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Home My WebLink About914586 " ¡t\ I:'. ~' 7 -. ,/ ~7· , I ,-< ,/, ., ~..¡ (Wyoming) 1959184,01,05 1550193 .' ,'.-- ;.i.l'~,'."~ :;:_':~i_ ~::_';d.:i.:..;~;~·~';¡-!.£.é,.,.~' . RECEIVED 12/20/2005 at 2:24 PM RECEIVING # 914586 BOOK: 607 PAGE: 880 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY r' nnCQ 0 \. :,j '.) Ü v SIXTH SUPPLEMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS Dated as of December 9, 2005 From NORTHERN FOOD AND DAIRY, INC. (the "Mortgagor") To HARRIS N.A., as successor by merger with I-Iarris Trust and Savings Bank (the "lvIortgagee") 59- 31/9'ê This instrument was prepared by: Daniel W. Baker, Esq. Chapman ane! Cutler LI.P III West Monroe Street Chicago, Illinois 60603 (312) 845-3790 [199 West 2nd A venue Alton, Wyoming 83110] · \ :' ' . ~ I:. ;¡:¡. . ' .' ..' . , ". ~;';';!.!. .;, ;' '.':' i (_ ~ ',;." , !-- (-'b'·' ,f\ .(:..\" '.¡ t~ -, G 'U J:'~ ...it...J '-'()r,081 ,...... Î;.) ~._. 0 - .J. SIXTH SUPPLEMENT TO MORTGAGE AND SECURITY ACIŒEMENT WITH ASSIGNMENT OF RENTS This Sixth Supplement to Mortgage and Security Agreement with Assignment of Rents dated as of December 9, 2005 (the "Supplement") from 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 "Mortgagor") to I-rarris N.A., a national banking association, as successor by merger with Harris Trust and Savings Bank, an Illinois bauking 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 "Mortgagee "); \" IT N E SSE T H T HAT: ,.' \VHEREAS, 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] 0,2003 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, 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 Docurnent No. 901162, Book 562, Page 325, and as supplemented by that certain Fifth Supplement to Mortgage and Security Agreement with Assignment of Rents dated as of July 20, 2005, and recorded in the Recorder's Office of Lincoln County, Wyoming, on August 15,2005 as Document No. 910922, Book 594, Page 401 (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 (" Sun Opt a Food"), successor by merger with Sunrich Food Group, Inc., SunOpta Inc. ("SuIlOpta "), 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 (" 8MO"), Mortgagee and certain other lenders from time to time party to the Credit Agreement as hereinafter defined (collecti vely, the "Lenders"); and \VHEREAS, 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 anel letters of guaranty payable no later than June 29,2006, the final maturity thereof, with interest payable at the times and in the amounts set forth in that certain Amended ~' . 195918401.05 1550193 "»;1;: ":!~<+::i¡'l~:~¡' "; ~<'" ,:. >'::J:'>:':;::J-:;~¡"'-" " - ." ,..:¡ .-'ÇìC US1L"k~à{) -, r (ì r) r, ( . !Ì . , "0' ./ ~",> \) \..~ V ., and Restated Credit Agreement dated as of July 7,2004 by and among the Borrowers, BMO, Mortgagee and the other Lenders (snch Amended and Restated Credit Agreement, as the same may be amended, supplemented or restated, including restatements in its entirety, and including that certain Second Amended and Restated Credit Agreement dated February 17, 2005 and that certain Third Amended and Restated Credit Agreement referred to below, being hereinafter referred to as the "Credit Agreement"), (b) SunOpta Food, under a committed revolving credit facility in an aggregate principal amount not to exceed U.S. $22,500,000 (the "U.S. Revolving Credit Facility") in the form of loans and letters of credit payable no later than June 29,2006, 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 Third Amended and Restated Credit Agreement made as of December 9, 2005 (such Third Amended and Restated Credit Agreement, as the same may be amended, supplemented or restated being hereinafter referred to as the "Restated Agreement") 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 29, 2006 to October 31,2006, which date may be further extended to October 30, 2007, (ii) extend the maturity date of the U.S. Revolving Credit Facility from June 29, 2006 to October 31, 2006, which date may be further extended to October 30, 2007, (iii) extend the maturity date of the Term Facility from June 30,2008 to December 1,2010, (iv) extend the maturity date of the Acquisition Facility from June 30, 2008 to October 31,2009, (v) increase the aggregate principal amount of the U.S. Revolving Credit Facility from U.S. $22,500,000 to U.S. $25,000,000, and (vi) increase the aggregate principal amount of the Term Facility from U.S. $35,000,000 to U.S. $45,000,000; and WHEREAS, as a condition precedent to entering into the Restated Agreement 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 Restated Agreement, and other good and val uable consideration, -2- ;-;::!:C¡:~¡:Hj;¡\!:;:¡¡;;:¡:¡:,:;:,:~ :-";:':,¡':;',: .': ,:.¡:;!;~;:;~;:;%:.~:;:, !.(,' ' 4j' ()";! t~t:¡;86 ~.. .._..1j....,..... ~~ ('¡r'l0g· 3 .\.". fl.) tJ 0 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 "One Hundred Million U.S. Dollars ($100,000,000)" in paragraph 26 of the Mortgage with the amount of "One Hundred Twenty Million U.S. Dollars ($120,000,000)" in lieu thereof. 2. It is hereby agreed that the Facilities and all other obligations of the Borrowers under the Credit Agreement as amended and restated by the Restated Agreement shall continue to be secured by the Mortgage in the same manner as if such indebtedness had been specifically descri bed therei n as indebtedness secured thereby. All references to the Canadian Re vol ving Credit Facility, U.S. Revolving Credit Facility, Term Facility and Acquisition Facility contained in the Mortgage shall be deemed to be references to the Canadian Revolving Credit Facility, U.S. Revolving Credit Facility, Term Facility and Acquisition Facility, respectively, as amended and restated pursuant to the Restated Agreement. 3. JVIortgagor 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. 4. 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. 5. This Supplement is supplementary to said Mortgage. All provisions of the Mortgage as supplemented by this Supplement and the Credit Agreement as amended and restated by the Restated Agreement, including the right to declare the principal and accrued interest due on the Facilities for any cause specified in the Restated 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 shedl bind the heirs, personal representatives, successors and assigns of Mortgagor. -3- ';<~>;,;:I;!;~~~.~:! - . ., ~. ; (.;.;.:.>:.:1;.:.:.:.>;, "p..,.,,{\,"\j~,86 \j ~--:ß .~~. --it IV;j ,.'.....Î"o(',O " J \ , '..) ,~ '.- '...' '.: () 0 11 6. This Supplement may be executed in any number of counterparts and by different parties hereto on separate counterpart signature pages, each of which when so executed shall be an original but all of which to constitute one and the same instrument. 7. 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 snch 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] -4- \¡¡U¡t~;j@j ..-....'...'<'.'..." ., ¡' ~, ,Ii. ,~.~ ,hj ¡c=: JZJ. () '0,;:) ._:.~...r.J'-J ' nn08r~ '}!.."Q V IN WITNESS WHEREOF, Mortgagor has caused these presents to be signed and sealed the day and year first above written. NORTHERN FOOD AND DAlRY, INC., as Mortgagor By \ r'__ ;~ '\ ~"~>____::::> N m~le.J..tiu, p,. ~t I' ¡ 'C. ~ Title S' ó. t. 'Í ~t- a...-- 'f \/ ..¡... l' r l::..,oL-.( II rt:--Î I Accepted and agreed to as of the date first above written. HARRIS N.A., as successor by merger with HalTis Trust and Savings Bank, as Mortgagee By ~~~~~ Name ~A~ ~ö~t~ Title \J, (r P1Lf~ I û f" ,..rr -5- . .q.......-,....., .,.............> " " .. S-èJ'-'6 ' ,'. ;, ',"~ t I'Ii . "..\ ~ \J ~:) .:..'~.~ " ' r ....... 1'" ("'I f'! G., ..' CÖ) PROVINCE OF ONTARIO ) ) SS. ) CANADA q~~ The foregoing instrument was acknowledged before me this _ day of ,1jec., 20GS, by \.1 II h V) 0 ¡' ê.·r { ' c h. ' the S ~c. ~/. oj' íítu"f.. of Northern Food and Dairy, Inc., a . . I Minnesota corporation, on behalf of the corporation. ,J/v~Ú:.";,,,," (Notarial Seal) N P ..~',\ "".·-:~:\L.~,:.i;',::;-Ú¡';'~:d~;/. .:.' ,..1 otary ubhç0'i^··........"[:,~ ~ '" . . <' . ", .·li~~~~~;¡···~~.i" U'(Et1í C/--{/t¡óA- , :';'~¡,!;,.'." ;£--fn--~1. =1 (Type or Print.f$~n~) 9 ? :!:; gl, "'\1>';'!>.: c:-:~ ' -<'" :;) " .t'.';., ..1 ...........,-:. ;/) "". ¡. ......... r Commission Expires: p eV"Vì'1ð-i-'J e--vi +- This Instrument was Drafted By: Daniel W. Baker, Esq. Chapman and Cutler LLP III West Monroe Street Chicago, Illinois 60603 1959184.01.03 1550193 :¡;It¡~ ~~mI¡¡jj!: ;~:!. ;',";';.;';1;.;.;1;'.' .;;;,;1;,;,;1;';,;,;,;,;,., "',"",".' " ""....'c.·¡,d~ "C' ", ," '·a'{.) ~J,,-j) ~"_~'!I.~ ('nn0n~» i., ',) ..J ü 0 ( STATE OF ILLINOIS ) ) SS. ) COUNTY OF COOK 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/she signed and delivered the said instrument as his/her 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 -Y day of December, 2005, cx:0/0íý/ 6 ~ Notary Public Official Seal David B Robarts MyNcotary PUblic State of II/inois ommlSSlon E ' )(PIres 08/13/07 [)({ <.Jv R ~ /êòb (¡\j) (Type or Print Name) (Notarial Seal) Commission Expires: ~ '- r)~01 1959184,0104.8 1550193 ;' ;'iX I <I ;1; ;H~: ~n ~,,:; : 1i ~:':: ;.'.', l..(i:;,:,~ :\~;' : \; ),'::" :;¡!:<, . .: ¡ ~ _:.;.;,:_:1:.:,:, ~.: .;\ ,', ~;;,)¡e " oC' .,1 f~ <"·."ð'u O,.J~:_;-o:[..J¡; . SCHEDULE r LEGAL ÐESCRrPTfON ('> i"1 (, (\ () 8,' '" :,) \.' 0Ò'· Part of Sectiori 25, T32N R119M of the Sth P.M., Lincoln County, Myoming being rnor~ particularly described as follows: COMMeNCING at "point which is 1475 feet Mest and 200 teet North ot the EN corner of said Section 25, and running thènce N 90' N, 483.35 teet; thence N 0° W, 250 feet; thence N 90° E, 483.35 feet; thence S 0° E, 25U£eet to the POINT OF BEGIN1iING. /