Intercreditor and Subordination Agreement among KeyBank National Association, Hudson Bay Fund LP, in its capacity as agent for the holders of the 8% Senior Secured Convertible Debentures and Pioneer Hi-Bred International, Inc., dated September 22, 2015
EXHIBIT 10.7
INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this "Agreement") dated as of September 22, 2015, is by and between (i) KeyBank National Association (the "Working Capital Lender" as hereinafter further defined), (ii) Hudson Bay Fund LP, in its capacity as agent for the holders of the Term Loan Debt defined below (in such capacity, the "Term Loan Agent" as hereinafter further defined) and (iii) Pioneer Hi-Bred International, Inc., an Iowa corporation (the "Pioneer Lender" as hereinafter further defined).
R E C I T A L S:
A. Working Capital Lender has entered into one or more financing arrangements with S&W Seed Company, a Nevada corporation (the "Borrower"), pursuant to which Working Capital Lender has made and may, upon certain terms and conditions, continue to make loans and provide other financial accommodations to the Borrower secured by a security interest in substantially all of the personal property of the Borrower and certain of its subsidiaries.
B. Term Loan Lenders (as hereinafter defined) have made loans to the Borrower secured by a security interest in substantially all of the assets and properties of the Borrower and certain of its subsidiaries.
C. In connection with the sale of the Pioneer Assets (as defined below) by the Pioneer Lender to the Borrower, the Borrower has issued a promissory note to the Pioneer Lender, which note is secured by the Pioneer Assets (as defined below).
D. Working Capital Lender, Term Loan Agent and the Pioneer Lender desire to enter into this Agreement to (i) confirm the relative priorities of the security interests of Working Capital Lender, Term Loan Agent (on behalf of itself and the Term Loan Lenders) and the Pioneer Lender in the assets and properties of Borrower and certain other Obligors (as hereinafter defined), and (ii) provide for the orderly sharing among them, in accordance with such priorities, of the proceeds of such assets and properties upon any foreclosure thereon or other disposition thereof.
In consideration of the mutual benefits accruing to Working Capital Lender, Term Loan Agent (on behalf of itself and the Term Loan Lenders) and the Pioneer Lender hereunder and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. DEFINITIONS
As used above and in this Agreement, the following terms shall have the meanings ascribed to them below:
"Accounts" means all now present and future "accounts" (as defined in Article 9 of the UCC).
"Agreements" shall mean, collectively, the Working Capital Loan Agreements, the Term Loan Agreements and the Pioneer Loan Agreements.
"Borrower" shall mean S&W Seed Company, a Nevada corporation, and its successors and assigns, including, without limitation, any receiver, trustee or debtor-in-possession on behalf of such person or on behalf of any successor or assign.
"Collateral" shall mean, collectively, the Working Capital Collateral, the Term Loan Collateral and the Pioneer Collateral.
"Equipment" means, as to each Grantor, all of such Grantor's now owned and hereafter acquired equipment, as defined in Article 9 of the UCC.
"Event of Default" means an "Event of Default" or similar term, as such term is defined in any Working Capital Loan Agreement, any Term Loan Agreement or any Pioneer Loan Agreement, so long as any such Agreement is in effect.
"Insolvency Proceeding" shall mean, as to any Person, any of the following: (i) any case or proceeding with respect to such Person under Title 11 of the United States Code, 11 U.S.C. 101 et seq. (the "U.S. Bankruptcy Code") or any other Federal or State or foreign bankruptcy, insolvency, reorganization or other law affecting creditors' rights or any other or similar proceedings seeking any stay, reorganization, arrangement, composition or readjustment of the obligations and indebtedness of such Person or (ii) any proceeding seeking the appointment of any trustee, receiver, liquidator, custodian or other insolvency official with similar powers with respect to such Person or any of its assets or (iii) any proceeding for liquidation, dissolution or other winding up of the business of such Person or (iv) any assignment for the benefit of creditors or any marshalling of assets of such Person.
"Intellectual Property" means, all of the following in any jurisdiction throughout the world: (a) patents, patent applications and inventions, including all renewals, extensions, combinations, divisions, or reissues thereof ("Patents"); (b) trademarks, service marks, trade names, trade dress, logos, internet domain names and other business identifiers, together with the goodwill symbolized by any of the foregoing, and all applications, registrations, renewals and extensions thereof ("Trademarks"); (c) copyrights and all works of authorship including all registrations, applications, renewals, extensions and reversions thereof ("Copyrights"); (d) all computer software, source code, executable code, data, databases and documentation thereof; (e) all trade secret rights in information, including trade secret rights in any formula, pattern, compilation, program, device, method, technique, or process, that (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; (f) all other intellectual property or proprietary rights in any discoveries, concepts, ideas, research and development, know-how, formulae, patterns, inventions, compilations, compositions, manufacturing and production processes and techniques, program, device, method, technique, technical data, procedures, designs, recordings, graphs, drawings, reports, analyses, specifications, databases, and other proprietary or confidential information, including customer lists, supplier lists, pricing and cost information, business and marketing
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plans and proposals and advertising and promotional materials; and (g) all rights to sue at law or in equity for any past, present or future infringement or other impairment or violation thereof and all products and Proceeds of the foregoing.
"Inventory" means as to each Grantor, all of such Grantor's now owned and hereafter existing or acquired inventory, as defined in Article 9 of the UCC.
"Junior Priority Lenders" means
(a) with respect to the Working Capital Lender Priority Collateral, (i) prior to the payment in full of the Working Capital Debt, the Term Loan Lenders and the Pioneer Lender and (ii) after the payment in full of the Working Capital Debt, the Pioneer Lender;
(b) with respect to the Term Loan Lender Priority Collateral, (i) prior to the payment in full of the Term Loan Debt, the Working Capital Lender and the Pioneer Lender and (ii) after the payment in full of the Term Loan Debt, the Working Capital Lender; and
(c) with respect to the Pioneer Lender Priority Collateral, (i) prior to the payment in full of the Pioneer Lender Debt, the Term Loan Lenders and the Working Capital Lender and (ii) after the payment in full of the Pioneer Lender Debt, the Working Capital Lender.
"Junior Priority Loan Documents" means
(a) with respect to the Working Capital Lender Priority Collateral, (i) prior to the payment in full of the Working Capital Debt, the Term Loan Agreements and the Pioneer Loan Agreements and (ii) after the payment in full of the Working Capital Debt, the Pioneer Loan Agreements;
(b) with respect to the Term Loan Lender Priority Collateral, (i) prior to the payment in full of the Term Loan Debt, the Working Capital Loan Agreements and the Pioneer Loan Agreements and (ii) after the payment in full of the Term Loan Debt, the Working Capital Loan Agreements; and
(c) with respect to the Pioneer Lender Priority Collateral, (i) prior to the payment in full of the Pioneer Lender Debt, the Term Loan Agreements and the Working Capital Loan Agreements and (ii) after the payment in full of the Pioneer Lender Debt, the Working Capital Loan Agreements.
"Junior Priority Obligations" means
(a) with respect to the Working Capital Lender Priority Collateral, (i) prior to the payment in full of the Working Capital Debt, the Term Loan Debt and the Pioneer Lender Debt and (ii) after the payment in full of the Working Capital Debt, the Pioneer Lender Debt,
(b) with respect to the Term Loan Lender Priority Collateral, (i) prior to the payment in full the Term Loan Debt, the Working Capital Debt and the Pioneer Lender Debt and (ii) after the payment in full of the Term Loan Debt, the Working Capital Debt,
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(c) with respect to the Pioneer Lender Priority Collateral, (i) prior to the payment in full of the Pioneer Lender Debt, the Term Loan Debt and the Working Capital Debt and (ii) after the payment in full of the Pioneer Lender Debt, the Working Capital Debt.
"Lenders" means, collectively, Working Capital Lender, Term Loan Lenders and the Pioneer Lender, and their respective successors and assigns, being sometimes referred to herein individually as a "Lender".
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance (including, but not limited to, easements, rights of way and the like), lien (statutory or other), security agreement or transfer intended as security, including without limitation, any conditional sale or other title retention agreement, the interest of a lessor under a capital lease or any financing lease having substantially the same economic effect as any of the foregoing.
"Lien Enforcement Action" means (a) any action by any Lender to foreclose, execute, levy or collect on the Lien of such Person in any of the Collateral, (b) any action by any Lender to take possession of, sell, lease, license or otherwise dispose, or otherwise realize (judicially or non-judicially) upon or exercise or enforce any remedial rights with respect to any of the Collateral (including, without limitation, by setoff or notification of account debtors), (c) to receive a transfer of Collateral in satisfaction of indebtedness or obligations secured thereby, and/or (d) the commencement by any Lender of any legal proceedings against or with respect to all or any of the Collateral to facilitate the actions described in (a) - (c) above.
"Maximum Debt Amount" means
(a) with respect to the principal amount of the Working Capital Debt the sum of $28,000,000 less the principal amount of any DIP Financing incurred under Section 4.5 hereof, in each case reduced from time to time by the amount of any repayments of loans to the extent effected with a permanent reduction of the commitments thereunder (but excluding reductions from refinancings), provided that after such time as any Lender (or agent thereof) has taken any enforcement action against the Borrower, any Obligor or the Collateral or an Insolvency Proceeding has been commenced with respect to the Borrower or any Obligor, such amount shall only be reduced by payments in cash actually received by Working Capital Lender which it is permitted to retain under this Agreement;
(b) with respect to the principal amount of the Term Loan Debt, $35,000,000 reduced from time to time by the amount of any repayments of loans (but excluding reductions from refinancings), provided that after such time as any Lender (or agent thereof) have taken any enforcement action against the Borrower, any Obligor or the Collateral or an Insolvency Proceeding has been commenced with respect to the Borrower or any Obligor, such amount shall only be reduced by payments in cash actually received by Term Loan Lenders which they are permitted to retain under this Agreement; and
(c) with respect to the principal amount of the Pioneer Lender Debt, $15,000,000 reduced from time to time by the amount of any repayments of loans (but excluding reductions from refinancings), provided that after such time as any Lender (or agent thereof) has taken any
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enforcement action against the Borrower, any Obligor or the Collateral or an Insolvency Proceeding has been commenced with respect to the Borrower or any Obligor, such amount shall only be reduced by payments in cash actually received by Pioneer Lender which it is permitted to retain under this Agreement.
"Obligors" means, individually and collectively, any person (other than the Borrower) liable on or in respect of the Term Loan Debt, the Pioneer Lender Debt or the Working Capital Debt, and each of their successors and assigns, including, without limitation, a receiver, trustee or debtor-in-possession on behalf of such person or on behalf of any such successor or assign.
"Obligations" means, collectively and individually, the Pioneer Lender Debt, the Term Loan Debt and the Working Capital Debt.
"paid in full" and "payment in full" means, (a) for purposes of the Working Capital Debt, payment in full in cash of the Working Capital Debt and termination of the Working Capital Lender's commitments to extend loans and extensions of credit under the Working Capital Loan Agreements, (b) for purposes of the Term Loan Debt, payment in full in cash of the Term Loan Debt and/or conversion of all Obligations in respect of the Term Loan Debt to common equity of the Borrower in accordance with the terms of the Term Loan Agreements and (c) for purposes of the Pioneer Lender Debt, payment in full in cash of the Pioneer Lender Debt.
"Person" or "person" means any individual, sole proprietorship, partnership, corporation (including without limitation, any corporation which elects subchapter S status under the Internal Revenue Code of 1986, as amended), limited liability company, limited liability partnership, business trust, unincorporated association, joint stock company, trust, joint venture, or other entity or any government or any agency or instrumentality or political subdivision thereof.
"Pioneer Assets" means the assets described on Annex I hereto.
"Pioneer Collateral" means all Pioneer Assets on which the Pioneer Lender has a Lien under the Pioneer Loan Agreements.
"Pioneer Intellectual Property Collateral" means the Intellectual Property comprising the Pioneer Assets, as set forth on Annex II hereto, together with all products and Proceeds of the foregoing.
"Pioneer Lender Debt" means all obligations, liabilities and indebtedness of every kind, nature and description owing by Borrower or any Obligor to the Pioneer Lender evidenced by or arising under the Pioneer Loan Agreements, whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, including principal, interest, charges, fees, costs, indemnities and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of the Pioneer Loan Agreements or after the commencement of any Insolvency Proceeding with respect to Borrower or any Obligor (and including, without limitation, the payment of interest which would accrue and become due but for the commencement of such Insolvency Proceeding, whether or not such interest is allowed or allowable in whole or in part in any such Insolvency Proceeding), provided that, for purposes of this Agreement, the term "Pioneer Lender Debt" shall not include the
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principal amount of loans and other credit accommodations in excess of the Maximum Debt Amount with respect to the Pioneer Lender Debt. The foregoing limitation shall not apply to, and the term "Pioneer Lender Debt" shall include, obligations consisting of interest, fees, costs, indemnities or expenses.
"Pioneer Lender" means Pioneer Hi-Bred International, Inc., an Iowa corporation and its successors and assigns (including any other lender or group of lenders that at any time succeeds to or refinances, replaces or substitutes for all or any portion of the Pioneer Lender Debt at any time and from time to time).
"Pioneer Lender Priority Collateral" means all Pioneer PP&E Assets constituting Collateral; provided, that "Pioneer Lender Priority Collateral" shall not include any Pioneer Intellectual Property Collateral.
"Pioneer Loan Agreements" means the Promissory Note, dated as of December 31, 2014, between Borrower and the Pioneer Lender, and all security agreements, guarantees, pledge agreements and other agreements, documents and instruments at any time executed and/or delivered by Borrower or Obligor or any other person with, to or in favor of the Pioneer Lender in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed or restated in accordance with the terms of this Agreement; provided, however, that Pioneer Loan Agreements shall not include that certain Asset Purchase and Sale Agreement by and among Pioneer and Borrower, dated as of December 19, 2014 and the other documents set forth on Annex III hereto.
"Pioneer PP&E Assets" means the assets described in Annex IV hereto, which includes all Equipment and Real Estate Assets (and the buildings, fixtures, improvements and appurtenances thereto located on such Real Estate Assets) constituting Pioneer Assets, and all Proceeds, products, books and records in respect of or arising from the foregoing.
"Proceeds" means all "proceeds" (as defined in Article 9 of the UCC), including any payment or property received on account of any claim secured by Collateral in any Insolvency or Liquidation Proceeding.
"Real Estate Asset" means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Grantor in any real property.
"Release Event" means (a) prior to the occurrence of an Insolvency Proceeding by or against any Borrower or any Obligor, upon the occurrence and during the continuance of an Event of Default under the Senior Priority Loan Documents, the taking of any Lien Enforcement Action, provided that any Release Event occurring prior to an Insolvency Proceeding by or against any Borrower or any Obligor shall cease to constitute a Release Event under this clause (a) as of the occurrence of such Insolvency Proceeding if the Working Capital Lender continues making loans or other financial accommodations (whether pursuant to the Working Capital Loan Agreements or otherwise) or consents to the use of cash collateral after the occurrence of such Insolvency Proceeding or (b) after the occurrence of an Insolvency Proceeding by or against any Borrower or any Obligor, the occurrence of any of the following: (i) the entry of an order of a Bankruptcy Court pursuant to Section 363 of the U.S. Bankruptcy Code authorizing the sale of
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all or substantially all of the Borrower's and Obligors' assets or (ii) the taking of any Lien Enforcement Action described in clauses (a) and (b) of the definition of such term by any Lender or the entry of an order of a Bankruptcy Court pursuant to Section 362 of the U.S. Bankruptcy Code vacating the automatic stay and authorizing any Lender to take any Lien Enforcement Action.
"Reorganization Securities" means any debt securities of any Obligor or any other Person that are distributed to any Lender in respect of such Lender's Obligations pursuant to a confirmed plan of reorganization or adjustment or a negotiated reorganization and that are subordinated in right of payment and lien priority to the other Obligations to the same extent that such debt or liens securing such debt are subordinated under this Agreement.
"Senior Priority Collateral" means, (a) with respect to the Working Capital Lender, the Working Capital Lender Priority Collateral, (b) with respect to the Term Loan Lenders, the Term Loan Lender Priority Collateral and, after the payment in full of the Pioneer Lender Debt, the Pioneer Lender Priority Collateral, and (c) with respect to the Pioneer Lender, the Pioneer Lender Priority Collateral and, after the payment in full of the Term Loan Debt, the Term Loan Lender Priority Collateral.
"Senior Priority Lenders" means
(a) with respect to the Working Capital Lender Priority Collateral, (i) prior to the payment in full of the Working Capital Debt, the Working Capital Lender and (ii) after the payment in full of the Working Capital Debt, the Term Loan Lenders;
(b) with respect to the Term Loan Lender Priority Collateral, (i) prior to the payment in full of the Term Loan Debt, the Term Loan Lenders and (ii) after the payment in full of the Term Loan Debt, the Pioneer Lender; and
(c) with respect to the Pioneer Lender Priority Collateral, (i) prior to the payment in full of the Pioneer Lender Debt, the Pioneer Lender and (ii) after the payment in full of the Pioneer Lender Debt, the Term Loan Lenders.
"Senior Priority Loan Documents" means
(a) with respect to the Working Capital Lender Priority Collateral, (i) prior to the payment in full of the Working Capital Debt, the Working Capital Loan Agreements and (ii) after the payment in full of the Working Capital Debt, the Term Loan Agreements;
(b) with respect to the Term Loan Lender Priority Collateral, (i) prior to the payment in full of the Term Loan Debt, the Term Loan Agreements and (ii) after the payment in full of the Term Loan Debt, the Pioneer Loan Agreements; and
(c) with respect to the Pioneer Lender Priority Collateral, (i) prior to the payment in full of the Pioneer Lender Debt, the Pioneer Loan Agreements and (ii) after the payment in full of the Pioneer Lender Debt, the Term Loan Agreements.
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"Senior Priority Obligations" means
(a) with respect to the Working Capital Lender Priority Collateral, (i) prior to the payment in full of the Working Capital Debt, the Working Capital Debt and (ii) after the payment in full of the Working Capital Debt, the Term Loan Debt;
(b) with respect to the Term Loan Lender Priority Collateral, (i) prior to the payment in full of the Term Loan Debt, the Term Loan Debt and (ii) after the payment in full of the Term Loan Debt, the Pioneer Lender Debt; and
(c) with respect to the Pioneer Lender Priority Collateral, (i) prior to the payment in full of the Pioneer Lender Debt, the Pioneer Lender Debt and (ii) after the payment in full of the Pioneer Lender Debt, the Term Loan Debt.
"Term Loan Agent" means Hudson Bay Fund LP, and its successors and assigns in its capacity as agent for the Term Loan Lenders (including any other lender or group of lenders that at any time succeeds to or refinances, replaces or substitutes for all or any portion of the Term Loan Debt at any time and from time to time).
"Term Loan Agreements" means the Securities Purchase Agreement, dated as of December 30, 2014, between Borrower and Term Loan Lenders, and all Debentures (as defined therein), Securities (as defined therein), security agreements, guarantees, pledge agreements, other and other agreements, documents and instruments at any time executed and/or delivered by Borrower or Obligor or any other person with, to or in favor of Term Loan Agent and/or Term Loan Lenders in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed or restated in accordance with the terms of this Agreement.
"Term Loan Collateral" means all assets and properties of any kind whatsoever, real or personal, tangible or intangible and wherever located of Borrower or any Obligor, on which Term Loan Agent and/or Term Loan Lenders have a Lien under the Term Loan Agreements.
"Term Loan Debt" means all obligations, liabilities and indebtedness of every kind, nature and description owing by Borrower or any Obligor to Term Loan Agent and Term Loan Lenders evidenced by or arising under the Term Loan Agreements, whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, including principal, interest, charges, fees, costs, indemnities and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of the Term Loan Agreements or after the commencement of any Insolvency Proceeding with respect to Borrower or any Obligor (and including, without limitation, the payment of interest which would accrue and become due but for the commencement of such Insolvency Proceeding, whether or not such interest is allowed or allowable in whole or in part in any such Insolvency Proceeding), provided that, for purposes of this Agreement, the term "Term Loan Debt" shall not include the principal amount of loans and other credit accommodations in excess of the Maximum Debt Amount with respect to the Term Loan Debt. The foregoing limitation shall not apply to, and the term "Term Loan Debt" shall include, obligations consisting of interest, fees, costs, indemnities or expenses.
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"Term Loan Lender" means, individually and collectively, Term Loan Agent and each Purchaser (as defined in the Term Loan Agreements), and their respective successors and assigns (including any other lender or group of lenders that at any time succeeds to or refinances, replaces or substitutes for all or any portion of the Term Loan Debt at any time and from time to time).
"Term Loan Lender Priority Collateral" means the Pioneer Intellectual Property Collateral, and all Proceeds, products, books and records in respect of or arising from the foregoing.
"UCC" means the Uniform Commercial Code (or any similar equivalent legislation) as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Lenders' security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other that the State of New York, the term "UCC" shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
"Working Capital Credit Agreement" means the Credit and Security Agreement, dated as of September [__], 2015, between Working Capital Lender and Borrower, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed or restated in accordance with the terms of this Agreement.
"Working Capital Collateral" means all assets and properties of any kind whatsoever, real or personal, tangible or intangible and wherever located of Borrower or any Obligor, on which Working Capital Lender has a Lien under the Working Capital Loan Agreements.
"Working Capital Debt" means any and all obligations, liabilities and indebtedness of every kind, nature and description owing by Borrower or any Obligor to Working Capital Lender evidenced by or arising under the Working Capital Loan Agreements, whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, including principal, interest, charges, fees, costs, indemnities and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of the Working Capital Credit Agreement or after the commencement of any Insolvency Proceeding with respect to Borrower or any Obligor (and including, without limitation, the payment of interest which would accrue and become due but for the commencement of such Insolvency Proceeding whether or not such interest is allowed or allowable in whole or in part in any such Insolvency Proceeding), provided that, for purposes of this Agreement, the term "Working Capital Debt" shall not include the principal amount of loans and other credit accommodations in excess of the Maximum Debt Amount with respect to Working Capital Debt, except to the extent provided in Section 3.3 hereof. The foregoing limitation shall not apply to, and the term "Working Capital Debt" shall include, obligations consisting of interest, fees, costs, indemnities or expenses, in each case whether or not charged by Working Capital Lender to the loan account of the Borrower or any other Obligor maintained by Working Capital Lender pursuant to the Working Capital Loan Agreements.
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"Working Capital Lender" means KeyBank National Association, and its successors and assigns (including any other lender or group of lenders that at any time succeeds to or refinances, replaces or substitutes for all or any portion of the Working Capital Debt at any time and from time to time).
"Working Capital Lender Priority Collateral" means the Working Capital Collateral other than the Term Loan Lender Priority Collateral and the Pioneer Lender Priority Collateral.
"Working Capital Loan Agreements" means the Working Capital Credit Agreement and all guarantees, security agreements, pledge agreements, other agreements, documents and instruments at any time executed and/or delivered by Borrower or any Obligor or any other person with, to or in favor of Working Capital Lender in connection therewith or related thereto, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed or restated in accordance with the terms of this Agreement.
All terms defined in the Uniform Commercial Code as in effect in the State of New York, unless otherwise defined herein shall have the meanings set forth therein. All references to any term in the plural shall include the singular and all references to any term in the singular shall include the plural.
2. SUBORDINATION; SECURITY INTERESTS; PRIORITIES; REMEDIES
2.1 Except as otherwise expressly set forth herein (including, without limitation, with respect to proceeds of any Term Loan Lender Priority Collateral and any Pioneer Lender Priority Collateral), all payments on account of the Term Loan Debt and the Pioneer Lender Debt shall be subject, subordinate and junior, in right of payment and exercise of remedies to the prior payment in full of the Working Capital Debt. Notwithstanding the terms of the Term Loan Debt or the Pioneer Lender Debt, until the payment in full of the Working Capital Debt, neither the Borrower nor any other Obligor shall make, directly or indirectly, and no Term Loan Lender or Pioneer Lender shall accept, any payments on the Term Loan Debt or the Pioneer Debt, other than (i) regularly scheduled cash payments of interest on the Term Loan Debt or the Pioneer Debt at the non-default rate set forth in the Term Loan Agreements and the Pioneer Agreements, (ii) regularly scheduled cash payments of principal of the Term Loan Debt and the Pioneer Debt (which shall not include mandatory or voluntary prepayments, redemptions or repurchases), (iii) reimbursement of fees, expenses and other indemnities pursuant to the Term Loan Agreements and the Pioneer Agreements, (iv) receipt of Reorganization Securities, (v) any conversion of any Term Loan Debt into common equity of the Borrower in accordance with Section 4 of the Debentures (as defined in the Term Loan Agreements), (vi) payments made in the form of common equity of the Borrower in accordance with Section 2 of the Debentures (as defined in the Term Loan Agreements), (vii) payment of any amounts due under the Term Loan Agreements as a result of the Borrower's inability to convert any Term Loan Debt into equity of the Borrower, in accordance with Sections 2(f) and 2(g) of the Warrants (as defined in the Term Loan Agreements) and Section 4(c)(vi) and 4(e) of the Debentures (as defined in the Term Loan Agreements), (viii) payments in respect of the Term Loan Debt from proceeds of the Term Loan Lender Priority Collateral, and (ix) payments or other distributions received by a Senior Priority Lender (including the Term Loan Lenders and/or the Pioneer Lender) from the proceeds or in respect of any Senior Priority Collateral, provided that in the case of clauses (i), (ii), (iii) and
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(vii) above, no Event of Default under the Working Capital Loan Agreements shall have occurred and be continuing or would occur as a result of any such payment, provided, that notice thereof has been delivered by the Working Capital Lender in accordance with Section 2.15 hereof as of the date that such payment is made. If the Term Loan Lender or the Pioneer Lender receives a payment it should not have received pursuant to this Section, such amount shall forthwith be paid over, in the funds and currency received, to the Working Capital Lender. For the avoidance of doubt, nothing contained herein shall be deemed to prohibit the exercise by any Term Loan Lenders of their rights to exercise their Warrants (as defined in the Term Loan Agreements) into the common equity of the Borrower, in each case in accordance with the term set forth therein.
2.2 Each of the Working Capital Lender and the Pioneer Lender hereby acknowledges that Term Loan Lenders have been granted Liens upon Term Loan Collateral pursuant to the Term Loan Agreements to secure the Term Loan Debt. Each of the Term Loan Agent and the Pioneer Lender hereby acknowledges that Working Capital Lender has been granted Liens upon the Working Capital Collateral pursuant to the Working Capital Loan Agreements to secure the Working Capital Debt. Each of the Term Loan Agent and the Working Capital Agent hereby acknowledges that the Pioneer Lender has been granted Liens upon the Pioneer Collateral pursuant to the Pioneer Loan Agreements to secure the Pioneer Lender Debt.
2.3 Notwithstanding the order or time of attachment, or the order, time or manner of perfection, or the order or time of filing or recordation of any document or instrument, or other method of perfecting a Lien in favor of each Lender in any Collateral, and notwithstanding any conflicting terms or conditions which may be contained in any of the Agreements:
(a) the Liens of Working Capital Lender on the Working Capital Lender Priority Collateral to the extent that such Liens secure the Working Capital Debt have and shall have priority over (i) the Liens of Term Loan Lenders on the Working Capital Lender Priority Collateral and such Liens in favor of Term Loan Lenders on the Working Capital Lender Priority Collateral are and shall be junior and subordinate to the Liens of Working Capital Lender to the extent that such Liens secure the Working Capital Debt, and (ii) the Liens of Pioneer Lender on the Working Capital Lender Priority Collateral and such Liens in favor of Pioneer Lender on the Working Capital Lender Priority Collateral are and shall be junior and subordinate to the Liens of Working Capital Lender to the extent that such Liens secure the Working Capital Debt;
(b) the Liens of Term Loan Lenders on the Working Capital Lender Priority Collateral to the extent that such Liens secure the Term Loan Debt have and shall have priority over the Liens of the Pioneer Lender on the Working Capital Lender Priority Collateral and such Liens in favor of Pioneer Lender on such Working Capital Lender Priority Collateral are and shall be junior and subordinate to the Liens of Term Loan Lender to the extent that such Liens secure the Term Loan Debt;
(c) the Liens of the Term Loan Lenders on the Term Loan Lender Priority Collateral to the extent that such Liens secure the Term Loan Debt have and shall have priority over (i) the Liens of Working Capital Lender on the Term Loan Lender Priority Collateral and such Liens in favor of Working Capital Lenders on the Term Loan Lender Priority Collateral are
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and shall be junior and subordinate to the Liens of Term Loan Lenders to the extent that such Liens secure the Term Loan Debt, and (ii) the Liens of the Pioneer Lender on the Term Loan Lender Priority Collateral and such Liens in favor of the Pioneer Lender on the Term Loan Lender Priority Collateral are and shall be junior and subordinate to the Liens of Term Loan Lenders to the extent that such Liens secure the Term Loan Debt;
(d) the Liens of the Pioneer Lender on the Term Loan Lender Priority Collateral to the extent that such Liens secure the Pioneer Lender Debt have and shall have priority over the Liens of Working Capital Lender on the Term Loan Lender Priority Collateral and such Liens in favor of Working Capital Lender on the Term Loan Lender Priority Collateral are and shall be junior and subordinate to the Liens of Pioneer Lenders to the extent that such Liens secure the Pioneer Lender Debt;
(e) the Liens of the Pioneer Lender on the Pioneer Lender Priority Collateral to the extent that such Liens secure the Pioneer Lender Debt have and shall have priority over (i) the Liens of Working Capital Lender on the Pioneer Lender Priority Collateral and such Liens in favor of Working Capital Lender on the Pioneer Lender Priority Collateral are and shall be junior and subordinate to the Liens of Pioneer Lender to the extent that such Liens secure the Pioneer Lender Debt, and (ii) the Liens of Term Loan Lenders on the Pioneer Lender Priority Collateral and such Liens in favor of Term Loan Lenders on the Pioneer Lender Priority Collateral are and shall be junior and subordinate to the Liens of Pioneer Lender to the extent that such Liens secure the Pioneer Lender Debt; and
(f) the Liens of the Term Loan Lenders on the Pioneer Lender Priority Collateral to the extent that such Liens secure the Term Loan Debt have and shall have priority over the Liens of Working Capital Lender on the Pioneer Lender Priority Collateral and such Liens in favor of Working Capital Lender on the Pioneer Lender Priority Collateral are and shall be junior and subordinate to the Liens of Term Loan Lenders to the extent that such Liens secure the Term Loan Debt.
2.4 The subordination of the Term Loan Debt and the Pioneer Lender Debt provided in Section 2.1 and the priorities of the Liens provided in Section 2.3 shall not be altered or otherwise affected by (i) any amendment, modification, supplement, extension, renewal, restatement, replacement or refinancing of the Working Capital Debt, the Term Loan Debt or the Pioneer Lender Debt, (ii) any action or inaction which any of the Lenders may take or fail to take in respect of the Collateral or (iii) the Pioneer Lender Debt, the Term Loan Debt or the Working Capital Debt, or the Liens securing any such debt, being held to be unperfected, deficient, invalid, void, voidable, voided, unenforceable, subordinated, reduced, discharges or are set aside by a court of competent jurisdiction, including pursuant to an Insolvency Proceeding. Each Lender agrees not to subordinate its Lien in any Collateral to the Lien, indebtedness or claim of any other creditor of Borrower or any Obligor without the prior written consent of other Lenders party hereto (other than in connection with a DIP Financing permitted by Section 4.5 hereof).
2.5 Notwithstanding Section 2.1, but subject to Section 2.3 and Section 2.10, all proceeds of dispositions of Senior Priority Collateral (including from any Lien Enforcement Action) and insurance proceeds in connection with a casualty event with respect to Senior Priority Collateral shall be applied first, to the Senior Priority Obligations up to the Maximum Debt Amount with respect thereto (with a corresponding permanent reduction of any revolving commitments with respect thereto), and second to any Junior Priority Obligations up to the Maximum
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Debt Amount with respect thereto; provided, that to the extent consent is required under any Junior Loan Documents, the applicable Junior Priority Lenders shall have consented to any such disposition (other than in connection with a Lien Enforcement Action). All proceeds of any Senior Priority Collateral received by a Senior Priority Lender after the Senior Priority Obligations have been paid in full shall be forthwith paid over, in the funds and currency received, to the Junior Priority Lender for application to the Junior Priority Obligations (unless otherwise required by law). For purposes of this Section 2.5, payments made by the Borrower to Term Loan Lenders in respect of the Term Loan Debt or to the Pioneer Lender in respect of the Pioneer Lender Debt with proceeds of loans by Working Capital Lender to Borrower shall not be construed to constitute proceeds of Collateral.
2.6 Each of the Lenders shall be solely responsible for perfecting and maintaining the perfection of their Liens in and to each item constituting the Collateral in which such Persons have been granted a Lien. Except as set forth in Section 2.1, the foregoing provisions of this Agreement are intended solely to govern the respective Lien priorities as among the Lenders and shall not impose on any Lender any obligations in respect of the disposition of proceeds of any Collateral which would conflict with prior perfected claims therein in favor of any other person or any order or decree of any court or governmental authority or any applicable law. Each Junior Priority Lender agrees that it will not contest (or join any other person contesting) the validity, perfection, priority or enforceability of the Liens or Obligations of another Lender on any Collateral, provided that nothing in this sentence shall be deemed to impair the rights of the Lenders to enforce this Agreement.
2.7 In the event that a Lender shall, in the exercise of its rights under its Agreements, receive possession or control of any books and records of any Borrower or Obligor which contain information identifying or pertaining to any Collateral in which the other Lenders have been granted a Lien, such Lender shall, upon request of any other Lender, make available to the requesting Lender such books and records for inspection and duplication.
2.8 Subject to the terms and conditions set forth in this Agreement (including Sections 2.1 and 2.11), each Senior Priority Lender shall have the exclusive right to manage, perform and enforce the terms of the Senior Priority Loan Documents with respect to the Senior Priority Collateral and its Loan Agreements, to exercise and enforce all privileges and rights thereunder according to its discretion and the exercise of its business judgment, including, without limitation, the exclusive right to take or retake control or possession of such Senior Priority Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate such Senior Priority Collateral.
2.9 Notwithstanding anything to the contrary contained in any of the Agreements but subject to Section 2.10 below and Section 2.11 below, prior to the time when a Senior Priority Lender shall have received payment in full of all its Senior Priority Obligations in cash, during the continuance of a Release Event, only the Senior Priority Lender shall have the right to restrict or permit, or approve or disapprove, the sale, transfer or other disposition of the Senior Priority Collateral or other Lien Enforcement Action with respect to the Senior Priority Collateral.
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2.10 Junior Priority Lenders shall, at any time and during the continuance of a Release Event:
(a) upon the request of the Senior Priority Lender with respect to the Senior Priority Collateral identified in such request as set forth below (which request shall specify the proposed terms of the sale, transfer or other disposition and the type and amount of consideration to be received in connection therewith), release or otherwise terminate its Liens on such Senior Priority Collateral, to the extent such Senior Priority Collateral is to be sold, transferred or otherwise disposed of either by (i) the Senior Priority Lender or its agents, or (ii) the Borrower or any Obligor with the consent of the Senior Priority Lender;
(b) deliver such release documents as the Senior Priority Lenders may reasonably require in connection therewith; provided, that,
(i) such release shall not extend to or otherwise affect any of the rights of the Junior Priority Lenders to the proceeds from any such sale or other disposition of Senior Priority Collateral except to the extent such proceeds are applied in accordance with Section 2.10(b)(ii) below;
(ii) the proceeds of any such sale, transfer or disposition shall be promptly applied in the priorities set forth in Section 2.5 hereof;
(iii) no such release documents shall be delivered (A) to the Borrower or any Obligor or (B) more than one Business Day prior to the date of the closing of the sale or disposition of such Senior Priority Collateral; provided, further, that if the closing of the sale or disposition of such Senior Priority Collateral is not consummated, the Senior Priority Lender shall promptly return all release documents to the Junior Priority Lenders who supplied such release documents; and
(c) be deemed to have consented under the applicable Agreements to which the Junior Priority Lender is a party to such sale or other disposition.
The effectiveness of any such release or termination by the Junior Priority Lenders shall be subject to the sale or other disposition of the Senior Priority Collateral described in such request and on the terms described in such request or on substantially similar terms and shall lapse in the event such sale or other disposition does not occur within 3 business days of the anticipated closing date. During the time any Lender or its agent is conducting any Lien Enforcement Action, upon the request of any other Lender, such Lender conducting such Lien Enforcement Action will advise the other Lenders of any and all offers which may be made from time to time by prospective purchasers of the applicable Collateral or other information relating to such Lien Enforcement Action.
2.11 Except as specifically provided in Section 2.12 below, notwithstanding any rights or remedies available to the Junior Priority Lenders under any of the Junior Priority Loan Documents, applicable law or otherwise, prior to the time that the Senior Priority Lender shall have received the payment in full of all Senior Priority Obligations in cash, the Junior Priority Lenders shall not, directly or indirectly, seek to commence or maintain any Lien Enforcement Action on any Senior Priority Collateral or assert any claims or interests therein
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(including, without limitation, by setoff or notification of account debtors) and the Senior Priority Lender shall have the exclusive right to commence and maintain any Lien Enforcement Action on any Senior Priority Collateral; provided, that, notwithstanding the foregoing, (i) upon an Event of Default under the Term Loan Agreements, without the prior written consent of the Working Capital Lender, the Term Loan Lenders shall not commence or maintain any Lien Enforcement Action with respect to the Term Loan Lender Priority Collateral until the date which is one hundred twenty (120) days after the declaration of the Term Loan Lenders of such Event of Default under the applicable Term Loan Agreements and written demand by the Term Loan Lenders to the Borrower for the accelerated payment of all such Term Loan Debt (unless the Borrower or any Obligor is subject to an Insolvency Proceeding by reason of which such declaration and the making of such demand is stayed, in which case, such declaration shall be deemed to have occurred on the date of the commencement of such Insolvency Proceeding) and (ii) upon an Event of Default under the Pioneer Loan Agreements, without the prior written consent of the Working Capital Lender, the Pioneer Lender shall not commence or maintain any Lien Enforcement Action with respect to the Pioneer Lender Priority Collateral until the date which is one hundred twenty (120) days after the declaration of the Pioneer Lender of such Event of Default under the applicable Pioneer Loan Agreements and written demand by the Pioneer Lender to the Borrower for the accelerated payment of all such Pioneer Lender Debt (unless the Borrower or any Obligor is subject to an Insolvency Proceeding by reason of which such declaration and the making of such demand is stayed, in which case, such declaration shall be deemed to have occurred on the date of the commencement of such Insolvency Proceeding); provided, further, that upon the occurrence of any Event of Default under the Junior Priority Loan Documents and for so long as such Event of Default under the Junior Priority Loan Documents is continuing, subject at all times to the provisions of Sections 2.2, 2.4 and 2.5 of this Agreement, commencing one hundred twenty (120) days (or, in the case of any Lien Enforcement Action (x) by the Term Loan Lenders against the Pioneer Lender Priority Collateral or (y) by the Pioneer Lender against the Term Loan Lender Priority Collateral, one hundred eighty (180) days) after the receipt by Senior Priority Lender of the declaration of a Junior Priority Lender of such Event of Default under the applicable Junior Priority Loan Documents and written demand by such Junior Priority Lender to the Borrower for the accelerated payment of all such Junior Priority Obligations (unless the Borrower or any Obligor is subject to an Insolvency Proceeding by reason of which such declaration and the making of such demand is stayed, in which case, such declaration shall be deemed to have occurred on the date of the commencement of such Insolvency Proceeding), such Junior Priority Lenders may take action to enforce their Liens on the Senior Priority Collateral, but only so long as (i) no Senior Priority Lender is not diligently pursuing in good faith the exercise of its enforcement rights or remedies against, or diligently attempting to vacate any stay or enforcement of its Liens on, all or a material portion of the such Senior Priority Lender's Senior Priority Collateral (including, without limitation, commencement of any action to foreclose its Liens on all or any material portion of its Senior Priority Collateral, notification of account debtors to make payments to such Senior Priority Lender, any action to take possession of all or any material portion of such Senior Priority Collateral or commencement of any legal proceedings or actions against or with respect to all or any material portion of such Senior Priority Collateral), (ii) in the case of any Lien Enforcement Action by the Working Capital Lender on any Term Loan Lender Priority Collateral, the Working Capital Lender has received the prior written consent of the Term Loan Agent, or (iii) in the case of any Lien Enforcement Action by the Working Capital Lender on any
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Pioneer Lender Priority Collateral, the Working Capital Lender has received the prior written consent of the Pioneer Lender. In the event a Junior Priority Lender has commenced any actions to enforce their Liens on any Senior Priority Lender's Senior Priority Collateral to the extent permitted hereunder and are diligently pursuing such actions, such Senior Priority Lender shall not take any action of a similar nature with respect to such Collateral.
2.12 Section 2.11 shall not be construed to in any way limit or impair the right of: (i) any Lender to bid for or purchase Collateral at any private or judicial foreclosure upon such Collateral initiated by any Lender (provided that in the case of any such bid or purchase by a Junior Priority Lender with respect to any Senior Priority Collateral, such Junior Priority Lender may not "credit bid" unless the proceeds of such bid are otherwise sufficient to cause the payment in full of the Senior Priority Obligations), (ii) Junior Priority Lenders to join (but not control) any foreclosure or other judicial lien enforcement proceeding with respect to any Senior Priority Collateral initiated by the applicable Senior Priority Lender, so long as it does not delay or interfere in any material respect with the exercise by such Senior Priority Lender of its rights as provided in this Agreement, (iii) any Junior Priority Lender's right to receive any remaining proceeds of Senior Priority Collateral after satisfaction and payment in full of all Senior Priority Obligations, (iv) file a proof of claim or statement of interest, vote on a plan of reorganization (including a vote to accept or reject a plan of partial or complete liquidation, reorganization, arrangement, composition, or extension), and make other filings, arguments, and motions, with respect to the Junior Priority Obligations in any Insolvency Proceeding commenced by or against any Obligor, in each case in accordance with this Agreement, (v) take action to create, perfect, preserve, or protect its Lien on the Collateral, so long as such actions are not adverse to the priority status in accordance with this Agreement of Liens on the Seniority Priority Lenders in such Collateral or (vi) file necessary pleadings in opposition to a claim objecting to or otherwise seeking the disallowance of its Obligations.
2.13 If Working Capital Lender should honor a request by the Borrower for a loan, advance or other financial accommodation under the Working Capital Loan Agreements, whether or not Working Capital Lender has knowledge that the honoring of such request would result in an Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default under the Term Loan Agreements or Pioneer Loan Agreements (or the Working Capital Lender waives any such Event of Default or breach), in no event shall Working Capital Lender have any liability to Term Loan Lenders or the Pioneer Lender as a result of such breach, and without limiting the generality of the foregoing, Term Loan Lenders and the Pioneer Lender agrees that Working Capital Lender shall not have any liability for tortious interference with contractual relations or for inducement by Working Capital Lender of the Borrower to breach of contract or otherwise, provided, that, Working Capital Lender agrees that the aggregate principal amount of loans extended under the Working Capital Debt outstanding at any one time (but not interest, costs, expenses, fees, indemnities or other charges payable by Borrower or any Obligor to Working Capital Lender or charged by Working Capital Lender to the loan account of Borrower or any Obligor maintained by Working Capital Lender pursuant to the terms of the Working Capital Credit Agreement) shall not exceed the Maximum Debt Amount with respect to the Working Capital Debt. Nothing contained in this Section 2.13, but subject to the other sections of this Agreement, shall limit or waive any right that any (i) Term Loan Lender has to enforce any of the provisions of the Term Loan Agreements against the Borrower or any Obligor or (ii) the Pioneer Lender has to enforce any of the provisions of the Pioneer Loan Agreements against the Borrower or any Obligor.
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2.14 Notwithstanding anything to the contrary herein, no Lender shall agree to any amendment, modification, waiver or supplement of its Loan Agreements if the effect thereof is to: (i) increase the aggregate principal amount of loans or other extensions of credit under its Loan Agreements in excess of the applicable Maximum Debt Amount; (ii) increase the interest rate on its Obligations or change (to earlier dates) the dates upon which principal, interest and other sums are due under its Loan Agreements; (iii) alter the redemption, prepayment or subordination provisions thereof; (iv) impose on the Borrower or any other Obligor any new or additional prepayment charges, premiums, reimbursement obligations, reimbursable costs or expenses, fees or other payment obligations; (v) alter the representations, warranties, covenants, events of default, remedies and other provisions in a manner which would make such provisions materially more onerous, restrictive or burdensome to the Borrower or any other Obligor; (vi) grant any new Lien to secure its Obligations, unless such Lien is granted to the other Lenders in accordance with the priorities set forth in this Agreement; or (vii) receive a new guarantee, pledge or other credit support from any other Person, except to the extent such additional guarantee, pledge or credit support is required under the terms of such Lender's Loan Agreements (as in effect on the date hereof); provided that clause (vi) and (vii) shall not prohibit the Working Capital Lender receiving the guarantees, liens and security interests contemplated by Section 5.21 of the Working Capital Credit Agreement, and no consent of any other party hereto shall be required.
2.15 Each of the Lenders shall give to the other Lenders promptly after the giving thereof to the Borrower (i) a copy of any written notice by any Lender of an Event of Default under its Agreements with the Borrower, or written notice of demand of payment from the Borrower following an Event of Default under its Agreements, and (ii) a copy of any written notice sent by such Lender to the Borrower at any time an Event of Default under such Lender's Agreements with the Borrower exists stating such Lender's intention to exercise any of its enforcement rights or remedies, including written notice pertaining to any foreclosure on any of the Collateral or other judicial or non- judicial remedy in respect thereof to the extent permitted hereunder, and any legal process served or filed in connection therewith; provided, that, the failure of any party to give notice as required hereby shall not affect the relative priorities of Lender's respective Liens as provided herein or the validity or effectiveness of any such notice as against the Borrower or any other Obligor.
2.16 Notwithstanding anything to the contrary herein or in any of the Agreements, Working Capital Lender and Term Loan Lenders acknowledge and agree that (i) the purchase or acceptance by Pioneer or its affiliates of, and the sale or transfer by Borrower or any Obligor of, any products or goods pursuant to the terms of that certain Distribution Agreement by and among Pioneer and Borrower, dated as of December 31, 2014, or that certain Production Agreement by and among Pioneer and Borrower, dated as of December 31, 2014, shall not constitute a violation of this Agreement and upon the sale of such products or goods, Working Capital Lender and Term Loan Lender shall be deemed to have consented thereto and automatically released or terminated its Liens, if any, on such products or goods (provided that such release shall not extend to or otherwise affect any of the rights of such Lenders, if any, to the proceeds from such sale), and Lenders shall deliver any release documents as Pioneer may
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reasonably require in connection therewith, (ii) the transfer or assignment (in whole or in part) of any Intellectual Property pursuant to the terms of that certain Research Agreement by and among Pioneer and Borrower, dated as of December 31, 2014, and the Production Agreement by and among Pioneer and Borrower, dated as of December 31, 2014, shall not constitute a violation of this Agreement and upon the transfer or assignment (in whole or in part) of such Intellectual Property, Working Capital Lender and Term Loan Lender shall be deemed to have consented thereto and automatically released or terminated its Liens on such Intellectual Property, including with respect to any co-ownership interest of Pioneer in such Intellectual Property, and Lenders shall deliver any release documents as Pioneer may reasonably require in connection therewith, and (iii) the enforcement by Pioneer or its affiliates of any of its rights pursuant to the terms of that certain Asset Purchase and Sale Agreement by and among Pioneer and Borrower, dated as of December 19, 2014, or any Transaction Documents (as such term is defined therein, but excluding the Pioneer Loan Agreements, and the payments of any amounts payable to Pioneer or its affiliates by Borrower or any Obligor thereunder (exclusive of the amount payable pursuant to the Promissory Note), shall not constitute a violation of this Agreement.
3. TERM LOAN LENDER PURCHASE OPTION
3.1 Upon the occurrence and during the continuance of an Event of Default under the Working Capital Loan Agreements, Term Loan Lenders shall have the option at any time within sixty (60) days of the occurrence of such Event of Default and upon five (5) business days' prior written notice to Working Capital Lender to purchase all of the Working Capital Debt from Working Capital Lender. Such notice from Term Loan Lenders to Working Capital Lender shall be irrevocable.
3.2 On the date specified by Term Loan Lenders in such notice (which shall not be less than five (5) business days, nor more than twenty (20) days, after the receipt by Working Capital Lender of the notice from Term Loan Lenders of their election to exercise such option), Working Capital Lender shall sell to Term Loan Lenders, and Term Loan Lenders shall purchase from Working Capital Lender, all of the Working Capital Debt.
3.3 Upon the date of such purchase and sale, Term Loan Lenders shall pay to Working Capital Lender as the purchase price therefor the full amount of all the Working Capital Debt then outstanding and unpaid (including principal, interest, indemnities, fees and expenses, including attorneys' fees and legal expenses) and other amounts under the Working Capital Loan Agreements, and (ii) agree to reimburse Working Capital Lender for any loss, cost, damage or expense (including reasonable attorneys' fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any checks or other payments provisionally credited to the Working Capital Debt, and/or as to which Working Capital Lender has not yet received final payment. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of Working Capital Lender as Working Capital Lender may designate in writing to Term Loan Lenders for such purpose. Interest shall be calculated to but excluding the business day on which such purchase and sale shall occur if the amounts so paid by Term Loan Lenders to the bank account designated by Working Capital Lender are received in such bank account prior to 1:00 p.m., New York City time and interest shall be calculated to and including such business day if the amounts so paid by Term Loan Lenders to the bank account designated by Working Capital Lender are received in such bank account later than 1:00 p.m., New York City time.
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3.4 Such purchase shall be expressly made without representation or warranty of any kind by Working Capital Lender as to the Working Capital Debt or otherwise and without recourse to Working Capital Lender, except that Working Capital Lender shall represent and warrant: (i) the amount of the Working Capital Debt being purchased, (ii) that Working Capital Lender owns the Working Capital Debt free and clear of any Liens or encumbrances and (iii) Working Capital Lender has the right to assign the Working Capital Debt and the assignment is duly authorized.
3.5 While the Term Loan Lenders have the right to purchase the Working Capital Debt pursuant to Section 3.1 hereof, Working Capital Lender agrees that it will give Term Loan Agent five (5) business days prior written notice of its intention to commence any Lien Enforcement Action. In the event that during such five (5) business day period, Term Loan Lenders shall send to Working Capital Lender the irrevocable notice of Term Loan Lenders' intention to exercise the purchase option given by Working Capital Lender to Term Loan Lenders under Section 3.1, Working Capital Lender shall not, absent exigent circumstances, commence any foreclosure or other action to sell or otherwise realize upon the Collateral, provided, that, the purchase and sale with respect to the Working Capital Debt provided for herein shall have closed within five (5) business days thereafter and Working Capital Lender shall have received payment in full of the Working Capital Debt as provided for herein within such five (5) business day period.
4. MISCELLANEOUS
4.1 Representations.
(a) Term Loan Agent represents and warrants to the other Lenders that:
(i) the execution, delivery and performance of this Agreement by Term Loan Agent is within the powers of Term Loan Agent, has been duly authorized by Term Loan Agent, and does not contravene any law, any provision of any of the Term Loan Agreements or any agreement to which Term Loan Agent is a party or by which it is bound; and
(ii) this Agreement constitutes the legal, valid and binding obligations of Term Loan Agent, enforceable in accordance with its terms and shall be binding on it.
(b) Working Capital Lender hereby represents and warrants to the other Lenders that:
(i) the execution, delivery and performance of this Agreement by Working Capital Lender is within the powers of Working Capital Lender, has been duly authorized by Working Capital Lender and does not contravene any law, any provision of the Working Capital Loan Agreements or any agreement to which Working Capital Lender is a party or by which it is bound; and
(ii) this Agreement constitutes the legal, valid and binding obligations of Working Capital Lender, enforceable in accordance with its terms and shall be binding on it.
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(c) the Pioneer Lender hereby represents and warrants to the other Lenders that:
(i) the execution, delivery and performance of this Agreement by the Pioneer Lender is within the powers of the Pioneer Lender, has been duly authorized by the Pioneer Lender and does not contravene any law, any provision of the Pioneer Loan Agreements or any agreement to which the Pioneer Lender is a party or by which it is bound; and
(ii) this Agreement constitutes the legal, valid and binding obligations of the Pioneer Lender, enforceable in accordance with its terms and shall be binding on it.
4.2 Amendments. Any waiver, permit, consent or approval by any Lender of or under any provision, condition or covenant to this Agreement must be in writing and shall be effective only to the extent it is set forth in writing and as to the specific facts or circumstances covered thereby. Any amendment of this Agreement must be in writing and signed by Working Capital Lender, the Pioneer Lender and Term Loan Agent.
4.3 Successors and Assigns.
(a) This Agreement shall be binding upon each of the Lenders and its respective successors and assigns and shall inure to the benefit of each of the Lenders and its respective successors, participants and assigns.
(b) To the extent provided in their respective Agreements, each of the Lenders reserves the right to grant participations in, or otherwise sell, assign, transfer or negotiate all or any part of, or any interest in, its respective Obligations, as the case may be; provided, that, no Lender shall be obligated to give any notices to or otherwise in any manner deal directly with any participant in the other Obligations, as the case may be, and no participant shall be entitled to any rights or benefits under this Agreement except through the Lender with which it is a participant and any sale of a participation in such Obligations shall be expressly made subject to the provisions of this Agreement (including, without limitation, Section 3).
(c) In connection with any participation or other transfer or assignment, a Lender (i) may, subject to its respective Agreement, disclose to such assignee, participant or other transferee or assignee all documents and information which such Lender now or hereafter may have relating to the Borrower or any Obligor or the Collateral and (ii) shall disclose to such participant or other transferee or assignee the existence and terms and conditions of this Agreement.
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(d) In the case of an assignment or transfer, the assignee or transferee acquiring any interest in the Obligations, as the case may be, shall execute and deliver to the assigning Lender a written acknowledgment of receipt of a copy of this Agreement and the written agreement by such person to be bound by the terms of this Agreement. In addition, in the event of an assignment or transfer by any Lender of less than all of its Obligations, such Lender shall agree with the assignee to appoint one person as an agent to act on their behalf under this Agreement for purposes of receiving payments and notices hereunder and shall notify the other Lenders of the person who shall act in such capacity.
(e) In connection with any assignment or transfer of any or all of the indebtedness of any Senior Priority Lender or any or all rights of any Senior Priority Lender in the property of the Borrower or any Obligor (other than pursuant to a participation), Junior Priority Lenders agree to execute and deliver an agreement identical to this Agreement (subject to changing names of parties, documents and addresses, as appropriate) in favor of any such assignee or transferee and, in addition, will execute and deliver an agreement identical to this Agreement (subject to changing names of parties, documents and addresses, as appropriate) in favor of any third person who succeeds to or refinances, replaces or substitutes for any or all of such Senior Priority Lender's financing of the Borrower and of any of the Obligors, whether such successor or replacement financing occurs by transfer, assignment, "takeout" or any other means or vehicle.
4.4 Insolvency. This Agreement shall be applicable both before and after the filing of any petition by or against the Borrower or any Obligor under the U.S. Bankruptcy Code and all converted or succeeding cases in respect thereof, and all references herein to the Borrower or any Obligor shall be deemed to apply to the trustee for the Borrower or any Obligor and the Borrower or any Obligor as debtor-in-possession. The relative rights of Lenders in or to any distributions from or in respect of any Collateral or proceeds of Collateral, shall continue after the filing thereof on the same basis as prior to the date of the petition, subject to any court order approving the financing of, or use of cash collateral by, the Borrower or any Obligor as debtor-in-possession.
4.5 Bankruptcy Financing.
(a) If the Borrower or any Obligor shall become subject to a case under the U.S. Bankruptcy Code and, if as debtor(s)-in-possession such Borrower or Obligor moves for approval of financing, including on a priming basis with respect to Working Capital Lender Priority Collateral (the "DIP Financing") to be provided in good faith by Working Capital Lender or any third party approved by the Working Capital Lender (the "DIP Lender") under Section 364 of the U.S. Bankruptcy Code or the use of cash collateral of Working Capital Lender Priority Collateral under Section 363 of the U.S. Bankruptcy Code, the other Lenders agree that no objection, protest or contest (including joinder or support of any third party objecting, protesting or contesting) will be raised by such Lenders to any such financing so long as (A) the other Lenders retain a Lien on the Collateral (including proceeds thereof arising after the commencement of such proceeding) with the same priority as existed prior to the commencement of the case under the U.S. Bankruptcy Code (after giving effect to any priming Liens on the Working Capital Lender Priority Collateral in favor of the DIP Lender), (B) any Liens or superpriority claims pursuant to section 507 of the U.S. Bankruptcy Code the DIP
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Lender seeks on the Pioneer Lender Priority Collateral or the Term Loan Lender Priority Collateral shall be subordinate in all respects to any Liens or claims the Senior Priority Lenders shall have with respect to the Pioneer Lender Priority Collateral or the Term Loan Lender Priority Collateral, (C) the aggregate principal amount of loans outstanding under such DIP Financing shall not exceed $5,000,000, and (D) such DIP Financing is pari passu or superior in priority to the then outstanding Working Capital Debt and the Liens securing such Working Capital Lender Priority Collateral.
(b) No Lender shall raise an objection, protest or contest (including joinder or support of any third party objecting, protesting or contesting) (i) any request by the any other Lender for adequate protection in any Insolvency Proceeding (or any granting of such request), or (ii) any objection by the Working Capital Lender to any motion, relief, action or proceeding based on a Lender claiming a lack of adequate protection. Notwithstanding the foregoing, in any Insolvency Proceeding, if any Lender is granted adequate protection in the form of additional collateral in connection with any use of cash collateral or DIP Financing, then the other Lenders may seek or request adequate protection in the form of a Lien on such additional collateral, which Lien shall be subordinated to the Liens securing the Obligations of the other Lenders on the same basis as set forth in this Agreement.
(c) No Lender shall oppose or seek to challenge any claim by any other Lender for allowance in any Insolvency Proceeding consisting of post-petition interest, fees or expenses.
(d) The Lenders acknowledge and agree that (i) the grants of Liens pursuant to the Agreements constitute separate and distinct grants of Liens and (ii) because of, among other things, their differing rights in the Collateral, the Obligations of the Lenders are fundamentally different from each other and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency Proceeding.
(e) No Junior Priority Lender shall raise any objection to, oppose or contest (or join with or support any third party opposing, objecting to or contesting), a sale or other disposition of any Senior Priority Collateral free and clear of its Liens or other claims under Section 363 of the U.S. Bankruptcy Code if the Senior Priority Lender with respect to such Collateral has consented to such sale or disposition of such assets.
(f) No Junior Priority Lender or DIP Lender shall seek to purchase by a credit bid pursuant to section 363 of the U.S. Bankruptcy Code any Senior Priority Collateral unless such credit bid provides for the payment in full, in cash, of all Senior Priority Obligations, including any claims for attorneys' fees, costs or other expenses provided for in the Senior Priority Loan Documents or this Agreement.
(g) No Junior Priority Lender or DIP Lender shall seek relief, pursuant to Section 362(d) of the U.S. Bankruptcy Code or otherwise, from the automatic stay of Section 362(a) of the Bankruptcy Code or from any other stay in any Insolvency Proceeding in respect of any Senior Priority Collateral, without the prior written consent of the Senior Priority Lender with respect to such Senior Priority Collateral. Any order entered by the Bankruptcy Court granting authority for the use of cash collateral or authorizing DIP Financing which order also prospectively grants a Lender relief from the automatic stay shall be subject to the provisions of this subsection (g).
22
(h) Without the prior written consent of the applicable Senior Priority Lender, no Junior Priority Lender shall assert any marshaling, appraisal, valuation, or other similar right with respect to any Senior Priority Collateral that may otherwise be available to a junior secured creditor.
4.6 Bailee for Perfection. Each Lender hereby appoints each other Lender as agent for the purposes of perfecting the other Lenders' Liens in and on any of the Collateral in the possession of such Lender; provided, that, the Lender in the possession of any Collateral shall not have any duty or liability to protect or preserve any rights pertaining to any of the Collateral and, except for gross negligence or willful misconduct as determined pursuant to a final non-appealable order of a court of competent jurisdiction, the non-possessing Lenders hereby waives and releases the other Lenders from, all claims and liabilities arising pursuant to the possessing Lender's role as bailee with respect to the Collateral. To the extent any Lender receives Collateral which is not such Lender's Senior Priority Collateral, such Lender shall promptly deliver to the Lender for whom such Collateral is Senior Priority Collateral. After any Senior Priority Lender has received final payment in full of all of such Lender's Senior Priority Obligations and such Lender's Agreements have been terminated, such Lender shall deliver the remainder of the Collateral, if any, in its possession to the applicable Junior Priority Lender, except as may otherwise be required by applicable law or court order.
4.7 Notices. All notices, requests and demands to or upon the respective parties hereto shall be in writing and shall be deemed duly given, made or received: if delivered in person, immediately upon delivery; if by telex, telegram or facsimile transmission, immediately upon sending and upon confirmation of receipt; if by nationally recognized overnight courier service with instructions to deliver the next business day, one (1) business day after sending; and if mailed by certified mail, return receipt requested five (5) days after mailing to the parties at their addresses set forth below (or to such other addresses as the parties may designate in accordance with the provisions of this Section):
| To Working | KeyBank National Association With a copy to: |
23
|
To Term Loan Agent (on behalf of itself and the other Term Loan Lenders): |
Hudson Bay Fund LP |
|
To Pioneer Lender: |
Pioneer Hi-Bred International, Inc. With a copy to: Pioneer Hi-Bred International, Inc. |
Either of the above Lenders may change the address(es) to which all notices, requests and other communications are to be sent by giving written notice of such address change to the other Lenders in conformity with this Section 4.7, but such change shall not be effective until notice of such change has been received by the other Lenders.
4.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original with the same force and effect as if the signatures thereto and hereto were upon the same instrument.
4.9 Governing Law. The validity, construction and effect of this Agreement shall be governed by the internal laws of the State of New York.
24
4.10 Consent to Jurisdiction; Waiver of Jury Trial. EACH PARTY HERETO HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY (INCLUDING ITS APPELLATE DIVISION), AND OF ANY OTHER APPELLATE COURT IN THE STATE OF NEW YORK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH LENDER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.
4.11 Complete Agreement. This written Agreement is intended by the parties as a final expression of their agreement and is intended as a complete statement of the terms and conditions of their agreement with respect to the subject matter hereof.
4.12 No Third Parties Benefited. Except as expressly provided in Section 4.3 and consents which are deemed to have been given under Section 2.10 hereof, this Agreement is solely for the benefit of the Lenders and their respective successors, participants and assigns, and no other person shall have any right, benefit, priority or interest under, or because of the existence of, this Agreement.
4.13 Disclosures; Non-Reliance. Each Lender has the means to, and shall in the future remain, fully informed as to the financial condition and other affairs of Borrower and no Lender shall have any obligation or duty to disclose any such information to the other Lenders. Except as expressly set forth in this Agreement, the parties hereto have not otherwise made to each other nor do they hereby make to each other any warranties, express or implied, nor do they assume any liability to each other with respect to: (a) the enforceability, validity, value or collectability of any of the Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) the Borrower's or any Obligors' title to or right to transfer any of the Collateral, or (c) any other matter except as expressly set forth in this Agreement.
4.14 Terms. This Agreement is a continuing agreement and shall remain in full force and effect until the indefeasible satisfaction in full of all Obligations and the termination of the Agreements. This Agreement shall be reinstated if, for any reason, any payment of the Working Capital Debt by or on behalf of the Borrower or any other Obligor shall be rescinded or must otherwise be restored by the Working Capital Lender, whether as a result of an Insolvency Proceeding or otherwise.
25
4.15 Subrogation. Until the payment in full of the Working Capital Debt, the other Lenders shall not have, and shall not directly or indirectly exercise, any rights that it may acquire by way of subrogation under this Agreement, by any payment or distribution to the Working Capital Lender hereunder or otherwise. The Working Capital Lender shall have no obligation or duty to protect the other Lenders' rights of subrogation arising pursuant to this Agreement or under any applicable law, nor shall the Working Capital Lender be liable for any loss to, or impairment of, any subrogation rights held by the other Lenders.
4.16 Other KeyBank Transactions. The parties hereto acknowledge and agree that (i) KeyBank National Association and its affiliates (collectively, "KeyBank") may now or hereafter provide debt financing, equity capital, financial advisory or other services to the Borrower and the other Obligors (excluding the transactions contemplated by the Working Capital Loan Agreement, the "Other KeyBank Transactions") and (ii) the Other KeyBank Transactions, and KeyBank in its capacity as a party to the Other KeyBank Transactions, are not subject to this Agreement, including any Liens that may be granted to KeyBank pursuant to such Other KeyBank Transactions.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
11897431.6
26
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written.
WORKING CAPITAL LENDER
KEYBANK NATIONAL ASSOCIATION
By: /s/ Mark R. Bitter
Name: Mark R. Bitter
Title: Vice President
TERM LOAN AGENT
HUDSON BAY FUND LP
By: /s/ George Antonopoulos
Name: George Antonopoulos
Title:
PIONEER LENDER
PIONEER HI-BRED INTERNATIONAL, INC.
By: Paul E. Schickler
Name: Paul E. Schickler
Title: President
Signature Page to
Intercreditor and Subordination Agreement
ANNEX I
Pioneer Purchased Assets
The Arlington Plant Site, the Nampa Plant Site and the Transferred Equipment (all as described on Annex IV)
The Pioneer Intellectual Property Collateral (as described on Annex II)
A-1
ANNEX II
Pioneer Intellectual Property
Transferred Know-How:
Unpatented inventions, trade secrets, technical information or formulae (hereinafter, "Know-How") relating to the operation of the Transferred Equipment at the Arlington Plant Site and the Nampa Plant Site, to the extent existing and reduced to writing, in all events, as located at the Arlington Plant Site or the Nampa Plant Site.
Standard Operating Procedures (SOPs) for the operation of the Transferred Equipment at the Arlington Plant Site and the Nampa Plant Site, including operating and maintenance procedures, to the extent existing and reduced to writing, in all events, as located at the Arlington Plant Site or the Nampa Plant Site.
Engineering Drawings with respect to the Arlington Plant Site and the Nampa Plant Site, to the extent existing and reduced to writing, in all events, as located at the Arlington Plant Site or the Nampa Plant Site.
Blue Print Files, P&IDs and assemblies relating to the Transferred Equipment at the Arlington Plant Site and the Nampa Plant Site, to the extent existing and reduced to writing, in all events, as located at the Arlington Plant Site or the Nampa Plant Site.
Excluding from the foregoing, any Know-How excluded pursuant to Exhibit 2.1(a)(vi) of the Asset Purchase and Sale Agreement by and between Pioneer Lender and Borrower dated December 19, 2014.
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Transferred Patents:
| Internal Title | Ctry | Current Status | Filing | Filing Number | Grant Number |
| Alfalfa Variety 53V52 | US | Grant | 20 Sep 2006 | 11/533383 | 7652195 |
| Alfalfa Variety 05N16PY | US | Grant | 04 Oct 2011 | 13/252674 | 8461420 |
| Alfalfa Variety 06N02PX | US | Grant | 04 Oct 2011 | 13/252692 | 8471103 |
| Alfalfa Variety 07W01CZ | US | Grant | 04 Oct 2011 | 13/252706 | 8466343 |
| Alfalfa Variety 09W08PY | US | In prosecution | 30 Jul 2013 | 13/953807 |
|
| Alfalfa Variety 55Q27 | US | Grant | 06 Mar 2012 | 13/413254 | ###-###-#### |
| Alfalfa Variety 09N12CY | US | Allowed | 06 Mar 2012 | 13/413267 | ###-###-#### |
| Title | Application No. | Filing Date |
| Alfalfa Variety 10XXP11 | 62095258 | 12/22/2014 |
| Alfalfa Variety 54Q14 | 62095279 | 12/22/2014 |
| Alfalfa Variety 12XXP13 | 62095286 | 12/22/2014 |
Transferred Germplasm:
Genetic material contained in the parent and research Product seed and the Inventory Seed (other than, in any events, any of the Excluded Seed) at the Arlington Plant Site, Nampa Plant Site or the Leased Premises. All capitalized terms shall have the meanings ascribed thereto in the Asset Purchase and Sale Agreement by and between Pioneer Lender and Borrower dated December 19, 2014.
Excluding from the foregoing, any genetic material, germplasm or seed excluded pursuant to Exhibit 2.1(a)(viii) of the Asset Purchase and Sale Agreement by and between Pioneer Lender and Borrower dated December 19, 2014.
A-3
Transferred PVPs:
| Country | App_num | App_date | Grant # | Grant start | endtype | den_final | title holder |
| AR | 003195 | 9/22/1993 | 000677 | 11/3/1994 | Granted | 5472 | PHI |
| AR | 003795 | 3/31/1995 | 000771 | 10/24/1995 | Granted | 5939 | POC |
| AR | 004433 | 4/9/1996 | 000872 | 2/28/1997 | Granted | 5681 | PHI |
| AR | 005649 | 2/6/1998 | 001087 | 5/26/1998 | Granted | 58N58 | PHI |
| AR | 007689 | 10/25/2001 | 001612 | 10/24/2002 | Granted | 59N49 | PHI |
| AR | 008687 | 001982 | 3/15/2005 | Granted | 56S82 | PHI | |
| AU | 2003333 | 11/26/2003 | 4652 | 9/18/2013 | Granted | 57Q75 | PHI |
| AU | 2005001 | 1/6/2005 | Not yet granted | Applied | 56S82 | PHI | |
| QZ (EP) | 20112119 | 9/5/2011 | Not yet granted | Applied | PR55V48 | PHI | |
| QZ (EP) | 20082160 | 10/2/2008 | 33444 | 9/24/2012 | Granted | PR59N59 | PHI |
| US | 9100158 | 3/28/1991 | 9100158 | 8/31/1995 | Granted | 5888 | PHI |
| US | 9200218 | 6/22/1992 | 9200218 | 8/31/1995 | Granted | 5454 | PHI |
| US | 9200220 | 6/22/1992 | 9200220 | 8/31/1995 | Granted | 5246 | PHI |
| US | 9500089 | 2/10/1995 | 9500089 | 3/31/1997 | Granted | 5312 | PHI |
| US | 9600331 | 8/13/1996 | 9600331 | 6/30/1999 | Granted | Superba | PHI |
| US | 9600332 | 8/13/1996 | 9600332 | 7/30/1999 | Granted | 5681 | PHI |
| US | 9600333 | 8/13/1996 | 9600333 | 6/30/1999 | Granted | 5939 | PHI |
| US | 9800114 | 2/18/1998 | 9800114 | 4/24/2001 | Granted | 5347LH | PHI |
| US | 9800143 | 3/3/1998 | 9800143 | 4/24/2001 | Granted | 53Q60 | PHI |
| US | 9800341 | 7/13/1998 | 9800341 | 4/24/2001 | Granted | 53V08 | PHI |
| US | 9900064 | 11/23/1998 | 9900064 | 4/24/2001 | Granted | 54H55 | PHI |
| US | 9900126 | 1/7/1999 | 9900126 | 4/24/2001 | Granted | 54H69 | PHI |
| US | 9900127 | 1/7/1999 | 9900127 | 4/24/2001 | Granted | 53V63 | PHI |
| US | 9900410 | 9/13/1999 | 9900410 | 4/24/2001 | Granted | 54V54 | PHI |
| US | 9900411 | 9/13/1999 | 9900411 | 4/24/2001 | Granted | 53H81 | PHI |
| US | 200000193 | 4/4/2000 | 200000193 | 4/24/2001 | Granted | 57N02 | PHI |
A-4
ANNEX III
Pioneer Transaction Documents
- Assignment and Assumption Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Data Transfer Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Alfalfa Distribution Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Lease Agreement (Alfalfa Facilities Only-Connell, Washington) by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Know-How Transfer Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Information Technology Transition Services Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Non-Exclusive Alfalfa Licensing and Assignment Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Patent Assignment Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Patent License Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Production Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Assignment Agreement Of Plant Variety Certificates, Plant Breeders' Rights, Maintenance Rights And Registration Rights, by and among Pioneer Hi-Bred International, Inc., S&W Seed Company and Pioneer Overseas Corporation, dated December 31, 2014.
- Research Agreement, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- Warranty Deed, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
- General Warranty Deed, by and between Pioneer Hi-Bred International, Inc. and S&W Seed Company, dated December 31, 2014.
In each case, including any amendments to the foregoing documents entered into by the parties thereto.
A-5
ANNEX IV
Pioneer PP&E Assets
Arlington Plant Site
:Lands described in Columbia County Certified Survey Map No. 884, as recorded in Volume 4 of Surveys, on page 104, as Document No. 441386, being located in the North East 1/4 of the North East 1/4 of Section 22, Township 10 North, Range 9 East, Town of Arlington, Columbia County, Wisconsin,
Tax Key No. 11002 392.01
Lot 1 of Certified Survey Map No. 3122, as recorded in Volume 20 of Certified Survey Maps, page 118, Document No. 593525, being a Survey in the North East 1/4 of the North East 1/4 of Section 22, Township 10 North, Range 9 East, Town of Arlington, Columbia County, Wisconsin.
Tax Key No. 11002 392.A
Together with all buildings, fixtures, improvements and appurtenances thereon.
Nampa Plant Site:
Parcel I
The West 220 feet of the East 1022 feet of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West, Boise Meridian, Canyon County, Idaho; and
A portion of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, being more particularly described as follows:
Commencing at the Southeast corner of said Southeast quarter of the Northeast quarter of Section 16; thence
South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter a distance of 1022.00 feet to the True Point of Beginning; thence continuing
South 89°55'04" West along said South line, a distance of 30.00 feet to a point; thence
North on a line parallel to the East line of said Southeast quarter of the Northeast quarter of Section 16, a distance of 190.00 feet to a point; thence
North 89°55'04" East, along a line parallel with the South line of said Southeast quarter of the Northeast quarter, a distance of 30.00 feet; thence
South along a line parallel to the East line of said Southeast quarter of the Northeast quarter, a distance of 190.00 feet to the True Point of Beginning.
A-6
Parcel II
A parcel of land located in the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, and is more particularly described as follows:
Commencing at the East quarter corner of said Section 16, being a P.K. Nail and the centerline intersection of Lake Shore Drive and 12th Avenue South; thence
South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter, and the centerline of Lake Shore Drive, a distance of 1022.00 feet to a P.K. Nail, being the True Point of Beginning; thence continuing
South 89°55'04" West along said South line of the Southeast quarter of the Northeast quarter and the centerline of Lake Shore Drive, a distance of 300.20 feet to the Southwest corner of said parcel, being a 5/8 inch steel pin, from whence a 1/2 inch steel pin bears North 0°06'20" West, a distance or 33.00 feet; thence leaving said South line of the Southeast quarter of the Northeast quarter and the centerline of Lake Shore Drive
North 0°06'20" West, along the West line of said Southeast quarter of the Northeast quarter, a distance of 1324.04 feet to the Northwest corner of said parcel being a 5/8 inch steel pin, and the Northeast 1/16 corner of said Section 16; thence
North 89°55'27" East along the North line of said Southeast quarter of the Northeast quarter, a distance of 302.64 feet to the Northeast corner of said parcel, being a 1/2 inch steel pin; thence
South and parallel with the East line of said Southeast quarter of the Northeast quarter, a distance of 1324.01 feet to the True Point of Beginning.
Excepting Therefrom
A portion of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, being more particularly described as follows:
Commencing at the Southeast corner of said Southeast quarter of the Northeast quarter of Section 16; thence
South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter a distance of 1022.00 feet to the True Point of Beginning; thence continuing
South 89°55'04" West along said South line, a distance of 30.00 feet to a point; thence
North on a line parallel to the East line of said Southeast quarter of the Northeast quarter of Section 16, a distance of 190.00 feet to a point; thence
North 89°55'04" East, along a line parallel with the South line of said Southeast quarter of the Northeast quarter, a distance of 30.00 feet; thence
South along a line parallel to the East line of said Southeast quarter of the Northeast quarter, a distance of 190.00 feet to the True Point of Beginning.
Together with all buildings, fixtures, improvements and appurtenances thereon.
A-7
Transferred Equipment:
| Name - Nampa Plant Site |
| Trimble GPS |
| CLIPPER CLEANER (LAB MODEL) |
| INDICATOR FOR CONDITIONING SCALE (#3) |
| GRAVITY, FORSBERG #50VM, #7 |
| FORSBERG GRAVITY #50V C1703 |
| FORSBERG GRAVITY #50V C1703 |
| BIN FOR WESTRUP #1 |
| #17 C-3 ELEVATOR, 28' |
| BEE TRAILER |
| KUBOTA TRACTOR |
| PORTABLE PLATFORM SCALE (#4) |
| Elev, E-16 D-3 |
| #25, D-3 ELEVATOR, 16' |
| METAL SEED BOXES |
| WINDOW AWNING |
| TRUCK SCALE (#5) |
| INSTALL WELL FOR PLANT |
| OUTDOOR PLATFORM SCALE (#8) |
| DUST CONTROL SYSTEM INSTALLATION EXPENSE |
| ELECTRICAL, CONDITIONING |
| #21 C-3 28' Elevator |
| SEWING PEDESTAL, PACKAGING |
| BAG TOP TRIMMER, PACKAGING |
| MICROSCOPE WITH ILLUMINATOR |
| MAGNETIC SEPERATOR #2 |
| MAGNETIC SEPERATOR #3 |
| MIXING CHAMBER, MAG |
| 6' VELVET ROLL, LAB |
| SG30 SEED GERMINATOR |
| MAGNETIC SEPARATOR #4 |
| W-2 Baghouse Airlock |
| W-2 Bag filter, Conditioning |
| LAND ACQUISITION-TIEGS LAND CO |
| DEMOLITION-NEW PROPERTY |
| WAREHOUSE E |
| WAREHOUSE D |
| REFRIGERATION UNIT COLD STORAGE #1 |
A-8
| MAIN ELECTRICAL |
| WESTRUP SCREEN CLEANER #1 |
| WESTRUP SCREEN CLEANER#2 |
| VELVET ROLL #1 |
| VELVETROLL #2 |
| VELVET ROLL #3 |
| VELVET ROLL #4 |
| ELECTRICAL-CONDITIONING |
| #18, B-3 ELEVATOR, 14' |
| #8 C-3 ELEVATOR, 24' |
| #3 C-3 7' Elevator |
| #20 C-3 ELEVATOR, 28' |
| #5 C-3 ELEVATOR, 14' |
| #29 C-3 26' Elevator |
| VELVET ROLL TAILS VIBRATING CONVEYOR #1 |
| VIBRATING CONVEYOR CLIPPER 6' |
| PORTABLE PLATFORM SCALE (#2) |
| ASPHALT PATCHING AND OVERLAY |
| HART UNIFLOW |
| HART UNIFLOW |
| PLATFORM SCALE CONDITIONING (#3) |
| #19, C-3 ELEVATOR, 28' |
| #27 C-3 17' Elevator |
| #2 D-3 ELEVATOR, 16' |
| #24 D-3 ELEVATOR, 24' |
| #4 C-3 ELEVATOR, 24' |
| #6 C-3 ELEVATOR, 33' |
| #1 3-D elevator, 24' |
| #15 C-3 28' Elevator |
| METAL SEED BOXES |
| METAL SEED BOXES |
| BIN FOR WESTRUP #2 |
| CLIPPER CLEANER-CONV |
| CLIPPER CLEANER X298 |
| GRAVITY SEPARATOR #8 |
| SEWING MACHINE, PACKAGING |
| OFFICE/WAREHOUSE (RAR ADJUST) |
| OFFICE ADD 30X12 |
| OFFICE BLDG ADDTN P2740 |
| OFFICE BLDG-ELECTRICAL P2740 |
| COLD STORAGE #2 |
| COLD STORAGE #3 |
| REFRIGERATION UNIT COLD STORAGE #2 & #3 |
A-9
| 6 DISTRIBUTORS |
| VELVET ROLL #5 |
| VELVET ROLL #6 |
| VELVET ROLL #7 |
| VELVET ROLL #8 |
| VELVET ROLL #9 |
| VELVET ROLL #10 |
| VELVET ROLL #11 |
| VELVET ROLL #12 |
| LAND 6.5A |
| ASPALT PAVING |
| ASPHALT PAVING-PJP6529 |
| ASPHALT PAVING |
| AIR SYSTEM |
| AIR SCREEN CLEANER |
| ASPHALT PAVING |
| GRISIEZ MAG CLEANER-RICE/DODDER MILL |
| MAC DUST COLLECTOR INSTALLATION EXPENSE |
| W.A. RICE ROLL MACHINE (2) |
| ASPHALT OVERLAY, WAREHOUSE E |
| 4380 POWER INFEED |
| FIRE SECURITY SYSTEM |
| GAS AND DISTRIBUTION SYSTEM |
| CMS Retrofit |
| Treat/Pkg Tower Structural Steel |
| BLENDING BIN-95,000 LBS. |
| SCARIFIER BIN-95,000 LBS. |
| CMS BIN-95,000 LBS. |
| BEFORE BAGGER BIN-95,000 LBS. |
| BEFORE BAGGER BIN-95,000 LBS. |
| BIN SPIRAL LETDOWNS (5) |
| DUMP HOPPER AND UNLOAD CONVEYOR |
| DUMP HOPPER AND SUPPORT FRAME |
| UNLOAD CONVEYOR - BIN - 10'0" |
| UNLOAD CONVEYOR - BIN TRANSFER - 40'0" |
| ROTARY VALVE AND LIN ACT. BEFORE SCARFIER #1 |
| ROTARY VALVE AND LIN ACT. BEFORE SCARFIER #2 |
| COLLECTING CONVEYOR - SCARFIER - 10'0" |
| TRANS CONVEYOR TO BM&M CLEANER |
| BM&M CLEANER |
| #1 Treating D-Leg Elevator 55' Main Dump |
| #2 Treating D-Leg Elevator 55' After Scarifier |
| #3 Treating D-Leg Elevator 55' After CMS |
A-10
| #4 Treating D-Leg Elevator 12' between CMS |
| REBUILD SCARFIER #1 |
| REINSTALL SCARFIER |
| REBUILD SCARFIER #2 |
| REINSTALL SCARFIER #2 |
| BUILDING DUST SYSTEM |
| NEW BAG INCLINE CONVEYOR |
| NEW BAG CONVEYOR THRU WALL |
| REINSTALL PACING CONVEYOR |
| NEW POWER TURN CONVEYOR |
| REINSTALL STRETCH WRAPPER |
| WEIGHT BELT FEEDER |
| CMS TREAT SYSTEM - DRUM #1 & #2 |
| CMS TREAT SYSTEM - STAND #1 & #2 |
| CMS TREAT SYSTEM - DRUM #3 |
| CMS TREAT SYSTEM - STAND #3 |
| CMS ALLAN BRADLEY PLC PROGRAMMING |
| CMS RAYTEX TEMPERATURE SENSOR |
| INLET FAN - DRUM #1 & #2 |
| INLET FAN - DRUM #3 |
| SYSTEM DUCTWORK |
| PROCESS HEATER - DRUM #1 & #2 |
| PROCESS HEATER - DRUM #3 |
| CMS NITROGEN GOLD PROD FEEDER |
| CMS PUMP-MIX TRANSFER |
| CMS - FILTERS |
| CMS POLYMER PUMP - TRANSFER MIX |
| CMS APRON PUMP - MIX TRANSFER |
| CMS APRON - FILTERS |
| CMS MICRO-MOTION FLOWMETER |
| CMS MICRO-MOTION FLOWMETER |
| CMS MICROMOTION FLOWMETER |
| POLYMER MIX/STAND - NURSE |
| APRON MIX TANK/STAND - MIX |
| MIXING TANK/STAND - MIX |
| MIXING TANK/STAND - MIX |
| MIXING TANK/STAND - NURSE |
| APRON-CHEMICAL MIXER - NURSE |
| POLYMER-CHEMICAL MIXER - NURSE |
| CHEMICAL MIXER - #1 |
| 100 HP Air Compressor for CMS |
| AIR DRYER FOR 100 HP Compressor |
| FLUID PIPING-FACILITY |
A-11
| BULK STORAGE - TANK 110,000 LBS. |
| BULK BLOWER PACKAGE |
| Bulk - Rotary Feeder |
| BULK - TRANSFER PIPING |
| BULK POLY - POLYMER ROTARY FEEDER |
| BULK POLY - ROTARY FEEDER W/AUGER |
| BULK POLY - POLYMER SCALE HOPPER |
| BULK POLY - POLY DIGITAL CONTROL SYSTEM |
| BULK SCALE HOPPER - Polymer |
| BULK - FILL/PASS VALVE |
| BULK - ROTARY VALVE |
| Wall & Overhead Door-Warehouse E |
| PARTNER PLUS PHONE SYSTEM |
| FIRE AND SECURITY |
| SPEEDFLO PT4500 AIRLESS PAINT SPRAYER |
| PLASMA CUTTER |
| MILLER SHOPMASTER COMBO |
| PACKING CHECK WEIGHT SCALE (#1) |
| NATIONAL 48" BOX AND PAN BREAK |
| LAN WIRING |
| Cond Equip Installation - Small Line |
| WATER SYSTEM-POTABLE |
| SEPTIC SYSTEM |
| GAS SYSTEM-NATURAL |
| PKG OFFICE |
| PKG OFFICE |
| PLUMBING FIXTURES, PKG OFFICE |
| ELECTRICAL FIXTURES, WAREHOUSE C |
| ELECTRICAL, TREATING TOWER |
| FIRE AND SECURITY ALARMS |
| ELECTRICAL, CONDITIONING LINE #2 |
| PKG TOWER CONSTRUCTION |
| PKG TOWER ROOF |
| FIXTURES, PACKAGING TOWER |
| ELECTRICAL, PACKAGING TOWER |
| 50HP QUINCY AIR COMPRESSOR |
| SECONDARY ELEC-QUINCY AIR COMPRESSOR |
| LASERJET 400N PRINTER/ETHERNET |
| Treater PLC Programming |
| Lan Wiring |
| CMS Retro-fit |
| Flexicon Conveyor-Polymer Bulk Bag System |
| Install Cond Equip-Small Line |
A-12
| Mica/Polymer Delivery Sys Modification |
| Steel Seed Bins |
| Box Washer |
| Reinstall Dust Baghouse-Treating Area |
| Bulk Bin |
| D3 Elevator |
| Car Unloader Conveyor |
| Electrical-Bulk Receiving |
| Tag-It-System |
| Wire Feed Welder |
| Iron Worker |
| Bulk Bag Hanger |
| Mica Transfer Sys-Bulk Bags to Stg Tank |
| GPS Recording Equipment |
| Re-Install Cleaner/Scalper |
| Typewriter |
| CMS Programming |
| Primary Elec-Office Construction |
| Irrigation-New Office |
| Parking-New Office |
| Landscaping-New Office |
| Office Bldg-General Construction |
| Office-Interior Finishes |
| Office-Mechanical Construction |
| Office-Electrical Construction |
| Telephone/Data-Office Construction |
| Security-Office Construction |
| Interior Doors/Hardware-Office Construction |
| Carpet/Tile-Office Construction |
| Furniture-Office Construction |
| Lab Remodel-Gen Construction |
| Elec-Lab/Breakroom Remodel |
| Furnace/Air Conditioner-Lab/Breakroom Remodel |
| Carpet/Tile-Lab/Breakroom Remodel |
| Eriez Magnetic Separator and Mixer |
| Pioneer Signage |
| Confined Space Air Monitor |
| Chain Hoist |
| Vertical Mill |
| Band Saw |
| Weather Loggers |
| Binocular Microscopes |
| Sample Divider |
A-13
| Elec Monitors/Controllers in Treating |
| Elevator-Treating |
| Heater-Treater |
| Elec Monitors & Controls-Treating |
| Control Bridge Installation |
| Miller Retrieval Units |
| Inspection Vibrator |
| Portable Scales |
| Warehouse, Security and Emergency Lighting |
| Warehouse, Security and Emergency Lighting Install |
| Phone System |
| Water Activity Meter |
| 75 HP Quincy Air Compressor |
| Automatic External Defibrillator |
| Westrup Upgrades for Frequency Drives |
| 4x4 Utility Vehicle - Kawasaki Mule |
| Upgrade to Dust Collection System |
| Proximity Sensors for Conditioning |
| Lawn Mower |
| Water and Oil Separator for Compressors |
| 60 HP Quincy Air Compressor |
| Padmount Transformer and Switchgear |
| Gravity Valve Sample System |
| Velvet Roll Feed Automation |
| Gravity Feed Automation |
| Scissor Lift |
| Tag Burster |
| Panel View for Treating System |
| HP Bag Lip Code Printer |
| Conditioning Airlift Conveyor |
| Mac Dust System and Ducting (32 cartridge) |
| Colorant Scale |
| Relocate clipper for Small Line Automation |
| Electrical and Proximity Sensors-Small Line Automa |
| Programming for Small Line Automation |
| FANUC Palletizer - FANUC 410iB Robot & equip |
| FANUC Palletizer - Programming |
| FANUC Palletizer - Conveying equipment |
| FANUC Palletizer - Secondary electrical |
| FANUC Palletizer - Refurbish equipment |
| FANUC Palletizer - Safety fencing & systems |
| Monosem Planter (alfalfa) |
| Metal Shear Hydraulic 52" |
A-14
| Germinator / Growth chamber |
| Treat batch mixing upgrades |
| Conditioning vacuum |
| FORMAX CUTTER FD572 (print-on-demand) |
| HP LaserJet 9050dn - Printer (print-on-demand) |
| FORMAX CUTTER FD572 (print-on-demand) |
| FORMAX CUTTER FD572 (print-on-demand) |
| Lanier LD550 C Copier / Printer |
| Bag lip printer |
| Bulk Unloading Conveyors |
| Gravity 1 Serial # 8455 |
| Gravity 2 Serial # 8456 |
| Gravity 3 Serial # 8457 |
| Gravity 4 Serial # 13716 |
| Donaldson/Torit Serial # 3194794-2 |
| Donaldson/Torit Serial # Reinbeck 1 |
| Donaldson/Torit Serial # 3194794-1 |
| Donaldson/Torit Serial # Reinbeck 2 |
| Main Water Vault & well house |
| Well house backup generator |
| Thiele Bag Hanger |
| 16' Flat Belt Bagging Conveyor |
| 36" Flat Belt Bagging Conveyor |
| 72" Flat Belt Bagging Conveyor |
| Bag Kicker w/ 48" conveyor |
| Fischbein 400T-NS Sewing Machine |
| Fischbein-Inglett 3920 Tag Hanger |
| Wulftech SMH-200 Stretch Wrapper |
| Control Logix Processor Pallet conveyors |
| Apron Micro Motion flow meter |
| Reyco Airlift Receiver for mainline |
| Control logix module in treating |
| Waste water recovery - treating |
| Clean Seed Airlift Small line |
| Color Sorter |
| Sharp MX5111N copier/printer |
| Concrete pad of air systems |
| Steel Boxes(280) |
| Donaldson/Torit Air System |
| Box Dump |
| Donaldson/Torit dust collector |
| Air ducting |
| Donaldson Torit dust collector |
A-15
| Reyco airlift |
| Reyco receiver |
| Air ducting |
| DRO for mill |
| Case loader for tractor |
| Air ducting to dust collector (gravities) |
| Labor and materials to install Forsberg Gravity |
| Air Screen Crippen gx360 |
| Box dump |
| Torit Dust Collector |
| Fluke Thermal Imager |
| Treater Micro Motion |
| Treater Micro Motion |
| WELDER/COMPRESSOR/GENERATOR COMBO UNIT |
| 329 Steel Boxes |
| Bagging Scales - Mainline |
| SMALL LINE BOX DUMP AND DUST COLLECTOR |
| Parent alfalfa seed room |
| UPGRADE PROCESSORS TO ETHERNET CAPABILITY |
| ELEC TRICAL INSTALL FOR PARENT ALFALFA CONDITIIONI |
| PARENT SEED CONDITIONING EQUIPMENT |
| phone upgrade-training area |
| chairs-training area |
| training area remodel |
| waste water treatment - Moved to asset @ 12/31 |
| SAFETY EXIT DOOR - Asset @ 12/31 |
| WASTE WATER RECLAIM SYSTEM - Asset @ 12/31 |
| BAG SPLITTER |
| ELECTRICAL-BAG SPLITTER |
| PAINT BLDG ADDITION |
| COLD STORAGE #1 |
| ELECTRICAL, COLD STORAGE #1 |
| STEEL BLDG W/ CANOPY |
| PARENT SEED ROOM |
| WAREHOUSE/ADD 25X160-PJP6529 |
| REMODEL WAREHOUSE P8622 |
| WAREHOUSE EXPANSION |
| NORTH CONDITIONING DOOR |
| WAREHOUSE EXPANSION-FOUNDATION |
| SHOP CONCRETE FLOOR |
| SHOP |
| WAREHOUSE A OVERHEAD DOOR |
A-16
| SHOP |
| SHOP CONCRETE FLOOR |
| ELECTRICAL FIXTURES, WAREHOUSE A |
| ELECTRICAL FIXTURES, WAREHOUSE B |
| WAREHOUSE B |
| COVERED LOADING DOCK/CONCRETE APPROACH |
| DOCK LEVELERS |
| ELECTRICAL, BREAK ROOM |
| DOOR ON WAREHOUSE |
| SAFETY EMERGENCY LIGHTING |
| ELECTRICAL, WAREHOUSE D & E |
| ELECTRICAL, TREATING ROOM |
| TREATING TOWER |
| WAREHOUSE C |
| TREATING TOWER |
| WAREHOUSE C ROOF |
| 18X38 TREATMENT SOLUTION RETENTION BLDG |
| MECHANICAL PLUMBING-RETENETION BLDG |
| SECONDARY ELEC-RETENTION BLDG |
| CONCRETE PAD W/RETAINING WALL-RETENTION BLDG |
| Warehouse Roof Replacement |
| New Warehouse Roof |
| 2 RF Antennas in Warehouse |
| Emergency Exit Doors |
| Refrigeration Unit - Cold Storage #3 |
| Roof on CS3 |
| HVAC for CS2 |
| 03 HYSTER S50XM FORKLIFT |
| HYSTER FORKLIFT S60XM |
| WMS Forklift Mounts |
| WMS fork truck mount units |
| Overhead door |
| Concrete floor for Parent alfalfa seed equipment |
| WMS units for new forktrucks |
| DOCK LOCKS FOR RECEIVING/SHIPPIING TRUCK SAFETY |
| 6 ROW PRECISION PLANTER |
| 6 ROLL-RICE VELVET R |
| 6 ROLL-RICE VELVET ROLLS |
| #27 CLIPPER CLEANER |
| #27 CLIPPER CLEANER |
| BAGGING & HANDLING E |
| BAGGING & HANDLING EQUIP |
| VICTOR 4-DRAWER FILE |
A-17
| SEED BAG & WEIGH SYS |
| 52-S 8 ROLL DODDER VELVET MILL |
| GRAVITY SEPARATOR #7 |
| BAGGING SCALE |
| Name - Arlington Plant Site |
| ELECTRONIC BALANCE |
| FIMCO SPRAYERW/65 GAL TANK |
| LAND-15 ACRES-CURRIE |
| FORD 1510 DIESEL 4WD TRACTOR |
| HEGE 80 PLOT PLANTER |
| HEGE 80 PLANTER MODIFICATION |
| SHAKER & PLATFORM |
| AUTOCLAVE |
| STEREOMICROSCOPE SYSTEM W/ LIGHT SOURCE |
| LAMINAR FLOW HOOD |
| COMPOUND MICROSCOPE |
| SEED CLEANER |
| GREENHOUSES (2) |
| BLDG. SITE PREP. |
| BLDG SITE PREPARATION |
| OFFICE/LAB BLDG. |
| OFFICE/LAB BUILDING |
| SHOP DECK |
| ELECTRICAL IMPROVEMENT |
| SEEDER/PLOT DRILL |
| INCUBATOR |
| ELECTRONIC SCALE |
| PERISTALTIC PUMP |
| GREENHOUSE ROOF REPAIR |
| DRYING OVEN |
| GROWTH CHAMBER |
| IRRIGATION WELL |
| IRRIGATION PUMP |
| MODIFICATION-HEGE 80 PLANTER |
| FORD 1520 TRACTOR W/4WD |
| GROWTH ROOM Modification |
| BUILDING MAINTENANCE |
| FORAGE HARVESTER |
A-18
| MODINE HEATER UNIT |
| VICON FERTILIZER SPREADER |
| PLOT HARVESTER |
| SEED THRESHER |
| SEED THRESHER |
| GROWTH ROOM HVAC |
| GREENHOUSE ROOF REPLACEMENT |
| GREENHOUSE HEATER |
| CHEMICAL STORAGE CABINET |
| DUST COLLECTION SYSTEM |
| DRYER REPLACMEMENT INSTALLATION |
| WILEY MILL |
| GREENHOUSE INSULATION |
| GREENHOUSE HEATER |
| HARVESTER UPGRADE |
| GROWTH ROOM HVAC UPGRADE |
| ALFALFA HARVESTER |
| LAB HOMOGENIZER |
| GREENHOUSE SHADE CLOTH |
| PORTABLE DUST COLLECTION SYSTEM |
| FLAIL MOWER |
| High Power Washer |
| Flail Mower |
| Kuhn Rototiller |
| LAND - 5 ACRES ARLINGTON, WI |
| AED Unit |
| Irrigation System Upgrade |
| Allegro Field PC |
| Backup Generator |
| Alfalfa GH Exp - Site Utils |
| Alfalfa GH Exp - Gen Constr |
| Alfalfa GH Exp - Mechanical |
| Alfalfa GH Exp - Electrical |
| Alfalfa GH Exp - Safety/Security |
| Alfalfa GH Exp - Lauer Rolling Benches |
| Greenhouse Benches |
| Gooseneck trailer, 83"x32'x4' |
| Parking lot concrete work |
| Lab remodel |
| Growth room lighting |
| Snow Slide Prefention Roof main building |
| Chem Store Bldg/Arlington |
| Card Access Sys/Arlington |
A-19
| LD180 seed thresher |
| ASC-3 seed cleaner, stand & side funnel |
| Falc Rotary Tiller Model CS4-1800 (72") |
| Ferris Lawn Mower |
| Landpride FM1488 flail mower |
| Phone System |
| Electrical for office addition |
| Office addition and remodel |
| Elec/Security for Machine Storage Shed |
| Strip topsoil for Machine Storage Shed |
| Concrete for Machine Storage Shed |
| Construct Machine Storage Shed |
| Homogenizer |
| Centrifuge |
| Freeze Dryer |
| Harvest Weigh System |
| Harvest Weigh System |
| Irrigation Safety/Pump upgrade |
| Name - Connell, WA (Leased Premises) |
| SCREEN CAGES |
| BIG OX 8' TERRACER BLADE |
| VOGEL M-2 THRESHER |
| AOC STATIONARY BELT THRESHER |
| SG 30 SEED GERMINATOR |
| ELECTRONIC SCALE |
| SEED GERMINATOR |
| DISSECTING MICROSCOPE |
| SCREEN LIMITE CAGES |
| PLOT DRILL "HEGE 80" W/EXTRA WEIGHTS |
| SOUTH DAKOTA SEED BLOWER |
| BALANCE |
| BEE INCUBATOR |
| FORD 1520 TRACTOR W/LOADER& BUCKET |
| HEDGE 80 PLOT PLANTER |
| BELT THRESHER |
| MICROSCOPE |
| (6) MESH CAGES |
| DRYER BOX |
| BUSH HOG 60" TILLER |
A-20
| ZEBRA PRINTER |
| FORAGE CHOPPER |
| PLANTER MODIFICATIONS FOR ASSET #2216 |
| ALMACO PLOT THRESHER |
| POLLINATING CAGES |
| DISSECTING SCOPE |
| TRACTOR ENGINE REPLACEMENT FOR ASSET #2762 |
| ALFALFA HARVESTER |
| LINEAR IRRIGATION SYSTEM |
| LINEAR IRRIGATION SYSTEM-Modifications |
| LINEAR IRRIGATION SYSTEM-Ramp System |
| 5500 TRACTOR |
| Used Forklift |
| Safety upgrade for harvester for asset #6388 |
| Tiller/Sickle Bar with trade |
| Flail Mower |
| Equipment Trailer |
| 4 - Wheeler |
| Air Compressor/Installation |
| Polaris Ranger 2 x 4 |
| WinterSteiger Thresher |
| Harvest Weigh System & Handheld Device w/ Loadbars |
| TXS65 Thermal Tag Printer-rewinder |
| 2011 Frontier Rototiller 1307R |
| 72 inch flail mower |
| LD180 seed thresher |
| Agriculex ASC-3 seed cleaner
|
| UPGRADE OF LINEAR SYSTEM TO INCLUDE GPS NOZZLE OFF/ON |
| HARVEST MASTER MIRUS WEIGHT SYSTEMS ) |
| PANASONIC TOUGHPAD |
| JOHN DEER 8300 GRAIN DRILL |
| DOMRIES 8 FT DISC |
| 8.5 FT RING PACKER |
| 7 FT RING PACKER |
| 7 FT SPRING SHANK CHISEL |
| JOHN DEER 50 BOX SCRAPER |
| HAY FORKS LOADER ATTACHMENT |
| PALLETT FORK LOADER ATTACHMENT |
| FIELD TRANSPLANTER HOME MADE |
| LAND PRIDE 7 FT TINE HARROW |
| CATLIN MFG GOPHER POISON MACHINE |
| 10 FT LAND PLANE |
A-21
| 8 FT ROD WEEDER |
| RANKIN 3 TOOTH 7 FT RIPPER |
| 2 MISC TOOL BARS W ITH SHOVELS |
| JOHN DEER 3 BOTTOM ROLL OVER PLOW |
| PIPE TRAILER |
| JOHN DEER ROW MARKER |
| HOME MADE ROW MARKER |
| FUEL TANK GAS/DIESEL ON TRAILER |
| NEW HOLLAND 520 MANURE SPREADER |
| OLDER MANURE SPREADER MAKE UNKNOWN |
| 3" X 40' ALUMINUM HANDLINE APPROX 150 EA |
| 3 PT SPRAYER WITH POLY TANK HERBICIDE |
| 3 PT SPRAYER WITH POLY TANK PESTICIDE |
| 30 FT SPRAY BOOM |
| BRABER DRY FERTILIZER SPREADER 3 PT |
| MT MECHANICAL TRANS PLANTER |
| EMGLOW 5HP AIR COMPRESSOR |
| LD 350 SEED THRASHER |
| 1987 JACOBSEN BUMPER PULL EQUIP TRAILER |
| 2002 WALTON GOOSNECK EQUIP TRAILER |
| SCREENED CAGE TOPS WITH FRAME WORK
|
A-22
| VIN | Year | Manufacturer | Make | Model |
| 1FTFW1ET5DKE25192 | 2013 | Ford | Ford | F150 XLT |
| 1FT7W2BT4DEA70383 | 2013 | Ford | Ford | F250 XLT |
| 1FTFW1EF0EKD28249 | 2014 | Ford | Ford | F150 XLT |
| 056655 | 2012 | Other | TRLR | UT TL |
| 1J9DE2H24NF015282 | 1992 | Other |
| 7'x18' Flatbed Tilt Deck |
| 1FTFX1EV8AKA32734 | 2010 | Ford | Ford | F150 XLT |
| 1FDAF57Y78ED02598 | 2008 | Ford | Ford | F550 XLT |
| 1FTPW14V68KE07653 | 2008 | Ford | Ford | F150 XLT |
| 1FTFW1ET6DKD66430 | 2013 | Ford | Ford | F150 XLT |
| 1FTFW1ET4DKE19187 | 2013 | Ford | Ford | F150 XLT |
| 1FDAW5GR6AEB43085 | 2010 | Ford | Ford | F550 XLT |
| 1FDXF46P86EC68617 | 2006 | Ford | Ford | F450 XLT |
| 1FTPX14V28KC96595 | 2008 | Ford | Ford | F150 XLT |
A-23
| VIN | Pre_desc | Year | Make | Model |
| H06 | 2003POWERNESTER | 2003 | Power Nester | Clamp |
| L177V03542G | 2009HYSTERH50FT | 2009 | Hyster | H50FT |
| F187V15245G | 2009HYSTERS50FT189 | 2009 | Hyster | S50FT |
| F187V15251G | 2009HYSTERS50FT189 | 2009 | Hyster | S50FT |
| F187V15250G | 2009HYSTERS50FT189 | 2009 | Hyster | S50FT |
| F187V18593J | 2011HYSTERS50FT83L189 | 2011 | Hyster | S50FT |
| F187V23981L | 2013HYSTERS50FT | 2013 | Hyster | S50FT |
| 38C01651 | 2013POWERBOSS38C | 2013 | Power Boss | 38C |
| F187V23980L | 2013HYSTERS50FT | 2013 | Hyster | S50FT |
| L177V10562K | 2012HYSTERH60FT91L187 | 2012 | Hyster | H60FT |
| 7192412 | 2012CASE55ATRACTOR | 2012 | Farmall | 55A |
| 34459 | 2013KUBOTAB2320TRACTOR | 2013 | Kubota | B2320DTN-1 |
| ZBDD01054 | 2011FARMALLTRACTOR | 2011 | Farmall | 35 |
A-24
Each of the undersigned hereby acknowledges and agrees to the foregoing terms and provisions. By its signature below, each of the undersigned agrees that it will, together with its successors and assigns, be bound by the provisions hereof.
Each of the undersigned agrees that any Lender holding Collateral does so as bailee (under the UCC) for the other Lender which has a Lien on such Collateral and is hereby authorized to and may turn over to such other Lender upon request therefor any such Collateral, after all obligations and indebtedness of the undersigned to the bailee Lender have been fully paid and performed.
Each of the undersigned acknowledges and agrees that: (i) although it may sign this Agreement it is not a party hereto and does not and will not receive any right, benefit, priority or interest under or because of the existence of the foregoing Agreement (except for Section 2.1 thereof and a consent which is deemed to have been given by a Junior Priority Lender under Section 2.10), and (ii) it will execute and deliver such additional documents and take such additional action as may be necessary or desirable in the reasonable opinion of any of the Lenders to effectuate the provisions and purposes of the foregoing Agreement.
|
| S&W SEED COMPANY By: ______________________________________ Administration and Chief Financial Officer
|
|
| SEED HOLDING, LLC By: ______________________________________
|
STEVIA CALIFORNIA, LLC By: ______________________________________
|
Acknowledgment Page to
Intercreditor and Subordination Agreement
