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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------------------
FORM 10-Q
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(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED NOVEMBER 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______________ TO _______________
COMMISSION FILE NUMBER 1-08574
UNITED FOODS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-1264568
(State of Incorporation) (I.R.S. Employer Identification No.)
TEN PICTSWEET DRIVE, BELLS, TN 38006
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (901) 422-7600
Indicate by check mark whether the registrant: (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
---- ----
On December 31, 1998, 2,617,243 shares of Class A Common Stock and
4,192,686 shares of Class B Common Stock of United Foods, Inc. were outstanding.
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INDEX
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
Part I: Financial Information:
Item 1: Financial Statements:
Balance Sheets 2-3
Statements of Operations 4
Statements of Cash Flows 5-6
Notes to Financial Statements 7-8
Item 2: Management's Discussion and Analysis of
Financial Condition and Results of Operations 9-13
Part II: Other Information and Signatures
Item 4: Submission of Matters to a Vote of Security Holders 14
Item 5: Other Information 14
Item 6: Exhibits and Reports on Form 8-K 14
Signatures 15
</TABLE>
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PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
UNITED FOODS, INC.
BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
NOVEMBER 30, FEBRUARY 28,
1998 1998
------------ -----------
Unaudited
------------
<S> <C> <C>
ASSETS
Current Assets:
Cash $ 861 $ 646
Accounts Receivable 21,121 19,263
Inventories (Note 3) 43,208 37,344
Prepaid Expenses and Miscellaneous 2,041 3,935
Deferred Income Taxes (Note 4) 1,249 1,249
--------- ---------
Total Current Assets 68,480 62,437
--------- ---------
Property and Equipment:
Land and Land Improvements 10,368 9,968
Buildings and Leasehold Improvements 22,780 21,399
Machinery, Equipment and Improvements 99,347 94,870
--------- ---------
132,495 126,237
Less Accumulated Depreciation (79,309) (74,151)
--------- ---------
Net Property and Equipment 53,186 52,086
--------- ---------
Other Assets 2,056 1,361
--------- ---------
Total Assets $ 123,722 $ 115,884
========= =========
</TABLE>
See accompanying notes to financial statements.
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UNITED FOODS, INC.
BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
NOVEMBER 30, FEBRUARY 28,
1998 1998
------------ -----------
Unaudited
------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts Payable $ 18,159 $ 12,191
Accruals 10,504 6,594
Income Taxes Payable (Note 4) (45) 46
Current Maturities of Long-term Debt 3,503 4,427
--------- --------
Total Current Liabilities 32,121 23,258
Long-term Debt, Less Current Maturities 40,712 42,168
Deferred Income Taxes (Note 4) 4,710 4,710
--------- --------
Total Liabilities 77,543 70,136
--------- --------
Commitments and Contingencies
Stockholders' Equity (Note 7):
Common Stock, Class A (Notes 5 and 6) 2,616 2,616
Common Stock, Class B, Convertible (Notes 5 and 6) 4,194 4,194
Additional Paid-in Capital 3,993 3,993
Retained Earnings 35,376 34,945
--------- --------
Total Stockholders' Equity 46,179 45,748
--------- --------
Total Liabilities and Stockholders' Equity $ 123,722 $115,884
========= ========
</TABLE>
See accompanying notes to financial statements.
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UNITED FOODS, INC.
STATEMENTS OF OPERATIONS (UNAUDITED)
(DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE NINE MONTHS
ENDED NOVEMBER 30, ENDED NOVEMBER 30,
---------------------------- ----------------------------
1998 1997 1998 1997
----------- ----------- ---------- ----------
<S> <C> <C> <C> <C>
Gross Sales and Services Less Discounts, Returns
and Allowances $ 55,525 $ 51,407 $ 151,347 $ 140,949
Costs of Sales and Services (Note 3) 44,680 41,978 123,173 115,769
----------- ----------- ----------- -----------
Gross Profit 10,845 9,429 28,174 25,180
Selling, Administrative and General Expenses 8,749 8,180 24,624 23,078
----------- ----------- ----------- -----------
Operating Income 2,096 1,249 3,550 2,102
----------- ----------- ----------- -----------
Interest Income (Expense) - Net (1,023) (1,084) (2,855) (2,870)
Miscellaneous Income (Expense) - Net 1 11 5 52
----------- ----------- ----------- -----------
Total Other Income and (Expense) (1,022) (1,073) (2,850) (2,818)
----------- ----------- ----------- -----------
Income (Loss) Before Income Tax Benefit 1,074 176 700 (716)
Income Tax Expense (Benefit) (Note 4) 413 68 269 (275)
----------- ----------- ----------- -----------
Net Income (Loss) $ 661 $ 108 $ 431 $ (441)
=========== =========== =========== ==========
Weighted Average Common Shares Outstanding
(Notes 5 and 6) 6,810 6,810 6,810 8,730
=========== =========== =========== ===========
BASIC AND DILUTED INCOME (LOSS) PER COMMON SHARE
(NOTES 5 AND 6) $ .10 $ .02 $ .06 $ (.05)
=========== =========== =========== ===========
Cash Dividends Per Common Share:
Class A $-0- $-0- $-0- $-0-
Class B $-0- $-0- $-0- $-0-
</TABLE>
See accompanying notes to financial statements.
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UNITED FOODS, INC.
STATEMENTS OF CASH FLOWS (UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE NINE
MONTHS ENDED NOVEMBER 30,
-------------------------
1998 1997
------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 431 $ (441)
Adjustments to reconcile net income (loss) to net cash
provided by operations:
Depreciation and amortization 5,234 5,551
Provision for losses on accounts receivable 133 132
Gain on disposal of property and equipment (15) (50)
Deferred income taxes -- (688)
Change in assets and liabilities:
Accounts and notes receivable (1,991) (2,594)
Inventories (5,864) (12,232)
Prepaid expenses and miscellaneous 1,894 1,690
Other assets (695) (18)
Accounts payable and accruals 9,938 16,865
Income taxes (91) (307)
------- --------
Net cash provided by operations 8,974 7,908
------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (6,396) (3,729)
Proceeds from sale of other property and equipment 17 92
------- --------
Net cash used by investing activities (6,379) (3,637)
------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from long-term borrowings 1,487 608
Payments of long-term debt (3,409) (3,512)
Revolving credit borrowings increase (decrease) (458) 5,736
Purchase of treasury stock -- (10,167)
------- --------
Net cash used by financing activities (2,380) (7,335)
------- --------
NET INCREASE (DECREASE) IN CASH FOR THE PERIOD 215 (3,064)
CASH AND CASH EQUIVALENTS, beginning of period 646 3,772
------- --------
CASH AND CASH EQUIVALENTS, end of period $ 861 $ 708
======= ========
</TABLE>
See accompanying notes to financial statements.
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UNITED FOODS, INC.
STATEMENTS OF CASH FLOWS (UNAUDITED)
(CONCLUDED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE NINE
MONTHS ENDED NOVEMBER 30,
-------------------------
1998 1997
------- --------
<S> <C> <C>
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION:
Cash paid during the nine months for:
Interest $ 2,456 $ 2,446
Income taxes $ 301 $ 744
NON-CASH INVESTING AND FINANCING ACTIVITIES:
Capital expenditures of $168, $228, $32 and $0 are
included in accounts payable at November 30, 1998,
February 28, 1998, November 30, 1997 and
February 28, 1997, respectively.
</TABLE>
See accompanying notes to financial statements.
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UNITED FOODS, INC.
NOTES TO FINANCIAL STATEMENTS
1. The interim financial statements should be read in conjunction with the
Company's Annual Report on Form 10-K for the year ended February 28, 1998.
Significant accounting policies and other disclosures normally provided
have been omitted since such items are disclosed therein.
In the opinion of the Company, the accompanying unaudited financial
statements contain all adjustments (consisting of only normal recurring
accruals) necessary to present fairly its financial position as of November
30, 1998 and its results of operations for the three and nine months ended
November 30, 1998 and 1997, and its cash flows for the nine months ended
November 30, 1998 and 1997.
2. The results of operations for the three and nine months ended November 30,
1998 and 1997 are not necessarily indicative of the results to be expected
for the fiscal year.
3. Inventories are summarized as follows:
<TABLE>
<CAPTION>
NOVEMBER 30, 1998 FEBRUARY 28, 1998
----------------- -----------------
<S> <C> <C>
Finished products $ 38,210,000 $ 31,607,000
Raw materials 2,671,000 2,303,000
Growing crops 1,973,000 2,644,000
Merchandise and supplies 354,000 790,000
---------------- ---------------
$ 43,208,000 $ 37,344,000
================ ===============
</TABLE>
Substantially all of the Company's inventories are valued at the lower of
cost (first-in, first-out) or market at each fiscal year end. However, due
to the seasonality of vegetable processing, the gross profit method, at the
estimated annual rate, is used to determine frozen vegetable cost of goods
sold in interim financial statements.
4. Taxes on income consist of the current and deferred taxes required to be
recognized for the periods presented in accordance with the provisions of
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes."
5. Each Class B common share is convertible into one share of Class A common
stock at the holder's election. Holders of the Class A common stock are
entitled to a preference dividend of $.025 per share for any quarter and
each preceding quarter of the Company's fiscal year before the holders of
the Class B common stock are entitled to any regular cash dividend. Class A
shareholders have the right to elect a number of directors that equal at
least 25% of the members of the board of directors. In addition, on matters
requiring the classes to vote together, the Class A holders are entitled to
1/10 vote per share and holders of Class B common stock are entitled to one
vote per share.
On May 19, 1997, the Company initiated a cash tender offer for up to one
million shares of its Class A and Class B Common Stock at a price of $2.50
per share. On June 17, 1997, the Company amended the cash tender offer by
extending the Expiration Date to July 3, 1997 and by increasing the number
of shares it offered to purchase from 1,000,000 shares of its Class A and
Class B Common Stock to up to 2,500,000 shares of its Class A Common Stock
and up to 1,500,000 shares of its Class B Common Stock, each at $2.50 per
share. A total of approximately 2,641,299 shares of Class A Common Stock
and 1,720,932 shares of Class B Common Stock were validly tendered and not
withdrawn in response to the offer, as amended. The purchase of shares was
prorated in accordance with the terms of the offer, as amended, for each
class of common stock.
6. Basic and diluted earnings per share of common stock have been computed
based upon the weighted average number of shares outstanding during the
three and nine months ended November 30, 1998 and November 30, 1997.
7. On September 16, 1998, the Company received an offer from its chairman and
chief executive officer, James I. Tankersley, and his wife and children
(the "Tankersley Group") to acquire the shares of the Company's common
stock that are not owned by the Tankersley Group for $3.00 per share.
7
<PAGE> 9
On receiving the proposal, the Board of Directors of the Company appointed
two outside directors to a special transaction committee. The Board
designated the committee for the purpose of evaluating and making
recommendations with respect to the proposal. As of the date of this report
the special transaction committee and the Tankersley Group are engaged in
negotiations regarding the proposal.
8
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following is management's discussion and analysis of certain significant
factors which have affected the Company's financial condition and earnings as of
and during the periods included in the accompanying balance sheets and
statements of income.
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This Quarterly Report on Form 10-Q and other reports and statements issued on
behalf of the Company may include forward-looking statements in reliance on the
safe harbor provided by the Private Securities Litigation Reform Act of 1995.
These forward-looking statements are subject to substantial risks and
uncertainties, including those discussed below, and actual results may differ
materially from those contained in any such forward-looking statement. The
review of factors pursuant to the Private Securities Litigation Reform Act of
1995 should not be construed as exhaustive. Further, the Company undertakes no
obligation to update or revise any such forward-looking statements to reflect
subsequent events or circumstances.
The Company's liquidity, capital resources and results of operations may be
affected from time to time by a number of factors and risks, including, but not
limited to: trends in the economy as a whole, which may affect consumer
confidence and consumer demand for the types of food products sold by the
Company; competitive pressures from domestic and foreign processors and
distributors of fresh, dry, frozen and canned food products which may affect the
nature and viability of the Company's business strategy; competitive pressures
from imported food products; unpredictable changes in growing conditions
inherent in agriculture; other agricultural risks, including those associated
with pesticides, herbicides and disease control and crop protection efforts; the
Company's ability to maintain and expand its distribution base; the Company's
ability to maintain and improve its plants, equipment and technological systems;
changes in the Company's customer base as the result of competition and/or
consolidation of retail grocery chains; risks associated with governmental
regulation and taxation, including the existence or effects of tariffs;
availability and cost of labor employed; changes in industry capacity and
production; the availability, costs and terms of financing, including the risk
of rising interest rates; availability of trade credit and terms with vendors;
the Company's use of financial leverage and the potential impact of such
leverage on the Company's ability to execute its operating strategies; the
ability to maintain gross profit margins; the seasonal nature of the Company's
business and the ability of the Company to predict consumer demand as a whole,
as well as demand for specific items; costs associated with the storage,
shipping, handling and control of inventory; potential adverse publicity for the
food industry or certain of the Company's food products; the ability of the
Company and significant third parties with whom it does business to effect
conversions to new technological systems, including becoming Year 2000
compliant; and the impact of the offer of James I. Tankersley and his wife and
children referred to herein.
FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
The Company's primary sources of cash are operations and external committed
credit facilities. At November 30, 1998, the Company's revolving credit
facilities totaled $21,000,000, of which $12,010,000 was available. The
Company's sources of liquidity are expected to meet adequately the requirements
for the upcoming year and the foreseeable future; however, new financing
alternatives are constantly evaluated to determine their practicality and
availability in order to provide the Company with sufficient and timely funding
at the least possible cost. The Company's $18,000,000 revolving credit facility
currently matures in fiscal 2002. The Company's $3,000,000 revolving credit
facility was canceled upon the closing of a term loan during December 1998.
One-year extensions of maturity dates of the $18,000,000 revolving credit
facility will be considered by the lender annually. If annual extensions are not
granted, the Company will then investigate revolving credit facilities with
other lenders and believes it can replace any current revolving credit facility
within its remaining 24-month term.
The Company closed on two term loans during December 1998. One term loan in the
amount of $15,000,000 has a ten year term, provides for monthly principal and
interest payments based on a twelve year amortization, with an interest rate of
6.8% per annum and is secured by the Company's mushroom farms located in
California, Utah and Oregon. The other term loan in the amount of $10,000,000
has a ten year term, provides for monthly principal and interest payments based
on a fifteen year amortization, with an interest rate of 6.8% per annum and is
secured by the Company's Santa Maria, California vegetable processing facility.
The proceeds of the loans were used to repay the balances outstanding under
existing mortgages on these properties totaling approximately $9 million, to
repay the outstanding balance of $3 million on the Company's $3 million
revolving credit note, and to fully repay the outstanding balance of other
revolving credit borrowings.
9
<PAGE> 11
In March 1998, the Company entered into a $10 million credit facility to
support the acquisition of trucks, tractors and similar equipment. The facility
is evidenced by a master security agreement providing for a series of separate
loans. Each loan will be secured by specific equipment and will be amortized
over 3 to 7 years, depending on the type of equipment. Interest will be 160
basis points over the yield for treasuries with a maturity equal to the
amortization period of the equipment being financed.
Operations provided net cash of $8,974,000 during the nine months ended November
30, 1998 and $7,908,000 during the same period of the prior year. Changes in
inventories resulted in a cash decrease of $5,864,000 during the nine months
ended November 30, 1998 as compared with a decrease of $12,232,000 during the
same period of the prior year. The change results primarily from changes in the
timing of product deliveries under the reciprocal supply agreements, as well as
from the effect of adverse weather conditions during the nine months ended
November 30, 1998, which resulted in less than expected packs. Changes in
accounts payable and accruals result primarily from the changes in inventories
previously mentioned.
Investing activities used cash of $6,379,000 for the nine months ended November
30, 1998 compared with cash used of $3,637,000 during the same period of the
prior year, primarily as the result of increased capital expenditures.
Financing activities used cash of $2,380,000 for the nine months ended November
30, 1998 as compared with cash used of $7,335,000 during the same period of the
prior year. Borrowings under the Company's revolving credit agreements during
the nine months ended November 30, 1997 were required to fund stock purchases
described below.
On May 19, 1997, the Company initiated a cash tender offer for up to 1,000,000
shares of its Class A and Class B Common Stock at a price of $2.50 per share. On
June 17, 1997, the Company amended the cash tender offer by extending the
Expiration Date to July 3, 1997 and by increasing the number of shares it
offered to purchase from 1,000,000 shares of its Class A and Class B Common
Stock to up to 2,500,000 shares of its Class A Common Stock and up to 1,500,000
shares of its Class B Common Stock, each at a price of $2.50 per share. A total
of approximately 2,641,299 shares of Class A Common Stock and approximately
1,720,932 shares of Class B Common Stock were validly tendered and not withdrawn
in response to the offer, as amended. The purchases of shares were prorated in
accordance with the terms of the offer, as amended, for each class of Common
Stock. The purchase, which totaled approximately $10,167,000, including
expenses, was funded with borrowings from the Company's revolving credit
facilities and available cash.
On September 16, 1998, the Company received an offer from its chairman and chief
executive officer, James I. Tankersley, and his wife and children (the
"Tankersley Group") to acquire the shares of the Company's common stock that are
not owned by the Tankersley Group for $3.00 per share. On receiving the
proposal, the Board of Directors of the Company appointed two outside directors
to a special transaction committee. The Board designated the committee for the
purpose of evaluating and making recommendations with respect to the proposal
and the committee has engaged counsel and a financial advisor to assist it in
its review of the proposal. The Company will bear the costs of the committee and
its advisors. The Tankersley Group and the special transaction committee are
currently engaged in negotiations regarding the proposal.
Working capital at November 30, 1998 was $36,359,000, and was $39,179,000 at
February 28, 1998. The decrease results primarily from the changes in
inventories and accounts payable, previously mentioned.
The Company's ratio of debt to equity was 1.68 to 1 at November 30, 1998 and
1.53 to 1 at February 28, 1998. The increase results primarily from the changes
in accounts payable, previously mentioned.
CAPITAL EXPENDITURES
Capital expenditures for fiscal 1999 are estimated to be approximately
$14,500,000, which is approximately $7,500,000 more than depreciation expense
projected for fiscal 1999. Capital expenditures anticipated for fiscal 1999
include the purchase of certain farm land, certain handling equipment, rolling
stock, vehicles, and composting equipment, as well as for improvements to the
Company's plants, equipment and technological systems. These expenditures are
expected to be funded from operating cash flow, the Company's revolving credit
facility, and the $10,000,000 credit facility, previously mentioned. The
Company's capital plan may change from time to time and the actual amount spent
may vary materially from amounts anticipated herein.
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<PAGE> 12
YEAR 2000 ISSUES
The Company has developed a comprehensive strategy for updating its systems for
Year 2000 ("Y2K") compliance. The Company's information technology ("IT")
systems include in-house developed software, as well as software purchased from
outside parties. All software has been identified and assessed to determine the
extent of renovations required in order to be Y2K compliant. Renovations to
programs that utilize in-house developed computer code are complete and the
Company anticipates that the renovations will be validated before the end of the
Company's current fiscal year. Also, the Company believes vendor developed
software will be made Y2K compliant before the end of the Company's current
fiscal year through vendor-provided updates or replacement with other Y2K
compliant hardware and software.
The Company has identified significant non-IT systems which may be impacted by
the Y2K problem, including those relating to production, processing, storage and
communication equipment, and is in the process of determining through inquiries
of equipment suppliers, as well as testing of such equipment, the extent of
renovations required, if any. The Company believes the assessment will be
completed before the end of the Company's current fiscal year, and that
renovation, validation and implementation will be completed early in the next
fiscal year.
The Company has identified third parties with which it has a significant
relationship that, in the event of a Y2K failure, could have a material impact
on the Company's financial position or operating results. The third parties
include energy and utility suppliers, creditors, material and product suppliers,
communication vendors, including value-added network vendors, and the Company's
significant customers. These relationships, especially those associated with
certain suppliers and customers, are material to the Company and a Y2K failure
for one or more of these parties could result in a material adverse effect on
the Company's operating results and financial position. The Company is making
inquiries of these third parties to assess their Y2K readiness. The Company
expects that this process will be on-going throughout the current and next
fiscal year.
The Company expects that the costs to address the Y2K issues will total
approximately $600,000, of which approximately $450,000 (approximately 30% of
the current year management information systems budget) will be spent in the
current fiscal year, with the remainder being spent during the first two
quarters of fiscal 2000. These costs include salary and fringe benefits for
personnel, hardware and software costs, and consulting and travel expenses
associated, directly or indirectly, with addressing Y2K issues. Y2K issues have
received a high priority within the Company and, as a result, certain other IT
projects have been delayed. While such non-Y2K projects are expected to enhance
operational efficiencies and improve the quality of information available to
management, the delay of such projects is not expected to have a material impact
on the Company's operations.
The worst case Y2K scenarios could include such insignificant matters as a minor
interruption in production or shipping resulting from unanticipated problems
encountered in the IT systems of the Company, or any of the significant third
parties with whom the Company does business. The pervasiveness of the Y2K issue
makes it likely that previously unidentified issues will require remediation
during the normal course of business. In such a case, the Company anticipates
that transactions could be processed manually while IT and other systems are
repaired, and that such interruptions would have a minor effect on the Company's
operations. On the other hand, a worst case Y2K scenario could be as
catastrophic as an extended loss of utility service resulting from interruptions
at the point of power generation, long-line transmission, or local distribution
to the Company's processing and storage facilities. Such an interruption could
result in an inability to provide products to the Company's customers, as well
as impairment of the Company's fresh and frozen inventories, resulting in a
material adverse effect on the Company's operating results and financial
position.
RESULTS OF OPERATIONS
OVERVIEW AND TRENDS
The Company's product line is made up of agricultural products which are subject
to the cyclical conditions and risks inherent in the agricultural industry. The
Company bears part of the growing risks and all of the processing and marketing
risks of these agricultural products. Weather abnormalities and excess
inventories sometimes cause substantial reductions in the annual volume of
product processed in the Company's facilities. When this happens, the unit cost
of that year's production will increase substantially, resulting in reduced
profit margins for one or more years. On the other hand, when bumper crops occur
unit costs will decrease but selling prices will, in general, be depressed.
The Company is faced with strong competition in the marketplace from large brand
name competitors, private regional U.S. growers and processors, and
privately-owned Mexican and Canadian growers and processors. These competitive
pressures,
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<PAGE> 13
coupled with low overall growth, have led to weak market pricing, and
a substantial increase in trade spending required for the Company to maintain
its market position. These factors have adversely impacted earnings in certain
prior periods and, as a result, certain discretionary repair and maintenance
projects were deferred to later periods. The Company anticipates that these
competitive conditions will continue.
The Company believes that recently imposed interim tariffs on imported canned
mushrooms from certain countries has had the effect of increasing prices and
profitability for this portion of the Company's product line. In cases
involving imported canned mushrooms from Chile, India, Indonesia and China, the
tariff has been approved for a five year period.
The Company believes that, in order to address the intense competition within
its industry, it must improve its operational efficiency, lower its costs,
improve its customer service and provide value-added services to its customers.
Accordingly, the Company intends to continue to invest in maintaining and
expanding its distribution base and to make substantial expenditures to maintain
and improve its plants, equipment and technological systems. The Company
believes these expenditures are necessary to keep its business competitive and
will fund such spending during periods when earnings are available. As a result,
the Company believes that its future net income may be adversely affected during
certain periods.
In addition to general inflation and the growing, processing and marketing risks
described above, the Company is facing significant costs associated with
governmental regulation, the loss of land and water available for agriculture in
California and the increasing competition due to worldwide facilitation of
trade, notwithstanding the impact of the previously mentioned tariff on certain
imported canned mushrooms. As a result of these factors, the Company's earnings
are subject to fluctuations and will continue to be so for the foreseeable
future.
The effect on the Company's operations and its ability to withstand the costs of
evolving healthcare, OSHA, EPA, taxation and other governmental regulations is
unknown.
REVENUES
Net sales and service revenues increased $4,118,000 (8.0%) and $10,398,000
(7.4%) for the three and nine month periods ended November 30, 1998,
respectively, as compared with the same periods of the prior year. Sales volume
increased 13.7% and 7.8 % and the average selling price per pound decreased 3.7%
and increased 1.0% for the three and nine month periods ended November 30, 1998,
respectively, as compared with the same periods of the prior year. The average
selling price per pound was significantly impacted by changes in the mix of
sales made to other food processors. Excluding the effect of sales to other food
processors, the average selling price per pound increased .9% and 1.6% for the
quarter and year-to-date periods, respectively, as compared with the same
periods of the prior year due to increased prices for certain of the Company's
food products. Sales allowances increased $1,511,000 (13.7%) and $3,880,000
(13.6%) for the three and nine month periods ended November 30, 1998,
respectively, as compared with the same periods of the prior year. The increases
result primarily from increased sales volume, previously mentioned, as well as
competitive market conditions and the Company's efforts to maintain its market
share.
COST OF SALES AND SERVICES
Cost of sales and services increased $2,702,000 (6.4%) and $7,404,000 (6.4%) for
the three and nine month periods ended November 30, 1998, respectively, as
compared with the same periods of the prior year. The changes result primarily
from increased sales volumes, previously mentioned, and changes in sales mix
associated with sales to other food processors. Gross profit increased
$1,416,000 (15.0%) and $2,994,000 (13.0%) for the three and nine month periods
ended November 30, 1998, respectively, as compared with the same periods of the
prior year. The increase results primarily from margin realized on additional
sales volumes and improved sales prices, previously mentioned. The gross profit
method, at the estimated annual gross profit rate is used to determine frozen
vegetable cost of goods sold in interim financial statements. (See Note 3 -
Notes to Financial Statements.)
SELLING, ADMINISTRATIVE AND GENERAL EXPENSES
Selling, general and administrative expenses increased $569,000 (7.0%) and
$1,546,000 (6.7%) for the three and nine month periods ended November 30, 1998,
as compared with the same periods of the prior year. Storage expense increased
$482,000 (18.4%) and $1,006,000 (14.7%) for the quarter and year-to-date
periods, as compared with the same periods of the prior year,
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<PAGE> 14
primarily as the result of repairs to the Company's cold storage facilities.
Other selling, general and administrative expenses increased $87,000 (1.6%) and
$540,000 (3.3%), primarily as the result of increased general and administrative
expenses, including cost associated with becoming Y2K compliant.
INTEREST EXPENSE
Interest expense - net decreased $61,000 (5.6%) and $15,000 (.5%) for the three
and nine months ended November 30, 1998, as compared with the same periods of
the prior year, primarily as the result of changes in average borrowings and
cash and short term investments and slightly lower interest rates.
TAXES ON INCOME
Taxes on income for the three and nine months ended November 30, 1998 and 1997
consist of current and deferred taxes provided at the estimated effective
federal and state tax rates expected to be recognized for the respective
periods. (See Note 4 - Notes to Financial Statements.)
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<PAGE> 15
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) - EXHIBITS
See Exhibit Table.
(b) - REPORTS ON FORM 8-K
On September 17, 1998, the Company filed a report on Form 8-K, reporting under
Item 5 the fact that the Company had received an offer from its chairman, James
I. Tankersley, and his wife and children to acquire the shares of the Company's
common stock that are not owned by Mr. Tankersley, his wife or his children for
$3.00 per share.
14
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNITED FOODS, INC.
Date: January 13, 1999 By /s/ Carl W. Gruenewald, II
---------------- -----------------------------------
Carl W. Gruenewald, II
Senior Vice President,
Chief Financial Officer & Treasurer
15
<PAGE> 17
UNITED FOODS, INC.
EXHIBITS TABLE
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
------- ---------------------------------------------------------------------------------------
<S> <C>
10.1 Promissory Note in the principal amount of $10,000,000 and Deed of Trust between United
Foods, Inc. and Monumental Life Insurance Company, dated December 15, 1998.
10.2 Promissory Note in the principal amount of $15,000,000 and Deeds of Trust between United
Foods, Inc. and Monumental Life Insurance Company, dated December 15, 1998.
27 Financial Data Schedule (For SEC use only).
</TABLE>
16
<PAGE> 1
EXHIBIT 10.1
PROMISSORY NOTE
SECURED BY DEED OF TRUST
$10,000,000.00 December 15, 1998
FOR VALUE RECEIVED, the undersigned, UNITED FOODS, INC., a Delaware
corporation (hereafter referred to as "Borrower") hereby promises to pay to the
order of MONUMENTAL LIFE INSURANCE COMPANY, a Maryland corporation (hereafter
referred to as "Payee"; Payee and/or any subsequent holder(s) hereof, hereafter
referred to as "Holder"), at:
Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
c/o Bank of America
Post Office Box 96273
Chicago, IL 60693-6273
or at such other place as Holder may designate from time to time in writing, in
lawful money of the United States and in immediately available funds, the
principal amount of Ten Million Dollars ($10,000,000.00), together with interest
on the outstanding balance thereof, at the rate set forth below, from the Funds
Transfer Date (as defined below) until the entire balance of principal has been
paid in full, such principal and interest being due and payable as set forth in
Section 1 below. As used in this Note, the "Loan" means the loan evidenced by
this Note, and the "Funds Transfer Date" means the date on which Payee initiates
the transfer of funds on the Federal Reserve wire system in disbursement of the
proceeds of the Loan.
1. INTEREST AND PAYMENTS.
1.A. Interest Rate. Interest will accrue on the outstanding
principal balance hereof at the rate of Six and 8/10 Percent (6.8%) per annum
commencing with the Funds Transfer Date to and until January 1, 2009 (the
"Maturity Date").
1.B. Payment Terms. Principal and interest shall be due and
payable as follows.
(1) Interest for the period beginning on the Funds Transfer
Date through December 31, 1998, shall be prorated on a daily basis as provided
in Section 1.D below and shall be paid in advance at the close of the escrow
established to disburse the proceeds of the Loan.
(2) Thereafter, monthly combined principal and interest
payments in the amount of $88,768.39 each shall be due and payable beginning on
February 1, 1999, and continuing thereafter on the first day of each calendar
month until the Maturity Date. Monthly installments of principal and interest
shall be made as scheduled and in the amount set forth herein regardless of
Lender's prior acceptance of unscheduled payments.
(3) The entire outstanding principal balance of the
indebtedness evidenced hereby, plus all accrued and unpaid interest thereon,
shall be due and payable on the Maturity Date.
1.C. Basis Point. As used in this Note, the term "Basis Point"
means one one-hundredth (1/100th) of one percentage point of interest.
1.D. Calculation of Interest. All interest on any indebtedness
evidenced by this Note shall be calculated on the basis of a three hundred sixty
(360)-day year composed of twelve (12) thirty (30)-day months. Interest for
partial months shall be calculated by multiplying the principal balance of this
Note by the applicable per annum rate, dividing the product so obtained by 360,
and multiplying the result by the actual number of days elapsed. Calculating
interest for partial months on the basis of a 360-day year results in more
interest than if a 365-day year were used.
1.E. Balloon Payment. THIS NOTE PROVIDES FOR A BALLOON PAYMENT
WHICH WILL BE DUE IN FULL ON THE MATURITY DATE, AND BORROWER ACKNOWLEDGES THAT
NO PROVISION OR
17
<PAGE> 2
AGREEMENT HAS BEEN MADE FOR THE REFINANCING BY HOLDER OF THE AMOUNT TO BE PAID
ON SUCH DATE.
1.F. Deadlines; Banking Days. In the event any of the due dates,
deadlines or determinative dates set forth in this Section 1 or elsewhere in
this Note fall on a Saturday, Sunday or holiday, the applicable due date,
deadline or determinative date shall be the immediately preceding banking day.
2. APPLICATION OF PAYMENTS. All payments made under this Note
shall be applied first, to the following, in such order as Holder may elect in
its sole discretion, until all such items are paid in full: (a) any late charges
due in accordance with Section 4 below; (b) any past-due interest, including
without limitation interest accrued at the Default Interest Rate in accordance
with Section 4 below; (c) reimbursement of any sums advanced by Holder to cure
defaults under the Deeds of Trust (as defined in Section 3 below); (d) any
applicable prepayment premium due in accordance with Section 7 below; (e)
reimbursement of any expenses to which Holder is entitled pursuant to Section 10
below; second, to any past-due principal; third, to current interest accrued as
of the date of Holder's receipt of such payment; and fourth, to reduce the
outstanding principal balance. No partial prepayment of principal shall result
in any adjustment of the amount of the scheduled installments of principal
thereafter becoming due.
3. COLLATERAL. The indebtedness evidenced by this Note is secured
by, among other things, the following (the "Deeds of Trust"): (i) that certain
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing of
even date herewith between Borrower, as Trustor, in favor of Payee, as
Beneficiary, encumbering property located in the County of Santa Barbara, State
of California, as more particularly described therein, (ii) that certain Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing of even date
herewith, between Borrower, as Trustor, in favor of Payee, as Beneficiary,
encumbering property located in the County of Ventura, State of California,
(iii) that certain Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing of even date herewith, between Borrower, as Trustor, in favor of
Payee, as Beneficiary, encumbering property located in the County of Marion,
State of Oregon, and (iv) that certain Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing of even date herewith, between Borrower,
as Trustor, in favor of Payee, as Beneficiary, encumbering property located in
the County of Millard, State of Utah.
Concurrently with the execution and delivery hereof, Borrower has executed and
delivered that certain Promissory Note Secured by Deed of Trust dated as of even
date herewith payable to Payee in the original principal amount of
$15,000,000.00 ("Note B"). This Note, Note B and the Deeds of Trust, together
with all other documents or instruments evidencing, securing, or otherwise
relating to the indebtedness evidenced hereby, including without limitation that
certain Environmental Indemnity Agreement dated as of even date herewith, are
sometimes hereinafter referred to collectively as the "Loan Documents."
4. LATE CHARGES AND INTEREST UPON DEFAULT. Borrower agrees to pay
to Holder a late charge equal to four percent (4%) of any amount, including
interest, not paid within five (5) days of the due date. As used herein, the
term "Default Interest Rate" means a rate per annum Three Hundred (300) Basis
Points above the interest rate otherwise in effect under this Note. In the event
that any payment of principal, interest, late charges or prepayment premium
payable under this Note is not paid within ten (10) days from its due date,
whether or not by reason of acceleration, such failure shall constitute an Event
of Default hereunder, and such amount shall bear interest from the due date
thereof until paid at the Default Interest Rate. Borrower acknowledges and
agrees that during the time that any payment of principal, interest or other
amount due under this Note or any other Loan Document is delinquent, Holder will
incur additional costs and expenses attributable to its loss of use of the money
due and attributable to the adverse impact on Holder's ability to meet its other
obligations and avail itself of other opportunities. Borrower agrees it is
extremely difficult and impractical to ascertain the extent of such costs and
expenses, and Borrower therefore agrees to payment of the above late charge and
the accrual of interest at the Default Interest Rate in accordance with this
Section, in satisfaction of its liability for such costs and expenses,
regardless of whether or not there has been an acceleration of the maturity of
the indebtedness evidenced by this Note. Borrower acknowledges that the charging
of Default Interest will result in compounded interest (i.e., interest on
interest).
/s/ CWG DD
-----------------------------------
Borrower's Initials
5. EVENT OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" hereunder:
(1) the failure of Borrower to pay, or cause to be paid, any
scheduled installment of principal and interest or any other indebtedness
evidenced by this Note within ten (10) days of the date when due;
18
<PAGE> 3
(2) the failure of Borrower to pay, or cause to be paid, the entire
indebtedness evidenced hereby on the Maturity Date or upon acceleration of the
Loan;
(3) the failure of Borrower to pay, or cause to be paid, any other
amount due and payable under any of the Loan Documents and any applicable cure
period set forth therein has expired; or
(4) the occurrence of an Event of Default under any of the other
Loan Documents, including without limitation an Event of Default under Note B or
any of the Deeds of Trust, and further including without limitation the failure
of Borrower to observe the provisions of Section 1.8 of each of the Deeds of
Trust (entitled "Transfer of the Property; Secondary Financing"), or a default
under the Environmental Indemnity Agreement and the expiration of any applicable
cure period expressly set forth therein.
6. ACCELERATION. Upon the occurrence of an Event of Default, Holder
may at its option, in addition to any other remedies to which it may be
entitled, declare the total unpaid principal balance of the indebtedness
evidenced hereby, together with all accrued but unpaid interest thereon and any
applicable prepayment premium and all other sums owing under any of the other
Loan Documents, immediately due and payable, including without limitation all
costs of collection, without further presentment, demand, protest or notice of
any kind, by so notifying Borrower in writing. Notwithstanding the foregoing, in
the Event of Default under clauses (1), (2) or (3) of Section 5 above, Holder
shall give Borrower at least five (5) days' written notice (measured from the
date the notice is given) prior to declaring the total unpaid balance hereof due
and owing, provided that no additional notice shall be required upon
acceleration, and provided further that such notice obligation shall not release
Borrower from any late charge or Default Interest as provided in this Note.
7. PREPAYMENT.
7.A Prepayment Premium. Upon giving Holder not less than thirty
(30) days' prior written notice, Borrower may prepay the principal amount due
under this Note, in whole or in partial payments of not less than One Hundred
Thousand Dollars ($100,000.00) by paying, in addition to such principal,
together with any and all accrued interest thereon, a prepayment premium equal
to the difference (if positive) between (1) minus (2), said amount then being
multiplied by (3), where:
(1) is determined by calculating the present value of the
payments Holder would have received if the prepaid principal amount had been
paid as provided for in this Note absent any prepayment privileges discounted
back to the prepayment date using a discount rate equal to the Comparable
Treasury Rate (as defined below) plus 100 Basis Points;
(2) is the amount of the principal balance outstanding as of
the prepayment date (prior to the application of any prepayment and the payments
Holder would have received if the prepaid principal amount had been paid as
provided for in this Note absent any prepayment privileges); and
(3) is a fraction, the numerator of which is the amount of the
principal balance which is being prepaid and the denominator of which is the
original principal balance under this Note.
7.B Comparable Treasury Rate Defined. The "Comparable Treasury
Rate" shall be (1) equal to the rate for U.S. Treasury Constant Maturities with
a maturity closest to the remaining loan term at the date of prepayment, or (2)
if there is no U.S. Treasury Constant Maturity having a maturity date matching
the remaining loan term, an interpolated rate derived from U.S. Treasury
Constant Maturity with the closest maturity date after the Maturity Date.
7.C Additional Prepayment Provisions.
(1) In no event shall the amount due in connection with any
principal prepayment be less than the principal amount paid plus any and all
interest accrued thereon as of the payment date. No partial prepayment shall
result in any adjustment of the amount of the scheduled installments of
principal and interest thereafter becoming due, except to the extent the final
payment or payments are reduced or eliminated as a result of the partial
prepayment.
(2) Borrower covenants and agrees that the Loan is being made
on the basis and assumption that the payments shall be made for the full maximum
term of the Loan, that such is the transaction bargained for, and that Borrower
shall not prepay the indebtedness except in strict accordance with the
provisions of this Note. Except for expressly
19
<PAGE> 4
permitted prepayments of principal, the prepayment premium described above shall
be payable with respect to voluntary prepayments or with respect to prepayments
resulting from default, acceleration, foreclosure, deed in lieu of foreclosure
or exercise of any remedies under the Loan Documents. However, no prepayment
premium shall be payable on amounts attributable to insurance or condemnation
proceeds applied in reduction of the principal balance hereof.
8. PREPAYMENT WAIVERS. Borrower expressly waives any right to
prepay the indebtedness evidenced hereby, except as specifically provided in
Section 7 above. Therefore, if the maturity of this Note is accelerated by
reason of any Event of Default under this Note or under any other Loan Document,
Borrower recognizes and agrees that any prepayment of the indebtedness evidenced
hereby resulting from such default (including without limitation, prepayments
resulting from foreclosure and sale, sale under a power of sale, and any
redemption following foreclosure of any of the Deeds of Trust) shall constitute
a breach of the restrictions on prepayment set forth herein and will result in
damages to Holder due to Holder's failure to receive the benefit of its
investment as contracted for in this Note. Further, Borrower recognizes that it
is extremely difficult and impractical to ascertain the extent of such damages.
Accordingly, in the event the maturity of this Note is accelerated by reason of
any Event of Default hereunder or under any other Loan Document, Borrower agrees
to pay to the Holder, in satisfaction of its liability for such damages, in
addition to all other amounts due, the prepayment premium described above.
Borrower agrees that the prepayment premium represents the reasonable estimate
of Holder and Borrower of a fair average compensation for the loss that may be
sustained by Holder due to the prepayment of any of the principal balance prior
to the Maturity Date; the prepayment premium shall be paid without prejudice to
the right of Holder to collect any other amounts provided for in the other Loan
Documents; and Holder shall not be obligated to actually reinvest the prepayment
amount in any Treasury or other specific obligations as a condition to receiving
the prepayment premium. Borrower expressly waives any right it may have to
prepay this Note, in whole or in part, without prepayment charge, upon
acceleration of the maturity of this Note, and agrees that if for any reason a
prepayment of any or all of the indebtedness evidenced by this Note is made,
whether voluntarily or upon or following any acceleration of the maturity of
this Note by Holder, then Borrower shall pay the prepayment premium calculated
pursuant to Section 7 above. By initialing this provision in the space provided
below, Borrower hereby declares that the Holder's agreement to make the Loan at
the interest rate and for the term set forth herein constitutes adequate
consideration, given individual weight by Borrower, for this waiver and
agreement.
/s/ CWG DD
-----------------------------------
Borrower's Initials
9. LITIGATION EXPENSE. If any suit, action or proceeding of any kind
(an "action") is brought by any party hereto (or the successors or assigns
to any party hereto) to enforce, defend or interpret any provision of this Note
or any document referred to herein or executed in connection herewith (including
without limitation an action for declaratory relief), the prevailing party in
such action shall recover from the other parties to such action all reasonable
costs and expenses which the prevailing party may incur in bringing such action
and/or enforcing any judgment granted therein, all of which shall be deemed to
have accrued upon the commencement of such action and shall be paid whether or
not such action is prosecuted to judgment. The "prevailing party" means the
party entitled to recover the costs of suit, whether or not any action proceeds
to final judgment. Any judgment or order entered in such action shall
specifically provide for the recovery of all reasonable costs and expenses
incurred by the prevailing party in connection therewith including, without
limitation, costs and expenses incurred in enforcing such judgment. For the
purpose of this Section, "costs and expenses" include all court costs and
attorneys' fees (including allocated costs of in-house counsel) including
without limitation, court costs and attorneys' fees incurred in connection with
any of the following: (a) postjudgment motions; (b) contempt proceedings; (c)
garnishment, levy and debtor and third party examinations; (d) discovery; (e)
bankruptcy litigation; (f) appeals; and (g) petitions for review. Holder shall
have the right, but not the obligation, to commence, appear in and defend any
action purporting to affect any of the interests, rights, obligations or
liabilities of Holder or Borrower in connection with this Note or any other Loan
Document, and Borrower agrees to pay to Holder on demand all costs and expenses
reasonably incurred by Holder in connection therewith.
10. REIMBURSEMENT OF COSTS AND EXPENSES. Borrower agrees to reimburse
Holder within five (5) days of Holder's demand for all costs and expenses
(including, but not limited to, reasonable attorneys' fees, including allocated
costs of in-house counsel) incurred by Holder in connection with the exercise of
Holder's rights under this Note or the other Loan Documents, and the enforcement
thereof, whether or not an action is commenced, and in connection with the
administration of Holder's rights under this Note, other than routine servicing
matters customarily performed by Holder for loans of a similar nature and for
which no cost is charged.
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<PAGE> 5
11. WAIVER. Borrower and any sureties, guarantors and endorsers of
this Note hereby consent to renewals and extensions of time at or after the
Maturity Date and hereby waive diligence, presentment, protest, demand and
notice of every kind and (to the full extent permitted by law) the right to
plead any statute of limitations as a defense to any demand hereunder or in
connection with any security herefor, and hereby agree that no failure on the
part of Holder to exercise any power, right or privilege hereunder, or to insist
upon prompt compliance with the terms hereof, shall constitute a waiver thereof.
12. FORBEARANCE. Holder shall not be deemed to have waived any of
Holder's rights or remedies under this Note unless such waiver is express and in
a writing signed by Holder, and no delay or omission by Holder in exercising, or
failure by Holder on any one or more occasions to exercise, any of Holder's
rights hereunder or under the other Loan Documents, or at law or in equity,
including, without limitation, Holder's right, after any Event of Default by
Borrower, to declare the entire indebtedness evidenced hereby immediately due
and payable, shall be construed as a novation of this Note or shall operate as a
waiver or prevent the subsequent exercise of any or all of such rights.
Acceptance by Holder of any portion or all of any sum payable hereunder whether
before, on or after the due date of such payment, shall not be a waiver of
Holder's right either to require prompt payment when due of all other sums
payable hereunder or to exercise any of Holder's rights, powers and remedies
hereunder or under the other Loan Documents. A waiver of any right on one
occasion shall not be construed as a waiver of Holder's right to insist
thereafter upon strict compliance with the terms hereof without previous notice
of such intention being given to Borrower. No exercise of any right by Holder
shall constitute or be deemed to constitute an election of remedies by Holder
precluding the subsequent exercise by Holder of any or all of the rights, powers
and remedies available to it hereunder, under any of the other Loan Documents,
or at law or in equity. Borrower expressly waives, to the extent permitted by
law, the benefit of any statute or rule of law or equity now provided, or which
may hereafter be provided, which would produce a result contrary to, or in
conflict with, the foregoing. Borrower consents to any and all renewals and
extensions in the time of payment hereof without in any way affecting the
liability of Borrower or any person liable or to become liable with respect to
any indebtedness evidenced hereby. No extension of the time for the payment of
this Note or any installment due hereunder, made by agreement with any person
now or hereafter liable for the payment of this Note shall operate to release,
discharge, modify, change or affect the original liability of Borrower under
this Note, either in whole or in part, unless Holder agrees otherwise in
writing.
13. RENUNCIATION AND ASSIGNMENT OF EXEMPTIONS. To the extent
permitted by law, Borrower hereby waives and renounces for itself, its legal
representatives, successors and assigns, all rights to the benefits of any
statute of limitations and any moratorium, reinstatement, marshalling,
forbearance, valuation, stay, extension, redemption, appraisement, exemption,
and homestead right, entitlement, or exemption now provided, or which may
hereafter be provided, by the Constitution or laws of the United States of
America or of any state thereof, both as to itself and in and to all of its
property, real and personal, against the enforcement and collection of the
obligations evidenced by this Note.
14. JURY TRIAL WAIVER. BORROWER HEREBY WAIVES ANY RIGHT TO TRIAL
BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY HOLDER OR ANY OTHER
PERSON RELATING TO (I) THIS NOTE OR NOTE B, OR (II) ANY OF THE OTHER LOAN
DOCUMENTS. BORROWER HEREBY AGREES THAT THIS NOTE CONSTITUTES A WRITTEN CONSENT
TO WAIVER OF TRIAL BY JURY AND BORROWER DOES HEREBY CONSTITUTE AND APPOINT
HOLDER ITS TRUE AND LAWFUL ATTORNEY IN FACT, WHICH APPOINTMENT IS COUPLED WITH
AN INTEREST, AND BORROWER DOES HEREBY AUTHORIZE AND EMPOWER HOLDER, IN THE NAME,
PLACE AND STEAD OF BORROWER, TO FILE THIS NOTE WITH THE CLERK OR JUDGE OF ANY
COURT OF COMPETENT JURISDICTION AS WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY.
15. APPLICABLE LAW. This Note shall be governed by, enforced under
and interpreted in accordance with the laws of the State of Oregon.
16. AMENDMENT. This Note may be amended or modified only by an
instrument in writing which by its express terms refers to this Note and which
is duly executed by each party sought to be bound thereby.
17. SEVERABILITY. If any provision of this Note or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Note and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
18. TRANSFERS BY HOLDER. This Note and the other Loan Documents may
be hypothecated, transferred or assigned by Holder without the prior consent
of Borrower.
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<PAGE> 6
19. SUCCESSORS AND ASSIGNS. This Note shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
20. TIME. Time is of the essence with respect to each and every term
and provision of this Note.
21. USURY. Notwithstanding any provision in this Note which might
otherwise be construed to the contrary, it is the desire of Holder and Borrower
that the total liability for payments in the nature of interest shall not exceed
the limits imposed by any applicable state or federal interest rate laws. If any
payments in the nature of interest, additional interest, and other charges made
under this Note are held to be in excess of the limits imposed by any applicable
state or federal laws, then at Holder's option (a) to the extent permitted under
applicable law, Holder may declare the total unpaid principal balance of the
indebtedness evidenced hereby, together with all accrued but unpaid interest
thereon, immediately due and payable (without prepayment premium), or (b) any
such excess amount shall be considered a premium-free prepayment of principal
and the principal balance shall be reduced by such amount in the inverse order
of maturity so that the total liability for payments in the nature of interest,
additional interest and other charges shall not exceed the limits imposed by any
applicable state or federal interest rate laws.
22. NOTICES. All notices, demands or requests provided for or
permitted to be given hereunder shall be in writing and shall be delivered in
person or sent by registered or certified United States mail, postage prepaid,
return receipt requested, or by overnight courier, to the addresses set forth
below or to such other addresses as are specified by no less than ten (10) days'
prior written notice delivered in accordance herewith:
If to Borrower: United Foods, Inc.
Ten Pictsweet Drive
Bells, TN 38006-0119
Attn: Senior Vice President for Finance
If to Holder: Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5443
All such notices, demands and requests shall be deemed effectively given and
delivered three (3) days after the postmark date of mailing, the day after
delivery to the overnight courier, or, if delivered personally, when received.
Rejection or other refusal to accept or the inability to deliver because of a
changed address of which no notice was given in accordance with the time period
provided herein, shall be deemed to be receipt of the notice, demand or request
sent.
23. GENDER AND NUMBER. All personal pronouns used in this Note
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa.
24. HEADINGS. The underlined words appearing at the commencement
of the sections are included only as a guide to the contents thereof and are not
to be considered as controlling, enlarging or restructuring the language or
meaning of those sections.
25. NOTICE TO BORROWER. UNDER OREGON LAWS, MOST AGREEMENTS,
PROMISES, COMMITMENTS MADE BY LENDER AFTER OCTOBER 3, 1989 CONCERNING LOANS AND
OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES
OR SECURED SOLELY BY BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION AND BE SIGNED BY LENDER TO BE ENFORCEABLE.
IN WITNESS WHEREOF, the undersigned have executed this Note as of the
date first above written.
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<PAGE> 7
UNITED FOODS, INC.,
a Delaware corporation
By /s/ Carl W. Gruenewald II
Carl W. Gruenewald II,
Senior Vice President, Finance
By /s/ Donald Dresser
Donald Dresser,
Senior Vice President,
Administration
23
<PAGE> 8
RECORDING REQUESTED BY:
Chicago Title Company
Escrow No. 160981144
AND WHEN RECORDED MAIL TO:
Bolen, Fransen & Boostrom LLP
1322 East Shaw Avenue, Suite 430
Fresno, CA 93710
Attention: Virginia M. Pedreira
- --------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST, ASSIGNMENT OF RENTS
SECURITY AGREEMENT AND FIXTURE FILING
(Santa Barbara County, California)
THIS DEED OF TRUST, ASSIGNMENT OF RENTS , SECURITY AGREEMENT AND
FIXTURE FILING (hereafter referred to as this "Deed of Trust") is made and
entered into as of December 15, 1998, by UNITED FOODS, INC., a Delaware
corporation, ("Trustor"), whose address is Ten Pictsweet Drive, Bells, TN
38006-0119, to CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation
("Trustee"), whose address is 388 Market Street, Suite 1300, San Francisco, CA
94111, for the benefit of MONUMENTAL LIFE INSURANCE COMPANY, a Maryland
corporation, its successors and assigns ("Beneficiary"), whose address is c/o
AEGON USA Realty Advisors, Inc., 4333 Edgewood Road N.E., Cedar Rapids, IA
52499-5443.
W I T N E S S E T H:
A. GRANT. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to secure the
indebtedness and other obligations of Trustor hereafter set forth, Trustor does
hereby grant, bargain, sell, convey, mortgage, assign, transfer, pledge and set
over unto Trustee and the successors and assigns of Trustee IN TRUST WITH POWER
OF SALE, for the benefit and security of Beneficiary all of Trustor's right,
title and interest in and to the following, whether now owned or hereafter
acquired (hereafter collectively referred to as the "Real Property"):
(1) the real property located in Santa Barbara County, California,
as more particularly described in Exhibit A attached hereto and incorporated
herein by reference (hereafter referred to as the "Land");
(2) all buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land (hereafter referred to as
"Improvements and Fixtures"), including, without limitation, (a) houses, barns,
sheds, warehouses, pumphouses, bunkhouses, hothouses, mobilehomes and all other
buildings and structures; (b) shrubs, trees and landscaping now growing or
hereafter to be grown on the Land; (c) grain bins, storage bins and tanks, metal
sheds and buildings, wind machines, freeze and frost protection equipment, water
towers, windmills, (d) all towers, fences, gates, stakes, posts and trellises;
(e) all electric, water and gas lines, wiring, generators, motors, pipe and
equipment together with meters, transformers, switch boxes, fuse panels, circuit
breakers, timing devices, thermostats, and control valves; (f) all wells,
irrigation and drainage equipment of all types (other than portable irrigation
motors customarily towed by a motor vehicle) including, without limitation,
pumping stations, pipe, pumps, motors, gearheads, pivots, sprinkler systems,
hand lines, tow lines, control valves, culverts, and well casings; (g) air
conditioning, climate control and heating equipment including coils,
compressors, ducts and heaters; (h) all wall to wall carpet, refrigerators,
stoves and other built-in equipment; (i) processing, packaging, loading, and
storage facilities and equipment, including augers, scales, belts, motors and
conveyance equipment related thereto; (j) all other machinery, apparatus, and
equipment of every kind and nature now or hereafter attached to, located on, in,
or about the Land, or used or intended to be used in connection with the use,
operation, or enjoyment of the Land or related to the operation of the Property
(excluding property which may be or deemed to be toxic or hazardous substances
or materials, and also excluding self-propelled motor driven vehicles and farm
implements customarily towed by or attached thereto (collectively, "rolling
stock"), but not excluding any rolling stock which constitutes a part of any
irrigation system
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relating to the Land), including without limitation the property described in
Exhibit B attached hereto and incorporated herein by this reference; and (k) all
additions thereto and substitutions and replacements thereof, all of which are
hereby declared and shall be deemed to be fixtures and accessions to the Land
and a part of the Real Property as between the parties hereto and all persons
claiming by, through or under them, and which shall be deemed to be a portion of
the security for the Secured Obligations (as defined in Section B below);
(3) all easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, now or hereafter located on the Land or under or above
the same or any part or parcel thereof, and all estates, rights, titles,
interests, minerals, royalties, easements, privileges, liberties, tenements,
hereditaments and appurtenances, reversion and reversions, remainder and
remainders whatsoever, in any way belonging, relating or appertaining to the
Land or any part thereof, or which hereafter shall in any way belong, relate or
be appurtenant thereto, whether now owned or hereafter acquired by Trustor;
(4) all present and future rents, issues and profits of the Real
Property from time to time accruing (including, by way of illustration, all
payments under leases or tenancies, unearned premiums on any insurance policy
carried by Trustor for the benefit of Beneficiary and/or the Real Property,
tenant security deposits, escrow funds and all awards or payments, including
interest thereon and the right to receive same, growing out of or as a result of
any exercise of the right of eminent domain, including the taking of any part or
all of the Real Property or payment for alteration of the grade of any road upon
which said Real Property abuts, or any other injury to, taking of or decrease in
the value of said Real Property to the extent of all amounts which may be owing
on the Secured Obligations at the date of receipt of any such award or payment
by Trustor, and the reasonable attorneys' fees, costs and disbursements incurred
by Beneficiary in connection with the collection of such award or payment), and
all the estate, right, title, interest, property, possession, claim and demand
whatsoever at law or in equity, of Trustor of, in and to the same;
(5) all insurance policies and proceeds thereof, contracts,
permits, licenses, plans or intangibles now or hereafter dealing with, affecting
or concerning the Real Property, including, by way of illustration, all rights
accruing to Trustor from any and all contracts with all contractors, architects,
engineers or subcontractors relating to the construction of improvements on or
upon the Land, including payment, performance and/or materialmen's bonds and any
other related choses in action;
(6) all rights of Trustor or the Land to all water (including
any water inventory in storage), water rights and entitlements, other rights to
water and other rights to receive water or water rights of every kind or nature,
used or designated for use in connection with the Land, including by way of
illustration, (a) the groundwater on, under, pumped from or otherwise available
to the Land, whether as a result of groundwater rights, contractual rights or
otherwise; (b) the right to remove and extract any such groundwater including
any permits, rights or licenses granted by any governmental authority or agency
and any rights granted or created by any easement, covenant, agreement or
contract with any person or entity; (c) any rights to which the Land is entitled
with respect to surface water, whether such right is appropriative, riparian,
prescriptive or otherwise and whether or not pursuant to permit or other
governmental authorization, or the right to store any such water; (d) any water,
water right, water allocation, distribution right, delivery right, water storage
right, or other water-related entitlement appurtenant or otherwise applicable to
the Land by virtue of the Land's being situated within the boundaries of any
district, agency, or other governmental entity or within the boundaries of any
private water company, mutual water company, or other non-governmental entity;
(e) any drainage rights appurtenant or otherwise applicable to the Land; (f) all
rights to transport, carry, allocate or otherwise deliver water or any of the
foregoing rights from or to the Land by any means, wherever located; (g) any
shares (or any rights under such shares) of any private water company, mutual
water company, or other non-governmental entity pursuant to which Trustor or the
Land may receive any of the rights referred to in subsections (a) through (f),
above (collectively referred to hereafter as the "Water Rights"); and
(8) all rights to drain the Land including rights in drainage
districts (and the right to vote for and elect representatives in such drainage
districts).
The Real Property described above together with the Personal Property collateral
described in Section 3.1 below are hereafter sometimes referred to collectively
as the "Property."
B. SECURED OBLIGATIONS. This Deed of Trust is given to secure the
payment and performance of the following in such manner as Beneficiary in its
sole discretion shall determine (collectively referred to hereafter as the
"Secured Obligations"):
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(1) the indebtedness evidenced by (a) that certain Promissory
Note Secured by Deed of Trust of even date herewith ("Note A") made by Trustor
in the original principal amount of Ten Million and 00/100 Dollars
($10,000,000.00) payable to the order of Beneficiary, and (b) that certain
Promissory Note Secured By Deed of Trust of even date herewith ("Note B") made
by Trustor in the original principal amount of Fifteen Million and 00/100
Dollars ($15,000,000.00) payable to the order of Beneficiary (hereafter referred
to collectively as the "Notes"), including without limitation any prepayment
premium(s) due thereunder, together with any and all renewals, extensions,
substitutions, modifications and consolidations of the Notes and the
indebtedness evidenced thereby (the "Loans");
(2) any and all advances made by Beneficiary as hereafter provided:
(a) to protect or preserve the Property or the lien created hereby on the
Property; (b) for insurance premiums; (c) for real estate and personal property
and other taxes and assessments, and any and all other charges, expenses,
utility charges, payments, claims, mechanics' or material suppliers' liens or
assessments of any nature that at any time prior to or after the execution of
the Loan Documents (as defined in subsection (3) of this Section) may be
assessed, levied, imposed, or become a lien upon the Property, or the rent or
income received therefrom, or any use or occupancy thereof (collectively,
"Impositions"); (d) for performance of any of Trustor's obligations hereunder,
or for any other purpose provided herein (whether or not the original Trustor
remains the owner of the Property at the time of such advances); provided,
however, nothing herein shall be deemed to obligate Beneficiary to make any such
advances;
(3) any and all obligations and covenants of Trustor under the
Notes, this Deed of Trust or any other document, instrument or agreement now or
hereafter evidencing, securing or otherwise relating to the Notes secured
hereby, as amended or modified from time to time, including without limitation
that certain Borrower's Closing Certificate of even date herewith and those two
(2) certain Agricultural Mortgage Loan Application/Commitments between Trustor
and AEGON USA Realty Advisors, Inc., both executed by Trustor on October 2,
1998, and subsequently assigned to Beneficiary (hereafter referred to
collectively as the "Loan Documents"), and all costs of collection, including
reasonable attorneys' fees, but excluding however, that certain Environmental
Indemnity Agreement executed by Trustor for the benefit of Beneficiary of even
date herewith, which is not secured by the lien of this Deed of Trust (the
"Environmental Indemnity Agreement").
ARTICLE 1
COVENANTS, REPRESENTATIONS AND WARRANTIES
Trustor hereby further covenants and agrees with and for the benefit of
Beneficiary as follows.
1.1 PAYMENT OF INDEBTEDNESS, COVENANTS AND WARRANTIES.
1.1.A. Trustor will pay each of the Notes according to the terms
thereof and will pay all other Secured Obligations, with interest thereon, as
provided in the Loan Documents, at the time and in the manner provided under the
Notes, this Deed of Trust, any instrument evidencing a future advance and any
other Loan Document, and Trustor will otherwise perform, comply with and abide
by each and every stipulation, agreement, condition and covenant contained in
the Notes, this Deed of Trust and every other Loan Document and any and all
leases and other agreements with respect to the Property to which Trustor is a
party.
1.1.B. Trustor shall protect, indemnify and hold Beneficiary
harmless from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs, and expenses (including, without limitation,
attorneys' fees and court costs) imposed upon or incurred by Beneficiary by
reason of this Deed of Trust or in exercising, performing, enforcing, or
protecting Beneficiary's rights, title, or interests set forth herein, and any
claim or demand whatsoever which may be asserted against Beneficiary by reason
of any alleged obligation or undertaking to be performed or discharged by
Beneficiary under this Deed of Trust and such amounts paid by Beneficiary shall
become part of the Secured Obligations. In addition, Trustor covenants and
agrees that it shall:
(1) not initiate, join in or consent to any change in any
covenant, easement, or other public or private restriction, limiting or defining
the uses which may be made of the Property, or any part thereof, without
Beneficiary's prior written consent;
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(2) not take any action or fail to take any action which
will result in any Imposition affecting the Property, Trustor, either of the
Notes or this Deed of Trust; and
(3) indemnify and hold Beneficiary harmless from any and
all costs, damages or liabilities resulting from, arising out of, or related to,
the creation or existence of any liens, Impositions or encumbrances by or
against Trustor or Trustor's predecessor in title, or the Property.
1.1.C. Trustor covenants that Trustor is lawfully seized and
possessed of the Property and has good right to convey the lien of this Deed of
Trust as an encumbrance against the Property, that the Property is unencumbered
except for those matters expressly approved by Beneficiary in writing, liens in
favor of Beneficiary, leases permitted hereunder and rights of lessors under
leases of equipment constituting a part of the Property (hereafter referred to
as the "Permitted Exceptions"), and that Trustor does warrant and will forever
defend the title thereto against the claims of all persons whomsoever, except as
to the Permitted Exceptions.
1.2 TAXES, LIENS AND OTHER CHARGES.
1.2.A. In the event of the passage of any law, order, rule or
regulation subsequent to the date hereof, in any manner changing or modifying
the taxation of deeds of trust or security agreements so as to affect
Beneficiary adversely, Trustor shall promptly pay any such tax on or before the
due date thereof.
1.2.B. Trustor shall pay before the due date thereof, all
Impositions and all license fees, permit fees, liens, judgments, assessments and
all other expenses, fees and charges of every character whatsoever now or
hereafter levied, assessed, or imposed on the Property or Trustor, or any part
thereof, or any estate, right, or interest therein, or upon the rents, issues,
income or profits thereof, or relating to the Property. Trustor shall submit to
Beneficiary such evidence of the due and punctual payment of all real estate
taxes and assessments assessed against the Property or any portion thereof, as
Beneficiary may require. In addition, within ten (10) days following request by
Beneficiary, Trustor shall submit to Beneficiary evidence of the due and
punctual payment of all other such Impositions, levies, license fees, permit
fees, judgments or assessments now or hereafter levied, assessed or imposed on
the Property or Trustor as may be identified in such request.
1.2.C. Trustor shall not suffer any mechanic's, materialmen's,
laborer's, statutory or other lien to be created, filed of record, or to remain
outstanding upon all or any part of the Property.
1.2.D. Notwithstanding the provisions of Sections 1.2.A.,B. and
C., above, Trustor may, at its expense, contest the validity or application of
any Impositions or license fees, permit fees, liens, judgments or assessments by
appropriate legal proceedings promptly initiated and diligently conducted in
good faith, provided that (a) Beneficiary is reasonably satisfied that the
priority of this Deed of Trust shall be maintained and neither the Property nor
any part thereof or interest therein will be in danger of being sold, forfeited,
or lost as a result of such contest, and (b) Trustor shall have posted a bond or
furnished such other security as may be reasonably required from time to time by
Beneficiary.
1.3 INSURANCE.
1.3.A. Trustor shall, at its expense, procure for, deliver to
and maintain for the benefit of Beneficiary, until the Secured Obligations are
fully repaid, original fully paid insurance policies (or if such policy is a
"blanket" policy which includes land, improvements, personalty, or income other
than the Property or income derived from the Property, a certified copy of such
blanket policy and an original certificate from the insurer evidencing the
allocation of coverage to the Property and the income from the Property),
providing the following types of insurance relating to the Property, issued by
insurance companies with a Best's rating of "A," VIII, or better, without regard
to the rating of the insurance company's parent or subsidiary, in such amounts,
in such form and content and with such expiration dates as are approved by
Beneficiary:
(1) broad form property insurance against all risks of
physical loss, including, without limitation, fire, extended coverage,
vandalism, malicious mischief, earthquake, flood and collapse, with waiver of
subrogation, insuring to the extent of the full replacement cost of all
improvements on the Property, without deduction for depreciation, either without
co-insurance requirements or with agreed amount endorsement attached;
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(2) public liability insurance covering all liabilities
or risks incident to the ownership, possession, occupancy and operation of the
Property having limits of not less than $1,000,000 each accident, $1,000,000 per
occurrence, and $500,000 property damage, subject to Beneficiary's right to
require increased amounts of coverage; and
(3) such other insurance with respect to the Property or
any replacements or substitutions therefor, in such amounts as may from time to
time be required by Beneficiary, against other insurable casualties which at the
time are commonly insured against by prudent operators of properties of similar
type or character.
Such insurance policies shall (i) provide that the insurer shall give
Beneficiary at least thirty (30) days' prior written notice of cancellation,
amendment, non-renewal or termination, in the manner provided for the giving of
notices under Section 5.5 below, (ii) provide that no act or omission by the
insured shall invalidate or diminish the insurance provided to Beneficiary,
(iii) except for liability policies, contain a mortgagee clause naming
Beneficiary as an additional insured and loss payee in a form satisfactory to
Beneficiary, and (iv) provide for a deductible no greater than $100,000.00, with
the exception of earthquake insurance which shall provide for a deductible of no
greater than ten percent (10%) of damages.
1.3.B. Subject to Beneficiary's prior written consent, not to be
unreasonably withheld, delayed or conditioned, Trustor is hereby authorized and
empowered to adjust, compromise or settle any loss under any insurance policies
maintained pursuant hereto. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Beneficiary, instead of
to Trustor and Beneficiary jointly. In the event any insurance company fails to
disburse directly and solely to Beneficiary but disburses instead either solely
to Trustor or to Trustor and Beneficiary jointly, Trustor agrees immediately to
endorse and transfer such proceeds to Beneficiary. After deducting from said
insurance proceeds all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, Beneficiary may apply
the net proceeds or any part thereof, at its sole option (1) to a prepayment of
either of the Notes without prepayment premium or penalty, (2) to the repair
and/or restoration of the Property, and/or (3) for any other purposes or objects
for which Beneficiary is entitled to advance funds under this Deed of Trust, all
without reducing or impairing the lien of this Deed of Trust or any obligations
secured hereby. Any balance of such proceeds then remaining shall be paid to
Trustor or any other person or entity lawfully entitled thereto. Notwithstanding
the foregoing, insurance proceeds shall be made available to Trustor for the
repair and/or restoration of the Property upon the following conditions: (i) the
insurance proceeds, together with the funds, if any, to be deposited by Trustor
with Beneficiary are sufficient to restore the Property, (ii) the Property is
capable of being restored, as reasonably determined by Beneficiary, (iii)
applicable zoning and planning laws and ordinances permit the restoration of the
Property, (iv) there is no Event of Default under any of the Loan Documents, or
an event with the passage of time or the giving of notice or both shall
constitute an Event of Default, and (v) following restoration, both Trustor and
the Property will be in compliance with all covenants set forth in this Deed of
Trust.
1.3.C. At least five (5) days prior to the expiration date of
each policy maintained pursuant to this Section 1.3, a renewal or replacement
thereof satisfactory to Beneficiary shall be delivered to Beneficiary. Trustor
shall provide to Beneficiary on an annual basis, and at such other times as
Beneficiary may request from time to time, a summary of the status, renewal,
replacement and payment of premiums for all insurance required hereunder. The
delivery of any insurance policies hereunder shall constitute an assignment of
all unearned premiums as further security hereunder.
1.3.D. On all property policies and coverage's, Beneficiary
shall be named as "first mortgagee" under a standard mortgagee clause, and
referred to verbatim as follows: Monumental Life Insurance Company, and its
successors, assigns and affiliates, as their interest may appear; c/o AEGON USA
Realty Advisors, Inc., Mortgage Loan Dept.; 4333 Edgewood Road, NE; Cedar
Rapids, Iowa; 52499-5443.
1.4 CONDEMNATION.
1.4.A. If all or any portion of the Property shall be damaged or
taken through condemnation (which term when used in this Deed of Trust shall
include any damage or taking by any governmental or quasi-governmental authority
and any transfer or grant by private sale made in anticipation of or in lieu
thereof), either temporarily or permanently, then all the Secured Obligations
shall, at the option of Beneficiary, become immediately due and payable without
prepayment premium. Promptly upon learning of the institution or the proposed,
contemplated or threatened institution of any condemnation proceeding, Trustor
shall notify Beneficiary of the pendency of such proceedings, and no settlement
respecting awards in such proceedings shall be effected without the consent of
Beneficiary. Beneficiary shall be entitled to receive all compensation, awards,
proceeds and other payments or relief relating to or payable as a result of such
condemnation. Subject to Beneficiary's prior written consent, not to be
unreasonably withheld, delayed or conditioned, Trustor shall be entitled to
commence, appear
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in and prosecute any action or proceeding relating to any condemnation, and to
settle or compromise any claim in connection therewith. All such compensation,
awards, damages, claims, rights of action and proceeds and the right thereto are
hereby assigned by Trustor to Beneficiary.
1.4.B. If Beneficiary does not elect to declare all the Secured
Obligations immediately due and payable, as provided in Section 1.4.A. above,
then Beneficiary, after deducting from said condemnation proceeds all of its
expenses incurred in the collection and administration of such sums, including,
without limitation, attorneys' fees, may apply the net proceeds or any part
thereof, at its option: (1) to a prepayment of either of the Notes, without
prepayment premium, (2) to the repair and/or restoration of the Property upon
such conditions as Beneficiary may determine, and/or (3) for any other purposes
or objects for which Beneficiary is entitled to advance funds under this Deed of
Trust, all without reducing or impairing the lien of this Deed of Trust or any
obligations secured hereby. Any balance of such moneys then remaining shall be
paid to Trustor or any other person or entity lawfully entitled thereto.
1.4.C. Notwithstanding the provisions of Section 1.4.A., above,
condemnation awards shall be made available to Trustor for the restoration of
the Property upon the following conditions: (i) the award, together with the
funds, if any, to be deposited by Trustor with Beneficiary are sufficient to
restore the Property; (ii) the Property is capable of being restored as
reasonably determined by Beneficiary, (iii) applicable zoning and planning laws
and ordinances permit the restoration of the Property, (iv) there is no Event of
Default under any of the Loan Documents, or an event with the passage of time or
the giving of notice or both shall constitute an Event of Default, and (v)
following restoration, both Trustor and the Property will be in compliance with
all covenants set forth in this Deed of Trust, and (vi) the remaining Property
shall comply with all applicable land use, zoning and subdivision requirements.
1.4.D. Beneficiary shall not be obligated to see to the proper
application of any amount paid over to Trustor. If, prior to the receipt by
Beneficiary of such award or proceeds, the Property shall have been sold on
foreclosure of this Deed of Trust, or as a result of other legal action relating
to this Deed of Trust or the Notes, Beneficiary shall have the right to receive
such award or proceeds to the extent of any unpaid Secured Obligations following
such sale, with legal interest thereon, whether or not a deficiency judgment on
this Deed of Trust or either of the Notes shall have been sought or recovered,
and to the extent of attorneys' fees, costs and disbursements incurred by
Beneficiary in connection with the collection of such award or proceeds.
1.5 CARE OF PROPERTY.
1.5.A. Trustor shall keep the Property, including without
limitation all permanent plantings, drainage and wastewater facilities, roads,
buildings, fixtures, appurtenances, equipment and improvements of any kind now
or hereafter erected on or used in connection with the Land or any part thereof,
in good condition and repair, shall not commit or suffer any waste. Trustor
shall also replace roofs, parking lots, mechanical systems and other elements of
the Property requiring periodic replacement. Trustor shall not do or suffer to
be done anything which would or could increase the risk of fire or other hazard
to the Property or any part thereof or which would or could result in the
cancellation of any insurance policy carried with respect to the Property.
1.5.B. Trustor shall not cause or permit the removal,
demolishment or material alteration, enlargement or change to any structure or
other improvement located on the Land without Beneficiary's prior written
consent. Trustor shall not cause or permit the construction of any new
improvements on the Land without Beneficiary's prior written consent. Trustor
shall not cause or permit the removal of any fixture, chattel or part of the
Property from the Land without Beneficiary's prior written consent, except where
appropriate replacements are immediately made which are free of any lien,
security interest or claim superior to that of this Deed of Trust and which have
a value and utility at least equal to the value and utility of the fixture or
chattel removed, which replacement shall, without further action, become subject
to the lien of this Deed of Trust; provided, however, that the foregoing
restriction shall not prohibit Trustor from removing or disposing of obsolete,
dilapidated and out-of-service equipment previously removed from the operating
facilities located on the Property (and replaced as indicated above) and stored
on the Property in the area referred to by the Trustor as its "boneyard" area.
1.5.C. Trustor shall ensure that all operations of the Property
conform to all applicable standards of the U.S. Food and Drug Administration and
the U.S. Department of Agriculture. Trustor shall ensure that all wastewater or
other discharges to the environment are conducted in conformance with current
industry practices and all current regulatory requirements. Trustor shall use
the Property solely as a fruit and vegetable processing, packaging and cold
storage facility and directly related purposes.
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1.5.D. Without otherwise limiting the Trustor's covenant not to
commit or permit waste, Trustor shall not (1) remove or permit the removal of
sand or gravel, (2) use or permit the use of the Property for barrow pit
operations, (3) use or permit the use of the Property as a land fill or dump,
(4) burn or bury or permit the storage, burning or burying of any material or
product which will result in contamination of the Property or the groundwater or
which will require the issuance of a permit by the Environmental Protection
Agency or any state or local government agency governing the issuance of
hazardous or toxic waste permits, (5) request or permit a change in the zoning
or land use classification in effect as of the date of this Deed of Trust.
1.5.E. Beneficiary or its representative is hereby authorized to
enter upon the Land at all reasonable times for purposes of inspecting the
Property and for the purpose of performing any of the acts Beneficiary is
authorized to perform hereunder or under the terms of any of the Loan Documents.
1.5.F. Trustor will perform and comply promptly with, and cause
the Property to be maintained, used and operated in accordance with, any and all
(1) present and future laws, ordinances, rules, and regulations, including
without limitation, all applicable federal, state and local laws pertaining to
air and water quality, hazardous waste, waste disposal, air emissions and other
environmental matters, all zoning and other land use matters, and rules,
regulations and ordinances of the United States Environmental Protection Agency
and all other applicable federal, state and local agencies and bureaus; and (2)
policies of insurance at any time in force with respect to the Property. Trustor
shall maintain in force and in good standing all licenses, permits or contracts
necessary, or reasonably considered by Beneficiary to be desirable for the
contemplated operation and maintenance of the Property. If Trustor receives any
notice that Trustor or the Property is in default under or is not in compliance
with any of the foregoing, or notice of any proceeding initiated under or with
respect to any of the foregoing, Trustor will promptly furnish a copy of such
notice to Beneficiary.
1.5.G. If all or any part of the Property shall be damaged by
fire or other casualty, at a cost of restoration in excess of $250,000, Trustor
shall give immediate written notice thereof to Beneficiary and shall promptly
restore the Property to the equivalent of its original condition; and if a part
of the Property shall be damaged through condemnation, Trustor shall promptly
restore, repair or alter the remaining portions of the Property in a manner
satisfactory to Beneficiary. In the event all or any portion of the Property
shall be damaged or destroyed by fire or other casualty or by condemnation,
Trustor shall promptly deposit with Beneficiary a sum equal to the amount by
which the estimated cost of the restoration of the Property, as determined by
Beneficiary, exceeds the actual net insurance or condemnation proceeds received
by Beneficiary in connection with such damage or destruction, or with
Beneficiary's consent, provide such other assurance or security so as to protect
the integrity of the loan to value ratio upon which the Loans were underwritten
and secure the Trustor's obligation to restore the Property, as may be
acceptable to Beneficiary in its sole and absolute discretion.
1.6 REPRESENTATIONS AND WARRANTIES. Trustor, for itself and its
successors and assigns, represents and warrants to and for the benefit of
Beneficiary as follows.
1.6.A. Trustor has the lawful right and authority to grant,
assign, transfer and/or mortgage its interest in the Property and each portion
thereof as provided in this Deed of Trust.
1.6.B. Neither Trustor's execution and delivery of the Notes,
this Deed of Trust or any other of the Loan Documents, nor the taking of any
action in compliance with any of the foregoing will (1) contravene, cause a
breach of, or constitute a default under any contract or agreement to which
Trustor is a party, or (2) violate or contravene any law, order, decree, rule or
regulation to which Trustor is subject.
1.6.C. The Property and each portion thereof is free from liens,
encumbrances, possessory interests and adverse claims of title other than the
Permitted Exceptions.
1.6.D. All reports, certificates, affidavits, statements,
financial information and other data provided by Trustor to Beneficiary in
connection with the Loans are true and correct in all material respects and do
not omit any material information.
1.6.E. The Property and each portion thereof, and Trustor's
actual and intended use of the Property and each portion thereof, complies with
all applicable covenants, conditions and restrictions, zoning ordinances,
subdivided lands
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laws, building codes, applicable public health and safety and environmental laws
and regulations, and all other ordinances, orders or requirements issued by any
local, state or federal authorities which have or claim jurisdiction over the
Property.
1.6.F. No pending or threatened judicial or administrative
actions, suits or proceedings affecting Trustor or the Property or any portion
thereof would, if determined adversely either to Trustor or the Property,
materially impair either the Property or Trustor's ability to perform the
covenants or obligations required to be performed under the Notes, this Deed of
Trust or any of the other Loan Documents.
1.6.G. Trustor declares and certifies, under penalty of perjury,
that: (1) the Taxpayer Identification Number of Trustor is 74-1264568; (2) the
business mailing address of Trustor is as set forth on page 1 hereof; (3)
Trustor is not a "foreign person" within the meaning of Sections 1445 and 7701
of the Internal Revenue Code of 1986, as amended (the "Code"); and (4) Trustor
understands that the information and certification contained in this Section
1.6.G. may be disclosed to the Internal Revenue Service and that any false
statement contained herein could be punished by fine, imprisonment or both.
1.6.H. Trustor agrees (1) to provide Beneficiary with a new
certification containing the provisions of Section 1.6.G. above immediately upon
any change in such information, and (2) upon any transfer which is permitted by
the terms of this Deed of Trust, to cause such transferee to execute and deliver
to Beneficiary a certificate concerning the non-foreign status of such
transferee substantially in the form of Section 1.6.G. above
1.6.I. Trustor has taken, and shall continue to take, all steps
required to perfect and maintain the Water Rights in all respect (including, but
not limited to, the point of withdrawal, rate of diversion, the duty, the season
of use, the nature of use and the lands to which the right is appurtenant).
1.7 SUBROGATION. To the full extent of the Secured Obligations,
Beneficiary is hereby subrogated to the liens, claims and demands, and to the
rights of the owners and holders of each lien, claim, demand and other
encumbrance on the Property which is paid or satisfied, in whole or in part, out
of the proceeds of either of the Loans, and the respective liens, claims,
demands and other encumbrances shall be, and each of them is hereby, preserved
and shall pass to and be held by Beneficiary as additional collateral and
further security for the Secured Obligations, to the same extent they would have
been preserved and would have been passed to and held by Beneficiary had they
been duly and legally assigned, transferred, set over and delivered unto
Beneficiary by assignment, notwithstanding the fact that any instrument
providing public notice of the same may be satisfied and canceled of record.
1.8 TRANSFER OF THE PROPERTY; SECONDARY FINANCING.
1.8.A. The identity and expertise of Trustor were and continue
to be material circumstances upon which Beneficiary has relied in connection
with, and which constitute valuable consideration to Beneficiary for, extending
the Secured Obligations to Trustor, and any change in such identity or expertise
could materially impair or jeopardize the security for the payment and
performance of the Secured Obligations. Trustor covenants and agrees with
Beneficiary, as part of the consideration for extending the Secured Obligations
to Trustor, that without Beneficiary's prior written consent, Trustor shall not,
voluntarily or by operation of law:
(1) sell, contract to sell, transfer, convey, assign or
otherwise hypothecate or dispose of, all or any part of the Property or any
interest therein whether or not as collateral security for any other obligation
of Trustor;
(2) subject to exception for a transfer by an individual
to a revocable trust created by such individual for estate planning purposes and
transfers of title or interest under any will or testament or applicable law of
descent, (a) enter into any transaction of dissolution, merger or consolidation,
(b) acquire any other business or corporation, (c) acquire all or substantially
all of the property or assets of any other person or entity, or (d) sell,
transfer, assign, or otherwise dispose of voting control of more than fifty
percent (50%) of the beneficial interest in the voting common stock and the
profits, losses and capital of Trustor outstanding as of the date of this Deed
of Trust, if the result of any of the foregoing transactions is (i) that Trustor
shall have acquired the assets of any person or entity which are not primarily
used in connection with a business which is agribusiness in nature, or (ii) a
surviving entity which is not primarily in a business which is agribusiness in
nature, (iii) a person other than Trustor being the surviving entity, or (iv)
any person or entity other than James I. Tankersley and his immediate family
members, or entities solely owned or controlled thereby, owning and controlling
more than 50% of the voting common stock and beneficial interests in the
profits, losses and capital of Trustor;
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(3) cause or permit any junior encumbrance or lien to be
placed on the Property or other collateral for the Secured Obligations or upon
more than 50% of the beneficial interest or ownership in Trustor outstanding as
of the date of this Deed of Trust, which encumbrance is not released or
reconveyed within five (5) days written notice by Beneficiary;
(4) transfer, assign, sell, lease, exchange, gift, encumber,
pledge, hypothecate, alienate, grant an option to purchase, or otherwise dispose
of, directly, indirectly or in trust, voluntarily or involuntarily, by operation
of law or otherwise, or enter into a binding agreement to do any of the
foregoing with respect to all or any part of the Water Rights, unless Trustor
shall have demonstrated to Beneficiary's satisfaction, determined in its sole
and absolute discretion and approved in writing prior to the transaction in
question, that adequate replacement or substitute sources of water for the
Property exist and have been procured in such quantities and at such times and
locations as are reasonably satisfactory for the purposes of operating the
Property without interruption and in such quantities, and at such times and
locations as have been historically available to the Property;
(5) enter into or renew any leases, subleases, tenant
contracts, or rental agreements with respect to any portion of the Property for
terms (including any renewal or extension options) in excess of one (1) year.
1.8.B. Any purported transaction in violation of Section 1.8.A. above
shall be void and shall entitle Beneficiary to declare all the Secured
Obligations immediately due and payable without notice or demand. Beneficiary
may give or withhold its consent to any of the foregoing in its sole and
absolute discretion and consent may be conditioned upon payment to Beneficiary
of a fee for processing the request for consent and other administrative costs
incurred in connection therewith, and/or an express written assumption by any
permitted transferee of the Notes and the Loan Documents in form satisfactory to
Beneficiary, and/or an increase in the rate of interest on the unpaid balance of
the Notes to a then current market rate, and/or a change in the term of the
Notes, and/or other changes in the terms of the Loan Documents as Beneficiary
may determine, all of which Trustor hereby agrees are reasonable conditions to
the approval of any such transfer.
1.8.C. Notwithstanding the provisions of Section 1.8.A., above,
Trustor shall be entitled to do the following:
(1) Replace items of equipment constituting a portion of the
Property encumbered hereby; provided that all such replacements or substitutions
shall have a value and utility at least equal to the value and utility of the
equipment removed, and provided that all such replacements or substitutions
shall remain encumbered by the first lien and security interest of this Deed of
Trust. Trustor shall execute all such documents and instruments as may be
required to protect and preserve the first lien priority of this Deed of Trust
with respect to any replacements or substitutions of any portion of the
equipment portion of the Property.
(2) Remove or dispose of obsolete, dilapidated and
out-of-service equipment previously removed from the operating facilities
located on the Property (and replaced as indicated above) and stored on the
Property in the area referred to by the Trustor as its "boneyard" area.
(3) Convert the Trustor from a publicly-traded to a
privately-held corporation, provided that:
(a) upon the completion of any such transaction, James
I. Tankersley and his immediate family members, or entities solely owned or
controlled thereby, shall own and control at least 51% of the voting common
stock and beneficial interests in the profits, losses and capital of Trustor;
(b) Beneficiary is provided at least thirty (30) days
prior written notice of the completion of the conversion transaction together
with copies of related documentation, and the resulting privately-held entity
assumes all liability under the Notes, this Deed of Trust and all other Loan
Documents, and executes such additional documents relating to the Loans and the
Loan Documents as may be required by Beneficiary to protect the enforceability,
priority and underwriting standards of the Loans and the Loan Documents; and
(c) the lien and security interest evidenced by the Loan
Documents shall not be diminished by any such change in the ownership of
Trustor.
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1.8.D. The consent by Beneficiary to any sale, transfer,
conveyance, pledge, encumbrance, assignment, creation of a security interest in
or other hypothecation or disposition of the Property or the beneficial
interests of Trustor shall not be deemed to constitute a novation of the Secured
Obligations or a consent to any further sale, transfer, pledge, encumbrance,
creation of a security interest or other hypothecation or disposition, or to
waive Beneficiary's right, at its option, to exercise its remedies for default,
without notice to or demand upon Trustor or to any other person or entity upon
any such sale, transfer, pledge, encumbrance, creation of a security interest in
or other hypothecation, or disposition to which Beneficiary shall not have
consented.
1.9 LIMIT ON INTEREST. If from any circumstances whatsoever,
fulfillment of any provision of this Deed of Trust, the Notes or any other Loan
Document, at the time performance of such provision becomes due, exceeds the
limit on interest then permitted by any applicable usury statute or any other
applicable law, with regard to obligations of like character and amount, then
Beneficiary may, at its option (a) to the extent permitted under applicable law,
declare the entire Indebtedness secured hereby, including interest and late
charges, if any, and all other sums owing, immediately due and payable, (b)
reduce the obligations to be fulfilled to such limit on interest, or (c) apply
the amount held to be in excess of such limit on interest to the reduction of
the outstanding principal balance of either of the Notes, and not to the payment
of interest, with the same force and effect as though Trustor had specifically
designated such sums to be so applied to principal and Beneficiary had agreed to
accept such extra payment(s) as a premium-free prepayment, so that in no event
shall any exaction be possible under the Notes or this Deed of Trust, that is in
excess of the applicable limit on interest. It is the intention of Trustor and
Beneficiary that the total liability for payments in the nature of interest
shall not exceed the limits imposed by any applicable state or federal interest
rate laws. The provisions of this Section 1.9 shall control every other
provision of this Deed of Trust, and any provision of the Loan Documents in
conflict with this Section 1.9.
1.10 PERFORMANCE BY BENEFICIARY OF DEFAULTS BY TRUSTOR. Trustor
covenants and agrees that, if it shall default in the payment of any tax, lien,
assessment, or charge levied or assessed against the Property; in the payment of
any utility charge, whether public or private; in the payment of any insurance
premium; in the procurement of insurance coverage and the delivery of the
insurance policies required hereunder; or in the performance or observance of
any other covenant, condition or term of this Deed of Trust, then Beneficiary,
at its option, but without obligation and without notice, may pay, perform or
observe the same, and all payments made or costs incurred by Beneficiary in
connection therewith shall be secured hereby and shall be, without demand,
immediately repaid by Trustor to Beneficiary with interest thereon, from the
date such payment is made or expense is incurred by Beneficiary to the date
Beneficiary is reimbursed therefor, at the Default Interest Rate provided in the
Notes. Trustor hereby indemnifies Beneficiary against any and all costs,
liabilities or damages, arising from or in any way related to the performance of
Trustor's obligations by Beneficiary. Notwithstanding the foregoing, Trustor
may, at its expense, contest the validity or application of any of the foregoing
charges, taxes, liens or payments by appropriate legal proceedings promptly
initiated and diligently conducted in good faith, provided that (a) Beneficiary
is reasonably satisfied that the priority of this Deed of Trust shall be
maintained and neither the Property nor any part thereof or interest therein
will be in danger of being sold, forfeited, or lost as a result of such contest,
and (b) if the total liability exposure is in excess of $250,000, Trustor shall
have posted a bond or furnished such other security as may be reasonably
required from time to time by Beneficiary.
1.11 ACCOUNTING AND FINANCIAL INFORMATION. Trustor shall keep and
maintain, or shall cause to be kept and maintained, at Trustor's cost and
expense, proper and accurate books, records and accounts reflecting all items of
expense in connection with the operation of the Property and in connection with
any services, equipment, or furnishings provided in connection with the
operation of the Property. Trustor shall furnish the following statements and
other information to Beneficiary, all of which shall fairly and accurately
present the financial condition of the subject thereof as of the dates thereof
and shall be certified by Trustor's principal financial or accounting officer:
(1) quarterly, within sixty (60) days after the end of each
fiscal quarter, unaudited, compiled financial statements and related
reports; and
(2) annually, within one hundred (120) days after the end of
Trustor's fiscal year, at Trustor's expense, audited annual balance sheets,
profit and loss statements, and all supporting schedules covering the operations
of the Trustor.
From and after an Event of Default, Beneficiary may require that any such
statements shall be audited and/or prepared and certified by an independent
certified public accountant selected or approved by Beneficiary. In the event
that Trustor shall refuse or fail to furnish any statement as aforedescribed, or
in the event such statement shall be inaccurate or false, or in the event of
failure of Trustor to permit Beneficiary or its representatives to inspect the
Property or the said books and records,
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such acts of Trustor shall be a default hereunder and Beneficiary may proceed in
accordance with the rights and remedies afforded Beneficiary under the
provisions hereof.
1.12 FINANCIAL COVENANTS.
1.12.A. Definitions. For purposes of this Section 1.12, the
following terms shall be defined as set forth below:
(1) "Assets" shall mean anything owned or controlled by
Trustor or any right or interest therein of Trustor.
(2) "Consolidated Basis" shall mean the assets,
liabilities and equities of the Trustor and any subsidiary shall be deemed to
be one for accounting purposes in calculating the various ratios and
requirements used herein.
(3) "Consolidated Net Income" shall mean "Net Income" as
defined by Generally Accepted Accounting Principles determined on a
Consolidated Basis.
(4) "Consolidated Tangible Net Worth" shall mean all
Tangible Assets less all Liabilities of Trustor, determined on a Consolidated
Basis.
(5) "Current Assets" shall mean Assets owned by Trustor
which normally will be converted into cash within a year.
(6) "Current Liabilities" shall mean Liabilities of
Trustor which must be paid or satisfied within a year, excluding any deferred
taxes.
(7) "Current Ratio" shall mean the ratio of Current
Assets to Current Liabilities.
(8) "Funded Debt" shall mean any loan or other obligation
of the Trustor maturing within a period in excess of one year, excluding
capitalized leases and revolving lines of credit.
(9) "Liabilities" shall mean any debt or obligation of
Trustor.
(10) "Net Tangible Assets" shall mean Tangible Assets
less all Current Liabilities.
(11) "Net Worth" shall mean all Assets less all
Liabilities of Trustor.
(12) "Tangible Assets" shall mean all Assets except
assets such as goodwill, patents and similar assets of an intangible nature.
1.12.B. Specific Covenants. All of the following covenants
shall be satisfied at all times during the term of the Loans:
(1) Consolidated Current Assets less Consolidated Current
Liabilities shall not, on a quarterly and fiscal year end basis, be less than
Ten Million Dollars ($10,000,000.00).
(2) As of the date of recordation of this Deed of Trust,
Consolidated Tangible Net Worth shall not, on a quarterly and fiscal year end
basis, be less than Twenty-Seven Million Five Hundred Thousand Dollars
($27,500,000.00) (the "Consolidated Net Worth Minimum"). During each fiscal year
thereafter, the Consolidated Net Worth Minimum shall increase (but not decrease)
by 25% of the previous fiscal year's Consolidated Net Income.
(3) The ratio of Funded Debt to Net Worth shall not
exceed 2.15 to 1, as determined as of the end of each fiscal year.
(4) Current year payments on operating leases with terms
in excess of one (1) year shall not, as of the end of any fiscal year, exceed
Four Million Five Hundred Thousand Dollars ($4,500,000.00).
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1.13 ADDITIONAL COVENANTS.
1.13.A. All transactions between Trustor and any of its
affiliates shall be based on arms' length dealing in the ordinary course of
business.
1.13.B. Trustor shall not, in the event Trustor is or becomes a
subsidiary or affiliate of another company, or creates a subsidiary or affiliate
of its own, make contributions, dividends, loans or other cash advances directly
or indirectly, to such parent, subsidiary or affiliate if either of the Loans
are in default or if any interest and/or principal payments currently due and
payable are outstanding, or if Trustor will not be able to make any payments on
either of the Loans during the following twelve (12) months.
1.14 LOAN PURPOSE. Trustor hereby covenants, represents and
warrants that the loan secured by this Deed of Trust has been incurred and made
solely for agricultural business purposes, such covenant and agreement having
been made to induce Beneficiary to make said loan; and the proceeds of said loan
are being used entirely for such agricultural business purposes.
1.15 CONSENT REQUIRED FOR INCLUSION OF PROPERTY IN IMPROVEMENT
DISTRICTS. Trustor hereby covenants, represents and warrants that it will not
create or initiate, vote for, or in any other manner join in or consent by
affirmative, voluntary action to the creation of, or the inclusion of the
Property or any part thereof within the boundaries of any irrigation, levee,
drainage or other improvement district (except school or road), under which any
such district has, or will have, the power to issue bonds or other evidences of
indebtedness and/or the power to make assessments against the Property, without
the written consent of Beneficiary.
ARTICLE 2
ASSIGNMENT OF RENTS AND PROCEEDS, LEASES, AND CONTRACTS
2.1 ASSIGNMENT OF RENTS AND PROCEEDS AND LEASES. In connection
with the Loans, Trustor hereby absolutely, presently and irrevocably assigns,
grants, transfers, and conveys to Beneficiary, its successors and assigns, all
of Trustor's right, title, and interest in, to, and under all leases, subleases,
tenant contracts, rental agreements, whether written or oral, now or hereafter
affecting all or any part of the Property or Trustor's use thereof, and any
agreement for the use or occupancy of all or any part of said Property which may
have been made heretofore or which may be made hereafter, including any and all
extensions, renewals, and modifications of the foregoing and guaranties of the
performance or obligations of any tenants thereunder, and all other arrangements
of any sort resulting in the payment of money to Trustor or in Trustor becoming
entitled to the payment of money for the use of the Property or any part thereof
whether such user or occupier is tenant, invitee, or licensee (all of the
foregoing hereafter referred to collectively as "Leases" and individually as a
"Lease", and said tenants, invitees, and licensees are hereafter referred to
collectively as "Tenants" and individually as "Tenant" as the context requires),
which Leases cover all or portions of the Property; together with all of
Trustor's right, title, and interest in and to all income, rents, issues,
royalties, profits, rights and benefits and all Tenants' security and other
similar deposits derived with respect to the Leases and with respect to the
Property, (hereafter collectively referred to as "Rents and Proceeds"), and the
right, without taking possession of the Real Property, to collect the same as
they become due and to apply such Rents and Proceeds to the Secured Obligations.
It is the intent of Trustor and Beneficiary to establish an absolute transfer
and assignment of all of the Leases and the Rents and Proceeds to Beneficiary in
accordance with California Civil Code Section 2938.
2.2 ASSIGNMENT OF CONTRACTS. In connection with the Loan, Trustor
hereby absolutely, presently and irrevocably assigns, grants, transfers, and
conveys to Beneficiary, its successors and assigns, all of Trustor's right,
title, and interest in, to, and under all management contracts, construction
contracts, insurance policies, and other contracts, licenses and permits,
whether written or oral, now or hereafter affecting all or any part of the
Property or Trustor's use thereof, which may have been made heretofore or which
may be made hereafter, including any and all extensions, renewals, and
modifications of the foregoing and guaranties of the performance or obligations
of any obligors thereunder, excluding, however, any contracts for the sales of
products produced on the Property (all of the foregoing hereafter referred to
collectively as the "Contracts" and individually as a "Contract" as the context
requires); together with all of Trustor's right, title, and interest in and to
all income, issues, royalties, profits, rights and benefits derived with respect
to the Contracts and with respect to the Property, and the right to collect the
same as they become due. The foregoing assignment encompasses the right of
Trustor to (a) terminate any of the
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Contracts, (b) perform or compel performance and otherwise exercise all remedies
under the Contracts, and (c) collect and receive all sums which may become due
Trustor or which Trustor may now or shall hereafter become entitled to demand or
claim, under the Contracts.
2.3 DISCLAIMER. Neither the assignments set forth in Sections 2.1
and 2.2 above nor Beneficiary's exercise of its rights thereunder shall: (a)
make Beneficiary a "mortgagee-in-possession" or otherwise responsible for the
operations of and on the Property; or (b) be construed as Beneficiary's
affirmation of any Lease or Contract, Beneficiary's assumption of any obligation
or responsibility for the nonperformance by Trustor under any Lease or Contract,
or Beneficiary's subordination of the lien of this Deed of Trust to any such
Lease or Contract.
2.4 REPRESENTATIONS, WARRANTIES AND COVENANTS. Trustor hereby
represents, warrants, and covenants as follows.
2.4.A. Trustor is the sole holder of the landlord's interest
under the Leases, is entitled to receive the Rents and Proceeds from the Leases
and from the Property, and has the full right to sell, assign, transfer, and set
over the same and to grant to and confer upon Beneficiary the rights, interests,
powers, and authorities herein granted and conferred.
2.4.B. Trustor is the sole holder of the Contracts, is entitled
to all the benefits of the Contracts, and has the full right to sell, assign,
transfer and set over the same and to grant and confer upon Beneficiary the
rights, interests, powers, and authorities herein granted and conferred.
2.4.C. Trustor has made no pledge or assignment of the Leases,
Rents and Proceeds, or Contracts prior to the date hereof, and Trustor shall
not, after the date hereof, make or permit any such pledge or assignment.
2.4.D. Trustor shall provide Beneficiary with a fully-executed
original counterpart of each Lease, amendment, modification or alteration
thereto. Trustor shall authorize and direct, and does hereby authorize and
direct, each and every present and future Tenant of the whole or any part of the
Property to pay all rental to Beneficiary from and after the date of receipt of
written demand from Beneficiary to do so.
2.5 LICENSE. Although this Deed of Trust constitutes an absolute,
present and current assignment of all Rents and Proceeds, as long as no Event of
Default as defined in Section 4.1 below, on the part of Trustor shall have
occurred, Beneficiary shall not demand that Rents and Proceeds be paid directly
to Beneficiary, and Trustor shall have a license to collect, but not more than
one (l) year prior to the due date thereof, all such Rent and Proceeds
(including, without limitation, all rental payments under the Leases).
ARTICLE 3
SECURITY AGREEMENT AND FIXTURE FILING
3.1 GRANT. As additional security for the Secured Obligations,
Trustor hereby grants to Beneficiary a security interest in and to all Trustor's
right, title and interest now owned or hereafter acquired in and to the
following property, hereinafter referred to collectively as the "Personal
Property":
(a) all fixtures, equipment, apparatus, machinery and other
property of the type and nature included within the definition of Improvements
and Fixtures in Section A(2) above to the extent, if any, such items are
characterized for any purpose as personal property (rather than as improvements
and/or fixtures so related to the Land that an interest therein arises under
applicable law);
(b) all Water Rights (as defined in Section A(6) above) now or
hereafter associated with the Land (to the extent, if any, such rights are not
deemed to be interests in real property);
(c) all Leases (as defined in Section 2.1 above) and all Contracts
(as defined in Section 2.2 above) and any guaranties thereof;
(d) all causes of action and recoveries now or hereafter existing
for any loss or diminution in value of the Land or any of the collateral
described herein;
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(e) all rents, issues, profits, insurance proceeds and
condemnation awards or compensation, development rights, easement rights,
agreements, licenses, permits, governmental authorizations and all other
contract rights and general intangibles arising out of or incident to the
ownership, development, management or operation of the Land or the collateral
described herein, and all accounts holding or constituting cash proceeds of any
of the collateral described herein; and
(f) all additions to, and substitutions, renewals, replacements,
products and proceeds of, the foregoing.
Notwithstanding any inference to the contrary set forth above or
elsewhere in this Deed of Trust, "Personal Property" does not include, and the
security interest granted herein does not encumber, Trustor's right, title and
interest in and to accounts receivable, inventory, rolling stock, tradenames,
brands, supplies or the products or proceeds thereof.
3.2 SECURITY AGREEMENT. This Deed of Trust is hereby made and
declared to be a security agreement encumbering each and every item of Personal
Property described in Section 3.1 above in accordance with the Uniform
Commercial Code as enacted in the State of California (the "UCC"). Upon request
by Beneficiary, at any time and from time to time, a financing statement or
statements perfecting the lien of this security agreement as encumbering the
Personal Property shall be executed by Trustor and delivered to Beneficiary for
filing with the California Secretary of State. The security interest granted
herein shall attach as soon as Trustor obtains any interest in any of the
Personal Property and before the Personal Property becomes fixtures or before
the Personal Property is installed or affixed to other collateral for the
benefit of Beneficiary under this Deed of Trust.
3.3 FIXTURE FILING. Some of the items of property described herein
are goods that are or are to become fixtures related to the real estate
described herein, and it is intended that, as to those goods, this Deed of Trust
and Security Agreement shall be effective as a financing statement recorded as a
fixture filing from the date of its recording in the real estate records of the
county in which the Land is located. Information concerning the security
interest created by this instrument may be obtained from the Beneficiary, as
"Secured Party," or Trustor, as "Debtor," at their respective mailing addresses
set out in Section 5.5 below. Trustor warrants that (a) Trustor's (that is,
"Debtor's") name, identity, and principal place of business are as referred to
in the first paragraph of this Deed of Trust, (b) each Trustor (that is,
"Debtor") has been using or operating under said name and identity without
change for at least five (5) years; and (c) the location of all tangible
collateral is upon the Land. Trustor covenants and agrees that Trustor will
furnish Beneficiary with notice of any change in the matters addressed by
clauses (a) or (b) of this Section 3.3 within thirty (30) days of the effective
date of any such change, and Trustor will promptly execute any financing
statements or other instruments deemed necessary by Beneficiary to prevent any
filed financing statement from becoming misleading or losing its perfected
status.
3.4 REPRESENTATIONS, WARRANTIES AND COVENANTS. Trustor hereby
represents, warrants, and covenants as follows.
3.4.A. Without the prior written consent of Beneficiary and
other than as set forth in Section 1.8 above, Trustor will not remove or permit
to be removed from the Real Property, any of the Personal Property unless the
same is replaced immediately with unencumbered collateral of a quality and value
equal or superior to that which it replaces. All such replacements, renewals and
additions shall become and be immediately subject to the security interest of
this Deed of Trust and be covered thereby. Trustor warrants and represents that
all Personal Property now is, and that all replacements thereof, substitutions
therefor or additions thereto will be, free and clear of liens, encumbrances or
security interests of others, except as to the Permitted Exceptions. The
security interest held by Beneficiary shall cover cash and non-cash proceeds of
the Personal Property
3.4.B. All of the Property is and shall be owned by Trustor, and
is not and shall not be the subject matter of any lease or other instrument,
agreement or transaction whereby the ownership or beneficial interest thereof or
therein shall be held by any person or entity other than Trustor, except to the
extent Beneficiary consents in writing to any lease of any of such property,
which consent may be withheld or delayed in Beneficiary's sole discretion.
Trustor shall not create or cause to be created any security interest covering
any of the Personal Property, other than (1) the security interest created
herein in favor of Beneficiary, (2) the rights of Tenants lawfully occupying the
Property pursuant to Leases approved by Beneficiary, or (3) the Permitted
Exceptions.
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ARTICLE 4
EVENTS OF DEFAULT; REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an "Event of Default" hereunder:
(a) the failure by Trustor to pay, or cause to be paid, any
installment of principal or interest under either of the Notes or other
indebtedness secured by this Deed of Trust, within ten (10) days from the date
when due and payable;
(b) the failure by Trustor to pay, or cause to be paid, the entire
amount of the Secured Obligations upon the maturity of either of the Loans by
acceleration or by lapse of time;
(c) the failure by Trustor to pay, or cause to be paid, within
three (3) business days of notice of the sum due and owing, any other sum that
may be due and payable under this Deed of Trust or any of the other Loan
Documents;
(d) any transfer prohibited under Section 1.8 above to which
Beneficiary has not first consented in writing or which has not been cured as
provided in such Section 1.8;
(e) any representation or warranty of Trustor contained in this
Deed of Trust or in any other Loan Document proves to be untrue or misleading in
any material respect as of the time made and Beneficiary, by written notice
delivered to Trustor, declares Trustor to be in default as a result thereof;
(f) any representation or warranty of Trustor contained in this
Deed of Trust or in any other Loan Document becomes untrue or misleading in any
material respect as of any subsequent time prior to the satisfaction in full of
all of the Secured Obligations and Trustor fails to cure such default within ten
(10) days of Beneficiary's written notice of such default delivered to Trustor;
(g) the occurrence of any Event of Default under any of the other
Loan Documents, including without limitation: (i) that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing of even date
herewith, executed by Trustor for the benefit of Beneficiary encumbering
property located in the County of Ventura, State of California, (ii) that
certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing of even date herewith, executed by Trustor for the benefit of Beneficiary
encumbering property located in the County of Marion, State of Oregon, (iii)
that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing of even date herewith, executed by Trustor for the benefit of
Beneficiary, encumbering property located in the County of Millard, State of
Utah;
(h) the failure to cause the release or reconveyance of any
federal or state tax lien filed or recorded against the Property within sixty
(60) calendar days following the filing or recording of such lien and in any
event prior to the initiation of a foreclosure action in connection therewith;
(i) the filing by any Trustor, any principal of any Trustor,
or any endorser or guarantor of the Notes, of a voluntary petition in bankruptcy
pursuant to any federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors (hereafter referred to
collectively as "Bankruptcy Law") or the issuing of an order for relief against
any Trustor, any principal of any Trustor or any endorser or guarantor of either
of the Notes under any such Bankruptcy Law, or the filing by any Trustor, any
principal of any Trustor, or any endorser or guarantor of the Notes of any
petition or answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief for
itself under any present or future Bankruptcy Law;
(j) the seeking of, consenting to, or acquiescing in, by Trustor,
any principal of any Trustor, or any endorser or guarantor of the Notes, the
appointment of any trustee, custodian, receiver, or liquidator of any such
person or of all or any substantial part of the Property or of any or all of the
income, rents, revenues, issues, earnings, profits or income thereof or of any
other property or assets of such person; or the making by any such person of any
general assignment for the benefit of creditors, or the admission in writing by
any such person of its inability to pay its debts generally as they become due,
or the commission by any such person of any act providing grounds for the entry
of an order for relief under any Bankruptcy Law;
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(k) the failure to cause the dismissal of any involuntary
petition in bankruptcy brought against any Trustor, any principal of any Trustor
or any endorser or guarantor of the Notes within sixty (60) calendar days after
the same is filed but in any event prior to the entry of an order, judgment, or
decree approving such petition;
(l) the Property is subjected to actual or threatened waste;
(m) any Trustor, any principal of Trustor, or any endorser or
guarantor of either of the Notes (if a corporation) is liquidated or dissolved
or its charter expires or is revoked, or any Trustor or such endorser or
guarantor (if a partnership or business association) is dissolved or
partitioned, or any Trustor or such endorser or guarantor (if a trust) is
terminated or expires, or any Trustor or such endorser or guarantor (if an
individual) dies;
(n) the failure to cause the dismissal of any claim by any
person or entity in any legal or equitable proceeding challenging the first
priority lien of this Deed of Trust, subject only to the Permitted Exceptions,
within sixty (60) calendar days of the filing of such claim but in any event at
least thirty (30) days prior to the entry of an order, judgment, or decree in
such proceeding;
(o) the default by Trustor under any other loan secured by a lien
on any portion of the Property and the expiration of any applicable notice
and/or cure period;
(p) the failure to cause the dismissal of any action filed under
any federal or state law, which permits forfeiture of Trustor's interest in the
Property, including but not limited to, any indictment under the Racketeer
Influence and Corrupt Organization Act of 1970 (RICO), within sixty (60)
calendar days of the filing of such action but in any event at least thirty (30)
days prior to entry of an order, judgment, or decree in such action;
(q) the failure by Trustor duly to observe or perform any other
term, covenant, condition or agreement of this Deed of Trust immediately upon
written notice of such failure; provided, however, if such failure cannot be
immediately cured, then failure by Trustor to immediately commence the curing
thereof and diligently to prosecute such curing to completion within one hundred
twenty (120) days following receipt of written notice or if Trustor either
ceases to purse the cure of such failure with diligence or repudiates its
obligation to effect such a cure; or
(r) the entry of any judgment against Trustor if the judgment
may materially and adversely affect the value, use or operation of the Property
and results in the entry of an order for relief against Trustor which is not
fully stayed within sixty (60) calendar days after the entry thereof.
4.2 REMEDIES. Upon and after any Event of Default, Beneficiary
and/or Trustee shall be entitled to invoke any and all of the rights and
remedies described below, and any other remedies available to secured creditors
generally. All of such rights and remedies shall be cumulative, and the exercise
of any one or more of them shall not constitute an election of remedies.
4.2.A. Beneficiary, by written notice given to Trustor, may
declare the entire principal of both of the Notes then outstanding (if not then
due and payable), and all accrued and unpaid interest thereon, all prepayment
premiums payable thereunder and all other obligations of Trustor hereunder to be
due and payable immediately, and upon any such declaration the principal of the
Notes and said accrued and unpaid interest and any prepayment premiums shall
become and be immediately due and payable, anything in the Notes or in this Deed
of Trust to the contrary notwithstanding. Notwithstanding the foregoing, with
respect to an Event of Default arising from the failure to pay any amounts
evidenced by the Notes on the dates due thereunder, Beneficiary shall provide
Trustor with five (5) days' written notice prior to acceleration; provided that
no additional notice shall be required upon acceleration, and further provided
that such notice obligation shall not release Trustor from any late charges or
default interest incurred in connection with such Event of Default as more
particularly provided in the Notes.
4.2.B. Trustee or Beneficiary personally, or by its agents,
attorneys or receiver appointed by the court, may enter, take possession of,
manage and operate all or any part of the Property, and in its own name or in
the name of Trustor sue for or otherwise collect any and all rents or other
proceeds of the Property and may also do any and all other things in connection
with those actions that Beneficiary may in its sole discretion consider
necessary and appropriate to protect the security of this Deed of Trust. Such
other things may include: insuring or keeping the Property insured, entering
into, enforcing, modifying or canceling Leases on such terms and conditions as
Beneficiary may consider proper; obtaining and
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evicting Tenants; fixing or modifying rents; completing any unfinished
construction; contracting for and making repairs and alterations; performing
such acts of cultivation or irrigation as necessary to conserve the value of the
Property; and preparing for harvest, harvesting and selling any crops that may
be growing on the Property. Trustor hereby irrevocably constitutes and appoints
Beneficiary as its attorney-in-fact to perform such acts and execute such
documents as Beneficiary in its sole discretion may consider to be appropriate
in connection with taking these measures, including endorsement of Trustor's
name on any instruments. Trustor agrees to deliver to Beneficiary all books and
records pertaining to the Property, including computer-readable memory and any
computer hardware or software necessary to access or process such memory, as may
reasonably be requested by Beneficiary in order to enable Beneficiary to
exercise its rights under this Section. All expenses, including receiver's fees
and attorneys' fees, costs and agent's compensation incurred pursuant to this
Section shall be payable by Trustor to Beneficiary upon demand and shall be
secured by this Deed of Trust. Anything in this Section 4.2 to the contrary
notwithstanding, Beneficiary shall not be obligated to discharge or perform the
duties of a landlord to any Tenant or incur any liability as the result of any
exercise by Beneficiary of its rights under this Deed of Trust, and Beneficiary
shall be liable to account only for the rents, incomes, issues, profits, and
revenues actually received by Beneficiary.
4.2.C. Beneficiary shall have all of the remedies of a secured party
under the UCC, and any other applicable California law or the laws of the State
by which the Notes or any of the other Loan Documents are governed, including
without limitation the right and power to sell, or otherwise dispose of, the
Personal Property, or any part thereof. For that purpose Beneficiary may take
immediate and exclusive possession of the Personal Property, or any part
thereof, and with or without judicial process, enter upon any Land on which the
Personal Property, or any part thereof, may be situated and remove the same
therefrom without being deemed guilty of trespass and without liability for
damages thereby occasioned or, at Beneficiary's option, Trustor shall assemble
the Personal Property and make it available to Beneficiary at the place and at
the time designated in the demand. Beneficiary shall be entitled to hold,
maintain, preserve and prepare the Personal Property for sale. Beneficiary
without removal may render the Personal Property unusable and dispose of the
Personal Property on the Land. To the extent permitted by law, Trustor expressly
waives any notice of sale or other disposition of the Personal Property and any
other right or remedy of Beneficiary existing after default hereunder, and to
the extent any such notice is required and cannot be waived, Trustor agrees that
as it relates to this Section 4.2.C. only, if such notice is marked, postage
prepaid, to Trustor at the above address at least five (5) days before the time
of the sale or disposition, such notice shall be deemed commercially reasonable
and shall fully satisfy any requirement for giving of said notice.
4.2.D. Notwithstanding anything in Section 4.2.C. above which might
otherwise be construed to the contrary, Beneficiary shall have the option of
proceeding as to the Real Property and all or some of the Personal Property in
accordance with its rights and remedies with respect to the real property in
accordance with the unified sale procedures set forth in the UCC.
4.2.E. Beneficiary may bring an action in any court of competent
jurisdiction to foreclose this Deed of Trust or to obtain specific enforcement
of any of the covenants or agreements of this Deed of Trust.
4.2.F. Beneficiary may cause the Property to be sold by Trustee as
permitted by applicable law. Before any such trustee's sale, Beneficiary or
Trustee shall give such notice of default and election to sell as may then be
required by law. When all time periods then legally mandated have expired, and
after such notice of sale as may then be legally required has been given,
Trustee shall sell the Property, either as a whole or in separate parcels, and
in such order as Trustee may determine, at a public auction to be held at the
time and place specified in the notice of sale. Neither Trustee nor Beneficiary
shall have any obligation to make demand on Trustor before any trustee's sale.
At any trustee's sale, Trustee shall sell to the highest bidder at public
auction for cash in lawful money of the United States. Any person, including
Trustor, Trustee or Beneficiary, may purchase at the trustee's sale. Trustee
shall execute and deliver to the purchaser a deed or deeds conveying the
property being sold without any covenant or warranty whatsoever, express or
implied. The recitals in any such deed of any matters or facts, including any
facts bearing upon the regularity or validity of any trustee's sale, shall be
conclusive proof of their truthfulness. Any such deed shall be conclusive
against all persons as to the facts recited in it.
4.2.G. Beneficiary may apply to any court of competent jurisdiction
for the appointment of a receiver or receivers for the Property and of all the
earnings, revenues, rents, issues, profits and income therefrom, ex parte,
without notice, and without regard to the sufficiency or value of any security
for the Secured Obligations or the solvency of any party bound for its payment,
the expenses of which shall be secured by this Deed of Trust.
4.2.H. Beneficiary may take such steps to (1) protect and enforce
its rights whether by action, suit or proceeding in equity or at law for the
specific performance of any covenant, condition or agreement in the Notes, or in
this
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Deed of Trust, or (2) aid in the execution of any power herein granted, (3)
accomplish any foreclosure hereunder, or (4) enforce any other appropriate legal
or equitable remedy or otherwise as Beneficiary shall elect.
4.2.I. No remedy herein conferred upon or reserved to Trustee
or Beneficiary is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by this Deed of Trust to Trustee or
Beneficiary, or to which either of them may be otherwise entitled, may be
exercised from time to time and as often as may be deemed expedient by Trustee
or Beneficiary, and either of them may pursue inconsistent remedies. If there
exists additional security for the performance of the Secured Obligations, the
holder of the Notes, at its sole option and without limiting or affecting any
rights or remedies hereunder, may exercise any of the rights and remedies to
which it may be entitled hereunder either concurrently with whatever other
rights it may have in connection with such other security or in such order as it
may determine.
4.3 APPLICATION OF SALE PROCEEDS. In the event of a foreclosure sale of
all or any portion of the Property, the proceeds of such sale shall be applied
as follows:
(a) first, to the payment of the costs and expenses of such sale,
including reasonable compensation to Trustee, its agents and counsel, and
of any judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Trustee or Beneficiary under this
Deed of Trust together with interest at the rate then payable under the Notes
plus five percent (5%) per annum or the maximum rate permitted by any applicable
law governing interest rate restrictions, if any maximum is applicable to the
subject obligation, whichever is lower, on all advances made by Beneficiary;
(b) second, to the payment of the whole amount then due, owing or
unpaid upon the Notes or any other Secured Obligations, for principal, interest,
prepayment premiums and late charges as stated in the Notes or any other Secured
Obligations, with interest on the unpaid principal and accrued interest at the
rate specified in the Notes or any other Secured Obligation;
(c) third, to the payment of any other sums required to be paid by
Trustor pursuant to any provisions of this Deed of Trust, the Notes, or any
Secured Obligation; and
(d) fourth, the surplus, if any, to whomsoever may be lawfully
entitled to receive the same.
4.4 TRUSTOR AS TENANT AT SUFFERANCE. In the event of any such
foreclosure sale, Trustor shall be deemed a tenant at sufferance and shall
forthwith deliver possession to the purchaser or purchasers at such sale or be
summarily dispossessed according to provisions of law applicable to tenants
holding over.
4.5 LEASES. Beneficiary, at its option, is authorized to foreclose
this Deed of Trust subject to the rights of any Tenants of the Property, and the
failure to make any such Tenants parties to any such foreclosure proceedings and
to foreclose their rights will not be, nor be asserted to be by Trustor, a
defense to any proceedings instituted by Beneficiary to collect the Secured
Obligations.
4.6 WAIVER OF RIGHT TO MARSHALING. Trustor and any person who presently
has or subsequently acquires an interest in the Property with actual or
constructive notice of this Deed of Trust, waives any and all rights under
Sections 2899 and 3433 of the California Civil Code or other applicable or
successor statute or common law rule to require a marshaling of assets upon
Beneficiary's exercise of its remedies provided by this Deed of Trust.
Beneficiary, in its sole discretion, shall be entitled to determine the order in
which the Property or portions thereof shall be subjected to the remedies
provided by this Deed of Trust.
ARTICLE 5
MISCELLANEOUS
5.1 SUCCESSORS AND ASSIGNS. Subject to Section 1.8 above, this Deed of
Trust shall inure to the benefit of and be binding upon Trustor, Trustee, and
Beneficiary and their respective legal representatives, successors, and assigns.
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5.2 TERMINOLOGY. All personal pronouns used in this Deed of Trust
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa.
5.3 SEVERABILITY. If any provision of this Deed of Trust or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Deed of Trust and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
5.4 APPLICABLE LAW. This Deed of Trust shall be interpreted, construed
and enforced with respect to the Property according to the laws of the State of
California; provided that in no event shall this limit any remedies that may be
available to Beneficiary under the laws of the state by which the Notes or other
Loan Documents are governed.
5.5 NOTICES, DEMANDS AND REQUESTS. All notices, demands or requests
provided for or permitted to be given pursuant to this Deed of Trust shall be in
writing and shall be delivered in person or sent by registered or certified
United States mail, postage prepaid, return receipt requested, or by overnight
courier, to the addresses set out below or to such other addresses as are
specified by no less than ten (10) days' prior written notice delivered in
accordance herewith:
If to Beneficiary: Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5443
If to Trustor: United Foods, Inc.
Ten Pictsweet Drive
Bells, TN 38006-0119
Attn: Senior Vice President, Finance
If to Trustee: Chicago Title Insurance Company
388 Market Street, Suite 1300
San Francisco, CA 94111
All such notices, demands and requests shall be deemed effectively given and
delivered three (3) days after the postmark date of mailing, the day after
delivery to the overnight courier or, if delivered personally, when received.
Rejection or other refusal to accept or the inability to deliver because of a
changed address of which no notice was given in accordance with the time period
provided herein, shall be deemed to be receipt of the notice, demand, or request
sent.
5.6 CONSENTS AND APPROVALS. All approvals and consents hereunder shall
be in writing and no approval or consent shall be deemed to have been given
hereunder unless evidenced in a writing signed by the party from whom the
approval or consent is sought.
5.7 CERTAIN OBLIGATIONS UNSECURED. Notwithstanding anything to the
contrary set forth herein or any of the Loan Documents, this Deed of Trust shall
not secure the following obligations (the "Unsecured Obligations"): (a) any
obligations evidenced by or arising under the Environmental Indemnity Agreement;
and (b) any other obligations in this Deed of Trust or in any of the other Loan
Documents to the extent that such other obligations relate specifically to the
presence on the Property of Hazardous Materials and are the same or have the
same effect as any of the obligations evidenced by or arising under the
Environmental Indemnity Agreement. Nothing in this Section 5.7 shall, in itself,
impair or limit Beneficiary's right to obtain a judgment in accordance with
applicable law after foreclosure for any deficiency in recovery of all Secured
Obligations following foreclosure.
5.8 WAIVER. No delay or omission of Beneficiary or of any holder
of either of the Notes to exercise any right, power or remedy accruing upon any
default shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such default, or acquiescence therein; and every
right, power and remedy given by this Deed of Trust to Beneficiary may be
exercised from time to time and as often as may be deemed expedient by
Beneficiary. No consent or waiver, express or implied, by Beneficiary to or of
any breach or default by Trustor in the performance of the obligations hereunder
shall be deemed or construed to be a consent or waiver to or of any other breach
or default in the performance of the same or any other obligations of Trustor
hereunder. Failure on the part of Beneficiary to complain of any act or failure
to act
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or to declare an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Beneficiary of its rights hereunder
or impair any rights, powers or remedies consequent on any breach or default by
Trustor.
5.9 JURY TRIAL WAIVER. TRUSTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY HOLDER OR ANY OTHER
PERSON RELATING TO (I) THIS DEED OF TRUST, OR (II) ANY OF THE OTHER LOAN
DOCUMENTS. BORROWER HEREBY AGREES THAT THIS DEED OF TRUST CONSTITUTES A WRITTEN
CONSENT TO WAIVER OF TRIAL BY JURY PURSUANT TO THE PROVISIONS OF CALIFORNIA CODE
OF CIVIL PROCEDURE SECTION 631, AND BORROWER DOES HEREBY CONSTITUTE AND APPOINT
HOLDER ITS TRUE AND LAWFUL ATTORNEY IN FACT, WHICH APPOINTMENT IS COUPLED WITH
AN INTEREST, AND BORROWER DOES HEREBY AUTHORIZE AND EMPOWER HOLDER, IN THE NAME,
PLACE AND STEAD OF BORROWER, TO FILE THIS DEED OF TRUST WITH THE CLERK OR JUDGE
OF ANY COURT OF COMPETENT JURISDICTION AS STATUTORY WRITTEN CONSENT TO WAIVER OF
TRIAL BY JURY.
5.10 ASSIGNMENT. This Deed of Trust is assignable by Beneficiary, and any
assignment hereof by Beneficiary shall operate to vest in the assignee all
rights and powers herein conferred upon and granted to Beneficiary.
5.11 TIME OF THE ESSENCE. Time is of the essence with respect to each and
every covenant, agreement, and obligation of Trustor under this Deed of Trust,
the Notes and all other Loan Documents.
5.12 ATTORNEYS' FEES.
5.12.A. Trustor shall forthwith pay to Beneficiary the amount of
all attorneys' fees and costs incurred by Beneficiary under and pursuant to this
Deed of Trust, the Notes, the Loan Documents or any other agreement given to
Beneficiary as security for the Notes or in connection with any transaction
contemplated hereby or thereby, or with respect to the Property or any defense
or protection, interpretation or enforcement of Beneficiary's security interest
in the Property which Beneficiary believes is necessary or desirable (whether or
not Beneficiary files a lawsuit against Trustor and including, without
limitation, a judicial foreclosure action or a non-judicial foreclosure
proceeding) in the event Beneficiary retains counsel, or incurs costs in order
to: obtain legal advice; enforce, or seek to enforce, any of its rights;
commence, intervene in, respond to, or defend any action or proceeding; file or
prosecute a claim in any action or proceeding (including without limitation, any
probate claim, bankruptcy claim, third-party claim, or secured creditor claim);
protect, obtain possession of, lease, dispose of or otherwise enforce Trustor's
right, title and interest in the Property or any portion thereof; obtain the
appointment of a receiver; or represent Beneficiary's interests in any
litigation with respect to Trustor's affairs.
5.12.B. Trustor shall and does hereby agree that, if all or a
portion of the principal sum of either of the Notes has, prior to the maturity
date fixed in the obligation, become due or been declared due by reason of an
Event of Default, the entire amount then due under the terms of this Deed of
Trust and the Notes shall include all attorneys' fees and costs and expenses
which are actually incurred as stated above, notwithstanding the provisions of
Section 2924c.(d) and Section 2924d of the California Civil Code.
5.12.C. The meaning of the terms "legal fees" or "attorneys' fees"
or any other reference to the fees of attorneys or counsel, wherever used in
this Deed of Trust, shall be deemed to include, without limitation, all legal
fees relating to litigation or appeals at any and all levels of courts and
administrative tribunals (including any appeal or petition for review), and
allocated costs of in-house counsel.
5.13 COVENANTS RUN WITH THE LAND. All of the grants, covenants, terms,
provisions and conditions herein contained shall run with the Land and shall
apply to, bind and inure to the benefit of, the successors and assigns of
Trustor and Beneficiary.
5.14 SUBSTITUTION OF TRUSTEE. Beneficiary may from time to time, without
notice to Trustor or Trustee and with or without cause and with or without the
resignation of the Trustee, substitute a successor or successors to the Trustee
named herein or acting hereunder to execute this Deed of Trust. Upon such
appointment and without conveyance to the successor Trustee, the latter shall be
vested with all title, powers and duties conferred upon the Trustee herein named
or acting hereunder. Each such appointment and substitution shall be made by
written document executed by Beneficiary, containing reference to this Deed of
Trust and its place of record, which when duly filed for record in the proper
office, shall be
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conclusive proof of proper appointment of the successor Trustee. The procedure
herein provided for substitution of the Trustee shall be conclusive of all other
provisions for substitution, statutory or otherwise.
5.15 RECONVEYANCE. When all the Secured Obligations have been paid
in full and no further commitment to extend financing continues, Trustee shall
reconvey the Property, or so much of it as is then held under this Deed of
Trust, without warranty to the person or persons legally entitled to it. In the
reconveyance, the grantee may be described as "the person or persons legally
entitled thereto," and the recitals of any matters or facts shall be conclusive
proof of their truthfulness. Neither Beneficiary nor Trustee shall have any duty
to determine the rights of persons claiming to be rightful grantees of any
reconveyance.
5.16 PARTIAL RELEASE. No more than three (3) times during the term of
each of the Loans (as determined on an aggregate basis for all of the property
securing the Loans under and as provided in all of the Loan Documents (referred
to herein as the "Total Security")), upon written request of Trustor,
Beneficiary shall release a portion of the Land as identified by Trustor (the
"Release Parcel") from the lien of this Deed of Trust, subject to the
limitations and upon satisfaction by Trustor of the following terms and
conditions:
(a) There shall be no Event of Default under any of the Loan
Documents or uncured default under the Environmental Indemnity Agreement, or any
event which with the passage of time or the giving of notice or both would
constitute an Event of Default, at the time of such request or at the time of
such release.
(b) If Beneficiary retains outside counsel to review and/or prepare
any documents, instruments or agreements relating to the request for release,
Trustor shall pay to Beneficiary the reasonable fees and expenses of such
outside counsel.
(c) Trustor shall pay to Beneficiary an administrative service
charge of $1,500, payable at the time of submission of the release request.
(d) Beneficiary's satisfaction that the size, location, and
boundaries of the Release Parcel and any related improvements, fixtures or
appurtenances are not required for the proper, efficient and historical
operation of the remaining portion of the Property (the "Remaining Property").
(e) Beneficiary's receipt, at Trustor's sole cost, of such title
insurance coverage as it may deem reasonably necessary to ensure that this Deed
of Trust is a valid first encumbrance against the Remaining Property, subject
only to such title exceptions as were shown in the original policy insuring this
Deed of Trust, current taxes and assessments and other exceptions to title as
may have been approved in writing by Beneficiary.
(f) Beneficiary shall have determined, in its sole and absolute
discretion that (i) there has been no material decline in the valuation of the
Total Security since the initial appraisal obtained in accordance with the Loan
Documents immediately prior to recordation of this Deed of Trust (the "Initial
Appraisal"); (ii) the Loan to Value Ratio of the Total Security less the
Released Parcel is not greater than 65% of the total outstanding balance of the
Notes using the collateral values determined by the Initial Appraisal, or at the
sole discretion of Beneficiary, using collateral values determined by an updated
appraisal prepared by an appraiser approved by Beneficiary and delivered by
Trustor, at Trustor's cost, at the time of the requested release. If the Loan to
Value Ratio so determined exceeds 65%, then Trustor's release request shall not
be considered or granted unless and until a principal payment reducing the
balance of Note A to a level that would result in a 65% or lower Loan to Value
Ratio shall have been made to Beneficiary. In determining the value of the
Remaining Property and the related Loan to Value Ratio, Beneficiary shall be
entitled to consider, among other factors, the effect of the proposed partial
release on the value of the Remaining Property and the materiality of the effect
of the release considering all relevant circumstances. Any principal payments
made in connection with a partial release shall be subject to the prepayment
provisions of the Notes, and a prepayment premium shall be payable in connection
therewith.
(g) The Remaining Property and the Release Parcel, both separately
and together, shall satisfy all requirements under pertinent subdivision, land
use, environmental and zoning laws, ordinances, rules and regulations.
(h) The Remaining Property shall be in all respects independent from
the Release Parcel, including, without limitation, the requirement that no loss
of access to or through the Remaining Property shall occur as a result of the
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partial release. Upon Beneficiary's request, the Release Parcel shall be
burdened by all such easements or covenants as may be determined by Beneficiary
as necessary to the continued operation of the Remaining Property.
(i) Updated surveys of the Remaining Property and the Release Parcel
shall have been obtained at Trustor's cost and expense and delivered to
Beneficiary.
(j) All documentation relating to the creation or release of the
Release Parcel shall be satisfactory to Beneficiary in all respects. All
consents of any party requiring notice of or consent to the release of the
Release Parcel shall have been obtained by Trustor.
5.17 CONFLICT WITH COMMITMENT. In the event of any inconsistency or
conflict between this Deed of Trust and the two Agricultural Mortgage Loan
Application/Commitments between Trustor and AEGON USA Realty Advisors, Inc. both
executed by Trustor on October 2, 1998, the provisions of this Deed of Trust
shall prevail.
IN WITNESS WHEREOF, Trustor has executed and delivered this Deed of
Trust as of the date first above written.
TRUSTOR:
UNITED FOODS, INC.,
a Delaware corporation
By /s/ Carl W. Gruenewald, II
Carl W. Gruenewald II,
Senior Vice President, Finance
By /s/ Donald Dresser
Donald Dresser,
Senior Vice President, Administration
45
<PAGE> 1
EXHIBIT 10.2
PROMISSORY NOTE
SECURED BY DEED OF TRUST
$15,000,000.00 December 15, 1998
FOR VALUE RECEIVED, the undersigned, UNITED FOODS, INC., a Delaware
corporation (hereafter referred to as "Borrower") hereby promises to pay to the
order of MONUMENTAL LIFE INSURANCE COMPANY, a Maryland corporation (hereafter
referred to as "Payee"; Payee and/or any subsequent holder(s) hereof, hereafter
referred to as "Holder"), at:
Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
c/o Bank of America
Post Office Box 96273
Chicago, IL 60693-6273
or at such other place as Holder may designate from time to time in writing, in
lawful money of the United States and in immediately available funds, the
principal amount of Fifteen Million Dollars ($15,000,000.00), together with
interest on the outstanding balance thereof, at the rate set forth below, from
the Funds Transfer Date (as defined below) until the entire balance of principal
has been paid in full, such principal and interest being due and payable as set
forth in Section 1 below. As used in this Note, the "Loan" means the loan
evidenced by this Note, and the "Funds Transfer Date" means the date on which
Payee initiates the transfer of funds on the Federal Reserve wire system in
disbursement of the proceeds of the Loan.
1. INTEREST AND PAYMENTS.
1.A. Interest Rate. Interest will accrue on the outstanding
principal balance hereof at the rate of Six and 8/10 Percent (6.8%) per annum
commencing with the Funds Transfer Date to and until January 1, 2009 (the
"Maturity Date").
1.B. Payment Terms. Principal and interest shall be due and
payable as follows.
(1) Interest for the period beginning on the Funds Transfer
Date through December 31, 1998, shall be prorated on a daily basis as provided
in Section 1.D below and shall be paid in advance at the close of the escrow
established to disburse the proceeds of the Loan.
(2) Thereafter, monthly combined principal and interest
payments in the amount of $152,662.60 each shall be due and payable beginning on
February 1, 1999, and continuing thereafter on the first day of each calendar
month until the Maturity Date. Monthly installments of principal and interest
shall be made as scheduled and in the amount set forth herein regardless of
Lender's prior acceptance of unscheduled payments, except as set forth in
Section 7.C.(3), below.
(3) The entire outstanding principal balance of the
indebtedness evidenced hereby, plus all accrued and unpaid interest thereon,
shall be due and payable on the Maturity Date.
1.C. Basis Point. As used in this Note, the term "Basis Point"
means one one-hundredth (1/100th) of one percentage point of interest.
1.D. Calculation of Interest. All interest on any indebtedness
evidenced by this Note shall be calculated on the basis of a three hundred sixty
(360)-day year composed of twelve (12) thirty (30)-day months. Interest for
partial months shall be calculated by multiplying the principal balance of this
Note by the applicable per annum rate, dividing the product so obtained by 360,
and multiplying the result by the actual number of days elapsed. Calculating
interest for partial months on the basis of a 360-day year results in more
interest than if a 365-day year were used.
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<PAGE> 2
1.E. Balloon Payment. THIS NOTE PROVIDES FOR A BALLOON PAYMENT
WHICH WILL BE DUE IN FULL ON THE MATURITY DATE, AND BORROWER ACKNOWLEDGES THAT
NO PROVISION OR AGREEMENT HAS BEEN MADE FOR THE REFINANCING BY HOLDER OF THE
AMOUNT TO BE PAID ON SUCH DATE.
1.F. Deadlines; Banking Days. In the event any of the due dates,
deadlines or determinative dates set forth in this Section 1 or elsewhere in
this Note fall on a Saturday, Sunday or holiday, the applicable due date,
deadline or determinative date shall be the immediately preceding banking day.
2. APPLICATION OF PAYMENTS. All payments made under this Note
shall be applied first, to the following, in such order as Holder may elect in
its sole discretion, until all such items are paid in full: (a) any late charges
due in accordance with Section 4 below; (b) any past-due interest, including
without limitation interest accrued at the Default Interest Rate in accordance
with Section 4 below; (c) reimbursement of any sums advanced by Holder to cure
defaults under the Deeds of Trust (as defined in Section 3 below); (d) any
applicable prepayment premium due in accordance with Section 7 below; (e)
reimbursement of any expenses to which Holder is entitled pursuant to Section 10
below; second, to any past-due principal; third, to current interest accrued as
of the date of Holder's receipt of such payment; and fourth, to reduce the
outstanding principal balance. No partial prepayment of principal shall result
in any adjustment of the amount of the scheduled installments of principal
thereafter becoming due, except as set forth in Section 7.C.(3) below.
3. COLLATERAL. The indebtedness evidenced by this Note is secured by,
among other things, the following (collectively, the "Deeds of Trust"): (i) that
certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing of even date herewith between Borrower, as Trustor, in favor of Payee, as
Beneficiary, encumbering property located in the County of Santa Barbara, State
of California, as more particularly described therein, (ii) that certain Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing of even date
herewith, between Borrower, as Trustor, in favor of Payee, as Beneficiary,
encumbering property located in the County of Ventura, State of California,
(iii) that certain Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing of even date herewith, between Borrower, as Trustor, in favor of
Payee, as Beneficiary, encumbering property located in the County of Marion,
State of Oregon, and (iv) that certain Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing of even date herewith, between Borrower,
as Trustor, in favor of Payee, as beneficiary, encumbering property located in
the County of Millard, State of Utah.
Concurrently with the execution and delivery hereof, Borrower has executed and
delivered that certain Promissory Note Secured by Deed of Trust dated as of even
date herewith payable to Payee in the original principal amount of
$10,000,000.00 ("Note A"). This Note, Note A and the Deeds of Trust, together
with all other documents or instruments evidencing, securing, or otherwise
relating to the indebtedness evidenced hereby, including without limitation that
certain Environmental Indemnity Agreement dated as of even date herewith, are
sometimes hereinafter referred to collectively as the "Loan Documents."
4. LATE CHARGES AND INTEREST UPON DEFAULT. Borrower agrees to pay to
Holder a late charge equal to four percent (4%) of any amount, including
interest, not paid within five (5) days of the due date. As used herein, the
term "Default Interest Rate" means a rate per annum Three Hundred (300) Basis
Points above the interest rate otherwise in effect under this Note. In the event
that any payment of principal, interest, late charges or prepayment premium
payable under this Note is not paid within ten (10) days from its due date,
whether or not by reason of acceleration, such failure shall constitute an Event
of Default hereunder, and such amount shall bear interest from the due date
thereof until paid at the Default Interest Rate. Borrower acknowledges and
agrees that during the time that any payment of principal, interest or other
amount due under this Note or any other Loan Document is delinquent, Holder will
incur additional costs and expenses attributable to its loss of use of the money
due and attributable to the adverse impact on Holder's ability to meet its other
obligations and avail itself of other opportunities. Borrower agrees it is
extremely difficult and impractical to ascertain the extent of such costs and
expenses, and Borrower therefore agrees to payment of the above late charge and
the accrual of interest at the Default Interest Rate in accordance with this
Section, in satisfaction of its liability for such costs and expenses,
regardless of whether or not there has been an acceleration of the maturity of
the indebtedness evidenced by this Note. Borrower acknowledges that the charging
of Default Interest will result in compounded interest (i.e., interest on
interest).
/s/ CWG DD
-----------------------------
Borrower's Initials
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<PAGE> 3
5. EVENT OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" hereunder:
(1) the failure of Borrower to pay, or cause to be paid, any
scheduled installment of principal and interest or any other indebtedness
evidenced by this Note within ten (10) days of the date when due;
(2) the failure of Borrower to pay, or cause to be paid, the entire
indebtedness evidenced hereby on the Maturity Date or upon acceleration of the
Loan;
(3) the failure of Borrower to pay, or cause to be paid, any other
amount due and payable under any of the Loan Documents and any applicable cure
period set forth therein has expired; or
(4) the occurrence of an Event of Default under any of the
other Loan Documents, including without limitation an Event of Default under
Note A or any of the Deeds of Trust, and further including without limitation
the failure of Borrower to observe the provisions of Section 1.8 of each of the
Deeds of Trust (entitled "Transfer of the Property; Secondary Financing"), or a
default under the Environmental Indemnity Agreement and the expiration of any
applicable cure period expressly set forth therein.
6. ACCELERATION. Upon the occurrence of an Event of Default, Holder may
at its option, in addition to any other remedies to which it may be entitled,
declare the total unpaid principal balance of the indebtedness evidenced hereby,
together with all accrued but unpaid interest thereon and any applicable
prepayment premium and all other sums owing under any of the other Loan
Documents, immediately due and payable, including without limitation all costs
of collection, without further presentment, demand, protest or notice of any
kind, by so notifying Borrower in writing. Notwithstanding the foregoing, in the
Event of Default under clauses (1), (2) or (3) of Section 5 above, Holder shall
give Borrower at least five (5) days' written notice (measured from the date the
notice is given) prior to declaring the total unpaid balance hereof due and
owing, provided that no additional notice shall be required upon acceleration,
and provided further that such notice obligation shall not release Borrower from
any late charge or Default Interest as provided in this Note.
7. PREPAYMENT.
7.A Prepayment Premium. Upon giving Holder not less than thirty (30)
days' prior written notice, Borrower may prepay the principal amount due under
this Note, in whole or in partial payments of not less than One Hundred Thousand
Dollars ($100,000.00) by paying, in addition to such principal, together with
any and all accrued interest thereon, a prepayment premium equal to the
difference (if positive) between (1) minus (2), said amount then being
multiplied by (3), where:
(1) is determined by calculating the present value of the
payments Holder would have received if the prepaid principal amount had been
paid as provided for in this Note absent any prepayment privileges discounted
back to the prepayment date using a discount rate equal to the Comparable
Treasury Rate (as defined below) plus 100 Basis Points;
(2) is the amount of the principal balance outstanding as of the
prepayment date (prior to the application of any prepayment and the payments
Holder would have received if the prepaid principal amount had been paid as
provided for in this Note absent any prepayment privileges); and
(3) is a fraction, the numerator of which is the amount of the
principal balance which is being prepaid and the denominator of which is the
original principal balance under this Note.
7.B Comparable Treasury Rate Defined. The "Comparable Treasury Rate"
shall be (1) equal to the rate for U.S. Treasury Constant Maturities with a
maturity closest to the remaining loan term at the date of prepayment, or (2) if
there is no U.S. Treasury Constant Maturity having a maturity date matching the
remaining loan term, an interpolated rate derived from U.S. Treasury Constant
Maturity with the closest maturity date after the Maturity Date.
7.C Additional Prepayment Provisions.
(1) In no event shall the amount due in connection with any
principal prepayment be less than the principal amount paid plus any and all
interest accrued thereon as of the payment date. No partial prepayment shall
result
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<PAGE> 4
in any adjustment of the amount of the scheduled installments of principal and
interest thereafter becoming due, except to the extent the final payment or
payments are reduced or eliminated as a result of the partial prepayment, and
except as set forth in Section 7.C.(3), below.
(2) Borrower covenants and agrees that the Loan is being made on
the basis and assumption that the payments shall be made for the full maximum
term of the Loan, that such is the transaction bargained for, and that Borrower
shall not prepay the indebtedness except in strict accordance with the
provisions of this Note. Except for expressly permitted prepayments of
principal, the prepayment premium described above shall be payable with respect
to voluntary prepayments or with respect to prepayments resulting from default,
acceleration, foreclosure, deed in lieu of foreclosure or exercise of any
remedies under the Loan Documents. However, no prepayment premium shall be
payable on amounts attributable to insurance or condemnation proceeds applied in
reduction of the principal balance hereof.
(3) Scheduled installments of principal and interest due under
this Note following a partial prepayment shall be adjusted in the manner
described below, provided that any such adjustment shall occur no more
frequently than twice during the term of this Note, and further provided that
each of the following conditions are satisfied in Holder's sole and absolute
discretion:
(a) no uncured default or Event of Default shall exist under
this Note, Note A, the Deeds of Trust or any of the other Loan Documents nor
shall any event have occurred or circumstance exist that, with the passage of
time or giving of notice or both, would constitute such a default or Event of
Default;
(b) partial prepayments under this Note shall have been made
by Borrower in accordance with the conditions and limitations of this Note in an
aggregate amount of $500,000 or more;
(c) the Borrower has delivered to Payee written notice of
its request to adjust the scheduled monthly payments due under this Note
following a partial prepayment, and such notice shall have been received by
Payee at least thirty (30) days prior to the first payment date at which the
adjustment shall be effective; and
(d) Borrower shall only be entitled to request an adjustment
of scheduled principal and interest installments in connection with a partial
prepayment twice during the term of this Note.
Upon the satisfaction of the foregoing conditions, the amount of each monthly
principal and interest payment due under this Note, beginning with the first
payment due following receipt and acceptance of the applicable prepayment
(provided that 30 days' prior notice has been given as set forth above), shall
be recalculated using (i) the rate of interest under this Note, (ii) the
principal balance outstanding as of the date of Holder's acceptance of the
applicable partial prepayment, and (iii) the remaining period of the original
12-year amortization period, as of the date of Holder's acceptance of the
applicable partial prepayment.
8. PREPAYMENT WAIVERS. Borrower expressly waives any right to prepay
the indebtedness evidenced hereby, except as specifically provided in Section 7
above. Therefore, if the maturity of this Note is accelerated by reason of any
Event of Default under this Note or under any other Loan Document, Borrower
recognizes and agrees that any prepayment of the indebtedness evidenced hereby
resulting from such default (including without limitation, prepayments resulting
from foreclosure and sale, sale under a power of sale, and any redemption
following foreclosure of any of the Deeds of Trust) shall constitute a breach of
the restrictions on prepayment set forth herein and will result in damages to
Holder due to Holder's failure to receive the benefit of its investment as
contracted for in this Note. Further, Borrower recognizes that it is extremely
difficult and impractical to ascertain the extent of such damages. Accordingly,
in the event the maturity of this Note is accelerated by reason of any Event of
Default hereunder or under any other Loan Document, Borrower agrees to pay to
the Holder, in satisfaction of its liability for such damages, in addition to
all other amounts due, the prepayment premium described above. Borrower agrees
that the prepayment premium represents the reasonable estimate of Holder and
Borrower of a fair average compensation for the loss that may be sustained by
Holder due to the prepayment of any of the principal balance prior to the
Maturity Date; the prepayment premium shall be paid without prejudice to the
right of Holder to collect any other amounts provided for in the other Loan
Documents; and Holder shall not be obligated to actually reinvest the prepayment
amount in any Treasury or other specific obligations as a condition to receiving
the prepayment premium. Borrower expressly waives any right it may have to
prepay this Note, in whole or in part, without prepayment charge, upon
acceleration of the maturity of this Note, and agrees that if for any reason a
prepayment of any or all of the indebtedness evidenced by this Note is made,
whether voluntarily or upon or following any acceleration of the maturity of
this Note by Holder, then Borrower shall pay the prepayment premium calculated
pursuant to Section 7 above. By initialing this provision in the space provided
below,
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<PAGE> 5
Borrower hereby declares that the Holder's agreement to make the Loan at
the interest rate and for the term set forth herein constitutes adequate
consideration, given individual weight by Borrower, for this waiver and
agreement.
/s/ CWG DD
----------------------------
Borrower's Initials
9. LITIGATION EXPENSE. If any suit, action or proceeding of any kind
(an "action") is brought by any party hereto (or the successors or assigns to
any party hereto) to enforce, defend or interpret any provision of this Note or
any document referred to herein or executed in connection herewith (including
without limitation an action for declaratory relief), the prevailing party in
such action shall recover from the other parties to such action all reasonable
costs and expenses which the prevailing party may incur in bringing such action
and/or enforcing any judgment granted therein, all of which shall be deemed to
have accrued upon the commencement of such action and shall be paid whether or
not such action is prosecuted to judgment. The "prevailing party" means the
party entitled to recover the costs of suit, whether or not any action proceeds
to final judgment. Any judgment or order entered in such action shall
specifically provide for the recovery of all reasonable costs and expenses
incurred by the prevailing party in connection therewith including, without
limitation, costs and expenses incurred in enforcing such judgment. For the
purpose of this Section, "costs and expenses" include all court costs and
attorneys' fees (including allocated costs of in-house counsel) including
without limitation, court costs and attorneys' fees incurred in connection with
any of the following: (a) postjudgment motions; (b) contempt proceedings; (c)
garnishment, levy and debtor and third party examinations; (d) discovery; (e)
bankruptcy litigation; (f) appeals; and (g) petitions for review. Holder shall
have the right, but not the obligation, to commence, appear in and defend any
action purporting to affect any of the interests, rights, obligations or
liabilities of Holder or Borrower in connection with this Note or any other Loan
Document, and Borrower agrees to pay to Holder on demand all costs and expenses
reasonably incurred by Holder in connection therewith.
10. REIMBURSEMENT OF COSTS AND EXPENSES. Borrower agrees to reimburse
Holder within five (5) days of Holder's demand for all costs and expenses
(including, but not limited to, reasonable attorneys' fees, including allocated
costs of in-house counsel) incurred by Holder in connection with the exercise of
Holder's rights under this Note or the other Loan Documents, and the enforcement
thereof, whether or not an action is commenced, and in connection with the
administration of Holder's rights under this Note, other than routine servicing
matters customarily performed by Holder for loans of a similar nature and for
which no cost is charged.
11. WAIVER. Borrower and any sureties, guarantors and endorsers of this
Note hereby consent to renewals and extensions of time at or after the Maturity
Date and hereby waive diligence, presentment, protest, demand and notice of
every kind and (to the full extent permitted by law) the right to plead any
statute of limitations as a defense to any demand hereunder or in connection
with any security herefor, and hereby agree that no failure on the part of
Holder to exercise any power, right or privilege hereunder, or to insist upon
prompt compliance with the terms hereof, shall constitute a waiver thereof.
12. FORBEARANCE. Holder shall not be deemed to have waived any of
Holder's rights or remedies under this Note unless such waiver is express and in
a writing signed by Holder, and no delay or omission by Holder in exercising, or
failure by Holder on any one or more occasions to exercise, any of Holder's
rights hereunder or under the other Loan Documents, or at law or in equity,
including, without limitation, Holder's right, after any Event of Default by
Borrower, to declare the entire indebtedness evidenced hereby immediately due
and payable, shall be construed as a novation of this Note or shall operate as a
waiver or prevent the subsequent exercise of any or all of such rights.
Acceptance by Holder of any portion or all of any sum payable hereunder whether
before, on or after the due date of such payment, shall not be a waiver of
Holder's right either to require prompt payment when due of all other sums
payable hereunder or to exercise any of Holder's rights, powers and remedies
hereunder or under the other Loan Documents. A waiver of any right on one
occasion shall not be construed as a waiver of Holder's right to insist
thereafter upon strict compliance with the terms hereof without previous notice
of such intention being given to Borrower. No exercise of any right by Holder
shall constitute or be deemed to constitute an election of remedies by Holder
precluding the subsequent exercise by Holder of any or all of the rights, powers
and remedies available to it hereunder, under any of the other Loan Documents,
or at law or in equity. Borrower expressly waives, to the extent permitted by
law, the benefit of any statute or rule of law or equity now provided, or which
may hereafter be provided, which would produce a result contrary to, or in
conflict with, the foregoing. Borrower consents to any and all renewals and
extensions in the time of payment hereof without in any way affecting the
liability of Borrower or any person liable or to become liable with respect to
any indebtedness evidenced hereby. No extension of the time for the payment of
this Note or any installment due hereunder, made by agreement with any person
now or hereafter liable for the payment of this Note shall
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<PAGE> 6
operate to release, discharge, modify, change or affect the original liability
of Borrower under this Note, either in whole or in part, unless Holder agrees
otherwise in writing.
13. RENUNCIATION AND ASSIGNMENT OF EXEMPTIONS. To the extent permitted
by law, Borrower hereby waives and renounces for itself, its legal
representatives, successors and assigns, all rights to the benefits of any
statute of limitations and any moratorium, reinstatement, marshalling,
forbearance, valuation, stay, extension, redemption, appraisement, exemption,
and homestead right, entitlement, or exemption now provided, or which may
hereafter be provided, by the Constitution or laws of the United States of
America or of any state thereof, both as to itself and in and to all of its
property, real and personal, against the enforcement and collection of the
obligations evidenced by this Note.
14. JURY TRIAL WAIVER. BORROWER HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY HOLDER OR ANY OTHER
PERSON RELATING TO (I) THIS NOTE OR NOTE A, OR (II) ANY OF THE OTHER LOAN
DOCUMENTS. BORROWER HEREBY AGREES THAT THIS NOTE CONSTITUTES A WRITTEN CONSENT
TO WAIVER OF TRIAL BY JURY, AND BORROWER DOES HEREBY CONSTITUTE AND APPOINT
HOLDER ITS TRUE AND LAWFUL ATTORNEY IN FACT, WHICH APPOINTMENT IS COUPLED WITH
AN INTEREST, AND BORROWER DOES HEREBY AUTHORIZE AND EMPOWER HOLDER, IN THE NAME,
PLACE AND STEAD OF BORROWER, TO FILE THIS NOTE WITH THE CLERK OR JUDGE OF ANY
COURT OF COMPETENT JURISDICTION AS WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY.
15. APPLICABLE LAW. This Note shall be governed by, enforced under and
interpreted in accordance with the laws of the State of Oregon.
16. AMENDMENT. This Note may be amended or modified only by an
instrument in writing which by its express terms refers to this Note and which
is duly executed by each party sought to be bound thereby.
17. SEVERABILITY. If any provision of this Note or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Note and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
18. TRANSFERS BY HOLDER. This Note and the other Loan Documents may be
hypothecated, transferred or assigned by Holder without the prior consent of
Borrower.
19. SUCCESSORS AND ASSIGNS. This Note shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
20. TIME. Time is of the essence with respect to each and every term
and provision of this Note.
21. USURY. Notwithstanding any provision in this Note which might
otherwise be construed to the contrary, it is the desire of Holder and Borrower
that the total liability for payments in the nature of interest shall not exceed
the limits imposed by any applicable state or federal interest rate laws. If any
payments in the nature of interest, additional interest, and other charges made
under this Note are held to be in excess of the limits imposed by any applicable
state or federal laws, then at Holder's option (a) to the extent permitted under
applicable law, Holder may declare the total unpaid principal balance of the
indebtedness evidenced hereby, together with all accrued but unpaid interest
thereon, immediately due and payable (without prepayment premium), or (b) any
such excess amount shall be considered a premium-free prepayment of principal
and the principal balance shall be reduced by such amount in the inverse order
of maturity so that the total liability for payments in the nature of interest,
additional interest and other charges shall not exceed the limits imposed by any
applicable state or federal interest rate laws.
22. NOTICES. All notices, demands or requests provided for or permitted
to be given hereunder shall be in writing and shall be delivered in person or
sent by registered or certified United States mail, postage prepaid, return
receipt requested, or by overnight courier, to the addresses set forth below or
to such other addresses as are specified by no less than ten (10) days' prior
written notice delivered in accordance herewith
If to Borrower: United Foods, Inc.
Ten Pictsweet Drive
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<PAGE> 7
Bells, TN 38006-0119
Attn: Senior Vice President for Finance
If to Holder: Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5443
All such notices, demands and requests shall be deemed effectively given and
delivered three (3) days after the postmark date of mailing, the day after
delivery to the overnight courier, or, if delivered personally, when received.
Rejection or other refusal to accept or the inability to deliver because of a
changed address of which no notice was given in accordance with the time period
provided herein, shall be deemed to be receipt of the notice, demand or request
sent.
23. GENDER AND NUMBER. All personal pronouns used in this Note
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa.
24. HEADINGS. The underlined words appearing at the commencement of the
sections are included only as a guide to the contents thereof and are not to be
considered as controlling, enlarging or restructuring the language or meaning of
those sections.
25. NOTICE TO BORROWER. UNDER OREGON LAWS, MOST AGREEMENTS, PROMISES,
COMMITMENTS MADE BY LENDER AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER
CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION
AND BE SIGNED BY LENDER TO BE ENFORCEABLE.
IN WITNESS WHEREOF, the undersigned have executed this Note as of the
date first above written.
UNITED FOODS, INC.,
a Delaware corporation
By /s/ Carl W. Gruenewald, II
Carl W. Gruenewald II,
Senior Vice President, Finance
By /s/Donald Dresser
Donald Dresser,
Senior Vice President,
Administration
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RECORDING REQUESTED BY:
Chicago Title Company
Escrow No. 160981144
AND WHEN RECORDED MAIL TO:
Bolen, Fransen & Boostrom LLP
1322 East Shaw Avenue, Suite 430
Fresno, CA 93710
Attention: Virginia M. Pedreira
- -------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST, ASSIGNMENT OF RENTS
SECURITY AGREEMENT AND FIXTURE FILING
(Ventura County, California)
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (hereafter referred to as this "Deed of Trust") is made and
entered into as of December 15, 1998, by UNITED FOODS, INC., a Delaware
corporation, ("Trustor"), whose address is Ten Pictsweet Drive, Bells, TN
38006-0119, to CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation
("Trustee"), whose address is 388 Market Street, Suite 1300, San Francisco, CA
94111, for the benefit of MONUMENTAL LIFE INSURANCE COMPANY, a Maryland
corporation, its successors and assigns ("Beneficiary"), whose address is c/o
AEGON USA Realty Advisors, Inc., 4333 Edgewood Road N.E., Cedar Rapids, IA
52499-5443.
W I T N E S S E T H:
A. GRANT. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to secure the
indebtedness and other obligations of Trustor hereafter set forth, Trustor does
hereby grant, bargain, sell, convey, mortgage, assign, transfer, pledge and set
over unto Trustee and the successors and assigns of Trustee IN TRUST WITH POWER
OF SALE, for the benefit and security of Beneficiary, all of Trustor's right,
title and interest in and to the following, whether now owned or hereafter
acquired (hereafter collectively referred to as the "Real Property"):
(1) the real property located in Ventura County, California, as more
particularly described in Exhibit A attached hereto and incorporated herein by
reference (hereafter referred to as the "Land");
(2) all buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land (hereafter referred to as
"Improvements and Fixtures"), including, without limitation, (a) houses, barns,
sheds, warehouses, pumphouses, bunkhouses, hothouses, mobilehomes and all other
buildings and structures; (b) shrubs, trees, and permanent plantings now growing
or hereafter to be grown on the Land; (c) grain bins, storage bins and tanks,
metal sheds and buildings, wind machines, freeze and frost protection equipment,
water towers, windmills, (d) all towers, fences, gates, stakes, posts and
trellises; (e) all electric, water and gas lines, wiring, generators, motors,
pipe and equipment together with meters, transformers, switch boxes, fuse
panels, circuit breakers, timing devices, thermostats, and control valves; (f)
all wells, irrigation and drainage equipment of all types (other than portable
irrigation motors customarily towed by a motor vehicle) including, without
limitation, pumping stations, pipe, pumps, motors, gearheads, pivots, sprinkler
systems, hand lines, tow lines, control valves, culverts, and well casings; (g)
air conditioning, climate control and heating equipment including coils,
compressors, ducts and heaters; (h) all wall to wall carpet, refrigerators,
stoves and other built-in equipment; (i) processing, packaging, loading, and
storage facilities and equipment, including augers, scales, belts, motors and
conveyance equipment related thereto; (j) all other machinery, apparatus, and
equipment of every kind and nature now or hereafter attached to, located on, in,
or about the Land, or used or intended to be used in connection with the use,
operation, or enjoyment of the Land or related to the operation of the Property
(excluding property which may be or deemed to be toxic or hazardous substances
or
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materials, and also excluding self-propelled motor driven vehicles and farm
implements customarily towed by or attached thereto (collectively, "rolling
stock"), but not excluding any rolling stock which constitutes a part of any
irrigation system relating to the Land), including without limitation the
property described in Exhibit B attached hereto and incorporated herein by this
reference; and (k) all additions thereto and substitutions and replacements
thereof, all of which are hereby declared and shall be deemed to be fixtures and
accessions to the Land and a part of the Real Property as between the parties
hereto and all persons claiming by, through or under them, and which shall be
deemed to be a portion of the security for the Secured Obligations (as defined
in Section B below);
(3) all easements, rights-of-way, strips and gores of land, vaults,
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, now or hereafter located on the Land or under or above the
same or any part or parcel thereof, and all estates, rights, titles, interests,
minerals, royalties, easements, privileges, liberties, tenements, hereditaments
and appurtenances, reversion and reversions, remainder and remainders
whatsoever, in any way belonging, relating or appertaining to the Land or any
part thereof, or which hereafter shall in any way belong, relate or be
appurtenant thereto, whether now owned or hereafter acquired by Trustor;
(4) all present and future rents, issues and profits of the Real
Property from time to time accruing (including, by way of illustration, all
payments under leases or tenancies, unearned premiums on any insurance policy
carried by Trustor for the benefit of Beneficiary and/or the Real Property,
tenant security deposits, escrow funds and all awards or payments, including
interest thereon and the right to receive same, growing out of or as a result of
any exercise of the right of eminent domain, including the taking of any part or
all of the Real Property or payment for alteration of the grade of any road upon
which said Real Property abuts, or any other injury to, taking of or decrease in
the value of said Real Property to the extent of all amounts which may be owing
on the Secured Obligations at the date of receipt of any such award or payment
by Trustor, and the reasonable attorneys' fees, costs and disbursements incurred
by Beneficiary in connection with the collection of such award or payment), and
all the estate, right, title, interest, property, possession, claim and demand
whatsoever at law or in equity, of Trustor of, in and to the same;
(5) all insurance policies and proceeds thereof, contracts, permits,
licenses, plans or intangibles now or hereafter dealing with, affecting or
concerning the Real Property, including, by way of illustration, all rights
accruing to Trustor from any and all contracts with all contractors, architects,
engineers or subcontractors relating to the construction of improvements on or
upon the Land, including payment, performance and/or materialmen's bonds and any
other related choses in action;
(6) all rights of Trustor or the Land to all water (including any
water inventory in storage), water rights and entitlements, other rights to
water and other rights to receive water or water rights of every kind or nature,
used or designated for use in connection with the Land, including by way of
illustration, (a) the groundwater on, under, pumped from or otherwise available
to the Land, whether as a result of groundwater rights, contractual rights or
otherwise; (b) the right to remove and extract any such groundwater including
any permits, rights or licenses granted by any governmental authority or agency
and any rights granted or created by any easement, covenant, agreement or
contract with any person or entity; (c) any rights to which the Land is entitled
with respect to surface water, whether such right is appropriative, riparian,
prescriptive or otherwise and whether or not pursuant to permit or other
governmental authorization, or the right to store any such water; (d) any water,
water right, water allocation, distribution right, delivery right, water storage
right, or other water-related entitlement appurtenant or otherwise applicable to
the Land by virtue of the Land's being situated within the boundaries of any
district, agency, or other governmental entity or within the boundaries of any
private water company, mutual water company, or other non-governmental entity;
(e) any drainage rights appurtenant or otherwise applicable to the Land; (f) all
rights to transport, carry, allocate or otherwise deliver water or any of the
foregoing rights from or to the Land by any means, wherever located; (g) any
shares (or any rights under such shares) of any private water company, mutual
water company, or other non-governmental entity pursuant to which Trustor or the
Land may receive any of the rights referred to in subsections (a) through (f),
above (collectively referred to hereafter as the "Water Rights");
(7) all rights to receive, participate in, or otherwise secure the
benefits of any and all government programs, including but not limited to set
aside programs, payment in kind programs, and governmental loans which are
available for use in connection with the Real Property;
(8) all rights to drain the Land including rights in drainage
districts (and the right to vote for and elect representatives in such drainage
districts) together with all rights of Trustor in agricultural cooperatives for
milling, ginning, grinding, storage and marketing of crops harvested from the
Land; and
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(9) all crops now or hereafter growing, grown or produced on the
Land, subject however and subordinated to the lien of an operating lender
unaffiliated with Trustor (a "Crop Lender") on growing crops which lien
terminates within 120 days following a Foreclosure Event.
A "Foreclosure Event" as used herein shall mean any transfer of title
pursuant to judicial or nonjudicial foreclosure of this Deed of Trust or deed in
lieu thereof or appointment of a receiver to assume possession of the Property.
No possessory right or license to possess, use, occupy, harvest or farm the Land
in favor of Trustor or any creditor of Trustor or any party claiming thereunder
following a Foreclosure Event shall be inferred or created by the foregoing
limitation in Beneficiary's lien on crops. However, Beneficiary will grant to
the Crop Lender a limited, nonexclusive, nontransferable license for a period
ending on the 120th day following a Foreclosure Event, to enter the Real
Property for the purpose of taking possession of its crop collateral and to
complete the cultivation and harvest of the crop collateral to be harvested
within the then-effective 90-day growing cycle, pursuant to a separate written
instrument signed by Beneficiary in connection with a Foreclosure Event, which
instrument will provide inter alia that the Crop Lender shall (a) reimburse
Beneficiary for the cost of repair of any physical damages to the Property
caused by Crop Lender, (b) exercise its rights, powers and remedies with respect
to its crop collateral, which shall include without limitation the right to care
for, cultivate, harvest and remove its crop collateral, in accordance with
reasonable agricultural and/or standards and practices, and (c) indemnify,
defend and hold Beneficiary harmless from all loss, costs, damage, claim,
expense and liability, including reasonable attorneys' fees, that Beneficiary
and its agents may suffer or experience as a result of the negligence or
intentional misconduct of Crop Lender or its agents, including without
limitation, damage to property and personal injury to or death of any person.
The Real Property described above together with the Personal Property collateral
described in Section 3.1 below are hereafter sometimes referred to collectively
as the "Property."
B. SECURED OBLIGATIONS. This Deed of Trust is given to secure the
payment and performance of the following in such manner as Beneficiary in its
sole discretion shall determine (collectively referred to hereafter as the
"Secured Obligations"):
(1) the indebtedness evidenced by (a) that certain Promissory
Note Secured by Deed of Trust of even date herewith ("Note A") made by Trustor
in the original principal amount of Ten Million and 00/100 Dollars
($10,000,000.00) payable to the order of Beneficiary, and (b) that certain
Promissory Note Secured By Deed of Trust of even date herewith ("Note B") made
by Trustor in the original principal amount of Fifteen Million and 00/100
Dollars ($15,000,000.00) payable to the order of Beneficiary (hereafter referred
to collectively as the "Notes"), including without limitation any prepayment
premium due thereunder, together with any and all renewals, extensions,
substitutions, modifications and consolidations of the Notes and the
indebtedness evidenced thereby (the "Loans");
(2) any and all advances made by Beneficiary as hereafter provided:
(a) to protect or preserve the Property or the lien created hereby on the
Property; (b) for insurance premiums; (c) for real estate and personal property
and other taxes and assessments, and any and all other charges, expenses,
utility charges, payments, claims, mechanics' or material suppliers' liens or
assessments of any nature that at any time prior to or after the execution of
the Loan Documents (as defined in subsection (3) of this Section) may be
assessed, levied, imposed, or become a lien upon the Property, or the rent or
income received therefrom, or any use or occupancy thereof (collectively,
"Impositions"); (d) for performance of any of Trustor's obligations hereunder,
or for any other purpose provided herein (whether or not the original Trustor
remains the owner of the Property at the time of such advances); provided,
however, nothing herein shall be deemed to obligate Beneficiary to make any such
advances;
(3) any and all obligations and covenants of Trustor under the
Notes, this Deed of Trust or any other document, instrument or agreement now or
hereafter evidencing, securing or otherwise relating to the Notes secured
hereby, as amended or modified from time to time, including without limitation
that certain Borrower's Closing Certificate of even date herewith and those two
(2) certain Agricultural Mortgage Loan Application/Commitments between Trustor
and AEGON USA Realty Advisors, Inc., both executed by Trustor on October 2,
1998, and subsequently assigned to Beneficiary (hereafter referred to
collectively as the "Loan Documents"), and all costs of collection, including
reasonable attorneys' fees, but excluding however, that certain Environmental
Indemnity Agreement executed by Trustor for the benefit of Beneficiary of even
date herewith, which is not secured by the lien of this Deed of Trust (the
"Environmental Indemnity Agreement").
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ARTICLE 1
COVENANTS, REPRESENTATIONS AND WARRANTIES
Trustor hereby further covenants and agrees with and for the benefit of
Beneficiary as follows.
1.1 PAYMENT OF INDEBTEDNESS, COVENANTS AND WARRANTIES.
1.1.A. Trustor will pay each of the Notes according to the terms
thereof and will pay all other Secured Obligations, with interest thereon, as
provided in the Loan Documents, at the time and in the manner provided under the
Notes, this Deed of Trust, any instrument evidencing a future advance and any
other Loan Document, and Trustor will otherwise perform, comply with and abide
by each and every stipulation, agreement, condition and covenant contained in
the Notes, this Deed of Trust and every other Loan Document and any and all
leases and other agreements with respect to the Property to which Trustor is a
party.
1.1.B. Trustor shall protect, indemnify and hold Beneficiary
harmless from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs, and expenses (including, without limitation,
attorneys' fees and court costs) imposed upon or incurred by Beneficiary by
reason of this Deed of Trust or in exercising, performing, enforcing, or
protecting Beneficiary's rights, title, or interests set forth herein, and any
claim or demand whatsoever which may be asserted against Beneficiary by reason
of any alleged obligation or undertaking to be performed or discharged by
Beneficiary under this Deed of Trust and such amounts paid by Beneficiary shall
become part of the Secured Obligations. In addition, Trustor covenants and
agrees that it shall:
(1) not initiate, join in or consent to any change in any
covenant, easement, or other public or private restriction, limiting or defining
the uses which may be made of the Property, or any part thereof, without
Beneficiary's prior written consent;
(2) not take any action or fail to take any action which
will result in any Imposition affecting the Property, Trustor, either of the
Notes or this Deed of Trust; and
(3) indemnify and hold Beneficiary harmless from any and all
costs, damages or liabilities resulting from, arising out of, or related to, the
creation or existence of any liens, Impositions or encumbrances by or against
Trustor or Trustor's predecessor in title, or the Property.
1.1.C. Trustor covenants that Trustor is lawfully seized and
possessed of the Property and has good right to convey the lien of this Deed of
Trust as an encumbrance against the Property, that the Property is unencumbered
except for those matters expressly approved by Beneficiary in writing, liens in
favor of Beneficiary, leases permitted hereunder and rights of lessors under
leases of equipment constituting a part of the Property (hereafter referred to
as the "Permitted Exceptions"), and that Trustor does warrant and will forever
defend the title thereto against the claims of all persons whomsoever, except as
to the Permitted Exceptions.
1.2. TAXES, LIENS AND OTHER CHARGES.
1.2.A. In the event of the passage of any law, order, rule or
regulation subsequent to the date hereof, in any manner changing or modifying
the taxation of deeds of trust or security agreements so as to affect
Beneficiary adversely, Trustor shall promptly pay any such tax on or before the
due date thereof.
1.2.B. Trustor shall pay before the due date thereof, all
Impositions and all license fees, permit fees, liens, judgments, assessments and
all other expenses, fees and charges of every character whatsoever now or
hereafter levied, assessed, or imposed on the Property or Trustor, or any part
thereof, or any estate, right, or interest therein, or upon the rents, issues,
income or profits thereof, or relating to the Property. Trustor shall submit to
Beneficiary such evidence of the due and punctual payment of all real estate
taxes and assessments assessed against the Property or any portion thereof as
Beneficiary may require. In addition, within ten (10) days following request by
Beneficiary, Trustor shall submit to Beneficiary evidence of the due and
punctual payment of all such other Impositions, levies, license fees, permit
fees, judgments or assessments now or hereafter levied, assessed or imposed on
the Property or Trustor as may be identified in such request.
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1.2.C. Trustor shall not suffer any mechanic's, materialmen's,
laborer's, statutory or other lien to be created, filed of record, or to remain
outstanding upon all or any part of the Property.
1.2.D. Notwithstanding the provisions of Sections 1.2.A.,B. and
C., above, Trustor may, at its expense, contest the validity or application of
any Impositions or license fees, permit fees, liens, judgments or assessments by
appropriate legal proceedings promptly initiated and diligently conducted in
good faith, provided that (a) Beneficiary is reasonably satisfied that the
priority of this Deed of Trust shall be maintained and neither the Property nor
any part thereof or interest therein will be in danger of being sold, forfeited,
or lost as a result of such contest, and (b) Trustor shall have posted a bond or
furnished such other security as may be reasonably required from time to time by
Beneficiary.
1.3. INSURANCE.
1.3.A. Trustor shall, at its expense, procure for, deliver to and
maintain for the benefit of Beneficiary, until the Secured Obligations are fully
repaid, original fully paid insurance policies (or if such policy is a "blanket"
policy which includes land, improvements, personalty, or income other than the
Property or income derived from the Property, a certified copy of such blanket
policy and an original certificate from the insurer evidencing the allocation of
coverage to the Property and the income from the Property), providing the
following types of insurance relating to the Property, issued by insurance
companies with a Best's rating of "A," VIII, or better, without regard to the
rating of the insurance company's parent or subsidiary, in such amounts, in such
form and content and with such expiration dates as are approved by Beneficiary:
(1) broad form property insurance against all risks of
physical loss, including, without limitation, fire, extended coverage,
vandalism, malicious mischief, earthquake, flood and collapse, with waiver of
subrogation, insuring to the extent of the full replacement cost of all
improvements on the Property, without deduction for depreciation, either without
co-insurance requirements or with agreed amount endorsement attached;
(2) public liability insurance covering all liabilities or
risks incident to the ownership, possession, occupancy and operation of the
Property having limits of not less than $1,000,000 each accident, $1,000,000 per
occurrence, and $500,000 property damage, subject to Beneficiary's right to
require increased coverage amounts; and
(3) such other insurance with respect to the Property or
any replacements or substitutions therefor, in such amounts as may from time to
time be required by Beneficiary, against other insurable casualties which at the
time are commonly insured against by prudent operators of properties of similar
type or character.
Such insurance policies shall (i) provide that the insurer shall give
Beneficiary at least thirty (30) days' prior written notice of cancellation,
amendment, non-renewal or termination, in the manner provided for the giving of
notices under Section 5.5 below, (ii) provide that no act or omission by the
insured shall invalidate or diminish the insurance provided to Beneficiary,
(iii) except for liability policies, contain a mortgagee clause naming
Beneficiary as an additional insured and loss payee in a form satisfactory to
Beneficiary, and (iv) provide for a deductible no greater than $100,000.00, with
the exception of earthquake insurance which shall provide for a deductible of no
greater than ten percent (10%) of damages.
1.3.B. Subject to Beneficiary's prior written consent, not to be
unreasonably withheld, delayed or conditioned, Trustor is hereby authorized and
empowered to adjust, compromise or settle any loss under any insurance policies
maintained pursuant hereto. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Beneficiary, instead of
to Trustor and Beneficiary jointly. In the event any insurance company fails to
disburse directly and solely to Beneficiary but disburses instead either solely
to Trustor or to Trustor and Beneficiary jointly, Trustor agrees immediately to
endorse and transfer such proceeds to Beneficiary. After deducting from said
insurance proceeds all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, Beneficiary may apply
the net proceeds or any part thereof, at its sole option (1) to a prepayment of
either of the Notes without prepayment premium or penalty, (2) to the repair
and/or restoration of the Property, and/or (3) for any other purposes or objects
for which Beneficiary is entitled to advance funds under this Deed of Trust, all
without reducing or impairing the lien of this Deed of Trust or any obligations
secured hereby. Any balance of such proceeds then remaining shall be paid to
Trustor or any other person or entity lawfully entitled thereto. Notwithstanding
the foregoing, insurance proceeds shall be made available to Trustor for the
repair and/or restoration of the Property upon the following conditions: (i) the
insurance proceeds, together with the funds, if any, to be deposited by Trustor
with Beneficiary are sufficient to restore the Property, (ii) the Property is
capable of being restored, as reasonably determined by Beneficiary, (iii)
applicable zoning and planning laws and ordinances permit the restoration of the
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Property, (iv) there is no Event of Default under any of the Loan Documents, or
an event with the passage of time or the giving of notice or both shall
constitute an Event of Default, and (v) following restoration, both Trustor and
the Property will be in compliance with all covenants set forth in this Deed of
Trust.
1.3.C. At least five (5) days prior to the expiration date of each
policy maintained pursuant to this Section 1.3, a renewal or replacement thereof
satisfactory to Beneficiary shall be delivered to Beneficiary. Trustor shall
provide to Beneficiary on an annual basis, and at such other times as
Beneficiary may request from time to time, a summary of the status, renewal,
replacement and full payment of premiums for all insurance required hereunder.
The delivery of any insurance policies hereunder shall constitute an assignment
of all unearned premiums as further security hereunder.
1.3.D. On all property policies and coverages, Beneficiary shall
be named as "first mortgagee" under a standard mortgagee clause, and referred to
verbatim as follows: Monumental Life Insurance Company, and its successors,
assigns and affiliates, as their interest may appear; c/o AEGON USA Realty
Advisors, Inc., Mortgage Loan Dept.; 4333 Edgewood Road, NE; Cedar Rapids, Iowa;
52499-5443.
1.4 CONDEMNATION.
1.4.A. If all or any portion of the Property shall be damaged or
taken through condemnation (which term when used in this Deed of Trust shall
include any damage or taking by any governmental or quasi-governmental authority
and any transfer or grant by private sale made in anticipation of or in lieu
thereof), either temporarily or permanently, then all the Secured Obligations
shall, at the option of Beneficiary, become immediately due and payable without
prepayment premium. Promptly upon learning of the institution or the proposed,
contemplated or threatened institution of any condemnation proceeding, Trustor
shall notify Beneficiary of the pendency of such proceedings, and no settlement
respecting awards in such proceedings shall be effected without the consent of
Beneficiary. Beneficiary shall be entitled to receive all compensation, awards,
proceeds and other payments or relief relating to or payable as a result of such
condemnation. Subject to Beneficiary's prior written consent, not to be
unreasonably withheld, delayed or conditioned, Trustor shall be entitled to
commence, appear in and prosecute any action or proceeding relating to any
condemnation, and to settle or compromise any claim in connection therewith. All
such compensation, awards, damages, claims, rights of action and proceeds and
the right thereto are hereby assigned by Trustor to Beneficiary.
1.4.B. If Beneficiary does not elect to declare all the Secured
Obligations immediately due and payable, as provided in Section 1.4.A. above,
then Beneficiary, after deducting from said condemnation proceeds all of its
expenses incurred in the collection and administration of such sums, including,
without limitation, attorneys' fees, may apply the net proceeds or any part
thereof, at its option: (1) to a prepayment of either of the Notes, without
prepayment premium, (2) to the repair and/or restoration of the Property upon
such conditions as Beneficiary may determine, and/or (3) for any other purposes
or objects for which Beneficiary is entitled to advance funds under this Deed of
Trust, all without reducing or impairing the lien of this Deed of Trust or any
obligations secured hereby. Any balance of such moneys then remaining shall be
paid to Trustor or any other person or entity lawfully entitled thereto.
1.4.C. Notwithstanding the provisions of Section 1.4.A., above,
condemnation awards shall be made available to Trustor for the restoration of
the Property upon the following conditions: (i) the award, together with the
funds, if any, to be deposited by Trustor with Beneficiary are sufficient to
restore the Property; (ii) the Property is capable of being restored as
reasonably determined by Beneficiary, (iii) applicable zoning and planning laws
and ordinances permit the restoration of the Property, (iv) there is no Event of
Default under any of the Loan Documents, or an event with the passage of time or
the giving of notice or both shall constitute an Event of Default, and (v)
following restoration, both Trustor and the Property will be in compliance with
all covenants set forth in this Deed of Trust, and (v) the remaining Property
shall comply with all applicable land use, zoning and subdivision requirements.
1.4.D. Beneficiary shall not be obligated to see to the proper
application of any amount paid over to Trustor. If, prior to the receipt by
Beneficiary of such award or proceeds, the Property shall have been sold on
foreclosure of this Deed of Trust, or as a result of other legal action relating
to this Deed of Trust or the Notes, Beneficiary shall have the right to receive
such award or proceeds to the extent of any unpaid Secured Obligations following
such sale, with legal interest thereon, whether or not a deficiency judgment on
this Deed of Trust or either of the Notes shall have been sought or recovered,
and to the extent of attorneys' fees, costs and disbursements incurred by
Beneficiary in connection with the collection of such award or proceeds.
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1.5 CARE OF PROPERTY.
1.5.A. Trustor shall keep the Property, including without
limitation all permanent plantings, drainage and wastewater facilities, roads,
buildings, fixtures, appurtenances, equipment and improvements of any kind now
or hereafter erected on or used in connection with the Land or any part thereof,
in good condition and repair, shall not commit or suffer any waste. Trustor
shall also replace roofs, parking lots, mechanical systems and other elements of
the Property requiring periodic replacement. Trustor shall not do or suffer to
be done anything which would or could increase the risk of fire or other hazard
to the Property or any part thereof or which would or could result in the
cancellation of any insurance policy carried with respect to the Property.
1.5.B. Trustor shall not cause or permit the removal, demolishment
or material alteration, enlargement or change to any structure or other
improvement located on the Land without Beneficiary's prior written consent.
Trustor shall not cause or permit the construction of any new improvements on
the Land without Beneficiary's prior written consent. Trustor shall not cause or
permit the removal of any fixture, chattel or part of the Property from the Land
without Beneficiary's prior written consent, except where appropriate
replacements are immediately made which are free of any lien, security interest
or claim superior to that of this Deed of Trust and which have a value and
utility at least equal to the value and utility of the fixture or chattel
removed, which replacement shall, without further action, become subject to the
lien of this Deed of Trust; provided, however, that the foregoing restriction
shall not prohibit Trustor from removing or disposing of obsolete, dilapidated
and out-of-service equipment previously removed from the operating facilities
located on the Property (and replaced as indicated above) and stored on the
Property in the area referred to by the Trustor as its "boneyard" area.
1.5.C. Trustor shall ensure that all operations of the Property
conform to all applicable standards of the U.S. Food and Drug Administration and
the U.S. Department of Agriculture. Trustor shall ensure that all wastewater or
other discharges to the environment are conducted in conformance with current
industry practices and all current regulatory requirements. Trustor shall use
the Property solely as a mushroom growing, packaging and storage facility and
directly related purposes.
1.5.D. Without otherwise limiting the Trustor's covenant not to
commit or permit waste, Trustor shall not (1) remove or permit the removal of
sand, gravel, topsoil or timber, (2) use or permit the use of the Property for
barrow pit operations, (3) use or permit the use of the Property as a land fill
or dump, (4) burn or bury or permit the storage, burning or burying of any
material or product which will result in contamination of the Property or the
groundwater or which will require the issuance of a permit by the Environmental
Protection Agency or any state or local government agency governing the issuance
of hazardous or toxic waste permits, or (5) request or permit a change in the
zoning or land use classification in effect as of the date of this Deed of
Trust.
1.5.E. Trustor, at its sole cost and expense, shall ensure that the
Land will continue to have the continuing, enforceable right to receive
irrigation water from such sources, in such quantities, and at such times and
locations as is reasonably satisfactory for the purposes of farming, without
substantially increased cost, and in such quantities, and at such times and
locations as has been historically available to the Land.
1.5.F. Beneficiary or its representative is hereby authorized to
enter upon the Land at all reasonable times for purposes of inspecting the
Property and for the purpose of performing any of the acts Beneficiary is
authorized to perform hereunder or under the terms of any of the Loan Documents.
1.5.G. Trustor will perform and comply promptly with, and cause the
Property to be maintained, used and operated in accordance with, any and all (1)
present and future laws, ordinances, rules, and regulations, including without
limitation, all applicable federal, state and local laws pertaining to air and
water quality, hazardous waste, waste disposal, air emissions and other
environmental matters, all zoning and other land use matters, and rules,
regulations and ordinances of the United States Environmental Protection Agency
and all other applicable federal, state and local agencies and bureaus; and (2)
policies of insurance at any time in force with respect to the Property. Trustor
shall maintain in force and in good standing all licenses, permits or contracts
necessary, or reasonably considered by Beneficiary to be desirable for the
contemplated operation and maintenance of the Property. If Trustor receives any
notice that Trustor or the Property is in default under or is not in compliance
with any of the foregoing, or notice of any proceeding initiated under or with
respect to any of the foregoing, Trustor will promptly furnish a copy of such
notice to Beneficiary.
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1.5.H. If all or any part of the Property shall be damaged by fire
or other casualty at a cost of restoration in excess of $250,000, Trustor shall
give immediate written notice thereof to Beneficiary and shall promptly restore
the Property to the equivalent of its original condition; and if a part of the
Property shall be damaged through condemnation, Trustor shall promptly restore,
repair or alter the remaining portions of the Property in a manner satisfactory
to Beneficiary. In the event all or any portion of the Property shall be damaged
or destroyed by fire or other casualty or by condemnation, Trustor shall
promptly deposit with Beneficiary a sum equal to the amount by which the
estimated cost of the restoration of the Property, as determined by Beneficiary,
exceeds the actual net insurance or condemnation proceeds received by
Beneficiary in connection with such damage or destruction, or with Beneficiary's
consent, provide such other assurance or security so as to protect the integrity
of the loan to value ratio upon which the Loans were underwritten and secure the
Trustor's obligation to restore the Property, as may be acceptable to
Beneficiary in its sole and absolute discretion.
1.6 REPRESENTATIONS AND WARRANTIES. Trustor, for itself and its
successors and assigns, represents and warrants to and for the benefit of
Beneficiary as follows.
1.6.A. Trustor has the lawful right and authority to grant, assign,
transfer and/or mortgage its interest in the Property and each portion thereof
as provided in this Deed of Trust.
1.6.B. Neither Trustor's execution and delivery of the Notes, this
Deed of Trust or any other of the Loan Documents, nor the taking of any action
in compliance with any of the foregoing will (1) contravene, cause a breach of,
or constitute a default under any contract or agreement to which Trustor is a
party, or (2) violate or contravene any law, order, decree, rule or regulation
to which Trustor is subject.
1.6.C. The Property and each portion thereof is free from liens,
encumbrances, possessory interests and adverse claims of title other than the
Permitted Exceptions.
1.6.D. All reports, certificates, affidavits, statements, financial
information and other data provided by Trustor to Beneficiary in connection with
the Loans are true and correct in all material respects and do not omit any
material information.
1.6.E. The Property and each portion thereof, and Trustor's actual
and intended use of the Property and each portion thereof, complies with all
applicable covenants, conditions and restrictions, zoning ordinances, subdivided
lands laws, building codes, applicable public health and safety and
environmental laws and regulations, and all other ordinances, orders or
requirements issued by any local, state or federal authorities which have or
claim jurisdiction over the Property.
1.6.F. No pending or threatened judicial or administrative actions,
suits or proceedings affecting Trustor or the Property or any portion thereof
would, if determined adversely either to Trustor or the Property, materially
impair either the Property or Trustor's ability to perform the covenants or
obligations required to be performed under the Notes, this Deed of Trust or any
of the other Loan Documents.
1.6.G. Trustor declares and certifies, under penalty of perjury,
that: (1) the Taxpayer Identification Number of Trustor is 74-1264568; (2) the
business mailing address of Trustor is as set forth on page 1 hereof; (3)
Trustor is not a "foreign person" within the meaning of Sections 1445 and 7701
of the Internal Revenue Code of 1986, as amended (the "Code"); and (4) Trustor
understands that the information and certification contained in this Section
1.6.G. may be disclosed to the Internal Revenue Service and that any false
statement contained herein could be punished by fine, imprisonment or both.
1.6.H. Trustor agrees (1) to provide Beneficiary with a new
certification containing the provisions of Section 1.6.G. above immediately upon
any change in such information, and (2) upon any transfer which is permitted by
the terms of this Deed of Trust, to cause such transferee to execute and deliver
to Beneficiary a certificate concerning the non-foreign status of such
transferee substantially in the form of Section 1.6.G. above
1.6.I. The Land has, and will continue to have, the continuing,
enforceable right to receive irrigation water from such sources, in such
quantities, and at such times and locations as is reasonably satisfactory for
the purposes of farming, without interruption and in such quantities, and at
such times and locations as has been historically available to the Land. With
respect to any portion of the Land on which the water used on the Land is
derived from wells: (a) Trustor has filed with the Department of Water Resources
all notices and other documents required under California Water Code in
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connection with such wells; (b) all such wells are located on the Land; and (c)
to the best of Trustor's knowledge, all water drawn from such wells are derived
from a ground water basin lying beneath the Land.
1.6.J. Trustor has taken, and shall continue to take, all steps
required to perfect and maintain the Water Rights in all respect (including, but
not limited to, the point of withdrawal, rate of diversion, the duty, the season
of use, the nature of use and the lands to which the right is appurtenant).
1.7 SUBROGATION. To the full extent of the Secured Obligations,
Beneficiary is hereby subrogated to the liens, claims and demands, and to the
rights of the owners and holders of each lien, claim, demand and other
encumbrance on the Property which is paid or satisfied, in whole or in part, out
of the proceeds of either of the Loans, and the respective liens, claims,
demands and other encumbrances shall be, and each of them is hereby, preserved
and shall pass to and be held by Beneficiary as additional collateral and
further security for the Secured Obligations, to the same extent they would have
been preserved and would have been passed to and held by Beneficiary had they
been duly and legally assigned, transferred, set over and delivered unto
Beneficiary by assignment, notwithstanding the fact that any instrument
providing public notice of the same may be satisfied and canceled of record.
1.8 TRANSFER OF THE PROPERTY; SECONDARY FINANCING.
1.8.A. The identity and expertise of Trustor were and continue to
be material circumstances upon which Beneficiary has relied in connection with,
and which constitute valuable consideration to Beneficiary for, extending the
Secured Obligations to Trustor, and any change in such identity or expertise
could materially impair or jeopardize the security for the payment and
performance of the Secured Obligations. Trustor covenants and agrees with
Beneficiary, as part of the consideration for extending the Secured Obligations
to Trustor, that without Beneficiary's prior written consent, Trustor shall not,
voluntarily or by operation of law:
(1) sell, contract to sell, transfer, convey, assign or
otherwise hypothecate or dispose of, all or any part of the Property or any
interest therein whether or not as collateral security for any other obligation
of Trustor;
(2) subject to exception for a transfer by an individual to
a revocable trust created by such individual for estate planning purposes and
transfers of title or interest under any will or testament or applicable law of
descent, (a) enter into any transaction of dissolution, merger or consolidation,
(b) acquire any other business or corporation, (c) acquire all or substantially
all of the property or assets of any other person or entity, or (d) sell,
transfer, assign, or otherwise dispose of voting control of more than fifty
percent (50%) of the beneficial interest in the voting common stock and the
profits, losses and capital of Trustor outstanding as of the date of this Deed
of Trust, if the result of any of the foregoing transactions is (i) that Trustor
shall have acquired the assets of any person or entity which are not primarily
used in connection with a business which is agribusiness in nature, or (ii) a
surviving entity which is not primarily in a business which is agribusiness in
nature, (iii) a person other than Trustor being the surviving entity, or (iv)
any person or entity other than James I. Tankersley and his immediate family
members, or entities solely owned or controlled thereby, owning and controlling
more than 50% of the voting common stock and beneficial interests in the
profits, losses and capital of Trustor;
(3) cause or permit any junior encumbrance or lien to be
placed on the Property or other collateral for the Secured Obligations or upon
more than 50% of the beneficial interest or ownership in Trustor outstanding as
of the date of this Deed of Trust, which encumbrance is not released or
reconveyed within five (5) days written notice by Beneficiary;
(4) transfer, assign, sell, lease, exchange, gift, encumber,
pledge, hypothecate, alienate, grant an option to purchase, or otherwise dispose
of, directly, indirectly or in trust, voluntarily or involuntarily, by operation
of law or otherwise, or enter into a binding agreement to do any of the
foregoing with respect to all or any part of the Water Rights, unless Trustor
shall have demonstrated to Beneficiary's satisfaction, determined in its sole
and absolute discretion and approved in writing prior to the transaction in
question, that adequate replacement or substitute sources of water for the
Property exist and have been procured in such quantities and at such times and
locations as are reasonably satisfactory for the purposes of operating the
Property without interruption and in such quantities, and at such times and
locations as have been historically available to the Property;
(5) enter into or renew any leases, subleases, tenant
contracts, or rental agreements with respect to any portion of the Property for
terms (including any renewal or extension options) in excess of one (1) year.
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1.8.B. Any purported transaction in violation of Section 1.8.A. above
shall be void and shall entitle Beneficiary to declare all the Secured
Obligations immediately due and payable without notice or demand. Beneficiary
may give or withhold its consent to any of the foregoing in its sole and
absolute discretion and consent may be conditioned upon payment to Beneficiary
of a fee for processing the request for consent and other administrative costs
incurred in connection therewith, and/or an express written assumption by any
permitted transferee of the Notes and the Loan Documents in form satisfactory to
Beneficiary, and/or an increase in the rate of interest on the unpaid balance of
the Notes to a then current market rate, and/or a change in the term of the
Notes, and/or other changes in the terms of the Loan Documents as Beneficiary
may determine, all of which Trustor hereby agrees are reasonable conditions to
the approval of any such transfer.
1.8.C. Notwithstanding the provisions of Section 1.8.A., above, Trustor
shall be entitled to do the following:
(1) Replace items of equipment constituting a portion of the
Property encumbered hereby; provided that all such replacements or substitutions
shall have a value and utility at least equal to the value and utility of the
equipment removed, and provided that all such replacements or substitutions
shall remain encumbered by the first lien and security interest of this Deed of
Trust. Trustor shall execute all such documents and instruments as may be
required to protect and preserve the first lien priority of this Deed of Trust
with respect to any replacements or substitutions of any portion of the
equipment portion of the Property.
(2) Remove or dispose of obsolete, dilapidated and
out-of-service equipment previously removed from the operating facilities
located on the Property (and replaced as indicated above) and stored on the
Property in the area referred to by the Trustor as its "boneyard" area.
(3) Convert the Trustor from a publicly-traded to a
privately-held corporation, provided that:
(a) upon the completion of any such transaction, James
I. Tankersley and his immediate family members, or entities solely owned or
controlled thereby, shall own and control at least 51% of the voting common
stock and beneficial interests in the profits, losses and capital of Trustor;
(b) Beneficiary is provided at least thirty (30) days
prior written notice of the completion of the conversion transaction together
with copies of related documentation, and the resulting privately-held entity
assumes all liability under the Notes, this Deed of Trust and all other Loan
Documents, and executes such additional documents relating to the Loans and the
Loan Documents as may be required by Beneficiary to protect the enforceability,
priority and underwriting standards of the Loans and the Loan Documents; and
(c) the lien and security interest evidenced by the
Loan Documents shall not be diminished by any such change in the ownership of
Trustor.
1.8.D. The consent by Beneficiary to any sale, transfer,
conveyance, pledge, encumbrance, assignment, creation of a security interest in
or other hypothecation or disposition of the Property or the beneficial
interests of Trustor shall not be deemed to constitute a novation of the Secured
Obligations or a consent to any further sale, transfer, pledge, encumbrance,
creation of a security interest or other hypothecation or disposition, or to
waive Beneficiary's right, at its option, to exercise its remedies for default,
without notice to or demand upon Trustor or to any other person or entity upon
any such sale, transfer, pledge, encumbrance, creation of a security interest in
or other hypothecation, or disposition to which Beneficiary shall not have
consented.
1.9 LIMIT ON INTEREST. If from any circumstances whatsoever,
fulfillment of any provision of this Deed of Trust, the Notes or any other Loan
Document, at the time performance of such provision becomes due, exceeds the
limit on interest then permitted by any applicable usury statute or any other
applicable law, with regard to obligations of like character and amount, then
Beneficiary may, at its option (a) to the extent permitted under applicable law,
declare the entire Indebtedness secured hereby, including interest and late
charges, if any, and all other sums owing, immediately due and payable, (b)
reduce the obligations to be fulfilled to such limit on interest, or (c) apply
the amount held to be in excess of such limit on interest to the reduction of
the outstanding principal balance of either of the Notes, and not to the payment
of interest, with the same force and effect as though Trustor had specifically
designated such sums to be so applied to principal and Beneficiary had agreed to
accept such extra payment(s) as a premium-free prepayment, so that in no event
shall any exaction be possible under the Notes or this Deed of Trust, that is in
excess of the applicable limit on interest. It is the intention of
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Trustor and Beneficiary that the total liability for payments in the nature of
interest shall not exceed the limits imposed by any applicable state or federal
interest rate laws. The provisions of this Section 1.9 shall control every other
provision of this Deed of Trust, and any provision of the Loan Documents in
conflict with this Section 1.9.
1.10 PERFORMANCE BY BENEFICIARY OF DEFAULTS BY TRUSTOR. Trustor
covenants and agrees that, if it shall default in the payment of any tax, lien,
assessment, or charge levied or assessed against the Property; in the payment of
any utility charge, whether public or private; in the payment of any insurance
premium; in the procurement of insurance coverage and the delivery of the
insurance policies required hereunder; or in the performance or observance of
any other covenant, condition or term of this Deed of Trust, then Beneficiary,
at its option, but without obligation and without notice, may pay, perform or
observe the same, and all payments made or costs incurred by Beneficiary in
connection therewith shall be secured hereby and shall be, without demand,
immediately repaid by Trustor to Beneficiary with interest thereon, from the
date such payment is made or expense is incurred by Beneficiary to the date
Beneficiary is reimbursed therefor, at the Default Interest Rate provided in the
Notes. Trustor hereby indemnifies Beneficiary against any and all costs,
liabilities or damages, arising from or in any way related to the performance of
Trustor's obligations by Beneficiary. Notwithstanding the foregoing, Trustor
may, at its expense, contest the validity or application of any of the foregoing
charges, taxes, liens or payments by appropriate legal proceedings promptly
initiated and diligently conducted in good faith, provided that (a) Beneficiary
is reasonably satisfied that the priority of this Deed of Trust shall be
maintained and neither the Property nor any part thereof or interest therein
will be in danger of being sold, forfeited, or lost as a result of such contest,
and (b) if the total liability exposure is in excess of $250,000, Trustor shall
have posted a bond or furnished such other security as may be reasonably
required from time to time by Beneficiary.
1.11 ACCOUNTING AND FINANCIAL INFORMATION. Trustor shall keep and
maintain, or shall cause to be kept and maintained, at Trustor's cost and
expense, proper and accurate books, records and accounts reflecting all items of
expense in connection with the operation of the Property and in connection with
any services, equipment, or furnishings provided in connection with the
operation of the Property. Trustor shall furnish the following statements and
other information to Beneficiary, all of which shall fairly and accurately
present the financial condition of the subject thereof as of the dates thereof
and shall be certified by Trustor's principal financial or accounting officer:
(1) quarterly, within sixty (60) days after the end of each fiscal
quarter, unaudited, compiled financial statements and related reports; and
(2) annually, within one hundred (120) days after the end of
Trustor's fiscal year, at Trustor's expense, audited annual balance sheets,
profit and loss statements, and all supporting schedules covering the operations
of the Trustor.
From and after an Event of Default Beneficiary may require that any such
statements shall be audited and/or prepared and certified by an independent
certified public accountant selected or approved by Beneficiary. In the event
that Trustor shall refuse or fail to furnish any statement as aforedescribed, or
in the event such statement shall be inaccurate or false, or in the event of
failure of Trustor to permit Beneficiary or its representatives to inspect the
Property or the said books and records, such acts of Trustor shall be a default
hereunder and Beneficiary may proceed in accordance with the rights and remedies
afforded Beneficiary under the provisions hereof.
1.12 FINANCIAL COVENANTS.
1.12.A. Definitions. For purposes of this Section 1.12, the
following terms shall be defined as set forth below:
(1) "Assets" shall mean anything owned or controlled by
Trustor or any right or interest therein of Trustor.
(2) "Consolidated Basis" shall mean the assets,
liabilities and equities of the Trustor and any subsidiary shall be deemed to be
one for accounting purposes in calculating the various ratios and requirements
used herein.
(3) "Consolidated Net Income" shall mean "Net Income" as
defined in Generally Accepted Accounting Principles, determined on a
Consolidated Basis.
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(4) "Consolidated Tangible Net Worth" shall mean all
Tangible Assets less all Liabilities of Trustor, determined on a Consolidated
Basis.
(5) "Current Assets" shall mean Assets owned by Trustor
which normally will be converted into cash within a year.
(6) "Current Liabilities" shall mean Liabilities of
Trustor which must be paid or satisfied within a year, excluding any deferred
taxes.
(7) "Current Ratio" shall mean the ratio of Current Assets
to Current Liabilities.
(8) "Funded Debt" shall mean any loan or other obligation
of the Trustor maturing within a period in excess of one year, excluding
capitalized leases and revolving lines of credit.
(9) "Liabilities" shall mean any debt or obligation of
Trustor.
(10) "Net Tangible Assets" shall mean Tangible Assets less
all Current Liabilities.
(11) "Net Worth" shall mean all Assets less all
Liabilities of Trustor.
(12) "Tangible Assets" shall mean all Assets except assets
such as goodwill, patents and similar assets of an intangible nature.
1.12.B. Specific Covenants. All of the following covenants shall
be satisfied at all times during the term of the Loans:
(1) Consolidated Current Assets less Consolidated Current
Liabilities shall not, on a quarterly and fiscal year end basis, be less than
Ten Million Dollars ($10,000,000.00).
(2) As of the date of recordation of this Deed of Trust,
Consolidated Tangible Net Worth shall not, on a quarterly and fiscal year end
basis, be less than Twenty-Seven Million Five Hundred Thousand Dollars
($27,500,000.00) (the "Consolidated Net Worth Minimum"). During each fiscal year
thereafter, the Consolidated Net Worth Minimum shall increase (but not decrease)
by 25% of the previous fiscal year's Consolidated Net Income.
(3) The ratio of Funded Debt to Net Worth shall not exceed
2.15 to 1, as determined as of the end of each fiscal year.
(4) Current year payments on operating leases with terms
in excess of one (1) year shall not, as of the end of any fiscal year, exceed
Four Million Five Hundred Thousand Dollars ($4,500,000.00).
1.13 ADDITIONAL COVENANTS.
1.13.A. All transactions between Trustor and any of its affiliates
shall be based on arms' length dealing in the ordinary course of business.
1.13.B. Trustor shall not, in the event Trustor is or becomes a
subsidiary or affiliate of another company, or creates a subsidiary or affiliate
of its own, make contributions, dividends, loans or other cash advances directly
or indirectly, to such parent, subsidiary or affiliate if either of the Loans
are in default or if any interest and/or principal payments currently due and
payable are outstanding, or if Trustor will not be able to make any payments
required under either of the Loans during the following twelve (12) months.
1.14 LOAN PURPOSE. Trustor hereby covenants, represents and warrants
that the loan secured by this Deed of Trust has been incurred and made solely
for agricultural business purposes, such covenant and agreement having been made
to induce Beneficiary to make said loan; and the proceeds of said loan are being
used entirely for such agricultural business purposes.
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1.15 CONSENT REQUIRED FOR INCLUSION OF PROPERTY IN IMPROVEMENT
DISTRICTS. Trustor hereby covenants, represents and warrants that it will not
create or initiate, vote for, or in any other manner join in or consent by
affirmative voluntary action to the creation of, or the inclusion of the
Property or any part thereof within the boundaries of any irrigation, levee,
drainage or other improvement district (except school or road), under which any
such district has, or will have, the power to issue bonds or other evidences of
indebtedness and/or the power to make assessments against the Property, without
the written consent of Beneficiary.
ARTICLE 2
ASSIGNMENT OF RENTS AND PROCEEDS, LEASES, AND CONTRACTS
2.1 ASSIGNMENT OF RENTS AND PROCEEDS AND LEASES. In connection
with the Loan, Trustor hereby absolutely, presently and irrevocably assigns,
grants, transfers, and conveys to Beneficiary, its successors and assigns, all
of Trustor's right, title, and interest in, to, and under all leases, subleases,
tenant contracts, rental agreements, whether written or oral, now or hereafter
affecting all or any part of the Property or Trustor's use thereof, and any
agreement for the use or occupancy of all or any part of said Property which may
have been made heretofore or which may be made hereafter, including any and all
extensions, renewals, and modifications of the foregoing and guaranties of the
performance or obligations of any tenants thereunder, and all other arrangements
of any sort resulting in the payment of money to Trustor or in Trustor becoming
entitled to the payment of money for the use of the Property or any part thereof
whether such user or occupier is tenant, invitee, or licensee (all of the
foregoing hereafter referred to collectively as "Leases" and individually as a
"Lease", and said tenants, invitees, and licensees are hereafter referred to
collectively as "Tenants" and individually as "Tenant" as the context requires),
which Leases cover all or portions of the Property; together with all of
Trustor's right, title, and interest in and to all income, rents, issues,
royalties, profits, rights and benefits and all Tenants' security and other
similar deposits derived with respect to the Leases and with respect to the
Property, (hereafter collectively referred to as "Rents and Proceeds"), and the
right, without taking possession of the Real Property, to collect the same as
they become due and to apply such Rents and Proceeds to the Secured Obligations.
It is the intent of Trustor and Beneficiary to establish an absolute transfer
and assignment of all of the Leases and the Rents and Proceeds to Beneficiary in
accordance with California Civil Code Section 2938.
2.2 ASSIGNMENT OF CONTRACTS. In connection with the Loan, Trustor
hereby absolutely, presently and irrevocably assigns, grants, transfers, and
conveys to Beneficiary, its successors and assigns, all of Trustor's right,
title, and interest in, to, and under all management contracts, construction
contracts, insurance policies, and other contracts, licenses and permits,
whether written or oral, now or hereafter affecting all or any part of the
Property or Trustor's use thereof, which may have been made heretofore or which
may be made hereafter, including any and all extensions, renewals, and
modifications of the foregoing and guaranties of the performance or obligations
of any obligors thereunder (all of the foregoing hereafter referred to
collectively as the "Contracts" and individually as a "Contract" as the context
requires); together with all of Trustor's right, title, and interest in and to
all income, issues, royalties, profits, rights and benefits derived with respect
to the Contracts and with respect to the Property, and the right to collect the
same as they become due. The foregoing assignment encompasses the right of
Trustor to (a) terminate any of the Contracts, (b) perform or compel performance
and otherwise exercise all remedies under the Contracts, and (c) collect and
receive all sums which may become due Trustor or which Trustor may now or shall
hereafter become entitled to demand or claim, under the Contracts.
2.3 DISCLAIMER. Neither the assignments set forth in Sections 2.1 and
2.2 above nor Beneficiary's exercise of its rights thereunder shall: (a) make
Beneficiary a "mortgagee-in-possession" or otherwise responsible for the
operations of and on the Property; or (b) be construed as Beneficiary's
affirmation of any Lease or Contract, Beneficiary's assumption of any obligation
or responsibility for the nonperformance by Trustor under any Lease or Contract,
or Beneficiary's subordination of the lien of this Deed of Trust to any such
Lease or Contract.
2.4 REPRESENTATIONS, WARRANTIES AND COVENANTS. Trustor hereby
represents, warrants, and covenants as follows.
2.4.A. Trustor is the sole holder of the landlord's interest under
the Leases, is entitled to receive the Rents and Proceeds from the Leases and
from the Property, and has the full right to sell, assign, transfer, and set
over the same and to grant to and confer upon Beneficiary the rights, interests,
powers, and authorities herein granted and conferred.
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2.4.B. Trustor is the sole holder of the Contracts, is entitled to
all the benefits of the Contracts, and has the full right to sell, assign,
transfer and set over the same and to grant and confer upon Beneficiary the
rights, interests, powers, and authorities herein granted and conferred.
2.4.C. Trustor has made no pledge or assignment of the Leases,
Rents and Proceeds, or Contracts prior to the date hereof, and Trustor shall
not, after the date hereof, make or permit any such pledge or assignment.
2.4.D. Trustor shall provide Beneficiary with a fully-executed
original counterpart of each Lease, amendment, modification or alteration
thereto. Trustor shall authorize and direct, and does hereby authorize and
direct, each and every present and future Tenant of the whole or any part of the
Property to pay all rental to Beneficiary from and after the date of receipt of
written demand from Beneficiary to do so.
2.5 LICENSE. Although this Deed of Trust constitutes an absolute,
present and current assignment of all Rents and Proceeds, as long as no Event of
Default as defined in Section 4.1 below, on the part of Trustor shall have
occurred, Beneficiary shall not demand that Rents and Proceeds be paid directly
to Beneficiary, and Trustor shall have a license to collect, but not more than
one (l) year prior to the due date thereof, all such Rent and Proceeds
(including, without limitation, all rental payments under the Leases).
ARTICLE 3
SECURITY AGREEMENT AND FIXTURE FILING
3.1 GRANT. As additional security for the Secured Obligations,
Trustor hereby grants to Beneficiary a security interest in and to all Trustor's
right, title and interest now owned or hereafter acquired in and to the
following property, hereinafter referred to collectively as the "Personal
Property":
(a) all fixtures, equipment, apparatus, machinery and other
property of the type and nature included within the definition of Improvements
and Fixtures in Section A(2) above and growing crops as described in Section
A(9) above to the extent, if any, such items are characterized for any purpose
as personal property (rather than as improvements and/or fixtures so related to
the Land that an interest therein arises under applicable law);
(b) all Water Rights (as defined in Section A(6) above) now or
hereafter associated with the Land (to the extent, if any, such rights are not
deemed to be interests in real property);
(c) all Leases (as defined in Section 2.1 above) and all Contracts
(as defined in Section 2.2 above) and any guaranties thereof;
(d) all causes of action and recoveries now or hereafter existing
for any loss or diminution in value of the Land or any of the collateral
described herein;
(e) all rents, issues, profits, insurance proceeds and condemnation
awards or compensation, development rights, easement rights, agreements,
licenses, permits, governmental authorizations and all other contract rights and
general intangibles arising out of or incident to the ownership, development,
management or operation of the Land or the collateral described herein, and all
accounts holding or constituting cash proceeds of any of the collateral
described herein;
(f) all additions to, and substitutions, renewals, replacements,
products and proceeds of, the foregoing.
Notwithstanding any inference to the contrary set forth above or
elsewhere in this Deed of Trust, "Personal Property" does not include, and the
security interest granted herein does not encumber, Trustor's right, title and
interest in and to accounts receivable, inventory, rolling stock, tradenames,
brands, supplies or the products or proceeds thereof.
3.2 SECURITY AGREEMENT. This Deed of Trust is hereby made and
declared to be a security agreement encumbering each and every item of Personal
Property described in Section 3.1 above in accordance with the Uniform
Commercial Code as enacted in the State of California (the "UCC"). Upon request
by Beneficiary, at any time and from time to time, a financing statement or
statements perfecting the lien of this security agreement as encumbering the
Personal Property
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shall be executed by Trustor and delivered to Beneficiary for filing with the
California Secretary of State. The security interest granted herein shall attach
as soon as Trustor obtains any interest in any of the Personal Property and
before the Personal Property becomes fixtures or before the Personal Property is
installed or affixed to other collateral for the benefit of Beneficiary under
this Deed of Trust.
3.3 FIXTURE FILING. Some of the items of property described herein
are goods that are or are to become fixtures related to the real estate
described herein, and it is intended that, as to those goods, this Deed of Trust
and Security Agreement shall be effective as a financing statement recorded as a
fixture filing from the date of its recording in the real estate records of the
county in which the Land is located. Information concerning the security
interest created by this instrument may be obtained from the Beneficiary, as
"Secured Party," or Trustor, as "Debtor," at their respective mailing addresses
set out in Section 5.5 below. Trustor warrants that (a) Trustor's (that is,
"Debtor's") name, identity, and principal place of business are as referred to
in the first paragraph of this Deed of Trust, (b) each Trustor (that is,
"Debtor") has been using or operating under said name and identity without
change for at least five (5) years; and (c) the location of all tangible
collateral is upon the Land. Trustor covenants and agrees that Trustor will
furnish Beneficiary with notice of any change in the matters addressed by
clauses (a) or (b) of this Section 3.3 within thirty (30) days of the effective
date of any such change, and Trustor will promptly execute any financing
statements or other instruments deemed necessary by Beneficiary to prevent any
filed financing statement from becoming misleading or losing its perfected
status.
3.4 REPRESENTATIONS, WARRANTIES AND COVENANTS. Trustor hereby
represents, warrants, and covenants as follows.
3.4.A. Without the prior written consent of Beneficiary and other
than as set forth in Section 1.8, above, Trustor will not remove or permit to be
removed from the Real Property, any of the Personal Property unless the same is
replaced immediately with unencumbered collateral of a quality and value equal
or superior to that which it replaces. All such replacements, renewals and
additions shall become and be immediately subject to the security interest of
this Deed of Trust and be covered thereby. Trustor warrants and represents that
all Personal Property now is, and that all replacements thereof, substitutions
therefor or additions thereto will be, free and clear of liens, encumbrances or
security interests of others, except as to the Permitted Exceptions. The
security interest held by Beneficiary shall cover cash and non-cash proceeds of
the Personal Property.
3.4.B. All of the Property is and shall be owned by Trustor, and is
not and shall not be the subject matter of any lease or other instrument,
agreement or transaction whereby the ownership or beneficial interest thereof or
therein shall be held by any person or entity other than Trustor, except to the
extent Beneficiary consents in writing to any lease of any of such property,
which consent may be withheld or delayed in Beneficiary's sole discretion.
Trustor shall not create or cause to be created any security interest covering
any of the Personal Property, other than (1) the security interest created
herein in favor of Beneficiary, (2) the rights of Tenants lawfully occupying the
Property pursuant to Leases approved by Beneficiary, or (3) the Permitted
Exceptions.
ARTICLE 4
EVENTS OF DEFAULT; REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an "Event of Default" hereunder:
(a) the failure by Trustor to pay, or cause to be paid, any
installment of principal or interest under either of the Notes or other
indebtedness secured by this Deed of Trust, within ten (10) days from the date
when due and payable;
(b) the failure by Trustor to pay, or cause to be paid, the entire
amount of the Secured Obligations upon the maturity of either of the Loans by
acceleration or by lapse of time;
(c) the failure by Trustor to pay, or cause to be paid, within
three (3) business days of notice of the sum due and owing, any other sum that
may be due and payable under this Deed of Trust or any of the other Loan
Documents;
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(d) any transfer prohibited under Section 1.8 above to which
Beneficiary has not first consented in writing or which has not been cured as
provided in such Section 1.8;
(e) any representation or warranty of Trustor contained in this
Deed of Trust or in any other Loan Document proves to be untrue or misleading in
any material respect as of the time made and Beneficiary, by written notice
delivered to Trustor, declares Trustor to be in default as a result thereof;
(f) any representation or warranty of Trustor contained in this
Deed of Trust or in any other Loan Document becomes untrue or misleading in any
material respect as of any subsequent time prior to the satisfaction in full of
all of the Secured Obligations and Trustor fails to cure such default within ten
(10) days of Beneficiary's written notice of such default delivered to Trustor;
(g) the occurrence of any Event of Default under any of the other
Loan Documents, including without limitation: (i) that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing of even date
herewith, executed by Trustor for the benefit of Beneficiary encumbering
property located in the County of Marion, State of Oregon, (ii) that certain
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing of
even date herewith, executed by Trustor for the benefit of Beneficiary
encumbering property located in the County of Santa Barbara, State of
California, (iii) that certain Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing of even date herewith, executed by Trustor for the
benefit of Beneficiary, encumbering property located in the County of Millard,
State of Utah;
(h) the failure to cause the release or reconveyance of any federal
or state tax lien filed or recorded against the Property within sixty (60)
calendar days following the filing or recording of such lien and in any event
prior to the initiation of a foreclosure action in connection therewith;
(i) the filing by any Trustor, any principal of any Trustor, or any
endorser or guarantor of the Notes, of a voluntary petition in bankruptcy
pursuant to any federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors (hereafter referred to
collectively as "Bankruptcy Law") or the issuing of an order for relief against
any Trustor, any principal of any Trustor or any endorser or guarantor of either
of the Notes under any such Bankruptcy Law, or the filing by any Trustor, any
principal of any Trustor, or any endorser or guarantor of the Notes of any
petition or answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief for
itself under any present or future Bankruptcy Law;
(j) the seeking of, consenting to, or acquiescing in, by Trustor,
any principal of any Trustor, or any endorser or guarantor of the Notes, the
appointment of any trustee, custodian, receiver, or liquidator of any such
person or of all or any substantial part of the Property or of any or all of the
income, rents, revenues, issues, earnings, profits or income thereof or of any
other property or assets of such person; or the making by any such person of any
general assignment for the benefit of creditors, or the admission in writing by
any such person of its inability to pay its debts generally as they become due,
or the commission by any such person of any act providing grounds for the entry
of an order for relief under any Bankruptcy Law;
(k) the failure to cause the dismissal of any involuntary petition
in bankruptcy brought against any Trustor, any principal of any Trustor or any
endorser or guarantor of the Notes within sixty (60) calendar days after the
same is filed but in any event prior to the entry of an order, judgment, or
decree approving such petition;
(l) the Property is subjected to actual or threatened waste;
(m) any Trustor, any principal of Trustor, or any endorser or
guarantor of either of the Notes (if a corporation) is liquidated or dissolved
or its charter expires or is revoked, or any Trustor or such endorser or
guarantor (if a partnership or business association) is dissolved or
partitioned, or any Trustor or such endorser or guarantor (if a trust) is
terminated or expires, or any Trustor or such endorser or guarantor (if an
individual) dies;
(n) the failure to cause the dismissal of any claim by any person
or entity in any legal or equitable proceeding challenging the first priority
lien of this Deed of Trust, subject only to the Permitted Exceptions, within
sixty (60) calendar days of the filing of such claim but in any event at least
thirty (30) days prior to the entry of an order, judgment, or decree in such
proceeding;
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(o) the default by Trustor under any other loan secured by a lien
on any portion of the Property and the expiration of any applicable notice
and/or cure period;
(p) the failure to cause the dismissal of any action filed under
any federal or state law, which permits forfeiture of Trustor's interest in the
Property, including but not limited to, any indictment under the Racketeer
Influence and Corrupt Organization Act of 1970 (RICO), within sixty (60)
calendar days of the filing of such action but in any event at least thirty (30)
days prior to entry of an order, judgment, or decree in such action;
(q) the failure by Trustor duly to observe or perform any other
term, covenant, condition or agreement of this Deed of Trust immediately upon
written notice of such failure; provided, however, if such failure cannot be
immediately cured, then failure by Trustor to immediately commence the curing
thereof and diligently to prosecute such curing to completion within one hundred
twenty (120) days following receipt of written notice or if Trustor either
ceases to purse the cure of such failure with diligence or repudiates its
obligation to effect such a cure; or
(r) the entry of any judgment against Trustor if the judgment may
materially and adversely affect the value, use or operation of the Property and
results in the entry of an order for relief against Trustor which is not fully
stayed within sixty (60) calendar days after the entry thereof.
4.2 REMEDIES. Upon and after any Event of Default, Beneficiary and/or
Trustee shall be entitled to invoke any and all of the rights and remedies
described below, and any other remedies available to secured creditors
generally. All of such rights and remedies shall be cumulative, and the exercise
of any one or more of them shall not constitute an election of remedies.
4.2.A. Beneficiary, by written notice given to Trustor, may declare
the entire principal of both of the Notes then outstanding (if not then due and
payable), and all accrued and unpaid interest thereon, all prepayment premiums
payable thereunder and all other obligations of Trustor hereunder to be due and
payable immediately, and upon any such declaration the principal of the Notes
and said accrued and unpaid interest and any prepayment premiums shall become
and be immediately due and payable, anything in the Notes or in this Deed of
Trust to the contrary notwithstanding. Notwithstanding the foregoing, with
respect to an Event of Default arising from the failure to pay any amounts
evidenced by the Notes on the dates due thereunder, Beneficiary shall provide
Trustor with five (5) days' written notice prior to acceleration; provided that
no additional notice shall be required upon acceleration, and further provided
that such notice obligation shall not release Trustor from any late charges or
default interest incurred in connection with such Event of Default as more
particularly provided in the Notes.
4.2.B. Trustee or Beneficiary personally, or by its agents,
attorneys or receiver appointed by the court, may enter, take possession of,
manage and operate all or any part of the Property, and in its own name or in
the name of Trustor sue for or otherwise collect any and all rents or other
proceeds of the Property and may also do any and all other things in connection
with those actions that Beneficiary may in its sole discretion consider
necessary and appropriate to protect the security of this Deed of Trust. Such
other things may include: insuring or keeping the Property insured, entering
into, enforcing, modifying or canceling Leases on such terms and conditions as
Beneficiary may consider proper; obtaining and evicting Tenants; fixing or
modifying rents; completing any unfinished construction; contracting for and
making repairs and alterations; performing such acts of cultivation or
irrigation as necessary to conserve the value of the Property; and preparing for
harvest, harvesting and selling any crops that may be growing on the Property.
Trustor hereby irrevocably constitutes and appoints Beneficiary as its
attorney-in-fact to perform such acts and execute such documents as Beneficiary
in its sole discretion may consider to be appropriate in connection with taking
these measures, including endorsement of Trustor's name on any instruments.
Trustor agrees to deliver to Beneficiary all books and records pertaining to the
Property, including computer-readable memory and any computer hardware or
software necessary to access or process such memory, as may reasonably be
requested by Beneficiary in order to enable Beneficiary to exercise its rights
under this Section. All expenses, including receiver's fees and attorneys' fees,
costs and agent's compensation incurred pursuant to this Section shall be
payable by Trustor to Beneficiary upon demand and shall be secured by this Deed
of Trust. Anything in this Section 4.2 to the contrary notwithstanding,
Beneficiary shall not be obligated to discharge or perform the duties of a
landlord to any Tenant or incur any liability as the result of any exercise by
Beneficiary of its rights under this Deed of Trust, and Beneficiary shall be
liable to account only for the rents, incomes, issues, profits, and revenues
actually received by Beneficiary.
4.2.C. Beneficiary shall have all of the remedies of a secured
party under the UCC, and any other applicable California law or the laws of the
State by which the Notes or any of the other Loan Documents are governed,
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including without limitation the right and power to sell, or otherwise dispose
of, the Personal Property, or any part thereof. For that purpose Beneficiary may
take immediate and exclusive possession of the Personal Property, or any part
thereof, and with or without judicial process, enter upon any Land on which the
Personal Property, or any part thereof, may be situated and remove the same
therefrom without being deemed guilty of trespass and without liability for
damages thereby occasioned or, at Beneficiary's option, Trustor shall assemble
the Personal Property and make it available to Beneficiary at the place and at
the time designated in the demand. Beneficiary shall be entitled to hold,
maintain, preserve and prepare the Personal Property for sale. Beneficiary
without removal may render the Personal Property unusable and dispose of the
Personal Property on the Land. To the extent permitted by law, Trustor expressly
waives any notice of sale or other disposition of the Personal Property and any
other right or remedy of Beneficiary existing after default hereunder, and to
the extent any such notice is required and cannot be waived, Trustor agrees that
as it relates to this Section 4.2.C. only, if such notice is marked, postage
prepaid, to Trustor at the above address at least five (5) days before the time
of the sale or disposition, such notice shall be deemed commercially reasonable
and shall fully satisfy any requirement for giving of said notice.
4.2.D. Notwithstanding anything in Section 4.2.C. above which might
otherwise be construed to the contrary, Beneficiary shall have the option of
proceeding as to the Real Property and all or some of the Personal Property in
accordance with its rights and remedies with respect to the real property in
accordance with the unified sale procedures set forth in the UCC.
4.2.E. Beneficiary may bring an action in any court of competent
jurisdiction to foreclose this Deed of Trust or to obtain specific enforcement
of any of the covenants or agreements of this Deed of Trust.
4.2.F. Beneficiary may cause the Property to be sold by Trustee as
permitted by applicable law. Before any such trustee's sale, Beneficiary or
Trustee shall give such notice of default and election to sell as may then be
required by law. When all time periods then legally mandated have expired, and
after such notice of sale as may then be legally required has been given,
Trustee shall sell the Property, either as a whole or in separate parcels, and
in such order as Trustee may determine, at a public auction to be held at the
time and place specified in the notice of sale. Neither Trustee nor Beneficiary
shall have any obligation to make demand on Trustor before any trustee's sale.
At any trustee's sale, Trustee shall sell to the highest bidder at public
auction for cash in lawful money of the United States. Any person, including
Trustor, Trustee or Beneficiary, may purchase at the trustee's sale. Trustee
shall execute and deliver to the purchaser a deed or deeds conveying the
property being sold without any covenant or warranty whatsoever, express or
implied. The recitals in any such deed of any matters or facts, including any
facts bearing upon the regularity or validity of any trustee's sale, shall be
conclusive proof of their truthfulness. Any such deed shall be conclusive
against all persons as to the facts recited in it.
4.2.G. Beneficiary may apply to any court of competent jurisdiction
for the appointment of a receiver or receivers for the Property and of all the
earnings, revenues, rents, issues, profits and income therefrom, ex parte,
without notice, and without regard to the sufficiency or value of any security
for the Secured Obligations or the solvency of any party bound for its payment,
the expenses of which shall be secured by this Deed of Trust.
4.2.H. Beneficiary may take such steps to (1) protect and enforce
its rights whether by action, suit or proceeding in equity or at law for the
specific performance of any covenant, condition or agreement in the Notes, or in
this Deed of Trust, or (2) aid in the execution of any power herein granted, (3)
accomplish any foreclosure hereunder, or (4) enforce any other appropriate legal
or equitable remedy or otherwise as Beneficiary shall elect.
4.2.I. No remedy herein conferred upon or reserved to Trustee or
Beneficiary is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by this Deed of Trust to Trustee or
Beneficiary, or to which either of them may be otherwise entitled, may be
exercised from time to time and as often as may be deemed expedient by Trustee
or Beneficiary, and either of them may pursue inconsistent remedies. If there
exists additional security for the performance of the Secured Obligations, the
holder(s) of the Notes, at its(their) sole option and without limiting or
affecting any rights or remedies hereunder, may exercise any of the rights and
remedies to which it may be entitled hereunder either concurrently with whatever
other rights it may have in connection with such other security or in such order
as it may determine.
4.3 APPLICATION OF SALE PROCEEDS. In the event of a foreclosure sale of
all or any portion of the Property, the proceeds of such sale shall be applied
as follows:
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(a) first, to the payment of the costs and expenses of such sale,
including reasonable compensation to Trustee, its agents and counsel, and of any
judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Trustee or Beneficiary under this
Deed of Trust together with interest at the rate then payable under the Notes
plus five percent (5%) per annum or the maximum rate permitted by any applicable
law governing interest rate restrictions, if any maximum is applicable to the
subject obligation, whichever is lower, on all advances made by Beneficiary;
(b) second, to the payment of the whole amount then due, owing
or unpaid upon the Notes or any other Secured Obligations, for principal,
interest, prepayment premiums and late charges as stated in the Notes or any
other Secured Obligations, with interest on the unpaid principal and accrued
interest at the rate specified in the Notes or any other Secured Obligation;
(c) third, to the payment of any other sums required to be paid by
Trustor pursuant to any provisions of this Deed of Trust, the Notes, or any
Secured Obligation; and
(d) fourth, the surplus, if any, to whomsoever may be lawfully
entitled to receive the same.
4.4 TRUSTOR AS TENANT AT SUFFERANCE. In the event of any such
foreclosure sale, Trustor shall be deemed a tenant at sufferance and shall
forthwith deliver possession to the purchaser or purchasers at such sale or be
summarily dispossessed according to provisions of law applicable to tenants
holding over.
4.5 LEASES. Beneficiary, at its option, is authorized to foreclose
this Deed of Trust subject to the rights of any Tenants of the Property, and the
failure to make any such Tenants parties to any such foreclosure proceedings and
to foreclose their rights will not be, nor be asserted to be by Trustor, a
defense to any proceedings instituted by Beneficiary to collect the Secured
Obligations.
4.6 WAIVER OF RIGHT TO MARSHALING. Trustor and any person who presently
has or subsequently acquires an interest in the Property with actual or
constructive notice of this Deed of Trust, waives any and all rights under
Sections 2899 and 3433 of the California Civil Code or other applicable or
successor statute or common law rule to require a marshaling of assets upon
Beneficiary's exercise of its remedies provided by this Deed of Trust.
Beneficiary, in its sole discretion, shall be entitled to determine the order in
which the Property or portions thereof shall be subjected to the remedies
provided by this Deed of Trust.
ARTICLE 5
MISCELLANEOUS
5.1 SUCCESSORS AND ASSIGNS. Subject to Section 1.8 above, this Deed of
Trust shall inure to the benefit of and be binding upon Trustor, Trustee, and
Beneficiary and their respective legal representatives, successors, and assigns.
5.2 TERMINOLOGY. All personal pronouns used in this Deed of Trust
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa.
5.3 SEVERABILITY. If any provision of this Deed of Trust or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Deed of Trust and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
5.4 APPLICABLE LAW. This Deed of Trust shall be interpreted, construed
and enforced with respect to the Property according to the laws of the State of
California; provided that in no event shall this limit any remedies that may be
available to Beneficiary under the laws of the state by which the Notes or other
Loan Documents are governed.
5.5 NOTICES, DEMANDS AND REQUESTS. All notices, demands or requests
provided for or permitted to be given pursuant to this Deed of Trust shall be in
writing and shall be delivered in person or sent by registered or certified
United
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States mail, postage prepaid, return receipt requested, or by overnight courier,
to the addresses set out below or to such other addresses as are specified by no
less than ten (10) days' prior written notice delivered in accordance herewith:
If to Beneficiary: Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5443
If to Trustor: United Foods, Inc.
Ten Pictsweet Drive
Bells, TN 38006-0119
Attention: Senior Vice President, Finance
If to Trustee: Chicago Title Insurance Company
388 Market Street, Suite 1300
San Francisco, CA 94111
All such notices, demands and requests shall be deemed effectively given and
delivered three (3) days after the postmark date of mailing, the day after
delivery to the overnight courier or, if delivered personally, when received.
Rejection or other refusal to accept or the inability to deliver because of a
changed address of which no notice was given in accordance with the time period
provided herein, shall be deemed to be receipt of the notice, demand, or request
sent.
5.6 CONSENTS AND APPROVALS. All approvals and consents hereunder shall
be in writing and no approval or consent shall be deemed to have been given
hereunder unless evidenced in a writing signed by the party from whom the
approval or consent is sought.
5.7 CERTAIN OBLIGATIONS UNSECURED. Notwithstanding anything to the
contrary set forth herein or any of the Loan Documents, this Deed of Trust shall
not secure the following obligations (the "Unsecured Obligations"): (a) any
obligations evidenced by or arising under the Environmental Indemnity Agreement;
and (b) any other obligations in this Deed of Trust or in any of the other Loan
Documents to the extent that such other obligations relate specifically to the
presence on the Property of Hazardous Materials and are the same or have the
same effect as any of the obligations evidenced by or arising under the
Environmental Indemnity Agreement. Nothing in this Section 5.7 shall, in itself,
impair or limit Beneficiary's right to obtain a judgment in accordance with
applicable law after foreclosure for any deficiency in recovery of all Secured
Obligations following foreclosure.
5.8 WAIVER. No delay or omission of Beneficiary or of any holder of
either of the Notes to exercise any right, power or remedy accruing upon any
default shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such default, or acquiescence therein; and every
right, power and remedy given by this Deed of Trust to Beneficiary may be
exercised from time to time and as often as may be deemed expedient by
Beneficiary. No consent or waiver, express or implied, by Beneficiary to or of
any breach or default by Trustor in the performance of the obligations hereunder
shall be deemed or construed to be a consent or waiver to or of any other breach
or default in the performance of the same or any other obligations of Trustor
hereunder. Failure on the part of Beneficiary to complain of any act or failure
to act or to declare an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Beneficiary of its rights hereunder
or impair any rights, powers or remedies consequent on any breach or default by
Trustor.
5.9 JURY TRIAL WAIVER. TRUSTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY HOLDER OR ANY OTHER
PERSON RELATING TO (I) THIS DEED OF TRUST, OR (II) ANY OF THE OTHER LOAN
DOCUMENTS. BORROWER HEREBY AGREES THAT THIS DEED OF TRUST CONSTITUTES A WRITTEN
CONSENT TO WAIVER OF TRIAL BY JURY PURSUANT TO THE PROVISIONS OF CALIFORNIA CODE
OF CIVIL PROCEDURE SECTION 631, AND BORROWER DOES HEREBY CONSTITUTE AND APPOINT
HOLDER ITS TRUE AND LAWFUL ATTORNEY IN FACT, WHICH APPOINTMENT IS COUPLED WITH
AN INTEREST, AND BORROWER DOES HEREBY AUTHORIZE AND EMPOWER HOLDER, IN THE NAME,
PLACE AND STEAD OF BORROWER, TO FILE THIS DEED OF TRUST WITH THE CLERK OR JUDGE
OF ANY COURT OF COMPETENT JURISDICTION AS WRITTEN CONSENT TO WAIVER OF TRIAL BY
JURY.
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5.10 ASSIGNMENT. This Deed of Trust is assignable by Beneficiary,
and any assignment hereof by Beneficiary shall operate to vest in the assignee
all rights and powers herein conferred upon and granted to Beneficiary.
5.11 TIME OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement, and obligation of Trustor under this Deed of
Trust, the Notes and all other Loan Documents.
5.12 ATTORNEYS' FEES.
5.12.A. Trustor shall forthwith pay to Beneficiary the amount of
all attorneys' fees and costs incurred by Beneficiary under and pursuant to this
Deed of Trust, the Notes, the Loan Documents or any other agreement given to
Beneficiary as security for the Notes or in connection with any transaction
contemplated hereby or thereby, or with respect to the Property or any defense
or protection, interpretation or enforcement of Beneficiary's security interest
in the Property which Beneficiary believes is necessary or desirable (whether or
not Beneficiary files a lawsuit against Trustor and including, without
limitation, a judicial foreclosure action or a non-judicial foreclosure
proceeding) in the event Beneficiary retains counsel, or incurs costs in order
to: obtain legal advice; enforce, or seek to enforce, any of its rights;
commence, intervene in, respond to, or defend any action or proceeding; file or
prosecute a claim in any action or proceeding (including without limitation, any
probate claim, bankruptcy claim, third-party claim, or secured creditor claim);
protect, obtain possession of, lease, dispose of or otherwise enforce Trustor's
right, title and interest in the Property or any portion thereof; obtain the
appointment of a receiver; or represent Beneficiary's interests in any
litigation with respect to Trustor's affairs.
5.12.B. Trustor shall and does hereby agree that, if all or a
portion of the principal sum of either of the Notes has, prior to the maturity
date fixed in the obligation, become due or been declared due by reason of an
Event of Default, the entire amount then due under the terms of this Deed of
Trust and the Notes shall include all attorneys' fees and costs and expenses
which are actually incurred as stated above, notwithstanding the provisions of
Section 2924c.(d) and Section 2924d of the California Civil Code.
5.12.C. The meaning of the terms "legal fees" or "attorneys' fees"
or any other reference to the fees of attorneys or counsel, wherever used in
this Deed of Trust, shall be deemed to include, without limitation, all legal
fees relating to litigation or appeals at any and all levels of courts and
administrative tribunals (including any appeal or petition for review), and
allocated costs of in-house counsel.
5.13 COVENANTS RUN WITH THE LAND. All of the grants, covenants, terms,
provisions and conditions herein contained shall run with the Land and shall
apply to, bind and inure to the benefit of, the successors and assigns of
Trustor and Beneficiary.
5.14 SUBSTITUTION OF TRUSTEE. Beneficiary may from time to time,
without notice to Trustor or Trustee and with or without cause and with or
without the resignation of the Trustee, substitute a successor or successors to
the Trustee named herein or acting hereunder to execute this Deed of Trust. Upon
such appointment and without conveyance to the successor Trustee, the latter
shall be vested with all title, powers and duties conferred upon the Trustee
herein named or acting hereunder. Each such appointment and substitution shall
be made by written document executed by Beneficiary, containing reference to
this Deed of Trust and its place of record, which when duly filed for record in
the proper office, shall be conclusive proof of proper appointment of the
successor Trustee. The procedure herein provided for substitution of the Trustee
shall be conclusive of all other provisions for substitution, statutory or
otherwise.
5.15 RECONVEYANCE. When all the Secured Obligations have been paid
in full and no further commitment to extend financing continues, Trustee shall
reconvey the Property, or so much of it as is then held under this Deed of
Trust, without warranty to the person or persons legally entitled to it. In the
reconveyance, the grantee may be described as "the person or persons legally
entitled thereto," and the recitals of any matters or facts shall be conclusive
proof of their truthfulness. Neither Beneficiary nor Trustee shall have any duty
to determine the rights of persons claiming to be rightful grantees of any
reconveyance.
5.16 PARTIAL RELEASE. No more than three (3) times during the term of
each of the Loans (as determined on an aggregate basis for all of the property
securing the Loans under and as provided in all of the Loan Documents (referred
to herein as the "Total Security")), upon written request of Trustor,
Beneficiary shall release a portion of the Land as identified by Trustor (the
"Release Parcel") from the lien of this Deed of Trust, subject to the
limitations and upon satisfaction by Trustor of the following terms and
conditions:
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(a) There shall be no Event of Default under any of the Loan
Documents or uncured default under the Environmental Indemnity Agreement, or any
event which with the passage of time or the giving of notice or both would
constitute a default or Event of Default, at the time of such request or at the
time of such release.
(b) If Beneficiary retains outside counsel to review and/or
prepare any documents, instruments or agreements relating to the request for
release, Trustor shall pay to Beneficiary the reasonable fees and expenses of
such outside counsel.
(c) Trustor shall pay to Beneficiary an administrative service
charge of $1,500, payable at the time of submission of the release request.
(d) Beneficiary's satisfaction that the size, location, and
boundaries of the Release Parcel and any related improvements, fixtures or
appurtenances are not required for the proper, efficient and historical
operation of the remaining portion of the Property (the "Remaining Property").
(e) Beneficiary's receipt, at Trustor's sole cost, of such title
insurance coverage as it may deem reasonably necessary to ensure that this Deed
of Trust is a valid first encumbrance against the Remaining Property, subject
only to such title exceptions as were shown in the original policy insuring this
Deed of Trust, current taxes and assessments and other exceptions to title as
may have been approved in writing by Beneficiary.
(f) Beneficiary shall have determined, in its sole and absolute
discretion that (i) there has been no material decline in the valuation of the
Total Security since the initial appraisal obtained in accordance with the Loan
Documents immediately prior to recordation of this Deed of Trust (the "Initial
Appraisal"); (ii) the Loan to Value Ratio of the Total Security less the Release
Parcel is not greater than 65% of the total outstanding balance of the Notes
using the collateral values determined by the Initial Appraisal, or at the sole
discretion of Beneficiary, using collateral values determined by an updated
appraisal prepared by an appraiser approved by Beneficiary and delivered by
Trustor, at Trustor's cost, at the time of the requested release. If the Loan to
Value Ratio so determined exceeds 65%, then Trustor's release request shall not
be considered or granted unless and until a principal payment reducing the
balance of Note A to a level that would result in a 65% or lower Loan to Value
Ratio shall have been made to Beneficiary. In determining the value of the
Remaining Property and the related Loan to Value Ratio, Beneficiary shall be
entitled to consider, among other factors, the effect of the proposed partial
release on the value of the Remaining Property and the materiality of the effect
of the release considering all relevant circumstances. Any principal payments
made in connection with a partial release shall be subject to the prepayment
provisions of the Notes, and a prepayment premium shall be payable in connection
therewith.
(g) The Remaining Property and the Release Parcel, both separately
and together, shall satisfy all requirements under pertinent subdivision, land
use, environmental and zoning laws, ordinances, rules and regulations.
(h) The Remaining Property shall be in all respects independent
from the Release Parcel, including, without limitation, the requirement that no
loss of access to or through the Remaining Property shall occur as a result of
the partial release. Upon Beneficiary's request, the Release Parcel shall be
burdened by all such easements or covenants as may be determined by Beneficiary
as necessary to the continued operation of the Remaining Property.
(i) Updated surveys of the Remaining Property and the Release
Parcel shall have been obtained at Trustor's cost and expense and delivered to
Beneficiary.
(j) All documentation relating to the creation or release of the
Release Parcel shall be satisfactory to Beneficiary in all respects. All
consents of any party requiring notice of or consent to the release of the
Release Parcel shall have been obtained by Trustor.
5.17 CONFLICT WITH COMMITMENT. In the event of any inconsistency or
conflict between this Deed of Trust and the two Agricultural Mortgage Loan
Application/Commitments between Trustor and AEGON USA Realty Advisors, Inc. both
executed by Trustor on October 2, 1998, the provisions of this Deed of Trust
shall prevail.
IN WITNESS WHEREOF, Trustor has executed and delivered this Deed of
Trust as of the date first above written.
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TRUSTOR:
UNITED FOODS, INC.,
a Delaware corporation
By /s/ Carl W. Gruenewald, II
Carl W. Gruenewald II,
Senior Vice President, Finance
By /s/Donald Dresser
Donald Dresser,
Senior Vice President, Administration
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RECORDING REQUESTED BY:
Chicago Title Company
Escrow No. 160981144
AND WHEN RECORDED MAIL TO:
Bolen, Fransen & Boostrom LLP
1322 East Shaw Avenue, Suite 430
Fresno, CA 93710
Attention: Virginia M. Pedreira
- -------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST, ASSIGNMENT OF RENTS
SECURITY AGREEMENT AND FIXTURE FILING
(Marion County, Oregon)
THIS DEED OF TRUST, ASSIGNMENT OF RENTS , SECURITY AGREEMENT AND
FIXTURE FILING (hereafter referred to as this "Deed of Trust") is made and
entered into as of December 15, 1998, by UNITED FOODS, INC., a Delaware
corporation, ("Trustor"), whose address is Ten Pictsweet Drive, Bells, TN
38006-0119, to CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation
("Trustee"), whose address is 388 Market Street, Suite 1300, San Francisco, CA
94111, for the benefit of MONUMENTAL LIFE INSURANCE COMPANY, a Maryland
corporation, its successors and assigns ("Beneficiary"), whose address is c/o
AEGON USA Realty Advisors, Inc., 4333 Edgewood Road N.E., Cedar Rapids, IA
52499-5443.
W I T N E S S E T H:
A. GRANT. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to secure the
indebtedness and other obligations of Trustor hereafter set forth, Trustor does
hereby grant, bargain, sell, convey, mortgage, assign, transfer, pledge and set
over unto Trustee and the successors and assigns of Trustee IN TRUST WITH POWER
OF SALE, for the benefit and security of Beneficiary, all of Trustor's right,
title and interest in and to the following, whether now owned or hereafter
acquired (hereafter collectively referred to as the "Real Property"):
(1) the real property located in Marion County, Oregon, as more
particularly described in Exhibit A attached hereto and incorporated herein by
reference (hereafter referred to as the "Land");
(2) all buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land (hereafter referred to as
"Improvements and Fixtures"), including, without limitation, (a) houses, barns,
sheds, warehouses, pumphouses, bunkhouses, hothouses, mobilehomes and all other
buildings and structures; (b) shrubs, trees, and permanent plantings now growing
or hereafter to be grown on the Land; (c) grain bins, storage bins and tanks,
metal sheds and buildings, wind machines, freeze and frost protection equipment,
water towers, windmills, (d) all towers, fences, gates, stakes, posts and
trellises; (e) all electric, water and gas lines, wiring, generators, motors,
pipe and equipment together with meters, transformers, switch boxes, fuse
panels, circuit breakers, timing devices, thermostats, and control valves; (f)
all wells, irrigation and drainage equipment of all types (other than portable
irrigation motors customarily towed by a motor vehicle) including, without
limitation, pumping stations, pipe, pumps, motors, gearheads, pivots, sprinkler
systems, hand lines, tow lines, control valves, culverts, and well casings; (g)
air conditioning, climate control and heating equipment including coils,
compressors, ducts and heaters; (h) all wall to wall carpet, refrigerators,
stoves and other built-in equipment; (i) processing, packaging, loading, and
storage facilities and equipment, including augers, scales, belts, motors and
conveyance equipment related thereto; (j) all other machinery, apparatus, and
equipment of every kind and nature now or hereafter attached to, located on, in,
or about the Land, or used or intended to be used in connection with the use,
operation, or enjoyment of the Land or related to the operation of the Property
(excluding property which may be or deemed to be toxic or hazardous substances
or materials, and also excluding self-propelled motor driven vehicles and farm
implements customarily towed by or attached
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thereto (collectively, "rolling stock"), but not excluding any rolling stock
which constitutes a part of any irrigation system relating to the Land),
including without limitation the property described in Exhibit B attached hereto
and incorporated herein by this reference; and (k) all additions thereto and
substitutions and replacements thereof, all of which are hereby declared and
shall be deemed to be fixtures and accessions to the Land and a part of the Real
Property as between the parties hereto and all persons claiming by, through or
under them, and which shall be deemed to be a portion of the security for the
Secured Obligations (as defined in Section B below);
(3) all easements, rights-of-way, strips and gores of land, vaults,
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, now or hereafter located on the Land or under or above the
same or any part or parcel thereof, and all estates, rights, titles, interests,
minerals, royalties, easements, privileges, liberties, tenements, hereditaments
and appurtenances, reversion and reversions, remainder and remainders
whatsoever, in any way belonging, relating or appertaining to the Land or any
part thereof, or which hereafter shall in any way belong, relate or be
appurtenant thereto, whether now owned or hereafter acquired by Trustor;
(4) all present and future rents, issues and profits of the Real
Property from time to time accruing (including, by way of illustration, all
payments under leases or tenancies, unearned premiums on any insurance policy
carried by Trustor for the benefit of Beneficiary and/or the Real Property,
tenant security deposits, escrow funds and all awards or payments, including
interest thereon and the right to receive same, growing out of or as a result of
any exercise of the right of eminent domain, including the taking of any part or
all of the Real Property or payment for alteration of the grade of any road upon
which said Real Property abuts, or any other injury to, taking of or decrease in
the value of said Real Property to the extent of all amounts which may be owing
on the Secured Obligations at the date of receipt of any such award or payment
by Trustor, and the reasonable attorneys' fees, costs and disbursements incurred
by Beneficiary in connection with the collection of such award or payment), and
all the estate, right, title, interest, property, possession, claim and demand
whatsoever at law or in equity, of Trustor of, in and to the same;
(5) all insurance policies and proceeds thereof, contracts, permits,
licenses, plans or intangibles now or hereafter dealing with, affecting or
concerning the Real Property, including, by way of illustration, all rights
accruing to Trustor from any and all contracts with all contractors, architects,
engineers or subcontractors relating to the construction of improvements on or
upon the Land, including payment, performance and/or materialmen's bonds and any
other related choses in action;
(6) all rights of Trustor or the Land to all water (including any
water inventory in storage), water rights and entitlements, other rights to
water and other rights to receive water or water rights of every kind or nature,
used or designated for use in connection with the Land, including by way of
illustration, (a) the groundwater on, under, pumped from or otherwise available
to the Land, whether as a result of groundwater rights, contractual rights or
otherwise; (b) the right to remove and extract any such groundwater including
any permits, rights or licenses granted by any governmental authority or agency
and any rights granted or created by any easement, covenant, agreement or
contract with any person or entity; (c) any rights to which the Land is entitled
with respect to surface water, whether such right is appropriative, riparian,
prescriptive or otherwise and whether or not pursuant to permit or other
governmental authorization, or the right to store any such water; (d) any water,
water right, water allocation, distribution right, delivery right, water storage
right, or other water-related entitlement appurtenant or otherwise applicable to
the Land by virtue of the Land's being situated within the boundaries of any
district, agency, or other governmental entity or within the boundaries of any
private water company, mutual water company, or other non-governmental entity;
(e) any drainage rights appurtenant or otherwise applicable to the Land; (f) all
rights to transport, carry, allocate or otherwise deliver water or any of the
foregoing rights from or to the Land by any means, wherever located; (g) any
shares (or any rights under such shares) of any private water company, mutual
water company, or other non-governmental entity pursuant to which Trustor or the
Land may receive any of the rights referred to in subsections (a) through (f),
above (collectively referred to hereafter as the "Water Rights");
(7) all rights to receive, participate in, or otherwise secure the
benefits of any and all government programs, including but not limited to set
aside programs, payment in kind programs, and governmental loans which are
available for use in connection with the Real Property;
(8) all rights to drain the Land including rights in drainage
districts (and the right to vote for and elect representatives in such drainage
districts) together with all rights of Trustor in agricultural cooperatives for
milling, ginning, grinding, storage and marketing of crops harvested from the
Land; and
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(9) all crops now or hereafter growing, grown or produced on the
Land, subject however and subordinated to the lien of an operating lender
unaffiliated with Trustor (a "Crop Lender") on growing crops which lien
terminates within 120 days following a Foreclosure Event.
A "Foreclosure Event" as used herein shall mean any transfer of title
pursuant to judicial or nonjudicial foreclosure of this Deed of Trust or deed in
lieu thereof or appointment of a receiver to assume possession of the Property.
No possessory right or license to possess, use, occupy, harvest or farm the Land
in favor of Trustor or any creditor of Trustor or any party claiming thereunder
following a Foreclosure Event shall be inferred or created by the foregoing
limitation in Beneficiary's lien on crops. However, Beneficiary will grant to
the Crop Lender a limited, nonexclusive, nontransferable license for a period
ending on the 120th day following a Foreclosure Event, to enter the Real
Property for the purpose of taking possession of its crop collateral and to
complete the cultivation and harvest of the crop collateral to be harvested
within the then-effective 90-day growing cycle, pursuant to a separate written
instrument signed by Beneficiary in connection with a Foreclosure Event, which
instrument will provide inter alia that the Crop Lender shall (a) reimburse
Beneficiary for the cost of repair of any physical damages to the Property
caused by Crop Lender, (b) exercise its rights, powers and remedies with respect
to its crop collateral, which shall include without limitation the right to care
for, cultivate, harvest and remove its crop collateral, in accordance with
reasonable agricultural and/or standards and practices, and (c) indemnify,
defend and hold Beneficiary harmless from all loss, costs, damage, claim,
expense and liability, including reasonable attorneys' fees, that Beneficiary
and its agents may suffer or experience as a result of the negligence or
intentional misconduct of Crop Lender or its agents, including without
limitation, damage to property and personal injury to or death of any person.
The Real Property described above together with the Personal Property collateral
described in Section 3.1 below are hereafter sometimes referred to collectively
as the "Property."
B. SECURED OBLIGATIONS. This Deed of Trust is given to secure the
payment and performance of the following in such manner as Beneficiary in its
sole discretion shall determine (collectively referred to hereafter as the
"Secured Obligations"):
(1) the indebtedness evidenced by (a) that certain Promissory Note
Secured by Deed of Trust of even date herewith ("Note A") made by Trustor in the
original principal amount of Ten Million and 00/100 Dollars ($10,000,000.00)
payable to the order of Beneficiary and providing for a maturity date of January
1, 2009, and (b) that certain Promissory Note Secured By Deed of Trust of even
date herewith ("Note B") made by Trustor in the original principal amount of
Fifteen Million and 00/100 Dollars ($15,000,000.00) payable to the order of
Beneficiary and providing for a maturity date of January 1, 2009 (hereafter
referred to collectively as the "Notes"), including without limitation any
prepayment premium due thereunder, together with any and all renewals,
extensions, substitutions, modifications and consolidations of the Notes and the
indebtedness evidenced thereby (the "Loans");
(2) any and all advances made by Beneficiary as hereafter provided:
(a) to protect or preserve the Property or the lien created hereby on the
Property; (b) for insurance premiums; (c) for real estate and personal property
and other taxes and assessments, and any and all other charges, expenses,
utility charges, payments, claims, mechanics' or material suppliers' liens or
assessments of any nature that at any time prior to or after the execution of
the Loan Documents (as defined in subsection (3) of this Section) may be
assessed, levied, imposed, or become a lien upon the Property, or the rent or
income received therefrom, or any use or occupancy thereof (collectively,
"Impositions"); (d) for performance of any of Trustor's obligations hereunder,
or for any other purpose provided herein (whether or not the original Trustor
remains the owner of the Property at the time of such advances); provided,
however, nothing herein shall be deemed to obligate Beneficiary to make any such
advances;
(3) any and all obligations and covenants of Trustor under the
Notes, this Deed of Trust or any other document, instrument or agreement now or
hereafter evidencing, securing or otherwise relating to the Notes secured
hereby, as amended or modified from time to time, including without limitation
that certain Borrower's Closing Certificate of even date herewith and those two
(2) certain Agricultural Mortgage Loan Application/Commitments between Trustor
and AEGON USA Realty Advisors, Inc., both executed by Trustor on October 2,
1998, and subsequently assigned to Beneficiary (hereafter referred to
collectively as the "Loan Documents"), and all costs of collection, including
reasonable attorneys' fees, but excluding however, that certain Environmental
Indemnity Agreement executed by Trustor for the benefit of Beneficiary of even
date herewith, which is not secured by the lien of this Deed of Trust (the
"Environmental Indemnity Agreement").
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ARTICLE 1
COVENANTS, REPRESENTATIONS AND WARRANTIES
Trustor hereby further covenants and agrees with and for the benefit of
Beneficiary as follows.
1.1 PAYMENT OF INDEBTEDNESS, COVENANTS AND WARRANTIES.
1.1.A. Trustor will pay each of the Notes according to the terms
thereof and will pay all other Secured Obligations, with interest thereon, as
provided in the Loan Documents, at the time and in the manner provided under the
Notes, this Deed of Trust, any instrument evidencing a future advance and any
other Loan Document, and Trustor will otherwise perform, comply with and abide
by each and every stipulation, agreement, condition and covenant contained in
the Notes, this Deed of Trust and every other Loan Document and any and all
leases and other agreements with respect to the Property to which Trustor is a
party.
1.1.B. Trustor shall protect, indemnify and hold Beneficiary
harmless from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs, and expenses (including, without limitation,
attorneys' fees and court costs) imposed upon or incurred by Beneficiary by
reason of this Deed of Trust or in exercising, performing, enforcing, or
protecting Beneficiary's rights, title, or interests set forth herein, and any
claim or demand whatsoever which may be asserted against Beneficiary by reason
of any alleged obligation or undertaking to be performed or discharged by
Beneficiary under this Deed of Trust and such amounts paid by Beneficiary shall
become part of the Secured Obligations. In addition, Trustor covenants and
agrees that it shall:
(1) not initiate, join in or consent to any change in any
covenant, easement, or other public or private restriction, limiting or defining
the uses which may be made of the Property, or any part thereof, without
Beneficiary's prior written consent;
(2) not take any action or fail to take any action which
will result in any Imposition affecting the Property, Trustor, either of the
Notes or this Deed of Trust; and
(3) indemnify and hold Beneficiary harmless from any and all
costs, damages or liabilities resulting from, arising out of, or related to, the
creation or existence of any liens, Impositions or encumbrances by or against
Trustor or Trustor's predecessor in title, or the Property.
1.1.C. Trustor covenants that Trustor is lawfully seized and
possessed of the Property and has good right to convey the lien of this Deed of
Trust as an encumbrance against the Property, that the Property is unencumbered
except for those matters expressly approved by Beneficiary in writing, liens in
favor of Beneficiary, leases permitted hereunder and rights of lessors under
leases of equipment constituting a part of the Property (hereafter referred to
as the "Permitted Exceptions"), and that Trustor does warrant and will forever
defend the title thereto against the claims of all persons whomsoever, except as
to the Permitted Exceptions.
1.2 TAXES, LIENS AND OTHER CHARGES.
1.2.A. In the event of the passage of any law, order, rule or
regulation subsequent to the date hereof, in any manner changing or modifying
the taxation of deeds of trust or security agreements so as to affect
Beneficiary adversely, Trustor shall promptly pay any such tax on or before the
due date thereof.
1.2.B. Trustor shall pay before the due date thereof, all
Impositions and all license fees, permit fees, liens, judgments, assessments and
all other expenses, fees and charges of every character whatsoever now or
hereafter levied, assessed, or imposed on the Property or Trustor, or any part
thereof, or any estate, right, or interest therein, or upon the rents, issues,
income or profits thereof, or relating to the Property. Trustor shall submit to
Beneficiary such evidence of the due and punctual payment of all real estate
taxes and assessments assessed against the Property or any portion thereof as
Beneficiary may require. In addition, within ten (10) days following request by
Beneficiary, Trustor shall submit to Beneficiary evidence of the due and
punctual payment of all such other Impositions, levies, license fees, permit
fees, judgments or assessments now or hereafter levied, assessed or imposed on
the Property or Trustor as may be identified in such request.
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1.2.C. Trustor shall not suffer any mechanic's, materialmen's,
laborer's, statutory or other lien to be created, filed of record, or to remain
outstanding upon all or any part of the Property.
1.2.D. Notwithstanding the provisions of Sections 1.2.A.,B. and C.,
above, Trustor may, at its expense, contest the validity or application of any
Impositions or license fees, permit fees, liens, judgments or assessments by
appropriate legal proceedings promptly initiated and diligently conducted in
good faith, provided that (a) Beneficiary is reasonably satisfied that the
priority of this Deed of Trust shall be maintained and neither the Property nor
any part thereof or interest therein will be in danger of being sold, forfeited,
or lost as a result of such contest, and (b) Trustor shall have posted a bond or
furnished such other security as may be reasonably required from time to time by
Beneficiary.
1.3 INSURANCE.
1.3.A. Trustor shall, at its expense, procure for, deliver to and
maintain for the benefit of Beneficiary, until the Secured Obligations are fully
repaid, original fully paid insurance policies (or if such policy is a "blanket"
policy which includes land, improvements, personalty, or income other than the
Property or income derived from the Property, a certified copy of such blanket
policy and an original certificate from the insurer evidencing the allocation of
coverage to the Property and the income from the Property), providing the
following types of insurance relating to the Property, issued by insurance
companies with a Best's rating of "A," VIII, or better, without regard to the
rating of the insurance company's parent or subsidiary, in such amounts, in such
form and content and with such expiration dates as are approved by Beneficiary:
(1) broad form property insurance against all risks of physical
loss, including, without limitation, fire, extended coverage, vandalism,
malicious mischief, earthquake, flood and collapse, with waiver of subrogation,
insuring to the extent of the full replacement cost of all improvements on the
Property, without deduction for depreciation, either without co-insurance
requirements or with agreed amount endorsement attached;
(2) public liability insurance covering all liabilities or risks
incident to the ownership, possession, occupancy and operation of the Property
having limits of not less than $1,000,000 each accident, $1,000,000 per
occurrence, and $500,000 property damage, subject to Beneficiary's right to
require increased coverage amounts; and
(3) such other insurance with respect to the Property or any
replacements or substitutions therefor, in such amounts as may from time to time
be required by Beneficiary, against other insurable casualties which at the time
are commonly insured against by prudent operators of properties of similar type
or character.
Such insurance policies shall (i) provide that the insurer shall give
Beneficiary at least thirty (30) days' prior written notice of cancellation,
amendment, non-renewal or termination, in the manner provided for the giving of
notices under Section 5.5 below, (ii) provide that no act or omission by the
insured shall invalidate or diminish the insurance provided to Beneficiary,
(iii) except for liability policies, contain a mortgagee clause naming
Beneficiary as an additional insured and loss payee in a form satisfactory to
Beneficiary, and (iv) provide for a deductible no greater than $100,000.00, with
the exception of earthquake insurance which shall provide for a deductible of no
greater than ten percent (10%) of damages.
1.3.B. Subject to Beneficiary's prior written consent, not to be
unreasonably withheld, delayed or conditioned, Trustor is hereby authorized and
empowered to adjust, compromise or settle any loss under any insurance policies
maintained pursuant hereto. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Beneficiary, instead of
to Trustor and Beneficiary jointly. In the event any insurance company fails to
disburse directly and solely to Beneficiary but disburses instead either solely
to Trustor or to Trustor and Beneficiary jointly, Trustor agrees immediately to
endorse and transfer such proceeds to Beneficiary. After deducting from said
insurance proceeds all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, Beneficiary may apply
the net proceeds or any part thereof, at its sole option (1) to a prepayment of
either of the Notes without prepayment premium or penalty, (2) to the repair
and/or restoration of the Property, and/or (3) for any other purposes or objects
for which Beneficiary is entitled to advance funds under this Deed of Trust, all
without reducing or impairing the lien of this Deed of Trust or any obligations
secured hereby. Any balance of such proceeds then remaining shall be paid to
Trustor or any other person or entity lawfully entitled thereto. Notwithstanding
the foregoing, insurance proceeds shall be made available to Trustor for the
repair and/or restoration of the Property upon the following conditions: (i) the
insurance proceeds, together with the funds, if any, to be deposited by Trustor
with Beneficiary are sufficient to restore the Property, (ii) the Property is
capable of being restored, as reasonably determined by Beneficiary, (iii)
applicable zoning and planning laws and ordinances permit the restoration of the
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Property, (iv) there is no Event of Default under any of the Loan Documents, or
an event with the passage of time or the giving of notice or both shall
constitute an Event of Default, and (v) following restoration, both Trustor and
the Property will be in compliance with all covenants set forth in this Deed of
Trust.
1.3.C. At least five (5) days prior to the expiration date of each
policy maintained pursuant to this Section 1.3, a renewal or replacement thereof
satisfactory to Beneficiary shall be delivered to Beneficiary. Trustor shall
provide to Beneficiary on an annual basis, and at such other times as
Beneficiary may request from time to time, a summary of the status, renewal,
replacement and full payment of premiums for all insurance required hereunder.
The delivery of any insurance policies hereunder shall constitute an assignment
of all unearned premiums as further security hereunder.
1.3.D. On all property policies and coverages, Beneficiary shall be
named as "first mortgagee" under a standard mortgagee clause, and referred to
verbatim as follows: Monumental Life Insurance Company, and its successors,
assigns and affiliates, as their interest may appear; c/o AEGON USA Realty
Advisors, Inc., Mortgage Loan Dept.; 4333 Edgewood Road, NE; Cedar Rapids, Iowa;
52499-5443.
1.4 CONDEMNATION.
1.4.A. If all or any portion of the Property shall be damaged or
taken through condemnation (which term when used in this Deed of Trust shall
include any damage or taking by any governmental or quasi-governmental authority
and any transfer or grant by private sale made in anticipation of or in lieu
thereof), either temporarily or permanently, then all the Secured Obligations
shall, at the option of Beneficiary, become immediately due and payable without
prepayment premium. Promptly upon learning of the institution or the proposed,
contemplated or threatened institution of any condemnation proceeding, Trustor
shall notify Beneficiary of the pendency of such proceedings, and no settlement
respecting awards in such proceedings shall be effected without the consent of
Beneficiary. Beneficiary shall be entitled to receive all compensation, awards,
proceeds and other payments or relief relating to or payable as a result of such
condemnation. Subject to Beneficiary's prior written consent, not to be
unreasonably withheld, delayed or conditioned, Trustor shall be entitled to
commence, appear in and prosecute any action or proceeding relating to any
condemnation, and to settle or compromise any claim in connection therewith. All
such compensation, awards, damages, claims, rights of action and proceeds and
the right thereto are hereby assigned by Trustor to Beneficiary.
1.4.B. If Beneficiary does not elect to declare all the Secured
Obligations immediately due and payable, as provided in Section 1.4.A. above,
then Beneficiary, after deducting from said condemnation proceeds all of its
expenses incurred in the collection and administration of such sums, including,
without limitation, attorneys' fees, may apply the net proceeds or any part
thereof, at its option: (1) to a prepayment of either of the Notes, without
prepayment premium, (2) to the repair and/or restoration of the Property upon
such conditions as Beneficiary may determine, and/or (3) for any other purposes
or objects for which Beneficiary is entitled to advance funds under this Deed of
Trust, all without reducing or impairing the lien of this Deed of Trust or any
obligations secured hereby. Any balance of such moneys then remaining shall be
paid to Trustor or any other person or entity lawfully entitled thereto.
1.4.C. Notwithstanding the provisions of Section 1.4.A., above,
condemnation awards shall be made available to Trustor for the restoration of
the Property upon the following conditions: (i) the award, together with the
funds, if any, to be deposited by Trustor with Beneficiary are sufficient to
restore the Property; (ii) the Property is capable of being restored as
reasonably determined by Beneficiary, (iii) applicable zoning and planning laws
and ordinances permit the restoration of the Property, (iv) there is no Event of
Default under any of the Loan Documents, or an event with the passage of time or
the giving of notice or both shall constitute an Event of Default, and (v)
following restoration, both Trustor and the Property will be in compliance with
all covenants set forth in this Deed of Trust, and (v) the remaining Property
shall comply with all applicable land use, zoning and subdivision requirements.
1.4.D. Beneficiary shall not be obligated to see to the proper
application of any amount paid over to Trustor. If, prior to the receipt by
Beneficiary of such award or proceeds, the Property shall have been sold on
foreclosure of this Deed of Trust, or as a result of other legal action relating
to this Deed of Trust or the Notes, Beneficiary shall have the right to receive
such award or proceeds to the extent of any unpaid Secured Obligations following
such sale, with legal interest thereon, whether or not a deficiency judgment on
this Deed of Trust or either of the Notes shall have been sought or recovered,
and to the extent of attorneys' fees, costs and disbursements incurred by
Beneficiary in connection with the collection of such award or proceeds.
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1.5 CARE OF PROPERTY.
1.5.A. Trustor shall keep the Property, including without
limitation all permanent plantings, drainage and wastewater facilities, roads,
buildings, fixtures, appurtenances, equipment and improvements of any kind now
or hereafter erected on or used in connection with the Land or any part thereof,
in good condition and repair, shall not commit or suffer any waste. Trustor
shall also replace roofs, parking lots, mechanical systems and other elements of
the Property requiring periodic replacement. Trustor shall not do or suffer to
be done anything which would or could increase the risk of fire or other hazard
to the Property or any part thereof or which would or could result in the
cancellation of any insurance policy carried with respect to the Property.
1.5.B. Trustor shall not cause or permit the removal, demolishment
or material alteration, enlargement or change to any structure or other
improvement located on the Land without Beneficiary's prior written consent.
Trustor shall not cause or permit the construction of any new improvements on
the Land without Beneficiary's prior written consent. Trustor shall not cause or
permit the removal of any fixture, chattel or part of the Property from the Land
without Beneficiary's prior written consent, except where appropriate
replacements are immediately made which are free of any lien, security interest
or claim superior to that of this Deed of Trust and which have a value and
utility at least equal to the value and utility of the fixture or chattel
removed, which replacement shall, without further action, become subject to the
lien of this Deed of Trust; provided, however, that the foregoing restriction
shall not prohibit Trustor from removing or disposing of obsolete, dilapidated
and out-of-service equipment previously removed from the operating facilities
located on the Property (and replaced as indicated above) and stored on the
Property in the area referred to by the Trustor as its "boneyard" area.
1.5.C. Trustor shall ensure that all operations of the Property
conform to all applicable standards of the U.S. Food and Drug Administration and
the U.S. Department of Agriculture. Trustor shall ensure that all wastewater or
other discharges to the environment are conducted in conformance with current
industry practices and all current regulatory requirements. Trustor shall use
the Property solely as a mushroom growing, packaging and storage facility and
directly related purposes.
1.5.D. Without otherwise limiting the Trustor's covenant not to
commit or permit waste, Trustor shall not (1) remove or permit the removal of
sand, gravel, topsoil or timber, (2) use or permit the use of the Property for
barrow pit operations, (3) use or permit the use of the Property as a land fill
or dump, (4) burn or bury or permit the storage, burning or burying of any
material or product which will result in contamination of the Property or the
groundwater or which will require the issuance of a permit by the Environmental
Protection Agency or any state or local government agency governing the issuance
of hazardous or toxic waste permits, or (5) request or permit a change in the
zoning or land use classification in effect as of the date of this Deed of
Trust.
1.5.E. Trustor, at its sole cost and expense, shall ensure that the
Land will continue to have the continuing, enforceable right to receive
irrigation water from such sources, in such quantities, and at such times and
locations as is reasonably satisfactory for the purposes of farming, without
substantially increased cost, and in such quantities, and at such times and
locations as has been historically available to the Land.
1.5.F. Beneficiary or its representative is hereby authorized to
enter upon the Land at all reasonable times for purposes of inspecting the
Property and for the purpose of performing any of the acts Beneficiary is
authorized to perform hereunder or under the terms of any of the Loan Documents.
1.5.G. Trustor will perform and comply promptly with, and cause the
Property to be maintained, used and operated in accordance with, any and all (1)
present and future laws, ordinances, rules, and regulations, including without
limitation, all applicable federal, state and local laws pertaining to air and
water quality, hazardous waste, waste disposal, air emissions and other
environmental matters, all zoning and other land use matters, and rules,
regulations and ordinances of the United States Environmental Protection Agency
and all other applicable federal, state and local agencies and bureaus; and (2)
policies of insurance at any time in force with respect to the Property. Trustor
shall maintain in force and in good standing all licenses, permits or contracts
necessary, or reasonably considered by Beneficiary to be desirable for the
contemplated operation and maintenance of the Property. If Trustor receives any
notice that Trustor or the Property is in default under or is not in compliance
with any of the foregoing, or notice of any proceeding initiated under or with
respect to any of the foregoing, Trustor will promptly furnish a copy of such
notice to Beneficiary.
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1.5.H. If all or any part of the Property shall be damaged by fire
or other casualty at a cost of restoration in excess of $250,000, Trustor shall
give immediate written notice thereof to Beneficiary and shall promptly restore
the Property to the equivalent of its original condition; and if a part of the
Property shall be damaged through condemnation, Trustor shall promptly restore,
repair or alter the remaining portions of the Property in a manner satisfactory
to Beneficiary. In the event all or any portion of the Property shall be damaged
or destroyed by fire or other casualty or by condemnation, Trustor shall
promptly deposit with Beneficiary a sum equal to the amount by which the
estimated cost of the restoration of the Property, as determined by Beneficiary,
exceeds the actual net insurance or condemnation proceeds received by
Beneficiary in connection with such damage or destruction, or with Beneficiary's
consent, provide such other assurance or security so as to protect the integrity
of the loan to value ratio upon which the Loans were underwritten and secure the
Trustor's obligation to restore the Property, as may be acceptable to
Beneficiary in its sole and absolute discretion.
1.6 REPRESENTATIONS AND WARRANTIES. Trustor, for itself and its
successors and assigns, represents and warrants to and for the benefit of
Beneficiary as follows.
1.6.A. Trustor has the lawful right and authority to grant, assign,
transfer and/or mortgage its interest in the Property and each portion thereof
as provided in this Deed of Trust.
1.6.B. Neither Trustor's execution and delivery of the Notes, this
Deed of Trust or any other of the Loan Documents, nor the taking of any action
in compliance with any of the foregoing will (1) contravene, cause a breach of,
or constitute a default under any contract or agreement to which Trustor is a
party, or (2) violate or contravene any law, order, decree, rule or regulation
to which Trustor is subject.
1.6.C. The Property and each portion thereof is free from liens,
encumbrances, possessory interests and adverse claims of title other than the
Permitted Exceptions.
1.6.D. All reports, certificates, affidavits, statements, financial
information and other data provided by Trustor to Beneficiary in connection with
the Loans are true and correct in all material respects and do not omit any
material information.
1.6.E. The Property and each portion thereof, and Trustor's actual
and intended use of the Property and each portion thereof, complies with all
applicable covenants, conditions and restrictions, zoning ordinances, subdivided
lands laws, building codes, applicable public health and safety and
environmental laws and regulations, and all other ordinances, orders or
requirements issued by any local, state or federal authorities which have or
claim jurisdiction over the Property.
1.6.F. No pending or threatened judicial or administrative actions,
suits or proceedings affecting Trustor or the Property or any portion thereof
would, if determined adversely either to Trustor or the Property, materially
impair either the Property or Trustor's ability to perform the covenants or
obligations required to be performed under the Notes, this Deed of Trust or any
of the other Loan Documents.
1.6.G. Trustor declares and certifies, under penalty of perjury,
that: (1) the Taxpayer Identification Number of Trustor is 74-1264568; (2) the
business mailing address of Trustor is as set forth on page 1 hereof; (3)
Trustor is not a "foreign person" within the meaning of Sections 1445 and 7701
of the Internal Revenue Code of 1986, as amended (the "Code"); and (4) Trustor
understands that the information and certification contained in this Section
1.6.G. may be disclosed to the Internal Revenue Service and that any false
statement contained herein could be punished by fine, imprisonment or both.
1.6.H. Trustor agrees (1) to provide Beneficiary with a new
certification containing the provisions of Section 1.6.G. above immediately upon
any change in such information, and (2) upon any transfer which is permitted by
the terms of this Deed of Trust, to cause such transferee to execute and deliver
to Beneficiary a certificate concerning the non-foreign status of such
transferee substantially in the form of Section 1.6.G. above
1.6.I. The Land has, and will continue to have, the continuing,
enforceable right to receive irrigation water from such sources, in such
quantities, and at such times and locations as is reasonably satisfactory for
the purposes of farming, without interruption and in such quantities, and at
such times and locations as has been historically available to the Land. With
respect to any portion of the Land on which the water used on the Land is
derived from wells: (a) Trustor has filed with the Department of Water Resources
all notices and other documents required under Oregon law in connection with
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such wells; (b) all such wells are located on the Land; and (c) to the best of
Trustor's knowledge, all water drawn from such wells are derived from a ground
water basin lying beneath the Land.
1.6.J. Trustor has taken, and shall continue to take, all steps
required to perfect and maintain the Water Rights in all respect (including, but
not limited to, the point of withdrawal, rate of diversion, the duty, the season
of use, the nature of use and the lands to which the right is appurtenant).
1.7 SUBROGATION. To the full extent of the Secured Obligations,
Beneficiary is hereby subrogated to the liens, claims and demands, and to the
rights of the owners and holders of each lien, claim, demand and other
encumbrance on the Property which is paid or satisfied, in whole or in part, out
of the proceeds of either of the Loans, and the respective liens, claims,
demands and other encumbrances shall be, and each of them is hereby, preserved
and shall pass to and be held by Beneficiary as additional collateral and
further security for the Secured Obligations, to the same extent they would have
been preserved and would have been passed to and held by Beneficiary had they
been duly and legally assigned, transferred, set over and delivered unto
Beneficiary by assignment, notwithstanding the fact that any instrument
providing public notice of the same may be satisfied and canceled of record.
1.8 TRANSFER OF THE PROPERTY; SECONDARY FINANCING.
1.8.A. The identity and expertise of Trustor were and continue to
be material circumstances upon which Beneficiary has relied in connection with,
and which constitute valuable consideration to Beneficiary for, extending the
Secured Obligations to Trustor, and any change in such identity or expertise
could materially impair or jeopardize the security for the payment and
performance of the Secured Obligations. Trustor covenants and agrees with
Beneficiary, as part of the consideration for extending the Secured Obligations
to Trustor, that without Beneficiary's prior written consent, Trustor shall not,
voluntarily or by operation of law:
(1) sell, contract to sell, transfer, convey, assign or
otherwise hypothecate or dispose of, all or any part of the Property or any
interest therein whether or not as collateral security for any other obligation
of Trustor;
(2) subject to exception for a transfer by an individual to
a revocable trust created by such individual for estate planning purposes and
transfers of title or interest under any will or testament or applicable law of
descent, (a) enter into any transaction of dissolution, merger or consolidation,
(b) acquire any other business or corporation, (c) acquire all or substantially
all of the property or assets of any other person or entity, or (d) sell,
transfer, assign, or otherwise dispose of voting control of more than fifty
percent (50%) of the beneficial interest in the voting common stock and the
profits, losses and capital of Trustor outstanding as of the date of this Deed
of Trust, if the result of any of the foregoing transactions is (i) that Trustor
shall have acquired the assets of any person or entity which are not primarily
used in connection with a business which is agribusiness in nature, or (ii) a
surviving entity which is not primarily in a business which is agribusiness in
nature, (iii) a person other than Trustor being the surviving entity, or (iv)
any person or entity other than James I. Tankersley and his immediate family
members, or entities solely owned or controlled thereby, owning and controlling
more than 50% of the voting common stock and beneficial interests in the
profits, losses and capital of Trustor;
(3) cause or permit any junior encumbrance or lien to be
placed on the Property or other collateral for the Secured Obligations or upon
more than 50% of the beneficial interest or ownership in Trustor outstanding as
of the date of this Deed of Trust, which encumbrance is not released or
reconveyed within five (5) days written notice by Beneficiary;
(4) transfer, assign, sell, lease, exchange, gift,
encumber, pledge, hypothecate, alienate, grant an option to purchase, or
otherwise dispose of, directly, indirectly or in trust, voluntarily or
involuntarily, by operation of law or otherwise, or enter into a binding
agreement to do any of the foregoing with respect to all or any part of the
Water Rights, unless Trustor shall have demonstrated to Beneficiary's
satisfaction, determined in its sole and absolute discretion and approved in
writing prior to the transaction in question, that adequate replacement or
substitute sources of water for the Property exist and have been procured in
such quantities and at such times and locations as are reasonably satisfactory
for the purposes of operating the Property without interruption and in such
quantities, and at such times and locations as have been historically available
to the Property;
(5) enter into or renew any leases, subleases, tenant
contracts, or rental agreements with respect to any portion of the Property for
terms (including any renewal or extension options) in excess of one (1) year.
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1.8.B. Any purported transaction in violation of Section 1.8.A.
above shall be void and shall entitle Beneficiary to declare all the Secured
Obligations immediately due and payable without notice or demand. Beneficiary
may give or withhold its consent to any of the foregoing in its sole and
absolute discretion and consent may be conditioned upon payment to Beneficiary
of a fee for processing the request for consent and other administrative costs
incurred in connection therewith, and/or an express written assumption by any
permitted transferee of the Notes and the Loan Documents in form satisfactory to
Beneficiary, and/or an increase in the rate of interest on the unpaid balance of
the Notes to a then current market rate, and/or a change in the term of the
Notes, and/or other changes in the terms of the Loan Documents as Beneficiary
may determine, all of which Trustor hereby agrees are reasonable conditions to
the approval of any such transfer.
1.8.C. Notwithstanding the provisions of Section 1.8.A., above,
Trustor shall be entitled to do the following:
(1) Replace items of equipment constituting a portion of the
Property encumbered hereby; provided that all such replacements or substitutions
shall have a value and utility at least equal to the value and utility of the
equipment removed, and provided that all such replacements or substitutions
shall remain encumbered by the first lien and security interest of this Deed of
Trust. Trustor shall execute all such documents and instruments as may be
required to protect and preserve the first lien priority of this Deed of Trust
with respect to any replacements or substitutions of any portion of the
equipment portion of the Property.
(2) Remove or dispose of obsolete, dilapidated and
out-of-service equipment previously removed from the operating facilities
located on the Property (and replaced as indicated above) and stored on the
Property in the area referred to by the Trustor as its "boneyard" area.
(3) Convert the Trustor from a publicly-traded to a
privately-held corporation, provided that:
(a) upon the completion of any such transaction, James
I. Tankersley and his immediate family members, or entities solely owned or
controlled thereby, shall own and control at least 51% of the voting common
stock and beneficial interests in the profits, losses and capital of Trustor;
(b) Beneficiary is provided at least thirty (30) days
prior written notice of the completion of the conversion transaction together
with copies of related documentation, and the resulting privately-held entity
assumes all liability under the Notes, this Deed of Trust and all other Loan
Documents, and executes such additional documents relating to the Loans and the
Loan Documents as may be required by Beneficiary to protect the enforceability,
priority and underwriting standards of the Loans and the Loan Documents; and
(c) the lien and security interest evidenced by the Loan
Documents shall not be diminished by any such change in the ownership of
Trustor.
1.8.D. The consent by Beneficiary to any sale, transfer,
conveyance, pledge, encumbrance, assignment, creation of a security interest in
or other hypothecation or disposition of the Property or the beneficial
interests of Trustor shall not be deemed to constitute a novation of the Secured
Obligations or a consent to any further sale, transfer, pledge, encumbrance,
creation of a security interest or other hypothecation or disposition, or to
waive Beneficiary's right, at its option, to exercise its remedies for default,
without notice to or demand upon Trustor or to any other person or entity upon
any such sale, transfer, pledge, encumbrance, creation of a security interest in
or other hypothecation, or disposition to which Beneficiary shall not have
consented.
1.9 LIMIT ON INTEREST. If from any circumstances whatsoever,
fulfillment of any provision of this Deed of Trust, the Notes or any other Loan
Document, at the time performance of such provision becomes due, exceeds the
limit on interest then permitted by any applicable usury statute or any other
applicable law, with regard to obligations of like character and amount, then
Beneficiary may, at its option (a) to the extent permitted under applicable law,
declare the entire Indebtedness secured hereby, including interest and late
charges, if any, and all other sums owing, immediately due and payable, (b)
reduce the obligations to be fulfilled to such limit on interest, or (c) apply
the amount held to be in excess of such limit on interest to the reduction of
the outstanding principal balance of either of the Notes, and not to the payment
of interest, with the same force and effect as though Trustor had specifically
designated such sums to be so applied to principal and Beneficiary had agreed to
accept such extra payment(s) as a premium-free prepayment, so that in no event
shall any exaction
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be possible under the Notes or this Deed of Trust, that is in excess of the
applicable limit on interest. It is the intention of Trustor and Beneficiary
that the total liability for payments in the nature of interest shall not exceed
the limits imposed by any applicable state or federal interest rate laws. The
provisions of this Section 1.9 shall control every other provision of this Deed
of Trust, and any provision of the Loan Documents in conflict with this Section
1.9.
1.10 PERFORMANCE BY BENEFICIARY OF DEFAULTS BY TRUSTOR. Trustor
covenants and agrees that, if it shall default in the payment of any tax, lien,
assessment, or charge levied or assessed against the Property; in the payment of
any utility charge, whether public or private; in the payment of any insurance
premium; in the procurement of insurance coverage and the delivery of the
insurance policies required hereunder; or in the performance or observance of
any other covenant, condition or term of this Deed of Trust, then Beneficiary,
at its option, but without obligation and without notice, may pay, perform or
observe the same, and all payments made or costs incurred by Beneficiary in
connection therewith shall be secured hereby and shall be, without demand,
immediately repaid by Trustor to Beneficiary with interest thereon, from the
date such payment is made or expense is incurred by Beneficiary to the date
Beneficiary is reimbursed therefor, at the Default Interest Rate provided in the
Notes. Trustor hereby indemnifies Beneficiary against any and all costs,
liabilities or damages, arising from or in any way related to the performance of
Trustor's obligations by Beneficiary. Notwithstanding the foregoing, Trustor
may, at its expense, contest the validity or application of any of the foregoing
charges, taxes, liens or payments by appropriate legal proceedings promptly
initiated and diligently conducted in good faith, provided that (a) Beneficiary
is reasonably satisfied that the priority of this Deed of Trust shall be
maintained and neither the Property nor any part thereof or interest therein
will be in danger of being sold, forfeited, or lost as a result of such contest,
and (b) if the total liability exposure is in excess of $250,000, Trustor shall
have posted a bond or furnished such other security as may be reasonably
required from time to time by Beneficiary.
1.11 ACCOUNTING AND FINANCIAL INFORMATION. Trustor shall keep and
maintain, or shall cause to be kept and maintained, at Trustor's cost and
expense, proper and accurate books, records and accounts reflecting all items of
expense in connection with the operation of the Property and in connection with
any services, equipment, or furnishings provided in connection with the
operation of the Property. Trustor shall furnish the following statements and
other information to Beneficiary, all of which shall fairly and accurately
present the financial condition of the subject thereof as of the dates thereof
and shall be certified by Trustor's principal financial or accounting officer:
(1) quarterly, within sixty (60) days after the end of each fiscal
quarter, unaudited, compiled financial statements and related reports; and
(2) annually, within one hundred (120) days after the end of
Trustor's fiscal year, at Trustor's expense, audited annual balance sheets,
profit and loss statements, and all supporting schedules covering the operations
of the Trustor.
From and after an Event of Default Beneficiary may require that any such
statements shall be audited and/or prepared and certified by an independent
certified public accountant selected or approved by Beneficiary. In the event
that Trustor shall refuse or fail to furnish any statement as aforedescribed, or
in the event such statement shall be inaccurate or false, or in the event of
failure of Trustor to permit Beneficiary or its representatives to inspect the
Property or the said books and records, such acts of Trustor shall be a default
hereunder and Beneficiary may proceed in accordance with the rights and remedies
afforded Beneficiary under the provisions hereof.
1.12 FINANCIAL COVENANTS.
1.12.A. Definitions. For purposes of this Section 1.12, the
following terms shall be defined as set forth below:
(1) "Assets" shall mean anything owned or controlled by
Trustor or any right or interest therein of Trustor.
(2) "Consolidated Basis" shall mean the assets,
liabilities and equities of the Trustor and any subsidiary shall be deemed to be
one for accounting purposes in calculating the various ratios and requirements
used herein.
(3) "Consolidated Net Income" shall mean "Net Income" as
defined in Generally Accepted Accounting Principles, determined on a
Consolidated Basis.
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(4) "Consolidated Tangible Net Worth" shall mean all
Tangible Assets less all Liabilities of Trustor, determined on a Consolidated
Basis.
(5) "Current Assets" shall mean Assets owned by Trustor
which normally will be converted into cash within a year.
(6) "Current Liabilities" shall mean Liabilities of
Trustor which must be paid or satisfied within a year, excluding any deferred
taxes.
(7) "Current Ratio" shall mean the ratio of Current Assets
to Current Liabilities.
(8) "Funded Debt" shall mean any loan or other obligation
of the Trustor maturing within a period in excess of one year, excluding
capitalized leases and revolving lines of credit.
(9) "Liabilities" shall mean any debt or obligation of
Trustor.
(10) "Net Tangible Assets" shall mean Tangible Assets less
all Current Liabilities.
(11) "Net Worth" shall mean all Assets less all
Liabilities of Trustor.
(12) "Tangible Assets" shall mean all Assets except assets
such as goodwill, patents and similar assets of an intangible nature.
1.12.B. Specific Covenants. All of the following covenants shall
be satisfied at all times during the term of the Loans:
(1) Consolidated Current Assets less Consolidated Current
Liabilities shall not, on a quarterly and fiscal year end basis, be less than
Ten Million Dollars ($10,000,000.00).
(2) As of the date of recordation of this Deed of Trust,
Consolidated Tangible Net Worth shall not, on a quarterly and fiscal year end
basis, be less than Twenty-Seven Million Five Hundred Thousand Dollars
($27,500,000.00) (the "Consolidated Net Worth Minimum"). During each fiscal year
thereafter, the Consolidated Net Worth Minimum shall increase (but not decrease)
by 25% of the previous fiscal year's Consolidated Net Income.
(3) The ratio of Funded Debt to Net Worth shall not exceed
2.15 to 1, as determined as of the end of each fiscal year.
(4) Current year payments on operating leases with terms
in excess of one (1) year shall not, as of the end of any fiscal year, exceed
Four Million Five Hundred Thousand Dollars ($4,500,000.00).
1.13 ADDITIONAL COVENANTS.
1.13.A. All transactions between Trustor and any of its
affiliates shall be based on arms' length dealing in the ordinary course of
business.
1.13.B. Trustor shall not, in the event Trustor is or becomes a
subsidiary or affiliate of another company, or creates a subsidiary or affiliate
of its own, make contributions, dividends, loans or other cash advances directly
or indirectly, to such parent, subsidiary or affiliate if either of the Loans
are in default or if any interest and/or principal payments currently due and
payable are outstanding, or if Trustor will not be able to make any payments
required under either of the Loans during the following twelve (12) months.
1.14 LOAN PURPOSE. Trustor hereby covenants, represents and warrants
that the loan secured by this Deed of Trust has been incurred and made solely
for agricultural business purposes, such covenant and agreement having been made
to induce Beneficiary to make said loan; and the proceeds of said loan are being
used entirely for such agricultural business purposes. Trustor warrants that
this Deed of Trust is not, and will not at any time, constitute a "residential
trust deed" (as that term is defined in ORS 86.705(3) or its successor statute).
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1.15 CONSENT REQUIRED FOR INCLUSION OF PROPERTY IN IMPROVEMENT
DISTRICTS. Trustor hereby covenants, represents and warrants that it will not
create or initiate, vote for, or in any other manner join in or consent by
affirmative voluntary action to the creation of, or the inclusion of the
Property or any part thereof within the boundaries of any irrigation, levee,
drainage or other improvement district (except school or road), under which any
such district has, or will have, the power to issue bonds or other evidences of
indebtedness and/or the power to make assessments against the Property, without
the written consent of Beneficiary.
ARTICLE 2
ASSIGNMENT OF RENTS AND PROCEEDS, LEASES, AND CONTRACTS
2.1 ASSIGNMENT OF RENTS AND PROCEEDS AND LEASES. In connection with the
Loan, Trustor hereby absolutely, presently and irrevocably assigns, grants,
transfers, and conveys to Beneficiary, its successors and assigns, all of
Trustor's right, title, and interest in, to, and under all leases, subleases,
tenant contracts, rental agreements, whether written or oral, now or hereafter
affecting all or any part of the Property or Trustor's use thereof, and any
agreement for the use or occupancy of all or any part of said Property which may
have been made heretofore or which may be made hereafter, including any and all
extensions, renewals, and modifications of the foregoing and guaranties of the
performance or obligations of any tenants thereunder, and all other arrangements
of any sort resulting in the payment of money to Trustor or in Trustor becoming
entitled to the payment of money for the use of the Property or any part thereof
whether such user or occupier is tenant, invitee, or licensee (all of the
foregoing hereafter referred to collectively as "Leases" and individually as a
"Lease", and said tenants, invitees, and licensees are hereafter referred to
collectively as "Tenants" and individually as "Tenant" as the context requires),
which Leases cover all or portions of the Property; together with all of
Trustor's right, title, and interest in and to all income, rents, issues,
royalties, profits, rights and benefits and all Tenants' security and other
similar deposits derived with respect to the Leases and with respect to the
Property, (hereafter collectively referred to as "Rents and Proceeds"), and the
right, without taking possession of the Real Property, to collect the same as
they become due and to apply such Rents and Proceeds to the Secured Obligations.
It is the intent of Trustor and Beneficiary to establish an absolute transfer
and assignment of all of the Leases and the Rents and Proceeds to Beneficiary
and not just to create a security interest.
2.2 ASSIGNMENT OF CONTRACTS. In connection with the Loan, Trustor
hereby absolutely, presently and irrevocably assigns, grants, transfers, and
conveys to Beneficiary, its successors and assigns, all of Trustor's right,
title, and interest in, to, and under all management contracts, construction
contracts, insurance policies, and other contracts, licenses and permits,
whether written or oral, now or hereafter affecting all or any part of the
Property or Trustor's use thereof, which may have been made heretofore or which
may be made hereafter, including any and all extensions, renewals, and
modifications of the foregoing and guaranties of the performance or obligations
of any obligors thereunder (all of the foregoing hereafter referred to
collectively as the "Contracts" and individually as a "Contract" as the context
requires); together with all of Trustor's right, title, and interest in and to
all income, issues, royalties, profits, rights and benefits derived with respect
to the Contracts and with respect to the Property, and the right to collect the
same as they become due. The foregoing assignment encompasses the right of
Trustor to (a) terminate any of the Contracts, (b) perform or compel performance
and otherwise exercise all remedies under the Contracts, and (c) collect and
receive all sums which may become due Trustor or which Trustor may now or shall
hereafter become entitled to demand or claim, under the Contracts.
2.3 DISCLAIMER. Neither the assignments set forth in Sections 2.1 and
2.2 above nor Beneficiary's exercise of its rights thereunder shall: (a) make
Beneficiary a "mortgagee-in-possession" or otherwise responsible for the
operations of and on the Property; or (b) be construed as Beneficiary's
affirmation of any Lease or Contract, Beneficiary's assumption of any obligation
or responsibility for the nonperformance by Trustor under any Lease or Contract,
or Beneficiary's subordination of the lien of this Deed of Trust to any such
Lease or Contract.
2.4 REPRESENTATIONS, WARRANTIES AND COVENANTS. Trustor hereby
represents, warrants, and covenants as follows.
2.4.A. Trustor is the sole holder of the landlord's interest under
the Leases, is entitled to receive the Rents and Proceeds from the Leases and
from the Property, and has the full right to sell, assign, transfer, and set
over the same and to grant to and confer upon Beneficiary the rights, interests,
powers, and authorities herein granted and conferred.
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2.4.B. Trustor is the sole holder of the Contracts, is entitled to
all the benefits of the Contracts, and has the full right to sell, assign,
transfer and set over the same and to grant and confer upon Beneficiary the
rights, interests, powers, and authorities herein granted and conferred.
2.4.C. Trustor has made no pledge or assignment of the Leases,
Rents and Proceeds, or Contracts prior to the date hereof, and Trustor shall
not, after the date hereof, make or permit any such pledge or assignment.
2.4.D. Trustor shall provide Beneficiary with a fully-executed
original counterpart of each Lease, amendment, modification or alteration
thereto. Trustor shall authorize and direct, and does hereby authorize and
direct, each and every present and future Tenant of the whole or any part of the
Property to pay all rental to Beneficiary from and after the date of receipt of
written demand from Beneficiary to do so.
2.5 LICENSE. Although this Deed of Trust constitutes an absolute,
present and current assignment of all Rents and Proceeds, as long as no Event of
Default as defined in Section 4.1 below, on the part of Trustor shall have
occurred, Beneficiary shall not demand that Rents and Proceeds be paid directly
to Beneficiary, and Trustor shall have a license to collect, but not more than
one (l) year prior to the due date thereof, all such Rent and Proceeds
(including, without limitation, all rental payments under the Leases).
ARTICLE 3
SECURITY AGREEMENT AND FIXTURE FILING
3.1 GRANT. As additional security for the Secured Obligations,
Trustor hereby grants to Beneficiary a security interest in and to all Trustor's
right, title and interest now owned or hereafter acquired in and to the
following property, hereinafter referred to collectively as the "Personal
Property":
(a) all fixtures, equipment, apparatus, machinery and other
property of the type and nature included within the definition of Improvements
and Fixtures in Section A(2) above and growing crops as described in Section
A(9) above to the extent, if any, such items are characterized for any purpose
as personal property (rather than as improvements and/or fixtures so related to
the Land that an interest therein arises under applicable law);
(b) all Water Rights (as defined in Section A(6) above) now or
hereafter associated with the Land (to the extent, if any, such rights are not
deemed to be interests in real property);
(c) all Leases (as defined in Section 2.1 above) and all Contracts
(as defined in Section 2.2 above) and any guaranties thereof;
(d) all causes of action and recoveries now or hereafter existing
for any loss or diminution in value of the Land or any of the collateral
described herein;
(e) all rents, issues, profits, insurance proceeds and condemnation
awards or compensation, development rights, easement rights, agreements,
licenses, permits, governmental authorizations and all other contract rights and
general intangibles arising out of or incident to the ownership, development,
management or operation of the Land or the collateral described herein, and all
accounts holding or constituting cash proceeds of any of the collateral
described herein;
(f) all additions to, and substitutions, renewals, replacements,
products and proceeds of, the foregoing.
Notwithstanding any inference to the contrary set forth above or
elsewhere in this Deed of Trust, "Personal Property" does not include, and the
security interest granted herein does not encumber, Trustor's right, title and
interest in and to accounts receivable, inventory, rolling stock, tradenames,
brands, supplies or the products or proceeds thereof.
3.2 SECURITY AGREEMENT. This Deed of Trust is hereby made and declared
to be a security agreement encumbering each and every item of Personal Property
described in Section 3.1 above in accordance with the Uniform Commercial Code as
enacted in the State of Oregon (the "UCC"). Upon request by Beneficiary, at any
time and from time to time, a financing statement or statements perfecting the
lien of this security agreement as encumbering the Personal Property
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shall be executed by Trustor and delivered to Beneficiary for filing with the
Oregon Secretary of State. The security interest granted herein shall attach as
soon as Trustor obtains any interest in any of the Personal Property and before
the Personal Property becomes fixtures or before the Personal Property is
installed or affixed to other collateral for the benefit of Beneficiary under
this Deed of Trust.
3.3 FIXTURE FILING. Some of the items of property described herein
are goods that are or are to become fixtures related to the real estate
described herein, and it is intended that, as to those goods, this Deed of Trust
and Security Agreement shall be effective as a financing statement recorded as a
fixture filing from the date of its recording in the real estate records of the
county in which the Land is located. Information concerning the security
interest created by this instrument may be obtained from the Beneficiary, as
"Secured Party," or Trustor, as "Debtor," at their respective mailing addresses
set out in Section 5.5 below. Trustor warrants that (a) Trustor's (that is,
"Debtor's") name, identity, and principal place of business are as referred to
in the first paragraph of this Deed of Trust, (b) each Trustor (that is,
"Debtor") has been using or operating under said name and identity without
change for at least five (5) years; and (c) the location of all tangible
collateral is upon the Land. Trustor covenants and agrees that Trustor will
furnish Beneficiary with notice of any change in the matters addressed by
clauses (a) or (b) of this Section 3.3 within thirty (30) days of the effective
date of any such change, and Trustor will promptly execute any financing
statements or other instruments deemed necessary by Beneficiary to prevent any
filed financing statement from becoming misleading or losing its perfected
status.
3.4 REPRESENTATIONS, WARRANTIES AND COVENANTS. Trustor hereby
represents, warrants, and covenants as follows.
3.4.A. Without the prior written consent of Beneficiary and other
than as set forth in Section 1.8, above, Trustor will not remove or permit to be
removed from the Real Property, any of the Personal Property unless the same is
replaced immediately with unencumbered collateral of a quality and value equal
or superior to that which it replaces. All such replacements, renewals and
additions shall become and be immediately subject to the security interest of
this Deed of Trust and be covered thereby. Trustor warrants and represents that
all Personal Property now is, and that all replacements thereof, substitutions
therefor or additions thereto will be, free and clear of liens, encumbrances or
security interests of others, except as to the Permitted Exceptions. The
security interest held by Beneficiary shall cover cash and non-cash proceeds of
the Personal Property.
3.4.B. All of the Property is and shall be owned by Trustor, and is
not and shall not be the subject matter of any lease or other instrument,
agreement or transaction whereby the ownership or beneficial interest thereof or
therein shall be held by any person or entity other than Trustor, except to the
extent Beneficiary consents in writing to any lease of any of such property,
which consent may be withheld or delayed in Beneficiary's sole discretion.
Trustor shall not create or cause to be created any security interest covering
any of the Personal Property, other than (1) the security interest created
herein in favor of Beneficiary, (2) the rights of Tenants lawfully occupying the
Property pursuant to Leases approved by Beneficiary, or (3) the Permitted
Exceptions.
ARTICLE 4
EVENTS OF DEFAULT; REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an "Event of Default" hereunder:
(a) the failure by Trustor to pay, or cause to be paid, any
installment of principal or interest under either of the Notes or other
indebtedness secured by this Deed of Trust, within ten (10) days from the date
when due and payable;
(b) the failure by Trustor to pay, or cause to be paid, the entire
amount of the Secured Obligations upon the maturity of either of the Loans by
acceleration or by lapse of time;
(c) the failure by Trustor to pay, or cause to be paid, within
three (3) business days of notice of the sum due and owing, any other sum that
may be due and payable under this Deed of Trust or any of the other Loan
Documents;
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(d) any transfer prohibited under Section 1.8 above to which
Beneficiary has not first consented in writing or which has not been cured as
provided in such Section 1.8;
(e) any representation or warranty of Trustor contained in this
Deed of Trust or in any other Loan Document proves to be untrue or misleading
in any material respect as of the time made and Beneficiary, by written notice
delivered to Trustor, declares Trustor to be in default as a result thereof;
(f) any representation or warranty of Trustor contained in this
Deed of Trust or in any other Loan Document becomes untrue or misleading in any
material respect as of any subsequent time prior to the satisfaction in full of
all of the Secured Obligations and Trustor fails to cure such default within ten
(10) days of Beneficiary's written notice of such default delivered to Trustor;
(g) the occurrence of any Event of Default under any of the other
Loan Documents, including without limitation: (i) that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing of even date
herewith, executed by Trustor for the benefit of Beneficiary encumbering
property located in the County of Ventura, State of California, (ii) that
certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing of even date herewith, executed by Trustor for the benefit of Beneficiary
encumbering property located in the County of Santa Barbara, State of
California, (iii) that certain Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing of even date herewith, executed by Trustor for the
benefit of Beneficiary, encumbering property located in the County of Millard,
State of Utah;
(h) the failure to cause the release or reconveyance of any federal
or state tax lien filed or recorded against the Property within sixty (60)
calendar days following the filing or recording of such lien and in any event
prior to the initiation of a foreclosure action in connection therewith;
(i) the filing by any Trustor, any principal of any Trustor, or any
endorser or guarantor of the Notes, of a voluntary petition in bankruptcy
pursuant to any federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors (hereafter referred to
collectively as "Bankruptcy Law") or the issuing of an order for relief against
any Trustor, any principal of any Trustor or any endorser or guarantor of either
of the Notes under any such Bankruptcy Law, or the filing by any Trustor, any
principal of any Trustor, or any endorser or guarantor of the Notes of any
petition or answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief for
itself under any present or future Bankruptcy Law;
(j) the seeking of, consenting to, or acquiescing in, by Trustor,
any principal of any Trustor, or any endorser or guarantor of the Notes, the
appointment of any trustee, custodian, receiver, or liquidator of any such
person or of all or any substantial part of the Property or of any or all of the
income, rents, revenues, issues, earnings, profits or income thereof or of any
other property or assets of such person; or the making by any such person of any
general assignment for the benefit of creditors, or the admission in writing by
any such person of its inability to pay its debts generally as they become due,
or the commission by any such person of any act providing grounds for the entry
of an order for relief under any Bankruptcy Law;
(k) the failure to cause the dismissal of any involuntary petition
in bankruptcy brought against any Trustor, any principal of any Trustor or any
endorser or guarantor of the Notes within sixty (60) calendar days after the
same is filed but in any event prior to the entry of an order, judgment, or
decree approving such petition;
(l) the Property is subjected to actual or threatened waste;
(m) any Trustor, any principal of Trustor, or any endorser or
guarantor of either of the Notes (if a corporation) is liquidated or dissolved
or its charter expires or is revoked, or any Trustor or such endorser or
guarantor (if a partnership or business association) is dissolved or
partitioned, or any Trustor or such endorser or guarantor (if a trust) is
terminated or expires, or any Trustor or such endorser or guarantor (if an
individual) dies;
(n) the failure to cause the dismissal of any claim by any person
or entity in any legal or equitable proceeding challenging the first priority
lien of this Deed of Trust, subject only to the Permitted Exceptions, within
sixty (60) calendar days of the filing of such claim but in any event at least
thirty (30) days prior to the entry of an order, judgment, or decree in such
proceeding;
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(o) the default by Trustor under any other loan secured by a lien
on any portion of the Property and the expiration of any applicable notice
and/or cure period;
(p) the failure to cause the dismissal of any action filed under
any federal or state law, which permits forfeiture of Trustor's interest in the
Property, including but not limited to, any indictment under the Racketeer
Influence and Corrupt Organization Act of 1970 (RICO), within sixty (60)
calendar days of the filing of such action but in any event at least thirty (30)
days prior to entry of an order, judgment, or decree in such action;
(q) the failure by Trustor duly to observe or perform any other
term, covenant, condition or agreement of this Deed of Trust immediately upon
written notice of such failure; provided, however, if such failure cannot be
immediately cured, then failure by Trustor to immediately commence the curing
thereof and diligently to prosecute such curing to completion within one hundred
twenty (120) days following receipt of written notice or if Trustor either
ceases to purse the cure of such failure with diligence or repudiates its
obligation to effect such a cure; or
(r) the entry of any judgment against Trustor if the judgment may
materially and adversely affect the value, use or operation of the Property and
results in the entry of an order for relief against Trustor which is not fully
stayed within sixty (60) calendar days after the entry thereof.
4.2 REMEDIES. Upon and after any Event of Default, Beneficiary and/or
Trustee shall be entitled to invoke any and all of the rights and remedies
described below, and any other remedies available to secured creditors
generally. All of such rights and remedies shall be cumulative, and the exercise
of any one or more of them shall not constitute an election of remedies.
4.2.A. Beneficiary, by written notice given to Trustor, may declare
the entire principal of both of the Notes then outstanding (if not then due and
payable), and all accrued and unpaid interest thereon, all prepayment premiums
payable thereunder and all other obligations of Trustor hereunder to be due and
payable immediately, and upon any such declaration the principal of the Notes
and said accrued and unpaid interest and any prepayment premiums shall become
and be immediately due and payable, anything in the Notes or in this Deed of
Trust to the contrary notwithstanding. Notwithstanding the foregoing, with
respect to an Event of Default arising from the failure to pay any amounts
evidenced by the Notes on the dates due thereunder, Beneficiary shall provide
Trustor with five (5) days' written notice prior to acceleration; provided that
no additional notice shall be required upon acceleration, and further provided
that such notice obligation shall not release Trustor from any late charges or
default interest incurred in connection with such Event of Default as more
particularly provided in the Notes.
4.2.B. Trustee or Beneficiary personally, or by its agents,
attorneys or receiver appointed by the court, may enter, take possession of,
manage and operate all or any part of the Property, and in its own name or in
the name of Trustor sue for or otherwise collect any and all rents or other
proceeds of the Property and may also do any and all other things in connection
with those actions that Beneficiary may in its sole discretion consider
necessary and appropriate to protect the security of this Deed of Trust. Such
other things may include: insuring or keeping the Property insured, entering
into, enforcing, modifying or canceling Leases on such terms and conditions as
Beneficiary may consider proper; obtaining and evicting Tenants; fixing or
modifying rents; completing any unfinished construction; contracting for and
making repairs and alterations; performing such acts of cultivation or
irrigation as necessary to conserve the value of the Property; and preparing for
harvest, harvesting and selling any crops that may be growing on the Property.
Trustor hereby irrevocably constitutes and appoints Beneficiary as its
attorney-in-fact to perform such acts and execute such documents as Beneficiary
in its sole discretion may consider to be appropriate in connection with taking
these measures, including endorsement of Trustor's name on any instruments.
Trustor agrees to deliver to Beneficiary all books and records pertaining to the
Property, including computer-readable memory and any computer hardware or
software necessary to access or process such memory, as may reasonably be
requested by Beneficiary in order to enable Beneficiary to exercise its rights
under this Section. All expenses, including receiver's fees and attorneys' fees,
costs and agent's compensation incurred pursuant to this Section shall be
payable by Trustor to Beneficiary upon demand and shall be secured by this Deed
of Trust. Anything in this Section 4.2 to the contrary notwithstanding,
Beneficiary shall not be obligated to discharge or perform the duties of a
landlord to any Tenant or incur any liability as the result of any exercise by
Beneficiary of its rights under this Deed of Trust, and Beneficiary shall be
liable to account only for the rents, incomes, issues, profits, and revenues
actually received by Beneficiary.
4.2.C. Beneficiary shall have all of the remedies of a secured
party under the UCC, and any other applicable Oregon law or the laws of the
State by which the Notes or any of the other Loan Documents are governed,
including
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without limitation the right and power to sell, or otherwise dispose of, the
Personal Property, or any part thereof. For that purpose Beneficiary may take
immediate and exclusive possession of the Personal Property, or any part
thereof, and with or without judicial process, enter upon any Land on which the
Personal Property, or any part thereof, may be situated and remove the same
therefrom without being deemed guilty of trespass and without liability for
damages thereby occasioned or, at Beneficiary's option, Trustor shall assemble
the Personal Property and make it available to Beneficiary at the place and at
the time designated in the demand. Beneficiary shall be entitled to hold,
maintain, preserve and prepare the Personal Property for sale. Beneficiary
without removal may render the Personal Property unusable and dispose of the
Personal Property on the Land. To the extent permitted by law, Trustor expressly
waives any notice of sale or other disposition of the Personal Property and any
other right or remedy of Beneficiary existing after default hereunder, and to
the extent any such notice is required and cannot be waived, Trustor agrees that
as it relates to this Section 4.2.C. only, if such notice is marked, postage
prepaid, to Trustor at the above address at least five (5) days before the time
of the sale or disposition, such notice shall be deemed commercially reasonable
and shall fully satisfy any requirement for giving of said notice.
4.2.D. Notwithstanding anything in Section 4.2.C. above which might
otherwise be construed to the contrary, Beneficiary shall have the option of
proceeding as to the Real Property and all or some of the Personal Property in
accordance with its rights and remedies with respect to the real property in
accordance with the unified sale procedures set forth in the UCC.
4.2.E. Beneficiary may bring an action in any court of competent
jurisdiction to foreclose this Deed of Trust or to obtain specific enforcement
of any of the covenants or agreements of this Deed of Trust. If this Deed of
Trust is foreclosed by judicial procedure, Beneficiary will be entitled to a
judgment which will provide that if the foreclosure sale proceeds are
insufficient to satisfy the judgment, execution may issue for any amount by
which the unpaid balance of the Secured Obligations exceeds the net sale
proceeds payable to Beneficiary.
4.2.F. Beneficiary may cause the Property to be sold by Trustee as
permitted by applicable law. Before any such trustee's sale, Beneficiary or
Trustee shall give such notice of default and election to sell as may then be
required by law. When all time periods then legally mandated have expired, and
after such notice of sale as may then be legally required has been given,
Trustee shall sell the Property, either as a whole or in separate parcels, and
in such order as Trustee may determine, at a public auction to be held at the
time and place specified in the notice of sale. Neither Trustee nor Beneficiary
shall have any obligation to make demand on Trustor before any trustee's sale.
At any trustee's sale, Trustee shall sell to the highest bidder at public
auction for cash in lawful money of the United States. Any person, including
Trustor, Trustee or Beneficiary, may purchase at the trustee's sale. Trustee
shall execute and deliver to the purchaser a deed or deeds conveying the
property being sold without any covenant or warranty whatsoever, express or
implied. The recitals in any such deed of any matters or facts, including any
facts bearing upon the regularity or validity of any trustee's sale, shall be
conclusive proof of their truthfulness. Any such deed shall be conclusive
against all persons as to the facts recited in it.
4.2.G. Beneficiary may apply to any court of competent jurisdiction
for the appointment of a receiver or receivers for the Property and of all the
earnings, revenues, rents, issues, profits and income therefrom, ex parte,
without notice, and without regard to the sufficiency or value of any security
for the Secured Obligations or the solvency of any party bound for its payment,
the expenses of which shall be secured by this Deed of Trust.
4.2.H. Beneficiary may take such steps to (1) protect and enforce
its rights whether by action, suit or proceeding in equity or at law for the
specific performance of any covenant, condition or agreement in the Notes, or in
this Deed of Trust, or (2) aid in the execution of any power herein granted, (3)
accomplish any foreclosure hereunder, or (4) enforce any other appropriate legal
or equitable remedy or otherwise as Beneficiary shall elect.
4.2.I. No remedy herein conferred upon or reserved to Trustee
or Beneficiary is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by this Deed of Trust to Trustee or
Beneficiary, or to which either of them may be otherwise entitled, may be
exercised from time to time and as often as may be deemed expedient by Trustee
or Beneficiary, and either of them may pursue inconsistent remedies. If there
exists additional security for the performance of the Secured Obligations, the
holder(s) of the Notes, at its(their) sole option and without limiting or
affecting any rights or remedies hereunder, may exercise any of the rights and
remedies to which it may be entitled hereunder either concurrently with whatever
other rights it may have in connection with such other security or in such order
as it may determine.
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4.3 APPLICATION OF SALE PROCEEDS. In the event of a foreclosure sale of
all or any portion of the Property, the proceeds of such sale shall be applied
as follows:
(a) first, to the payment of the costs and expenses of such sale,
including reasonable compensation to Trustee, its agents and counsel, and of any
judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Trustee or Beneficiary under this
Deed of Trust together with interest at the rate then payable under the Notes
plus five percent (5%) per annum or the maximum rate permitted by any applicable
law governing interest rate restrictions, if any maximum is applicable to the
subject obligation, whichever is lower, on all advances made by Beneficiary;
(b) second, to the payment of the whole amount then due, owing
or unpaid upon the Notes or any other Secured Obligations, for principal,
interest, prepayment premiums and late charges as stated in the Notes or any
other Secured Obligations, with interest on the unpaid principal and accrued
interest at the rate specified in the Notes or any other Secured Obligation;
(c) third, to the payment of any other sums required to be paid by
Trustor pursuant to any provisions of this Deed of Trust, the Notes, or any
Secured Obligation; and
(d) fourth, the surplus, if any, to whomsoever may be lawfully
entitled to receive the same.
4.4 TRUSTOR AS TENANT AT SUFFERANCE. In the event of any such
foreclosure sale, Trustor shall be deemed a tenant at sufferance and shall
forthwith deliver possession to the purchaser or purchasers at such sale or be
summarily dispossessed according to provisions of law applicable to tenants
holding over.
4.5 LEASES. Beneficiary, at its option, is authorized to foreclose this
Deed of Trust subject to the rights of any Tenants of the Property, and the
failure to make any such Tenants parties to any such foreclosure proceedings and
to foreclose their rights will not be, nor be asserted to be by Trustor, a
defense to any proceedings instituted by Beneficiary to collect the Secured
Obligations.
4.6 WAIVER OF RIGHT TO MARSHALING. Trustor and any person who presently
has or subsequently acquires an interest in the Property with actual or
constructive notice of this Deed of Trust, waives any and all rights to require
a marshaling of assets upon Beneficiary's exercise of its remedies provided by
this Deed of Trust. Beneficiary, in its sole discretion, shall be entitled to
determine the order in which the Property or portions thereof shall be subjected
to the remedies provided by this Deed of Trust.
ARTICLE 5
MISCELLANEOUS
5.1 SUCCESSORS AND ASSIGNS. Subject to Section 1.8 above, this Deed of
Trust shall inure to the benefit of and be binding upon Trustor, Trustee, and
Beneficiary and their respective legal representatives, successors, and assigns.
5.2 TERMINOLOGY. All personal pronouns used in this Deed of Trust
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa.
5.3 SEVERABILITY. If any provision of this Deed of Trust or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Deed of Trust and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
5.4 APPLICABLE LAW. This Deed of Trust shall be interpreted, construed
and enforced with respect to the Property according to the laws of the State of
Oregon; provided that in no event shall this limit any remedies that may be
available to Beneficiary under the laws of the state by which the Notes or other
Loan Documents are governed.
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5.5 NOTICES, DEMANDS AND REQUESTS. All notices, demands or requests
provided for or permitted to be given pursuant to this Deed of Trust shall be in
writing and shall be delivered in person or sent by registered or certified
United States mail, postage prepaid, return receipt requested, or by overnight
courier, to the addresses set out below or to such other addresses as are
specified by no less than ten (10) days' prior written notice delivered in
accordance herewith:
If to Beneficiary: Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5443
If to Trustor: United Foods, Inc.
Ten Pictsweet Drive
Bells, TN 38006-0119
Attention: Senior Vice President, Finance
If to Trustee: Chicago Title Insurance Company
388 Market Street, Suite 1300
San Francisco, CA 94111
All such notices, demands and requests shall be deemed effectively given and
delivered three (3) days after the postmark date of mailing, the day after
delivery to the overnight courier or, if delivered personally, when received.
Rejection or other refusal to accept or the inability to deliver because of a
changed address of which no notice was given in accordance with the time period
provided herein, shall be deemed to be receipt of the notice, demand, or request
sent.
5.6 CONSENTS AND APPROVALS. All approvals and consents hereunder shall
be in writing and no approval or consent shall be deemed to have been given
hereunder unless evidenced in a writing signed by the party from whom the
approval or consent is sought.
5.7 CERTAIN OBLIGATIONS UNSECURED. Notwithstanding anything to the
contrary set forth herein or any of the Loan Documents, this Deed of Trust shall
not secure the following obligations (the "Unsecured Obligations"): (a) any
obligations evidenced by or arising under the Environmental Indemnity Agreement;
and (b) any other obligations in this Deed of Trust or in any of the other Loan
Documents to the extent that such other obligations relate specifically to the
presence on the Property of Hazardous Materials and are the same or have the
same effect as any of the obligations evidenced by or arising under the
Environmental Indemnity Agreement. Nothing in this Section 5.7 shall, in itself,
impair or limit Beneficiary's right to obtain a judgment in accordance with
applicable law after foreclosure for any deficiency in recovery of all Secured
Obligations following foreclosure.
5.8 WAIVER. No delay or omission of Beneficiary or of any holder of
either of the Notes to exercise any right, power or remedy accruing upon any
default shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such default, or acquiescence therein; and every
right, power and remedy given by this Deed of Trust to Beneficiary may be
exercised from time to time and as often as may be deemed expedient by
Beneficiary. No consent or waiver, express or implied, by Beneficiary to or of
any breach or default by Trustor in the performance of the obligations hereunder
shall be deemed or construed to be a consent or waiver to or of any other breach
or default in the performance of the same or any other obligations of Trustor
hereunder. Failure on the part of Beneficiary to complain of any act or failure
to act or to declare an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Beneficiary of its rights hereunder
or impair any rights, powers or remedies consequent on any breach or default by
Trustor.
5.9 JURY TRIAL WAIVER. TRUSTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY HOLDER OR ANY OTHER
PERSON RELATING TO (I) THIS DEED OF TRUST, OR (II) ANY OF THE OTHER LOAN
DOCUMENTS. BORROWER HEREBY AGREES THAT THIS DEED OF TRUST CONSTITUTES A WRITTEN
CONSENT TO WAIVER OF TRIAL BY JURY, AND BORROWER DOES HEREBY CONSTITUTE AND
APPOINT HOLDER ITS TRUE AND LAWFUL ATTORNEY IN FACT, WHICH APPOINTMENT IS
COUPLED WITH AN INTEREST, AND BORROWER DOES HEREBY AUTHORIZE AND EMPOWER HOLDER,
IN THE NAME, PLACE AND STEAD OF BORROWER, TO FILE THIS DEED OF TRUST WITH THE
CLERK OR JUDGE OF ANY COURT OF COMPETENT JURISDICTION AS WRITTEN CONSENT TO
WAIVER OF TRIAL BY JURY.
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5.10 ASSIGNMENT. This Deed of Trust is assignable by Beneficiary,
and any assignment hereof by Beneficiary shall operate to vest in the assignee
all rights and powers herein conferred upon and granted to Beneficiary.
5.11 TIME OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement, and obligation of Trustor under this Deed of
Trust, the Notes and all other Loan Documents.
5.12 ATTORNEYS' FEES.
5.12.A. Trustor shall forthwith pay to Beneficiary the amount of
all attorneys' fees and costs incurred by Beneficiary under and pursuant to this
Deed of Trust, the Notes, the Loan Documents or any other agreement given to
Beneficiary as security for the Notes or in connection with any transaction
contemplated hereby or thereby, or with respect to the Property or any defense
or protection, interpretation or enforcement of Beneficiary's security interest
in the Property which Beneficiary believes is necessary or desirable (whether or
not Beneficiary files a lawsuit against Trustor and including, without
limitation, a judicial foreclosure action or a non-judicial foreclosure
proceeding) in the event Beneficiary retains counsel, or incurs costs in order
to: obtain legal advice; enforce, or seek to enforce, any of its rights;
commence, intervene in, respond to, or defend any action or proceeding; file or
prosecute a claim in any action or proceeding (including without limitation, any
probate claim, bankruptcy claim, third-party claim, or secured creditor claim);
protect, obtain possession of, lease, dispose of or otherwise enforce Trustor's
right, title and interest in the Property or any portion thereof; obtain the
appointment of a receiver; or represent Beneficiary's interests in any
litigation with respect to Trustor's affairs.
5.12.B. Trustor shall and does hereby agree that, if all or a
portion of the principal sum of either of the Notes has, prior to the maturity
date fixed in the obligation, become due or been declared due by reason of an
Event of Default, the entire amount then due under the terms of this Deed of
Trust and the Notes shall include all attorneys' fees and costs and expenses
which are actually incurred as stated above.
5.12.C. The meaning of the terms "legal fees" or "attorneys' fees"
or any other reference to the fees of attorneys or counsel, wherever used in
this Deed of Trust, shall be deemed to include, without limitation, all legal
fees relating to litigation or appeals at any and all levels of courts and
administrative tribunals (including any appeal or petition for review), and
allocated costs of in-house counsel.
5.13 COVENANTS RUN WITH THE LAND. All of the grants, covenants, terms,
provisions and conditions herein contained shall run with the Land and shall
apply to, bind and inure to the benefit of, the successors and assigns of
Trustor and Beneficiary.
5.14 SUBSTITUTION OF TRUSTEE. Beneficiary may from time to time,
without notice to Trustor or Trustee and with or without cause and with or
without the resignation of the Trustee, substitute a successor or successors to
the Trustee named herein or acting hereunder to execute this Deed of Trust. Upon
such appointment and without conveyance to the successor Trustee, the latter
shall be vested with all title, powers and duties conferred upon the Trustee
herein named or acting hereunder. Each such appointment and substitution shall
be made by written document executed by Beneficiary, containing reference to
this Deed of Trust and its place of record, which when duly filed for record in
the proper office, shall be conclusive proof of proper appointment of the
successor Trustee. The procedure herein provided for substitution of the Trustee
shall be conclusive of all other provisions for substitution, statutory or
otherwise.
5.15 RECONVEYANCE. When all the Secured Obligations have been paid in
full and no further commitment to extend financing continues, Trustee shall
reconvey the Property, or so much of it as is then held under this Deed of
Trust, without warranty to the person or persons legally entitled to it. In the
reconveyance, the grantee may be described as "the person or persons legally
entitled thereto," and the recitals of any matters or facts shall be conclusive
proof of their truthfulness. Neither Beneficiary nor Trustee shall have any duty
to determine the rights of persons claiming to be rightful grantees of any
reconveyance.
5.16 PARTIAL RELEASE. No more than three (3) times during the term of
each of the Loans (as determined on an aggregate basis for all of the property
securing the Loans under and as provided in all of the Loan Documents (referred
to herein as the "Total Security")), upon written request of Trustor,
Beneficiary shall release a portion of the Land as identified by Trustor (the
"Release Parcel") from the lien of this Deed of Trust, subject to the
limitations and upon satisfaction by Trustor of the following terms and
conditions:
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(a) There shall be no Event of Default under any of the Loan
Documents or uncured default under the Environmental Indemnity Agreement, or any
event which with the passage of time or the giving of notice or both would
constitute a default or Event of Default, at the time of such request or at the
time of such release.
(b) If Beneficiary retains outside counsel to review and/or
prepare any documents, instruments or agreements relating to the request for
release, Trustor shall pay to Beneficiary the reasonable fees and expenses of
such outside counsel.
(c) Trustor shall pay to Beneficiary an administrative service
charge of $1,500, payable at the time of submission of the release request.
(d) Beneficiary's satisfaction that the size, location, and
boundaries of the Release Parcel and any related improvements, fixtures or
appurtenances are not required for the proper, efficient and historical
operation of the remaining portion of the Property (the "Remaining Property").
(e) Beneficiary's receipt, at Trustor's sole cost, of such title
insurance coverage as it may deem reasonably necessary to ensure that this Deed
of Trust is a valid first encumbrance against the Remaining Property, subject
only to such title exceptions as were shown in the original policy insuring this
Deed of Trust, current taxes and assessments and other exceptions to title as
may have been approved in writing by Beneficiary.
(f) Beneficiary shall have determined, in its sole and absolute
discretion that (i) there has been no material decline in the valuation of the
Total Security since the initial appraisal obtained in accordance with the Loan
Documents immediately prior to recordation of this Deed of Trust (the "Initial
Appraisal"); (ii) the Loan to Value Ratio of the Total Security less the Release
Parcel is not greater than 65% of the total outstanding balance of the Notes
using the collateral values determined by the Initial Appraisal, or at the sole
discretion of Beneficiary, using collateral values determined by an updated
appraisal prepared by an appraiser approved by Beneficiary and delivered by
Trustor, at Trustor's cost, at the time of the requested release. If the Loan to
Value Ratio so determined exceeds 65%, then Trustor's release request shall not
be considered or granted unless and until a principal payment reducing the
balance of Note A to a level that would result in a 65% or lower Loan to Value
Ratio shall have been made to Beneficiary. In determining the value of the
Remaining Property and the related Loan to Value Ratio, Beneficiary shall be
entitled to consider, among other factors, the effect of the proposed partial
release on the value of the Remaining Property and the materiality of the effect
of the release considering all relevant circumstances. Any principal payments
made in connection with a partial release shall be subject to the prepayment
provisions of the Notes, and a prepayment premium shall be payable in connection
therewith.
(g) The Remaining Property and the Release Parcel, both separately
and together, shall satisfy all requirements under pertinent subdivision, land
use, environmental and zoning laws, ordinances, rules and regulations.
(h) The Remaining Property shall be in all respects independent
from the Release Parcel, including, without limitation, the requirement that no
loss of access to or through the Remaining Property shall occur as a result of
the partial release. Upon Beneficiary's request, the Release Parcel shall be
burdened by all such easements or covenants as may be determined by Beneficiary
as necessary to the continued operation of the Remaining Property.
(i) Updated surveys of the Remaining Property and the Release
Parcel shall have been obtained at Trustor's cost and expense and delivered to
Beneficiary.
(j) All documentation relating to the creation or release of the
Release Parcel shall be satisfactory to Beneficiary in all respects. All
consents of any party requiring notice of or consent to the release of the
Release Parcel shall have been obtained by Trustor.
5.17 CONFLICT WITH COMMITMENT. In the event of any inconsistency or
conflict between this Deed of Trust and the two Agricultural Mortgage Loan
Application/Commitments between Trustor and AEGON USA Realty Advisors, Inc. both
executed by Trustor on October 2, 1998, the provisions of this Deed of Trust
shall prevail.
STATUTORY NOTICE. UNLESS YOU (TRUSTOR) PROVIDE US (BENEFICIARY) WITH
EVIDENCE OF THE INSURANCE COVERAGE AS REQUIRED BY OUR CONTRACT OR LOAN
AGREEMENT, WE MAY
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PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR INTEREST. THIS INSURANCE MAY,
BUT NEED NOT, ALSO PROTECT YOUR INTEREST. IF THE COLLATERAL BECOMES DAMAGED, THE
COVERAGE WE PURCHASE MAY NOT PAY ANY CLAIM YOU MAKE OR ANY CLAIM MADE AGAINST
YOU. YOU MAY LATER CANCEL THIS COVERAGE BY PROVIDING EVIDENCE THAT YOU HAVE
OBTAINED PROPERTY COVERAGE ELSEWHERE.
YOU ARE RESPONSIBLE FOR THE COST OF ANY INSURANCE PURCHASED BY US. THE
COST OF THIS INSURANCE MAY BE ADDED TO YOUR CONTRACT OR LOAN BALANCE. IF THE
COST IS ADDED TO YOUR CONTRACT OR LOAN BALANCE, THE INTEREST RATE ON THE
UNDERLYING CONTRACT OR LOAN WILL APPLY TO THIS ADDED AMOUNT. THE EFFECTIVE DATE
OF COVERAGE MAY BE THE DATE YOUR PRIOR COVERAGE LAPSED OR THE DATE YOU FAILED TO
PROVIDE PROOF OF COVERAGE.
THE COVERAGE WE PURCHASE MAY BE CONSIDERABLY MORE EXPENSIVE THAN THE
INSURANCE YOU CAN OBTAIN ON YOUR OWN AND MAY NOT SATISFY ANY NEED FOR PROPERTY
DAMAGE COVERAGE OR ANY MANDATORY LIABILITY INSURANCE REQUIREMENTS IMPOSED BY
APPLICABLE LAW.
IN WITNESS WHEREOF, Trustor has executed and delivered this Deed of
Trust as of the date first above written.
TRUSTOR:
UNITED FOODS, INC.,
a Delaware corporation
By /s/ Carl W. Gruenewald, II
Carl W. Gruenewald II,
Senior Vice President, Finance
By /s/Donald Dresser
Donald Dresser,
Senior Vice President, Administration
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RECORDING REQUESTED BY:
Chicago Title Company
Escrow No. 160981144
AND WHEN RECORDED MAIL TO:
Bolen, Fransen & Boostrom LLP
1322 East Shaw Avenue, Suite 430
Fresno, CA 93710
Attention: Virginia M. Pedreira
- --------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST, ASSIGNMENT OF RENTS
SECURITY AGREEMENT AND FIXTURE FILING
(Millard County, Utah)
THIS DEED OF TRUST, ASSIGNMENT OF RENTS , SECURITY AGREEMENT AND
FIXTURE FILING (hereafter referred to as this "Deed of Trust") is made and
entered into as of December 15, 1998, by UNITED FOODS, INC., a Delaware
corporation, ("Trustor"), whose address is Ten Pictsweet Drive, Bells, TN
38006-0119, to CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation
("Trustee"), whose address is 388 Market Street, Suite 1300, San Francisco, CA
94111, for the benefit of MONUMENTAL LIFE INSURANCE COMPANY, a Maryland
corporation, its successors and assigns ("Beneficiary"), whose address is c/o
AEGON USA Realty Advisors, Inc., 4333 Edgewood Road N.E., Cedar Rapids, IA
52499-5443.
W I T N E S S E T H:
A. GRANT. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to secure the
indebtedness and other obligations of Trustor hereafter set forth, Trustor does
hereby grant, bargain, sell, convey, mortgage, assign, transfer, pledge and set
over unto Trustee and the successors and assigns of Trustee IN TRUST WITH POWER
OF SALE, for the benefit and security of Beneficiary, all of Trustor's right,
title and interest in and to the following, whether now owned or hereafter
acquired (hereafter collectively referred to as the "Real Property"):
(1) the real property located in Millard County, Utah, as more
particularly described in Exhibit A attached hereto and incorporated herein by
reference (hereafter referred to as the "Land");
(2) all buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land (hereafter referred to as
"Improvements and Fixtures"), including, without limitation, (a) houses, barns,
sheds, warehouses, pumphouses, bunkhouses, hothouses, mobilehomes and all other
buildings and structures; (b) shrubs, trees, and permanent plantings now growing
or hereafter to be grown on the Land; (c) grain bins, storage bins and tanks,
metal sheds and buildings, wind machines, freeze and frost protection equipment,
water towers, windmills, (d) all towers, fences, gates, stakes, posts and
trellises; (e) all electric, water and gas lines, wiring, generators, motors,
pipe and equipment together with meters, transformers, switch boxes, fuse
panels, circuit breakers, timing devices, thermostats, and control valves; (f)
all wells, irrigation and drainage equipment of all types (other than portable
irrigation motors customarily towed by a motor vehicle) including, without
limitation, pumping stations, pipe, pumps, motors, gearheads, pivots, sprinkler
systems, hand lines, tow lines, control valves, culverts, and well casings; (g)
air conditioning, climate control and heating equipment including coils,
compressors, ducts and heaters; (h) all wall to wall carpet, refrigerators,
stoves and other built-in equipment; (i) processing, packaging, loading, and
storage facilities and equipment, including augers, scales, belts, motors and
conveyance equipment related thereto; (j) all other machinery, apparatus, and
equipment of every kind and nature now or hereafter attached to, located on, in,
or about the Land, or used or intended to be used in connection with the use,
operation, or enjoyment of the Land or related to the operation of the Property
(excluding property which may be or deemed to be toxic or hazardous substances
or materials, and also excluding self-propelled motor driven vehicles and farm
implements customarily towed by or attached
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thereto (collectively, "rolling stock"), but not excluding any rolling stock
which constitutes a part of any irrigation system relating to the Land),
including without limitation the property described in Exhibit B attached hereto
and incorporated herein by this reference; and (k) all additions thereto and
substitutions and replacements thereof, all of which are hereby declared and
shall be deemed to be fixtures and accessions to the Land and a part of the Real
Property as between the parties hereto and all persons claiming by, through or
under them, and which shall be deemed to be a portion of the security for the
Secured Obligations (as defined in Section B below);
(3) all easements, rights-of-way, strips and gores of land, vaults,
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, now or hereafter located on the Land or under or above the
same or any part or parcel thereof, and all estates, rights, titles, interests,
minerals, royalties, easements, privileges, liberties, tenements, hereditaments
and appurtenances, reversion and reversions, remainder and remainders
whatsoever, in any way belonging, relating or appertaining to the Land or any
part thereof, or which hereafter shall in any way belong, relate or be
appurtenant thereto, whether now owned or hereafter acquired by Trustor;
(4) all present and future rents, issues and profits of the Real
Property from time to time accruing (including, by way of illustration, all
payments under leases or tenancies, unearned premiums on any insurance policy
carried by Trustor for the benefit of Beneficiary and/or the Real Property,
tenant security deposits, escrow funds and all awards or payments, including
interest thereon and the right to receive same, growing out of or as a result of
any exercise of the right of eminent domain, including the taking of any part or
all of the Real Property or payment for alteration of the grade of any road upon
which said Real Property abuts, or any other injury to, taking of or decrease in
the value of said Real Property to the extent of all amounts which may be owing
on the Secured Obligations at the date of receipt of any such award or payment
by Trustor, and the reasonable attorneys' fees, costs and disbursements incurred
by Beneficiary in connection with the collection of such award or payment), and
all the estate, right, title, interest, property, possession, claim and demand
whatsoever at law or in equity, of Trustor of, in and to the same;
(5) all insurance policies and proceeds thereof, contracts, permits,
licenses, plans or intangibles now or hereafter dealing with, affecting or
concerning the Real Property, including, by way of illustration, all rights
accruing to Trustor from any and all contracts with all contractors, architects,
engineers or subcontractors relating to the construction of improvements on or
upon the Land, including payment, performance and/or materialmen's bonds and any
other related choses in action;
(6) all rights of Trustor or the Land to all water (including any
water inventory in storage), water rights and entitlements, other rights to
water and other rights to receive water or water rights of every kind or nature,
used or designated for use in connection with the Land, including by way of
illustration, (a) the groundwater on, under, pumped from or otherwise available
to the Land, whether as a result of groundwater rights, contractual rights or
otherwise; (b) the right to remove and extract any such groundwater including
any permits, rights or licenses granted by any governmental authority or agency
and any rights granted or created by any easement, covenant, agreement or
contract with any person or entity; (c) any rights to which the Land is entitled
with respect to surface water, whether such right is appropriative, riparian,
prescriptive or otherwise and whether or not pursuant to permit or other
governmental authorization, or the right to store any such water; (d) any water,
water right, water allocation, distribution right, delivery right, water storage
right, or other water-related entitlement appurtenant or otherwise applicable to
the Land by virtue of the Land's being situated within the boundaries of any
district, agency, or other governmental entity or within the boundaries of any
private water company, mutual water company, or other non-governmental entity;
(e) any drainage rights appurtenant or otherwise applicable to the Land; (f) all
rights to transport, carry, allocate or otherwise deliver water or any of the
foregoing rights from or to the Land by any means, wherever located; (g) any
shares (or any rights under such shares) of any private water company, mutual
water company, or other non-governmental entity pursuant to which Trustor or the
Land may receive any of the rights referred to in subsections (a) through (f),
above (collectively referred to hereafter as the "Water Rights");
(7) all rights to receive, participate in, or otherwise secure the
benefits of any and all government programs, including but not limited to set
aside programs, payment in kind programs, and governmental loans which are
available for use in connection with the Real Property;
(8) all rights to drain the Land including rights in drainage
districts (and the right to vote for and elect representatives in such drainage
districts) together with all rights of Trustor in agricultural cooperatives for
milling, ginning, grinding, storage and marketing of crops harvested from the
Land; and
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(9) all crops now or hereafter growing, grown or produced on the
Land, subject however and subordinated to the lien of an operating lender
unaffiliated with Trustor (a "Crop Lender") on growing crops which lien
terminates within 120 days following a Foreclosure Event.
A "Foreclosure Event" as used herein shall mean any transfer of title
pursuant to judicial or nonjudicial foreclosure of this Deed of Trust or deed in
lieu thereof or appointment of a receiver to assume possession of the Property.
No possessory right or license to possess, use, occupy, harvest or farm the Land
in favor of Trustor or any creditor of Trustor or any party claiming thereunder
following a Foreclosure Event shall be inferred or created by the foregoing
limitation in Beneficiary's lien on crops. However, Beneficiary will grant to
the Crop Lender a limited, nonexclusive, nontransferable license for a period
ending on the 120th day following a Foreclosure Event, to enter the Real
Property for the purpose of taking possession of its crop collateral and to
complete the cultivation and harvest of the crop collateral to be harvested
within the then-effective 90-day growing cycle, pursuant to a separate written
instrument signed by Beneficiary in connection with a Foreclosure Event, which
instrument will provide inter alia that the Crop Lender shall (a) reimburse
Beneficiary for the cost of repair of any physical damages to the Property
caused by Crop Lender, (b) exercise its rights, powers and remedies with respect
to its crop collateral, which shall include without limitation the right to care
for, cultivate, harvest and remove its crop collateral, in accordance with
reasonable agricultural and/or standards and practices, and (c) indemnify,
defend and hold Beneficiary harmless from all loss, costs, damage, claim,
expense and liability, including reasonable attorneys' fees, that Beneficiary
and its agents may suffer or experience as a result of the negligence or
intentional misconduct of Crop Lender or its agents, including without
limitation, damage to property and personal injury to or death of any person.
The Real Property described above together with the Personal Property collateral
described in Section 3.1 below are hereafter sometimes referred to collectively
as the "Property."
B. SECURED OBLIGATIONS. This Deed of Trust is given to secure the
payment and performance of the following in such manner as Beneficiary in its
sole discretion shall determine (collectively referred to hereafter as the
"Secured Obligations"):
(1) the indebtedness evidenced by (a) that certain Promissory Note
Secured by Deed of Trust of even date herewith ("Note A") made by Trustor in the
original principal amount of Ten Million and 00/100 Dollars ($10,000,000.00)
payable to the order of Beneficiary, and (b) that certain Promissory Note
Secured By Deed of Trust of even date herewith ("Note B") made by Trustor in the
original principal amount of Fifteen Million and 00/100 Dollars ($15,000,000.00)
payable to the order of Beneficiary (hereafter referred to collectively as the
"Notes"), including without limitation any prepayment premium due thereunder,
together with any and all renewals, extensions, substitutions, modifications and
consolidations of the Notes and the indebtedness evidenced thereby (the
"Loans");
(2) any and all advances made by Beneficiary as hereafter provided:
(a) to protect or preserve the Property or the lien created hereby on the
Property; (b) for insurance premiums; (c) for real estate and personal property
and other taxes and assessments, and any and all other charges, expenses,
utility charges, payments, claims, mechanics' or material suppliers' liens or
assessments of any nature that at any time prior to or after the execution of
the Loan Documents (as defined in subsection (3) of this Section) may be
assessed, levied, imposed, or become a lien upon the Property, or the rent or
income received therefrom, or any use or occupancy thereof (collectively,
"Impositions"); (d) for performance of any of Trustor's obligations hereunder,
or for any other purpose provided herein (whether or not the original Trustor
remains the owner of the Property at the time of such advances); provided,
however, nothing herein shall be deemed to obligate Beneficiary to make any such
advances;
(3) any and all obligations and covenants of Trustor under the Notes,
this Deed of Trust or any other document, instrument or agreement now or
hereafter evidencing, securing or otherwise relating to the Notes secured
hereby, as amended or modified from time to time, including without limitation
that certain Borrower's Closing Certificate of even date herewith and those two
(2) certain Agricultural Mortgage Loan Application/Commitments between Trustor
and AEGON USA Realty Advisors, Inc., both executed by Trustor on October 2,
1998, and subsequently assigned to Beneficiary (hereafter referred to
collectively as the "Loan Documents"), and all costs of collection, including
reasonable attorneys' fees, but excluding however, that certain Environmental
Indemnity Agreement executed by Trustor for the benefit of Beneficiary of even
date herewith, which is not secured by the lien of this Deed of Trust (the
"Environmental Indemnity Agreement").
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ARTICLE 1
COVENANTS, REPRESENTATIONS AND WARRANTIES
Trustor hereby further covenants and agrees with and for the benefit of
Beneficiary as follows.
1.1 PAYMENT OF INDEBTEDNESS, COVENANTS AND WARRANTIES.
1.1.A. Trustor will pay each of the Notes according to the terms
thereof and will pay all other Secured Obligations, with interest thereon, as
provided in the Loan Documents, at the time and in the manner provided under the
Notes, this Deed of Trust, any instrument evidencing a future advance and any
other Loan Document, and Trustor will otherwise perform, comply with and abide
by each and every stipulation, agreement, condition and covenant contained in
the Notes, this Deed of Trust and every other Loan Document and any and all
leases and other agreements with respect to the Property to which Trustor is a
party.
1.1.B. Trustor shall protect, indemnify and hold Beneficiary
harmless from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs, and expenses (including, without limitation,
attorneys' fees and court costs) imposed upon or incurred by Beneficiary by
reason of this Deed of Trust or in exercising, performing, enforcing, or
protecting Beneficiary's rights, title, or interests set forth herein, and any
claim or demand whatsoever which may be asserted against Beneficiary by reason
of any alleged obligation or undertaking to be performed or discharged by
Beneficiary under this Deed of Trust and such amounts paid by Beneficiary shall
become part of the Secured Obligations. In addition, Trustor covenants and
agrees that it shall:
(1) not initiate, join in or consent to any change in any
covenant, easement, or other public or private restriction, limiting or defining
the uses which may be made of the Property, or any part thereof, without
Beneficiary's prior written consent;
(2) not take any action or fail to take any action which
will result in any Imposition affecting the Property, Trustor, either of the
Notes or this Deed of Trust; and
(3) indemnify and hold Beneficiary harmless from any and all
costs, damages or liabilities resulting from, arising out of, or related to, the
creation or existence of any liens, Impositions or encumbrances by or against
Trustor or Trustor's predecessor in title, or the Property.
1.1.C. Trustor covenants that Trustor is lawfully seized and
possessed of the Property and has good right to convey the lien of this Deed of
Trust as an encumbrance against the Property, that the Property is unencumbered
except for those matters expressly approved by Beneficiary in writing, liens in
favor of Beneficiary, leases permitted hereunder and rights of lessors under
leases of equipment constituting a part of the Property (hereafter referred to
as the "Permitted Exceptions"), and that Trustor does warrant and will forever
defend the title thereto against the claims of all persons whomsoever, except as
to the Permitted Exceptions.
1.2 TAXES, LIENS AND OTHER CHARGES.
1.2.A. In the event of the passage of any law, order, rule or
regulation subsequent to the date hereof, in any manner changing or modifying
the taxation of deeds of trust or security agreements so as to affect
Beneficiary adversely, Trustor shall promptly pay any such tax on or before the
due date thereof.
1.2.B. Trustor shall pay before the due date thereof, all
Impositions and all license fees, permit fees, liens, judgments, assessments and
all other expenses, fees and charges of every character whatsoever now or
hereafter levied, assessed, or imposed on the Property or Trustor, or any part
thereof, or any estate, right, or interest therein, or upon the rents, issues,
income or profits thereof, or relating to the Property. Trustor shall submit to
Beneficiary such evidence of the due and punctual payment of all real estate
taxes and assessments assessed against the Property or any portion thereof as
Beneficiary may require. In addition, within ten (10) days following request by
Beneficiary, Trustor shall submit to Beneficiary evidence of the due and
punctual payment of all such other Impositions, levies, license fees, permit
fees, judgments or assessments now or hereafter levied, assessed or imposed on
the Property or Trustor as may be identified in such request.
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1.2.C. Trustor shall not suffer any mechanic's, materialmen's,
laborer's, statutory or other lien to be created, filed of record, or to remain
outstanding upon all or any part of the Property.
1.2.D. Notwithstanding the provisions of Sections 1.2.A.,B. and C.,
above, Trustor may, at its expense, contest the validity or application of any
Impositions or license fees, permit fees, liens, judgments or assessments by
appropriate legal proceedings promptly initiated and diligently conducted in
good faith, provided that (a) Beneficiary is reasonably satisfied that the
priority of this Deed of Trust shall be maintained and neither the Property nor
any part thereof or interest therein will be in danger of being sold, forfeited,
or lost as a result of such contest, and (b) Trustor shall have posted a bond or
furnished such other security as may be reasonably required from time to time by
Beneficiary.
1.3 INSURANCE.
1.3.A. Trustor shall, at its expense, procure for, deliver to and
maintain for the benefit of Beneficiary, until the Secured Obligations are fully
repaid, original fully paid insurance policies (or if such policy is a "blanket"
policy which includes land, improvements, personalty, or income other than the
Property or income derived from the Property, a certified copy of such blanket
policy and an original certificate from the insurer evidencing the allocation of
coverage to the Property and the income from the Property), providing the
following types of insurance relating to the Property, issued by insurance
companies with a Best's rating of "A," VIII, or better, without regard to the
rating of the insurance company's parent or subsidiary, in such amounts, in such
form and content and with such expiration dates as are approved by Beneficiary:
(1) broad form property insurance against all risks of physical
loss, including, without limitation, fire, extended coverage, vandalism,
malicious mischief, earthquake, flood and collapse, with waiver of subrogation,
insuring to the extent of the full replacement cost of all improvements on the
Property, without deduction for depreciation, either without co-insurance
requirements or with agreed amount endorsement attached;
(2) public liability insurance covering all liabilities or risks
incident to the ownership, possession, occupancy and operation of the Property
having limits of not less than $1,000,000 each accident, $1,000,000 per
occurrence, and $500,000 property damage, subject to Beneficiary's right to
require increased coverage amounts; and
(3) such other insurance with respect to the Property or any
replacements or substitutions therefor, in such amounts as may from time to time
be required by Beneficiary, against other insurable casualties which at the time
are commonly insured against by prudent operators of properties of similar type
or character.
Such insurance policies shall (i) provide that the insurer shall give
Beneficiary at least thirty (30) days' prior written notice of cancellation,
amendment, non-renewal or termination, in the manner provided for the giving of
notices under Section 5.5 below, (ii) provide that no act or omission by the
insured shall invalidate or diminish the insurance provided to Beneficiary,
(iii) except for liability policies, contain a mortgagee clause naming
Beneficiary as an additional insured and loss payee in a form satisfactory to
Beneficiary, and (iv) provide for a deductible no greater than $100,000.00, with
the exception of earthquake insurance which shall provide for a deductible of no
greater than ten percent (10%) of damages.
1.3.B. Subject to Beneficiary's prior written consent, not to be
unreasonably withheld, delayed or conditioned, Trustor is hereby authorized and
empowered to adjust, compromise or settle any loss under any insurance policies
maintained pursuant hereto. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Beneficiary, instead of
to Trustor and Beneficiary jointly. In the event any insurance company fails to
disburse directly and solely to Beneficiary but disburses instead either solely
to Trustor or to Trustor and Beneficiary jointly, Trustor agrees immediately to
endorse and transfer such proceeds to Beneficiary. After deducting from said
insurance proceeds all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, Beneficiary may apply
the net proceeds or any part thereof, at its sole option (1) to a prepayment of
either of the Notes without prepayment premium or penalty, (2) to the repair
and/or restoration of the Property, and/or (3) for any other purposes or objects
for which Beneficiary is entitled to advance funds under this Deed of Trust, all
without reducing or impairing the lien of this Deed of Trust or any obligations
secured hereby. Any balance of such proceeds then remaining shall be paid to
Trustor or any other person or entity lawfully entitled thereto. Notwithstanding
the foregoing, insurance proceeds shall be made available to Trustor for the
repair and/or restoration of the Property upon the following conditions: (i) the
insurance proceeds, together with the funds, if any, to be deposited by Trustor
with Beneficiary are sufficient to restore the Property, (ii) the Property is
capable of being restored, as reasonably determined by Beneficiary, (iii)
applicable zoning and planning laws and ordinances permit the restoration of the
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Property, (iv) there is no Event of Default under any of the Loan Documents, or
an event with the passage of time or the giving of notice or both shall
constitute an Event of Default, and (v) following restoration, both Trustor and
the Property will be in compliance with all covenants set forth in this Deed of
Trust.
1.3.C. At least five (5) days prior to the expiration date of each
policy maintained pursuant to this Section 1.3, a renewal or replacement thereof
satisfactory to Beneficiary shall be delivered to Beneficiary. Trustor shall
provide to Beneficiary on an annual basis, and at such other times as
Beneficiary may request from time to time, a summary of the status, renewal,
replacement and full payment of premiums for all insurance required hereunder.
The delivery of any insurance policies hereunder shall constitute an assignment
of all unearned premiums as further security hereunder.
1.3.D. On all property policies and coverages, Beneficiary shall be
named as "first mortgagee" under a standard mortgagee clause, and referred to
verbatim as follows: Monumental Life Insurance Company, and its successors,
assigns and affiliates, as their interest may appear; c/o AEGON USA Realty
Advisors, Inc., Mortgage Loan Dept.; 4333 Edgewood Road, NE; Cedar Rapids, Iowa;
52499-5443.
1.4 CONDEMNATION.
1.4.A. If all or any portion of the Property shall be damaged or
taken through condemnation (which term when used in this Deed of Trust shall
include any damage or taking by any governmental or quasi-governmental authority
and any transfer or grant by private sale made in anticipation of or in lieu
thereof), either temporarily or permanently, then all the Secured Obligations
shall, at the option of Beneficiary, become immediately due and payable without
prepayment premium. Promptly upon learning of the institution or the proposed,
contemplated or threatened institution of any condemnation proceeding, Trustor
shall notify Beneficiary of the pendency of such proceedings, and no settlement
respecting awards in such proceedings shall be effected without the consent of
Beneficiary. Beneficiary shall be entitled to receive all compensation, awards,
proceeds and other payments or relief relating to or payable as a result of such
condemnation. Subject to Beneficiary's prior written consent, not to be
unreasonably withheld, delayed or conditioned, Trustor shall be entitled to
commence, appear in and prosecute any action or proceeding relating to any
condemnation, and to settle or compromise any claim in connection therewith. All
such compensation, awards, damages, claims, rights of action and proceeds and
the right thereto are hereby assigned by Trustor to Beneficiary.
1.4.B. If Beneficiary does not elect to declare all the Secured
Obligations immediately due and payable, as provided in Section 1.4.A. above,
then Beneficiary, after deducting from said condemnation proceeds all of its
expenses incurred in the collection and administration of such sums, including,
without limitation, attorneys' fees, may apply the net proceeds or any part
thereof, at its option: (1) to a prepayment of either of the Notes, without
prepayment premium, (2) to the repair and/or restoration of the Property upon
such conditions as Beneficiary may determine, and/or (3) for any other purposes
or objects for which Beneficiary is entitled to advance funds under this Deed of
Trust, all without reducing or impairing the lien of this Deed of Trust or any
obligations secured hereby. Any balance of such moneys then remaining shall be
paid to Trustor or any other person or entity lawfully entitled thereto.
1.4.C. Notwithstanding the provisions of Section 1.4.A., above,
condemnation awards shall be made available to Trustor for the restoration of
the Property upon the following conditions: (i) the award, together with the
funds, if any, to be deposited by Trustor with Beneficiary are sufficient to
restore the Property; (ii) the Property is capable of being restored as
reasonably determined by Beneficiary, (iii) applicable zoning and planning laws
and ordinances permit the restoration of the Property, (iv) there is no Event of
Default under any of the Loan Documents, or an event with the passage of time or
the giving of notice or both shall constitute an Event of Default, and (v)
following restoration, both Trustor and the Property will be in compliance with
all covenants set forth in this Deed of Trust, and (v) the remaining Property
shall comply with all applicable land use, zoning and subdivision requirements.
1.4.D. Beneficiary shall not be obligated to see to the proper
application of any amount paid over to Trustor. If, prior to the receipt by
Beneficiary of such award or proceeds, the Property shall have been sold on
foreclosure of this Deed of Trust, or as a result of other legal action relating
to this Deed of Trust or the Notes, Beneficiary shall have the right to receive
such award or proceeds to the extent of any unpaid Secured Obligations following
such sale, with legal interest thereon, whether or not a deficiency judgment on
this Deed of Trust or either of the Notes shall have been sought or recovered,
and to the extent of attorneys' fees, costs and disbursements incurred by
Beneficiary in connection with the collection of such award or proceeds.
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1.5 CARE OF PROPERTY.
1.5.A. Trustor shall keep the Property, including without
limitation all permanent plantings, drainage and wastewater facilities, roads,
buildings, fixtures, appurtenances, equipment and improvements of any kind now
or hereafter erected on or used in connection with the Land or any part thereof,
in good condition and repair, shall not commit or suffer any waste. Trustor
shall also replace roofs, parking lots, mechanical systems and other elements of
the Property requiring periodic replacement. Trustor shall not do or suffer to
be done anything which would or could increase the risk of fire or other hazard
to the Property or any part thereof or which would or could result in the
cancellation of any insurance policy carried with respect to the Property.
1.5.B. Trustor shall not cause or permit the removal, demolishment
or material alteration, enlargement or change to any structure or other
improvement located on the Land without Beneficiary's prior written consent.
Trustor shall not cause or permit the construction of any new improvements on
the Land without Beneficiary's prior written consent. Trustor shall not cause or
permit the removal of any fixture, chattel or part of the Property from the Land
without Beneficiary's prior written consent, except where appropriate
replacements are immediately made which are free of any lien, security interest
or claim superior to that of this Deed of Trust and which have a value and
utility at least equal to the value and utility of the fixture or chattel
removed, which replacement shall, without further action, become subject to the
lien of this Deed of Trust; provided, however, that the foregoing restriction
shall not prohibit Trustor from removing or disposing of obsolete, dilapidated
and out-of-service equipment previously removed from the operating facilities
located on the Property (and replaced as indicated above) and stored on the
Property in the area referred to by the Trustor as its "boneyard" area.
1.5.C. Trustor shall ensure that all operations of the Property
conform to all applicable standards of the U.S. Food and Drug Administration and
the U.S. Department of Agriculture. Trustor shall ensure that all wastewater or
other discharges to the environment are conducted in conformance with current
industry practices and all current regulatory requirements. Trustor shall use
the Property solely as a mushroom growing, packaging and storage facility and
directly related purposes.
1.5.D. Without otherwise limiting the Trustor's covenant not to
commit or permit waste, Trustor shall not (1) remove or permit the removal of
sand, gravel, topsoil or timber, (2) use or permit the use of the Property for
barrow pit operations, (3) use or permit the use of the Property as a land fill
or dump, (4) burn or bury or permit the storage, burning or burying of any
material or product which will result in contamination of the Property or the
groundwater or which will require the issuance of a permit by the Environmental
Protection Agency or any state or local government agency governing the issuance
of hazardous or toxic waste permits, or (5) request or permit a change in the
zoning or land use classification in effect as of the date of this Deed of
Trust.
1.5.E. Trustor, at its sole cost and expense, shall ensure that the
Land will continue to have the continuing, enforceable right to receive
irrigation water from such sources, in such quantities, and at such times and
locations as is reasonably satisfactory for the purposes of farming, without
substantially increased cost, and in such quantities, and at such times and
locations as has been historically available to the Land.
1.5.F. Beneficiary or its representative is hereby authorized to
enter upon the Land at all reasonable times for purposes of inspecting the
Property and for the purpose of performing any of the acts Beneficiary is
authorized to perform hereunder or under the terms of any of the Loan Documents.
1.5.G. Trustor will perform and comply promptly with, and cause the
Property to be maintained, used and operated in accordance with, any and all (1)
present and future laws, ordinances, rules, and regulations, including without
limitation, all applicable federal, state and local laws pertaining to air and
water quality, hazardous waste, waste disposal, air emissions and other
environmental matters, all zoning and other land use matters, and rules,
regulations and ordinances of the United States Environmental Protection Agency
and all other applicable federal, state and local agencies and bureaus; and (2)
policies of insurance at any time in force with respect to the Property. Trustor
shall maintain in force and in good standing all licenses, permits or contracts
necessary, or reasonably considered by Beneficiary to be desirable for the
contemplated operation and maintenance of the Property. If Trustor receives any
notice that Trustor or the Property is in default under or is not in compliance
with any of the foregoing, or notice of any proceeding initiated under or with
respect to any of the foregoing, Trustor will promptly furnish a copy of such
notice to Beneficiary.
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1.5.H. If all or any part of the Property shall be damaged by fire
or other casualty at a cost of restoration in excess of $250,000, Trustor shall
give immediate written notice thereof to Beneficiary and shall promptly restore
the Property to the equivalent of its original condition; and if a part of the
Property shall be damaged through condemnation, Trustor shall promptly restore,
repair or alter the remaining portions of the Property in a manner satisfactory
to Beneficiary. In the event all or any portion of the Property shall be damaged
or destroyed by fire or other casualty or by condemnation, Trustor shall
promptly deposit with Beneficiary a sum equal to the amount by which the
estimated cost of the restoration of the Property, as determined by Beneficiary,
exceeds the actual net insurance or condemnation proceeds received by
Beneficiary in connection with such damage or destruction, or with Beneficiary's
consent, provide such other assurance or security so as to protect the integrity
of the loan to value ratio upon which the Loans were underwritten and secure the
Trustor's obligation to restore the Property, as may be acceptable to
Beneficiary in its sole and absolute discretion.
1.6 REPRESENTATIONS AND WARRANTIES. Trustor, for itself and its
successors and assigns, represents and warrants to and for the benefit of
Beneficiary as follows.
1.6.A. Trustor has the lawful right and authority to grant, assign,
transfer and/or mortgage its interest in the Property and each portion thereof
as provided in this Deed of Trust.
1.6.B. Neither Trustor's execution and delivery of the Notes, this
Deed of Trust or any other of the Loan Documents, nor the taking of any action
in compliance with any of the foregoing will (1) contravene, cause a breach of,
or constitute a default under any contract or agreement to which Trustor is a
party, or (2) violate or contravene any law, order, decree, rule or regulation
to which Trustor is subject.
1.6.C. The Property and each portion thereof is free from liens,
encumbrances, possessory interests and adverse claims of title other than the
Permitted Exceptions.
1.6.D. All reports, certificates, affidavits, statements, financial
information and other data provided by Trustor to Beneficiary in connection with
the Loans are true and correct in all material respects and do not omit any
material information.
1.6.E. The Property and each portion thereof, and Trustor's actual
and intended use of the Property and each portion thereof, complies with all
applicable covenants, conditions and restrictions, zoning ordinances, subdivided
lands laws, building codes, applicable public health and safety and
environmental laws and regulations, and all other ordinances, orders or
requirements issued by any local, state or federal authorities which have or
claim jurisdiction over the Property.
1.6.F. No pending or threatened judicial or administrative actions,
suits or proceedings affecting Trustor or the Property or any portion thereof
would, if determined adversely either to Trustor or the Property, materially
impair either the Property or Trustor's ability to perform the covenants or
obligations required to be performed under the Notes, this Deed of Trust or any
of the other Loan Documents.
1.6.G. Trustor declares and certifies, under penalty of perjury,
that: (1) the Taxpayer Identification Number of Trustor is 74-1264568; (2) the
business mailing address of Trustor is as set forth on page 1 hereof; (3)
Trustor is not a "foreign person" within the meaning of Sections 1445 and 7701
of the Internal Revenue Code of 1986, as amended (the "Code"); and (4) Trustor
understands that the information and certification contained in this Section
1.6.G. may be disclosed to the Internal Revenue Service and that any false
statement contained herein could be punished by fine, imprisonment or both.
1.6.H. Trustor agrees (1) to provide Beneficiary with a new
certification containing the provisions of Section 1.6.G. above immediately upon
any change in such information, and (2) upon any transfer which is permitted by
the terms of this Deed of Trust, to cause such transferee to execute and deliver
to Beneficiary a certificate concerning the non-foreign status of such
transferee substantially in the form of Section 1.6.G. above
1.6.I. The Land has, and will continue to have, the continuing,
enforceable right to receive irrigation water from such sources, in such
quantities, and at such times and locations as is reasonably satisfactory for
the purposes of farming, without interruption and in such quantities, and at
such times and locations as has been historically available to the Land. With
respect to any portion of the Land on which the water used on the Land is
derived from wells: (a) Trustor has filed with the State Engineer of the State
of Utah, Division of Water Rights all notices and other documents required under
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Utah law in connection with such wells; (b) all such wells are located on the
Land; and (c) to the best of Trustor's knowledge, all water drawn from such
wells are derived from a ground water basin lying beneath the Land.
1.6.J. Trustor has taken, and shall continue to take, all steps
required to perfect and maintain the Water Rights in all respect (including, but
not limited to, the point of withdrawal, rate of diversion, the duty, the season
of use, the nature of use and the lands to which the right is appurtenant).
1.7 SUBROGATION. To the full extent of the Secured Obligations,
Beneficiary is hereby subrogated to the liens, claims and demands, and to the
rights of the owners and holders of each lien, claim, demand and other
encumbrance on the Property which is paid or satisfied, in whole or in part, out
of the proceeds of either of the Loans, and the respective liens, claims,
demands and other encumbrances shall be, and each of them is hereby, preserved
and shall pass to and be held by Beneficiary as additional collateral and
further security for the Secured Obligations, to the same extent they would have
been preserved and would have been passed to and held by Beneficiary had they
been duly and legally assigned, transferred, set over and delivered unto
Beneficiary by assignment, notwithstanding the fact that any instrument
providing public notice of the same may be satisfied and canceled of record.
1.8 TRANSFER OF THE PROPERTY; SECONDARY FINANCING.
1.8.A. The identity and expertise of Trustor were and continue to
be material circumstances upon which Beneficiary has relied in connection with,
and which constitute valuable consideration to Beneficiary for, extending the
Secured Obligations to Trustor, and any change in such identity or expertise
could materially impair or jeopardize the security for the payment and
performance of the Secured Obligations. Trustor covenants and agrees with
Beneficiary, as part of the consideration for extending the Secured Obligations
to Trustor, that without Beneficiary's prior written consent, Trustor shall not,
voluntarily or by operation of law:
(1) sell, contract to sell, transfer, convey, assign or
otherwise hypothecate or dispose of, all or any part of the Property or any
interest therein whether or not as collateral security for any other obligation
of Trustor;
(2) subject to exception for a transfer by an individual to
a revocable trust created by such individual for estate planning purposes and
transfers of title or interest under any will or testament or applicable law of
descent, (a) enter into any transaction of dissolution, merger or consolidation,
(b) acquire any other business or corporation, (c) acquire all or substantially
all of the property or assets of any other person or entity, or (d) sell,
transfer, assign, or otherwise dispose of voting control of more than fifty
percent (50%) of the beneficial interest in the voting common stock and the
profits, losses and capital of Trustor outstanding as of the date of this Deed
of Trust, if the result of any of the foregoing transactions is (i) that Trustor
shall have acquired the assets of any person or entity which are not primarily
used in connection with a business which is agribusiness in nature, or (ii) a
surviving entity which is not primarily in a business which is agribusiness in
nature, (iii) a person other than Trustor being the surviving entity, or (iv)
any person or entity other than James I. Tankersley and his immediate family
members, or entities solely owned or controlled thereby, owning and controlling
more than 50% of the voting common stock and beneficial interests in the
profits, losses and capital of Trustor;
(3) cause or permit any junior encumbrance or lien to be
placed on the Property or other collateral for the Secured Obligations or upon
more than 50% of the beneficial interest or ownership in Trustor outstanding as
of the date of this Deed of Trust, which encumbrance is not released or
reconveyed within five (5) days written notice by Beneficiary;
(4) transfer, assign, sell, lease, exchange, gift, encumber,
pledge, hypothecate, alienate, grant an option to purchase, or otherwise dispose
of, directly, indirectly or in trust, voluntarily or involuntarily, by operation
of law or otherwise, or enter into a binding agreement to do any of the
foregoing with respect to all or any part of the Water Rights, unless Trustor
shall have demonstrated to Beneficiary's satisfaction, determined in its sole
and absolute discretion and approved in writing prior to the transaction in
question, that adequate replacement or substitute sources of water for the
Property exist and have been procured in such quantities and at such times and
locations as are reasonably satisfactory for the purposes of operating the
Property without interruption and in such quantities, and at such times and
locations as have been historically available to the Property;
(5) enter into or renew any leases, subleases, tenant
contracts, or rental agreements with respect to any portion of the Property for
terms (including any renewal or extension options) in excess of one (1) year.
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1.8.B. Any purported transaction in violation of Section 1.8.A.
above shall be void and shall entitle Beneficiary to declare all the Secured
Obligations immediately due and payable without notice or demand. Beneficiary
may give or withhold its consent to any of the foregoing in its sole and
absolute discretion and consent may be conditioned upon payment to Beneficiary
of a fee for processing the request for consent and other administrative costs
incurred in connection therewith, and/or an express written assumption by any
permitted transferee of the Notes and the Loan Documents in form satisfactory to
Beneficiary, and/or an increase in the rate of interest on the unpaid balance of
the Notes to a then current market rate, and/or a change in the term of the
Notes, and/or other changes in the terms of the Loan Documents as Beneficiary
may determine, all of which Trustor hereby agrees are reasonable conditions to
the approval of any such transfer.
1.8.C. Notwithstanding the provisions of Section 1.8.A., above,
Trustor shall be entitled to do the following:
(1) Replace items of equipment constituting a portion of the
Property encumbered hereby; provided that all such replacements or substitutions
shall have a value and utility at least equal to the value and utility of the
equipment removed, and provided that all such replacements or substitutions
shall remain encumbered by the first lien and security interest of this Deed of
Trust. Trustor shall execute all such documents and instruments as may be
required to protect and preserve the first lien priority of this Deed of Trust
with respect to any replacements or substitutions of any portion of the
equipment portion of the Property.
(2) Remove or dispose of obsolete, dilapidated and
out-of-service equipment previously removed from the operating facilities
located on the Property (and replaced as indicated above) and stored on the
Property in the area referred to by the Trustor as its "boneyard" area.
(3) Convert the Trustor from a publicly-traded to a
privately-held corporation, provided that:
(a) upon the completion of any such transaction, James
I. Tankersley and his immediate family members, or entities solely owned or
controlled thereby, shall own and control at least 51% of the voting common
stock and beneficial interests in the profits, losses and capital of Trustor;
(b) Beneficiary is provided at least thirty (30) days
prior written notice of the completion of the conversion transaction together
with copies of related documentation, and the resulting privately-held entity
assumes all liability under the Notes, this Deed of Trust and all other Loan
Documents, and executes such additional documents relating to the Loans and the
Loan Documents as may be required by Beneficiary to protect the enforceability,
priority and underwriting standards of the Loans and the Loan Documents; and
(c) the lien and security interest evidenced by the Loan
Documents shall not be diminished by any such change in the ownership of
Trustor.
1.8.D. The consent by Beneficiary to any sale, transfer,
conveyance, pledge, encumbrance, assignment, creation of a security interest in
or other hypothecation or disposition of the Property or the beneficial
interests of Trustor shall not be deemed to constitute a novation of the Secured
Obligations or a consent to any further sale, transfer, pledge, encumbrance,
creation of a security interest or other hypothecation or disposition, or to
waive Beneficiary's right, at its option, to exercise its remedies for default,
without notice to or demand upon Trustor or to any other person or entity upon
any such sale, transfer, pledge, encumbrance, creation of a security interest in
or other hypothecation, or disposition to which Beneficiary shall not have
consented.
1.9 LIMIT ON INTEREST. If from any circumstances whatsoever,
fulfillment of any provision of this Deed of Trust, the Notes or any other Loan
Document, at the time performance of such provision becomes due, exceeds the
limit on interest then permitted by any applicable usury statute or any other
applicable law, with regard to obligations of like character and amount, then
Beneficiary may, at its option (a) to the extent permitted under applicable law,
declare the entire Indebtedness secured hereby, including interest and late
charges, if any, and all other sums owing, immediately due and payable, (b)
reduce the obligations to be fulfilled to such limit on interest, or (c) apply
the amount held to be in excess of such limit on interest to the reduction of
the outstanding principal balance of either of the Notes, and not to the payment
of interest, with the same force and effect as though Trustor had specifically
designated such sums to be so applied to principal and Beneficiary had agreed to
accept such extra payment(s) as a premium-free prepayment, so that in no event
shall any exaction
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be possible under the Notes or this Deed of Trust, that is in excess of the
applicable limit on interest. It is the intention of Trustor and Beneficiary
that the total liability for payments in the nature of interest shall not exceed
the limits imposed by any applicable state or federal interest rate laws. The
provisions of this Section 1.9 shall control every other provision of this Deed
of Trust, and any provision of the Loan Documents in conflict with this Section
1.9.
1.10 PERFORMANCE BY BENEFICIARY OF DEFAULTS BY TRUSTOR. Trustor
covenants and agrees that, if it shall default in the payment of any tax, lien,
assessment, or charge levied or assessed against the Property; in the payment of
any utility charge, whether public or private; in the payment of any insurance
premium; in the procurement of insurance coverage and the delivery of the
insurance policies required hereunder; or in the performance or observance of
any other covenant, condition or term of this Deed of Trust, then Beneficiary,
at its option, but without obligation and without notice, may pay, perform or
observe the same, and all payments made or costs incurred by Beneficiary in
connection therewith shall be secured hereby and shall be, without demand,
immediately repaid by Trustor to Beneficiary with interest thereon, from the
date such payment is made or expense is incurred by Beneficiary to the date
Beneficiary is reimbursed therefor, at the Default Interest Rate provided in the
Notes. Trustor hereby indemnifies Beneficiary against any and all costs,
liabilities or damages, arising from or in any way related to the performance of
Trustor's obligations by Beneficiary. Notwithstanding the foregoing, Trustor
may, at its expense, contest the validity or application of any of the foregoing
charges, taxes, liens or payments by appropriate legal proceedings promptly
initiated and diligently conducted in good faith, provided that (a) Beneficiary
is reasonably satisfied that the priority of this Deed of Trust shall be
maintained and neither the Property nor any part thereof or interest therein
will be in danger of being sold, forfeited, or lost as a result of such contest,
and (b) if the total liability exposure is in excess of $250,000, Trustor shall
have posted a bond or furnished such other security as may be reasonably
required from time to time by Beneficiary.
1.11 ACCOUNTING AND FINANCIAL INFORMATION. Trustor shall keep and
maintain, or shall cause to be kept and maintained, at Trustor's cost and
expense, proper and accurate books, records and accounts reflecting all items of
expense in connection with the operation of the Property and in connection with
any services, equipment, or furnishings provided in connection with the
operation of the Property. Trustor shall furnish the following statements and
other information to Beneficiary, all of which shall fairly and accurately
present the financial condition of the subject thereof as of the dates thereof
and shall be certified by Trustor's principal financial or accounting officer:
(1) quarterly, within sixty (60) days after the end of each fiscal
quarter, unaudited, compiled financial statements and related reports; and
(2) annually, within one hundred (120) days after the end of
Trustor's fiscal year, at Trustor's expense, audited annual balance sheets,
profit and loss statements, and all supporting schedules covering the operations
of the Trustor.
From and after an Event of Default Beneficiary may require that any such
statements shall be audited and/or prepared and certified by an independent
certified public accountant selected or approved by Beneficiary. In the event
that Trustor shall refuse or fail to furnish any statement as aforedescribed, or
in the event such statement shall be inaccurate or false, or in the event of
failure of Trustor to permit Beneficiary or its representatives to inspect the
Property or the said books and records, such acts of Trustor shall be a default
hereunder and Beneficiary may proceed in accordance with the rights and remedies
afforded Beneficiary under the provisions hereof.
1.12 FINANCIAL COVENANTS.
1.12.A. Definitions. For purposes of this Section 1.12, the
following terms shall be defined as set forth below:
(1) "Assets" shall mean anything owned or controlled by
Trustor or any right or interest therein of Trustor.
(2) "Consolidated Basis" shall mean the assets,
liabilities and equities of the Trustor and any subsidiary shall be deemed to be
one for accounting purposes in calculating the various ratios and requirements
used herein.
(3) "Consolidated Net Income" shall mean "Net Income" as
defined in Generally Accepted Accounting Principles, determined on a
Consolidated Basis.
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(4) "Consolidated Tangible Net Worth" shall mean all
Tangible Assets less all Liabilities of Trustor, determined on a Consolidated
Basis.
(5) "Current Assets" shall mean Assets owned by Trustor
which normally will be converted into cash within a year.
(6) "Current Liabilities" shall mean Liabilities of
Trustor which must be paid or satisfied within a year, excluding any deferred
taxes.
(7) "Current Ratio" shall mean the ratio of Current Assets
to Current Liabilities.
(8) "Funded Debt" shall mean any loan or other obligation
of the Trustor maturing within a period in excess of one year, excluding
capitalized leases and revolving lines of credit.
(9) "Liabilities" shall mean any debt or obligation of
Trustor.
(10) "Net Tangible Assets" shall mean Tangible Assets less
all Current Liabilities.
(11) "Net Worth" shall mean all Assets less all
Liabilities of Trustor.
(12) "Tangible Assets" shall mean all Assets except assets
such as goodwill, patents and similar assets of an intangible nature.
1.12.B. Specific Covenants. All of the following covenants shall
be satisfied at all times during the term of the Loans:
(1) Consolidated Current Assets less Consolidated Current
Liabilities shall not, on a quarterly and fiscal year end basis, be less than
Ten Million Dollars ($10,000,000.00).
(2) As of the date of recordation of this Deed of Trust,
Consolidated Tangible Net Worth shall not, on a quarterly and fiscal year end
basis, be less than Twenty-Seven Million Five Hundred Thousand Dollars
($27,500,000.00) (the "Consolidated Net Worth Minimum"). During each fiscal year
thereafter, the Consolidated Net Worth Minimum shall increase (but not decrease)
by 25% of the previous fiscal year's Consolidated Net Income.
(3) The ratio of Funded Debt to Net Worth shall not exceed
2.15 to 1, as determined as of the end of each fiscal year.
(4) Current year payments on operating leases with terms
in excess of one (1) year shall not, as of the end of any fiscal year, exceed
Four Million Five Hundred Thousand Dollars ($4,500,000.00).
1.13 ADDITIONAL COVENANTS.
1.13.A. All transactions between Trustor and any of its affiliates
shall be based on arms' length dealing in the ordinary course of business.
1.13.B. Trustor shall not, in the event Trustor is or becomes a
subsidiary or affiliate of another company, or creates a subsidiary or affiliate
of its own, make contributions, dividends, loans or other cash advances directly
or indirectly, to such parent, subsidiary or affiliate if either of the Loans
are in default or if any interest and/or principal payments currently due and
payable are outstanding, or if Trustor will not be able to make any payments
required under either of the Loans during the following twelve (12) months.
1.14 LOAN PURPOSE. Trustor hereby covenants, represents and warrants
that the loan secured by this Deed of Trust has been incurred and made solely
for agricultural business purposes, such covenant and agreement having been made
to induce Beneficiary to make said loan; and the proceeds of said loan are being
used entirely for such agricultural business purposes. Trustor warrants that
this Deed of Trust is not, and will not at any time, constitute a "residential
trust deed" (as that term is defined in ORS 86.705(3) or its successor statute).
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1.15 CONSENT REQUIRED FOR INCLUSION OF PROPERTY IN IMPROVEMENT
DISTRICTS. Trustor hereby covenants, represents and warrants that it will not
create or initiate, vote for, or in any other manner join in or consent by
affirmative voluntary action to the creation of, or the inclusion of the
Property or any part thereof within the boundaries of any irrigation, levee,
drainage or other improvement district (except school or road), under which any
such district has, or will have, the power to issue bonds or other evidences of
indebtedness and/or the power to make assessments against the Property, without
the written consent of Beneficiary.
ARTICLE 2
ASSIGNMENT OF RENTS AND PROCEEDS, LEASES, AND CONTRACTS
2.1 ASSIGNMENT OF RENTS AND PROCEEDS AND LEASES. In connection with the
Loan, Trustor hereby absolutely, presently and irrevocably assigns, grants,
transfers, and conveys to Beneficiary, its successors and assigns, all of
Trustor's right, title, and interest in, to, and under all leases, subleases,
tenant contracts, rental agreements, whether written or oral, now or hereafter
affecting all or any part of the Property or Trustor's use thereof, and any
agreement for the use or occupancy of all or any part of said Property which may
have been made heretofore or which may be made hereafter, including any and all
extensions, renewals, and modifications of the foregoing and guaranties of the
performance or obligations of any tenants thereunder, and all other arrangements
of any sort resulting in the payment of money to Trustor or in Trustor becoming
entitled to the payment of money for the use of the Property or any part thereof
whether such user or occupier is tenant, invitee, or licensee (all of the
foregoing hereafter referred to collectively as "Leases" and individually as a
"Lease", and said tenants, invitees, and licensees are hereafter referred to
collectively as "Tenants" and individually as "Tenant" as the context requires),
which Leases cover all or portions of the Property; together with all of
Trustor's right, title, and interest in and to all income, rents, issues,
royalties, profits, rights and benefits and all Tenants' security and other
similar deposits derived with respect to the Leases and with respect to the
Property, (hereafter collectively referred to as "Rents and Proceeds"), and the
right, without taking possession of the Real Property, to collect the same as
they become due and to apply such Rents and Proceeds to the Secured Obligations.
It is the intent of Trustor and Beneficiary to establish an absolute transfer
and assignment of all of the Leases and the Rents and Proceeds to Beneficiary
and not just to create a security interest.
2.2 ASSIGNMENT OF CONTRACTS. In connection with the Loan, Trustor
hereby absolutely, presently and irrevocably assigns, grants, transfers, and
conveys to Beneficiary, its successors and assigns, all of Trustor's right,
title, and interest in, to, and under all management contracts, construction
contracts, insurance policies, and other contracts, licenses and permits,
whether written or oral, now or hereafter affecting all or any part of the
Property or Trustor's use thereof, which may have been made heretofore or which
may be made hereafter, including any and all extensions, renewals, and
modifications of the foregoing and guaranties of the performance or obligations
of any obligors thereunder (all of the foregoing hereafter referred to
collectively as the "Contracts" and individually as a "Contract" as the context
requires); together with all of Trustor's right, title, and interest in and to
all income, issues, royalties, profits, rights and benefits derived with respect
to the Contracts and with respect to the Property, and the right to collect the
same as they become due. The foregoing assignment encompasses the right of
Trustor to (a) terminate any of the Contracts, (b) perform or compel performance
and otherwise exercise all remedies under the Contracts, and (c) collect and
receive all sums which may become due Trustor or which Trustor may now or shall
hereafter become entitled to demand or claim, under the Contracts.
2.3 DISCLAIMER. Neither the assignments set forth in Sections 2.1 and
2.2 above nor Beneficiary's exercise of its rights thereunder shall: (a) make
Beneficiary a "mortgagee-in-possession" or otherwise responsible for the
operations of and on the Property; or (b) be construed as Beneficiary's
affirmation of any Lease or Contract, Beneficiary's assumption of any obligation
or responsibility for the nonperformance by Trustor under any Lease or Contract,
or Beneficiary's subordination of the lien of this Deed of Trust to any such
Lease or Contract.
2.4 REPRESENTATIONS, WARRANTIES AND COVENANTS. Trustor hereby
represents, warrants, and covenants as follows.
2.4.A. Trustor is the sole holder of the landlord's interest under
the Leases, is entitled to receive the Rents and Proceeds from the Leases and
from the Property, and has the full right to sell, assign, transfer, and set
over the same and to grant to and confer upon Beneficiary the rights, interests,
powers, and authorities herein granted and conferred.
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2.4.B. Trustor is the sole holder of the Contracts, is entitled to
all the benefits of the Contracts, and has the full right to sell, assign,
transfer and set over the same and to grant and confer upon Beneficiary the
rights, interests, powers, and authorities herein granted and conferred.
2.4.C. Trustor has made no pledge or assignment of the Leases,
Rents and Proceeds, or Contracts prior to the date hereof, and Trustor shall
not, after the date hereof, make or permit any such pledge or assignment.
2.4.D. Trustor shall provide Beneficiary with a fully-executed
original counterpart of each Lease, amendment, modification or alteration
thereto. Trustor shall authorize and direct, and does hereby authorize and
direct, each and every present and future Tenant of the whole or any part of the
Property to pay all rental to Beneficiary from and after the date of receipt of
written demand from Beneficiary to do so.
2.5 LICENSE. Although this Deed of Trust constitutes an absolute,
present and current assignment of all Rents and Proceeds, as long as no Event of
Default as defined in Section 4.1 below, on the part of Trustor shall have
occurred, Beneficiary shall not demand that Rents and Proceeds be paid directly
to Beneficiary, and Trustor shall have a license to collect, but not more than
one (l) year prior to the due date thereof, all such Rent and Proceeds
(including, without limitation, all rental payments under the Leases).
2.6 TRUSTOR REMAINS LIABLE. Notwithstanding anything set forth herein
to the contrary, (a) Trustor shall remain liable under any Contracts, to the
extent set forth therein, to perform all of its duties and obligations
thereunder to the same extent as if this Deed of Trust had not been executed,
(b) the exercise by Beneficiary of any of its rights hereunder shall not release
Trustor from any of its duties or obligations under the Contracts, and (c)
Beneficiary shall not have any obligation or liability under any Contracts by
reason of this Deed of Trust, nor shall Beneficiary be obligated to perform any
of the obligations or duties of Trustor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
ARTICLE 3
SECURITY AGREEMENT AND FIXTURE FILING
3.1 GRANT. As additional security for the Secured Obligations, Trustor
hereby grants to Beneficiary a security interest in and to all Trustor's right,
title and interest now owned or hereafter acquired in and to the following
property, hereinafter referred to collectively as the "Personal Property":
(a) all fixtures, equipment, apparatus, machinery and other
property of the type and nature included within the definition of Improvements
and Fixtures in Section A(2) above and growing crops as described in Section
A(9) above, to the extent, if any, such items are characterized for any purpose
as personal property (rather than as improvements and/or fixtures so related to
the Land that an interest therein arises under applicable law);
(b) all Water Rights (as defined in Section A(6) above) now or
hereafter associated with the Land (to the extent, if any, such rights are not
deemed to be interests in real property);
(c) all Leases (as defined in Section 2.1 above) and all Contracts
(as defined in Section 2.2 above) and any guaranties thereof;
(d) all causes of action and recoveries now or hereafter existing
for any loss or diminution in value of the Land or any of the collateral
described herein;
(e) all rents, issues, profits, insurance proceeds and condemnation
awards or compensation, development rights, easement rights, agreements,
licenses, permits, governmental authorizations and all other contract rights and
general intangibles arising out of or incident to the ownership, development,
management or operation of the Land or the collateral described herein, and all
accounts holding or constituting cash proceeds of any of the collateral
described herein;
(f) all additions to, and substitutions, renewals, replacements,
products and proceeds of, the foregoing.
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Notwithstanding any inference to the contrary set forth above or
elsewhere in this Deed of Trust, "Personal Property" does not include, and the
security interest granted herein does not encumber, Trustor's right, title and
interest in and to accounts receivable, inventory, rolling stock, tradenames,
brands, supplies or the products or proceeds thereof.
3.2 SECURITY AGREEMENT. This Deed of Trust is hereby made and declared
to be a security agreement encumbering each and every item of Personal Property
described in Section 3.1 above in accordance with the Uniform Commercial Code as
enacted in the State of Utah (the "UCC"). Upon request by Beneficiary, at any
time and from time to time, a financing statement or statements perfecting the
lien of this security agreement as encumbering the Personal Property (or
extensions, renewals or amendments thereof) shall be executed by Trustor and
delivered to Beneficiary for filing with the Utah Department of Commerce,
Division of Corporations and Commercial Code. The security interest granted
herein shall attach as soon as Trustor obtains any interest in any of the
Personal Property and before the Personal Property becomes fixtures or before
the Personal Property is installed or affixed to other collateral for the
benefit of Beneficiary under this Deed of Trust.
3.3 FIXTURE FILING. Some of the items of property described herein
are goods that are or are to become fixtures related to the real estate
described herein, and it is intended that, as to those goods, this Deed of Trust
and Security Agreement shall be effective as a financing statement recorded as a
fixture filing from the date of its recording in the real estate records of the
county in which the Land is located. Information concerning the security
interest created by this instrument may be obtained from the Beneficiary, as
"Secured Party," or Trustor, as "Debtor," at their respective mailing addresses
set out in Section 5.5 below. Trustor warrants that (a) Trustor's (that is,
"Debtor's") name, identity, and principal place of business are as referred to
in the first paragraph of this Deed of Trust, (b) each Trustor (that is,
"Debtor") has been using or operating under said name and identity without
change for at least five (5) years; and (c) the location of all tangible
collateral is upon the Land. Trustor covenants and agrees that Trustor will
furnish Beneficiary with notice of any change in the matters addressed by
clauses (a) or (b) of this Section 3.3 within thirty (30) days of the effective
date of any such change, and Trustor will promptly execute any financing
statements or other instruments deemed necessary by Beneficiary to prevent any
filed financing statement from becoming misleading or losing its perfected
status.
3.4 REPRESENTATIONS, WARRANTIES AND COVENANTS. Trustor hereby
represents, warrants, and covenants as follows.
3.4.A. Without the prior written consent of Beneficiary and other
than as set forth in Section 1.8, above, Trustor will not remove or permit to be
removed from the Real Property, any of the Personal Property unless the same is
replaced immediately with unencumbered collateral of a quality and value equal
or superior to that which it replaces. All such replacements, renewals and
additions shall become and be immediately subject to the security interest of
this Deed of Trust and be covered thereby. Trustor warrants and represents that
all Personal Property now is, and that all replacements thereof, substitutions
therefor or additions thereto will be, free and clear of liens, encumbrances or
security interests of others, except as to the Permitted Exceptions. The
security interest held by Beneficiary shall cover cash and non-cash proceeds of
the Personal Property.
3.4.B. All of the Property is and shall be owned by Trustor, and is
not and shall not be the subject matter of any lease or other instrument,
agreement or transaction whereby the ownership or beneficial interest thereof or
therein shall be held by any person or entity other than Trustor, except to the
extent Beneficiary consents in writing to any lease of any of such property,
which consent may be withheld or delayed in Beneficiary's sole discretion.
Trustor shall not create or cause to be created any security interest covering
any of the Personal Property, other than (1) the security interest created
herein in favor of Beneficiary, (2) the rights of Tenants lawfully occupying the
Property pursuant to Leases approved by Beneficiary, or (3) the Permitted
Exceptions.
ARTICLE 4
EVENTS OF DEFAULT; REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an "Event of Default" hereunder:
(a) the failure by Trustor to pay, or cause to be paid, any
installment of principal or interest under either of the Notes or other
indebtedness secured by this Deed of Trust, within ten (10) days from the date
when due and payable;
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(b) the failure by Trustor to pay, or cause to be paid, the entire
amount of the Secured Obligations upon the maturity of either of the Loans by
acceleration or by lapse of time;
(c) the failure by Trustor to pay, or cause to be paid, within
three (3) business days of notice of the sum due and owing, any other sum that
may be due and payable under this Deed of Trust or any of the other Loan
Documents;
(d) any transfer prohibited under Section 1.8 above to which
Beneficiary has not first consented in writing or which has not been cured as
provided in such Section 1.8;
(e) any representation or warranty of Trustor contained in this
Deed of Trust or in any other Loan Document proves to be untrue or misleading in
any material respect as of the time made and Beneficiary, by written notice
delivered to Trustor, declares Trustor to be in default as a result thereof;
(f) any representation or warranty of Trustor contained in
this Deed of Trust or in any other Loan Document becomes untrue or misleading in
any material respect as of any subsequent time prior to the satisfaction in full
of all of the Secured Obligations and Trustor fails to cure such default within
ten (10) days of Beneficiary's written notice of such default delivered to
Trustor;
(g) the occurrence of any Event of Default under any of the other
Loan Documents, including without limitation: (i) that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing of even date
herewith, executed by Trustor for the benefit of Beneficiary encumbering
property located in the County of Ventura, State of California, (ii) that
certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing of even date herewith, executed by Trustor for the benefit of Beneficiary
encumbering property located in the County of Santa Barbara, State of
California, (iii) that certain Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing of even date herewith, executed by Trustor for the
benefit of Beneficiary, encumbering property located in the County of Marion,
State of Oregon;
(h) the failure to cause the release or reconveyance of any federal
or state tax lien filed or recorded against the Property within sixty (60)
calendar days following the filing or recording of such lien and in any event
prior to the initiation of a foreclosure action in connection therewith;
(i) the filing by any Trustor, any principal of any Trustor, or any
endorser or guarantor of the Notes, of a voluntary petition in bankruptcy
pursuant to any federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors (hereafter referred to
collectively as "Bankruptcy Law") or the issuing of an order for relief against
any Trustor, any principal of any Trustor or any endorser or guarantor of either
of the Notes under any such Bankruptcy Law, or the filing by any Trustor, any
principal of any Trustor, or any endorser or guarantor of the Notes of any
petition or answer seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief for
itself under any present or future Bankruptcy Law;
(j) the seeking of, consenting to, or acquiescing in, by Trustor,
any principal of any Trustor, or any endorser or guarantor of the Notes, the
appointment of any trustee, custodian, receiver, or liquidator of any such
person or of all or any substantial part of the Property or of any or all of the
income, rents, revenues, issues, earnings, profits or income thereof or of any
other property or assets of such person; or the making by any such person of any
general assignment for the benefit of creditors, or the admission in writing by
any such person of its inability to pay its debts generally as they become due,
or the commission by any such person of any act providing grounds for the entry
of an order for relief under any Bankruptcy Law;
(k) the failure to cause the dismissal of any involuntary petition
in bankruptcy brought against any Trustor, any principal of any Trustor or any
endorser or guarantor of the Notes within sixty (60) calendar days after the
same is filed but in any event prior to the entry of an order, judgment, or
decree approving such petition;
(l) the Property is subjected to actual or threatened waste;
(m) any Trustor, any principal of Trustor, or any endorser or
guarantor of either of the Notes (if a corporation) is liquidated or dissolved
or its charter expires or is revoked, or any Trustor or such endorser or
guarantor (if a partnership or business association) is dissolved or
partitioned, or any Trustor or such endorser or guarantor (if a trust) is
terminated or expires, or any Trustor or such endorser or guarantor (if an
individual) dies;
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(n) the failure to cause the dismissal of any claim by any
person or entity in any legal or equitable proceeding challenging the first
priority lien of this Deed of Trust, subject only to the Permitted Exceptions,
within sixty (60) calendar days of the filing of such claim but in any event at
least thirty (30) days prior to the entry of an order, judgment, or decree in
such proceeding;
(o) the default by Trustor under any other loan secured by a lien
on any portion of the Property and the expiration of any applicable notice
and/or cure period;
(p) the failure to cause the dismissal of any action filed under
any federal or state law, which permits forfeiture of Trustor's interest in the
Property, including but not limited to, any indictment under the Racketeer
Influence and Corrupt Organization Act of 1970 (RICO), within sixty (60)
calendar days of the filing of such action but in any event at least thirty (30)
days prior to entry of an order, judgment, or decree in such action;
(q) the failure by Trustor duly to observe or perform any other
term, covenant, condition or agreement of this Deed of Trust immediately upon
written notice of such failure; provided, however, if such failure cannot be
immediately cured, then failure by Trustor to immediately commence the curing
thereof and diligently to prosecute such curing to completion within one hundred
twenty (120) days following receipt of written notice or if Trustor either
ceases to purse the cure of such failure with diligence or repudiates its
obligation to effect such a cure; or
(r) the entry of any judgment against Trustor if the judgment may
materially and adversely affect the value, use or operation of the Property and
results in the entry of an order for relief against Trustor which is not fully
stayed within sixty (60) calendar days after the entry thereof.
4.2 REMEDIES. Upon and after any Event of Default, Beneficiary and/or
Trustee shall be entitled to invoke any and all of the rights and remedies
described below, and any other remedies available to secured creditors
generally. All of such rights and remedies shall be cumulative, and the exercise
of any one or more of them shall not constitute an election of remedies.
4.2.A. Beneficiary, by written notice given to Trustor, may declare
the entire principal of both of the Notes then outstanding (if not then due and
payable), and all accrued and unpaid interest thereon, all prepayment premiums
payable thereunder and all other obligations of Trustor hereunder to be due and
payable immediately, and upon any such declaration the principal of the Notes
and said accrued and unpaid interest and any prepayment premiums shall become
and be immediately due and payable, anything in the Notes or in this Deed of
Trust to the contrary notwithstanding. Notwithstanding the foregoing, with
respect to an Event of Default arising from the failure to pay any amounts
evidenced by the Notes on the dates due thereunder, Beneficiary shall provide
Trustor with five (5) days' written notice prior to acceleration; provided that
no additional notice shall be required upon acceleration, and further provided
that such notice obligation shall not release Trustor from any late charges or
default interest incurred in connection with such Event of Default as more
particularly provided in the Notes.
4.2.B. Trustee or Beneficiary personally, or by its agents,
attorneys or receiver appointed by the court, may enter, take possession of,
manage and operate all or any part of the Property, and in its own name or in
the name of Trustor sue for or otherwise collect any and all rents or other
proceeds of the Property and may also do any and all other things in connection
with those actions that Beneficiary may in its sole discretion consider
necessary and appropriate to protect the security of this Deed of Trust. Such
other things may include: insuring or keeping the Property insured, entering
into, enforcing, modifying or canceling Leases on such terms and conditions as
Beneficiary may consider proper; obtaining and evicting Tenants; fixing or
modifying rents; completing any unfinished construction; contracting for and
making repairs and alterations; performing such acts of cultivation or
irrigation as necessary to conserve the value of the Property; and preparing for
harvest, harvesting and selling any crops that may be growing on the Property.
Trustor hereby irrevocably constitutes and appoints Beneficiary as its
attorney-in-fact to perform such acts and execute such documents as Beneficiary
in its sole discretion may consider to be appropriate in connection with taking
these measures, including endorsement of Trustor's name on any instruments.
Trustor agrees to deliver to Beneficiary all books and records pertaining to the
Property, including computer-readable memory and any computer hardware or
software necessary to access or process such memory, as may reasonably be
requested by Beneficiary in order to enable Beneficiary to exercise its rights
under this Section. All expenses, including receiver's fees and attorneys' fees,
costs and agent's compensation incurred pursuant to this Section shall be
payable by Trustor to Beneficiary upon demand and shall be secured by this Deed
of Trust. Anything in this Section 4.2 to the
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contrary notwithstanding, Beneficiary shall not be obligated to discharge or
perform the duties of a landlord to any Tenant or incur any liability as the
result of any exercise by Beneficiary of its rights under this Deed of Trust,
and Beneficiary shall be liable to account only for the rents, incomes, issues,
profits, and revenues actually received by Beneficiary.
4.2.C. Beneficiary shall have all of the remedies of a secured
party under the UCC, and any other applicable Utah law or the laws of the State
by which the Notes or any of the other Loan Documents are governed, including
without limitation the right and power to sell, or otherwise dispose of, the
Personal Property, or any part thereof. For that purpose Beneficiary may take
immediate and exclusive possession of the Personal Property, or any part
thereof, and with or without judicial process, enter upon any Land on which the
Personal Property, or any part thereof, may be situated and remove the same
therefrom without being deemed guilty of trespass and without liability for
damages thereby occasioned or, at Beneficiary's option, Trustor shall assemble
the Personal Property and make it available to Beneficiary at the place and at
the time designated in the demand. Beneficiary shall be entitled to hold,
maintain, preserve and prepare the Personal Property for sale. Beneficiary
without removal may render the Personal Property unusable and dispose of the
Personal Property on the Land. To the extent permitted by law, Trustor expressly
waives any notice of sale or other disposition of the Personal Property and any
other right or remedy of Beneficiary existing after default hereunder, and to
the extent any such notice is required and cannot be waived, Trustor agrees that
as it relates to this Section 4.2.C. only, if such notice is marked, postage
prepaid, to Trustor at the above address at least five (5) days before the time
of the sale or disposition, such notice shall be deemed commercially reasonable
and shall fully satisfy any requirement for giving of said notice.
4.2.D. Notwithstanding anything in Section 4.2.C. above which might
otherwise be construed to the contrary, Beneficiary shall have the option of
proceeding as to the Real Property and all or some of the Personal Property in
accordance with its rights and remedies with respect to the real property in
accordance with the unified sale procedures set forth in the UCC.
4.2.E. Beneficiary may bring an action in any court of competent
jurisdiction to foreclose this Deed of Trust or to obtain specific enforcement
of any of the covenants or agreements of this Deed of Trust. If this Deed of
Trust is foreclosed by judicial procedure, Beneficiary will be entitled to a
judgment which will provide that if the foreclosure sale proceeds are
insufficient to satisfy the judgment, execution may issue for any amount by
which the unpaid balance of the Secured Obligations exceeds the net sale
proceeds payable to Beneficiary.
4.2.F. Beneficiary may cause the Property to be sold by Trustee as
permitted by applicable law. Before any such trustee's sale, Beneficiary or
Trustee shall give such notice of default and election to sell as may then be
required by law. When all time periods then legally mandated have expired, and
after such notice of sale as may then be legally required has been given,
Trustee shall sell the Property, either as a whole or in separate parcels, and
in such order as Trustee may determine, at a public auction to be held at the
time and place specified in the notice of sale. Neither Trustee nor Beneficiary
shall have any obligation to make demand on Trustor before any trustee's sale.
At any trustee's sale, Trustee shall sell to the highest bidder at public
auction for cash in lawful money of the United States. Any person, including
Trustor, Trustee or Beneficiary, may purchase at the trustee's sale. Trustee
shall execute and deliver to the purchaser a deed or deeds conveying the
property being sold without any covenant or warranty whatsoever, express or
implied. The recitals in any such deed of any matters or facts, including any
facts bearing upon the regularity or validity of any trustee's sale, shall be
conclusive proof of their truthfulness. Any such deed shall be conclusive
against all persons as to the facts recited in it.
4.2.G. Beneficiary may apply to any court of competent jurisdiction
for the appointment of a receiver or receivers for the Property and of all the
earnings, revenues, rents, issues, profits and income therefrom, ex parte,
without notice, and without regard to the sufficiency or value of any security
for the Secured Obligations or the solvency of any party bound for its payment,
the expenses of which shall be secured by this Deed of Trust.
4.2.H. Beneficiary may take such steps to (1) protect and enforce
its rights whether by action, suit or proceeding in equity or at law for the
specific performance of any covenant, condition or agreement in the Notes, or in
this Deed of Trust, or (2) aid in the execution of any power herein granted, (3)
accomplish any foreclosure hereunder, or (4) enforce any other appropriate legal
or equitable remedy or otherwise as Beneficiary shall elect.
4.2.I. No remedy herein conferred upon or reserved to Trustee
or Beneficiary is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by this Deed of Trust to Trustee or
Beneficiary, or to which either of them may be otherwise entitled, may be
exercised from time to time and
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as often as may be deemed expedient by Trustee or Beneficiary, and either of
them may pursue inconsistent remedies. If there exists additional security for
the performance of the Secured Obligations, the holder(s) of the Notes, at
its(their) sole option and without limiting or affecting any rights or remedies
hereunder, may exercise any of the rights and remedies to which it may be
entitled hereunder either concurrently with whatever other rights it may have in
connection with such other security or in such order as it may determine.
4.3 APPLICATION OF SALE PROCEEDS. In the event of a foreclosure sale of
all or any portion of the Property, the proceeds of such sale shall be applied
as follows:
(a) first, to the payment of the costs and expenses of such sale,
including reasonable compensation to Trustee, its agents and counsel, and of any
judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Trustee or Beneficiary under this
Deed of Trust together with interest at the rate then payable under the Notes
plus five percent (5%) per annum or the maximum rate permitted by any applicable
law governing interest rate restrictions, if any maximum is applicable to the
subject obligation, whichever is lower, on all advances made by Beneficiary;
(b) second, to the payment of the whole amount then due, owing
or unpaid upon the Notes or any other Secured Obligations, for principal,
interest, prepayment premiums and late charges as stated in the Notes or any
other Secured Obligations, with interest on the unpaid principal and accrued
interest at the rate specified in the Notes or any other Secured Obligation;
(c) third, to the payment of any other sums required to be paid by
Trustor pursuant to any provisions of this Deed of Trust, the Notes, or any
Secured Obligation; and
(d) fourth, the surplus, if any, to whomsoever may be lawfully
entitled to receive the same.
4.4 TRUSTOR AS TENANT AT SUFFERANCE. In the event of any such
foreclosure sale, Trustor shall be deemed a tenant at sufferance and shall
forthwith deliver possession to the purchaser or purchasers at such sale or be
summarily dispossessed according to provisions of law applicable to tenants
holding over.
4.5 LEASES. Beneficiary, at its option, is authorized to foreclose
this Deed of Trust subject to the rights of any Tenants of the Property, and the
failure to make any such Tenants parties to any such foreclosure proceedings and
to foreclose their rights will not be, nor be asserted to be by Trustor, a
defense to any proceedings instituted by Beneficiary to collect the Secured
Obligations.
4.6 WAIVER OF RIGHT TO MARSHALING. Trustor and any person who presently
has or subsequently acquires an interest in the Property with actual or
constructive notice of this Deed of Trust, waives any and all rights to require
a marshaling of assets upon Beneficiary's exercise of its remedies provided by
this Deed of Trust. Beneficiary, in its sole discretion, shall be entitled to
determine the order in which the Property or portions thereof shall be subjected
to the remedies provided by this Deed of Trust.
ARTICLE 5
MISCELLANEOUS
5.1 SUCCESSORS AND ASSIGNS. Subject to Section 1.8 above, this Deed of
Trust shall inure to the benefit of and be binding upon Trustor, Trustee, and
Beneficiary and their respective legal representatives, successors, and assigns.
5.2 TERMINOLOGY. All personal pronouns used in this Deed of Trust
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa.
5.3 SEVERABILITY. If any provision of this Deed of Trust or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Deed of Trust and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
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<PAGE> 73
5.4 APPLICABLE LAW. This Deed of Trust shall be interpreted, construed
and enforced with respect to the Property according to the laws of the State of
Utah; provided that in no event shall this limit any remedies that may be
available to Beneficiary under the laws of the state by which the Notes or other
Loan Documents are governed.
5.5 NOTICES, DEMANDS AND REQUESTS. All notices, demands or requests
provided for or permitted to be given pursuant to this Deed of Trust shall be in
writing and shall be delivered in person or sent by registered or certified
United States mail, postage prepaid, return receipt requested, or by overnight
courier, to the addresses set out below or to such other addresses as are
specified by no less than ten (10) days' prior written notice delivered in
accordance herewith:
If to Beneficiary: Monumental Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5443
If to Trustor: United Foods, Inc.
Ten Pictsweet Drive
Bells, TN 38006-0119
Attention: Senior Vice President, Finance
If to Trustee: Chicago Title Insurance Company
388 Market Street, Suite 1300
San Francisco, CA 94111
All such notices, demands and requests shall be deemed effectively given and
delivered three (3) days after the postmark date of mailing, the day after
delivery to the overnight courier or, if delivered personally, when received.
Rejection or other refusal to accept or the inability to deliver because of a
changed address of which no notice was given in accordance with the time period
provided herein, shall be deemed to be receipt of the notice, demand, or request
sent.
5.6 CONSENTS AND APPROVALS. All approvals and consents hereunder
shall be in writing and no approval or consent shall be deemed to have been
given hereunder unless evidenced in a writing signed by the party from whom the
approval or consent is sought.
5.7 CERTAIN OBLIGATIONS UNSECURED. Notwithstanding anything to the
contrary set forth herein or any of the Loan Documents, this Deed of Trust shall
not secure the following obligations (the "Unsecured Obligations"): (a) any
obligations evidenced by or arising under the Environmental Indemnity Agreement;
and (b) any other obligations in this Deed of Trust or in any of the other Loan
Documents to the extent that such other obligations relate specifically to the
presence on the Property of Hazardous Materials and are the same or have the
same effect as any of the obligations evidenced by or arising under the
Environmental Indemnity Agreement. Nothing in this Section 5.7 shall, in itself,
impair or limit Beneficiary's right to obtain a judgment in accordance with
applicable law after foreclosure for any deficiency in recovery of all Secured
Obligations following foreclosure.
5.8 WAIVER. No delay or omission of Beneficiary or of any holder of
either of the Notes to exercise any right, power or remedy accruing upon any
default shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such default, or acquiescence therein; and every
right, power and remedy given by this Deed of Trust to Beneficiary may be
exercised from time to time and as often as may be deemed expedient by
Beneficiary. No consent or waiver, express or implied, by Beneficiary to or of
any breach or default by Trustor in the performance of the obligations hereunder
shall be deemed or construed to be a consent or waiver to or of any other breach
or default in the performance of the same or any other obligations of Trustor
hereunder. Failure on the part of Beneficiary to complain of any act or failure
to act or to declare an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Beneficiary of its rights hereunder
or impair any rights, powers or remedies consequent on any breach or default by
Trustor.
5.9 JURY TRIAL WAIVER. TRUSTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY HOLDER OR ANY OTHER
PERSON RELATING TO (I) THIS DEED OF TRUST, OR (II) ANY OF THE OTHER LOAN
DOCUMENTS. BORROWER HEREBY AGREES THAT THIS DEED OF TRUST CONSTITUTES A WRITTEN
CONSENT TO WAIVER OF TRIAL BY JURY, AND
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<PAGE> 74
BORROWER DOES HEREBY CONSTITUTE AND APPOINT HOLDER ITS TRUE AND LAWFUL ATTORNEY
IN FACT, WHICH APPOINTMENT IS COUPLED WITH AN INTEREST, AND BORROWER DOES HEREBY
AUTHORIZE AND EMPOWER HOLDER, IN THE NAME, PLACE AND STEAD OF BORROWER, TO FILE
THIS DEED OF TRUST WITH THE CLERK OR JUDGE OF ANY COURT OF COMPETENT
JURISDICTION AS WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY.
5.10 ASSIGNMENT. This Deed of Trust is assignable by Beneficiary,
and any assignment hereof by Beneficiary shall operate to vest in the assignee
all rights and powers herein conferred upon and granted to Beneficiary.
5.11 TIME OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement, and obligation of Trustor under this Deed of
Trust, the Notes and all other Loan Documents.
5.12 ATTORNEYS' FEES.
5.12.A. Trustor shall forthwith pay to Beneficiary the amount of
all attorneys' fees and costs incurred by Beneficiary under and pursuant to this
Deed of Trust, the Notes, the Loan Documents or any other agreement given to
Beneficiary as security for the Notes or in connection with any transaction
contemplated hereby or thereby, or with respect to the Property or any defense
or protection, interpretation or enforcement of Beneficiary's security interest
in the Property which Beneficiary believes is necessary or desirable (whether or
not Beneficiary files a lawsuit against Trustor and including, without
limitation, a judicial foreclosure action or a non-judicial foreclosure
proceeding) in the event Beneficiary retains counsel, or incurs costs in order
to: obtain legal advice; enforce, or seek to enforce, any of its rights;
commence, intervene in, respond to, or defend any action or proceeding; file or
prosecute a claim in any action or proceeding (including without limitation, any
probate claim, bankruptcy claim, third-party claim, or secured creditor claim);
protect, obtain possession of, lease, dispose of or otherwise enforce Trustor's
right, title and interest in the Property or any portion thereof; obtain the
appointment of a receiver; or represent Beneficiary's interests in any
litigation with respect to Trustor's affairs.
5.12.B. Trustor shall and does hereby agree that, if all or a
portion of the principal sum of either of the Notes has, prior to the maturity
date fixed in the obligation, become due or been declared due by reason of an
Event of Default, the entire amount then due under the terms of this Deed of
Trust and the Notes shall include all attorneys' fees and costs and expenses
which are actually incurred as stated above.
5.12.C. The meaning of the terms "legal fees" or "attorneys' fees"
or any other reference to the fees of attorneys or counsel, wherever used in
this Deed of Trust, shall be deemed to include, without limitation, all legal
fees relating to litigation or appeals at any and all levels of courts and
administrative tribunals (including any appeal or petition for review), and
allocated costs of in-house counsel.
5.13 COVENANTS RUN WITH THE LAND. All of the grants, covenants, terms,
provisions and conditions herein contained shall run with the Land and shall
apply to, bind and inure to the benefit of, the successors and assigns of
Trustor and Beneficiary.
5.14 SUBSTITUTION OF TRUSTEE. Beneficiary may from time to time,
without notice to Trustor or Trustee and with or without cause and with or
without the resignation of the Trustee, substitute a successor or successors to
the Trustee named herein or acting hereunder to execute this Deed of Trust. Upon
such appointment and without conveyance to the successor Trustee, the latter
shall be vested with all title, powers and duties conferred upon the Trustee
herein named or acting hereunder. Each such appointment and substitution shall
be made by written document executed by Beneficiary, containing reference to
this Deed of Trust and its place of record, which when duly filed for record in
the proper office, shall be conclusive proof of proper appointment of the
successor Trustee. The procedure herein provided for substitution of the Trustee
shall be conclusive of all other provisions for substitution, statutory or
otherwise.
5.15 RECONVEYANCE. When all the Secured Obligations have been paid in
full and no further commitment to extend financing continues, Trustee shall
reconvey the Property, or so much of it as is then held under this Deed of
Trust, without warranty to the person or persons legally entitled to it. In the
reconveyance, the grantee may be described as "the person or persons legally
entitled thereto," and the recitals of any matters or facts shall be conclusive
proof of their truthfulness. Neither Beneficiary nor Trustee shall have any duty
to determine the rights of persons claiming to be rightful grantees of any
reconveyance.
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5.16 PARTIAL RELEASE. No more than three (3) times during the term
of each of the Loans (as determined on an aggregate basis for all of the
property securing the Loans under and as provided in all of the Loan Documents
(referred to herein as the "Total Security")), upon written request of Trustor,
Beneficiary shall release a portion of the Land as identified by Trustor (the
"Release Parcel") from the lien of this Deed of Trust, subject to the
limitations and upon satisfaction by Trustor of the following terms and
conditions:
(a) There shall be no Event of Default under any of the Loan
Documents or uncured default under the Environmental Indemnity Agreement, or any
event which with the passage of time or the giving of notice or both would
constitute a default or Event of Default, at the time of such request or at the
time of such release.
(b) If Beneficiary retains outside counsel to review and/or
prepare any documents, instruments or agreements relating to the request for
release, Trustor shall pay to Beneficiary the reasonable fees and expenses of
such outside counsel.
(c) Trustor shall pay to Beneficiary an administrative service
charge of $1,500, payable at the time of submission of the release request.
(d) Beneficiary's satisfaction that the size, location, and
boundaries of the Release Parcel and any related improvements, fixtures or
appurtenances are not required for the proper, efficient and historical
operation of the remaining portion of the Property (the "Remaining Property").
(e) Beneficiary's receipt, at Trustor's sole cost, of such title
insurance coverage as it may deem reasonably necessary to ensure that this Deed
of Trust is a valid first encumbrance against the Remaining Property, subject
only to such title exceptions as were shown in the original policy insuring this
Deed of Trust, current taxes and assessments and other exceptions to title as
may have been approved in writing by Beneficiary.
(f) Beneficiary shall have determined, in its sole and absolute
discretion that (i) there has been no material decline in the valuation of the
Total Security since the initial appraisal obtained in accordance with the Loan
Documents immediately prior to recordation of this Deed of Trust (the "Initial
Appraisal"); (ii) the Loan to Value Ratio of the Total Security less the Release
Parcel is not greater than 65% of the total outstanding balance of the Notes
using the collateral values determined by the Initial Appraisal, or at the sole
discretion of Beneficiary, using collateral values determined by an updated
appraisal prepared by an appraiser approved by Beneficiary and delivered by
Trustor, at Trustor's cost, at the time of the requested release. If the Loan to
Value Ratio so determined exceeds 65%, then Trustor's release request shall not
be considered or granted unless and until a principal payment reducing the
balance of Note A to a level that would result in a 65% or lower Loan to Value
Ratio shall have been made to Beneficiary. In determining the value of the
Remaining Property and the related Loan to Value Ratio, Beneficiary shall be
entitled to consider, among other factors, the effect of the proposed partial
release on the value of the Remaining Property and the materiality of the effect
of the release considering all relevant circumstances. Any principal payments
made in connection with a partial release shall be subject to the prepayment
provisions of the Notes, and a prepayment premium shall be payable in connection
therewith.
(g) The Remaining Property and the Release Parcel, both separately
and together, shall satisfy all requirements under pertinent subdivision, land
use, environmental and zoning laws, ordinances, rules and regulations.
(h) The Remaining Property shall be in all respects independent
from the Release Parcel, including, without limitation, the requirement that no
loss of access to or through the Remaining Property shall occur as a result of
the partial release. Upon Beneficiary's request, the Release Parcel shall be
burdened by all such easements or covenants as may be determined by Beneficiary
as necessary to the continued operation of the Remaining Property.
(i) Updated surveys of the Remaining Property and the Release
Parcel shall have been obtained at Trustor's cost and expense and delivered to
Beneficiary.
(j) All documentation relating to the creation or release of the
Release Parcel shall be satisfactory to Beneficiary in all respects. All
consents of any party requiring notice of or consent to the release of the
Release Parcel shall have been obtained by Trustor.
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5.17 CONFLICT WITH COMMITMENT. In the event of any inconsistency or
conflict between this Deed of Trust and the two Agricultural Mortgage Loan
Application/Commitments between Trustor and AEGON USA Realty Advisors, Inc. both
executed by Trustor on October 2, 1998, the provisions of this Deed of Trust
shall prevail.
5.18 OFFSETS. No indebtedness secured by this Deed of Trust shall
be deemed to have been offset or to be offset or compensated by all or any part
of any claim, cause of action, counterclaim or cross-claim, whether liquidated
or unliquidated, which Trustor now or hereafter may have or may claim to have
against Beneficiary. In respect to the indebtedness now or hereafter secured
hereby, Trustor waives to the fullest extent permitted by law, the benefits of
any applicable law, regulation or procedure which substantially provides that,
where cross-demands for money have existed between persons at any point in time
when neither demand was barred by the applicable statute of limitations, and an
action is thereafter commenced by one such person, the other person may assert
in his answer the defense of payment in that the two demands are compensated so
far as they equal each other, notwithstanding that an independent action
asserting Trustor's claim would at the time of filing Trustor's answer be barred
by the applicable statute of limitations.
IN WITNESS WHEREOF, Trustor has executed and delivered this Deed of
Trust as of the date first above written.
TRUSTOR:
UNITED FOODS, INC.,
a Delaware corporation
By /s/ Carl W. Gruenewald, II
Carl W. Gruenewald II,
Senior Vice President, Finance
By /s/ Donald Dresser
Donald Dresser,
Senior Vice President, Administration
121
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF UNITED FOODS FOR THE NINE MONTHS ENDED NOVEMBER 30,
1998, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> FEB-28-1999
<PERIOD-END> NOV-30-1998
<CASH> 861
<SECURITIES> 0
<RECEIVABLES> 21,121
<ALLOWANCES> 0
<INVENTORY> 43,208
<CURRENT-ASSETS> 68,480
<PP&E> 132,495
<DEPRECIATION> 79,309
<TOTAL-ASSETS> 123,722
<CURRENT-LIABILITIES> 32,121
<BONDS> 40,712
0
0
<COMMON> 6,810
<OTHER-SE> 39,369
<TOTAL-LIABILITY-AND-EQUITY> 123,722
<SALES> 151,347
<TOTAL-REVENUES> 151,347
<CGS> 123,173
<TOTAL-COSTS> 123,173
<OTHER-EXPENSES> 24,624
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,855
<INCOME-PRETAX> 700
<INCOME-TAX> 269
<INCOME-CONTINUING> 431
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 431
<EPS-PRIMARY> .06
<EPS-DILUTED> .06
</TABLE>
