Exhibit 99.10
FIRST AMENDMENT TO LEASEHOLD DEED OF TRUST,
SECURITY AGREEMENT, FINANCING STATEMENT AND
ASSIGNMENT OF LEASES AND RENTS
THIS FIRST AMENDMENT TO LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT,
FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND RENTS (this "Amendment") is
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dated as of May 16, 2002 and is by and between APW ENCLOSURE SYSTEMS, INC., a
Delaware corporation, as Trustor (the "Mortgagor"), and BANK OF AMERICA, N.A., a
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national banking association ("Bank of America"), in its capacity as
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Post-Petition Agent for the financial institutions as are, or may from time to
time become, parties to the Post-Petition Credit Agreement (as such terms are
hereinafter defined) and in its capacity as Administrative Agent for the
financial institutions as are, or may from time to time become, parties to the
Credit Agreement (as such term is hereinafter defined).
RECITALS:
A. Contemporaneously herewith, APW Ltd. (the "Company"), various
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financial institutions (the "Lenders") and Bank of America, as the post-petition
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agent and U.S. collateral agent (in such capacities, the "Post-Petition Agent",
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are entering into a Post-Petition Multicurrency Superpriority Credit Agreement
(the "Post-Petition Credit Agreement").
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B. The Company, various financial institutions (the "Banks") and Bank
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of America, as administrative agent, have previously entered into an Amended and
Restated Multicurrency Credit Agreement dated as of May 15, 2001 (as amended,
the "Credit Agreement").
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C. The Lenders have required as a condition to making the extensions of
credit provided for in the Post-Petition Credit Agreement that the Mortgagor
become a party to the Guaranty, dated May 16, 2002 (the "Post-Petition
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Guaranty") wherein Mortgagor guaranties the obligations of the Company under the
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Post-Petition Credit Agreement.
D. The Mortgagor has executed and delivered to secure its obligations
to Bank of America , in its capacity as administrative agent under the Credit
Agreement, a Leasehold Deed of Trust, Security Agreement, Financing Statement
and Assignment of Leases and Rents (as such term is defined in the Credit
Agreement) (the "Original Mortgage") in favor of First American Title Insurance
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Company, which shall hereafter secure the Mortgagor's obligations with respect
to both the Post-Petition Credit Agreement and the Credit Agreement. The
Original Mortgage relates to real property legally described on Exhibit A hereto
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(the "Mortgaged Property"). The Original Mortgage was recorded in the real
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property records of the county in which the Mortgaged Property is situated, and
recording information for the Original Mortgage is set forth on Exhibit B
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hereto.
E. In connection with the execution of Post-Petition Credit Agreement,
and as a requirement to the effectiveness thereof, the Company, the Mortgagor
and other Subsidiaries of the Company have executed and delivered a
Reaffirmation of Guaranties (the "Reaffirmation") to
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confirm the effectiveness of each individual guaranty (the "Original
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Guaranties") executed by the Mortgagor as required in connection with the Credit
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Agreement and the Post-Petition Guaranty and various other loan documents and
that the Original Mortgage as amended hereby relates to the obligations of the
Company under both the Credit Agreement and the Post-Petition Credit Agreement.
As a further condition to the effectiveness of the Post-Petition Credit
Agreement, the Lenders have required that the Mortgagor execute and deliver this
Amendment.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual agreement contained
herein, the Original Mortgage is amended, and the parties hereto agree, as
follows:
1. Recital; Trustor; Deed of Trust. The Recitals of the Original
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Mortgage are hereby amended to incorporate the Recitals of this Amendment. For
ease of reference, the terms "Trustor" and "Mortgagor" and the terms "Mortgage"
and "Deed of Trust" shall be deemed to have the same meaning.
2. Guaranty. The term "Guaranty", as used in the Original Mortgage, is
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hereby amended to mean the Original Guaranties as confirmed by the Reaffirmation
and the Post-Petition Guaranty.
3. Banks. Except as the context may otherwise require, as determined in
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the reasonable discretion of the Post-Petition Agent, the term "Banks" is hereby
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amended to mean the Banks (as such term is defined in the Credit Agreement) and
the Lenders (as such term is defined in the Post-Petition Credit Agreement).
4. The Credit Agreement. The term "Credit Agreement," as used in the
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Original Mortgage, is hereby amended to mean both the Credit Agreement and the
Post-Petition Credit Agreement, as the same may be amended, modified, replaced
or substituted from time to time. Any other term (including, without limitation,
"Obligations" or "Loan Documents") used in the Original Mortgage as amended
hereby that is defined by reference to the "Credit Agreement" shall be deemed
defined by reference to the Post-Petition Credit Agreement.
5. Other Defined Terms. Other capitalized terms used in this Amendment
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and not otherwise defined herein shall have the respective meanings assigned to
such terms in the Original Mortgage, or if not defined therein, the respective
meanings given in the Post-Petition Credit Agreement. In the event of any
inconsistency in defined terms between the Credit Agreement, the Post-Petition
Credit Agreement, the Mortgage or the other Loan Documents shall be resolved by
the Post-Petition Agent in its reasonable discretion.
6. Lien Priority. Nothing contained herein shall in any manner affect
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or impair the priority of the lien of the Original Mortgage as to the
indebtedness secured thereby prior to giving effect to this Amendment, nor
affect any other security held by the Post-Petition Agent on
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behalf of the Banks to secure repayment or performance of the obligations
referred to therein, nor constitute a novation of the Original Mortgage or the
obligations secured thereby.
7. Intercreditor Agreement. Any proceeds of the Mortgaged Property
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shall be applied by the Post-Petition Agent to payment of expenses, including
reasonable attorneys' fees and legal expenses, and thereafter to the payment of
any and all Liabilities in such order of application as required by that certain
Intercreditor Agreement (the "Intercreditor Agreement"), as defined for purposes
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of the Post-Petition Credit Agreement, as the Intercreditor Agreement may be
amended, modified, replaced or substituted from time to time.
8. Reaffirmation. The Mortgagor hereby repeats, reaffirms and remakes
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all representations, warranties, covenants and agreements contained in the
Original Mortgage as of the date of this Amendment.
9. Representations. The Mortgagor represents and warrants that (i) no
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default or event of default currently exists under the Original Mortgage as
amended hereby or any of the other Loan Documents; and (ii) no condition exists
which with the giving of notice or the passage of time, or both, would result in
such a default or event of default, except as may arise as a result of the
commencement of a Chapter 11 proceeding in bankruptcy by the Mortgagor or its
affiliates.
10. Full Force and Effect. All of the provisions, rights, powers and
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remedies contained in the Original Mortgage shall stand and remain unchanged and
in full force and effect, except to the extent specifically amended hereby, and
shall be applicable to all of the properties, rights and privileges subject to
the lien of the Original Mortgage as amended hereby.
11. References. No reference to this Amendment need be made in any
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instrument or document at any time referring to the "Mortgage", and any
reference in any such instrument or document to the "Mortgage" shall be deemed
to be a reference to the Original Mortgage as amended hereby and as further
amended, modified, replaced or substituted from time to time.
12. Time of the Essence. Time is of the essence with respect to the
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performance of all of the obligations to be performed under the Original
Mortgage as amended hereby.
13. Successors and Assigns. The Original Mortgage as amended hereby
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binds the Mortgagor and its successors, assigns, heirs, administrators,
executors, agents and representatives and inures to the benefit of the
Post-Petition Agent and the Banks and their respective successors, assigns,
heirs, administrators, executors, agents and representatives.
14. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. Amendments. No provision of this Amendment or the Original Mortgage
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as amended hereby may be modified, amended or waived except by a writing
executed by the party
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sought to be bound thereby. No consent or approval of the Post-Petition Agent or
the Banks shall be given or deemed to have been given except to the extent
expressly set out in a writing executed and delivered by the Post-Petition Agent
to the Mortgagor.
16. Amendment as Loan Document. This Amendment shall be considered a
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Loan Document and a Collateral Document and shall be construed in conjunction
with the other Loan Documents and Collateral Documents.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment on the
date first above written.
[SEAL] APW ENCLOSURE SYSTEMS, INC., a Delaware
corporation, as Mortgagor
By: /s/ Xxxxxxx Xxxxxx
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Its: Treasurer
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[SEAL] BANK OF AMERICA, N.A., a national banking
association, as Post-Petition Agent
By: /s/ M. Xxxxxx XxXxxxxx
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Its: Managing Director
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This document was prepared by
and after recording should be
returned to:
Xxxxxx X. Xxxxxxxxxxx
Mayer, Brown, Xxxx & Maw
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
ACKNOWLEDGMENT
STATE OF WI )
) SS.
COUNTY OF WAUKESHA )
On this 16th day of May, 2002, before me appeared Xxxxxxx Xxxxxx to me
personally known, who, being by me duly sworn, did say that he is the Treasurer
of APW ENCLOSURE SYSTEMS, INC., a Delaware corporation, and that said instrument
was signed on behalf of said limited liability company, pursuant to due
authority, properly exercised, and said Treasurer acknowledged said instrument
to be the free act and deed of said Company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
A.M. Xxxxxxxxxx
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Notary Public
My term expires: 11/24/02
ACKNOWLEDGMENT
State of California )
) SS.
County of Los Angeles )
On May 16, 2002, before me, Xxxxx X. Xxxxx, Notary Public, personally
appeared Xxxxxxx Xxxxxx XxXxxxxx, personally known to me to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or entity upon behalf of which the person acted, executed
the instrument.
WITNESS my hand and official seal.
Xxxxx X. Xxxxx
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Notary Seal Signature of Notary Public
0000 Xxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx
EXHIBIT A
Legal Description
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PARCEL 1:
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The North 567.04 feet of that portion of Xxx 0 xx Xxxxx Xx. 00, xx xxx Xxxx xx
Xxxxxxx, Xxxxxx of Orange, State of California, as per map recorded in Book 10,
Page 22 of Miscellaneous Maps, in the office of the County Recorder of said
County, described as follows:
Beginning at a point on the North line of said Xxx 0, Xxxx 0000.00 feet from the
Northeast corner of said Lot 2, which point is the Northwest corner of the land
conveyed to Xxxx Xxxxxxx and others by deed recorded in Book 21, Page 117 of
Official Records of Orange County, California; thence West along the North line
of said Lot 2 and said line, extended to the centerline of Placentia Avenue, as
described in deed to the County of Orange, recorded March 22, 1920 in Book 358,
Page 19 of Deeds; thence South along the centerline of said avenue to a point on
the South line of said Lot 2; thence East along the South line of said Lot 2 to
a point which is 747.00 feet West of the Southeast corner of said Lot 2, said
point being the Southwest corner of the land conveyed by Xxxxx X. Xxxxxxxxxx and
wife to Xxxx Xxxxxxx and others by deed recorded in Book 21, Page 117 of
Official Records; thence in a Northerly direction along the Westerly line of
said land conveyed to Xxxx Xxxxxxx and others to the point of beginning.
Except that portion thereof lying Westerly of the Easterly line and its
Northerly and Southerly prolongations, of the land described in the lease
recorded January 20, 1967 in Book 8158, Page 796 of Official Records.
PARCEL 2:
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The East 50.00 feet of that portion of Xxx 0 xx Xxxxx Xx. 00, xx xxx Xxxx xx
Xxxxxxx, Xxxxxx of Orange, State of California, as shown on a map thereof
recorded in Book 10, Page 22 of Miscellaneous Maps, records of Orange County,
California, described as follows:
Beginning at the Southwest corner of Xxx 0 xx xxxx Xxxxx Xx. 00, said Southwest
corner also being the East quarter section corner of Section 26, Township 4
South, Range 10 West, in the Rancho San Xxxx Cajon De Santa Xxx, as shown on a
map thereof recorded in Book 51, Page 10 of Miscellaneous Maps, records of said
County; thence along the Southerly line of said Xxx 0, Xxxxx 00(Xxxxxx) 00' 00"
Xxxx 275.00 feet; thence South 0(Degree) 01' 00" East 280.00 feet to the true
point of beginning; thence continuing South 0(Degree) 01' 0" East 287.04 feet to
the Southerly line of the Northerly 567.04 feet of said Lot 2; thence Westerly
along said Southerly line to the centerline of State College Boulevard, formerly
Placentia Avenue, as described in deed to the County of Orange, recorded March
22, 1920 in Book 358, Page 19 of Deeds, records of said County; thence Northerly
along said centerline to a line that is parallel with the Northerly line of said
Lot 2 and passes through the true point of beginning; thence Easterly along said
last mentioned parallel line to the true point of beginning.
Common Address: 0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
PIN #: ----------------------------------
EXHIBIT B
Identification of Mortgage Document(s)
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Site Address: 0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
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Date of Date of
Document Document Recording Information Recording
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Leasehold Deed of Trust, Security 8/8/01 Recorded in Orange County 10/25/01
Agreement, Financing Statement and Clerk Recorder's Office as
Assignment of Leases and Rents. Instrument No. 2001-0757354.
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