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Exhibit 10.78

 

Recording Requested By
And When Recorded Mail To:

U.S. Bank National Association
101 North First Avenue, Suite 1600
Phoenix, AZ 85003-1902
Attention: Commercial Banking

 

 

 

 

Space Above For Recorder’s Use

 

WASHINGTON STATE COUNTY AUDITOR’S/RECORDER’S INFORMATION (RCW 65.04):

 

GRANTOR:            RADER FARMS, INC. (“GRANTOR” and “LESSEE”)

 

GRANTEE:             U.S. BANK NATIONAL ASSOCIATION (“BENEFICIARY”)

 

 

ABBREVIATED

 

LEGAL DESCRIPTION:

Ptn. of Sections 1, 3, 4, 9, 10, 31, 33, Township 40 North, Range 3 East of W.M., Ptn. of Sections 6 and 31, Township 40 North, Range 4 East of W.M.

 

[SEE ATTACHED EXHIBIT A FOR FULL LEGAL DESCRIPTION]

 

ASSESSOR’S PROPERTY TAX PARCEL ACCOUNT NUMBER(S):

 

400406 235480 0000 and 400310 258263 0000 and 400309 466060 0000 and 400405 096537 0000 and 410333 205232 0000 and 400310 121045 0000 and 400309 475078 0000 and 400309 476112 0000 and 400310 024030 0000 and 400310 067020 0000 and 400406 198523 0000 and 410431 019031 0000 and 410431 019090 0000 and 400310 207022 0000 and 400309 490232 0000 and 410431 019156 0000 and 400310 038225 0000 and 400309 505035 0000 and 400310 105237 0000 and 400309 441228 0000 and 400303 449478 0000 and 400406 037482 0000 and 400309 305089 0000 and 400310 070169 0000 and 400301 235478 0000 and 400310 187087 0000 and 400310 070085 0000 and 400309 470490 0000 and 400301 363356 0000 and 400405 104471 0000 and 400406 250460 0000 and 400304 344458 0000 and 410431 086075 0000 and 400310 213195 0000 and 400304 209456 0000 and 400303 487407 0000 and 400309 395110 0000 and 400301 402485 0000

 

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AMENDMENT TO LEASEHOLD DEED OF TRUST
WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND
FIXTURE FILING AND MEMORANDUM OF MODIFICATION
(Washington)

 

This Document Serves as a Fixture Filing under the Washington Uniform Commercial Code.

 

Grantor’s Organizational Identification Number is:  DE-4351069 .

 

This Amendment to Leasehold Deed of Trust with Assignment of Rents, Security Agreement, and Fixture Filing and Memorandum of Modification (the “Amendment”) is dated for reference purposes as of March 21, 2011, by and between RADER FARMS, INC. , a Delaware corporation, as trustor (the “Grantor”), CHICAGO TITLE INSURANCE COMPANY , as trustee (the “Trustee”), and U.S. BANK NATIONAL ASSOCIATION , a national banking association, as beneficiary and secured party (the “Beneficiary”).

 

Factual Background

 

A.             Beneficiary and INVENTURE FOODS, INC. , a Delaware corporation f/k/a THE INVENTURE GROUP, INC. (the “Borrower”), are parties to that certain Loan Agreement (Revolving Line of Credit Loan and Term Loan) dated as of May 16, 2007 (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “RLOC/Term Loan Agreement”).  The RLOC/Term Loan Agreement establishes (1) a revolving line of credit loan (“RLOC Loan”) to Borrower in the maximum principal amount of Twenty-Five Million and No/100 Dollars ($25,000,000.00) (the “RLOC Loan Maximum Committed Amount”), and (2) a term loan (“Term Loan”) to Borrower in the principal amount of Six Million and No/100 Dollars ($6,000,000.00) (the “Term Loan Amount”).  Bank also made a term loan (the “RE Loan”) to Borrower in the principal amount of Four Million and No/100 Dollars ($4,000,000.00) (the “RE Loan Amount”), pursuant to that certain Term Loan Agreement dated as of June 28, 2007 (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “RE Loan Agreement”).  The RLOC Loan, the Term Loan, and the RE Loan are hereinafter collectively, referred to as the “Credit Facilities” or “Loans” as applicable, each, individually, a “Credit Facility,” or “Loan,” as applicable).  All capitalized terms used herein and not defined shall have the meanings set forth in the RLOC/Term Loan Documents and/or the RE Loan Documents, as applicable.

 

B.             The RLOC Loan is evidenced by a Promissory Note Secured by Deed of Trust (Revolving Line of Credit Loan) made payable to Bank in the RLOC Loan Maximum Committed Amount (as amended, restated, renewed, replaced, supplemented or otherwise modified from time to time, the “RLOC Loan Note”).  The Term Loan is evidenced by a Promissory Note Term Loan - Interim Draw Period Converting to Term (Term Loan - Interim Draw Period Converting to Term) made payable to Bank in the Term Loan Amount (as amended, restated, renewed, replaced, supplemented or otherwise modified from time to time, the “Term Loan Note”).  The RE Loan is evidenced by a Promissory Note Secured by Deed of Trust (Term Loan) made payable to Bank in the RE Loan Amount (as amended, restated, renewed, replaced, supplemented or otherwise modified from time to time, the “RE Loan Note”).  The RLOC Loan Note, the Term Loan Note, and the RE Loan Note, as amended, restated, renewed, replaced, supplemented or otherwise modified from time to time, are hereinafter collectively, referred to as the “Notes,” each, individually, a “Note,” as applicable.

 

C.             The Notes are secured by, among other things, (i) that certain Business Security Agreement (Blanket - All Business Assets) dated as of May 16, 2007, covering all business assets of the Obligated Group (as amended, restated, replaced, supplemented or otherwise modified from time to time,

 

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the “Business Security Agreement”), (ii) that certain Leasehold Deed of Trust with Assignment of Rents, Security Agreement, and Fixture Filing (Washington) by RADER FARMS, INC. , a Delaware corporation (“Rader”), as grantor, and CHICAGO TITLE INSURANCE COMPANY , as trustee, and Bank, as beneficiary and secured party dated as of June 28, 2007, and recorded July 2, 2007, as Recording Number 2070700138 in the Official Records of Whatcom County, Washington (the “Deed of Trust”) covering certain real and personal property, as therein described (all collectively, the “Property”).  The Property encumbered by the Deed of Trust includes, without limitation, Rader’s Lessee’s Rights under the Ground Lease.

 

D .             Grantor has requested that Beneficiary modify certain terms and conditions of the Loans, including but not limited to, increasing the amount of the RLOC Loan by Ten Million and No/100 Dollars ($10,000,000.00) and extending the Maturity Date of the Loan to July 31, 2014, upon the terms and conditions set forth in that certain Modification and Extension Agreement, dated of even date herewith, by and between Beneficiary and Grantor (the “Modification Agreement”).  Beneficiary, although under no obligation to do so, is willing to modify the Loans in accordance with the terms and conditions of the Modification Agreement, provided that the following amendments are made to the Deed of Trust.  All capitalized terms not defined herein shall have the meaning set forth in the Modification Agreement, or if not defined in the Modification Agreement, shall have the meaning set forth in the RLOC/Term Loan Agreement and/or the RE Loan Agreement, as applicable.

 

E .              Together with the execution hereof and pursuant to the terms of the Modification Agreement, Grantor has executed an Amended and Restated Promissory Note dated of even date herewith (the “Restated RLOC Loan Note”), made payable to Beneficiary in the stated principal amount of amount of Twenty-Five Million and No/100 Dollars ($25,000,000.00), which amends, restates, replaces, and supersedes the original RLOC Note.

 

F.              This Amendment, the Modification Agreement, the RLOC/Term Loan Agreement, the RE Loan Agreement, the Restated RLOC Loan Note, and the Deed of Trust (as amended hereby, together with all of their exhibits, and all other documents which evidence, guaranty, secure, or otherwise pertain to the Loans, as any or all of them may have been amended, modified, or restated from time to time, collectively constitute the “Loan Documents.”

 

Agreement

 

THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and Beneficiary agree as follows:

 

1.              Accuracy of Recitals/Reaffirmation .  Grantor acknowledges the accuracy of the Recitals, and reaffirms all of its obligations under the Deed of Trust and the Loans.  Except as specifically hereby amended, the Deed of Trust shall remain in full force and effect.  Grantor’s payment and performance obligations pursuant to the Deed of Trust and the Loan Documents executed in connection with the Loans, including all extensions, amendments, renewals or replacements thereof, shall continue to be secured by the security interests and liens arising out of the Loan Documents and the Deed of Trust.

 

2.              Modification of Loan .  The Loans and the Loan Documents, including the indebtedness secured by the Deed of Trust, have been modified by the Modification Agreement and related documents thereto.

 

3.              Modifications to Deed of Trust .  The Deed of Trust is hereby modified and amended as described below.  In the event of a conflict between the terms of the RLOC/Term Loan Documents or the RE Loan Documents, and the terms of this Amendment, this Amendment shall control:

 

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3.1           Modification to Deed of Trust Section 1.2(a)(ii)   of the Deed of Trust is amended and modified to read as follows:

 

“(ii)          Payment of all obligations at any time owing under that certain Promissory Note Secured By Deeds of Trust (Facility 1 - Revolving Line of Credit Loan) (the “Facility 1 Note”) dated as of March 21, 2011, payable by Borrower as maker to the order of Beneficiary in the stated principal amount of Twenty-Five Million and No/100 Dollars ($25,000,000.00); and”

 

3.2           Restated RLOC Loan Note .  Concurrently with the execution of this Amendment, Borrower shall execute and deliver to Bank an amended and restated promissory note in a form acceptable to Bank in its sole and absolute discretion (the “Restated RLOC Loan Note”), which Restated RLOC Loan Note shall reflect the modifications set forth in this Modification Agreement and certain other modifications by operation of the Restated RLOC Loan Note, which shall control.  The Restated RLOC Loan Note amends, restates, and replaces the RLOC Loan Note, as such may have been amended or restated from time to time prior to the date of this Amendment, and any credit outstanding under thereunder shall be deemed to be outstanding under the Restated Note.  The stated amount of the Restated RLOC Loan Note is Twenty-Five Million and No/100 Dollars ($25,000,000).

 

4.              Miscellaneous .

 

4.1           Further Assurances .  At its sole cost and without expense to the Trus


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