Exhibit 10.1
GRID NOTE
New York
Buffalo, New York, March 26, 2003 $ 500,000.00
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BORROWER: Pro-Fac Cooperative, Inc.
a(n) ____ individual(s) ____ partnership ____ cooperative corporation organized
under the laws of New York
Address of residence/chief executive office: 90 Linden Oaks, Rochester, New York 14625
BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation with its principal banking office at One M&T Plaza, Buffalo, New
York 14240. Attention: Office of General Counsel
Promise to Pay. For value received, and intending to be legally bound, Borrower
promises to pay to the order of the Bank on demand, the principal sum of Five
Hundred Thousand and 00/100 Dollars ($ 500,000.00 ) (the "Maximum Principal
Amount") or the outstanding principal amount of this Note (the "Outstanding
Principal Amount"), if less; plus interest as agreed below and all fees and
costs (including without limitation attorneys' fees and disbursements, whether
for internal or outside counsel) the Bank incurs in order to collect any amount
due under this Note, to negotiate or document a workout or restructuring, or to
preserve its rights or realize upon any guaranty or other security for the
payment of this Note ("Expenses").
Interest. The Outstanding Principal Amount of this Note shall earn interest
calculated on the basis of a 360-day year for the actual number of days of each
year (365 or 366) from and including the date the proceeds of this Note were
disbursed to, but not including, the date all amounts hereunder are paid in full
at a rate per year which shall on each day be:
_____ %
equal to the rate in effect on that day as the rate announced by the Bank as its
prime rate of interest.
_____ 3/4 percent above the rate in effect on that day as the rate announced by
the Bank as its prime rate of interest.
If no rate is specified above, interest shall accrue at the Maximum Legal Rate
(defined below) at all times prior to payment in full.
Payments; Late Charge; Default Rate. Payments shall be made in immediately
available United States funds at any banking office of the Bank. Absent demand
for payment in full, interest shall be due and payable monthly. If payment is
not received within five (5) days of its due date, Borrower shall pay a late
charge equal to the greatest of (a) five percent (5%) of the delinquent amount,
(b) the Bank's then current late charge as announced by the Bank from time to
time, or (c) $50.00. In addition, if the Bank has not actually received any
payment under this Note within thirty (30) days after its due date, from and
after such thirtieth day the interest rate for all amounts outstanding under
this Note shall automatically increase to five (5) percentage points above the
otherwise applicable rate per year, and any judgment entered hereon or otherwise
in connection with any suit to collect amounts due hereunder shall bear interest
at such default rate. Payments may be applied in any order in the sole
discretion of the Bank but, prior to demand, shall be applied first to past due
interest, Expenses, late charges, and principal payments, if any, which are past
due, then to current interest and Expenses and late charges, and last to
remaining principal.
Maximum Legal Rate. It is the intent of the Bank and of Borrower that in no
event shall interest be payable at a rate in excess of the maximum rate
permitted by applicable law (the "Maximum Legal Rate"). Solely to the extent
necessary to prevent interest under this Note from exceeding the Maximum Legal
Rate, any amount that would be treated as excessive under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically canceled, and, if received by the Bank, shall be refunded to
Borrower.
Setoff. The Bank shall have the right to set off against the amounts owing under
this Note any property held in a deposit or other account with the Bank or any
of its affiliates or otherwise owing by the Bank or any of its affiliates in any
capacity to Borrower or any guarantor or endorser of this Note. Such set-off
shall be deemed to have been exercised immediately at the time the Bank or such
affiliate elect to do so.
Authorized Representatives. This Note is issued by Borrower to the Bank in
connection with a certain line of credit or loan limit made available by the
Bank to Borrower (the "Credit"). The Bank may make any loan pursuant to the
Credit (the "Loan(s)") in reliance upon any oral, telephonic, written,
teletransmitted or other request (the "Request(s)") that the Bank in good faith
believes to be valid and to have been made by Borrower or on behalf of Borrower
by Stephen R. Wright, General Manager and CEO and/or Kevin Murphy, Assistant
Treasurer and Vice President Member Relations (each an "Authorized Person").
Mention of the Authorized Person's name in the prior sentence is for reference
purposes only and the Bank shall rely on the title to ascertain whether someone
is an Authorized Person. The Bank may act on the Request of any Authorized
Person until the Bank shall have received from Borrower, and had a reasonable
time to act on, written notice revoking the authority of such Authorized Person.
The Bank shall incur no liability to Borrower or to any other person as a direct
or indirect result of making any Loan pursuant to this paragraph.
Demand Facility. The Bank may modify, restrict, suspend or terminate the Credit
at any time for any reason and without affecting Borrower's then existing
obligations under this Note. This is a demand Note and all Loans hereunder are
made at the Bank's discretion and shall become immediately due and payable upon
demand by the Bank; provided, however, that the Outstanding Principal Amount of
this Note and all accrued and unpaid interest shall automatically become
immediately due and payable if Borrower or any guarantor or endorser of this
Note commences or has commenced against it any bankruptcy or insolvency
proceeding. Borrower hereby waives protest, presentment and notice of any kind
in connection with this Note.
Bank Records Conclusive. The Bank shall set forth on a schedule attached to this
Note or maintained on computer, the date and original principal amount of each
Loan and the date and amount of each payment to be applied to the Outstanding
Principal Amount of this Note. The Outstanding Principal Amount set forth on any
such schedule shall be presumptive evidence of the Outstanding Principal Amount
of this Note and of all Loans. No failure by the Bank to make, and no error by
the Bank in making, any annotation on any such schedule shall affect the
Borrower's obligation to pay the principal and interest of each Loan or any
other obligation of Borrower to the Bank pursuant to this Note.
Purpose. Borrower certifies (a) that no Loan will be used to purchase margin
stock except with the Bank's express prior written consent for each such
purchase and (b) that all Loans shall be used for a business purpose, and not
for any personal, family or household purpose, unless the following box is
checked:
_____ Personal Loan. If this box is checked, the initial advance must
be an amount greater than $25,000.00.
Authorization. Borrower, if a corporation, partnership, limited liability
company, trust or other entity, represents that it is duly organized and in good
standing or duly constituted in the state of its organization and is duly
authorized to do business in all jurisdictions material to the conduct of its
business; that the execution, delivery and performance of this Note have been
duly authorized by all necessary regulatory and corporate or partnership action
or by its governing instrument; that this Note has been duly executed by an
authorized officer, member, partner or trustee and constitutes a binding
obligation enforceable against Borrower and not in violation of any law, court
order or agreement by which Borrower is bound; and that Borrower's performance
is not threatened by any pending or threatened litigation.
Miscellaneous. This Note, together with any related loan and security
agreements, contains the entire agreement between the Bank and Borrower with
respect to each Loan, and supersedes every course of dealing, other conduct,
oral agreement and representation previously made by the Bank. All rights and
remedies of the Bank under applicable law and this Note are cumulative and not
exclusive. No single, partial or delayed exercise by the Bank of any right or
remedy shall preclude the subsequent exercise by the Bank at any time of any
right or remedy of the Bank without notice. No waiver or amendment of any
provision of this Note shall be effective unless made specifically in writing by
the Bank. No course of dealing or other conduct, no oral agreement or
representation made by the Bank, and no usage of trade, shall operate as a
waiver of any right or remedy of the Bank. No waiver of any right or remedy of
the Bank shall be effective unless made specifically in writing by the Bank.
Borrower agrees that in any legal proceeding, a copy of this Note kept in the
Bank's course of business may be admitted into evidence as an original. This
Note is a binding obligation enforceable against Borrower and its successors and
assigns and shall inure to the benefit of the Bank and its successors and
assigns. If a court deems any provision of this Note invalid, the remainder of
the Note shall remain in effect. Section headings are for convenience only.
Singular number includes plural and neuter gender includes masculine and
feminine as appropriate.
Notices. Any demand or notice hereunder or under any applicable law pertaining
hereto shall be in writing and duly given if delivered to Borrower (at its
address on the Bank's records) or to the Bank (at the address on page one and
separately to the Bank officer responsible for Borrower's relationship with the
Bank). 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 Borrower and the Bank.
Joint and Several. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts which become due under this Note
and the term "Borrower" shall include each as well as all of them.
Governing Law; Jurisdiction. This Note has been delivered to and accepted by the
Bank and will be deemed to be made in the State of New York. Except as otherwise
provided under federal law, this Note will be interpreted in accordance with the
laws of the State of New York excluding its conflict of laws rules. BORROWER
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
THE BANK MAINTAINS A BRANCH AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF
PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS SET FORTH ABOVE FOR PROVIDING
NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS NOTE WILL PREVENT THE
BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY
RIGHTS AGAINST BORROWER INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY
PROPERTY OF BORROWER WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION. Borrower acknowledges and agrees that the venue provided above is
the most convenient forum for both the Bank and Borrower. Borrower waives any
objection to venue and any objection based on a more convenient forum in any
action instituted under this Note.
Waiver of Jury Trial. BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY HAVE IN
ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS NOTE OR
THE TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO
THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
_____ Replacement Note. This Note is given in replacement of and in substitution
for, but not in payment of, a note dated on or about , 19 / 20 , in the original
principal amount of $_____________ issued by Borrower (or _______________) to
the Bank (or its predecessor in interest), as the same may have been amended
from time to time.
Preauthorized Transfers from Deposit Account. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Bank to debit
available funds in Borrower's deposit account # with the Bank automatically for
any amount which becomes due under this Note or as directed by an Authorized
Person, by telephone.
Acknowledgment. Borrower acknowledges that it has read and understands all the
provisions of this Note, including the Governing Law, Jurisdiction and Waiver of
Jury Trial, and has been advised by counsel as necessary or appropriate.
See Rider A attached hereto and incorporated herein by reference.
TAX ID/SS # PRO-FAC COOPERATIVE, INC.
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BORROWER
BY: /s/ Stephen R. Wright
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Signature of Witness Stephen R. Wright, GeneralManager and CEO
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Typed Name of Witness
ACKNOWLEDGMENT
STATE OF NEW YORK )
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: SS.
COUNTY OF MONROE )
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On the day 26th 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
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Notary Public
FOR BANK USE ONLY
Authorization Confirmed:
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Disbursement of Funds:
Credit A/C # Off Ck # Payoff Obligation #
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$ $ $
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RIDER A
TO THE $500,000.00 GRID NOTE
BY AND BETWEEN
PRO-FAC COOPERATIVE, INC.
AND
MANUFACTURERS AND TRADERS TRUST COMPANY
DATED MARCH 26, 2003
The following provisions are hereby incorporated into the Grid Note:
Clean-up Period:
The Credit extended under this Grid Note is required to be paid down to zero
during each year by July 15th, and continue for a minimum of ninety (90)
consecutive days. The first paydown will commence July 15, 2004. Bank expects
that this paydown will be made with the proceeds of the $4,000,000.00 July
termination payment from Agrilink Foods each year.
Guarantors:
As of the date of this Grid Note, Borrower does not have any subsidiaries.
Borrower agrees that all future subsidiaries of Borrower shall unconditionally
guarantee all debt of Borrower to Bank. The form of the Guaranty to be executed
by Borrower's subsidiaries is attached hereto as Exhibit A. "Subsidiary" is
defined as a corporation, partnership, limited liability company, trust, joint
venture, association or other business entity of which Borrower owns greater
than fifty percent (50%) of the ownership interest of such entity or has the
voting power to elect a majority of the board of directors or managers or
governing body of such entity.
Reporting Requirements:
Borrower will provide Bank with Borrower-prepared financial statements on a
quarterly basis and accountant-prepared, audited financial statements on an
annual basis, with any additional financial information that the Bank may
request from time to time.
PRO-FAC COOPERATIVE, INC.
By: /s/Stephen R. Wright
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Stephen R. Wright, General Manager and CEO
STATE OF NEW YORK)
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
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Notary Public