanding anything to the contrary in this Section 7, --------- there shall be no adjustment to the Exercise Price or to the number of Warrant Shares issuable upon exercise hereof: (i) in connection with the sale or issuance of the Warrant Certificates for an initial aggregate of 1,771,348 Common Shares issued to the Lenders (or their Affiliates) under the Credit Agreement and warrant certificates for an initial aggregate of 298,482 Common Shares issued to the UK Banks under the UK Credit Facilities on the Original Issuance Date and all warrants issued upon the partial exercise, transfer or division of, or in substitution for, any such warrants, or any adjustment to the number of shares issuable pursuant thereto in accordance with the terms of any thereof; (ii) the issuance of any rights under the Company Rights Plan; (iii) an exercise of options outstanding under the Company's stock plans on the Original Issuance Date, which options are listed on Schedule 3(d) to the 2 Warrant and Registration Rights Agreement or (iv) the reduction in the Exercise Price of the Warrant Shares issuable upon exercise hereof pursuant to the First Amendment to this First Tranche Warrant Certificate dated as of December 13, 2001." (c) Section 7(j) of the Warrant Certificate is amended in its entirety to read as follows: "Reserved." 5. Notice Address. The notice address for the Company found in -------------- Sections 3(c) and 12 shall henceforth be N. 22 West 23685 Ridgeview Parkway West, Waukesha, WI 53188-1013. 6. General. ------- (a) Confirmation of the Warrant Certificate. Except as amended --------------------------------------- hereby, the Warrant Certificate shall remain in full force and effect and it hereby ratified and confirmed in all respects. (b) Effect of Amendment. Subsequent transfers or exercises of the ------------------- Warrant Certificate shall be transfers or exercises, as the case may be, of the Warrant Certificate, as amended. (c) References to the Warrant Certificate. Each reference in the ------------------------------------- Warrant Certificate to "this Warrant Certificate", "hereunder" or "hereof", or words of like import, and each reference to the Warrant Certificate in any and all instruments or documents provided for in the Warrant Certificate or delivered or to be delivered thereunder or in connection therewith, shall, except where the context otherwise requires, be deemed a reference to the Warrant Certificate as amended hereby. (d) Defined Terms. Capitalized terms used herein which are ------------- not otherwise defined are used with the meanings ascribed to them in the Warrant Certificate. IN WITNESS WHEREOF, the Company has caused this First Amendment to Warrant Certificate to be executed by its officer thereunto duly authorized as of the date hereof. APW LTD. By: ----------------------------- Title: 3 EXHIBIT D THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). -------------- SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND AN OPINION OF COUNSEL WITH RESPECT TO SUCH EXEMPTION IS PROVIDED TO THE EXTENT REQUIRED IN A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND PROVISIONS OF A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICES. UPON WRITTEN REQUEST TO THE COMPANY'S SECRETARY, A COPY OF SUCH AGREEMENT WILL BE PROVIDED WITHOUT CHARGE TO APPROPRIATELY INTERESTED PERSONS. APW LTD. SECOND TRANCHE WARRANT CERTIFICATE Dated as of December 13, 2001 Warrants to Purchase Common Shares ---------------------------------- APW Ltd., a Bermuda company (the "Company"), hereby certifies that, ------- for value received, _____________, or registered assigns (the "Holder"), is the ------ registered owner of ____________ Warrants (as adjusted from time to time as provided herein, the "Warrants"), each of which will entitle the registered -------- owner thereof to purchase one share, as adjusted from time to time as provided herein (each such share being a "Warrant Share" and all such shares being the ------------- "Warrant Shares"), of the common shares, par value $0.01 per share, of the -------------- Company, including the related preferred stock purchase rights associated with each of the common shares (the "Common Shares"), at the exercise price of ------------- U.S.$0.01 per share (as adjusted from time to time as provided herein, the "Exercise Price") during the period (the "Exercise Period") from and after -------------- --------------- October 1, 2002 (subject to acceleration as provided in Section 3(f)) (such ------------- date, the "Commencement Date") until May 15, 2006, all subject to the following ----------------- terms and conditions. Certain capitalized terms are defined in Section 11 ---------- hereof. 1 SECTION 1. Registration. The Company shall register each Warrant upon ------------ records to be maintained by the Company for that purpose in the name of the record holder of such Warrant from time to time. The Company may deem and treat the registered holder of each Warrant as the absolute owner thereof for the purpose of any exercise thereof, any distribution to the holder thereof and for all other purposes. SECTION 2. Transfers and Exchanges of Warrants and Warrant Shares. ------------------------------------------------------ (a) Registration of Transfers and Exchanges. The Company shall register the --------------------------------------- transfer of any Warrants upon records to be maintained by the Company for that purpose upon surrender of this Warrant Certificate, with the Form of Assignment attached hereto appropriately completed and duly signed, to the Company at the office specified in or pursuant to Section 3(c). Upon any such registration of ------------ transfer and compliance with such terms of transfer, a new Warrant Certificate, in substantially the form of this Warrant Certificate, evidencing the Warrants so transferred shall be issued to the transferee and a new Warrant Certificate, in similar form, evidencing the remaining Warrants not so transferred, if any, shall be issued to the then registered holder thereof. (b) Warrants Exchangeable for Different Denominations. This Warrant ------------------------------------------------- Certificate is exchangeable, upon the surrender hereof by the holder hereof at the office of the Company specified in or pursuant to Section 3(c), for new ------------ Warrant Certificates, in substantially the form of this Warrant Certificate, evidencing in the aggregate the right to purchase the number of Warrant Shares which may then be purchased hereunder, each of such new Warrant Certificates to be dated the date of such exchange and to represent the right to purchase such number of Warrant Shares as shall be designated by said holder hereof at the time of such surrender. SECTION 3. Duration and Exercise of Warrants. --------------------------------- (a) Warrants shall be exercisable by the registered holder thereof on any business day during the Exercise Period. (b) Subject to the provisions of this Warrant Certificate, including adjustments to the number of Warrant Shares issuable on the exercise of each Warrant and to the Exercise Price pursuant to Section 7, the holder of each --------- Warrant during the Exercise Period shall have the right to purchase from the Company (and the Company shall be obligated to issue and sell to such holder of a Warrant) at the Exercise Price one fully paid Warrant Share which is non-assessable. (c) Subject to Sections 4, 8 and 10, upon surrender of this Warrant ---------- - -- Certificate, with the Form of Election to Purchase attached hereto duly filled in and signed, to the Company at its office at N. 22 West 23685 Ridgeview Parkway West, Waukesha, WI 53188-1013, Attention: Chief Financial Officer, with a copy to Quarles & Brady LLP, 411 East Wisconsin Avenue, Milwaukee, WI 53202-4497, Attn: Anthony W. Asmuth, or at such other address as the Company may specify in writing to the then registered holder of the Warrants, and upon either (i) payment of the Exercise Price multiplied by the number of Warrant Shares then issuable upon exercise of the Warrants being exercised in lawful money of the United States of America or (ii) notice by the registered Holder of this Warrant Certificate of its election to exercise the Warrants evidenced by this Warrant Certificate on a cashless basis in the manner described in subsection (d) of this Section 3, all as specified by the Holder of this Warrant - -------------- --------- Certificate in the Form of Election to Purchase, the Company shall promptly issue and cause to be delivered to or upon the written order of the registered Holder of such Warrants, and in such name or names as such 2 registered Holder may designate, one or more certificates for the Warrant Shares issued upon such exercise of such Warrants. Any Person so designated to be named therein shall be deemed to have become Holder of record of such Warrant Shares as of the Date of Exercise of such Warrants. The "Date of Exercise" of any Warrant means the date on which the Company ---------------- shall have received (i) this Warrant Certificate, with the Form of Election to Purchase attached hereto appropriately completed and duly signed, and (ii) unless the Holder of this Warrant Certificate makes the election described in subsection (d) of this Section 3, payment of the Exercise Price for such - -------------- --------- Warrant. (d) In lieu of paying the Exercise Price upon exercise of the Warrants, the Holder of this Warrant Certificate may elect to receive a number of Warrant Shares whose aggregate Market Price as of the Date of Exercise is equal to the fair value of this Warrant Certificate (or the portion hereof evidencing the number of Warrants then being exercised) on such date, in which event the Company shall issue to the Holder of this Warrant Certificate, upon receipt of notice of such election, a number of Warrant Shares equal to (i) the number of Warrant Shares that would otherwise be issuable upon payment of the Exercise Price of the Warrants then being exercised minus (ii) the number of Common Shares having an aggregate Market Price equal to the product obtained by multiplying the Exercise Price by the number of Warrant Shares otherwise issuable upon payment of the Exercise Price of the Warrants then being exercised. (e) The Warrants evidenced by this Warrant Certificate shall be exercisable, either as an entirety or, from time to time, for part only of the number of Warrants evidenced by this Warrant Certificate. If less than all of the Warrants evidenced by this Warrant Certificate are exercised at any time, the Company shall issue, at its expense, a new Warrant Certificate, in substantially the form of this Warrant Certificate, for the remaining number of Warrants evidenced by this Warrant Certificate. (f) Subject to the terms of Section 7(j), the beginning of the Exercise ------------ Period shall be accelerated to permit the Holder of this Warrant Certificate to exercise this Warrant immediately (i) prior to the consummation of an Organic Change (as defined in Section 7(d)); (ii) upon the occurrence of an event which ------------- with the passage of time would result in the occurrence of a Separation Date (as defined in the Company Rights Plan) under the Company Rights Plan (as defined hereunder) or (iii) subsequent to a Refinancing Event. A "Refinancing Event " ----------------- shall be deemed to have occurred when the Company refinances or repays all the Obligations (as defined in the Credit Agreement) under the Credit Agreement such that the Termination Date (as defined in the Credit Agreement) shall have occurred under the Credit Agreement. No Holder shall be required to provide any representation (other than as to its title to this Warrant or the Warrant Shares), covenants or indemnification in connection with an Organic Change, a Separation Date or a Refinancing Event, provided, however that a Holder may be -------- ------- required to complete a customary letter of transmittal or other comparable document which is sent to all other public shareholders of the Company. If a Warrant is exercised on or prior to July 31, 2002 pursuant to an acceleration under subsection 3(f)(ii), any Holder who exercises such Warrant must either (x) ------------------- agree not to transfer 100% of the Warrant Shares issuable to such Holder upon such exercise to a non-Affiliate prior to October 1, 2002 or (y) agree to repay to the Company, in the event that a warrant reduction pursuant to Section 10 of the Warrant and Registration Rights Agreement occurs, all of the net proceeds, without interest, which such Holder received in connection with 3 such transfer. If a Warrant is exercised after July 31, 2002 and prior to October 1, 2002 pursuant to an acceleration under subsection 3(f)(ii), any ------------------- Holder who exercises such Warrant must either (x) agree not to transfer 49.5% of the Warrant Shares issuable to such Holder upon such exercise to a non-Affiliate prior to October 1, 2002 or (y) agree to repay to the Company, in the event that a warrant reduction pursuant to Section 10 of the Warrant and Registration Rights Agreement occurs, 49.5% of the net proceeds, without interest, which such Holder received in connection with such transfer. SECTION 4. Payment of Taxes. Subject to applicable law, the Company will ---------------- pay all transfer and stock issuance taxes attributable to the issuance of the Warrants and the Warrant Shares; provided, however, that the Company shall not -------- ------- be required to pay any tax in respect of the transfer of Warrants. SECTION 5. Mutilated or Missing Warrant Certificate. If this Warrant ---------------------------------------- Certificate shall be mutilated, lost, stolen or destroyed, the Company will, upon request by the registered Holder of this Warrant Certificate, issue, in exchange for and upon cancellation of the mutilated Warrant Certificate, or in substitution for the lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate, in substantially the form of this Warrant Certificate, of like tenor and representing the equivalent number of Warrants, but, in the case of loss, theft or destruction, only upon receipt of evidence satisfactory to the Company of such loss, theft or destruction of this Warrant Certificate and, if requested by the Company, a written agreement of indemnity from the Holder satisfactory to the Company or a lost certificate bond. SECTION 6. Reservation, Listing and Issuance of Warrant Shares. --------------------------------------------------- (a) The Company will at all times have authorized, and reserve and keep available, free from preemptive rights, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon the exercise of the Warrants, the number of shares of Warrant Shares issuable upon exercise of the Warrants. (b) Before taking any action which could cause an adjustment pursuant to Section 7 reducing the Exercise Price below the then par value (if any) of the - --------- Warrant Shares, the Company will take any corporate action which may be necessary in order that the Company may validly and legally issue at the Exercise Price as so adjusted Warrant Shares that are fully paid and non-assessable. (c) The Company covenants that all Warrant Shares will, upon issuance in accordance with the terms of this Warrant Certificate, be (i) duly authorized, fully paid and non-assessable, and (ii) free from all taxes with respect to the issuance thereof and from all adverse claims, liens, charges and security interests created by the Company. SECTION 7. Adjustments of Price and Number of Warrant Shares. ------------------------------------------------- (a) Adjustment of Number of Warrant Shares Issuable. Upon each adjustment ----------------------------------------------- of the Exercise Price pursuant to this Section 7, the Holder of a Warrant shall --------- be entitled to purchase, at the Exercise Price in effect after such adjustment, a number of Warrant Shares equal to the amount obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Sha res issuable upon exercise of such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. 4 (b) Subdivision or Combination of Stock. If the Company shall at any time ----------------------------------- subdivide (whether by stock split, stock dividend, recapitalization or otherwise) the outstanding Common Shares into a greater number of shares or pay a dividend or make a distribution to holders of Common Shares in the form of Common Shares, the Exercise Price in effect immediately prior to such subdivision, payment or distribution shall be proportionately reduced; conversely, if the outstanding Common Shares shall be combined into a smaller number of shares (whether by reverse Shares split or otherwise), the Exercise Price in effect immediately prior to such combination shall be proportionately increased. (c) Dividends and Rights Offerings. ------------------------------ (i) If the Company shall pay a dividend or distribution (including, without limitation, a distribution in the form of securities of the Company) upon the Common Shares, regardless of whether the Warrants are otherwise then exercisable, the Company shall pay to the holder of this Warrant Certificate, in respect of each Warrant Share issuable upon exercise of the Warrants evidenced hereby, an amount equal, in the case of a dividend in cash, to the amount per Common Share so payable or, in the case of any other dividend, to the fair value per Common Share of the property so payable, as determined, reasonably and in good faith, by the board of directors of the Company. (ii) If the Company shall effect an offering of Common Shares or other stock pro rata among its stockholders or members, each Holder shall be entitled, at such Holder's option, regardless of whether the Warrants are otherwise then exercisable, to elect to participate in each and every such offering as though its Warrants had been exercised and such Holder were, at the time of any such rights offering, then a holder of that number of Common Shares to which such Holder is then entitled on the exercise of its Warrant. (d) Adjustments for Consolidation, Amalgamation, Merger, Sale of Assets, -------------------------------------------------------------------- Reorganization, etc. Subject to the terms of Section 7(j), if the Company (i) - ------------------- ------------ consolidates with, amalgamates with or merges into any other entity and is not the continuing or surviving corporation of such consolidation, amalgamation or merger, or (ii) permits any other entity to consolidate with, amalgamate with or merge into the Company and the Company is the continuing or surviving corporatio n but, in connection with such consolidation, amalgamation or merger, the Common Shares are changed into or exchanged for stock or other securities of any other corporation or cash or any other assets, or (iii) transfers all or substantially all of its properties and assets to any other entity, or (iv) effects a recapitalization, capital reorganization or reclassification of the capital stock of the Company in such a way that holders of Common Shares shall be entitled to receive stock, securities, cash or assets with respect to or in exchange for Common Shares (each of the transactions referred to in the foregoing clauses (i) through (iv) being an "Organic Change"), then, and in each ----------- ---- -------------- such case, proper provision shall be made in form and substance satisfactory to the Holders of Warrants and Warrant Shares representing 60% of the Warrant Shares issuable under the Warrant and Registration Agreement, excluding any Warrant Shares sold to the public pursuant to an effective registration statement or Rule 144 under the Securities Act, so that, upon the basis and upon the terms and in the manner provided in this subsection (d), the holder of this -------------- Warrant Certificate, upon the exercise of each Warrant at any time after the consummation of such Organic Change, shall be entitled to receive (at the aggregate Exercise Price in effect for all Warrant Shares issuable upon such exercise 5 immediately prior to such consummation as adjusted to the time of such transaction), in lieu of Common Shares issuable upon such exercise prior to such consummation, the stock and other securities, cash and assets to which such holder would have been entitled upon such consummation if such holder had so exercised such Warrant immediately prior thereto (subject to adjustments subsequent to such corporate action as nearly equivalent as possible to the adjustments provided for in this Section 7). --------- (e) Notice of Adjustment. Upon any adjustment of any Exercise Price, then -------------------- and in each such case the Company shall promptly deliver a notice to the registered holder of the Warrants, which notice shall state the Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of each Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. (f) Other Notices. In case at any time: ------------- (i) the Company shall declare any cash dividend on its Common Shares; (ii) the Company shall pay any dividend payable in stock upon its Common Shares or make any distribution (other than regular cash dividends) to the holders of its Common Shares; (iii) the Company shall offer for subscription pro rata to the holders of its Common Shares any additional shares of stock of any class or other rights; (iv) the Company shall authorize the distribution to all holders of its Common Shares of evidence of its indebtedness or assets (other than cash dividends or cash distributions payable out of earnings or earned surplus or dividends payable in Common Shares); (v) there shall be any Organic Change; (vi) there shall be a voluntary or involuntary dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, or winding up of the Company; (vii) there shall have occurred any event which would trigger a Separation Date under the Company Rights Plan; or (viii) the Company proposes to take any other action or an event occurs which would require an adjustment of the Exercise Price pursuant to subsection (g) of this Section 7; -------------- --------- then, in any one or more of said cases, the Company shall give written notice, addressed to the holder of this Warrant Certificate at the address of such holder as shown on the books of the Company, of (1) the date on which the books of the Company shall close or a record shall be taken for such dividend, distribution or subscription rights, or (2) the date (or, if not then known, a reasonable approximation thereof by the Company) on which such Organic Change or other action or event, as the case may be, shall take place (or, in the case of clauses (vi) and (vii) above, the date on which the relevant action or event - ------------ ----- took place). Such notice shall also specify 6 (or, if not then known, reasonably approximate) the date as of which the holders of Common Shares of record shall participate in such dividends, distribution or subscription rights, or shall be entitled to exchange their Common Shares for securities or other property deliverable upon such Organic Change, Separation Date, dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, winding up, or other action or event, as the case may be. Such written notice shall be given at least twenty (20) days prior to the action in question and not less than twenty (20) days prior to the record date or the date on which the Company's transfer books are closed in respect thereto; provided, -------- that no advance notice need be given of any event or action specified in clause ------ (vi) above, but the Company shall give notice of such event as promptly - ---- thereafter as practicable; and further provided, that the Company shall give ------- -------- immediate notice of any event or action specified in clause (vii) above. ------------ (g) Certain Events. If any event occurs of the type contemplated by the -------------- provisions of this Section 7 but not expressly provided for by such provisions --------- (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company shall appoint, at its sole expense, a firm of independent certified public accountants (which may be the regular auditors of the Company) of recognized national standing, which shall give their opinion upon the adjustment, if any, on a basis consistent with the basic intent and principles established in the other provisions of this Section 7, necessary to preserve, without dilution, the --------- exercise rights of the registered holder of this Warrant Certificate. Upon receipt of such opinion, the Company shall forthwith make the adjustments described therein. (h) Certain Exceptions to Antidilution Protection. Notwithstanding anything --------------------------------------------- to the contrary in this Section 7, there shall be no adjustment to the Exercise --------- Price or to the number of Warrant Shares issuable upon exercise hereof: (i) in connection with the sale or issuance of the Warrant Certificates for an initial aggregate of 3,455,610 Common Shares issued to the Lenders (or their Affiliates) under the Credit Agreement and warrant certificates for an initial aggregate of 584,597 Common Shares issued to the UK Banks under the UK Credit Facilities on the Original Issuance Date and all warrants issued upon the partial exercise, transfer or division of, or in substitution for, any such warrants, or any adjustment to the number of shares issuable pursuant thereto in accordance with the terms of any thereof; (ii) the issuance of any rights under the Company Rights Plan; or (iii) an exercise of options outstanding under the Company's stock plans on the Original Issuance Date, which options are listed on Schedule -------- 3(d) to the Warrant and Registration Rights Agreement. - ---- (i) Other Securities. If at any time, as a result of an adjustment made ---------------- pursuant to this Section 7, any holder of Warrants shall become entitled to --------- purchase any securities of the Company other than Common Shares, the number or amount of such other securities so purchasable and the consideration for such securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained in this Section 7 hereof. - --------- (j) Reduction pursuant to Warrant and Registration Rights Agreement. --------------------------------------------------------------- Notwithstanding anything to the contrary in this Section 7, the number of --------- Warrant Shares issuable upon exercise of the Warrants is also subject to immediate reduction pursuant to Section 10 of the Warrant and Registration Rights Agreement. 7 (k) No Doubling. No single event shall result in an adjustment being ----------- effected more than once, but a similar subsequent event will result in such adjustments. SECTION 8. No Stock Rights. No holder of this Warrant Certificate, as --------------- such, shall be entitled to vote or be deemed the holder of Common Shares or any other securities of the Company which may at any time be issuable on the exercise hereof, nor shall anything contained herein be construed to confer upon the Holder of this Warrant Certificate, as such, the rights of a stockholder of the Company or the right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or give or withhold consent to any corporate action or to receive notice of meetings or other actions affecting stockholders (except as provided herein), or to receive dividends (except as provided herein) or subscription rights or otherwise, until the Date of Exercise of the Warrants shall have occurred. SECTION 9. Fractional Shares. The Company shall not be required to issue ----------------- fractions of Warrant Shares upon exercise of the Warrants or to distribute certificates which evidence fractional Warrant Shares. As to any fractional share of Common Shares which the Holder would otherwise be entitled to subscribe for from the Company upon such exercise, the Company shall round such fraction up to the next whole Warrant Share and shall issue such rounded up Warrant Share and distribute certificates for such rounded up Warrant Share. SECTION 10. No Registration under Securities Act. Neither the Warrants nor ------------------------------------ the Warrant Shares have been registered under the Securities Act. The Holder of this Warrant Certificate, by acceptance hereof, represents that it is acquiring the Warrants to be issued to it for its own account and not with a view to the distribution thereof, and agrees not to sell, transfer, pledge or hypothecate any Warrants or any Warrant Shares unless a registration statement is effective for such Warrants or Warrant Shares under the Securities Act, unless the sale is permitted by Rule 144 pursuant to the Securities Act or in the opinion of such holder's counsel (a copy of which opinion shall be delivered to the Company) such transaction is exempt from the registration requirements of the Securities Act; provided that Warrants and Warrant Shares issued to such Holder may be -------- transferred to any Designated Affiliate of such Holder, without any such registration (to the extent permitted by law) or opinion, subject to the foregoing restriction on any further sale, transfer, pledge or hypothecation by such Designated Affiliate. SECTION 11. Certain Definitions. The following terms have the meanings set ------------------- forth below: "Affiliate" of any Person means any other Person directly or indirectly --------- controlling, controlled by or under direct or indirect common control with such Person. "Commencement Date" is defined in the first paragraph hereof. ----------------- "Common Shares" are defined in the first paragraph hereof. ------------- "Company" is defined in the first paragraph hereof. ------- "Company Rights Plan" means the Rights Agreement, dated as of July 17, ------------------- 2000, between the Company and Firstar Bank N.A., as Rights Agent. "Credit Agreement" means the Amended and Restated Multi-Currency Credit ---------------- Agreement dated as of May 15, 2001, among the Company, certain lenders and Bank One NA, as 8 syndication agent, Chase Manhattan Bank, as documentation agent, and Bank of America, National Association, as administrative agent, as amended, supplemented or otherwise modified from time to time. "Date of Exercise" is defined in Section 3(c). ---------------- ------------ "Designated Affiliate" has the meaning ascribed to it in the Warrant and -------------------- Registration Rights Agreement. "Exercise Period" is defined in the first paragraph hereof. --------------- "Exercise Price" is defined in the first paragraph hereof. -------------- "Holder" is defined in the first paragraph hereof. ------ "Market Price" shall mean the average of the daily closing prices per ------------ Common Share for the ten (10) consecutive trading days immediately preceding the day as of which "Market Price" is being determined (exclusive of "ex-dividend" ------------ and similar dates). The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the principal national securities exchange on which the shares are listed or admitted to trading, or if the shares are not so listed or admitted to trading, on the National Market System of NASDAQ or, if prices for the shares are not quoted on such National Market System, the average of the highest reported bid and lowest reported asked prices as furnished by the National Association of Securities Dealers, Inc. through NASDAQ or through a similar organization if NASDAQ is no longer reporting such information. If Common Shares are not listed or admitted to trading on any exchange or quoted through NASDAQ or any similar organization, the "Market Price" shall be deemed to be the higher of (x) the book value of a ------------ Common Share as determined by any firm of independent certified public accountants of recognized national standing, selected by the board of directors of the Company, as at the last day of any month ending within sixty (60) days preceding the date as of which the determination is to be made and (y) the fair value thereof determined in good faith by a nationally recognized independent investment banking firm selected by the Company and acceptable to the holders of a majority of the Warrants as of a date which is within thirty (30) days of the date as of which the determination is to be made (the reasonable fees and expenses of such independent certified public accountants and independent investment banking firm to be paid by the Company); provided, however, that in -------- ------- the case of any determination of Market Price pursuant to this sentence, the Market Price shall not be less than the amount of the consideration per share received by the Company in respect of the most recent sale, transfer or other issuance of Common Shares by the Company (othe r than as a result of the exercise of any option or warrant or the conversion of any stock or securities convertible into or exchangeable for Common Shares) in an arms' length transaction to an unaffiliated third party within the 90-day period immediately preceding the date as to which the determination is to be made. "Organic Change" is defined in Section 7(d). -------------- ----------- "Original Issuance Date" means December 13, 2001. ---------------------- 9 "Person" means an individual, a corporation, a partnership, an association, ------ a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Refinancing Event" is defined in Section 3(f). ----------------- ------------ "UK Banks" means the Royal Bank of Scotland and National Westminster Bank -------- PLC. "UK Credit Facilities" means the credit facilities dated as of May 15, 2001 -------------------- among certain of the Company's subsidiaries and the UK Banks, as amended, supplemented or otherwise modified from time to time. "Securities Act" means the Securities Act of 1933, as amended. -------------- "Warrant" is defined in the first paragraph hereof. ------- "Warrant and Registration Rights Agreement" means the Warrant and ----------------------------------------- Registration Rights Agreement dated as of May 15, 2001 among the Company and certain holders of its securities executed pursuant to the Credit Agreement, as amended, supplemented or otherwise modified from time to time. "Warrant Share" is defined in the first paragraph hereof. ------------- SECTION 12. Notices. All notices, requests, demands and other ------- communications relating to this Warrant Certificate shall be in writing, including by facsimile, addressed (a) if to the registered owner hereof, to it at the address furnished by the registered owner to the Company, and (b) if to the Company, to it at N. 22 West 23685 Ridgeview Parkway West, Waukesha, WI 53188-1013, facsimile no.: (262) 523-7586, Attention: Chief Financial Officer, with a copy to Quarles & Brady LLP, 411 East Wisconsin Avenue, Milwaukee, WI 53202-4497, facsimile no: (414)271-3552, Attn: Anthony W. Asmuth, or to such other address as any party shall notify the other party in writing, and shall be effective, in the case of written notice by mail, five days after placement into the mails (first class, postage prepaid, mailed within the United States); in the case of notice by facsimile, on the same day as receipt is confirmed; and in the case of notice by an internationally recognized mail or courier service on the next business day after having been sent, unless such service specifies that it will be providing second business day service, in which case on the second business day after having been sent. SECTION 13. Binding Effect. This Warrant Certificate shall be binding upon -------------- and inure to the sole and exclusive benefit of the Company, its successors and assigns, the registered Holder or Holders from time to time of the Warrants and the Warrant Shares. SECTION 14. Governing Law. This Warrant Certificate shall be construed in ------------- accordance with and governed by the internal laws of the State of Illinois. 10 IN WITNESS WHEREOF, the Company has caused this Second Tranche Warrant Certificate to be executed by its officer thereunto duly authorized as of the date hereof. APW LTD. By ------------------------------------ Title: 11 FORM OF ELECTION TO PURCHASE (To be executed by the holder of Warrants if such holder desires to exercise Warrants evidenced by the foregoing Warrant Certificate) To APW Ltd. The undersigned hereby irrevocably elects to exercise ______________ Warrants evidenced by the foregoing Warrant Certificate for, and to [purchase thereunder, ___________, Common Shares issuable upon exercise of said Warrants and delivery of $______ (in cash as provided for in the foregoing Warrant Certificate) and any applicable taxes payable by the undersigned pursuant to such Warrant Certificate.][receive, in accordance with Section 3(d) of the Warrant Certificate, ____ Common Shares issuable upon exercise of said Warrants and delivery of any applicable taxes payable by the undersigned pursuant to such Warrant Certificate]. The undersigned requests that certificates for such shares be issued in the name of PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER __________________________________ _________________________________ (Please print name and address) __________________________________ ______________________________________________________________________________ If said number of Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so exercised be issued in the name of and delivered to ______________________________________________________________________________ (Please print name and address) ______________________________________________________________________________ ______________________________________________________________________________ Dated:___________, ______ Name of holder of Warrant (Print): ____________ (By:) _________________________________ (Title:) 12 FORM OF ASSIGNMENT FOR VALUE RECEIVED, _______________________ hereby sells, assigns and transfers to each assignee set forth below all of the rights of the undersigned in and to the number of Warrants (as defined in and evidenced by the foregoing Warrant Certificate) set opposite the name of such assignee below and in and to the foregoing Warrant Certificate with respect to said Warrants and the Common Shares issuable upon exercise of said Warrants: Name of Assignee Address Number of Warrants - ---------------- ------- ------------------ If the total of said Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so assigned be issued in the name of and delivered to the undersigned. Name of holder of Warrant (Print): __________ 13 EX-4.4 6 dex44.txt WARRANT REGISTRATION RIGHTS AGREEMENT (U.S. BANKS) Exhibit 4.4 FIRST AMENDMENT TO WARRANT AND REGISTRATION RIGHTS AGREEMENT This First Amendment, dated December 13, 2001 (the "First Amendment"), is --------------- by and between APW LTD., a Bermuda company (the "Company") and The Royal Bank of ------- Scotland, PLC (the "Investors") which amends that certain Warrant and --------- Registration Rights Agreement dated as of May 15, 2001 by and among the Company and the Investors (the "Agreement"): --------- NOW THEREFORE, in consideration of the foregoing and other consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. Certain Definitions. Section 1 is hereby amended as follows: ------------------- (a) The following new definitions are added to Section 1 of the Agreement in appropriate alphabetic order: (i) "Amendment Number One to First Tranche Warrant Certificate" --------------------------------------------------------- shall mean the amendment to the First Tranche Warrant Certificate evidenced by the amendment in form of Exhibit C hereto. (ii) "First Tranche Warrant" shall mean those Warrants issued for an --------------------- initial aggregate of 298,492 Warrant Shares by the Company on May 15, 2001, as amended by Amendment Number One to First Tranche Warrant Certificate. (iii) "First Tranche Warrant Certificate" shall mean the Warrant --------------------------------- Certificate dated May 15, 2001 as amended by Amendment Number One to First Tranche Warrant Certificate (iv) "Second Effective Date" shall mean the date the Second --------------------- Amendment to the Credit Facilities becomes effective. (v) "Second Tranche Warrant" shall mean those Warrants issued for ---------------------- an initial aggregate of 584,597 Warrant Shares by the Company on the date hereof pursuant to the Second Tranche Warrant Certificates. (vi) "Second Tranche Warrant Certificate" shall mean the certificate ---------------------------------- evidencing the issuance of the Second Tranche Warrants in the form of Exhibit D hereto. (b) The following definitions shall be amended in their entirety to read as follows: (i) "Warrants" shall mean the aggregate of the First Tranche Warrants and, unless otherwise cancelled in accordance with Section 10(b) of this Agreement, the Second Tranche Warrants. (ii) "Warrant Certificates" shall mean the First Tranche Warrant -------------------- Certificates and the Second Tranche Warrant Certificates. (iii) "Warrant Shares" shall mean the aggregate of all Warrant Shares -------------- as defined in the First Tranche Warrant Certificates and the Second Tranche Warrant Certificates. 2. Issuance of Warrants. Section 2 of the Agreement is amended such that the --------------------- current language shall become Section 2(a) and the following language shall be added as Sections 2(b) and Section 2(c): "(b) On the Second Effective Date, the Company and the Holders of the First Trance Warrant Certificates shall amend the First Tranche Warrant Certificates by issuing and accepting the Amendment Number One to the First Tranche Warrant Certificates. "(c) On the Second Effective Date, in consideration for the Lenders entering into the Second Amendment to the Credit Facilities, the Company shall issue to each Lender a Second Tranche Warrant Certificate representing Warrants to purchase the number of Common Shares to which such Lender is entitled as set forth on Exhibit D hereto (initially totaling 584,597 in the aggregate)." 3. Representations, Warranties and Covenants of the Company. The Company -------------------------------------------------------- hereby makes, as of the Second Effective Date, each of the representations, warranties and covenants set forth in Section 3, except for the following language found in Section 3(d)(i), which is hereby specifically amended as of the Second Effective Date: "As of the Second Effective Date, the authorized capital stock of the Company consists solely of 250,000,000 Common Shares of which (assuming no Lender or Designated Affiliate exercises any Warrant) 40,810,170 shares of Common Shares are issued and outstanding and 50,000,000 preferred shares, par value $0.01 per share, of which 1,000,000 have been designated as Series A Junior Participating Preferred Stock, par value $0.01 per share, issuable in accordance Company Rights Plan, of which no shares are issued and outstanding. All of such outstanding capital stock is validly issued, fully paid and nonassessable and has been issued in compliance with all applicable laws. As of the Second Effective Date, there are options, warrants and convertible securities exercisable or convertible into 7,026,282 Common Shares." 4. Compliance with Securities Laws; Legends. Section 4 is hereby amended as ---------------------------------------- follows. (a) Section 4(d)(iii) is hereby amended by deleting the phrase "May 15, 2001" and replacing it with the phrase "the Original Issuance Date (as defined in the applicable Warrant Certificate)". (b) Section 4(d)(iv) is hereby amended in its entirety as follows: "(iv) Except as provided in Sections 5(j) and 4(d)(ii), each ------------- -------- subsequently issued certificate for any Warrants or Warrant Shares shall be imprinted with a legend substantially in the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, -------------- PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND AN OPINION OF COUNSEL WITH RESPECT TO SUCH EXEMPTION IS PROVIDED TO THE EXTENT REQUIRED IN A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND PROVISIONS OF A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICES. UPON WRITTEN REQUEST TO THE COMPANY'S SECRETARY, A COPY OF SUCH AGREEMENT WILL BE PROVIDED WITHOUT CHARGE TO APPROPRIATELY INTERESTED PERSONS." 5. Warrant Reduction. Section 10 is hereby amended in its entirety to read as ----------------- follows: "(a) No Reduction in First Tranche. There shall be no reduction of the ----------------------------- Warrant Shares issuable under the First Tranche Warrants. (b) Second Tranche Full Warrant Reduction. All of Warrant Shares ------------------------------------- issuable under the Second Tranche Warrants shall be cancelled if the Administrative Agent under that Amended and Restated Multi-Currency Agreement dated as of May 15, 2001 by and among the Company and the Lenders thereto, Bank One NA as syndication agent, Chase Manhattan Bank, as documentation agent and Bank of America as Administrative Agent (the "US Credit Agreement") and the agent under the Credit Facilities certify, by July 31, 2002, that (i) all outstanding amounts due under the Credit Facilities have been repaid in full in cash, by wire transfer or certified or cashier's check, (ii) all commitments have been terminated under the Credit Facilities, (iii) all credit extensions under the US Credit Agreement have been paid in full (or, in respect to contingent liabilities, fully collateralized in cash, by wire transfer or certified or cashier's check, and (iv) all commitments have been terminated under the US Credit Agreement. Such certification shall be filed with the Secretary of the Company by the close of business Bermuda time on July 31, 2002, with copies sent to all Second Tranche Holders as soon as practicable thereafter. Upon the receipt of such certification by the Secretary of the Company, each Second Tranche Warrant Certificate shall automatically be cancelled. Upon notification to the Second Tranche Holders that a full repayment has occurred and upon the filing of such certification, no further action is required to effect the reduction. (c) Second Tranche Partial Reduction. The number of Warrant Shares -------------------------------- issuable under the Second Tranche Warrants shall be reduced by 49.5% if the Administrative Agent under the US Credit Agreement and the agent under the K Credit Facilities certify, by September 30, 2002, , that (i) all outstanding amounts due under the Credit Facilities have been repaid in full in cash, by wire transfer or certified or cashier's check, (ii) all commitments have been terminated under the Credit Facilities, (iii) all credit extensions under the US Credit Agreement have been paid in full (or, in respect to contingent liabilities, fully collateralized in cash, by wire transfer or certified or cashier's check, and (iv) all commitments have been --- terminated under the US Credit Agreement. Such certification shall be filed with the Secretary of the Company by the close of business Bermuda time on September 30, 2002, with copies sent to all Second Tranche Holders as soon as practicable thereafter. Upon the receipt of such certification by the Secretary of the Company, each Second Tranche Warrant Certificate shall automatically represent 50.5% of the Warrants indicated on the first page of the Second Tranche Warrant Certificate (as adjusted from time to time as provided therein). Upon notification to the Second Tranche Holders that a reduction has occurred and upon the filing of such certification, no further action is required to effect the reduction. In the event a reduction is effected in accordance herewith, (x) upon the request of any Second Tranche Holder and the surrender of such Holder's Second Tranche Warrant Certificate, the Company shall prepare and deliver a new Second Tranche Warrant Certificate reflecting the reduced number of Warrants or (y) upon the request of the Company, each Holder shall surrender such Holder's Second Tranche Warrant Certificate and the Company shall prepare and deliver a new Second Tranche Warrant Certificate reflecting the reduced number of Warrants." 6. Miscellaneous. Section 11 is hereby amended as follows: (a) Section 11(c) is hereby amended in its entirety to read as follows: "Amendment; Notice. No supplement, modification, waiver or termination of this Agreement (including without limitation any amendment or modification of any defined term used herein which is defined in any other agreement or instrument referred to herein) shall be binding unless agreed to in writing by the Company and the holders of Warrants and Warrant Shares representing 60% of the Warrant Shares issuable hereunder, excluding any Warrant Shares sold to the public pursuant to an effective registration statement or Rule 144 under the Securities Act. Notwithstanding the foregoing, with respect to (i) any supplement, modification, waiver or termination which relates only to rights or obligations of the First Tranche Warrants, such supplement, modification, waiver or termination must be signed by the Holders of First Tranche Warrants and Warrant Shares representing 60% of the Warrant Shares issuable under the First Tranche Warrant Certificates, rather than the holders of Warrants and Warrant Shares representing 60% of all Warrant Shares issuable hereunder, excluding any Warrant Shares sold to the public pursuant to an effective registration statement or Rule 144 under the Securities Act, and (ii) any supplement, modification, waiver or termination which relates only to rights or obligations of the Second Tranche Warrants, such supplement, modification, waiver or termination must be signed by the Holders of Second Tranche Warrants and Warrant Shares representing 60% of the Warrant Shares issuable under the Second Tranche Warrant Certificates, rather than the holders of Warrants and Warrant Shares representing 60% of all Warrant Shares issuable hereunder, excluding any Warrant Shares sold to the public pursuant to an effective registration statement or Rule 144 under the Securities Act. In the event that less than 100% of the Holders of the relevant Warrants consent to a supplement, modification, waiver or termination, the Company shall promptly provide notice of the adoption of such supplement, modification, waiver or termination, to each non-consenting Holder at the Holder's address as it appears on the records of the Company." (b) Section 11(m) is amended in its entirety to read as follows: "Credit Agreement and Warrant Certificates. Nothing in this Agreement ----------------------------------------- or Exhibits A, C or D is intended to permit any action or event which is prohibited by the Credit Facilities or by the Warrant Certificates, as long as the Credit Facilities or the Warrant Certificates, respectively, remain in effect." 6. Schedule 3(d) is amended in its entirety as reflected on Schedule 3(d) attached hereto. 7. General. ------- (a) Confirmation of the Agreement. Except as amended hereby, the Agreement ----------------------------- shall remain in full force and effect and it hereby ratified and confirmed in all respects. (b) References to the Agreement. Each reference in the Agreement to "this --------------------------- Agreement", "hereunder" or "hereof", or words of like import, and each reference to the Agreement in any and all instruments or documents provided for in the Agreement or delivered or to be delivered thereunder or in connection therewith, shall, except where the context otherwise requires, be deemed a reference to the Agreement as amended hereby. (c) Defined Terms. Capitalized terms used herein which are not otherwise ------------- defined are used with the meanings ascribed to them in the Agreement. IN WITNESS WHEREOF, the undersigned have caused this First Amendment to be duly executed as of the date first above written. APW LTD. By: /s/ Michael Gasick -------------------------- Title: Treasurer -------------------- THE ROYAL BANK OF SCOTLAND PLC By: /s/ Ian Roberts ------------------------------ Title: Manager, Specialised Lending Services List of Schedules and Exhibits ------------------------------ Schedule 3(d): List of APW Ltd. Options Plan Exhibit C: Amendment Number One to First Tranche Warrant Certificates. Exhibit D: Second Tranche Warrant Certificate Schedule 3(d) List of APW Ltd. Options Plan
Amount Outstanding Number of Securities with a Name as of May 15, 2001* Below Warrant Exercise Price ---- ------------------ ---------------------------- APW Ltd. 2000 Stock Option Plan 3,565,120 42, 871 APW Ltd. 2001 Stock Option Plan 1,073,350 APW Ltd. Outside Director Stock Option Plan 24,000 APW Ltd. Deferred Stock Plan (For 4 562,447 562,447 participants) Amount Outstanding as of Number of Securities with a Name December __, 2001* Below Warrant Exercise Price ---- ------------------ --------------------------- APW Ltd. 2000 Stock Option Plan 4,609,827 APW Ltd. 2001 Stock Option Plan 1,837,600 APW Ltd. Outside Director Stock Option Plan 20,000 APW Ltd. Deferred Stock Plan (For 3 558,855 participants)
APW Ltd. also has an employee stock purchase plan allowing employees to purchase shares of Common Stock at a discount and on May 15, 2001 issued warrants for 2,069,831 shares of Common Stock to its lenders. Effective December 31, 2001 and in accordance with the Asset Purchase Agreement between APW Ltd. and Connell Limited Partnership, the Seller will likely return 754,717 shares of Common Stock to APW Ltd. * After consideration of cancellations and surrenders. EXHIBIT C THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND AN OPINION OF COUNSEL WITH RESPECT TO SUCH EXEMPTION IS PROVIDED TO THE EXTENT REQUIRED IN A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND PROVISIONS OF A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICES. UPON WRITTEN REQUEST TO THE COMPANY'S SECRETARY, A COPY OF SUCH AGREEMENT WILL BE PROVIDED WITHOUT CHARGE TO APPROPRIATELY INTERESTED PERSONS. APW LTD. FIRST AMENDMENT TO WARRANT CERTIFICATE Original Dated as of May 15, 2001 Amendment Dated as of December 13, 2001 APW Ltd., a Bermuda company (the "Company"), pursuant to the First ------- Amendment to Warrant and Registration Rights Agreement dated the date hereof, hereby amends the Warrant Certificate issued to The Royal Bank of Scotland, PLC, or registered assigns (the "Holder"), dated May 15, 2001 for _____________ ------ Warrants (as adjusted from time to time as provided herein), as follows: 1. Title. The Warrant Certificate amended hereby shall be deemed to be ----- called the "First Tranche Warrant Certificate" for purposes of the Warrant and Registration Rights Agreement. 2. Introductory Paragraph. The introductory paragraph of the Warrant ---------------------- Certificate is amended as follows: a. The Exercise Price shall be U.S.$1.98 per share (as adjusted from time to time as provided herein). 1 b. The Commencement Date shall be October 1, 2002 (subject to acceleration as provided in Section 3(f)). ------------- 3. Duration and Exercise of Warrants. Section 3(f) of the Warrant --------------------------------- Certificate is amended in its entirety to read as follows: "The beginning of the Exercise Period shall be accelerated to permit the Holder of this Warrant Certificate to exercise this Warrant immediately (i) prior to the consummation of an Organic Change (as defined in Section 7(d)); (ii) upon the occurrence of an event which ------------- with the passage of time would result in the occurrence of a Separation Date (as defined in the Company Rights Plan) under the Company Rights Plan (as defined hereunder) or (iii) subsequent to a Refinancing Event. A "Refinancing Event" shall be deemed to have ----------------- occurred when the Company refinances or repays all the Obligations (as defined in the Credit Agreement) under the Credit Agreement such that the Termination Date (as defined in the Credit Agreement) shall have occurred under the Credit Agreement. No Holder shall be required to provide any representation (other than as to its title to this Warrant or the Warrant Shares), covenants or indemnification in connection with an Organic Change, a Separation Date or a Refinancing Event, provided, however that a Holder may be required to complete a -------- ------- customary letter of transmittal or other comparable document which is sent to all other public shareholders of the Company." 4. Adjustments of Price and Number of Warrant Shares. Section 7 of the ------------------------------------------------- Warrant Certificate is amended as follows: (a). Section 7(d) of the Warrant Certificate is revised to delete the words "Subject to the terms of Section 7(j)". ------------ (b) Section 7(h) of the Warrant Certificate is revised in its entirety to read as follows: "Certain Exceptions to Antidilution Protection. Notwithstanding anything to the contrary in this Section 7, there shall be no adjustment to the Exercise Price or to the number of Warrant Shares issuable upon exercise hereof: (i) in connection with the sale or issuance of the Warrant Certificates for an initial aggregate of 1,771,349 Common Shares issued to the US Banks (or their Affiliates) under the US Credit Agreement and warrant certificates for an initial aggregate of 298,482 Common Shares issued to the Lender under the Credit Facilities on the Original Issuance Date and all warrants issued upon the partial exercise, transfer or division of, or in substitution for, any such warrants, or any adjustment to the number of shares issuable pursuant thereto in accordance with the terms of any thereof; (ii) the issuance of any rights under the Company Rights Plan; (iii) an exercise of options outstanding under the Company's stock plans on the Original Issuance Date, which options are listed on Schedule 3(d) to the 2 Warrant and Registration Rights Agreement or (iv) the reduction in the Exercise Price of the Warrant Shares issuable upon exercise hereof pursuant to the First Amendment to this First Tranche Warrant Certificate dated as of December 13, 2001." (c) Section 7(j) of the Warrant Certificate is amended in its entirety to read as follows: "Reserved." 5. Notice Address. The notice address for the Company found in Sections 3(c) and 12 shall henceforth be N. 22 West 23685 Ridgeview Parkway West, Waukesha, WI 53188-1013. 6. General. ------- (a) Confirmation of the Warrant Certificate. Except as amended --------------------------------------- hereby, the Warrant Certificate shall remain in full force and effect and it hereby ratified and confirmed in all respects. (b) Effect of Amendment. Subsequent transfers or exercises of -------------------- the Warrant Certificate shall be transfers or exercises, as the case may be, of the Warrant Certificate, as amended. (c) References to the Warrant Certificate. Each reference in the ------------------------------------- Warrant Certificate to "this Warrant Certificate", "hereunder" or "hereof", or words of like import, and each reference to the Warrant Certificate in any and all instruments or documents provided for in the Warrant Certificate or delivered or to be delivered thereunder or in connection therewith, shall, except where the context otherwise requires, be deemed a reference to the Warrant Certificate as amended hereby. (d) Defined Terms. Capitalized terms used herein which are ------------- not otherwise defined are used with the meanings ascribed to them in the Warrant Certificate. IN WITNESS WHEREOF, the Company has caused this First Amendment to Warrant Certificate to be executed by its officer thereunto duly authorized as of the date hereof. APW LTD. By:_______________________ Title:____________________ 3 EXHIBIT D THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). -------------- SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND AN OPINION OF COUNSEL WITH RESPECT TO SUCH EXEMPTION IS PROVIDED TO THE EXTENT REQUIRED IN A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND PROVISIONS OF A CERTAIN WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF MAY 15, 2001, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, ENTERED INTO AMONG THE COMPANY AND CERTAIN HOLDERS OF SECURITIES OF THE COMPANY, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICES. UPON WRITTEN REQUEST TO THE COMPANY'S SECRETARY, A COPY OF SUCH AGREEMENT WILL BE PROVIDED WITHOUT CHARGE TO APPROPRIATELY INTERESTED PERSONS. APW LTD. SECOND TRANCHE WARRANT CERTIFICATE Dated as of December 13, 2001 Warrants to Purchase Common Shares ---------------------------------- APW Ltd., a Bermuda company (the "Company"), hereby certifies that, ------- for value received, The Royal Bank of Scotland, PLC, or registered assigns (the "Holder"), is the registered owner of 584,597 Warrants (as adjusted from time to ------ time as provided herein, the "Warrants"), each of which will entitle the -------- registered owner thereof to purchase one share, as adjusted from time to time as provided herein (each such share being a "Warrant Share" and all such shares ------------- being the "Warrant Shares"), of the common shares, par value $0.01 per share, of the Company, including the related preferred stock purchase rights associated with each of the common shares (the "Common Shares"), at the exercise price of ------------ U.S.$0.01 per share (as adjusted from time to time as provided herein, the "Exercise Price") during the period (the "Exercise Period") from and after -------------- --------------- October 1, 2002 (subject to acceleration as provided in Section 3(f)) (such ------------- date, the "Commencement Date") until May 15, 2006, all subject to the following ----------------- terms and conditions. Certain capitalized terms are defined in Section 11 ---------- hereof. SECTION 1. Registration. The Company shall register each Warrant upon ------------ records to be maintained by the Company for that purpose in the name of the record holder of such Warrant from time to time. The Company may deem and treat the registered holder of each Warrant as the absolute owner thereof for the purpose of any exercise thereof, any distribution to the holder thereof and for all other purposes. SECTION 2. Transfers and Exchanges of Warrants and Warrant Shares. ------------------------------------------------------ (a) Registration of Transfers and Exchanges. The Company shall register the --------------------------------------- transfer of any Warrants upon records to be maintained by the Company for that purpose upon surrender of this Warrant Certificate, with the Form of Assignment attached hereto appropriately completed and duly signed, to the Company at the office specified in or pursuant to Section 3(c). Upon any such registration of transfer and compliance with such terms of transfer, a new Warrant Certificate, in substantially the form of this Warrant Certificate, evidencing the Warrants so transferred shall be issued to the transferee and a new Warrant Certificate, in similar form, evidencing the remaining Warrants not so transferred, if any, shall be issued to the then registered holder thereof. (b) Warrants Exchangeable for Different Denominations. This Warrant ------------------------------------------------- Certificate is exchangeable, upon the surrender hereof by the holder hereof at the office of the Company specified in or pursuant to Section 3(c), for new ------------ Warrant Certificates, in substantially the form of this Warrant Certificate, evidencing in the aggregate the right to purchase the number of Warrant Shares which may then be purchased hereunder, each of such new Warrant Certificates to be dated the date of such exchange and to represent the right to purchase such number of Warrant Shares as shall be designated by said holder hereof at the time of such surrender. SECTION 3. Duration and Exercise of Warrants. --------------------------------- (a) Warrants shall be exercisable by the registered holder thereof on any business day during the Exercise Period. (b) Subject to the provisions of this Warrant Certificate, including adjustments to the number of Warrant Shares issuable on the exercise of each Warrant and to the Exercise Price pursuant to Section 7, the holder of each --------- Warrant during the Exercise Period shall have the right to purchase from the Company (and the Company shall be obligated to issue and sell to such holder of a Warrant) at the Exercise Price one fully paid Warrant Share which is non-assessable. (c) Subject to Sections 4, 8 and 10, upon surrender of this Warrant ------------- -- Certificate, with the Form of Election to Purchase attached hereto duly filled in and signed, to the Company at its office at N. 22 West 23685 Ridgeview Parkway West, Waukesha, WI 53188-1013, Attention: Chief Financial Officer, with a copy to Quarles & Brady LLP, 411 East Wisconsin Avenue, Milwaukee, WI 53202-4497, Attn: Anthony W. Asmuth, or at such other address as the Company may specify in writing to the then registered holder of the Warrants, and upon either (i) payment of the Exercise Price multiplied by the number of Warrant Shares then issuable upon exercise of the Warrants being exercised in lawful money of the United States of America or (ii) notice by the registered Holder of this Warrant Certificate of its election to exercise the Warrants evidenced by this Warrant Certificate on a cashless basis in the manner described in subsection (d) of this Section 3, all as specified by the Holder of this Warrant - ---------- - --------- Certificate in the Form of Election to Purchase, the Company shall promptly issue and cause to be delivered to or upon the written order of the registered Holder of such Warrants, and in such name or names as such registered Holder may designate, one or more certificates for the Warrant Shares issued upon such exercise of such Warrants. Any Person so designated to be named therein shall be deemed to have become Holder of record of such Warrant Shares as of the Date of Exercise of such Warrants. The "Date of Exercise" of any Warrant means the date on which the Company ---------------- shall have received (i) this Warrant Certificate, with the Form of Election to Purchase attached hereto appropriately completed and duly signed, and (ii) unless the Holder of this Warrant Certificate makes the election described in subsection (d) of this Section 3, payment of the Exercise Price for such - -------------- --------- Warrant. (d) In lieu of paying the Exercise Price upon exercise of the Warrants, the Holder of this Warrant Certificate may elect to receive a number of Warrant Shares whose aggregate Market Price as of the Date of Exercise is equal to the fair value of this Warrant Certificate (or the portion hereof evidencing the number of Warrants then being exercised) on such date, in which event the Company shall issue to the Holder of this Warrant Certificate, upon receipt of notice of such election, a number of Warrant Shares equal to (i) the number of Warrant Shares that would otherwise be issuable upon payment of the Exercise Price of the Warrants then being exercised minus (ii) the number of Common Shares having an aggregate Market Price equal to the product obtained by multiplying the Exercise Price by the number of Warrant Shares otherwise issuable upon payment of the Exercise Price of the Warrants then being exercised. (e) The Warrants evidenced by this Warrant Certificate shall be exercisable, either as an entirety or, from time to time, for part only of the number of Warrants evidenced by this Warrant Certificate. If less than all of the Warrants evidenced by this Warrant Certificate are exercised at any time, the Company shall issue, at its expense, a new Warrant Certificate, in substantially the form of this Warrant Certificate, for the remaining number of Warrants evidenced by this Warrant Certificate. (f) Subject to the terms of Section 7(j), the beginning of the Exercise ------------ Period shall be accelerated to permit the Holder of this Warrant Certificate to exercise this Warrant immediately (i) prior to the consummation of an Organic Change (as defined in Section 7(d)); (ii) upon the occurrence of an event which ------------ with the passage of time would result in the occurrence of a Separation Date (as defined in the Company Rights Plan) under the Company Rights Plan (as defined hereunder) or (iii) subsequent to a Refinancing Event. A "Refinancing Event" ----------------- shall be deemed to have occurred when the Company refinances or repays all the Obligations (as defined in the Credit Agreement) under the Credit Agreement such that the Termination Date (as defined in the Credit Agreement) shall have occurred under the Credit Agreement. No Holder shall be required to provide any representation (other than as to its title to this Warrant or the Warrant Shares), covenants or indemnification in connection with an Organic Change, a Separation Date or a Refinancing Event, provided, however that a Holder may be -------- ------- required to complete a customary letter of transmittal or other comparable document which is sent to all other public shareholders of the Company. If a Warrant is exercised on or prior to July 31, 2002 pursuant to an acceleration under subsection 3(f)(ii), any Holder who exercises such Warrant must either (x) ------------------- agree not to transfer 100% of the Warrant Shares issuable to such Holder upon such exercise to a non-Affiliate prior to October 1, 2002 or (y) agree to repay to the Company, in the event that a warrant reduction pursuant to Section 10 of the Warrant and Registration Rights Agreement occurs, all of the net proceeds, without interest, which such Holder received in connection with such transfer. If a Warrant is exercised after July 31, 2002 and prior to October 1, 2002 pursuant to an acceleration under subsection 3(f)(ii), any ------------------- Holder who exercises such Warrant must either (x) agree not to transfer 49.5% of the Warrant Shares issuable to such Holder upon such exercise to a non-Affiliate prior to October 1, 2002 or (y) agree to repay to the Company, in the event that a warrant reduction pursuant to Section 10 of the Warrant and Registration Rights Agreement occurs, 49.5% of the net proceeds, without interest, which such Holder received in connection with such transfer. SECTION 4. Payment of Taxes. Subject to applicable law, the Company will ---------------- pay all transfer and stock issuance taxes attributable to the issuance of the Warrants and the Warrant Shares; provided, however, that the Company shall not -------- ------- be required to pay any tax in respect of the transfer of Warrants. SECTION 5. Mutilated or Missing Warrant Certificate. If this Warrant ---------------------------------------- Certificate shall be mutilated, lost, stolen or destroyed, the Company will, upon request by the registered Holder of this Warrant Certificate, issue, in exchange for and upon cancellation of the mutilated Warrant Certificate, or in substitution for the lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate, in substantially the form of this Warrant Certificate, of like tenor and representing the equivalent number of Warrants, but, in the case of loss, theft or destruction, only upon receipt of evidence satisfactory to the Company of such loss, theft or destruction of this Warrant Certificate and, if requested by the Company, a written agreement of indemnity from the Holder satisfactory to the Company or a lost certificate bond. SECTION 6. Reservation, Listing and Issuance of Warrant Shares. --------------------------------------------------- (a) The Company will at all times have authorized, and reserve and keep available, free from preemptive rights, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon the exercise of the Warrants, the number of shares of Warrant Shares issuable upon exercise of the Warrants. (b) Before taking any action which could cause an adjustment pursuant to Section 7 reducing the Exercise Price below the then par value (if any) of the - --------- Warrant Shares, the Company will take any corporate action which may be necessary in order that the Company may validly and legally issue at the Exercise Price as so adjusted Warrant Shares that are fully paid and non-assessable. (c) The Company covenants that all Warrant Shares will, upon issuance in accordance with the terms of this Warrant Certificate, be (i) duly authorized, fully paid and non-assessable, and (ii) free from all taxes with respect to the issuance thereof and from all adverse claims, liens, charges and security interests created by the Company. SECTION 7. Adjustments of Price and Number of Warrant Shares. ------------------------------------------------- (a) Adjustment of Number of Warrant Shares Issuable. Upon each adjustment ----------------------------------------------- of the Exercise Price pursuant to this Section 7, the Holder of a Warrant shall --------- be entitled to purchase, at the Exercise Price in effect after such adjustment, a number of Warrant Shares equal to the amount obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. (b) Subdivision or Combination of Stock. If the Company shall at any time ----------------------------------- subdivide (whether by stock split, stock dividend, recapitalization or otherwise) the outstanding Common Shares into a greater number of shares or pay a dividend or make a distribution to holders of Common Shares in the form of Common Shares, the Exercise Price in effect immediately prior to such subdivision, payment or distribution shall be proportionately reduced; conversely, if the outstanding Common Shares shall be combined into a smaller number of shares (whether by reverse Shares split or otherwise), the Exercise Price in effect immediately prior to such combination shall be proportionately increased. (c) Dividends and Rights Offerings. ------------------------------ (i) If the Company shall pay a dividend or distribution (including, without limitation, a distribution in the form of securities of the Company) upon the Common Shares, regardless of whether the Warrants are otherwise then exercisable, the Company shall pay to the holder of this Warrant Certificate, in respect of each Warrant Share issuable upon exercise of the Warrants evidenced hereby, an amount equal, in the case of a dividend in cash, to the amount per Common Share so payable or, in the case of any other dividend, to the fair value per Common Share of the property so payable, as determined, reasonably and in good faith, by the board of directors of the Company. (ii) If the Company shall effect an offering of Common Shares or other stock pro rata among its stockholders or members, each Holder shall be entitled, at such Holder's option, regardless of whether the Warrants are otherwise then exercisable, to elect to participate in each and every such offering as though its Warrants had been exercised and such Holder were, at the time of any such rights offering, then a holder of that number of Common Shares to which such Holder is then entitled on the exercise of its Warrant. (d) Adjustments for Consolidation, Amalgamation, Merger, Sale of Assets, -------------------------------------------------------------------- Reorganization, etc. Subject to the terms of Section 7(j), if the Company (i) - ------------------- ------------ consolidates with, amalgamates with or merges into any other entity and is not the continuing or surviving corporation of such consolidation , amalgamation or merger, or (ii) permits any other entity to consolidate with, amalgamate with or merge into the Company and the Company is the continuing or surviving corporation but, in connection with such consolidation, amalgamation or merger, the Common Shares are changed into or exchanged for stock or other securities of any other corporation or cash or any other assets, or (iii) transfers all or substantially all of its properties and assets to any other entity, or (iv) effects a recapitalization, capital reorganization or reclassification of the capital stock of the Company in such a way that holders of Common Shares shall be entitled to receive stock, securities, cash or assets with respect to or in exchange for Common Shares (each of the transactions referred to in the foregoing clauses (i) through (iv) being an "Organic Change"), then, and in each ----------- ---- -------------- such case, proper provision shall be made in form and substance satisfactory to the Holders of Warrants and Warrant Shares representing 60% of the Warrant Shares issuable under the Warrant and Registration Agreement, excluding any Warrant Shares sold to the public pursuant to an effective registration statement or Rule 144 under the Securities Act, so that, upon the basis and upon the terms and in the manner provided in this subsection (d), the holder of this -------------- Warrant Certificate, upon the exercise of each Warrant at any time after the consummation of such Organic Change, shall be entitled to receive (at the aggregate Exercise Price in effect for all Warrant Shares issuable upon such exercise immediately prior to such consummation as adjusted to the time of such transaction), in lieu of Common Shares issuable upon such exercise prior to such consummation, the stock and other securities, cash and assets to which such holder would have been entitled upon such consummation if such holder had so exercised such Warrant immediately prior thereto (subject to adjustments subsequent to such corporate action as nearly equivalent as possible to the adjustments provided for in this Section 7). --------- (e) Notice of Adjustment. Upon any adjustment of any Exercise Price, then -------------------- and in each such case the Company shall promptly deliver a notice to the registered holder of the Warrants, which notice shall state the Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of each Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. (f) Other Notices. In case at any time: ------------- (i) the Company shall declare any cash dividend on its Common Shares; (ii) the Company shall pay any dividend payable in stock upon its Common Shares or make any distribution (other than regular cash dividends) to the holders of its Common Shares; (iii) the Company shall offer for subscription pro rata to the holders of its Common Shares any additional shares of stock of any class or other rights; (iv) the Company shall authorize the distribution to all holders of its Common Shares of evidence of its indebtedness or assets (other than cash dividends or cash distributions payable out of earnings or earned surplus or dividends payable in Common Shares); (v) there shall be any Organic Change; (vi) there shall be a voluntary or involuntary dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, or winding up of the Company; (vii) there shall have occurred any event which would trigger a Separation Date under the Company Rights Plan; or (viii) the Company proposes to take any other action or an event occurs which would require an adjustment of the Exercise Price pursuant to subsection (g) of this Section 7; -------------- --------- then, in any one or more of said cases, the Company shall give written notice, addressed to the holder of this Warrant Certificate at the address of such holder as shown on the books of the Company, of (1) the date on which the books of the Company shall close or a record shall be taken for such dividend, distribution or subscription rights, or (2) the date (or, if not then known, a reasonable approximation thereof by the Company) on which such Organic Change or other action or event, as the case may be, shall take place (or, in the case of clauses (vi) and (vii) above, the date on which the relevant action or event - ------------ ----- took place). Such notice shall also specify (or, if not then known, reasonably approximate) the date as of which the holders of Common Shares of record shall participate in such dividends, distribution or subscription rights, or shall be entitled to exchange their Common Shares for securities or other property deliverable upon such Organic Change, Separation Date, dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, winding up, or other action or event, as the case may be. Such written notice shall be given at least twenty (20) days prior to the action in question and not less than twenty (20) days prior to the record date or the date on which the Company's transfer books are closed in respect thereto; provided, -------- that no advance notice need be given of any event or action specified in clause ------ (vi) above, but the Company shall give notice of such event as promptly - ---- thereafter as practicable; and further provided, that the Company shall give ------- -------- immediate notice of any event or action specified in clause (vii) above. ------------ (g) Certain Events. If any event occurs of the type contemplated by the -------------- provisions of this Section 7 but not expressly provided for by such provisions --------- (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company shall appoint, at its sole expense, a firm of independent certified public accountants (which may be the regular auditors of the Company) of recognized national standing, which shall give their opinion upon the adjustment, if any, on a basis consistent with the basic intent and principles established in the other provisions of this Section 7, necessary to preserve, without dilution, the --------- exercise rights of the registered holder of this Warrant Certificate. Upon receipt of such opinion, the Company shall forthwith make the adjustments described therein. (h) Certain Exceptions to Antidilution Protection. Notwithstanding --------------------------------------------- anything to the contrary in this Section 7, there shall be no adjustment to the --------- Exercise Price or to the number of Warrant Shares issuable upon exercise hereof: (i) in connection with the sale or issuance of the Warrant Certificates for an initial aggregate of 3,455,610 Common Shares issued to the Lenders (or their Affiliates) under the US Credit Agreement and warrant certificates for an initial aggregate of 584,597 Common Shares issued to the UK Banks under the Credit Facilities on the Original Issuance Date and all warrants issued upon the partial exercise, transfer or division of, or in substitution for, any such warrants, or any adjustment to the number of shares issuable pursuant thereto in accordance with the terms of any thereof; (ii) the issuance of any rights under the Company Rights Plan; or (iii) an exercise of options outstanding under the Company's stock plans on the Original Issuance Date, which options are listed on Schedule 3(d) to the Warrant and Registration Rights Agreement. - ------------- (i) Other Securities. If at any time, as a result of an adjustment made ---------------- pursuant to this Section 7, any holder of Warrants shall become entitled to --------- purchase any securities of the Company other than Common Shares, the number or amount of such other securities so purchasable and the consideration for such securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained in this Section 7 hereof. - --------- (j) Reduction pursuant to Warrant and Registration Rights Agreement. --------------------------------------------------------------- Notwithstanding anything to the contrary in this Section 7, the number of --------- Warrant Shares issuable upon exercise of the Warrants is also subject to immediate reduction pursuant to Section 10 of the Warrant and Registration Rights Agreement. (k) No Doubling. No single event shall result in an adjustment being ----------- effected more than once, but a similar subsequent event will result in such adjustments. SECTION 8. No Stock Rights. No holder of this Warrant Certificate, as --------------- such, shall be entitled to vote or be deemed the holder of Common Shares or any other securities of the Company which may at any time be issuable on the exercise hereof, nor shall anything contained herein be construed to confer upon the Holder of this Warrant Certificate, as such, the rights of a stockholder of the Company or the right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or give or withhold consent to any corporate action or to receive notice of meetings or other actions affecting stockholders (except as provided herein), or to receive dividends (except as provided herein) or subscription rights or otherwise, until the Date of Exercise of the Warrants shall have occurred. SECTION 9. Fractional Shares. The Company shall not be required to issue ----------------- fractions of Warrant Shares upon exercise of the Warrants or to distribute certificates which evidence fractional Warrant Shares. As to any fractional share of Common Shares which the Holder would otherwise be entitled to subscribe for from the Company upon such exercise, the Company shall round such fraction up to the next whole Warrant Share and shall issue such rounded up Warrant Share and distribute certificates for such rounded up Warrant Share. SECTION 10. No Registration under Securities Act. Neither the Warrants nor ------------------------------------ the Warrant Shares have been registered under the Securities Act. The Holder of this Warrant Certificate, by acceptance hereof, represents that it is acquiring the Warrants to be issued to it for its own account and not with a view to the distribution thereof, and agrees not to sell, transfer, pledge or hypothecate any Warrants or any Warrant Shares unless a registration statement is effective for such Warrants or Warrant Shares under the Securities Act, unless the sale is permitted by Rule 144 pursuant to the Securities Act or in the opinion of such holder's counsel (a copy of which opinion shall be delivered to the Company) such transaction is exempt from the registration requirements of the Securities Act; provided that Warrants and Warrant Shares issued to such Holder may be -------- transferred to any Designated Affiliate of such Holder, without any such registration (to the extent permitted by law) or opinion, subject to the foregoing restriction on any further sale, transfer, pledge or hypothecation by such Designated Affiliate. SECTION 11. Certain Definitions. The following terms have the meanings set ------------------- forth below: "Affiliate" of any Person means any other Person directly or indirectly --------- controlling, controlled by or under direct or indirect common control with such Person. "Commencement Date" is defined in the first paragraph hereof. ----------------- "Common Shares" are defined in the first paragraph hereof. ------------- "Company" is defined in the first paragraph hereof. ------- "Company Rights Plan" means the Rights Agreement, dated as of July 17, ------------------- 2000, between the Company and Firstar Bank N.A., as Rights Agent. "Credit Facilities" means the credit facilities dated as of May 15, 2001 ----------------- among certain of the Company's subsidiaries and the UK Banks, as amended, supplemented or otherwise modified from time to time. "Date of Exercise" is defined in Section 3(c). ---------------- ------------ "Designated Affiliate" has the meaning ascribed to it in the Warrant and -------------------- Registration Rights Agreement. "Exercise Period" is defined in the first paragraph hereof. --------------- "Exercise Price" is defined in the first paragraph hereof. -------------- "Holder" is defined in the first paragraph hereof. ------ "Market Price" shall mean the average of the daily closing prices per ------------ Common Share for the ten (10) consecutive trading days immediately preceding the day as of which "Market Price" is being determined (exclusive of "ex-dividend" ------------ and similar dates). The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the principal national securities exchange on which the shares are listed or admitted to trading, or if the shares are not so listed or admitted to trading, on the National Market System of NASDAQ or, if prices for the shares are not quoted on such National Market System, the average of the highest reported bid and lowest reported asked prices as furnished by the National Association of Securities Dealers, Inc. through NASDAQ or through a similar organization if NASDAQ is no longer reporting such information. If Common Shares are not listed or admitted to trading on any exchange or quoted through NASDAQ or any similar organization, the "Market Price" shall be deemed to be the higher of (x) the book value of a ------------ Common Share as determined by any firm of independent certified public accountants of recognized national standing, selected by the board of directors of the Company, as at the last day of any month ending within sixty (60) days preceding the date as of which the determination is to be made and (y) the fair value thereof determined in good faith by a nationally recognized independent investment banking firm selected by the Company and acceptable to the holders of a majority of the Warrants as of a date which is within thirty (30) days of the date as of which the determination is to be made (the reasonable fees and expenses of such independent certified public accountants and independent investment banking firm to be paid by the Company); provided, however, that in -------- ------- the case of any determination of Market Price pursuant to this sentence, the Market Price shall not be less than the amount of the consideration per share received by the Company in respect of the most recent sale, transfer or other issuance of Common Shares by the Company (other than as a result of the exercise of any option or warrant or the conversion of any stock or securities convertible into or exchangeable for Common Shares) in an arms' length transaction to an unaffiliated third party within the 90-day period immediately preceding the date as to which the determination is to be made. "Organic Change" is defined in Section 7(d). -------------- ------------ "Original Issuance Date" means December 13, 2001. ---------------------- "Person" means an individual, a corporation, a partnership, an association, ------ a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Refinancing Event" is defined in Section 3(f). ----------------- ------------ "US Credit Agreement" means the Amended and Restated Multi-Currency Credit ------------------- Agreement dated as of May 15, 2001, among the Company, certain lenders and Bank One NA, as syndication agent, Chase Manhattan Bank, as documentation agent, and Bank of America, National Association, as administrative agent, as amended, supplemented or otherwise modified from time to time. "UK Banks" means the Royal Bank of Scotland and National Westminster Bank -------- PLC. "Securities Act" means the Securities Act of 1933, as amended. -------------- "Warrant" is defined in the first paragraph hereof. ------- "Warrant and Registration Rights Agreement" means the Warrant and ----------------------------------------- Registration Rights Agreement dated as of May 15, 2001 among the Company and certain holders of its securities executed pursuant to the Credit Agreement, as amended, supplemented or otherwise modified from time to time. "Warrant Share" is defined in the first paragraph hereof. ------------- SECTION 12. Notices. All notices, requests, demands and other ------- communications relating to this Warrant Certificate shall be in writing, including by facsimile, addressed (a) if to the registered owner hereof, to it at the address furnished by the registered owner to the Company, and (b) if to the Company, to it at N. 22 West 23685 Ridgeview Parkway West, Waukesha, WI 53188-1013, facsimile no.: (262) 523-7586, Attention: Chief Financial Officer, with a copy to Quarles & Brady LLP, 411 East Wisconsin Avenue, Milwaukee, WI 53202-4497, facsimile no: (414)271-3552, Attn: Anthony W. Asmuth, or to such other address as any party shall notify the other party in writing, and shall be effective, in the case of written notice by mail, five days after placement into the mails (first class, postage prepaid, mailed within the United States); in the case of notice by facsimile, on the same day as receipt is confirmed; and in the case of notice by an internationally recognized mail or courier service on the next business day after having been sent, unless such service specifies that it will be providing second business day service, in which case on the second business day after having been sent. SECTION 13. Binding Effect. This Warrant Certificate shall be binding upon -------------- and inure to the sole and exclusive benefit of the Company, its successors and assigns, the registered Holder or Holders from time to time of the Warrants and the Warrant Shares. SECTION 14. Governing Law. This Warrant Certificate shall be construed in ------------- accordance with and governed by the internal laws of the State of Illinois. IN WITNESS WHEREOF, the Company has caused this Second Tranche Warrant Certificate to be executed by its officer thereunto duly authorized as of the date hereof. APW LTD. By:____________________________ Title:_________________________ FORM OF ELECTION TO PURCHASE (To be executed by the holder of Warrants if such holder desires to exercise Warrants evidenced by the foregoing Warrant Certificate) To APW Ltd. The undersigned hereby irrevocably elects to exercise _________ Warrants evidenced by the foregoing Warrant Certificate for, and to [purchase thereunder, ___________, Common Shares issuable upon exercise of said Warrants and delivery of $_________ (in cash as provided for in the foregoing Warrant Certificate) and any applicable taxes payable by the undersigned pursuant to such Warrant Certificate.][receive, in accordance with Section 3(d) of the Warrant Certificate, Common Shares issuable upon exercise of said Warrants and delivery of any applicable taxes payable by the undersigned pursuant to such Warrant Certificate]. The undersigned requests that certificates for such shares be issued in the name of PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER ____________________________________ ________________________________ (Please print name and address) ____________________________________ _______________________________________________________________________________ If said number of Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so exercised be issued in the name of and delivered to _______________________________________________________________________________ (Please print name and address) _______________________________________________________________________________ _______________________________________________________________________________ Dated:___________, ______ Name of holder of Warrant (Print): _____________ (By:) __________________________________ (Title:) FORM OF ASSIGNMENT FOR VALUE RECEIVED, _____________________ hereby sells, assigns and transfers to each assignee set forth below all of the rights of the undersigned in and to the number of Warrants (as defined in and evidenced by the foregoing Warrant Certificate) set opposite the name of such assignee below and in and to the foregoing Warrant Certificate with respect to said Warrants and the Common Shares issuable upon exercise of said Warrants: Name of Assignee Address Number of Warrants - ---------------- ------- ------------------ If the total of said Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so assigned be issued in the name of and delivered to the undersigned. Name of holder of Warrant (Print): ______________ EX-4.5 7 dex45.txt FACILITY AGREEMENT Exhibit 4.5 THIS AMENDMENT AGREEMENT is made the 13/th/ day of December 2001 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 an amendment agreement dated 27 September 2001. (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 as further amended by an amendment agreement dated 27 September 2001. (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 and with effect from 15 May 2001 and as further amended by a first amendment agreement dated 27 September 2001) (the "Multicurrency Agreement") (D) RBS, Natwest, the US Agent and others entered into an intercreditor agreement dated 15th May 2001 regulating, inter alia, the application of recoveries under the RBS Facility Agreement, the Natwest Facility Agreement and the Multicurrency Agreement (the "Intercreditor Agreement"). ________________________________________________________________________________ -1- (E) Under a second amendment to the Multicurrency Agreement dated of even date herewith (the "Second Amendment Agreement"), the parties to the Multicurrency Agreement agreed to amend the Multicurrency Agreement in certain respects. RBS and Natwest have agreed to make equivalent amendments to 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 AMENDMENT OF FACILITY AGREEMENTS 2.1 With effect from the date hereof, subject only to Clause 3.1, it is agreed that, insofar as they are inconsistent with those provisions contained in the Second Amendment Agreement specified in Clauses 2.1.1 to 2.1.6 below (but only as such provisions are in force as at the date of this Agreement), the terms of the RBS Facility Agreement and the Natwest Facility Agreement shall each be deemed to be amended, to the extent necessary to make them consistent with the following provisions:- 2.1.1 Section 1.3 - Net Proceeds of Disposition of Assets; 2.1.2 Section 1.4 - Fees; 2.1.3 Section 1.5 - Audit Report; 2.1.4 Section 1.6 - Quarterly Financial Covenants; 2.1.5 Section 1.7 - Monthly Financial Covenant 2.1.6 Section 1.8 - Restricted Payments insofar as it relates to permitting the payment of dividends of $42,000 semi-annually on the preferred stock of McLean Midwest Corporation; 2.2 Interest and Fees All accrued interest and fees payable under the RBS Facility Agreement and the NatWest Facility Agreement shall notwithstanding any provision to the contrary contained therein, be due on the last Banking Day (as defined in the RBS Facility Agreement) of each calendar month, including, without prejudice to the generality of the foregoing: 2.2.1 interest payable in respect of the Overdraft and Short Term Advances Option contained in the RBS Facility Agreement; and 2.2.2 interest payable in respect of the Loan, Corporate Dealing Line, Overdraft and, if applicable, the Ancillaries (as defined therein) contained in the NatWest Facility Agreement. ________________________________________________________________________________ -2- 2.3 Mandatory Prepayment Upon the disposition of any assets of APW Ltd or any of its Subsidiaries or the occurrence of any of the other events listed in Clause 2.8(b) of the Multicurrency Agreement that results in a reduction in the Combined Commitments (as defined in the Multicurrency Agreement), the Combined Commitments shall, to the extent specified in such Clause 2.8(b), be reduced, in the manner set forth in the Intercreditor Agreement, RBS and NatWest are each hereby authorised to take such steps as are necessary to effect the resulting reduction in the UK Commitments (as defined in the Intercreditor Agreement). 2.4 The parties agree to be bound by the RBS Facility Agreement and the Natwest Facility Agreement, each as amended. 3 CONDITIONS PRECEDENT AND SUBSEQUENT TO THIS AMENDMENT AND RESTATEMENT AGREEMENT 3.1 This Agreement shall become effective once RBS, for itself and on behalf of Natwest, has received both (a) the Second Amendment Agreement duly executed, dated the date hereof, in form and substance satisfactory to RBS, such Second Amendment Agreement being conditional at that stage only on receipt of this Agreement by the Administrative Agent (as defined therein) and (b) an amendment to the First Tranche Warrant Certificate and a Second Tranche Warrant Certificate in the form attached as Exhibit B and C to the Second Amendment Agreement giving RBS (on behalf of itself and NatWest) such rights in respect of additional shares in APW Ltd as may be agreed between APW Ltd, the Agent under the Muticurrency Agreement and RBS. 3.2 It shall be a condition subsequent to this Agreement that RBS shall have received in a form and substance satisfactory to it within 15 days of the date of this Agreement, a copy, certified as true and up to date copy by the Secretary of each UK Obligor, of a resolution of the board of directors of such UK Obligor approving the execution and delivery of this Agreement and the performance of its obligations hereunder and authorising a person or persons (specified by name) on behalf of each UK Obligor to sign and deliver this Agreement and any other documents to be delivered by it pursuant thereto. 4 GENERAL 4.1 The Borrowers hereby undertake that the Representations and Warranties set out in Clause 12 of the RBS Facility Agreement are true and accurate as of the date of this Agreement and represent and warrant to each of RBS and Natwest in the same terms as the representations and warranties contained in Clause 3 of the Second Amendment Agreement. 4.2 RBS and Natwest shall each be paid an amendment fee of 10 basis points on their Commitment under the Multicurrency Agreement and their commitments under the RBS Facility Agreement and the Natwest Facility Agreement on the date on which the amendment fee is payable to each Bank (as defined therein) in accordance with Section 1.10 of the Second Amendment Agreement. 4.3 All other terms and conditions of the Facility Agreement remain unchanged, save that the creation of the security evidenced by the Collateral Documents and all other security created in favour of the Security Trustee and the Bank is expressly permitted. ________________________________________________________________________________ -3- 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 the 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. ________________________________________________________________________________ -4- Schedule
Company Registered Number Registered Office APW Enclosure Products & Systems 3618668 Electron Way, Chandlers Ford, Eastleigh, Limited Hampshire, SO53 4ZR APW Enclosure Systems (UK) Limited 962534 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR APW Investments UK Limited 2873016 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR APW Holdings (UK) Limited 2894364 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR Rubicon Finance Limited 2868702 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR APW Holdings (Europe) Limited 2868712 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR APW Electronics Group plc 02889677 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR APW Electronics Overseas Investments 02889679 Electron Way, Chandlers Ford, Eastleigh, Limited Hampshire, SO53 4ZR APW Electronics Limited 00701364 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR APW Power Supplies Limited 02037578 Narrow Quay House, Narrow Quay, Bristol, BS1 4AH Applied Power Limited 03528602 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR APW Enclosure Systems Holdings 03618666 Electron Way, Chandlers Ford, Eastleigh, Limited Hampshire, SO53 4ZR APW Enclosure Systems plc 98900 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR APW Galway Limited 67768 Ballybrit Business Park, Ballybrit, Galway, Republic of Ireland APW New Forest Limited 1357306 Electron Way, Chandlers Ford, Eastleigh, Hampshire, SO53 4ZR
________________________________________________________________________________ -5- SIGNED FOR AND ON BEHALF OF:- THE ROYAL BANK OF SCOTLAND plc By: /s/ Ian Roberts Ian Roberts Manager, Specialised Lending Services SIGNED FOR AND ON BEHALF OF:- NATIONAL WESTMINSTER BANK PLC By: /s/ Ian Roberts Ian Roberts Manager, Specialised Lending Services THE RBS BORROWERS APW ELECTRONICS GROUP PLC By: /s/ Todd A. Adams Todd A. Adams APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED By: /s/ Todd A. Adams Todd A. Adams APW ELECTRONICS LIMITED By: /s/ Todd A. Adams Todd A. Adams APW ENCLOSURES AB By: APW ELECTRONICS GmbH By: /s/ John Stephenson Geschaftsfuhrer ________________________________________________________________________________ -6- SIGNED FOR AND ON BEHALF OF:- THE ROYAL BANK OF SCOTLAND plc By: SIGNED FOR AND ON BEHALF OF:- NATIONAL WESTMINSTER BANK PLC By: THE RBS BORROWERS APW ELECTRONICS GROUP PLC By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ELECTRONICS LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ENCLOSURES AB By: /s/ Richard D. Carroll Richard D. Carroll APW ELECTRONICS GmbH By: /s/ Richard D. Carroll Richard D. Carroll ________________________________________________________________________________ -7- VERO ELECTRONICS INC. By: /s/ Richard D. Carroll Richard D. Carroll APW ENCLOSURES S.A. By: /s/ Richard D. Carroll Richard D. Carroll APW ELECTRONICS S.r. L By: /s/ Richard D. Carroll Richard D. Carroll THE NATWEST BORROWERS APW ENCLOSURE SYSTEMS PLC By: /s/ Todd A. Adams Todd A. Adams APW ENCLOSURE PRODUCTS & SYSTEMS LIMITED By: /s/ Todd A. Adams Todd A. Adams APW ENCLOSURE SYSTEMS (UK) LIMITED By: /s/ Todd A. Adams Todd A. Adams APW INVESTMENTS UK LIMITED By: /s/ Todd A. Adams Todd A. Adams APW HOLDINGS (UK) LIMITED By: /s/ Todd A. Adams Todd A. Adams ________________________________________________________________________________ -8- VERO ELECTRONICS INC. By: APW ENCLOSURES S.A. By: APW ELECTRONICS S.r. L By: THE NATWEST BORROWERS APW ENCLOSURE SYSTEMS PLC By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ENCLOSURE PRODUCTS & SYSTEMS LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ENCLOSURE SYSTEMS (UK) LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW INVESTMENTS UK LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW HOLDINGS (UK) LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary ________________________________________________________________________________ -9- RUBICON FINANCE LIMITED By: /s/ Todd A. Adams Todd A. Adams APW HOLDINGS (EUROPE) LIMITED By: /s/ Todd A. Adams Todd A. Adams APW ELECTRONICS GROUP PLC By: /s/ Todd A. Adams Todd A. Adams APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED By: /s/ Todd A. Adams Todd A. Adams APW ELECTRONICS LIMITED By: /s/ Todd A. Adams Todd A. Adams APW POWER SUPPLIES LIMITED By: /s/ Richard D. Carroll Richard D. Carroll APPLIED POWER LIMITED ________________________________________________________________________________ -10- RUBICON FINANCE LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW HOLDINGS (EUROPE) LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ELECTRONICS GROUP PLC By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ELECTRONICS LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW POWER SUPPLIES LIMITED By: /s/ Jesper Bilde Jesper Bilde APPLIED POWER LIMITED ________________________________________________________________________________ -11- RUBICON FINANCE LIMITED By: APW HOLDINGS (EUROPE) LIMITED By: APW ELECTRONICS GROUP PLC By: APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED By: APW ELECTRONICS LIMITED By: /s/ [illegible in original] Company Secretary For and on Behalf of Quayseco Limited APW POWER SUPPLIES LIMITED By: APPLIED POWER LIMITED ________________________________________________________________________________ -12- By: /s/ Todd A. Adams Todd A. Adams APW ENCLOSURE SYSTEMS HOLDINGS LIMITED By: /s/ Todd A. Adams Todd A. Adams APW GALWAY LIMITED By: APW NEW FOREST LIMITED By: /s/ Todd A. Adams Todd A. Adams ________________________________________________________________________________ -13- By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW ENCLOSURE SYSTEMS HOLDINGS LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW GALWAY LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW NEW FOREST LIMITED By: /s/ Samantha Kirby Samantha Kirby Company Secretary ________________________________________________________________________________ -14- AGREEMENT AND CONSENT --------------------- The undersigned Guarantors hereby agree and consent, as at the date and year first above written, to the terms and provisions of the foregoing amendment Agreement, and agree that the guarantee documents and facility agreements executed by the undersigned Guarantors shall remain in full force and effect notwithstanding the provisions of the foregoing amendment Agreement. Wrightline Limited By: /s/ P.L. Harricote P.L. Harricote Director Applied Power Limited By: /s/ Todd A. Adams Todd A. Adams APW Electronics Limited By: /s/ Todd A. Adams Todd A. Adams APW Electronics Overseas Investments Limited By: /s/ Todd A. Adams Todd A. Adams APW Enclosure Products and Systems Limited By: /s/ Todd A. Adams Todd A. Adams ________________________________________________________________________________ -15- AGREEMENT AND CONSENT --------------------- The undersigned Guarantors hereby agree and consent, as at the date and year first above written, to the terms and provisions of the foregoing amendment Agreement, and agree that the guarantee documents and facility agreements executed by the undersigned Guarantors shall remain in full force and effect notwithstanding the provisions of the foregoing amendment Agreement. Wrightline Limited By: /s/ Richard D. Carroll Richard D. Carroll Applied Power Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Electronics Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Electronics Overseas Investments Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Enclosure Products and Systems Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary ________________________________________________________________________________ -16- APW Enclosure Systems (UK) Limited By: /s/ Todd A. Adams Todd A. Adams APW Enclosure Systems Holdings Limited By: /s/ Todd A. Adams Todd A. Adams APW Enclosure Systems plc By: /s/ Todd A. Adams Todd A. Adams APW Holdings (Europe) Limited By: /s/ Todd A. Adams Todd A. Adams APW Holdings (UK) Limited By: /s/ Todd A. Adams Todd A. Adams APW Investments UK Limited By: /s/ Todd A. Adams Todd A. Adams APW New Forest Ltd By: /s/ Todd A. Adams Todd A. Adams - -------------------------------------------------------------------------------- -17- APW Enclosure Systems (UK) Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Enclosure Systems Holdings Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Enclosure Systems plc By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Holdings (Europe) Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Holdings (UK) Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Investments UK Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW New Forest Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary - -------------------------------------------------------------------------------- -18- High Speed Production (Holdings) Limited By: /s/ Todd A. Adams Todd A. Adams Rubicon Finance Limited By: /s/ Todd A. Adams Todd A. Adams APW Power Supplies Ltd By: /s/ Richard D. Carroll Richard D. Carroll APW Electronics Group Plc By: /s/ Todd A. Adams Todd A. Adams Towerflame Limited By: /s/ Richard D. Carroll Richard D. Carroll Air Cargo Equipment (UK) Limited By: /s/ Richard D. Carroll Richard D. Carroll APW Finance Limited By: /s/ Richard D. Carroll Richard D. Carroll - -------------------------------------------------------------------------------- -19- High Speed Production (Holdings) Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary Rubicon Finance Limited By: /s/ Samantha Kirby Samantha Kirby Company Secretary APW Power Supplies Ltd By: /s/ [illegible in original] Company Secretary For and on Behalf of Quayseco Limited APW Electronics Group Plc By: /s/ Samantha Kirby Samantha Kirby Company Secretary Towerflame Limited By: Air Cargo Equipment (UK) Limited By: APW Finance Limited By: - -------------------------------------------------------------------------------- -20- Zero McLean Europe Ltd By: Zero Cases Europe Ltd By: McLean Europe Ltd By: East Anglian Metal Merchants Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary Electroncis Packaging Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary VERO Connectors Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary VERO Electroncis (Exports) Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary - -------------------------------------------------------------------------------- -21- Zero McLean Europe Ltd By: /s/ Richard D. Carroll Richard D. Carroll Zero Cases Europe Ltd By: /s/ Richard D. Carroll Richard D. Carroll McLean Europe Ltd By: /s/ Richard D. Carroll Richard D. Carroll East Anglian Metal Merchants Ltd By: /s/ Todd A. Adams Todd A. Adams Electroncis Packaging Ltd By: /s/ Todd A. Adams Todd A. Adams VERO Connectors Ltd By: /s/ Todd A. Adams Todd A. Adams VERO Electroncis (Exports) Ltd By: /s/ Todd A. Adams Todd A. Adams - -------------------------------------------------------------------------------- -22- VERO Circuitboards Ltd By: /s/ Todd A. Adams Todd A. Adams Imhof-Bedco Ltd By: /s/ Todd A. Adams Todd A. Adams Imhof-Bedco Standard Products Ltd By: /s/ Todd A. Adams Todd A. Adams Imhof-Bedco Special Products Ltd By: /s/ Todd A. Adams Todd A. Adams Instant Finishers Ltd By: /s/ Todd A. Adams Todd A. Adams Malcoe Enclosures Ltd By: /s/ Todd A. Adams Todd A. Adams Malcoe Security Products Ltd By: /s/ Todd A. Adams Todd A. Adams - -------------------------------------------------------------------------------- -23- VERO Circuitboards Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary Imhof-Bedco Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary Imhof-Bedco Standard Products Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary Imhof-Bedco Special Products Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary Instant Finishers Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary Malcoe Enclosures Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary Malcoe Security Products Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary - -------------------------------------------------------------------------------- -24- Malcoe Telecommunications Ltd By: /s/ Todd A. Adams Todd A. Adams Beeley Wood Holdings Ltd By: /s/ Todd A. Adams Todd A. Adams HSP Sheffield Ltd By: /s/ Todd A. Adams Todd A. Adams High Speed Production (Scotland) Ltd By: /s/ Todd A. Adams Todd A. Adams HSP Strathclyde Ltd By: /s/ Todd A. Adams Todd A. Adams - -------------------------------------------------------------------------------- -25- Malcoe Telecommunications Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary Beeley Wood Holdings Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary HSP Sheffield Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary High Speed Production (Scotland) Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary HSP Strathclyde Ltd By: /s/ Samantha Kirby Samantha Kirby Company Secretary - -------------------------------------------------------------------------------- -26- EX-99 8 dex99.txt PRESS RELEASE DATED 12/14/2001 Exhibit 99.1 [GRAPHIC REMOVED HERE]FOR IMMEDIATE RELEASE Contacts: APW Ltd. Mike Gasick 262-523-7631 APW Ltd. Announces Amendments to its Credit Facilities, Filing of Form 10-K, and Goodwill Impairment Charge - -------------------------------------------------------------------------------- St. Michael, Barbados, December 14, 2001 - APW Ltd. (NYSE: APW), a leading Technically Enabled Manufacturing Services "TEMS" Company, announced today the amendment of its existing credit facilities. The amendments to the financial covenants more accurately reflect the realities of operating in the current economic environment. The amendments also provide APW enhanced liquidity and the ability to expand its current restructuring efforts beyond those previously announced. The amendment increases the level of additional non-recurring restructuring charges associated with cost reduction initiatives from $25 million to $37 million. Certain other financial covenants were also amended, including sales, EBITDA, and free cash flow. In addition, a mandatory facility reduction on February 28, 2002 was eliminated. Rick Carroll, Vice President and Chief Financial Officer for APW Ltd. commented, "We are very pleased with the continued high level of cooperation between APW and our lenders. Our lenders unanimously approved the amendments. The additional restructuring charges that are included in the amendment will allow APW to continue to pursue its priority of keeping costs in line with the level of business. As a result of our initiatives, our current expectations are to achieve cost reductions in excess of $180 million on an annual basis by the summer of 2002 versus pro forma second quarter of fiscal 2001." APW agreed to re-price the existing warrants held by its lenders and eliminate the previous reduction provision if the Company met repayment targets by August 31, 2002. Additional warrants were issued to purchase up to 9.9% of the APW's common stock subject to cancellation provisions if the facility is repaid by certain dates. The complete Second Amendment to the Amended and Restated Multi-Currency Credit Facility is expected to be filed as an exhibit to Form 8-K with the SEC by the close of business December 20, 2001. With the finalization of this amendment, APW has completed its Form 10-K for its fiscal year ended August 31, 2001. The Form 10-K will be filed in its entirety today. Included in the year-end results is a goodwill impairment charge of $166.9 million associated with the closing of certain facilities and an overall assessment of the goodwill recoverability in light of current economic conditions. About APW Ltd. APW Ltd. is a Technically Enabled Manufacturing Services "TEMS" company that designs and manufactures large, complex infrastructure products for OEMs in the communications, large enterprise hardware and Internet markets. APW Ltd. has particular skills in the areas of designing and manufacturing enclosures, thermal management, power supplies and backplanes; as well as core competencies in product and system design, integration and supply chain management. APW Ltd. operates in over 30 locations throughout North America, South America, Europe and Asia. For further information contact: APW Ltd. Mike Gasick, Treasurer 262-523-7631 www.apw.com Safe Harbor Statement Certain of the above comments represent forward-looking statements made pursuant to the provisions of the Private Securities Litigation Reform Act of 1995. Management cautions that these statements are based on current estimates of future performance and are highly dependent upon a variety of factors, which could cause actual results to differ from these estimates. APW Ltd.'s results are also subject to general economic conditions, market conditions in the computer, semiconductor, telecommunications, and electronic industries in North America, South America, Europe and Asia, continued market acceptance of APW's existing products and new product introductions, the successful integration of recent and pending acquisitions, competitive product and pricing pressures, foreign currency risk, interest rate risk, and APW's ability to access capital markets. See our Form 10 and Form S-3 for further information on risk factors. -----END PRIVACY-ENHANCED MESSAGE-----