CREDIT AGREEMENT
dated as of February 22, 1999
among
PF ACQUISITION II, INC.
The BANKS Party Hereto
and
COBANK, ACB, as Administrative Agent
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS..............................................................1
SECTION 1.1 Definitions...................................................1
SECTION 1.2 Accounting Terms.............................................12
SECTION 1.3 Computation of Time Periods..................................12
SECTION 1.4 Rules of Construction........................................12
ARTICLE II LOANS AND ADVANCES.....................................................13
SECTION 2.1 Revolving Credit Facility Loans..............................13
SECTION 2.2 Term Credit Facility Loan....................................13
SECTION 2.3 All Loans and Advances.......................................14
SECTION 2.4 Manner of Borrowing..........................................14
SECTION 2.5 Interest.....................................................14
SECTION 2.6 Fees.........................................................16
SECTION 2.7 Notes........................................................16
SECTION 2.8 Mandatory Prepayments........................................16
SECTION 2.9 Optional Prepayments.........................................17
SECTION 2.10 Mandatory Reduction of Revolving Credit Facility
Commitment....................................................17
SECTION 2.11 Optional Reduction of Revolving Credit Facility
Commitment....................................................17
SECTION 2.12 Manner of Payment...........................................18
SECTION 2.13 Conversions or Continuations................................18
SECTION 2.14 Netting Advances............................................19
SECTION 2.15 Environmental Term Loan Credit..............................19
ARTICLE III SECURITY..............................................................19
SECTION 3.1 Security.....................................................19
ARTICLE IV LIMITATIONS ON OUTSTANDINGS............................................20
SECTION 4.1 Limitation on Revolving Credit Facility Outstandings.........20
SECTION 4.2 Borrowing Base...............................................20
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SECTION 4.3 Borrowing Base Certificate...................................21
SECTION 4.4 Mandatory Repayment..........................................21
ARTICLE V CONDITIONS PRECEDENT....................................................21
SECTION 5.1 Conditions Precedent to Initial Extension of Credit..........21
SECTION 5.2 Conditions Precedent to All Advances.........................23
SECTION 5.3 Condition Precedent to Certain Revolving Advances............23
ARTICLE VI REPRESENTATIONS AND WARRANTIES.........................................24
SECTION 6.1 Incorporation, Good Standing, Etc............................24
SECTION 6.2 Power and Authority..........................................24
SECTION 6.3 Legally Enforceable Agreement................................24
SECTION 6.4 Court Approval...............................................24
SECTION 6.5 Financial Statements.........................................24
SECTION 6.6 Litigation...................................................24
SECTION 6.7 Ownership and Liens..........................................25
SECTION 6.8 Investments..................................................25
SECTION 6.9 ERISA........................................................25
SECTION 6.10 Operation of Business.......................................25
SECTION 6.11 Taxes.......................................................25
SECTION 6.12 Environment.................................................25
SECTION 6.13 No Default..................................................25
SECTION 6.14 Security Interests..........................................25
ARTICLE VII AFFIRMATIVE COVENANTS.................................................26
SECTION 7.1 Cooperative Status...........................................26
SECTION 7.2 Corporate Existence, Etc.....................................26
SECTION 7.3 Maintenance of Property......................................26
SECTION 7.4 Compliance with Laws.........................................26
SECTION 7.5 Taxes........................................................26
SECTION 7.6 Insurance....................................................27
SECTION 7.7 Inspection...................................................27
SECTION 7.8 Maintenance of Records.......................................27
SECTION 7.9 Reports and Notices..........................................27
SECTION 7.10 ERISA.......................................................29
SECTION 7.11 Use of Proceeds.............................................29
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SECTION 7.12 Change In Business..........................................29
SECTION 7.13 Investments In CoBank.......................................29
SECTION 7.14 Transfer Pricing and Allocations............................29
ARTICLE VIII NEGATIVE COVENANTS...................................................30
SECTION 8.1 Borrowings...................................................30
SECTION 8.2 Liens........................................................30
SECTION 8.3 Transfer Of Assets...........................................30
SECTION 8.4 Mergers, Acquisitions, Etc...................................31
SECTION 8.5 Loans........................................................31
SECTION 8.6 Contingent Liabilities.......................................31
SECTION 8.7 Change in Business...........................................31
SECTION 8.8 Dividends, Etc...............................................31
SECTION 8.9 Retirement of Indebtedness...................................31
SECTION 8.10 Change in Fiscal Year.......................................32
SECTION 8.11 Other Borrowings Covenants..................................32
SECTION 8.12 Capital Expenditures........................................32
SECTION 8.13 Administrative Expenditures.................................32
SECTION 8.14 Payments to Agrilink or Pro-Fac.............................33
SECTION 8.15 Amendments..................................................33
ARTICLE IX FINANCIAL COVENANTS....................................................33
SECTION 9.1 Leverage Ratio...............................................33
SECTION 9.2 Minimum EBITDA...............................................34
ARTICLE X DEFAULT.................................................................34
SECTION 10.1 Events of Default...........................................34
SECTION 10.2 Remedies Upon Default.......................................36
ARTICLE XI FIXED RATE LOAN AND CAPITAL ADEQUACY
MATTERS...................................................................37
SECTION 11.1 Broken Funding Surcharge....................................37
SECTION 11.2 Limitation on Types of Advances.............................38
SECTION 11.3 Illegality..................................................38
SECTION 11.4 Treatment of Affected Loans.................................39
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SECTION 11.5 Capital Adequacy............................................39
SECTION 11.6 Right of Substitution.......................................40
ARTICLE XII AGENCY PROVISIONS.....................................................40
SECTION 12.1 Appointment, Powers and Immunities of
Administrative Agent..........................................40
SECTION 12.2 Reliance by Administrative Agent............................41
SECTION 12.3 Defaults....................................................41
SECTION 12.4 Rights of the Administrative Agent as a Bank................42
SECTION 12.5 Indemnification of Administrative Agent.....................42
SECTION 12.6 Non-Reliance on Administrative Agent and Other
Banks.........................................................42
SECTION 12.7 Failure of Administrative Agents to Act.....................43
SECTION 12.8 Resignation or Removal of Administrative Agent..............43
SECTION 12.9 Amendments Concerning Agency Function.......................44
SECTION 12.10 Liability of Administrative Agent..........................44
SECTION 12.11 Transfer of Agency Function................................44
SECTION 12.12 Withholding Taxes..........................................44
SECTION 12.13 Non-Receipt of Funds by Administrative Agent...............44
ARTICLE XIII MISCELLANEOUS........................................................46
SECTION 13.1 Amendments, Etc.............................................46
SECTION 13.2 Usury.......................................................46
SECTION 13.3 Notices.....................................................46
SECTION 13.4 No Waiver...................................................46
SECTION 13.5 Assignments and Participations..............................47
SECTION 13.6 Expenses; Indemnification...................................48
SECTION 13.7 Integration.................................................49
SECTION 13.8 Jurisdiction; Immunities....................................49
SECTION 13.9 Governing Law...............................................50
SECTION 13.10 Effectiveness and Severability of Provisions...............50
SECTION 13.11 Counterparts...............................................50
SECTION 13.12 Exhibits and Schedules.....................................50
SECTION 13.13 Table of Contents; Headings................................50
SECTION 13.14 Severability...............................................51
SECTION 13.15 Consents...................................................51
SECTION 13.16 Confidentiality............................................51
SECTION 13.17 Transfer of Ownership of Borrower Under Certain
Circumstances.................................................51
SECTION 13.18 Obligations Non-Recourse to Agrilink and Pro-Fac...........52
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SECTION 13.19 Jury Trial Waiver..........................................52
SECTION 13.20 Agreement in Writing.......................................53
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EXHIBITS
A - Assignment and Assumption Agreement
B - Borrowing Base Certificate
C - Mortgage
D - Revolving Credit Facility Note
E - Security Agreement
F - Term Credit Facility Note
SCHEDULES
6.12 Environmental Matters
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement") is entered into this 22nd
day of February, 1999, among PF ACQUISITION II, INC. ("Borrower"), CoBANK, ACB
("CoBank"), and each other lender which may hereafter execute and deliver an
Assignment and Assumption Agreement pursuant to Section 12.5 of this Agreement
(each a "Bank" and collectively, the "Banks"), and CoBank, as administrative
agent for the Banks ("Administrative Agent").
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. For purposes of this Agreement, the following
capitalized terms shall have the following meanings:
(1) "Acquisition" means the acquisition by Borrower on the
Closing Date of substantially all of the assets comprising the frozen vegetables
business of Seller pursuant to the Acquisition Agreement.
(2) "Acquisition Agreement" means the Asset Purchase Agreement
dated as of February 12 , 1999 between Seller, Pro-Fac and Borrower.
(3) "Administrative Agent's Office" means Administrative
Agent's address as set forth on the signature page of this Agreement, or such
other address as Administrative Agent may designate from time to time by written
notice to Borrower, and each Bank.
(4) "Administrative Expenditures" means "selling, general and
administrative" expense as such term is defined pursuant to GAAP; provided that
none of (a) payments by Borrower to Agrilink pursuant to the Service Agreement,
(b) Specified Expenses and (c) management information system expenses in any
Fiscal Quarter during the Fiscal Year ending June 24, 2000 up to a maximum
$500,000 in any such Fiscal Quarter shall be an Administrative Expenditure.
(5) "Advance" means a Revolving Credit Facility Advance and a
Term Credit Facility Advance.
(6) "Affected Loan" has the meaning specified in Section 10.4.
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(7) "Affiliate" means, as to any Person, any other Person
which directly or indirectly controls, or is controlled by, or is under common
control with such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
(8) "Agreement" means this Credit Agreement.
(9) "Agrilink" means Agrilink Foods, Inc., a New York
corporation, and a subsidiary of Pro-Fac.
(10) "Amortization" means the total amortization of the
Borrower as measured in accordance with GAAP.
(11) "Applicable Finance Charges" means (a) interest payable
under the Notes, including interest at the Default Rate and (b) the Revolving
Credit Facility Unused Commitment Fee.
(12) "Applicable Lending Office" means, for each Bank and for
each type of Advance, the lending office of such Bank designated as such for
such type of Advance on its signature page hereof or in the applicable
Assignment and Assumption Agreement or such other office of such Bank as such
Bank may from time to time specify to Administrative Agent and Borrower as the
office by which its Advances of such type are to be made and maintained.
(13) "Application of Payments Effective Date" has the meaning
specified in Section 10.2(C).
(14) "Asset Sale" means the sale or other transfer by Borrower
of (a) any fixed or capital asset, (b) any patent, trademark, copyright or other
similar intangible asset or (c) any capital stock or other equity interest of
any Person whose principal assets are fixed or capital assets, or intangible
assets, acquired from Borrower.
(15) "Assignment and Assumption Agreement" means an Assignment
and Assumption Agreement, substantially in the form of Exhibit A, pursuant to
which a Bank assigns and an Assignee assumes rights and obligations in
accordance with Section 13.5.
(16) "Assignee" has the meaning specified in Section 13.5.
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(17) "Authorized Officer" means the Treasurer of Borrower or
other similar financial officer authorized by Borrower and acceptable to the
Administrative Agent.
(18) "Bank's Office" means, in the case of each Bank, the
office of such Bank designated on the signature page hereof, or as designated in
the applicable Assignment and Assumption Agreement, or such other office as such
Bank may from time to time specify by notice to Borrower and the Administrative
Agent.
(19) "Banking Day" means any day on which commercial banks are
not authorized or required to close in the States of Oregon, Colorado or New
York.
(20) "Bankruptcy Case" means In re Agripac, Inc., Case
No. 699-60001-fra11 pending before the United States Bankruptcy Court for the
District of Oregon.
(21) "Borrower's Funding Account" means the following deposit
account of Borrower at: Key Bank of Oregon, ABA Number 000000000, account number
____________ or such other account as may be designated by Borrower in a written
notice to each of the Banks.
(22) "Borrowing Base" has the meaning specified in
Section 4.2.
(23) "Borrowing Base Certificate" means a Borrowing Base
Certificate in the form of Exhibit B.
(24) "Borrowing Notice" has the meaning specified in
Section 2.4.
(25) "Capital Expenditures" means "capital expenditures"
(including obligations under capitalized leases) as such term is defined
pursuant to GAAP.
(26) "Closing Date" means the date upon which the conditions
precedent set forth in Section 5.1 are satisfied or waived by all of the Banks.
(27) "CoBank Quoted Rate" means, as of any date, the interest
rate quoted by the Administrative Agent on that date as representing its cost of
funds for a Loan in an amount approximately equal to the Fixed Rate Loan and for
the Interest Period selected by Borrower pursuant to Section 2.4. The Co-Bank
Quoted Rate is established by the Administrative Agent in its sole discretion to
approximate its costs of funding such a Fixed Rate Loan for such an Interest
Period and may be based on actual or estimated costs of funding and/or any other
factors deemed appropriate by the Administrative Agent.
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(28) "Collateral" means, collectively, the Security Agreement
Collateral and the Mortgage Collateral.
(29) "Court Order" means the order of the United States
Bankruptcy Court for the District of Oregon approving the consummation of the
Acquisition in accordance with the Acquisition Agreement and covering such other
related matters as are acceptable to the Administrative Agent.
(30) "Credit Facilities" means the Revolving Credit Facility
and the Term Credit Facility.
(31) "Default Rate" means, with respect to each Advance
comprising the Outstanding Obligations, when Administrative Agent declares an
Event of Default hereunder (whether or not the due date therefor has been
accelerated as a result of such Event of Default), a rate per annum equal to:
(1) if such Advance is a Variable Rate Advance, a variable rate four percent
(4%) above the rate of interest then in effect thereon; and (2) if such Advance
is a Fixed Rate Advance, a fixed rate four percent (4%) above the applicable
Fixed Rate in effect thereon at the time of default until the end of the then
current Interest Period therefor and, thereafter, a variable rate four percent
(4%) above the rate of interest for a Variable Rate Advance.
(32) "Depreciation" means total depreciation of Borrower as
measured in accordance with GAAP.
(33) "Dollar" means the basic unit of currency of the United
States of America.
(34) "EBITDA" shall mean, for any period, (i) the net income
of Borrower for such period determined in accordance with GAAP, plus (ii)
amounts included in determination of net income for such period that have been
deducted for (A) Interest Expense for such period, (B) total Federal, state,
local and foreign income, and similar taxes of Borrower for such period, (C)
Depreciation for such period, (D) Amortization for such period, (E) any
write-down of goodwill created as a result of the Acquisition, (F) any Specified
Expenses for such period and (G) if such period is a Fiscal Quarter during the
Fiscal Year ending June 24, 2000, management information system expense up to a
maximum $500,000 in any such Fiscal Quarter. One-time gains (losses) and
extraordinary income (losses) will be subtracted (added) in the calculation of
EBITDA.
(35) "Environmental Term Loan Credit" means one or more
credits which may in accordance with Section 2.15 be applied as a credit against
principal due
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under the Term Loan; provided that (a) the aggregate amount of the Environmental
Term Loan Credit shall not exceed $4,000,000 and (b) any amount thereof that has
not been so applied on or before the third anniversary of the Closing Date shall
expire and no longer be available.
(36) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and the regulations promulgated thereunder.
(37) "Event of Default" shall mean an event specified in
Section 9.1.
(38) "Fiscal Quarter" means the fiscal quarter of Borrower
comprised of a 13 or 14 week period ending on the last Saturday in March, June,
September and December.
(39) "Fiscal Year" means the fiscal year of Borrower comprised
of a 52 or 53 week period ending on the last Saturday in June.
(40) "Fixed Rate Advance" means any Advance when and to the
extent the interest rate therefor is determined by reference to the Fixed Rate.
(41) "Fixed Rate" means a rate equal to the CoBank Quoted Rate
plus 419 basis points (4.19%).
(42) "Fixed Rate Loan" means a Loan when and to the extent the
interest rate for the Advances made as part of such Loan are determined in
relation to the Fixed Rate.
(43) "Funded Debt" means all indebtedness for borrowed money
of Borrower (including all indebtedness under the Notes), and shall include debt
created, assigned, or guaranteed by Borrower either directly or indirectly,
including obligations secured by Liens upon property of Borrower and upon which
such entity customarily pays the interest, and all obligations under capitalized
leases.
(44) "GAAP" means generally accepted accounting principles in
effect from time to time.
(45) "Good Faith Contest" means the contest of an item if: (1)
the item is diligently contested in good faith by appropriate proceedings timely
instituted; (2) either the item is (a) bonded or (b) adequate reserves are
established with respect to the contested item if and to the extent required in
accordance with GAAP; (3) during the period of such contest, the enforcement of
any contested item is effectively stayed;
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and (4) the failure to pay or comply with the contested item could not
reasonably be expected to result in a Material Adverse Affect.
(46) "Incremental Retained Earnings" means (a) with respect to
the period from the Closing Date to June 26, 1999, the amount by which Retained
Earnings at the end of such period exceeds Retained Earnings at the beginning of
such period and (b) with respect to each Fiscal Year beginning on or after June
27, 1999, the amount by which Retained Earnings at the end of such Fiscal Year
exceeds Retained Earnings at the beginning of such Fiscal Year.
(47) "Individual Facility Commitments" means, with respect to
a Bank, its Individual Revolving Credit Facility Commitment and its Individual
Term Credit Facility Commitment.
(48) "Individual Revolving Credit Facility Commitment" means,
with respect to each Bank, an amount set forth below, or as designated in the
applicable Assignment and Assumption Agreement, provided, however, that the
aggregate of all the Individual Revolving Credit Facility Commitments shall at
no time exceed the Total Revolving Credit Facility Commitment:
Name of Bank Individual Revolving Credit Facility
Commitment
CoBank $60,000,000
The Individual Revolving Credit Facility Commitment of each Bank shall reduce,
upon each reduction in the Total Revolving Credit Facility Commitment, in the
same proportion as the Individual Revolving Credit Facility Commitment of that
Bank bears to the aggregate of the Individual Revolving Credit Facility
Commitments.
(49) "Individual Term Credit Facility Commitment" means, with
respect to each Bank, an amount set forth below, or as designated in the
applicable Assignment and Assumption Agreement, provided, however, that the
aggregate of all the Individual Term Credit Facility Commitments shall at no
time exceed the Total Term Credit Facility Commitment:
Name of Bank Individual Term Credit Facility
Commitment
CoBank $30,000,000
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(50) "Interest Expense" means interest expense as measured in
accordance with GAAP.
(51) "Interest Period" means (a) with respect to any Fixed
Rate Advance, the period commencing on the date such Advance is made, converted
from a Variable Rate Advance, or renewed, as the case may be, and ending on such
date as Borrower may select pursuant to Section 2.4 provided that such ending
date is not earlier than the fifth (5th) Banking Day after the date of the
Advance and not later than the Maturity Date; and provided further that if an
Interest Period would end on a day which is not a Banking Day, such Interest
Period shall be extended to the next Banking Day.
(52) "Law" means all federal, state and local statutes,
treaties, rules, regulations, ordinances, codes and binding judicial precedents.
(53) "Lien" means a mortgage, deed of trust, pledge, security
interest or other encumbrance of any kind, including, without limitation,
attachment, judgment and execution liens.
(54) "Loan" means the aggregate of the Revolving Credit
Facility Advances and the Term Facility Advances made by the Banks on a
particular date.
(55) "Loan Documents" means this Agreement and all instruments
and documents contemplated hereby, including, without limitation, the Notes, the
Security Agreement and the Mortgages, and any supplement thereto.
(56) "Material Adverse Effect" means any set of circumstances
or events that (a) is or could reasonably be expected to be material and adverse
to the condition (financial or otherwise), business or prospects of Borrower or
(b) materially impairs or could reasonably be expected to impair the ability of
Borrower to perform, in all material respects, all of its obligations under the
Loan Documents.
(57) "Maturity Date" means June 29, 2002.
(58) "Minimum Assignment" means, with respect to each Bank
that is making an assignment in accordance with the terms of Section 13.5, an
assignment of a portion of its Individual Facility Commitments and Credit
Facilities with an aggregate principal or face amount of at least Ten Million
Dollars ($10,000,000) where such amount is determined by aggregating each of the
following assigned by such Bank: (1) Unused Revolving Credit Facility
Commitment, and (2) the aggregate principal amount of its outstanding Advances.
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(59) "Minimum Hold" means, of a Bank's Individual Facility
Commitments, an amount equal to Ten Million Dollars ($10,000,000), but in no
event less than fifty percent (50%) of the Bank's Individual Facility
Commitments as of the Closing Date or, if the Bank is an assignee under an
Assignment and Assumption Agreement (other than CoBank or St. Xxxx Bank),as of
the date of consummation of the assignment made pursuant to such Assignment and
Assumption Agreement.
(60) "Monthly Date" means the first (1st) calendar day of each
month occurring on or after the Closing Date.
(61) "Mortgages" means mortgages covering Borrower's owned and
leased real property interests to be executed by Borrower in the form attached
hereto as Exhibit C.
(62) "Mortgage Collateral" means the "mortgaged premises"
described as such in the Mortgages.
(63) "Net Cash Sale Proceeds" means, with respect to any Asset
Sale, the sum of (a) the cash proceeds received by or for the account of
Borrower from such Asset Sale plus (b) the amount of cash received by or for the
account of Borrower upon the sale, collection or other liquidation of any
proceeds that are not cash from such Asset Sale, in each case net of (i) any
amount required to be paid to any Person owning an interest in the assets
disposed of, (ii) any amount applied to the repayment of Indebtedness secured by
a Lien permitted under Section 8.2 on the asset disposed of, (iii) any transfer,
income or other taxes payable as a result of such Asset Sale, (iv) professional
fees and expenses, fees due to any governmental agency, broker's commission and
other out-of-pocket costs of sale actually paid to any Person that is not an
Affiliate of Borrower attributable to such Asset Sale and (v) any reserves
established in accordance with GAAP in connection with such Asset Sale.
(64) "Notes" means the Revolving Credit Facility Notes and the
Term Credit Facility Notes.
(65) "Outstanding Obligations" means, as of any date of
determination, the sum of the aggregate principal amount of all Advances then
outstanding.
(66) "Participant" has the meaning specified in Section 13.5.
(67) "Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority, limited liability company or other entity of
whatever nature.
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(68) "PBGC" means the Pension Benefit Guaranty Corporation.
(69) "Plan" means an employee benefit plan covering any
officers or employees of Borrower or any of its Subsidiaries, any benefits of
which are, or are required to be, guaranteed by the PBGC.
(70) "Potential Default" means the occurrence of any event
which with the passage of time or the giving of notice or both could ripen into
an Event of Default.
(71) "Pro-Fac" means Pro-Fac Cooperative, Inc., a New York
corporation and the holders of 100% of the voting common stock of Borrower.
(72) "Pro Rata Share" means as to each Bank, a fraction, the
numerator of which is such Bank's Individual Credit Facility Commitments and the
denominator of which is the Total Facility Commitments.
(73) "Qualified Environmental Expenditure" means an
expenditure made by Borrower during the period from the Closing Date through the
third anniversary of the Closing Date that (a) is for the purpose of remediation
of non-compliance with applicable state and federal environmental laws or
regulations existing on the Closing Date on real property acquired by Borrower
pursuant to the Acquisition, (b) is appropriate, in the written opinion of an
independent environmental consultant acceptable to the Administrative Agent, for
the purpose of such remediation (assuming the work contemplated by such
expenditure is performed in accordance with professional standards), (c) does
not improve such real property beyond the point necessary to bring such real
property into adequate compliance with such laws and regulations and (d) has
been approved in writing by the Administrative Agent prior to the making of such
expenditure (provided, that such approval will not be withheld unless the
Administrative Agent reasonably determines that the requirements of clause (a)
or (c) have not been met).
(74) "Retained Earnings" means, as of any date, the retained
earnings of Borrower as of that date determined in accordance with GAAP.
(75) "Required Banks" means, except as otherwise provided in
Section 10.2(A) and (B) hereof, Banks holding at least 67% of the Total Facility
Commitments, regardless of whether any commitments are in effect.
(76) "Revolving Credit Facility" means the Revolving Credit
Facility established pursuant to Section 2.1.
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(77) "Revolving Credit Facility Availability Period" means the
period commencing on the Closing Date to, but not including, the Maturity Date.
(78) "Revolving Credit Facility Advance" has the meaning
specified in Section 2.1.
(79) "Revolving Credit Facility Commitment Fee" has the
meaning specified in Section 2.6.
(80) "Revolving Credit Facility Loan" has the meaning
specified in Section 2.1.
(81) "Revolving Credit Facility Note" means a promissory note
in the form of Exhibit D to be executed by Borrower.
(82) "Security Agreement" means a security agreement in the
form attached hereto as Exhibit E to be executed by Borrower.
(83) "Security Agreement Collateral" means the Collateral
described as such in the Security Agreement.
(84) "Seller" means Agripac, Inc., an Oregon non-profit
cooperative association that is as of the Closing Date the Debtor-in-Possession
in the Bankruptcy Case.
(85) "Service Agreement" means the Service Agreement dated
February __, 1999 between Borrower and Agrilink.
(86) "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 this Agreement not in excess of $2,600,000 for all of the payments
described in this clause (b).
(87) "Subordinated Notes" means the Subordinated Promissory
Notes aggregating $12,000,000 of Borrower to be issued on the Closing Date
pursuant to the Subordinated Note Purchase Agreement.
(88) "Subordinated Note Purchase Agreement" means the Note
Purchase Agreement dated as of the Closing Date among Borrower, Co-Bank and St.
Xxxx Bank for the issuance, sale and purchase of the Subordinated Notes.
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(89) "Term Credit Facility" means the Term Credit Facility
established pursuant to Section 2.2.
(90) "Term Credit Facility Advance" has the meaning specified
in Section 2.2.
(91) "Term Credit Facility Loan" has the meaning specified in
Section 2.2.
(92) "Term Credit Facility Note" means a promissory note in
the form of Exhibit F to be executed by Borrower.
(93) "Total Facility Commitments" means the sum of all Banks'
Individual Facility Commitments.
(94) "Total Revolving Credit Facility Commitment" means,
subject to Sections 2.10 and 2.11, (a) during the period from the Closing Date
through June 26, 1999, $60,000,000, (b) during the period from June 27, 1999
through June 24, 2000, $55,000,000 and (c) during the period from June 25, 2000
and thereafter, $50,000,000.
(95) "Total Term Credit Facility Commitment" means Thirty
Million Dollars ($30,000,000).
(96) "Unused Revolving Credit Facility Commitment" means, with
respect to a Bank, the amount (if any) by which its Individual Revolving Credit
Facility Commitment exceeds its outstanding Revolving Credit Facility Advances.
(97) "Variable Rate" means the rate of interest established by
CoBank from time to time as its "National Variable Rate," which rate is subject
to change from time to time by CoBank effective as of such date as may be
specified by CoBank. The "National Variable Rate" is a reference rate
established by CoBank and does not necessarily represent the lowest available
variable interest rate for credit extended by CoBank.
(98) "Variable Rate Advance" means any Advance when and to the
extent the interest rate for such Advance is determined in relation to the
Variable Rate.
(99) "Variable Rate Loan" means any Loan when and to the
extent the interest rate for the Advances made as part of such Loan are
determined in relation to the Variable Rate.
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(100) "Variable Rate all-in Rate" means the Variable Rate plus
150 basis points (1.50%).
SECTION 1.2 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP. All financial data
required to be delivered hereunder shall be prepared in accordance with GAAP
(except as otherwise provided in this Agreement).
SECTION 1.3 Computation of Time Periods. Except as otherwise provided
herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
SECTION 1.4 Rules of Construction. When used in this Agreement:
(1) a reference to a Law includes any amendment or modification to
such Law; (2) 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; (3) a reference to an agreement, instrument
or document 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, and reference to any Note includes any note
issued pursuant hereto in extension or renewal thereof and in substitution or
replacement therefor; (4) reference to any gender includes the other gender; (5)
the words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Article, Section or
other subdivision; (6) 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; and (7) the words "including" (and with
correlative meaning "include") means including, without limiting the generality
of any description preceding such term. 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.
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ARTICLE II
LOANS AND ADVANCES
SECTION 2.1 Revolving Credit Facility Loans. Subject to the terms and
conditions of this Agreement, each of the Banks severally agrees to make
Advances (each Advance made by an individual Bank pursuant to this Section 2.1,
a "Revolving Credit Facility Advance" and the total of all such Advances made by
all the Banks at the same time, the "Revolving Credit Facility Loans") to
Borrower from time to time during the period from the Closing Date to the
Maturity Date, provided that:
(1) with respect to all Banks, the aggregate principal amount
of all Revolving Credit Facility Loans outstanding at any time does not exceed
the lesser of (a) the Total Revolving Credit Facility Commitment or (b) the
Borrowing Base; and
(2) with respect to each Bank, the aggregate principal amount
of such Bank's Revolving Credit Facility Advances outstanding at any time does
not exceed such Bank's Individual Revolving Credit Facility Commitment.
Each Revolving Credit Facility Advance will be made by the
Banks in accordance with each Bank's Pro Rata Share. The Revolving Credit
Facility Loans which do not utilize the Total Revolving Credit Facility
Commitment in full shall, with respect to Variable Rate Advances be in the
minimum amount of Five Hundred Thousand Dollars ($500,000) and in integral
multiples of One Hundred Thousand Dollars ($100,000) or with respect to Fixed
Rate Advances, be in the minimum amount of One Million Dollars ($1,000,000) and
in integral multiples of One Hundred Thousand Dollars ($100,000). Within the
limits of the Total Revolving Credit Facility Commitment and during the
Revolving Credit Facility Availability Period, Borrower may borrow, make an
optional prepayment pursuant to Section 2.9, and reborrow under this Section.
SECTION 2.2 Term Credit Facility Loan. Subject to the terms and
conditions of this Agreement, each of the Banks severally agrees to make an
Advance (each Advance made by an individual Bank pursuant to this Section 2.2 a
"Term Credit Facility Advance" and the total of all such advances made by all
the Banks at the same time, the "Term Credit Facility Loan") to Borrower on the
Closing Date, provided that:
(1) with respect to all Banks, the aggregate principal amount
of all Term Credit Facility Loans outstanding at any time does not exceed the
Total Term Credit Facility Commitment; and
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(2) with respect to each Bank, the aggregate principal amount
of such Bank's Term Credit Facility Advances outstanding at any time does not
exceed the total of such Bank's Individual Term Credit Facility Commitment.
Each Term Credit Facility Advance will be made by the Banks in
accordance with each Bank's Pro Rata Share. The Term Credit Facility Loan shall,
with respect to Variable Rate Advances be in the minimum amount of Five Hundred
Thousand Dollars ($500,000) and in integral multiples of One Hundred Thousand
Dollars ($100,000) or with respect to Fixed Rate Advances, be in the minimum
amount of One Million Dollars ($1,000,000) and in integral multiples of One
Hundred Thousand Dollars ($100,000). This is not a revolving credit facility and
Borrower may not reborrow any amounts prepaid pursuant to Section 2.9 under this
Section.
SECTION 2.3 All Loans and Advances. The failure of any Bank to make any
requested pro rata Advance to be made by it on the date specified for such
Advance shall not relieve any Bank of its obligation (if any) to make any
Advance on such date, but no Bank shall be responsible for the failure of any
other Bank to make any such Advance to be made by such Bank.
SECTION 2.4 Manner of Borrowing. Borrower shall give Administrative
Agent prior written or telegraphic or facsimile notice (effective upon receipt)
of each Advance (1) in the case of a Variable Rate Loan, on or before 11:00 A.M.
(Pacific time) on the day of making such Variable Rate Loan, and (2) in the case
of a Fixed Rate Loan, on or before 11:00 A.M. (Pacific time) at least three (3)
Banking Days prior to the date of making such Fixed Rate Loan.
Each of the foregoing notices ("Borrowing Notice") must
specify (1) the amount of such Loan, (2) the date of such Loan, (3) whether the
Loan will bear interest at (a) the Variable Rate or (b) the Fixed Rate and (4)
in the case of a Fixed Rate Loan, the initial Interest Period applicable
thereto. Administrative Agent shall promptly notify each Bank of each such
Borrowing Notice. Not later than 1:00 P.M. (Pacific time) on the date any such
Loan is to be funded, each Bank will make available to Administrative Agent at
Administrative Agent's Office, in immediately available funds, such Bank's Pro
Rata Share of such Loan. After Administrative Agent's receipt of such funds, but
not later than 2:00 P.M. (Pacific time), and upon fulfillment of the applicable
conditions set forth in Article V, Administrative Agent will make such Loan
available to Borrower at its counters, in immediately available funds, and will
transmit such funds by wire transfer to Borrower's Funding Account.
SECTION 2.5 Interest. In the case of each Fixed Rate Loan, Borrower
shall select an Interest Period of any duration in accordance with the
definition of Interest Period in Section 1.1, subject to the following
limitations, (1) the Interest Period may
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not extend beyond the Maturity Date and (2) no Interest Period shall have a
duration of less than five (5) Banking Days and if any such proposed Interest
Period would otherwise be for a shorter period, such Interest Period shall not
be available. Fixed Rate Advances having different Interest Periods at the same
time hereunder shall be deemed separate Advances for purposes of the foregoing,
one for each Interest Period.
Borrower shall pay interest to Administrative Agent for the
benefit of each Bank on the outstanding and unpaid principal amount of such
Bank's Advances, at a rate per annum as follows (1) for a Variable Rate Advance
at a rate equal to the Variable Rate all-in Rate and (2) for a Fixed Rate
Advance at a rate equal to the Fixed Rate. Any principal amount not paid when
due (at maturity, by acceleration or otherwise) shall bear interest thereafter,
payable on demand, at the applicable Default Rate.
The interest rate on each Variable Rate Advance shall change
when the Variable Rate changes. Interest on each Advance shall not exceed the
maximum amount permitted under applicable Law and shall be calculated on the
basis of a year of three hundred sixty (360) days for the actual number of days
elapsed.
Accrued interest shall be due and payable in arrears (1) on
each Monthly Date, commencing with the first such date after making such Loan
and (2) interest accruing at the Default Rate shall be due and payable on
demand. Notwithstanding anything to the contrary contained in this Agreement,
accrued interest on Loans shall be due and payable on the Maturity Date.
Notwithstanding the foregoing, the aggregate Applicable
Finance Charges payable under this Agreement shall not exceed (a) $1,925,000 for
the period from the Closing Date through June 26, 1999 or (b) $5,500,000 for
each Fiscal Year thereafter. If in any such period or Fiscal Year the Applicable
Finance Charges limitation is reached, then thereafter for the remainder of such
period or Fiscal Year, Applicable Finance Charges otherwise payable under this
Agreement shall not accrue or be payable in any event. The limitation contained
in this paragraph shall cease to be effective upon (a) the occurrence of the
Event Default described in Section 10.1(M) or (b) the acceleration of the
amounts due under the Notes pursuant to Sections 10.2(A) or 10.2(B) and, in
either instance, any Applicable Finance Charges otherwise accruable or payable
during the then Fiscal Year that did not accrue or become payable by reason of
this paragraph shall automatically and retroactively accrue and become payable
to the same extent as any other interest under this Agreement.
Administrative Agent shall provide to Borrower written notice
of the amount of interest to be due and payable. Failure of Administrative Agent
to provide
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such prior written notice, however, shall not affect Borrower's obligation to
make such interest payments when due.
SECTION 2.6 Fees.
The Borrower agrees to pay to Administrative Agent for the
benefit of Banks a commitment fee ("Revolving Credit Facility Unused Commitment
Fee") in an amount equal to fifty basis points (.50 of 1%) per annum times the
amount, if any, by which (a) the lesser of (i) the Total Revolving Credit
Facility Commitment or (ii) $50,000,000 exceeds (b) the average daily aggregate
of Revolving Credit Facility Advances, payable on each Monthly Date in arrears.
SECTION 2.7 Notes. All Revolving Credit Facility Advances made by each
Bank shall be evidenced by, and repaid with interest in accordance with, a
single Revolving Credit Facility Note in the stated maximum principal amount
equal to such Bank's Individual Revolving Credit Facility Commitment, dated the
date such Bank becomes a Bank, payable to such Bank for the account of its
Applicable Lending Office, and maturing as to principal on the Maturity Date.
All Term Credit Facility Advances made by each Bank shall be
evidenced by, and repaid with interest in accordance with, a single Term Credit
Facility Note in the stated maximum principal amount equal to such Bank's
Individual Term Credit Facility Commitment, dated the date such Bank becomes a
Bank, payable to such Bank for the account of its Applicable Lending Office, and
maturing as to principal on the Maturity Date.
Each Bank shall record on its books and records or on the
schedule to its applicable Note the amount of each Advance made by it hereunder,
the rate or rate option and interest period applicable thereto, all payments of
principal and interest, and the principal balance from time to time outstanding.
The Bank's record thereof, whether shown on such books and records or on the
schedule to the applicable Note, shall be prima facie evidence as to all such
amounts and shall be binding on Borrower absent manifest error.
SECTION 2.8 Mandatory Prepayments. Borrower shall prepay the Loans
within two (2) Banking Days after the consummation of any Asset Sale by an
amount equal to the Net Cash Proceeds thereof. Concurrently with such Asset
Sale, Borrower shall notify the Administrative Agent in writing whether or not
it intends to acquire replacement assets of the kind or type which were the
subject of such Asset Sale within the ninety (90) day period following the Asset
Sale. If Borrower does not so notify the Administrative Agent that it intends to
acquire such replacement assets within such time period, then (a) the Net Cash
Proceeds shall be applied to prepay
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either the Revolving Credit Facility or the Term Credit Facility, as may be
designated by the Administrative Agent and (b) if applied to the Revolving
Credit Facility, the Total Revolving Facility Credit Commitment shall also be
permanently reduced by such amount as may be designated by the Administrative
Agent up to the amount of such Net Cash Sales Proceeds. If Borrower does so
notify the Administrative Agent that it intends to acquire such replacement
assets within such time period, then (a) the Net Cash Proceeds shall be applied
to prepay the Revolving Credit Facility and (b) if Borrower fails to provide the
Administrative Agent on or before the 90th day following the Asset Sale with
evidence satisfactory to the Administrative Agent that it has in fact acquired
the replacement assets referred to in its earlier notice, then as of such 90th
day following the Asset Sale (a) the prepayment shall, if the Administrative
Agent so designates, be re-allocated to apply to the Term Credit Facility or (b)
the Total Revolving Credit Facility Commitment shall be permanently reduced by
such amount as may be designated by the Administrative Agent up to the amount of
such Net Cash Sales Proceeds.
SECTION 2.9 Optional Prepayments. Borrower may prepay any Loans upon
giving Administrative Agent prior written or facsimile notice (effective upon
receipt) no later than 11:00 A.M. (Pacific Time) three Banking Days prior to the
date of such prepayment.
Each prepayment of Loans made under this Section 2.9 may be
made in whole or in part and will be made with accrued interest to the date of
such prepayment on the amount prepaid, provided that (1) each partial prepayment
shall be in a principal amount of not less than One Million Dollars ($1,000,000)
and integral multiples of One Hundred Thousand Dollars ($100,000) and (2)
Borrower pays compensation in accordance with Section 11.1. Each such prepayment
shall be paid to the Banks in accordance with their Pro Rata Share.
SECTION 2.10 Mandatory Reduction of Revolving Credit Facility
Commitment. The Total Revolving Credit Facility Commitment shall be permanently
reduced (a) pursuant to Section 2.8 to the extent implemented by the
Administrative Agent in accordance therewith and (b) as of the 90th day after
the end of each Fiscal Year (including the Fiscal Year ending June 26, 1999), by
an amount equal to 75% of the Incremental Retained Earnings for that Fiscal
Year.
SECTION 2.11 Optional Reduction of Revolving Credit Facility
Commitment. Borrower may at any time, and from time to time, voluntarily and
permanently reduce the Total Revolving Credit Facility Commitment upon prior
written or facsimile notice (effective upon receipt) no later than 11:00 a.m.
(Pacific Time) three Banking Days prior to such reduction. Such voluntary
reduction under this Section 2.11 shall be in
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an amount not less than One Million Dollars ($1,000,000) and integral multiples
of One Hundred Thousand Dollars ($100,000).
SECTION 2.12 Manner of Payment. Borrower shall make each payment under
this Agreement and under each Note not later than 12:00 noon (Pacific Time) on
the date when due in Dollars to the Administrative Agent for the benefit of each
Bank in immediately available funds.
Borrower hereby authorizes each Bank, if and to the extent
payment of the Loans or interest thereon or any fee is not made when due under
this Agreement or under the Notes, to charge from time to time against any
account it maintains with such Bank any such amount so due to such Bank and/or
any or all of the other Banks. Each Bank that maintains any such account agrees
that it holds such account as trustee for the Banks hereunder.
Except to the extent provided in this Agreement, whenever any
payment to be made under this Agreement or under the Notes shall be stated to be
due on any day other than a Banking Day, such payment shall be made on the next
succeeding Banking Day, and such extension of time shall in such case be
included in the computation of the payment of interest and the fees.
Any payment of an Advance shall be made to the Banks in
accordance with their Pro Rata Share.
SECTION 2.13 Conversions or Continuations. Provided that no Potential
Default or Event of Default has occurred and is continuing, Borrower shall have
the right to convert all or a part of one type of Loan into another type of Loan
or to continue all or any part of a Fixed Rate Loan, at any time or from time to
time, provided that (1) Borrower shall give Administrative Agent (a) written or
facsimile notice of each such conversion into a Variable Rate Loan by no later
than 11:00 A.M. (Pacific Time) on the date of such conversion and (b) written or
facsimile notice of each conversion into and continuation of a Fixed Rate Loan
by no later than 11:00 A.M. (Pacific Time) three Banking Days prior to such
conversion or continuation, (2) Fixed Rate Loans may be converted or continued
only on the last day of an Interest Period for such Loans and (3) after giving
effect to such continuation or conversion the minimum principal amount of the
outstanding Fixed Rate Loans with the same Interest Period will be One Million
Dollars ($1,000,000) and integral multiples of One Hundred Thousand Dollars
($100,000). All notices given under this Section shall be irrevocable.
Each such notice of conversion or continuation shall specify
the Advance to be converted or continued and the amount thereof and the date of
conversion or
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continuation (which shall be a Banking Day) and, in respect of a Fixed Rate
Loan, the duration of an Interest Period. Each such notice of the duration of an
Interest Period shall specify the Fixed Rate Loan to which such Interest Period
is to relate. In the event that Borrower fails to select the type of Loan, or
the duration of any Interest Period for any Fixed Rate Loan, within the time
period and otherwise as provided in this Section, such Loan (if outstanding as a
Fixed Rate Loan) will be automatically converted into a Variable Rate Loan on
the last day of the then current Interest Period for such Fixed Rate Loan.
SECTION 2.14 Netting Advances. Borrower and each Bank agree that on any
Banking Day that Borrower is obligated to repay such Bank's Advance and such
Bank is obligated to make an Advance to Borrower, then to the extent the Advance
to be made on such Banking Day exceeds the principal amount of the Advance to be
prepaid or repaid on that Banking Day, the Bank, at Bank's option, will only
remit to Borrower the difference between such Advances and to the extent the
principal amount of the Advance to be prepaid or repaid on such Day exceeds the
Advance to be made on that Banking Day, Borrower will only remit to the Bank the
difference between such Advances, and in each case such Bank's or Borrower's
obligation to make payment or prepayment or repayment, as the case may be, of an
amount equal to the smaller Advance shall be automatically satisfied or
discharged. Nothing contained herein shall affect the obligation to make an
interest payment (if any) on such date.
SECTION 2.15 Environmental Term Loan Credit. From time to time during
the period from the Closing Date through the third anniversary of the Closing
Date, Borrower may seek an Environmental Term Loan Credit in accordance with
this Section 2.15 in an amount equal to Qualified Environmental Expenditures
made by Borrower during that period. Following payment of a Qualified
Environmental Expenditure, Borrower shall submit to the Administrative Agent a
written report acceptable to the Administrative Agent setting forth detailed
information respecting the Qualified Environmental Expenditure. The
Administrative Agent shall, within thirty (30) days after receipt of such
report, deliver to Borrower a written notice setting forth the amount of the
Environmental Term Loan Credit, to be effective as of the date of such notice.
ARTICLE III
SECURITY
SECTION 3.1 Security. The Credit Facilities, the Loans, the Advances,
the Notes, interest, fees and all other obligations of Borrower hereunder shall
be secured by a first priority security interest in the Mortgage Collateral and
the Security
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Agreement Collateral. All such security shall be held in the name of the
Administrative Agent for the benefit of the Banks. 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.
ARTICLE IV
LIMITATIONS ON OUTSTANDINGS
SECTION 4.1 Limitation on Revolving Credit Facility Outstandings.
Notwithstanding anything to the contrary contained in this Agreement, at no time
subsequent to April 2, 1999 may the aggregate principal amount of all Revolving
Credit Facility Loans exceed the lesser of the Total Revolving Credit Facility
Commitment or the "Borrowing Base" (as defined below).
SECTION 4.2 Borrowing Base. For purposes hereof the term "Borrowing
Base" shall mean an amount, as determined on the basis of the most recent
Borrowing Base Certificate furnished pursuant to Section 4.3 hereof, as follows:
(A) Trade Receivables. 85% of the trade accounts
receivable of Borrower which: (1) arise from the sale and delivery of inventory
on ordinary trade terms; (2) are evidenced by an invoice; (3) are net of any
credit, trade or other allowance given to the account debtor; (4) are not owing
by an account debtor who has become insolvent or is the subject of any
bankruptcy, reorganization, liquidation or like proceeding; (5) are not subject
to any offset or deduction; (6) are not owing by an Affiliate of Borrower; (7)
are subject to a first priority perfected security interest in favor of the
Administrative Agent for the benefit of the Banks and are not subject to a Lien
in favor of any other Person, except as permitted by Section 8.2 hereof; (8) are
payable in Dollars; (9) are not owing by an obligor located outside of the
United States of America unless the receivable is supported by a letter of
credit issued by a bank acceptable to the Administrative Agent; (10) are not
government receivables; and (11) have not been determined by the Required Banks
to be unacceptable for any other reason. The above provisions notwithstanding,
trade accounts receivables shall also exclude (i) that portion of any account
that is past due more than 60 days from the date the account was due, (ii) that
portion of any account that is the subject of any dispute, counterclaim or
defense irrespective of the aging of such account, (iii) any contra account no
matter when created, and (iv) an entire account if 25% or more of the account is
past due more than 60 days from the date the account was due; plus
(B) Inventory. 65% of the value, as determined on the
basis of the lower of cost or market valuation, of inventory (processed and
unprocessed) of
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agricultural products of Borrower that: (1) substantially conform to Borrower's
advertised or represented specifications; (2) are able to be sold in the
ordinary course of business; (3) have not been determined by the Required Banks
to be unacceptable due to age, type, variety, quality, quantity, value,
marketability, or location; (4) are subject to a first priority perfected
security interest in favor of the Administrative Agent for the benefit of the
Banks and are not subject to a Lien in favor of any other Person, except as
permitted by Section 8.2 hereof; and (5) meet all applicable governmental
standards.
SECTION 4.3 Borrowing Base Certificate. Within 5 Banking Days after
March 27, 1999 and the last business day in each subsequent fiscal month,
Borrower shall furnish the Administrative Agent with: (1) a Borrowing Base
Certificate setting forth a computation of the Borrowing Base as of the month
ending date, certified as correct by an Authorized Officer, and (2) such
documentation supporting the amounts and values reflected in the Borrowing Base
Certificate as may be required by the Administrative Agent. Notwithstanding the
above, Borrower will submit a Borrowing Base Certificate, certified as correct
by an Authorized Officer, as of such other times or intervals as the
Administrative Agent shall reasonably request.
SECTION 4.4 Mandatory Repayment. If at any time the aggregate principal
amount of all Revolving Credit Facility Loans exceeds the Borrowing Base set
forth in the most recent Borrowing Base Certificate, then Borrower shall
immediately notify each Bank and repay so much of the outstanding Revolving
Credit Facility Loans as is necessary to reduce the amount of those outstandings
to the limits of the Borrowing Base. In the event any Fixed Rate Loan is
required to be prepaid, then in addition to the mandatory prepayment required
hereby, Borrower shall pay compensation provided for in Section 11.1 hereof.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent to Initial Extension of Credit. The
obligation of each Bank to extend credit hereunder is subject to the conditions
precedent that the Administrative Agent shall have received in sufficient copies
for each Bank:
(A) Revolving Credit Facility. The Revolving Credit
Facility Note of each Bank duly executed by Borrower.
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(B) Term Credit Facility Notes. The Term Credit
Facility Note of each Bank duly executed by Borrower.
(C) Security Agreement. The Security Agreement, duly
executed by Borrower, together with duly executed copies of such financing
statements, instruments or documents, as is necessary, in the opinion of the
Administrative Agent, to perfect the security interest of the Banks in the
Security Agreement Collateral.
(D) Mortgages. The Mortgages duly executed and
acknowledged by Borrower.
(E) Title Insurance. An ALTA lender's form of title
insurance with a revolving credit endorsement (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 Mortgages as a first lien on the Mortgage Collateral, subject
only to those exceptions approved in writing by the Administrative Agent.
(F) Corporate Documentation. Certified copies of
Borrower's articles of incorporation and bylaws, together with documentation
evidencing its qualification to transact business in Oregon.
(G) Evidence of Corporate Action. Resolutions, in
form and content satisfactory to the Administrative Agent and each Bank 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.
(H) Incumbency Certificate. 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.
(I) Legal Opinion. The written legal opinion of
Borrower's counsel, in form and substance acceptable to the Administrative
Agent, with respect to the matters described in Sections 6.1, 6.2, 6.3 and 6.6.
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(J) Court Order. A copy of the Court Order (which
shall be in form and substance acceptable to the Administrative Agent).
(K) Acquisition Agreement. 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.
(L) Service Agreement. 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.
(M) Additional Documentation. Such other approvals,
opinions or documents as any Bank may reasonably request.
SECTION 5.2 Conditions Precedent to All Advances. The obligation of
each Bank to make each Advance shall be subject to the further conditions
precedent that on the date of providing such Advance:
(A) Representations and Warranties. Each of the
representations and warranties set forth in Article VI hereof shall be and
remain true and correct as of said date as if made at said date;
(B) No Material Adverse Effect. No event or
circumstances constituting a Material Adverse Effect has occurred since (i) the
Closing Date or (ii) the date of the most recent financial statements furnished
to the Banks pursuant to Section 7.9 hereof; and
(C) Default. No Event of Default or Potential Default
shall have occurred and be continuing or would result from providing such
Advance;
and each request for an Advance shall be and shall constitute a representation
and warranty to the foregoing effects.
SECTION 5.3 Condition Precedent to Certain Revolving Advances. The
obligation of each Bank to make Revolving Advances at a time when the limitation
on interest set forth in the penultimate paragraph of Section 2.5 is applicable
shall be subject to the further condition precedent that Borrower sets forth in
the Borrowing Notice therefor a statement to the effect that the proceeds
thereof will be used to discharge an existing bona fide obligation of Borrower
and not for investing the same in investment securities.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to each Bank that:
SECTION 6.1 Incorporation, Good Standing, Etc. Borrower is a
corporation duly organized and existing under the laws of the State of New York
and is a subsidiary of Pro-Fac. Borrower has the power and authority to own its
assets and to transact the business in which it is now engaged and is duly
qualified as a foreign corporation and is in good standing under the laws of the
State of Oregon and each other jurisdiction in which such qualification is
required.
SECTION 6.2 Power and Authority. The execution, delivery, and
performance by Borrower of the Loan Documents have been duly authorized by all
necessary corporate action and do not and will not: (1) contravene any provision
of its charter or bylaws; (2) result in a breach of or constitute a default
under any loan, credit agreement or other agreement to which it is a party or by
which it or its properties may be bound or affected; (3) result in, or require,
the creation or imposition of any unpermitted Lien upon any of its property; or
(4) violate any provision of any law, rule, regulation, judgment, order or
decree to which it is bound.
SECTION 6.3 Legally Enforceable Agreement. This Agreement and each of
the other Loan Documents constitute legal, valid and binding obligations of
Borrower, enforceable in accordance with their terms, except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency, and other
laws affecting creditors' rights generally.
SECTION 6.4 Court Approval. The Acquisition has been approved by the
Court Order.
SECTION 6.5 Financial Statements. Borrower has delivered to the Banks a
copy of an unaudited pro forma opening balance sheet of Borrower, giving effect
to the Acquisition, this Agreement, the Subordinated Notes, and all other
transactions contemplated to occur on the Closing Date. Such balance sheet was
prepared pursuant to the procedures described in the notes thereto and fairly
reflects the pro forma unaudited financial condition of Borrower on the Closing
Date. Borrower has no significant known contingent liabilities other than as
indicated on said balance sheet.
SECTION 6.6 Litigation. There are no pending or, to the knowledge of
Borrower, threatened actions or proceedings against or affecting Borrower or any
of its Subsidiaries before any court, arbitrator, governmental agency or
instrumentality, or
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other body which may, in any one case or in the aggregate, constitute a Material
Adverse Effect.
SECTION 6.7 Ownership and Liens. Except as may be permitted pursuant to
Section 8.2 hereof, none of the assets of Borrower (including its leasehold
interests) are subject to a Lien.
SECTION 6.8 Investments. As of the date hereof, Borrower does not own
any capital stock in any corporation or any equity interest in any business
entity other than: (i) equity in CoBank or (ii) equity in the St. Xxxx Bank.
SECTION 6.9 ERISA. Borrower is in compliance in all material respects
with ERISA, to the extent applicable to it, and have received no notice to the
contrary from the PBGC or any other governmental entity or agency.
SECTION 6.10 Operation of Business. Borrower possess all licenses,
permits, franchises, trademarks, and trade names (or rights thereto) to conduct
its business substantially as is contemplated to be conducted, and Borrower is
not in violation of any rights of others with respect to any of the foregoing.
SECTION 6.11 Taxes. Borrower has timely filed all tax returns (federal,
state and local) required to be filed and has paid all taxes, assessments and
governmental charges required to be paid as shown thereby. There are no pending
or, to the knowledge of Borrower, threatened investigations, objections or
controversies involving any return filed by Borrower for any Fiscal Year.
SECTION 6.12 Environment. Except as disclosed in Schedule 6.12 hereto,
Borrower is in compliance, in all material respects, with all applicable
environmental laws, rules and regulations, and Borrower has not received any
notice to the contrary or to the effect that any of its properties are the
subject of any investigation to determine whether compliance exists with all
such laws, rules and regulations.
SECTION 6.13 No Default. Borrower is in full compliance with the terms
and conditions of this Agreement, and no Event of Default or Potential Default
is existing hereunder.
SECTION 6.14 Security Interests. Upon the execution and delivery of the
Security Agreement, the Security Agreement will create a valid security interest
in the Security Agreement Collateral described therein securing the Outstanding
Obligations (subject only to Liens permitted by clauses (ii) through (vii) and
clause (ix) of Section 8.2 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
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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 5.1 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 Mortgages, the Mortgages will create a valid Lien in the Mortgage
Collateral described therein securing the Outstanding Obligations (subject only
to Liens permitted by clauses (ii) through (vii) and clause (ix) of Section
8.2), and upon recordation thereof with the appropriate governmental agency, all
action necessary to perfect the Lien so created will have been taken and
completed.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid or any Bank
shall have any Individual Credit Facility Commitment hereunder or any other
amount is owing by Borrower to any Bank hereunder or under any other Loan
Document, Borrower shall:
SECTION 7.1 Cooperative Status. Subject to Section 13.17, maintain its
status as a subsidiary of Pro-Fac eligible to borrow from CoBank.
SECTION 7.2 Corporate Existence, Etc. Preserve and maintain its
corporate existence and good standing in the jurisdiction of its incorporation
or formation, and qualify and remain qualified as a foreign corporation or
entity in each jurisdiction in which such qualification is required except where
the failure to so qualify has not and could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 7.3 Maintenance of Property. Keep and maintain all of its
properties that are necessary or useful in the proper conduct of its business in
good condition, and make all necessary renewals, replacements, additions,
betterments, and improvements thereto.
SECTION 7.4 Compliance with Laws. Comply in all material respects with
all applicable Laws. Without limiting the foregoing, Borrower agrees to comply
in all material respects with all Laws relating to environmental protection.
SECTION 7.5 Taxes. Duly pay and discharge, all taxes, rates,
assessments, fees and governmental charges upon or against Borrower or against
its properties
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before the same becomes delinquent and before penalties accrue thereon unless
and to the extent that the same is the subject of a Good Faith Contest.
SECTION 7.6 Insurance. Maintain insurance with financially sound and
reputable insurance companies or associations in such amounts and covering such
risks as are usually carried by companies engaged in the same or similar
business and similarly situated, and make such increases in the type or amount
of coverage as the Administrative Agent may reasonably request. All such
policies insuring any Collateral shall provide for loss payable clauses or
endorsements in form and content acceptable to Administrative Agent. At the
request of the Administrative Agent or any Bank, all policies (or such other
proof of compliance with this Section as may be satisfactory to the
Administrative Agent or such Bank) shall be delivered to the Administrative
Agent.
SECTION 7.7 Inspection. Permit any Bank or its representatives, agents
or independent contractors, during normal business hours or at such other times
as the parties may agree to: (a) inspect or examine its properties, books and
records; (b) to make copies of its books and records; and (c) discuss its
affairs, finances and accounts with its officers, employees and independent
certified public accountants. Without limiting the foregoing, Collateral
evaluations will be conducted by the Administrative Agent (including agents
retained by the Administrative Agent) on a quarterly basis. All costs and
expenses related to such quarterly Collateral evaluations shall be paid by the
Borrower to the Administrative Agent upon demand.
SECTION 7.8 Maintenance of Records. Keep adequate records and books of
account, in which complete entries will be made in accordance with GAAP
consistently applied, reflecting all financial transactions of Borrower.
SECTION 7.9 Reports and Notices. Furnish to the Administrative Agent:
(A) Monthly Financial Statements. As soon as
available but in no event more than 25 days after the close of each fiscal
month, a balance sheet of Borrower as of the end of such month, a statement of
income of Borrower for such period and for the Fiscal Year to date, and such
other monthly financial statements as Administrative Agent may specifically
request, all in reasonable detail and stating in comparative form the respective
figures for the corresponding date and period in the previous Fiscal Year and
prepared by Borrower in accordance with GAAP consistently applied.
(B) Annual Financial Statements. As soon as
available, but in no event later than 90 days after the end of each Fiscal Year
of Borrower financial statements of Borrower for such Fiscal Year prepared in
accordance with GAAP
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consistently applied. Such financial statements shall: (i) be audited in
accordance with generally accepted auditing standards by independent certified
public accountants of nationally recognized standing; (ii) be accompanied by a
report of such accountants containing an unqualified opinion; (iii) be prepared
in reasonable detail and in comparative form to the prior Fiscal Year; and (iv)
include a balance sheet, a statement of income, a statement of retained
earnings, a statement of cash flows, and all notes and schedules relating
thereto.
(C) Statement by Authorized Officer. Together with
the monthly financial statements received as of the end of each month, furnished
to the Administrative Agent pursuant to paragraph (A) and the annual statement
furnished to Administrative Agent under paragraph (B) above, a written statement
of Borrower signed by an Authorized Officer (i) to the effect that the
Authorized Officer has re-examined the terms and provisions of the Loan
Documents and that to the best of his or her knowledge and belief no Potential
Default or Event of Default has occurred during the period covered by such
statements or, if any such Potential Default or Event of Default has occurred
during such period, setting forth a description of such Potential Default or
Event of Default and specifying the action, if any, taken by Borrower to remedy
the same; and (ii) setting forth the information and computations (in sufficient
detail) required to establish whether Borrower was in compliance with the
requirements of Sections 9.1 and 9.2 as of the end of the most recent Fiscal
Quarter.
(D) Annual Budget. As soon as available but in no
event later than thirty (30) days after the commencement of any Fiscal Year of
the Borrower occurring during the term hereof, copies of Borrower's annual
budgets and forecasts of operations and capital expenditures.
(E) Notice of Non-Environmental Litigation. Promptly
after the commencement thereof, notice of the commencement of all actions,
suits, or proceedings before any court, arbitrator, governmental agency or
instrumentality, or other body affecting Borrower which, if determined adversely
to Borrower could result in a Material Adverse Effect.
(F) Notice of Environmental Litigation, Etc. Promptly
after receipt thereof, notice of the receipt of all pleadings, orders,
complaints, indictments, or any other communication alleging a condition that
may require Borrower to undertake or to contribute to a cleanup or other
response under environmental Laws, or which seek penalties, damages, injunctive
relief, or criminal sanctions related to alleged violations of such Laws, or
which claim personal injury or property damage to any person as a result of
environmental factors or conditions.
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(G) Notice of Default or Material Adverse Affect.
Promptly after becoming aware thereof, notice of the occurrence of a Potential
Default or of an Event of Default or of the occurrence of any event or
circumstance that constitutes a Material Adverse Effect (including, without
limitation, any material loss or depreciation in the value of the Collateral).
(H) ERISA. At least 30 days prior to the effective
date thereof notice of Borrower's intent to withdraw from or terminate any Plan.
(I) Other Information. Such other information
regarding the condition or operations, financial or otherwise, of Borrower as
Administrative Agent may, from time to time, reasonably request, including, but
not limited to, copies of all pleadings, notices, and communications referred to
in Subsections (E) and (F) above.
SECTION 7.10 ERISA. Promptly pay and discharge all obligations and
liabilities under ERISA of a character which if unpaid or unperformed might
result in the imposition of a Lien against any of its property and not terminate
any Plan or withdraw therefrom unless it shall be in compliance with all of the
terms and conditions of this Agreement after giving effect to any liability to
the PBGC resulting from such termination or withdrawal.
SECTION 7.11 Use of Proceeds. Use the Credit Facilities provided for
herein solely to finance the Acquisition, to pay the Specified Expenses and to
finance subsequent short-term working capital requirements of Borrower.
SECTION 7.12 Change In Business. Continue to engage in business of the
same general type as now conducted by it and not engage in any business
activities unrelated to its present business activities or operations.
SECTION 7.13 Investments In CoBank. Purchase such equity in CoBank as
CoBank may from time to time require in accordance with its bylaws and capital
plan. In connection therewith, Borrower hereby acknowledges receipt of a written
description of the terms and conditions under which such equity is issued.
SECTION 7.14 Transfer Pricing and Allocations. Maintain transfer
pricing and sales allocation policies and practices between Borrower, on the one
hand, and Pro-Fac and Agrilink, on the other hand, that are designed to be fair
and equitable to Borrower and its creditors (including the Banks). It is
understood and agreed that the inspection rights of the Administrative Agent and
the Banks under Section 7.7 shall extend to inspection of such records as may be
appropriate to verify the foregoing.
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ARTICLE VIII
NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid or any Bank
shall have any Individual Credit Facility Commitment hereunder or any other
amount is owing by Borrower to any Bank hereunder or under any other Loan
Document, Borrower shall not:
SECTION 8.1 Borrowings. Create, incur, assume, or allow to exist,
directly or indirectly, any indebtedness or liability for borrowed money
(including trade or bankers' acceptances), letters of credit, or the deferred
purchase price of property or services (including capitalized leases), except
for: (i) debt to Banks; (ii) accounts payable to trade creditors incurred in the
ordinary course of business; (iii) current operating liabilities (other than for
borrowed money) incurred in the ordinary course of business; (iv) the
Subordinated Notes; and (v) purchase money indebtedness arising under equipment
leases or similar agreements assumed by Borrower pursuant to the Acquisition
Agreement.
SECTION 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: (i) Liens in favor of Administrative
Agent on behalf of the Banks; (ii) Liens for taxes, assessments, or governmental
charges that are not past due; (iii) Liens and deposits under workers'
compensation, unemployment insurance, and social security Laws; (iv) 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; (v) Liens imposed
by Law in favor of mechanics, materialmen, warehousemen, and like persons that
secure obligations that are not past due; (vi) 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; (vii) liens retained by
software vendors in conjunction with software license agreements; (viii) Liens
securing the Subordinated Notes subordinate in all respects to the Liens under
the Security Agreement and Mortgages and (ix) Liens securing indebtedness
permitted by clause (v) of Section 8.1.
SECTION 8.3 Transfer Of Assets. Sell, transfer, lease, or otherwise
dispose of any of its assets, except in the ordinary course of Borrower's
business.
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SECTION 8.4 Mergers, Acquisitions, Etc. Merge or consolidate with any
other entity or acquire all or a material part of the assets of any Person, or
form or create any new subsidiary or affiliate, or commence operations under any
other name, organization, or entity, including any joint venture, without the
prior written consent of the Required Banks (which shall not be unreasonably
withheld or delayed).
SECTION 8.5 Loans. Lend or advance money, credit, or property to any
Person, except for loans and other financial services extended in the ordinary
course of Borrower's business.
SECTION 8.6 Contingent Liabilities. Assume, guarantee, become liable as
a surety, endorse, contingently agree to purchase, or otherwise be or become
liable, directly or indirectly (including, but not limited to, by means of a
maintenance agreement, an asset or stock purchase agreement, or any other
agreement designed to ensure any creditor against loss), for or on account of
the obligation of any person or entity, except by the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of the Borrower's business, except for leasehold indemnification
agreements required by lessors in the ordinary course of business.
SECTION 8.7 Change in Business. Engage in any business activities or
operations substantially different from or unrelated to Borrower's contemplated
business activities or operations.
SECTION 8.8 Dividends, Etc. Declare or pay any dividends or retire
capital equities, or make any other distribution of its earnings, surplus or
assets to any holder of its capital stock, except that Borrower may (a) declare
and pay cash dividends in each Fiscal Year in an amount not in excess of 20% (or
such higher minimum percentage as may be required under Subchapter T of the
Internal Revenue Code if then applicable to Borrower) of the net income of
Borrower for the immediately preceding Fiscal Year as set forth in the audited
financial statements of Borrower for such Fiscal Year, and (b) make qualified
and non-qualified retain allocations; provided in any case described in clause
(a) or (b) that no Potential Default or Event of Default then exists or would
result therefrom. Borrower shall retain the balance of such net income after any
such dividend as retained earnings of Borrower.
SECTION 8.9 Retirement of Indebtedness. Prepay or retire, directly or
indirectly, any loans or other indebtedness permitted hereunder owing to any
Person, or modify the terms of any such indebtedness permitted hereunder, which
is subordinated in right of payment to Borrower's obligations hereunder.
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SECTION 8.10 Change in Fiscal Year. Change its Fiscal Year to a period
other than the Fiscal Year in effect on the date of this Agreement without
providing prompt prior written notice to the Administrative Agent.
SECTION 8.11 Other Borrowings Covenants. Enter into any covenants or
provisions through other borrowings when permitted hereunder which are more
restrictive than those contained herein.
SECTION 8.12 Capital Expenditures. Expend or incur obligations to
expend in any Fiscal Year (or portion thereof) Capital Expenditures more than
the amount set forth below opposite such Fiscal Year (or portion thereof):
Period Amount
------ -------
Closing Date through $1,200,000
June 26, 1999
Fiscal Year ending $3,500,000
June 24, 2000
Fiscal Year ending $3,605,000
June 30, 2001
Fiscal Year ending $3,710,000
June 29, 2002
SECTION 8.13 Administrative Expenditures. Expend or incur obligations
to expend in any Fiscal Year (or portion thereof) Administrative Expenditures
more than the amount set forth below opposite such Fiscal Year (or portion
thereof):
Period Amount
------ -------
Closing Date through $3,000,000
June 26, 1999
Fiscal Year ending $2,000,000
June 24, 2000
Fiscal Year ending $2,060,000
June 30, 2001
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Fiscal Year ending $2,120,000
June 29, 2002
SECTION 8.14 Payments to Agrilink or Pro-Fac. Make any payment for any
purpose to Agrilink or Pro-Fac except (a) dividends permitted pursuant to
Section 8.8 and (b) payments to Agrilink pursuant to the Service Agreement;
provided that if a Potential Default or Event of Default then exists, any
payment otherwise payable to Agrilink based on EBITDA for the most
recently-ended Fiscal Year shall be reduced by 50% and the balance of such
payment cancelled (except, if such reduction occurs by reason of a Potential
Default that is subsequently cured by Borrower before it matures into an Event
of Default without a waiver from the Banks, then such reduction shall be
cancelled and Agrilink may be paid 100% of such payment).
SECTION 8.15 Amendments. Make any amendment to the Service Agreement or
Subordinated Notes without the prior written consent of the Required Banks
(which shall not be unreasonably withheld or delayed).
ARTICLE IX
FINANCIAL COVENANTS
So long as any of the Notes shall remain unpaid or any Bank
shall have any Individual Credit Facility Commitment or any other amount is
owing by Borrower to any Bank hereunder or under any other Loan Document:
SECTION 9.1 Leverage Ratio. Borrower shall have, as of the end of each
Fiscal Quarter described below, a ratio of Funded Debt to EBITDA for the four
(4) Fiscal Quarters then ended of not greater than the ratio set forth opposite
such Fiscal Quarter:
Fiscal Quarter
Ending Ratio
------ -----
June 24, 2000 6.5 to 1.00
September 30, 2000 8.0 to 1.00
December 30, 2000 8.0 to 1.00
March 31, 2001 8.0 to 1.00
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June 30, 2001 6.0 to 1.00
Each Fiscal Quarter
thereafter 7.5 to 1.00
SECTION 9.2 Minimum EBITDA. Borrower shall have, as of the end of each
Fiscal Quarter described below, EBITDA of not less than the amount set forth
opposite such Fiscal Quarter:
Fiscal Quarter Ending Amount
--------------------- -------
September 25, 1999 $1,500,000 for the Fiscal
Quarter then ended
December 25, 1999 $4,000,000 for the
two (2) Fiscal Quarters
then ended
March 25, 2000 $7,500,000 for the three (3)
Fiscal Quarters then ended
June 24, 2000 and each $12,000,000 for the
Fiscal Quarter thereafter four (4) Fiscal Quarters
then ended
ARTICLE X
DEFAULT
SECTION 10.1 Events of Default. Each of the following shall constitute
an "Event of Default" hereunder:
(A) Principal Payment Default. Failure by Borrower to
make any principal payment required to be made hereunder within 5 days after the
date when due; or
(B) Other Payment Default. Failure by Borower 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
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(C) Representations and Warranties. Any
representation or warranty made by Borrower herein or in any agreement,
certificate or document related hereto or furnished in connection herewith,
shall prove to have been false or misleading in any material respect on or as of
the date made; or
(D) Certain Affirmative Covenants. Failure by
Borrower to perform or comply with any covenant set forth in Sections 7.3
through 7.9 hereof (other than 7.9(E) through (H)) and such failure continues
for 15 days after written notice thereof shall have been delivered to Borrower
by any Bank; or
(E) Other Covenants and Agreements. Borrower shall
fail to perform or comply with any other covenant or agreement contained herein,
including any covenant excluded in (D) above and such failure continues for 5
days after written notice thereof shall have been delivered to Borrower by any
Bank; or
(F) Cross-Default. Borrower 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 Borrower and any Bank; or
(G) Other Indebtedness. Borrower 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) Material Adverse Effect. The Required Banks shall
have determined that an event or circumstance constituting a Material Adverse
Effect has occurred; or
(I) Judgments. A judgment, decree, or order for the
payment of money in excess of $50,000 shall be rendered against the Borrower and
either: (i) enforcement proceedings shall have been commenced; (ii) a Lien
prohibited under Section 8.2 hereof shall have been obtained; or (iii) such
judgment, decree, 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) ERISA. 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 Borrower by Administrative
-35-
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) Bankruptcy, Etc. Borrower 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
Section 10.1(L) hereof; or (7) take any corporate action in furtherance of any
of the foregoing; or
(L) Involuntary Trustees, Etc. A custodian, receiver,
trustee, conservator, liquidator or similar official shall be appointed for
Borrower or any substantial part of its property, or a proceeding described in
Section 10.1(K)(5) shall be instituted against Borrower and such appointment
continues undischarged or any such proceeding continues undismissed or unstayed
for a period of 60 days; or
(M) Sale of Borrower. Borrower shall cease to be a
subsidiary of Pro-Fac, or Borrower shall sell or transfer all or substantially
all of its assets to a Person that is not a subsidiary of Pro-Fac.
SECTION 10.2 Remedies Upon Default.
(A) 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 10.1(K) or (L)), the Banks may, upon vote of
the Required Banks and upon notice to Borrower: (1) declare the Banks'
obligations to extend credit hereunder to be terminated, whereupon the same
shall terminate; (2) declare the outstanding Notes, all interest thereon, and
all other amounts payable under this 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 (3) proceed to foreclose against any security, take any action
or exercise any remedy under any of the Loan
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Documents, or exercise any other action, right, power or remedy permitted by
Law. Without limiting the foregoing, any Bank may exercise its right of set off
with regard to any deposit accounts or other accounts maintained by Borrower
with any of the Banks for the pro rata benefit of the Banks. Notwithstanding the
foregoing or Section 1.1(74) hereof, if following the occurrence of an Event of
Default (other than an Event of Default described in Subsection 10.1 (K) or
(L)), the Required Banks do not, for a period of more than 90 days, agree to
either exercise the rights provided for in this Subsection or (to the extent the
Required Banks have the authority to do so under Section 13.1 hereof) waive the
Event of Default (or amend this Agreement to eliminate the Event of Default),
then the term "Required Banks" shall, after such 90th day and only for the
purpose of electing affirmatively to exercise the Banks' rights under this
Section, mean a majority in number of the Banks.
(B) Remedies For Bankruptcy Defaults. Upon the
occurrence of an Event of Default described in Subsections 10.1(K) or (L): (1)
the obligation of the Banks to extend further credit pursuant to any of the
terms hereof shall immediately terminate; (2) 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 (3) the Banks may, upon vote of the Required Banks,
exercise such rights and remedies as may be permitted by law. Notwithstanding
the foregoing or Section 1.1(74) hereof, in the event the Required Banks do not,
for a period of more than 60 days, agree on how to exercise such rights and
remedies, then the term "Required Banks" 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 Banks.
(C) Application of Payments. If the vote of the
Required Banks referred to in Section 10.2(A) is obtained and notice ("Section
10.2(A) Notice") is given to Borrower as required therein or if there is an
Event of Default as described in Section 10.2(B) ("Section 10.2 (B) Default"),
then, effective on the date of the Section 10.2(A) Notice or Section 10.2 (B)
Default ("Application of Payments Effective Date"), all amounts payable by
Borrower with respect to the Outstanding Obligations, and all amounts received
by the Banks with respect to the Outstanding Obligations, shall, as to each
Bank, be in the proportion of its Pro Rata Share.
ARTICLE XI
FIXED RATE LOAN AND CAPITAL ADEQUACY MATTERS
SECTION 11.1 Broken Funding Surcharge. Notwithstanding any provision
in this Agreement giving Borrower the right to repay any Loan prior to the date
it would
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otherwise be due and payable, Borrower agrees that in the event it repays any
Fixed Rate Loan prior to its scheduled due date or prior to the last day of the
Interest Period applicable thereto (whether such payment is made voluntarily, as
a result of an acceleration, or otherwise), Borrower will pay to the
Administrative Agent a surcharge in an amount which would result in the Banks
being made whole (on a present value basis) for the actual or imputed funding
loss incurred by the Banks as a result thereof. Such surcharges will be
calculated in accordance with methodology established by the Administrative
Agent (a copy of which will be made available to Borrower upon request).
SECTION 11.2 Limitation on Types of Advances. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of the Fixed Rate
for any Interest Period:
(1) Administrative Agent determines (which determination shall
be conclusive) that funding sources are not being provided for the relevant
maturities for purposes of determining rates of interest for Fixed Rate Loans as
provided in this Agreement; or
(2) any Bank determines (which determination shall be
conclusive) that the "CoBank Quoted Rate" does not adequately cover the cost to
that Bank of making or maintaining such Fixed Rate Loan for such Interest
Period;
then Administrative Agent shall give Borrower prompt notice thereof, and so long
as such condition remains in effect, in the case of subsection (1) above, the
Banks, and in the case of subsection (2) above, the Bank that makes the
determination, shall be under no obligation to make Fixed Rate Loans, convert
Variable Rate Loans into Fixed Rate Loans, or continue Fixed Rate Loans, and
Borrower shall, on the last day(s) of the then current applicable Interest
Period(s) for the outstanding Fixed Rate Loans, either repay such Fixed Rate
Loans or convert such Fixed Rate Loans into a Variable Rate Loan in accordance
with Section 2.13.
SECTION 11.3 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain Fixed Rate Loans
hereunder or convert Variable Rate Loans to Fixed Rate Loans, then such Bank
shall promptly notify Administrative Agent and Borrower thereof and such Bank's
obligation to make or continue, or to convert Variable Rate Loans into, Fixed
Rate Loans shall be suspended until such time as such Bank may again make and
maintain Fixed Rate Loans (in which case the provisions of Section 11.2 hereof
shall be applicable).
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SECTION 11.4 Treatment of Affected Loans. If the obligations of any
Bank to make or continue Fixed Rate Loans, or to convert Variable Rate Loans
into Fixed Rate Loans, are suspended pursuant to Section 11.2 or 11.3 hereof
(all Fixed Rate Loans so affected being herein called "Affected Loans"), such
Bank's Affected Loans shall be automatically converted into Variable Rate Loans
on the last day(s) of the then current Interest Period(s) for the Affected Loans
(or, in the case of a conversion required by Section 11.2 or 11.3, on such
earlier date as such Bank may specify to Borrower).
To the extent that such Bank's Affected Loans have been so
converted, all payments and prepayments of principal which would otherwise be
applied to such Bank's Affected Loans shall be applied instead to its Variable
Rate Loans. All Loans which would otherwise be made or continued by such Bank as
Fixed Rate Loans shall be made or continued instead as Variable Rate Loans, and
all Variable Rate Loans of such Bank which would otherwise be converted into
Fixed Rate Loans shall remain as Variable Rate Loans.
SECTION 11.5 Capital Adequacy. If any Bank shall have determined that,
after the date hereof, the adoption of any applicable Law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its parent corporation) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
parent corporation) could have achieved but for such adoption, change, request
or directive (taking into consideration its policies with respect to capital
adequacy existing on the date of this Agreement) by an amount deemed by such
Bank to be material, then from time to time, within fifteen (15) days after
demand by such Bank (with a copy to Administrative Agent), Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or its
parent corporation) for such reduction. A certificate of any Bank claiming
compensation under this Section, setting forth in reasonable detail the basis
therefor, shall be conclusive in the absence of manifest error.
However, to the extent capital costs relate to a Bank's loans
in general and not specifically to a Loan hereunder, such Bank shall use
reasonable averaging and attribution methods. In addition, each Bank agrees
that, as promptly as practical after it becomes aware of the occurrence of an
event or the existence of a condition that would entitle it to exercise its
rights under this Section, it will use commercially reasonable efforts to make,
fund or maintain the affected Advances through another lending office of such
Bank if (1) as a result thereof the additional money that would
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otherwise be required to be paid in respect of such Advances would be reduced,
and (2) the making, funding or maintaining of such Advances through such other
lending office would not adversely affect such Advances or such Bank. Finally,
if a Bank is to require Borrower to make payments under this Section then Bank
must make a demand on Borrower to make such payment within ninety (90) days of
the later of (1) the date on which such capital costs are actually incurred by
such Bank, or (2) the date on which such Bank knows, or should have known, that
such capital costs have been incurred by such Bank.
SECTION 11.6 Right of Substitution. Borrower and the Banks agree that
if (1) a Bank requests compensation pursuant to Section 11.1 or Section 11.5 or
(2) Section 11.3 applies, Borrower shall have the right to substitute a bank to
replace the Bank in question, provided, that, (1) all the terms and requirements
of Section 13.5 are complied with, (2) Borrower compensates the Bank being
removed for the losses, costs and expenses incurred by such Bank as a result of
such substitution, and payment to the replaced Bank of compensation in
accordance with Section 11.5 as if all Loans transferred to the new bank by the
replaced Bank were prepaid on the date of such assignment and the payment of the
principal and interest owed to such replaced Bank.
ARTICLE XII
AGENCY PROVISIONS
SECTION 12.1 Appointment, Powers and Immunities of Administrative
Agent. Each Bank hereby irrevocably appoints and authorizes the Administrative
Agent to act as its agent hereunder and under any other Loan Document with such
powers as are specifically delegated to such Administrative Agent by the terms
of this Agreement and any other Loan Document, together with such other powers
as are reasonably incidental thereto. The Administrative Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and any other Loan Document, and shall not by reason of this Agreement be a
trustee or fiduciary for any Bank. The Administrative Agent shall not be
responsible to any Bank for any recitals, statements, representations or
warranties made by Borrower or any officer or official of Borrower or any other
Person contained in this Agreement or any other Loan Document, or in any
certificate or other document or instrument referred to or provided for in, or
received by any of them under, this Agreement or any other Loan Document, or for
the value, legality, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or any other document
or instrument referred to or provided for herein or therein, or for any failure
by Borrower to perform any of its obligations hereunder or thereunder. The
Administrative Agent may employ agents and attorneys-in-fact and shall not be
responsible, except as to money or securities
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received by it or its authorized agents, for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. Neither
the Administrative Agent nor any of its respective directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by it or them hereunder or under any other Loan Document or
in connection herewith or therewith, except for its or their own gross
negligence or willful misconduct. Borrower shall pay any fee agreed to by
Borrower and the Administrative Agent with respect to the Administrative Agent's
services hereunder.
SECTION 12.2 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, facsimile, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat each Bank as
the holder of the Advances made by it for all purposes hereof unless and until a
notice of the assignment or transfer thereof satisfactory to the Administrative
Agent signed by such Bank shall have been furnished to the Administrative Agent,
but the Administrative Agent shall not be required to deal with any Person who
has acquired a participation in any Loan from a Bank. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by the
Required Banks, and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks and the Administrative Agent and any other holder of
all or any portion of any Loan.
SECTION 12.3 Defaults. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Potential Default or Event of Default
unless the Administrative Agent has received notice from a Bank or Borrower
specifying such Potential Default or Event of Default and stating that such
notice is a "Notice of Default." In the event that the Administrative Agent
receives such a Notice of Default, the Administrative Agent shall give prompt
notice thereof to the Banks. The Administrative Agent shall take such action
with respect to such Potential Default or Event of Default which is continuing
as shall be directed by the Required Banks; provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may take such action, or refrain from taking such action, with respect to
such Potential Default or Event of Default as it shall deem advisable in the
best interest of the Banks; and provided further that the Administrative Agent
shall not be required to take any such action which it determines to be contrary
to Law.
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SECTION 12.4 Rights of the Administrative Agent as a Bank. With respect
to its Individual Revolving Credit Facility Commitment or Individual Term Credit
Facility Commitment and the Advances provided by it, the Administrative Agent in
its capacity as a Bank hereunder shall have the same rights and powers hereunder
as any other Bank and may exercise the same as though it were not acting as the
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Administrative Agent in its capacity as a Bank.
The Administrative Agent and its Affiliates may (without having to account
therefor to any Bank) accept deposits from, lend money to (on a secured or
unsecured basis), and generally engage in any kind of banking, trust or other
business with Borrower or any of its Affiliates as if it were not acting as the
Administrative Agent, and the Administrative Agent may accept fees and other
consideration from Borrower for services in connection with this Agreement or
otherwise without having to account for the same to any Bank.
SECTION 12.5 Indemnification of Administrative Agent. Each Bank agrees
to indemnify the Administrative Agent (to the extent not reimbursed under
Section 13.6 or under the applicable provisions of any other Loan Document, but
without limiting the obligations of Borrower under Section 13.6 or such
provisions), for its Pro Rata Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement or any other Loan Document, or any other
documents contemplated by or referred to herein or therein, or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses which Borrower is obligated to pay under Section 13.6) or under the
applicable provisions of any other Loan Document or the enforcement of any of
the terms hereof or thereof or of any such other documents or instruments;
provided that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Administrative
Agent or its directors, officers, employees or agents.
SECTION 12.6 Non-Reliance on Administrative Agent and Other Banks. Each
Bank agrees that it has, independently and without reliance on the
Administrative Agent, or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of
Borrower and the decision to enter into this Agreement and the other Loan
Documents and that it will, independently and without reliance upon the
Administrative Agent, or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any other Loan Document. The Administrative Agent shall not be required to keep
itself informed as to the performance or observance by Borrower of
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this Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or to inspect the properties or books of
Borrower. The Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of Borrower which may come into the possession
of the Administrative Agent, or any of its Affiliates. The Administrative Agent
shall not be required to file this Agreement or any other Loan Document or any
document or instrument referred to herein or therein, for record or give notice
of this Agreement or any other Loan Document or any document or instrument
referred to herein or therein, to anyone. Each of the Banks acknowledges and
agrees that the Administrative Agent only has the duties and responsibilities
explicitly set forth in the Loan Documents.
SECTION 12.7 Failure of Administrative Agents to Act. Except for action
expressly required of the Administrative Agent hereunder, the Administrative
Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have received further assurances (which may include
cash collateral) of the indemnification obligations of the Banks under Section
12.5 in respect of any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.
SECTION 12.8 Resignation or Removal of Administrative Agent. Subject to
the appointment and acceptance of a successor Administrative Agent, as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Banks and Borrower, and the Administrative Agent may be removed
at any time with or without cause by the Required Banks; provided that Borrower
and each other Bank shall be promptly notified thereof. Upon any such
resignation or removal, the Required Banks shall have the right, subject to
prior consultation with Borrower, to appoint a successor Administrative Agent
which must be located in the United States of America. If no successor
Administrative Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation or the Required Banks'
removal of such retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a successor Administrative Agent
which must be located in the United States of America. The Required Banks or the
retiring Administrative Agent, as the case may be, shall upon the appointment of
a successor Administrative Agent promptly so notify Borrower and each other
Bank. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent the provisions of this
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Article XII shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
SECTION 12.9 Amendments Concerning Agency Function. The Administrative
Agent shall not be bound by any waiver, amendment, supplement or modification of
this Agreement or any other Loan Document which affects its duties hereunder or
thereunder unless it shall have given its prior consent thereto.
SECTION 12.10 Liability of Administrative Agent. The Administrative
Agent shall not have any liabilities or responsibilities to Borrower on account
of the failure of any Bank to perform its obligations hereunder or to any Bank
on account of the failure of Borrower to perform their respective obligations
hereunder or under any other Loan Document.
SECTION 12.11 Transfer of Agency Function. Without the consent of
Borrower or any Bank, the Administrative Agent may at any time or from time to
time transfer its functions as Administrative Agent hereunder to any of its
offices located in the United States of America, provided that the
Administrative Agent shall promptly notify Borrower and each Bank.
SECTION 12.12 Withholding Taxes. Each Bank represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to the Administrative Agent and to
Borrower such forms, certifications, statements and other documents as the
Administrative Agent or Borrower may request from time to time to evidence such
Bank's exemption from the withholding of any tax imposed by any jurisdiction or
to enable the Administrative Agent or Borrower, as the case may be, to comply
with any applicable Laws or regulations relating thereto. Without limiting the
effect of the foregoing, if any Bank is not created or organized under the Laws
of the United States of America or any state thereof, such Bank will furnish to
the Administrative Agent and Borrower Form 4224 or Form 1001 of the Internal
Revenue Service, or such other forms, certifications, statements or documents,
duly executed and completed by such Bank, as evidence of such Bank's exemption
from the withholding of United States tax with respect thereto. Notwithstanding
anything herein to the contrary, Borrower shall not be obligated to make any
payments hereunder to such Bank in respect of any Advance until such Bank shall
have furnished to the Administrative Agent and Borrower the requested form,
certification, statement or document.
SECTION 12.13 Non-Receipt of Funds by Administrative Agent.
(A) Unless Administrative Agent shall have received
notice from a Bank prior to the date on which such Bank is to provide funds to
Administrative
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Agent for an Advance to be made by such Bank that such Bank will not make
available to Administrative Agent such funds, Administrative Agent may assume
that such Bank has made such funds available to Administrative Agent on the date
of such Advance in accordance with the terms of this Agreement and
Administrative Agent in its sole discretion may, but shall not be obligated to,
in reliance upon such assumption, make available to Borrower on such date a
corresponding amount. If and to the extent such Bank shall not have made such
funds available to Administrative Agent, such Bank agrees to repay
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
Borrower until the date such amount is repaid to Administrative Agent, at the
customary rate set by Administrative Agent for the correction of errors among
banks for three (3) Banking Days and thereafter at the Variable Rate. If such
Bank shall repay to Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Bank's Advance for purposes of this Agreement.
If such Bank does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Borrower, and Borrower shall immediately pay such corresponding amount to
Administrative Agent with the interest thereon, for each day from the date such
amount is made available to Borrower until the date such amount is repaid to
Administrative Agent, at the rate of interest applicable at the time to such
proposed Advance.
(B) Unless Administrative Agent shall have received notice
from Borrower prior to the date on which any payment is due to any Bank
hereunder that Borrower will not make such payment in full, Administrative Agent
may assume that Borrower has made such payment in full to Administrative Agent
on such date and Administrative Agent in its sole discretion may, but shall not
be obligated to, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent Borrower shall not have so made such payment in full to
Administrative Agent, each Bank shall repay to Administrative Agent forthwith on
demand such amount distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such Bank until the date
such Bank repays such amount to Administrative Agent at the customary rate set
by Administrative Agent for the correction of errors among banks for three (3)
Banking Days and thereafter at the Variable Rate.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Amendments, Etc. No amendment, modification, termination,
or waiver of any provision of this 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 Banks, 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 Banks, do any of the following: (a) waive any of
the conditions precedent specified in Section 6.1; (b) increase the Individual
Revolving Credit Facility Commitment or Individual Term Credit Facility
Commitment of any Bank or subject any Bank 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 Banks; (f) release any
collateral; (g) amend, modify any Bank's rights to receive its Pro Rata Share of
any payment or proceeds of Collateral; or (h) amend, modify or waive any
provision of this Section 13.1, and provided further than no amendment, waiver,
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Administrative Agent under any of the Loan Documents.
SECTION 13.2 Usury. Anything herein to the contrary notwithstanding,
the obligations of Borrower under this Agreement and the Notes shall be subject
to the limitation that payments of interest shall not be required to the extent
that receipt thereof would be contrary to provisions of Law applicable to a Bank
limiting rates of interest which may be charged or collected by such Bank.
SECTION 13.3 Notices. Unless the party to be notified otherwise
notifies each other party in writing as provided in this Section, and except as
otherwise provided in this Agreement, notices shall be given to the
Administrative Agent by telephone, confirmed by telex, facsimile, or other
writing, and to the Banks and to Borrower by ordinary mail, facsimile or telex
addressed to such party at its address on the signature page of this Agreement.
Notices shall be effective: (1) if given by mail, upon receipt; and (2) if given
by telex or facsimile, when the telex or facsimile is transmitted to the telex
or facsimile number as aforesaid.
SECTION 13.4 No Waiver. No failure or delay on the part of any Bank or
the Administrative Agent in exercising any right, power, or remedy hereunder
shall
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operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power, or remedy preclude any other or further exercise thereof or
the exercise of any other right, power, or remedy hereunder. The rights and
remedies provided herein are cumulative, and are not exclusive of any other
rights, powers, privileges, or remedies, now or hereafter existing, at law or in
equity or otherwise.
SECTION 13.5 Assignments and Participations. This Agreement shall be
binding upon, and shall inure to the benefit of, Borrower, Administrative Agent
and Banks and their respective successors and permitted assigns. Borrower may
not assign or transfer its rights or obligations hereunder.
Any Bank 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 Agreement and its Notes, and such Assignee shall assume rights and
obligations, pursuant to an Assignment and Assumption Agreement executed by such
Assignee and such Bank, 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
Individual Revolving Credit Facility Commitment and Individual Term Credit
Facility Commitment assigned is equal to or greater than the Minimum Assignment,
(2) the portion of the Individual Revolving Credit Facility Commitment and
Individual Term Credit Facility Commitment retained by the assigning Bank is
equal to or greater than its Minimum Hold, and (3) the assigning Bank 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 Bank of an amount equal to the
purchase price agreed between the Bank and such Assignee, such Assignee shall be
a Bank to this Agreement and shall have all the rights and obligations of a Bank
with the Individual Facility Commitment as set forth in such Assignment and
Assumption Agreement, and the assigning Bank 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.
Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
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With the consent of Borrower (which consent shall not be
unreasonably withheld or delayed), any Bank may at any time grant to one or more
banks or other financial institutions (each a "Participant") participating
interests in its portion of the Loans. In no event shall a Participant
constitute a Bank for purposes hereof. In the event of any such grant by a Bank
of a participating interest to a Participant, whether or not upon notice to
Borrower and the Administrative Agent, such Bank 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 Bank
in connection with such Bank's rights and obligations hereunder. Any agreement
pursuant to which any Bank may grant such a participating interest shall provide
that such Bank 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 Agreement or any other Loan Document, provided that
such participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in the proviso in
Section 13.1 without the consent of the Participant.
Borrower agrees to provide all assistance reasonably requested
by a Bank (at the sole cost and expense of such Bank) to enable such Bank either
to sell participations in or make assignments of its portion of the Loans as
permitted by this Section.
CoBank agrees that all Loans that are made by CoBank and that
are retained for its own account and are not included in any sales of
participation interest shall be entitled to patronage distributions in
accordance with the bylaws of CoBank and its practices and procedures related to
patronage distribution. Accordingly, all Loans that are included in a sale of
participation interest shall not be entitled to patronage distributions.
SECTION 13.6 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 Banks on demand for all costs, expenses, and charges
(including, without limitation, all fees and charges of external legal counsel
for Administrative Agent, and each Bank) incurred by Administrative Agent, or
any Bank in connection with compliance with any of the Loan Documents, or
enforcement of this 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 Agreement
(including, without limitation, the preparation of any amendments hereto or to
the
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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 Bank). Borrower agrees to and hereby does indemnify each Bank
and their respective directors, 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 Agreement or
any of the Loan Documents or to any actual or proposed use by Borrower of the
proceeds of the Loans 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 Banks and Administrative Agent agree
that the cost of each wire transfer to be made by each such Person pursuant to
the terms of this Agreement will be borne by the Person making such transfer.
The obligations of Borrower under this Section shall survive
the repayment of the Loans and payment of all amounts due under or in connection
with any of the Loan Documents and the termination of the Commitments.
SECTION 13.7 Integration. The Loan Documents set forth the entire
agreement among the parties hereto relating to the transactions contemplated
thereby supersede any prior oral or written statements or agreements with
respect to such transactions.
SECTION 13.8 Jurisdiction; Immunities. Borrower hereby irrevocably
submits to the jurisdiction of any Colorado State or United States Federal court
sitting in Denver over any action or proceeding arising out of or relating to
this Agreement, the Notes, or any other Loan Document, and Borrower hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Colorado State or Federal court. Borrower
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to Borrower at its then
current address as described in Section 13.3. Borrower agrees, to the extent
permitted by Law, that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by Law. Borrower further waives any objection to
venue in such State and any objection to an action or proceeding in such State
on the basis of forum non conveniens. Borrower agrees that any action or
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proceeding brought against any Bank shall be brought only in Colorado State or
United States Federal court sitting in Denver.
Nothing in this Section shall affect the right of any Bank to
serve legal process in any other manner permitted by Law or affect the right of
any Bank to bring any action or proceeding against Borrower or its property in
the courts of any other jurisdiction.
To the extent that Borrower has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether from
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, Borrower hereby
irrevocably waives, to the extent permitted by law, such immunity in respect of
its obligations under this Agreement, the Notes, the Letters or Credit, and any
other Loan Document.
SECTION 13.9 Governing Law. Except to the extent governed by applicable
Federal law, this Agreement, the Loan Documents and the Notes shall be governed
by, and construed in accordance with, the Laws of the State of Colorado.
SECTION 13.10 Effectiveness and Severability of Provisions. This
Agreement and the other Loan Documents to which Borrower is a party shall
continue in effect until all indebtedness and obligations of Borrower hereunder
and under all other Loan Documents to which it is a party shall have been
repaid. Any provision of this Agreement or Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Loan Document or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.11 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
SECTION 13.12 Exhibits and Schedules. The Exhibits and Schedules are a
part of this Agreement as if fully set forth herein. All references herein to
Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall otherwise
require.
SECTION 13.13 Table of Contents; Headings. The headings in the Table of
Contents and in this Agreement are for reference only, and shall not affect the
interpretation or construction of this Agreement.
-50-
SECTION 13.14 Severability. If any word, phrase, sentence, paragraph,
provision or section of this Agreement shall be held, declared, pronounced or
rendered invalid, void, unenforceable or inoperative for any reason by any court
of competent jurisdiction, governmental authority, statute or otherwise, such
holding, declaration, pronouncement or rendering shall not adversely affect any
other word, phrase, sentence, paragraph, provision or section of this Agreement,
which shall otherwise remain in full force and effect and be enforced in
accordance with its terms.
SECTION 13.15 Consents. Each Bank that is a party to this Agreement
hereby consents, to the extent required under any agreement between the Bank and
Borrower, to Borrower entering into this Agreement and obtaining the Credit
Facilities provided under this Agreement.
SECTION 13.16 Confidentiality. Each Bank shall maintain the
confidential nature of, and shall not use or disclose, any of Borrower's
financial information, confidential information or trade secrets without first
obtaining Borrower's written consent. Nothing in this Section shall require any
Bank to obtain the consent of Borrower before exercising any of its respective
rights under the Loan Documents upon the occurrence of an Event of Default. The
obligations of the Bank shall in no event apply to: (1) providing information
about Borrower to any financial institution contemplated in Section 13.5
pursuant to a confidentiality agreement conforming to this Section 13.16 in all
material respects or to such Bank's parent holding company; (2) any situation in
which any Bank is required by Law or required by any governmental authority to
disclose information; (3) providing information to counsel to any Bank in
connection with the transactions contemplated by the Loan Documents; (4)
providing information to independent auditors retained by the Banks; (5) any
information that is in or becomes part of the public domain otherwise than
through a wrongful act of such Bank or any of its employees or agents thereof;
(6) any information that is in the possession of any Bank prior to receipt
thereof from Borrower or any other Person known to such Bank to be acting on
behalf of Borrower; (7) any information that is independently developed by any
Bank; and (8) any information that is disclosed to any Bank by a third party
that has no obligation of confidentiality with respect to the information
disclosed. A Bank's confidentiality requirements continue after it is no longer
a Bank under this Agreement.
SECTION 13.17 Transfer of Ownership of Borrower Under Certain
Circumstances. The Administrative Agent and each Bank 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
-51-
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)
either (1) any Bank is unwilling to make any Advance in respect of such
liability or any cost or expense incurred or expected to be incurred by Borrower
in connection with such liability; or (2) despite the willingness of all of the
Banks to make Advances with respect to such liability or any related costs,
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 13.17 shall affect the existence of an Event of Default under
Section 10.1(M) by reason of the foregoing, or the exercise by the Banks 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 13.17 and may
enforce the terms hereof as though a party to this Agreement.
SECTION 13.18 Obligations Non-Recourse to Agrilink and Pro-Fac.
Anything in this Agreement or any of the Loan Documents to the contrary
notwithstanding, the Administrative Agent and each of the Banks agrees that
Borrower's obligations arising under or in any way relating to this Agreement or
any of the Loan Documents are WITHOUT RECOURSE to Agrilink and Pro-Fac and any
of their Affiliates other than Borrower, and whether or not any transfer or
abandonment described in Section 13.17 has occurred. The Administrative Agent
and each Bank hereby irrevocably waives, releases and holds harmless each of
Agrilink and Pro-Fac and their respective Affiliates (including after-acquired
Affiliates) of and from any claim of any kind or nature whatsoever regarding or
relating to the Borrower, including without limitation any claim arising under
or in connection with this Agreement or any Loan Document. Each of Agrilink and
Pro-Fac and their respective Affiliates, successors and assigns are expressly
intended third party beneficiaries of this Section 13.18 and may enforce the
terms hereof as though a party of this Agreement.
SECTION 13.19 Jury Trial Waiver.
THE BORROWER AND EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW
OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE LOAN
DOCUMENTS.
-52-
SECTION 13.20 Agreement in Writing.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR
TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT BOTH BORROWER AND THE BANKS FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED COVERING SUCH MATTERS
ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF
THE AGREEMENT BETWEEN BORROWER AND THE BANKS, EXCEPT AS MAY LATER BE AGREED IN
WRITING TO MODIFY IT.
THIS AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS BETWEEN
BORROWER AND THE BANKS LISTED BELOW, IS THE FINAL EXPRESSION OF THE AGREEMENT
BETWEEN SUCH PARTIES. THE LOAN DOCUMENTS MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR OR CONTEMPORANEOUS ORAL CREDIT AGREEMENTS OR PRIOR WRITTEN CREDIT
AGREEMENTS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written.
PF ACQUISITION II, INC. Attn: President
00 Xxxxxx Xxxxx
By /s/ Xxxx X. Xxxxxx Xxxxxxxxx, Xxx Xxxx 00000
----------------------------- Fax: (000) 000-0000
Xxxx X. Xxxxxx, Vice President Telephone: (000) 000-0000
-----------------------------
[Printed Name & Title]
-53-
CoBANK, ACB 0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
By /s/ Xxxxxx X. Xxxxxxxx X.X. Xxx 00000-X
----------------------------------- Xxxxxxxxxx, XX 00000
Xxxxxx X. Bergesten, Vice President Attn: Credit Department
----------------------------------- Fax: (000) 000-0000
[Printed Name & Title] Telephone: (000) 000-0000
-54-
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of _____________, 199_, among
[insert name of assigning Bank] ("Assignor"), [insert name of Assignee]
("Assignee"), PF ACQUISITION II, INC. ("Borrower"), and CoBANK ACB ("CoBank"),
in its capacity as "Administrative Agent".
PRELIMINARY STATEMENTS
1. This Assignment and Assumption Agreement (this "Agreement") relates to
the Credit Agreement (as amended from time to time, the "Credit Agreement")
dated as of February __, 1999, and the Subordinated Note Agreement (as amended
from time to time, the "Subordinated Note Agreement") dated as of February __,
1999, each originally among Borrower, CoBank, and St. Xxxx Bank for Cooperatives
and each other lender which may hereafter execute and deliver an Assignment and
Assumption Agreement pursuant to the Credit Agreement and the Subordinated Note
Agreement (each a "Bank" and, collectively, the "Banks"), and CoBank, as
administrative agent for the Banks (in such capacity, together with its
successors in such capacity, "Administrative Agent"). All capitalized terms used
herein and not defined herein shall have the meanings given to them in the
Credit Agreement or to the extent not covered in the Credit Agreement, the
Subordinated Note Agreement.
2. Subject to the terms and conditions set forth in the Credit Agreement,
Assignor is required to make Revolving Credit Facility Advances from time to
time to Borrower in an aggregate principal amount outstanding at any time not to
exceed _____________ Dollars ($____________) ("Individual Revolving Credit
Facility Commitment").
3. Advances made to Borrower by Assignor under the Credit Agreement with
reference to Individual Revolving Credit Facility Advances in the aggregate
principal amount of ________________ Dollars ($________) are outstanding at
commencement of business on the date hereof. This Agreement shall become
effective prior to any Advance made on the date hereof.
4. Subject to the terms and conditions set forth in the Credit Agreement,
Assignor is required to make Term Credit Facility Advances from time to time to
Borrower in an aggregate principal amount outstanding at any time not to exceed
_____________ Dollars ($____________) ("Individual Revolving Credit Facility
Commitment").
5. Advances made to Borrower by Assignor under the Credit Agreement with
reference to Individual Term Credit Facility Advances in the aggregate principal
amount of ________________ Dollars ($________) are outstanding at commencement
of business on the date hereof. This Agreement shall become effective prior to
any Advance made on the date hereof.
6. Subject to the terms and conditions set forth in the Subordinate Note
Agreement, Assignor is required to make loans from time to time to Borrower in
an aggregate principal amount outstanding at any time not to exceed
_____________ Dollars ($____________) ("Individual Subordinated Debt Facility
Commitment").
7. Advances made to Borrower by Assignor under the Subordinate Note
Agreement with reference to Individual Subordinated Debt Credit Facility
Advances in the aggregate principal amount of ________________ Dollars
($________) are outstanding at commencement of business on the date hereof. This
Agreement shall become effective prior to any Advance made on the date hereof.
8. Assignor desires to assign to Assignee all of the rights of Assignor
under the Credit Agreement in respect of a portion of (i) its Individual
Revolving Credit Facility Commitment thereunder in an amount equal to
________________ ($________) (the "Assigned Revolving Credit Facility
Commitment"), (ii) together with a portion of its outstanding Revolving Credit
Facility Advances in an amount equal to ________________ Dollars ($________)
(the "Assigned Revolving Credit Facility Advances") (iii) its Individual Term
Credit Facility Commitment thereunder in an amount equal to ________________
($________) (the "Assigned Term Credit Facility Commitment"), (iv) together with
a portion of its outstanding Term Credit Facility Advances in an amount equal to
________________ Dollars ($________) (the "Assigned Term Credit Facility
Advances"), (v) its Individual Subordinated Debt Facility Commitment thereunder
in an amount equal to ________________ ($________) (the "Assigned Subordinated
Debt Facility Commitment"), (vi) together with a portion of its outstanding
Subordinated Debt Facility Advances in an amount equal to ________________
Dollars ($________) (the "Assigned Subordinated Debt Facility Advances"), and
Assignee desires to accept assignment of such rights and assume the
corresponding obligations from Assignor on such terms. The Assigned Revolving
Credit Facility Commitment, Assigned Term Credit Facility Commitment and the
Assigned Subordinated Debt Facility Commitment are hereinafter collectively
referred to as the "Assigned Commitments," and the Assigned Revolving Credit
Facility Advances, Assigned Term Credit Facility Advances, and Assigned
Subordinated Debt Facility Advances are hereinafter collectively referred to as
the "Assigned Advances."
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. ASSIGNMENT. Assignor hereby assigns to Assignee all of the
rights of Assignor under the Credit Agreement and the Subordinated Note
Agreement in and to the Assigned
Assignment and Assumption Agreement -3-
Commitments, and the Assigned Advances (together with interest on the Assigned
Advances accrued thereon to the date of this Agreement), and Assignee hereby
accepts such assignment from Assignor and assumes all of the obligations of
Assignor under the Credit Agreement and the Subordinated Note Agreement in and
to the Assigned Commitments and the Assigned Advances. Upon the execution and
delivery hereof by Assignor, Assignee, Borrower, and the Administrative Agent
and the payment of the amount specified in Section 2 below required to be paid
on the date hereof (a) Assignee shall, as of the commencement of business on the
date hereof, succeed to the rights and be obligated to perform the obligations
of a Bank under the Credit Agreement (i) with an Individual Revolving Credit
Facility Commitment in an amount equal to the Assigned Revolving Credit Facility
Commitment, (ii) with Advances in a principal amount equal to the Assigned
Revolving Credit Facility Advances, (iii) with an Individual Term Credit
Facility Commitment in an amount equal to the Assigned Term Credit Facility
Commitment, (iv) with Advances in a principal amount equal to the Assigned Term
Credit Facility Advances, (v) with an Individual Revolving Credit Facility
Commitment in an amount equal to the Assigned Revolving Credit Facility
Commitment, (vi) with Advances in a principal amount equal to the Assigned
Revolving Credit Facility Advances, and (b) Assignee shall, as of the
commencement of business on the date hereof, succeed to the rights and be
obligated to perform the obligations of a Bank under the Subordinated Note
Agreement (i) with an Individual Subordinated Note Facility Commitment in an
amount equal to the Assigned Subordinated Note Facility Commitment, (ii) with
Advances in a principal amount equal to the Assigned Subordinated Note Facility
Advances, and (c) the Individual Revolving Credit Facility Commitment,
Individual Term Credit Facility Commitment and the Individual Subordinated Note
Facility Commitment and the Advances of Assignor shall, as of the commencement
of business on the date hereof, be reduced correspondingly and Assignor released
from its obligations under the Credit Agreement and Subordinated Note Agreement
to the extent such obligations have been assumed by Assignee. The assignment
provided for herein shall be without recourse to Assignor, except that Assignor
warrants that it owns the Assigned Facility Advances free and clear of any Liens
and that it has the right to make the assignments contemplated by this
Agreement.
SECTION 2. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 1 hereof, Assignee shall pay to Assignor on the date
hereof in immediately available funds an amount equal to ________________
($________) [insert the amount of the Assigned Facility Advances and accrued
interest thereon and such other amount as is agreed to between Assignor and
Assignee]. It is understood that interest and commitment fees and other fees
payable to Assignor under the Credit Agreement accrued to the date hereof are
for the account of Assignor and such fees accruing from and including the date
hereof are for the account of Assignee. Each of Assignor and Assignee hereby
agrees that if it receives any amount under the Credit Agreement which is for
the account of the other party hereto, it shall receive the same for the account
of such other party to the extent of such other party's interest therein and
shall promptly pay the same to such other party.
SECTION 3. CONSENT OF BORROWER. This Agreement is conditioned upon the
consent of
Assignment and Assumption Agreement -4-
Borrower pursuant to Section 13.5 of the Credit Agreement and 9.4 of the
Subordinated Note Agreement. The execution of this Agreement by Borrower is
evidence of such consent. Pursuant to Section 13.5 of the Credit Agreement and
9.4 of the Subordinated Note Agreement, Borrower has agreed to execute and
deliver (1) to Assignee a Revolving Credit Facility Note, payable to the order
of Assignee to evidence the assignment and assumption provided for herein and
(2) to Assignor, in substitution for its existing Note a Revolving Credit
Facility Note payable to the order of Assignor to evidence the assignment and
assumption provided for herein, (3) to Assignee a Term Credit Facility Note,
payable to the order of Assignee to evidence the assignment and assumption
provided for herein, (4) to Assignor, in substitution for its existing Note a
Term Credit Facility Note payable to the order of Assignor to evidence the
assignment and assumption provided for herein, (5) to Assignee a Subordinated
Note Facility Note, payable to the order of Assignee to evidence the assignment
and assumption provided for herein and (6) to Assignor, in substitution for its
existing Note a Subordinated Note Facility Note payable to the order of Assignor
to evidence the assignment and assumption provided for herein.
SECTION 4. NON-RELIANCE ON ASSIGNOR. Assignor makes no representation or
warranty in connection with, and shall have no responsibility with respect to,
the solvency, financial condition, or statements of Borrower or any other party
to any Loan Document, or the validity and enforceability of the obligations of
Borrower or any other party to a Loan Document in respect of the Credit
Agreement, Subordinated Note Agreement, any Note, or any other Loan Document.
Assignee acknowledges that it has, independently and without reliance on
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of Borrower and any
other party to the Loan Documents.
SECTION 5. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado.
SECTION 6. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
Assignment and Assumption Agreement -5-
By: _______________________ By: _______________________
Name: Name:
Title: Title:
Assignment and Assumption Agreement -6-
Applicable Lending Office:
Address for Notices:
[Assignee]
[address]
Attention: _______________
Telephone: (___) ________
Facsimile: (___) ________
COBANK, ACB, PF ACQUISITION, INC.,
as Administrative Agent as Borrower
By: _______________________ By: _______________________
Name: Name:
Title: Title:
EXHIBIT B
BORROWING BASE REPORT
COBANK, ACB, AS ADMINISTRATIVE AGENT
-------------------------------------------- -------------------------------------------- -----------------------
NAME OF BORROWER CITY, STATE FOR PERIOD ENDING (DATE)
PF ACQUISITION II, INC. ROCHESTER, NEW YORK
-------------------------------------------- -------------------------------------------- -----------------------
PART A--ELIGIBLE INVENTORY
TYPES OF ELIGIBLE INVENTORY VALUE ADVANCE MAXIMUM ADVANCE
RATE ALLOWABLE
Eligible Inventory as defined under the
Credit Agreement $ 65% = $
------------------------------- -----------------------
TOTAL PART A: $
------------------------
PART B--ELIGIBLE RECEIVABLES
AS DEFINED IN THE CREDIT AGREEMENT
---------------------------------------------------------------------------------------------------------------------------------
Account Receivable Aging
---------------------------------------------------------------------------------------------------------------------------------
0 - 30 Days 31 - 60 Days 61 - 90 Days Over 90 Days Total
---------------------------------------------------------------------------------------------------------------------------------
$ $ $ $ $
---------------------------------------------------------------------------------------------------------------------------------
AMOUNT ADVANCE MAXIMUM ADVANCE
RATE ALLOWABLE
Total Receivables $
--------------------------------------------
Less: Intercompany $( )
--------------------------------------------
Legal Offsets $( )
--------------------------------------------
Contra Accounts $( )
--------------------------------------------
Foreign $( )
--------------------------------------------
Aged Accounts $( )
--------------------------------------------
Government $( )
--------------------------------------------
Other Liens $( )
--------------------------------------------
Eligible Receivables $ 85% = $
-------------------------------------------- ------------------------
TOTAL PART B:
$
------------------------
SUBTOTAL FOR PARTS A & B $
------------------------
PART C--BORROWING BASE CALCULATION
1. SUBTOTAL (Add Totals from Parts A and B). $
-----------------------
2. Subtract all crop payments owing to persons or entities
who are not members of the borrower and who have not waived
their right to a lien or are producers in the State of Washington. $( )
-------------------
3. Subtract amounts secured by other involuntary liens. $( )
-------------------
4. Subtotal of Lines 2 & 3 $( )
---------------------------
5. BORROWING BASE (Line 1 minus Line 4). $
---------------------------
6. Outstanding Revolving Balance under Credit Agreement on period end date.
$
7. Excess Or Deficit On Period End Date (Line 5 - Line 6). ---------------------------
$
---------------------------
NOTE: IF LINE 7 IS A DEFICIT, REMIT THE DEFICIT TO COBANK, AS ADMINISTRATIVE
AGENT. I HEREBY CERTIFY THAT TO THE BEST OF MY KNOWLEDGE THIS INFORMATION IS
CORRECT.
---------------------------------------------- ----------------------------------- --------------------------------------------
AUTHORIZED SIGNATURE TITLE DATE
---------------------------------------------- ----------------------------------- --------------------------------------------
EXHIBIT C - CREDIT AGREEMENT
Return Address:
CoBANK, ACB
X.X. Xxx 0000
Xxxxxx, XX 00000
SENIOR LINE OF CREDIT, 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 Banks
(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 Banks
pursuant to the Loan Agreement in the aggregate sum of NINETY MILLION AND NO/100
DOLLARS ($90,000,000.00) evidenced by a Revolving Credit Facility Note (as
defined in the Loan Agreement) in the amount of $60,000,000.00 in favor of
CoBank, ACB dated February 22, 1999 maturing on June 29, 2002 and a Term Credit
Facility Note (as defined in the Loan Agreement) in the amount of $30,000,000.00
in favor of CoBank, ACB dated February 22, 1999 maturing on June 29, 2002,
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.
SENOR LINE OF CREDIT, TERM LOAN MORTGAGE AND FIXTURE FILING Page 2
PF ACQUISITION II, INC.
Rochester, New York
SITE 6, PARCEL 1
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 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.
SENOR LINE OF CREDIT, TERM LOAN MORTGAGE AND FIXTURE FILING Page 3
PF ACQUISITION II, INC.
Rochester, New York
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.
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 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; 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 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
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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 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.
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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.
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 0 Xxxx xx xxx Xxxxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx; 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
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Beginning at a stone at the Southeast corner of the X. X. Xxxxxx Donation Land
Claim in Township 5 South, Range 0 Xxxx xx xxx Xxxxxxxxxx Xxxxxxxx, Xxxxxx
Xxxxxx, Xxxxxx; 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 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 Xxxxxxx Xxxxxxx 00X; thence North 31[d] 35'00" East along
said right-of-way 72.98 feet; thence North 86 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
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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 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
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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 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 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
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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 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; 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 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 45' East from the
Southwest corner of the Xxxxxx Xxxxxxxxxx Donation Land Claim No. 54 in Township
5 South, Range 1 West of the
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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 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
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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.
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
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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-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
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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 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
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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 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,
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Mortgagor and any tenants shall immediately provide a copy to the Mortgagee.
(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.
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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 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
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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 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.
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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 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. 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
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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 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:...............................
STATE OF _________________ )
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: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:
Exhibit D
REVOLVING CREDIT FACILITY NOTE
$60,000,000.00 February 22, 1999
FOR VALUE RECEIVED, the undersigned promises to pay to the
order of COBANK, ACB (the "Bank"), the principal amount of SIXTY MILLION DOLLARS
($60,000,000.00) or such lesser aggregate amounts as may be made as Revolving
Credit Facility Advances under the Bank's Individual Revolving Credit Facility
Commitment pursuant to the Credit Agreement referred to below, payable as
hereinafter set forth. The undersigned promises to pay interest on the principal
amount hereof remaining unpaid from time to time from the date hereon until the
date of payment in full, payable as hereinafter set forth.
Reference is made to the Credit Agreement dated as of February
22, 1999, by and among PF Acquisition II, Inc. ("Borrower"), the Banks which are
parties thereto, and CoBank, ACB, as Administrative Agent (as the same may be
amended, renewed, extended or otherwise modified from time to time, the "Loan
Agreement"). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein with the meanings given those terms in the Loan
Agreement. This is one of the Revolving Credit Facility Notes referred to in the
Loan Agreement, and any holder hereof is entitled to all of the rights,
remedies, benefits and privileges provided for in the Loan Agreement as
originally executed or as it may from time to time be supplemented, modified or
amended. The Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Revolving Credit
Facility Note shall be payable as provided in the Loan Agreement and in any
event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid
principal amount of each Revolving Credit Facility Advance hereunder from the
date thereof until payment in full and shall accrue and be payable at the rates
and on the dates set forth in the Loan Agreement, both before and after default
and before and after maturity and judgment, with interest on overdue principal
to bear interest at the Default Rate as set forth in the Loan Agreement, to the
fullest extent permitted by applicable Law.
-1-
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for the account of the
Bank not later than 12:00 noon (Pacific Time) on the date when due in Dollars in
immediately available funds.
The Bank shall record on its books and records or on the
schedule to this Revolving Credit Facility Note the amount of each Revolving
Credit Facility Advance made by it under the Loan Agreement, the rate or rate
option and interest period applicable thereto, all payments of principal and
interest, and the principal balance from time to time outstanding. The Bank's
record thereof, whether shown on such books and records or on the schedule to
this Revolving Credit Facility Note, shall be prima facie evidence as to all
such amounts and shall be binding on the undersigned absent manifest error.
The undersigned hereby promises to pay all costs and expenses
of any rightful holder hereof incurred in collecting the undersigned's
obligations hereunder or in enforcing or attempting to enforce any of such
holder's rights hereunder, including reasonable attorneys' fees and
disbursements (including allocated costs of legal counsel employed by the
Administrative Agent or the holder), whether or not an action is filed in
connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THIS REVOLVING CREDIT FACILITY NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO.
PF ACQUISITION II, INC.
By ______________________________
------------------------------
[Printed name and title]
-2-
EXHIBIT E
CoBANK, ACB
SENIOR 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 ACCRUED 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)
SENIOR SECURITY AGREEMENT -2-
THAT CERTAIN CREDIT AGREEMENT DATED AS OF FEBRUARY 22, 1999 AMONG DEBTOR, THE
BANKS 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 MORTGAGES (AS DEFINED IN THE LOAN AGREEMENT),
AND ANY SUPPLEMENT THERETO. FOR PURPOSES OF THIS SECURITY AGREEMENT, "SECURED
PARTY" SHALL MEAN COBANK, ACB, AS ADMINISTRATIVE AGENT UNDER THE LOAN AGREEMENT,
(THE "ADMINISTRATIVE AGENT"), AND THE BANKS 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
SENIOR SECURITY AGREEMENT -3-
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
SENIOR SECURITY AGREEMENT -4-
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.
SENIOR SECURITY AGREEMENT -5-
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
SENIOR SECURITY AGREEMENT -6-
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.
SENIOR SECURITY AGREEMENT -7-
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
SENIOR SECURITY AGREEMENT -8-
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.
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: __________________________
Senior Security Agreement -9-
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 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX, XXXXXX XXXXXX, XXXXXX; 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 0 XXXX XX XXX XXXXXXXXXX XXXXXXXX, XXXXXX
XXXXXX, XXXXXX; 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 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 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
Exhibit F
TERM CREDIT FACILITY NOTE
$30,000,000.00 February 22, 1999
FOR VALUE RECEIVED, the undersigned promises to pay to the order of COBANK,
ACB (the "Bank") the principal amount of THIRTY MILLION DOLLARS ($30,000,000.00)
or such lesser aggregate amounts as may be made as Term Credit Facility Advances
under the Bank's Individual Term Credit Facility Commitment pursuant to the
Credit Agreement referred to below, payable as hereinafter set forth. The
undersigned promises to pay interest on the principal amount hereof remaining
unpaid from time to time from the date hereon until the date of payment in full,
payable as hereinafter set forth.
Reference is made to the Credit Agreement dated as of February 22, 1999, by
and among PF Acquisition II, Inc., the Banks which are parties thereto, and
CoBank, ACB, as Administrative Agent (as the same may be amended, renewed,
extended or otherwise modified from time to time, the "Loan Agreement"). Terms
defined in the Loan Agreement and not otherwise defined herein are used herein
with the meanings given those terms in the Loan Agreement. This is one of the
Term Credit Facility Notes referred to in the Loan Agreement, and any holder
hereof is entitled to all of the rights, remedies, benefits and privileges
provided for in the Loan Agreement as originally executed or as it may from time
to time be supplemented, modified or amended. The Loan Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Term Credit Facility Note
shall be payable as provided in the Loan Agreement and in any event on the
Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal amount
of each Term Credit Facility Advance hereunder from the date thereof until
payment in full and shall accrue and be payable at the rates and on the dates
set forth in the Loan Agreement, both before and after default and before and
after maturity and judgment, with interest on overdue principal to bear interest
at the Default Rate as set forth in the Loan Agreement, to the fullest extent
permitted by applicable Law.
-1-
The amount of each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office for the account of the Bank not later
than 12:00 noon (Pacific Time) on the date when due in Dollars in immediately
available funds.
The Bank shall record on its books and records or on the schedule to this
Term Credit Facility Note the amount of each Term Credit Facility Advance made
by it under the Loan Agreement, the rate or rate option and interest period
applicable thereto, all payments of principal and interest, and the principal
balance from time to time outstanding. The Bank's record thereof, whether shown
on such books and records or on the schedule to this Term Credit Facility Note,
shall be prima facie evidence as to all such amounts and shall be binding on the
undersigned absent manifest error.
The undersigned hereby promises to pay all costs and expenses of any
rightful holder hereof incurred in collecting the undersigned's obligations
hereunder or in enforcing or attempting to enforce any of such holder's rights
hereunder, including reasonable attorneys' fees and disbursements (including
allocated costs of legal counsel employed by the Administrative Agent or the
holder), whether or not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THIS TERM CREDIT FACILITY NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO.
PF ACQUISITION II, INC.
By ______________________________
------------------------------
[Printed name and title]
-2-
