Exhibit 4.1
FIFTH AMENDMENT TO AMENDED AND
RESTATE MULTICURRENCY CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED MULTICURRENCY CREDIT
AGREEMENT, dated as of February 15, 2002 (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. CONSENT. The Banks hereby agree that notwithstanding the
provisions of Section 2.12(b) of the Credit Agreement, the interest payments
scheduled to be due prior to April 15, 2002 (the "Deferral Date"), shall not be
payable until the earliest date of: (i) the Deferral Date, or (ii) the first
date after January 15, 2002 on which the lenders under the UK Facility receive
any payment in respect of interest or commissions under the UK Facility.
SECTION 2. WAIVER. The Banks hereby waive the right to require compliance
by the Borrower and its Subsidiaries with the requirements of Section 7.6 of the
Credit Agreement for the period from January 31, 2002 to but excluding April 15,
2002.
SECTION 3. LIMITATION OF CONSENT AND WAIVER.
The consent and waiver set forth herein shall be limited to their 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 or the breach
of any agreement specifically waived hereunder, to accelerate the maturity of
the Loans and all payments, including interest payment, with respect thereto.
SECTION 4. AMENDMENTS. As of the date hereof, the Credit Agreement is
amended as follows:
4.1 Interim Reports. Section 7.1(b) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"(b) Interim Reports (i) Promptly when available and in any event
within 45 days after the end of each Fiscal Quarter (except the Last
Fiscal Quarter of each Fiscal Year), consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such Fiscal
Quarter, consolidated statements of earnings and a consolidated
statement of cash flow for such Fiscal Quarter and for the period
beginning with the first day of such Fiscal Year and ending on the
last day of such Fiscal Quarter of the Borrower and its Subsidiaries,
with, in the case of each Fiscal Quarter ending on or after November
30, 2001, comparable information at the close of and for the
corresponding portion of such prior Fiscal Year, together with a
certificate of the chief financial officer or the Treasurer of the
Borrower to the effect that such financial statements fairly present
the financial condition and results of operations of the Borrower and
its Subsidiaries of the date and periods indicated (subject to normal
year-end adjustments).
(ii) Promptly when available and in any event within 30 days after the
end of each calendar month, consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such month,
consolidated statements of earnings and a consolidated statement of
cash flow for such month and for the period beginning with the first
day of such Fiscal Year and ending on the last day of such month of
the Borrower and its Subsidiaries, together with a certificate of the
chief financial officer or the Treasurer of the Borrower to the effect
that such financial statements fairly represent the financial
condition and results of operations of the Borrower and its
Subsidiaries as of the date and periods indicated (subject to normal
year-end adjustments)."
4.2 Representations.
Section 6.5 of the Credit Agreement is hereby amended to state in its
entirety as follows:
"6.5 No Material Adverse Effect. No event has occurred or condition
has arisen that has had or is reasonably likely to have a Material
Adverse Effect since February 28, 2001, with respect to the Borrower
and its Subsidiaries, except as described in Item 6.5 of the
Disclosure Schedule or otherwise disclosed in writing to the Banks
prior to the date of the Fifth Amendment hereto."
SECTION 5. 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.
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5.1 Receipt of Documents. This 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 to the Administrative Agent:
a) Amendment. This Amendment, duly executed by the Borrower, the
Administrative Agent and the Lenders.
b) Consents. Consents of all Guarantors hereto.
c) UK Facility. Amendments to the UK Facility providing that
interest on the UK Facility shall not be payable prior to the
Deferral Date and making other changes consistent herewith.
SECTION 6. REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Administrative Agent to enter into this Amendment, the Borrower hereby
reaffirms, as of the date hereof, its representations and warranties contained
in the Credit Agreement, as hereby amended, and the other Loan Documents, and
the Borrower additionally represents and warrants to the Administrative Agent
and each Bank as follows:
6.1 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.
6.2 Governmental Approval, Regulations, etc. No authorization or approval o
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.
6.3 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 7. MISCELLANEOUS
7.1 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
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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.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
7.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
7.7 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.
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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/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: VP-CFO
BANK OF AMERICAN, N.A., as
Administrative Agent and as a Bank
By: /s/ M. Xxxxxx XxXxxxxx
------------------------
Name: M. Xxxxxx XxXxxxxx
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxxxxxx Xxxxxxxxx
Title: Deputy General Manager
BANK ONE, N.A. (Main Office Chicago) as
Syndication Agent and as a Bank
By: /s/ Xxxxxx X. Xxxxx
---------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
BNP PARIBAS
By: /s/ Xxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
-------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
COPPER BEECH HOLDINGS, LLC
By: /s/ Xxxxxx Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxxx Xxxxx Christie
Title: Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxxxx
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/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
JPMORGAN CHASE BANK, as
Documentation Agent and a Bank
By: /s/ Xxxxxxx Lancia
--------------------
Name: Xxxxxxx Lancia
Title: Vice President
M&I XXXXXXXX & XXXXXX BANK
By: /s/ Xxxxxxx Xxxxxx
--------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
2
OCM PRINCIPAL OPPORTUNITIES FUND
II, L.P. by Oaktree Capital Management,
LLC, its General Partner
By: /s/ Xxxx X. Xxxxx
-------------------
Name: Xxxx X. Xxxxx
Title: General Counsel
By: /s/ Xxxxxx X. Xxxxx
---------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
OCM OPPORTUNITIES FUND III, L.P. by
Oaktree Capital Management, LLC, its
General Partner
By: /s/ Xxxx X. Xxxxx
-------------------
Name: Xxxx X. Xxxxx
Title: General Counsel
PERRY PRINCIPALS, L.L.C.
By: /s/ Xxx Xxxxxxx
-----------------
Name: Xxx Xxxxxxx
Title:
ROYAL BANK OF SCOTLAND, PLC
By: /s/ Xxx Xxxxxxx
-----------------
Name: Xxx Xxxxxxx
Title: Manager Specialised Lending
Services
SOCIETE GENERALE
By: /s/ Xxxx X.X. Xxxxxxx Xx.
--------------------------
Name: Xxxx X.X. Xxxxxxx Xx.
Title: Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxx
-----------------
Name: Xxxx Xxxxxx
Title: VP
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XXXXXXX X. XXXXX & SONS SPECIAL
SITUATIONS PARTNERS II, L.P.
By: /s/ Xxxx Xxxxxx
-----------------
Name: Xxxx Xxxxxx
Title: Principal
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
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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 Fourth and Fifth
Amendments to the Amended and Restated Multicurrency Credit Agreement and to the
terms and provisions of the Amendment Agreement amending the UK Facility, dated
February 12, 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 Fifth Amendment
to the Credit Agreement and the Amendment Agreement amending the UK Facility.
AIR CARGO EQUIPMENT (UK) LIMITED
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Director
APPLIED POWER LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW CASES EUROPE LTD. (formerly
known as ZERO CASES EUROPE LTD.)
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Director
APW ELECTRONICS GMBH
By: /s/ Xxx Xx Xxxxxx
---------------------------
Name: Xxx Xx Xxxxxx
Title: Managing Director
APW ELECTRONICS GROUP PLC
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW ELECTRONICS LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW ELECTRONICS OVERSEAS
INVESTMENTS LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW ENCLOSURE PRODUCTS AND
SYSTEMS LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW ENCLOSURE SYSTEMS (UK) LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
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APW ENCLOSURE SYSTEMS HOLDING,
INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
APW ENCLOSURE SYSTEMS HOLDINGS,
LTD.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW ENCLOSURES SYSTEMS, LP by
APW Enclosure Systems Holding, Inc., its
General Partner
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
APW ENCLOSURE SYSTEMS PLC
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW ENCLOSURE SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
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APW ENCLOSURES (DUBLIN) LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW ENCLOSURES LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW FINANCE LIMITED
By: /s/ Xxx Xx Xxxxxx
---------------------------
Name: Xxx Xx Xxxxxx
Title: Director
APW GALWAY LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW HOLDING B.V.
By: /s/ Xxx Xx Xxxxxx
---------------------------
Name: Xxx Xx Xxxxxx
Title: Director
APW HOLDINGS (EUROPE) LTD.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
4
APW HOLDINGS (UK) LTD.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW INVESTMENTS UK LTD.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW MAYVILLE LLC
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
APW MAYVILLE LTD.
By: Xxxxx Xxxxxxx
---------------------------
Name:
Title:
APW NETHERLANDS B.V.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW NEW FOREST LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
0
XXX XXXXX XXXXXXX, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
APW POWER SUPPLIES AS
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: Director
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Director
APW POWER SUPPLIES LTD.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW PRODUCTS AND SYSTEMS B.V.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
APW XXXXXX LINE LLC
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
APW-ERIE, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
6
ASPEN MOTION TECHNOLOGIES INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
BEELEY WOOD HOLDINGS LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
C FAB DEVELOPMENT LTD.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
CAMBRIDGE AEROFLO, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
CIPRESMAD-CONSULTORES E
SERVICOS, LTD.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------
Name:
Title:
CIPRESMAD HUNGARY GROUP
FINANCING LLC
By: /s/ Xxxxxx Xxxxxxxx
---------------------------
Name:
Title:
7
XXXX INDUSTRIES INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
ELECTRONIC SOLUTIONS
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
ELECTRONICS PACKAGING LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
HIGH SPEED PRODUCTION (HOLDINGS)
LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
XXXXXXXX ELECTRONICS LIMITED
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: Director
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Director
XXXXXXXX SECURITY SYSTEMS LTD.
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: Director
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Director
8
HSP SHEFFIELD LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
HSP STRATHCLYDE LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
XXXXX-BEDCO LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
XXXXX-BEDCO STANDARD PRODUCTS LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
XXXXX-BEDCO SPECIAL PRODUCTS LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
INNOVATIVE METAL FABRICATION, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
9
J XXXXXXX MANUFACTURING
(IRELAND) LTD.
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
XXXXXX MIDWEST CORPORATION
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
XXXXXX WEST INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
METAL ARTS MANUFACTURING, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
PRECISION FABRICATION
TECHNOLOGIES INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
RUBICON FINANCE LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
10
TOWERFLAME LIMITED
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Director
VERO CIRCUITBOARDS LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
VERO CONNECTORS LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
VERO ELECTRONICS (EXPORTS) LTD
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
VERO ELECTRONICS, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
XXXXXX LINE EUROPE B.V.
By: /s/ Xxx Xx Xxxxxx
---------------------------
Name: Xxx Xx Xxxxxx
Title: Director
XXXXXX LINE LIMITED
By: /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Company Secretary
ZERO-EAST DIVISION, ZERO
CORPORATION
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name:
Title:
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