THIRD MODIFICATION AGREEMENT
THIS Third Modification Agreement (the "Third Modification"), made as of
the 16th day of December, 1998, between FLEET BANK, N.A. (formerly know as
NatWest Bank N.A.), a national banking association, having a banking office at
000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, Xxx Xxxxxx 00000 (the "Bank") and SUPREMA
SPECIALTIES, INC., a New Jersey corporation with its principal office located at
000 Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000-0000 (the "Borrower").
W I T N E S S E T H:
WHEREAS, on March 29, 1996, the Bank loaned to the Borrower the sum of
$1,050,000 and the Borrower executed and delivered to the Bank its promissory
note in the sum of ONE MILLION AND FIFTY THOUSAND AND 00/100 DOLLARS (the
"Mortgage Note"), payable as more particularly set forth therein; and
WHEREAS, the Borrower, to secure said indebtedness, on the aforesaid date
made, executed and delivered to the Bank a certain mortgage covering lands and
premises situate, lying and being in the City of Paterson, County of Passaic and
State of New Jersey (the "Premises"), which mortgage was recorded in the Office
of the Register of Passaic County on April 17, 1996, in Volume V159, Page 053,
et seq. (the "Original Mortgage"); and
WHEREAS, pursuant to a Modification Agreement dated as of October 31, 1996,
which modification was recorded in the Office of the Register of Passaic County
on January 17, 1997, in Volume 254 Page 195, et seq., the Original Mortgage was
modified, inter alia, to provide that it secured a portion of a certain term
loan dated October 31, 1996 made by the Bank to the Borrower (the "Term Loan");
and
WHEREAS, pursuant to a Second Modification Agreement dated as of January 5,
1998, which modification was recorded in the Office of the Register of Passaic
County on January 30, 1998 in Volume 267 Page 160 et seq., the Original Mortgage
was modified, inter alia, to (i) delete all references in the Original Mortgage
to the Term Loan and the term note (which had been paid off); and (ii) to
provide that the Original Mortgage secured (a) a certain bridge loan (the
"Bridge Loan") in the principal amount of up to $10,000,000, and (b) certain
revolving credit loans (the "Revolving Credit Loans") in the aggregate principal
amount of up to $25,000,000; and
WHEREAS, the Bank and the Borrower have agreed to further modify the
Original Mortgage to (i) delete all references in the
1
Original Mortgage to the Bridge Loan (which has been paid off), and the
Revolving Credit Loans (which is being modified and will be secured pursuant to
a certain (second) mortgage and security agreement executed the date hereof),
and (ii) to provide that the Original Mortgage also secures the reimbursement
and repayment obligations of the Borrower under a certain irrevocable letter of
credit (letter of credit #JS167748) in the face amount of $400,000 issued by the
Bank for the account of the Borrower (the "Letter of Credit"); and
WHEREAS, the Original Mortgage as modified through the date hereof is
referred to herein as the "Mortgage"; and
WHEREAS, the Borrower represents that its execution of this Agreement will
inure to its economic benefit and will be in furtherance of its established
purpose;
NOW, THEREFORE, in consideration of the premises, and the sum of One
($1.00) Dollar paid by each of the parties to the other, the receipt whereof is
hereby acknowledged, and for other good and valuable consideration, the parties
hereto covenant and agree as follows:
1. Modifications. The Borrower and the Bank agree to modify the Mortgage as
follows:
(a) The second recital in the Mortgage shall be amended in its entirety as
follows:
"WHEREAS, the Mortgagee has made available to the Mortgagor a certain
irrevocable letter of credit (letter of credit #JS167748) in the face
amount of $400,000 issued by the Mortgagee for the account of the
Mortgagor (the "Letter of Credit");
(b) The third recital shall be deleted in its entirety and the fourth
recital in the Mortgage shall become the third recital and shall be
amended in its entirety to read as follows:
"WHEREAS, this Mortgage is given and made by the Mortgagor to the
Mortgagee as security for (i) the repayment of the indebtedness of the
Mortgagor to the Mortgagee evidenced by the Mortgage Note, (ii) the
reimbursement and repayment and all other obligations under the Letter
of Credit by the Mortgagor, (iii) the performance of the terms,
conditions and covenants of the Mortgagor set forth in the Mortgage
Note, the Letter of
2
Credit, and the other loan documents executed in connection with any
of the foregoing (hereinafter collectively referred to as the "Loan
Documents"), and (iii) the payment of all other indebtedness, monetary
obligations, liabilities and duties of the Mortgagor under the
Mortgage Note, this Mortgage and the other Loan Documents;"
(c) Section 8 of Article III of the Mortgage relating to the Term Loan is
hereby deleted in its entirety.
2. Existing Documentation. All terms and provisions of the Mortgage shall
remain in full force and effect, except as herein modified.
3. Miscellaneous. This Agreement and the terms and provisions hereof shall
(i) inure to the benefit of and be binding upon the respective parties, their
heirs, successors and assigns and shall (ii) be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written or have cause these presents to be signed by
their proper corporate officers and their corporate seals hereto affixed the day
and year first above written.
ATTEST: SUPREMA SPECIALTIES, INC.
By: _______________________ By: _________________________
Xxxxxx Xxxxxxxxxx, Xxxx Xxxxxxxxx,
Secretary President
FLEET BANK, N.A.
By: _________________________
Xxxxxx X. Xxxxxxxxxx,
Senior Vice President
Record and Return to:
Windels, Marx, Davies & Ives
000 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
3
STATE OF NEW JERSEY :
:ss:
COUNTY OF MIDDLESEX :
BE IT REMEMBERED, that on this 16th day of December, 1998, before me, the
subscriber, an officer duly authorized pursuant to N.J.S.A. 46:14-6 to take
acknowledgments for use in the State of New Jersey, personally appeared Xxxxxx
X. Xxxxxxxxxx, who I am satisfied is the person who executed the within
Modification Agreement as a Senior Vice President of Fleet Bank, N.A., the
banking association named therein, and he did thereupon acknowledge that the
said Modification Agreement made by the said banking association and delivered
by him as such officer, is the voluntary act and deed of said banking
association, made by virtue of authority from its Board of Directors, for the
uses and purposes therein expressed.
______________________________
Xxxxxx X. Xxxxxx, an attorney
at law of the State of New
Jersey
4
STATE OF NEW JERSEY :
:ss:
COUNTY OF MIDDLESEX :
BE IT REMEMBERED, that on this 16th day of December, 1998, before me, the
subscriber, an officer duly authorized pursuant to N.J.S.A. 46:14-6 to take
acknowledgments for use in the State of New Jersey, personally appeared Xxxx
Xxxxxxxxx, who I am satisfied is the person who executed the within Modification
Agreement as President of Suprema Specialties, Inc., the corporation named
therein, and he did thereupon acknowledge that the said Modification Agreement
made by the said corporation and delivered by him as such officer, is the
voluntary act and deed of said corporation, made by virtue of authority from its
Board of Directors, for the uses and purposes therein expressed.
______________________________
Notary Public
5
