EXHIBIT 10.92
SECOND AMENDMENT TO CREDIT AGREEMENT
(Term Loan Funding)
Parties:
"CoBank": CoBank, ACB
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
"Borrower": Village Farms International Finance Association
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
"Guarantor": Agro Power Development, Inc.
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Effective Date: September 29, 1998
Recitals:
A. CoBank, acting in its capacity as Agent (in such capacity "Agent") and
as a Syndication Party, and Borrower entered into that certain Credit Agreement
(Line of Credit Facility) dated as of June 24, 1997 (as amended from time to
time, the "LOC Credit Agreement").
B. CoBank, acting in its capacity as Agent and as a Syndication Party, and
Borrower entered into that certain Credit Agreement (Term Loan Funding) dated as
of June 24, 1997 (as amended from time to time, the "Term Credit Agreement").
C. Guarantor executed its Guaranty of Agro Power Development, Inc. dated as
of June 24, 1997 (as amended from time to time, the "Guaranty") whereby
Guarantor guaranteed payment of certain obligations of Borrower, including,
without limitation, all obligations of Borrower arising under the LOC Credit
Agreement and the Term Credit Agreement and other Loan Documents.
D. Borrower and Guarantor have requested Agent and the Syndication Parties
under the Credit Agreement to increase the loan amount available under the LOC
Credit Agreement to the principal amount of $13,319,175.00, which Agent and the
Syndication Parties are willing to do under the terms and conditions as set
forth in the Second Amendment to Credit Agreement (Line of Credit Facility) and
in this Second Amendment to Credit Agreement (Term Loan Funding) ("Second
Amendment"), including the amendments to the Term Credit Agreement set forth or
described herein, and upon the written consent of Guarantor.
Agreement:
Now, therefore, for good and valuable consideration, the receipt of which
is hereby acknowledged, including the mutual covenants contained herein, the
parties hereto hereby agree as follows:
1. Amendments to Term Credit Agreement. The Term Credit Agreement is
amended as of the Effective Date as follows:
1.1 The following definitions are added to Article 1 of the Term Credit
Agreement:
1.139 Significant Software: all software programs, equipment containing
embedded microchips, tradeware, telecommunications, physical plant and automated
processes, regularly used by Borrower in its business operations or financial
accounting which, individually, or together with one or more other such software
programs, would, if it failed to be Year 2000 Compliant, have a material adverse
effect on the business condition (financial or otherwise) of Borrower or the
operation of the business of Borrower, or Borrower's ability to perform its
obligations under this Term Credit Agreement.
1.140 Third Party Provider: means a third party vendor which provides
Significant Software.
1.141 Year 2000 Compliant: means, with respect to software, (a) that it
shall include calendar year 2000 date conversion and compatibility capabilities,
including date data century recognition, same century and multiple century
formula and date value calculations and user interface date data values that
reflect the century so that it will (i) manage and manipulate data involving
dates, including single century and multiple century dates and formulas, and
will not cause an abnormally ending scenario within the application or cause an
abort or result in the generation of incorrect values or invalid output
involving such dates, (ii) include the indication of the correct century in all
date related user interface functions, and (iii) operate in the same manner with
year dates of 2000 and beyond as it operates with year dates of 1900 to 1999;
and (b) that it shall recognize the year 2000 as a year containing February 29.
Software that is Year 2000 Compliant shall be considered to be in "Year 2000
Compliance".
1.142 Y2K Compliance Test: those procedures adopted by Borrower for testing
Borrower's Significant Software for Year 2000 Compliance.
1.2 The following definitions set forth in Article 1 of the Term Credit
Agreement are revised in their entirety to read as follows:
1.10 Aggregate Commitment: $46,680,825.00.
1.88 Maximum Syndication Amount::
For CoBank - $46,680,825.00
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1.3 A new Section 10.22 is added to Article 10 of the Term Credit Agreement
to read in its entirety as follows:
10.22. Year 2000 Compliance. Borrower represents and warrants that: (a)
Borrower has conducted an analysis of, and developed a compliance program with
respect to, all of its Significant Software, to ensure that it will be Year 2000
Compliant, and Borrower anticipates that such compliance program will be
completed on a timely basis; and (b) to the best of Borrower's knowledge, after
due inquiry, the impact of year 2000 on Borrower and the key customers and
suppliers of Borrower will not be such as to materially adversely affect the
business, condition (financial or otherwise) or operation of the business of
Borrower, taken as a whole, or to prevent Borrower from performing its
obligations hereunder.
1.4 A new Section 12.16 is added to Article 12 of the Term Credit Agreement
to read in its entirety as follows:
12.16. Year 2000 Compliance and Reports. Borrower agrees: (a) to cause all
of its Significant Software to be Year 2000 Compliant no later than July 1,
1999; (b) to require all Third Party Providers of Significant Software to
provide to Borrower, no later than July 1, 1999, proof that such software is
Year 2000 Compliant; (c) to require all third party suppliers and customers of
Borrower which are, to Borrower's knowledge, dependent upon software in the
conduct of their business such that the failure of such software to be Year 2000
Compliant could reasonably be expected to have a material adverse effect on the
business condition (financial or otherwise) of Borrower or the operation of the
business of Borrower, or Borrower's ability to perform its obligations under
this Term Credit Agreement, to provide to Borrower, no later than July 1, 1999,
proof that such software is Year 2000 Compliant; (d) to conduct a Y2K Compliance
Test on all of Borrower's Significant Software no later than July 1, 1999, and
to provide Agent with written reports on the results of all such Y2K Compliance
Tests promptly, but in no event more than thirty (30) days, after such tests are
conducted; and (e) to provide to Agent, no later than July 1, 1999, the written
certification of Borrower's chief financial officer, or other corporate officer
satisfactory to Agent, that all of Borrower's Significant Software is Year 2000
Compliant.
1.5 Exhibit 16.27 to the Term Credit Agreement is amended by changing the
reference in Recital paragraph A thereof from "$50,000,000.00" to
"$46,680,825.00".
2. Conditions to Effectiveness of this Second Amendment. The effectiveness
of this Second Amendment is subject to satisfaction, in Agent's sole discretion,
of each of the following conditions precedent:
2.1 Organizational Documents. Agent shall have received good standing
certificates, dated no more than thirty (30) days prior to the date of the
execution of this Second Amendment, for Borrower and Guarantor for their
respective states of incorporation and for each state where their operations
require qualification or authorization to transact business.
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2.2 Evidence of Corporate Action. Agent shall have received in form and
substance satisfactory to Agent documents evidencing all corporate action taken
by Borrower to authorize (including the specific names and titles of the persons
authorized to so act) the execution, delivery and performance of this Second
Amendment, certified to be true and correct by the Secretary or Assistant
Secretary of Borrower.
2.3 No Material Change. No change shall have occurred in the condition or
operations of Borrower or Guarantor since April 24, 1997 which could result in a
material adverse effect on the business, operations or financial condition of
Borrower or Guarantor.
2.4 Fees and Expenses. Borrower shall have paid Agent, by wire transfer of
immediately available federal funds all fees and expenses, including attorneys'
fees, incurred by Agent in connection with the preparation, negotiation and
execution of this Second Amendment and related documents, and the filing or
recording of any such documents.
2.5 Further Assurances. Borrower and Guarantor shall have provided and/or
executed and delivered to Agent the following documents and such further
assignments, documents or financing statements as Agent may reasonably request,
all in form and substance satisfactory to Agent:
(a) Amended and Restated Promissory Note (Line of Credit Facility).
(b) Second Amendment to Credit Agreement (Line of Credit Facility).
2.6 Representations and Warranties. The representations and warranties of
Borrower and of Guarantor contained in each of the Loan Documents to which it is
a party, shall be true and correct in all material respects on and as of the
Effective Date as though made on and as of such date.
2.7 No Event of Default. No Event of Default or Potential Default shall
have occurred and be continuing under the Guaranty or the Term Credit Agreement.
3. General Provisions.
3.1 Notwithstanding the fact that the Note is in the principal amount of
$50,000,000.00, Borrower may not request the Syndication Parties to advance, and
the Syndication Parties are not obligated to lend to Borrower, an aggregate
amount in excess of the Aggregate Commitment.
3.2 The Term Credit Agreement, except as expressly modified herein, shall
continue in full force and effect and be binding upon the parties thereto.
3.3 This Second Amendment shall be binding upon and inure to the benefit of
Borrower, Agent, and the Syndication Parties, and their respective successors
and
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assigns, except that Borrower may not assign or transfer its rights or
obligations hereunder.
3.4 Capitalized terms used, but not defined, in this Second Amendment shall
have the meaning set forth in the Term Credit Agreement.
3.5 The invalidity or unenforceability of any provision of this Second
Amendment shall not affect the remaining portions of this Second Amendment; in
case of such invalidity or unenforceability, this Second Amendment shall be
construed as if such invalid or unenforceable provisions had not been included
therein.
3.6 To the extent not governed by federal law, this Second Amendment and
the rights and obligations of the parties hereto shall be governed by and
interpreted in accordance with the internal laws of the State of Colorado,
without giving effect to any otherwise applicable rules concerning conflicts of
law.
3.7 The captions or headings in this Second Amendment are for convenience
only and in no way define, limit or describe the scope or intent of any
provision of this Second Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be executed as of the Effective Date set forth above.
COBANK:
CoBank, ACB, as Agent
By:
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Name: Xxxx Xxxxxxxxxxx
Title: Vice President
COBANK:
CoBank, ACB, as sole Syndication Party
By:
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Name: Xxxx Xxxxxxxxxxx
Title: Vice President
BORROWER:
Village Farms International Finance Association
By:
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Name:
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Title:
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AGREEMENT AND CONSENT OF GUARANTOR
Guarantor hereby consents to the contents of the foregoing Second
Amendment and reaffirms its guarantee of Borrower's obligations arising out of
the Credit Agreement as so amended.
GUARANTOR:
Agro Power Development, Inc.
By:
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Name:
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Title:
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