Exhibit 10.2
GENERAL SECURITY AGREEMENT
New York
Debtor: Pro-Fac Cooperative, Inc. A(n) _____ individual(s) X cooperative
corporation _____ limited liability company _____ partnership ___ organized and
registered under the laws of the State of New York Organizational Identification
Number (if any): _______________ (Note: this number is not the same as the
Taxpayer Identification Number.) Chief executive office/residence: 90 Linden
Oaks, Rochester, New York 14625
Secured Party: Manufacturers and Traders Trust Company, a New York banking
corporation having its chief executive office at One M&T Plaza, Buffalo, New
York 14240, Attn: General Counsel's Office.
For good and valuable consideration, the receipt and sufficiency of which is
acknowledged, and intending to be legally bound, Debtor agrees with Secured
Party as follows:
1. Security Interests.
1.1 Grant. As security for the prompt and complete payment and performance
when due of all of the Obligations, Debtor does hereby grant to Secured Party a
continuing security interest ("Security Interest") in all personal property and
fixtures of Debtor, wherever located, whether now existing or owned or hereafter
arising or acquired, whether or not subject to the Uniform Commercial Code, as
the same may be in effect in the State of New York, as amended from time to time
("UCC"), and whether or not affixed to any realty including (i) all accounts,
chattel paper, investment property, deposit accounts, documents, equipment, farm
products, general intangibles (including trademarks, service marks, trade names,
patents, copyrights, licenses and franchises), instruments, inventory, money,
letter of credit rights, causes of action (including tort claims) and other
personal property (including agreements and instruments not constituting chattel
paper or a document, general intangible or instrument); (ii) all additions,
accessions to, substitutions for, or replacements of the foregoing; (iii) all
proceeds and products of the foregoing including insurance proceeds; and (iv)
all business records and information relating to any of the foregoing and any
software or other programs for accessing and manipulating such information
(collectively, the "Collateral"). Debtor acknowledges and agrees that, in
applying the law of any jurisdiction that at any time enacts all or
substantially all of the uniform provisions of Revised Article 9 of the Uniform
Commercial Code (1999 Official Text), the foregoing collateral description
covers all assets of Debtor. Notwithstanding the foregoing, Collateral does not
include the common units Borrower owns in Agrilink Holdings, LLC. However,
Collateral does include any distributions from the common units and cash
payments made by Birds Eye Foods.
1.2 Obligations. The term "Obligations" means any and all indebtedness or
other obligations of Debtor to Secured Party in any capacity, now existing or
hereafter incurred, however created or evidenced, regardless of kind, class or
form, whether direct, indirect, absolute or contingent (including obligations
pursuant to any guaranty, endorsement, other assurance of payment or otherwise),
whether joint or several, whether from time to time reduced and thereafter
increased, or entirely extinguished and thereafter reincurred, together with all
extensions, renewals and replacements thereof, and all interest, fees, charges,
costs or expenses which accrue on or in connection with the foregoing, including
any indebtedness or obligations (i) not yet outstanding but contracted for, or
with regard to which any other commitment by Secured Party exists; (ii) arising
prior to, during or after any pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding; (iii) owed by Debtor to others and which Secured
Party obtained, or may obtain, by assignment or otherwise; and (iv) payable
under this Agreement.
2. Covenants. Debtor covenants and agrees as follows:
2.1 Perfection of Security Interest. Debtor shall execute and deliver to
Secured Party such financing statements, control agreements or other documents,
in form and content satisfactory to Secured Party, as Secured Party may from
time to time request to perfect and continue the Security Interest. Upon the
request of Secured Party, Debtor shall deliver to Secured Party any and all
instruments, chattel paper, negotiable documents or other documents evidencing
or constituting any part of the Collateral properly endorsed or assigned, in a
manner satisfactory to Secured Party. Until such delivery, Debtor shall hold
such portion of the Collateral in trust for Secured Party. Debtor shall pay all
expenses for the preparation, filing, searches and related costs in connection
with the grant and perfection of the Security Interest. Debtor authorizes (both
prospectively and retroactively) Secured Party to file financing statements, and
any continuations and amendments thereof, with respect to the Collateral without
Debtor's signature. A photocopy or other reproduction of any financing statement
or this Agreement shall be sufficient as a financing statement for filing in any
jurisdiction.
2.2 Negative Pledge; Disposition of Collateral. Debtor shall not grant or
allow the imposition of any lien, security interest or encumbrance on, or
assignment of, the Collateral unless consented to in writing by Secured Party.
Debtor shall not make or permit to be made any sale, transfer or other
disposition of the Collateral; provided, however, prior to the occurrence of an
Event of Default, Debtor may in the ordinary course of business consistent with
its past practices and with prudent and standard practices used in the industry
that is the same or similar to that in which Debtor is engaged: (i) dispose of
any Collateral consisting of equipment that is obsolete or worn-out; (ii) sell
or exchange any Collateral consisting of equipment in connection with the
acquisition of other equipment that is at least as valuable as such equipment,
that Debtor intends to use for substantially the same purposes as such equipment
and that is not subject to any security interest or other lien or encumbrance;
(iii) collect Collateral consisting of accounts or assign such Collateral for
purposes of collection; or (iv) sell or lease Collateral consisting of
inventory. A sale, lease or other transfer of such Collateral consisting of
inventory in the ordinary course of Debtor's business does not include a
transfer in partial or complete satisfaction of any liability or obligation or
any bulk sale.
2.3 Condition of Collateral; Impermissible Use. Debtor shall keep the
Collateral consisting of goods in good condition (other than ordinary wear and
tear) and shall not commit or permit damage or destruction to such Collateral.
Debtor shall not permit (i) the Collateral consisting of goods to be used in
such a manner that would violate any insurance policy or warranty covering the
Collateral or that would violate any applicable law of any governmental
authority (including any environmental law) now or hereafter in effect; (iii)
the Collateral consisting of goods to become fixtures on any real property on
which Secured Party does not have a first priority mortgage lien (unless Secured
Party has been provided with an acceptable landlord/mortgagee waiver) or become
an accession to any goods not included in the Collateral; or (iii) any goods
included in the Collateral to be placed in any warehouse that may issue a
negotiable document with regard to such goods.
2.4 Modification to Collateral. Debtor shall not, without Secured Party's
prior written consent, grant any extension, compound, settlement for less than
full amount, release (in whole or in part), modification or cancellation of, or
substitution for, or credits or adjustments on Collateral consisting of
accounts, chattel paper, general intangibles, instruments, documents, investment
property, except that so long as no Event of Default is then in existence,
Debtor may grant to account debtors, or other persons obligated with the
Collateral, extensions, credits, discounts, compromises or settlements in the
ordinary course of business consistent with its past practices and consistent
with prudent and standard practices used in the industries that are the same or
similar to those in which Debtor is engaged.
2.5 Titled Goods. Debtor shall cause all goods included in the Collateral
to be properly titled and registered to the extent required by applicable law.
Upon the request of Secured Party, Debtor shall cause the interest of Secured
Party to be properly indicated on any certificate of title relating to such
goods and deliver to Secured Party each such certificate, and any additional
evidence of ownership, certificates of origin or other documents evidencing any
interest in such goods.
2.6 Insurance. Debtor shall at its own expense, keep in force at all times
insurance covering damage to persons and against fire, flood, theft and all
other risks which the Collateral may be subject, all in such amounts, with such
deductibles and issued by such insurance company as shall be satisfactory to
Secured Party. Such insurance shall have all endorsements that Secured Party may
require and shall further (i) name Secured Party as an additional insured on the
casualty insurance and a lender's loss payable or mortgagee on the hazard
insurance; (ii) provide Secured Party with a minimum of thirty (30) days prior
written notice of any amendment or cancellation; and (iii) insure Secured Party
notwithstanding any act or neglect of Debtor or other owner of the property
described in such insurance. If Debtor fails to obtain the insurance as provided
herein, Secured Party may, but is not obligated, to obtain such insurance as
Secured Party may deem appropriate including, if it so chooses, "single interest
insurance" which will cover only Secured Party's interest in the Collateral.
Debtor shall pay to Secured Party for the cost of such insurance. Secured Party
shall have the option to hold insurance proceeds as part of the Collateral,
apply any insurance proceeds toward the Obligations or apply the insurance
proceeds towards repair or replacement of the item of Collateral in respect of
which such proceeds were received. Upon the request of Secured Party, Debtor
shall from time to time deliver to Secured Party such insurance policies, or
other evidence of such policies satisfactory to Secured Party and such other
related information Secured Party may request.
2.7 Collateral Information. Debtor shall provide all information, in form
and substance satisfactory to Secured Party, that Secured Party shall from time
to time request to (i) identify the nature, extent, value, age and location of
any of the Collateral, or (ii) identify any account debtor or other party
obligated with respect to any chattel paper, general intangible, instrument,
investment property, document or deposit account included in the Collateral.
2.8 Financial Information. Debtor shall furnish to Secured Party financial
statements in such form (e.g., audited, reviewed, compiled) and at such
intervals as Secured Party shall request from time to time plus any additional
financial information that Secured Party may request. All such financial
statements shall be in conformity with generally accepted accounting principles
consistently applied.
2.9 Taxes; Licenses; Compliance with Laws. Before the end of any applicable
grace period, Debtor shall pay each tax, assessment, fee and charge imposed by
any governmental authority upon the Collateral, the ownership, disposition or
use of any of the Collateral, this Agreement or any instrument evidencing any of
the Obligations. Debtor shall maintain in full force and effect each license,
franchise or other authorization needed for any ownership, disposition or use of
the Collateral and the conduct of its business, operations or affairs. Debtor
shall comply with all applicable law of any governmental authority (including
any environmental law), now or hereafter in effect, applicable to the ownership,
disposition or use of the Collateral or the conduct of its business, operations
or affairs.
2.10 Records; Legend. Debtor shall maintain accurate and complete books and
records relating to the Collateral in conformity with generally accepted
accounting principles consistently applied. At Secured Party's request, Debtor
will legend, in form and manner satisfactory to Secured Party, its books and
records to indicate the Security Interest.
2.11 Additional Collateral. If at any time the liquidation value of any of
the Collateral is unsatisfactory to Secured Party, then on demand of Secured
Party Debtor shall either immediately (i) furnish such additional collateral
satisfactory to Secured Party to be held by Secured Party as if originally
pledged hereunder and shall execute such additional security agreements,
financing statements or other agreements as requested by Secured Party (ii) or
repay the Obligations to bring the outstanding amount of the Obligations to
within a satisfactory relationship to the liquidation value of the Collateral.
2.12 Notifications of Change. Immediately upon acquiring knowledge or
reason to know of any of the following, Debtor shall notify Secured Party of the
occurrence or existence of (i) any Event of Default; (ii) any event or condition
that, after notice, lapse of time or after both notice and lapse of time, would
constitute an Event of Default; (iii) any account or general intangible that
arises out of a contract with any governmental authority (including the United
States); (iv) any event or condition that has or (so far as can be foreseen)
will or might have any material adverse effect on the Collateral (including a
material loss destruction or theft of, or of any damage to, the Collateral,
material decline in value of the Collateral or a material default by an account
debtor or other party's performance of obligations with respect to the
Collateral), on Debtor or its business, operations, affairs or condition
(financial or otherwise).
2.13 Lien Law. If any account or general intangible included in the
Collateral represents money owing pursuant to any contract for the improvement
of real property or for a public improvement for purposes of the Lien Law of the
State of New York (the "Lien Law"), Debtor shall (i) give Secured Party notice
of such fact; (ii) receive and hold any money advanced by Secured Party with
respect to such account or general intangible as a trust fund to be first
applied to the payment of trust claims as such term is defined in the Lien Law
(Section 71 or otherwise); and (iii) until such trust claim is paid, not use or
permit the use of any such money for any purpose other than the payment of such
trust claims.
2.14 Protection of Collateral; Further Assurances. Debtor shall, at its own
cost, faithfully preserve, defend and protect the Security Interest as a prior
perfected security interest in the Collateral under the UCC and other applicable
law, superior and prior to the rights of all third parties (other than those
permitted pursuant to Section 3.1) and shall defend the Collateral against all
setoffs, claims, counterclaims, demands and defenses. At the request of Secured
Party, Debtor shall do, obtain, make, execute and deliver all such additional
and further acts, things, deeds, assurances and instruments as Secured Party may
deem necessary or advisable from time to time in order to attach, continue,
preserve, perfect or protect the Security Interest and Secured Party's rights
hereunder including obtaining waivers (in form and content acceptable to Secured
Party) from landlords, warehousemen and mortgagees. Debtor hereby irrevocably
appoints Secured Party, its officers, employees and agents, or any of them, as
attorneys-in-fact for Debtor with full power and authority in the place and
stead of Debtor and in the name of Debtor or its own name from time to time in
Secured Party's discretion, to perform all acts which Secured Party deems
appropriate to attach, continue, preserve or perfect and continue the Security
Interest, including signing for Debtor (to the extent such signature may be
required by applicable law) UCC-1 financing statements and UCC-3 Statements of
Change or to accomplish the purposes of this Agreement. This power of attorney,
being coupled with an interest, is irrevocable and shall not be affected by the
subsequent disability or incompetence of Debtor.
3. Representations and Warranties. Debtor represents, warrants and agrees as
follows:
3.1 Title. Debtor holds good and marketable title to the Collateral free
and clear from any security interest or other lien or encumbrance of any party,
other than the Security Interest or such liens, security interests or other
liens or encumbrances specifically permitted by Secured Party and set forth on
Exhibit A hereto ("Permitted Liens"). Debtor has not made any prior sale,
pledge, encumbrance, assignment or other disposition of any of the Collateral
except for the Permitted Liens.
3.2 Authority. If Debtor is a business entity, it is duly organized,
validly existing and in good standing under the laws of the above-named state of
organization. Debtor has the full power and authority to grant the Security
Interest and to execute, deliver and perform its obligations in accordance with
this Agreement. The execution and delivery of this Agreement will not (i)
violate any applicable law of any governmental authority or any judgment or
order of any court, other governmental authority or arbitrator; (ii) violate any
agreement governing Debtor or to which Debtor is a party; or (iii) result in a
security interest or other lien or encumbrance on any of its assets. Debtor's
certificate of incorporation, by-laws or other organizational documents do not
prohibit any term or condition of this Agreement. Each authorization, approval
or consent from, each registration and filing with, each declaration and notice
to, and each other act by or relating to, any party required as a condition of
Debtor's execution, delivery or performance of this Agreement (including any
shareholder or board of directors or similar approvals) has been duly obtained
and is in full force and effect. Debtor has the power and authority to transact
the business in which it is engaged and is duly licensed or qualified and in
good standing in each jurisdiction in which the conduct of its business or
ownership of property requires such licensing or such qualifications.
3.3 Judgments and Litigation. There is no pending or threatened claim,
audit, investigation, action or other legal proceeding or judgment or order of
any court, agency or other governmental authority or arbitrator which involves
Debtor or the Collateral and which might have a material adverse effect upon the
Collateral, the Debtor, its business, operations, affairs or condition
(financial or otherwise), or threaten the validity of this Agreement or any
related document or action. Debtor will immediately notify Secured Party upon
acquiring knowledge of the foregoing.
3.4 Enforceability of Collateral. Instruments, chattel paper, accounts or
documents which constitute any part of the Collateral are genuine and
enforceable in accordance with their terms, comply with the applicable law of
any governmental authority concerning form, content, manner of preparation and
execution, and all persons appearing to be obligated on such Collateral have
authority and capacity to contract and are in fact obligated as they appear to
be on such Collateral. There are no restrictions on any assignment or other
transfer or grant of the Security Interest by Debtor. Each sum represented by
Debtor from time to time as owing on accounts, instruments, deposit accounts,
chattel paper and general intangibles constituting any part of the Collateral by
account debtors and other parties with respect to such Collateral is the sum
actually and unconditionally owing by account debtors and other parties with
respect thereto at such time, except for applicable normal cash discounts. None
of the Collateral is subject to any defense, set-off, claim or counterclaim of a
material nature against Debtor except as to which Debtor has notified Secured
Party in writing.
3.5 Location of Chief Executive Office, Records, Collateral. The locations
of the following are listed on page one of this Agreement or, if different or
additional, on Exhibit A hereto: (i) Debtor's residence, principal place of
business and chief executive office; (ii) the office in which Debtor maintains
its books or records relating to the Collateral; (iii) the facility (including
any storage facility) at which now owned or subsequently acquired inventory,
equipment and fixtures constituting any part of the Collateral shall be kept;
and (iv) the real property on which any crop included in the Collateral is
growing or is to be grown, or on which any timber constituting any part of the
Collateral is or is to be standing. Debtor will not effect or permit any change
in any of the foregoing locations (or remove or permit the removal of the
records or Collateral therefrom, except for mobile equipment included in the
Collateral which may be moved to another location for not more than thirty (30)
days) without thirty (30) days prior written notice to Secured Party and all
actions deemed necessary by Secured Party to maintain the Security Interest
intended to be granted hereby at all times fully perfected and in full force and
effect have been taken. All of the locations listed on page one or Exhibit A are
owned by Debtor, of if not, by the party(ies) identified on Exhibit A.
3.6 Structure; Name. Debtor's organizational structure, state of
registration and organizational identification number (if any) are stated
accurately on page one of this Agreement, and its full legal name and any trade
name used to identify it are stated accurately on page one of this Agreement, or
if different or additional are listed on Exhibit A hereto. Debtor will not
change its name, any trade names or its identity, its organizational structure,
state of registration or organizational identification number without thirty
(30) days prior written notice to Secured Party. All actions deemed necessary by
Secured Party to maintain the Security Interest intended to be granted hereby at
all times fully perfected and in full force and effect have been taken.
3.7 Year 2000. Debtor represents, warrants and covenants to Secured Party,
now and as long as this Agreement is in effect, that (i) it has assessed its
equipment (including embedded systems), software, firmware and computer systems
(including equipment or systems supplied by others or with which debtor's
equipment and systems exchange date data) that are material to Debtor conducting
its business and/or performing operations (collectively, the "Systems") to
determine whether such Systems accurately process date data from, into, and
between the twentieth and twenty-first centuries, including leap year
calculations ("Y2K Compliant"); (ii) in sufficient time before December 31,
1999, Debtor will have corrected and redeployed any non-Y2K Compliant Systems so
that all its Systems are Y2K Compliant and all Systems will have been tested to
confirm that they are Y2K Compliant; and (iii) the expense of correcting and
redeploying any non-Y2K Compliant Systems and all System testing, and/or the
reasonably foreseeable consequence of any System failing to be Y2K Compliant
will not have a material adverse effect on Debtor, its business, operations,
affairs or condition (financial or otherwise).
4. Performance and Expenditures by Secured Party. If Debtor fails to
perform or comply with any of the terms hereof, Secured Party, at its option,
but without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such terms including the payment or discharge of
all taxes, fees, security interest or other liens, encumbrances or claims, at
any time levied or placed on the Collateral. An election to make expenditures or
to take action or perform an obligation of Debtor under this Agreement, after
Debtor's failure to perform, shall not affect Secured Party's right to declare
an Event of Default and to exercise its remedies. Nor shall the provisions of
this Section relieve Debtor of any of its obligations hereunder with respect to
the Collateral or impose any obligation on Secured Party to proceed in any
particular manner with respect to the Collateral.
5. Duty of Secured Party. Secured Party's sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its
possession shall be to deal with it in the same manner as Secured Party deals
with similar property for its own account. Neither Secured Party nor its
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of the Collateral upon the
request of Debtor or any other person or to take any other action whatsoever
with regard to the Collateral. The powers conferred on Secured Party hereunder
are solely to protect Secured Party's interests in the Collateral and shall not
impose any duty upon any Secured Party to exercise any such powers. Secured
Party shall be accountable only for amounts that it actually receives as a
result of the exercise of its powers under this Agreement, and neither it nor
its officers, directors, employees or agents shall be responsible to Debtor for
any act or failure to act hereunder, except for its own gross negligence or
willful misconduct.
6. Certain Rights and Remedies.
6.1 Inspection; Verification. Secured Party, and such persons as it may
designate, shall have the right from time to time to (i) audit and inspect (a)
the Collateral, (b) all books and records related thereto (and make extracts and
copies from such records), and (c) the premises upon which any of the Collateral
or books and records may be located; (ii) discuss Debtor's business, operations,
affairs or condition (financial or otherwise) with its officers, accountants;
and (iii) verify the validity, amount, quality, quantity, value, condition and
status of, or any other matter relating to the Collateral in any manner and
through any medium Secured Party may consider appropriate (including contacting
account debtors or third party possessing the Collateral for purpose of making
such verification). Debtor shall furnish all assistance and information and
perform any acts Secured Party may require regarding thereto. Debtor shall bear
the cost and expense of any such inspection and verification.
6.2 Notification of Security Interest. Secured Party may notify any or all
account debtors and other person obligated with respect to the Collateral of the
Security Interest therein. Upon the request of Secured Party, Debtor agrees to
enter into such warehousing, lockbox or other custodial arrangement with respect
to any of the Collateral that Secured Party shall deem necessary or desirable.
6.3 Application of Proceeds. Secured Party may apply the proceeds from the
sale, lease or other disposition or realization upon the Collateral to the
Obligations in such order and manner and at such time as Secured Party shall, in
its sole discretion, determine. Debtor waives and agrees not to assert any
rights it may have or acquire under current Section 9-112 of the UCC (or any
subsequent amendment thereto). Debtor shall remain liable for any deficiency if
the proceeds of any sale, lease or other disposition or realization upon the
Collateral are insufficient to pay the Obligations. Any proceeds received by
Debtor from the Collateral after an Event of Default shall (i) be held by Debtor
in trust for Secured Party in the same medium in which received; (ii) not be
commingled with any assets of Debtor; and (iii) be delivered to Secured Party in
the form received, properly indorsed to permit collection. After an Event of
Default, Debtor shall promptly notify Secured Party of the return to or
repossession by Debtor of goods constituting part of the Collateral, and Debtor
shall hold the same in trust for Secured Party and shall dispose of the same as
Secured Party directs.
6.4 Income and Proceeds of Instruments and Investment Property. Until the
occurrence of an Event of Default, Debtor reserves the right to request to
receive all cash income or cash distribution (whether in cash or evidenced by
check) payable on account of any instrument or investment property constituting
part of the Collateral (collectively, "Cash Distribution"). Until actually paid,
all rights in the foregoing shall remain subject to the Security Interest. Any
other income, dividend, distribution, increase in or profits (including any
stock issued as a result of any stock split or dividend, any capital
distributions and the like) on account of any instrument or investment property
constituting part of the Collateral and, upon the occurrence of an Event of
Default, all Cash Distributions, shall be delivered to Secured Party immediately
upon receipt, in the exact form received and without commingling with other
property which may be received by, paid or delivered to Debtor or for Debtor's
account, whether as an addition to, in discharge of, in substitution of, or in
exchange of the Collateral. Until delivery, such Collateral shall be held in
trust for Secured Party.
6.5 Registered Holder of the Collateral. Secured Party shall have the right
to transfer to or register (with or without reference to this Agreement) in the
name of Secured Party or its nominee any investment property, general
intangible, instrument or deposit account constituting part of the Collateral so
that Secured Party or such nominee shall appear as the sole owner of record
thereof; provided, however, that so long as no Event of Default has occurred,
Secured Party shall deliver to Debtor all notices, statements or other
communications received by it or its nominee as such registered owner, and upon
demand and receipt of payment of necessary expenses thereof, shall give to
Debtor or its designee a proxy or proxies to vote and take all action with
respect to such Collateral. After the occurrence of any Event of Default, Debtor
waives all rights to be advised of or to receive any notices, statements or
communications received by Secured Party or its nominee as such record owner,
and agrees that no proxy or proxies given by Secured Party to Debtor or its
designee as aforesaid shall thereafter be effective.
7. Default.
7.1 Events of Default. Any of the following events or conditions shall
constitute an "Event of Default": (i) failure by Debtor to pay when due (whether
at the stated maturity, by acceleration, upon demand or otherwise) the
Obligations, or any part thereof, or there occurs any event or condition which
after notice, lapse of time or after both notice and lapse of time will permit
acceleration of any Obligation; (ii) default by Debtor in the performance of any
obligation, term or condition of this Agreement or any other agreement with
Secured Party or any of its affiliates or subsidiaries (collectively,
"Affiliates"); (iii) failure by Debtor to pay when due (whether at the stated
maturity, by acceleration, upon demand or otherwise) any indebtedness or
obligation owing to any third party or any Affiliate, the occurrence of any
event which could result in acceleration of payment of any such indebtedness or
obligation or the failure to perform any agreement with any third party or any
affiliate; (iv) Debtor is dissolved, becomes insolvent, generally fails to pay
or admits in writing its inability generally to pay its debts as they become
due; (v) Debtor makes a general assignment, arrangement or composition agreement
with or for the benefit of its creditors or makes, or sends notice of any
intended, bulk sale; the sale, assignment, transfer or delivery of all or
substantially all of the assets of Debtor to a third party; or the cessation by
Debtor as a going business concern; (vi) Debtor files a petition in bankruptcy
or institutes any action under federal or state law for the relief of debtors or
seeks or consents to the appointment of an administrator, receiver, custodian or
similar official for the wind up of its business (or has such a petition or
action filed against it and such petition action or appointment is not dismissed
or stayed within forty-five (45) days); (vii) the reorganization, merger,
consolidation or dissolution of Debtor (or the making of any agreement
therefor); (viii) the death or judicial declaration of incompetency of Debtor,
if an individual; (ix) the entry of any judgment or order of any court, other
governmental authority or arbitrator against Debtor; (x) falsity, omission or
inaccuracy of facts submitted to Secured Party or any Affiliate (whether in a
financial statement or otherwise); (xi) an adverse change in the Collateral,
Debtor, its business, operations, affairs or condition (financial or otherwise)
from the status shown on any financial statement or other document submitted to
Secured Party, and which change Secured Party determines will have a material
adverse affect on (a) Debtor, its business, operations or condition (financial
or otherwise), or (b) the ability of Debtor to pay or perform the Obligations;
(xii) any pension plan of Debtor fails to comply with applicable law or has
vested unfunded liabilities that, in the opinion of Secured Party, might have a
material adverse effect on Debtor's ability to repay its debts; (xiii) any
indication or evidence received by Secured Party that Debtor may have directly
or indirectly been engaged in any type of activity which, in Secured Party's
discretion, might result in the forfeiture or any property of Debtor to any
governmental authority; (xiv) the occurrence of any event described in Section
7.1(i) through and including 7.1(xiii) with respect to any endorser, guarantor
or any other party liable for, or whose assets or any interest therein secures,
payment of any of the Obligations; or (xv) Secured Party in good faith deems
itself insecure with respect to payment or performance of the Obligations.
7.2 Rights and Remedies Upon Default. Upon the occurrence of any Event of
Default, Secured Party without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law) to or upon Debtor or any other person (all and each of which
demands, presentments, protests, advertisements and notices are hereby waived),
may exercise all rights and remedies of a secured party under the UCC, under
other applicable law, in equity or otherwise or available under in this
Agreement including:
7.2.1 Obligations Immediately Due; Termination of Lending. Secured
Party may declare all or any part of any Obligations not payable on demand
to be immediately due and payable without demand or notice of any kind. All
or any part of any Obligations whether or not payable on demand, shall be
immediately due and payable automatically upon the occurrence of an Event
of Default in Section 7.1 (vi) above. The provisions hereof are not
intended in any way to affect any rights of Secured Party with respect to
any Obligations which may now or hereafter be payable on demand. Secured
Party may terminate any obligation it may have to grant any additional
loan, credit or other financial accommodation to Debtor.
7.2.2 Access to Collateral. Secured Party, or its agents, may
peaceably retake possession of the Collateral with or without notice or
process of law, and for that purpose may enter upon any premises where the
Collateral is located and remove the same. At Secured Party's request,
Debtor shall assemble the Collateral and deliver it to Secured Party or any
place designated by Secured Party, at Debtor's expense.
7.2.3 Sell Collateral. Secured Party shall have the right to sell,
lease or otherwise dispose of the Collateral in one or more parcels at
public or private sale or sales upon such terms and conditions as it may
deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk. Each
purchaser at any such sale shall hold the property sold absolutely, free
from any claim or right on the part of Debtor. Debtor hereby waives (to the
extent permitted by law) all rights of redemption, stay and appraisal which
Debtor now has or may at any time in the future have under any applicable
law now existing or hereafter enacted. Secured Party shall have the right
to use Debtor's premises and any materials or rights of Debtor (including
any intellectual property rights) without charge for such sales or
disposition of the Collateral or the completion of any work in progress for
such times as Secured Party may see fit. Without in any way requiring
notice to be given in the following time and manner, Debtor agrees that
with respect to any notice by Secured Party of any sale, lease or other
disposition or realization or other intended action hereunder or in
connection herewith, whether required by the UCC or otherwise, such notice
shall be deemed reasonable and proper if given at least five (5) days
before such action in the manner described below in the Section entitled
"Notices".
7.2.4 Collect Revenues. Secured Party may either directly or through a
receiver (i) demand, collect and sue on any Collateral consisting of
accounts or any other Collateral including notifying account debtors or any
other persons obligated on the Collateral to make payment on the Collateral
directly to Secured Party; (ii) file any claim or to take any other action
or proceeding in any court of law or equity or otherwise deemed appropriate
by Secured Party with respect to the Collateral or to enforce any other
right in respect of the Collateral; (iii) take control, in any manner, of
any payment or proceeds from the Collateral; (iv) prosecute or defend any
suit, action or proceeding brought against Debtor with respect to the
Collateral; (v) settle, compromise or adjust any and all claims arising
under the Collateral or, to give such discharges or releases as Secured
Party may deem appropriate; (vi) receive and collect all mail addressed to
Debtor, direct the place of delivery thereof to any location designated by
Secured Party; to open such mail; to remove all contents therefrom; to
retain all contents thereof constituting or relating to the Collateral;
(vii) execute, sign or endorse any and all claims, endorsements,
assignments, checks or other instruments with respect to the Collateral; or
(viii) generally, use, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral; and Debtor hereby
irrevocably appoints Secured Party, its officers, employees and agents, or
any of them, as attorneys-in-fact for Debtor with full power and authority
in the place and stead of Debtor and in the name of Debtor or in its own
name from time to time in Secured Party's discretion, to take any and all
appropriate action Secured Party deems necessary or desirable to accomplish
any of the foregoing or otherwise to protect, preserve, collect or realize
upon the Collateral or to accomplish the purposes of this Agreement. Debtor
revokes each power of attorney (including any proxy) heretofore granted by
Debtor with regard to the Collateral. This power of attorney, being coupled
with an interest, is irrevocable and shall not be affected by the
subsequent disability or incompetence of Debtor.
7.2.5 Setoff. Secured Party may place an administrative hold on and
set off against the Obligations any property held in a deposit or other
account with Secured Party or any of its Affiliates or otherwise owing by
Secured Party or any of its Affiliates in any capacity to Debtor. Such
set-off shall be deemed to have been exercised immediately at the time
Secured Party or such Affiliate elects to do so.
8. Expenses. Debtor shall pay to Secured Party on demand all costs and
expenses (including all reasonable fees and disbursements of all counsel
retained for advice, suit, appeal or other proceedings or purpose and of any
experts or agents it may retain), which Secured Party may incur in connection
with (i) the administration of this Agreement, including any administrative fees
Secured Party may impose for the preparation of discharges, releases or
assignments to third-parties; (ii) the custody or preservation of, or the sale,
lease or other disposition or realization on the Collateral; (iii) the
enforcement and collection of any Obligations or any guaranty thereof; (iv) the
exercise, performance ,enforcement or protection of any of the rights of Secured
Party hereunder; or (v) the failure of Debtor to perform or observe any
provisions hereof. After such demand for payment of any cost, expense or fee
under this Section or elsewhere under this Agreement, Debtor shall pay interest
at the highest default rate specified in any instrument evidencing any of the
Obligations from the date payment is demanded by Secured Party to the date
reimbursed by Debtor. All such costs, expenses or fees under this Agreement
shall be added to the Obligations.
9. Indemnification. Debtor shall indemnify Secured Party and its Affiliates
and each officer, employee, accountant, attorney and other agent thereof (each
such person being an "Indemnified Party") on demand, without any limitation as
to amount, against each liability, cost and expense (including all reasonable
fees and disbursements of all counsel retained for advice, suit, appeal or other
proceedings or purpose, and of any expert or agents an Indemnified Party may
retain) heretofore or hereafter imposed on, incurred by or asserted against any
Indemnified Party (including any claim involving any allegation of any violation
of applicable law of any governmental authority (including any environmental law
or criminal law)), however asserted and whether now existing or hereafter
arising, arising out of any ownership, disposition or use of any of the
Collateral; provided, however, the foregoing indemnity shall not apply to
liability, cost or expense solely attributable to an Indemnified Party's gross
negligence or willful misconduct. This indemnity agreement shall survive the
termination of this Agreement. Any amounts payable under this or any other
section of this Agreement shall be additional Obligations secured hereby.
10. Miscellaneous.
10.1 Notices. Any demand or notice hereunder or under any applicable law
pertaining hereto shall be in writing and duly given if delivered to Debtor (at
its address on Secured Party's records) or to Secured Party (at the address on
page one and separately to Secured Party's officer responsible for Debtor's
relationship with Secured Party). Such notice or demand shall be deemed
sufficiently given for all purposes when delivered (i) by personal delivery and
shall be deemed effective when delivered, or (ii) by mail or courier and shall
be deemed effective three (3) business days after deposit in an official
depository maintained by the United States Post Office for the collection of
mail or one (1) business day after delivery to a nationally recognized overnight
courier service (e.g., Federal Express). Notice by e-mail is not valid notice
under this or any other agreement between Debtor and Secured Party.
10.2 Governing Law; Jurisdiction. This Agreement has been delivered to and
accepted by Secured Party and will be deemed to be made in the State of New
York. Except as otherwise provided under federal law, this Agreement will be
interpreted in accordance with the laws of the State of New York excluding its
conflict of laws rules. DEBTOR HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK IN A COUNTY
OR JUDICIAL DISTRICT WHERE SECURED PARTY MAINTAINS A BRANCH AND CONSENTS THAT
SECURED PARTY MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT DEBTOR'S
ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING
CONTAINED IN THIS AGREEMENT WILL PREVENT SECURED PARTY FROM BRINGING ANY ACTION,
ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST DEBTOR
INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF DEBTOR WITHIN ANY
OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. Debtor
acknowledges and agrees that the venue provided above is the most convenient
forum for both Secured Party and Debtor. Debtor waives any objection to venue
and any objection based on a more convenient forum in any action instituted
under this Agreement.
10.3 Security Interest Absolute. All rights of Secured Party hereunder, the
Security Interest and all obligations of Debtor hereunder shall be absolute and
unconditional irrespective of (i) any filing by or against Debtor of any
petition in bankruptcy or any action under federal or state law for the relief
of debtors or the seeking or consenting to of the appointment of an
administrator, receiver, custodian or similar officer for the wind up of its
business; (ii) any lack of validity or enforceability of any agreement with
respect to any of the Obligations, (iii) any change in the time, manner or place
of payment of, or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from any agreement
or instrument with respect to the Obligations, (iv) any exchange, release or
non-perfection of any lien or any release or amendment or waiver of or consent
under or departure from any guarantee, securing or guaranteeing all or any of
the Obligations, or (v) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Debtor in respect of the Obligations or
this Agreement. If, after receipt of any payment of all or any part of the
Obligations, Secured Party is for any reason compelled to surrender such payment
to any person or entity, because such payment is determined to be void or
voidable as a preference, impermissible setoff, or a diversion of trust funds,
or for any other reason, such payment shall be reinstated as part of the
Obligations and this Agreement shall continue in full force notwithstanding any
contrary action which may have been taken by Secured Party in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to
Secured Party's rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
10.4 Remedies Cumulative; Preservation of Rights. The rights and remedies
herein are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies which Secured Party may have under
other agreements now or hereafter in effect between Debtor and Secured Party, at
law (including under the UCC) or in equity. No failure or delay of Secured Party
in exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. Debtor expressly disclaims any reliance on any course of dealing
or usage of trade or oral representation of Secured Party including
representations to make loans to Debtor. No notice to or demand on Debtor in any
case shall entitle Debtor to any other or further notice or demand in similar or
other circumstances.
10.5 Joint and Several; Successors and Assigns. If there is more than one
Debtor, each of them shall be jointly and severally liable for all amounts,
which become due, and the performance of all obligations under this Agreement
and the term "Debtor" shall include each as well as all of them. This Agreement
shall be binding upon Debtor and upon its heirs and legal representatives, its
successors and assignees, and shall inure to the benefit of, and be enforceable
by, Secured Party, its successors and assignees and each direct or indirect
assignee or other transferee of any of the Obligations; provided, however, that
this Agreement may not be assigned by Debtor without the prior written consent
of Secured Party.
10.6 Waivers; Changes in Writing. No course of dealing or other conduct, no
oral agreement or representation made by Secured Party or usage of trade shall
operate as a waiver of any right or remedy of Secured Party. No waiver of any
provision of this Agreement or consent to any departure by Debtor therefrom
shall in any event be effective unless made specifically in writing by Secured
Party and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No modification to any provision
of this Agreement shall be effective unless made in writing in an agreement
signed by Debtor and Secured Party.
10.7 Interpretation. Unless the context otherwise clearly requires,
references to plural includes the singular and references to the singular
include the plural; the word "or" has the inclusive meaning represented by the
phrase "and/or"; the word "including", "includes" and "include" shall be deemed
to be followed by the words "without limitation"; and captions or section
headings are solely for convenience and not part of the substance of this
Agreement. Any representation, warranty, covenant or agreement herein shall
survive execution and delivery of this Agreement and shall be deemed continuous.
Each provision of this Agreement shall be interpreted as consistent with
existing law and shall be deemed amended to the extent necessary to comply with
any conflicting law. If any provision nevertheless is held invalid, the other
provisions shall remain in effect. Debtor agrees that in any legal proceeding, a
photocopy of this Agreement kept in Secured Party's course of business may be
admitted into evidence as an original. Terms not otherwise defined in this
Agreement shall have the meanings attributed to such terms in the UCC.
10.8 Waiver of Jury Trial. DEBTOR AND SECURED PARTY HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY DEBTOR AND
SECURED PARTY MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN
CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTIONS RELATED HERETO. DEBTOR
REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SECURED PARTY WILL NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. DEBTOR ACKNOWLEDGES THAT
SECURED PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE PROVISIONS OF THIS SECTION.
Dated March 26,2003 PRO-FAC COOPERATIVE, INC.
---------------------
By: /s/ Stephen R. Wright
------------------------------------------
Stephen R. Wright, General Manager and CEO
ACKNOWLEDGMENT
STATE OF NEW YORK )
------------------
: SS.
COUNTY OF MONROE )
--------
On the 26th day of March, in the year 2003 , before me, the undersigned, a
Notary Public in and for said State, personally appeared Stephen R. Wright,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity, and that
by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
/s/ Susan G. Riker
-----------------------------------
Notary Public
FOR SECURED PARTY USE ONLY:
Authorization confirmed:
-------------------------------------------
If Debtor's Obligations arise under a guaranty in favor of Secured Party, list
the name whose indebtedness is being guaranteed under such guaranty:
{399174:}
Exhibit A
1. Permitted Liens (ss.3.1)
None, except prior leasehold financing
2. Residence, principal place of business or chief executive office (ss.3.5(i))
90 Linden Oaks, Rochester, New York 14625
3. Location of Books and Records (ss.3.5(ii))
90 Linden Oaks, Rochester, New York 14625
4. Location of Inventory, Equipment, Fixtures, Crops or Timber (ss.3.5(iii) and
ss.3.5(iv))
90 Linden Oaks, Rochester, New York 14625 for equipment and fixtures.
Borrower will maintain and provide to Secured Party upon request copies
of all crop agreements in place with its members through the period
when Borrower pays for crops delivered.
5. Locations Not Owned by Debtor and Name of Record Owner (ss.3.5)
LP Associates
80 Linden Oaks, Rochester, New York 14625
6. Trade Name, "Doing Business As" Name or Assumed Name (ss.3.6)
None