Loading...
HomeMy WebLinkAbout910922 RECEIVED 8/15/2005 at 11:51 AM RECEIVING # 910922 BOOK: 594 PAGE: 41)1 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY L O0401 FIFTH SUPPLEMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS Dated as of ~ ~O,.~,'~ "LO__, 2005 From NORTHERN FOOD AND DAIRY, INC. To (the "Mortgagor") HARRIS N.A., as successor by merger with Harris Trust and Savings Bank (the "Mortgagee") (Wyoming) This iustrument was prepared by: Daniel W. Baker, Esq. Chapman and Cutler LLP 111 West Monroe Street Chicago', Illinois 60603 (312) 845-3790 1891795.01.04 1550193 [199 West 2"d Avenue Afton, Wyoming 83110] FIFTH SUPPLEMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS 00402 This Fifth Supplement to Mortgage and Security Agreement with Assignment of Rents dated as of ~.'~ 'LDo, 2005 (the "Supplement") fi'om Northern Food and Dairy, Inc., a Minnesota corporation with its principal place of business and mailing address at 2214 Geneva Road, N.E., Alexandria, Minnesota 56308 (hereinafter referred to as the "Mortgagor")to Harris N.A., a national banking association, as successor by merger with Harris Trust and Savings Bank, an Illinois banking corporation with its principal place of business and mailing address at 111 West Monroe Street, Chicago, Illinois 60603, individually and in its capacity as U.S. Security Agent under the Credit Agreement referred to below (hereinafter referred to as the "Mortgagee"); WITNESSETH THAT: WHEREAS, Mortgagor did heretofore execute and deliver to Mortgagee that certain Mortgage and Security Agreement with Assignment of Rents dated as of March 15, 2002 and recorded in the Recorder's Office of Lincoln County, Wyoming on April 8, 2002 as Document No. 880158, Book 486, Page 840, as supplemented by that certain First Supplement to Mortgage and Security Agreement with Assignment of Rents dated as of November 25, 2002 and recorded in the Recorder's Office of Lincoln County, Wyoming on January 8, 2003 as Document No. 886757, Book 509, Page 116, as supplemented by that certain Second Supplement to Mortgage and Security Agreement with Assignment of Rents dated as of February 21, 2003 and recorded in the Recorder's Office of Lincoln County, Wyoming, on March 10, 2003 as Document No. 888294, Book 514PR, Page 549, as supplemented by that certain Third Supplement to Mortgage and Security Agreement with Assignment of Rents dated as of May 16, 2003 and recorded in the Recorder's Office of Lincoln County, Wyoming, on June 23, 2003 as Document No. 891034, Book 524, Page 866, and as supplemented by that certain Fourth Supplement to Mortgage and Security Agreement with Assignment of Rents dated as of July 7, 2004 and recorded in the Recorder's Office of Lincoln County, Wyoming, on July 19, 2004 as Document No. 901162, Book 562, Page 325 (collectively the "Mortgage"), encumbering the property described on Schedule I attached hereto, in order to secure certain indebtedness, whether now outstanding or hereafter incurred, of SunOpta Food Group LLC ("SunOpta Food"), successor by merger with Sunrich Food Group, Inc., SunOpta Inc. ("SunOpta"), formerly known as Stake Technology Ltd., and SunOpta LP ("LP"), formerly known as Stake Tech LP (SunOpta Food, SunOpta, and LP being collectively referred to as the "Borrowers") owing to Bank of Montreal, a bank organized under the laws of Canada ("BMO"), Mortgagee and certain other lenders from time to time party to the Credit Agreement as hereinafter defined (collectively, the "Lenders"); and WHEREAS, the Mortgage currently secures, among other things, the obligations of (a) SunOpta, under a committed revolving credit facility in an aggregate principal amount not to exceed Canadian $15,000,000 (the "Canadian Revolving Credit Facility") in the form of loans, letters of credit and letters of guaranty payable no later than June 30, 2005, the final maturity thereof, with interest payable at the times and in the amounts set forth in that certain Amended and Restated Credit Agreement dated as of July 7, 2004 by and among the Borrowers, BMO, Mortgagee and the other Lenders (such Amended and Restated Credit Agreement, as the same may be amended, supplemented or restated, including restatements in its entirety, and including 1891795.01.04 1550193 o91o92 004 that certain Second Amended and Restated Credit Agreement dated February 17, 2005, being hereinafter referred to as the "Credit Agreement"), (b) SunRich, under a committed revolving credit facility in an aggregate principal amount not to exceed U.S. $17,500,000 (the "U.S. Revolving Credit Facility") in the form of loans and letters of credit payable no later than June 30, 2005, the final maturity thereof, with interest payable at the times and in the amounts set forth in the Credit Agreement, (c) LP, under a committed non-revolving reducing term credit facility in the aggregate principal amount not to exceed U.S. $35,000,000 (the "Term Facility") payable no later than June 30, 2008, the final maturity thereof, with interest payable at the times and in the amounts set forth in the Credit Agreement, and (d) LP, under a committed acquisition term credit facility in the aggregate principal amount not to exceed U.S. $10,000,000 (the "Acquisition Facility"; the Canadian Revolving Credit Facility, the U.S. Revolving Credit Facility, the Term Facility, the Acquisition Facility, and any and all facilities made in substitution of or replacement for or in extension or renewal thereof in whole or in part, as any of the foregoing may from time to time be modified or amended, including amendments and restatements thereof in their entirety, being referred to herein collectively as the "Facilities") payable no later than June 30, 2008, the final maturity thereof, with interest payable at the times and in the amounts set forth in the Credit Agreement; and WHEREAS, the Borrowers, certain affiliates of the Borrowers, BMO, Mortgagee and the other Lenders have concurrently herewith entered into a First Amending Agreement made as of ,~I~( -,,.o_, 2005 (the "Amendment") pursuant to which BMO, Mortgagee and the other Lenders have agreed to (i) extend the maturity date of the Canadian Revolving Credit Facility from June 30, 2005 to June 29, 2006, (ii) extend the maturity date of the U.S. Revolving Credit Facility from June 30, 2005 to June 29, 2006, and (iii) increase the aggregate principal amount of the U.S. Revolving Credit Facility from U.S. $17,500,000 to U.S. $22,500,000; and WHEREAS, as a condition precedent to entering into the Amendment and making certain other financial accommodations to the Borrowers, Mortgagee requires Mortgagor, and to accommodate that requirement Mortgagor desires by this Supplement, to confirm and assure that all the real estate and other properties, rights, interests and privileges of Mortgagor which are currently subject to the lien of the Mortgage be and constitute collateral security for the Facilities as extended and increased; NOW, THEREFORE, for and in consideration of the execution and delivery by Mortgagee and the other Lenders of the Amendment, and other good and valuable consideration, receipt whereof is hereby acknowledged, Mortgagor and Mortgagee do hereby mutually promise and agree as follows, to wit: 1. The Mortgage shall be and hereby is amended to replace the amount "Forty Million Dollars ($40,000,000)" in paragraph 26 of the Mortgage with the amount "One Hundred Million U.S. Dollars ($100,000,000)" in lieu thereof. 2. The Mortgage shall be and hereby is amended to replace the name "Harris Trust and Savings Bank, an Illinois banking corporation" in the first paragraph of the Mortgage with the name "Harris N.A., a national banking association, as successor by merger with Harris Trust and Savings Bank" in lieu thereof. 0 3 -2- '00404 3, It is hereby agreed that the Facilities and all other obligations of the Borrowers under the Credit Agreement as amended by the Amendment shall continue to be secured by the Mortgage in the same manner as if such indebtedness had been specifically described therein as indebtedness secured thereby. All references to the Canadian Revolving Credit and U.S. Revolving Credit contained in the Mortgage shall be deemed to be references to the Canadian Revolving Credit and U.S. Revolving Credit, respectively, as amended pursuant to the Amendment. 4. Mortgagor hereby represents and warrants to Mortgagee that as of the date hereof each of the representations and warranties set forth in the Mortgage as supplemented hereby are true and correct and that no Event of Default (as such term is defined in the Mortgage), or any other event which with the lapse of time or the giving of notice, or both, would constitute such an Event of Default, has occurred and is continuing or shall result after giving effect to this Supplement. Mortgagor hereby repeats and reaffirms all covenants and agreements contained in the Mortgage, each and all of which shall be applicable to all of the indebtedness secured by the Mortgage as supplemented hereby. Mortgagor repeats and reaffirms its covenant that all the indebtedness secured by the Mortgage as supplemented hereby will be promptly paid as and when the same becomes due and payable. 5. All capitalized terms used herein without definition shall have the same meanings herein as they have in the Mortgage. The definitions provided herein of any capitalized terms shall apply to such capitalized terms as the same appear in the Mortgage as supplemented hereby, all to the end that any capitalized terms defined herein and used in the Mortgage as supplemented hereby shall have the same meanings in the Mortgage as supplemented hereby as are given to such capitalized terms herein. Without limiting the foregoing, all references in the Mortgage to the term "indebtedness hereby secured" shall be deemed references to all the indebtedness, obligations and liabilities secured by the Mortgage as supplemented hereby. 6. This Supplement is supplementary to said Mortgage. All provisions of the Mortgage as supplemented by this Supplement and the Credit Agreement as amended by the Amendment, including the right to declare the principal and accrued interest due on the Facilities for any cause specified in the Credit Agreement, shall remain in full force and effect, it being the expressed intent of the parties that the indebtedness heretofore described is not discharged but merely extended pursuant to the terms of this Supplement. The provisions of this Supplement shall bind the heirs, personal representatives, successors and assigns of Mortgagor. 7. This Supplement may be executed in any number of counterparts and by different parties hereto on separate counterpart signature pages, each of which wh'en so executed shall be an original but all of which to constitute one and the same instrument. 8. No reference to this Supplement need be made in any note, instrument or other document making reference to the Mortgage, any reference to the Mortgage in any of such to be deemed to be a reference to the Mortgage as amended and extended hereby. This Supplement shall be construed and governed by and in accordance with the laws of the state where the property described on Schedule I hereto is located. [SIGNATURE PAGE TO FOLLOW] -3- ; 004( 5 IN WITNESS WHEREOF, Mortgagor has caused these presents to be signed and sealed the day and year tn, st above written. NORTHERN FOOD AND DAIRY, INC., as Mortgagor Title ~crq~pgr~ Accepted and agreed to as of the date fn'st above written. HARRIS N.A., as successor by merger with Harris Trust and Savings Bank, as Mortgagee By Name Title -4- 004O6 IN WITNESS WHEREOF, Mortgagor has caused these presents to be signed and sealed the day and year first above written. NORTHERN FOOD AND DAIRY, INC., as Mortgagor By Name Title Accepted and agreed to as of the date first above written. HARRIS N.A., as successor by merger with Harris Trust and Savings Bank, as Mortgagee Name Title x~c~ ,.004O7 PROVINCE OF ONTARIO ) ) SS. CANADA ) .~e forego~g instrument was acknoxyl~dged before~me this// day of'.c~_, 2005, the ' ~ ._ z by _//'-~,',~/ /.,//xt;~, ~,? , x--~ ~ .~ .~.f Northern Food and Dau-y, Inc, a Minnesota corporation, on behalf of the corporation. (Type or Print Name) (Notarial Seal) ."'~ni's,si°n Expires: ~ Ms I~ent was D~g[~. Baker, Esq. Chapman and Cutler LLP 111 West Mo~oe Street Chicago, Illinois 60603 1891795.01.02.B 1550193 004{)8 STATE OF ILLINOIS COUNTY OF COOK ) ) ss. ) I, the undersigned, Notary Public in and for said County, in the State aforesaid, do hereby certify that Shane Koonce, Vice President of Harris N.A., a national banking association, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such Vice President, appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act and as the free and voluntary act and deed of said association for the uses and purposes therein set forth. Given under my hand and notarial seal, as of this '"t-0~'~' day of July, 2005. il ~.vk~ B aa~t~ J JJ Notary Public State of IHInot~ J~ l[ MyComm~.ionExpir. 08/13/07 _l Notary Public David B. Roberts (Type or Print Name) (Notarial Seal) Commission Expires: SCHEDULE I LEGAL DESCRIpTioN 004O9 Part of Section 25, T32N RllgW of the 6th P.M., Lincoln County, Wyoming being mot9 particularly described as follows: COMMENCIN~ at a Point which is 1475 feet West and 200 feet North of the EX co~ner of said Section 25, and runnin~ thence N 900 W, 483.35 feet; thence N 0~ W, 250 feet; thence N 90° E, 483.35 feet: thence S 0o E, 250 feet to the POINT OF BEGINNING.