SECOND AMENDMENT TO JUNIOR OPEN-END REAL PROPERTY
MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT
OF LEASES AND RENTS
(Mahoning County, Ohio)
THIS SECOND AMENDMENT TO JUNIOR OPEN-END REAL PROPERTY MORTGAGE, SECURITY
AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS (the "Amendment"), made as of
October 31, 2004, is made and executed by PERFORMA CORP., an Ohio corporation
("Mortgagor"), and LASALLE BUSINESS CREDIT, LLC, a Delaware limited liability
company, successor to LaSalle Business Credit, Inc., a Delaware corporation (in
its individual capacity, "LaSalle"), as agent (LaSalle in its capacity as agent
being hereinafter referred to as "Agent") for Lenders (as "Lenders" is defined
in the Amended Loan and Security Agreement referred to below) and LaSalle
Business Credit, a division of ABN AMRO Bank, N.V., Canada Branch.
RECITALS:
I. Mortgagor executed and delivered to Agent a Junior Open-End Real
Property Mortgage, Security Agreement and Assignment of Leases and Rents dated
as of June 21, 2002 originally filed with the Recorder of Mahoning County, Ohio
in Book 5226, Page 1303, as amended from time to time (the "Mortgage"). A legal
description of the real estate encumbered by the Mortgage (the "Mortgaged
Property) is attached as Exhibit A and incorporated herein. The Mortgage secures
(i) loans made pursuant to a certain Amended and Restated Loan and Security
Agreement dated as of May 8, 2003 (said Amended and Retated Loan Agreement, as
amended from time to time, being hereinafter referred to as the "Loan
Agreement") pursuant to which Lenders agreed to make loans to Cantar/Polyair
Corporation, Atlantic Pool Products Corporation, formerly known as
Cantar/Polyair of Illinois, Inc., Mabex Universal Corporation, and Performa
Corp., as borrowers ("Borrowers"), in the maximum aggregate principal amount of
$52,200,000 (the "Loans"), and (ii) a guaranty by Mortgagor of certain loans
made pursuant to a certain Amended and Restated Credit Agreement dated as of May
8, 2003 in the maximum aggregate principal amount of $19,800,000 (the "Canadian
Loans"). The Loans consist of (i) revolving loans in the maximum aggregate
principal amount of $42,000,000 (the "Revolving Loans"); (ii) a term loan "A" in
the original principal amount of $4,600,000 (the "Term Loan A"), which term loan
is evidenced by one or more notes having a maturity date of November 1, 2005
("Term Notes A"), and (iii) a term loan "B" in the original principal amount of
$5,600,000 (the "Term Loan B"), which term loan is evidenced by one or more
notes having a maturity date of November 1, 2005 ("Term Notes B").
II. Concurrently herewith, the Loan Agreement is being amended by a certain
Fourth Amendment to Amended and Restated Loan and Security Agreement of even
date herewith pursuant to which (i) Term Loan A is being increased from the
outstanding principal balance of $1,121,428.43 to $4,441,000 ("Amended Term Loan
A") and (ii) Term Loan B is being increased from the outstanding principal
balance of $4,339,999.91 to $5,360,000 ("Amended Term Loan B"). Term Notes A are
being amended and restated in their entirety by notes in the aggregate principal
amount of $4,441,000 (said notes, together with all amendments, supplements,
modifications and replacements thereof, being hereinafter referred to "Amended
Term Notes A") and Term Notes B are being amended and restated in their entirety
by notes in the aggregate principal amount of $5,360,000 (said notes, together
with all amendments, supplements, modifications and replacements thereof, being
hereinafter referred to "Amended Term Notes B"). The Canadian Loans are being
increased to the maximum principal amount of $20,142,000 (the "Amended Canadian
Loans").
III. The parties hereto now wish to amend the Mortgage to secure the
increases in Term Loan A and Term Loan B and to secure the increase in the
Canadian Loans which are guarantied by Mortgagor.
AGREEMENTS:
Mortgagor and Agent agree as follows:
1. The Recitals are hereby incorporated herein by reference.
2. The Mortgage is hereby amended to secure the increases in Term Loan A
and Term Loan B and to secure the increase in the Canadian Loans which are
guarantied by Mortgagor, in addition to all indebtedness heretofore secured.
3. The Mortgage is hereby amended to conform to the terms hereof.
4. Except as amended hereby, the Mortgage remains in full force and effect
in accordance with its original terms.
5. This Amendment may be executed in one or more counterparts each of which
shall be deemed an original, but both of which counterparts together shall
constitute one original.
[Signature page follows.]
IN WITNESS WHEREOF, the undersigned have executed this Amendment on the
date first written above.
Signed and acknowledged in the PERFORMA CORP., an Ohio corporation
presence of:
___________________________________ By____________________________________
Print Name:________________________ Print Name____________________________
Its___________________________________
___________________________________
Print Name:________________________
Signed and acknowledged in the LASALLE BUSINESS CREDIT, LLC, a
presence of: Delaware limited liability company
___________________________________
Print Name:________________________ By____________________________________
Print Name____________________________
___________________________________ Its___________________________________
Print Name:________________________
THIS INSTRUMENT PREPARED BY
AND AFTER RECORDING RETURN TO:
Xxxxxx X. Xxxxx, Esq.
GOLDBERG, KOHN, BELL, BLACK,
XXXXXXXXXX & MORITZ, LTD.
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
ACKNOWLEDGMENT
STATE OF )
) SS
COUNTY OF )
I, __________________________, a Notary Public in and for and residing in
said County and State, DO HEREBY CERTIFY THAT ______________________________,
the ___________________________________ of Performa Corp., an Ohio corporation,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that __he signed and delivered said instrument as h___ own free and voluntary
act and as the free and voluntary act of said corporation for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ______ day of ____________,
2004.
_________________________
Notary Public
My Commission Expires:
_________________________
ACKNOWLEDGMENT
STATE OF )
) SS
COUNTY OF )
I, __________________________, a Notary Public in and for and residing in
said County and State, DO HEREBY CERTIFY THAT ______________________________,
the ___________________________________ of LaSalle Business Credit, LLC, a
Delaware limited liability company, personally known to me to be the same person
whose name is subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged that __he signed and delivered said instrument as
h___ own free and voluntary act and as the free and voluntary act of said
corporation for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this _____ day of ____________, 2004.
_________________________
Notary Public
My Commission Expires:
_________________________
EXHIBIT A
Legal Description
