Exhibit 99.12
FIRST AMENDMENT TO OPEN-END LEASEHOLD MORTGAGE,
SECURITY AGREEMENT, FINANCING STATEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
THIS FIRST AMENDMENT TO OPEN-END LEASEHOLD MORTGAGE, SECURITY
AGREEMENT, FINANCING STATEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE
FILING (this "Amendment") is dated as of May 16, 2002 and is by and between VERO
---------
ELECTRONICS, INC., a New York corporation, as Mortgagor (the "Mortgagor"), and
---------
BANK OF AMERICA, N.A., a national banking association ("Bank of America"), in
---------------
its capacity as 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
-------
financial institutions (the "Lenders") and Bank of America, as the post-petition
-------
agent and U.S. collateral agent (in such capacities, the "Post-Petition Agent",
-------------------
are entering into a Post-Petition Multicurrency Superpriority Credit Agreement
(the "Post-Petition Credit Agreement").
------------------------------
B. The Company, various financial institutions (the "Banks") and Bank
-----
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").
----------------
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
-------------
Guaranty") wherein Mortgagor guaranties the obligations of the Company under the
--------
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, an Open-End Leasehold Mortgage, Security Agreement, Financing
Statement, Assignment of Leases and Rents and Fixture Filing (as such term is
defined in the Credit Agreement) (the "Original Mortgage") in favor of First
-----------------
American Title Insurance 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 (the "Mortgaged Property"). The Original Mortgage
--------- ------------------
was recorded in the real 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 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 confirm the effectiveness of each individual guaranty (the
-------------
"Original Guaranties") executed by the Mortgagor as required in connection with
-------------------
the Credit 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 amended to
-------
incorporate the Recitals of this Amendment.
2. Guaranty. The term "Guaranty", as used in the Original 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 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 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
--------------------
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
-------------------
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
-------------
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.
-2-
7. Intercreditor Agreement. Any proceeds of the Mortgaged Property
-----------------------
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
amended, modified, replaced or substituted from time to time.
8. Reaffirmation. The Mortgagor hereby repeats, reaffirms and 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) 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 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
----------
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
-------------------
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
----------------------
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
------------
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
----------
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
-3-
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
--------------------------
Loan Document and a Collateral Document and shall be construed in conjunction
with the other Loan Documents and Collateral Documents.
-4-
IN WITNESS WHEREOF, the undersigned have executed this Amendment on the
date first above written.
[SEAL] VERO ELECTRONICS, INC., a New York
corporation, as Mortgagor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Its: Treasurer
-----------------------------------
[SEAL] BANK OF AMERICA, N.A., a national banking
association, as Post-Petition Agent
By: /s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Its: Managing Director
-----------------------------------
This document was prepared by
and after recording should be
returned to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Mayer, Brown, ▇▇▇▇ & Maw
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
STATE OF WI )
) SS.
COUNTY OF WAUKESHA )
The foregoing instrument was acknowledged before me, a notary public,
this 17th day of May, 2002, by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of Vero Electronics, Inc., a New
York corporation. He is personally known to me or has produced a driver's
license or other satisfactory evidence of identification.
Notary: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇
(Seal) ----------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇
------------------------------
Notary Public, State of WI
----------------
Notary:
My Commision expires: 11/24/02
-----------
[Notarial Seal]
ACKNOWLEDGMENT
State of California )
) SS.
County of Los Angeles )
On May 16, 2002, before me, ▇▇▇▇▇ ▇. ▇▇▇▇▇, Notary Public, personally
appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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.
▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Notary Seal Signature of Notary Public
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
EXHIBIT A
Legal Description
-----------------
That certain piece of land, together with the improvements located thereon,
situated in the Town of Wallingford, County of New Haven and State of
Connecticut, being more particularly described as follows:
PARCEL 6
--------
Commencing at a point on the easterly side of Sterling Drive, which point
marks the northwest corner of land now or formerly of Novametrix Realty Corp.
and identified as Lot 18 on a map entitled, "Survey Plan, Property of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ Road, Wallingford, Connecticut dated March 17, 1989, Scale 1" xx 100",
and the southwest corner of the herein-described parcel, thence running N
04(Degrees) 15' 49" E a distance of 269.39 feet to a monument to be set; thence
turning and running along a curve to the right having a radius of 1030.00 feet a
distance of 344.92 feet to a point, the last two courses being along said
Sterling Drive as shown on the above-referenced map; thence turning and running
S 72(Degrees) 06' 38" E a distance of 909.10 feet to a point, said course being
along Lot 5 as identified on the above-referenced map; thence turning and
running along a wire fence S 17(Degrees) 53' 22" W a distance of 578.59 feet to
a point, said course being along land now or formerly of Fairfield Associates,
IV, Fairfield Associates III, and Fairfield Associates II, in part by each as
shown on the above-referenced map; thence turning and running N 73(Degrees) 54'
and 02" W a distance of 821.89 feet to the point and place of Novametrix Realty
Corp. and identified as Lot 18 on the above-reference map, said parcel
containing + 12.01 acres.
Common Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
PIN #: _____________________________________
EXHIBIT B
Identification of Mortgage Document(s)
--------------------------------------
Site Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------
Date of Date of
Document Document Recording Information Recording
-----------------------------------------------------------------------------------------------
Open-End Leasehold Mortgage, 8/9/01 Recorded in Book Volume 1000, 9/6/01
Security Agreement, Financing Page 287 in Wallingford Land
Statement, Assignment of Leases Records, New Haven County,
and Rents and Fixture Filing. Connecticut.
-----------------------------------------------------------------------------------------------