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HomeMy WebLinkAbout01-1965 ,- ~ COMMONWEALTH OF PENNSYLVANIA-UCC1 PARTIES Uniform Commercial Code Form UCC-1 ss: ,.%gway ,Energy Products LLC 333 Butternut Drive DeWitt, t~Z 13214 Or- /~~' CL~ ~ 4< ;o~ I0~ ~7~, :SS: I a and is to be filed with the (check applicable box)' ;s: i-i Secretary of the Commonwealth. _ County. I~ Prothonotary of_Cu~"l'~er 1 and County. !-! real estate records of 6 1 for security interest information: COLLATERAL General Electric Capital Corporation, ipe: as Agent See Schedule I attached hereto and made a part 800 Connecticut Avenue, 2 North hereof. C? "-:~;~ -'-' Norwalk, CT 06854 2 ~C-'- --'" ~ _ -['3 :: . ' ~ ..... I'::~: :'-.3 . . address for security interest information: ~:'~i. :" ; - ;,. ~-.-, . ,~., . . .".'~ ['L: ;."..- t.:-. ?':-' ' ' ' _. . ~: : : ("'i:-' " ~ .. ': 2a ':' ..... ' ...... .---' '; 9 I~! (check only if desired) Products of the collateral are also covered. -~.;; ". ' --- '._. '~ liThe terms 'Debtor and 'Secured Party' mean 'Lessee' and 'Lessor,' Identify related real estate, if applicable: The collateral is, or includes (c ..... appreciate be~X..~s))- respectively, a. li crops growing or to be grown on - I-]The terms 'Debtor and 'Secured Party' mean 'Consignee' and b. r-I goods which are or are to become fixtures on - · Consignor,' respectively, c. !-1 minerals or the like (including oil and gas ) as extracted on - E] Debtor is a Transmitting Utility. d. I-1 accounts resulting from the sale of minerals or the like (including oil and gas) at the wellhead or minehead on- 3 the following real estate: SECURITY PARTY SIGNATURE(S) Street Address: of (check one) I-1 Deeds li Mortgages, at Page(s) This statement is filed with only the Secured Party's signature to pedect Described at: Book _ _ a security interest in collateral (check applicable box(es))- for County. Uniform Parcel Identifier a. I-! acquired after a change of name, identity or corporate structure of - -- the Debtor. I-! Described on Additional Sheet. b. I-'1 as to which the filing has lapsed. Name of record owner (required only if no Debtor has an interest of record): c. already subject to a security interest in another county in Pennsylvania- I'-lwhen the collateral was moved to this county. 10 I'lwhen the Debtor's residence or place of business was moved to this county. DEBTOR SIGNATURE(S) d. already subject to a security interest in another jurisdiction- I-1 when the collateral was moved to Pennsylvania. I-! when the Debtor's location was moved to Pennsylvania. Agway Energy Products LLC e. I-'1 which is proceeds of the collateral described in block 9, in which a I security interest was previously perfected (also describe proceeds in block 9, if purchased with cash proceeds and not adequately described on the original financing statement). 11 lb Secured Party Signature(s) TO: (required only if box(es) is checked above): General Electric Capital Corporation, as Agent ~'~TUP. NTO' ~ ~ - , CT Corporation System - UCC Services - 111 Eighth Avenue, 13th Floor New York, NY !0011 PA 1o 123097 Secretary o Commonwe vania "Credit Agreement" means the Credit. Agreement dated as of March~ 2001, (as amended, restated, supplemented, replaced or otherwise modified from time to time),-~-mong the Debtor, General Electric Capital Corporation, for itself, as lender, and as agent, and the other lenders and parties signatory thereto from time to time. "Disbursement Accounts" has the meaning ascribed to it in Annex C of the Credit Agreement. "Documents" means all "documents," as such term is defined in the Code, now owned or hereafter acquired by the Debtor, wherever located. "Energy Product Inventory" means all fuel, petroleum and energy products, including without limitation, heating oil, propane, natural gas, kerosene, diesel fuel and gasoline, now owned or hereafter acquired by the Debtor. "Equipment" means all "equipment," as such term is defined in the Code, now owned or hereafter acquired by Debtor, wherever located and, in any event, including all Debtor's machinery and equipment, including processing equipment, conveyors, machine tools, data processing and computer equipment, including embedded software and peripheral equipment and all engineering, processing and manufacturing equipment, office machinery, furniture, materials handling equipment, tools, attachments, accessories, automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor vehicles, rolling stock and other equipment of every kind and nature, trade fixtures and fixtures not forming a part of real property, together with all additions and accessions thereto, replacements therefor, all parts therefor, all substitutes for any of the foregoing, fuel therefor, and all manuals, drawings, instructions, warranties and fights with respect thereto, and all products and proceeds thereof and condemnation awards and insurance proceeds with respect thereto. "Farm Products" means all "farm products" as such term is defined in the code, now owned or hereafter acquires by the Debtor, including but not limited to livestock and feeds. "Fees" means any and all fees payable to Agent or any Lender pursuant to the Credit Agreement or any of the other Loan Documents. "Fixtures" means all "fixtures" as such term is defined in the Code, now owned or hereafter acquired by the Debtor. "GE Capital" means General Electric Capital Corporation, a New York corporation. "General Intangibles" means all "general intangibles," as such term is defined in the Code, now owned or hereafter acquired by any Debtor, including all right, title and interest that such Debtor may now or hereafter have in or under any Contract, all payment intangibles, customer lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor and · reissues, extensions or renewals thereof, fights in Intellectual Property, interests in partnerships, joint ventures and other business associations, licenses, permits, copyrights, trade secrets, proprietary or confidential information, inventions (whether or not patented or patentable), technical information, procedures, designs, knowledge, know-how, software, data bases, data, STM/191115.3 skill, expertise, experience, processes, models, drawings, materials and records, goodwill (including the goodwill associated with any Trademark or Trademark License), all fights and claims in or under insurance policies (including insurance for fire, damage, loss and casualty, whether covering personal property, real property, tangible rights or intangible fights, all liability, life, k.e.y man and b.us~nes, s ~ntermp?on ~ns~ance, and all unearned premiums), uncertificated securmes, chooses ~n action, deposit, checking and other bank accounts, rights to receive tax refunds and other payments, rights to receive dividends, distributions, cash, Instruments and other property in respect of or in exchange for pledged Stock and Investment Property, fights of indemnification, all books and records, correspondence, credit files, invoices and other papers, including without limitation all tapes, cards, computer nms and other papers and documents in the possession or under the control of such Debtor or any computer bureau or service company from time to time acting for such Debtor. uooas means all "goods" as defined in the Code, now owned or hereafter acquired by the Debtor, including embedded software. "Governmental AuthoritT" means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. _ struments means all "' ,, -- ~nstmments, as such term is defined in the Code, now owned or hereafter acquired by the Debtor, wherever located, and, in any event, including all certificates of deposit, and all notes and other, without limitation, evidences Of indebtedness, other than instruments that constitute, or are a part of a group of whtings that constitute, Chattel Paper. "I__ntellectual Pror>ert~" means any and all Licenses, Patents, Copyrights, Trademarks, and the goodwill associated with such Trademarks. "Intellectual Pro e Securi A eement" means the Intellectual Property Security Agreement made in favor of Agent, on behalf of itself and Lenders, by Debtor and others, as amended from time to time. "I__ntercommnv Notes" has the meaning ascribed to it in Section 6.3 of the Credit Agreement. -- _ "Inventor~" means all "inventory," as such term is defined in the Code, now owned or hereafter acquired by the Debtor, wherever located, and in any event including inventory, merchandise, goods and other personal property that are held by or on behalf of the Debtor for sale or lease or are furnished or are to be furnished under a contract of service, or that constitute raw materials, work in process, finished goods, returned goods, or materials or supplies of any kind, nature or description used or consumed or to be used or consumed in the Debtor's business or in the processing, production, packaging, promotion, delivery or shipping of the same, including other supplies and embedded software. "I__nnvestment Property" means all "investment property" as such term is defined in the Code now owned or hereafter acquired by the Debtor, wherever located, including (i) all securities, whether certificated or uncertificated, including stocks, bonds, interests in limited STM/191115.3 liability companies, partnership interests, treasuries, certificates of deposit, and mutual fund shares; (ii) all securities entitlements of the Debtor, including the rights of the Debtor to any securities account and the financial assets held by a securities intermediary in such securities account and any free credit balance or other money owing by any securities intermediary with respect to that account; (iii) all securities accounts of the Debtor; (iv) all commodity contracts of the Debtor; and (v) all commodity accounts held by the Debtor. "Lender______ s" means GE Capital, the other Lenders named on the signature pages of the Credit Agreement, and, if any such Lender shall decide to assign all or any portion of the Obligations, such term shall include any assignee of such Lender. "~" means any Copyright License, Patent License, Trademark License or other license of fights or interests now held or hereafter acquired by the Debtor. "Lien" means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the Code or comparable law of any jurisdiction). "Loan Document_s" means the Credit Agreement, the Notes, the Collateral Documents, the Master Standby Agreement and all other agreements, instruments, documents and certificates identified in the Closing Checklist executed and delivered to, or in favor of, Agent or any Lenders and including all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Debtor, or any employee of any Debtor, and delivered to Agent or any Lender in connection with the Credit Agreement or the transactions contemplated thereby. Any reference in the Credit Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to the Credit Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative. "Master Standby A~eemen3" means the Master Agreement for Standby Letters of Credit dated as of the Closing Dat~ among the Debtor, as Applicant(s), and GE Capital, as issuer. "Morteaeed P · o,, Agreement. _ _ ropert~es has the meaning assigned to it in ~Annex ~D of the Credit "Mort s" _ gage~ means each of the mortgages, deeds of trust, leasehold mortgages, leasehold deeds of trust, collateral assignments of leases or other real estate security documents delivered by Debtor to Agent on behalf of itself and Lenders with respect to the Mortgaged Properties, all in form and substance reasonably satisfactory to Agent. "Notes" means, collectively, the Revolving Notes and the Swing Line Notes. STM/191115.3 "~" means all loans. performance of covenants_ tasVo ^- -,- -. _. advances, debts, li i~i,;,~ - . ' "o ~,~ uunes or tor r~av~ ,,, ,.~,__'__ ~ab ..,,,~s and obhgations for such perforrnanee is then required or contingent, or such amounts are liquidated or determinable) -., -,,-t, un~s (wnether or not Owing by Debtor to Agent or any Lender, and all Covenants and duties regarding such amounts, gf any kind or nature, present or future, whether or not evidenced by any note, agreement or other instnunent, ar/sing under the Agreement or any of the other Loan Documents. This term includes all principal, interest (including all interest that accrues after the cOmmencement of any case or proceeding by or against Debtor in bankruptcy, whether or not allowed in such case or proceed/ng), Fees, Charges, expenses, attorneys' fees and any other sum chargeable to any Debtor under the Credit Agreement or any of the other Loan Documents. ~r-llt~I.Lig, t~l~ means rights under any wr/tten agreement now owned or hereafter acquired by the Debtor granting any right with respect to any invent/on on which a Patent is in existence. ~p - . ~ means all of the following in which the Debtor now holds or herea/~er acquires any interest: (a) all registrations and recordings letters patent of the United States or of any other country, all of any other country, including registrations, recordings and applications in the United States thereof, and all apPlications for letters patent of the United States or Patent and Trademark Office or in any similar office or agency of the United States, any State, or any other country, and (b) all reissues, continuations, · . c°ntinuat~ons.in.part or extensions thereof. "P-P.B__C~" means the Pension Benefit Guaranty Corporation. "~r.~" means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability COmpany, institution, public benefit corporation, other entity municipal, local, foreign, or otherwise, or government (whether federal sta , · department thereof), including any/ns 0,~,o~.. '~,' te county, c~ty, · '"~y, a~v~s~on, agency, body or executed by the ~way t~n~ies in ,~,. ~,c^ ...... g~ cements of even date . · "means the P/edge A ~av... ,,~gent, on ~ehalf of itse .._ he_rew~th Stock or interests, as the case may be, and all Intercompany Notes owing to or held by them, as If and L~nders, pledging all amended from time to time. "Pro- - ,, ,, ~ means proceeds," as such term is defined in the Code, including (a) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Debtor from time to time with respect to any of the Collateral, (b) any and all payments (in any form whatsoever) made or due and payable to the Debtor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any Person acting under color of governmental authority), (¢) any claim of the Debtor against third parties (i) for past, present or future infringement of any Patent or Patent License, or (ii) for past, present or future infringement or dilution of any Copyright, Copyright License, Trademark or Trademark License, or for injury to the goodwill associated with any Trademark or Trademark License, (d) any recoveries by the Debtor against third parties with respect to any litigation or dispute concerning any of the Collateral, (e) dividends, interest, distributions and Instruments with respect to Investment Property and pledged STM/I 91115.3 Stock, and (f) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral, upon disposition or otherwise. ~R · ' ~evo~mng Not~" has the meaning ascribed to it in Section 1.1 (a)/(~ of the Credit Agreement. ~" means the Secur/ty Agreement of even date herewith entered into by and among Agent, on behalf of itself and Lenders, and each Agway Entity that is a signatory thereto, as amended, modified or supplemented from time to time. ~S ' ' ~ aunt>ort~ng~Obhgation~ means a letter-of-credit right or secondary obligation that supports the pa3~ent or performance of an Account, Chattel Paper, a Document, a Genera/ Intangible, an Instrument, or Investment Property. "t~" means all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other "equity security" (as such term is defined in Rule 3a 11-1 of the General Rules and Regulations promulgated by the Secur/ties and Exchange Commission under the Securities Exchange Act of 1934). "_S__wing Line Note" has the meaning ascribed to it in Section 1 1 (b)(~ of the Credit Agreement. -- "Trademark Licens_cc,, means rights under any written agreement now owned or hereafter acquired by the Debtor granting any right to use any Trademark. ."Trademarks" means all of the followin . . adopted or acqmred by the Debtor. r ~ ~n ,.~., ..... g.now owned or hereafter ex,stun . ~aj ,,,, ,,auumancs, traae names, co orate ,~,~o ~..._~.g_ or rp na...,~o, uu~mess names, trade styles, service marks, logos, other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature (whether registered or unregistered), all registrations and recordin applications in connection therewith, includim, re,,'~-o- ....... gs.thereof, and all United States Patent and Trademark Office or in any similar office or agency of the United States, o e,~.~.,,,,,~, recora~ngs and applications in the any state or territory thereof, or any other country or any political subdivision thereof; (b) all reissues, extensions or renewals thereof; and (c) all goodwill associated with or symbolized by any of the foregoing. STM/191115.3 SCHEDULE I TO UCC- 1 FINANCING STATEMENT Debtor: Agway Energy Products LLC 333 Butternut Drive Dewitt, New York 13214 Secured Party: General Electric Capital Corporation, as Agent 800 Connecticut Avenue, 2 North Norwalk, Connecticut 06854 This financing statement covers all of the Debtor's right, title and interest in, to and under the following property, whether now owned by or owing to, or hereafter acquired by or arising in favor of the Debtor (including under any trade names, styles or derivations thereof), and whether owned or consigned, by or to, or leased from or to, the Debtor, and regardless of where located (all of which being hereinafter collectively referred to as the"Collateral"): (i) all Accounts; (ii) all Chattel Paper; (iii) all Contracts; (iv) all Documents; (v) all Equipment; (vi) all Farm Products; (vii) all Fixtures; (viii) all General Intangibles; (ix) all Goods; (x) all Instruments; (xi) all Inventory (including all Energy Product Inventory); (xii) all Investment Property; (xiii) all Blocked Accounts, Concentration Accounts, depository accounts, Disbursement Accounts, and all other deposit and other bank accounts and all deposits therein; (xiv) all money, cash or cash equivalents; STM/191115.3 (xv) all Supporting Obligations; (xvi) any Commercial Tort Claims; and (xvii) to the extent not otherwise included, all Proceeds and products of the foregoing and all accessions to, substitutions and replacements for, and rents and profits of, each of the foregoing (including insurance proceeds). The following terms shall have the meanings herein specified unless the context otherwise requires (such definitions to be equally applicable to the singular and plural forms of the terms defines). "Accounts" means all "accounts," as such term is defined in the Code, now owned or hereafter acquired by any Debtor, including (a) all accounts receivable, other receivables, book debts and other forms of obligations (other than forms of obligations evidenced by Chattel Paper, Documents or Instruments), whether arising out of goods sold or services rendered by it or from any other transaction (including any such obligations that may be characterized as an account or contract right under the Code), (b) all of Debtor's fights in, to and under all purchase orders or receipts for goods or services, (c) all of Debtor's fights to any goods represented by any of the foregoing (including unpaid sellers' rights of rescission, replevin, reclamation and stoppage in transit and fights to returned, reclaimed or repossessed goods), (d) all monies due or to become due to Debtor, under all purchase orders and contracts for the sale of goods or the performance of services or both by Debtor or in connection with any other transaction (whether or not yet earned by performance on the part of Debtor), including the fight to receive the proceeds of said purchase orders and contracts, (e) all health care insurance receivables and (f) all collateral security and guaranties of any kind, given by any Account Debtor or any other Person with respect to any of the foregoing. "Account Debtor" means any Person who may become obligated to the Debtor under, with respect to, or on account of, an Account. "Agent" means GE Capital in its capacity as Agent for Lenders or its successor appointed pursuant to Section 9.7 of the Credit Agreement. "Agway Entities" means Agway, Inc., Agway Holdings Inc., Agway Financial Corporation, Feed Commodities International LLC, Milford Fertilizer Company LLC, Brubaker Agronomic Consulting Service LLC, Agway General Agency, Inc., Country Best Adams, LLC, Country Best-DeBerry LLC, Agway Energy Products LLC, Agway Energy Services-PA, Inc., and Agway Energy Services, Inc. "Blocked Accounts" has the meaning ascribed to it in Annex C of the Credit Agreement. "Charges" means all federal, state, county, city, municipal, local, foreign or other governmental taxes (including taxes owed to the PBGC at the time due and payable), levies, assessments, charges, liens, claims or encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c) the employees, payroll, income or gross receipts of Debtor, (d) Debtor's ownership or use of any properties or other assets, or (e) any other aspect of Debtor's business. STM/I 91115.3 "Chattel Paper" means any "chattel paper," as such term is defined in the Code, including electronic chattel paper, now owned or hereafter acquired by the Debtor, wherever located. "C1 ' _ os~ng Checklis_t" means the schedule, including all appendices, exhibits or schedules thereto, listing certain documents and information to be delivered in connection with the Credit Agreement, the other Loan Documents and the transactions contemplated thereunder, substantially in the form attached hereto as ~Annex D to the Credit Agreement "C de" ~ means the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in the State of New York; gr_o._c_d_~, that in the event that, by mason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, Agent's or any Lender's Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term "Code" shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions. "Collateral Document~" means the Security Agreement, the Pledge Agreements, the Mortgages, the Intellectual Property Security Agreement and all similar agreements entered into guaranteeing payment of, or granting a Lien upon property as security for payment of, the Obligations. "Commercial Tort Claim_" means a claim arising in tort with respect to which: (a) the claimant is an organization; or (b) the claimant is an individual and the claim: (i) arose in the course of the claimant's business or profession; and (ii) does not include damages arising out of personal injury to or the death of an individual. ~&C ' ° _oncentration Accounts" has the meaning ascribed to it in Annex C of the Credit Agreement. - _ "Contract~" means all "contracts," as such term is defined in the Code, now owned or hereafter acquired by Debtor, in any event, including all contracts, undertakings, or agreements (other than rights evidenced by Chattel Paper, Documents or Instruments) in or under which Debtor may now or hereafter have any right, title or interest, including any agreement relating to the terms of payment or the terms of performance of any Account. "Co ' - _ pynglat License" means any and all rights now owned or hereafter acquired by any Debtor under any written agreement granting any right to use any Copyright or Copyright registration. "COD- ' '-~q" _. yngnt~ means all of the following now owned or hereafter adopted or acquired by any Debtor: (a) all copyrights and General Intangibles of like nature (whether registered or unregistered), all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the United States Copyright Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any political subdivision thereof, and (b) all reissues, extensions or renewals thereof. STM/I 91115.3