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HomeMy WebLinkAbout901162 RECEIVED LINOOLN OOLINTY OLERK FOURTH SUPPLEMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS Dated as of July 7, 2004 NORTHERN FOOD AND DAIRY, INC. To (the "Mortgagor") HARRIS TRUST AND SAVINGS BANK N¢'$- _ ,,,,MPLS(KB} (the "Mortgagee") (Wyoming) This instrument was prepared by: Daniel W. Baker, Esq. Chapman and Cutler LI,P 111 West Monroe Street Chicago, Illinois 60603 (312) 845-3790 1713748.01.02 1550193 [199 West 2''u Avenue Alton, Wyoming 83110] 09011 2 FOURTH SUPPLEMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS This Fora'th Supplement to Mortgage and Security Agreelnent with Assignment of Rents dated as of July 7, 2004 (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 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 Liucoln County, Wyoming on April 8, 2002 as Document No. 880158, Book 486, Page 840, as supplemented by that cel'tam First Supplement to Mortgage and Security Agreement with Assignment of Rents dated as of November 25, 2002 and recorded ~n 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, and 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 Jnne 23, 2003 as Document No. 891034, Book 524, Page 866 (collectively the "Mortgage"), encumbering the property described on Schedule I attached hereto, in order to secnre certain indebtedness, whether now outstanding or hereafter incurred, of Sunrich Food Group, Inc. ("SunRich"), SunOpta Inc. ("SunOpta"), formerly known as Stake Technology Ltd., and SunOpta L.P. ("LP"), formerly known as Stake Tech-LP (SnnRich, SunOpta, and LP being collectively refen'ed to as the "Borrowers") owing to Bank of Montreal, a Ban.k 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 nnder a demand revolving credit in an aggregate principal amount not to exceed Canadian $7,500,000 (the "Existing Canadian Revolving Credi¢") 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 Amended and Restated Credit Agreement dated as of February 21,2003 (said Amended and Restated Credit Agreement, as the same has been amended, supplemented or restated from time to time being hereinafter referred to as the "Existing Credit Agreement"), (b) SunRich under a co~nmitted revolving credit facility in all aggregate principal amonnt not to exceed U.S. $9,000,000 (the "Existing U.S. Revolving Credit") iu 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 ill the amounts set forth in the Existing Credit Agreement, and (c) LP under a committed non-revolving reducing term credit facility in the aggregate principal amount not to i713748.01.02 1550193 exceed U.S. $21,700,000 (the "Existing Facility C") payable at the times and in the amonms set forth in the Existing 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 Existing Credit Agreement; and WHEREAS, the Borrowers have concurrently herewith entered into that certain Amended and Restated Credit Agreement dated as of July 7, 2004 (such Ameuded and Restated Credit Agree:ment, as the same may be amended, supplemented or restated, including restatements in its entirety, being hereinafter referred to as the "Credit Agreeme~t") pursuaut 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 S unOpta, a committed revolving credit facility in an aggregate principal amount not to exceed Canadian $15,000,000 (the "Cartadian 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 tn the amounts set forth in the Credit Agreement, to replace the Existing Canadian Revolving Credit, (b) to SunRich, a committed revolving credit facility ill 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, to replace the Existing U.S. Revolving Credit, (c) to LP, a committed non-revolving reducing term credit facility itl 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 amouuts set forth in the Credit Agreement, to replace the Existing Facility C, and (d) to LP, a committed acquisition term credit facility in the aggregate principal amount not to exceed U.S. $10,0.00~000 (the "Acquisition Facility,'" the Canadian Revolving Credit Facility, the U.S. Revolving Credit Facility, the Term Facility, the Acquisition Facility, and auy and all facilities made in substitutiou 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, as a condition precedent to extending the Facilities to the Borrowers and to entering into the Credit Agreement aud making certain other financial accommodatious 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, r~ghts, interests and privileges of Mortgagor which are currently subject to the lien of the Mortgage be and constitute collateral security for the Facilities and any other 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 the Facilities and all other obligatious of the Borrowers under the Credit Agreement shall continue to be secured by the Mortgage in the same manner as -2- o28 if such indebtedness had been specifically described therein as indebtedness secured thereby. All references to the Canadian Revolving Credit, U.S. Revolving Credit and Facility C contained in the Mortgage shall be deemed to be references to the Canadian Revolving Credit, U.S. Revolving Credit and the Term Facility, respectively, as amended pursuant to the Credit Agreement. 2. Mortgagor hereby represents and warrants to Mortgagee that as of the date hereof each of the representanons 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 giwng 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. 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 sa'me 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 m 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 prowsions 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 asstgns of the Mortgagor. 5. This Supple~nent may be executed in any number of counterparts and by different parties hereto on separate counterpart signature pages, each of which wheu 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- IN WITNESS WIIEREOF, 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 Accepted and agreed to as of the date first above written. HARRIS TRUST AND SAVINGS BANK, as Mortgagee By Nmne 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 TI,~US'F AND SAVINGS BANK, as Mortgagee Name xtlr4r~e f-.o~.., rv Title q,ce- ~.v~to,?,r -4- COUNTY OF SS. The foreeoing instrument was ackaowledeed before me this / clay of July, 2004, by ,~&'x/ ~f ~'~7'~r c~r , the ~/~ % ~e~f Northe~od and Dairy, Inc., a Minnesota corporation, on behalf of the cowo~ion. ~ ~/~otary Public (Type or Print Name) (Notarial Seal) Cg.mmmgigrt Expires: " ~}i Esq. "'"efi O uN"t Cutler LLP 111 West Monroe Street Chicago, Illinois 60603 17 13748.01.02 1550193 STATE OF ILLINOIS COUNTY OF COOK ) ) ss. ) I, the undersj~ued, Notary Public in and for said County, in the State aforesaid, do hereby certify that S/~at}¢ Koos,~_~ , I/it- l~re~,'&~l' of Harris Trust and Savings Bank, an Illinois banking corporatiou, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such ~'r-.t. ~,c;d~, , apl)eared before me this day in person and acknowledged that heh~t~ 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 pnrposes therein set forth. Given under my hand and notarial seal, as of this '7& day of July, 2004. (Type or Print Name) (Notarial Seal) Commi ssi on Ex pires: Wot,. 'g., a ~CIIEDULE I LEGAL DESCRiPTiON Part of Section 2S, T32N RI19W of the 6th P.M., Lincoln County, Wyoming belt9 mot9 particularly described as follows: COMMENCIN~ at a point which is 147S feet West and 200 feet North of the E~thenceCOrnerN 0©°fW,said250Sectionfeet; 25, and runnin9 thence N 90° W, 483.35 feet; thence N 90° E, 483.35 feet; thence S 0© E, 250 feet to the POINT OF BEGInnING.