Exhibit 4.14
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") dated as of March 30, 2001, is
among APW LTD., a Bermuda corporation (the "Parent"); APW NORTH AMERICA, INC., a
Delaware corporation ("APW-NA"); APW HOLDING DENMARK APS, a Denmark corporation
("APW-Denmark"); the other persons or entities which are listed on the signature
pages hereof as debtors or which from time to time become parties hereto as
debtors (collectively, including the Parent, APW-NA and APW-Denmark, the
"Debtors" and individually each a "Debtor"); and BANK OF AMERICA, NATIONAL
ASSOCIATION, in its capacity as administrative agent for the Banks referred to
below (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers have entered into a Multicurrency Credit Agreement
dated as of July 31, 2000 (as amended or otherwise modified from time to time,
the "Credit Agreement") with various financial institutions (together with their
respective successors and assigns, collectively the "Banks"), Bank One NA, as
Syndication Agent, The Chase Manhattan Bank, as Documentation Agent and the
Administrative Agent, pursuant to which such financial institutions have agreed
to make loans to, and issue or participate in letters of credit for the account
of, the Borrowers;
WHEREAS, the Parent, APW-NA, all Domestic Subsidiaries of APW-NA, and
certain other Subsidiaries of the Parent have executed and delivered, or will
execute and deliver, guaranties (as each such guaranty may be amended or
otherwise modified from time to time, as to each such guarantor, the "Guaranty")
of certain Obligations under the Credit Agreement;
WHEREAS, the Banks have no obligation at the present time to make
additional loans or issue or participate in additional letters of credit under
the Credit Agreement;
WHEREAS, as consideration to the Banks for their agreement to make certain
additional loans and issue and participate in certain additional letters of
credit, the Obligations of the Borrowers under the Credit Agreement and the
Guaranties to which it is a party and the Obligations of each other Debtor under
the Guaranty(ies) to which it is a party are to be secured pursuant to this
Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Borrowers under or
in connection with the Credit Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. When used herein, (a) the terms Certificated Security, Chattel
Paper, Deposit Account, Document, Equipment, Financial Asset, Fixture, Goods,
Inventory, Instrument, Investment Property, Security, Security Entitlement and
Uncertificated Security have the respective meanings assigned thereto in the UCC
(as defined below); (b) capitalized terms which are not otherwise defined herein
shall have the respective meanings assigned thereto in the Credit Agreement; and
(c) the following terms have the following meanings (such definitions to be
applicable to both the singular and plural forms of such terms):
Account Debtor means the party who is obligated on or under any Account
Receivable, Contract Right or General Intangible.
Account Receivable means, with respect to any Debtor, any right of such
Debtor to payment for goods sold or leased or for services rendered.
Assignee Deposit Account - see Section 4.
Collateral means, with respect to any Debtor, all property and rights of
such Debtor in which a security interest is granted hereunder.
Computer Hardware and Software means, with respect to any Debtor, all of
such Debtor's rights (including rights as licensee and lessee) with respect to
(i) computer and other electronic data processing hardware, including all
integrated computer systems, central processing units, memory units, display
terminals, printers, computer elements, card readers, tape drives, hard and soft
disk drives, cables, electrical supply hardware, generators, power equalizers,
accessories, peripheral devices and other related computer hardware; (ii) all
software programs designed for use on the computers and electronic data
processing hardware described in clause (i) above, including all operating
system software, utilities and application programs in whatsoever form (source
code and object code in magnetic tape, disk or hard copy format or any other
listings whatsoever); (iii) any firmware associated with any of the foregoing;
and (iv) any documentation for hardware, software and firmware described in
clauses (i), (ii) and (iii) above, including flow charts, logic diagrams,
manuals, specifications, training materials, charts and pseudo codes.
Contract Right means, with respect to any Debtor, any right of such Debtor
to payment under a contract for the sale or lease of goods or the rendering of
services, which right is at the time not yet earned by performance.
Default means the occurrence of: (a) any Default (as defined in the Credit
Agreement); or (b) any Event of Default.
General Intangibles means, with respect to any Debtor, all of such Debtor's
"general intangibles" as defined in the UCC and, in any event, includes (without
limitation) all of such Debtor's trademarks, trade names, patents, copyrights,
trade secrets, customer lists, inventions, designs, software programs, mask
works, goodwill, registrations, licenses, franchises, tax refund claims,
guarantee claims, security interests and rights to indemnification.
Intellectual Property means all past, present and future: trade secrets
and other proprietary information; trademarks, service marks, business names,
designs, logos, indicia and other source and/or business identifiers, and the
goodwill of the business relating thereto and all registrations or applications
for registrations which have heretofore been or may hereafter be issued thereon
throughout the world; copyrights (including copyrights for computer programs)
and copyright registrations or applications for registrations which have
heretofore been or may hereafter be issued throughout the world and all tangible
property embodying the copyrights; unpatented inventions (whether or not
patentable); patent applications and patents; industrial designs, industrial
design applications and registered industrial designs; license agreements
related to any of the foregoing and income therefrom; books, records, writings,
computer tapes or disks, flow diagrams, specification sheets, source codes,
object codes and other physical
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manifestations, embodiments or incorporations of any of the foregoing; the right
to xxx for all past, present and future infringements of any of the foregoing;
and all common law and other rights throughout the world in and to all of the
foregoing.
Liabilities means with respect to the Parent and any of its Subsidiaries
parties hereto, all Obligations (monetary or otherwise) of such Debtor under the
Credit Agreement, any Note, the Guaranty, any other Loan Document or any other
document or instrument executed in connection therewith, in each case howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due;
Non-Tangible Collateral means, with respect to any Debtor, collectively,
such Debtor's Accounts Receivable, Contract Rights and General Intangibles.
UCC means the Uniform Commercial Code as in effect in the State of Illinois
on the date of this Agreement; provided that, as used in Section 8 hereof, "UCC"
shall mean the Uniform Commercial Code as in effect from time to time in any
applicable jurisdiction.
2. Grant of Security Interest. As security for the payment of all
Liabilities, each Debtor hereby assigns to the Administrative Agent for the
benefit of the Administrative Agent and the Banks, and grants to the
Administrative Agent for the benefit of the Banks a continuing security interest
in, the following, whether now or hereafter existing or acquired:
All of such Debtor's:
(i) Accounts Receivable;
(ii) Certificated Securities;
(iii) Chattel Paper;
(iv) Computer Hardware and Software and all rights with respect thereto,
including, any and all licenses, options, warranties, service
contracts, program services, test rights, maintenance rights,
support rights, improvement rights, renewal rights and
indemnifications, and any substitutions, replacements, additions or
model conversions of any of the foregoing;
(v) Contract Rights;
(vi) Deposit Accounts;
(vii) Documents;
(viii) Financial Assets;
(ix) General Intangibles;
(x) Goods (including all of its Equipment, Fixtures and Inventory), and
all accessions, additions, attachments, improvements, substitutions
and replacements thereto and
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therefor;
(xi) Instruments;
(xii) Intellectual Property;
(xiii) Investment Property;
(xiv) money (of every jurisdiction whatsoever);
(xv) Security Entitlements;
(xvi) Uncertificated Securities; and
(xvii) to the extent not included in the foregoing, other personal
property of any kind or description;
together with all books, records, writings, data bases, information
and other property relating to, used or useful in connection with, or
evidencing, embodying, incorporating or referring to any of the
foregoing, and all proceeds, products, offspring, rents, issues,
profits and returns of and from any of the foregoing; provided that
to the extent that the provisions of any lease or license of Computer
Hardware and Software or Intellectual Property expressly prohibit
(which prohibition is enforceable under applicable law) the
assignment thereof, and the grant of a security interest therein,
such Debtor's rights in such lease or license shall be excluded from
the foregoing assignment and grant for so long as such prohibition
continues, it being understood that upon request of the
Administrative Agent, such Debtor will in good faith use reasonable
efforts to obtain consent for the creation of a security interest in
favor of the Administrative Agent in such Debtor's rights under such
lease or license; further provided that the Collateral shall not
include the "Receivables" (as defined in the Purchase and Sale
Agreement) and "Related Assets" (as defined in the Purchase and Sale
Agreement) sold or purported to be sold pursuant to that certain
Amended and Restated Purchase and Sale Agreement (as amended or
otherwise modified from time to time, the "Purchase and Sale
Agreement"), dated as of November 20, 1997, among the entities listed
on Schedule III thereto as originators, APW-NA (successor to Applied
Power Inc.), as guarantor and servicer, and Applied Power Credit
Corporation, as the initial purchaser.
3. Warranties. Each Debtor warrants that: (i) no financing statement
(other than any which may have been filed on behalf of the Administrative Agent
or in connection with liens expressly permitted by the Credit Agreement
("Permitted Liens")) covering any of the Collateral is on file in any public
office; (ii) such Debtor is and will be the lawful owner of all Collateral, free
of all liens and claims whatsoever, other than the security interest hereunder
and Permitted Liens, with full power and authority to execute this Agreement and
perform such Debtor's obligations hereunder, and to subject the Collateral to
the security interest hereunder; (iii) all information with respect to
Collateral and Account Debtors set forth in any schedule, certificate or other
writing at any time heretofore or hereafter furnished by such Debtor to the
Administrative Agent or any Bank is and will be true and correct in all material
respects as of the date furnished; (iv) such Debtor's chief executive office and
principal place of business are as set forth on Schedule I hereto (and such
Debtor has not maintained its chief executive office and principal place of
business at any other location at any time after February 28, 2000); (v) each
other location where such Debtor maintains a place of business or stores
inventory is set forth on
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Schedule II hereto; (vi) except as set forth on Schedule III hereto, such Debtor
is not now known and during the five years preceding the date hereof has not
previously been known by any trade name; (vii) except as set forth on Schedule
III hereto, during the five years preceding the date hereof such Debtor has not
been known by any legal name different from the one set forth on the signature
pages of this Agreement nor has such Debtor been the subject of any merger or
other corporate reorganization; (viii) Schedule IV hereto contains a complete
listing of all of such Debtor's Intellectual Property which is subject to
registration statutes; (ix) such Debtor is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation;
(x) the execution and delivery of this Agreement and the performance by such
Debtor of its obligations hereunder are within such Debtor's corporate powers,
have been duly authorized by all necessary corporate action, have received all
necessary governmental approval (if any shall be required), and do not and will
not contravene or conflict with any provision of law or of the charter or by-
laws of such Debtor or of any material agreement, indenture, instrument or other
document, or any material judgment, order or decree, which is binding upon such
Debtor; (xi) this Agreement is a legal, valid and binding obligation of such
Debtor, enforceable in accordance with its terms, except that the enforceability
of this Agreement may be limited by bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law); and (xii) such Debtor is in compliance with the
requirements of all applicable laws (including the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every governmental authority,
the non-compliance with which would reasonably be expected to result in a
Material Adverse Effect.
4. Collections, etc. Until such time during the existence of a Default
as the Administrative Agent shall notify such Debtor of the revocation of such
power and authority, each Debtor (a) may, in the ordinary course of its
business, at its own expense, sell, lease or furnish under contracts of service
any of the Inventory normally held by such Debtor for such purpose, use and
consume, in the ordinary course of its business, any raw materials, work in
process or materials normally held by such Debtor for such purpose, and use, in
the ordinary course of its business (but subject to the terms of the Credit
Agreement), the cash proceeds of Collateral and other money which constitutes
Collateral, (b) will, at its own expense, endeavor to collect, as and when due,
all amounts due under any of the Non-Tangible Collateral, including the taking
of such action with respect to such collection as the Administrative Agent may
reasonably request or, in the absence of such request, as such Debtor may deem
advisable, and (c) may grant, in the ordinary course of business, to any party
obligated on any of the Non-Tangible Collateral, any rebate, refund or allowance
to which such party may be lawfully entitled, and may accept, in connection
therewith, the return of Goods, the sale or lease of which shall have given rise
to such Non-Tangible Collateral. The Administrative Agent, however, may, at any
time that a Default exists, whether before or after any revocation of such power
and authority or the maturity of any of the Liabilities, notify any parties
obligated on any of the Non-Tangible Collateral to make payment to the
Administrative Agent of any amounts due or to become due thereunder and enforce
collection of any of the Non-Tangible Collateral by suit or otherwise and
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
indebtedness thereunder or evidenced thereby. Upon the request of the
Administrative Agent during the existence of a Default, each Debtor will, at its
own expense, notify any or all parties obligated on any of the Non-Tangible
Collateral to make payment to the Administrative Agent of any amounts due or to
become due thereunder.
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Upon request by the Administrative Agent during the existence of a Default,
each Debtor will forthwith, upon receipt, transmit and deliver to the
Administrative Agent, in the form received, all cash, checks, drafts and other
instruments or writings for the payment of money (properly endorsed, where
required, so that such items may be collected by the Administrative Agent) which
may be received by such Debtor at any time in full or partial payment or
otherwise as proceeds of any of the Collateral. Except as the Administrative
Agent may otherwise consent in writing, any such items which may be so received
by any Debtor will not be commingled with any other of its funds or property,
but will be held separate and apart from its own funds or property and upon
express trust for the Administrative Agent until delivery is made to the
Administrative Agent. Each Debtor will comply with the terms and conditions of
any consent given by the Administrative Agent pursuant to the foregoing
sentence.
During the existence of a Default, all items or amounts which are delivered
by any Debtor to the Administrative Agent on account of partial or full payment
or otherwise as proceeds of any of the Collateral shall be deposited to the
credit of a deposit account (each an "Assignee Deposit Account") of such Debtor
with the Administrative Agent (or another financial institution selected by the
Administrative Agent) over which the Administrative Agent has sole dominion and
control, as security for payment of the Liabilities. No Debtor shall have any
right to withdraw any funds deposited in the applicable Assignee Deposit
Account. The Administrative Agent may, from time to time, in its discretion,
and shall upon request of the applicable Debtor made not more than once in any
week, apply all or any of the then balance, representing collected funds, in the
Assignee Deposit Account toward payment of the Liabilities, whether or not then
due, in such order of application as the Administrative Agent may determine, and
the Administrative Agent may, from time to time, in its discretion, release all
or any of such balance to the applicable Debtor.
The Administrative Agent (or any designee of the Administrative Agent) is
authorized to endorse, in the name of the applicable Debtor, any item, howsoever
received by the Administrative Agent, representing any payment on or other
proceeds of any of the Collateral.
5. Certificates, Schedules and Reports. Each Debtor will from time to
time, as the Administrative Agent may request, deliver to the Administrative
Agent such schedules, certificates and reports respecting all or any of the
Collateral at the time subject to the security interest hereunder, and the items
or amounts received by such Debtor in full or partial payment of any of the
Collateral, as the Administrative Agent may reasonably request. Any such
schedule, certificate or report shall be executed by a duly authorized officer
of such Debtor and shall be in such form and detail as the Administrative Agent
may specify. Each Debtor shall immediately notify the Administrative Agent of
the occurrence of any event causing any loss or depreciation in the value of its
Inventory or other Goods which could reasonably be expected to result in a
Material Adverse Effect, and such notice shall specify the amount of such loss
or depreciation.
6. Agreements of the Debtors. Each Debtor (a) will, upon request of the
Administrative Agent, execute such financing statements and other documents (and
pay the cost of filing or recording the same in all public offices reasonably
deemed appropriate by the Administrative Agent) and do such other acts and
things (including, delivery to the Administrative Agent of any Instruments or
Certificated Securities which constitute Collateral), all as the Administrative
Agent may from time to time reasonably request, to establish and maintain a
valid security interest in the Collateral (free of all other liens, claims and
rights of
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third parties whatsoever, other than Permitted Liens) to secure the
payment of the Liabilities; (b) will keep all its Inventory at, and will not
maintain any place of business at any location other than, its address(es) shown
on Schedules I and II hereto or at such other addresses of which such Debtor
shall have given the Administrative Agent not less than 10 days' prior written
notice, (c) will keep its records concerning the Non-Tangible Collateral in such
a manner as will enable the Administrative Agent or its designees to determine
at any time the status of the Non-Tangible Collateral; (d) will furnish the
Administrative Agent such information concerning such Debtor, the Collateral and
the Account Debtors as the Administrative Agent may from time to time reasonably
request; (e) will permit the Administrative Agent and its designees, from time
to time, on reasonable notice and at reasonable times and intervals during
normal business hours (or at any time without notice during the existence of a
Default) to inspect such Debtor's Inventory and other Goods, and to inspect,
audit and make copies of and extracts from all records and other papers in the
possession of such Debtor pertaining to the Collateral and the Account Debtors,
and will, upon request of the Administrative Agent during the existence of a
Default, deliver to the Administrative Agent all of such records and papers; (f)
will, upon request of the Administrative Agent, stamp on its records concerning
the Collateral, and add on all Chattel Paper constituting a portion of the
Collateral, a notation, in form satisfactory to the Administrative Agent, of the
security interest of the Administrative Agent hereunder; (g) except for the sale
or lease of Inventory in the ordinary course of its business and sales of
Equipment which is no longer useful in its business or which is being replaced
by similar Equipment, will not sell, lease, assign or create or permit to exist
any Lien on any Collateral other than Permitted Liens; (h) without limiting the
provisions of Section 7.3 of the Credit Agreement, will at all times keep all of
its Inventory and other Goods insured under policies maintained with reputable,
financially sound insurance companies against loss, damage, theft and other
risks to such extent as is customarily maintained by companies similarly
situated, and cause all such policies to provide that loss thereunder shall be
payable to the Administrative Agent as its interest may appear (it being
understood that (A) so long as no Default shall be existing, the Administrative
Agent shall deliver any proceeds of such insurance which may be received by it
to such Debtor and (B) whenever a Default shall be existing, the Administrative
Agent may apply any proceeds of such insurance which may be received by it
toward payment of the Liabilities, whether or not due, in such order of
application as the Administrative Agent may determine), and such policies or
certificates thereof shall, if the Administrative Agent so requests, be
deposited with or furnished to the Administrative Agent; (i) will take such
actions as are reasonably necessary to keep its Inventory in good repair and
condition; (j) will take such actions as are reasonably necessary to keep its
Equipment in good repair and condition and in good working order, ordinary wear
and tear excepted; (k) will promptly pay when due all license fees, registration
fees, taxes, assessments and other charges which may be levied upon or assessed
against the ownership, operation, possession, maintenance or use of its
Equipment and other Goods; (l) will, upon request of the Administrative Agent,
(l) will take all steps reasonably necessary to protect, preserve and maintain
all of its rights in the Collateral; (m) except as listed on Schedule V, will
keep all of the tangible Collateral in the United States; and (n) will reimburse
the Administrative Agent for all expenses, including reasonable attorney's fees
and charges (including time charges of attorneys who are employees of the
Administrative Agent), incurred by the Administrative Agent in seeking to
collect or enforce any rights in respect of such Debtor's Collateral.
Any expenses incurred in protecting, preserving or maintaining any
Collateral shall be borne by the applicable Debtor. Whenever a Default shall be
existing, the Administrative Agent shall have the right to bring suit to enforce
any or all of the Intellectual Property or licenses thereunder, in which event
the applicable Debtor shall at the request of the Administrative Agent
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do any and all lawful acts and execute any and all proper documents required by
the Administrative Agent in aid of such enforcement and such Debtor shall
promptly, upon demand, reimburse and indemnify the Administrative Agent for all
costs and expenses incurred by the Administrative Agent in the exercise of its
rights under this Section 6. Notwithstanding the foregoing, the Administrative
Agent shall have no obligation or liability regarding the Collateral or any
thereof by reason of, or arising out of, this Agreement.
7 Default. Whenever a Default shall be existing, the Administrative
Agent may exercise from time to time any right or remedy available to it under
applicable law. Each Debtor agrees, in case of Default upon the request of the
Administrative Agent, (i) to assemble, at its expense, all its Inventory and
other Goods (other than Fixtures) at a convenient place or places acceptable to
the Administrative Agent, and (ii) to execute all such documents and do all such
other things which may be necessary or desirable in order to enable the
Administrative Agent or its nominee to be registered as owner of the
Intellectual Property with any competent registration authority. Any
notification of intended disposition of any of the Collateral required by law
shall be deemed reasonably and properly given if given at least ten days before
such disposition. Any proceeds of any disposition by the Administrative Agent
of any of the Collateral may be applied by the Administrative Agent to payment
of expenses in connection with the Collateral, including reasonable attorney's
fees and charges (including time charges of attorneys who are employees of the
Administrative Agent), and any balance of such proceeds may be applied by the
Administrative Agent toward the payment of such of the Liabilities, and in such
order of application, as the Administrative Agent may from time to time elect.
8 General. The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral in its
possession if it takes such action for that purpose as any applicable Debtor
requests in writing, but failure of the Administrative Agent to comply with any
such request shall not of itself be deemed a failure to exercise reasonable
care, and no failure of the Administrative Agent to preserve or protect any
right with respect to such Collateral against prior parties, or to do any act
with respect to the preservation of such Collateral not so requested by any
Debtor, shall be deemed of itself a failure to exercise reasonable care in the
custody or preservation of such Collateral.
Any notice from the Administrative Agent to any Debtor, if mailed, shall be
deemed given five days after the date mailed, postage prepaid, addressed to such
Debtor either at such Debtor's address shown on Schedule I hereto or at such
other address as such Debtor shall have specified in writing to the
Administrative Agent as its address for notices hereunder.
Each of the Debtors agrees to pay all expenses, including reasonable
attorney's fees and charges (including time charges of attorneys who are
employees of the Administrative Agent or any Bank) paid or incurred by the
Administrative Agent or any Bank in endeavoring to collect the Liabilities of
such Debtor, or any part thereof, and in enforcing this Agreement against such
Debtor, and such obligations will themselves be Liabilities.
No delay on the part of the Administrative Agent in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Administrative Agent of any right or remedy shall preclude other
or further exercise thereof or the exercise of any other right or remedy.
This Agreement shall remain in full force and effect until all Liabilities
have been paid in
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full and all Commitments have terminated. If at any time all or any part of any
payment theretofore applied by the Administrative Agent or any Bank to any of
the Liabilities is or must be rescinded or returned by the Administrative Agent
or such Bank for any reason whatsoever (including the insolvency, bankruptcy or
reorganization of any Debtor), such Liabilities shall, for the purposes of this
Agreement, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
the Administrative Agent or such Bank, and this Agreement shall continue to be
effective or be reinstated, as the case may be, as to such Liabilities, all as
though such application by the Administrative Agent or such Bank had not been
made.
This Agreement shall be construed in accordance with and governed by the
laws of the State of Illinois applicable to contracts made and to be performed
entirely within such State, subject, however, to the applicability of the UCC of
any jurisdiction in which any Goods of any Debtor may be located at any given
time. Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
This Agreement shall be binding upon each Debtor and the Administrative
Agent and their respective successors and assigns, and shall inure to the
benefit of each Debtor and the Administrative Agent and the successors and
assigns of the Administrative Agent. It is understood and agreed that this
Agreement shall be binding and enforceable against each Debtor which executes a
counterpart to this Agreement notwithstanding that any other Person shall not
become a party hereto as a "Debtor". As additional Debtors become parties, such
Debtors shall deliver their applicable Schedules.
This Agreement may be executed in any number of counterparts (including via
facsimile) and by the different parties hereto on separate counterparts, and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement. At any time
after the date of this Agreement, one or more additional Persons may become
parties hereto by executing and delivering to the Administrative Agent a
counterpart of this Agreement together with supplements to the Schedules hereto
setting forth all relevant information with respect to such party as of the date
of such delivery. Immediately upon such execution and delivery (and without any
further action), each such additional Person will become a party to, and will be
bound by all the terms of, this Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, MAY BE BROUGHT AND MAINTAINED IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH DEBTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH
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ABOVE. EACH DEBTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH ON SCHEDULE I HERETO
(OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE
ADMINISTRATIVE AGENT AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH DEBTOR HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH DEBTOR, THE ADMINISTRATIVE AGENT AND (BY ACCEPTING THE BENEFITS
HEREOF) EACH BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY
OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
DEBTORS:
APW LTD.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Xxxxx Xxxxxxx, Assistant Treasurer
APW NORTH AMERICA, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Xxxxx Xxxxxxx, Treasurer
APW HOLDING DENMARK APS
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxx
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DOMESTIC SUBSIDIARIES OF APW-NA:
APW ENCLOSURE SYSTEMS, INC.
APW-ERIE, INC.
ASPEN MOTION TECHNOLOGIES INC. CAMBRIDGE AEROFLO,
INC.
ELECTRONIC SOLUTIONS
HSP USA INC.
INNOVATIVE METAL FABRICATION, INC. XXXXXX MIDWEST
CORPORATION
XXXXXX WEST INC.
METAL ARTS MANUFACUTURING, INC.
PRECISION FABRICATION TECHNOLOGIES,
INC.
RUBICON USA, INC.
ZERO EAST DIVISION, ZERO CORPORATION
ZERO ENCLOSURES, INC.
ZERO INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Treasurer, Assistant
Treasurer or Chief Financial Officer, as
applicable
APW ENCLOSURE SYSTEMS HOLDING, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------------
Xxxxx Xxxxxxx, Treasurer
APW ENCLOSURE SYSTEMS, LP
By: APW ENCLOSURE SYSTEMS HOLDING, INC., its
General Partner
By: /s/ Xxxxx Xxxxxxx
----------------------------------------------
Xxxxx Xxxxxxx, Treasurer
S-2
DOMESTIC SUBSIDIARIES OF PARENT:
APW MAYVILLE, LLC
APW XXXXXX LINE LLC
ASPEN POWER SYSTEMS, LLC
XXXX INDUSTRIES INC.
VERO ELECTRONICS INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Xxxxx Xxxxxxx, Treasurer or Assistant
Treasurer
S-3
ADMINISTRATIVE AGENT:
BANK OF AMERICA, NATIONAL ASSOCIATION, as
Administrative Agent
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
S-4
Signature page for the Security Agreement dated as of _______, 2001
among APW Ltd., APW North America, Inc., APW Holding Denmark APS,
various other parties and Bank of America, National Association, as
Administrative Agent for the Banks referred to herein.
The undersigned is executing a counterpart hereof for purposes of
becoming a party hereto (and attached to this signature page are
supplements to the Schedules to the Security Agreement setting
forth all relevant information with respect to the undersigned):
[ADDITIONAL DEBTOR]
By:
Title:
S-5
