MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT (this "Agreement") is made and entered into
effective as of the 6th day of November, 2001, by and between NORTHLAND
CRANBERRIES, INC., a Wisconsin corporation (the "Maker" or "Mortgagor), and THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation,
and its successors and assigns (the "Holder", "Mortgagee" or "Lender").
WHEREAS, Lender is the holder of a Secured Promissory Note dated June
14, 1989 in the original principal amount of SEVENTEEN MILLION DOLLARS
($17,000,000) (Loan No. F-195038) (the "1989 Note"), secured by, inter alia, a
Mortgage and Security Agreement of even date therewith (the "1989 Mortgage") on
real property (i) recorded June 20, 1989 in Volume 600 of Records at page
353-408 as Document No. 376771, Oneida County Records, and (ii) recorded June
16, 1989 in Volume 275 of Records at page 653-708 as Document No. 209652,
Washburn County Records, and (iii) recorded June 16, 1989 in Volume 485 of
Records at page 756-811 as Document No. 620681, Douglas County Records, and (iv)
recorded June 16, 1989 in Volume 304 of Records at Page 463-5 18 as Document No.
251293, Price County Records, and (v) recorded June 16, 1989 in Volume 298 of
Records at Page 392-447 as Document No. 251207, Jackson County Records, and (vi)
recorded June 16, 1989 in Volume 104 of Records at page 58-113 as Document No.
398123, Monroe County Records, and (vii) recorded June 15, 1989 in Volume 572 of
Records at Page 9-64 as Document No. 693782, Wood County Records, upon which
Note there is unpaid the sum of $11,376,864.24, plus accrued interest on the
unpaid principal balance, together with penalties; and
WHEREAS, the 1989 Note and the 1989 Mortgage were modified pursuant to
a Modification Agreement dated July 9, 1993 (the "1993 Modification Agreement"),
and the 1993 Modification Agreement was recorded at (i) the Register of Deeds
for Oneida County, Wisconsin, on July 16, 1993, in Volume 0704 of Records at
Page 177, as Document No. 420127; (ii) the Register of Deeds for Washburn
County, Wisconsin, on July 19, 1993, in Volume 317 of Records, at Page 236, as
Document No. 229549; (iii) the Register of Deeds for Douglas County, Wisconsin,
on July 19, 1993 in Volume 552 of Records, at Page 333, as Document No. 655274;
(iv) the Register of Deeds for Price County, Wisconsin, on July 16, 1993, in
Volume 344 of Records at Page 619, as Document No. 267414; (v) the Register of
Deeds for Jackson County, Wisconsin, on July 20, 1993, in Volume 323 of Records
at Page 728, as Document No. 266203; (vi) the Register of Deeds for Monroe
County, Wisconsin, on July 16, 1993, in Volume 164 of Records at Page 412, as
Document No. 425915 and (vii) the Register of Deeds for Wood County, Wisconsin,
on July 21, 1993, in Volume 686 of Records at Page 831, as Document No. 749662.
The 1989 Note and the 1989 Mortgage, as modified pursuant to the 1993
Modification Agreement, are hereinafter referred to as the $17,000,000 Note
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and the $17,000,000 Mortgage, respectively.
WHEREAS, Lender is the holder of a Secured Promissory Note dated July
9, 1993 in the original principal amount of Ten Million Five Hundred Thousand
Dollars ($10,500,000.00) (Loan No. F-196293.00), (the "$10,500,000 Note"),
secured by, inter alia, a Mortgage and Security Agreement of even date therewith
(the "$10,500,000 Mortgage") on real property recorded with (i) the Register of
Deeds for Oneida County, Wisconsin, on September 1, 1993, in Volume 0708 of
Records at Pages 682-740, as Document No. 421890; (ii) the Register of Deeds for
Washburn County, Wisconsin, on July 16, 1993, in Volume 317 of Records at Pages
108-166, as Document No. 229509; (iii) the Register of Deeds for Douglas County,
Wisconsin, on August 31, 1993, in Volume 555 of Records at Pages 164-222, as
Document No. 656449; (iv) the Register of Deeds for Price County, Wisconsin, on
August 31, 1993, in Volume 346 of Records at Pages 217-275, as Document No.
267984; (v) the Register of Deeds for Jackson County, Wisconsin, on July 15,
1993, in Volume 323 of Records at Pages 529-587, as Document No. 266149; (vi)
the Register of Deeds for Monroe County, Wisconsin, on July 15, 1993, in Volume
164 of Records at Pages 323-381, as Document No. 425898; (vii) the Register of
Deeds for Wood County, Wisconsin on July 13, 1993, in Volume 685 of Records at
Pages 827-886, as Document No.749274, and (viii) the Register of Deeds for
Juneau County, Wisconsin, on July 15, 1993, in Volume 402 of Records at Pages
629-687, as Document No. 319039, upon which Note there is unpaid the sum of
$7,718,807.78, plus accrued interest on the unpaid principal balance, together
with penalties; and
WHEREAS, the parties hereto desire to modify the $17,000,000 Note, the
$17,000,000 Mortgage, the $10,500,000 Note and the $10,500,000 Mortgage in the
particulars hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, and of the sum of one dollar duly paid to Lender, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, it is hereby mutually covenanted and agreed that the
terms of the $17,000,000 Note, the $17,000,000 Mortgage, the $10,500,000 Note
and the $10,500,000 Mortgage be and the same are hereby modified, effective
November 6, 2001, as follows:
SECURED PROMISSORY NOTES:
1. The $17,000,000 Note and the $10,500,000 Note are each modified as
follows:
a. Paragraph 1, Note Payment is amended in its entirety to read
as follows:
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(1) Effective November 6, 2001, interest on the unpaid
principal balance shall be charged at the rate of
five percent (5.0%) per annum. Effective November 1,
2003, the interest rate shall be increased to six
percent (6.0%) per annum. Effective November 1, 2004,
the interest rate shall be increased to seven percent
(7.0%) per annum. Effective November 1, 2005, the
interest rate shall be increased to eight percent
(8.0%) per annum. Effective November 1, 2006, the
interest rate shall be increased to nine percent
(9.0%) per annum. In the event of a default by Maker
under the Note, Mortgage or other documents providing
security for repayment of the indebtedness, which
default has not been cured pursuant to the applicable
cure period, if any, relating thereto, the interest
rate shall increase to five (5) percentage points
above the rate of interest which would otherwise have
been applicable under the Note.
The Maker shall make monthly payments of principal
plus interest, with the first payment due December 1,
2001 and continuing on the first day of each month
thereafter until paid in full.
The monthly payment on the $17,000,000 Note shall be
$63,652 of principal, plus accrued interest.
The monthly payment on the $10,500,000 Note shall be
$42,435 of principal, plus accrued interest.
The Maker shall make additional principal payments of
$10,000 per month on the $17,000,000 Note, and of
$6,667 per month on the $10,500,000 Note, commencing
the first payment date after the Maker's announced
outside grower's price for cranberries equals or
exceeds $32 per barrel, and continuing for the
remaining term of the Note during all times when the
Maker's announced outside grower's price for
cranberries equals or exceeds $32 per barrel.
Notwithstanding anything else expressed in the Note,
the entire unpaid balance of principal and interest
shall be due November 1, 2007.
All payments shall be applied first to accrued
interest and then to principal.
b. Paragraph 2, Security, is amended to add after each
use of the phrase
3
" with an even date hereof, the phrase "as amended
hereafter".
c. Paragraph 3, Prepayment, is amended in its entirety
to read as follows: "Maker shall have the right to
prepay the Note, in full or in part, without
prepayment fee, at any time".
d. Paragraph 4, Default And Acceleration Of Debt, is
amended to state that the default rate of interest
shall be five (5) percentage points above the
interest rate which would have existed from time to
time under the Note if there had been no default.
e. Paragraph 5, Default Interest, is amended to state
that the default rate of interest shall be five (5)
percentage points above the interest rate which would
have existed from time to time under the Note if
there had been no default
f. Paragraph 14, Miscellaneous, is amended to state that
the balloon payment is due November 1, 2007.
g. A new Paragraph 15 is added to read as follows:
The Holder forgives all defaults and events
of default occurring under both Mortgages
and both Notes and all documents related
thereto prior to November 6, 2001 and all
unpaid interest and penalties under both
Mortgages and both Notes which have accrued
prior to November 6, 2001.
$17,000,000 MORTGAGE:
3. The $17,000,000 Mortgage (as amended pursuant to the 1993 Modification
Agreement), is further modified as follows:
a. Subparagraph (a) of the first recital is amended in its
entirety to read as follows:
(a) the payment of an indebtedness in the sum of
SEVENTEEN MILLION DOLLARS ($17,000,000) and the payment
of an indebtedness in the initial principal sum of TEN MILLION
FIVE HUNDRED THOUSAND DOLLARS ($10,500,000), lawful money of
the United States, to be paid with interest thereon according
to a certain Secured Promissory Note dated June 14, 1989 and a
certain Secured Promissory Note dated July 9, 1993,
respectively, and all replacements, restatements, amendments
and other modifications thereto (said Notes are hereafter
collectively referred to as the "Note").
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b. Item number 4 of the first recital is amended in its entirety
to read as follows:
"4. All Agreements, Leases and Permits held by the
Mortgagor and relating to the Mortgagor's operation
of the Premises excepting only that certain Supply
Agreement dated June 11, 1992, by and between the
Mortgagor and Cliffstar Corporation and that certain
Supply Agreement dated June 10, 1992 by and between
the Mortgagor and Clement Pappas & Co., Inc. and
other agreements by which Mortgagor contracts for the
processing or sale of crops grown by Mortgagor or the
proceeds thereof, or for the sale of vines severed by
Mortgagor as allowed under the Mortgage, but none of
the Agreements excepted from the lien of this
Mortgage shall create a lien upon the Mortgaged
Property or bind the Mortgagee in any respect, except
to the extent that such lien is a Permitted Lien as
allowed hereunder. (The Mortgagor has also executed
an Assignment Of Agreements, Leases and Permits,
bearing even date herewith, relating to Agreements,
Leases and Permits held by Mortgagor)."
c. The sentence immediately following item number 8 of the first
recital is amended in its entirety to read as follows:
The various items referred to in paragraph Nos. 1, 2, 3, 4, 7
and 8, above, shall be collectively referred to herein as the
"Mortgaged Property". Notwithstanding anything to the contrary
contained herein, it is understood and agreed that the
Mortgaged Property does not include and the Mortgagee has no
lien or security interest in the following property: all
accounts receivable of the Mortgagor, all stock in Ocean Spray
Cranberries, Inc. owned by the Mortgagor and all Letters of
Allocation issued by Ocean Spray Cranberries, Inc. to the
Mortgagor. It is understood and agreed that the Mortgagee has
a first priority lien on Crops. "Crops" shall mean all crops,
now or hereafter growing or to be grown on the Premises,
including but not limited to cranberries, until the crops have
been harvested, or until the vines growing on the Premises
have been severed, as allowed under this Mortgage, and removed
from the Mortgaged Property. Once the crops are harvested, or
the vines have been severed, as allowed under this Mortgage,
and removed from the premises, they will no longer constitute
Crops and Mortgagee shall have no further interest in the
crops or the proceeds thereof. In the event of a default by
Mortgagor prior to said harvesting of the Crops or severance
of the vines, Mortgagee shall retain its lien on the Crops and
vines, including products and proceeds thereof.
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d. Paragraph 4(d)(v) is amended in its entirety to state:
Mortgagor may not place a lien on Crops, but this shall not
prohibit a Permitted Lien, as otherwise allowed under this
Mortgage, which arises as a matter of law on the Crops.
e. Paragraph 6 is modified to add after the words "may sell by
mowing up to ten (10%) of the vines from bog acreage each
calendar year" the words ", provided that Mortgagor is not in
default under this Mortgage."
f. Paragraph 9, is amended to provide that Mortgagee consents to
the purchase of a controlling ownership interest in Mortgagor
by Sun Northland LLC and agrees that purchases by Sun Capital
Partners II, LP, or a majority owned subsidiary thereof shall
not be prohibited or limited by Paragraph 9.
g. Paragraph 14(a) is amended in its entirety to read as follows:
(a) Mortgagor shall maintain a ratio of 1 to 1 of current
assets to current liabilities, beginning as of the
end of the Mortgagor's fiscal year ending in 2002.
h. Paragraph 14(b) is deleted in its entirety.
i. Paragraph14(f) is amended to delete the words "to be less than
1.25 to 1.0 computed at the end of each fiscal year", and to
substitute therefore the words "be less than 1.0 to 1.0
computed for the fiscal year ending in 2002, and not less than
1.25 to 1.0 computed at the end of the Mortgagor's fiscal year
ending in 2003 and at the end of each of the Mortgagor's
fiscal years thereafter."
j. Paragraph 15(a), as modified, is deleted in its entirety.
k. Paragraph 15(f) is amended in its entirety to read as follows:
(f) Mortgagor shall not place any lien on Crops growing
or to be grown on the Premises. Mortgagor may not
place a lien on the cranberry vines that could attach
prior to severance of the vines, as allowed pursuant
to this Mortgage, and removal from the Mortgaged
Property. Nothing herein shall prohibit a Permitted
Lien, as otherwise allowed under this Mortgage, which
arises as a matter of law on the Crops or vines.
Mortgagor will not assign the whole or any part of
the rents, issues or profits arising from the
Mortgaged Property, except for agreements by which
Mortgagor contracts for the
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processing or sale of crops grown by Mortgagor or the
proceeds thereof, or the sale of vines that have been
severed, as allowed pursuant to this Mortgage, and
removed from the Mortgaged Property, but none of said
agreements shall create a lien upon the Mortgaged
Property or bind the Mortgagee in any respect, except
to the extent that such lien is a Permitted Lien as
allowed hereunder, without the written consent of the
Mortgagee, and any assignment thereof shall be null
and void; that in the event of any default by the
Mortgagor in the performance of any of the terms,
covenants and provisions of this Mortgage or the
Note, it shall be lawful for the Mortgagee to enter
upon and take possession of the Mortgaged Property
with or without the appointment of a receiver, or an
application therefor, and to let the same, either in
its own name, or in the name of the Mortgagor, and to
receive the rents, issues and profits of the
Mortgaged Property, to the extent provided herein,
and to apply the same, after the payment of all
necessary charges and expenses, on account of the
amount hereby secured; that said rents and profits
are, in the event of any such default, and except as
otherwise set forth herein, hereby assigned to the
Mortgagee; and that upon notice and demand, the
Mortgagor will transfer and assign to the Mortgagee,
in form satisfactory to the Mortgagee, the lessor's
interest in any lease now or hereafter affecting the
whole or any part of the Mortgaged Property."
l. Paragraph 15(l)(2) is amended to add at the end of the
paragraph "other than benefit plans assumed in connection with
Mortgagor's purchase of the assets of Minot Food Packers,
Inc.".
m. A new sentence is added at the end of the first full paragraph
of Paragraph 17, which sentence shall read as follows: Any
default on any other secured indebtedness of Mortgagor,
whether to Mortgagee or otherwise, which default is not cured
within any applicable cure period, but in no event shall such
cure period exceed thirty (30) days, shall be considered a
default under this Mortgage.
$10,500,000 MORTGAGE
4. The $10,500,000 Mortgage is modified as follows:
a. Subparagraph (a) of the first recital is amended in its
entirety to read as follows:
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(a) the payment of an indebtedness in the initial
principal sum of SEVENTEEN MILLION DOLLARS ($17,000,000) and
the payment of an indebtedness in the initial principal sum of
TEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($10,500,000),
lawful money of the United States, to be paid with interest
thereon according to a certain Secured Promissory Note dated
June 14, 1989 and a certain Secured Promissory Note dated July
9, 1993, respectively, and all replacements, restatements,
amendments and other modifications thereto (said Notes are
hereafter collectively referred to as the "Note").
b. Item number 2 of the first recital is amended in its entirety
to read as follows:
2. All machinery, tractors, trucks and other motor
vehicles (but excluding titled motor vehicles),
apparatus, equipment, irrigation pumps, motors and
distribution systems, fittings, fixtures, and
articles of personal property of every kind and
nature whatsoever, other than consumable goods, now
or hereafter located in or upon the Premises or any
part thereof and used or usable, but excluding
equipment used at other bogs as described below, in
connection with any present or future operations on
the Premises, (hereinafter called "Equipment") and
now owned or hereafter acquired by the Mortgagor (the
Equipment is more specifically described in Exhibit C
which is attached hereto and incorporated herein by
reference); and all of the right, title and interest
of the Mortgagor in and to any equipment which may be
subject to any title retention or security agreement
superior in lien to the lien of this Mortgage; the
term "Equipment" shall include all machinery,
apparatus, equipment, fittings, fixtures, and
articles of personal property on the Premises,
whether or not the same are annexed to said real
estate and whether or not the same are also used in
the operation of any building located thereon, but
shall not include trade inventory or consumable
goods. It is understood and agreed that all Equipment
is part and parcel of said real estate and
appropriated to the use of said real estate and,
whether affixed or annexed or not, shall for the
purpose of this Mortgage be deemed conclusively to be
real estate and conveyed hereby.
The Mortgagee acknowledges that the Mortgagor
operates certain cranberry bogs in addition to the
Premises which are the subject of this Mortgage, and
that the Mortgagee has certain additional equipment
and motor vehicles, not subject to the lien of this
Mortgage, which is either used exclusively at the
other bogs or is shared between the various bogs.
Subject to the sharing of
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equipment referred to above, the Mortgagor hereby
warrants to the Mortgagee that the equipment
identified on Exhibit C, which is attached hereto and
incorporated herein by reference, includes all the
equipment which is necessary for raising and
harvesting cranberries on the Premises. Subject to
the sharing of equipment referred to above, the
Mortgagor covenants that it will at all times during
the term of the Note, maintain on the Premises and
subject to the lien of this Mortgage, at a minimum,
all the equipment which is necessary for raising and
harvesting cranberries on the Premises.
c. Item Number 3 of the first recital is amended in its
entirety to read as follows:
"3. All Agreements, Leases and Permits held by
the Mortgagor and relating to the
Mortgagor's operation of the Premises
excepting only that certain Supply Agreement
dated June 11, 1992, by and between the
Mortgagor and Cliffstar Corporation and that
certain Supply Agreement dated June 10, 1992
by and between the Mortgagor and Clement
Pappas & Co., Inc. and other agreements by
which Mortgagor contracts for the processing
or sale of crops grown by Mortgagor or the
proceeds thereof, or for the sale of vines
severed by Mortgagor as allowed by the terms
of this Mortgage, but none of the Agreements
excepted from the lien of this Mortgage
shall create a lien upon the Mortgaged
Property or bind the Mortgagee in any
respect, except to the extent that such lien
is a Permitted Lien as allowed hereunder.
(The Mortgagor has also executed an
Assignment Of Agreements, Leases and
Permits, bearing even date herewith,
relating to Agreements, Leases and Permits
held by Mortgagor)."
d. The first full paragraph appearing on page 3 of the
Mortgage is amended in its entirety and restated to
read as follows:
It is understood and agreed that the
Mortgagee has a first priority lien on
Crops. "Crops" shall mean all crops now or
hereafter growing or to be grown on the
Premises, including but not limited to
cranberries, until the crops have been
harvested, or until the vines growing on the
Premises have been severed, as allowed by
the terms of this Mortgage, and removed from
the Mortgaged Property. Once the crops are
harvested, or the vines have been severed,
as allowed by the terms of this Mortgage,
and removed from the Mortgaged
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Property, they will no longer constitute
Crops, and Mortgagee shall have no further
interest in the crops or the proceeds
thereof. In the event of a default by
Mortgagor prior to said harvesting of the
Crops or severance of the vines, Mortgagee
shall retain its lien on the Crops and
vines, including products and proceeds
thereof.
e. Paragraph 4.b. is deleted in its entirety.
f. Subparagraph 5.f., including all its
sub-subparagraphs, is amended in its entirety to
state: Mortgagor may not place a lien on Crops, but
this shall not prohibit a Permitted Lien, as
otherwise allowed under this Mortgage, which arises
as a matter of law on the Crops.
g. Paragraph 7 is amended to delete the words "up to
fifteen (15%) percent of the vines" and to substitute
the words "up to ten (10%) percent of the vines".
h. Paragraph 10, is amended to provide that Mortgagee
consents to the purchase of a controlling ownership
interest in Mortgagor by Sun Northland LLC and agrees
that purchases by Sun Capital Partners II, LP, or a
majority owned subsidiary thereof shall not be
prohibited or limited by Paragraph 10.
i. Paragraph 15(a) is amended in its entirety to read as
follows:
(a) Mortgagor shall maintain a ratio of 1 to 1
of current assets to current liabilities,
beginning as of the end of the Mortgagor's
fiscal year ending in 2002.
j. Paragraph 15(c) is deleted in its entirety.
k. Paragraph 15(d) is amended to delete the words "to be
less than 1.25 to 1.0 computed at the end of each
fiscal year", and to substitute therefor the words
"be less than 1.0 to 1.0 computed for the fiscal year
ending in 2002, and not less than 1.25 to 1.0
computed at the end of the Mortgagor's fiscal year
ending in 2003 and at the end of each of the
Mortgagor's fiscal years thereafter."
l. Paragraph 15(k) is deleted in its entirety.
m. Paragraph 16(b) is amended in its entirety and
restated to read as follows:
Mortgagor may not place a lien on Crops or
cranberry vines which could attach to such
vines prior to their severance, as allowed
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under this Mortgage, and removal from the
Mortgaged Property.
n. Paragraph 16(g) is amended in its entirety to read as
follows:
Mortgagor shall not place any lien on Crops
growing or to be grown on the Premises.
Mortgagor may not place a lien on the
cranberry vines which could attach prior to
their severance, as allowed under this
Mortgage, and removal from the Mortgaged
Property. Nothing herein shall prohibit a
Permitted Lien, as otherwise allowed under
this Mortgage, which arises as a matter of
law on the Crops or vines. Mortgagor will
not assign the whole or any part of the
rents, issues or profits arising from the
Mortgaged Property, except for agreements by
which Mortgagor contracts for the processing
or sale of crops grown by Mortgagor or the
proceeds thereof, or the sale of vines which
have been severed, as allowed under this
Mortgage, and removed from the Mortgaged
Property, but none of said agreements shall
create a lien upon the Mortgaged Property or
bind the Mortgagee in any respect, except to
the extent that such lien is a Permitted
Lien as allowed hereunder, without the
written consent of the Mortgagee, and any
assignment thereof shall be null and void;
that in the event of any default by the
Mortgagor in the performance of any of the
terms, covenants and provisions of this
Mortgage or the Note, it shall be lawful for
the Mortgagee to enter upon and take
possession of the Mortgaged Property with or
without the appointment of a receiver, or an
application therefor, and to let the same,
either in its own name, or in the name of
the Mortgagor, and to receive the rents,
issues and profits of the Mortgaged
Property, to the extent provided herein, and
to apply the same, after the payment of all
necessary charges and expenses, on account
of the amount hereby secured; that said
rents and profits are, in the event of any
such default, and except as otherwise set
forth herein, hereby assigned to the
Mortgagee; and that upon notice and demand,
the Mortgagor will transfer and assign to
the Mortgagee, in form satisfactory to the
Mortgagee, the lessor's interest in any
lease now or hereafter affecting the whole
or any part of the Mortgaged Property."
o. Paragraph 16(i) is amended by deleting the words
"bearing even date herewith", and to delete the words
"excepting the indebtedness of Mortgagor to Mortgagee
evidenced by that certain Secured Promissory Note in
the original principal amount of $17,000,000
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dated June 14, 1989".
p. Paragraph 16(m)(2) is amended to add at the end of
the paragraph "other than benefit plans assumed in
connection with Mortgagor's purchase of the assets of
Minot Food Packers, Inc.".
q. A new sentence is added at the end of the first full
paragraph of Paragraph 18, which sentence shall read
as follows: Any default on any other secured
indebtedness of Mortgagor, whether to Mortgagee or
otherwise, which default is not cured within any
applicable cure period, but in no event shall such
cure period exceed thirty (30) days, shall be
considered a default under this Mortgage.
MISCELLANEOUS PROVISIONS:
5. Mortgagor shall pay, upon execution of this Agreement, all expenses
incurred by Mortgagee, including attorneys fees and title company
charges, relating to this Modification Agreement and the Forbearance
Agreements which preceded this Agreement.
6. In order to induce Mortgagee to enter into this Agreement, and in
recognition of the fact that Mortgagee is acting in reliance thereupon,
the Mortgagor hereby covenants, represents and warrants to Mortgagee
that:
a. The Mortgagor is duly incorporated, validly existing and in
good standing under the laws of the State of Wisconsin and has
the power and authority and the legal right to own and operate
its property, to lease the property it operates, and to
conduct the business in which it is currently engaged.
b. The chief executive office of the Mortgagor is, and continues
to be, located at 800 First Avenue South, Wisconsin Rapids,
Wisconsin 54495-8020.
c. The Mortgagor has the power and authority to enter into,
deliver, issue and perform all of its obligations under this
Agreement. This Agreement, when duly executed and delivered on
behalf of the Mortgagor, will constitute the legal, valid and
binding obligations of the Mortgagor enforceable against the
Mortgagor in accordance with its terms, except as limited by
bankruptcy, insolvency or similar laws of general
applicability affecting the exercise of creditors' rights and
general principles of equity.
d. No consent or authorization of, filing with, or act by or in
respect of any governmental authority is required in
connection with the
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execution, delivery, performance, validity or enforceability
of this Agreement. The execution, delivery and performance of
this Agreement (i) has been duly authorized by all necessary
action, where applicable, (ii) will not violate any
requirement of law or any contractual obligation of the
Mortgagor and (iii) will not result in, or require, the
creation or imposition of any lien on any of its properties or
revenues pursuant to any requirement of law or contractual
obligation.
e. No information, financial statement, exhibit or report
furnished by the Mortgagor to Mortgagee in connection with the
negotiation of, or pursuant to, this Agreement contains any
material misstatement of fact, omits to state a material fact,
or omits any fact necessary to make the statements contained
therein, in light of the circumstances in which they were
made, not misleading.
f. The Mortgagor acknowledges and agrees that the Notes,
Mortgages and other collateral documents are legal, valid and
binding obligations of the Mortgagor and are enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency or similar laws of general applicability affecting
the exercise of creditors' rights and general principles of
equity. The Mortgagor acknowledges and agrees that the
Mortgages grant to Mortgagee valid and subsisting mortgage
liens and security interest in all of the Collateral, and that
Mortgagee's mortgage liens and security interests were
properly perfected in accordance with applicable law.
7. In the event the Mortgagor (a) files any voluntary petition under any
Chapter of the United States Bankruptcy Code, 11 U.S.C.ss.ss.101 et
seq. ("Bankruptcy Code") or in any manner seeks any relief under any
other state, federal or other insolvency law or laws providing for
relief of debtors, or directly or indirectly cause a filing of any such
petition or to seek any such relief; or (b) is named as a debtor or
alleged debtor in any involuntary petition filed under any Chapter of
the Bankruptcy Code, which petition is not dismissed within sixty (60)
days; or (c) directly or indirectly causes the Collateral or any
interest of the Mortgagor in the Collateral to become the property of
any bankruptcy estate or the subject of any state, federal or other
bankruptcy, dissolution, liquidation or insolvency proceeding, then the
Mortgagor hereby expressly agrees to the lifting of the automatic stay
by the appropriate Bankruptcy Court "for cause" pursuant to Section
362(d)(1) of the Bankruptcy Code. Said Bankruptcy Court shall be, and
hereby is, authorized to enter an order lifting the automatic stay
without the necessity of an evidentiary hearing and without the
necessity of Mortgagee establishing the lack of adequate protection of
its interests in the Collateral or the Mortgagor's lack of equity in
the Collateral and lack of necessity of the
13
Collateral for an effective bankruptcy reorganization. The automatic
stay shall be lifted within thirty (30) days of filing the applicable
motion.
8. No course of dealing between Mortgagee and any other party hereto or
failure or delay on the part of Mortgagee in exercising any rights or
remedies hereunder shall operate as a waiver of any rights or remedies
of Mortgagee under this or any other agreement. No single or partial
exercise of any rights or remedies hereunder shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder.
9. This Agreement and the other documents referred to herein contain the
entire agreement between Mortgagee and the Mortgagor with respect to
the subject matter hereof, superseding all previous communications and
negotiations, and no representation, undertaking, promise or condition
concerning the subject matter hereof shall be binding upon Mortgagee
unless clearly expressed in this Agreement. No statement or writing
subsequent to the date hereof which purports to modify or add to the
terms or conditions hereof shall be binding unless contained in a
writing which makes specific reference to this Agreement and which is
signed by all parties hereto.
10. THE MORTGAGOR AND MORTGAGEE AGREE THAT THIS AGREEMENT IS IN THE BEST
INTERESTS OF BOTH THE MORTGAGOR AND LENDER. THE MORTGAGOR ACKNOWLEDGES
AND AGREES THAT MORTGAGEE HAS ACTED IN GOOD FAITH IN ITS DEALINGS WITH
THE MORTGAGOR WITH RESPECT TO THE LOAN, THE LOAN DOCUMENTS AND THIS
AGREEMENT AND THAT NEITHER MORTGAGEE NOR ITS AFFILIATES, OFFICERS,
DIRECTORS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, ATTORNEYS AND
EMPLOYEES, PREDECESSORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY THE
"RELEASED PARTIES") HAS COMMITTED ANY ACTS OR OMISSIONS WITH RESPECT TO
THIS AGREEMENT, THE LOAN, AND/OR THE LOAN DOCUMENTS WHICH PRODUCE
CLAIMS OF BAD FAITH, DURESS, EXCESSIVE CONTROL, JOINT VENTURE, OR
OTHERWISE. THE MORTGAGOR DOES HEREBY EXPRESSLY REMISE, RELEASE, ACQUIT,
AND DISCHARGE ALL ACTIONS, CAUSES OF ACTION, SUITS, DEBTS, DUES, SUMS
OF MONEY, ACCOUNTS, COVENANTS, CONTRACTS, DAMAGES, CLAIMS AND DEMANDS
WHATSOEVER, IN LAW OR IN EQUITY WHICH THEY EVER HAD, OR NOW HAVE
AGAINST MORTGAGEE, AND THE RELEASED PARTIES RESULTING FROM, OR RELATING
TO, OR IN ANY WAY ARISING OUT OF MORTGAGEE'S ADMINISTRATION OR HANDLING
OF THE LOAN, THE LOAN DOCUMENTS, AND THIS AGREEMENT AND WHETHER DUE TO
THE NEGLIGENCE, MALFEASANCE, MISFEASANCE, OR NONFEASANCE OF MORTGAGEE
AND/OR THE RELEASED
14
PARTIES IN CONNECTION WITH OR ARISING OUT OF OR IN ANY WAY RELATED TO
THE BORROWER/LENDER RELATIONSHIPS EXISTING, AND HEREBY ACKNOWLEDGED TO
EXIST, BETWEEN THE MORTGAGOR AND MORTGAGEE. IT IS UNDERSTOOD AND AGREED
THAT THIS RELEASE IS NOT TO BE CONSTRUED AS AN ADMISSION OF LIABILITY
ON THE PART OF MORTGAGEE OR THE RELEASED PARTIES
11. This Agreement may be signed in any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
12. This Agreement is solely for the benefit of the parties hereto and
their permitted successors and assigns. No other person or entity shall
have any rights under, or because of the existence of, this Agreement.
13. If any term or provision of this Agreement or the application thereof
to any party or circumstance shall be held to be invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, the
validity, legality and enforceability of the remaining terms and
provisions of this Agreement shall not in any way be affected or
impaired thereby, and the affected term or provision shall be modified
to the minimum extent permitted by law so as to achieve most fully the
intention of this Agreement.
14. All of the provisions of the Notes and Mortgages shall remain in full
force and effect except as herein specifically modified and this
Agreement is made upon the express condition that the Mortgagor is
vested with the fee simple title to the Premises covered by the
Mortgages. And the said Mortgagor in consideration of the granting of
this Modification further covenants and agrees to pay and comply with
the terms and conditions of the Notes and Mortgages as herein modified,
and nothing herein contained shall invalidate any of the security now
held for the payment of said debts. This Agreement shall bind and
insure to the benefit of the parties, their heirs, legal
representatives, successors and assigns.
15. This Modification Agreement is to be construed according to and
governed by the laws of the State of Wisconsin. This is an amendment
and not a novation. This Modification Agreement shall be recorded at
the Register of Deeds office in each county where the Premises are
located. Therefore, this Modification Agreement shall be executed in
multiple duplicate originals, each of which shall be considered an
original document.
15
IN WITNESS WHEREOF, the Mortgagor and the Mortgagee have duly executed
and delivered this Modification Agreement as of the day and year first above
written.
NORTHLAND CRANBERRIES, INC.
By: /s/ John Swendrowski
----------------------------
John Swendrowski, President
and CEO
Attest: /s/ Jeffrey J. Jones
------------------------
Jeffrey J. Jones,
Assistant Secretary
print name and title
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By: /s/ Eric R. Linge
----------------------------
Eric R. Linge, Vice President
Attest: /s/ Beverly M. Sacks
------------------------
Beverly M. Sacks,
Assistant Secretary
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
The foregoing instrument was acknowledged before me this 5th day of
November, 2001, by John Swendrowski and Jeffrey Jones who are the President and
Assistant Secretary, respectively of Northland Cranberries, Inc. on behalf of
that corporation.
/s/ Karen S. Diana
--------------------------------
Notary Public, State of Illinois
My Commission 5/27/03
STATE OF MISSOURI )
) SS.
COUNTRY OF ST. LOUIS )
The foregoing instrument was acknowledged before me this 2nd day of
November, 2001, by Eric R. Linge and Beverly M. Sacks who are the vice president
and assistant secretary, respectively, of The Equitable Life Assurance Society
and the United States on behalf of that corporation.
/s/ Barbara M. Eaton
--------------------------------
Notary Public, State of Missouri
My commission expires: 5/28/04
THIS DOCUMENT DRAFTED BY AND AFTER
RECORDING SHOULD BE RETURNED TO:
Attorney Gregory E. Scallon
DeWitt Ross & Stevens s.c.
8000 Excelsior Drive, Suite 400
Madison, Wisconsin 53717