Exhibit 99.16
FIRST AMENDMENT TO LEASEHOLD MORTGAGE,
SECURITY AGREEMENT, FINANCING STATEMENT AND
ASSIGNMENT OF LEASES AND RENTS
THIS FIRST AMENDMENT TO LEASEHOLD MORTGAGE, 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 NORTH AMERICA INC., a
Delaware corporation, as Mortgagor (the "Mortgagor"), and BANK OF AMERICA, N.A.,
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a 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 Mortgage, 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 Company,
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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 (the
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"Mortgaged Property"). The Original Mortgage was recorded in the real property
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records of 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. The Recitals of the Original Mortgage are hereby
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amended to incorporate the Recitals of this Amendment.
2. Guaranty. The term "Guaranty", as used in the Original
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Mortgage, 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
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determined in the reasonable discretion of the Post-Petition Agent, the term
"Banks" is hereby amended to mean the Banks (as such term is defined in the
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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
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the 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
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affect 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 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.
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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
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remakes 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)
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no 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
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and 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 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.
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16. Amendment as Loan Document. This Amendment shall be considered
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a 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 NORTH AMERICA INC., a Delaware
corporation, as Mortgagor
By: /s/ Michael Gasick
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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. Duncan McDuffie
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Its: Managing Director
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This document was prepared by
and after recording should be
returned to:
Robert V. Fitzsimmons
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, Illinois 60603-3441
STATE OF WI )
) SS.
COUNTY OF WAUKESHA )
This instrument was acknowledged before me on 5/16/02, by
Michael Gasick, as Treasurer of APW North America Inc., a Delaware
corporation, on behalf of this corporation.
/s/ Anna M. Sanfilippo-Stankevich
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(Signature of notarial officer)
Notary Public
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(Seal, if any) Title (and Rank)
My commission expires: 11/24/02
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ACKNOWLEDGMENT
State of California )
) SS.
County of Los Angeles )
On May 16, 2002, before me, Marie I. Gayed, Notary Public, personally
appeared Malcolm Duncan McDuffie, 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.
Marie I. Gayed
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Notary Seal Signature of Notary Public
11611 Business Park Blvd.
Champlin, Minnesota
EXHIBIT A
Legal Description
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Lot 1, Block 1, Westwood North 3/rd/ Addition, excepting that part thereof lying
northerly of the following described line:
BEGINNING at a point on the North line of Section 31, Township 120 North, Range
21 West, Distant 237.03 feet Easterly of the North Quarter corner thereof;
THENCE run Southerly at an angle of 90 degrees 00 minutes 00 seconds from said
North Section line for 45 feet;
THENCE run Westerly parallel with said North Section line of 150 feet and there
terminating, Hennepin County, Minnesota.
Torrens Property
Certificate of Title No. 1048743
The above property is situated in Hennepin County, State of Minnesota.
Address: 11611 Business Park Blvd. N, Champlin, MN 55316
Tax Map or Parcel ID No.: 31-120-21 12 0073
EXHIBIT B
Identification of Mortgage Document(s)
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Site Address: 11611 Business Park Blvd.
Champlin, Minnesota
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Date of Date of
Document Document Recording Information Recording
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Leasehold Mortgage, Security Agreement, 8/8/01 Recorded in Hennepin County, 9/12/01
Financing Statement and Assignment of Leases Minnesota Recorder's Office
and Rents. (Document #3430769).
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