AGREEMENT NOT TO EXECUTE
------------------------
This Agreement Not to Execute ("Agreement") is made this 19th day of
February, 1999, by and between SYSCO FOOD SERVICES OF PORTLAND, INC., a Delaware
corporation ("Sysco") and OREGON BAKING COMPANY dba XXXXXX BAKING an Oregon
corporation ("Marsee").
RECITALS
--------
A) Sysco and Marsee entered into an initial application for credit ("Credit
Agreement") under which Xxxxxx [sic], as Purchaser, and Sysco, as Seller, agreed
to the purchase and sale of certain goods and services. A copy of the Credit
Agreement is attached hereto as Exhibit "A".
B) Pursuant to the Credit Agreement, Marsee was to make regular payments
for the goods and services purchased from Sysco. Marsee has failed to make all
timely payments when due and is now indebted to Sysco.
C) Sysco has asserted a claim for the amount due under the Credit Agreement
and the parties to this Agreement wish to resolve Sysco's claim by entering this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein, the
parties agree as follows:
AGREEMENT
---------
1. Marsee shall pay to Sysco the principal amount of TWO HUNDRED FIFTY
THOUSAND FORTY FOUR AND 64/100 DOLLARS ($250,044.64), plus interest
from November 1, 1998, on the principal amount at the rate of ten
percent (10%) per annum. Payments shall be received by Sysco not later
than the first day of each calendar month. Monthly payments shall be
interest only from November through June, 1999. On June 30, 1999,
Marsee shall pay the entire remaining unpaid balance including all
principal and interest. If Marsee does not timely make any payment
described herein, the entire then current unpaid balance, including
all principal and interest, shall be immediately due and owing and
interest on the unpaid balance shall bear interest at fifteen percent
(15%) per annum until paid in full.
2. Marsee agrees to meet all of the terms and conditions of the attached
Exhibit A Credit Agreement on all future purchases.
3. Contemporaneously with execution of this Agreement, Marsee shall
execute the ORCP 73B Statement by Defendant in the form attached to
this Agreement as Exhibit "B".
4. In the event that Marsee fails to make any payment required herein
when due, Sysco may, after three days prior written notice of payment
default, immediately pursue any and all of its legal and equitable
remedies including but not limited to filing the Confession of
Judgment attached hereto as Exhibit "C" and ORCP 73B Statement by
Defendant with the appropriate court without further notice if Marsee
has not completely cured the payment default within three days of
delivery of the default notice from Sysco. Upon the filing of the
Confession of Judgment, Sysco shall provide Marsee a partial
satisfaction of judgment in an amount equal to payments made by
Marsee, if any, pursuant to Section 1 of this Agreement. Payment is
effective upon receipt by Sysco at: Sysco Food Services of Portland,
Inc., X.X. Xxx 000, Xxxxxxxxxxx, Xxxxxx 00000.
5. In the event of any or suit or action is brought to enforce or
interpret this Agreement or otherwise with respect to the subject
matter of this Agreement, including without limitation any proceeding
brought under the United States Bankruptcy Code, the prevailing party
shall be entitled to recover from the other party reasonable attorney
fees and other costs incurred by the prevailing party in such suit or
action as determined by the trial court or on any appeal therefrom as
affixed by the appellate court.
6. The undersigned declares and represents that Marsee fully understands
the terms of this Agreement and voluntarily accepts the consideration
recited above.
7. This document contains the entire agreement and understanding between
the parties. The terms of this Agreement are contractual and not a
mere recital.
8. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future law, (1) such provision
shall be fully severable, (2) this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had
never comprised a part hereof, (3) the remaining provisions of this
Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom and (4) in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part
of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be
legally possible.
9. The undersigned states and warrants that he/she has carefully read
this Agreement, knows the contents thereof, and has signed the same as
his/her own free act.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of Oregon and venue for any dispute shall be
Multnomah County, Oregon.
OREGON BAKING COMPANY dba
XXXXXX BAKING, an Oregon corporation
By:/S/Xxxxxx Xxxxxxxxxx
----------------------------
Its: Executive VP
----------------------------
SYSCO FOOD SERVICES OF PORTLAND,
INC., a Delaware corporation
By: /s/Xxxx Xxxxx
----------------------------
Its: VP/CFO
----------------------------
NEW ACCOUNT FORM
EXHIBIT A
S OREGON BAKING CO. B SAME
---------------------------- ---------------------------
H BUSINESS NAME I ADDRESS
I XXXXXX BAKING L
---------------------------- ---------------------------
P (DBA) TRADE NAME L CITY, STATE, ZIP
1323 NW 23RD
---------------------------- ---------------------------
T ADDRESS T PHONE NO. (AREA CODE)
O XXXXXXXX, XX 00000 O
---------------------------- ---------------------------
CITY, STATE, ZIP ATTENTION OF
*BUSINESS FACTS
*/ /Proprietorship / /Partnership /X/Corporation OR / /Franchise of
---- ---------
Under State of
New Owner? / /Yes Purchase Date / /No Length of time in Business
------- ------
Yrs
Bldg/Facilities: / /Owned /X/Leased / /Rented
Mortgage/Holder (Name)
----------------------------------------------------------
Lessor/Rentor (Name)
------------------------------------------------------------
Equipment / /Owned / /Leased / /Lessor Name
*Complete the following information for all Corporate Officers, Partners, or an
Individual Proprietor/Spouse.
Xxxxxx Xxxxxxxxx, President Xxxxxx Xxxxxxxxxx, V.P.
--------------------------- ---------------------------
Name and Title Name and Title
0000 XX 000xx 0000 XX 66th
--------------------------- ---------------------------
HOME ADDRESS HOME ADDRESS
Portland 97229 Portland 97225
--------------------------- ---------------------------
XXXX, XXXXX, XXX XXXX, XXXXX, ZIP
000 000 0000 292 7980
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HOME PHONE NO. HOME PHONE NO.
000 00 0000 563 70 4453
--------------------------- ---------------------------
SOCIAL SECURITY NO. SOCIAL SECURITY NO.
GENERAL INFORMATION:
Type of Business:
/ /Restaurant/Fine Dining / /Fast Foods / /Family / /Institutional
/ /Hotel/Motel Seating Capacity 13 / /Hospital / /Nursing Home
--
Number of Beds / /Other
-- --------------------------
Number of Employees 5
----------------
Estimated Monthly Sales Volume 30,000 - 50,000
---------------
ACCOUNTS RECEIVABLE INFORMATION:
Accounts Payable Contact Xxxxxx Title Retail Mgr
----------- -----------------
Accounts Payable Phone Number 000 0000
-----------------------------
Is a statement required to be mailed to the customer each month? /X/Yes / /No
Purchase order number required? / /Yes /X/No
BANKING
1st Interstate Daidre Bilyev
--------------------------- ---------------------------
Bank Name Officer
NW 22nd & Xxxxxxx 123 557 005990 0 15,000
--------------------------- -------------------- ---------
ADDRESS (CHECKING) ACCOUNT NO. BALANCE
Portland 97210
--------------------------- -------------------- ---------
CITY, STATE, ZIP (LOAN) ACCOUNT NO. BALANCE
TRADE REFERENCES: (Preferably other food distributors)
NAME ADDRESS PHONE NO.
118 Xxxxx
1. Bakery Equipment Service Richmond, CA 000-000-0000
--------------------------------- ------------------------ ------------
2. Mountanos Bros So S.F., CA
--------------------------------- ------------------------ ------------
3. Xxx Xxxxxxxxxxxx, gen. contractor 789-4551
--------------------------------- ------------------------ ------------
4. Xxxx Xxxxxx, Designer 294-7090
--------------------------------- ------------------------ ------------
TERMS AGREEMENT
The undersigned ("Purchaser") agrees that all purchases made by Purchaser from
Sysco Corporation or any of its subsidiaries and affiliated entities ("Seller")
are subject to the following terms and conditions.
1. Payment Terms - All amounts due for goods and services purchased from
Seller are payable at the Seller's distribution facility from which the
goods and services are delivered. Purchaser acknowledges that such amounts
are not payable in installments, but are payable in full as stated herein.
2. Service Charges - All amounts due Seller are payable in accordance with the
payment terms granted by Seller's credit department from which the goods
and services are delivered. If any amount due Seller is not paid in
accordance with such payment terms, a delinquency charge shall be added to
the sum due, which charge shall equal the amount obtained by multiplying
the delinquent balance by the lesser of (a) one and one-half percent (1 1/2
%) per month or (b) the maximum lawful rate permitted to be charged under
the applicable state's law.
3. NSF Charges - Purchaser shall pay Seller a service charge in an amount
equal to the greater of $10.00 or %5 of the check balance for all checks
returned by Purchaser's bank; provided, however, that such service charge
shall not be due and payable in the event such payment would result in the
violation of the usuary laws of the applicable jurisdiction.
4. Attorney Fees - In the event the account is turned over to an attorney or
other agency for collection, or suit is brought on same, or the same is
collected through any judicial proceeding whatsoever, Purchaser shall pay
all reasonable attorneys' fees and court costs incurred by Seller.
5. Credit Investigation - Release - Purchaser warrants to Seller that all
financial information furnished for the purpose of obtaining credit is
true, correct and complete in all material respects. Purchaser authorizes
the release of information furnished for the purpose of obtaining credit;
Purchaser authorizes Seller to investigate all references furnished
pertaining to the credit and financial responsibility of Purchaser; and
Purchaser releases Seller and all credit references from any and all claims
of damage resulting or alleged to result from Seller's credit
investigation.
6. Control Change - Purchaser shall notify Seller by first class and certified
mail or any change of ownership of Purchaser, if Purchaser is incorporated,
the surviving corporation of a merger, share exchange, asset sale, or any
other control change shall have all of the liabilities of Purchaser.
Purchaser
12/25/92 /s/ Xxxxxx Xxxxxxxxxx
------------------------------ ---------------------------------
Date (Type or Print Name of Purchaser)
/s/ Illegible By:
------------------------------ ------------------------------
Sales Representative of Seller Printed name:
--------------------
Title:
---------------------------
Date:
----------------------------
INDIVIDUAL PERSONAL GUARANTY
I, XXXXXX XXXXXXXXXX, for an in consideration of your extending credit at
my request to XXXXXX BAKING (the "Company"), personally guarantee prompt payment
of any obligation of the Company to Sysco Corporation and each of its
subsidiaries and affiliated entities ("Seller"), whether now existing or
hereinafter incurred, and I further agree to bind myself to pay on demand any
sum which is due by the Company to Seller whenever the Company fails to pay
same. It is understood that this guaranty shall be an absolute, continuing and
irrevocable guaranty for such indebtedness of the Company.
I expressly waive presentment, demand, protest, notice of protest,
dishonor, diligence, notice of default or nonpayment, notice of acceptance of
this guaranty, notice of the extending of any guarantied indebtedness already or
hereafter contracted for by the Company, notice of any modification or renewal
of any credit agreement evidencing the indebtedness hereby guarantied, notice of
any renewal or extension of such indebtedness, and I expressly consent to any
modification or renewal of any credit agreement evidencing the indebtedness
hereby guarantied and to all renewals or extension of such indebtedness. I
further waive any right to require Seller to proceed against, or make any effort
at collection of the guarantied indebtedness from, the Company or any other
party liable for such indebtedness.
If the guarantied indebtedness is not paid by me when due, and this
guaranty is placed in the hands of an attorney for collection, or suit is
brought hereon, or it is enforced through any judicial proceeding whatsoever, I
shall pay all reasonable attorneys' fees and court costs incurred by Seller.
In the event more than one party executes this Guaranty as a guarantor,
then each guarantor agrees to be jointly and severally liable for the guarantied
indebtedness, and, in all instances herein, the singular shall be construed to
include the plural.
X /s/ Xxxxxx Xxxxxxxxxx X
------------------------ ---------------------------
Guarantor Guarantor
Print: Xxxxxx Xxxxxxxxxx Print:
------------------ ---------------------
-------------------- Address: 3125 SW 66th Address:
Witness ------------------- -------------------
Xxxxxxxx, XX 00000
-------------------
Dated: 12/16/97 Dated:
------------------- ---------------------
EXHIBIT B
ORCP 73B STATEMENT BY DEFENDANT
-------------------------------
Oregon Baking Company dba Xxxxxx Baking ("Marsee" or "defendant"), hereby
gives the following written statement pursuant to ORCP 73B:
1. Defendant hereby authorizes the entry of judgment in favor of
plaintiff Sysco Food Services of Portland, Inc. ("Sysco"), and against
defendant for the principal amount of TWO HUNDRED FIFTY THOUSAND FORTY
FOUR AND 64/100 DOLLARS ($250,044.64), plus interest on the principal
amount at the rate of 10% per annum, from November 1, 1998, until
paid, plus attorneys' fees in the amount of $2,500 and costs in the
amount of $167.00.
2. This judgment arises out of the obligation of Marsee pursuant to a
Credit Agreement, a copy of which is attached hereto and incorporated
herein as Exhibit 1 ("Credit Agreement"). The obligation of defendant
to Sysco under the Credit Agreement has not been paid in full and the
amount set forth herein is justly and presently due for the amounts
owed by defendant.
3. Defendant Marsee, signing below by and through its authorized
representative, understands that the Confession of Judgment to which
this Statement is attached authorizes entry of judgment without
further proceeding which would authorize execution to enforce payment
of the judgment.
4. This Statement has been executed after the date when the sums set
forth herein were due.
DATED this 9th day of April, 1999.;
----- ------
OREGON BAKING COMPANY
dba XXXXXX BAKING an Oregon corporation
By:/s/Xxxxxx Xxxxxxxxxx
---------------------------------------------
Its: Exec. VP
---------------------------------------------
STATE OF OREGON )
) ss.
County of Multnomah )
This instrument was acknowledged before me this 9th day of
-----
April, 1999, by Xxxxxx Xxxxxxxxxx, as the Exec VP of OREGON
------ ----------------- -------
BAKING COMPANY dba XXXXXX BAKING, an Oregon corporation, on behalf of the
corporation.
/s/Xxxxxx X. Xxxxx
----------------------------------------------
NOTARY PUBLIC FOR OREGON
My Commission Expires:8/22/2000
------------------------
[Official Seal]
EXHIBIT C
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
SYSCO FOOD SERVICES OF )
PORTLAND, INC., a Delaware )
corporation, )
) No.
) ------------
Plaintiff, ) CONFESSION OF JUDGMENT
)
vs. )
)
OREGON BAKING COMPANY dba )
XXXXXX BAKING an Oregon corporation )
)
Defendant. )
Pursuant to ORCP 73, and based upon the ORCP 73B Statement of defendant
Oregon Baking Company dba Xxxxxx Baking, attached hereto as Exhibit A,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that plaintiff Sysco Food
Services of Portland, Inc., have judgment against defendant, in the principal
amount of TWO HUNDRED FIFTY THOUSAND FORTY FOUR AND 64/100 DOLLARS
($250,044.64), plus interest thereon at the rate of 10% per annum from November
1, 1998, until paid, plus attorneys' fees in the amount of $2,500, plus costs in
the amount of $167.00, less any payments made and that execution shall issue on
this judgment.
MONEY JUDGMENT
--------------
1. Judgment Creditor: Sysco Food Services of Portland, Inc., a Delaware
corporation, plaintiff.
2. Judgment Creditor's Attorney: Xxxxxxxx X. Hornecker, Schwabe,
Xxxxxxxxxx & Xxxxx, P.C.
Page 1 - CONFESSION OF JUDGEMENT XXXXXXX, XXXXXXXXXX & XXXXX, P.C.
Attorneys at Law
Xxxxxxx Xxxxxx, Xxxxxx 0000-0000
0000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Telephone (000) 000-0000
3. Judgment Debtor: Oregon Baking Company dba Xxxxxx Baking, an Oregon
corporation, defendant.
4. Principal Amount of Judgment: $250,044.64.
5. Pre-judgment simple interest at the rate of 10% per annum on the
principal amount of the judgment, from November 1, 1998, until the date of entry
of judgment.
6. Attorneys' Fees: $2,500.
7. Costs: $167.00
8. Post-judgment simple interest at the rate of 15% per annum on the
judgment which consists of item 4. Post-judgment simple interest at the rate of
9% per annum on the judgment which consists of items 5, 6 and 7.
DATED this ____ day of __________________________, _____.
----------------------------------------
CIRCUIT COURT JUDGE
SUBMITTED BY:
XXXXXXX, XXXXXXXXXX & XXXXX, P.C.
By:
-----------------------------------
Xxxxxxxx X. Xxxxxxxxx, OSB #86370
Of Attorneys for Plaintiff
Page 2 - CONFESSION OF JUDGEMENT XXXXXXX, XXXXXXXXXX & XXXXX, P.C.
Attorneys at Law
Xxxxxxx Xxxxxx, Xxxxxx 0000-0000
0000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Telephone (000) 000-0000
