Exhibit 4.4
EXHIBIT D
GUARANTEE AND COLLATERAL AGREEMENT dated
as of October 11, 2001, among LAND O'LAKES,
INC., the SUBSIDIARY PARTIES NAMED HEREIN and
THE CHASE MANHATTAN BANK, as Collateral
Agent.
Reference is made to (i) the Credit Agreement dated as of
October 11, 2001, (as amended, supplemented or otherwise modified from time to
time, the "Term Credit Agreement"), among Land O'Lakes, Inc. (the "Borrower"),
the Lenders party thereto and The Chase Manhattan Bank, as Administrative Agent
and Collateral Agent and (ii) the Amended and Restated Five-Year Credit
Agreement dated as of June 28, 1999, as amended and restated as of October 11,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Revolving Credit Agreement" together with the Term Credit Agreement, the
"Credit Agreements"), among the Borrower, the Lenders party thereto, The Chase
Manhattan Bank as Administrative Agent and Collateral Agent and CoBank, ACB as
Co-Administrative Agent. The Lenders have agreed to extend credit to the
Borrower subject to the terms and conditions set forth in the Credit Agreements.
The obligations of the Lenders to extend such credit are conditioned upon, among
other things, the execution and delivery of this Agreement. The Subsidiary
Parties are affiliates of the Borrower, will derive substantial benefits from
the extension of credit to the Borrower pursuant to the Credit Agreements and
are willing to execute and deliver this Agreement in order to induce the Lenders
to extend such credit. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Credit Agreements.
(a) Capitalized terms used in this Agreement and not otherwise
defined herein have the meanings specified in the Credit Agreements. All terms
defined in the New York UCC (as defined herein) and not defined in this
Agreement have the meanings specified therein; the term "instrument" shall have
the meaning specified in Article 9 of the New York UCC.
(b) The rules of construction specified in Article I of the
Credit Agreements also apply to this Agreement.
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SECTION 1.02. Other Defined Terms. As used in this Agreement,
the following terms have the meanings specified below:
"Account Debtor" means any Person who is or who may become
obligated to any Grantor under, with respect to or on account of an Account.
"Accounts" means all Accounts (as defined in the New York
Uniform Commercial Code) and Account Assets with respect to such Accounts,
including those related to the dairy businesses of the Company and the
Restricted Subsidiaries and payable to such parties, including, but not limited
to, accounts receivable generated from the marketing and sale of milk, butter,
cheese, cream products, dairy and non-dairy spreads, whey, non-fat dry milk,
cocoa, and other dairy or dairy related products sold for consumer use,
licensing fees relating to dairy products and dairy related services, and the
proceeds thereof, but specifically excluding the CoBank Accounts and the Account
Assets with respect to such CoBank Accounts.
"CoBank Accounts" means (i) accounts related to the feed
businesses of Farmland Feed and PMI, their subsidiaries and their respective
successors, including, but not limited to, accounts receivable generated from
the sale of animal feed and feed ingredients, soybean meal, premixes, non-grain
protein ingredients, grains, vitamins, minerals, branded feed products, complete
feed products, milk replacer products, feed additives, animal health products,
farm supply products, toll milling services and other feed related services and
the proceeds thereof, (ii) accounts related to the seed business of the Company
including, but not limited to, accounts receivable generated from the sale of
seed, licensing fees and seed related services and the proceeds thereof, (iii)
accounts related to the swine businesses of the Company, Farmland Feed and PMI,
its subsidiaries and their respective successors, including, but not limited to,
accounts receivable generated from the sale of swine and swine related services
and the proceeds thereof, and (iv) all Account Assets related to the foregoing;
provided, however, that "CoBank Accounts" related to the swine businesses of the
Company and Farmland Feed shall not include any such right to payment where
payments have been sent to a lockbox or lockbox account other than those
specified in the guarantee and collateral agreement related to the Credit
Agreement.
"Collateral" has the meaning assigned to such term in Section
4.01.
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"Copyright License" means any written agreement, now or
hereafter in effect, granting any right to any third party under any copyright
now or hereafter owned by any Grantor or that such Grantor otherwise has the
right to license, or granting any right to any Grantor under any copyright now
or hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" means all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule III.
"Credit Agreements" has the meaning assigned to such term in
the preliminary statement of this Agreement.
"Equipment" means all Equipment (as defined in the New York
UCC), but specifically excluding the following: (x) the (i) Niro Dryer (Asset
No. 216376, (ii) Niro Dryer (Asset No. 216392), (iii) Niro Dryer (Asset No.
216394), (iv) APV Evaporator (Asset No. 216391), (v) APV Evaporator (Asset No.
216435), (vi) APV Evaporator (Asset No. 216436), (vii) Xxxxxx butter churn
(Asset No. 216461), (viii) Two Xxxxxxx Dryers - Carlisle Expansion (Asset No.
224922), and (ix) GEA Evaporator - Carlisle Expansion (Asset No. 226443) owned
by the Borrower and currently located at its Carlisle, Pennsylvania plant, (y)
any improvements, model conversions, additions, accessions, attachments,
replacements and substitutions of, for and to any of the foregoing, and (z) any
proceeds (as defined by the Pennsylvania Uniform Commercial Code) of the
foregoing.
"Equity Interests" means shares of capital stock, interests in
a cooperative corporation, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust (other than any trust
subject to ERISA or non-qualified benefit plans) or other equity ownership
interests in a Person.
"Federal Securities Laws" has the meaning assigned to such
term in Section 5.04.
"General Intangibles" means all choses in action and causes of
action and all other intangible personal property of any Grantor of every kind
and nature (other than
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Accounts) now owned or hereafter acquired by any Grantor, including corporate or
other business records, indemnification claims, contract rights (including
rights under leases, whether entered into as lessor or lessee, Hedging
Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts.
"Grantors" means the Borrower and the Subsidiary Parties.
"Guarantors" means the Subsidiary Parties.
"Intellectual Property" means all intellectual and similar
property of any Grantor of every kind and nature now owned or hereafter acquired
by any Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"License" means any Patent License, Trademark License,
Copyright License or other license or sublicense to which any Grantor is a
party, including those listed on Schedule III.
"Loan Documents" means this Agreement, the Term Credit
Agreement, the Revolving Credit Agreement and the other Security Documents.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to (i) the Term Credit Agreement and (ii) the Revolving Credit
Agreement.
"New York UCC" means the Uniform Commercial Code as from time
to time in effect in the State of New York.
"Non-Pledged Equity Interests" means Equity Interests owned by
any Grantor which do not constitute Pledged Collateral.
"Obligations" means (a) the due and punctual payment by the
Borrower of (i) the principal of and interest (including interest accruing
during the pendency of any
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bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrower under the
Revolving Credit Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral, and (iii) all other monetary
obligations of the Borrower to any of the Secured Parties under the Credit
Agreements and each of the other Loan Documents, 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), (b) the due and punctual
performance of all other obligations of the Borrower under or pursuant to the
Credit Agreements and each of the other Loan Documents, (c) the due and punctual
payment and performance of all the obligations of each other Loan Party under or
pursuant to this Agreement and each of the other Loan Documents and (d) the due
and punctual payment and performance of all obligations of each Loan Party under
each Hedging Agreement that (i) is in effect on the Effective Date with a
counterparty that is a Lender or an Affiliate of a Lender as of the Effective
Date or (ii) is entered into after the Effective Date with any counterparty that
is a Lender or an Affiliate of a Lender at the time such Hedging Agreement is
entered into.
"Patent License" means any written agreement, now or hereafter
in effect, granting to any third party any right to make, use or sell any
invention on which a patent, now or hereafter owned by any Grantor or that any
Grantor otherwise has the right to license, is in existence, or granting to any
Grantor any right to make, use or sell any invention on which a patent, now or
hereafter owned by any third party, is in existence, and all rights of any
Grantor under any such agreement.
"Patents" means all of the following now owned or hereafter
acquired by any Grantor: (a) all letters patent of the United States or any
other country, all registrations and recordings thereof, and all applications
for letters patent of the United States or any other country, including
registrations, recordings and pending applications in the United States Patent
and Trademark Office or any similar offices in any other country, including
those listed on Schedule III, and (b) all reissues, continuations,
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divisions, continuations-in-part, renewals or extensions thereof, and the
inventions disclosed or claimed therein, including the right to make, use and/or
sell the inventions disclosed or claimed therein.
"Pledged Collateral" has the meaning assigned to such term in
Section 3.01.
"Pledged Debt Securities" has the meaning assigned to such
term in Section 3.01.
"Pledged Securities" means any promissory notes, stock
certificates or other securities now or hereafter included in the Pledged
Collateral, including all certificates, instruments or other documents
representing or evidencing any Pledged Collateral.
"Pledged Stock" has the meaning assigned to such term in
Section 3.01.
"Pledgors" means the Borrower and the Subsidiary Parties.
"Perfection Certificate" means a certificate substantially in
the form of Annex 2, completed and supplemented with the schedules and
attachments contemplated thereby, and duly executed by a Financial Officer and
the chief legal officer of the Borrower.
"Proceeds" has the meaning specified in Section 9-102 of the
New York UCC.
"Revolving Credit Agreement" has the meaning assigned to such
term in the preliminary statement of this Agreement.
"Secured Parties" means (a) the Lenders, (b) the Collateral
Agent, (c) the Issuing Bank, (d) each counterparty to any Hedging Agreement with
a Loan Party that either (i) is in effect on the Effective Date if such
counterparty is a Lender or an Affiliate of a Lender as of the Effective Date or
(ii) is entered into after the Effective Date if such counterparty is a Lender
or an Affiliate of a Lender at the time such Hedging Agreement is entered into,
(e) the beneficiaries of each indemnification obligation undertaken by any
Grantor or Pledgor under any Loan Document and (f) the successors and assigns of
each of the foregoing.
"Security Interest" has the meaning assigned to such term in
Section 4.01.
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"Seed" means crop seed (including, but not limited to, seed
for soybeans, corn, alfalfa, forage and turf grasses).
"Subsidiary Parties" means (a) the Subsidiary Loan Parties
identified on Schedule I and (b) each other Subsidiary that becomes a party to
this Agreement as contemplated by Section 7.16.
"Term Credit Agreement" has the meaning assigned to such term
in the preliminary statement of this Agreement.
"Trademark License" means any written agreement, now or
hereafter in effect, granting to any third party any right to use any trademark
now or hereafter owned by any Grantor or that any Grantor otherwise has the
right to license, or granting to any Grantor any right to use any trademark now
or hereafter owned by any third party, and all rights of any Grantor under any
such agreement.
"Trademarks" means all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office
or any similar offices in any State of the United States or any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule II, (b) all goodwill associated therewith or
symbolized thereby and (c) all other assets, rights and interests that uniquely
reflect or embody such goodwill.
ARTICLE II
Guarantee
SECTION 2.01. Guarantee. Each Guarantor unconditionally
guarantees, jointly with the other Guarantors and severally, as a primary
obligor and not merely as a surety, the due and punctual payment and performance
of the Obligations. Each of the Guarantors further agrees that the Obligations
may be extended or renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its
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guarantee notwithstanding any extension or renewal of any Obligation. Each of
the Guarantors waives presentment to, demand of payment from and protest to the
Borrower or any other Loan Party of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment.
SECTION 2.02. Guarantee of Payment. Each of the Guarantors
further agrees that its guarantee hereunder constitutes a guarantee of payment
when due and not of collection, and waives any right to require that any resort
be had by the Collateral Agent or any other Secured Party to any security held
for the payment of the Obligations or to any balance of any deposit account or
credit on the books of the Collateral Agent or any other Secured Party in favor
of the Borrower or any other Person.
SECTION 2.03. No Limitations, Etc. (a) Except for termination
of a Guarantor's obligations hereunder as expressly provided in Section 7.15,
the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by (i) the failure of the Collateral Agent or any other
Secured Party to assert any claim or demand or to enforce any right or remedy
under the provisions of any Loan Document or otherwise; (ii) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of, any Loan Document or any other agreement, including with respect
to any other Guarantor under this Agreement; (iii) the release of any security
held by the Collateral Agent or any other Secured Party for the Obligations or
any of them; (iv) any default, failure or delay, willful or otherwise, in the
performance of the Obligations; or (v) any other act or omission that may or
might in any manner or to any extent vary the risk of any Guarantor or otherwise
operate as a discharge of any Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations). Each Guarantor
expressly authorizes the Secured Parties to take and hold security for the
payment and performance of the Obligations and this Agreement, to exchange,
waive or release any or all such security (with or without consideration), to
enforce or apply such security and direct the order and manner of any sale
thereof in their
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sole discretion or to release or substitute any one or more other guarantors or
obligors upon or in respect of the Obligations, all without affecting the
obligations of any Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each
Guarantor waives any defense based on or arising out of any defense of the
Borrower or any other Loan Party or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower or any other Loan Party, other than the indefeasible
payment in full in cash of all the Obligations. The Collateral Agent and the
other Secured Parties may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with the Borrower or any
other Loan Party or exercise any other right or remedy available to them against
the Borrower or any other Loan Party, without affecting or impairing in any way
the liability of any Guarantor hereunder except to the extent the Obligations
have been fully and indefeasibly paid in full in cash. To the fullest extent
permitted by applicable law, each Guarantor waives any defense arising out of
any such election even though such election operates, pursuant to applicable
law, to impair or to extinguish any right of reimbursement or subrogation or
other right or remedy of such Guarantor against the Borrower or any other Loan
Party, as the case may be, or any security.
SECTION 2.04. Reinstatement. Each of the Guarantors agrees
that its guarantee hereunder shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any Obligation
is rescinded or must otherwise be restored by the Collateral Agent or any other
Secured Party upon the bankruptcy or reorganization of the Borrower, any other
Loan Party or otherwise.
SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of
the foregoing and not in limitation of any other right that the Collateral Agent
or any other Secured Party has at law or in equity against any Guarantor by
virtue hereof, upon the failure of the Borrower or any other Loan Party to pay
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Collateral Agent
for distribution to the applicable Secured Parties in cash the amount of such
unpaid
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Obligation. Upon payment by any Guarantor of any sums to the Collateral Agent as
provided above, all rights of such Guarantor against the Borrower or any other
Guarantor arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subject to Article VI.
SECTION 2.06. Information. Each Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's and each
other Loan Party's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations and the
nature, scope and extent of the risks that such Guarantor assumes and incurs
hereunder, and agrees that none of the Collateral Agent or the other Secured
Parties will have any duty to advise such Guarantor of information known to it
or any of them regarding such circumstances or risks.
ARTICLE III
Pledge of Securities
SECTION 3.01. Pledge. As security for the payment or
performance, as the case may be, in full of the Obligations, each Pledgor hereby
assigns and pledges to the Collateral Agent, its successors and assigns, for the
benefit of the Secured Parties, and hereby grants to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, a security
interest in, all of such Pledgor's right, title and interest in, to and under
(a) the shares of capital stock and other Equity Interests owned by it and
listed on Schedule II and any other Equity Interests of the Borrower or any
Restricted Subsidiary obtained in the future by such Pledgor and the
certificates representing all such Equity Interests (the "Pledged Stock");
provided that the Pledged Stock shall not include more than 65% of the issued
and outstanding voting Equity Interests of any Foreign Restricted Subsidiary
and, provided further that, the parties understand and agree that Schedule II
has been prepared to give effect to (i) the contribution by or lending by the
Borrower to Holding Co. II of cash sufficient to consummate the merger described
in clause (ii) below, and (ii) the acquisition by Holding Co. II of all the
issued and outstanding equity interests of PMI, for cash in the approximate
amount of $243,400,000 effected through a merger of a newly formed Wholly Owned
Subsidiary of Holding Co,. II with and into PMI in accordance with the terms of
the Acquisition Documents, but does not give effect to (i) the conversion of PMI
and certain of its subsidiaries into
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limited liability companies or (ii) the contribution by Holding Co. II of its
100% membership interest in the converted PMI to Farmland Feed in exchange for
the membership interest in Farmland Feed (provided, however, immediately upon
any such conversion of corporate form and contribution by Holding Co. II
referred to in this paragraph, the Borrower shall cause each respective entity
to pledge and deliver certificated interests in all limited liability
companies); (b)(i) the debt securities listed opposite the name of such Pledgor
on Schedule II, (ii) any debt securities in the future issued to such Pledgor
and (iii) the promissory notes and any other instruments, if any, evidencing
such debt securities (the "Pledged Debt Securities"); (c) all other property
that may be delivered to and held by the Collateral Agent pursuant to the terms
of this Section 3.01; (d) subject to Section 3.05, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of, in exchange for or
upon the conversion of, and all other Proceeds received in respect of, the
securities referred to in clauses (a) and (b) above; (e) subject to Section
3.05, all rights and privileges of such Pledgor with respect to the securities
and other property referred to in clauses (a), (b), (c) and (d) above; and (f)
all Proceeds of any of the foregoing (the items referred to in clauses (a)
through (f) above being collectively referred to as the "Pledged Collateral").
TO HAVE AND TO HOLD the Pledged Collateral, together with all
right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Collateral Agent, its successors and assigns, for
the ratable benefit of the Secured Parties, forever; subject, however, to the
terms, covenants and conditions hereinafter set forth.
SECTION 3.02. Delivery of the Pledged Collateral. (a) Each
Pledgor agrees promptly to deliver or cause to be delivered to the Collateral
Agent any and all Pledged Securities.
(b) Each Pledgor will cause any Indebtedness for borrowed
money owed to such Pledgor by any Person to be evidenced by a duly executed
promissory note that is pledged and delivered to the Collateral Agent pursuant
to the terms hereof; provided that no promissory note shall be necessary in the
case of Indebtedness owing by the Borrower to any Restricted Subsidiary or by
any Restricted Subsidiary to any other Restricted Subsidiary or to the Borrower
so long as such Indebtedness, if ever represented by a promissory note, is
pledged pursuant to this Agreement. Notwithstanding the
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foregoing, all Indebtedness of Subsidiaries (other than Restricted Subsidiaries)
and third parties that is owing to the Borrower or any Restricted Subsidiary
shall be pledged pursuant to this Agreement and the Collateral Agent shall have
received all such promissory notes, if any, together with instruments of
transfer with respect thereto endorsed in blank within ten days after the
Effective Date; provided, that if after ten days following the Effective Date, a
promissory note which evidences such Indebtedness is created or found, such
promissory note will be pledged to the Collateral Agent as set forth in this
paragraph.
(c) Upon delivery to the Collateral Agent, (i) any Pledged
Securities shall be accompanied by stock powers duly executed in blank or other
instruments of transfer satisfactory to the Collateral Agent and by such other
instruments and documents as the Collateral Agent may reasonably request and
(ii) all other property comprising part of the Pledged Collateral shall be
accompanied by proper instruments of assignment duly executed by the applicable
Pledgor and such other instruments or documents as the Collateral Agent may
reasonably request. Each delivery of Pledged Securities shall be accompanied by
a schedule describing the securities, which schedule shall be attached hereto as
Schedule II and made a part hereof; provided that failure to attach any such
schedule hereto shall not affect the validity of such pledge of such Pledged
Securities. Each schedule so delivered shall supplement any prior schedules so
delivered.
SECTION 3.03. Representations, Warranties and Covenants. The
Pledgors jointly and severally represent, warrant and covenant to and with the
Collateral Agent, for the benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the
issued and outstanding shares of each class of the capital stock of the
issuer thereof represented by such Pledged Stock;
(b) the Pledged Stock and Pledged Debt Securities have been
duly and validly authorized and issued by the issuers thereof and (i)
in the case of Pledged Stock, are fully paid and nonassessable and (ii)
in the case of Pledged Debt Securities, are legal, valid and binding
obligations of the issuers thereof;
(c) except for the security interests granted hereunder, each
of the Pledgors (i) is and will continue to be the direct owner,
beneficially and of record, of the Pledged Securities indicated on
Schedule
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II as owned by such Pledgor, (ii) holds the same free and clear of all
Liens, (iii) will make no assignment, pledge, hypothecation or transfer
of, or create or permit to exist any security interest in or other Lien
on, the Pledged Collateral, other than pursuant hereto, and (iv)
subject to Section 3.05, will cause any and all Pledged Collateral,
whether for value paid by the Pledgor or otherwise, to be forthwith
deposited with the Collateral Agent and pledged or assigned hereunder;
provided that nothing herein shall prohibit a sale or other disposition
of the Pledged Securities permitted by the Credit Agreements;
(d) except for restrictions and limitations imposed by the
Loan Documents or securities laws generally or Section 11.1 of the
Farmland Feed Operating Agreement, the Pledged Collateral is and will
continue to be freely transferable and assignable, and none of the
Pledged Collateral is or will be subject to any option, right of first
refusal, shareholders agreement, charter or by-law provisions or
contractual restriction of any nature that might prohibit, impair,
delay or otherwise affect the pledge of such Pledged Collateral
hereunder, the sale or disposition thereof pursuant hereto or the
exercise by the Collateral Agent of rights and remedies hereunder;
(e) each of the Pledgors (i) has the power and authority to
pledge the Pledged Collateral pledged by it hereunder in the manner
hereby done or contemplated and (ii) will defend its title or interest
thereto or therein against any and all Liens (other than the Lien
created by this Agreement), however arising, of all Persons whomsoever;
(f) no consent or approval of any Governmental Authority, any
securities exchange or any other Person was or is necessary to the
validity of the pledge effected hereby (other than such as have been
obtained and are in full force and effect);
(g) by virtue of the execution and delivery by the Pledgors of
this Agreement, when any Pledged Securities are delivered to the
Collateral Agent in accordance with this Agreement, the Collateral
Agent will obtain a legal, valid and perfected first priority lien upon
and security interest in such Pledged Securities as security for the
payment and performance of the Obligations; and
(h) the pledge effected hereby is effective to
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vest in the Collateral Agent, for the benefit of the Secured Parties,
the rights of the Collateral Agent in the Pledged Collateral as set
forth herein.
SECTION 3.04. Registration in Nominee Name; Denominations. The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its
sole and absolute discretion) to hold the Pledged Securities in its name as
agent for the Lenders, the name of its nominee (as pledgee or as sub-agent) or
the name of the applicable Pledgor, endorsed or assigned in blank or in favor of
the Collateral Agent. Each Pledgor will promptly give to the Collateral Agent
copies of any notices or other communications received by it with respect to
Pledged Securities registered in the name of such Pledgor. The Collateral Agent
shall at all times have the right to exchange the certificates representing
Pledged Securities for certificates of smaller or larger denominations for any
purpose consistent with this Agreement.
SECTION 3.05. Voting Rights; Dividends and Interest, etc. (a)
Unless and until an Event of Default shall have occurred and be continuing and
the Collateral Agent shall have notified the Pledgors that their rights under
this Section are being suspended:
(i) Each Pledgor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner of
Pledged Securities or any part thereof for any purpose consistent with
the terms of this Agreement, the Credit Agreements and the other Loan
Documents; provided that such rights and powers shall not be exercised
in any manner that could materially and adversely affect the rights
inuring to a holder of any Pledged Securities or the rights and
remedies of any of the Collateral Agent or the other Secured Parties
under this Agreement or the Credit Agreements or any other Loan
Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to such Pledgor, all
such proxies, powers of attorney and other instruments as such Pledgor
may reasonably request for the purpose of enabling such Pledgor to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and
retain any and all dividends, interest, principal and
15
other distributions paid on or distributed in respect of the Pledged
Securities to the extent and only to the extent that such dividends,
interest, principal and other distributions are permitted by, and
otherwise paid or distributed in accordance with, the terms and
conditions of the Credit Agreements, the other Loan Documents and
applicable laws; provided that any noncash dividends, interest,
principal or other distributions that would constitute Pledged Stock or
Pledged Debt Securities, whether resulting from a subdivision,
combination or reclassification of the outstanding capital stock of the
issuer of any Pledged Securities or received in exchange for Pledged
Securities or any part thereof, or in redemption thereof, or as a
result of any merger, consolidation, acquisition or other exchange of
assets to which such issuer may be a party or otherwise, shall be and
become part of the Pledged Collateral, and, if received by any Pledgor,
shall not be commingled by such Pledgor with any of its other funds or
property but shall be held separate and apart therefrom, shall be held
in trust for the benefit of the Collateral Agent and shall be forthwith
delivered to the Collateral Agent in the same form as so received (with
any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event
of Default, after the Collateral Agent shall have notified the Pledgors of the
suspension of their rights under paragraph (a)(iii) of this Section 3.05, then
all rights of any Pledgor to dividends, interest, principal or other
distributions that such Pledgor is authorized to receive pursuant to paragraph
(a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall have the sole and exclusive
right and authority to receive and retain such dividends, interest, principal or
other distributions. All dividends, interest, principal or other distributions
received by any Pledgor contrary to the provisions of this Section 3.05 shall be
held in trust for the benefit of the Collateral Agent, shall be segregated from
other property or funds of such Pledgor and shall be forthwith delivered to the
Collateral Agent upon demand in the same form as so received (with any necessary
endorsement). Any and all money and other property paid over to or received by
the Collateral Agent pursuant to the provisions of this paragraph (b) shall be
retained by the Collateral Agent in an account to be established by the
Collateral Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 5.02. After all Events of
Default have been cured or waived, the Collateral Agent shall,
16
within five Business Days after all such Events of Default have been cured or
waived, repay to each Pledgor (without interest) all dividends, interest,
principal or other distributions that such Pledgor would otherwise be permitted
to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and
that remain in such account.
(c) Upon the occurrence and during the continuance of an Event
of Default, after the Collateral Agent shall have notified the Pledgors of the
suspension of their rights under paragraph (a)(i) of this Section 3.05, then all
rights of any Pledgor to exercise the voting and consensual rights and powers it
is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and
the obligations of the Collateral Agent under paragraph (a)(ii) of this Section
3.05, shall cease, and all such rights shall thereupon become vested in the
Collateral Agent, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers; provided that, unless
otherwise directed by the Required Lenders, the Collateral Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit the Pledgors to exercise such rights.
(d) Any notice given by the Collateral Agent to the Pledgors
suspending their rights under paragraph (a) of this Section 3.05 (i) may be
given by telephone if promptly confirmed in writing, (ii) may be given to one or
more of the Pledgors at the same or different times and (iii) may suspend the
rights of the Pledgors under paragraph (a)(i) or paragraph (a)(iii) in part
without suspending all such rights (as specified by the Collateral Agent in its
sole and absolute discretion) and without waiving or otherwise affecting the
Collateral Agent's rights to give additional notices from time to time
suspending other rights so long as an Event of Default has occurred and is
continuing.
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01. Security Interest. (a) As security for the
payment or performance, as the case may be, in full of the Obligations, each
Grantor hereby assigns and pledges to the Collateral Agent, its successors and
assigns, for the ratable benefit of the Secured Parties, and hereby grants to
the Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest (the "Security Interest"), in all right,
title or interest now owned or at any time hereafter acquired by such
17
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all Equipment;
(v) all General Intangibles (other than Non-Pledged Equity
Interests);
(vi) all Instruments;
(vii) all Inventory;
(viii) all Seed;
(ix) all Investment Property (other than Non-Pledged Equity
Interests);
(x) all books and records pertaining to the Collateral; and
(xi) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security
and guarantees given by any Person with respect to any of the
foregoing;
provided, however, that Collateral shall not include CoBank Accounts and Account
Assets with respect to CoBank Accounts.
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent at
any time and from time to time to file in any relevant jurisdiction any initial
financing statements (including fixture filings) and amendments thereto that
contain the information required by Article 9 of the Uniform Commercial Code of
each applicable jurisdiction for the filing of any financing statement or
amendment, including (a) whether the Grantor is an organization, the type of
organization and any organizational identification number issued to the Grantor
and (b) in the case of a financing statement filed as a fixture filing or
covering Collateral constituting minerals or the like to be extracted or timber
to be cut, a sufficient description of the real property to which such
Collateral relates. The Grantor agrees to provide such information to the
Collateral Agent promptly upon request.
18
Each Grantor also ratifies its authorization for the
Collateral Agent to file in any relevant jurisdiction any initial financing
statements or amendments thereto if filed prior to the date hereof.
The Collateral Agent is further authorized to file filings
with the United States Patent and Trademark Office or United States Copyright
Office (or any successor office or any similar office in any other country) or
other documents for the purpose of perfecting, confirming, continuing, enforcing
or protecting the Security Interest granted by each Grantor, without the
signature of any Grantor, and naming any Grantor or the Grantors as debtors and
the Collateral Agent as secured party, such filing to be in substantially the
form of Exhibits X-0, X-0 and A-3.
(c) The Security Interest is granted as security only and
shall not subject the Collateral Agent or any other Secured Party to, or in any
way alter or modify, any obligation or liability of any Grantor with respect to
or arising out of the Collateral.
SECTION 4.02. Representations and Warranties. The Grantors
jointly and severally represent and warrant to the Collateral Agent and the
Secured Parties that:
(a) each Grantor has good and valid rights in and title to the
Collateral with respect to which it has purported to grant a Security
Interest hereunder and has full power and authority to grant to the
Collateral Agent the Security Interest in such Collateral pursuant
hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or
approval of any other Person other than any consent or approval that
has been obtained or the absence of any consent or approval relating
only to immaterial portions of the Collateral;
(b)(i) the Perfection Certificate has been duly prepared,
completed and executed and the information set forth therein, including
the exact legal name of such Grantor, is correct and complete. Uniform
Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations
containing a description of the Collateral have been prepared by the
Collateral Agent based upon the information provided to the Collateral
Agent in the Perfection Certificate for filing in each governmental,
municipal or other office specified in Schedule II to the Perfection
Certificate, which are all the filings, recordings and registrations
19
(other than filings required to be made in the United States Patent and
Trademark Office and the United States Copyright Office in order to
perfect the Security Interest in Collateral consisting of United States
Patents, Trademarks and Copyrights) that are necessary to publish
notice of and protect the validity of and to establish a legal, valid
and perfected security interest in favor of the Collateral Agent (for
the ratable benefit of the Secured Parties) in respect of all
Collateral in which the Security Interest may be perfected by filing,
recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions, and no
further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary in any such jurisdiction,
except as provided under applicable law with respect to the filing of
continuation statements; and (ii) each Grantor represents and warrants
that a fully executed agreement substantially in the form of Exhibits
X-0, X-0 and A-3 hereto and containing a description of all Collateral
consisting of Intellectual Property with respect to United States
Patents and United States registered Trademarks (and Trademarks for
which United States registration applications are pending) and within
one month after the execution of this Agreement with respect to United
States registered Copyrights, have been delivered to the Collateral
Agent for recording by the United States Patent and Trademark Office
and the United States Copyright Office pursuant to 35 U.S.C. ss. 261,
15 U.S.C. ss. 1060 or 17 U.S.C. ss. 205 and the regulations thereunder,
as applicable, and otherwise as may be required pursuant to the laws of
any other necessary jurisdiction, to protect the validity of and to
establish a legal, valid and perfected security interest in favor of
the Collateral Agent (for the ratable benefit of the Secured Parties)
in respect of all Collateral consisting of United States Patents,
United States Trademarks and Copyrights in which a security interest
may be perfected by filing, recording or registration in the United
States (or any political subdivision thereof) and its territories and
possessions, or in any other necessary jurisdiction, and no further or
subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary (other than such actions as are necessary
to perfect the Security Interest with respect to any Collateral
consisting of Patents, Trademarks and Copyrights (or registration or
application for registration thereof) acquired or developed after the
date hereof);
20
(c) the Security Interest constitutes (i) a legal and valid
security interest in all the Collateral securing the payment and
performance of the Obligations, (ii) subject to the filings described
in Section 4.02(b), a perfected security interest in all Collateral in
which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United
States (or any political subdivision thereof) and its territories and
possessions pursuant to the Uniform Commercial Code or other applicable
law in such jurisdictions and (iii) a security interest that shall be
perfected in all Collateral in which a security interest may be
perfected upon the receipt and recording of an agreement in
substantially the form of Exhibits X-0, X-0 and A-3 hereto with the
United States Patent and Trademark Office and the United States
Copyright Office, as applicable, within the three-month period
(commencing as of the date hereof) pursuant to 35 U.S.C. ss. 261 or 15
U.S.C. ss. 1060 or the one month period (commencing as of the date
hereof) pursuant to 17 U.S.C. ss. 205 and otherwise as may be required
pursuant to the laws of any other necessary jurisdiction. The Security
Interest is and shall be prior to any other Lien on any of the
Collateral, other than Liens expressly permitted to be prior to the
Security Interest pursuant to Section 6.02 of the Credit Agreements;
and
(d) the Collateral is owned by the Grantors free and clear of
any Lien, except for Liens expressly permitted pursuant to Section 6.02
of the Credit Agreements. None of the Grantors has filed or consented
to the filing of (i) any financing statement or analogous document
under the Uniform Commercial Code or any other applicable laws covering
any Collateral, (ii) any assignment in which any Grantor assigns any
Collateral or any security agreement or similar instrument covering any
Collateral with the United States Patent and Trademark Office or the
United States Copyright Office or (iii) any assignment in which any
Grantor assigns any Collateral or any security agreement or similar
instrument covering any Collateral with any foreign governmental,
municipal or other office, which financing statement or analogous
document, assignment, security agreement or similar instrument is still
in effect, except, in each case, for Liens expressly permitted pursuant
to Section 6.02 of the Credit Agreements.
SECTION 4.03. Covenants. (a) Each Grantor
21
agrees promptly to notify the Collateral Agent in writing of any change (i) in
its corporate name, (ii) in the location of its chief executive office, any
office in any jurisdiction that has not adopted Revised Article 9 of the Uniform
Commercial Code in which it maintains books or records relating to Collateral
owned by it or at which Collateral owned by it is located (including the
establishment of any such new office or facility), (iii) in its identity or type
of organization or corporate structure, (iv) in its Federal Taxpayer
Identification Number or organizational identification number or (v) in its
jurisdiction of organization. Each Grantor agrees to promptly provide the
Collateral Agent with certified organizational documents reflecting any of the
changes described in the preceding sentence. Each Grantor agrees not to effect
or permit any change referred to in the first sentence of this paragraph unless
all filings have been made under the Uniform Commercial Code or otherwise that
are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected first priority
security interest in all the Collateral. Each Grantor agrees promptly to notify
the Collateral Agent if any material portion of the Collateral owned or held by
such Grantor is damaged or destroyed.
(b) Each Grantor agrees to maintain, at its own cost and
expense, such complete and accurate records with respect to the Collateral owned
by it as is consistent with its current practices and in accordance with such
prudent and standard practices used in industries that are the same as or
similar to those in which such Grantor is engaged, but in any event to include
complete accounting records indicating all payments and proceeds received with
respect to any part of the Collateral, and, at such time or times as the
Collateral Agent may reasonably request, (but not more often than once per
calendar year in the absence of an Event of Default) promptly to prepare and
deliver to the Collateral Agent a duly certified schedule or schedules in form
and detail satisfactory to the Collateral Agent showing the identity, amount and
location of any and all Collateral.
(c) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to Section 5.01(a)
of the Credit Agreements, the Borrower shall deliver to the Collateral Agent a
certificate executed by a Financial Officer and the chief legal officer of the
Borrower setting forth the information required pursuant to Section II of the
Perfection Certificate or confirming that there has been no change in such
information since the date of such certificate or the date of the most recent
certificate delivered pursuant to
22
this Section 4.03(c). Each certificate delivered pursuant to this Section
4.03(c) shall identify in the format of Schedule III all Intellectual Property
of any Grantor in existence on the date thereof and not then listed on such
Schedules or previously so identified to the Collateral Agent.
(d) Each Grantor shall, at its own expense, take any and all
actions necessary to defend title to the Collateral against all persons and to
defend the Security Interest of the Collateral Agent in the Collateral and the
priority thereof against any Lien not expressly permitted pursuant to Section
6.02 of the Credit Agreements.
(e) Each Grantor agrees, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Collateral Agent may from time to
time reasonably request to better assure, preserve, protect and perfect the
Security Interest and the rights and remedies created hereby, including the
payment of any fees and taxes required in connection with the execution and
delivery of this Agreement, the granting of the Security Interest and the filing
of any financing statements (including fixture filings) or other documents in
connection herewith or therewith. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory note
or other instrument, such note or instrument shall be immediately pledged and
delivered to the Collateral Agent, duly endorsed in a manner satisfactory to the
Collateral Agent. If any limited liability company membership interests or
limited partnership interests held by any Grantor shall become "securities"
within the meaning of Sections 8-102 and 8-103(c) of the New York UCC, any
certificates evidencing such securities shall immediately be pledged and
delivered to the Collateral Agent, duly endorsed in a manner satisfactory to the
Collateral Agent.
Without limiting the generality of the foregoing, each Grantor
hereby authorizes the Collateral Agent, with prompt notice thereof to the
Grantors, to supplement this Agreement by supplementing Schedule III or adding
additional schedules hereto to specifically identify any asset or item that may
constitute Copyrights, Licenses, Patents or Trademarks; provided, however, that
any Grantor shall have the right, exercisable within 10 days after it has been
notified by the Collateral Agent of the specific identification of such
Collateral, to advise the Collateral Agent in writing of any inaccuracy of the
representations and warranties made by such Grantor hereunder with respect to
such Collateral. Each Grantor agrees that it will use
23
its best efforts to take such action as shall be necessary in order that all
representations and warranties hereunder shall be true and correct with respect
to such Collateral within 30 days after the date it has been notified by the
Collateral Agent of the specific identification of such Collateral.
(f) The Collateral Agent and such persons as the Collateral
Agent may reasonably designate shall have the right, at the Grantors' own cost
and expense, to inspect the Collateral, all records related thereto (and to make
extracts and copies from such records) and the premises upon which any of the
Collateral is located, to discuss the Grantors' affairs with the officers of the
Grantors and their independent accountants and to verify under reasonable
procedures, in accordance with Section 5.09 of the Credit Agreements, the
validity, amount, quality, quantity, value, condition and status of, or any
other matter relating to, the Collateral, including, in the case of Accounts or
Collateral in the possession of any third person, by contacting Account Debtors
or the third person possessing such Collateral for the purpose of making such a
verification (but not more often than twice per calendar year in the absence of
an Event of Default). The Collateral Agent shall have the absolute right to
share any information it gains from such inspection or verification with any
Secured Party.
(g) At its option, the Collateral Agent may discharge past due
taxes, assessments, charges or fees not permitted by Section 5.05 of the Credit
Agreements or Liens, security interests or other encumbrances at any time levied
or placed on the Collateral and not permitted pursuant to Section 6.02 of the
Credit Agreements, and may pay for the maintenance and preservation of the
Collateral to the extent any Grantor fails to do so as required by the Credit
Agreements or this Agreement, and each Grantor jointly and severally agrees to
reimburse the Collateral Agent on demand for any payment made or any expense
incurred by the Collateral Agent pursuant to the foregoing authorization;
provided, however, that nothing in this Section 4.03(g) shall be interpreted as
excusing any Grantor from the performance of, or imposing any obligation on the
Collateral Agent or any Secured Party to cure or perform any covenants or other
promises of any Grantor with respect to taxes, assessments, charges, fees,
liens, security interests or other encumbrances and maintenance as set forth
herein or in the other Loan Documents.
(h) If at any time any Grantor shall take a security interest
in any property of an Account Debtor or
24
any other person to secure payment and performance of an Account having a value
in excess of $1,000,000 (provided that such dollar limitation shall not apply to
any intercompany Indebtedness), such Grantor shall promptly assign such security
interest to the Collateral Agent. Such assignment need not be filed of public
record unless necessary to continue the perfected status of the security
interest against creditors of and transferees from the Account Debtor or other
person granting the security interest.
(i) Each Grantor shall remain liable to observe and perform
all the conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Collateral, all in accordance
with the terms and conditions thereof, and each Grantor jointly and severally
agrees to indemnify and hold harmless the Collateral Agent and the Secured
Parties from and against any and all liability for such performance.
(j) None of the Grantors shall make or permit to be made an
assignment, pledge or hypothecation of the Collateral or shall grant any other
Lien in respect of the Collateral, except as expressly permitted by Section 6.02
of the Credit Agreements. None of the Grantors shall make or permit to be made
any transfer of the Collateral and each Grantor shall remain at all times in
possession of the Collateral owned by it, except that (a) Inventory may be sold
in the ordinary course of business and (b) unless and until the Collateral Agent
shall notify the Grantors that an Event of Default shall have occurred and be
continuing and that during the continuance thereof the Grantors shall not sell,
convey, lease, assign, transfer or otherwise dispose of any Collateral (which
notice may be given by telephone if promptly confirmed in writing), the Grantors
may use and dispose of the Collateral in any lawful manner not inconsistent with
the provisions of this Agreement, the Credit Agreements or any other Loan
Document. Without limiting the generality of the foregoing, each Grantor agrees
that it shall use commercially reasonable efforts not to permit any Inventory to
be in the possession or control of any warehouseman, bailee, agent or processor
at any time unless such warehouseman, bailee, agent or processor shall have been
notified of the Security Interest and shall have acknowledged in writing, in
form and substance satisfactory to the Collateral Agent, that such bailee or
processor holds the Inventory for the benefit of the Collateral Agent subject to
the Security Interest and shall act upon the instructions of the Collateral
Agent without further consent from the Grantor, and that such warehouseman,
agent, bailee or processor further agrees to waive and release any Lien
25
held by it with respect to such Inventory, whether arising by operation of law
or otherwise; provided, however, that notwithstanding the foregoing, the
requirement to notify any warehouseman, bailee, agent or processor of the
Security Interest shall only apply to such locations where Inventory is held
where the value of such Inventory exceeds $2,000,000, based on the highest value
of such Inventory at June 30 of the preceding fiscal year.
(k) None of the Grantors will, without the Collateral Agent's
prior written consent, grant any extension of the time of payment of any
Accounts included in the Collateral, compromise, compound or settle the same for
less than the full amount thereof, release, wholly or partly, any person liable
for the payment thereof or allow any credit or discount whatsoever thereon,
other than extensions, credits, discounts, compromises or settlements granted or
made in the ordinary course of business and consistent with its current
practices and in accordance with such prudent and standard practice used in
industries that are the same as or similar to those in which such Grantor is
engaged.
(l) The Grantors, at their own expense, shall maintain or
cause to be maintained insurance covering physical loss or damage to the
Inventory and Equipment in accordance with Section 5.07 of the Credit
Agreements. Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact)
for the purpose, during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Collateral under policies of
insurance, endorsing the name of such Grantor on any check, draft, instrument or
other item of payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect thereto. In the event that
any Grantor at any time or times shall fail to obtain or maintain any of the
policies of insurance required hereby or to pay any premium in whole or part
relating thereto, the Collateral Agent may, without waiving or releasing any
obligation or liability of the Grantors hereunder or any Event of Default, in
its sole discretion, obtain and maintain such policies of insurance and pay such
premium and take any other actions with respect thereto as the Collateral Agent
deems advisable. All sums disbursed by the Collateral Agent in connection with
this Section 4.03(l), including reasonable attorneys' fees, court costs,
expenses and other charges relating thereto, shall be payable, upon demand, by
the Grantors to the Collateral Agent and shall be additional Obligations secured
hereby.
26
(m) Each Grantor shall legend, in form and manner satisfactory
to the Collateral Agent, its Chattel Paper and its books, records and documents
evidencing or pertaining thereto with an appropriate reference to the fact that
such Chattel Paper have been assigned to the Collateral Agent for the benefit of
the Secured Parties and that the Collateral Agent has a security interest
therein.
SECTION 4.04. Other Actions. In order to further insure the
attachment, perfection and priority of, and the ability of the Collateral Agent
to enforce, the Collateral Agent's security interest in the Collateral, each
Grantor agrees, in each case at such Grantor's own expense, to take the
following actions with respect to the following Collateral:
(a) Instruments and Tangible Chattel Paper. If any Grantor
shall at any time hold or acquire any Instruments or Tangible Chattel
Paper, such Grantor shall forthwith endorse, assign and deliver the
same to the Collateral Agent, accompanied by such instruments of
transfer or assignment duly executed in blank as the Collateral Agent
may from time to time specify.
(b) Investment Property. If any Grantor shall at any time hold
or acquire any certificated securities which constitute Collateral,
such Grantor shall forthwith endorse, assign and deliver the same to
the Collateral Agent, accompanied by such instruments of transfer or
assignment duly executed in blank as the Collateral Agent may from time
to time specify. If any securities which constitute Collateral now or
hereafter acquired by any Grantor are uncertificated and are issued to
such Grantor or its nominee directly by the issuer thereof, such
Grantor shall immediately notify the Collateral Agent thereof and, at
the Collateral Agent's request and option, pursuant to an agreement in
form and substance satisfactory to the Collateral Agent, either (a)
cause the issuer to agree to comply with instructions from the
Collateral Agent as to such securities, without further consent of any
Grantor or such nominee, or (b) arrange for the Collateral Agent to
become the registered owner of the securities. The provisions of this
paragraph shall not apply to any financial assets credited to a
securities account for which the Collateral Agent is the securities
intermediary.
(c) Electronic Chattel Paper and Transferable Records. If any
Grantor at any time holds or acquires an interest in any electronic
chattel paper or any
27
"transferable record," as that term is defined in Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act, or
in ss. 16 of the Uniform Electronic Transactions Act as in effect in
any relevant jurisdiction, such Grantor shall promptly notify the
Collateral Agent thereof and, at the request of the Collateral Agent,
shall take such action as the Collateral Agent may reasonably request
to vest in the Collateral Agent control under New York UCC ss.9-105 of
such electronic chattel paper or control under Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act or,
as the case may be, ss.16 of the Uniform Electronic Transactions Act,
as so in effect in such jurisdiction, of such transferable record.
SECTION 4.05. Covenants regarding Patent, Trademark and
Copyright Collateral. (a) Each Grantor agrees that it will not, and will not
permit any of its licensees to, do any act, or omit to do any act, whereby any
Patent that is material to the conduct of such Grantor's business may become
invalidated or dedicated to the public, and agrees that it shall continue to
xxxx any products covered by a Patent (other than Patents claiming a process or
method) with the relevant patent number as necessary and sufficient to establish
and preserve its maximum rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or
its sublicensees) will, for each Registered Trademark material to the conduct of
such Grantor's business, (1) maintain such Trademark registration in full force
as long as the Trademark is being used, (2) maintain the quality of products and
services offered under such Trademark, (3) display such Trademark with notice of
Federal or foreign registration to the extent necessary and sufficient to
establish and preserve its maximum rights under applicable law and (4) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.
(c) Each Grantor (either itself or through its licensees or
sublicensees) will, for each work covered by a material Copyright, continue to
publish, reproduce, display, adopt and distribute the work with appropriate
copyright notice as necessary and sufficient to establish and preserve its
maximum rights under applicable copyright laws.
(d) Each Grantor shall notify the Collateral Agent immediately
if it knows or has reason to know that any Patent, Trademark or Copyright
material to the conduct of
28
its business may become abandoned, lost or dedicated to the public, or of any
adverse determination or development (including the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, United States Copyright Office or any court or similar office
of any country) regarding such Grantor's ownership of any Patent, Trademark or
Copyright, its right to register the same, or its right to keep and maintain the
same.
(e) When any Grantor, either itself or through any agent,
employee, licensee or designee, files an application for any Patent, or an
application to register any trademark or copyright with the United States Patent
and Trademark Office or United States Copyright Office it will promptly inform
the Collateral Agent, and, upon request of the Collateral Agent, execute and
deliver any and all agreements, instruments, documents and papers as the
Collateral Agent may request to evidence the Collateral Agent's security
interest in such Patent, Trademark or Copyright, and each Grantor hereby
appoints the Collateral Agent as its attorney-in-fact to execute and file such
writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power, being coupled with an interest, is
irrevocable; provided however that such power of attorney may only be exercised
following (i) such Grantor's failure to take all necessary actions as set forth
in this paragraph or (ii) upon the occurrence and during the continuance of an
Event of Default.
(f) Each Grantor will take all necessary steps that are
consistent with the practice in any proceeding before the United States Patent
and Trademark Office, United States Copyright Office or any office or agency in
any political subdivision of the United States to maintain and pursue each
material application relating to the Patents, Trademarks and/or Copyrights (and
to obtain the relevant grant or registration) and to maintain each issued Patent
and each registration of the Trademarks and Copyrights that is material to the
conduct of any Grantor's business, including timely filings of applications for
renewal, declarations of use, declarations of incontestability and payment of
maintenance fees, and, if consistent with good business judgment, to initiate
opposition, interference and cancelation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that
any Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor's business has been or is about to be infringed,
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misappropriated or diluted by a third party, such Grantor promptly shall notify
the Collateral Agent and shall, if consistent with good business judgment,
promptly xxx for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Collateral.
(h) Upon and during the continuance of an Event of Default,
each Grantor shall use its best efforts to obtain all requisite consents or
approvals by the licensor of each Copyright License, Patent License or Trademark
License to effect the assignment of all such Grantor's right, title and interest
thereunder to the Collateral Agent or its designee.
ARTICLE V
Remedies
SECTION 5.01. Remedies upon Default. Upon the occurrence and
during the continuance of an Event of Default, each Grantor agrees to deliver
each item of Collateral to the Collateral Agent on demand, and it is agreed that
the Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Collateral
consisting of Intellectual Property, on demand, to cause the Security Interest
to become an assignment, transfer and conveyance of any of or all such
Collateral by the applicable Grantors to the Collateral Agent, or to license or
sublicense, whether general, special or otherwise, and whether on an exclusive
or nonexclusive basis, any such Collateral throughout the world on such terms
and conditions and in such manner as the Collateral Agent shall determine (other
than in violation of any then-existing licensing arrangements to the extent that
waivers cannot be obtained), and (b) with or without legal process and with or
without prior notice or demand for performance, to take possession of the
Collateral and without liability for trespass to enter any premises where the
Collateral may be located for the purpose of taking possession of or removing
the Collateral and, generally, to exercise any and all rights afforded to a
secured party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, (i) each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral or Pledged Collateral, at public or private sale or at any
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broker's board or on any securities exchange, for cash, upon credit or for
future delivery as the Collateral Agent shall deem appropriate and (ii) the
Collateral Agent shall have the ability to direct Land O'Lakes, Inc. to give its
consent in connection with the sale, transfer or other disposition of its
membership interest in Land O'Lakes Farmland Feed LLC. The Collateral Agent
shall be authorized at any such sale (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to persons who will represent and
agree that they are purchasing the Collateral or Pledged Collateral for their
own account for investment and not with a view to the distribution or sale
thereof, and upon consummation of any such sale the Collateral Agent shall have
the right to assign, transfer and deliver to the purchaser or purchasers thereof
the Collateral or Pledged Collateral so sold. Each such purchaser at any such
sale shall hold the property sold absolutely, free from any claim or right on
the part of any Grantor or Pledgor, and the Grantors and Pledgors hereby waive
(to the extent permitted by law) all rights of redemption, stay and appraisal
which such Grantor or Pledgor now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give the Grantors and Pledgors 10
days' written notice (which each Grantor or Pledgor agrees is reasonable notice
within the meaning of Section 9-611 of the New York UCC or its equivalent in
other jurisdictions) of the Collateral Agent's intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral or Pledged Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
notice (if any) of such sale. At any such sale, the Collateral or Pledged
Collateral, or portion thereof, to be sold may be sold in one lot as an entirety
or in separate parcels, as the Collateral Agent may (in its sole and absolute
discretion) determine. The Collateral Agent shall not be obligated to make any
sale of any Collateral or Pledged Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral or Pledged
Collateral shall have been given. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such
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sale may, without further notice, be made at the time and place to which the
same was so adjourned. In case any sale of all or any part of the Collateral or
Pledged Collateral is made on credit or for future delivery, the Collateral or
Pledged Collateral so sold may be retained by the Collateral Agent until the
sale price is paid by the purchaser or purchasers thereof, but the Collateral
Agent shall not incur any liability in case any such purchaser or purchasers
shall fail to take up and pay for the Collateral or Pledged Collateral so sold
and, in case of any such failure, such Collateral or Pledged Collateral may be
sold again upon like notice. At any public (or, to the extent permitted by law,
private) sale made pursuant to this Section, any Secured Party may bid for or
purchase, free (to the extent permitted by law) from any right of redemption,
stay, valuation or appraisal on the part of any Grantor or Pledgor (all said
rights being also hereby waived and released to the extent permitted by law),
the Collateral or Pledged Collateral or any part thereof offered for sale and
may make payment on account thereof by using any claim then due and payable to
such Secured Party from any Grantor or Pledgor as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any
Grantor or Pledgor therefor. For purposes hereof, a written agreement to
purchase the Collateral or Pledged Collateral or any portion thereof shall be
treated as a sale thereof; the Collateral Agent shall be free to carry out such
sale pursuant to such agreement and no Grantor or Pledgor shall be entitled to
the return of the Collateral or Pledged Collateral or any portion thereof
subject thereto, notwithstanding the fact that after the Collateral Agent shall
have entered into such an agreement all Events of Default shall have been
remedied and the Obligations paid in full. As an alternative to exercising the
power of sale herein conferred upon it, the Collateral Agent may proceed by a
suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or Pledged Collateral or any portion thereof pursuant to a judgment
or decree of a court or courts having competent jurisdiction or pursuant to a
proceeding by a court-appointed receiver. Any sale pursuant to the provisions of
this Section 5.01 shall be deemed to conform to the commercially reasonable
standards as provided in Section 9-610(b) of the New York UCC or its equivalent
in other jurisdictions. The Collateral Agent recognizes that its ability to sell
membership interests or require the registration of such membership interests
pursuant to Section 5.05 of this Agreement is subject to Section 11.1 of the
Farmland Feed Operating Agreement in the case of Farmland Feed and its
subsidiaries.
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Until the Collateral Agent shall have advised the Grantors to
the contrary, each Grantor shall, and the Collateral Agent hereby authorizes
each Grantor to, enforce and collect all amounts owing on the Inventory and
Accounts, for the benefit and on behalf of the Collateral Agent and the other
Secured Parties, provided, however, that such privilege may at the option of the
Collateral Agent be terminated upon the occurrence and during the continuance of
any Event of Default.
Upon the occurrence and during the continuance of any Event of
Default, the Collateral Agent shall have the right to notify each Account Debtor
of the occurrence of such Event of Default and have the right to direct the
payment of each Account Debtor away from each Grantor's regular account and into
an account established by the Collateral Agent. Each Grantor agrees to use all
reasonable efforts to cooperate with the Collateral Agent and each Account
Debtor to cause all payments on Accounts to be paid directly into the account
established by the Collateral Agent. In the event any Grantor receives payments
directly that otherwise should be paid to the Collateral Agent, as provided
herein, such Grantor will promptly remit such amount to the Collateral Agent.
SECTION 5.02. Application of Proceeds. The Collateral Agent
shall apply the proceeds of any collection or sale of Collateral or Pledged
Collateral, as well as any Collateral or Pledged Collateral consisting of cash,
as follows:
FIRST, to the payment of all costs and expenses incurred by
the Collateral Agent in connection with such collection or sale or
otherwise in connection with this Agreement, any other Loan Document or
any of the Obligations, including all court costs and the fees and
expenses of its agents and legal counsel, the repayment of all advances
made by the Collateral Agent or the Administrative Agent hereunder or
under any other Loan Document on behalf of any Grantor or Pledgor and
any other costs or expenses incurred in connection with the exercise of
any right or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts
so applied to be distributed among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date
of any such distribution); and
THIRD, to the Grantors and Pledgors, their
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successors or assigns, or as a court of competent jurisdiction may
otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral or Pledged Collateral by the Collateral
Agent (including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral or Pledged Collateral so sold and such purchaser or purchasers
shall not be obligated to see to the application of any part of the purchase
money paid over to the Collateral Agent or such officer or be answerable in any
way for the misapplication thereof.
SECTION 5.03. Grant of License to Use Intellectual Property.
For the purpose of enabling the Collateral Agent to exercise rights and remedies
under this Article at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby grants to the
Collateral Agent an irrevocable, nonexclusive license but subject to the terms,
conditions or restrictions of any existing license (exercisable without payment
of royalty or other compensation to the Grantors) to use, license or sublicense
any of the Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Collateral Agent
shall be exercised, at the option of the Collateral Agent, upon the occurrence
and during the continuation of an Event of Default; provided that any license,
sublicense or other transaction entered into by the Collateral Agent in
accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.
SECTION 5.04. Securities Act, etc. In view of the position of
the Pledgors in relation to the Pledged Securities, or because of other current
or future circumstances, a question may arise under the Securities Act of 1933,
as now or hereafter in effect, or any similar statute hereafter enacted
analogous in purpose or effect (such Act and any such similar statute as from
time to time in effect being called the "Federal Securities Laws") with respect
to any disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that
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compliance with the Federal Securities Laws might very strictly limit the course
of conduct of the Collateral Agent if the Collateral Agent were to attempt to
dispose of all or any part of the Pledged Securities, and might also limit the
extent to which or the manner in which any subsequent transferee of any Pledged
Securities could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Securities under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or effect. Each
Pledgor recognizes that in light of such restrictions and limitations the
Collateral Agent may, with respect to any sale of the Pledged Securities, limit
the purchasers to those who will agree, among other things, to acquire such
Pledged Securities for their own account, for investment, and not with a view to
the distribution or resale thereof. Each Pledgor acknowledges and agrees that in
light of such restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion (a) may proceed to make such a sale whether or not a
registration statement for the purpose of registering such Pledged Securities or
part thereof shall have been filed under the Federal Securities Laws and (b) may
approach and negotiate with a single potential purchaser to effect such sale.
Each Pledgor acknowledges and agrees that any such sale might result in prices
and other terms less favorable to the seller than if such sale were a public
sale without such restrictions. In the event of any such sale, the Collateral
Agent shall incur no responsibility or liability for selling all or any part of
the Pledged Securities at a price that the Collateral Agent, in its sole and
absolute discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
5.04 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
the Collateral Agent sells.
SECTION 5.05. Registration, etc. Each Pledgor agrees that,
upon the occurrence and during the continuance of an Event of Default hereunder,
if for any reason the Collateral Agent desires to sell any of the Pledged
Securities of the Borrower at a public sale, it will, at any time and from time
to time, upon the written request of the Collateral Agent, use its commercially
reasonable efforts to take or to cause the issuer of such Pledged Securities to
take such action and prepare, distribute and/or file such documents, as are
required or advisable in the reasonable
35
opinion of counsel for the Collateral Agent to permit the public sale of such
Pledged Securities. Each Pledgor further agrees to indemnify, defend and hold
harmless the Collateral Agent, each other Secured Party, any underwriter and
their respective officers, directors, affiliates and controlling persons from
and against all loss, liability, expenses, costs of counsel (including, without
limitation, reasonable fees and expenses to the Collateral Agent of legal
counsel), and claims (including the costs of investigation) that they may incur
insofar as such loss, liability, expense or claim arises out of or is based upon
any alleged untrue statement of a material fact contained in any prospectus (or
any amendment or supplement thereto) or in any notification or offering
circular, or arises out of or is based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
in any thereof not misleading, except insofar as the same may have been caused
by any untrue statement or omission based upon information furnished in writing
to such Pledgor or the issuer of such Pledged Securities by the Collateral Agent
or any other Secured Party expressly for use therein. Each Pledgor further
agrees, upon such written request referred to above, to use its best efforts to
qualify, file or register, or cause the issuer of such Pledged Securities to
qualify, file or register, any of the Pledged Securities under the Blue Sky or
other securities laws of such states as may be requested by the Collateral Agent
and keep effective, or cause to be kept effective, all such qualifications,
filings or registrations. Each Pledgor will bear all costs and expenses of
carrying out its obligations under this Section 5.05. Each Pledgor acknowledges
that there is no adequate remedy at law for failure by it to comply with the
provisions of this Section 5.05 and that such failure would not be adequately
compensable in damages, and therefore agrees that its agreements contained in
this Section 5.05 may be specifically enforced.
ARTICLE VI
Indemnity and Subrogation
SECTION 6.01. Indemnity and Subrogation. In addition to all
such rights of indemnity and subrogation as the Guarantors may have under
applicable law (but subject to Section 6.03), the Borrower agrees that (a) in
the event a payment shall be made by any Guarantor under this Agreement, the
Borrower shall indemnify such Guarantor for the full amount of such payment and
such Guarantor shall be subrogated to the rights of the person to whom such
payment shall have been made to the extent of such payment and
36
(b) in the event any assets of any Guarantor shall be sold pursuant to any
Security Document to satisfy a claim of any Secured Party, the Borrower shall
indemnify such Guarantor in an amount equal to the greater of the book value or
the fair market value of the assets so sold.
SECTION 6.02. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 6.03) that, in the event a
payment shall be made by any other Guarantor hereunder or assets of any other
Guarantor shall be sold pursuant to any Security Document to satisfy a claim of
any Secured Party and such other Guarantor (the "Claiming Guarantor") shall not
have been fully indemnified by the Borrower as provided in Section 6.01, the
Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal
to the amount of such payment or the greater of the book value or the fair
market value of such assets, as the case may be, in each case multiplied by a
fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net
worth of all the Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 7.16, the date of the Supplement
hereto executed and delivered by such Guarantor). Any Contributing Guarantor
making any payment to a Claiming Guarantor pursuant to this Section 6.02 shall
be subrogated to the rights of such Claiming Guarantor under Section 6.01 to the
extent of such payment.
SECTION 6.03. Subordination. Notwithstanding any provision of
this Agreement to the contrary, all rights of the Guarantors under Sections 6.01
and 6.02 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 6.01 and
6.02 (or any other payments required under applicable law or otherwise) shall in
any respect limit the Obligations and liabilities of any Guarantor with respect
to its Obligations hereunder, and each Guarantor shall remain liable for the
full amount of the Obligations of such Guarantor hereunder.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices
hereunder shall (except as otherwise expressly
37
permitted herein) be in writing and given as provided in Section 9.01 of the
Credit Agreements. All communications and notices hereunder to any Subsidiary
Loan Party shall be given to it at its address or telecopy number set forth on
Schedule I, with a copy to the Borrower.
SECTION 7.02. Security Interest Absolute. All rights of the
Collateral Agent hereunder, the Security Interest, the grant of a security
interest in the Pledged Collateral and all obligations of each Grantor and
Pledgor hereunder shall be absolute and unconditional irrespective of (a) any
lack of validity or enforceability of the Credit Agreements, any other Loan
Document, any agreement with respect to any of the Obligations or any other
agreement or instrument relating to any of the foregoing, (b) any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from the Credit Agreements, any other Loan Document or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Grantor or Pledgor in respect of
the Obligations or this Agreement.
SECTION 7.03. Survival of Agreement. All covenants,
agreements, representations and warranties made by the Loan Parties in the Loan
Documents and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Collateral Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated.
SECTION 7.04. Binding Effect; Several Agreement. This
Agreement shall become effective as to any Loan Party when a counterpart hereof
executed on behalf of such Loan
38
Party shall have been delivered to the Collateral Agent and a counterpart hereof
shall have been executed on behalf of the Collateral Agent, and thereafter shall
be binding upon such Loan Party and the Collateral Agent and their respective
successors and assigns, and shall inure to the benefit of such Loan Party, the
Collateral Agent and the other Secured Parties and their respective successors
and assigns, except that no Loan Party shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in the
Collateral or Pledged Collateral (and any such assignment or transfer shall be
void) except as expressly contemplated by this Agreement or the Credit
Agreements. This Agreement shall be construed as a separate agreement with
respect to each Loan Party and may be amended, modified, supplemented, waived or
released with respect to any Loan Party without the approval of any other Loan
Party and without affecting the obligations of any other Loan Party hereunder.
SECTION 7.05. Successors and Assigns. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successor and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Grantor or the Collateral Agent
that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and assigns.
SECTION 7.06. Collateral Agent's Fees and Expenses;
Indemnification. (a) Each Grantor and each Pledgor jointly and severally agrees
to pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees, disbursements and other charges of its
counsel and of any experts or agents, which the Collateral Agent may incur in
connection with (i) the administration of this Agreement (including the
customary fees and charges of the Collateral Agent for any audits conducted by
it or on its behalf with respect to the Accounts Receivable or Inventory;
provided, however, that no more than one audit per calendar year may be
conducted in the absence of an Event of Default), (ii) the custody or
preservation of, or the sale of, collection from or other realization upon any
of the Collateral or Pledged Collateral, (iii) the exercise, enforcement or
protection of any of the rights of the Collateral Agent hereunder or (iv) the
failure of any Grantor or Pledgor to perform or observe any of the provisions
hereof.
(b) Without limitation of its indemnification obligations
under the other Loan Documents, each Grantor and each Pledgor jointly and
severally agrees to indemnify the
39
Collateral Agent and the other Indemnitees (as defined in Section 9.03 of the
Credit Agreements) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of, the execution, delivery or performance of this Agreement or any
claim, litigation, investigation or proceeding relating hereto or to the
Collateral or Pledged Collateral, whether or not any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Security Documents. The
provisions of this Section 7.06 shall remain operative and in full force and
effect regardless of the termination of this Agreement or any other Loan
Document, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Collateral Agent or any other Secured
Party. All amounts due under this Section 7.06 shall be payable on written
demand therefor.
SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact.
Each Grantor and each Pledgor hereby appoints the Collateral Agent the
attorney-in-fact of such Grantor or Pledgor for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument
that the Collateral Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment is irrevocable and coupled with an interest;
provided however that such power of attorney may only be exercised (i) to file
any UCC financing statements and continuation statements and (ii) following the
occurrence and during the continuance of an Event of Default. Without limiting
the generality of the foregoing, the Collateral Agent shall have the right, upon
the occurrence and during the continuance of an Event of Default, with full
power of substitution either in the Collateral Agent's name or in the name of
such Grantor or Pledgor (a) in the case of a Grantor (i) to receive, endorse,
assign and/or deliver any and all notes,
40
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (ii) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or any of the
Collateral; (iii) to sign the name of any Grantor on any invoice or xxxx of
lading relating to any of the Collateral; (iv) to send verifications of Accounts
Receivable to any Account Debtor; (v) to commence and prosecute any and all
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of the Collateral or
to enforce any rights in respect of any Collateral; (vi) to settle, compromise,
compound, adjust or defend any actions, suits or proceedings relating to all or
any of the Collateral; (vii) to notify, or to require any Grantor to notify,
Account Debtors to make payment directly to the Collateral Agent; and (viii) to
use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other acts and
things necessary to carry out the purposes of this Agreement, as fully and
completely as though the Collateral Agent were the absolute owner of the
Collateral for all purposes; and (b) in the case of a Pledgor (i) to ask for,
demand, xxx for, collect, receive and give acquittance for any and all moneys
due or to become due under and by virtue of any Pledged Collateral; (ii) to
endorse checks, drafts, orders and other instruments for the payment of money
payable to the Pledgor representing any interest or dividend or other
distribution payable in respect of the Pledged Collateral or any part thereof or
on account thereof and to give full discharge of the same; (iii) to settle,
compromise, prosecute or defend any action, claim or proceeding with respect
thereto; and (iv) to sell, assign, endorse, pledge, transfer and to make any
agreement respecting, or otherwise deal with, the same; provided, however, that
nothing herein contained shall be construed as requiring or obligating the
Collateral Agent to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent, or to present or
file any claim or notice, or to take any action with respect to the Collateral
or the Pledged Collateral or any part thereof or the moneys due or to become due
in respect thereof or any property covered thereby. The Collateral Agent and the
other Secured Parties shall be accountable only for amounts actually received as
a result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agent shall be responsible to any
Grantor or Pledgor for any act or failure to act hereunder, except for their own
gross negligence or wilful misconduct.
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SECTION 7.08. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.09. Waivers; Amendment. (a) No failure or delay by
the Collateral Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document 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 Collateral Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan 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. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Collateral Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default at the time.
(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 the Collateral Agent and the Loan Party or Loan Parties
with respect to which such waiver, amendment or modification is to apply,
subject to any consent required in accordance with Section 9.02 of the Credit
Agreements.
SECTION 7.10. 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, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 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.
42
SECTION 7.11. 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.
SECTION 7.12. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute a single contract (subject to Section 7.04), and shall
become effective as provided in Section 7.04. Delivery of an executed signature
page to this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 7.13. Headings. Article and Section headings used
herein are for the purpose 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.
SECTION 7.14 Jurisdiction; Consent to Service of Process.
(a) Each of the Loan Parties 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 any
Loan Document, 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 or any other Loan Document shall affect any right that the Collateral
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(b) Each of the Loan Parties hereby irrevocably and
unconditionally waives, to the fullest extent it may
43
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 or any other Loan Document in any court referred to
in paragraph (a) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 7.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 7.15. Termination or Release. (a) This Agreement, the
Guarantees, the Security Interest and all other security interests granted
hereby shall terminate when all the Obligations (other than contingent
Obligations for indemnity) have been indefeasibly paid in full and the Lenders
have no further commitment to lend under the Credit Agreements, the L/C Exposure
has been reduced to zero and the Issuing Bank has no further obligations to
issue Letters of Credit under the Revolving Credit Agreement.
(b) A Guarantor shall automatically be released from its
obligations hereunder and the Security Interest in the Collateral of such
Guarantor shall be automatically released in the event that all the capital
stock of such Guarantor shall be sold, transferred or otherwise disposed of to a
person that is not the Borrower or an Affiliate of the Borrower, or if such
Guarantor is dissolved, in each case in accordance with the terms of the Credit
Agreements; provided that the Required Lenders shall have consented to such
sale, transfer or other disposition (to the extent required by the Credit
Agreements) and the terms of such consent did not provide otherwise.
(c) Upon any sale or other transfer by any Pledgor of any
Pledged Collateral that is permitted under the Credit Agreements to any person
that is not the Borrower or an Affiliate of the Borrower, or, upon the
effectiveness of any written consent to the release of the security interest
granted hereby in any Pledged Collateral pursuant to Section 9.02 of the Credit
Agreements, the security interest in such Pledged Collateral shall be
automatically released.
(d) Upon any sale or other transfer by any
44
Grantor of any Collateral that is permitted under the Credit Agreements to any
person that is not the Borrower or an Affiliate of the Borrower or to any
Securitization Vehicle whether or not an Affiliate of the Borrower (provided
that such sale or transfer is limited to sales of Inventory or Accounts to a
Securitization Vehicle that are permitted by the Credit Agreements), or, upon
the effectiveness of any written consent to the release of the security interest
granted hereby in any Collateral pursuant to Section 9.02 of the Credit
Agreements, the security interest in such Collateral shall be automatically
released.
(e) In connection with any termination or release pursuant to
paragraph (a), (b), (c) or (d), the Collateral Agent shall execute and deliver
to any Grantor or Pledgor, as the case may be, at such Grantor's or Pledgor's
expense, all documents that such Grantor or Pledgor shall reasonably request to
evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 7.15 shall be without recourse to or warranty by the
Collateral Agent.
SECTION 7.16. Additional Subsidiaries. Pursuant to Section
5.12 of the Credit Agreements, each Wholly Owned Subsidiary of the Borrower that
was not in existence or not a Wholly Owned Subsidiary on the date of the Credit
Agreements, in each case other than Foreign Subsidiaries and Wholly Owned
Subsidiaries of LOL Finance, is required to enter in this Agreement (a) as a
Subsidiary Guarantor, (b) as a Grantor if such Wholly Owned Subsidiary owns or
possesses property of a type that would be considered Collateral hereunder and
(c) as a Pledgor if such Wholly Owned Subsidiary owns or possesses property of a
type that would be considered Pledged Collateral hereunder. Upon execution and
delivery by the Collateral Agent and a Wholly Owned Subsidiary of an instrument
in the form of Annex I hereto, such Wholly Owned Subsidiary shall become a Loan
Party hereunder with the same force and effect as if originally named as a Loan
Party herein. The execution and delivery of any such instrument shall not
require the consent of any Loan Party hereunder. The rights and obligations of
each Loan Party hereunder shall remain in full force and effect notwithstanding
the addition of any new Loan Party as a party to this Agreement.
45
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
LAND O'LAKES, INC.,
by /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
& Chief Financial
Officer
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO,
by /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Officer
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Officer
Schedule I to
the Guarantee and
Collateral Agreement
SUBSIDIARY GUARANTORS
Schedule II to
the Guarantee and
Collateral Agreement
EQUITY INTERESTS
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Shares of Shares
------ ----------- ----- ------ ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ --------- ------------ -------------
Schedule III to
Guarantee and
Collateral Agreement
U.S. COPYRIGHTS OWNED BY [NAME OR GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no
copyrights are owned. List in numerical order by Registration No.]
U.S. Copyright Registrations
Title Reg. No. Author
----- -------- ------
Pending U.S. Copyright Applications for Registration
Title Author Class Date Filed
----- ------ ----- ----------
Non-U.S. Copyright Registrations
--------------------------------
[List in alphabetical order by country/numerical order by
Registration No. within each country]
Country Title Reg. No. Author
------- ----- -------- ------
Non-U.S.Pending Copyright Applications for
Registration [List in alphabetical order by country.]
Country Title Author Class Date Filed
------- ----- ------ ----- ----------
Schedule III
to Guarantee and
Collateral Agreement
LICENSES
[Make a separate page of Schedule III for each Grantor, and state if any Grantor
is not a party to a license/sublicense.]
PART I
LICENSES/SUBLICENSEES OF [NAME OF GRANTOR]
AS LICENSOR ON DATE HEREOF
A. Copyrights
[List U.S. copyrights in numerical order by Registration No.
List non-U.S. copyrights by country in alphabetical order with
Registration Nos. within each country in numerical order.]
U.S. Copyrights
Date of Title of
Licensee Name License/ U.S.
and Address Sublicense Copyright Author Reg. No.
----------- ---------- --------- ------ --------
Non-U.S. Copyrights
Date of Title of
Licensee Name License/ Non-U.S.
Country and Address Sublicensee Copyrights Author Reg. No.
------- ----------- ----------- ---------- ------ --------
B. Patents
[List U.S. patent nos. and U.S. patent application nos. in
numerical order. List non-U.S. patent nos. and non-U.S.
application in alphabetical order by country, with
numbers within each country in numerical order.]
Schedule III
to Guarantee and
Collateral Agreement
U.S. Patents
Licensee Name Date of License/
and Address Sublicense Issue Date Patent No.
----------- ---------- ---------- ----------
Schedule III
to Guarantee and
Collateral Agreement
U.S. Patent Applications
Licensee Name Date of License/
and address Sublicense Date Filed Application No.
----------- ---------- ---------- ---------------
Non-U.S. Patents
Licensee Name Date of License/ Issue Non-U.S.
Country and Address Sublicense Date Patent No.
------- ----------- ---------- ---- ----------
Non-U.S. Patent Applications
Licensee Name Date of License/ Date Application
Country and Address Sublicense Filed No.
------- ----------- ---------- ----- ---
C. Trademarks
[List U.S. trademark nos. and U.S. trademark application nos. in
numerical order. List non-U.S. trademark nos. and non-U.S.
application nos. with trademark nos. within each country in
numerical order.]
U.S. Trademarks
Licensee Name Date of License/
and Address Sublicense U.S. Xxxx Reg. Date Reg. No.
----------- ---------- --------- --------- --------
Schedule III
to Guarantee and
Collateral Agreement
U.S. Trademark Applications
Licensee Name Date of License/ Date Application
and Address Sublicense U.S. Xxxx Filed No.
----------- ---------- --------- ----- ---
Non-U.S. Trademarks
Date of
Licensee Name License/ Non-U.S.
Country and Address Sublicense Xxxx Reg. Date Reg. No.
------- ----------- ---------- ---- --------- --------
Non-U.S. Trademark Applications
Date of
Licensee Name License/ Non-U.S. Date Application
Country and Address Sublicense Xxxx Filed No.
------- ----------- ---------- ---- ----- ---
D. Others
Licensee Name Date of License/ Subject
and Address Sublicense Matter
----------- ---------- ------
Schedule III
to Guarantee and
Collateral Agreement
PART 2
LICENSEES/SUBLICENSES OF [NAME OF GRANTOR]
AS LICENSEE ON DATE HEREOF
A. Copyrights
[List U.S. copyrights in numerical order by Registration No.
List non-U.S. copyrights by country in alphabetical order, with
Registration Nos. within each country in numerical order.]
U.S. Copyrights
Licensor Name Date of
and License/ Title of
Address Sublicense U.S. Copyright Author Reg. No.
------- ---------- -------------- ------ --------
Non-U.S. Copyrights
Date of Title of
Licensor Name License/ Non-U.S.
Country and Address Sublicensee Copyrights Author Reg. No.
------- ----------- ----------- ---------- ------ --------
B. Patents
[List U.S. patent nos. and U.S. patent application nos. in
numerical order. List non-U.S. patent nos. and non-U.S.
application nos. in alphabetical order by country with patent
nos. within each country in numerical order.]
U.S. Patents
Date of
Licensor Name License/
and Address Sublicense Issue Date Patent No.
----------- ---------- ---------- ----------
U.S. Patent Applications
Licensor Name Date of License/
and Address Sublicense Date Filed Application No.
----------- ---------- ---------- ---------------
Schedule III
to Guarantee and
Collateral Agreement
Non-U.S. Patents
Licensor Name Date of License/ Issue Non-U.S.
Country and Address Sublicense Date Patent No.
------- ----------- ---------- ---- ----------
Non-U.S. Patent Applications
Licensor Name Date of License/ Date Application
Country and Address Sublicense Filed No.
------- ----------- ---------- ----- ---
C. Trademarks
[List U.S. trademark nos. and U.S. trademark application nos. in
numerical order. List non-U.S. trademark nos. and non-U.S.
application nos. with trademark nos. within each country in
numerical order.]
U.S. Trademarks
Licensor Name Date of License/
and Address Sublicense U.S. Xxxx Reg. Date Reg. No.
----------- ---------- --------- --------- --------
U.S. Trademark Applications
Licensor Name Date of License/ Date Application
and Address Sublicense U.S. Xxxx Filed No.
----------- ---------- --------- ----- ---
Non-U.S. Trademarks
Date of
Licensor Name License/ Non-U.S.
Country and Address Sublicense Xxxx Reg. Date Reg. No.
------- ----------- ---------- ---- --------- --------
Schedule III
to Guarantee and
Collateral Agreement
Non-U.S. Trademark Applications
Date of
Licensor Name License/ Non-U.S. Date Application
Country and Address Sublicense Xxxx Filed No.
------- ----------- ---------- ---- ----- ---
D. Others
Licensor Name and Date of License/
Address Sublicense Subject Matter
------- ---------- --------------
Schedule III
to Guarantee and
Collateral Agreement
PATENTS OWNED BY [NAME OF GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no patents
are owned. List in numerical order by Patent No./Patent Application No.]
U.S. Patent Registrations
Patent Numbers Issue Date
-------------- ----------
U.S. Patent Applications
Patent Application No. Filing Date
---------------------- -----------
Non-U.S. Patent Registrations
[List in alphabetical order by country/numerical order by
Patent No. within each country]
Country Issue Date Patent No.
------- ---------- ----------
Non-U.S. Patent Registrations
[List in alphabetical order by country/numerical order by
Application No. within each country]
Country Filing Date Patent Application No.
------- ----------- ----------------------
Schedule III
to Guarantee and
Collateral Agreement
TRADEMARK/TRADE NAMES OWNED BY [NAME OF GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no
trademarks/trade names are owned. List in numerical order by trademark
registration/application no.]
U.S. Trademark Registrations
Xxxx Reg. Date Reg. No.
---- --------- --------
U.S. Trademark Applications
Xxxx Filing Date Application No.
---- ----------- ---------------
State Trademark Registrations
[List in alphabetical order by state/numerical order by trademark
no. within each state]
State Xxxx Filing Date Application No.
----- ---- ----------- ---------------
Non-U.S. Trademark Registrations
[List in alphabetical order by country/numerical order by
trademark no. within each country]
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Schedule III
to Guarantee and
Collateral Agreement
Non-U.S. Trademark Applications
[List in alphabetical order by country/numerical order by application no.]
Country Xxxx Application Date Application No.
------- ---- ---------------- ---------------
Trade Names
Country(s) Where Used Trade Names
--------------------- -----------
Annex I to the
Guarantee and
Collateral Agreement
SUPPLEMENT NO. __ dated as of
, to the Guarantee and Collateral
Agreement dated as of October 11, 2001, among LAND
O'LAKES, INC., a Minnesota cooperative corporation
(the "Borrower"), [ ], each subsidiary of the
Borrower listed on Schedule I thereto (each such
subsidiary individually a "Subsidiary Party" and
collectively, the "Subsidiary Parties"; the
Subsidiary Guarantors and the Borrower are referred
to collectively herein as the "Grantors") and THE
CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as
defined herein).
A. Reference is made to (i) the Credit Agreement dated as of
October 11, 2001, (as amended, supplemented or otherwise modified from time to
time, the "Term Credit Agreement"), among Land O'Lakes, Inc. (the "Borrower"),
the Lenders party thereto and The Chase Manhattan Bank, as Administrative Agent
and Collateral Agent and (ii) the Amended and Restated Five-Year Credit
Agreement dated as of June 28, 1999, as amended and restated as of October 11,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Revolving Credit Agreement" together with the Term Credit Agreement, the
"Credit Agreements"), among the Borrower, the Lenders party thereto, The Chase
Manhattan Bank as Collateral Agent and Cobank, ACB as Administrative Agent.
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Guarantee and
Collateral Agreement and the Credit Agreements.
C. The Grantors have entered into the Guarantee and Collateral
Agreement in order to induce the Lenders to make Loans and the Issuing Bank to
issue Letters of Credit. Section 7.16 of Guarantee and Collateral Agreement
provides that additional Wholly Owned Subsidiaries (other than Foreign
Subsidiaries and Wholly Owned Subsidiaries of LOL Finance) of the Borrower may
become Guarantors and Grantors under the Guarantee and Collateral Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Loan Party") is executing this Supplement in
accordance with the requirements of the Credit Agreements to become a Guarantor
and a Grantor under the Guarantee and Collateral Agreement in order to induce
the Lenders to make additional Loans and
2
the Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Loan Party agree
as follows:
SECTION 1. In accordance with Section 7.16 of the Guarantee
and Collateral Agreement, the New Loan Party by its signature below becomes a
Grantor, Pledgor and Guarantor under the Guarantee and Collateral Agreement with
the same force and effect as if originally named therein as a Grantor, Pledgor
and Guarantor and the New Loan Party hereby (a) agrees to all the terms and
provisions of the Guarantee and Collateral Agreement applicable to it as a
Grantor, Pledgor and Guarantor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Grantor, Pledgor and
Guarantor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, the New Loan Party, as security for the payment
and performance in full of the Obligations (as defined in the Guarantee and
Collateral Agreement), does hereby create and grant to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, their successors
and assigns, a security interest in and lien on all of the New Loan Party's
right, title and interest in and to the Collateral (as defined in the Guarantee
and Collateral Agreement) of the New Loan Party. Each reference to a "Grantor"
in the Guarantee and Collateral Agreement shall be deemed to include the New
Loan Party. The Guarantee and Collateral Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Loan Party represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Loan Party and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
3
SECTION 4. The New Loan Party hereby represents and warrants
that (a) set forth on Schedule I attached hereto is a true and correct schedule
of the location of any and all Collateral of the New Loan Party and (b) set
forth under its signature hereto, is the true and correct legal name of the New
Loan Party, its jurisdiction of formation and the location of its chief
executive office.
SECTION 5. Except as expressly supplemented hereby, the
Guarantee and Collateral Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions
contained in this Supplement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Guarantee and Collateral Agreement shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties hereto 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. All communications and notices here under shall be
in writing and given as provided in Section 7.01 of the Guarantee and Collateral
Agreement. All communications and notices hereunder to the New Loan Party shall
be given to it at the address set forth under its signature below.
SECTION 9. The New Loan Party agrees to reimburse the
Collateral Agent for its reasonable out-of-pocket expenses in connection with
this Supplement, including the reasonable fees, other charges and disbursements
of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Loan Party and the Collateral
Agent have duly executed this Supplement to the
4
Guarantee and Collateral Agreement as of the day and year first above written.
[Name Of New Loan Party],
by /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
& Chief Financial
Officer
Address:
THE CHASE MANHATTAN BANK,
as Collateral Agent,
by /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
Schedule I
to Supplement No.___ to the
Guarantee and
Collateral Agreement
LOCATION OF COLLATERAL
Description Location
----------- --------
Schedule II to
Supplement No. __
to the Guarantee and
Collateral Agreement
Pledged Securities of the New Pledgor
EQUITY SECURITIES
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Shares of Shares
------ ----------- ----- ------ ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
