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HomeMy WebLinkAbout886757886757 FIRST SUPPLEMENT TO MORTGAGE AND SECLrRITY AGREEMENT WITH ASSIGNMENT OF RENTS Dated as of November 25, 2002 From NORTHERN FOOD AND DA1RY, INC. To (the "Company") HARRIS TRUST AND SAVINGS BANK (the "Mortgagee") (Wyoming) This instrument was prepared by: Daniel W. Baker Chapman and Cutler 111 West Monroe Street Chicago, Illinois 60603 (312) 845-3790 1378291.01.03.B 1550193/EA8 [199 West 2"d Avenue Afton, Wyoming 83110] FIRST SUPPLEMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS This First Supplement to Combination Mortgage and Security Agreement with Assignment of Rents dated as of November 25, 2002 (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 the "Mortgagor") to 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 60690 (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 (the "Mortgage"), encumbering the property described on Schedule I attached hereto, in order to secure certain indebtedness, whether now outstanding or hereafter incurred, of Sunrich Food Group, Inc. (the "U.S. Borrower") and Stake Technology Ltd. ("Stake"), Temisca, Inc., and Stake Tech LP ("LP") (collectively, the "Canadian Borrowers" and together with the U.S. Borrower, collectively, the "Borrowers') owing to Mortgagee; and WHEREAS, the Mortgage currently secures, among other things, (A) the obligations of the U.S. Borrower under that certain Facility B Loan Authorization Agreement dated as of March 15, 2002 pursuant to which the Mortgagee made available a revolvingcredit facility in the aggregate principal amount of .US$5,000,000 (the "Revolving Credit') at any one time outstanding available to the U.S. Borrower in the form of advances and letters of credit issued by Mortgagee and payable on demand; and (B) the obligations of the Canadian Borrowers under that certain Credit Agreement dated as of February 28, 2002 (the Credit Agreement as the same may be amended or modified from time to time, including amendments and restatements thereof in its entirety, being referred to herein as the "Credit Agreement') pursuant to which Bank of Montreal ("BMO") agreed, subject to certain terms and conditions, to make (i) to the Canadian Borrowers, a demand revolving credit (the "Canadian Revolving Credit') in an aggregate principal amount not to exceed Canadian $4,000,000 payable on demand, (ii) to LP, a demand non-revolving reducing credit facility ("Facility C'') in an aggregate principal amount of up to US$15,000,000 payable on demand and, if no demand is made, in installments as set forth in the Credit Agreement with a final' installment of principal not sooner paid due March 31, 2009, and (iii) to Stake, a demand treasury facility in an aggregate principal amount of Canadian $1,000,000 payable on demand; and WHEREAS, the parties to the Credit Agreement have previously entered into a First Amending Agreement dated as of July 3, 2002 (the "Amendmknt") whereby the parties have agreed, among other things, to increase :the amount of the Canadian Revolving Credit by Canadian $1,000,000 to Canadian $5,000,000 and to convert Facility C from a demand credit 1378291.01.03,B 1550193/EA$ [199 West 2"4 Avenue Alton, Wyoming 83110] facility to a term credit facility payable in installments as set forth in the Credit Agreement with a final installment of principal ,not sooner paid due not later than March 31, 2009; WHEREAS, Stake Acquisition Corp., a Delaware corporation ("Acquisition") and Mortgagee, individually and as Agent, and .the Lenders party thereto (the "Lenders"), have concurrently herewith entered into that certain Credit Agreement dated of even date herewith (said Credit Agreement, as the same may be amended, modified or restated from time to time, being hereinafter referred to as the "Acquisition Credit Agreement") whereby the Lenders have agreed to make a tender facility available to Acquisition in an amount of $17,000,000 to be evidenced by Term Notes of Acquisition payable to the order of the respective Lender named thereon (such Term Notes, and any and all notes issued in extension or renewal thereof or in substitution or replacement therefor, being hereinafter referred to as the "Acquisition Notes") payable no later than March 1, 2003; WHEREAS, as a condition precedent to entering into the Amendment and the Acquisition Credit Agreement and making certain other £mancial accommodations to the Borrowers and Acquisition, Mortgagee requires the 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 obligations of the Borrowers under the Canadian Revolving Credit and Facility C as increased and amended and for the obligations of Acquisition under the Acquisition Credit Agreement; NOW, THEREFORE, for and in consideration of the execution and delivery by Mortgagee 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. It is hereby agreed that all the obligations of the Canadian 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 Facility C contained in the Mortgage shall be deemed to be references to the Canadian Revolving Credit and Facility C as amended pursuant to the Amendment. 2. It is hereby agreed that all of the obligations of Acquisition under the Acquisition Credit Agreement, including, without limitation, those evidenced by the Acquisition Notes shall be secured by the Mortgage in the same manner as if such indebtedness had been specifically described therein as indebtedness secured therein. 3. 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 tree 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 -2- the Mortgage, each and all of which shall be applicable to all of the indebtedness secured by the Mortgage as supplemented hereby. The 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 and the Credit Agreement, including the right to declare the principal and accrued interest due thereon for any cause specified therein, 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 the Mortgagor. 6. This Supplement mY 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 such t6 be deemed to be a reference to the Mortgage as amended and extended hereby. This instrument shall be construed and governed by and in accordance with the laws of the state where the property described on Schedu!e.I hereto is located. [SIGNATURE PAGE TO FOLLOW] -3- IN WITNESS WHEP~OF, Mortgagor has caused these presents to be signed and sealed the day and year first above written in Chicago, Illinois. NORTHERN FOOD AND DAIRY, INC., a Minnesota corporation By. Name: {'] ,2 ~'~¥~2 . ;;/d~rl~¢c,'-'"'" Title: '~ -'~fl ~/!:t9 ' Accepted and agreed to as of the date first above written. HARRIS TRUST AND SAVINGS BANK, as Mortgagee By Name: Title: -4- IN WITNESS WHEREOF, Mortgagor has caused these presents to be signed and sealed the day and year first above written in Chicago, Illinois. NORTHERN FOOD AND DAIRY, INC., a Minnesota corporation By Name: Title: Accepted and agreed to as of the date first above written. HARRIS TRUST AND SAVINGS BANK, as Mortgagee By /~~)~, ~ Name: Title: -4- STATE OF ~~~_) ) ss. · The for_egoing instrument was acknowledged before me this ~ day of ~ 2002, by ~~t~ {'L~ , the fLF~ of Northern Food and Dairy, Inc., a Minnesota col~'-ration, on behalf of the corporation.. (Notarial' Seal) Commission Expires: This Instrument was Drafted By: Daniel W. Baker Chapman and Cutler 111 West Monroe Street Chicago, Illinois 60603 NQ~'Public (Type o{ Print' Name)- Tax Statements for the Real Property Described in this Instrument Should Be Sent to: 1375291.01.03.B 1550193/EA8 [199 West 2nd Avenue Aflon, Wyoming 83110] STATE OF ILLINOIS COUNTY OF COOK ) ) ss. ) I, the undersigned, Notary Public !n and for said County, in the State aforesaid, do hereby certify that/l/]ik~_a~/_.. L., l~c~t/,~ , V~'te 3g~ld~,,.t-. of Harris Trust and Savings Bank, an Illinois banking corporation, who is personally known to...rne to be the same person whose name is subscribed to the foregoing ~nstmment as suchl/,ce rJ~'t~¢,d~,~j]- , 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 corporation for the uses and purposes therein set forth. Given under my hand and notarial seal, as or this~/h day of a~c'g ew~ba/ , 2002. (Type or Print Name) (Notarial Seal) Commission Expires: ~ NOTARY E~U~LK,.. STATE OF ILLIIqOI$1, 1378291.o 1.03.B 1550193/EA$ [199 West 2nd Avenue Aflon, Wyoming 83110] SCHEDULE I LEGAL DESCRIPTION Part of Section 25, T32N Rllgw of the 6th P.M., Lincoln' County, Wyoming being more particularly described as follows: COMMENCING at a point which is 1475 feet West and 200.-feet North of the E~ corner of said Section 25, and running thence N 900 W, 483.35 feet; 'thence N 0° W, 250 feet; thence N 90° E, 483.35 feet; thence S 0° E, 250 feet to the POINT OF BEGINNING.