Exhibit 10.109
Security Agreement 11079 ST (Revised 6/93) Page: 1
Security Agreement
Filing Ref.: Pocono Village Farms, L.P., J. Xxxxx Xxxx and Xxxxxx F
Creditor: First Pioneer Farm Credit, ACA
Printed: 03/06/1997 09:23:57 AM
Office At: Xxxxxxx, XX
0. Security Interest
Pocono Village Farms, L.P. residing in the town of East Brunswick, county of
Middlesex, State of New Jersey, whose mailing address is c/o Agro Power
Development, Inc., 00 Xxxxx Xxxxx, Xxxx Xxxxxxxxx, XX ("Debtor", whether one or
more), for value received, hereby grants to First Pioneer Farm Credit, ACA a
Federally chartered instrumentality of the United States under the Farm Credit
Act of 1971 as amended, having its place of business and mailing address at 0
Xxxxxx Xxxx 000, Xxxxxxx, XX, 00000 "Secured Party", a continuing security
interest in all Debtor's or any of their property of the following description
wherever located, including such property located at:
1) The farm of about 59 acres occupied and operated by Debtor on (Street
& No.) in the Town of Xxxxx Xxxxxx, Xxxxxx xx Xxxxxxxxxxxxxx, Xxxxx xx
Xxxxxxxxxxxx the record title to which is in the name of : Pocono
Village Farms, L.P.
1. All equipment of the Debtor, whether now owned or hereafter acquired,
including, without limitation, glass and plastic greenhouses, planting machines,
freezers, irrigation equipment, racks, trays and supplies, heaters, tillage and
harvesting tools, furniture and office equipment, computers, printers,
communications equipment, materials and supplies, machinery, trade and
production equipment, fixtures, and all other goods used by the Debtor which do
not constitute inventory and farm products.
2. As to all of the foregoing, cash proceeds, non-cash proceeds and products
thereof, additions and accessions thereto, replacements and substitutions
therefor, and all related books, records, journals, computer print-outs and
data, of the Debtor.
Also, all such property which is hereafter acquired by Debtor or any of them,
including but not limited to, all natural increase, substitutions, replacements,
accessions and additions. No security interest shall attach to after-acquired
consumer goods other than accessions unless the Debtor acquires rights in them
within ten (10) days after Secured Party makes advances to Debtor or any of them
or otherwise gives value. Also, all proceeds and products thereof, including
insurance proceeds (the "Collateral"). It is understood that the use of the
terms "proceeds," "substitutions," "replacements," "accessions," and "additions"
does not give the Debtor or any of them authority, express or implied, to sell
or otherwise dispose of the Collateral, unless Debtor is hereafter specifically
authorized to do so. The within grant of a security interest is in addition to
and supplemental of any security interest previously or herewith granted by the
Debtor or any of them to the Secured Party.
2. Obligations Secured
The security interest granted herein shall secure payment and performance of all
now existing and future obligations and indebtedness of Debtor or any of them to
Secured Party of every kind
Security Agreement 11079 ST (Revised 6/93) Page: 2
Security Agreement
Filing Ref.: Pocono Village Farms, L.P., J. Xxxxx Xxxx and Xxxxxx F
Creditor: First Pioneer Farm Credit, ACA
Printed: 03/06/1997 09:23:57 AM
Office At: Lebanon, NJ
and description, direct or indirect, absolute or contingent, matured or
unmatured, whether arising hereunder or under any other agreement, guaranty,
document or instrument or by operation of law, or acquired by Secured Party from
others (including without limitation all principal, interest, fees, charges,
expenses and attorneys' fees) (all hereinafter called "Obligations").
3. Warranties and Covenants
Debtor warrants and agrees that:
A) Debtor will pay and perform all of the Obligations according to their
terms.
B) Debtor will use the proceeds of loan(s) secured hereby solely for the
purposes stated in the application(s) therefor.
C) To the extent that any of the Collateral is purchased with the proceeds of
any loan or advance secured hereby, Debtor hereby authorizes Secured Party
at its option to disburse such proceeds to the seller of such Collateral.
D) All of the Collateral is owned by Debtor or any of them free and clear of
all liens, security interests and encumbrances and Debtor or any of them
has the right to give a security interest in the Collateral and will
forever defend the title thereto against all persons whomsoever.
E) Debtor or any of them will insure all of the Collateral to the extent
required by Secured Party, and such policies shall be payable to Secured
Party as its interest may appear, under endorsements providing for at least
ten (10) days prior written notice of cancellation to Secured Party and
that Secured Party's coverage shall not be affected by any act or neglect
of the Debtor or any of them. Debtor will deposit such policies with
Secured Party. Secured Party may act for Debtor or any of them in
negotiating and settling insurance claims and in endorsing any drafts.
F) Debtor or any of them will not use the Collateral or permit it to be used
in violation of any applicable law, regulation or policy of insurance.
G) Debtor or any of them will insure, repair, maintain, preserve, cultivate,
harvest, store, feed and husband the Collateral and will satisfy any liens,
security interests and encumbrances on any of the Collateral and if Debtor
fails to do any of the foregoing, Secured Party may do so at its option,
either on or off the premises, but at Debtor's expense and without waiving
Debtor's default. All expenses incurred by Secured Party shall be payable
on demand, shall bear interest at the highest rate on any Obligations
secured hereby and shall be secured by the security interest herein.
H) Without the prior written consent of Secured Party, (1) Debtor will not
sell, lease, transfer, assign or otherwise dispose of any of the
Collateral, nor permit any liens, security interests or encumbrances to
attach to any of the Collateral, except in favor of Secured Party; and (2)
Neither Debtor or any of them will remove any of the Collateral or books
and records pertaining thereto from the location(s) specified in Section
(1) above.
I) Secured Party or its agents may examine and inspect the Collateral at all
reasonable times and may examine and make copies of books and records
pertaining thereto.
J) If the Collateral includes Accounts, Debtor agrees that at any time Secured
Party may verify the Accounts and/or notify account debtors to make
payments directly to Secured
Security Agreement 11079 ST (Revised 6/93) Page: 3
Security Agreement
Filing Ref.: Pocono Village Farms, L.P., J. Xxxxx Xxxx and Xxxxxx F
Creditor: First Pioneer Farm Credit, ACA
Printed: 03/06/1997 09:23:57 AM
Office At: Lebanon, NJ
Part. Debtor will assist in such verifications and will give such notices
to account debtors if Secured Party requests. Secured Party may litigate,
compromise, extend, renew or otherwise deal with the Accounts and may
endorse Debtor's name on account payments received by Secured Party.
K) Debtor will immediately advise Secured Party in writing of any change in
Debtor's names or addresses, discontinuance or opening of any place of
business, change in chief executive office, or change in partnership or
corporate status or identity.
L) Debtor or any of them will take such action and will execute Uniform
Commercial Code financing statements, motor vehicle lien certificates, and
any other documents required by Secured Party to perfect the security
interest granted herein or to effectuate the purposes of this Agreement.
Debtor authorizes Secured Party to act for Debtor or any of them (1) in
executing Uniform Commercial Code amendments except when additional
Collateral is taken and (2) in signing any document of title covering
Collateral.
M) At Secured Party's request, Debtor agrees to provide an attested current
balance sheet and income statement annually and at such other additional
times as Secured Party may request in connection with the loan.
N) At the Secured Party's request, Debtor or any of them agrees to furnish a
list (organized by commodity or species of livestock) of the buyers,
commission merchants, or selling agents to or through whom Debtor may sell
any of the farm products described herein. When requested to provide such
list, Debtor or any of them shall notify the Secured Party in writing of
any new buyers, commission merchants or selling agents purchasing or
marketing Debtor's farm products at least seven (7) days before any such
sale.
O) Debtor grants to Secured Party permission to disclose the existence of its
security interest to any buyer, commission merchant or selling agent of
farm products that Secured Party deems appropriate. Debtor authorizes
Secured Party to take such actions and execute on Debtor's or any of them
behalf such documents, including but not limited to effective financing
statements, as may be necessary to preserve Secured Party's lien on
proceeds from the sale of all farm products described herein.
4. Events of Default
All Obligations shall become immediately due and payable, at Secured Party's
option, upon the occurrence of any of the following events of default:
A) Debtor or any of them fails to pay when due any indebtedness to Secured
Party or to pay or perform any other Obligation when due.
B) Breach by Debtor or any of them of any warranty or covenant herein or in
any other agreement, document or instrument between Debtor and Secured
Party.
C) Any warranty or representation made or to be made by any Debtor is
materially false.
D) Default by Debtor or any of them in payment when due of any indebtedness
now or hereafter owed for moneys borrowed from anyone other than Secured
Party.
E) Occurrence of any of the following with respect to any Debtor or any
co-maker or guarantor of any of the Obligations; death, insolvency,
business cessation, dissolution, calling of a meeting of creditors,
appointment of a receiver for any property, assignment for the benefit of
creditors, voluntary or involuntary commencement of any proceeding
Security Agreement 11079 ST (Revised 6/93) Page: 4
Security Agreement
Filing Ref.: Pocono Village Farms, L.P., J. Xxxxx Xxxx and Xxxxxx F
Creditor: First Pioneer Farm Credit, ACA
Printed: 03/06/1997 09:23:57 AM
Office At: Lebanon, NJ
under any bankruptcy or insolvency law, entry of a court order which
enjoins or restrains the conduct of business in the ordinary course,
failure to pay any federal, state or local tax unless same is being
contested in good faith.
F) Secured Party at any time deems itself reasonable insecure or any of the
Collateral unsafe.
5. Remedies
Upon the occurrence of any such event of default and at any time thereafter,
Secured Party shall have all rights and remedies provide by law, including those
of a Secured Party under the Uniform Commercial Code, in addition to the rights
and remedies provided herein or in any other agreement between Debtor and
Secured Party. Secured Party may peaceably by its own means or with judicial
assistance enter Debtor's or any of their premises and take possession of and
remove the Collateral therefrom, and Debtor or any of them shall not resist or
interfere with such action. Secured Party may require Debtor or any of them to
assemble the Collateral and make it available to Secured Party at a place to be
designated by Secured Party which is reasonably convenient to both parties. If
notice to Debtor of intended disposition of any Collateral is required by law,
five (5) days notice shall constitute reasonable notification. All Secured
Party's rights and remedies shall be cumulative and none are exclusive. Debtor
or any of them agrees to pay all costs and expenses, including reasonable
attorneys' fees, incurred by Secured Party in a suit or other legal proceeding
for collection or enforcement of this Security Agreement or the Obligations
secured hereby, and/or in any legal proceeding to protect or sustain the
security interest created hereby, and/or in any other controversy, including
bankruptcy, arising from or connected with the Obligations or this Agreement,
and/or incurred in repossessing, holding, preparing for sale or other
disposition and in selling or otherwise disposing of any Collateral, which costs
and expenses shall be payable on demand, shall bear interest at the highest rate
on any Obligation secured hereby and shall be secured by the security interest
herein.
6. Miscellaneous
A) Any failure or delay by Secured Party to require strict performance by
Debtor or any of them of any of the provisions herein or in any other
document, shall not affect Secured Party's right to demand strict
performance therewith, and any waiver of any default shall not constitute
waiver of any other default or of the same default on a future occasion.
Any provision herein or in any other document may be waived only by an
instrument in writing, signed by an officer of Secured Party and directed
to any Debtor specifying such waiver, and not by any course of dealing,
trade custom or knowledge of Secured Party.
B) The security interest hereunder shall remain in effect despite any interim
period during which no Obligations are outstanding until termination
statements and satisfactions with respect thereto are filed under the
Uniform Commercial Code and any other lien statutes.
C) Nothing in this Agreement shall affect Secured Party's right to demand
payment at any time of any demand note or other indebtedness payable on
demand made or owing by Debtor to Secured Party.
Security Agreement 11079 ST (Revised 6/93) Page: 5
Security Agreement
Filing Ref.: Pocono Village Farms, L.P., J. Xxxxx Xxxx and Xxxxxx F
Creditor: First Pioneer Farm Credit, ACA
Printed: 03/06/1997 09:23:57 AM
Office At: Lebanon, NJ
D) Any notice under this Agreement shall be addressed to the parties at their
respective addresses set forth in Section 1 above.
E) Each of the undersigned, including guarantors, sureties, endorsers or
co-makers, consents and agrees without further notice to any of them and
without affecting the liability of any of them, that: (1) performance of
any Obligations by any party may be waived, extended or accelerated by
Secured Party; (2) any of the Obligations may be settled, compromised or
released; (3) any credit arrangement may be renewed, extended or
reamortized in whole or in part; (4) future loans may be made; (5) any
Collateral may be exchanged, surrendered, released or otherwise dealt with
as Secured Party may determine; (6) any party may be totally or partially
released of liability; and (7) any defenses that may be available if
Secured Party fails to perfect any security interest in Collateral are
waived.
F) In the event that any provision hereof shall be deemed to be invalid by any
court, such invalidity shall not affect the remainder of this Agreement.
G) Any security interest heretofore granted by Debtor or any of them to
Secured Party in any Collateral described herein shall remain in full force
and effect.
H) The Obligations of all Debtors or any of them hereunder, if more than one,
are joint and several and this Security Agreement shall be binding upon and
for the benefit of the parties hereto and their respective heirs,
administrators, successors and assigns.
IN WITNESS WHEREOF, the Debtor has executed and delivered this Agreement on
March 10, 1997.
Signature(s)
Pocono Village Farms, L.P.
By:___________________________________________
J. Xxxxx Xxxx, Vice President
Pocono Village Farms, L.P.
By:___________________________________________
Xxxxxx X. Xxxxxxxx, Vice President
Pocono Village Farms, L.P., a
Delaware Limited Partnership
by:
COGENTREX OF POCONO, INC.,
General Partner
By:___________________________________________
Xxxxxx X. Xxxxxxxx, Vice President-
Finance of Cogentrix of Pocono, Inc.
Security Agreement 11079 ST (Revised 6/93) Page: 6
Security Agreement
Filing Ref.: Pocono Village Farms, L.P., J. Xxxxx Xxxx and Xxxxxx F
Creditor: First Pioneer Farm Credit, ACA
Printed: 03/06/1997 09:23:57 AM
Office At: Lebanon, NJ
VILLAGE FARMS OF DELAWARE, L.L.C.,
General Partner, by Agro Power Development, Inc.,
Managing Member of Village Farms of
Delaware, L.L.C.
By:___________________________________________
J. Xxxxx Xxxx, Senior Vice President of
Agro Power Development, Inc.
