Exhibit 10.105
PROMISSORY NOTE AND SECURITY AGREEMENT
$1,375,000.00 March 10, 0000
Xxxxxxxxxx, Xxxxxxxx
AGRO POWER DEVELOPMENT, INC., a New York corporation ("Agro"), VILLAGE
FARMS OF DELAWARE, L.L.C., a Delaware limited liability company ("VFD"), and
VILLAGE FARMS, L.L.C., a Delaware limited liability company ("VF"; Agro, VFD and
VF are each referred to herein as a "Co-Obligor", and collectively as the
"Co-Obligors"), for value received and as evidence of indebtedness for borrowed
money, hereby promises to pay to COGENTRIX DELAWARE HOLDINGS, INC., a Delaware
corporation, its successors and assigns (the "Holder"), the principal sum of ONE
MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($1,375,000.00), together
with interest, in accordance with the terms and conditions set forth herein.
1. Payment of Principal and Interest. The Co-Obligors shall (a) repay the
principal balance outstanding under this Promissory Note in twenty (20) equal
quarterly installments, and (b) pay, at such times as payments of principal are
required to be paid hereunder, accrued interest on the unpaid principal balance
hereof at the rate of six percent (6%) per annum from the date this Promissory
Note is issued until the repayment in full of all outstanding principal and
accrued interest. The first quarterly payment of principal and accrued interest
shall be due and payable on September 30, 1997, and subsequent quarterly
payments shall be due and payable on each December 31, March 31, June 30 and
September 30 thereafter until and including June 30, 2002. A final payment of
all principal and accrued interest then outstanding shall be made by the
Co-Obligors on June 30, 2002. Notwithstanding the foregoing, in the event a
payment of principal and accrued interest under this Promissory Note is stated
to be due on a day that is not a Business Day (defined below), such payment
shall be due on the immediately preceding Business Day. As used herein, a
"Business Day" shall mean any day other than a Saturday, Sunday or any other day
on which commercial banks in Wilmington, Delaware are authorized or required by
law or executive order to be closed.
2. Default Interest. Notwithstanding the foregoing, the Co-Obligors hereby
promise to pay to the Holder interest at a rate per annum equal to the lesser of
ten percent (10%) or the maximum rate allowed by applicable law (the
"Post-Default Rate") on any amounts payable by the Co-Obligors under this
Promissory Note which shall not have been paid in full when due (whether at
stated maturity, by acceleration or otherwise), for the period from and
including the due date thereof to but excluding the date the same is paid in
full. Interest at the Post-Default Rate shall be payable from time to time on
demand.
3. Method of Payment. All payments of principal and interest hereunder
shall be made in lawful money of the United States of America and delivered to
the Holder at its offices located at 0000 X. Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Treasurer, or at such other place or to
such other person as the Holder may designate in writing to the Co-Obligors from
time to time.
4. Prepayment. The Co-Obligors may not prepay this Promissory Note, in
whole or in part, without the prior written consent of the Holder.
5. Events of Default. If one or more of the following events (herein called
"Events of Default") shall occur and be continuing:
(a) The Co-Obligors shall default in the payment when due of any principal
of or accrued interest on this Promissory Note or any other amount
payable by them hereunder; or
(b) Any Co-Obligor shall be in default of any note, agreement, indenture
or other document evidencing or relating to any obligation for
borrowed money in an original principal amount of $5,000,000.00 or
more; or
(c) The occurrence of any of the following with respect to any Co-Obligor
pursuant to or within the meaning of any Bankruptcy Law (as defined
below):
(i) commencement of a voluntary case or proceeding,
(ii) consent to the entry of an order for relief against it in an
involuntary case or proceeding,
(iii) consent to the appointment of a custodian, trustee or receiver
of it or for all or substantially all of its property,
(iv) making a general assignment for the benefit of its creditors,
(v) admitting in writing that it generally is unable to pay its
debts as the same become due, or
(vi) the entry by a court of competent jurisdiction of an order or
decree under any Bankruptcy Law that:
A is for relief against any Co-Obligor in an involuntary case
or proceeding,
B appoints a custodian, trustee or receiver of any Co-Obligor
or for all or substantially all of its property, or
C orders the liquidation of any Co-Obligor;
then, (1) in the case of an Event of Default other than one referred to in
clause (c) of this Section 5, the Holder may, by notice to the Co-Obligors,
declare the entire outstanding principal amount, and any and all accrued but
unpaid interest thereon, under this Promissory Note and all other amounts
payable by the Co-Obligors (or any of them) hereunder to be forthwith due and
payable, whereupon such amounts shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by each of the Co-Obligors; and (2) in the case of the
occurrence of an Event of Default referred to in clause (c)
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of this Section 5, the entire outstanding principal amount, and any and all
accrued but unpaid interest thereon, under this Promissory Note and all other
amounts payable by the Co-Obligors (or any of them) hereunder shall
automatically become immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are expressly waived by
each of the Co-Obligors.
As used herein, "Bankruptcy Law" means Title 11 of the United States Code
or any successor thereto and any state law providing for the appointment of a
receiver with respect to any Co-Obligor.
6. Security. As security for the repayment of the principal, interest and
other amounts due hereunder, and for so long as any amounts remain outstanding
hereunder, each of the Co-Obligors hereby grants to the Holder a first priority
lien on and security interest in all cash distributions or other payments which
it may receive, directly or indirectly, or which it may be entitled to receive,
directly or indirectly, nor or in the future, from Pocono Village Farms, L.P., a
Delaware limited partnership (the "Partnership"), and all proceeds thereof. With
respect to cash distributions and other payments made following the occurrence
and during the continuance of an Event of Default hereunder, (a) each of the
Co-Obligors shall direct the Partnership to make any such cash distributions or
other payments to which it may be entitled directly to the Holder, and (b) each
of the Co-Obligors agrees that any such cash distributions or other payments
actually received from the Partnership by it shall be deemed to be held in trust
by such Co-Obligor for the benefit of the Holder and shall immediately be paid
over to the Holder by such Co-Obligors. Each Co-Obligor hereby covenants that,
for so long as any amounts remain outstanding under this Promissory Note, it
will not, without the prior written consent of the Holder, xxxxx x xxxx on or
security interest in (y) any such cash distribution or other payment which it
may receive or which it may be entitled to receive now or in the future from the
Partnership, or (z) its interest in the Partnership or any right to receive
distributions or payments from any partner of the Partnership. Each Co-Obligor
hereby represents that its chief executive office and principal place of
business is located at 00 Xxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000.
7. Co-Obligors. Notwithstanding anything contained herein to the contrary,
each Co-Obligor shall be jointly and severally liable for all amounts due and
payable under this Promissory Note as though each were the sole obligor
hereunder.
8. Miscellaneous. This Promissory Note shall be governed by and construed
in accordance with the laws of the State of Delaware without application of the
principles of conflict of laws thereunder; provided, however, that the
provisions of this Promissory Note relating to the perfection and enforcement of
the lien and security interest in the Collateral, with respect to each
Co-Obligor, shall be governed by and construed in accordance with the laws of
the state where the chief executive office of each Co-Obligor is located. Each
Co-Obligor agrees to pay, in addition to any principal and interest due
hereunder, all costs incurred by the Holder to enforce this Promissory Note or
to collect amounts due hereunder, including, without limitation, reasonable
attorneys' fees and expenses. No delay or omission on the part of the Holder in
exercising any of its rights or remedies, nor shall any delay, omission or
waiver on any one occasion be deemed a waiver of, or a bar to the exercise of,
the same or any other right or remedy on any future occasion.
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IN WITNESS WHEREOF, each Co-Obligor has caused this Promissory Note to be
duly executed as of the date first above written.
AGRO POWER DEVELOPMENT, INC.
By:__________________________________________
Printed Name: J. Xxxxx Xxxx
Title: Vice President
VILLAGE FARMS OF DELAWARE, L.L.C.
By: Agro Power Development, Inc.,
Managing Member
By:__________________________________________
Printed Name: J. Xxxxx Xxxx
Title: Vice President
VILLAGE FARMS, L.L.C.
By: Agro Power Development, Inc.,
Managing Member
By:__________________________________________
Printed Name: J. Xxxxx Xxxx
Title: Vice President
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