IN RE AGRIBIOTECH, INC., (Bankr.D.Nev. 2000)

Bankruptcy No. BK-S-00-10533, BK-S-00-10534, BK-S-00-10535, BK-S-00-10536 BK-S-00-10537United States Bankruptcy Court, D. Nevada
June 16, 2000

WILLIAM P. WEINTRAUB, ESQ., DAVID M. BERTENTHAL, ESQ., MALHAR S. PAGAY, ESQ., PACHULSKI, STANG, ZIEHL, YOUNG JONES P.C., San Francisco, California, JAMES PATRICK SHEA, ESQ., CANDACE CARLYON, ESQ., SHEA CARLYON, LTD., Las Vegas, Nevada

ORDER APPROVING PROCEDURES FOR SALE OF ASSETS FREE AND CLEAR OF LIENS, CLAIMS AND INTERESTS OF OTHERS AND ASSUMPTION AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS
LINDA B. RIEGLE, United States Bankruptcy Judge.

This matter came before the Honorable Linda B. Riegle, United States Bankruptcy Judge, the Foley Federal Building, 300 Las Vegas Blvd. South, Las Vegas, Nevada 89101, to consider the Motion for Order Approving (1)Procedures for Proposed Sales of Assets; (2) Approving Scope and Form ofNotice; and (3) Scheduling Opposition and Reply Dates (the “Procedures Motion”) filed by AgriBioTech, Inc., a Nevada corporation (“ABT”), AgriBioTech Canada, Inc., a Canadian corporation (“ABT Canada”), Las Vegas Fertilizer Co., Inc., a Nevada corporation (“LVF”), Garden West Distributors, Inc., an Arizona corporation (“Garden West”), and Geo. W. Hill Co., Inc., a Kentucky corporation (“Hill”), the debtors and debtors in possession in the above captioned jointly-administered bankruptcy cases (collectively, the “Debtors”).

Pursuant to the Procedures Motion, the Debtors sought approval for,inter alia, (i) the procedures for the proposed sales (the “Proposed Sales”) of certain of the Debtors’ assets (the “Purchased Assets”) to buyers who will be identified in the notice (the “Sale Notice”) of the sale hearing (the “Sale Hearing”) on the Proposed Sales (collectively the “Buyers”), (ii) certain overbid procedures, (iii) break-up fee in favor of each Buyer with respect to each Proposed Sale in the event a Buyer is not the successful bidder with respect to the applicable portion of the Purchased Assets, (iv) liquidated damages provisions (the “Liquidated Damages Provisions”) covering each Buyer and the Debtors, (v) procedures for the return of the cash deposit (the “Deposits”) posted by each Buyer in connection with each Proposed Sale, and (vi) the form and scope of the Sale Notice of the Sale Hearing on the Proposed Sales and the proposed sale of certain of the Debtors’ assets not included in the Proposed Sales to KRB Seed Company, LLC, J.R. Simplot Company and Proseeds Marketing, Inc. (collectively, “Budd-Simplot”) which sale is subject to the OrderGranting Motion for Order Approving Procedures for Sale of Assets Freeand Clear of Liens, Claims and Interests of Others and Assumption andAssignment of Certain Executory Contracts entered on May 17, 2000 (the “Budd-Simplot Procedures Order”), a copy of which was attached to the Procedures Motion as Exhibit B.

The hearing on the Procedures Motion came regularly on for telephonic hearing on June 8, 2000, at 11:00 a.m. in accordance with this Court’s order shortening time (“OST”) granted on May 31, 2000. William P. Weintraub of Pachulski, Stang, Ziehl, Young Jones appeared at the hearing on behalf of the Debtors. Other appearances were noted in the record of the hearing.

The Court finds that notice of the hearing on the Procedures Motion was given in accordance with the OST and that such notice was and is reasonable under the circumstances of these cases.

Based upon the foregoing, and upon the Procedures Motion and the declarations filed in support thereof, and the statements and arguments of counsel at the hearing of the Procedures Motion, and this Court find in good cause therefor, IT IS HEREBY ORDERED as follows:

A. The Procedures Motion is granted in its entirety.[1]

B. The Budd-Simplot Procedures Order shall remain in effect with respect to the proposed sale to Budd-Simplot except that notice of the Budd-Simplot Sale shall be provided by the Sale Notice approved herein.

C. The bidding procedures at the Sale Hearing shall be as follows:

1. Only “Qualified Bidders” will be permitted to bid for the Purchased Assets at the Sale Hearing.

2. Any person who seeks to submit on overbid may do so at the Sale Hearing so long as that person has been approved by the Debtors, the Committee and the Bank Group as a Qualified Bidder in advance of the commencement of the Sale Hearing. In order to be designated as a Qualified Bidder, a bidder must submit to the Debtors in writing a higher and better offer at or before the commencement of the Sale Hearing (the “Minimum Overbid”) that either (i) exceeds the amount of the applicable Buyer’s bid by the Minimum Overbid amount established by the Debtors with the approval of the Committee and the Bank Group for each Proposed Sale, or (ii) covers a portion of the assets included within the Sale Motion which, when taken together with the amounts of such other qualified bids as the Debtors have received for other portions of the assets included in a Proposed Sale, to the extent not included in any of the aggregated bids, the value (as determined by the Debtor) of the remaining assets included in a Proposed Sale, will exceed by the applicable Minimum Overbid amount the amount of such Buyer’s bid. Any such Minimum Overbid must be accompanied by a deposit in the amount established by the Debtors with the approval of the Committee and the Bank Group for each Proposed Sale (or allocable portion of such deposit, if the bid is for less than all of the assets covered by the Buyer’s bid) in the form of cash, cashier’s check drawn on a recognized national bank, or wire transfer confirmed received by the Debtors in good funds prior to the commencement of the Sale Hearing. The deposit shall be refundable until such time as the competing bidder becomes the winning bidder, at which time the deposit shall become non-refundable. In addition, to qualify as a Qualified Bidder, such bidder must demonstrate to the satisfaction of the Debtors, the Committee, and the Bank Group at or before the commencement of the Sale Hearing that:

a. The bidder is ready and able to pay cash for the entire purchase price.

b. The bidder is ready and able to close promptly and without condition or the requirement of further due diligence, using identical definitive sale documentation to the Purchase Agreement executed by the applicable Buyer. In the event a bidder seeks to submit a bid for substantially all of the Debtors’ assets subject to sale, such bidder must demonstrate that it is ready and able to close promptly and without condition or the requirement of further due diligence, using effectively identical definitive sale documentation to the Purchase Agreements executed by the Buyers.

3. If the Debtors, the Bank Group and the Committee believe there is a legitimate Minimum Overbid(s) from a Qualified Bidder(s), the Debtors shall request the Bankruptcy Court to conduct an auction on the date of the Sale Hearing.

4. At the Sale Hearing, multiple bids from Qualified Bidders for portions of the assets included within the Sale Motion may be aggregated, and such multiple bids may be evaluated by the Debtors by taking into account the value (as determined by the Debtors) of assets not included within such multiple bids.

5. Upon the submission of a Minimum Overbid from a Qualified Bidder or multiple Qualified Bidders at the Sale Hearing, the Buyer or any other Qualified Bidder shall have the unconditional right at the Sale Hearing to submit a bid that exceeds such Minimum Overbid by the subsequent bid increment established by the Debtors, with the approval of the Committee and the Bank Group, for each Proposed Sale (the “Subsequent Bid Increment”). However, any such higher and better offer itself shall be subject to the Debtors’ acceptance of a still higher and better offer; provided, however, that such higher and better offer must equal the sum of (i) the Minimum Overbid plus the Subsequent Bid Increment, plus (ii) an additional amount of the Subsequent Bid Increment (a “Yet Higher Offer”). In the event of a Yet Higher Offer, the process set forth in the preceding sentence shall continue and repeat at the Sale Hearing with each successive Yet Higher Offer exceeding the immediately preceding Yet Higher Offer by the Subsequent Bid Increment unless and until such time as the Buyer and the other Qualified Bidders elect not to make a further bid, at which time the last Qualified Bidder or Bidders to make a Yet Higher Offer shall be approved as the winning bidder(s).

6. Once the Minimum Overbid threshold has been met by a Qualified Bidder or multiple Qualified Bidders in accordance with the provisions set forth above, successive overbids shall be in incremental amounts of the Subsequent Bid Increment. If multiple Qualified Bidders are submitting multiple bids for less than all of the assets covered by the Buyer’s original bid in competition with the Buyer or another unitary Qualified Bidder, successive overbids shall be measured by grouping the bids by the multiple bidders and aggregating their bids and the value (as determined by the Debtors) of assets for which there is no bid and comparing the aggregate value of the multiple bids and the value of unbid assets against the unitary bid(s). Each successive overbid by the multiple bidders will be aggregated and added to the value (as determined by the Debtors) of the unbid assets to determine whether such overbid is greater than the immediately preceding overbid by the amount of the Subsequent Bid Increment. If there are multiple bidders for the same asset or assets, the high bidder’s bid shall be used in determining whether the aggregate value of the multiple bids and the value of the unbid assets exceed the amount of the Subsequent Bid Increment.

7. In the event a Qualified Bidder makes a bid for substantially all of the Debtors’ assets subject to sale (the “All Asset Bidder”), the initial such bid must exceed by $2,000,000.00 the aggregate of (i) all bids (including overbids) made in respect of each sale contemplated by the Sale Motion, plus (ii) the value (as determined by the Debtors) of assets for which there is no bid, plus (iii) the amount of all Breakup Fees which must be paid by the Debtors to the Buyers. In the event there is an All Asset Bidder who is actively bidding for substantially all of the Debtors’ assets subject to sale, each subsequent bid (or aggregation of bid and unbid assets) for substantially all of the Debtors’ assets must exceed the immediately prior bid by at least $250,000.00.

8. In the event the Bankruptcy Court approves the sale of all or substantially all Purchased Assets with respect to a particular Proposed Sale to a person(s) other than the applicable Buyer(which is not an affiliate of the Buyer), so long as such Buyer is not in breach of the Purchase Agreement, the Debtors shall pay to the Buyer in consideration of the time and expenses incurred by the Buyer in pursuing the transactions contemplated by the applicable Purchase Agreement, an amount equal to a breakup fee in an amount established by the Debtors with the approval of the Committee and the Bank Group for each Proposed Sale (the “Breakup Fee”) at the earlier to occur of (i) consummation of the purchase and sale of the applicable Purchased Assets to the successful bidder or (ii) the successful bidder’s deposit becoming non-refundable. In addition, in the event the Debtors exercise their termination rights because a Buyer does not agree to pay the Floor Price provided by the Buyer’s Purchase Agreement, such Buyer will be entitled to the return of the Deposit and the Debtors will have no other liability to the Buyer unless, if required by the terms of a Purchase Agreement, within sixty (60) days following such termination, the Debtors consummate a sale of the Purchased Assets to another party(ies) for a price which is greater by the amount provided for in such Buyer’s Purchase Agreement than the net Purchase Price that would have resulted from taking into account the foregoing closing adjustments. In that circumstance, the applicable break up fee established by the Debtors with the approval of the Committee and the Bank Group will be paid to the Buyer.

D. The Procedures for return of the Deposit and the Liquidated Damages Provisions described in the Procedures Motion are approved and are hereby immediately effective and presently binding upon the Debtors and the Buyer as follows:

1. Each Buyer will deliver, or has delivered, to the Debtors an amount established by the Debtors as the first portion of the respective Deposits required under the Purchase Agreements and, upon execution of the final Purchase Agreements, each Buyer will deliver the remaining amount required for payment of the full Deposit required by its respective Purchase Agreement to the Debtors. The Deposit will be returned to a Buyer if such Buyer is overbid by a Qualified Bidder(s) at the Sale Hearing or if the transaction with such Buyer does not close due to a breach by the Debtors, unless the Buyer is in breach of its Purchase Agreement.[2]

2. The liability of the Debtors for breach for failure to close the transaction, in all circumstances other than a successful overbid by a third party, shall be limited to the return of the Deposit with accrued interest and the amount of liquidated damages established by the Debtors with the approval of the Committee and the Bank Group for each Proposed Sale; provided, however, the applicable Buyer shall not be entitled to the foregoing return of the Deposit and payment, in circumstances other than a successful overbid by a third party, if such Buyer is also in material default of any of its obligations under its Purchase Agreement. In circumstances other than a successful overbid, if the transaction does not close in circumstances where each party alleges the other party is in default, the Bankruptcy Court (after notice and a hearing) will determine whether the Deposit is returned to the Buyer or retained by the Debtors and whether the Buyer is entitled to the foregoing liquidated damages payment; but in no circumstances shall a Buyer’s liability to any party for failure to close the purchase and sale transaction contemplated by its Purchase Agreement exceed loss of the Deposit, nor shall the Debtors’ liability exceed an amount equal to the return of the Deposit plus the liquidated damages established for the applicable Proposed Sale.

3. Nothing contained herein is intended to in any way liquidate a Buyer s liability to Debtors under any provision which by its terms survives the termination of the transaction contemplated in its Purchase Agreement or to in any way liquidate such Buyer’s obligation to any party or entity for matters or claims not arising by reason of the Buyer’s failure to close the transaction.

E. The proposed form of the Sale Notice (as modified) is approved as containing adequate information about the Proposed Sales, and the Debtors are authorized to use such Sale Notice (or a further modified form of such Sale Notice, modified to reflect any additional charges to the current version of the Purchase Agreements) to advise creditors, equity holders and others of the Proposed Sales and of the Sale Hearing. A copy of the approved form of Sale Notice in its current form is attached hereto as Exhibit A.

F. The deadlines described in the Procedures Motion for filing and service of the Sale Notice and Sale Motion, as well as the deadlines for the filing and service of objections and replies with respect to the Proposed Sales, are approved in all respects. In summary, the Debtors will serve the Sale Notice on all creditors, all parties to any executory contracts and unexpired leases to be assumed and assigned, all entities that assert liens or security interests on any of the assets to be sold, the Committee, all parties requesting special notice, all relevant taxing authorities, equity holders and potential overbidders. Pursuant to the Debtors’ oral motion for an order shortening time made at the hearing on the Procedures Motion, the Sale Notice shall be served upon nominees for equity holders by overnight mail, and upon all other interested parties by United States mail, not later than June 15, 2000. Objections to any of the Proposed Sales described in the Sale Notice must be filed and served so they are received by the parties described in the Sale Notice not later than June 29, 2000. Any replies to an objection must be filed and served so they are received by the objecting party not later than July 6, 2000. The Sale Hearing shall be held commencing at 9:30 a.m. on July 10, 2000.

G. The Debtors are authorized to expend such monies as are necessary in the Debtor’s reasonable discretion, after consultation with the Committee and the Bank Group, to advertise the Proposed Sale through, without implied limitation, publications in newspapers of general circulation, trade journals or other media.

EXHIBIT A

NOTICE OF (1) HEARING ON SALES OF A SIGNIFICANT PORTION OF DEBTORS’ ASSETS WHICH MAY BE CONSIDERED SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS FREE AND CLEAR OF LIENS, CLAIMS AND INTERESTS AND ASSUMPTION AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES, AND (2) BIDDING PROCEDURES REGARDING SALES EXHIBIT ATO ALL CREDITORS, EQUITY HOLDERS, PROSPECTIVE OVERBIDDERS AND OTHERPARTIES IN INTEREST:
PLEASE TAKE NOTICE that on June _____, 2000, AgriBioTech, Inc., a Nevada corporation (“ABT”), AgriBioTech Canada, Inc., a Canadian corporation (“ABT Canada”), Las Vegas Fertilizer Co., Inc., a Nevada corporation (“LVF”), Garden West Distributors, Inc., an Arizona corporation (“Garden West”), and Geo. W. Hill Co., Inc., a Kentucky corporation (“Hill”), the debtors and debtors in possession in the above-captioned jointly-administered chapter 11 cases (collectively, the “Debtors”), filed a motion (the “Sale Motion”) to approve (i) the sales of a significant portion of their tangible and intangible assets which for the purpose of the Sale Motion may be considered substantially all of the Debtors’ assets (the “Property”) to the following buyers: (1) to KRB Seed Company, LLC, Proseeds Marketing, Inc., and J.R. Simplot Company (collectively, “Budd-Simplot”); (2) [a buyer of certain of the Debtors’Canadian assets and seed coating businesses] (“Canada Buyer”); (3) [abuyer of a substantial portion of the Debtors’ forage seed businesses] (“Forage 1 Buyer”); (4) [a buyer of a portion of the Debtors’ forage seedbusinesses] (“Forage 2 Buyer”) and (5) [a buyer of the Debtors’ Hybrigenedivision] (“Hybrigene Buyer”) (collectively the “Buyers”)[1a] free and clear of liens, claims, and interests of others, and (ii) the assumption by the Debtors and assignment to the Buyers of certain executory contracts and unexpired leases of the Debtors (collectively, the “Contracts”). This Notice is intended to summarize and is subject to the terms set forth in the Sale Motion itself. A copy of the Sale Motion ison file with the Clerk of the Bankruptcy Court and may also be obtainedfrom Dial Reprographics, 330 So. 3rd Street, Suite 910, Las Vegas, NV89101, Phone (702) 388-9940, Fax (702) 388-9943. Additionally the SaleMotion may be available on the docket contained on the web sitemaintained by the Bankruptcy Court which is accessible through theDebtors’ web site (http://www.agribiotech.com) or through the RACER linkon the Court’s web-site (http://www.nvb.uscourts.gov/).
PLEASE TAKE FURTHER NOTICE that on May 17 and June __, 2000, the Bankruptcy Court entered orders establishing noticing and overbid procedures in respect of the Sale Motion (the “Procedures Orders”). Copiesof the Procedures Orders are on file with the Clerk of the BankruptcyCourt and may also be obtained from Dial Reprographics, 330 So. 3rdStreet, Suite 910, Las Vegas, NV 89101, Phone (702) 388-9940, Fax (702)388-9943. Additionally the Procedures Orders may be available on thedocket contained on the web site maintained by the Bankruptcy Court whichis accessible through the Debtors’ web site (http://www.agribiotech.com)or through the RACER link on the Court’s web-site(http://www.nvb.uscourts.gov/).

SALE HEARING
The hearing on the sales (the “Sales”) of the Property and the assignment of the Contracts (the “Sale Hearing”) shall take place commencing on July 10, 2000, at 9:30 a.m. before the Honorable Linda B. Riegle, United States Bankruptcy Judge, in Courtroom 2 of The Foley Federal Building, 300 Las Vegas Blvd. South, Las Vegas, Nevada 89101. The Sale Hearing will continue to July 11 and 12, 2000, if necessary.

Pursuant to the Procedures Orders and the scheduling order entered by the Bankruptcy Court on June __, 2000 (the “Scheduling Order”), parties that wish to oppose the Sale Motion must do so in writing, supported by a memoranda of law, documents or evidence. Copies of opposition papers must be filed with the Bankruptcy Court and received by the following personsno later than June 29, 2000: counsel for the Debtors, counsel for the Official Committee of Unsecured Creditors of ABT (the “Committee”), counsel to Bank of America, N.A., Deutsche Financial Services Corporation, and Branch Bank and Trust Company (collectively, the “Bank Group”), the Office of the United States Trustee, and the counsel for Buyers. Service upon the foregoing parties should be at the addresses set forth at the end of this Notice.

SUMMARIES OF THE PROPOSED SALES
The most current version of each of the purchase agreements between the Debtors and each Buyer (collectively, the “Purchase Agreements”) is annexed to the Sale Motion. Because the summaries contained in this Notice are based upon the most current versions of each the Purchase Agreements, some terms may be changed in the final version of the Purchase Agreements to the extent such Agreements are not yet finalized. Parties in interest are advised to review the final versions of the Purchase Agreements, and the exhibits, schedules, and attachments, in order to obtain all of the details of the Proposed Sales. The Debtors will file the final versions of the Purchase Agreements with the Clerk of the Bankruptcy Court and deposit a copy with Dial Reprographics no later than July 3, 2000, or sooner if completed before that time. The exhibits, schedules and other attachments to the Purchase Agreements will be filed with the Clerk of the Bankruptcy Court and deposited with Dial Reprographics no later than July 3, 2000, or sooner if completed before that time.

Copies of the Purchase Agreements are annexed to the Sale Motion whichis on file with the Bankruptcy Court and also may be obtained from DialReprographics, 330 So. 3rd 12 Street, Suite 910, Las Vegas, NV 89101,Phone (702) 388-9940, Fax (702) 388-9943. Additionally the Sale Motionmay be available on the docket contained on the web site maintained bythe Bankruptcy Court which is accessible through the Debtors’ web site(http://www.agribiotech.com) or through the RACER link on the Court’sweb-site (http://www.nvb.uscourts.gov/).

A. The Budd-Simplot Sale

The Debtors have agreed to sell certain Property and to assign certain Contracts utilized in the Debtors’ turf seed businesses to Budd-Simplot pursuant to that certain Purchase Agreement dated as of May ___, 2000 (the “Budd-Simplot Purchase Agreement”), in a transaction valued at between $60 million and $65 million, subject to certain adjustments at closing.[2a] The formula for determining the final purchase price (net of adjustments) is set forth at length in the Budd-Simplot Purchase Agreement.

1. Purchase Price:

The Budd-Simplot Purchase Price is currently estimated to be $40 million, subject to adjustments at closing.

Generally speaking, the Budd-Simplot Purchase Price will be computed as follows: Budd-Simplot will pay the Debtors in cash an amount (the “Purchase Price”) equal to the sum of(a) $6,750,000.00, plus (b) an amount equal to 100% of the lesser of the book value or the market value as of the closing of all salable inventory for each of the Debtors’ Turf Retail Unit, the Debtor’s Turf Production/Wholesale Unit and SPD, plus (c) with respect to all other salable inventory of the Debtors an amount equal to the sum of the prices per pound established with respect to certain categories of seed described with particularity in the Budd-Simplot Purchase Agreement, plus (d) an amount equal to 90% of the book value of the Budd-Simplot Personal Property as mutually agreed upon by Budd-Simplot and the Debtors, plus (e) an amount equal to 90% of the book value as of the closing of the Budd-Simplot Real Property, plus (t) certain other amounts more particularly described in the Budd-Simplot Purchase Agreement.

Because the Budd-Simplot Purchase Agreement provides for adjustments at closing as described therein and because the payment of any “cure” amounts with respect to executory contracts or unexpired leases of the Debtors that are to be assigned to Budd-Simplot will effectively reduce the net purchase price to be paid to the Debtors, the Budd-Simplot Purchase Agreement provides for a fixed minimum price (the “Budd-Simplot Floor Price”) below which the Debtors will not be required to close the transaction. The Budd-Simplot Floor Price is currently estimated to be no less than $39 million. If the ultimate Budd-Simplot Purchase Price payable at closing (net of closing adjustments) is less than the Budd-Simplot Floor Price, the Debtors will be entitled to terminate the transaction, unless Budd-Simplot provides the Debtors with Budd-Simplot’s unconditional written assurance Budd-Simplot will pay the Budd-Simplot Floor Price for the Property being acquired by Budd-Simplot. In the event the Debtors exercise their termination rights because Budd-Simplot does not agree to pay the Budd-Simplot Floor Price, Budd-Simplot will be entitled to the return of Budd-Simplot’s Deposit and the Debtors will have no other liability to the Budd-Simplot unless, within sixty (60) days following such termination, the Debtors consummate a sale of the Property to another party(ies) for a price which is $200,000 or more greater than the net Budd-Simplot Purchase Price that would have resulted from taking into account the foregoing closing adjustments. In that circumstance, a breakup fee equal to 200% of Budd-Simplot’s actual fees and expenses not to exceed $200,000 will be paid to Budd-Simplot.

2. Assets Being Purchased:

(a) Leases and Contracts. The Debtors’ right, title and interest in and to (i) to the extent permitted by applicable law, all rights as lessee under those real property leases described on Exhibit “A-1” to the Budd-Simplot Purchase Agreement (collectively, the “Budd-Simplot Real Property Leases”), (ii) to the extent permitted by applicable law, all rights as lessee under those equipment, personal property and intangible property leases, rental agreements, licenses (including, without limitation, those relating to the Budd-Simplot Included Varieties (as defined below)) contracts, agreements and similar arrangements described on Exhibit “A-2” to the Purchase Agreement (collectively, the “Budd-Simplot Other Leases”), and (iii) as a party to those contracts with seed growers (“Budd-Simplot Grower Contracts”) described on Exhibit “A-3” to the Budd-Simplot Purchase Agreement; and (iv) as a party to those other contracts (including, without limitation, the agreements, between Debtors, on the one hand, and Kenneth Budd-Simplot, Richard P. Budd-Simplot, and John D. Budd-Simplot, respectively, on the other hand (collectively, the “Non-Competition Agreements”)), leases, orders, purchase orders, licenses, contracts, agreements and similar arrangements described on Exhibit “A-4” to the Purchase Agreement (collectively, the “Budd-Simplot Other Contracts” and together with the “Budd-Simplot Other Leases” and the “Budd-Simplot Grower Contracts”, the “Budd-Simplot Other Leases and Contracts”).

(b) Improvements. All improvements, and all appurtenances to such improvements, located on the real property (collectively, the “Budd-Simplot Real Property”) occupied by the Debtors (i) at the location(s) owned by the Debtors in fee and described on Exhibit “A-5” to the Budd-Simplot Purchase Agreement, and (ii) under the Budd-Simplot Real Property Leases, including, without limitation, buildings, outside storage areas, driveways, walkways and parking areas, but in all events only to the extent of the Debtors’ interest in the same (collectively, the “Budd-Simplot Improvements”).

(c) Personal Property. All of the Debtors’ right, title and interest in and to those fixed assets and items of equipment and tangible personal property owned by the Debtors and located at and used exclusively in connection with the Budd-Simplot Acquired Business Units, including, without limitation, those listed in Exhibit “B” to the Budd-Simplot Purchase Agreement (collectively, the “Budd-Simplot Personal Property”). Budd-Simplot Personal Property does not include Inventory. Budd-Simplot Personal Property also expressly excludes any equipment or other tangible property held by the Debtors pursuant to a lease, rental agreement, contract, license or similar arrangement where Budd-Simplot does not assume the underlying contract relating to such personal property at the closing.

(d) Intangible Property. All intangible personal property owned or held by the Debtors and used exclusively in connection with the Budd-Simplot Acquired Business Units (as defined below) but in all cases and with respect to all assets described in this subparagraph (d), only to the extent of the Debtors’ interest and only to the extent transferable, together with all books, records and like items pertaining to the Budd-Simplot Acquired Business Units including, without limitation, the goodwill of the Budd-Simplot Acquired Business Units, and the trademarks, trade names, service marks, brands and corporate names listed on Exhibit “C” to the Budd-Simplot Purchase Agreement, all plans and specifications for the Budd-Simplot Improvements, all appraisals, engineering, soils, pest control, and other reports relating to the Budd-Simplot Real Property, catalogues, customer lists and other data bases, correspondence with present or prospective customers and suppliers, advertising materials, software programs, and, to the extent the same can be transferred at no cost to Debtors, telephone exchange numbers identified exclusively with the Budd-Simplot Acquired Business Units (collectively, the “Budd-Simplot Intangible Property”). Budd-Simplot Intangible Property excludes, (i) any materials containing privileged communications or information about employees, disclosure of which would violate an employee’s reasonable expectation of privacy and any other materials which are subject to attorney-client or any other privilege, and (ii) any software or other item of intangible property held by the Debtors pursuant to a license or other contract where Budd-Simplot does not assume the underlying contract relating to such intangible personal property at the Closing, but shall includes the Debtors’ right, title and interest, if any, in and certain seed varieties described in the Budd-Simplot Purchase Agreement [collectively, the “Budd-Simplot Included Varieties”], and all of the Debtors’ right, title and interest, if any, in and to the following:

(1) all intellectual property rights constituting, embodied in or represented by the Budd-Simplot Included Varieties (including any interest of the Debtors in and to any and all patents, plant variety protection certificates and/or applications for either); and

(2) all licenses to and from the Debtors in respect of any of the Budd-Simplot Included Varieties.

(e) Spokesperson Contract. To the extent the same can be assumed and assigned by the Debtors, the Debtors’ right, title and interest in and to the existing agreement pursuant to which Arnold Palmer has been a spokesperson for the Debtors’ businesses (the “Spokesperson Contract”); and

(f) Inventory. All of the Debtors’ right, title and interest in and to all supplies (including, without limitation, seed packaging bags (“Packaging Bags”), erosion mixtures, and fertilizer), goods, materials, all cover crop, work in process, and the salable seed inventory of the Debtors or in the Debtors’ possession or control as of the closing of the transactions contemplated by the Budd-Simplot Purchase Agreement representing the Budd-Simplot Included Varieties (including with respect to germplasm, only such germplasm as relates directly to the Budd Simplot Included Varieties (including, without limitation, all inventory of Lespedeza variety of clover seed), owned by the Debtors as of the closing of the transactions contemplated by the Budd-Simplot Purchase Agreement of the Debtors’ Turf Retail Unit (the “Retail Unit”), Turf Production/Wholesale (the “Wholesale Unit”) and Specialty Distribution (the “Specialty Unit”) [collectively, the “Budd-Simplot Acquired Business Units”] and all other inventory owned by Debtors and located at the facilities operated by the Budd-Simplot Acquired Business Units immediately prior to the closing and with respect to the Wholesale Unit only, all salable seed inventory wherever located (the foregoing items are collectively referred to as the “Budd-Simplot Inventory”).

The Property subject to the Budd-Simplot Agreement shall be transferred to Budd-Simplot free and clear of all liens, interests, claims, and encumbrances of any kind or nature; provided, that Budd-Simplot shall assume all future contractual obligations associated with the Property acquired by Budd-Simplot, but with respect to executory contracts and the like, only to the extent the same are assumed by the Debtors and assigned to the Buyer at the closing.

B. The Canada Buyer Sale

The Debtors have agreed to sell certain Property and to assign certain Contracts utilized in the Debtors’ Canadian and seed coating businesses to Canada Buyer pursuant to that certain Purchase Agreement dated as of June ___, 2000 (the “Purchase Agreement”), in a transaction valued at Canadian $___ million, subject to certain adjustments at closing. The formula for determining the final Canada Buyer Purchase Price (net of adjustments) is set forth at length in the Canada Buyer Purchase Agreement.

1. Purchase Price:

The Canada Buyer Purchase Price is currently estimated to be Canadian $___ million at closing.

Generally speaking, the Canada Buyer Purchase Price will be computed as follows: Canada Buyer will pay the Debtors in cash an amount (the “Canada Buyer Purchase Price”) equal to the sum of (a) Canadian $____________,[TO BE INSERTED]

Because the Canada Buyer Purchase Agreement provides for adjustments at closing as described therein and because the payment of any “cure” amounts with respect to executory contracts or unexpired leases of the Debtors that are to be assigned to Canada Buyer will effectively reduce the net purchase price to be paid to the Debtors, the Canada Buyer Purchase Agreement provides for a fixed minimum price (the “Canada Buyer Floor Price”) below which the Debtors will not be required to close the transaction. The Canada Buyer Floor Price is expected to be no less than Canadian $___ million. If the ultimate Canada Buyer Purchase Price payable at closing (net of closing adjustments) is less than the Canada Buyer Floor Price, the Debtors will be entitled to terminate the transaction, unless Canada Buyer provides the Debtors with Canada Buyer’s unconditional written assurance Canada Buyer will pay the Canada Buyer Floor Price for the Property being acquired by Canada Buyer. In the event the Debtors exercise their termination rights because Canada Buyer does not agree to pay the Canada Buyer Floor Price, Canada Buyer will be entitled to the return of Canada Buyer’s Deposit and the Debtors will have no other liability to Canada Buyer unless, within sixty (60) days following such termination, the Debtors consummate a sale of the Property subject to the Canada Buyer Purchase Agreement to another party(ies) for a price which is Canadian $________ [TO BE INSERTED] or more greater than the net Canada Buyer Purchase Price that would have resulted from taking into account the foregoing closing adjustments. In that circumstance, a breakup fee equal to ____ of Canada Buyer’s actual fees and expenses not to exceed Canadian $_________ [TO BE INSERTED] will be paid to Canada Buyer.

2. Assets Being Purchased:

(a) Leases and Contracts. The Debtors’ right, title and interest in and to [TO INSERTED]

(b) Improvements. All improvements, and all appurtenances to such improvements, located on the real property (collectively, the “Canada Buyer Real Property”) occupied by the Debtors [TO BE INSERTED], including, without limitation, buildings, outside storage areas, driveways, walkways and parking areas, but in all events only to the extent of the Debtors’ interest in the same (collectively, the “Canada Buyer Improvements”).

(c) Personal Property. All of the Debtors’ right, title and interest in and to those fixed assets and items of equipment and tangible personal property owned by the Debtors and located at and used exclusively in connection with the Canada Buyer Acquired Business Units, including, without limitation, those listed in Exhibit”___”to the Canada Buyer Purchase Agreement (collectively, the “Canada Buyer Personal Property”). Canada Buyer Personal Property does not include [TO BE INSERTED].

(d) Intangible Property. [TO BE INSERTED] (collectively, the “Intangible Property”). Intangible Property excludes, (i) any materials containing privileged communications or information about employees, disclosure of which would violate an employee’s reasonable expectation of privacy and any other materials which are subject to attorney-client or any other privilege, and (ii) any software or other item of intangible property held by the Debtors pursuant to a license or other contract where Canada Buyer does not assume the underlying contract relating to such intangible personal property at the Closing, but shall includes the Debtors’ right, title and interest, if any, in and certain seed varieties described in the Canada Buyer Purchase Agreement [collectively, the “Canada Buyer Included Varieties”], and all of the Debtors’ right, title and interest, if any, in and to the following:

(1) all intellectual property rights constituting, embodied in or represented by the Canada Buyer Included Varieties (including any interest of the Debtors in and to any and all patents, plant variety protection certificates and/or applications for either); and

(2) all licenses to and from the Debtors in respect of any of the Canada Buyer Included Varieties; and

(e) Inventory. All of the Debtors’ right, title and interest in and to[TO BE INSERTED] (the foregoing items are collectively referred to as the “Canada Buyer Inventory”).

The Property which is subject to the Canada Buyer Purchase Agreement shall be transferred to Canada Buyer free and clear of all liens, interests, claims, and encumbrances of any kind or nature; provided, that Canada Buyer shall assume all future contractual obligations associated with the Property acquired by Canada Buyer, but with respect to executory contracts and the like, only to the extent the same are assumed by the Debtors and assigned to Canada Buyer at the closing.

C. The Forage 1 Buyer Sale

The Debtors have agreed to sell certain Property and to assign certain Contracts utilized in the Debtors’ forage seed businesses to Forage 1 Buyer pursuant to that certain Purchase Agreement dated as of June ___, 2000 (the “Forage 1 Buyer Purchase Agreement”), in a transaction valued at between $___ million and $___ million, subject to certain adjustments at closing. The formula for determining the final Forage 1 Buyer Purchase Price (net of adjustments) is set forth at length in the Forage 1 Buyer Purchase Agreement.

1. Purchase Price:

The Purchase Price is currently estimated to be $____ [TO BE INSERTED] million at closing.

Generally speaking, the purchase price will be computed as follows: Forage 1 Buyer will pay the Debtors in cash an amount (the “Purchase Price”) equal to the sum of (a) $_________________, plus [TO BEINSERTED].

Because the Forage 1 Buyer Purchase Agreement provides for adjustments at closing as described therein and because the payment of any “cure” amounts with respect to executory contracts or unexpired leases of the Debtors that are to be assigned to Forage 1 Buyer will effectively reduce the net purchase price to be paid to the Debtors, the Forage 1 Buyer Purchase Agreement provides for a fixed minimum price (the “Forage 1 Buyer Floor Price”) below which the Debtors will not be required to close the transaction. The Forage 1 Buyer Floor Price is expected to be no less than $____ million. [TO BE INSERTED] If the ultimate Forage 1 Buyer Purchase Price payable at closing (net of closing adjustments) is less than the Forage 1 Buyer Floor Price, the Debtors will be entitled to terminate the transaction, unless Forage 1 Buyer provides the Debtors with Forage 1 Buyer’s unconditional written assurance Forage 1 Buyer will pay the Floor Price for the Property which is subject to the Forage 1 Buyer Purchase Agreement. In the event the Debtors exercise their termination rights because Forage 1 Buyer does not agree to pay the Forage 1 Buyer Floor Price, Forage 1 Buyer will be entitled to the return of the Forage 1 Buyer Deposit and the Debtors will have no other liability to the Forage 1 Buyer, within sixty (60) days following such termination, the Debtors consummate a sale of the Property subject to the Forage 1 Buyer purchase Agreement to another party(ies) for a price which is $___________ [TOBE INSERTED] or more greater than the net Forage 1 Buyer Purchase Price that would have resulted from taking into account the foregoing closing adjustments. In that circumstance, a breakup fee equal to _____ %[TO BE INSERTED] of Forage 1 Buyer’s actual fees and expenses not to exceed $_______ [TO BE INSERTED] will be paid to Forage 1 Buyer.

2. Assets Being Purchased:

(a) Leases and Contracts. The Debtors’ right, title and interest in and to [TO BE INSERTED]

(b) Improvements. All improvements, and all appurtenances to such improvements, located on the real property (collectively, the “Forage 1 Buyer Real Property”) occupied by the Debtors [TO BE INSERTED], including, without limitation, buildings, outside storage areas, driveways, walkways and parking areas, but in all events only to the extent of the Debtors’ interest in the same (collectively, the “Improvements”).

(c) Personal Property. All of the Debtors’ right, title and interest in and to those fixed assets and items of equipment and tangible personal property owned by the Debtors and located at and used exclusively in connection with the Forage 1 Buyer Acquired Business Units, including, without limitation, those listed in Exhibit [TO BE INSERTED] to the Forage 1 Buyer Purchase Agreement (collectively, the “Personal Property”). Personal Property does not include [TO BE INSERTED].

(d) Intangible Property. [TO BE INSERTED] (collectively, the “Intangible Property”). Intangible Property excludes, (i) any materials containing privileged communications or information about employees, disclosure of which would violate an employee’s reasonable expectation of privacy and any other materials which are subject to attorney-client or any other privilege, and (ii) any software or other item of intangible property held by the Debtors pursuant to a license or other contract where Forage 1 Buyer does not assume the underlying contract relating to such intangible personal property at the Closing, but shall includes the Debtors’ right, title and interest, if any, in and certain seed varieties described in the Forage 1 Buyer Purchase Agreement [collectively, the “Forage 1 Buyer Included Varieties”I, and all of the Debtors’ right, title and interest, if any, in and to the following:

(1) all intellectual property rights constituting, embodied in or represented by the Forage 1 Buyer Included Varieties (including any interest of the Debtors in and to any and all patents, plant variety protection certificates and/or applications for either); and

(2) all licenses to and from the Debtors in respect of any of the Forage 1 Buyer Included Varieties; and

(e) Inventory. [TO BE INSERTED] (the foregoing items are collectively referred to as the “Forage 1 Buyer Inventory”).

The Property subject to the Forage 1 Buyer Purchase Agreement shall be transferred to Forage 1 Buyer free and clear of all liens, interests, claims, and encumbrances of any kind or nature; provided, that Forage 1 Buyer shall assume all future contractual obligations associated with the Property acquired by Forage 1 Buyer, but with respect to executory contracts and the like, only to the extent the same are assumed by the Debtors and assigned to Forage 1 Buyer at the closing.

D. The Forage 2 Buyer Sale

The Debtors have agreed to sell certain Property and to assign certain Contracts utilized in the Debtors’ forage seed businesses to Forage 2 Buyer pursuant to that certain Purchase Agreement dated as of June ___, 2000 (the “Forage 2 Buyer Purchase Agreement”), in a transaction valued at approximately $______ million, [TO BE INSERTED] subject to certain adjustments at closing. The formula for determining the final Forage 2 Buyer Purchase Price (net of adjustments) is set forth at length in the Forage 2 Buyer Purchase Agreement.

1. Purchase Price:

The Purchase Price is currently estimated to be $____ million [TO BEINSERTED] at closing.

Generally speaking, the purchase price will be computed as follows: the Buyer will pay the Debtors in cash an amount (the “Forage 2 Buyer Purchase Price”) equal to the sum of (a) $_________, plus [TO BEINSERTED]

Because the Forage 2 Buyer Purchase Agreement provides for adjustments at closing as described therein and because the payment of any “cure” amounts with respect to executory contracts or unexpired leases of the Debtors that are to be assigned to Forage 2 Buyer will effectively reduce the net purchase price to be paid to the Debtors, the Forage 2 Buyer Purchase Agreement provides for a fixed minimum price (the “Forage 2 Buyer Floor Price”) below which the Debtors will not be required to close the transaction. The Forage 2 Buyer Floor Price is expected to be no less than $_____ million [TO BE INSERTED]. If the ultimate Purchase Price payable at closing (net of closing adjustments) is less than the Forage 2 Buyer Floor Price, the Debtors will be entitled to terminate the transaction, unless Forage 2 Buyer provides the Debtors with Forage 2 Buyer’s unconditional written assurance Forage 2 Buyer will pay the Forage 2 Buyer Floor Price for the Property being acquired by Forage 2 Buyer. In the event the Debtors exercise their termination rights because Budd-Simplot does not agree to pay the Forage 2 Buyer Floor Price, Forage 2 Buyer will be entitled to the return of the Forage 2 Buyer Deposit and the Debtors will have no other liability to Forage 2 Buyer, within sixty (60) days following such termination, the Debtors consummate a sale of the Property subject to the Forage 2 Buyer Agreement to another party(ies) for a price which is $__________ [TO BE INSERTED] or more greater than the net Forage 2 Buyer Purchase Price that would have resulted from taking into account the foregoing closing adjustments. In that circumstance, a breakup fee equal to _____ [TO BE INSERTED] of Forage 2 Buyer’s actual fees and expenses not to exceed $___________ [TOBE INSERTED] will be paid to Forage 2 Buyer.

2. Assets Being Purchased:

(a) Leases and Contracts. The Debtors’ right, title and interest in and to [TO BE INSERTED].

(b) Improvements. All improvements, and all appurtenances to such improvements, located on the real property (collectively, the “Forage 2 Buyer Real Property”) occupied by the Debtors [TO BE INSERTED], including, without limitation, buildings, outside storage areas, driveways, walkways and parking areas, but in all events only to the extent of the Debtors’ interest in the same (collectively, the “Forage 2 Buyer Improvements”).

(c) Personal Property. All of the Debtors’ right, title and interest in and to those fixed assets and items of equipment and tangible personal property owned by the Debtors and located at and used exclusively in connection with the Forage 2 Buyer Acquired Business Units, including, without limitation, those listed in Exhibit”___”[TO BE INSERTED] to the Forage 2 Buyer Purchase Agreement (collectively, the “Personal Property”). Personal Property does not include [TO BE INSERTED].

(d) Intangible Property. [TO BE INSERTED] (collectively, the “Intangible Property”). Intangible Property excludes, (i) any materials containing privileged communications or information about employees, disclosure of which would violate an employee’s reasonable expectation of privacy and any other materials which are subject to attorney-client or any other privilege, and (ii) any software or other item of intangible property held by the Debtors pursuant to a license or other contract where the Buyer does not assume the underlying contract relating to such intangible personal property at the Closing,

(e) Inventory. [TO BE INSERTED] (the foregoing items are collectively referred to as the “Forage 2 Buyer Inventory”).

The Property subject to the Forage 2 Buyer Purchase Agreement shall be transferred to Forage 2 Buyer free and clear of all liens, interests, claims, and encumbrances of any kind or nature; provided, that Forage 2 Buyer shall assume all future contractual obligations associated with the Property acquired by Forage 2 Buyer, but with respect to executory contracts and the like, only to the extent the same are assumed by the Debtors and assigned to Forage 2 Buyer at the closing.

E. The Hybrigene Buyer Sale
1. Purchase Price:

The Debtors have agreed to sell certain Property and to assign certain Contracts utilized in connection with the Debtors’ Hybrigene Buyer division to Hybrigene Buyer pursuant to that certain Purchase Agreement dated as of June ___, 2000 (the “Hybrigene Buyer Purchase Agreement”), in a transaction valued at $_____ [TO BE INSERTED] (the “Hybrigene Buyer Purchase Price”).

2. Assets Being Purchased:

(a) Leases and Contracts. [TO BE INSERTED].

(b) Personal Property. All of the Debtors’ right, title and interest in and to those items of equipment and tangible personal property owned by the Debtors and used exclusively in connection with the Hybrigene Buyer Acquired Business Units, including, without limitation, those listed in Exhibit”__ “to the Purchase Agreement (collectively, the “Personal Property”). Personal Property does not include [TO BE INSERTED].

(c) Intangible Property. [TO BE INSERTED] (collectively, the “Intangible Property”). Intangible Property excludes, (i) any materials containing privileged communications or information about employees, disclosure of which would violate an employee’s reasonable expectation of privacy and any other materials which are subject to attorney-client or any other privilege, and (ii) any software or other item of intangible property held by the Debtors pursuant to a license or other contract where Hybrigene Buyer does not assume the underlying contract relating to such intangible personal property at the Closing, but shall includes the Debtors’ right, title and interest, if any, in and to [HYBRIGENE BUYERTECHNOLOGY TO BE INSERTED].

The Property subject to the Hybrigene Buyer Purchase Agreement shall be transferred to Hybrigene Buyer free and clear of all liens, interests, claims, and encumbrances of any kind or nature; provided, that Hybrigene Buyer shall assume all future contractual obligations associated with the Property acquired by Hybrigene Buyer, but with respect to executory contracts and the like, only to the extent the same are assumed by the Debtors and assigned to Hybrigene Buyer at he closing.

EXCLUDED ASSETS
The Property is limited to the items identified or described as within the definition of Property contained in the respective Purchase Agreements and shall not in any event include (a) all cash or cash equivalents (including, without limitation, any prepaid deposits) and, except as specifically provided by a particular Purchase Agreement, all investment securities held the Debtors on the closing date; (b) all preference or avoidance claims and actions of the Debtors, including, without limitation, any such claims and actions arising under Sections 544, 545, 546, 547, 548, 549, and 550 of the Bankruptcy Code; (c) the Seller’s rights under the Purchase Agreements and all cash and non-cash consideration payable or deliverable to the Debtors pursuant to the terms and provisions thereof; (d) insurance proceeds, claims and causes of action with respect to or arising in connection with (i) any property which is not assigned or transferred to the respective Buyers at the closings, or (ii) those related to property for which the Purchase Prices are otherwise adjusted at the closing pursuant to the other terms and provisions of this Agreement, or (e) any real property lease, other lease, grower contract or other contract, agreement or arrangement to which Debtors are a party which is not listed or described in the applicable exhibits to each Purchase Agreement[3] and any Real Property Lease or Other Lease or Contract which the applicable Buyer declines to have assigned to it at the closing in accordance with the terms and provisions described herein; or (f) except as specifically provided by a particular Purchase Agreement, any instrument, receivable, accounts receivable or unbilled costs and fees (including any of the foregoing which may exist between or among the entities comprising the Debtor) or any cause of action relating or pertaining to the foregoing (collectively, the “Receivables”); or (g) the Debtors’ right, title and interest in the Debtors’ Seed Biotics business unit; or (h) the land, buildings, or office furniture and equipment at the Debtors’ locations identified on the applicable exhibit attached to the respective Purchase Agreements; or (i) all files of non-transferred employees and other materials that are subject to third party privacy rights, all attorney-client privileged materials, and all other documents and information that are subject to confidentiality obligations in favor of third parties; or (j) claims against officers, directors or accountants, including, without limitation claims under any officer and director liability policies; or (k) intellectual property not related to the Property acquired by each Buyer; or (1) tort claims of Seller against any third party; or (in) contract claims that are not related to the value of the Property or the ongoing operation of the Acquired Business Units; (n) any amounts owing to the Debtors as of the closing pursuant to any so-called “triangle transactions” then pending among the Debtors, any grower/suppliers and any customers of the Debtors; or (o) any assets not related to or specifically included among those assets defined as the “Property” with respect to each transaction; or (p) any Property which is included based upon its being salable, but which is not salable; or (q) any Grower Contract with respect to which the grower thereunder insists upon a cure payment as a condition to Debtors’ assumption and assignment thereof (collectively, “Excluded Grower Contracts”); or (s) all crop royalties payable to Debtors on account of 1999 crops or crops from any earlier year.

EXECUTORY CONTRACTS
All executory contracts and unexpired leases (including, but not limited to, grower contracts, proprietary plant variety licenses, non-compete agreements, and leases of real and personal property) relating to the Property applicable to each respective transaction, as designated by the applicable Buyer on the applicable Exhibit to each Purchase Agreement[4] , will be assumed by the Debtors and assigned to the applicable Buyer at the closing of the Purchase Agreement; provided, however, that such Buyer has reserved the right to decline any Contract at any time up to the closing. The Contracts that may be so affected are set out in Exhibit 2 to the Sale Motion. All executory contracts and unexpired leases assumed by each Buyer shall, to the extent that the Debtors are required to cure the same, be cured and assigned to each Buyer or its designee free and clear of any liens or claims for amounts due or other defaults prior to the closing date. The Debtors and the applicable Buyer will jointly determine the estimated cure amounts for executory contracts.

Subject to the provisions above relating to the Floor Prices described herein and to the understanding that Debtors shall not be obligated to pay any cure amounts with respect to any existing grower contracts, the Debtors shall pay all cure amounts as necessary to cure monetary defaults under any executory contracts or unexpired leases to be assumed and assigned by the Debtors pursuant to the definitive sale documentation (other than any cure amounts payable in connection with the Non-Competition Agreements or any other non-competition agreement). With respect to non-competition agreements generally, the Debtors will cooperate with the Buyers in reasonable respects to attempt to assume and assign the same; provided, however, the Buyers shall in all events be obligated to pay any cure amounts payable in connection with any assumption and assignment of such non-competition agreements, which payments shall be in addition to the Purchase Price. The Debtors mayreject by separate motion the Contract(s) of any grower who insists uponreceiving a cure payment as a condition to the assumption and assignmentof such grower’s Contract(s).

The Buyers shall be solely responsible for demonstrating adequate assurance of their future performance under the executory contracts and unexpired leases to be assigned to them.

At the Sale Hearing, the Debtors will seek approval of the Sales to each of the Buyers, or another qualified bidder(s) that overbids one or more of the Buyers with respect to the applicable sale at the Sale Hearing, as more fully set forth in the Sale Motion. The Debtors will also seek a finding that all qualified bidders have acted in good faith and will request that the purchasing bidder be afforded the protections of 11 U.S.C. § 363 (m). In the event of a successful overbid, the Debtors will pay a breakup fee to the applicable Buyer, as previously approved by the Bankruptcy Court in the Procedures Order. In the event that the Debtors fail to perform any of their material obligations under a Purchase Agreement and the Sale to a Buyer is not consummated, the Debtors will pay liquidated damages to that particular Buyer as previously approved by the Bankruptcy Court in the Procedures Order.

SALE FREE AND CLEAR
PURSUANT TO 11 U.S.C. § 363 (b) AND (f), THE SALES PROPOSED BY THE MOTION ARE FREE AND CLEAR OF ALL LIENS, CLAIMS AND INTERESTS OF OTHERS, AND ALL SUCH LIENS, CLAIMS, AND INTERESTS SHALL ATTACH TO THE PROCEEDS OF THE SALES WITH THE SAME VALIDITY (OR INVALIDITY) AND PRIORITY THAT EXISTED PRIOR TO THE SALES.

THE NET SALE PROCEEDS WILL BE PROVISIONALLY PAID TO THE BANK GROUP UNDER THE DEBTORS’ PREPETITION AND POSTPETITION SECURED LOAN AGREEMENTS.

PURSUANT TO THE FINAL ORDER AUTHORIZING DEBTORS TO OBTAIN SECUREDCREDIT AND GRANTING SENIOR LIENS AND RELATED RELIEF PREVIOUSLY ENTERED BY THE BANKRUPTCY COURT, WITH RESPECT TO ANY FUNDS PAID TO THE BANK GROUP GENERALLY, AND WITH RESPECT TO THE SALE PROCEEDS PAID TO THE BANK GROUP SPECIFICALLY, ANY PARTY WHO HOLDS CLAIMS, LIENS, OR SECURITY INTERESTS THAT ARE PROVEN TO BE SUPERIOR TO THE CLAIMS, LIENS, OR SECURITY INTERESTS OF THE BANK GROUP, WILL HAVE THE FUNDS TO WHICH SUCH PARTY DEMONSTRATES ENTITLEMENT PAID OR TURNED OVER TO IT BY THE BANK GROUP.

THE NAME OF EACH LIENHOLDER WHO IS POTENTIALLY AFFECTED BY THE SALE MOTION IS LISTED IN EXHIBIT 3 TO THE SALE MOTION.

ASSUMPTION AND ASSIGNMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
Pursuant to 11 U.S.C. § 365, the Debtors intend to assume and assign to the applicable Buyer at the closing the Contracts listed onExhibit 2 to the Sale Motion as subject to a particular Purchase Agreement; provided, however, that the Buyers have each reserved the right to decline the assumption and assignment of any Contract at any time up to the closing. Generally speaking, the Contracts to be assigned relate to the Debtors’ businesses which are subject to the Purchase

Agreements. If you are a party to an executory contract or unexpired lease listed on such exhibit, you will receive a full copy of the Sale Motion as well as a separate written notice from the Debtors expressing their intent to assume and assign your contract or lease and setting forth, among other things, the cure payments, if any, that the Debtors believe are due to you. The Debtors may reject by separate motion theContract(s) of any grower who insists upon receiving a cure payment as acondition to the assumption and assignment of such grower’s Contract(s).

BID PROCEDURES
1. Only “Qualified Bidders” will be permitted to bid for the Property, or any portion thereof, at the Sale Hearing.

2. Any person who seeks to submit on overbid may do so at the Sale Hearing so long as that person has been approved by the Debtors, the Committee and the Bank Group as a Qualified Bidder in advance of the commencement of the Sale Hearing. In order to be designated as a Qualified Bidder, a bidder must submit to the Debtors in writing a higher and better offer at or before the commencement of the Sale Hearing (the “Minimum Overbid”) that either (a) exceeds by the applicable Minimum Overbid amount for each sale[5] the amount of the applicable Buyer’s bid, or (b) covers a portion of the assets included within the Sale Motion which, when taken together with the amounts of such other qualified bids as the Debtors have received for other portions of the assets included in the Sale Motion and, to the extent not included in any of the aggregated bids, the value (as determined by the Debtor) of the remaining assets included in the Sale Motion, will exceed by the applicable Minimum Overbid the amount of the Buyer’s bid. Any such Minimum Overbid must be accompanied by the required deposit[6] (or allocable portion of such deposit, if the bid is for less than all of the assets covered by a particular Buyer’s bid) m the form of cash, cashier’s check drawn on a recognized national bank, or wire transfer confirmed received by the Debtor in good funds prior to the commencement of the Sale Hearing. The deposit shall be refundable until such time as the competing bidder becomes the winning bidder, at which time the deposit shall become non-refundable. In addition, to qualify as a Qualified Bidder, such bidder must demonstrate to the satisfaction of the Debtors, the Committee, and the Bank Group at or before the commencement of the Sale Hearing that:

a. The bidder is ready and able to pay in cash for the entire purchase price.

b. The bidder is ready and able to close promptly and without condition or the requirement of further due diligence, using identical definitive sale documentation to the Definitive Agreement executed by Buyer.

3. If Debtors, the Banks and the Committee believe there is a legitimate Minimum Overbid(s) from a Qualified Bidder(s), Development Specialists, Inc. (“DSI”), shall request the Bankruptcy Court to conduct an auction on the date of the Sale Hearing.

4. At the Sale Hearing, multiple bids from Qualified Bidders for portions of the assets included within the Sale Motion may be aggregated, and such multiple bids may be evaluated by the Debtors by taking into account the value (as determined by the Debtors) of assets not included within such multiple bids.

5. Upon the submission of a Minimum Overbid from a Qualified Bidder or multiple Qualified Bidders at the Sale Hearing, the Buyers as to their particular sale, or any other Qualified Bidder shall have the unconditional right at the Sale Hearing to submit a bid that exceeds such Minimum Overbid by the additional overbid increment required in respect of each sale contemplated by the Sale Motion (the “Subsequent Overbid Increment”).[7] However, any such higher and better offer itself shall be subject to the Debtors’ acceptance of a still higher and better offer; provided, however, that such higher and better offer must equal the sum of (a) the Minimum Overbid plus the Subsequent Bid Increment, plus (b) an amount equal to the required Subsequent Bid Increment (a “Yet Higher Offer”). In the event of a Yet Higher Offer, the process set forth in the preceding sentence shall continue and repeat at the Sale Hearing with each successive Yet Higher Offer exceeding the immediately preceding Yet Higher Offer by the amount of the Bid Increment unless and until such time as the Buyer and the other Qualified Bidders elect not to make a further bid, at which time the last Qualified Bidder or Bidders to make a Yet Higher Offer shall be approved as the winning bidder(s). In the event a Qualified Bidder makes a bid for substantially all of the Debtors’ assets, such bid must exceed by $2,000,000.00 the aggregate of (i) all bids (including overbids) made in respect of each sale contemplated by the Sale Motion, plus (ii) the value (as determined by the Debtors) of assets for which there is no bid, plus (iii) the amount of all Breakup Fees which must be paid by the Debtors to the Buyers. Each subsequent bid (or aggregation of bids and unbid assets) for substantially all of the Debtors’ assets must exceed the immediately prior bid by at least $250, 000.00.

6. Once the Minimum Overbid threshold has been met by a Qualified Bidder or multiple Qualified Bidders in accordance with the provisions set forth above, successive overbids shall be in incremental amounts of the Subsequent Bid Increment with respect to each sale. If multiple Qualified Bidders are submitting multiple bids for less than all of the assets covered by the Buyer’s original bid in competition with the Buyer or another unitary Qualified Bidder, successive overbids shall be measured by grouping the bids by the multiple bidders and aggregating their bids and the value (as determined by the Debtors) of assets for which there is no bid and comparing the aggregate value of the multiple bids and the value of unbid assets against the unitary bid(s). Each successive overbid by the multiple bidders will be aggregated and added to the value (as determined by the Debtors) of the unbid assets to determine whether such overbid is greater by the amount of the Subsequent Bid Increment than the immediately preceding overbid. If there are multiple bidders for the same asset or assets, the high bidder’s bid shall be used in determining whether the aggregate value of the multiple bids and the value of the unbid assets exceed the amount of the required Minimum or Subsequent Bid Increment, as applicable.

7. In the event the Bankruptcy Court approves the sale of all or substantially all of the Property being acquired by a particular Buyer to a person(s) other than the applicable Buyer (which is not an affiliate of such Buyer), so long as the Buyer is not in breach of the Purchase Agreement, the Debtors shall pay to such Buyer in consideration of the time and expenses incurred by the Buyer in pursuing the transactions contemplated by this Agreement, an amount described in each Purchase Agreement (the “Breakup Fee”)[8] at the earlier to occur of (a) consummation of the purchase and sale of the Property to the successful bidder or (b) the successful bidder’s deposit becoming non-refundable. In addition, a Deposit will be returned to a Buyer if such Buyer is overbid by a Qualified Bidder(s) at the Sale Hearing or if the transaction does not close due to a breach by the Debtors, unless the Buyer is in breach of the applicable Purchase Agreement. In the event the Debtors exercise their termination rights because a Buyer does not agree to pay the required Floor Price, such Buyer will be entitled to the return of the Deposit and the Debtors will have no other liability to such Buyer unless, within sixty (60) days following such termination, the Debtors consummate a sale of the Property subject to a Purchase Agreement to another party(ies) for a price which is greater than the net applicable Purchase Price that would have resulted from taking into account the foregoing closing adjustments by an amount greater than the Breakup Fee required for such transaction. In that circumstance, the Breakup Fee described in the applicable Purchase Agreement will be paid to the Buyer.

8. With respect to the Budd-Simplot Sale, only, Budd-Simplot shall have a credit which shall apply toward payment of the Purchase Price of the Property being acquired by Budd-Simplot at the closing for an amount equal to the indebtedness (in the approximate amount of $3,000,000) heretofore loaned by ABT Group LLC to Debtor; provided, however, it is expressly understood that the rights granted to Budd-Simplot with respect to such indebtedness shall apply only if, as and when the transaction contemplated herein closes with Budd-Simplot acquiring the Property described in the Budd-Simplot Purchase Agreement and that Debtor expressly reserves all of its rights and claims with respect to such indebtedness under all other circumstances. For purposes of valuing Budd-Simplot’s bid and determining the amount of the Minimum Overbid that must be made by any competing bidder and the amount of any subsequent overbids, the amount of such indebtedness shall be deducted from the value of the Budd-Simplot’s bid.