Exhibit 99.9
FIRST AMENDMENT TO DEED OF TRUST,
SECURITY AGREEMENT, FINANCING STATEMENT AND
ASSIGNMENT OF LEASES AND RENTS
THIS FIRST AMENDMENT TO DEED OF TRUST, SECURITY AGREEMENT, FINANCING
STATEMENT AND ASSIGNMENT OF LEASES AND RENTS (this "Amendment") is dated as of
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May 16, 2002 and is by and between APW MAYVILLE, LLC, a Delaware Limited
Liability Company, 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 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 Chicago Title Insurance Company, which
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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 (the "Mortgaged
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Property"). The Original Mortgage was recorded in the real property records of
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the county in which the Mortgaged Property is situated, and recording
information for the Original Mortgage is set forth on Exhibit B hereto.
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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,
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is 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
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in the reasonable discretion of the Post-Petition Agent,the term "Banks" is
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hereby 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
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Amendment 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
of the Post-Petition Credit Agreement, as the Intercreditor Agreement may be
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amended, modified, replaced or substituted from time to time.
8. Reaffirmation. The Mortgagor hereby repeats, reaffirms and emakes
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all representations, warranties, covenants andagreements 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.
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
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Mortgage as amended hereby may be modified, amended or waived except by a
writing executed by the party sought to be bound thereby. No consent or approval
of the Post-Petition Agent or the Banks shall
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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 MAYVILLE, LLC, a Delaware Limited
Liability Company, 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
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 Mayville, LLC, a Delaware Limited Liability Company, 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.
/s/ A. M. Xxxxxxxxxx
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Notary Public
My term expires: 11/24/02
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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 Xxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
EXHIBIT A
Legal Description
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A certain tract or parcel of land lying and being situated in Dutchville
Township, Granville County, North Carolina, at the Southeast corner of the
intersection of Lyon Station Road (S.R. 1104) and Ivac Way (S.R. 1231) and thus
described:
BEGINNING at a iron pipe set in the Southern margin of the right-of-way of Ivac
Way, said point being the Northwest corner of the property herein described;
thence S 85(Degrees)-16'-53" E 112,36' along the Southern right-of-way of Ivac
Way to a iron pipe set; thence continuing along the right-of-way of Ivac Way S
84(Degrees)-16-57" E 98.54' to an existing iron pipe; thence continuing along
the right-of-way of Ivac Way S 79(Degrees)-54'-05" E 501.44' to a iron pipe set
in the Southern margin of Ivac Way, said point being the Northwest corner of the
property of Xxxxx X. Xxxxx and Xxxx Xxxxx, now or formerly; thence leaving the
right-of-way of Ivac Way S 06(Degrees)-11'-15" W 209.94' an existing iron pipe;
thence S 06(Degrees)-13'-04" W 865.22' to an existing concrete monument, said
point being the Northwest corner of the property of Xxxx X. Xxxxx, now or
formerly; thence S 05(Degrees)-21'-00" W 124.31' to an existing iron pipe;
thence S 05(Degrees)-21'-16" W 416.38' to an existing concrete monument, said
point being the Northeast corner of the property of Metalvuoto Film, Inc., now
or formerly; thence N 88(Degrees)-06'-28" W 524.45' at an existing concrete
monument in the Eastern margin of the right-of-way of Lyon Station Road N
07(Degrees)-48'-24" W 658.10' to a iron pipe set; thence continuing along the
right-of-way of Lyon Station Road along a curve to the right having a radius of
1390.24' and a length of 273.84' to a iron pipe set; thence continuing along the
right-of-way of Lyon Station Road N 03(Degrees)-28'-45" E 736.39' to a iron pipe
set in the Eastern right-of-way of Lyon Station Road; thence leaving the
right-of-way of Lyon Sation Road N 49(Degrees)-05'-56" E 55.93' to the Southern
margin of the right-of-way Ivac Way and the point and place of BEGINNING,
containing 25.776 acres according to a survey entitled "Survey Map for APW
Mayville, LLC, A Delaware Limited Liability Company" dated February 7, 2001 by
Xxxxx X. Xxxxxx, Professional Land Surveyor.
EXHIBIT B
Identification of Mortgage Document(s)
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Site Address: 0000 Xxxx Xxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
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Date of Date of
Document Document Recording Information Recording
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Deed of Trust, Security 8/8/01 Recorded in Book 8/16/01
Agreement, Financing Statement Volume 865, Page 110
and Assignment of Leases and in Granville County Register
Rents. of Deeds.
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