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EXHIBIT 10-3
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RESTATED MORTGAGE NOTE
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$2,250,000.00 Rochester, New York
October 5, 2001
FOR VALUE RECEIVED, ONTARIO FOODS, INCORPORATED, a New York
corporation with an office at 0000 Xxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000 (the
"BORROWER") (Borrower may also be referred to as "MORTGAGOR"), hereby promises
to pay to GENESEE CORPORATION, a New York corporation having an address at 00
Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx ("MORTGAGEE"), or order, the
principal sum of TWO MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($2,250,000.00) (the "LOAN"), in lawful money of the United States of America,
together with interest thereon from the "Closing Date" (as hereafter defined) at
the "Contract Rate" (as hereafter defined), in the manner set forth below.
DEFINITIONS
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As used in this Note, the following capitalized terms shall
have the meanings set forth below:
"ADJUSTED RATE" means fifteen percent (15%) per annum.
"BASIS POINT" means one one-hundredth of one percent.
"CLOSING DATE" means October 5, 2001.
"CONTRACT RATE" means the Initial Rate or the Adjusted Rate,
whichever is applicable.
"DEFAULT RATE" means eighteen percent (18%).
"ESCROW AGENT" shall mean HSBC Bank USA.
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"ESCROW AGREEMENT" means that certain Escrow Agreement dated
October 5, 2001 by and between Mortgagee, Associated Brands, Inc. and Escrow
Agent.
"EVENT OF DEFAULT" means any Event of Default under the
Mortgage.
"FORECLOSURE ACTION" means any action, suit or proceeding
brought by Mortgagee to collect this Note, foreclose the Mortgage and/or to
enforce any of its other rights or remedies under the Loan Documents.
"INITIAL RATE" means twelve percent (12%) per annum.
"LOAN DOCUMENTS" means this Note and the Mortgage.
"LOAN YEAR" means the twelve (12) month period beginning on
the Closing Date and ending on the first anniversary date of the Closing Date
and each and every twelve (12) month period thereafter.
"MATURITY DATE" means March 31, 2003.
"MORTGAGE" means the Mortgage Modification and Extension
Agreement dated as of October 5, 2001.
"PERSON" means any individual, partnership, corporation, trust
or unincorporated organization, and any government or agency or political
subdivision or branch thereof.
"PREMISES" means certain real property owned by the Agency
located at 0000 Xxxx Xxxxx Xxxx in the Town of Shelby and Village of Xxxxxx,
County of Orleans and State of New York.
PURPOSE OF NOTE
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This Note is being given solely for the purpose of modifying,
amending and restating the terms of the notes, bonds or other obligations which
are secured by the Mortgage. This Note does not create a new or further
indebtedness or obligation other than the principal indebtedness or obligation
secured by or which under any contingency may be secured by the Mortgage.
PAYMENT TERMS
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Interest shall accrue at the Initial Rate until March 31,
2002. On and after March 31, 2002, interest shall accrue at the Adjusted Rate.
On the first day of each month following the Closing Date and on the first day
of each and every month thereafter, Mortgagor shall make payments to Mortgagee
of interest only.
The entire unpaid principal amount of the Loan, together with
all accrued and unpaid interest thereon, shall become due and payable on the
Maturity Date. From and after the Maturity Date, any unpaid principal shall bear
interest at the Default Rate.
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Interest shall be calculated on a 360-day basis for the actual
number of days any portion of the principal amount of the Loan is outstanding.
Each monthly payment shall be applied by Mortgagee first to the payment of any
late payment charges and to payment of interest on the unpaid principal balance
of the Loan at the Contract Rate and then any excess to the reduction and
payment of principal.
PREPAYMENT
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Mortgagor shall have the right to prepay all or any portion of
the unpaid principal balance of this Note on any regular business day without
premium. If any prepayment of principal is made before the Maturity Date,
Mortgagor shall make such payment by depositing it with Escrow Agent for the
account of Mortgagee. The payment of outstanding principal if made before March
31, 2003 shall be payable by Xxxxxxxxx to Escrow Agent for the account of
Mortgagee; if any principal is paid hereunder after March31, 2003, Mortgagor
shall make such payment directly to Mortgagee.
PLACE OF PAYMENT
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All payments of principal and interest required to be made
hereunder, and all other sums due hereunder, shall be payable as directed
hereunder to either Mortgagee at 00 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxx, or to Escrow Agent at 0 XXXX Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxx Xxxx 00000,
or at such other office or place as either Mortgagee or Escrow Agent may
designate in writing. Any payment made by Mortgagor to Escrow Agent shall
discharge Mortgagor's obligation under this Note to the extent of the amount so
paid.
LATE PAYMENT CHARGE
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In the event that any installment of principal and/or interest
required to be made hereunder shall not have been received by Mortgagee within
ten (10) days after it becomes due and payable, a "late charge" of five percent
(5%) of the amount due shall become immediately due to Mortgagee as liquidated
damages for failure to make prompt payment, and the same shall be secured by the
Mortgage. Said charge shall be payable in any event no later than the due date
of the next installment of principal and interest required to be made hereunder.
MORTGAGE
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This Note is secured by the Mortgage and is subject to all of
the terms and conditions of the Mortgage.
EVENT OF DEFAULT
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The entire unpaid principal amount of the Loan, together with
all accrued and unpaid interest thereon, shall, without notice, become
immediately due and payable, at the option of Mortgagee, and Mortgagee shall
thereupon have the right, among others, to foreclose the Mortgage, upon the
occurrence of any Event of Default. Failure to exercise such option shall not
constitute a waiver of the right to exercise the same in the case of any
subsequent Event of Default.
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DEFAULT RATE
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Upon the occurrence of any Event of Default, Mortgagee may
change the interest on this Note from the Contract Rate to the Default Rate,
such change of rate to become effective on the date notice of such Event of
Default is given to Mortgagor and to remain in effect until such Event of
Default is cured, regardless of whether Mortgagee elects to accelerate the
indebtedness evidenced by this Note by reason of such Event of Default. In the
event that Mortgagor cures any Event of Default prior to the Maturity Date, upon
such cure the interest rate shall automatically revert to the Contract Rate from
the Default Rate.
MORTGAGOR TO PAY EXPENSES
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If it becomes necessary to take any legal action to collect
the indebtedness evidenced by this Note or any part thereof or to foreclose the
Mortgage, or if this Note is placed in the hands of an attorney for collection,
Xxxxxxxxx agrees to pay the reasonable attorneys' fees of Mortgagee, as well as
all costs of collection, whether or not any Foreclosure Action is actually
brought.
WAIVERS AND CONSENTS
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To the extent permitted by law, Mortgagor (a) waives and
renounces any and all exemption rights and the benefit of all valuation and
appraisal privileges as against the indebtedness secured by the Mortgage or any
renewal or extension thereof, (b) waives presentment for payment, demand,
protest, notice of protest and notice of dishonor and any and all lack of
diligence or delays in the collection or enforcement of said indebtedness, (c)
waives the right to assert in any Foreclosure Action any defense based upon or
relating to the failure by Mortgagee to produce and/or introduce into evidence
in such action any of the notes, bonds or other obligations which are secured by
the Mortgage other than this Note and (d) consents to any extension of time,
release of any collateral securing this Note, acceptance of other collateral
therefor, or any other indulgence or forbearance whatsoever. Any such extension,
release, acceptance, indulgence or forbearance may be made, to the extent
permitted by law, without notice to Mortgagor. Mortgagee acknowledges that there
may exist certain set-off rights under the terms of the Escrow Agreement.
COMPLIANCE WITH USURY REQUIREMENTS
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This Note is subject to the express condition that at no time
shall Mortgagor be obligated or required to pay interest on the principal amount
of the Loan at a rate which could subject Mortgagee to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Mortgagor is permitted by law to contract or agree to pay. If by the terms of
this Note Mortgagor would at any time be required or obligated to pay interest
at a rate in excess of such maximum rate, the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate and the interest
payable thereafter shall be computed at a rate not to exceed such maximum rate
and all previous payments in excess of such maximum rate shall be deemed to have
been payments in reduction of the principal balance of the Loan instead of
payments of interest thereon.
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MODIFICATIONS AND AMENDMENTS
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No change, amendment, modification, cancellation or discharge
of this Note, or of any part hereof, shall be valid unless Mortgagee shall have
consented thereto in writing.
SUCCESSORS AND ASSIGNS
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The covenants and obligations of this Note shall be binding
upon Mortgagor, its successors and assigns and shall inure to the benefit of
Mortgagee, its successors and permitted assigns and all subsequent holders of
the Mortgage. This Note may not be assigned by Mortgagee without the written
consent of Mortgagor and its senior lender, such consent not to be unreasonably
withheld or delayed.
GOVERNING LAW
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This Note shall be governed by and construed in accordance
with the laws of the State of New York.
WAIVER OF TRIAL BY JURY
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TO THE EXTENT PERMITTED BY LAW, XXXXXXXXX XXXXXX THE RIGHT TO
TRIAL BY JURY IN ANY FORECLOSURE ACTION.
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IN WITNESS WHEREOF, Xxxxxxxxx has caused this Note to be duly
executed as of the day and year first above written.
MORTGAGOR:
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ONTARIO FOODS, INCORPORATED
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Its: President
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PROVINCE OF ONTARIO )
) SS.:
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On the 1st day of October in the year 2001 before me, the undersigned,
personally appeared Xxxx X. Xxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
(Signature and office of individual taking acknowledgment)
/s/ Xxx Xxxxxx
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Notary Public
