Exhibit 10.30
BILL OF SALE AGREEMENT
For value received, CoBank, ACB ("CoBank"), as secured party and pursuant to a
UCC private sale of foreclosure, does hereby sell and transfer to Agrilink
Foods, Inc. ("Agrilink"), the following described personal property of PF
Acquisition II, Inc. d/b/a AgriFrozen Foods ("AgriFrozen"):
(a) All frozen vegetable inventories and related supplies, ingredients and
packaging materials, including without limitation, seed, raw
materials, work in process, bulk goods, finished goods and
merchandise, as such inventories were determined from AgriFrozen's
accounting records as of 12:01 a.m. Pacific Time on January 28, 2001,
and with respect to any of such inventories that have been sold after
the above time and date, all proceeds from the sale of such
inventories (including accounts and other payment rights arising from
the sale of such inventories); and
(b) to the extent subject to CoBank's security interest, all claims and
causes of action against Pro-Fac Cooperative, Inc., a New York
cooperative corporation ("Pro-Fac"), arising under the Marketing and
Facilitation Agreement dated as of February 22, 1999 between
AgriFrozen and Pro-Fac in respect of any over-payments by AgriFrozen
to Pro-Fac pertaining to the 1999 or 2000 crop seasons (collectively
"Property").
The above described Property has been sold by CoBank in the exercise of its
rights as a secured party under a security agreement made by AgriFrozen in favor
of CoBank. CoBank is neither a manufacturer nor distributor of, nor dealer or
merchant in, said Property.
Agrilink and CoBank agree as follows:
1. Agrilink promises to pay CoBank the amount of $31,603,880.00 (the
"Purchase Price") for the Property described above. The Purchase Price
is payable in two installments:
(a) $10,000,000 is due and payable on April 1, 2001; and
(b) the balance is due and payable on August 1, 2001.
2. Agrilink's obligation to pay the Purchase Price will not accrue
interest except as follows: (i) if AgriFrozen defaults in whole or in
part in its obligation to pay to CoBank the amount of $3,896,120.00 on
or before
April 1, 2001, as required by Section 3(b) of that certain Default,
Foreclosure, Forbearance and Use of Cash Collateral Agreement dated as
of even date herewith (the "Forbearance Agreement") by and between
AgriFrozen and CoBank, or (ii) if Agrilink fails to pay the Purchase
Price at the times and in the amounts set forth in paragraphs 1(a) and
1(b) above. On the date of such an event of default, the unpaid
portion of the Purchase Price shall begin accruing interest at the
rate of 12% per annum based on a year consisting of 360 days until
paid in full. In addition, such failure to pay (by either AgriFrozen
or Agrilink) shall constitute a material event of default hereunder
giving CoBank the right to demand immediate payment in full of the
unpaid portion of the Purchase Price. If CoBank incurs fees or
expenses to enforce this Bill of Sale Agreement, including collecting
on the purchase obligations of Agrilink, Agrilink shall reimburse
CoBank for all of CoBank's reasonable out of pocket costs and
expenses, including without limitation, reasonable costs of legal
counsel.
3. CoBank agrees to bear the initial cost of any requirement of providing
a bond or other surety that may be required by the Marion County,
Oregon Circuit Court in the pending Oregon producer lien action, Stan
Siefer, et al. v. AgriFrozen Foods, et al. in order to allow the sale
provided for hereby, it being understood and agreed that CoBank
specifically reserves and shall not be deemed to have waived or
released any claims against any persons or entities, including
AgriFrozen and Agrilink, for any damages that CoBank may sustain as a
result of plaintiffs' assertion of such producer lien.
4. If AgriFrozen is in default under the Forbearance Agreement or if
Agrilink is in default hereunder, Agrilink acknowledges and agrees
that CoBank may deny Agrilink from further access to the Mortgaged
Collateral and Equipment (each as defined in the Forbearance
Agreement), as well as to any other AgriFrozen property subject to or
being used pursuant to the Service Agreement (as defined in the
Forbearance Agreement) and CoBank shall have no liability to Agrilink
other than to store and turn over such inventory Property at
Agrilink's expense.
CoBank makes no warranty of title, enforceability or collectability of said
Property and no warranty that said Property is free of liens or claims in favor
of others except those producer liens referred to in paragraph 3 above and those
liens that may be junior in priority to CoBank's liens. In addition, CoBank
makes no warranty of merchantability in respect to said Property, which
Property is sold in an "AS IS, WHERE IS" condition, with all faults. By
acceptance of delivery of said Property, Agrilink affirms that it has not relied
on CoBank's skill or judgment to select or furnish said Property for any
particular purpose, and that CoBank makes no warranty that said Property is fit
for any particular purpose and that there are no representations or warranties,
expressed, implied or statutory, that extend beyond the description of said
Property above set forth. The sale herein of the inventory Property is a sale
for resale. Sale taxes or the like, if any, shall be the responsibility of
Agrilink.
This is a final and exclusive expression of the agreement of CoBank and Agrilink
and no course of dealing or usage of trade or course of performance shall be
relevant to explain or supplement any term expressed in this agreement.
By acceptance of delivery of said Property, Agrilink acknowledges that Agrilink
has either examined said Property, and the books and records relating thereto as
fully as desired, or has been given the opportunity for such examination and has
refused to make such examination.
IN WITNESS WHEREOF, CoBANK, ACB and AGRILINK FOODS, INC. have executed this
instrument this 16th day of February, 2001.
CoBANK, ACB
By: /s/Robert E. Satrom
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Its: Senior Vice President
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AGRILINK FOODS, INC.
By: /s/Earl L. Powers
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Its: Executive Vice President, Finance
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