Exhibit 4.1
THIRD AMENDMENT TO AMENDED AND
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RESTATED MULTICURRENCY CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED MULTICURRENCY CREDIT
AGREEMENT, dated as of January 15, 2002 (this "Amendment"), amends the Amended
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and Restated Multicurrency Credit Agreement, dated as of May 15, 2001 (as
heretofore amended, the "Credit Agreement"), among APW Ltd., a Bermuda
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corporation (the "Borrower"), the various financial institutions parties thereto
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(collectively, the "Banks"), Bank One, NA, as syndication agent, The Chase
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Manhattan Bank, as documentation agent and Bank of America, N.A., as
administrative agent. Terms defined in the Credit Agreement are, unless
otherwise defined herein or the context otherwise requires, used herein as
defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement, which
provides for the Banks to extend certain credit facilities to the Borrower from
time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. CONSENT. The Banks hereby agree that notwithstanding the
provisions of Section 2.12(b) of the Credit Agreement, the interest payments set
forth in the attached Schedule 1 due prior to February 15, 2002 (the "Deferral
Date"), shall not be payable until the earliest date of: (i) the Deferral Date,
(ii) the date three business days following the receipt by the Borrower of the
proceeds of the sale of the Specified Business Unit or (iii) the first date
after the date of this Amendment on which the lenders under the UK Facility
receive any payment in respect of interest or commissions under the UK Facility.
This consent shall be limited to its terms and shall not constitute a waiver of
any other rights the Banks may have from time to time, including the right, upon
the occurrence of an Event of Default other than the failure to pay such
interest prior to the Deferral Date, to accelerate the maturity of the Loans and
all payments , including said interest payments, with respect thereto.
SECTION 2. AGREEMENT. The Borrower hereby agrees:
2.1 The Borrower will meet with members of a working group representing the
Banks and will cause its advisor CS First Boston to meet with such working group
as soon as practicable.
2.2 The Borrower will not sell the Specified Business Unit, without the
consent of the Required Banks, unless the Net Proceeds of such sale received by
the Borrower shall be equal to at least $24,000,000.
SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 3 shall have been
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satisfied, and notice thereof shall have been given by the Agent to the Borrower
and the Lenders.
3.1 Receipt of Documents. The Administrative Agent shall have received all
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of the following documents duly executed, dated the date hereof or such other
date as shall be acceptable to the Administrative Agent, and in form and
substance satisfactory the Administrative Agent:
(a) Amendment. This Amendment, duly executed by the Borrower, the
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Administrative Agent and the Lenders.
(b) Consents. Consents of all Guarantors hereto.
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(c) UK Facility. Amendments to the UK Facility providing that
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interest on the UK Facility shall not be payable prior to the Deferral Date.
(d) Fees. The Borrower shall have paid all accrued and unpaid fees,
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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
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the Administrative Agent's Consultant and $150,000 to Mayer, Brown & Platt on
retainer for further fees and expenses.
SECTION 4. REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Administrative Agent to enter into this Amendment, the Borrower hereby
reaffirms, as of the date hereof, its representations and warranties contained
in the Credit Agreement and the other Loan Documents, and the Borrower
additionally represents and warrants to the Administrative Agent and each Bank
as follows:
4.1 Due Authorization, Non-Contravention, etc. The execution, delivery and
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performance by the Borrower of this Amendment are within the Borrower's
corporate powers, have been duly authorized by all necessary corporation action,
and do not
(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.
4.2 Governmental Approval, Regulation, etc. No authorization or approval
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or other action by, and no notice to or filing with, any governmental authority
or regulatory body or other Person is required for the due execution, delivery
or performance by the Borrower of this Amendment.
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4.3 Validity, etc. This Amendment constitutes the legal, valid and binding
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obligation of the Borrower enforceable in accordance with its terms, except to
the extent enforceability 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 5. MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an
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amendment to the Credit Agreement, and the Credit Agreement, as amended hereby,
shall remain in full force and effect and is hereby ratified, approved and
confirmed in each and every respect. After the effectiveness of this Amendment
in accordance with its terms, all references to the Credit Agreement in the Loan
Documents or in any other document, instrument, agreement or writing shall be
deemed to refer to the Credit Agreement as amended hereby.
5.2 Payment of Costs and Expenses. The Borrower agrees to pay on demand all
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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.
5.3 Severability. Any provision of this Amendment which is prohibited or
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unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
5.4 Headings. The various headings of this Amendment are inserted for
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convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
5.5 Execution in Counterparts. This Amendment may be executed by the
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parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
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UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
5.7 Successors and Assigns. This Amendment shall be binding upon and shall
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inure to the benefit of the parties hereto and their respective successors and
assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
APW LTD.
By:/s/Richard D. Carroll
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Name: Richard D. Carroll
Title: Vice President and Chief
Financial Officer
BANK OF AMERICA, N.A.
as Administrative Agent and as a Bank
By:/s/M. Duncan McDuffie
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Name: M. Duncan McDuffie
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By:/s/Shinichiro Munechika
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Name: Shinichiro Munechika
Title: Deputy General Manager
BANK ONE, NA (Main Office Chicago) as
Syndication Agent and as a Bank
By:/s/Thomas T. Bower
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Name: Thomas T Bower
Title: Senior Vice President
BNP PARIBAS
By:/s/Edward V. Canall
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Name: Edward V. Canall
Title: Managing Director
By:/s/Kathryn Quinn
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Name: Kathryn Quinn
Title: Vice President
Third Amendment to Amended and Restated
Multicurrency Credit Agreement
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Richard Teitelbaum
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Name: Richard Teitelbaum
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Nobuyasu Fukatsu
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Name: Nobuyasu Fukatsu
Title: General Manager
FIRST UNION NATIONAL BANK
By: /s/ William W. Teegarden
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Name: William W. Teegarden
Title: Senior Vice President
JPMORGAN CHASE BANK, as Documentation
Agent and a Bank
By: /s/ Michael Lancia
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Name: Michael Lancia
Title: Vice President
M&I MARSHALL & ILSLEY BANK
By: /s/ Michael Vellon
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Name: Michael Vellon
Title: Vice President
By: /s/ Thomas R. Johnson
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Name: Thomas R. Johnson
Title: Senior vice President
Third Amendment to Amended and Restated
Multicurrency Credit Agreement
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Thomas A. Pennington
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Name: Thomas A. Pennington
Title: Executive Vice President
OCM PRINCIPAL OPPORTUNITIES FUND II, L.P.
By: Oaktree Capital Management
LLC, its general original
By: /s/ Christopher S. Betheus
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Name: Christopher S. Betheus
Title: Managing Director
By: /s/ Jordan Kruse
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Name: Jordan Kruse
Title:
OCM OPPORTUNITIES FUND III, L.P.
By: Oaktree Capital Management
LLC, its general original
By: /s/ Lowell W. Hill
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Name: Lowell W. Hill
Title: Managing Director
By: /s/ [Illegible in original]
PERRY PRINCIPALS, L.L.C.
By: /s/ William J. Vernon
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Name: William J. Vernon
Title: Managing Director and Chief
Financial Officer
ROYAL BANK OF SCOTLAND, PLC
By: /s/ T.J. Smith
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Name: T.J. Smith
Title:
SOCIETE GENERALE
By: /s/ Eric E.O. Siebert Jr
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Name: Eric E.O. Siebert Jr
Title: Director
Third Amendment to Amended and Restated
Multicurrency Credit Agreement
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ William M. Ginn
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Name: William M. Ginn
Title: General Manager
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Greg Wilson
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Name: Greg Wilson
Title: A.V.P
WILLIAM E. SIMON & SONS SPECIAL
SITUATIONS PARTNERS II, L.P.
By: /s/ Dale Leshaw
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Name: Dale Leshaw
Title: Principal
Third Amendment to Amended and Restated
Multicurrency Credit Agreement
AGREEMENT AND CONSENT
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The undersigned Guarantors hereby agree and consent, as of the date and
year first above written, to the terms and provisions of the foregoing Third
Amendment to Credit Agreement and to the terms and provisions of the Amendment
Agreement amending the UK Facility, dated January 18, 2002, and agree that the
Loan Documents, guarantee documents and facility agreements executed by the
undersigned Guarantors shall remain in full force and effect notwithstanding the
provisions of the foregoing Third Amendment to Credit Agreement and the
Amendment Agreement amending the UK Facility.
APW NORTH AMERICA, INC.
By: /s/ James Maxwell
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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
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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
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Name: James Maxwell
Title: Treasurer
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APPLIED POWER LIMITED
APW ELECTRONICS OVERSEAS INVESTMENTS
LIMITED
APW ELECTRONICS LIMITED
APW ENCLOSURE SYSTEMS HOLDINGS LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
APW ENCLOSURE SYSTEMS (UK) LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
WRIGHT LINE LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
APW ENCLOSURES (DUBLIN) LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
APW GALWAY LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
HOERMANN SECURITY SYSTEMS LTD.
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
2
APW POWER SUPPLIES AS
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
APW NEW FOREST LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
TOWERFLAME LIMITED
By: /s/ David Pumphrey
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Name: David Pumphrey
Title: Company Secretary
APW ELECTRONICS GROUP PLC
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
APW ENCLOSURE PRODUCTS AND SYSTEMS LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
APW ENCLOSURE SYSTEMS PLC
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
3
AIR CARGO EQUIPMENT (UK) LIMITED
By: /s/ David Pumphrey
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Name: David Pumphrey
Title:
APW ENCLOSURES LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
HOERMANN ELECTRONICS LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
WRIGHT LINE EUROPE B.V.
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
APW NETHERLANDS B.V.
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
APW HOLDING B.V.
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
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APW PRODUCTS AND SYSTEMS B.V.
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
CIPRESMAD HUNGARY GROUP FINANCING LLC
By: /s/ Richard D. Carroll
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Name: Richard D. Carroll
Title:
APW ELECTRONICS GMBH
By: /s/ John Stephenson
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Name: John Stephenson
Title: Geschaftsfuhrer
CIPRESMAD-CONSULTORES E SERVICOS, LTD.
By: /s/ Richard D. Carroll
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Name: Richard D. Carroll
Title:
APW FINANCE LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
5
ZERO MCLEAN EUROPE LTD
By: /s/ David Pumphrey
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Name: David Pumphrey
Title: Company Secretary
ZERO CASES EUROPE LTD
By: /s/ David Pumphrey
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Name: David Pumphrey
Title: Company Secretary
MCLEAN EUROPE LTD
By: /s/ David Pumphrey
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Name: David Pumphrey
Title: Company Secretary
RUBICON FINANCE LIMITED
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
APW HOLDINGS (UK) LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
EAST ANGLIAN METAL MERCHANTS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
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ELECTRONICS PACKAGING LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
VERO CONNECTORS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
VERO ELECTRONICS (EXPORTS) LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
VERO CIRCUITBOARDS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
IMHOF-BEDCO LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
IMHOF-BEDCO STANDARD PRODUCTS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
IMHOF-BEDCO SPECIAL PRODUCTS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
7
INSTANT FINISHERS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
MALCOE ENCLOSURES LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
MALCOE SECURITY PRODUCTS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
MALCOE TELECOMMUNICATIONS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
APW HOLDINGS (EUROPE) LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
HIGH SPEED PRODUCTION (HOLDINGS) LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
BEELEY WOOD HOLDINGS LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
8
HSP SHEFFIELD LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
HIGH SPEED PRODUCTION (SCOTLAND) LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
HSP STRATHCLYDE LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
9
APW INVESTMENTS UK LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title: Company Secretary
APW POWER SUPPLIES LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
C FAB DEVELOPMENT LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
J HIGGINS MANUFACTURING (IRELAND) LTD
By: /s/ Samantha Kirby
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Name: Samantha Kirby
Title:
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APW MAYVILLE Ltd
By: /s/ James Maxwell
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Name: James Maxwell
Title: Treasurer
APW MAYVILLE LLC
By: /s/ James Maxwell
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Name: James Maxwell
Title: Treasurer
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