EXHIBIT 10.18
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT ("Agreement") is entered into as of September
11, 2002, by and between BANK OF THE WEST and CoBANK, ACB.
Recitals
A. Bank of the West has made available to Diamond Walnut Growers, Inc., an
incorporated non-profit agricultural marketing association ("Borrower"), on an
unsecured basis, a short-term revolving line of credit providing for advances
and the creation and discount of acceptances for Borrower's account not to
exceed at any time an aggregate principal amount of $25,000,000 (the "Bank of
the West Indebtedness").
B. CoBank, ACB has made available to Borrower, all on an unsecured basis (except
for certain stock collateral described in Paragraph 1 below), (a) a term loan in
the original principal amount of $10,000,000 evidenced by a promissory note
dated March 13, 1991, and (b) short-term revolving seasonal line of credit
providing for loans or advances not to exceed at any time an aggregate principal
amount of $50,000,000 (collectively the "CoBank, ACB Indebtedness"). (The Bank
of the West Indebtedness and the CoBank, ACB Indebtedness, and any other
indebtedness of Borrower to the parties hereto for new short-term or long-term
and/or to refinance any outstanding long-term debt are sometimes hereinafter
collectively referred to as the "Bank Indebtedness").
C. Bank of the West and CoBank, ACB (each individually, a "Bank" and
collectively, the "Banks") desire to enter into certain agreements with respect
to the Bank Indebtedness.
D. As used herein, the term "short-term" shall mean borrowings which mature in
one year or less and the term "long-term" shall mean borrowings which mature
after one year.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, Bank of the West and CoBank, ACB hereby agree as follows:
1. Agreements With Respect to Taking Collateral. Each Bank hereby agrees not to
take any collateral of any kind as security for any short-term Bank Indebtedness
owing to such Bank, whether now existing or hereafter arising. In addition, each
Bank hereby agrees not to take any personal property collateral of any kind,
excluding equipment and fixtures, as security for any long-term Bank
Indebtedness owing to such Bank, whether now existing or hereafter arising. Each
Bank hereby further agrees that either Bank may obtain a lien on any real
property, fixtures and equipment as security for any long-term Bank Indebtedness
owing to such Bank. Notwithstanding the foregoing, CoBank, ACB shall have and
shall maintain an exclusive security interest in CoBank's equities and patronage
dividends owned by Borrower as security for any indebtedness of Borrower to
CoBank, ACB.
2. Notice of Default. Each Bank hereby agrees to notify promptly the other Bank
of any default by Borrower under the Bank of the West Indebtedness or the
CoBank, ACB
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Indebtedness, respectively, which default is not waived or cured within any cure
period applicable thereto.
3. Assignment of Bank Indebtedness. Each Bank hereby agrees not to sell, assign
or transfer any interest of such Bank in any portion of the Bank Indebtedness
unless such Bank provides at least sixty (60) days' prior to written notice to
each of the other Banks of such sale, assignment or transfer, and the purchaser,
assignee or transferee agrees in writing to be bound by this Agreement to the
full extent of the Bank making such sale, assignment or transfer. This Agreement
shall be binding upon and insure to the benefit of the successors and assigns of
the parties hereto.
4. Credit Information. Each Bank agrees to supply to the other Bank, upon
request, copies of documents evidencing the Bank Indebtedness owing to such
Bank.
5. Termination. Either Bank may terminate this Agreement by providing at least
sixty (60) days' prior written notice to the other Bank.
6. Notices. Any notice given, or required to be given, by either Bank under this
Agreement shall be deemed to be validly given if in writing and delivered
personally or sent by registered or certified United States mail, postage
prepaid, addressed to the other Bank at the following address:
Bank of the West:
Bank of the West
Sacramento CBC/ABC
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CoBank, ACB:
CoBank, ACB
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or to such other address as either Bank shall designate by giving written notice
to the other Bank in accordance with the terms of this provision.
7. Cost of Attorney's Fees. Each Bank agrees to bear its own costs incurred in
connection with this Agreement; provided, however, if either Bank prevails
against the other Bank in any legal action concerning any provision of this
Agreement, the prevailing Bank shall be entitled to receive from such other bank
its costs of suit, including reasonable attorneys' fees, in addition to all
other recovery or relief to which the prevailing Bank may be entitled.
8. Modifications. This Agreement may be modified only by an agreement in writing
executed by each of the Banks and consented to by Borrower.
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9. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of California.
10. Severability. The invalidity of unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions.
11. Representations and Warranties. Each Bank represents and warrants to the
other Bank that this Agreement has been duly authorized by such Bank and
constitutes the valid, binding, enforceable obligations of such Bank,
enforceable in accordance with its terms.
12. Counterparts. This agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, and all of
which when taken together shall constitute but one and the same Agreement.
13. Cancellation of Prior Agreement. As of the date first written above, this
Agreement cancels and supersedes that certain Intercreditor Agreement among Bank
of America National Trust and Savings Association, and CoBank, ACB dated as of
April 24, 1992.
IN WITNESS WHEREOF, Bank of the West and CaBank, ACB have executed this
Agreement as of the day and year first written above.
BANK OF THE WEST CoBank, ACB
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Typed Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Typed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: Vice President
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CONSENT
The undersigned, DIAMOND WALNUT GROWERS, INC., hereby consents to the
foregoing Intercreditor Agreement and all terms and conditions set forth herein,
and further agrees that the undersigned shall be bound by all such terms and
conditions to the extent they affect the undersigned.
IN WITNESS WHEREOF, the undersigned has executed this Consent as of
September 11, 2002.
DIAMOND WALNUT GROWERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Typed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: V.P. - C.F.O.
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