EXHIBIT 4.13
EXECUTION COPY
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LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT
dated as of
December 23, 2003,
among
JPMORGAN CHASE BANK,
as Credit Facilities Collateral Agent,
U.S. BANK NATIONAL ASSOCIATION,
as Note Collateral Agent
and
LAND O'LAKES, INC.
and the Grantors and Guarantors named herein
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LIEN SUBORDINATION AND INTERCREDITOR
AGREEMENT dated as of December 23, 2003, between
JPMORGAN CHASE BANK, as collateral agent for the
Credit Facility Secured Parties referred to herein;
U.S. BANK NATIONAL ASSOCIATION, as collateral agent
for the Note Secured Parties referred to herein; LAND
O'LAKES, INC.; and the Grantors and Guarantors named
herein.
Reference is made to (a) the Credit Agreements (such term, and
each other capitalized term used and not otherwise defined herein, having the
meaning assigned to it in Article I), under which the Lenders referred to
therein have extended and agreed to extend credit to the Company, and (b) the
Note Indenture, under which the Company proposes to issue the Notes. The
issuance of the Notes and the creation of the Liens provided for in the Note
Security Documents required the consent of the Lenders under the Credit
Agreements. In consideration of the amendment of the Credit Agreements to permit
the issuance of the Notes, the purchase of the Notes by the purchasers thereof,
the mutual agreements herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Credit
Facilities Collateral Agent (for itself and on behalf of the Credit Facilities
Secured Parties), the Note Collateral Agent (for itself and on behalf of the
Note Secured Parties), the Company and the subsidiaries of the Company named
herein agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Construction; Certain Defined Terms, (a) The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise,
(i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified,
(ii) any reference herein to any person shall be construed to include such
person's successors and assigns, but shall not be deemed to include the
subsidiaries of such person unless express reference is made to such
subsidiaries, (iii) the words "herein", "hereof and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (iv) all references herein to
Articles and Sections shall be construed to refer to Articles and Sections of
this Agreement and (v) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
(b) As used in this Agreement, the following terms have the
meanings specified below:
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"Accession Agreement" means an accession agreement in
substantially the form of Annex I hereto under which a collateral agent or
similar Representative of Designated Senior Obligations or Designated Junior
Obligations shall become a party hereto and the Designated Senior Obligations
Collateral Agent for such Designated Senior Obligations or the Designated Junior
Obligations Collateral Agent for such Designated Junior Obligations hereunder.
"Bankruptcy Code" means Title 11 of the U.S. Code.
"Collateral" means the Credit Facilities Collateral, the
Designated Senior Obligations Collateral, the Note Collateral and the Designated
Junior Obligations Collateral.
"Collateral Agent" means any of the Credit Facilities
Collateral Agent, any Designated Senior Obligations Collateral Agent, the Note
Collateral Agent or any Designated Junior Obligations Collateral Agent.
"Company" means Land O'Lakes, Inc., a Minnesota cooperative
corporation.
"Credit Agreements" means the Term Credit Agreement and the
Revolving Credit Agreement.
"Credit Facilities Collateral" means all "Collateral", as
defined in the Guarantee and Collateral Agreement, securing any Credit
Facilities Obligations, and any other assets or properties of the Company,
Farmland Feed or any subsidiaries of the Company or Farmland Feed now or at any
time hereafter subject to Liens securing any Credit Facilities Obligations.
"Credit Facilities Collateral Agent" means JPMorgan Chase
Bank, in its capacity as Collateral Agent under the Credit Agreements and the
Credit Facilities Security Documents, and its successors in such capacity.
"Credit Facilities Obligations" means all "Obligations" as
such term is defined in the Guarantee and Collateral Agreement.
"Credit Facilities Secured Parties" means, at any time, each
person that is a "Secured Party" under and as defined in the Guarantee and
Collateral Agreement.
"Credit Facilities Security Documents" means the Guarantee
and Collateral Agreement, the other "Security Documents", as defined in the
Credit Agreements, and any other documents now existing or entered into after
the date hereof that create Liens on any assets or properties of the Company,
Farmland Feed or any subsidiaries of the Company or Farmland Feed to secure any
Credit Facilities Obligations.
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"Designated Junior Obligations" means all obligations of the
Company, Farmland Feed or any subsidiaries of the Company or Farmland Feed that
shall have been designated as such in accordance with Article III.
"Designated Junior Obligations Collateral" means any assets or
properties of the Company, Farmland Feed or any subsidiaries of the Company or
Farmland Feed now or at any time hereafter subject to Liens securing any
Designated Junior Obligations.
"Designated Junior Obligations Collateral Agent" means, with
respect to any Designated Junior Obligations, any collateral agent or similar
Representative appointed to act on behalf of the applicable Designated Junior
Obligations Secured Parties with respect to the Designated Junior Obligations
Collateral securing such Designated Junior Obligations; provided, that if no
such collateral agent or other Representative shall have been so appointed by
the applicable Designated Junior Obligations Secured Parties, then the
Designated Junior Obligations Collateral Agent with respect to such Designated
Junior Obligations will be deemed to be such Designated Junior Obligations
Secured Parties.
"Designated Junior Obligations Governing Documents" means, as
to any Designated Junior Obligations, the credit agreement, note agreement,
indenture or other instrument or document under which such Designated Junior
Obligations shall have been issued or incurred.
"Designated Junior Obligations Secured Parties" means, at any
time, each holder of, or obligee in respect of, any Designated Junior
Obligations outstanding at such time.
"Designated Junior Obligations Security Documents" means any
documents entered into after the date hereof that create Liens on any assets or
properties of the Company, Farmland Feed or any subsidiaries of the Company or
Farmland Feed to secure any Designated Junior Obligations.
"Designated Senior Obligations" means all obligations of the
Company, Farmland Feed or any subsidiaries of the Company or Farmland Feed that
shall have been designated as such in accordance with Article III.
"Designated Senior Obligations Collateral" means any assets or
properties of the Company, Farmland Feed or any subsidiaries of the Company or
Farmland Feed now or at any time hereafter subject to Liens securing any
Designated Senior Obligations.
"Designated Senior Obligations Collateral Agent" means, with
respect to any Designated Senior Obligations, any collateral agent or similar
Representative appointed to act on behalf of the applicable Designated Senior
Obligations Secured Parties with respect to the Designated Senior Obligations
Collateral securing such Designated Senior Obligations; provided, that if no
such collateral agent or other Representative shall have been so appointed by
the applicable Designated Senior
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Obligations Secured Parties, then the Designated Senior Obligations Collateral
Agent with respect to such Designated Senior Obligations will be deemed to be
such Designated Senior Obligations Secured Parties.
"Designated Senior Obligations Governing Documents" means, as
to any Designated Senior Obligations, the credit agreement, note agreement,
indenture or other instrument or document under which such Designated Senior
Obligations shall have been issued or incurred.
"Designated Senior Obligations Secured Parties" means, at any
time, each holder of, or obligee in respect of, any Designated Senior
Obligations outstanding at such time.
"Designated Senior Obligations Security Documents" means any
documents entered into after the date hereof that create Liens on any assets or
properties of the Company, Farmland Feed or any subsidiaries of the Company or
Farmland Feed to secure any Designated Senior Obligations.
"Discharge of Senior Obligations" means payment in full in
cash of the principal of and interest and premium, if any, on all Indebtedness
(as defined in the Credit Agreements) (or any corresponding definition in any
Designated Senior Obligations Governing Documents) constituting Senior
Obligations secured by any Collateral, or, with respect to all obligations under
each Hedging Agreement (as defined in the Credit Agreements) (or any
corresponding definition in any Designated Senior Obligations Governing
Documents) constituting Senior Obligations secured by any Collateral, delivery
of cash collateral or backstop letters of credit in respect thereof in
compliance with the terms of such Senior Obligation, in each case after or
concurrently with termination of all commitments to extend credit thereunder,
and payment in full of any other obligations in respect of any Senior Obligation
secured by any Collateral that are due and payable or otherwise accrued and
owing at or prior to the time such principal, interest and premium, if any, are
paid.
"Farmland Feed" means Land O'Lakes Farmland Feed LLC.
"Grantor" means the Company, Farmland Feed and each subsidiary
of the Company or Farmland Feed that shall have created any Senior Lien or
Junior Lien on its assets or properties to secure any Senior Obligations or
Junior Obligations.
"Guarantee and Collateral Agreement" means the Guarantee and
Collateral Agreement dated as of October 11, 2003, among the Company, Farmland
Feed, certain subsidiaries of the Company and Farmland Feed and the Credit
Facilities Collateral Agent, as amended, extended, renewed, restated,
supplemented or otherwise modified from time to time.
"Guarantors" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
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"Junior Collateral Agent" means the Note Collateral Agent and
each Designated Junior Obligations Collateral Agent.
"Junior Liens" means Liens created under Junior Obligations
Security Documents securing Junior Obligations.
"Junior Obligations" means the Note Obligations and the
Designated Junior Obligations.
"Junior Obligations Collateral" means the Note Collateral and
the Designated Junior Obligations Collateral.
"Junior Obligations Secured Parties" means the Note Secured
Parties and the Designated Junior Obligations Secured Parties.
"Junior Obligations Security Documents " means the Note
Security Documents and the Designated Junior Obligations Security Documents.
"Lien" means any pledge, security interest, mortgage or other
lien or encumbrance created to secure any indebtedness or other obligation.
"Note Collateral" means the "Collateral", as defined in the
Note Indenture, and any other assets or properties of the Company, Farmland Feed
or any subsidiaries of the Company or Farmland Feed now or at any time hereafter
subject to Liens securing any Note Obligations.
"Note Collateral Agent" means U.S. Bank National Association,
in its capacity as Collateral Agent under the Note Indenture and the Note
Security Documents, and its successors in such capacity.
"Note Indenture" means the Indenture dated as of December 23,
2003, between the Company, as Issuer, and U.S. Bank National Association, as
Trustee, as amended, extended, renewed, restated, supplemented or otherwise
modified from time to time.
"Note Obligations" means (a) the due and punctual payment of
(i) the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Notes, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) all other monetary obligations
of the Company, Farmland Feed or any subsidiaries of the Company or Farmland
Feed to any of the Note Secured Parties under the Note Indenture or any Note
Security Document, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) and (iv) all amounts due under any guarantee of
any of the foregoing, including any guarantee contained in the Note Indenture,
and (b) the due and punctual performance of
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all other obligations of the Company, Farmland Feed or any subsidiaries of the
Company or Farmland Feed to any of the Note Secured Parties under the Note
Indenture or any Note Security Document.
"Note Secured Parties" means, at any time, the Trustee, the
Note Collateral Agent and each other holder of, or obligee in respect of, any
Note Obligations outstanding at such time.
"Note Security Documents" means the Collateral Agreement
dated on or about the date of this Agreement, among the Company, Farmland Feed,
certain subsidiaries of the Company and Farmland Feed and the Note Collateral
Agent, and any other documents now existing or entered into after the date
hereof that create Liens on any assets or properties of the Company, Farmland
Feed or any subsidiaries of the Company or Farmland Feed to secure any Note
Obligations.
"Notes" means $175,000,000 aggregate principal amount of the
Company's Senior Secured Notes due 2010, issued on or about the date of this
Agreement pursuant to the Note Indenture, and any other notes issued from time
to time under the Note Indenture.
"Representative" means (a) in the case of any Credit Facility
Obligations, the Administrative Agent under the applicable Credit Agreement or
the Credit Facilities Collateral Agent, (b) in the case of the Note Obligations,
the Trustee or the Note Collateral Agent, and (c) in the case of any Designated
Senior Obligations or Designated Junior Obligations, any administrative agent,
trustee or similar representative designated pursuant to Article III or the
applicable Designated Senior Obligations Collateral Agent or Designated Junior
Obligations Collateral Agent.
"Revolving Credit Agreement" means the Amended and Restated
Five-Year Credit Agreement dated as of October 11, 2001, as amended, extended,
renewed, restated, supplemented or otherwise modified from time to time, among
the Company, the lenders party thereto, JPMorgan Chase Bank, as administrative
agent and collateral agent and CoBank, ACB, as co-administrative agent.
"Secured Parties" means the Credit Facilities Secured Parties,
the Designated Senior Obligations Secured Parties, the Note Secured Parties and
the Designated Junior Obligations Secured Parties.
"Senior Collateral Agent" means the Credit Facilities
Collateral Agent and each Designated Senior Obligations Collateral Agent.
"Senior Obligations" means the Credit Facilities Obligations
and the Designated Senior Obligations.
"Senior Obligations Collateral" means the Credit Facilities
Collateral and the Designated Senior Obligations Collateral.
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"Senior Obligations Secured Parties" means the Credit
Facilities Secured Parties and the Designated Senior Obligations Secured
Parties.
"Senior Obligations Security Documents" means the Credit
Facilities Security Documents and the Designated Senior Obligations Security
Documents.
"Senior Liens" means Liens created under Senior Obligations
Security Documents securing Senior Obligations.
"subsidiary " means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which are consolidated with those of
the parent in the parent's consolidated financial statements in accordance with
GAAP as of such date, as well as any other corporation, limited liability
company, partnership, association or other entity (a) of which securities or
other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or, in the case of a partnership, more than 50%
of the general partnership interests are, as of such date, owned, controlled or
held by, or (b) that is, as of such date, otherwise subject to the control by
(through possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ability to exercise voting power, by contract or otherwise), the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Term Credit Agreement" means the Credit Agreement dated as of
October 11, 2001, as amended, extended, renewed, restated, supplemented or
otherwise modified from time to time, among the Company, the lenders party
thereto, and JPMorgan Chase Bank, as administrative agent and collateral agent.
ARTICLE II
Subordination of Junior Liens
SECTION 2.01. Subordination of Junior Liens. (a) All Junior
Liens in respect of any Collateral are expressly subordinated and made junior in
right, priority, operation and effect to any and all Senior Liens in respect of
such Collateral, notwithstanding anything contained in this Agreement, the Note
Indenture, any Designated Junior Obligations Governing Document, any Junior
Obligations Security Document or any other agreement or instrument to the
contrary, and irrespective of the time, order or method of creation, attachment
or perfection of such Junior Liens and Senior Liens or any defect or deficiency
or alleged defect or deficiency in any of the foregoing.
(b) It is acknowledged that (i) the aggregate amount of the
Senior Obligations may be increased as provided in Article III or through
increases in the amounts of the facilities established by the Credit Agreements
or the Designated Senior Obligations Governing Documents (subject to the
limitations set forth in the Note Indenture and the Designated Junior
Obligations Governing Documents), (ii) a portion of
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the Senior Obligations consists or may consist of Indebtedness that is revolving
in nature, and the amount thereof that may be outstanding at any time or from
time to time may be increased or reduced and subsequently reborrowed and (iii)
the Senior Obligations may be extended, renewed or otherwise amended or
modified, or secured with additional Collateral, from time to time, all without
affecting the subordination of the Junior Liens hereunder or the provisions of
this Agreement defining the relative rights of the Senior Obligations Secured
Parties and the Junior Obligations Secured Parties. The lien priorities provided
for herein shall not be altered or otherwise affected by any amendment,
modification, supplement, extension, increase, replacement, renewal, restatement
or refinancing of either the Junior Obligations or the Senior Obligations, by
the securing of any Senior Obligations with any additional Collateral or
guarantees, by the release of any Collateral or Guarantees securing any Senior
Obligations, by the failure of any person to comply with any provision of this
Agreement or any agreement evidencing, governing or securing any Senior
Obligation or Junior Obligation or by any action that any Collateral Agent or
Secured Party may take or fail to take in respect of any Collateral.
(c) It is further acknowledged that the holders of Senior
Obligations of one or more classes may from time to time hereafter enter into
agreements establishing the relative priorities of such classes of Senior
Obligations or of the Senior Liens securing the same. It is agreed that the
relative priorities of classes of Senior Obligations shall be governed by the
foregoing agreements or, to the extent not determined by such agreements, by
applicable law, and that nothing in this Agreement shall affect such relative
priorities of classes of Senior Obligations or the related Senior Liens. It is
further agreed that no agreements establishing the relative priorities of Senior
Obligations of one or more classes or of the Senior Liens securing such Senior
Obligations shall in any way limit or affect the subordination of the Junior
Liens provided for in this Agreement or the provisions of this Agreement
defining the relative rights of the Senior Obligations Secured Parties and the
Junior Obligations Secured Parties.
(d) It is further acknowledged that (subject to the
limitations set forth in the Note Indenture and the Designated Junior
Obligations Governing Documents) the Senior Obligations are or may in the future
be secured by Liens on collateral other than the Collateral subject to the
Junior Liens. It is agreed that no Senior Collateral Agent will have any
obligation to proceed against any such other collateral securing the Senior
Obligations or to exercise any other remedies available to them as a condition
to obtaining the benefits of this Article II.
(e) The Note Collateral Agent (i) acknowledges receipt of
copies of the Credit Agreements and the Credit Facilities Security Documents as
in effect on the date hereof and (ii) confirms that the Note Indenture and the
Note Security Documents contain provisions substantially to the effect set forth
in Annex II hereto under which the Note Secured Parties agree to, and subject
their rights to the provisions of, this Agreement.
SECTION 2.02. No Action With Respect to Junior Obligations
Collateral Subject to Senior Liens. No Junior Collateral Agent or other Junior
Obligations Secured Party shall commence or instruct any Junior Collateral Agent
to commence any judicial
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or nonjudicial foreclosure proceedings with respect to, seek to have a trustee,
receiver, liquidator or similar official appointed for or over, attempt any
action to take possession of, exercise any right, remedy or power with respect
to, or otherwise take any action to enforce its interest in or realize upon, or
take any other action available to it in respect of, any Junior Obligations
Collateral under any Junior Obligations Security Document, applicable law or
otherwise, at any time when such Junior Obligations Collateral shall be subject
to any Senior Lien and prior to the Discharge of Senior Obligations, it being
agreed that only the applicable Senior Collateral Agent, acting in accordance
with the applicable Senior Obligations Security Documents, shall be entitled to
take any such actions or exercise any such remedies. Notwithstanding the
foregoing or anything to the contrary provided in Section 2.06, any Junior
Collateral Agent may, subject to Section 2.05, (i) take all such actions as it
shall deem necessary to continue the perfection of the Junior Liens on any
Junior Obligations Collateral, (ii) file a claim or statement of interest with
respect to the Junior Obligations in any bankruptcy, insolvency or similar
proceeding or (iii) take any other action not adverse to the Senior Liens in
order to preserve or protect its rights in the Junior Liens on the Collateral
for the benefit of the Junior Obligations Secured Parties.
SECTION 2.03. No Duties of Senior Collateral Agents. Each
Junior Obligations Secured Party acknowledges and agrees that no Senior
Collateral Agent or other Senior Obligations Secured Party shall have any duties
or other obligations to such Junior Obligations Secured Party with respect to
any Senior Obligations Collateral, other than to transfer to the Junior
Collateral Agents any proceeds of any such Collateral that constitutes Junior
Obligations Collateral remaining in its possession following any sale, transfer
or other disposition of such Collateral and the Discharge of Senior Obligations,
or, if any Senior Collateral Agent shall be in possession of all or any part of
such Collateral after the Discharge of Senior Obligations, such Collateral or
any part thereof remaining, in each case without representation or warranty on
the part of such Senior Collateral Agent or any Senior Obligations Secured Party
(it being understood that nothing herein shall prohibit any Senior Collateral
Agent from transferring Collateral or proceeds of Collateral to the holders of
other Senior Obligations secured by such Collateral or to another Senior
Collateral Agent acting on their behalf to the extent it is required to do so
under the terms of any agreement). In furtherance of the foregoing, each Junior
Obligations Secured Party acknowledges and agrees that until the Discharge of
Senior Obligations, the applicable Senior Collateral Agents shall be entitled,
for the benefit of the holders of such Senior Obligations, to sell, transfer or
otherwise dispose of or deal with such Collateral as provided herein and in the
Credit Facilities Security Documents or the Designated Senior Obligations
Security Documents, as the case may be, without regard to any Junior Lien or any
rights to which the holders of the Junior Obligations would otherwise be
entitled as a result of such Junior Lien. Without limiting the foregoing, each
Junior Obligations Secured Party agrees that no Senior Collateral Agent or other
Senior Obligations Secured Party shall have any duty or obligation first to
marshall or realize upon any type of Collateral (or any other collateral
securing the Senior Obligations), or to sell, dispose of or otherwise liquidate
all or any portion of the Collateral (or any other collateral securing the
Senior Obligations), in any manner that would maximize the return to the Junior
Obligations Secured Parties, notwithstanding that the order and timing of any
such realization, sale, disposition or liquidation may
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affect the amount of proceeds actually received by the Junior Obligations
Secured Parties from such realization, sale, disposition or liquidation. Each of
the Junior Obligations Secured Parties waives any claim such Junior Obligations
Secured Party may now or hereafter have against any Senior Collateral Agent or
other Senior Obligations Secured Party (or their representatives) arising out of
(i) any actions which any Senior Collateral Agent or the Senior Obligations
Secured Parties take or omit to take (including, without limitation, actions
with respect to the creation, perfection or continuation of Liens on any
Collateral, actions with respect to the foreclosure upon, sale, release or
depreciation of, or failure to realize upon, any of the Collateral and actions
with respect to the collection of any claim for all or any part of the Senior
Obligations from any account debtor, guarantor or any other party) in accordance
with the respective Senior Obligations Security Documents or any other agreement
related thereto or to the collection of the Senior Obligations or the valuation,
use, protection or release of any security for the Senior Obligations, (ii) any
election by any Senior Collateral Agent or Senior Obligations Secured Parties,
in any proceeding instituted under the Bankruptcy Code, of the application of
Section 1111(b) of the Bankruptcy Code and/or (iii) any borrowing of any
Grantor as debtor-in-possession, or any related grant of a security interest or
administrative expense priority under Section 364 of the Bankruptcy Code.
SECTION 2.04. No Interference; Payment Over; Reinstatement.
(a) Each Junior Obligations Secured Party agrees that (i) it will not take or
cause to be taken any action the purpose or effect of which is, or could be, to
make any Junior Lien pari passu with, or to give such Junior Obligations Secured
Party any preference or priority relative to, any Senior Lien with respect to
the Collateral subject to such Junior Lien or any part thereof, (ii) it will not
challenge or question in any proceeding the validity or enforceability of any
Senior Obligations or Senior Obligations Security Document, or the validity,
attachment, perfection or priority of any Senior Lien, or the validity or
enforceability of the priorities, rights or duties established by or other
provisions of this Agreement, (iii) it will not interfere, hinder or delay, in
any manner, whether by judicial proceedings or otherwise, any sale, transfer or
other disposition of the Collateral subject to such Junior Lien by any holders
of Senior Obligations secured by such Collateral or any Senior Collateral Agent
acting on their behalf, (iv) it shall have no right to (A) direct any Senior
Collateral Agent or any holder of Senior Obligations to exercise any right,
remedy or power with respect to the Collateral subject to any Junior Lien or (B)
consent to the exercise by any Senior Collateral Agent or any holder of Senior
Obligations of any right, remedy or power with respect to the Collateral subject
to any Junior Lien, (v) it will not institute any suit or assert in any suit,
bankruptcy, insolvency or other proceeding any claim against any Senior
Collateral Agent or any holder of Senior Obligations seeking damages from or
other relief by way of specific performance, instructions or otherwise with
respect to, and neither any Senior Collateral Agent nor any holder of Senior
Obligations shall be liable for, any action taken or omitted to be taken by such
Senior Collateral Agent or any such holder of Senior Obligations with respect to
any Collateral securing such Senior Obligations that is subject to any Junior
Lien, (vi) it will not seek, and hereby waives any right, to have any Senior
Obligations Collateral subject to any Junior Lien or any part thereof marshaled
upon any foreclosure or other disposition of such Collateral and (vii) it will
not attempt, directly or indirectly, whether by judicial
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proceedings or otherwise, to challenge the enforceability of any provision of
this Agreement.
(b) Each Junior Collateral Agent and each other Junior
Obligations Secured Party hereby agrees that if it shall obtain possession of
any Senior Obligations Collateral, or shall realize any proceeds or payment in
respect of any such Collateral, whether pursuant to any Junior Obligations
Security Document or by the exercise of any rights available to it under
applicable law or in any bankruptcy, insolvency or similar proceeding or
otherwise, at any time prior to the Discharge of Senior Obligations, then it
shall hold such Collateral, proceeds or payment in trust for the applicable
Senior Obligations Secured Parties and transfer such Collateral, proceeds or
payment, as the case may be, to the applicable Senior Collateral Agent. Each
Junior Obligations Secured Party agrees that if, at any time, all or part of any
payment with respect to any Senior Obligations previously made shall be
rescinded for any reason whatsoever, such Junior Obligations Secured Party shall
promptly pay over to the applicable Senior Collateral Agent any payment received
by it in respect of any Collateral subject to any Senior Lien securing such
Senior Obligations and shall promptly turn any Collateral subject to any such
Senior Lien then held by it over to the applicable Senior Collateral Agent, and
the provisions set forth in this Agreement shall be reinstated as if such
payment had not been made, until the Discharge of Senior Obligations.
SECTION 2.05. Automatic Release of Junior Liens. Each Junior
Collateral Agent and each other Junior Obligations Secured Party agrees that, in
the event of a sale, transfer or other disposition of Senior Obligations
Collateral subject to any Junior Lien (until the Note Obligations have been paid
in full in cash, to a person or entity that is not the Company or a Restricted
Subsidiary (as defined in the Note Indenture as in effect on the date hereof)
or, in the case of a sale of accounts receivable or inventory in a
Securitization (as defined in the Note Indenture as in effect on the date
hereof), to any Securitization Vehicle (as defined in the Note Indenture as in
effect on the date hereof) whether or not it is a subsidiary of the Company),
such Junior Lien on such Collateral shall terminate and be released
automatically and without further action if the applicable Senior Liens on such
Collateral are released. Each Junior Collateral Agent agrees to execute and
deliver all such releases and other instruments as shall reasonably be requested
by any applicable Senior Collateral Agent to evidence and confirm any release of
Junior Obligations Collateral provided for in this Section.
SECTION 2.06. Certain Agreements With Respect to Bankruptcy or
Insolvency Proceedings. In the event a proceeding under the Bankruptcy Code or
any other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law shall be commenced by or against any Grantor, each Junior Collateral
Agent and the other Junior Obligations Secured Parties shall not, prior to the
Discharge of Senior Obligations, (a) seek in respect of any part of the
Collateral or proceeds thereof or any Lien which may exist thereon any relief
from or modification of the automatic stay as provided in Section 362 of the
Bankruptcy Code or seek or accept any form of adequate protection under either
or both Sections 362 and 363 of the Bankruptcy Code with respect thereto except
replacement liens junior to the Senior Liens and the accrual (but not the
current payment) of interest and the current payment of out-of-pocket expenses,
including fees and
12
disbursements of counsel and other professional advisors, incurred by the Junior
Collateral Agents (which the Junior Obligations Secured Parties agree will
constitute adequate protection of their claims and interests), (b) oppose or
object to any adequate protection sought by or granted to any Senior Obligations
Secured Party in connection with the use of cash collateral or post-petition
financing under Section 362, 363 or 364 of the Bankruptcy Code, (c) oppose or
object to the use of cash collateral by a Grantor, (d) oppose or object to any
post-petition financing (including any debtor-in-possession financing) provided
by any of the Senior Obligations Secured Parties or provided by a third party
pursuant to Section 364 of the Bankruptcy Code (including on a priming basis),
(e) oppose or object to or withhold consent from the disposition of assets by
any Grantor under Section 363(b) or (f) of the Bankruptcy Code, (f) oppose,
object to, or vote against any plan of reorganization or disclosure statement
the terms of which are consistent with the rights of the Senior Obligations
Secured Parties under the Senior Obligations Security Documents and the rights
of the Senior Obligations Secured Parties and the Junior Obligations Secured
Parties under this Agreement, (g) make an election pursuant to Section 1111(b)
of the Bankruptcy Code or oppose any election pursuant to Section 1111(b) by
any Senior Obligations Secured Parties, (h) oppose or object to the
determination of the extent of any Liens held by any of the Senior Obligations
Secured Parties or the value of any claims of Senior Obligations Secured Parties
under Section 506(a) of the Bankruptcy Code, or (i) oppose or object to the
payment of interest and expenses as provided under Sections 506(b) and (c) of
the Bankruptcy Code to any Senior Obligations Secured Parties. In any proceeding
described in this Section, until the Discharge of Senior Obligations, each
Junior Obligations Secured Party hereby authorizes and empowers (without
imposing an obligation on) the holders of such Senior Obligations or any Senior
Collateral Agent or other Representative acting on their behalf to vote such
Junior Obligations Secured Party's share of the Junior Obligations secured by
such Junior Lien, insofar as any such voting right arises from or relates to
such Junior Lien or to the Collateral subject thereto, in connection with any
resolution, arrangement, plan of reorganization, compromise or settlement
relating to such Collateral, so long as the proposal is consistent with the
rights of the Senior Obligations Secured Parties under the Senior Obligations
Security Documents and the rights of the Senior Obligations Secured Parties and
the Junior Obligations Secured Parties under this Agreement. Notwithstanding the
foregoing, any Junior Collateral Agent may take the actions contemplated by the
last sentence of Section 2.02 hereof.
SECTION 2.07. Reinstatement. In the event that any of the
Senior Obligations shall be paid in full and such payment or any part thereof
shall subsequently, for whatever reason (including, but not limited to, an order
or judgment for disgorgement of a preference under Title 11 of the United Stated
Code, or any similar law, or the settlement of any claim in respect thereof), be
required to be returned or repaid, the terms and conditions of this Article II
shall be fully applicable thereto until all such Senior Obligations shall again
have been paid in full in cash.
13
ARTICLE III
Designated Senior Obligations and Designated Junior Obligations
SECTION 3.01. Designation. The Company may from time to time,
subject to any limitations contained in the Credit Agreements, any then existing
Designated Senior Obligations Governing Documents, the Note Indenture and any
then existing Designated Junior Obligations Governing Documents, designate
additional obligations that are, or are to be, secured by Liens on any assets or
properties of the Company, Farmland Feed or any subsidiaries of the Company or
Farmland Feed as Designated Senior Obligations or Designated Junior Obligations
by delivering to each Collateral Agent a notice:
(i) describing the obligations being designated as Designated
Senior Obligations or Designated Junior Obligations, and including a statement
of the maximum aggregate outstanding principal amount of such obligations;
(ii) listing the Designated Senior Obligations Governing
Documents or Designated Junior Obligations Governing Documents under which such
Designated Senior Obligations or Designated Junior Obligations are issued or
incurred and the Designated Senior Obligations Security Documents or Designated
Junior Obligations Security Documents securing such Designated Senior
Obligations or Designated Junior Obligations, and attaching copies of such
Designated Senior Obligations Governing Documents and Designated Senior
Obligations Security Documents or such Designated Junior Obligations Governing
Documents and Designated Junior Obligations Security Documents;
(iii) identifying the Designated Senior Obligations Collateral
Agent or Designated Junior Obligations Collateral Agent with respect to such
Designated Senior Obligations or Designated Junior Obligations, and any other
Representative of the holders of such Designated Senior Obligations or
Designated Junior Obligations;
(iv) certifying that the incurrence of such Designated Senior
Obligations or Designated Junior Obligations, the creation of the Liens securing
such Designated Senior Obligations or Designated Junior Obligations and the
designation of such Designated Senior Obligations or Designated Junior
Obligations as Designated Senior Obligations or Designated Junior Obligations
hereunder do not violate or result in a default under any provision of any
Credit Agreement, any then existing Designated Senior Obligations Governing
Document, the Note Indenture or any then existing Designated Junior Obligations
Governing Document;
(v) certifying that the Designated Senior Obligations
Governing Document or Designated Junior Obligations Governing Document governing
such Designated Senior Obligations or Designated Junior Obligations contains
provisions under which the related Designated Senior Obligations Secured Parties
or Designated Junior Obligations Secured Parties agree, or are deemed to agree,
to be bound by the provisions of this Agreement (which provisions, in the case
of any Designated Junior
14
Obligations Governing Document, shall be substantially to the effect set forth
in Annex II hereto); and
(vi) attaching a fully executed Accession Agreement under
which the Designated Senior Obligations Collateral Agent or Designated Junior
Obligations Collateral Agent with respect to such Designated Senior Obligations
or Designated Junior Obligations shall become a party to and a Collateral Agent
under this Agreement (unless such Designated Senior Obligations Collateral Agent
or Designated Junior Obligations Collateral Agent shall already be a party
hereto).
Upon the delivery of such notice and the related attachments as provided above,
the obligations designated in such notice shall become Designated Senior
Obligations or Designated Junior Obligations, as the case may be, for all
purposes of this Agreement. Notwithstanding any other provision contained in
this Section or elsewhere in this Agreement, no obligation shall constitute a
Designated Senior Obligation if the incurrence of such obligation, the creation
of the Liens securing such obligation or the designation of such obligation as a
Designated Senior Obligation hereunder would violate or result in a default
under any provision of any Credit Agreement, any existing Designated Senior
Obligations Governing Document, the Note Indenture or any existing Designated
Junior Obligations Governing Document.
ARTICLE IV
Sub-Agency for Perfection of Certain Security Interests
Each Senior Collateral Agent agrees that if it shall at any
time hold a Senior Lien on any Junior Obligations Collateral that can be
perfected by the possession or control of such Collateral or of any account in
which such Collateral is held, and if such Collateral or any such account is in
fact in the possession or under the control of such Senior Collateral Agent,
such Senior Collateral Agent will serve as sub-agent for each Junior Collateral
Agent for the sole purpose of perfecting the Junior Lien of such Junior
Collateral Agent in such Collateral. It is agreed that the obligations of the
applicable Senior Collateral Agent and the rights of the Junior Collateral
Agents and the other Junior Secured Parties in connection with any such
sub-agency arrangement will be in all respects subject to the provisions of
Article II. The Senior Collateral Agent will be deemed to make no representation
as to the adequacy of the steps taken by it to perfect the Junior Lien on any
such Collateral and shall have no responsibility to any Junior Collateral Agent
or other Junior Secured Party for such perfection, it being understood that the
sole purpose of this Article is to enable the Junior Secured Parties to obtain a
perfected Junior Lien in such Collateral to the extent, if any, that such
perfection results from the possession or control of such Collateral or any such
account by the Senior Collateral Agent. Upon the Discharge of Senior Obligations
with respect to Senior Obligations secured by the Senior Lien of any Senior
Collateral Agent, such Senior Collateral Agent shall take all such actions in
its power as shall reasonably be requested by the applicable Junior Collateral
Agents to transfer possession or control of such Collateral or any such account
to the Junior Collateral Agents; provided, that if any such Collateral or any
such account shall be subject to any other Senior Lien, then such Senior
15
Collateral Agent shall instead transfer such possession or control of such
Collateral or such account to the Senior Collateral Agent holding such Senior
Lien. Each Junior Collateral Agent agrees that if it shall obtain possession or
control of any Collateral or any account pursuant to the foregoing provisions
and such Collateral or account shall thereafter become subject to any Senior
Lien, it will take all such actions in its power as shall reasonably be
requested by the Senior Collateral Agent holding such Senior Lien to transfer
possession or control of such Collateral or such account to such Senior
Collateral Agent.
ARTICLE V
Existence and Amounts of Liens and Obligations
Whenever any Collateral Agent shall be required, in connection
with the exercise of its rights or the performance of its obligations hereunder,
to determine the existence or amount of any Senior Obligations or Junior
Obligations, or the existence of any Lien securing any such obligations, or the
Collateral subject to any such Lien, it may request that such information be
furnished to it in writing by the Representative of such Senior Obligations or
Junior Obligations and shall be entitled to make such determination on the basis
of the information so furnished; provided, however, that if, notwithstanding the
request of such Collateral Agent, such Representative shall fail or refuse
reasonably promptly to provide the requested information, such Collateral Agent
shall be entitled to determine such existence or amount by such method as it
may, in the exercise of its good faith judgment, determine, including by
reliance upon a certificate of the Company. Each Collateral Agent may rely
conclusively, and shall be fully protected in so relying, on any determination
made by it in accordance with the provisions of the preceding sentence (or as
otherwise directed by a court of competent jurisdiction) and shall have no
liability to the Company or any of its subsidiaries, any Secured Party or any
other person as a result of such determination.
ARTICLE VI
Consent of Grantors
Each Grantor hereby consents to the provisions of this
Agreement and the intercreditor arrangements provided for herein and agrees (a)
that no Collateral Agent or other Secured Party shall have any liability to any
Grantor as a result of the performance of its obligations hereunder and (b) that
the obligations of the Grantors under the Senior Obligations Security Documents
will in no way be diminished or otherwise affected by the provisions or
arrangements provided for herein. Each Grantor also hereby confirms its
respective guarantees, pledges and grants of security interests, as applicable,
under each of the Credit Facilities Security Documents to which it is a party,
and agrees that, notwithstanding the effectiveness of the Note Security
Documents, such guarantees, pledges and grants of security interests shall
continue to be in full force and effect and shall accrue to the benefit of the
Credit Facilities Secured Parties.
16
ARTICLE VII
Representations and Warranties
SECTION 7.01. Representations and Warranties of Each Party.
Each party hereto represents and warrants to the other parties hereto as
follows:
(a) Such party is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite power and authority to enter into and perform its obligations under
this Agreement.
(b) This Agreement has been duly executed and delivered by
such party and constitutes a legal, valid and binding obligation of such party,
enforceable in accordance with its terms.
(c) The execution, delivery and performance by such party of
this Agreement (i) do not require any consent or approval of, registration or
filing with or any other action by any governmental authority and (ii) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of such party or any order of any governmental
authority or any indenture, agreement or other instrument binding upon such
party.
SECTION 7.02. Representations and Warranties of Each
Collateral Agent. Each Collateral Agent represents and warrants to the other
parties hereto that it has been authorized by the Secured Parties for which it
serves as collateral agent (or, in the case of the Credit Facilities Collateral
Agent, by the Required Lenders under and as defined in each Credit Agreement) to
enter into this Agreement.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices. All notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Credit Facilities Collateral Agent, to JPMorgan
Chase Bank, Loan and Agency Services Group, 1111 Fannin, 10th Floor, Houston,
Texas 77002, Attention of Jeremy Jones (Telecopy No. (713) 750-2223) with a copy
to JPMorgan Chase Bank, 270 Park Avenue, New York, New York 10017, Attention of
Buddy Wuthrich (Telecopy No. (212) 270-3897);
(b) if to the Note Collateral Agent, to U.S. Bank National
Association, 60 Livingston Avenue, St. Paul, Minnesota 55107-2292, Attention of
Frank Leslie, Internal Mail EP-MN-WS3C (Telecopy No. (651) 495-8097);
17
(c) if to any Designated Senior Obligations Collateral Agent
or Designated Junior Obligations Collateral Agent, to it at the address or
telecopy number specified in the applicable Accession Agreement; and
(d) if to the Company, to it at Land O'Lakes, Inc., 4001
Lexington Avenue North, Saint Paul, Minnesota 55126, Attention of Treasurer
(Telecopy No. (651)481-2086).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (and for this
purpose a notice to the Company shall be deemed to be a notice to each Grantor).
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt.
SECTION 8.02. Waivers; Amendment. (a) No failure or delay on
the part of any party hereto in exercising any right or power 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. The rights and remedies of the parties
hereto are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or consent to
any departure by any party therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on any party hereto in any case shall
entitle such party to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by each Collateral Agent and the Company.
SECTION 8.03. Parties in Interest. This Agreement shall be
binding upon and inure to the benefit of the parties hereto (including any
Designated Senior Obligations Collateral Agents or Designated Junior Obligations
Collateral Agents becoming parties hereto as provided in Section 8.04) and their
respective successors and assigns, as well as the other Credit Facilities
Secured Parties, Note Secured Parties, Designated Senior Obligations Secured
Parties and Designated Junior Obligations Secured Parties, all of whom are
intended to be bound by, and to be third party beneficiaries of, this Agreement.
SECTION 8.04. Accession of Designated Senior Obligations
Collateral Agents and Designated Junior Obligations Collateral Agents. Upon the
execution and delivery by the collateral agent or similar Representative of any
Designated Senior Obligations or Designated Junior Obligations of an Accession
Agreement as provided in Article III, such collateral agent or Representative
shall become a party to this Agreement as the Designated Senior Obligations
Collateral Agent for such Designated Senior Obligations or the Designated Junior
Obligations Collateral Agent for such Designated
18
Junior Obligations, as the case may be, and shall thenceforth have all the
rights and obligations applicable to it in such capacity hereunder.
SECTION 8.05. Survival of Agreement. All covenants,
agreements, representations and warranties made by any party in this Agreement
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement.
SECTION 8.06. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute a single contract. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Agreement.
SECTION 8.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 8.08. Governing Law; Jurisdiction; Consent to Service
of Process, (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees 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.
Nothing in this Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement in
the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the
19
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 8.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 8.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 8.10. Specific Performance. Each party hereto (a)
agrees that any other party hereto may demand specific performance of this
Agreement and (b) irrevocably waives any defense based on the adequacy of a
remedy at law, and any other defense, that might be asserted in opposition to
the awarding of specific performance in any action that may be brought by any
other party hereto.
SECTION 8.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers
as of the day and year first above written.
JPMORGAN CHASE BANK, as Credit
Facilities Collateral Agent,
by /s/ ROBERT ANASTASIO
------------------------------
Name: ROBERT ANASTASIO
Title: VICE PRESIDENT
U. S. BANK NATIONAL ASSOCIATION,
as Noted Collateral Agent,
by /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
LAND O'LAKES, INC.
by /s/ Daniel Knutson
------------------------------
Name: Daniel Knutson
Title: Chief Financial Officer
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
ACS STORES, LLC,
by /s/ Mark Chenoweth
-----------------------
Name: Mark Chenoweth
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
ADVANCED BUSINESS CONCEPTS
INTERNATIONAL, LLC,
by /s/ Thomas Verdoorn
-----------------------
Name: Thomas Verdoorn
Title: President/Secretary
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
AG2AG, LLC,
by /s/ Duane Halverson
-------------------------
Name: Duane Halverson
Title: Chairman
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
AGRICULTURAL INDEMNITY INSURANCE
COMPANY,
by /s/ Gary A. Swoverland
-------------------------
Name: Gary A. Swoverland
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
ALLIANCE MILK PRODUCTS, LLC,
by /s/ Vern Loehr
--------------------------
Name: Vern Loehr
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
AMERICA'S COUNTRY STORES
HOLDINGS, LLC,
by /s/ Mark Chenoweth
---------------------------
Name: Mark Chenoweth
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
AMERICA'S COUNTRY STORES, LLC,
by /s/ Mark Chenoweth
----------------------------
Name: Mark Chenoweth
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
DIAMOND CROSS, LLC,
by /s/ Jerry Booren
----------------------------
Name: Jerry Booren
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
FMR, INC.,
by /s/ Maurie Cashman
-------------------------
Name: Maurie Cashman
Title: Treasurer
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
FORAGE GENETICS, INC.,
by /s/ Mark McCaslin
---------------------------
Name: Mark McCaslin
Title: President/Treasurer
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
GOLDEN STATE FEEDS, LLC,
by /s/ Jerry Booren
---------------------------
Name: Jerry Booren
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
GOLDEN VALLEY DAIRY PRODUCTS,
by /s/ Fernando Palacios
------------------------------
Name: Fernando Palacios
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
LL OLDS SEED COMPANY,
by /s/ Dave Seehusen
------------------------------
Name: Dave Seehusen
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
LAND O'LAKES FARMLAND FEED
LLC,
by /s/ Bob DeGregorio
------------------------------
Name: Bob DeGregorio
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
LAND O'LAKES HOLDINGS, INC.,
by /s/ John E. Gherty
------------------------------
Name: John E. Gherty
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
LAND O'LAKES INTERNATIONAL
DEVELOPMENT CORPORATION,
by /s/ Daniel Knutson
------------------------------
Name: Daniel Knutson
Title: Treasurer
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
LOL HOLDINGS II, INC.
by /S/ Duane Halverson
------------------------------
Name: Duane Halverson
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
LOL POWER, LLC
by /s/ Daniel Knutson
------------------------------
Name: Daniel Knutson
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
MILK PRODUCTS, LLC,
by /s/ Vern Loehr
------------------------------
Name: Vern Loehr
Title: President/Secretary
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
NORTH COAST FERTILIZER II, INC.,
by /s/ Pete Simonse
--------------------------------
Name: Pete Simonse
Title: V.P./Assistant Treasurer
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
NORTHWEST FOOD PRODUCTS
COMPANY, INC.,
by /s/ Don Berg
------------------------------
Name: Don Berg
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
NORTHWEST FOOD PRODUCTS
TRANSPORTATION, LLC,
by /s/ Jim Sleper
------------------------------
Name: Jim Sleper
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
NUTRA-BLEND, LLC,
by /s/ Michael Osborne
-----------------------------
Name: Michael Osborne
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
PMI AGRICULTURE, LLC,
by /s/ David R. Hoogmoed
-------------------------------
Name: David R. Hoogmoed
Title: Member
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
PMI NUTRITION, LLC,
by /s/ Glenn Shields
-------------------------------
Name: Glenn Shields
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
PMI NUTRITION INTERNATIONAL, LLC,
by /s/ Glenn Shields
-------------------------------
Name: Glenn Shields
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
PURINA MILLS, LLC,
by /s/ Bob DeGregorio
-------------------------------
Name: Bob DeGregorio
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
QC HOLDINGS, INC.,
by /s/ Allen Schopbach
-------------------------------
Name: Allen Schopbach
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
QC INDUSTRIES, INC.,
by /s/ Allen Schopbach
-------------------------------
Name: Allen Schopbach
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
QC, INC.,
by /s/ Allen Schopbach
-------------------------------
Name: Allen Schopbach
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
REALTY LOL, INC.,
by /s/ John E. Gherty
-------------------------------
Name: John E. Gherty
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
RESEARCH SEEDS, INC.,
by /s/ Mark McCaslin
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Name: Mark McCaslin
Title: Vice President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
SEED RESEARCH, INC.,
by /s/ William Dunn
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Name: William Dunn
Title: President
SIGNATURE PAGE TO
LIEN SUBORDINATION AND
INTERCREDITOR AGREEMENT
THOMAS PRODUCTS, LLC,
by /s/ Jerry Booren
-------------------------------
Name: Jerry Booren
Title: President
ANNEX I
ACCESSION AGREEMENT dated as of [ ],
between [Representative] (the "Representative") and LAND
O'LAKES, INC. (the "Company").
A. Reference is made to the Lien Subordination and Intercreditor
Agreement dated as of December 23, 2003 (as amended, restated, supplemented or
otherwise modified from time to time, the "Intercreditor Agreement"), among
JPMorgan Chase Bank, as Credit Facilities Collateral Agent, U.S. Bank National
Association, as Note Collateral Agent, Land O'Lakes, Inc., the Grantors and
Guarantors named therein and the other Designated Senior Obligations Collateral
Agents and Designated Junior Obligations Collateral Agents from time to time
party thereto.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Intercreditor Agreement.
C. The Representative desires to become a Designated [Senior] [Junior]
Obligations Collateral Agent under the Intercreditor Agreement.
Accordingly, the Company and the Representative agree as follows:
SECTION 1. Accession to Intercreditor Agreement. Upon the execution of
this Accession Agreement by the Representative and the Company and as of the
date of the delivery of this Accession Agreement to each Collateral Agent under
the Intercreditor Agreement as part of the notice required pursuant to Section
3.01 of the Intercreditor Agreement, the Representative hereby accedes to the
Intercreditor Agreement and shall thereafter be a party to and be bound by the
provisions of the Intercreditor Agreement and have all the rights and
obligations of a Designated [Senior] [Junior] Obligations Collateral Agent with
respect to the Designated [Senior] [Junior] Obligations described in the notice
required pursuant to Section 3.01 of the Intercreditor Agreement (of which this
Accession Agreement forms a part).
SECTION 2. Notices. All notices and other communications provided for
in the Intercreditor Agreement shall be given to the Representative as follows:
[Address]
[Telecopy Number]
SECTION 3. Counterparts. This Accession Agreement may be executed in
multiple counterparts, each of which shall constitute an original but all of
which when taken together shall constitute a single agreement. Delivery of an
executed signature page to this Accession Agreement by facsimile transmission
shall be as effective as delivery of a manually signed counterpart of this
Accession Agreement.
SECTION 4. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
[Name of Representative],
by
________________________________
Name:
Title:
LAND O'LAKES, INC.
by
________________________________
Name:
Title:
ANNEX II
Provision for Designated Junior Obligations Governing Document
Reference is made to the Lien Subordination and Intercreditor
Agreement dated as of December 23, 2003, among JPMorgan Chase Bank, as
collateral agent for the Credit Facility Secured Parties referred to therein;
U.S. Bank National Association, as collateral agent for the Note Secured Parties
referred to therein; Land O'Lakes, Inc.; the Grantors and Guarantors named
therein; and the Designated Senior Obligations Collateral Agents and Designated
Junior Obligations Collateral Agents becoming parties thereto from time to time
(the "Intercreditor Agreement"). Each [holder of Designated Junior Obligations]
(a) [hereby consents] [will be deemed to have consented] to the subordination of
the [Liens securing the Designated Junior Obligations] on the terms set forth in
the Intercreditor Agreement, (b) [hereby agrees] [will be deemed to have agreed]
that it will be bound by and will take no actions contrary to the provisions of
the Intercreditor Agreement and (c) [hereby authorizes and instructs] [will be
deemed to have authorized and instructed] the [Designated Junior Obligations
Collateral Agent] to enter into the Intercreditor Agreement and to subject the
[Designated Junior Obligations] and the [Liens securing the Designated Junior
Obligations] to the provisions thereof. The foregoing provisions are intended as
an inducement to the Senior Obligations Secured Parties (as defined in the
Intercreditor Agreement) to extend credit to Land O'Lakes, Inc., and such Senior
Obligations Secured Parties are intended third party beneficiaries of such
provisions and the provisions of the Intercreditor Agreement.
Provision for Designated Junior Obligations Security Document
Reference is made to the Lien Subordination and Intercreditor
Agreement dated as of December 23, 2003, among JPMorgan Chase Bank, as
collateral agent for the Credit Facility Secured Parties referred to therein;
U.S. Bank National Association, as collateral agent for the Note Secured Parties
referred to therein; Land O'Lakes, Inc.; the Grantors and Guarantors named
therein; and the Designated Senior Obligations Collateral Agents and Designated
Junior Obligations Collateral Agents becoming parties thereto from time to time
(the "Intercreditor Agreement"). Notwithstanding any other provision contained
herein, this Agreement, the Liens created hereby and the rights, remedies,
duties and obligations provided for herein are subject in all respects to the
provisions of the Intercreditor Agreement and, to the extent provided therein,
the Senior Obligations Security Documents (as defined in the Intercreditor
Agreement). In the event of any conflict or inconsistency between the provisions
of this Agreement and the Intercreditor Agreement, the provisions of the
Intercreditor Agreement shall control.