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HomeMy WebLinkAbout888294888294 RECEIVED LINOOLN COUNTY CLERK BOOK--PR PAGE SECOND SUPPLEMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS Dated as of February 21, 2003 Fro m NORTHERN FOOD AND DAIRY, 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 1468324.01 1550193/EAS [199 West 2"d Avenue Afton, Wyoming 83110] 550 SECOND SUPPLEMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS This Second Supplement to Combination Mortgage and Security Agreement with Assignment of Rents dated as of February 21, 2003 (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, as supplemented by that certain First Supplement to Combination 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 (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 Sunrich Food Group, Inc. ("SunRich"), Stake Acquisition Corp. ("Acquisition") and Stake Technology Ltd. ("Stake"), Temisca, Inc., and Stake Tech LP ("LP") (Stake, Temisca, Inc. and LP being collectively referred to as the "Canadian Borrowers") owing to Mortgagee or Bank of Montreal ("BMO "); and WHEREAS, the Mortgage currently secures, among other things, (A) the obligations of SunRich under that certain Facility B Loan Authorization Agreement dated as of March 15, 2002 pursuant to which Mortgagee made available a revolving credit facility in the aggregate principal amount of US$5,000,000 (the "Original U.S. Revolving Credit") at any one time outstanding available to SunRich in the form of advances and letters of credit issued by Mortgagee and payable on demand; (B) the obligations of the Canadian Borrowers under that certain Credit Agreement dated as of February 28, 2002, as amended prior to the date hereof (the "Original 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 "Original Canadian Revolving Credit") in an aggregate principal amount not to exceed Canadian $5,000,000 payable on demand, (ii)to LP, a term credit facility ("Original Facility C") in an aggregate principal amount of up to USS 15,000,000 payable 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 (c)the obligations of Acquisition under that certain Credit Agreement dated of even date herewith pursuant to which the lenders party thereto made a tender facility available to Acquisition in an amount of $17,000,000 (the "Tender Facility") payable no later than March 1, 2003; and 1468324.01.02 1550193/EAS [199 West 2nd Avenue Afton, Wyoming 83110] 551 WHEREAS, Stake, LP and SunRich (the "Borrowers") have entered into that certain Amended and Restated Credit Agreement dated as of February 21, 2003 (said Credit Agreement, as the same may be amended, supplemented or restated, including restatements in its entirety, being hereinafter referred to as the "Credit Agreement".) pursuant to which BMO, Mortgagee and certain other lenders from time to time party to the Credit Agreement (collectively, the "Lenders") have agreed to extend (a)to Stake, a demand revolving credit in an aggregate principal amount not to exceed Canadian $5,000,000 (the "Canadian Revolving Credit") in the form of loans, letters of credit and letters of guaranty payable on demand with interest payable at the times and in the amounts set forth in the Credit Agreement, which Canadian Revolving Credit replaces the Original Canadian Revolving Credit, (b) to SunRich, a committed revolving credit facility in an aggregate principal amount not to exceed U.S. $9,000,000 (the "U.S. Revolving Credit") in the form of loans and letters of credit payable no later than February 28, 2004, the final maturity thereof, with interest payable at the times and in the amounts set forth in the Credit Agreement, which U.S. Revolving Credit replaces the Original U.S. Revolving Credit and replaces a portion of the Tender Facility, and (c) to LP, a committed non-revolving reducing term credit facility in the aggregate principal amount not to exceed U.S. $21,700,000 ("Facility C") payable at the times and in the amounts set forth in the Credit Agreement with a final payment of all principal not sooner paid due on February 28, 2005, the final maturity thereof, with interest payable at the times and in the amounts set forth in the Credit Agreement, which Facility C replaces the Original Facility C and will replaces a portion of the Tender Facility; and WHEREAS, as a condition precedent to entering into the Credit Agreement and making certain other financial accommodations to the Borrowers, 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 Credit Agreement; NOW, THEREFORE, for and in consideration of the execution and delivery by Mortgagee and the other Lenders of the Credit Agreement, 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 Borrowers under the Credit Agreement 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 Revolving Credit, Canadian Revolving Credit and Facility C contained in the Mortgage shall be deemed to be references to the U.S. Revolving Credit, Canadian Revolving Credit and Facility C as amended pursuant to the Credit Agreement. 2. 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 -2- 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. 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. 3. 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. 4. 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 pur'suant to the terms of this Supplement. The provisions of this Supplement shall bind the heirs, personal representatives, successors and assigns of the Mortgagor. 5. 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. 6. 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 instrument 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- 553 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: 'rit e: Accepted and agreed to as of the date first above written. HARRIS TRUST AND SAVINGS BANK, as Mortgagee By Name: Title: -4- ) ss. 554 The foregoing instrument was 2 0 0 2, b y. ~-~7/)_~-/a ~ ~-~P~ ~ Inc., a Minnesota corporation, on behalf of the corporation. acknowledged before me this ,/op day of ~t~..~ , , the ~J~/,~4'nfl,'d of Northern Food and Dairy, (Type or Print Name) This Instrument was Drafted By: Daniel W. Baker Chapman and Cutler 111 West Monroe Street Chicago, Illinois 60603 Tax Statements for the Real Property Described in this Instrument Should Be Sent to: aftonmtg 1550193/EAS [199 West 2nd Avenue Afton, Wyoming 83110] 555 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 Trust and Savings Bank, an Illinois banking corporation, 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 corporation for the uses and purposes therein set forth. J~ ~S$~;[ WENDY A. JURINEK ~ Given under my hand and notarial seal, as of thi of February, 2003. (Typ, jr or Print Name) (Notarial Seal) Commission Expires: 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 runnin~ thence N 90Q W, 483.35 feet; thence N 0Q w, 250 feet; thence N 90° E, 483.35 feet; thence S 0~ E, 250 feet to the POINT OF BEGINNING.