Exhibit 3.37
[Logo} SEAFIRST BANK
COMMERICAL SECURITY AGREEMENT
Borrower: CENTENNIAL FOODS, INC. LENDER: SEATTLE-FIRST NATIONAL BANK
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THIS COMMERCIAL SECURITY AGREEMENT is entered into between CENTENNIAL FOODS,
INC.(referred to below as `Grantor"); and Seattle-First National Bank (referred
to below as "Lender"). For valuable consideration, Grantor grants to Lender a
security Interest in the Collateral to secure the Indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights which Lender may have by law.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement:
AGREEMENT. The "Agreement" means this Commercial Security Agreement, as
may be modified from time to time, together with all exhibits and schedules
attached to this Commercial Security Agreement from time to time.
COLLATERAL. The word "Collateral" means the following described
property of Grantor, whether now owned or hereafter acquired, whether now
existing for hereafter arising, and wherever located:
ALL EQUIPMENT, MACHINERY, FURNITURE AND FIXTURES, COMPLETE
WITH ATTACHMENTS, PARTS AND ACCESSORIES, NOW OWNED OR
HEREAFTER ACQUIRED BY DEBTOR OR IN WHICH DEBTOR HAS RIGHTS.
SEE ATTACHED EXHIBIT `A' FOR LEGAL DESCRIPTION OF REAL
PROPERTY TO WHICH FIXTURES ARE ATTACHED.
In addition, the word "Collateral" includes all the following, whether
now owned or hereafter acquired, whether now existing or hereunder arising, and
wherever located:
(a) All attachments, accessions, tools, parts, supplies,
increases, and additions to and all replacements of and
substitutions for any property described above.
(b) All products and produce of any of the property described
in this Collateral section.
(c) All accounts, contract rights, general intangibles,
instruments, monies, payments, and all other rights, arising
out of a sale, lease, or other disposition of any of the
property described in this Collateral section.
(d) All proceeds (including insurance proceeds) from the sale
or other disposition of any of the property described in this
Collateral section.
(e) All records and data relating to any of the property
described in this Collateral section, whether in the form of a
writing, photograph, microfilm, microfiche, or electronic
media, together with all of Grantor's right, title, and
interest in and to all programming and software required to
utilize, create, maintain, and process any such records or
data on electronic media.
Event of Default. The words "Event of Default" mean and include any of
the Events of Default set forth below in the section titled "Events of Default."
Grantor. The word "Grantor" means CENTENNIAL FOODS, INC.
Guarantor. The word "Guarantor" means and includes without limitation
all guarantors, sureties, and accommodation parties.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced
by the Note, including all principal and interest, together with all other
indebtedness and costs and expenses for which Grantor is responsible under this
Agreement or under any of the Related Documents. In addition, the word
"Indebtedness", includes all other obligations, debts and liabilities, plus
interest thereon, of Grantor, or any one or more of them, to Lender, as well as
all claims by Lender against Grantor or any one or more of them, whether
existing now or later: whether they are voluntary or involuntary, due or not
due, direct or indirect, absolute or contingent, liquidated or unliquidated;
whether Grantor may be liable individually or jointly with other; whether
Grantor may be obligated as guarantor, surety, accommodation party or otherwise;
whether recovery upon such indebtedness may be or hereafter may become barred by
any statute of limitations; and whether such indebtedness may be or hereafter
may become otherwise unenforceable.
Lender. The word "Lender" means Seattle-First National Bank, its
successors or assigns.
Note. The word "Note" means the note or credit agreement dated November
9, 1990 in the principal amount of $1,184,000.00 from Grantor to Lender,
together with all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
Related Documents. The words "Related Documents" mean and include
without limitation all promissory notes, credit agreements, loan agreements,
guaranties, security agreements, mortgages, deeds of trust, and all other
documents, whether now or hereafter existing, executed in connection with
Grantor's Indebtedness to Lender.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as follows:
Perfection of Security Interest. Grantor agrees to execute financing
statements and to take whatever other actions are requested by Lender to perfect
and continue Lender's security interest in the Collateral. Upon request of
Lender, Grantor will deliver to Lender any and all of the documents evidencing
or constituting the Collateral, and Grantor will note Lender's interest upon any
and all chattel paper if not delivered to Lender for possession by Lender.
Grantor hereby appoints Lender as its irrevocable attorney-in-fact for the
purpose of executing any documents necessary to perfect or to continue the
security interest granted in this Agreement. Lender may at any time, and without
further authorization from Grantor, file a carbon, photographic or other
reproduction of this Agreement as a financing g statement. Grantor will
reimburse Lender for all expenses for the perfection and the continuation of the
perfection of Lender's security interest in the Collateral. Grantor will
promptly notify Lender of any change in Grantor's name including any change to
the assumed business names of Grantor. This is a continuing Security Agreement
and will continue in effect even though all or any part of the Indebtedness is
paid in full and even though for a period of time Grantor may not be
indebtedness to Lender.
No Violation Notices. The execution and delivery of this Agreement will
not violate any law or agreement governing Grantor or to which Grantor is a
party, and its certificate or articles of incorporation and bylaws do not
prohibit any term or condition of this Agreement. Grantor will give Lender prior
written notice of any change of either Grantor's legal structure or of any
change of Grantor's chief executive office or if Grantor has no place of
business, Grantor's residence, and change of records location.
Enforceability of Collateral. The Collateral is enforceable in
accordance with its terms, is genuine, and complies with applicable laws
concerning form, content and manner of preparation and execution, and all
persons appearing to be obligated on the Collateral have authority and capacity
to contract and are in fact obligated as they appear to be on the Collateral.
Removal of Collateral. Grantor shall keep the Collateral (or to the
extent the Collateral consists of intangible property such as accounts, the
records concerning the Collateral) at Grantor's address shown above, or at such
other locations as are acceptable to the Lender. Except in the ordinary course
of its business, Grantor shall not remove the Collateral from its existing
locations without the prior written consent of Lender. To the extent that the
Collateral consists of vehicles, or other titled property, and except for sales
of inventory in the ordinary course of its business, Grantor shall not take or
permit any action which would require registration of the vehicles outside the
State of Washington, without the prior written consent of Lender.
Transactions Involving Collateral. Except for inventory sold or
accounts collected in the ordinary course of Grantor's business, Grantor's
business, Grantor shall not sell, offer to sell, or otherwise transfer or
dispose of the Collateral. Grantor shall not pledge, mortgage, encumber or
otherwise permit the Collateral to be subject to any lien, security interest,
encumbrance, or charge, other than the security interest provided for in this
Agreement, without the prior written consent of Lender. This includes security
interests even if junior in right to the security interests granted under this
Agreement. Unless waived by Lender, all proceeds from any disposition of the
Collateral (for whatever reason) shall be held in trust for Lender and shall not
be commingled with any other funds; provided however, this requirement shall not
constitute consent by Lender to any sale or other disposition. Upon receipt,
Grantor shall immediately deliver any such proceeds to Lender.
Title. Grantor warrants that it holds good and marketable title to the
Collateral, free and clear of all liens and encumbrances except the lien of this
Agreement. No financing statement covering any of the Collateral is on file in
any public office other than those which reflect the security interest created
by this Agreement or to which Lender has specifically consented. Grantor shall
defend Lender's rights in the Collateral against the claims and demands of all
other persons.
Maintenance and Inspection of Collateral. Grantor shall maintain all
tangible Collateral in good condition and repair. Grantor will not commit or
permit damage to or destruction of the Collateral or any part of the Collateral.
Lender and its designated representatives and agents shall have the right at all
reasonable times to examine, inspect, and audit the Collateral wherever located.
Taxes, Assessments and Liens. Grantor will pay when due all taxes,
assessments and liens upon the Collateral, its use or operation, upon this
Agreement, upon any promissory note or notes evidencing the indebtedness, or
upon any of the other Related Documents. Grantor may withhold any such payment
or may elect to contest any lien if Grantor is in good faith conducting an
appropriate proceeding to contest the obligation to pay and so long as Lender's
interest in the Collateral is not jeopardized. If the Collateral is subjected to
a lien which is not discharged within fifteen (15) days, Grantor shall deposit
with Lender cash, a sufficient corporate surety bond or other security
satisfactory to Lender in an amount adequate to provide for the discharge of the
lien plus any interest, costs, attorneys' fees or other charges that could
accrue as a result of foreclosure or sale of the Collateral. In any contest
Grantor shall defend itself and Lender and shall satisfy any final adverse
judgment before enforcement against the Collateral. Grantor shall name Lender as
an additional obligee under any surety bond furnished in the contest
proceedings.
Compliance With Governmental Requirements. Grantor shall comply
promptly with all laws, ordinances and regulations of all governmental
authorities applicable to the production, disposition, or use of the Collateral.
Grantor may contest in good faith any such law, ordinance or regulation and
withhold compliance during any proceeding, including appropriate appeals, so
long as Lender's interest on the Collateral, in Lender's opinion, is not
jeopardized.
Hazardous Substances. Grantor represents and warrants that the
Collateral never has been, and never will be so long as this Agreement remains a
lien on the Collateral, used for the generation, manufacture, storage,
treatment, disposal, release or threatened release of any hazardous waste or
substances, as those terms are defined in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section
6901, et seq., or other applicable state of Federal laws, rules, or regulations
adopted pursuant to any of the foregoing. The representations and warranties
contained herein are based on Grantor's due diligence in investing the
Collateral for hazardous waste. Grantor hereby (a) releases and waives any
future claims against Lender for indemnity or contribution in the event Grantor
becomes liable for cleanup or other costs under any such laws, and (b) agrees to
indemnify and hold harmless Lender against any and all claims and losses
resulting from a breach of this provision of this Agreement. This obligation to
indemnify shall survive the payment of the Indebtedness and the satisfaction of
this Agreement.
Maintenance of Casualty Insurance. Grantor shall procure and maintain
all risks insurance, including without limitation fire, theft and liability
coverage together with such other insurance as Lender may require with respect
to the Collateral, in form, amounts, coverage and basis reasonably acceptable to
Lender and issued by a company or companies reasonably acceptable to Lender.
Grantor, upon request of Lender, will deliver to Lender from time to time the
policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least
ten (10) days prior written notice to Lender. In connection with all policies
covering assets in which Lender holds or is offered a security interest for the
Loans, Grantor will provide Lender with such loss payable or other endorsements
as Lender may require. In no event shall the insurance be in an amount less than
the amount agreed upon in the Agreement to Provide Insurance.
Application of Insurance Proceeds. Grantor shall promptly notify Lender
of any loss or damage to the Collateral. Lender may make proof of loss if
Grantor fails to d so within fifteen (15) days of the casualty. All proceeds of
any insurance on the Collateral, including accrued proceeds thereon, shall be
held by Lender as part of the Collateral. If Lender consents to repair or
replacement of the damaged or destroyed Collateral, Lender shall, upon
satisfactory proof of expenditure, pay or reimburse Grantor from the proceeds
for the reasonable costs of repair or restoration. If Lender does not consent to
repair or replacement of the Collateral, Lender shall retain a sufficient amount
of the proceeds to pay all of the indebtedness, and shall pay the balance to
Grantor. Any proceeds which have not been disbursed within six (6) months after
their receipt and which Grantor has not committed to the repair or restoration
of the Collateral shall be used to prepay the indebtedness.
Insurance Reserves. Lender may require Grantor to maintain with Lender
reserves for payment of insurance premiums, which reserves shall be created by
monthly payments from Grantor of a sum estimated by Lender to be sufficient to
produce, at least fifteen (15) days before the premium due date, amounts at
least equal to the insurance premiums to be paid. If fifteen (15) days before
payment is due, the reserve funds are insufficient, Grantor shall upon demand
pay any deficiency to Lender. The reserve funds shall be held by Lender as a
general deposit and shall constitute a non-interest bearing account which Lender
may satisfy by payment of the insurance premiums required to be paid by Grantor
as they become due. Lender does not hold the reserve funds in trust for Grantor,
and Lender is not the agent of Grantor for payment of the insurance premiums
required to be paid by Grantor. The responsibility for the payment of premiums
shall remain Grantor's sole responsibility.
Insurance Reports. Grantor, upon request of Lender, shall furnish to
Lender reports on each existing policy of insurance showing such information as
Lender may reasonably request including the following: (a) the name of the
insurer; (b) the risks insured; (c) the amount of the value; and (d) the
property insured; (e) the then current value on the basis of which insurance has
been obtained and the manner of determining that value; and (f) the expiration
date of the policy. In addition, Grantor shall upon request by Lender (however
not more often than annually) have an independent appraiser satisfactory to
Lender determine, as applicable, the cash value or replacement cost of the
Collateral.
GRANTOR'S RIGHT TO POSSESSION. Until default, Grantor may have
possession of the tangible personal property and beneficial use of all the
Collateral and may use it in any lawful manner not inconsistent with this
Agreement or the Related Documents, provided that Grantor's right to possession
and beneficial use shall not apply to any Collateral where possession of the
Collateral by Lender is required by law to perfect Lender's security interest in
such Collateral. If Lender at any time has possession of the Collateral by
Lender is required by law to perfect Lender's security interest in such
Collateral. If Lender at any time has possession of any Collateral, whether
before or after an Event of Default, Lender shall be deemed to have exercised
reasonable care in the custody and preservation of Collateral if Lender takes
such action for that purpose as Grantor shall request or as Lender, in Lender's
sole discretion, shall deem appropriate under the circumstances, but failure to
honor any request by Grantor shall not of itself be deemed to be a failure to
exercise reasonable care. Lender shall not be required to take any steps
necessary to preserve any rights in the Collateral against prior parties, nor to
protect, preserve or maintain any security interest given to secure the
Collateral.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may
(but shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without limitation
all taxes, liens, security interests, encumbrances, and other claims, at any
time levied or placed on the Collateral. Lender also may (but shall not be
obligated to) pay all costs for insuring, maintaining and preserving the
Collateral. All such expenditures incurred or paid by Lender for such purposes
will then bear interest at the rate charged under the Note from the date
incurred or paid by Lender to the date of repayment by Grantor. All such
expenses shall become a part of the indebtedness and, at Lender's option, will
(a) be payable on demand, (b) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
either (I) the term of any applicable insurance policy or (ii) the remaining
term of the Note or (c) be treated as a balloon payment which will be due and
payable at the Note's maturity., This Agreement also will secure payment of
these amounts. Such right shall be in addition to all other rights and remedies
to which Lender may be entitled upon the occurrence of an Event of Default.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
Default on Indebtedness. Failure of Grantor to make any
payment when due on the Indebtedness.
Other Defaults. Failure of Grantor to comply with or to
perform any other term, obligation, covenant or condition
contained in this Agreement or in any of the related Documents
or in any other agreement between Lender and Grantor.
False Statements. Any warranty, representation or statement
made or furnished to Lender by or on behalf of Grantor under
this Agreement is false or misleading in any material respect,
either now or at the time made or furnished.
Defective Collateralization. This Agreement or any of the
Related Documents ceases to be in full force and effect
(including failure of any collateral documents to create a
valid and perfected security interest or lien) at any time and
for any reason.
Insolvency. The dissolution or termination of Grantor's
existence as a going business, the insolvency of Grantor, the
appointment of a receiver for any part of Grantor's property,
any assignment for the benefit of creditors, or the
commencement of any proceeding under any bankruptcy or
insolvency laws by or against Grantor.
Creditor Proceedings. Commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other
method, by any creditor of Grantor against the Collateral or
any other collateral securing the indebtedness. This includes
a garnishment of any of Grantor's deposit accounts with
Lender.
Entry of Judgment. Entry of any judgment against Grantor.
Events Affecting Guarantor. Any of the preceding events occurs
with respect to any Guarantor of any of the Indebtedness or
such Guarantor dies or becomes incompetent.
Insecurity. Lender, in good faith, deems itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under
this Agreement, and at any time thereafter, Lender may exercise any one or more
of the following rights and remedies:
Accelerate Indebtedness. Lender may declare the entire
Indebtedness, including any prepayment penalty which Grantor
would be required to pay, immediately due and payable, without
notice.
Assemble Collateral. Lender may require Grantor to deliver to
Lender all or any portion of the Collateral and any and all
certificates of title and other documents relating to the
Collateral. Lender may require Grantor to assemble the
Collateral and make it available to Lender at a place to be
designated by Lender. Lender also shall have full power to
enter upon the property of Grantor to take possession of and
remove the Collateral. If the Collateral contains other goods
not covered by this Agreement at the time of repossession,
Grantor agrees Lender may take such other goods, provided that
Lender makes reasonable efforts to return them to Grantor
after repossession.
Sell the Collateral. Lender shall have full power to sell,
lease, transfer, or otherwise deal with the Collateral or
proceeds thereof in its own name or that of Grantor. Lender
may sell the Collateral at public auction or private sale.
Unless, the Collateral threatens to decline speedily in value
or is of a type customarily sold on a recognized market,
Lender will give Grantor reasonable notice of the time after
which any private sale or any other intended disposition of
the Collateral is to be made. The requirements of reasonable
notice shall be met if such notice is given at least ten (10)
days before the time of sale or disposition. All expenses
relating to the disposition of the Collateral, including
without limitation to the expenses of retaking, holding,
insuring, preparing for sale and selling the Collateral, shall
become a part of the indebtedness secured by this Agreement
and shall be payable on demand with interest at the Note rate
from date of expenditure until repaid.
Appoint Receiver. To the extent permitted by applicable law,
Lender shall have the following rights and remedies regarding
the appointment of a receiver: (a) Lender may have a receiver
appointed as a matter of right. (b) The receiver may be an
employee of Lender and may serve without bond. (c) All fees of
the receiver and his or her attorney shall become part of the
Indebtedness secured by this Agreement.
Collect Revenues. Lender may revoke Grantor's right to collect
the rents and revenues from the Collateral and may, either
itself or through a receiver, collect the rents and revenues.
To facilitate collection, Lender may notify Grantor's account
debtors and obligors on an instrument to make payments
directly to Lender.
Obtain Deficiency. Lender may obtain a judgment against
Grantor for any deficiency remaining on the Indebtedness due
to Lender after application of all amounts received from the
exercise of the rights provided in this Agreement. Grantor
shall be liable for a deficiency even if the transaction
described in this subsection is a sale of accounts or chattel
paper.
Other Rights and Remedies. In addition to Lender's rights and
remedies as a secured creditor under the provisions of the
Washington Uniform Commercial Code, as may be amended from
time to time, Lender shall have and may exercise any or all of
the rights and remedies it may have available at law, in
equity, or otherwise.
Apply Accounts. Lender may hold all Collateral consisting of
accounts with Lender, and Lender may apply the funds in these
accounts to pay all or part of the Indebtedness.
Cumulative Remedies. All of Lender's rights and remedies
whether evidenced by this Agreement or the Related Documents
or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to
pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action
to perform an obligation of Grantor under this Agreement,
after Grantor's failure to perform, shall not affect Lender's
right to declare a default and to exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a
part of this Agreement.
Amendments. This Agreement, together with any Related
Documents, constitutes the entire understanding and agreement
of the parties as to the matters set forth in this Agreement.
No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the party or
parties sought to be changed or bound by the alteration or
amendment.
Applicable Law. This Agreement has been delivered to Lender
and accepted by Lender in the State of Washington. If there is
a lawsuit, Grantor agrees to submit to the jurisdiction of the
courts of King County, State of Washington. This Agreement
shall be governed by and construed in accordance with the laws
of the State of Washington.
Attorneys' Fees; Expenses. Grantor agrees top pay upon demand
all of Lender's costs and expenses, including attorneys' fees
and legal expenses, incurred in connection with the
enforcement of this Agreement. Lender may pay someone else to
help enforce this Agreement, and Grantor shall pay the costs
and expenses of such enforcement. Costs and expenses include
Lender's attorneys' and legal expenses whether or not there is
a lawsuit, including attorneys' fees and legal expenses for
bankruptcy proceedings (and including efforts to modify or
vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Grantor also
shall pay all court costs and such additional fees as may be
directed by the court.
Caption Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret
or define the provisions of this Agreement.
Multiple Parties; Corporate Authority. All obligations of
Grantor under this Agreement shall be joint and several, and
all references to Grantor shall mean each and every Grantor.
This means that each of the persons signing below is
responsible for all obligations in this Agreement. Where any
one or more of the parties are corporations or partnerships,
it is not necessary for Lender to inquire into the powers of
any of the parties or of the officers, directors, partners, or
agents acting or purporting to act on their behalf, and any
Indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this
Agreement.
Notices. All notices required to be given under this Agreement
shall be given in writing and shall be effective when actually
delivered or when deposited in the United States mail, first
class, postage prepaid, addressed to the party to whom the
notice is to be given at the address shown above. Any party
may change its address for notices under this Agreement by
giving formal written notice to the other parties, specifying
that the purpose of the notice is to change the party's
address. To the extent permitted by applicable law, if there
is more than one Grantor, notice to any Grantor will
constitute notice to all Grantors. For notice purposes,
Grantor agrees to keep Lender informed at all times of
Grantor's current address(es).
Severability. If a court of competent jurisdiction finds any
provision of this Agreement to be invalid or unenforceable as
to any person or circumstance, such finding shall not render
that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending
provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the
offending provision cannot be so modified, it shall be
stricken and all other provisions of this Agreement in all
other respects shall remain valid and enforceable.
Successor Interests. Subject to the limitations set forth
above or transfer of the Collateral, this Agreement shall be
binding upon and inure to the benefit of the parties, their
successors and assigns.
Waiver. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing
and signed by Lender. No delay or omission on the part of
Lender in exercising any right shall operate as a waiver of
such right or any other right. A waiver by Lender of a
provision of this Agreement shall not prejudice or constitute
a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provision of this
Agreement. No prior waiver by Lender, nor nay course of
dealing between Lender and Grantor, shall constitute a waiver
of any of Lender's rights or of any of Grantor's obligations
as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent
by Lender in any instance shall not constitute continuing
consent to subsequent instances where such consent is required
and in all cases consent may be granted or withheld in the
sole discretion of Lender.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL
SECURITY AGREEMENT, AND GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS
DATED NOVEMBER 9, 1990.
GRANTOR:
CENTENNIAL FOODS, INC.
By /s/▇▇▇ ▇▇▇▇▇ 11/7/90
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▇▇▇ ▇▇▇▇▇, PRESIDENT/CEO