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PF ACQUISITION II, INC.
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$12,000,000
SUBORDINATED NOTE AGREEMENT
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Dated as of February 22, 1999
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TABLE OF CONTENTS
Page
Section 1. LOANS; PAYMENTS AND INTEREST.........................................1
1.1 Loans....................................................................1
1.2 Obligations Several......................................................1
1.3 Repayment of Loans; Interest.............................................2
Section 2. CLOSING..............................................................2
Section 3. CONDITIONS TO CLOSING................................................2
3.1 Certain Documents.........................................................2
3.2 Other Conditions Precedent................................................4
3.3 Senior Debt...............................................................4
Section 4. REPRESENTATIONS AND WARRANTIES OF BORROWER...........................4
Section 5. AFFIRMATIVE COVENANTS................................................5
Section 6. NEGATIVE COVENANTS...................................................6
Section 7. FINANCIAL COVENANTS..................................................6
Section 8. REMEDIES ON DEFAULT, ETC.............................................7
8.1 Non-Bankruptcy Defaults...................................................7
8.2 Remedies for Bankruptcy Defaults..........................................7
Section 9. SECURITY.............................................................8
Section 10. AGENCY PROVISIONS....................................................8
Section 11. MISCELLANEOUS........................................................9
11.1 Incorporation by Reference...............................................9
11.2 Amendments, Etc..........................................................9
11.3 Assignment and Participations...........................................10
11.4 Expenses; Indemnification...............................................11
11.5 Consents................................................................12
11.6 Payments on Notes.......................................................12
11.7 Payments Due on Non-Banking Days........................................13
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11.8 Transfer of Ownership of Borrower under Certain Circumstances...........13
11.9 Jurisdiction, Immunities................................................13
11.10 Confidentiality........................................................13
11.11 Obligations Non-Recourse to Agrilink and Pro-Fac.......................14
11.12 Construction; Definitional Provisions..................................14
11.13 Other Miscellaneous Provisions.........................................15
Schedules
Schedule A Lenders
Schedule B Definitions
Schedule 6.12 Environmental Matters
Exhibits
I Form of Note
II Form of Addendum to Junior Security Agreement
III Form of Addendum to Junior Oregon Mortgage
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PF ACQUISITION II, INC.
SUBORDINATED NOTE AGREEMENT
February 22, 1999
TO EACH OF LENDERS LISTED ON
THE ATTACHED SCHEDULE A AND
TO COBANK, ACB, AS ADMINISTRATIVE
AGENT FOR THE LENDERS
Ladies and Gentlemen:
PF ACQUISITION II, INC., a New York corporation ("Borrower") hereby
agrees with Administrative Agent and each Lender as follows:
Section 1. LOANS; PAYMENTS AND INTEREST
1.1 Loans.
Subject to the terms and conditions of this Subordinated Agreement
and in reliance upon the representations and warranties of Borrower herein set
forth, each Lender hereby severally agrees to lend to Borrower on the Closing
Date the amount specified opposite such Lender's name on Schedule A annexed
hereto, which loan shall be evidenced by a Note made by Borrower in favor of
that Lender. All loans made pursuant to this Subordinated Agreement shall be
made on a non-patronage basis. Amounts borrowed and subsequently repaid or
prepaid may not be reborrowed. Certain capitalized terms used in this
Subordinated Agreement are defined in Schedule B annexed hereto.
1.2 Obligations Several.
All loans under this Subordinated Agreement shall be made by the
Lenders simultaneously and proportionately, it being understood that no Lender
shall be responsible for any default by any other Lender in that other Lender's
obligation to make a loan hereunder nor shall the commitment of any Lender to
make any loan
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hereunder be increased or decreased as a result of a default by any other Lender
in that other Lender's obligation to make a loan hereunder.
1.3 Repayment of Loans; Interest.
Borrower shall repay the principal of the loans hereunder, and such
loan shall bear interest, as set forth in the Notes.
Section 2. CLOSING
The closing shall occur at the offices of ____________________
_____________________________ at 9:00 a.m., Oregon time, at a closing on
February 22, 1999 or on such other Banking Day thereafter as may be agreed upon
by Borrower and the Administrative Agent (the "Closing Date"). On the Closing
Date, Borrower will execute and deliver to Administrative Agent a Note for each
Lender, dated the Closing Date to evidence such Lender's loan in the principal
amount specified opposite such Lender's name on Schedule A annexed hereto and
with other appropriate insertions. Loans shall be made by delivery by wire
transfer of immediately available funds for the account of Borrower to a bank
account in the name of Borrower at ____________________________ to be advised
prior to the Closing Date.
Section 3. CONDITIONS TO CLOSING
Each Lender's obligation to make the loans evidenced by the Notes
on the Closing Date is subject to the fulfillment to Administrative Agent's
satisfaction, prior to or on the Closing Date, of the following conditions:
3.1 Certain Documents. The Administrative Agent shall have received
in sufficient copies for each Lender:
(a) The Note in favor of each Lender duly executed
by Borrower;
(b) The Junior Security Agreement duly executed by
Borrower, together with duly executed copies of such financing
statements, instruments or documents, as is necessary, in
Administrative Agent's opinion, to
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perfect the Lenders' security interests in the Junior Security
Agreement Collateral;
(c) The Junior Mortgages duly executed and
acknowledged by Borrower;
(d) An ALTA lender's form of title insurance (i) with
respect to the real property interests located in the County of Xxxxxx,
State of Oregon in a face amount acceptable to the Administrative
Agent, (ii) with respect to the real property interests located in the
County of Walla Walla, State of Washington in a face amount acceptable
to the Administrative Agent and (iii) with respect to the real property
leasehold interests located in the Counties of Walla Walla and Yakima,
State of Washington in a face amount acceptable to the Administrative
Agent insuring the Junior Mortgages as a second lien on the Junior
Mortgage Collateral, subject only to those exceptions approved in
writing by the Administrative Agent;
(e) Certified copies of Borrower's articles of
incorporation and bylaws, together with documentation evidencing its
qualification to transact business in Oregon;
(f) Resolutions in form and content satisfactory to
the Administrative Agent and each Lender and certified as of the
Closing Date by the Secretary or Assistant Secretary of Borrower,
authorizing Borrower to enter into the Loan Documents and the
instruments and documents contemplated hereby;
(g) A certificate (dated as of the Closing Date) of
the Secretary or Assistant Secretary of Borrower certifying the names
and true signatures of the officers of Borrower authorized to sign the
Loan Documents and the instruments and documents contemplated hereby;
(h) The written legal opinion of Borrower's counsel,
in form and substance acceptable to the Administrative Agent;
(i) A copy of the Court Order (which shall be in form
and substance acceptable to the Administrative Agent);
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(j) A copy of the Acquisition Agreement (which shall
be in form and substance satisfactory to the Administrative Agent)
certified to be in full force and effect by the Secretary or Assistant
Secretary of Borrower;
(k) A copy of the Service Agreement (which shall be
in form and substance satisfactory to the Administrative Agent)
certified to be in full force and effect by the Secretary or Assistant
Secretary of Borrower; and
(l) Such other approvals, opinions or documents as
any Lender may reasonably request.
3.2 Other Conditions Precedent. On the Closing Date:
(a) Each of the representations and warranties set
forth in Section 4 hereof shall be and remain true and correct as of
the Closing Date;
(b) No event or circumstances constituting a Material
Adverse Effect has occurred since the date of the most recent financial
statements furnished to the Lenders prior to the Closing Date; and
(c) No Event of Default or Potential Default shall
have occurred and be continuing or would result from providing the
loans contemplated hereby.
3.3 Senior Debt. On the Closing Date, the Lenders shall be
satisfied that the Senior Credit Agreement is in a position to close.
Section 4. REPRESENTATIONS AND WARRANTIES OF BORROWER.
Article VI of the Senior Credit Agreement is incorporated herein
and made a part hereof by this reference, with the following modifications:
(a) The reference in Section 6.5 (Financial Statements) to
"the Subordinated Notes" shall refer instead to "the Senior Credit Agreement".
(b) Section 6.7 (Ownership and Liens) is revised to read in full as
follows:
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"Except for Permitted Liens, none of the assets of Borrower
(including its leasehold interests) are subject to a Lien."
(c) Section 6.14 (Security Interests) is revised to read in full as
follows:
"6.14 Security Interests. Upon the execution and delivery of
the Junior Security Agreement, the Junior Security Agreement will create a valid
security interest in the Junior Security Agreement Collateral described therein
securing the Obligations (subject only to Permitted Liens and to such
qualifications and exceptions as are contained in the Uniform Commercial Code
with respect to the priority of security interests perfected by means other than
the filing of a financing statement or with respect to the creation of security
interests in property to which Article 9 of the Uniform Commercial Code does not
apply) and upon the proper filing of the UCC-1 financing statements delivered to
the Administrative Agent pursuant to Section 3.1 of this Subordinated Agreement
with the appropriate governmental agency all action necessary to perfect the
security interest so created (to the extent that such security interest may be
perfected by filing) will have been taken and completed. Upon the execution and
delivery of the Junior Mortgages, the Junior Mortgages will create a valid Lien
in the Junior Mortgage Collateral described therein securing the Obligations
(subject only to Permitted Liens), and upon recordation thereof with the
appropriate governmental agency, all action necessary to perfect the Lien so
created will have been taken and completed."
Section 5. AFFIRMATIVE COVENANTS
Article VII of the Senior Credit Agreement is incorporated herein
and made a part hereof by this reference, with the following modifications:
(a) The preamble thereto is revised to read in full as follows:
"Borrower covenants that so long as the Notes shall remain
unpaid or any other amount is owing by Borrower to any Lender hereunder or under
any other Loan Document, Borrower shall:"
(b) The reference in Section 7.1 to "Section 13.17" shall refer
instead to "Section 11.8 of this Subordinated Agreement".
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(c) For purposes of this Subordinated Agreement, Borrower
shall have complied with the provisions of Section 7.9 of the Senior Credit
Agreement as incorporated herein (other than Section 7.9(C)) to the extent that
Borrower has made the required deliveries to the Banks (as defined in the Senior
Credit Agreement), provided, however, that the Banks (as defined in the Senior
Credit Agreement) are the same entities as the Lenders under this Subordinated
Agreement.
(d) Section 7.11 is revised to read in full as follows:
"7.11 Use of Proceeds. Use the loans provided for herein solely
to finance the Acquisition."
Section 6. NEGATIVE COVENANTS
Article VIII of the Senior Credit Agreement (other than Section
8.15 thereof) is incorporated herein and made a part hereof by this reference,
with the following modifications:
(a) The preamble thereto is revised to read in full as follows:
"So long as any of the Notes shall remain unpaid or any other
amount is owing by Borrower to any Lender hereunder or under any other Loan
Document, Borrower shall not:"
(b) Subsection (iv) of Section 8.1 is revised by changing the
reference to "the Subordinated Notes" therein to "the Senior Debt".
(c) Section 8.2 is revised to read in full as follows:
"8.2 Liens. Create, incur, assume, or allow to exist any mortgage,
deed of trust, pledge, lien (including the lien of an attachment, judgment, or
execution), security interest, or other encumbrance of any kind upon any of its
property, real or personal (collectively, "Liens"). The foregoing restrictions
shall not apply to Permitted Liens."
Section 7. FINANCIAL COVENANTS
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Article IX of the Senior Credit Agreement is incorporated herein
and made a part hereof by this reference, with the modification that the
preamble thereto is revised to read in full as follows:
"So long as any of the Notes shall remain unpaid or any other
amount is owing by Borrower to any Lender hereunder or under any other Loan
Document:"
Section 8. REMEDIES ON DEFAULT, ETC.
8.1 Non-Bankruptcy Defaults. Upon the occurrence of and during the
continuance of any Event of Default (other than an Event of Default described in
subsections (k) or (l) of the definition of "Event of Default" in the Notes),
the Lenders may, upon vote of the Required Lenders and upon notice to Borrower:
(a) declare the outstanding Notes, all interest thereon, and all other amounts
payable under this Subordinated Agreement and the other Loan Documents to be due
and payable, whereupon the Notes, all such interest, and all such other amounts
shall become and be due and payable, without presentment, demand, protest, or
further notice of any kind, all of which are hereby expressly waived by
Borrower; and (b) proceed to foreclose against any security, take any action or
exercise any remedy under any of the Loan Documents, or exercise any other
action, right, power or remedy permitted by Law. Without limiting the foregoing,
any Lender may exercise its right of set off with regard to any deposit accounts
or other accounts maintained by Borrower with any of the Lenders for the pro
rata benefit of the Lenders. Notwithstanding the foregoing or the definition of
"Required Lenders" set forth in Schedule B annexed hereto, if following the
occurrence of an Event of Default (other than an Event of Default described in
subsections (k) or (l) of the definition of "Event of Default" in the Notes),
the Required Lenders do not, for a period of more than 90 days, agree to either
exercise the rights provided for in this Section or (to the extent the Required
Lenders have the authority to do so under Section 11.2 hereof) waiver the Event
of Default (or amend the Notes to eliminate the Event of Default), then the term
"Required Lenders" shall, after such 90th day and only for the purpose of
electing to affirmatively exercise the Lenders' rights under this Section, mean
a majority in number of the Lenders.
8.2 Remedies for Bankruptcy Defaults. Upon the occurrence of an
Event of Default described in subsections (k) or (l) of the definition of "Event
of Default" in the Notes: (a) the Notes and all other obligations of Borrower
hereunder and under the other Loan Documents shall immediately become due and
payable without presentment, demand, protest or notice of any kind; and (b) the
Lenders may, upon vote of the Required Lenders, exercise such rights and
remedies as may be permitted
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by Law. Notwithstanding the foregoing or the definition of "Required Lenders"
set forth in Schedule B annexed hereto, in the event the Required Lenders do
not, for a period of more than 60 days, agree on how to exercise such rights and
remedies, then the term "Required Lenders" shall, after such 60th day, and only
for the purpose of determining the method of exercising those rights, mean a
majority in number of the Lenders.
Section 9. SECURITY
The loans made pursuant to this Subordinated Agreement, the Notes,
interest, fees and all other obligations of Borrower hereunder shall be secured
by a second priority security interest in the Junior Mortgage Collateral and the
Junior Security Agreement Collateral. All such security shall be held in the
name of the Administrative Agent for the benefit of the Lenders. All obligations
of Borrower to CoBank hereunder shall also be secured by an exclusive statutory
lien for the benefit of CoBank on all equities of CoBank owned by Borrower.
Section 10. AGENCY PROVISIONS
Article XII of the Senior Credit Agreement is incorporated herein
and made a part hereof by this reference, with the following modifications:
(a) Section 12.2 is revised as follows: (i) the reference to
"Advances made by it" therein shall refer instead to "loans made by it pursuant
to this Subordinated Agreement", and (ii) each reference therein to "any Loan"
shall refer instead to "any loan made pursuant to this Subordinated Agreement".
(b) The first sentence of Section 12.4 is revised to read
in full as follows:
"With respect to loans provided by it pursuant to this Subordinated
Agreement, the Administrative Agent in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Administrative Agent, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its capacity as a Lender."
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(c) Each reference in Section 12.5 to "Section 13.6" shall refer
instead to "Section 11.4 of this Subordinated Agreement".
(d) The reference in Section 12.12 to "any Advance" shall refer
instead to "any loan made pursuant to this Subordinated Agreement".
(e) Each reference in Section 12.13 to an "Advance" shall refer
instead to a "loan made pursuant to this Subordinated Agreement".
Section 11. MISCELLANEOUS
11.1 Incorporation by Reference. To the extent that any provision
of the Senior Credit Agreement is incorporated by reference into this
Subordinated Agreement, (a) each reference in such provision to a "Bank" shall
refer instead for purposes of this Subordinated Agreement to a "Lender", (b)
each reference in such provision to "Required Banks" shall refer instead for
purposes of this Subordinated Agreement to "Required Lenders", (c) each
reference in such provision to "Agreement" as an individual defined term shall
refer instead for purposes of this Subordinated Agreement to "Subordinated
Agreement", (d) each other capitalized term used therein shall be used herein
with the meaning therefor specified in Schedule B annexed hereto, and (e) unless
modified pursuant to this Subordinated Agreement, each Section or Article
reference therein shall refer to the applicable Section or Article of the Senior
Credit Agreement, as such Section or Article has been incorporated by reference
into this Subordinated Agreement.
11.2 Amendments, Etc.. No amendment, modification, termination, or
waiver of any provision of this Subordinated Agreement or of any Loan Document
to which Borrower is a party, nor consent to any departure by Borrower herefrom
or therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions precedent specified in Section 3.1; (b) subject any
Lender to any additional obligations; (c) reduce the principal of, or interest
on, the Notes or any fees hereunder; (d) postpone any date fixed for any payment
of principal of, or interest on, the Notes, or the payment of any other
obligation of Borrower hereunder, including any fees hereunder; (e) change the
definition of Required Lenders; (f) release any collateral; (g) amend, modify
any Lender's rights to receive its Pro Rata Share of any payment or proceeds of
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Collateral; or (h) amend, modify or waive any provision of this Section 11.2,
and provided further that no amendment, waiver, or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under any of the Loan Documents.
11.3 Assignment and Participations. This Subordinated Agreement
shall be binding upon, and shall inure to the benefit of, Borrower,
Administrative Agent and Lenders and their respective successors and permitted
assigns. Borrower may not assign or transfer its rights or obligations
hereunder.
Any Lender may at any time assign to one or more banks or other
financial institutions (each an "Assignee") a part of its rights and obligations
under this Subordinated Agreement and its Note, and such Assignee shall assume
rights and obligations, pursuant to an Assignment and Assumption Agreement
executed by such Assignee and such Lender, with and subject to the consent of
each of Administrative Agent and Borrower (which consent shall not be
unreasonably withheld or delayed); provided that, in each case, (1) the portion
of the Note assigned is equal to or greater than $1,000,000.00 (or such lesser
amount as shall constitute the aggregate unpaid principal balance of the Note),
and (2) the assigning Lender and Assignee shall pay Administrative Agent a
processing and recordation fee of Two Thousand Five Hundred Dollars ($2,500).
Upon execution and delivery of such instrument and payment by such Assignee to
the Lender of an amount equal to the purchase price agreed between the Lender
and such Assignee, such Assignee shall be a Lender to this Subordinated
Agreement and shall have all the rights and obligations of a Lender assigned to
it in such Assignment and Assumption Agreement, and the assigning Lender shall
be released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this paragraph, new Notes as required shall be
issued by Borrower. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall, prior to the first date
on which interest or fees are payable hereunder for its account, deliver to
Borrower and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 12.12 of the Senior Credit Agreement as incorporated by reference
herein.
Any Lender may at any time assign all or any portion of its rights
under this Subordinated Agreement and its Note to a Federal Reserve Bank. No
such assignment shall release the transferor Lender from its obligations
hereunder.
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With the consent of Borrower (which consent shall not be
unreasonably withheld or delayed), any Lender may at any time grant to one or
more banks or other financial institutions (each a "Participant") participating
interests in the loans evidenced by such Lender's Note. In no event shall a
Participant constitute a Lender for purposes hereof. In the event of any such
grant by a Lender of a participating interest to a Participant, whether or not
upon notice to Borrower and the Administrative Agent, such Lender shall remain
responsible for the performance of its obligations hereunder, and Borrower and
the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations hereunder. Any
agreement pursuant to which any Lender may grant such a participating interest
shall provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of Borrower hereunder and under any other Loan Document
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Subordinated Agreement or any other Loan
Document, provided that such participation agreement may provide that such
Lender will not agree to any modification, amendment or waiver of this
Subordinated Agreement described in the proviso in Section 11.2 without the
consent of the Participant.
Borrower agrees to provide all assistance reasonably requested by a
Lender (at the sole cost and expense of such Lender) to enable such Lender
either to sell participations in or make assignments of the loans evidenced by
such Lender's Note as permitted by this Section.
11.4 Expenses; Indemnification. Borrower agrees to reimburse the
Administrative Agent, on demand for all costs, expenses, and charges plus
expenses incurred by such Administrative Agent, in connection with the
preparation of the Loan Documents. Borrower agrees to reimburse Administrative
Agent and each of the Lenders on demand for all costs, expenses, and charges
(including, without limitation, all fees and charges of external legal counsel
for Administrative Agent, and each Lender) incurred by Administrative Agent, or
any Lender in connection with compliance with any of the Loan Documents, or
enforcement of this Subordinated Agreement, the Notes, or any other Loan
Document. In addition to the foregoing, Borrower agrees to reimburse the
Administrative Agent on demand for all fees and charges of external legal
counsel for Administrative Agent incurred in connection with the administration
of this Subordinated Agreement (including, without limitation, the preparation
of any amendments hereto or to the other Loan Documents or any consents
furnished hereunder or under the other Loan Documents, but excluding any costs
incurred in connection with any participation or assignment by a Lender).
Borrower agrees to and hereby does indemnify each Lender and their respective
directors,
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officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims, damages or expenses incurred by any of them
arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings) relating to this Subordinated Agreement or any of the Loan
Documents or to any actual or proposed use by Borrower of the proceeds of the
loans made pursuant to this Subordinated Agreement or to any violation or
alleged violation of any Environmental Law by Borrower or any of its
Subsidiaries, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation or
litigation or other proceedings (but excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified or its directors, officers,
employees or agents).
Borrower, each of the Lenders and Administrative Agent agree that
the cost of each wire transfer to be made by each such Person pursuant to the
terms of this Subordinated Agreement will be borne by the Person making such
transfer.
The obligations of Borrower under this Section shall survive the
repayment of the loans made pursuant to this Subordinated Agreement and payment
of all amounts due under or in connection with any of the Loan Documents.
11.5 Consents. Each Lender that is a party to this Subordinated
Agreement hereby consents, to the extent required under any agreement between
the Lender and Borrower, to Borrower entering into this Subordinated Agreement
and obtaining the loans provided under this Subordinated Agreement.
11.6 Payments on Notes. Borrower will pay all sums becoming due on
the Notes for principal, premium, if any, and interest by the method and at the
address specified for such purpose below the applicable Lender's signature to
this Subordinated Agreement, or by such other method or at such other address as
such Lender shall have from time to time specified to Borrower in writing for
such purpose, without the presentation or surrender of such Note or the making
of any notation thereon, except that upon written request of Borrower made
concurrently with or reasonably promptly after payment or prepayment in full of
any Note, the applicable Lender shall surrender such Note for cancellation,
reasonably promptly after any such request, to Borrower at its principal
executive office. Prior to any disposition of any Note held by any Lender or any
Lender's nominee such Lender will, at such Lender's election, either endorse
thereon the amount of principal paid thereon and the last date to which interest
has been paid thereon; provided, however, that the failure to make (or any error
in the making of) any such notation shall not limit or otherwise affect the
Obligations of
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Borrower hereunder or under such Note with respect to any payments of principal,
premium or interest on such Note.
11.7 Payments Due on Non-Banking Days. Anything in this
Subordinated Agreement or the Notes to the contrary notwithstanding, any payment
of principal of, premium or interest on any Note that is due on a date other
than a Banking Day shall be made on the next succeeding Banking Day without
including the additional days elapsed in the computation of the interest payable
on such next succeeding Banking Day.
11.8 Transfer of Ownership of Borrower under Certain Circumstances.
The Administrative Agent and each Lender expressly acknowledge that Pro-Fac may
transfer or abandon all, but not less than all, of the common stock or other
ownership interests of Borrower held by Pro-Fac: (a) on June 15, 2002, provided
that the Administrative Agent has been provided with not less than eleven months
prior written notice of Pro-Fac's intention to do so, or (b) at any time prior
to the Maturity Date (and whether or not any Event of Default or Potential
Default has occurred or is continuing) if (i) Borrower is insolvent or otherwise
unable to meet its obligations as they come due (as determined by Pro-Fac in its
sole discretion reasonably exercised), or (ii) (A) any liability or liabilities
of Seller that arose prior to the Closing Date (including liabilities, e.g.,
environmental or pension fund liabilities, for which Borrower may have
independent liability) is imposed or asserted against Borrower or any Affiliate
of Borrower, and (B) Pro-Fac makes a determination in its reasonable business
judgment that, in view of such liability or costs, continuing to own common
stock or to have any other ownership interest in Borrower is not in the best
interests of Pro-Fac. Nothing in this Section 11.8 shall affect the existence of
an Event of Default under subsection (m) of the definition of "Event of Default"
in the Notes by reason of the foregoing, or the exercise by the Lenders of their
remedies provided for in the Loan Documents as a result thereof. Pro-Fac is an
expressly intended third party beneficiary of this Section 11.8 and may enforce
the terms hereof as though a party to this Subordinated Agreement.
11.9 Jurisdiction, Immunities. Section 13.8 of the Senior Credit
Agreement is incorporated herein and made a part hereof by this reference, with
the following modification: the reference to "Section 13.3" shall refer instead
to "Section 11.3 of this Subordinated Agreement".
11.10 Confidentiality. Section 13.16 of the Senior Credit Agreement
is incorporated herein and made a part hereof by this reference, with the
following
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modification: the reference to "Section 13.5" therein shall refer instead to
"Section 11.4 of this Subordinated Agreement".
11.11 Obligations Non-Recourse to Agrilink and Pro-Fac. Section
13.18 of the Senior Credit Agreement is incorporated herein and made a part
hereof by this reference, with the following modifications: (a) the reference to
"Section 13.17" therein shall refer instead to "Section 11.9 of this
Subordinated Agreement", and (b) the reference to "this Section 13.18" shall
refer instead to "this Section".
11.12 Construction; Definitional Provisions.
(a) When used in this Subordinated Agreement: (i) a
reference to a Law includes any amendment or modification to such Law;
(ii) a reference to a Person includes its permitted successors and
permitted assigns and a reference to a Person in a particular capacity
excludes such Person in any other capacity; (iii) a reference to an
agreement, instrument or document (other than the Senior Credit
Agreement) shall include such agreement, instrument or document as the
same may be amended, modified or supplemented from time to time and, if
applicable, as permitted by the Loan Documents, any reference to any
Note includes any note issued pursuant hereto in extension or renewal
thereof and in substitution or replacement therefor; (iv) reference to
any gender includes the other gender; (v) the words "herein," "hereof"
and "hereunder" and other words of similar import refer to this
Subordinated Agreement as a whole and not to any particular Article,
Section or other subdivision; (vi) unless the context indicates
otherwise, reference to any Article, Section, Schedule or Exhibit means
such Article or Section hereof or such Schedule or Exhibit hereto;
(vii) the words "including" (and with correlative meaning "include")
means including, without limiting the generality of any description
preceding such term; and (viii) any of the terms defined herein may,
unless the context otherwise requires, be used in the singular or the
plural, depending on the reference. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof. Any reference to Pacific Time shall
mean such time as in effect in the United States of America.
(b) The following sections of the Senior Credit
Agreement are incorporated herein and made a part hereof by this
reference: Sections 1.2 and 1.3.
-14-
11.13 Other Miscellaneous Provisions. The following sections of the
Senior Credit Agreement are incorporated herein and made a part hereof by this
reference: Sections 13.2, 13.3, 13.4, 13.7, 13.9, 13.10, 13.11, 13.12, 13.13,
13.14, 13.19 and 13.20.
-15-
IN WITNESS WHEREOF, the parties hereto have caused this
Subordinated Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first written.
Very truly yours,
BORROWER: PF ACQUISITION II, INC.
By /s/ Xxxx X. Xxxxxx
______________________________
Xxxx X. Xxxxxx, Vice President
------------------------------
[Printed name and title]
Attn: President
00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
The foregoing is hereby agreed to as of the date thereof.
CoBANK, ACB,
as Administrative Agent and as a Lender
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
----------------------------------
[Printed name and title]
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
X.X. Xxx 00000-X
Xxxxxxxxxx, XX 00000
Attn: Credit Department
Fax: (000) 000-0000
Telephone: (000) 000-0000
-16-
SCHEDULE A
LENDERS
CoBank, ACB $12,000,000.00
A-1
SCHEDULE B
DEFINITIONS
"Administrative Agent" means CoBank, ACB, as administrative agent
for the Lenders.
"Assignee" has the meaning assigned to such term in Section 11.4.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement substantially in the form of Exhibit A to the Senior Credit
Agreement.
"Borrower" has the meaning assigned to that term in the
Introduction.
"Closing Date" has the meaning assigned to that term in Section 2.
"Collateral" means collectively the Junior Security Agreement
Collateral and the Junior Mortgage Collateral.
"Event of Default" has the meaning assigned to that term in the
Notes.
"Junior Mortgage Collateral" means the Collateral described as such
in the Junior Mortgages.
"Junior Mortgages" means, collectively (a) mortgages covering
Borrower's owned and leased real property interests in the State of Washington
to be executed by Borrower in the form attached to the Senior Credit Agreement
as Exhibit C, and (b)(i) a mortgage covering Borrower's owned and leased real
property interests in the State of Oregon to be executed by Borrower in the form
attached to the Senior Credit Agreement as Exhibit C, and (ii) an addendum to
such mortgage to be executed by Borrower in the form attached hereto as Exhibit
III.
"Junior Security Agreement" means, collectively, (a) a security
agreement in the form attached to the Senior Credit Agreement as Exhibit E to be
executed by Borrower, and (b) an addendum to such security agreement to be
executed by Borrower in the form attached hereto as Exhibit II.
"Junior Security Agreement Collateral" means the Collateral
described as such in the Junior Security Agreement.
A-1
"Lender" and "Lenders" means the persons identified as "Lenders"
and listed on the signature pages of this Subordinated Agreement, together with
their successors and permitted assigns pursuant to Section 11.4.
"Loan Documents" means this Subordinated Agreement and all
instruments and documents contemplated hereby, including, without limitation,
the Notes, the Junior Security Agreement and the Junior Mortgages, and any
supplement thereto and the Notes.
"Maturity Date" means February 22, 2014.
"Notes" means the subordinated promissory notes executed by
Borrower in favor of Lenders substantially in the form of Exhibit I attached
hereto, as the same may from time to time be amended, supplemented or otherwise
modified.
"Obligations" means, as of any date of determination, the sum of
the aggregate principal amount of all loans made pursuant to this Subordinated
Agreement then outstanding.
"Participant" has the meaning assigned to that term in Section
11.4.
"Permitted Liens" means: (a) Liens in favor of the Lenders; (b)
Liens for taxes, assessments, or governmental charges that are not past due; (c)
Liens and deposits under workers' compensation, unemployment insurance, and
social security Laws; (d) Liens and deposits to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), and like
obligations arising in the ordinary course of business as conducted on the date
hereof; (e) Liens imposed by Law in favor of mechanics, materialmen,
warehousemen, and like persons that secure obligations that are not past due;
(f) easements, rights-of-way, restrictions, and other similar encumbrances
which, in the aggregate, do not materially interfere with the occupation, use,
and enjoyment of the property or assets encumbered thereby in the normal course
of its business or materially impair the value of the property subject thereto;
(g) liens retained by software vendors in conjunction with software license
agreements; (h) Liens securing the Senior Debt, and (i) Liens securing
indebtedness permitted by clause (v) of Section 8.1 of the Senior Credit
Agreement as incorporated by reference herein.
"Required Lenders" means, at any time, except as otherwise provided
in Sections 8.1 and 8.2 hereof, Lenders holding at least 67% in principal amount
of the Notes at the time outstanding.
A-2
"Pro Rata Share" means as to each Lender, a fraction, the numerator
of which is such Lender's commitment set forth on Schedule A and the denominator
of which is $12,000,000.00.
"Senior Credit Agreement" means that certain Credit Agreement dated
as of the date hereof among Borrower, CoBank ACB, as Administrative Agent and
the Banks party thereto, as in effect as of the date hereof.
"Senior Debt" means the "Senior Indebtedness" as such term is
defined in the Notes.
"Specified Expenses" means (a) cash bonuses payable to former
members of Seller who become members of Pro-Fac not in excess of $6,400,000 and
(b) (i) cash payments to former members of Seller who are now retired, (ii)
severance payments to employees of Borrower who are former employees of Seller
and (iii) transactional costs related to the Acquisition Agreement and the
Senior Credit Agreement not in excess of $2,600,000 for all of the payments
described in this clause (b).
"Subordinated Agreement" means this Subordinated Note Agreement as
it may from time to time be amended, supplemented or otherwise modified.
Any and all defined terms used in this Subordinated Agreement without definition
in this Schedule B shall have the respective meanings assigned thereto in the
Senior Credit Agreement, and any and all defined terms used in such definitions
in the Senior Credit Agreement shall have the respective meanings assigned
thereto in the Senior Credit Agreement unless otherwise defined in this Schedule
B.
A-3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A WHO IS
PURCHASING THIS NOTE FOR HIS/HER OR ITS OWN ACCOUNT OR FOR THE ACCOUNTS OF ONE
OR MORE QUALIFIED INSTITUTIONAL BUYERS IN A PRINCIPAL AMOUNT OF NOT LESS THAN
$100,000 FOR ANY SUCH ACCOUNT, OR (B) PURSUANT TO ANOTHER APPLICABLE EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION.
SUBORDINATED PROMISSORY NOTE
$12,000,000.00 February 22, 1999
FOR VALUE RECEIVED, the undersigned, PF Acquisition II, Inc., a New
York corporation (the "Company"), promises to pay, but subject nevertheless to
all of the provisions hereof, to the order of COBANK, ACB, at its offices at
_____________________________________________or at such other office within the
United States of America as the holder hereof may from time to time in writing
appoint, the principal sum of Twelve Million Dollars ($12,000,000.00) in
quarterly installments on the last day of each calendar quarter (commencing
March 31, 2009) each equal to 1/40 (2.5%) of the principal balance hereof on
March 31, 2009 and a final payment on February 22, 2014. The Company promises to
pay interest at such office on the balance of principal from time to time
outstanding and unpaid hereon (computed on the basis of a year of 365 or 366
days, as the case may be, and the actual number of days elapsed) (i) for the
period from February 22, 2004 until February 22, 2009 at the rate of five (5)
percent per annum and (ii) for the period from and after February 22, 2009 and
until payment in full thereof at the rate of seven (7) percent per annum, such
interest to be due and payable quarterly in arrears on the last day of each
calendar quarter in each year (commencing March 31, 2004) and on the final
maturity date of this Note (the "Interest Payment Dates "). Interest accruing on
this Note during the period described in clause (i) of the preceding sentence
shall be payable solely and only through the issuance by the Company to the
holder hereof on each Interest Payment Date of a subordinated promissory note in
the amount of the interest then due and payable, each such subordinated
promissory note to be identical to this Note except for the date thereof and the
principal amount thereof. Interest accruing thereafter shall be due and payable
in cash on each Interest Payment Date. Interest shall continue to accrue hereon
notwithstanding the occurrence of any Event of Default (as hereinafter defined).
Capitalized terms used and not defined herein shall have the meanings given
such terms in that certain
-1-
Subordinated Note Agreement dated as of February 22, 1999 among Company, the
Lenders party thereto and CoBank, ACB, as Administrative Agent for the Lenders
(the "Subordinated Agreement").
This Note may be prepaid in whole or in part (but if in part, in a
minimum amount of $100,000) at any time without premium or penalty.
This Note is subordinate and junior in right of payment to all Senior
Indebtedness of the Company, whether now existing or hereafter arising, on and
subject to the terms and conditions hereinafter set forth.
The term "Senior Indebtedness" shall mean and include all of the
following obligations of the Company, in each instance, whether now existing or
hereafter arising:
(i) all indebtedness, obligations and liabilities of the
Company under or with respect to that certain Credit Agreement dated as
of February 22, 1999 by and among the Company, CoBank, ACB as
Administrative Agent and the Banks from time to time party thereto, all
as the same may from time to time be amended, modified or restated (the
"Bank Credit Agreement") (including without limitation all liabilities
of the Company with respect to the principal of and interest (including
interest accruing subsequent to the filing of a petition in bankruptcy
or insolvency) at the rate specified in the documents relating to such
Senior Indebtedness, whether or not such interest is no longer
permitted to be enforced against the obligor under any credit facility
replacing the credit facility provided for in such Bank Credit
Agreement), provided that the aggregate principal amount of loans and
face amount of letter of credit liabilities constituting Senior
Indebtedness under this clause (i) shall not exceed $100,000,000 at any
one time outstanding; and
(ii) all obligations of the Company pursuant to interest rate
swap agreements, interest rate cap agreements and other similar
agreements or arrangements designed to protect the Company against
fluctuations in interest rates, each computed net of amounts due the
Company from the same counterparty of contracts of the foregoing types
of a type which are permitted to be netted under the Bankruptcy Code.
In the event of any distribution, division or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or
any part of the assets of the Company or the proceeds thereof to the creditors
of the Company or upon any indebtedness of the Company, occurring by reason of
liquidation, dissolution or other winding up of the Company or by reason of
execution, sale, receivership, insolvency, bankruptcy, reorganization,
arrangement or other proceedings or the reorganization or
-2-
readjustment of the Company or its debts or properties then, and in such event,
all Senior Indebtedness shall be paid and satisfied in full before any payment
or distribution of any kind or character, whether in cash, property or
securities, shall be made on or in respect of the principal of or interest on
this Note and in any such event, any such payment., dividend or distribution
which shall be made upon or in respect hereof shall be paid over to the holders
of Senior Indebtedness (but subject to any priorities between them, such that if
any Senior Indebtedness is subordinated in right of payment to any other Senior
Indebtedness, all amounts which shall otherwise be payable to the holder of the
subordinate claim shall instead be paid to the holders of the claims which are
superior thereto) for application on such Senior Indebtedness, until such Senior
Indebtedness has been fully paid and satisfied, and in the event that this Note
is declared due and payable prior to its expressed maturity the holder of this
Note shall be entitled to the payment of principal and interest only after there
shall first have been paid in full all Senior Indebtedness outstanding at the
time this Note so became due and payable or which thereafter arises.
During the continuance of any default in the payment when due (whether
by lapse of time, acceleration or otherwise) of the principal of, interest on or
any other amount in respect of Senior Indebtedness, or in the event an event of
default occurs with respect to any Senior Indebtedness permitting the holders
thereof to accelerate the maturity thereof, then and in any such event, and
until such default in payment or event of default shall have been cured or
waived by the holders of the Senior Indebtedness in question or shall have
ceased to exist, no payment of principal and interest shall be made hereon and
no other payment (whether in respect of the redemption, retirement, purchase or
other acquisition of the indebtedness evidenced by this Note) shall be made;
provided, however, that (i) the foregoing shall not prohibit the holder hereof
from receiving additional subordinated notes in payment of interest hereon as
and to the extent provided for by the first paragraph of this Note and (ii) the
foregoing shall not require the holder hereof to return any amount paid to it by
the Company hereunder if, at the time of receipt of such payment by the holder,
it did not have actual knowledge of the occurrence of one of the foregoing
events prohibiting payment to it. Any holder of Senior Indebtedness may notify
the holder of the occurrence of any event prohibiting payment hereunder by
delivering such notice to the holder by personal service or by telecopy, with
such notice to be given to the holder hereof at its address as shown herein. The
present and any successive holder of this Note may change the address to which
such notice may be sent by written notice to the Administrative Agent and/or
trustee for the holders of the Senior Indebtedness described in clause (i) of
the definition of Senior Indebtedness and to any other holder of Senior
Indebtedness that has requested the holder in writing to receive such notices.
Any one or more of the following shall constitute, an "Event of
Default" hereunder:
-3-
(a) Failure by Company to make any principal payment required
to be made hereunder within 5 days after the date when due; or
(b) Failure by Company to make any interest or other payment
(other than a principal payment) required to be made hereunder or under any
other Loan Document within 20 days of the date when due; or
(c) Any representation or warranty made by Company in the
Subordinated Agreement or in any agreement, certificate or document related
thereto or furnished in connection therewith, shall prove to have been false or
misleading in any material respect on or as of the date made; or
(d) Failure by Company to perform or comply with any covenant
set forth in Sections 7.3 through 7.9 of the Bank Credit Agreement (other than
7.9(E) through (H)), as incorporated by reference into the Subordinated
Agreement, and such failure continues for 15 days after written notice thereof
shall have been delivered to Company by any Lender; or
(e) Company shall fail to perform or comply with any other
covenant or agreement contained in the Subordinated Agreement, including any
covenant excluded in subsection (d) above and such failure continues for 5 days
after written notice thereof shall have been delivered to Company by any Lender;
or
(f) Company shall, after any applicable grace period, breach
or be in default under the terms of any other Loan Document or of any other
agreement between Company and any Lender; or
(g) Company shall fail to pay when due any indebtedness for
borrowed money to any other Person or any other event occurs which, under any
agreement or instrument relating to such indebtedness, has the effect of
accelerating or permitting the acceleration of such indebtedness or obligations,
whether or not such indebtedness or obligations are actually accelerated or the
right to accelerate is conditioned on the giving of notice, the passage of time
or otherwise; or
(h) The Required Lenders shall have determined that an event
or circumstance constituting a Material Adverse Effect has occurred; or
(i) A judgment, decree, or order for the payment of money in
excess of $50,000 shall be rendered against the Company and either: (i)
enforcement proceedings shall have been commenced; (ii) a Lien prohibited under
Section 8.2 of the Bank Credit Agreement as incorporated by reference into the
Subordinated Agreement (and modified in the Subordinated Agreement) shall have
been obtained; or (iii) such judgment, decree,
-4-
or order shall continue unsatisfied and in effect for a period of 20 consecutive
days without being vacated, discharged, satisfied, or stayed pending appeal; or
(j) Any reportable event (as defined in ERISA) which
constitutes grounds for the termination of any Plan, or for the appointment of a
trustee to administer or liquidate any such Plan, shall have occurred and be
continuing 30 days after written notice to such effect shall have been given to
Company by Administrative Agent; or any such Plan shall be terminated; or a
trustee shall be appointed; or the PBGC shall institute proceedings to terminate
any such Plan; or
(k) Company shall (1) have entered involuntarily against it an
order for relief under the Bankruptcy Code of 1978, as amended; (2) admit in
writing its inability to pay, or not pay, its debts generally as they become due
or suspend payment of its obligations; (3) make an assignment for the benefit of
creditors; (4) apply for, seek, consent to, or acquiesce in, the appointment of
a receiver, custodian, trustee, conservator, liquidator or similar official for
it or any substantial part of its property; (5) file a petition seeking relief
or institute any proceeding seeking to have entered against it an order for
relief under the Bankruptcy Code of 1978, as amended, to adjudicate it
insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, marshalling of assets, adjustment or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it; (6) fail to contest in good
faith any appointment or proceeding described in subsection (l) below; or (7)
take any corporate action in furtherance of any of the foregoing; or
(l) A custodian, receiver, trustee, conservator, liquidator or
similar official shall be appointed for Company or any substantial part of its
property, or a proceeding described in subsection (5) of subsection (k) above
shall be instituted against Company and such appointment continues undischarged
or any such proceeding continues undismissed or unstayed for a period of 60
days; or
(m) Company shall cease to be a subsidiary of Pro-Fac, or
Company shall sell or transfer all or substantially all of its assets to a
Person that is not a subsidiary of Pro-Fac.
Upon the occurrence of and during the continuance of any Event of
Default described in clauses (a), (b), (c), (d), (e), (f), (g), (h), (i), (j) or
(m) of the foregoing paragraph, the holder hereof may, by written notice to the
Company, declare the principal of and interest on this Note to be immediately
due and payable; provided, however, that no payment may be made hereon, and the
holder may take no steps to enforce or compel payment hereof, unless and until
all Senior Indebtedness has been fully paid and satisfied. If any Event of
Default described in clauses (k) or (l) of the immediately preceding
-5-
paragraph occurs, this Note shall be and become immediately due and payable
without notice of any kind, but no payment may be made hereon and no steps may
be taken to compel payment hereof unless and until all Senior Indebtedness has
been fully paid and satisfied.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash or cash equivalents equal to
the amount of such Senior Indebtedness then outstanding. However, if pursuant to
a bankruptcy or insolvency proceeding involving the Company, the holders of
Senior Indebtedness receive securities of the Company as reorganized and the
plan of reorganization provides for the issuance of securities to the holder of
this Note, then such holder may receive and retain such securities if the same
are subordinated in right of payment to the prior payment in full of the
securities which the holders of Senior Indebtedness receive to substantially the
same extent as, or to a greater extent than, this Note is subordinated to Senior
Indebtedness.
Nothing contained in this Note is intended to or shall impair as
between the Company and its creditors, other than the holders of Senior
Indebtedness, the obligations of the Company, which are otherwise absolute and
unconditional, to pay to the holder hereof the principal of and interest on this
Note as and when the same becomes due and payable in accordance with its terms
or otherwise affect the relative rights of the holder of this Note and creditors
of the Company other than holders of Senior Indebtedness.
The holder of this Note by its acceptance thereof agrees that it shall
have no right to offset the obligations of the Company under this Note against
any obligation of such holder owing to the Company and the Company agrees that
it shall have no right to offset any obligation of the holder of this Note to
the Company against the obligations of the Company under this Note.
The obligations of the Company under this Note are secured by a lien on
all or substantially all of the assets of the Company, which lien is, and shall
at all times be, junior and subordinate to the lien securing the Senior
Indebtedness described in paragraph (i) of the definition thereof as set forth
above. The holder of this Note recognizes and agrees that its rights to enforce
such lien are significantly limited in favor of the rights of the holders of
such Senior Indebtedness to enforce their senior lien on such assets.
The Company promises to pay reasonable attorneys' fees and court costs
of the holder hereof in enforcing payment of this Note; provided, however, that
such costs shall be subordinated in right of payment to the prior payment in
full of Senior Indebtedness on the terms hereinabove set forth.
-6-
This Note shall be construed in accordance with and governed by the
laws of the State of Colorado.
PF ACQUISITION II, INC.
By_______________________
Its_______________________
-7-
CoBANK, ACB
SUBORDINATE SECURITY AGREEMENT
THIS SECURITY AGREEMENT IS EXECUTED AND DELIVERED BY PF ACQUISITION II,
INC., A NEW YORK CORPORATION, (THE "DEBTOR"), HAVING ITS PLACE OF BUSINESS (OR
CHIEF EXECUTIVE OFFICE IF MORE THAN ONE PLACE OF BUSINESS) LOCATED AT 00 XXXXXX
XXXXX, XXXXXXXXX, XXX XXXX 00000, AND WHOSE TAXPAYER IDENTIFICATION NUMBER IS
000000000, TO COBANK, ACB, IN ITS CAPACITY AS ADMINISTRATIVE AGENT PURSUANT TO
THE PROVISIONS OF THAT CERTAIN CREDIT AGREEMENT DATED FEBRUARY 22, 1999 (THE
"SECURED PARTY"), WHOSE MAILING ADDRESS IS 0000 XXXXX XXXXXX XXXXXX, XXXXXXXXX,
XX 00000.
SECTION 1. GRANT OF SECURITY INTEREST. FOR VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE DEBTOR HEREBY
GRANTS TO THE SECURED PARTY A SECURITY INTEREST IN ALL OF THE FOLLOWING
PROPERTY, WHEREVER LOCATED AND WHETHER NOW EXISTING OR HEREAFTER ACQUIRED,
TOGETHER WITH ALL ACCESSIONS AND ADDITIONS THERETO, AND ALL PRODUCTS AND
PROCEEDS THEREOF:
ACCOUNTS; INVENTORY (INCLUDING, WITHOUT LIMITATION, RETURNED OR
REPOSSESSED GOODS); CHATTEL PAPER; INSTRUMENTS, INVESTMENT PROPERTY
(INCLUDING, WITHOUT LIMITATION, CERTIFICATED AND UNCERTIFICATED
SECURITIES, SECURITY ENTITLEMENTS, SECURITIES ACCOUNTS, COMMODITY
CONTRACTS, MARGIN ACCOUNTS, AND COMMODITY ACCOUNTS), DOCUMENTS;
EQUIPMENT; FIXTURES; GENERAL INTANGIBLES (INCLUDING, WITHOUT
LIMITATION, CHOSES OR THINGS IN ACTION, LITIGATION RIGHTS AND RESULTING
JUDGMENTS, GOODWILL, PATENTS, TRADEMARKS AND OTHER INTELLECTUAL
PROPERTY, TAX REFUNDS, MISCELLANEOUS RIGHTS TO PAYMENT, ENTITLEMENTS
AND INVESTMENTS, EQUITIES AND PATRONAGE RIGHTS IN ALL COOPERATIVES,
MARGIN ACCOUNTS, COMPUTER PROGRAMS, INVOICES, BOOKS, RECORDS, AND OTHER
INFORMATION RELATING TO OR ARISING OUT OF THE DEBTOR'S BUSINESS); AND,
TO THE EXTENT NOT COVERED BY THE ABOVE, ALL OTHER PERSONAL PROPERTY OF
THE DEBTOR OF EVERY TYPE AND DESCRIPTION, INCLUDING, WITHOUT
LIMITATION, INTERESTS OR CLAIMS IN OR UNDER ANY POLICY OF INSURANCE,
TORT CLAIMS, DEPOSIT ACCOUNTS, MONEY, AND JUDGMENTS (THE "COLLATERAL").
WHERE APPLICABLE, ALL TERMS USED HEREIN SHALL HAVE THE SAME MEANING AS SET FORTH
IN THE UNIFORM COMMERCIAL CODE (THE "UCC").
SECTION 2. THE OBLIGATIONS. THE SECURITY INTEREST GRANTED
HEREUNDER SHALL SECURE THE PAYMENT OF ALL PRESENT AND FUTURE OBLIGATIONS OF
EVERY KIND OR NATURE OF DEBTOR AT ANY TIME AND FROM TIME TO TIME OWED TO SECURED
PARTY, UNDER ANY ONE OR MORE OF THE LOAN DOCUMENTS (AS DEFINED BELOW), WHETHER
DUE OR TO BECOME DUE, MATURED OR UNMATURED, LIQUIDATED OR UNLIQUIDATED, OR
CONTINGENT OR NONCONTINGENT, INCLUDING OBLIGATIONS OF PERFORMANCE AS WELL AS
OBLIGATIONS OF PAYMENT, AND INCLUDING INTEREST THAT ACCRUES AFTER THE
COMMENCEMENT OF ANY PROCEEDING UNDER ANY DEBTOR RELIEF LAW BY OR AGAINST DEBTOR
(THE "OBLIGATIONS"). FOR PURPOSES OF THIS SECURITY AGREEMENT, "LOAN DOCUMENTS"
SHALL MEAN (I) THAT CERTAIN SUBORDINATED NOTE AGREEMENT DATED AS OF FEBRUARY 22,
1999 AMONG DEBTOR, THE LENDERS THEREIN NAMED, AND COBANK, ACB, AS ADMINISTRATIVE
AGENT (AS THE SAME MAY BE AMENDED, MODIFIED OR SUPPLEMENTED FROM TIME TO TIME,
THE "LOAN AGREEMENT"), AND (II) ALL INSTRUMENTS AND DOCUMENTS CONTEMPLATED BY
THE LOAN AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE NOTES (AS DEFINED IN THE
LOAN AGREEMENT), THIS SECURITY AGREEMENT AND THE JUNIOR MORTGAGES (AS DEFINED IN
THE LOAN AGREEMENT), AND ANY SUPPLEMENT THERETO AND THE NOTES. FOR PURPOSES OF
THIS SECURITY AGREEMENT, "SECURED PARTY" SHALL MEAN COBANK, ACB, AS
ADMINISTRATIVE AGENT UNDER THE LOAN AGREEMENT ("THE ADMINISTRATIVE AGENT"), AND
THE LENDERS UNDER THE LOAN AGREEMENT, AND EACH OF THEM, AND ANY ONE OR MORE OF
THEM.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS. THE DEBTOR
REPRESENTS, WARRANTS AND COVENANTS AS FOLLOWS:
A. TITLE TO COLLATERAL. EXCEPT AS PERMITTED BY ANY OTHER
WRITTEN AGREEMENT BETWEEN THE PARTIES, AND EXCEPT FOR ANY SECURITY INTEREST IN
FAVOR OF THE SECURED PARTY, OR OTHERWISE PERMITTED PURSUANT TO THE LOAN
AGREEMENT, THE DEBTOR HAS CLEAR TITLE TO ALL COLLATERAL FREE OF ALL ADVERSE
CLAIMS, INTERESTS, LIENS, OR ENCUMBRANCES. WITHOUT THE PRIOR WRITTEN CONSENT OF
THE SECURED PARTY, THE DEBTOR SHALL NOT CREATE OR PERMIT THE EXISTENCE OF ANY
ADVERSE CLAIMS, INTERESTS, LIENS, OR OTHER ENCUMBRANCES AGAINST ANY OF THE
COLLATERAL. THE DEBTOR SHALL PROVIDE PROMPT WRITTEN NOTICE TO THE SECURED PARTY
OF ANY FUTURE ADVERSE CLAIMS, INTERESTS, LIENS, OR ENCUMBRANCES AGAINST ALL
COLLATERAL, AND SHALL DEFEND DILIGENTLY THE DEBTOR'S AND THE SECURED PARTY'S
INTERESTS IN ALL COLLATERAL.
B. VALIDITY OF SECURITY AGREEMENT; CORPORATE AUTHORITY. THIS
SECURITY AGREEMENT IS THE VALID AND BINDING OBLIGATION OF THE DEBTOR,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS. THE DEBTOR HAS THE CORPORATE POWER TO
EXECUTE, DELIVER AND CARRY OUT THE TERMS AND PROVISIONS OF THIS SECURITY
AGREEMENT AND ALL RELATED DOCUMENTS, AND HAS TAKEN ALL NECESSARY CORPORATE
ACTION TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS SECURITY
AGREEMENT AND ALL RELATED DOCUMENTS.
C. LOCATION OF THE DEBTOR. THE DEBTOR'S PLACE OF BUSINESS (OR
CHIEF EXECUTIVE OFFICE IF MORE THAN ONE PLACE OF BUSINESS) IS LOCATED AT THE
ADDRESS SHOWN ABOVE.
D. LOCATION OF COLLATERAL. ALL EQUIPMENT ARE NOW AT THE
LOCATION OR LOCATIONS SPECIFIED ON SCHEDULE A ATTACHED HERETO AND MADE A PART
HEREOF. ALL FARM PRODUCTS AND FIXTURES ARE NOW AT THE LOCATION OR LOCATIONS
SPECIFIED ON SCHEDULE A ATTACHED HERETO AND MADE A PART HEREOF.
E. NAME, IDENTITY, AND CORPORATE STRUCTURE. EXCEPT AS
OTHERWISE DISCLOSED TO THE SECURED PARTY IN WRITING, THE DEBTOR HAS NOT WITHIN
THE PAST TEN YEARS CHANGED ITS NAME,
IDENTITY OR CORPORATE STRUCTURE THROUGH INCORPORATION, MERGER, CONSOLIDATION,
JOINT VENTURE OR OTHERWISE.
F. CHANGE IN NAME, LOCATION OF COLLATERAL, ETC. WITHOUT GIVING
AT LEAST THIRTY DAYS' PRIOR WRITTEN NOTICE TO THE SECURED PARTY, THE DEBTOR
SHALL NOT CHANGE ITS NAME, IDENTITY OR CORPORATE STRUCTURE, THE LOCATION OF ITS
PLACE OF BUSINESS (OR CHIEF EXECUTIVE OFFICE IF MORE THAN ONE PLACE OF
BUSINESS), OR THE LOCATION OF THE COLLATERAL.
G. FURTHER ASSURANCES. UPON THE REQUEST OF THE SECURED PARTY,
THE DEBTOR SHALL DO ALL ACTS AND THINGS AS THE SECURED PARTY MAY FROM TIME TO
TIME DEEM NECESSARY OR ADVISABLE TO ENABLE IT TO PERFECT, MAINTAIN, AND CONTINUE
THE PERFECTION AND PRIORITY OF THE SECURITY INTEREST OF THE SECURED PARTY IN THE
COLLATERAL, OR TO FACILITATE THE EXERCISE BY THE SECURED PARTY OF ANY RIGHTS OR
REMEDIES GRANTED TO THE SECURED PARTY HEREUNDER OR PROVIDED BY LAW. WITHOUT
LIMITING THE FOREGOING, THE DEBTOR AGREES TO EXECUTE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE SECURED PARTY, SUCH FINANCING STATEMENTS, AMENDMENTS
THERETO, SUPPLEMENTAL AGREEMENTS, ASSIGNMENTS, NOTICES OF ASSIGNMENTS, AND OTHER
INSTRUMENTS AND DOCUMENTS AS THE SECURED PARTY MAY FROM TIME TO TIME REQUEST. IN
ADDITION, IN THE EVENT THE COLLATERAL OR ANY PART THEREOF CONSISTS OF
INSTRUMENTS, DOCUMENTS, CHATTEL PAPER, OR MONEY (WHETHER OR NOT PROCEEDS OF THE
COLLATERAL), THE DEBTOR SHALL, UPON THE REQUEST OF THE SECURED PARTY, DELIVER
POSSESSION THEREOF TO THE SECURED PARTY (OR TO AN AGENT OF THE SECURED PARTY
RETAINED FOR THAT PURPOSE), TOGETHER WITH ANY APPROPRIATE ENDORSEMENTS AND/OR
ASSIGNMENTS. THE SECURED PARTY SHALL USE REASONABLE CARE IN THE CUSTODY AND
PRESERVATION OF SUCH COLLATERAL IN ITS POSSESSION, BUT SHALL NOT BE REQUIRED TO
TAKE ANY STEPS NECESSARY TO PRESERVE RIGHTS AGAINST PRIOR PARTIES. ALL COSTS AND
EXPENSES INCURRED BY THE SECURED PARTY TO ESTABLISH, PERFECT, MAINTAIN,
DETERMINE THE PRIORITY OF, OR RELEASE THE SECURITY INTEREST GRANTED HEREUNDER
(INCLUDING THE COST OF ALL FILINGS, RECORDINGS, AND TAXES THEREON AND THE FEES
AND EXPENSES OF ANY AGENT RETAINED BY SECURED PARTY) SHALL BECOME PART OF THE
OBLIGATIONS SECURED HEREBY AND BE PAID BY THE DEBTOR ON DEMAND.
H. INSURANCE. THE DEBTOR SHALL MAINTAIN SUCH PROPERTY AND
CASUALTY INSURANCE WITH SUCH INSURANCE COMPANIES, IN SUCH AMOUNTS, AND COVERING
SUCH RISKS, AS ARE AT ALL TIMES SATISFACTORY TO THE SECURED PARTY. ALL SUCH
POLICIES SHALL PROVIDE FOR LOSS PAYABLE CLAUSES OR ENDORSEMENTS IN FORM AND
CONTENT ACCEPTABLE TO THE SECURED PARTY. UPON THE REQUEST OF THE SECURED PARTY,
ALL POLICIES (OR SUCH OTHER PROOF OF COMPLIANCE WITH THIS SECTION AS MAY BE
SATISFACTORY TO THE SECURED PARTY) SHALL BE DELIVERED TO THE SECURED PARTY. THE
DEBTOR SHALL PAY ALL INSURANCE PREMIUMS WHEN DUE. IN THE EVENT OF LOSS, DAMAGE,
OR INJURY TO ANY INSURED COLLATERAL, THE SECURED PARTY SHALL HAVE FULL POWER TO
COLLECT ANY AND ALL INSURANCE PROCEEDS DUE UNDER ANY OF SUCH POLICIES, AND MAY,
AT ITS OPTION, APPLY SUCH PROCEEDS TO THE PAYMENT OF ANY OF THE OBLIGATIONS
SECURED HEREBY, OR MAY APPLY SUCH PROCEEDS TO THE REPAIR OR REPLACEMENT OF SUCH
COLLATERAL.
I. TAXES, LEVIES, ETC. THE DEBTOR HAS PAID AND SHALL CONTINUE
TO PAY WHEN
DUE ALL TAXES, LEVIES, ASSESSMENTS, OR OTHER CHARGES WHICH MAY BECOME AN
ENFORCEABLE LIEN AGAINST THE COLLATERAL.
J. DISPOSITION AND USE OF COLLATERAL BY THE DEBTOR. WITHOUT
THE PRIOR WRITTEN CONSENT OF THE SECURED PARTY AND PROVIDED THE DEBTOR IS NOT IN
DEFAULT HEREUNDER, THE DEBTOR SHALL NOT AT ANY TIME SELL, TRANSFER, LEASE,
ABANDON, OR OTHERWISE DISPOSE OF ANY COLLATERAL EXCEPT IN THE ORDINARY COURSE OF
ITS BUSINESS. THE DEBTOR SHALL NOT USE ANY OF THE COLLATERAL IN ANY MANNER WHICH
VIOLATES ANY STATUTE, REGULATION, ORDINANCE, RULE, DECREE, ORDER, OR INSURANCE
POLICY.
K. RECEIVABLES. THE DEBTOR SHALL PRESERVE, ENFORCE, AND
COLLECT ALL ACCOUNTS, CHATTEL PAPER, INSTRUMENTS, DOCUMENTS AND GENERAL
INTANGIBLES, WHETHER NOW OWNED OR HEREAFTER ACQUIRED OR ARISING (THE
"RECEIVABLES"), IN A DILIGENT FASHION AND, UPON THE REQUEST OF THE SECURED
PARTY, THE DEBTOR SHALL EXECUTE AN AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY
TO THE SECURED PARTY BY WHICH THE DEBTOR SHALL DIRECT ALL ACCOUNT DEBTORS AND
OBLIGORS ON INSTRUMENTS TO MAKE PAYMENT TO A LOCK BOX DEPOSIT ACCOUNT UNDER THE
EXCLUSIVE CONTROL OF THE SECURED PARTY.
L. CONDITION OF COLLATERAL. ALL TANGIBLE COLLATERAL IS NOW IN
GOOD REPAIR AND CONDITION AND THE DEBTOR SHALL AT ALL TIMES HEREAFTER, AT ITS
OWN EXPENSE, MAINTAIN ALL SUCH COLLATERAL IN GOOD REPAIR AND CONDITION.
M. CONDITION OF BOOKS AND RECORDS. THE DEBTOR HAS MAINTAINED
AND SHALL MAINTAIN COMPLETE, ACCURATE AND UP-TO-DATE BOOKS, RECORDS, ACCOUNTS,
AND OTHER INFORMATION RELATING TO ALL COLLATERAL IN SUCH FORM AND IN SUCH DETAIL
AS MAY BE SATISFACTORY TO THE SECURED PARTY, AND SHALL ALLOW THE SECURED PARTY
OR ITS REPRESENTATIVES AT ANY REASONABLE TIME TO EXAMINE AND COPY SUCH BOOKS,
RECORDS, ACCOUNTS, AND OTHER INFORMATION.
N. RIGHT OF INSPECTION. AT ALL REASONABLE TIMES UPON THE
REQUEST OF THE SECURED PARTY, THE DEBTOR SHALL ALLOW THE SECURED PARTY OR ITS
REPRESENTATIVES TO VISIT ANY OF THE DEBTOR'S PROPERTIES OR LOCATIONS SO THAT THE
SECURED PARTY OR ITS REPRESENTATIVES MAY CONFIRM, INSPECT AND APPRAISE ANY OF
THE COLLATERAL.
SECTION 4. DEFAULT. THE BREACH OF ANY OF THE OBLIGATIONS SECURED
HEREBY, AND/OR THE BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT, OR
AGREEMENT CONTAINED IN THIS SECURITY AGREEMENT, SHALL CONSTITUTE DEFAULT
HEREUNDER.
SECTION 5. RIGHTS AND REMEDIES. UPON THE DEBTOR'S DEFAULT AND AT ANY
TIME THEREAFTER, THE SECURED PARTY MAY DECLARE ALL OBLIGATIONS TO BE IMMEDIATELY
DUE AND PAYABLE AND MAY EXERCISE ANY AND ALL RIGHTS AND REMEDIES OF THE SECURED
PARTY IN THE ENFORCEMENT OF ITS SECURITY INTEREST UNDER THE UCC, THIS SECURITY
AGREEMENT, OR ANY OTHER APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING:
A. DISPOSITION OF COLLATERAL. THE SECURED PARTY MAY SELL,
LEASE, OR OTHERWISE DISPOSE OF ALL OR ANY PART OF THE COLLATERAL, IN ITS THEN
PRESENT CONDITION OR FOLLOWING ANY COMMERCIALLY REASONABLE PREPARATION OR
PROCESSING THEREOF, WHETHER BY PUBLIC OR PRIVATE SALE OR AT ANY BROKERS' BOARD,
IN LOTS OR IN BULK, FOR CASH, ON CREDIT OR OTHERWISE, WITH OR WITHOUT
REPRESENTATIONS OR WARRANTIES, AND UPON SUCH OTHER TERMS AS MAY BE ACCEPTABLE TO
THE SECURED PARTY, AND THE SECURED PARTY MAY PURCHASE AT ANY PUBLIC SALE. AT ANY
TIME WHEN ADVANCE NOTICE OF SALE IS REQUIRED, THE DEBTOR AGREES THAT TEN DAYS'
PRIOR WRITTEN NOTICE SHALL BE REASONABLE. IN CONNECTION WITH THE FOREGOING, THE
SECURED PARTY MAY:
1. REQUIRE THE DEBTOR TO ASSEMBLE THE COLLATERAL AND
ALL RECORDS PERTAINING THERETO AND MAKE SUCH COLLATERAL AND RECORDS AVAILABLE TO
THE SECURED PARTY AT A PLACE TO BE DESIGNATED BY THE SECURED PARTY WHICH IS
REASONABLY CONVENIENT TO BOTH PARTIES;
2. ENTER THE PREMISES OF THE DEBTOR OR PREMISES UNDER
THE DEBTOR'S CONTROL AND TAKE POSSESSION OF THE COLLATERAL;
3. WITHOUT CHARGE, USE OR OCCUPY THE PREMISES OF THE
DEBTOR OR PREMISES UNDER THE DEBTOR'S CONTROL, INCLUDING WITHOUT LIMITATION,
WAREHOUSE AND OTHER STORAGE FACILITIES;
4. WITHOUT CHARGE, USE ANY PATENT, TRADEMARK,
TRADENAME, OR OTHER INTELLECTUAL PROPERTY OR TECHNICAL PROCESS USED BY THE
DEBTOR IN CONNECTION WITH ANY OF THE COLLATERAL; AND
5. RELY CONCLUSIVELY UPON THE ADVICE OR INSTRUCTIONS
OF ANY ONE OR MORE BROKERS OR OTHER EXPERTS SELECTED BY THE SECURED PARTY TO
DETERMINE THE METHOD OR MANNER OF DISPOSITION OF ANY OF THE COLLATERAL AND, IN
SUCH EVENT, ANY DISPOSITION OF THE COLLATERAL BY THE SECURED PARTY IN ACCORDANCE
WITH SUCH ADVICE OR INSTRUCTIONS SHALL BE DEEMED TO BE COMMERCIALLY REASONABLE.
B. COLLECTION OF RECEIVABLES. THE SECURED PARTY MAY, BUT SHALL
NOT BE OBLIGATED TO, TAKE ALL ACTIONS REASONABLE OR NECESSARY TO PRESERVE,
ENFORCE OR COLLECT THE RECEIVABLES, INCLUDING WITHOUT LIMITATION, THE RIGHT TO
NOTIFY ACCOUNT DEBTORS AND OBLIGORS ON INSTRUMENTS TO MAKE DIRECT PAYMENT TO THE
SECURED PARTY, TO PERMIT ANY EXTENSION, COMPROMISE, OR SETTLEMENT OF ANY OF THE
RECEIVABLES FOR LESS THAN FACE VALUE, OR TO XXX ON ANY RECEIVABLE, ALL WITHOUT
PRIOR NOTICE TO THE DEBTOR.
C. PROCEEDS. THE SECURED PARTY MAY COLLECT AND APPLY ALL
PROCEEDS OF THE COLLATERAL, AND MAY ENDORSE THE NAME OF THE DEBTOR IN FAVOR OF
THE SECURED PARTY ON ANY AND ALL CHECKS, DRAFTS, MONEY ORDERS, NOTES,
ACCEPTANCES, OR OTHER INSTRUMENTS OF THE SAME OR A DIFFERENT NATURE,
CONSTITUTING, EVIDENCING, OR RELATING TO THE COLLATERAL. THE SECURED PARTY MAY
RECEIVE AND OPEN ALL MAIL ADDRESSED TO THE DEBTOR AND REMOVE THEREFROM ANY CASH
OR NON-CASH
ITEMS OF PAYMENT CONSTITUTING PROCEEDS OF THE COLLATERAL.
D. INSURANCE ADJUSTMENTS. THE SECURED PARTY MAY ADJUST,
SETTLE, AND CANCEL ANY AND ALL INSURANCE COVERING ANY COLLATERAL, ENDORSE THE
NAME OF THE DEBTOR ON ANY AND ALL CHECKS OR DRAFTS DRAWN BY ANY INSURER, WHETHER
REPRESENTING PAYMENT FOR A LOSS OR A RETURN OF UNEARNED PREMIUM, AND EXECUTE ANY
AND ALL PROOFS OF CLAIM AND OTHER DOCUMENTS OR INSTRUMENTS OF EVERY KIND
REQUIRED BY ANY INSURER IN CONNECTION WITH ANY PAYMENT BY SUCH INSURER.
THE NET PROCEEDS OF ANY DISPOSITION OF THE COLLATERAL MAY BE APPLIED BY THE
SECURED PARTY, AFTER DEDUCTING ITS REASONABLE EXPENSES INCURRED IN SUCH
DISPOSITION, TO THE PAYMENT IN WHOLE OR IN PART OF THE OBLIGATIONS IN SUCH ORDER
AS THE SECURED PARTY MAY ELECT. THE ENUMERATION OF THE FOREGOING RIGHTS AND
REMEDIES IS NOT INTENDED TO BE EXHAUSTIVE, AND THE EXERCISE OF ANY RIGHT AND/OR
REMEDY SHALL NOT PRECLUDE THE EXERCISE OF ANY OTHER RIGHTS OR REMEDIES, ALL OF
WHICH ARE CUMULATIVE AND NON-EXCLUSIVE.
SECTION 6. OTHER PROVISIONS.
A. AMENDMENT, MODIFICATION, AND WAIVER. WITHOUT THE PRIOR
WRITTEN CONSENT OF THE SECURED PARTY, NO AMENDMENT, MODIFICATION, OR WAIVER OF,
OR CONSENT TO ANY DEPARTURE BY THE DEBTOR FROM, ANY PROVISION HEREUNDER SHALL BE
EFFECTIVE. ANY SUCH AMENDMENT, MODIFICATION, WAIVER, OR CONSENT SHALL BE
EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE FOR WHICH
GIVEN. NO DELAY OR FAILURE BY THE SECURED PARTY TO EXERCISE ANY REMEDY HEREUNDER
SHALL BE DEEMED A WAIVER THEREOF OR OF ANY OTHER REMEDY HEREUNDER. A WAIVER ON
ANY ONE OCCASION SHALL NOT BE CONSTRUED AS A BAR TO OR WAIVER OF ANY REMEDY ON
ANY SUBSEQUENT OCCASION.
B. COSTS AND ATTORNEY'S FEES. EXCEPT AS PROHIBITED BY LAW, IF
AT ANY TIME THE SECURED PARTY EMPLOYS COUNSEL IN CONNECTION WITH THE CREATION,
PERFECTION, PRESERVATION, OR RELEASE OF THE SECURED PARTY'S SECURITY INTEREST IN
THE COLLATERAL OR THE ENFORCEMENT OF ANY OF THE SECURED PARTY'S RIGHTS OR
REMEDIES HEREUNDER, ALL OF THE SECURED PARTY'S REASONABLE ATTORNEY'S FEES
ARISING FROM SUCH SERVICES AND ALL EXPENSES, COSTS, OR CHARGES RELATING THERETO
SHALL BECOME PART OF THE OBLIGATIONS SECURED HEREBY AND BE PAID BY THE DEBTOR ON
DEMAND.
C. NO OBLIGATION TO MAKE LOANS. NOTHING CONTAINED HEREIN OR IN
ANY FINANCING STATEMENT OR OTHER DOCUMENT EXECUTED OR FILED IN CONNECTION
HEREWITH SHALL BE CONSTRUED TO OBLIGATE THE SECURED PARTY TO MAKE ANY LOANS OR
ADVANCES TO THE DEBTOR, WHETHER PURSUANT TO A COMMITMENT OR OTHERWISE.
D. REVIVAL OF OBLIGATIONS. TO THE EXTENT THE DEBTOR OR ANY
THIRD PARTY MAKES A PAYMENT OR PAYMENTS TO THE SECURED PARTY OR THE SECURED
PARTY ENFORCES ITS SECURITY INTEREST OR EXERCISES ANY RIGHT OF SETOFF, AND SUCH
PAYMENT OR PAYMENTS OR THE PROCEEDS THEREOF
ARE SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET
ASIDE, AND/OR REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER, OR ANY OTHER PARTY
UNDER ANY BANKRUPTCY, INSOLVENCY OR OTHER LAW OR IN EQUITY, THEN, TO THE EXTENT
OF SUCH RECOVERY, THE OBLIGATIONS OR ANY PART THEREOF ORIGINALLY INTENDED TO BE
SATISFIED SHALL BE REVIVED AND CONTINUED IN FULL FORCE AND EFFECT AS IF SUCH
PAYMENT OR PAYMENTS HAD NOT BEEN MADE, OR SUCH ENFORCEMENT OR SETOFF HAD NOT
OCCURRED.
E. PERFORMANCE BY THE SECURED PARTY. IN THE EVENT THE DEBTOR
SHALL AT ANY TIME FAIL TO PAY OR PERFORM PUNCTUALLY ANY OF ITS DUTIES HEREUNDER,
THE SECURED PARTY MAY, AT ITS OPTION AND WITHOUT NOTICE TO OR DEMAND UPON THE
DEBTOR, WITHOUT OBLIGATION AND WITHOUT WAIVING OR DIMINISHING ANY OF ITS OTHER
RIGHTS OR REMEDIES HEREUNDER, FULLY PERFORM OR DISCHARGE ANY OF SUCH DUTIES. ALL
COSTS AND EXPENSES INCURRED BY THE SECURED PARTY IN CONNECTION THEREWITH,
TOGETHER WITH INTEREST THEREON AT THE DEFAULT RATE SET FORTH IN THE LOAN
AGREEMENT OR THE NOTES (AS DEFINED IN THE LOAN AGREEMENT), OR IF NO SUCH DEFAULT
RATE IS SPECIFIED, THE THEN APPLICABLE INTEREST RATE PLUS FOUR PERCENT PER
ANNUM, SHALL BECOME PART OF THE OBLIGATIONS SECURED HEREBY AND BE PAID BY THE
DEBTOR UPON DEMAND.
F. INDEMNIFICATION, ETC. THE DEBTOR HEREBY EXPRESSLY
INDEMNIFIES AND HOLDS THE SECURED PARTY HARMLESS FROM ANY AND ALL CLAIMS, CAUSES
OF ACTION, OR OTHER PROCEEDINGS, AND FROM ANY AND ALL LIABILITY, LOSS, DAMAGE,
AND EXPENSE OF EVERY NATURE, ARISING BY REASON OF THE SECURED PARTY'S
ENFORCEMENT OF ITS RIGHTS AND REMEDIES HEREUNDER, OR BY REASON OF THE DEBTOR'S
FAILURE TO COMPLY WITH ANY ENVIRONMENTAL OR OTHER LAW OR REGULATION. AS TO ANY
ACTION TAKEN BY THE SECURED PARTY HEREUNDER, THE SECURED PARTY SHALL NOT BE
LIABLE FOR ANY ERROR OF JUDGMENT OR MISTAKE OF FACT OR LAW, ABSENT GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT ON ITS PART.
G. POWER OF ATTORNEY. THE DEBTOR HEREBY APPOINTS THE SECURED
PARTY OR THE SECURED PARTY'S DESIGNEE AS ITS ATTORNEY-IN-FACT, WHICH APPOINTMENT
IS IRREVOCABLE, DURABLE, AND COUPLED WITH AN INTEREST, WITH FULL POWER OF
SUBSTITUTION, IN THE NAME OF THE DEBTOR OR IN THE NAME OF THE SECURED PARTY, TO
TAKE ANY ACTION WHICH THE DEBTOR IS OBLIGATED TO PERFORM HEREUNDER OR WHICH THE
SECURED PARTY MAY DEEM NECESSARY OR ADVISABLE TO ACCOMPLISH THE PURPOSES OF THIS
SECURITY AGREEMENT. IN TAKING ANY ACTION IN ACCORDANCE WITH THIS SECTION, THE
SECURED PARTY SHALL NOT BE DEEMED TO BE THE AGENT OF THE DEBTOR. THE POWERS
CONFERRED UPON THE SECURED PARTY IN THIS SECTION ARE SOLELY TO PROTECT ITS
INTEREST IN THE COLLATERAL AND SHALL NOT IMPOSE ANY DUTY UPON THE SECURED PARTY
TO EXERCISE ANY SUCH POWERS.
H. CONTINUING EFFECT. THIS SECURITY AGREEMENT, THE SECURED
PARTY'S SECURITY INTEREST IN THE COLLATERAL, AND ALL OTHER DOCUMENTS OR
INSTRUMENTS CONTEMPLATED HEREBY SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL
ALL OF THE OBLIGATIONS HAVE BEEN SATISFIED IN FULL, THE LENDERS THAT ARE PARTIES
TO THE LOAN AGREEMENT HAVE NO COMMITMENT TO MAKE ANY FURTHER ADVANCES TO THE
DEBTOR, AND THE DEBTOR HAS SENT A VALID WRITTEN DEMAND TO THE SECURED PARTY FOR
TERMINATION OF THIS SECURITY AGREEMENT.
I. BINDING EFFECT. THIS SECURITY AGREEMENT SHALL BE BINDING
UPON AND INURE TO THE BENEFIT OF THE DEBTOR AND THE SECURED PARTY AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
J. SECURITY AGREEMENT AS FINANCING STATEMENT AND AUTHORIZATION
TO FILE WITHOUT DEBTOR'S SIGNATURE. A PHOTOGRAPHIC COPY OR OTHER REPRODUCTION OF
THIS SECURITY AGREEMENT MAY BE USED AS A FINANCING STATEMENT. IN ADDITION, THE
DEBTOR AGREES THAT ADMINISTRATIVE AGENT MAY, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, PREPARE AND FILE FINANCING STATEMENTS, AMENDMENTS THERETO, AND
CONTINUATION STATEMENTS WITHOUT THE SIGNATURE OF THE DEBTOR AND FILE ANY
FINANCING STATEMENT, AMENDMENT THERETO OR CONTINUATION STATEMENT ELECTRONICALLY.
K. GOVERNING LAW. SUBJECT TO ANY APPLICABLE FEDERAL LAW, THIS
SECURITY AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF COLORADO.
L. NOTICES. ALL NOTICES, REQUESTS, DEMANDS, OR OTHER
COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING AND SHALL BE
DEEMED TO HAVE BEEN GIVEN WHEN SENT BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO THE OTHER PARTY AT THE RESPECTIVE ADDRESSES
GIVEN IN THE LOAN AGREEMENT, OR TO SUCH OTHER PERSON OR ADDRESS AS EITHER PARTY
DESIGNATES TO THE OTHER IN THE MANNER HEREIN PRESCRIBED.
M. SEVERABILITY. THE DETERMINATION THAT ANY TERM OR PROVISION
OF THIS SECURITY AGREEMENT IS UNENFORCEABLE OR INVALID SHALL NOT AFFECT THE
ENFORCEABILITY OR VALIDITY OF ANY OTHER TERM OR PROVISION HEREOF.
SECTION 7. SUBORDINATION PROVISIONS.
A. PRIORITY.
(1) NOTWITHSTANDING THE OTHER PROVISIONS OF THIS
SECURITY AGREEMENT AND THE TERMS OR PROVISIONS OF ANY AGREEMENT OR ARRANGEMENT
WHICH EITHER SECURED PARTY OR SENIOR SECURED PARTY (AS DEFINED BELOW) MAY NOW OR
HEREAFTER HAVE WITH DEBTOR OR EACH OTHER, OR ANY RULE OF LAW, AND IRRESPECTIVE
OF THE TIME, ORDER OR METHOD OF ATTACHMENT OR PERFECTION OF ANY SECURITY
INTEREST OR THE RECORDATION OR OTHER FILING IN ANY PUBLIC RECORD OF ANY
FINANCING STATEMENT, ANY SECURITY INTEREST IN THE SENIOR COLLATERAL (AS DEFINED
BELOW) GRANTED TO SENIOR SECURED PARTY BY DEBTOR, WHETHER OR NOT PERFECTED, OR
ANY OTHER RIGHT, TITLE OR INTEREST IN THE SENIOR COLLATERAL NOW OR HEREAFTER
HELD BY SENIOR SECURED PARTY, ARE AND SHALL REMAIN SENIOR TO ANY SECURITY
INTEREST THEREIN NOW OR HEREAFTER GRANTED BY DEBTOR OR OTHER PERSON TO SECURED
PARTY.
(2) FOR PURPOSES OF THIS SECURITY AGREEMENT, THE
FOLLOWING TERMS SHALL HAVE THE MEANINGS RESPECTIVELY SET FORTH AFTER EACH:
(A) "SENIOR COLLATERAL" SHALL MEAN THE
"COLLATERAL" AS DEFINED IN THAT CERTAIN SECURITY AGREEMENT DATED AS OF FEBRUARY
22, 1999 BY DEBTOR IN FAVOR OF SENIOR SECURED PARTY CONCERNING THE SENIOR
INDEBTEDNESS.
(B) "SENIOR INDEBTEDNESS" SHALL HAVE THE
MEANING ASSIGNED TO SUCH TERM IN THE NOTES (AS DEFINED IN THE LOAN AGREEMENT).
(C) "SENIOR SECURED PARTY" MEANS COBANK,
ACB, AS THE ADMINISTRATIVE AGENT UNDER THE LOAN AGREEMENT REFERRED TO IN THE
SENIOR SECURITY AGREEMENT (THE "SENIOR LOAN AGREEMENT"), THE BANKS UNDER THE
SENIOR LOAN AGREEMENT, AND EACH OF THEM, AND ANY ONE OR MORE OF THEM.
B. ENFORCEMENT OF SECURITY INTEREST. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED IN THIS SECURITY AGREEMENT, SECURED PARTY AGREES AS
FOLLOWS:
(1) SECURED PARTY SHALL HAVE NO RIGHT TO TAKE ANY
ACTION WITH RESPECT TO THE SENIOR COLLATERAL, WHETHER BY JUDICIAL OR
NON-JUDICIAL FORECLOSURE, NOTIFICATION TO DEBTOR'S ACCOUNT DEBTORS, THE SEEKING
OF THE APPOINTMENT OF A RECEIVER FOR ANY PORTION OF DEBTOR'S ASSETS, OR
OTHERWISE, UNLESS AND UNTIL ALL SENIOR INDEBTEDNESS HAS BEEN FULLY AND
INDEFEASIBLY PAID IN CASH OR OTHERWISE SATISFIED IN FULL.
(2) ANY PROCEEDS OF THE SENIOR COLLATERAL, OR
PROCEEDS THEREOF (WHETHER OR NOT IDENTIFIABLE), RECEIVED BY SECURED PARTY SHALL
BE PAID TO SENIOR SECURED PARTY ON DEMAND.
(3) IN THE EVENT SENIOR SECURED PARTY ELECTS TO
EXERCISE ITS REMEDIES IN CONNECTION WITH THE SENIOR COLLATERAL, SENIOR SECURED
PARTY MAY APPLY THE SENIOR COLLATERAL, OR FORECLOSE UPON, SELL, DISPOSE OF,
REALIZE UPON, OR ASSERT OR ENFORCE ANY RIGHT, CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION WHATSOEVER THAT SENIOR SECURED PARTY MAY HAVE IN RESPECT OF THE SENIOR
COLLATERAL, IN ANY MANNER, AT ANY TIME AND FOR ANY CONSIDERATION DEEMED
APPROPRIATE BY SENIOR SECURED PARTY. SENIOR SECURED PARTY SHALL HAVE NO
OBLIGATION TO DISPOSE OF THE SENIOR COLLATERAL IN ANY MANNER, AT ANY TIME, OR
FOR ANY CONSIDERATION THAT ENHANCES OR PRESERVES THE VALUE THEREOF FOR SECURED
PARTY. SECURED PARTY WAIVES ANY CLAIM OR CAUSE OF ACTION AGAINST SENIOR SECURED
PARTY WITH RESPECT TO ANY APPLICATION OF, FORECLOSURE UPON, SALE OR DISPOSITION
OF THE SENIOR COLLATERAL.
(4) IF SECURED PARTY OBTAINS ANY PAYMENT OR OTHER
ASSETS IN VIOLATION OF THIS SECURITY AGREEMENT, SECURED PARTY AGREES THAT IT
SHALL HOLD ALL SUCH PAYMENTS AND OTHER ASSETS IN TRUST FOR SENIOR SECURED PARTY,
AND SHALL IMMEDIATELY PAY, DELIVER AND ASSIGN TO SENIOR SECURED PARTY ANY SUCH
PAYMENTS AND ASSETS FOR APPLICATION TO THE SENIOR INDEBTEDNESS IN SUCH ORDER AND
MANNER AS SENIOR SECURED PARTY SHALL DETERMINE.
SECTION 8. CERTAIN DELIVERIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS SECURITY AGREEMENT, DEBTOR'S DELIVERY TO SENIOR SECURED PARTY OF ANY
ITEM REQUIRED TO BE DELIVERED TO SECURED PARTY HEREUNDER SHALL SATISFY THE
DELIVERY REQUIREMENT OF THIS SECURITY AGREEMENT, AND SUCH ITEMS SHALL BE DEEMED
TO BE HELD BY SENIOR SECURED PARTY FOR THE BENEFIT OF SECURED PARTY, PROVIDED,
HOWEVER, THAT THE PROVISIONS OF THIS SECTION 8 SHALL NOT APPLY IN THE EVENT THAT
COBANK, ACB CEASES TO BE THE SOLE LENDER TO DEBTOR UNDER EITHER THE LOAN
AGREEMENT OR THE SENIOR LOAN AGREEMENT, IN WHICH CASE THE LENDERS TO DEBTOR
UNDER THE LOAN AGREEMENT AND THE SENIOR LOAN AGREEMENT SHALL ENTER INTO AN
INTERCREDITOR AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO SUCH LENDERS
CONCERNING, INTER ALIA, THE MATTERS SET FORTH IN THIS SECTION 8.
IN WITNESS WHEREOF, THE DEBTOR HAS EXECUTED THIS SECURITY AGREEMENT BY ITS DULY
AUTHORIZED OFFICER AS OF THE DAY AND YEAR SHOWN BELOW.
DEBTOR:
PF ACQUISITION II, INC.
DATE: FEBRUARY 22, 1999 BY: ___________________________
TITLE: ________________________
SCHEDULE A
TO SECURITY AGREEMENT DATED FEBRUARY 22, 1999
EXECUTED BY PF ACQUISITION II, INC.
SET FORTH BELOW ARE THE PRESENT LOCATIONS (BY LEGAL DESCRIPTION) OF THE DEBTOR'S
EQUIPMENT, FARM PRODUCTS, AND FIXTURES.
XXXXXX COUNTY, OREGON
SITE 4, PARCEL 1:
PARCEL 2 OF PARTITION PLAT 96-98, FILED FOR RECORD ON NOVEMBER 8, 1996 IN REEL
1353, PAGE 00, XXXXXXXXX XXXXXXX, XXXXXX XXXXXX, XXXXXX.
XXXX 0, XXXXXX 0
XXXXXXXXX XX THE NORTHWEST CORNER OF THAT CERTAIN TRACT OF LAND DEEDED TO XXXXX
XXXXX BY XXXXXX XXXXXX AND WIFE, WHICH DEED WAS RECORDED JULY 19, 1910 ON PAGE
583, BOOK 000 XX XXXX XXXXXXX XX XXXXXX XXXXXX, XXXXXX; THENCE SOUTH 32[d]15'
WEST 22 FEET; THENCE SOUTH 59[d]47' EAST 338.76 FEET, MORE OR LESS, TO THE EAST
BOUNDARY OF LOT 3 OF THE NORTH 1/2 OF THE DONATION LAND CLAIM OF X. X. XXXXXX
AND WIFE; THENCE NORTH 32[d]15' EAST ALONG SAID LINE 22 FEET TO THE SOUTH
BOUNDARY LINE OF THE WOODBURN-NATRON BRANCH OF THE SOUTHERN PACIFIC RAILROAD;
THENCE NORTH 60[d]45' WEST 339 FEET TO THE PLACE OF BEGINNING, AND BEING A PART
OF XXX 0, XX XXX XXXXX 0/0 XX XXX DONATION LAND CLAIM OF X. X. XXXXXX AND WIFE
IN TOWNSHIP 5 SOUTH, RANGE 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX XX XXXXXX XXXXXX,
XXXXXX.
SAVE AND EXCEPT, THE LAND CONVEYED TO THE STATE OF OREGON BY XXX-XXXXX COMPANY,
INC., BY DEED RECORDED IN VOLUME 216, PAGE 000, XXXX XXXXXXX XX XXXXXX XXXXXX,
XXXXXX.
SAVE AND EXCEPT, THAT PARCEL OF LAND SITUATE IN THE X. X. XXXXXX DONATION LAND
CLAIM IN SECTION 17, TOWNSHIP 5 SOUTH, RANGE 1 WEST OF THE WILLAMETTE MERIDIAN,
XXXXXX COUNTY, OREGON, WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT AN IRON PIPE ON THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF THE SOUTHERN
PACIFIC RAILROAD, FROM WHENCE THE SOUTHWEST CORNER OF LOT 4, OF THE SUBDIVISION
OF THE NORTH 1/2 OF THE X. X. XXXXXX DONATION LAND CLAIM, BEARS SOUTH
32[d]30' WEST 221.90 FEET AND SOUTH 60[d]45' EAST 96.90 FEET AND SOUTH
32[d]28' WEST 308.50 FEET AND SOUTH 59[d]26' EAST 35.76 FEET AND SOUTH
32[d]15' WEST 434.1 FEET AND RUNNING THENCE NORTH 60[d]45' WEST 168.00
FEET ALONG THE SOUTHWESTERLY RIGHT- OF-WAY LINE OF THE SOUTHERN PACIFIC RAILROAD
TO A 3/4" IRON PIPE; THENCE SOUTH 32[d]30' WEST 22.00 FEET TO A 3/4" IRON
PIPE ON THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF PACIFIC HIGHWAY U.S.
99E; THENCE SOUTH 60[d]45' EAST 168.00 FEET, PARALLEL TO SAID RAILROAD
RIGHT-OF-WAY; THENCE NORTH 32[d]30' EAST 22 FEET TO THE POINT OF BEGINNING.
SITE 6, PARCEL 2
BEGINNING AT AN IRON PIN IN THE SOUTH LINE OF THE SOUTHERN PACIFIC RAILROAD
RIGHT-OF-WAY 13.22 CHAINS SOUTH 86[d]45' WEST AND 14.12 CHAINS SOUTH
32[d]6' WEST FROM THE MOST EASTERLY NORTHEAST CORNER OF THE X. X. XXXXXX
DONATION LAND CLAIM IN TOWNSHIP 5 SOUTH, RANGE 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX
XX XXXXXX XXXXXX, XXXXXX; THENCE SOUTH 32[d]6" WEST, 6.74 CHAINS TO A STONE
IN THE SOUTHEAST CORNER OF LOT 4 OF THE X. X. XXXXXX SUBDIVISION; THENCE SOUTH
89[d]47' WEST ALONG THE LINE DIVIDING SAID CLAIM IN NORTH AND SOUTH HALVES,
14.44 CHAINS TO AN IRON BOLT; THENCE NORTH 31[d]57' EAST, 13.82 CHAINS TO
AN IRON BOLT IN THE SOUTH LINE OF SAID RIGHT-OF-WAY OF THE SOUTHERN PACIFIC
RAILROAD COMPANY; THENCE SOUTH 60[d]58' EAST ALONG SAID RIGHT-OF-WAY, 12.26
CHAINS TO THE POINT OF BEGINNING, AND SITUATED IN THE NORTH 1/2 OF THE X. X.
XXXXXX DONATION LAND CLAIM IN TOWNSHIP 5 SOUTH, RANGE 0 XXXX XX XXX XXXXXXXXXX
XXXXXXXX XX XXXXXX XXXXXX, XXXXXX.
SITE 6, PARCEL 3
BEGINNING ON THE DIVISION LINE, DIVIDING THE X. X. XXXXXX DONATION LAND CLAIM
INTO NORTH AND SOUTH HALVES, AT A POINT WHICH IS 13.20 CHAINS SOUTH 86[d]45'
WEST AND 20.92 CHAINS SOUTH 32[d]15' WEST OF THE MOST EASTERLY NORTHEAST CORNER
OF THE SAID X. X. XXXXXX DONATION LAND CLAIM AND RUNNING THENCE NORTH 32[d]15'
EAST 435 FEET TO THE SOUTH LINE OF THE WOODBURN-SILVERTON BRANCH OF THE SOUTHERN
PACIFIC RAILROAD RIGHT-OF-WAY; THENCE SOUTH 60[d]45' EAST ALONG THE SOUTH LINE
OF SAID RIGHT-OF-WAY 735.5 FEET TO ITS INTERSECTION WITH SAID DIVISION LINE;
THENCE WEST ALONG SAID DIVISION LINE 920 FEET TO THE PLACE OF BEGINNING, AND
BEING A PART OF LOT 5 OF THE NORTH 1/2 OF SAID DONATION LAND CLAIM, IN TOWNSHIP
5 SOUTH, RANGE 0 XXXX XX XXXXXXXXXX XXXXXXXX XX XXXXXX XXXXXX, XXXXXX.
XXXX 0, XXXXXX 0
XXXXXXXXX XX A POINT ON THE SOUTH BOUNDARY LINE OF THE SOUTHERN PACIFIC RAILROAD
RIGHT-OF- WAY WHICH IS 531.2 FEET NORTH 32[d]15' EAST OF THE SOUTHEAST
CORNER OF A 4.103 ACRE TRACT OF LAND FORMERLY OWNED BY N. F. STRAIN, SAID TRACT
BEING A PART OF LOT 3 OF THE NORTH 1/2 OF THE DONATION LAND CLAIM OF X. X.
XXXXXX AND WIFE IN TOWNSHIP 5 SOUTH, RANGE 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX XX
XXXXXX XXXXXX, XXXXXX; THENCE SOUTH 32[d]15' WEST 22 FEET; THENCE SOUTH
60[d]58' EAST PARALLEL WITH SAID RIGHT-OF-WAY 1.424 CHAINS; THENCE NORTH
32[d]15' EAST 22 FEET TO THE SOUTH BOUNDARY LINE OF SAID RIGHT-OF-WAY;
THENCE NORTH 60[d]58' WEST ALONG SAID SOUTH BOUNDARY LINE 1.424 CHAINS TO
THE PLACE OF BEGINNING, AND BEING SITUATED IN DONATION LAND CLAIM OF X. X.
XXXXXX AND WIFE IN TOWNSHIP 5 SOUTH, RANGE 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX XX
XXXXXX XXXXXX, XXXXXX.
XXXX 0, XXXXXX 0
XXXXXXXXX XX A POINT WHICH IS NORTH 19[d]45' EAST 13.645 CHAINS AND SOUTH
87[d]22' EAST 32.284 CHAINS AND NORTH 19[d]23' EAST 44.62 CHAINS FROM
THE SOUTHWEST CORNER OF THE XXXXXX XXXXXXXXXX DONATION LAND CLAIM IN TOWNSHIP 5
SOUTH, RANGE 1 WEST OF THE WILLAMETTE MERIDIAN, AND RUNNING THENCE SOUTH
59[d]55' EAST ALONG THE SOUTH BOUNDARY LINE OF THE SOUTHERN PACIFIC
RAILROAD RIGHT-OF-WAY 1.28 CHAINS; THENCE SOUTH 19[d]23' WEST 3.54 CHAINS;
THENCE NORTH 59[d]55' WEST 1.28 CHAINS; THENCE NORTH 19[d]23' EAST
3.54 CHAINS TO THE PLACE OF BEGINNING, BEING SITUATED IN XXXXXX COUNTY, OREGON.
SITE 6, PARCEL 6
BEGINNING AT A POINT WHICH IS REACHED BY BEGINNING AT THE SOUTHWEST CORNER OF
THE XXXXXX XXXXXXXXXX DONATION LAND CLAIM IN TOWNSHIP 5 SOUTH, RANGE 1 WEST OF
THE WILLAMETTE MERIDIAN, IN XXXXXX COUNTY, OREGON, AND RUNNING THENCE NORTH
19[d]45' EAST 13.645 CHAINS; THENCE SOUTH 87[d]22' EAST 22.40 CHAINS;
THENCE NORTH 19[d]45' EAST 45.80 CHAINS TO THE NORTHWEST CORNER OF THAT
CERTAIN TRACT DEEDED TO XXXXXXX XXX, XXXXXX XXX AND XXXX XXX, HIS WIFE, BY DEED
RECORDED AT PAGE 526, BOOK 162, RECORDS OF DEEDS FOR XXXXXX COUNTY, OREGON;
RUNNING THENCE ALONG THE WEST LINE OF ADDITIONAL LAND OF SAID ZAK BROTHERS, SAID
LAND BEING DESCRIBED IN DEED RECORDED AT PAGE 527, BOOK 162, RECORDS OF DEEDS
FOR XXXXXX COUNTY, OREGON, NORTHEASTERLY 184.7 FEET TO A POINT ON THE SOUTH LINE
OF THE SOUTHERN PACIFIC RAILROAD RIGHT-OF-WAY AND BEING THE BEGINNING POINT OF
THE HEREIN DESCRIBED TRACT; RUNNING THENCE ALONG SAID RAILROAD RIGHT-OF-WAY
BOUNDARY SOUTH 60[d]26' EAST 551.2 FEET, MORE OR LESS, TO THE NORTHEAST
CORNER OF THE ABOVE DESCRIBED ZAK LAND; THENCE ALONG THE EAST LINE OF SAID ZAK
LAND SOUTH 19[d]23' WEST 130.0 FEET; THENCE PARALLEL WITH THE SAID RAILROAD
NORTH 60[d]26' WEST 130.0 FEET; THENCE NORTH 19[d]23' EAST 119.9 FEET;
THENCE ON A LINE PARALLEL TO AND 10 FEET FROM SAID RAILROAD RIGHT-OF-WAY
BOUNDARY NORTH 60[d]26' WEST 421.2 FEET, MORE OR LESS, TO A POINT IN THE
WEST LINE OF SAID ADDITIONAL LAND OF ZAK BROTHERS, 10 FEET SOUTHWEST OF POINT OF
BEGINNING; THENCE NORTHEAST ALONG SAID WEST LINE OF ZAK BROTHERS ADDITIONAL
PROPERTY, 10 FEET TO POINT OF BEGINNING. SAVE AND EXCEPT, THE WESTERLY 25 FEET
FOR A ROADWAY.
SITE 6, PARCEL 7
BEGINNING AT AN IRON PIPE WHICH MARKS THE POINT OF BEGINNING OF A TRACT OF LAND
CONVEYED TO XXXXX XXXXXXX, BY DEED RECORDED IN VOLUME 490, PAGE 3, DEED RECORDS
OF XXXXXX COUNTY, OREGON, WHICH POINT IS 434.1 FEET NORTH 32[d]15' EAST
FROM THE SOUTHWEST CORNER OF LOT 4 OF THE SUBDIVISION OF THE NORTH 1/2 OF THE X.
X. XXXXXX DONATION LAND CLAIM IN TOWNSHIP 5 SOUTH, RANGE 1 WEST OF THE
WILLAMETTE MERIDIAN IN XXXXXX COUNTY, OREGON; AND RUNNING THENCE NORTH
59[d]26' WEST A DISTANCE OF 35.76 FEET ALONG THE SOUTH LINE OF SAID XXXXXXX
TRACT TO AN IRON PIPE AT THE SOUTHWEST CORNER THEREOF; THENCE NORTH
32[d]28' EAST A DISTANCE OF 308.50 FEET ALONG THE WEST LINE OF SAID TRACT
AND EXTENDED TO AN IRON PIPE; THENCE NORTH 60[d]45' WEST A DISTANCE OF
74.90 FEET TO AN IRON PIPE AT AN ANGLE POINT ON THE WEST LINE OF SAID TRACT;
THENCE
NORTH 32[d]30' EAST A DISTANCE OF 199.90 FEET ALONG THE SAID WEST LINE TO THE
IRON PIPE AT THE NORTHWEST CORNER OF SAID TRACT; THENCE SOUTH 60[d]45' EAST A
DISTANCE OF 202.98 FEET ALONG THE NORTH LINE OF SAID TRACT TO THE NORTHEAST
CORNER THEREOF; THENCE SOUTH 32[d]15' WEST A DISTANCE OF 508.60 FEET ALONG THE
WEST LINE OF SAID TRACT TO AN IRON PIPE; THENCE NORTH 60[d]58' WEST A DISTANCE
OF 94.3 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
SITE 6, PARCEL 8
BEGINNING ON THE EAST BOUNDARY OF THE X. X. XXXXXX DONATION LAND CLAIM IN
TOWNSHIP 5 SOUTH, RANGE 1 WEST OF THE WILLAMETTE MERIDIAN IN XXXXXX COUNTY,
OREGON, AT A POINT WHICH IS 25.95 CHAINS NORTH 19[d]40' EAST FROM THE
SOUTHEAST CORNER THEREOF; THENCE WEST 2,641.16 FEET TO THE EASTERLY LINE OF THE
PACIFIC HIGHWAY AS SAME IS LOCATED IN THE SAID TOWNSHIP AND RANGE; THENCE NORTH
32[d]31' EAST ALONG THE EASTERLY LINE OF THE SAID PACIFIC HIGHWAY, 186.78
FEET TO THE LINE DIVIDING THE SAID XXXXXX DONATION LAND CLAIM INTO NORTH AND
SOUTH HALVES; THENCE NORTH 89[d]52' EAST ALONG THE LINE DIVIDING THE SAID
CLAIM INTO NORTH AND SOUTH HALVES A DISTANCE OF 2,598.02 FEET TO THE EASTERLY
LINE OF SAID XXXXXX DONATION LAND CLAIM; THENCE SOUTH 19[d]20' WEST ALONG
THE EASTERLY LINE OF THE SAID CLAIM 172.42 FEET TO THE PLACE OF BEGINNING.
SAVE AND EXCEPT, A STRIP OF LAND 60.00 FEET WIDE CONVEYED TO OREGONIAN RAILROAD
COMPANY LIMITED BY DEED RECORDED IN VOLUME 26, PAGE 00, XX XXXX XXXXXXX, XXXXXX
XXXXXX, XXXXXX.
SAVE AND EXCEPT, THAT PARCEL OF LAND SITUATE IN SECTION 17, TOWNSHIP 5 SOUTH,
RANGE 1 WEST OF THE WILLAMETTE MERIDIAN, XXXXXX COUNTY, OREGON, WHICH IS MORE
PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THAT
TRACT OF LAND CONVEYED TO TERMINAL ICE AND COLD STORAGE COMPANY BY DEED RECORDED
IN VOLUME 593, PAGE 395, XXXXXX COUNTY RECORD OF DEEDS, SAID SOUTHEAST CORNER
BEING RECORDED AS BEARING SOUTH 19[d]22' WEST 1,283.53 FEET FROM THE MOST
EASTERLY NORTHEAST CORNER OF THE XXXXXXXX X. XXXXXX DONATION LAND CLAIM XX. 00,
XXXXXXXX 0 XXXXX, XXXXX 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX, XXXXXX XXXXXX,
XXXXXX; AND RUNNING THENCE FROM THE TRUE POINT OF BEGINNING; SOUTH 19[d]22'
WEST 70 FEET, MORE OR LESS, ALONG THE SOUTHWESTERLY EXTENSION OF THE
SOUTHEASTERLY BOUNDARY LINE OF SAID TERMINAL ICE AND COLD STORAGE COMPANY TRACT
TO THE NORTHWESTERLY RIGHT-OF-WAY LINE OF THE SOUTHERN PACIFIC RAILROAD; THENCE
NORTH 60[d]57' WEST 139 FEET, MORE OR LESS, ALONG SAID NORTHWESTERLY
RAILROAD RIGHT-OF-WAY LINE TO THE MOST EASTERLY SOUTHWEST CORNER OF SAID
TERMINAL ICE AND COLD STORAGE COMPANY TRACT; THENCE SOUTH 89[d]45' EAST
144.54 FEET ALONG THE SOUTHERLY BOUNDARY LINE OF SAID TERMINAL ICE AND COLD
STORAGE COMPANY TRACT TO THE POINT OF BEGINNING.
XXXX 0, XXXXXX 0
XXXXXXXXX XX A STONE IN THE EAST LINE OF THE X. X. XXXXXX DONATION LAND CLAIM IN
TOWNSHIP 5 SOUTH, RANGE 1 WEST OF THE WILLAMETTE MERIDIAN, XXXXXX COUNTY,
OREGON, SAID STONE BEING
646.61 FEET NORTH 19[d]38' EAST FROM THE SOUTHEAST CORNER OF SAID CLAIM; AND
RUNNING THENCE SOUTH 87[d]52' WEST 1,087.62 FEET TO A STONE; THENCE NORTH
19[d]39' EAST 1,091.81 FEET TO AN IRON PIPE; THENCE NORTH 89[d]48' WEST 1,574.67
FEET TO A POINT IN THE EASTERLY RIGHT-OF- WAY LINE OF THE PACIFIC HIGHWAY;
THENCE NORTH 32[d]30' EAST 18.93 FEET ALONG SAID EASTERLY LINE, TO AN IRON PIPE;
THENCE SOUTH 89[d]48' EAST 2,640.76 FEET TO A STONE IN THE EAST LINE OF SAID X.
X. XXXXXX DONATION LAND CLAIM; THENCE SOUTH 19[d]38' WEST 1,061.66 FEET ALONG
SAID EAST LINE TO THE POINT OF BEGINNING.
SITE 6, PARCEL 10
BEGINNING AT AN IRON PIPE WHICH IS 2,092.52 FEET SOUTH 87[d]49' WEST AND 625.00
FEET NORTH 04[d]46' EAST AND 1,028.01 FEET NORTH 10[d]05' EAST FROM THE
SOUTHEAST CORNER OF THE X. X. XXXXXX DONATION LAND CLAIM IN TOWNSHIP 5 SOUTH,
RANGE 1 WEST OF THE WILLAMETTE MERIDIAN, XXXXXX COUNTY, OREGON; AND RUNNING
THENCE NORTH 89[d]48' WEST 247.23 FEET TO AN IRON PIPE IN THE EASTERLY
RIGHT-F-WAY LINE OF THE PACIFIC HIGHWAY; THENCE SOUTH 32[d]30' WEST 206.88 FEET
ALONG SAID EASTERLY LINE TO AN IRON PIPE; THENCE SOUTH 82[d]26' EAST 322.67 FEET
TO AN IRON PIPE; THENCE NORTH 10[d]05' EAST 219.51 FEET TO THE POINT OF
BEGINNING.
SITE 6, PARCEL 11
BEGINNING AT A STONE AT THE SOUTHEAST CORNER OF THE X. X. XXXXXX DONATION LAND
CLAIM IN TOWNSHIP 5 SOUTH, RANGE 1 WEST OF THE WILLAMETTE MERIDIAN, XXXXXX
COUNTY, OREGON; AND RUNNING THENCE SOUTH 87[d]49' WEST ALONG THE SOUTH LINE OF
SAID CLAIM 2,092.52 FEET TO A STONE; THENCE NORTH 04[d]46' EAST 625.00 FEET
ALONG THE EAST LINE OF THAT CERTAIN TRACT OF LAND DESCRIBED IN VOLUME 449, PAGE
282, XXXXXX COUNTY DEED RECORDS TO A STONE AT THE NORTHEAST CORNER THEREOF;
THENCE NORTH 10[d]05' EAST 1,028.01 FEET TO AN IRON PIPE; THENCE NORTH 89[d]48'
WEST 247.23 FEET TO AN IRON PIPE SET IN THE EASTERLY RIGHT-OF-WAY LINE OF THE
PACIFIC HIGHWAY; THENCE NORTH 32[d]30' EAST 54.42 FEET ALONG SAID EASTERLY LINE
TO A POINT; THENCE SOUTH 89[d]48' EAST 1,574.67 FEET TO AN IRON PIPE; THENCE
SOUTH 19[d]39' WEST 1,091.81 FEET TO A STONE; THENCE NORTH 87[d]52' EAST
1,087.62 FEET TO A STONE IN THE EAST LINE OF SAID X.X. XXXXXX DONATION LAND
CLAIM; THENCE SOUTH 19[d]38' WEST 646.61 FEET ALONG SAID EAST LINE TO THE POINT
OF BEGINNING.
SAVE AND EXCEPT, A PORTION OF THAT TRACT OF LAND CONVEYED TO AGRIPAC, INC., AN
OREGON COOPERATIVE CORPORATION BY WARRANTY DEED, RECORDED IN REEL 918, PAGE 000,
XXXXXXXXX XXXXXXX, XXXXXX XXXXXX, XXXXXX; SAID BEGINNING POINT OF THE FOLLOWING
DESCRIBED PARCEL, BEING AN IRON ROD WITH PLASTIC CAP MARKED LS 1362 AND LYING
3,589.65 FEET NORTH 16[d]59'26" WEST OF THE SOUTHEAST CORNER OF XXXX XXXXXXX
DONATION LAND CLAIM XX. 00 XX XXXXXXXX 0 XXXXX, XXXXX 0 XXXX XX XXX XXXXXXXXXX
XXXXXXXX, XXXXXX XXXXXX, XXXXXX; THENCE ALONG THE WESTERLY BOUNDARY OF SAID
AGRIPAC TRACT THE FOLLOWING COURSES: SOUTH 86[d]53'16" WEST 730.83 FEET TO THE
XXXX XXXXX-XX-XXX XX XXXXXXX XXXXXXX 00X; THENCE NORTH 31[d]35'00" EAST ALONG
SAID RIGHT-OF-WAY 72.98 FEET; THENCE NORTH 86[d]53'16" EAST 702.36 FEET TO AN
IRON PIPE; THENCE NORTH 9[d]10'24" EAST 195.00 FEET; THENCE LEAVING SAID
WESTERLY BOUNDARY NORTH 30[d]12'00" EAST 409.00
FEET; THENCE NORTH 0[d]34'00" WEST 391.00 FEET; THENCE SOUTH 86[d]37'53" EAST
494.69 FEET; THENCE SOUTH 61[d]37'04" EAST 591.66 FEET; THENCE SOUTH 28[d]22'56"
WEST 1,030.50 FEET; THENCE NORTH 61[d]37'04" WEST 396.67 FEET; THENCE NORTH
85[d]47'24" WEST 419.43 FEET TO THE POINT OF BEGINNING.
SITE 6, PARCEL 12
THAT PARCEL OF LAND SITUATE IN THE X. X. XXXXXX DONATION LAND CLAIM, SECTION 17,
TOWNSHIP 5 SOUTH, RANGE 1 WEST OF THE WILLAMETTE MERIDIAN, XXXXXX COUNTY,
OREGON, DESCRIBED IN VOLUME 579, PAGE 486 OF THE DEED RECORDS OF XXXXXX COUNTY,
OREGON, WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A 3/4"
IRON PIPE FROM WHENCE THE SOUTHWEST CORNER OF LOT 4 OF THE SUBDIVISION OF THE
NORTH 1/2 OF X. X. XXXXXX DONATION LAND CLAIM BEARS SOUTH 60[d]45' EAST 74.90
FEET AND SOUTH 32[d]28' WEST 308.50 FEET AND SOUTH 59[d]26' EAST 35.76 FEET AND
SOUTH 32[d]15' WEST 434.1 FEET AND RUNNING THENCE NORTH 60[d]45' WEST 22 FEET TO
AN IRON PIPE; THENCE NORTH 32[d]30' EAST 199.90 FEET; THENCE SOUTH 60[d]45' EAST
22.00 FEET; THENCE SOUTH 32[d]03' WEST 199.90 FEET TO THE POINT OF BEGINNING.
SITE 6, PARCEL 13
THAT TRACT OF LAND SITUATE IN SECTIONS 19 AND 20, TOWNSHIP 5 SOUTH, RANGE 1 WEST
OF THE WILLAMETTE MERIDIAN IN XXXXXX COUNTY, OREGON, WHICH IS MORE PARTICULARLY
DESCRIBED AS FOLLOWS: BEGINNING AT AN IRON BAR ON THE SOUTHERLY BOUNDARY LINE OF
THAT TRACT OF LAND CONVEYED TO GENERAL FOODS CORPORATION BY DEED RECORDED IN
VOLUME 547, PAGE 833, XXXXXX COUNTY RECORD OF DEEDS, SAID IRON BAR BEING ALSO
THE NORTHEASTERLY CORNER OF THAT TRACT OF LAND CONVEYED TO F AND X XXXXXXXXX BY
DEED RECORDED IN VOLUME 404, PAGE 152, DEED RECORDS FOR XXXXXX COUNTY, OREGON,
IN SECTIONS 19 AND 20, TOWNSHIP 5 SOUTH, RANGE 1 WEST OF THE WILLAMETTE
MERIDIAN, XXXXXX COUNTY, OREGON, WHICH BEARS SOUTH 89[d]45' EAST 309.21 FEET AND
NORTH 31[d]59' EAST 3,330.55 FEET AND NORTH 86[d]53' EAST 1,070.32 FEET FROM THE
MOST SOUTHERLY SOUTHWEST CORNER OF THE XXXX XXXXXXX DONATION LAND CLAIM NO. 69,
AND RUNNING THENCE FROM THE TRUE POINT OF BEGINNING; SOUTH 18[d]50' WEST
2,665.47 FEET ALONG THE EASTERLY BOUNDARY LINE OF SAID XXXXXXXXX TRACT TO A 3/4"
IRON PIPE; THENCE SOUTH 89[d]39'30" WEST 1,753.47 FEET TO A 3/4" IRON PIPE ON
THE WESTERLY BOUNDARY OF THAT TRACT OF LAND CONVEYED TO F AND X XXXXXXXXX BY
DEED RECORDED IN VOLUME 465, PAGE 177, DEED RECORDS FOR XXXXXX COUNTY, OREGON;
THENCE NORTH 31[d]59' EAST 2,917.55 FEET ALONG SAID WESTERLY BOUNDARY AND THE
NORTHEASTERLY EXTENSION THEREOF TO A 3/4" IRON PIPE ON THE NORTHERLY BOUNDARY
LINE OF SAID XXXXXXXXX TRACT RECORDED IN VOLUME 404, PAGE 152, DEED RECORDS FOR
XXXXXX COUNTY, OREGON; THENCE NORTH 86[d]53' EAST 1,070.32 FEET TO THE POINT OF
BEGINNING.
SAVE AND EXCEPT, BEGINNING AT A POINT ON THE WEST LINE OF THAT TRACT OF LAND
CONVEYED TO XXXX XXXXXXXXX BY DEED RECORDED IN VOLUME 288, PAGE 341, DEED
RECORDS FOR XXXXXX COUNTY, OREGON, WHICH IS SOUTH 18[d]50'49" WEST 1,654.33
FEET AND SOUTH 89[d]39'30" WEST 1,053.19 FEET FROM THE NORTHEAST CORNER OF
THE XXXX XXXXXXX DONATION LAND CLAIM XX. 00 XX XXXXXXXX 0
XXXXX, XXXXX 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX XX XXXXXX XXXXXX, XXXXXX; THENCE
SOUTH 18[d]49'55" WEST 1,064.46 FEET; THENCE SOUTH 89[d]39'30" WEST 1,753.46
FEET TO AN IRON PIPE IN THE SOUTHWEST CORNER OF THAT TRACT OF LAND CONVEYED TO
GENERAL FOODS CORPORATION BY DEED RECORDED IN VOLUME 625, PAGE 152, DEED RECORDS
FOR XXXXXX COUNTY, OREGON; THENCE NORTH 31[d]59' EAST 1,189.80 FEET ALONG THE
WEST LINE OF SAID GENERAL FOODS TRACT TO A 5/8 IRON ROD; THENCE NORTH
89[d]39'30" EAST 1,466.84 FEET TO THE PLACE OF BEGINNING.
SITE 6, PARCEL 14
BEGINNING AT THE NORTHEAST CORNER OF THE XXXX XXXXXXX LAND CLAIM XX. 00 XX
XXXXXXXX 0 XXXXX, XXXXX 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX, XXXXXX XXXXXX,
XXXXXX; THENCE SOUTH 18[d]50'49" WEST 1,654.33 FEET ALONG THE EAST LINE OF SAID
CLAIM TO 1 5/8" IRON ROD; THENCE SOUTH 89[d]39'30" WEST 1,053.19 FEET TO A POINT
IN THE WEST LINE OF THE XXXX XXXXXXXXX TRACT AS DESCRIBED IN VOLUME 288, PAGE
341, DEED RECORDS FOR XXXXXX COUNTY, OREGON; THENCE NORTH 18[d]49'55" EAST
1,599.87 FEET TO AN IRON BAR IN THE NORTH LINE OF SAID CLAIM; THENCE NORTH
86[d]55'04" EAST 1,072.71 FEET TO THE PLACE OF BEGINNING.
SITE 6, PARCEL 15
BEGINNING AT AN IRON PIPE IN THE WEST LINE OF THE XXXXXX XXXXXXXXXX DONATION
LAND CLAIM 13.645 CHAINS FROM THE SOUTHWEST CORNER OF THE SAME IN TOWNSHIP 5
SOUTH, RANGE 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX, XX XXXXXX XXXXXX, XXXXXX; THENCE
NORTH 19[d]45' EAST ALONG THE WEST LINE OF SAID CLAIM 45.40 CHAINS TO A STONE;
THENCE SOUTH 88[d]17' EAST 11.26 CHAINS TO THE IRON BAR; THENCE SOUTH 19[d]45'
WEST 45.60 CHAINS TO AN IRON BAR; THENCE NORTH 87[d]23' WEST 11.20 CHAINS TO THE
POINT OF BEGINNING, BEING SITUATED IN THE XXXXXX XXXXXXXXXX DONATION LAND CLAIM
IN TOWNSHIP 5 SOUTH, RANGE 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX XX XXXXXX XXXXXX,
XXXXXX.
XXXX 0, XXXXXX 00
XXXXXXXXX XX A POINT 13.645 CHAINS NORTH 19[d]45' EAST AND 11.20 CHAINS SOUTH
87[d]22' EAST FROM THE SOUTHWEST CORNER OF THE XXXXXX XXXXXXXXXX DONATION LAND
CLAIM IN TOWNSHIP 5 SOUTH, RANGE 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX XX XXXXXX
XXXXXX, XXXXXX; THENCE NORTH 19[d]45' EAST 9.32 CHAINS TO AN IRON PIPE; THENCE
SOUTH 87[d]22' EAST 5.615 CHAINS TO THE XXXXXXXXX XXXXXX XX X XXXXX XX XXXX
CONVEYED TO XXXXXX X. XXXXXXXXX, ET AL, BY DEED RECORDED IN VOLUME 455, PAGE
502, DEED RECORDS FOR XXXXXX COUNTY, OREGON; THENCE NORTH 19[d]45' EAST 30.439
CHAINS; THENCE SOUTH 70[d]15' EAST 5.346 CHAINS; THENCE NORTH 19[d]45' EAST
7.672 CHAINS TO AN IRON BAR AT THE NORTHWEST CORNER OF THE FOURTH TRACT OF LAND
DESCRIBED IN DEED TO XXXXXX X. XXXXXXXXX, ET AL, RECORDED IN VOLUME 444, PAGE
672, DEED RECORDS FOR XXXXXX COUNTY, OREGON; THENCE SOUTH 88[d]17' EAST 1.09
CHAINS TO A STONE AT MOST WESTERLY SOUTHWEST CORNER OF A TRACT OF LAND DEEDED TO
XXXXXX XXXXXX BY XXXXXXXXX XXXXXX, ET UX, BY DEED RECORDED IN VOLUME 73, PAGE
450, DEED RECORDS FOR XXXXXX COUNTY, OREGON; THENCE NORTH 18[d]44' EAST
2.80 CHAINS TO AN IRON PIPE IN THE SOUTH LINE OF THE SOUTHERN PACIFIC RAILROAD
RIGHT-OF-WAY; THENCE SOUTH 60[d]26' EAST 5.74 CHAINS ALONG SAID RIGHT-OF-WAY TO
THE NORTHERLY BOUNDARY OF THE FIRST TRACT OF LAND DESCRIBED IN SAID DEED TO
XXXXXX X. XXXXXXXXX, ET AL, RECORDED IN VOLUME 444, PAGE 672, DEED RECORDS;
THENCE SOUTH 60[d]26' EAST ALONG SAID NORTHERLY BOUNDARY A DISTANCE OF 2.62
CHAINS TO THE NORTHEASTERLY CORNER OF SAID PARCEL; THENCE SOUTH 19[d]23' WEST
44.62 CHAINS; THENCE NORTH 87[d]22' WEST 21.084 CHAINS TO THE PLACE OF
BEGINNING.
SAVE AND EXCEPT, BEGINNING AT A POINT WHICH IS REACHED BY BEGINNING AT THE
SOUTHWEST CORNER OF THE XXXXXX XXXXXXXXXX DONATION LAND CLAIM IN TOWNSHIP 5
SOUTH, RANGE 1 WEST OF THE WILLAMETTE MERIDIAN, IN XXXXXX COUNTY, OREGON, AND
RUNNING THENCE NORTH 19[d]45' EAST 13.645 CHAINS; THENCE SOUTH 87[d]22' EAST
22.40 CHAINS; THENCE NORTH 19[d]45' EAST 45.80 CHAINS TO THE NORTHWEST CORNER OF
THAT CERTAIN TRACT DEEDED TO XXXXXXX XXX, XXXXXX XXX AND XXXX XXX, HIS WIFE, BY
DEED RECORDED AT PAGE 426, BOOK 162, RECORDS OF DEEDS FOR XXXXXX COUNTY, OREGON;
RUNNING THENCE ALONG THE WEST LINE OF ADDITIONAL LAND OF SAID ZAK BROTHERS, SAID
LAND BEING DESCRIBED IN DEED RECORDED AT PAGE 527, BOOK 162, RECORDS OF DEEDS
FOR XXXXXX COUNTY, OREGON, NORTHEASTERLY 184.7 FEET TO A POINT ON THE SOUTH LINE
OF THE SOUTHERN PACIFIC RAILROAD RIGHT-OF-WAY AND BEING THE BEGINNING POINT OF
THE HEREIN DESCRIBED TRACT; RUNNING THENCE ALONG SAID RAILROAD RIGHT-OF-WAY
BOUNDARY SOUTH 60[d]26' EAST 551.2 FEET, MORE OR LESS, TO THE NORTHEAST CORNER
OF THE ABOVE DESCRIBED ZAK LAND; THENCE ALONG THE EAST LINE OF SAID ZAK LAND
SOUTH 19[d]23' WEST 130.0 FEET; THENCE PARALLEL WITH THE SAID RAILROAD NORTH
60[d]26' WEST 130.0 FEET; THENCE NORTH 19[d] 23' EAST 119.9 FEET; THENCE ON A
LINE PARALLEL TO AND 10FEET FROM SAID RAILROAD RIGHT-OF-WAY BOUNDARY NORTH
60[d]26' WEST 421.2 FEET, MORE OR LESS, TO A POINT IN THE WEST LINE OF SAID
ADDITIONAL LAND OF ZAK BROTHERS, 10 FEET SOUTHWEST OF POINT OF BEGINNING; THENCE
NORTHEAST ALONG SAID WEST LINE OF ZAK BROTHERS ADDITIONAL PROPERTY, 10 FEET TO
POINT OF BEGINNING. SAVE AND EXCEPT, THE WESTERLY 25 FEET FOR A ROADWAY.
SITE 6, PARCEL 17
BEGINNING AT AN IRON PIPE ON THE NORTH LINE OF THE SOUTHERN PACIFIC RAILROAD
RIGHT-OF-WAY AT A POINT 93 LINKS NORTH 18[d]44' EAST FROM THE NORTH CORNER OF
THE LAST ABOVE MENTIONED TRACT; THENCE NORTH 18[d]44' EAST 2.96 CHAINS TO THE
CENTERLINE OF THE COUNTY ROAD; THENCE SOUTH 27[d]29' EAST ALONG THE CENTER OF
SAID ROAD 5.37 CHAINS TO AN IRON PIPE IN THE NORTH LINE OF THE SAID RAILROAD
RIGHT-OF-WAY; THENCE NORTH 60[d]26' WEST 3.95 CHAINS TO THE POINT OF BEGINNING.
SITE 6, PARCEL 18
BEGINNING AT A CAR SPRING ON THE NORTHERLY BOUNDARY LINE OF THAT TRACT OF LAND
DESCRIBED IN CONTRACT TO X. X. XXXXXXX AND X. X. XXXXXXX, RECORDED IN VOLUME
460, PAGE 90, DEED RECORDS FOR XXXXXX COUNTY, OREGON, SAID CAR SPRING MARKING
THE SOUTHEAST CORNER OF THAT TRACT OF LAND CONVEYED TO H. E. XXXXXXXXX AND X.
XXXXXXXXX, BY DEED RECORDED IN VOLUME 444, PAGE 672, DEED RECORDS FOR XXXXXX
COUNTY, OREGON, SAID CAR SPRING IS RECORDED AS BEARING NORTH 19[d]45' EAST
900.57 FEET AND SOUTH 87[d]22' EAST 2,130.7 FEET FROM THE SOUTHWEST CORNER OF
THE XXXXXX
XXXXXXXXXX DONATION LAND CLAIM XX. 00 XX XXXXXXXX 0 XXXXX, XXXXX 1 WEST OF THE
WILLAMETTE MERIDIAN IN XXXXXX COUNTY, OREGON; AND RUNNING THENCE FROM THE TRUE
POINT OF BEGINNING; SOUTH 88[d]04'10" EAST 2,865.86 FEET ALONG SAID NORTHERLY
BOUNDARY LINE OF SAID XXXXXXX TRACT TO A 1/2" IRON PIPE MARKING THE
NORTHEASTERLY CORNER OF SAID TRACT; THENCE SOUTH 12[d] WEST 874.70 FEET TO A TWO
INCH IRON PIPE MARKING THE SOUTHEASTERLY CORNER OF THAT TRACT OF LAND DESCRIBED
IN CONTRACT TO X. X. XXXXXXX AND X. X. XXXXXXX, RECORDED IN VOLUME 520, PAGE 84,
DEED RECORDS FOR XXXXXX COUNTY, OREGON; THENCE NORTH 88[d]02' WEST 1,042.05 FEET
ALONG THE SOUTHERLY BOUNDARY LINE OF SAID XXXXXXX TRACT TO A 1/2" IRON PIPE;
THENCE NORTH 01[d]55'50" EAST 840.83 FEET TO A 1/2" IRON PIPE ON A LINE PARALLEL
WITH AND A PERPENDICULAR DISTANCE OF 20.00 FEET, MEASURED SOUTHERLY FROM SAID
NORTHERLY BOUNDARY LINE OF SAID XXXXXXX TRACT DESCRIBED IN VOLUME 460, PAGE 90,
DEED RECORDS FOR XXXXXX COUNTY, OREGON; THENCE NORTH 88[d]04'10" WEST 1,697.06
FEET ALONG SAID LINE PARALLEL WITH SAID NORTHERLY BOUNDARY LINE TO A 1/2" IRON
PIPE; THENCE NORTH 08[d]03'24" EAST 20.31 FEET TO A 1/2" IRON PIPE ON THE SAID
NORTHERLY BOUNDARY LINE; THENCE SOUTH 88[d]04'10" EAST 22.66 FEET ALONG SAID
NORTHERLY BOUNDARY LINE TO THE POINT OF BEGINNING.
SITE 6, PARCEL 19
BEGINNING ON THE WESTERLY LINE AND 6.78 CHAINS NORTH 19[d]45' EAST FROM THE
SOUTHWEST CORNER OF THE XXXXXX XXXXXXXXXX DONATION LAND CLAIM XX. 00 XX XXXXXXXX
0 XXXXX, XXXXX 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX XX XXXXXX XXXXXX, XXXXXX;
THENCE NORTH 19[d]45' EAST 6.865 CHAINS ALONG THE WESTERLY LINE OF SAID
XXXXXXXXXX CLAIM; THENCE SOUTH 87[d]22' EAST 2,108.08 FEET TO THE NORTHWESTERLY
CORNER OF A TRACT OF LAND CONVEYED TO GENERAL FOODS CORPORATION, BY DEED
RECORDED IN VOLUME 640, PAGE 501, DEED RECORDS FOR XXXXXX COUNTY, OREGON; THENCE
SOUTH 08[d]03'24" WEST 20.31 FEET TO 1/2 INCH IRON PIPE; THENCE SOUTH
88[d]04'10" EAST 1,697.06 FEET TO A 1/2 INCH IRON PIPE; THENCE SOUTH 1[d]55'50"
WEST TO A POINT ON THE SOUTHERLY LINE OF A TRACT DESCRIBED IN AGREEMENT RECORDED
IN VOLUME 460, PAGE 90, DEED RECORDS OF XXXXXX COUNTY, OREGON; THENCE NORTH
87[d]14' WEST 3,918.00 FEET, MORE OR LESS, TO A POINT WHICH IS 10.00 FEET FROM
THE WESTERLY LINE OF SAID XXXXXXXXXX CLAIM, AS MEASURED PERPENDICULAR THERETO;
THENCE SOUTH 19[d]45' WEST 6.70 CHAINS TO A POINT ON THE SOUTHERLY LINE OF SAID
XXXXXXXXXX CLAIM, WHICH IS SOUTH 87[d]14' EAST 10.00 FEET FROM THE SOUTHWEST
CORNER THEREOF; THENCE NORTH 87[d]14' WEST 10.00 FEET FROM THE SOUTHWEST CORNER
OF SAID XXXXXXXXXX CLAIM; THENCE NORTH 19[d]45' EAST 6.78 CHAINS TO THE PLACE OF
BEGINNING.
SITE 6, PARCEL 20
BEGINNING AT THE SOUTHWEST CORNER OF THE DONATION LAND CLAIM OF XXXXXX
XXXXXXXXXX AND WIFE, IN TOWNSHIP 5 SOUTH, RANGE 1 WEST OF THE WILLAMETTE
MERIDIAN, IN SAID COUNTY AND STATE; THENCE NORTH 19[d]45' EAST 6.78 CHAINS ALONG
THE WEST LINE OF THE XXXXXX XXXXXXXXXX CLAIM; THENCE SOUTH 87[d]14' EAST 76.47
CHAINS TO THE EAST LINE OF SAID CLAIM; THENCE SOUTH 11[d]54' WEST 6.586 CHAINS
TO THE SOUTHEAST CORNER OF THE XXXXXX XXXXXXXXXX CLAIM; THENCE NORTH 87[d]14'
WEST 77.41 CHAINS ALONG THE SOUTH LINE OF THE SAID CLAIM TO THE PLACE OF
BEGINNING.
SAVE AND EXCEPT, THAT PORTION THEREOF INCLUDED IN DEED TO GENERAL FOODS
CORPORATION RECORDED DECEMBER 14, 1967 IN BOOK 000, XXXX 000, XXXX XXXXXXX,
XXXXXX XXXXXX, XXXXXX.
SITE 6 PARCEL 21: (PLANT 8)
ALL OF MORTGAGOR'S RIGHT, TITLE AND INTEREST IN AND TO THAT CERTAIN REAL
PROPERTY FACILITY LEASE BETWEEN PF ACQUISITION II, INC., (AS ASSIGNEE TO
AGRIPAC, INC.) AS LESSEE, AND GREENFIELD PARTNERS, LTD., AN OREGON LIMITED
PARTNERSHIP AS LESSOR, PURSUANT TO AN UNDATED LEASE RELATED TO THE REAL PROPERTY
MORE PARTICULARLY DESCRIBED BELOW:
IMPROVEMENTS ONLY ON THE FOLLOWING DESCRIBED PARCEL:
A PORTION OF THAT TRACT OF LAND CONVEYED TO AGRIPAC, INC., AN OREGON COOPERATIVE
CORPORATION BY WARRANTY DEED, RECORDED IN REEL 918, PAGE 000, XXXXXXXXX XXXXXXX,
XXXXXX XXXXXX, XXXXXX; SAID BEGINNING POINT OF THE FOLLOWING DESCRIBED PARCEL,
BEING AN IRON ROD WITH PLASTIC CAP MARKED LS 1362 AND LYING 3,589.65 FEET NORTH
16[d]59'26" WEST OF THE SOUTHEAST CORNER OF XXXX XXXXXXX DONATION LAND CLAIM XX.
00, XX XXXXXXXX 0 XXXXX, XXXXX 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX, XXXXXX XXXXXX,
XXXXXX; THENCE ALONG THE WESTERLY BOUNDARY OF SAID AGRIPAC TRACT THE FOLLOWING
COURSES: 86[d]53'16" WEST, 730.83 FEET TO THE EAST RIGHT XX XXX XX XXXXXXX XXX
00X; THENCE NORTH 31[d]35'00" EAST ALONG SAID RIGHT OF WAY, 72.98 FEET; THENCE
NORTH 86[d]53'16" EAST, 702.36 FEET TO AN IRON PIPE; THENCE NORTH 9[d]10'24"
EAST, 195.00 FEET; THENCE LEAVING SAID WESTERLY BOUNDARY, NORTH 30[d]12'00" WEST
391.00 FEET; THENCE SOUTH 86[d]37'53" EAST, 494.69 FEET; THENCE SOUTH
61[d]37'04" EAST, 591.66 FEET; THENCE SOUTH 28[d]22'56" WEST, 1,030.50 FEET;
THENCE NORTH 61[d]37'04" WEST 396.67 FEET; THENCE NORTH 85[d]47'24" WEST, 419.43
FEET TO THE POINT OF BEGINNING.
POLK COUNTY, OREGON
SITE 2, PARCEL 1
LOTS 1, 2 AND 0, XXXXX "X", XXXX XXXXX, XXXX XXXXXX, XXXXXX. SAVE AND EXCEPT A
STRIP OF LAND 25.0 FEET IN WIDTH EXTENDING EASTERLY AND WESTERLY ALONG THE SOUTH
LINE OF SAID LOTS 2 AND 3.
XXXX 0, XXXXXX 0
XXXXXXXXX XX THE SOUTHWEST CORNER OF XXX 0, XXXXX "X", XXXX XXXXX, XXXX XXXXXX,
XXXXXX; THENCE NORTHEASTERLY ALONG THE SOUTHERLY LINE OF SAID XXX 0 XXX XXX 0 XX
XXX XXXXXXXXX XXXXXX XX XXX 0 IN SAID ADDITION; THENCE NORTHWESTERLY ALONG THE
EASTERLY LINE OF SAID LOT 2 A DISTANCE OF 25.0 FEET; THENCE RUNNING SOUTHERLY
AND PARALLEL TO THE SOUTHERLY LINE OF LOTS 2 AND 3 TO A POINT ON THE WESTERLY
LINE OF LOT 3 WHICH POINT IS NORTHWESTERLY 25.0 FEET FROM THE POINT OF
BEGINNING; THENCE SOUTHEASTERLY ALONG THE WEST LINE OF SAID LOT 3 TO THE POINT
OF BEGINNING.
SITE 2, PARCEL 3
BEGINNING AT THE NORTHEAST CORNER OF LOT 4 IN BLOCK "D", WEST SALEM, POLK
COUNTY, OREGON; AND RUNNING THENCE SOUTH ALONG THE EAST LINE OF SAID LOT 4 TO
THE SOUTHEAST CORNER THEREOF; THENCE WESTERLY ALONG THE SOUTH BOUNDARY OF SAID
LOT 4, 34 FEET; THENCE NORTHERLY AND PARALLEL WITH THE EASTERLY LINE OF SAID LOT
4 TO THE NORTHERLY LINE THEREOF; THENCE EASTERLY ALONG THE NORTHERLY LINE OF
SAID LOT TO THE PLACE OF BEGINNING.
SITE 2, PARCEL 4
LOTS 17, 18 AND 00, XXXXX "X", XXXX XXXXX, XXXX XXXXXX, XXXXXX.
SITE 2, PARCEL 5
XXX 00, XXXXX "X", XXXX XXXXX, XXXX XXXXXX, XXXXXX.
SITE 2, PARCEL 6
XXXX 00 XXX 00 XX XXXXX "D", IN WEST SALEM, POLK COUNTY, OREGON, AS SHOWN BY THE
RECORDED PLAT OF SAID WEST SALEM, IN THE OFFICE OF THE RECORDER OF CONVEYANCES
FOR POLK COUNTY, STATE OF OREGON.
SITE 2, PARCEL 7
XXXX 00 XXX 00, XXXXX "X", XXXX XXXXX, XXXX XXXXXX, XXXXXX.
XXXX 0, XXXXXX 0
XXX 00, XXXXX "D", WEST SALEM, POLK COUNTY, OREGON, AS SHOWN BY THE RECORDED
PLAT OF SAID WEST SALEM, ON FILE AND OF RECORD IN THE OFFICE OF THE COUNTY
RECORDER FOR SAID POLK COUNTY, OREGON.
XXXX 0, XXXXXX 0
XXXXXXXXX XX THE XXXXXXXXX XXXXXX XX XXX 00, XXXXX "D", WEST SALEM, POLK COUNTY,
OREGON, ACCORDING TO THE DULY RECORDED PLAT NOW ON FILE AND OF RECORD IN THE
OFFICE OF THE RECORDER FOR SAID COUNTY AND STATE; THENCE EASTERLY ALONG THE
SOUTHERLY LINE OF SAID LOT, A DISTANCE OF 38.0 FEET; THENCE NORTHERLY TO A POINT
IN THE NORTH LINE OF SAID LOT, WHICH POINT IS 5.0 FEET DISTANT FROM THE
NORTHEAST CORNER OF SAID LOT; THENCE WESTERLY ALONG THE NORTH LINE OF SAID LOT A
DISTANCE OF 35.00 FEET TO THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTHERLY
ALONG THE WESTERLY LINE OF SAID LOT A DISTANCE OF 125.0 FEET TO THE PLACE OF
BEGINNING.
SITE 2, PARCEL 10
XXX 00, XXXXX "X", XXXX XXXXX, XXXX XXXXXX, XXXXXX. ALSO: BEGINNING AT A POINT
ON THE SOUTH LINE OF LOT 26, BLOCK "D", WEST SALEM, POLK COUNTY, OREGON, WHICH
IS 38 FEET EASTERLY FROM THE SOUTHWEST CORNER OF SAID LOT 26; THENCE NORTHERLY
TO A POINT IN THE NORTH LINE OF SAID LOT WHICH IS 5 FEET WESTERLY FROM THE
NORTHEAST CORNER OF SAID LOT; THENCE EASTERLY ALONG THE NORTH LINE OF SAID LOT,
5 FEET TO THE NORTHEAST CORNER; THENCE SOUTHERLY ALONG THE EAST LINE OF SAID
LOT, 125 FEET TO THE SOUTHEAST CORNER OF SAID LOT; THENCE WESTERLY ALONG THE
SOUTH LINE OF SAID LOT, 2 FEET TO THE PLACE OF BEGINNING.
SITE 2, PARCEL 11
XXX 00, XXXXX "X", XXXX XXXXX, XXXX XXXXXX, XXXXXX.
SITE 2, PARCEL 12
XXX 00, XXXXX "X", XXXX XXXXX, XXXX XXXXXX, XXXXXX.
XXXX 0, XXXXXX 00
XXX 00, XXXXX "D", WEST SALEM, POLK COUNTY, OREGON.
YAKIMA COUNTY, WASHINGTON
All of Mortgagor's right, title and interest in and to that certain real
property lease between PF Acquisition II, Inc., (as Assignee to Agripac, Inc.)
the Mortgagor, as Lessee, and The Freezer Group, L.L.C., as Lessor, pursuant to
a Lease dated July 22, 1996 related to the real property more particularly
described below:
PARCEL A
The East 50 feet of Xxxx 00 xxx 00, Xxxxx 00 xx Xxxxxxxxx, Xxxxxxxxxx, according
to the official plat thereof, recorded in Volume "B" of Plats, Page 6, Records
of Yakima County, Washington. Assessor's Property Tax Parcel/Account No.
230923-13459.
PARCEL B
All that portion of Block 15, Grandview, Washington, according to the official
plat thereof recorded in Volume "B" of Plats, Page 6, Records of Yakima County,
Washington, lying South of the Southerly right-of-way line of West 2nd Street,
as said street was conveyed to the City of Grandview by instrument recorded
under Auditor's File Number 1452522; TOGETHER WITH that portion of vacated
Warehouse Street, which, upon vacation, attached to said premises by operation
of law.
Assessor's Property Tax Parcel/Account No. 230923-21410.
PARCEL C
The North 16 feet of Xxx 0, XXX Xxxx 0, 0, 0, 0, 0, 0 and 8, AND Lot 9, except
the North 5 feet thereof, AND Lots 13, 14, 15, 16 and 17, all in Block 29 of
Grandview, Washington, according to the official plat thereof, recorded in
Volume "B" of Plats, Page 6, Records of Yakima County, Washington; TOGETHER WITH
that portion of vacated West "A" Street accruing thereto; AND TOGETHER WITH
those portions of vacated alley accruing thereof. Assessor's Property Tax
Parcel/Account No. 230923-13456.
PARCEL D
Xxxx 00, 00, 00, 00, 00 xxx 00, Xxxxx 28 of Grandview, Washington, according to
the official plat thereof, recorded in Volume "B" of Plats, Page 6, Records of
Yakima County, Washington; TOGETHER WITH that portion of vacated West "A" Street
and that portion of vacated Xxxx Xxxxx Xxxxxx accruing thereto, situated in
Yakima County, State of Washington. Assessor's Property Tax Parcel/Account No.
230923-13526.
WALLA WALLA COUNTY, WASHINGTON
PARCEL A
Block 1 of Xxxxxx'x Addition to the City of Walla Walla, according to the
official plat thereof recorded in Volume C of Plats at Page 44, Records of Walla
Walla County. ALSO, beginning at a point in the North line of Block 2 of said
Xxxxxx'x Addition to the City of Walla Walla, which point is 56 feet West,
measured along said North line, from the Northeast corner of said Block 2; and
running thence South, parallel to the East line of said Block 2, a distance
193.86 feet to a point in the South line of said Block 2; thence West along the
South line of said Block 2 a distance of 168.7 feet to the Southwest corner of
said Block 2; thence North along the West line of said Block 2 a distance of
193.86 feet to the Northwest corner of said Block 2; thence East along the North
line of said Block 2 a distance of 168.7 feet to the point of beginning.
Assessor's Property Tax Parcel/Account No. 36-07-19-51-0100.
PARCEL B
A piece or parcel of land situate in the Northwest Quarter of Section 19,
Township 7 North, Range 36 East of the Willamette Meridian, in Walla Walla
County, Washington, described as follows, to wit: Beginning at a point on the
North line of Dell Avenue in the City of Walla Walla, that is 726 feet distant
West of the point of intersection of said North line with the West line of
Thirteenth Avenue North in said city, said point also being 30 feet North of the
East and West centerline of said Section
19; thence Northerly and parallel with said West line of Thirteenth Avenue North
a distance of 650 feet; thence Westerly and parallel with the East and West
centerline of Section 19 a distance of 1,000 feet; thence Southerly parallel
with the West line of Thirteenth Avenue North a distance of 650 feet to a point
that is 30 feet distant North of said East and West centerline of Section 19;
thence Easterly parallel with said East and West centerline of Section 19 a
distance of 1,000 feet to the point of beginning. Assessor's Property Tax
Parcel/Account Nos. 36-07-19-24-0010 and 36-07-19-24-0011.
End of Legal Descriptions.
Return Address:
CoBANK, ACB
X.X. Xxx 0000
Xxxxxx, XX 00000
SUBORDINATE TERM LOAN MORTGAGE AND FIXTURE FILING
THIS MORTGAGE, made and entered into this 22nd day of February, 1999, by
PF ACQUISITION II, INC., whose address is 00 Xxxxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Mortgagor"), and COBANK,
ACB, a corporation organized and existing under the laws of the United States of
America, located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, X.X.
Xxx 0000 Xxxxxx, Xxxxxxxx 00000, as Administrative Agent for the Banks party to
the Loan Agreement referred to below (hereinafter referred to as "Mortgagee"),
W I T N E S S E T H:
This document is intended as a mortgage to secure performance of the covenants
and agreements herein contained and contained in the Loan Documents (as defined
in that certain Credit Agreement dated as of February 22, 1999 among Mortgagor,
the Banks party hereto, and CoBank, ACB, as Administrative Agent for such
Lenders (as the same may be amended, modified or supplemented from time to time,
the "Loan Agreement")), and to secure payment of the loans made by the Lenders
pursuant to the Loan Agreement in the aggregate sum of TWELVE MILLION AND NO/100
DOLLARS ($12,000,000.00) evidenced by a Subordinated Promissory Note in the
amount of $12,000,000.00 in favor of CoBank, ACB dated February 22, 1999
maturing on February 22, 2014, together with interest payable on the unpaid
balance thereof at the rate(s) specified in the foregoing promissory notes, and
any and all renewals or extensions thereof.
In consideration therefor and for value received by Mortgagor from Mortgagee,
Mortgagor does hereby mortgage, grant, bargain, sell and convey unto Mortgagee,
its successors and assigns, the following-described real property, situate in
the COUNTY OF XXXXXX, STATE OF OREGON:
XXXXXX COUNTY, OREGON
SITE 4, PARCEL 1:
Parcel 2 of PARTITION PLAT 96-98, filed for record on November 8, 1996 in Reel
1353, Page 00, Xxxxxxxxx xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx.
XXXX 0, XXXXXX 0
XXXXXXXXXXX XXXX LOAN MORTGAGE AND FIXTURE FILING Page 2
PF ACQUISITION II, INC.
Rochester, New York
Beginning at the Northwest corner of that certain tract of land deeded to Xxxxx
Xxxxx by Xxxxxx Xxxxxx and wife, which deed was recorded July 19, 1910 on Page
583, Book 114 of Deed Records of Xxxxxx County, Oregon; thence South 32[d]15'
West 22 feet; thence South 59[d]47' East 338.76 feet, more or less, to the East
boundary of Lot 3 of the North 1/2 of the Donation Land Claim of X. X. Xxxxxx
and wife; thence North 32[d]15' East along said line 22 feet to the South
boundary line of the Woodburn-Natron Branch of the Southern Pacific Railroad;
thence North 60[d]45' West 339 feet to the place of beginning, and being a part
of Lot 3, of the North 1/2 of the Donation Land Claim of X. X. Xxxxxx and wife
in Township 5 South, Range 1 West of the Willamette Meridian in Xxxxxx County,
Oregon.
SAVE AND EXCEPT, the land conveyed to the State of Oregon by Xxx-Xxxxx Company,
Inc., by deed recorded in Volume 216, Page 177, Deed Records of Xxxxxx County,
Oregon.
SAVE AND EXCEPT, that parcel of land situate in the X. X. Xxxxxx Donation Land
Claim in Section 17, Township 5 South, Range 1 West of the Willamette Meridian,
Xxxxxx County, Oregon, which is more particularly described as follows:
Beginning at an iron pipe on the Southwesterly right-of-way line of the Southern
Pacific Railroad, from whence the Southwest corner of Lot 4, of the Subdivision
of the North 1/2 of the X. X. Xxxxxx Donation Land Claim, bears South 32[d]30'
West 221.90 feet and South 60[d]45' East 96.90 feet and South 32[d]28' West
308.50 feet and South 59[d]26' East 35.76 feet and South 32[d]15' West 434.1
feet and running thence North 60[d]45' West 168.00 feet along the Southwesterly
right-of-way line of the Southern Pacific Railroad to a 3/4" iron pipe; thence
South 32[d]30' West 22.00 feet to a 3/4" iron pipe on the Southwesterly
right-of-way line of Pacific Highway U.S. 99E; thence South 60[d]45' East 168.00
feet, parallel to said railroad right-of-way; thence North 32[d]30' East 22 feet
to the point of beginning.
SITE 6, PARCEL 2
Beginning at an iron pin in the South line of the Southern Pacific Railroad
right-of-way 13.22 chains South 86[d]45' West and 14.12 chains South 32[d]6'
West from the most Easterly Northeast corner of the X. X. Xxxxxx Donation Land
Claim in Township 5 South, Range 1 West of the Willamette Meridian in Xxxxxx
County, Oregon; thence South 32[d]6" West, 6.74 chains to a stone in the
Southeast corner of Lot 4 of the X. X. Xxxxxx Subdivision; thence South 89[d]47'
West along the line dividing said claim in North and South halves, 14.44 chains
to an iron bolt; thence North 31[d]57' East, 13.82 chains to an iron bolt in the
South line of said right-of-way of the Southern Pacific Railroad Company; thence
South 60[d]58' East along said right-of-way, 12.26 chains to the point of
beginning, and situated in the North 1/2 of the X. X. Xxxxxx Donation Land Claim
in Township 5 South, Range 1 West of the Willamette Meridian in Xxxxxx County,
Oregon.
XXXX 0, XXXXXX 0
XXXXXXXXXXX XXXX LOAN MORTGAGE AND FIXTURE FILING Page 3
PF ACQUISITION II, INC.
Rochester, New York
Beginning on the division line, dividing the X. X. Xxxxxx Donation Land Claim
into North and South halves, at a point which is 13.20 chains South 86[d]45'
West and 20.92 chains South 32[d]15' West of the most Easterly Northeast corner
of the said X. X. Xxxxxx Donation Land Claim and running thence North 32[d]15'
East 435 feet to the South line of the Woodburn-Silverton Branch of the Southern
Pacific Railroad right-of-way; thence South 60[d]45' East along the South line
of said right-of-way 735.5 feet to its intersection with said division line;
thence West along said division line 920 feet to the place of beginning, and
being a part of Lot 5 of the North 1/2 of said Donation Land Claim, in Township
5 South, Range 0 Xxxx xx Xxxxxxxxxx Xxxxxxxx xx Xxxxxx Xxxxxx, Xxxxxx.
SITE 6, PARCEL 4
Beginning at a point on the South boundary line of the Southern Pacific Railroad
right-of-way which is 531.2 feet North 32[d]15' East of the Southeast corner of
a 4.103 acre tract of land formerly owned by N. F. Strain, said tract being a
part of Lot 3 of the North 2 of the Donation Land Claim of X. X. Xxxxxx and wife
in Township 5 South, Range 1 West of the Willamette Meridian in Xxxxxx County,
Oregon; thence South 32[d]15' West 22 feet; thence South 60[d]58' East parallel
with said right-of-way 1.424 chains; thence North 32[d]15' East 22 feet to the
South boundary line of said right-of-way; thence North 60[d]58' West along said
South boundary line 1.424 chains to the place of beginning, and being situated
in Donation Land Claim of X. X. Xxxxxx and wife in Township 5 South, Range 1
West of the Willamette Meridian in Xxxxxx County, Oregon.
SITE 6, PARCEL 5
Beginning at a point which is North 19[d]45' East 13.645 chains and South
87[d]22' East 32.284 chains and North 19[d]23' East 44.62 chains from the
Southwest corner of the Xxxxxx Xxxxxxxxxx Donation Land Claim in Township 5
South, Range 1 West of the Willamette Meridian, and running thence South
59[d]55' East along the South boundary line of the Southern Pacific Railroad
right-of-way 1.28 chains; thence South 19[d]23' West 3.54 chains; thence North
59[d]55' West 1.28 chains; thence North 19[d]23' East 3.54 chains to the place
of beginning, being situated in Xxxxxx County, Oregon.
SITE 6, PARCEL 6
Beginning at a point which is reached by beginning at the Southwest corner of
the Xxxxxx Xxxxxxxxxx Donation Land Claim in Township 5 South, Range 1 West of
the Willamette Meridian, in Xxxxxx County, Oregon, and running thence North
19[d]45' East 13.645 chains; thence South 87[d]22' East 22.40 chains; thence
North 19[d]45' East 45.80 chains to the Northwest corner of that certain tract
deeded to Xxxxxxx Xxx, Xxxxxx Xxx and Xxxx Xxx, his wife, by deed recorded at
Page 526, Book 162, Records of Deeds for Xxxxxx County, Oregon; running thence
along the West line of additional land of said Zak Brothers, said land being
described in deed recorded at Page 527, Book 162, Records of Deeds for Xxxxxx
County, Oregon, Northeasterly 184.7 feet to a point on the South line
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of the Southern Pacific Railroad right-of-way and being the beginning point of
the herein described tract; running thence along said railroad right-of-way
boundary South 60[d]26' East 551.2 feet, more or less, to the Northeast corner
of the above described Zak land; thence along the East line of said Zak land
South 19[d]23' West 130.0 feet; thence parallel with the said railroad North
60[d]26' West 130.0 feet; thence North 19[d]23' East 119.9 feet; thence on a
line parallel to and 10 feet from said railroad right-of-way boundary North
60[d]26' West 421.2 feet, more or less, to a point in the West line of said
additional land of Zak Brothers, 10 feet Southwest of point of beginning; thence
Northeast along said West line of Zak Brothers additional property, 10 feet to
point of beginning. SAVE AND EXCEPT, the Westerly 25 feet for a roadway.
SITE 6, PARCEL 7
Beginning at an iron pipe which marks the point of beginning of a tract of land
conveyed to Xxxxx XxXxxxx, by deed recorded in Volume 490, Page 3, Deed Records
of Xxxxxx County, Oregon, which point is 434.1 feet North 32[d]15' East from the
Southwest corner of Lot 4 of the subdivision of the North 1/2 of the X. X.
Xxxxxx Donation Land Claim in Township 5 South, Range 1 West of the Willamette
Meridian in Xxxxxx County, Oregon; and running thence North 59[d]26' West a
distance of 35.76 feet along the South line of said XxXxxxx tract to an iron
pipe at the Southwest corner thereof; thence North 32[d]28' East a distance of
308.50 feet along the West line of said tract and extended to an iron pipe;
thence North 60[d]45' West a distance of 74.90 feet to an iron pipe at an angle
point on the West line of said tract; thence North 32[d]30' East a distance of
199.90 feet along the said West line to the iron pipe at the Northwest corner
of said tract; thence South 60[d]45' East a distance of 202.98 feet along the
North line of said tract to the Northeast corner thereof; thence South 32[d]15'
West a distance of 508.60 feet along the West line of said tract to an iron
pipe; thence North 60[d]58' West a distance of 94.3 feet, more or less, to the
point of beginning.
SITE 6, PARCEL 8
Beginning on the East boundary of the X. X. Xxxxxx Donation Land Claim in
Township 5 South, Range 1 West of the Willamette Meridian in Xxxxxx County,
Oregon, at a point which is 25.95 chains North 19[d]40' East from the Southeast
corner thereof; thence West 2,641.16 feet to the Easterly line of the Pacific
Highway as same is located in the said Township and Range; thence North 32[d]31'
East along the Easterly line of the said Pacific Highway, 186.78 feet to the
line dividing the said Xxxxxx Donation Land Claim into North and South halves;
thence North 89[d]52' East along the line dividing the said claim into North and
South halves a distance of 2,598.02 feet to the Easterly line of said Xxxxxx
Donation Land Claim; thence South 19[d]20' West along the Easterly line of the
said claim 172.42 feet to the place of beginning.
SAVE AND EXCEPT, a strip of land 60.00 feet wide conveyed to Oregonian Railroad
Company Limited by deed recorded in Volume 26, Page 81, of Deed Records, Xxxxxx
County, Oregon.
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SAVE AND EXCEPT, that parcel of land situate in Section 17, Township 5 South,
Range 1 West of the Willamette Meridian, Xxxxxx county, Oregon, which is more
particularly described as follows: Beginning at the Southeast corner of that
tract of land conveyed to Terminal Ice and Cold Storage Company by deed recorded
in Volume 593, Page 395, Xxxxxx County Record of Deeds, said Southeast corner
being recorded as bearing South 19[d]22' West 1,283.53 feet from the most
Easterly Northeast corner of the Xxxxxxxx X. Xxxxxx Donation Land Claim Xx. 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 1 West of the Willamette Meridian, Xxxxxx County,
Oregon; and running thence from the true point of beginning; South 19[d]22' West
70 feet, more or less, along the Southwesterly extension of the Southeasterly
boundary line of said Terminal Ice and Cold Storage Company tract to the
Northwesterly right-of-way line of the Southern Pacific Railroad; thence North
60[d]57' West 139 feet, more or less, along said Northwesterly railroad
right-of-way line to the most Easterly Southwest corner of said Terminal Ice and
Cold Storage Company tract; thence South 89[d]45' East 144.54 feet along the
Southerly boundary line of said Terminal Ice and Cold Storage Company tract to
the point of beginning.
SITE 6, PARCEL 9
Beginning at a stone in the East line of the X. X. Xxxxxx Donation Land Claim in
Township 5 South, Range 1 West of the Willamette Meridian, Xxxxxx County,
Oregon, said stone being 646.61 feet North 19[d]38' East from the Southeast
corner of said claim; and running thence South 87[d]52' West 1,087.62 feet to a
stone; thence North 19[d]39' East 1,091.81 feet to an iron pipe; thence North
89[d]48' West 1,574.67 feet to a point in the Easterly right-of-way line of the
Pacific Highway; thence North 32[d]30' East 18.93 feet along said Easterly line,
to an iron pipe; thence South 89[d]48' East 2,640.76 feet to a stone in the East
line of said X. X. Xxxxxx Donation Land Claim; thence South 19[d]38' West
1,061.66 feet along said East line to the point of beginning.
SITE 6, PARCEL 10
Beginning at an iron pipe which is 2,092.52 feet South 87[d]49' West and 625.00
feet North 04[d]46' East and 1,028.01 feet North 10[d]05' East from the
Southeast corner of the X. X. Xxxxxx Donation Land Claim in Township 5 South,
Range 1 West of the Willamette Meridian, Xxxxxx County, Oregon; and running
thence North 89[d]48' West 247.23 feet to an iron pipe in the Easterly
right-of-way line of the Pacific Highway; thence South 32[d]30' West 206.88 feet
along said Easterly line to an iron pipe; thence South 82[d]26' East 322.67 feet
to an iron pipe; thence North 10[d]05' East 219.51 feet to the point of
beginning.
SITE 6, PARCEL 11
Beginning at a stone at the Southeast corner of the X. X. Xxxxxx Donation Land
Claim in Township 5 South, Range 1 West of the Willamette Meridian, Xxxxxx
County, Oregon; and running thence
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South 87[d]49' West along the South line of said claim 2,092.52 feet to a stone;
thence North 04[d]46' East 625.00 feet along the East line of that certain tract
of land described in Volume 449, Page 282, Xxxxxx County Deed Records to a stone
at the Northeast corner thereof; thence North 10[d]05' East 1,028.01 feet to an
iron pipe; thence North 89[d]48' West 247.23 feet to an iron pipe set in the
Easterly right-of-way line of the Pacific Highway; thence North 32[d]30' East
54.42 feet along said Easterly line to a point; thence South 89[d]48' East
1,574.67 feet to an iron pipe; thence South 19[d]39' West 1,091.81 feet to a
stone; thence North 87[d]52' East 1,087.62 feet to a stone in the East line of
said X. X. Xxxxxx Donation Land Claim; thence South 19[d]38' West 646.61 feet
along said East line to the point of beginning.
SAVE AND EXCEPT, a portion of that tract of land conveyed to Agripac, Inc., an
Oregon Cooperative Corporation by Warranty Deed, recorded in Reel 918, Page 000,
Xxxxxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx; said beginning point of the following
described parcel, being an iron rod with plastic cap marked LS 1362 and lying
3,589.65 feet North 16[d]59'26" West of the Southeast corner of Xxxx Xxxxxxx
Donation Land Claim No. 69 in Township 5 South, Range 0 Xxxx xx xxx Xxxxxxxxxx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx; thence along the Westerly boundary of said
Agripac tract the following courses: South 86[d]53'16" West 730.83 feet to the
East right-of-way of Pacific Highway 99E; thence North 31[d]35'00" East along
said right-of-way 72.98 feet; thence North 86[d]53'16" East 702.36 feet to an
iron pipe; thence North 9[d]10'24" East 195.00 feet; thence leaving said
Westerly boundary North 30[d]12'00" East 409.00 feet; thence North 0[d]34'00"
West 391.00 feet; thence South 86[d]37'53" East 494.69 feet; thence South
61[d]37'04" East 591.66 feet; thence South 28[d]22'56" West 1,030.50 feet;
thence North 61[d]37'04" West 396.67 feet; thence North 85[d]47'24" West 419.43
feet to the point of beginning.
SITE 6, PARCEL 12
That parcel of land situate in the X. X. Xxxxxx Donation Land Claim, Section 17,
Township 5 South, Range 1 West of the Willamette Meridian, Xxxxxx County,
Oregon, described in Volume 579, Page 486 of the Deed Records of Xxxxxx County,
Oregon, which is more particularly described as follows: Beginning at a 3/4"
iron pipe from whence the Southwest corner of Lot 4 of the subdivision of the
North 2 of X. X. Xxxxxx Donation Land Claim bears South 60[d]45' East 74.90
feet and South 32[d]28' West 308.50 feet and South 59[d]26' East 35.76 feet
and South 32[d]15' West 434.1 feet and running thence North 60[d]45' West 22
feet to an iron pipe; thence North 32[d]30' East 199.90 feet; thence South
60[d]45' East 22.00 feet; thence South 32[d]03' West 199.90 feet to the point
of beginning.
SITE 6, PARCEL 13
That tract of land situate in Sections 19 and 20, Township 5 South, Range 1 West
of the Willamette Meridian in Xxxxxx County, Oregon, which is more particularly
described as follows: Beginning at an iron bar on the Southerly boundary line of
that tract of land conveyed to General Foods
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Corporation by deed recorded in Volume 547, Page 833, Xxxxxx County Record of
Deeds, said iron bar being also the Northeasterly corner of that tract of land
conveyed to F and X Xxxxxxxxx by deed recorded in Volume 404, Page 152, Deed
Records for Xxxxxx County, Oregon, in Sections 19 and 20, Township 5 South,
Range 1 West of the Willamette Meridian, Xxxxxx County, Oregon, which bears
South 89[d]45' East 309.21 feet and North 31[d]59' East 3,330.55 feet and North
86[d]53' East 1,070.32 feet from the most Southerly Southwest corner of the Xxxx
Xxxxxxx Donation Land Claim No. 69, and running thence from the true point of
beginning; South 18[d]50' West 2,665.47 feet along the Easterly boundary line of
said Xxxxxxxxx tract to a 3/4" iron pipe; thence South 89[d]39'30" West 1,753.47
feet to a 3/4" iron pipe on the Westerly boundary of that tract of land conveyed
to F and X Xxxxxxxxx by deed recorded in Volume 465, Page 177, Deed Records for
Xxxxxx County, Oregon; thence North 31[d]59' East 2,917.55 feet along said
Westerly boundary and the Northeasterly extension thereof to a 3/4" iron pipe on
the Northerly boundary line of said Xxxxxxxxx tract recorded in Volume 404, Page
152, Deed Records for Xxxxxx County, Oregon; thence North 86[d]53' East 1,070.32
feet to the point of beginning.
SAVE AND EXCEPT, beginning at a point on the West line of that tract of land
conveyed to Xxxx Xxxxxxxxx by deed recorded in Volume 288, Page 341, Deed
Records for Xxxxxx County, Oregon, which is South 18[d]50'49" West 1,654.33 feet
and South 89[d]39'30" West 1,053.19 feet from the Northeast corner of the Xxxx
Xxxxxxx Donation Land Claim No. 69 in Township 5 South, Range 1 West of the
Willamette Meridian in Xxxxxx County, Oregon; thence South 18[d]49'55" West
1,064.46 feet; thence South 89[d]39'30" West 1,753.46 feet to an iron pipe in
the Southwest corner of that tract of land conveyed to General Foods Corporation
by deed recorded in Volume 625, Page 152, Deed Records for Xxxxxx County,
Oregon; thence North 31[d]59' East 1,189.80 feet along the West line of said
General Foods tract to a 5/8 iron rod; thence North 89[d]39'30" East 1,466.84
feet to the place of beginning.
SITE 6, PARCEL 14
Beginning at the Northeast corner of the Xxxx Xxxxxxx Land Claim No. 69 in
Township 5 South, Range 0 Xxxx xx xxx Xxxxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx,
Xxxxxx; thence South 18[d]50'49" West 1,654.33 feet along the East line of said
claim to 1 5/8" iron rod; thence South 89[d]39'30" West 1,053.19 feet to a point
in the West line of the Xxxx Xxxxxxxxx tract as described in Volume 288, Page
341, Deed Records for Xxxxxx County, Oregon; thence North 18[d]49'55" East
1,599.87 feet to an iron bar in the North line of said claim; thence North
86[d]55'04" East 1,072.71 feet to the place of beginning.
SITE 6, PARCEL 15
Beginning at an iron pipe in the West line of the Xxxxxx Xxxxxxxxxx Donation
Land Claim 13.645 chains from the Southwest corner of the same in Township 5
South, Range 1 West of the Willamette
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Meridian, in Xxxxxx County, Oregon; thence North 19[d]45' East along the West
line of said claim 45.40 chains to a stone; thence South 88[d]17' East 11.26
chains to the iron bar; thence South 19[d]45' West 45.60 chains to an iron bar;
thence North 87[d]23' West 11.20 chains to the point of beginning, being
situated in the Xxxxxx Xxxxxxxxxx Donation Land Claim in Township 5 South, Range
1 West of the Willamette Meridian in Xxxxxx County, Oregon.
SITE 6, PARCEL 16
Beginning at a point 13.645 chains North 19[d]45' East and 11.20 chains South
87[d]22' East from the Southwest corner of the Xxxxxx Xxxxxxxxxx Donation Land
Claim in Township 5 South, Range 1 West of the Willamette Meridian in Xxxxxx
County, Oregon; thence North 19[d]45' East 9.32 chains to an iron pipe; thence
South 87[d]22' East 5.615 chains to the Southwest corner of a tract of land
conveyed to Xxxxxx X. Xxxxxxxxx, et al, by deed recorded in Volume 455, Page
502, Deed Records for Xxxxxx County, Oregon; thence North 19[d]45' East 30.439
chains; thence South 70[d]15' East 5.346 chains; thence North 19[d]45' East
7.672 chains to an iron bar at the Northwest corner of the fourth tract of land
described in deed to Xxxxxx X. Xxxxxxxxx, et al, recorded in Volume 444, Page
672, Deed Records for Xxxxxx County, Oregon; thence South 88[d]17' East 1.09
chains to a stone at most Westerly Southwest corner of a tract of land deeded to
Xxxxxx Xxxxxx by Xxxxxxxxx Xxxxxx, et ux, by deed recorded in Volume 73, Page
450, Deed Records for Xxxxxx County, Oregon; thence North 18[d]44' East 2.80
chains to an iron pipe in the South line of the Southern Pacific Railroad
right-of-way; thence South 60[d]26' East 5.74 chains along said right-of-way to
the Northerly boundary of the first tract of land described in said deed to
Xxxxxx X. Xxxxxxxxx, et al, recorded in Volume 444, Page 672, Deed Records;
thence South 60[d]26' East along said Northerly boundary a distance of 2.62
chains to the Northeasterly corner of said parcel; thence South 19[d]23' West
44.62 chains; thence North 87[d]22' West 21.084 chains to the place of
beginning.
SAVE AND EXCEPT, beginning at a point which is reached by beginning at the
Southwest corner of the Xxxxxx Xxxxxxxxxx Donation Land Claim in Township 5
South, Range 1 West of the Willamette Meridian, in Xxxxxx County, Oregon, and
running thence North 19[d]45' East 13.645 chains; thence South 87[d]22' East
22.40 chains; thence North 19[d]45' East 45.80 chains to the Northwest corner of
that certain tract deeded to Xxxxxxx Xxx, Xxxxxx Xxx and Xxxx Xxx, his wife, by
deed recorded at Page 426, Book 162, Records of Deeds for Xxxxxx County, Oregon;
running thence along the West line of additional land of said Zak Brothers, said
land being described in deed recorded at Page 527, Book 162, Records of Deeds
for Xxxxxx County, Oregon, Northeasterly 184.7 feet to a point on the South line
of the Southern Pacific Railroad right-of-way and being the beginning point of
the herein described tract; running thence along said railroad right-of-way
boundary South 60[d]26' East 551.2 feet, more or less, to the Northeast corner
of the above described Zak land; thence along the East line of said Zak land
South 19[d]23' West 130.0 feet; thence parallel with the said railroad North
60[d]26' West 130.0 feet; thence North 19[d]23' East 119.9 feet; thence on a
line parallel to and 10feet from said railroad right-of-way boundary North
60[d]26' West 421.2 feet, more or less,
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to a point in the West line of said additional land of Zak Brothers, 10 feet
Southwest of point of beginning; thence Northeast along said West line of Zak
Brothers additional property, 10 feet to point of beginning. SAVE AND EXCEPT,
the Westerly 25 feet for a roadway.
SITE 6, PARCEL 17
Beginning at an iron pipe on the North line of the Southern Pacific Railroad
right-of-way at a point 93 links North 18[d]44' East from the North corner of
the last above mentioned tract; thence North 18[d]44' East 2.96 chains to the
centerline of the county road; thence South 27[d]29' East along the center of
said road 5.37 chains to an iron pipe in the North line of the said railroad
right-of-way; thence North 60[d]26' West 3.95 chains to the point of beginning.
SITE 6, PARCEL 18
Beginning at a car spring on the Northerly boundary line of that tract of land
described in contract to X. X. Xxxxxxx and X. X. Xxxxxxx, recorded in Volume
460, Page 90, Deed Records for Xxxxxx County, Oregon, said car spring marking
the Southeast corner of that tract of land conveyed to H. E. Xxxxxxxxx and X.
Xxxxxxxxx, by deed recorded in Volume 444, Page 672, Deed Records for Xxxxxx
County, Oregon, said car spring is recorded as bearing North 19[d]45' East
900.57 feet and South 87[d]22' East 2,130.7 feet from the Southwest corner of
the Xxxxxx Xxxxxxxxxx Donation Land Claim No. 54 in Township 5 South, Range 1
West of the Willamette Meridian in Xxxxxx County, Oregon; and running thence
from the true point of beginning; Xxxxx 00[x]00'00" Xxxx 2,865.86 feet along
said Northerly boundary line of said Xxxxxxx tract to a 1/2" iron pipe marking
the Northeasterly corner of said tract; thence South 12[d] West 874.70 feet to a
two inch iron pipe marking the Southeasterly corner of that tract of land
described in contract to X. X. Xxxxxxx and X. X. Xxxxxxx, recorded in Volume
520, Page 84, Deed Records for Xxxxxx County, Oregon; thence North 88[d]02' West
1,042.05 feet along the Southerly boundary line of said Xxxxxxx tract to a 1/2"
iron pipe; thence North 01[d]55'50" East 840.83 feet to a 1/2" iron pipe on a
line parallel with and a perpendicular distance of 20.00 feet, measured
Southerly from said Northerly boundary line of said Xxxxxxx tract described in
Volume 460, Page 90, Deed Records for Xxxxxx County, Oregon; thence North
88[d]04'10" West 1,697.06 feet along said line parallel with said Northerly
boundary line to a 1/2" iron pipe; thence North 08[d]03'24" East 20.31 feet to a
1/2" iron pipe on the said Northerly boundary line; thence Xxxxx 00[x]00'00"
Xxxx 22.66 feet along said Northerly boundary line to the point of beginning.
SITE 6, PARCEL 19
Beginning on the Westerly line and 6.78 chains North 19[d]45' East from the
Southwest corner of the Xxxxxx Xxxxxxxxxx Donation Land Claim No. 54 in Township
5 South, Range 1 West of the Willamette Meridian in Xxxxxx County, Oregon;
thence North 19[d]45' East 6.865 chains along the Westerly line of said
Xxxxxxxxxx Claim; thence South 87[d]22' East 2,108.08 feet to the Northwesterly
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corner of a tract of land conveyed to General Foods Corporation, by deed
recorded in Volume 640, Page 501, Deed Records for Xxxxxx County, Oregon; thence
South 08[d]03'24" West 20.31 feet to 1/2 inch iron pipe; thence South
88[d]04'10" East 1,697.06 feet to a 1/2 inch iron pipe; thence South 1[d]55'50"
West to a point on the Southerly line of a tract described in Agreement recorded
in Volume 460, Page 90, Deed Records of Xxxxxx County, Oregon; thence North
87[d]14' West 3,918.00 feet, more or less, to a point which is 10.00 feet from
the Westerly line of said Xxxxxxxxxx Claim, as measured perpendicular thereto;
thence South 19[d]45' West 6.70 chains to a point on the Southerly line of said
Xxxxxxxxxx Claim, which is South 87[d]14' East 10.00 feet from the Southwest
corner thereof; thence North 87[d]14' West 10.00 feet from the Southwest corner
of said Xxxxxxxxxx Claim; thence North 19[d]45' East 6.78 chains to the place of
beginning.
SITE 6, PARCEL 20
Beginning at the Southwest corner of the Donation Land Claim of Xxxxxx
Xxxxxxxxxx and wife, in Township 5 South, Range 1 West of the Willamette
Meridian, in said County and State; thence North 19[d]45' East 6.78 chains along
the West line of the Xxxxxx Xxxxxxxxxx claim; thence South 87[d]14' East 76.47
chains to the East line of said claim; thence South 11[d]54' West 6.586 chains
to the Southeast corner of the Xxxxxx Xxxxxxxxxx claim; thence North 87[d]14'
West 77.41 chains along the South line of the said claim to the place of
beginning.
SAVE AND EXCEPT, that portion thereof included in deed to General Foods
Corporation recorded December 14, 1967 in Book 000, Xxxx 000, Xxxx Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxxx.
SITE 6 PARCEL 21: (PLANT 8)
All of Mortgagor's right, title and interest in and to that certain real
property facility lease between PF Acquisition II, Inc., (as Assignee to
Agripac, Inc.) as Lessee, and Greenfield Partners, Ltd., an Oregon limited
partnership as Lessor, pursuant to an undated Lease related to the real property
more particularly described below:
IMPROVEMENTS ONLY on the following described parcel:
A portion of that tract of land conveyed to Agripac, Inc., an Oregon Cooperative
Corporation by Warranty Deed, recorded in Reel 918, Page 000, Xxxxxxxxx Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxxx; said beginning point of the following described parcel,
being an iron rod with plastic cap marked LS 1362 and lying 3,589.65 feet North
16[d]59'26" West of the Southeast corner of Xxxx Xxxxxxx Donation Land Claim Xx.
00, xx Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx xx xxx Xxxxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx,
Xxxxxx; thence along the westerly boundary of said Agripac tract the following
courses: 86[d]53'16" West, 730.83 feet to the east right xx xxx xx Xxxxxxx Xxx
00X; thence North 31[d]35'00" East along said right of way, 72.98 feet; thence
North 86[d]53'16" East, 702.36 feet to an iron pipe; thence North 9[d]10'24"
East, 195.00 feet; thence leaving said westerly boundary, North 30[d]12'00" West
391.00
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feet; thence South 86[d]37'53" East, 494.69 feet; thence South 61[d]37'04" East,
591.66 feet; thence South 28[d]22'56" West, 1,030.50 feet; thence North
61[d]37'04" West 396.67 feet; thence North 85[d]47'24" West, 419.43 feet to the
point of beginning.
SITE 6 PARCEL 22: All of Mortgagor's right, title and interest in and to that
certain real property lease dated February 1, 1999, between Agripac, Inc. and
assumed by PF Acquisition II, Inc., as Lessee, and Xxxxxx X. Xxxxxx, Trust as
Lessor, pursuant to an Lease related to the real property more particularly
described below and including all rights and benefits under that certain
Amendment to Permission to Utilize and Maintain Underground Water Lines dated
February 19, 1999, between Xxxxxx X. Xxxxxx, Trust and Agripac, Inc. and assumed
by PF Acquisition II, Inc.:
Tract One:
Beginning 22.965 chains North 19[d]45' East and 11.20 chains South 87[d]22' East
from the Southwest corner of the Xxxxxx Xxxxxxxxxx D.L.C. in Township 5 South
Range 1 West of the Willamette Meridian in Xxxxxx County, Oregon; thence North
19[d]45' East 36.28 chains to an iron bar; thence South 88[d]17' East 5.655
chains to a stone; thence South 19[d]45' West 36.38 chains to an iron pipe;
thence North 87[d]22' West 5.615 chains to the point of beginning in the
Xxxxxx Xxxxxxxxxx D.L.C. in Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxxxx Xxxxxx,
Xxxxxx.
Tract Two:
All that portion of the following described property lying South of the Southern
Pacific Railroad right of way as follows: Beginning at a stone in the Northwest
corner of the Donation Land Claim of Xxxxxx Xxxxxxxxxx and wife in Township 5
South, Range 0 Xxxx xx xxx Xxxxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx; thence
South 26[d]44' East 31.24 chains to an iron pipe in the center line of the
County Road; thence South 19[d]45' West 6.41 chains to the line between that
part of the wife's half of said Donation Land Claim set apart to Xxxxxx, Xxxxx
and Xxxxxxxxx X. Xxxxxxxxxx, and that part set apart to Honora and Xxxx
Xxxxxxxxxx; running thence North 88[d] West 23.61 chains; thence North
19 3/4[d] East 35.48 chains to the place of beginning.
Save and except that portion conveyed to the State Highway Commission by deed
recorded April 18, 1952 in Volume 288, Page 341, Deed Records of Xxxxxx County,
Oregon.
Together with the tenements, hereditaments and appurtenances now or hereafter
thereunto belonging or in anywise appertaining, and all the rents, issues and
profits arising or to arise therefrom, inclusive of all the estate, right,
title, interest and claim whatsoever, at law or in equity, which Mortgagor now
has or may hereafter acquire in or to the described real property and each and
every part and parcel thereof, inclusive of all structures, improvements,
appurtenances, fixtures, easements, rights and privileges now owned or hereafter
acquired, erected on, or used in connection with the above-
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described real property, all of which are hereby declared to be appurtenant to
the land; all waters and water rights of every kind and description and however
evidenced, and all ditches or other conduits, rights therein and rights of way
therefor, which now are or hereafter may be appurtenant to said premises or any
part thereof, or used in connection therewith; all structures, improvements and
fixtures now or hereafter acquired and placed, located, installed in, or used on
or about any premises owned, leased or operated by Mortgagor, including without
limitation the described premises, and after-acquired title to any of the
described real property resulting from purchase or the exercise of an option to
purchase, and to any streets or other public roadways abutting the described
real property resulting from any vacation by operation of law or conveyance, all
of which shall be deemed and construed as part of the realty. All property
subject to this Mortgage is hereinafter referred to as "the mortgaged premises."
TO HAVE AND TO HOLD the mortgaged premises unto Mortgagee, its successors and
assigns.
IT IS HEREBY AGREED that all covenants and stipulations in these presents
contained shall bind the successors and assigns of Mortgagor and shall inure to
the benefit of the successors and assigns of Mortgagee.
Mortgagor covenants and agrees:
1. At the time of the execution and delivery of this Mortgage, Mortgagor is well
seized of the mortgaged premises in fee simple (except as to the leasehold
interests referenced in Site 6, Parcel 21 and Site 6 Parcel 22), has good right
and authority to mortgage the same as herein provided, and the mortgaged
premises are free and clear of liens and encumbrances other than liens permitted
pursuant to the Loan Agreement.
2. Mortgagor will pay, when due, the indebtedness hereby secured in accordance
with the terms thereof.
3. Mortgagor will pay all taxes, assessments, water and other charges for
utility services that may be levied, assessed or charged upon or against the
mortgaged premises, or any part thereof, before the same become past due
according to law, and will promptly pay and satisfy any mechanic's lien or other
encumbrances that might by operation of law or otherwise become a lien upon the
mortgaged premises whether or not superior to the lien of this Mortgage, all
premiums upon insurance policies on the mortgaged property, all licenses or fees
legally owing by it, all rentals or other charges for the use of any leased
ground or premises upon which any of the mortgaged premises may be located, all
taxes or assessments which now are or which may hereafter be levied or assessed
and which are or are to become a lien upon the mortgaged premises and property,
or any part thereof, or upon this Mortgage or the debt secured thereby, or upon
the interest payable thereon, and amounts for investment in bank stock as may be
required. In case of default in payment of any
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of the foregoing, Mortgagee, its successors or assigns, may at its option pay
said insurance premiums, or reinsure the mortgaged premises and pay all premiums
therefor, and pay licenses, fees, rentals, charges, taxes and/or assessments due
or claimed to be due under any legislative power or authority or under any valid
contract; and any amounts so paid by Mortgagee, and any amount required for
investment in bank stock as aforesaid shall become part of the principle debt;
and amounts so paid by Mortgagee shall bear interest from the date of payment.
4. Mortgagor (i) will keep all improvements erected on the mortgaged premises in
good order and repair, (ii) will not permit waste of the mortgaged premises to
do or suffer anything to be done to depreciate or impair the value of the
mortgaged premises during the life of this Mortgage, (iii) will not make any
changes in or alterations to the improvements on the mortgaged premises which
will materially decrease the value of the same, and (iv) will not remove or
permit to be removed any improvements from the mortgaged premises, without the
prior written consent of Mortgagee.
5. Mortgagor will keep the building improvements now erected, or which may
hereafter be erected, on the mortgaged premises insured against loss or damage
by fire with extended coverage endorsement, written by a responsible insurance
company or insurance companies satisfactory to Mortgagee in an amount
satisfactory to Mortgagee, naming Mortgagor and Mortgagee insured parties as
their interests may appear, and will cause to be executed and attached to all
policies of insurance issued thereon a clause in form satisfactory to Mortgagee,
making loss payable to Mortgagee as its interests may appear, said policy or
policies of insurance to be delivered to Mortgagee. Any insurance funds paid to
Mortgagee as a result of damage or loss to the mortgaged premises covered may at
the option of Mortgagee be released to Mortgagor to be expended in the repair,
restoration, or replacement of the mortgaged premises so damaged or lost, or be
retained by Mortgagee and be applied toward the payment of all or such of the
items of indebtedness secured hereby as Mortgagee may elect. Mortgagor hereby
appoints Mortgagee agent to collect all amounts payable under said policies to
Mortgagor, and such amounts received after the costs of collection shall be
applied to the payment of the principal sum and interest thereon, and other sums
secured hereby.
6. Mortgagor further makes the following representations, warranties, and
covenants, all of which are subject to any exceptions that Mortgagor may have
previously disclosed in writing to Mortgagee, and which, to the extent that they
deal with representations of fact, are based on Mortgagor's present knowledge,
arrived at after reasonable inquiry.
USE OF PROPERTY AND FACILITIES.
(1) Mortgagor will (a) use, handle, transport or store Hazardous
Material as defined under any Environmental Law or (b) store or treat
nonhazardous wastes (i) in a good and prudent manner in the ordinary course of
business, and (ii) in compliance with all applicable
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Environmental Laws.
(2) Mortgagor will not conduct or allow to be conducted, in violation
of any Environmental Law, any business, operations or activity on the property,
or employ or use the property to generate, use, handle, manufacture, treat,
store, process, transport or dispose of any Hazardous Materials, or any other
substance which is prohibited, controlled or regulated under applicable law, or
which poses a threat or nuisance to public safety, health or the environment or
cause, or allow to be caused, a known or suspected release of Hazardous
Materials, on, under or from the property.
(3) Mortgagor will not do or permit any act or thing, business or
operation, that poses an unreasonable risk of harm, or impairs, or may impair,
the value of the property, or any part thereof.
(b) CONDITION OF PROPERTY.
(1) Mortgagor shall take all appropriate response action, including
any removal and remedial action, in the event of a release, emission, discharge
or disposal of Hazardous Materials in, on, under or about the property, so as to
remain in compliance with Environmental Law as hereinafter defined.
(2) Underground tanks, xxxxx (except domestic water xxxxx), septic
tanks, ponds, pits, or any other storage tanks (whether currently in use or
abandoned) on the property, if any, are maintained in compliance with applicable
Environmental Law.
(c) NOTICE OF ENVIRONMENTAL PROBLEM OR LITIGATION. Neither Mortgagor nor
any of its tenants have given, nor were they required to give, nor have they
received, any notice, letter, citation, order, warning, complaint, inquiry,
claim or demand that: (1) Mortgagor and/or any tenants have violated, or are
about to violate, any Environmental Law, judgment or order; (2) there has been a
release, or there is a threat of release, of Hazardous Materials from the
property; (3) Mortgagor and/or tenants may be or are liable, in whole or in
part, for the costs of cleaning up, remediating, removing or responding to a
release or threatened release of Hazardous Materials; (4) the property is
subject to a lien in favor of any governmental entity or any liability, costs or
damages, under any Environmental Law arising from or costs incurred by such
governmental entity in response to a release or a threatened release of a
Hazardous Material. Mortgagor further represents and warrants that no conditions
currently exist or are currently reasonably foreseeable, that would subject
Mortgagor to any such investigation, litigation, administrative enforcement or
any damages, penalties, injunctive relief, or cleanup costs under any
Environmental Law. In the event of such notice, Mortgagor and any tenants shall
immediately provide a copy to the Mortgagee.
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(d) RIGHT OF INSPECTION. Mortgagor hereby grants, and will cause any
tenants to grant, to Mortgagee, its agents, attorneys, employees, consultants,
contractors, successors and assigns, an irrevocable license and authorization,
upon reasonable notice, to enter upon and inspect the property and facilities
thereon, and perform such tests, including without limitation, subsurface
testing, soils and groundwater testing, and other tests which may physically
invade the property thereon, as the Mortgagee, in its sole discretion,
determines are necessary to protect its security interest, provided however,
that under no circumstances shall the Mortgagee be obligated to perform such
inspections or tests.
(e) INDEMNITY. Mortgagor agrees to indemnify and hold Mortgagee, and each
lender under the Loan Agreement, their directors, employees, agents, and their
successors and assigns, harmless from and against any and all claims, losses,
damages, liabilities, fines, penalties, charges, judgments, administrative
orders, remedial action requirements, enforcement actions of any kind, and all
costs and expenses incurred in connection therewith (including, but not limited
to, attorney's fees and expenses) arising directly or indirectly, in whole or in
part, out of any failure of Mortgagor to comply with the environmental
representations, warranties and covenants contained herein.
(f) CONTINUATION OF REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES.
Mortgagor's representations, warranties, covenants and indemnities contained
herein shall survive the occurrence of any event whatsoever, including without
limitation, the satisfaction of the promissory note(s) secured hereby, the
reconveyance or foreclosure of this mortgage, the acceptance by Mortgagee of a
deed in lieu of foreclosure, or any transfer or abandonment of the property.
(g) CORRECTIVE ACTION. In the event the Mortgagor is in breach of any of
its representations, warranties or agreements as set forth above, Mortgagor at
its sole expense, shall take all action required, including environmental
cleanup of the property, to comply with the representations, warranties, and
covenants herein or applicable legal requirements and, in any event, shall take
all action deemed necessary under all applicable Environmental Laws.
(h) HAZARDOUS MATERIALS DEFINED. The term "Hazardous Materials" shall mean
dangerous, toxic, or hazardous pollutants, contaminants, chemicals, wastes,
materials or substances, as defined in or governed by the provisions of any
Environmental Law.
(i) ENVIRONMENTAL LAW DEFINED. The term "Environmental Law" shall mean any
federal, state or local law, statute, ordinance, rule, regulation,
administrative order and permit now in effect or hereinafter enacted, pertaining
to the public health, safety, industrial hygiene, or the environmental
conditions on, under or about the property.
7. Should Mortgagor fail to pay any taxes, assessments, fire insurance premiums
or other charges payable by Mortgagor hereunder, before the same shall be past
due, Mortgagee may, at its
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option, make payment thereof, and the amounts so paid with interest thereon at
the rate then payable on indebtedness secured hereby shall be added to and
become a part of the debt secured by this Mortgage and shall be repaid to
Mortgagee forthwith, without waiver of any right arising from breach of any of
the covenants, and for such payments with interest the mortgaged premises as
well as Mortgagor shall be bound to the same extent as bound for the payment of
the indebtedness herein specifically described. Should Mortgagee make such
payment or payments at it option as set forth in the foregoing sentence, such
act shall not constitute a waiver by Mortgagee of any other rights it may have
arising from Mortgagor's failure as aforesaid, including but not limited to
Mortgagee's rights under paragraph 8 of this Mortgage.
8. Mortgagor hereby assigns and transfers unto Mortgagee the issues and profits,
together with full power and authority to demand, xxx for and collect the same
in the name of Mortgagor, or in its own name, and to take possession of and
manage the mortgaged premises or to cause a receiver to be appointed for such
purpose and apply the income therefrom, after the costs of collection and
management, to the reduction of the indebtedness secured hereby; provided,
however, that the right to collection and management shall not apply as long as
this Mortgage is in good standing.
9. Each of the following shall constitute a default under this Mortgage, and if
any of the following shall occur, the entire unpaid balance of principal and
accrued interest secured by this Mortgage shall become immediately due and
payable at the option of Mortgagee and foreclosure proceedings may be commenced
forthwith:
The occurrence of any Event of Default under the Loan Agreement;
Failure of Mortgagor to perform or observe all the provisions of this
Mortgage;
(c) Loss or destruction of or substantial damage to a material portion of
the mortgaged premises; or
(d) Sale or other transfer of the mortgaged premises or any part thereof
without the prior written consent of Mortgagee.
The failure of Mortgagee to exercise the option given hereunder shall not be
taken or deemed a waiver of its right to exercise such option as to any such
past or subsequent violation of any of said covenants or stipulations.
10. In the event suit or action is begun to foreclose this Mortgage, Mortgagor
will pay in addition to the costs and disbursements allowed by law such sum as
the court may adjudge reasonable attorney fees in such suit or action, or any
appeal therefrom, and such sum as the court may adjudge reasonable for the
necessary examination and search of the public records respecting the title to
the
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mortgaged premises, and the plaintiff in such suit or action may take judgment
therein for such sums. Mortgagor will pay to Mortgagee all sums, including
costs, expenses and reasonable agent and attorney fees, which Mortgagee or the
lenders under the Loan Agreement may expend or become obligated for in any
proceedings, legal or otherwise, involving the title to the mortgaged premises,
or to establish, protect or sustain the lien of this Mortgage, or its priority,
or in defending against liens, claims, rights, estates, easements, or
restrictions, or for evidences of title to the mortgaged premises, or for
expenses and attorney fees incurred; together, always, with interest on all sums
at the rate then payable on the indebtedness secured hereby; and for payment of
said sums and interest this Mortgage shall stand as security in like manner and
effect as for payment of said debt.
11. If the mortgaged premises, or any part thereof, be condemned under any power
of eminent domain or acquired for public use, the damages, proceeds, and the
consideration for such acquisition, to the extent of the full amount of the
indebtedness secured by this Mortgage, including any expenses and attorney fees
incurred by Mortgagee or the lenders under the Loan Agreement on account of such
condemnation, are hereby assigned by Mortgagor to Mortgagee and shall be paid
forthwith to Mortgagee to be applied by it to the payment of such expenses and
attorney fees and any balance on account of the last maturing portion of the
indebtedness secured hereby.
As further security for the payment of all indebtedness herein mentioned,
all Mortgagor's rents and profits from the mortgaged premises and the right,
title and interest of Mortgagor in and under all leases now or hereafter
affecting the mortgaged premises, are hereby assigned and transferred to
Mortgagee. So long as no default shall have occurred under this Mortgage,
Mortgagor may collect assigned rents and profits as the same fall due, but upon
the occurrence of any default hereunder, or at such later time as Mortgagee in
its sole discretion may fix by written notice, all right of Mortgagor to collect
or receive rents or profits shall wholly terminate. No lease of the whole or any
part of the mortgaged premises involving an initial term of more than three
years shall be modified or terminated without the written consent of Mortgagee,
nor shall the surrender of any such lease be accepted nor any rental thereunder
be collected for more than two months in advance without like written consent.
In the event of any default hereunder and the exercise by Mortgagee of its
rights hereby granted, Mortgagor agrees that payments made by tenants or
occupants to Mortgagee shall, as to such tenants, be considered as though made
to Mortgagor and in discharge of tenants' obligations as such to Mortgagor.
Nothing herein contained shall be construed as obliging Mortgagee to perform any
of Mortgagor's covenants under any lease or rental agreement. Mortgagor shall
execute and deliver to Mortgagee upon demand any further or supplemental
assignments necessary to effectuate the intentions of this paragraph and upon
failure of Mortgagor so to comply, Mortgagee may, in addition to any other right
or remedy it has, declare the entire unpaid balance of principal and interest
secured by this Mortgage immediately due and payable.
The word "Mortgagor" and the language of this instrument shall, where there
is more than one mortgagor, be construed as plural and be binding jointly and
severally upon all mortgagors and
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the word "Mortgagee" shall apply to any holder of this Mortgage. All of the
covenants of Mortgagor shall be binding upon its successors and assigns and
inure to the benefit of the successors and assigns of Mortgagee. In the event of
the transfer of the mortgaged premises or any part thereof or any interest
therein, whether voluntary or involuntary or by operation of law, Mortgagee may,
without notice to Mortgagor or any one else, once or often, extend the time of
payment or grant renewals of indebtedness hereby secured for any term, execute
releases or partial releases from the lien of this Mortgage or in any other
respect modify the terms hereof without thereby affecting the personal primary
liability of Mortgagor for the payment of the indebtedness hereby secured. No
condition of this Mortgage shall be deemed waived unless the same be expressly
waived in writing by Mortgagee. Whenever any notice, demand, or request is
required by the terms hereof or by any law now in existence or hereafter
enacted, such notice, demand or request shall be sufficient if enclosed in a
postpaid envelope addressed to Mortgagor at the last address actually furnished
to Mortgagee or at the mortgaged premises and deposited in any post office,
station or letter box.
Mortgagor will, at all times during the existence of any part of the lien
herein provided for, maintain its corporate existence and operate its business
as a cooperative association qualified under the Farm Credit Act of 1971 and any
amendment thereto, and under applicable statutes of the state.
This Mortgage, without affecting its validity as a real estate mortgage, is
also executed and shall be construed as a "Security Agreement" under the Uniform
Commercial Code granting to Mortgagee a security interest in all personal
property mentioned herein, and in addition to the rights and remedies provided
herein, Mortgagee shall have all the rights and remedies granted by such Uniform
Commercial Code; and reasonable notice, when notice is required, shall be ten
(10) days.
16. (a)(1) Notwithstanding the other provisions of this Mortgage and the terms
or provisions of any agreement or arrangement which any of the Junior Parties
(as defined below) or any of the Senior Parties (as defined below) may now or
hereafter have with Mortgagor or each other, or any rule of law, and
irrespective of the time, order or method of attachment or perfection of any
security interest or the recordation or other filing in any public record of any
financing statement, any security interest in the Senior Collateral (as defined
below) granted to Senior Mortgagee (as defined below) by Mortgagor, whether or
not perfected, or any other right, title or interest in the Senior Collateral
now or hereafter held by Senior Mortgagee (as defined below), are and shall
remain senior to any security interest therein now or hereafter granted by
Mortgagor or other person to Mortgagee.
(2) For purposes of this Mortgage, the following terms shall have the
meanings respectively set forth after each:
(i) "Junior Parties" shall mean Mortgagee and the Lenders
party to the Loan Agreement.
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(ii) "Senior Collateral" shall mean "the mortgaged
premises" as defined in that certain Mortgage dated as of February 22, 1999 by
Mortgagor in favor of Senior Mortgagee concerning (i) the Senior Indebtedness
and (ii) certain real property located in the County of Xxxxxx, State of Oregon.
(iii) "Senior Indebtedness" shall have the meaning assigned
to such term in the Notes (as defined in the Loan Agreement).
(iv) "Senior Loan Agreement" shall mean that certain
Credit Agreement dated as of February 22, 1999 among Mortgagor, the Banks party
thereto and CoBank, ACB, as Administrative Agent for such Banks.
(v) "Senior Mortgagee" shall mean CoBank, ACB, as
Administrative Agent for the Banks party to the Senior Loan Agreement.
(vi) "Senior Parties" shall mean Senior Mortgagee and the
Banks party to the Senior Loan Agreement.
(b) Notwithstanding anything to the contrary contained in this
Mortgage, Mortgagee agrees as follows:
(1) Mortgagee shall have no right to take any action with respect
to the Senior Collateral, whether by judicial or non-judicial foreclosure,
notification to Mortgagor's account debtors, the seeking of the appointment of a
receiver for any portion of Mortgagor's assets, or otherwise, unless and until
all Senior Indebtedness has been fully and indefeasibly paid in cash or
otherwise satisfied in full.
(2) Any proceeds of the Senior Collateral, or proceeds thereof
(whether or not identifiable), received by Mortgagee shall be paid to Senior
Mortgagee on demand.
(3) In the event Senior Mortgagee elects to exercise its remedies
in connection with the Senior Collateral, Senior Mortgagee may apply the Senior
Collateral, or foreclose upon, sell, dispose of, realize upon, or assert or
enforce any right, claim, demand, action or cause of action whatsoever that
Senior Mortgagee may have in respect of the Senior Collateral, in any manner, at
any time and for any consideration deemed appropriate by Senior Mortgagee.
Senior Mortgagee shall have no obligation to dispose of the Senior Collateral in
any manner, at any time, or for any consideration that enhances or preserves the
value thereof for Mortgagee. Mortgagee waives any claim or cause of action
against Senior Mortgagee with respect to any application of, foreclosure upon,
sale or disposition of the Senior Collateral.
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(4) If Mortgagee obtains any payment or other assets in violation
of this Mortgage, Mortgagee agrees that it shall hold all such payments and
other assets in trust for Senior Mortgagee, and shall immediately pay, deliver
and assign to Senior Mortgagee any such payments and assets for application to
the Senior Indebtedness in such order and manner as Senior Mortgagee shall
determine.
17. Notwithstanding anything to the contrary in this Mortgage, Mortgagor's
delivery to Senior Mortgagee of any item required to be delivered to Mortgagee
hereunder shall satisfy the delivery requirement of this Mortgage, and such
items shall be deemed to be held by Senior Mortgagee for the benefit of
Mortgagee, provided, however, that the provisions of this Section 17 shall not
apply in the event that CoBank, ACB ceases to be the sole lender to Mortgagor
under either the Loan Agreement or the Senior Loan Agreement, in which case the
lenders to Mortgagor under the Loan Agreement and the lenders to Mortgagor under
the Senior Loan Agreement shall enter into an intercreditor agreement in form
and substance satisfactory to such lenders concerning, inter alia, the matters
set forth in this Section 17.
18. This Mortgage shall also be construed as a fixture filing under ORS 79.4020
as to all fixtures included in the mortgaged premises.
As used in this Mortgage, the word "transfer" means every mode, direct or
indirect, absolute or conditional, voluntary or involuntary, of disposing of or
parting with property or with an interest in property, including, but not
limited to, as sale, lease, gift, granting an encumbrance or security interest,
allowing a lien to attach, and foreclosure and the transfer of control or
ownership of an entity that owns or controls property.
After a default by Mortgagor in the payment of the indebtedness hereby secured
(the "secured debt") or in the payment of taxes, assessments, or insurance
premiums and if required in writing by Mortgagee, Mortgagor thereafter will
deposit with Mortgagee a monthly reserve for the annual payment of taxes,
assessments, and insurance premiums. The reserve payment will be made at the
same time as the monthly payment of interest and principal and each monthly
payment will be in an amount that will be sufficient to accumulate a reserve
that is sufficient to pay taxes, assessments, and insurance premiums when such
payments are due. The failure to make reserve payments when due will be an event
of default under this Mortgage.
Unless Mortgagor provides Mortgagee with evidence of the insurance coverage that
is required by this Mortgage, Mortgagee may purchase such insurance to protect
Mortgagee's interest. Such insurance may, but need not, also protect Mortgagor's
interest. If the mortgaged premises become damaged, the insurance purchased by
the Mortgagee may not pay any claim Mortgagor may make or any claim made against
Mortgagor. Mortgagor will be solely responsible for the cost of the insurance
purchased by Mortgagee and Mortgagee may add such cost to the secured debt
without
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any prior request for reimbursement of such amount. When added to the secured
debt, interest will accrue and be payable thereon. The effective date of
coverage may be the date when Mortgagor's coverage lapsed or Mortgagor fails to
provide proof of coverage. The cost of the insurance purchased by Mortgagee may
be considerably more expensive than the insurance coverage that Mortgagor can
obtain and such insurance coverage may not satisfy any need for property damage
coverage or any mandatory liability insurance requirements imposed by applicable
law. Mortgagor may require Mortgagee to cancel Mortgagee's insurance by
providing evidence that Mortgagor has obtained the required insurance coverage
elsewhere. Mortgagee has no duty to Mortgagor, a guarantor, or anyone else to
obtain insurance coverage if Mortgagor fails to do so. It is agreed that the
risk of an uninsured loss is allocated to Mortgagor and such loss will not
reduce or otherwise affect Mortgagor's liability for payment of the entire
secured debt.
Under Oregon law, most agreements, promises and commitments made by a financial
institution concerning loans and other credit extensions which are not for
personal, family or household purposes or secured solely by the Debtor's
principal residence must be in writing, for express consideration and be signed
by the financial institution to be enforceable.
IN WITNESS WHEREOF, this Mortgage is executed by Mortgagor as of the day and
year shown below but shall be effective as of the day and year first above
written.
PF ACQUISITION II, INC.
By:............................................
Its:...........................................
Date:..........................................
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STATE OF _________________________ )
:ss.
COUNTY OF ________________________ )
I DO HEREBY CERTIFY, That on this ___ day of ____________, 19____, before me,
the undersigned, a Notary Public in and for said county and state, duly
commissioned and sworn, personally appeared ____________ _, to me known to be
the ________________of the corporation that executed the within and foregoing
instrument and acknowledged the said instrument to be the free and voluntary act
and deed of said corporation for the uses and purposes therein mentioned and
that said person is authorized to execute the said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
(SEAL) .........................................................................
.......................................... Notary Public in and for the State of
.................................................................... Residing at
........................................................ My Appointment expires:
