AG SERVICES OF AMERICA, INC.
EXHIBIT 10.21
AMENDMENT NO.1 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
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AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED LOAN
AGREEMENT is dated as of August 19, 1997, and is by and among AG
SERVICES OF AMERICA, INC., an Iowa corporation (the "Borrower");
THE FINANCIAL INSTITUTIONS parties hereto from time to time as
lenders (each, a "Bank" and collectively, the "Banks"),
and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank
Nederland", New York Branch ("Rabobank"), as agent for the Banks
hereunder (in such capacity, the "Administrative Agent").
RECITALS
The Borrower, the Banks and Rabobank entered into a Third
Amended and Restated Loan Agreement, dated as of March 12, 1997,
(the "Loan Agreement"), pursuant to which the Banks have
established a line of credit in favor of the Borrower on the
subject to the terms and conditions set forth therein. The parties
desire to amend the Loan Agreement to modify certain terms and
conditions of the Loan Agreement, all as more particularly set
forth herein.
NOW, THEREFORE, in consideration of the above premises and other
good and valuable consideration, the sum and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Amendments to Loan Agreement.
(a) Section 1.02. Section 1.02 of the Loan Agreement is
amended as follows:
(i) The definitions of "Borrowing Base Certificate",
"Eligible Advance" and "Line of Credit Borrowing Base" are
deleted and the following substituted in lieu thereof:
"Borrowing Base Certificate" shall mean a report
substantially in the form of Exhibit E to the Asset
Securitization Credit Agreement which shall also contain
such borrowing base and other information required by the
Administrative Agent relative to Inventory, Eligible
Inventory, Eligible Seed Financing Receivables, Seed
Financing Receivables and Receivables.
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"Eligible Advance" as of the date of determination shall
mean a Customer Advance in respect of a Customer Loan,
which qualifies as, and meets the definition of, an
"Eligible Advance" under the Asset Securitization Credit
Agreement.
"Line of Credit Borrowing Base" shall mean (a) on each
date of determination during the months of March, April,
May, June, July, August, September and October of each
Fiscal Year, (i) an amount equal to the positive
difference between the Borrowing Base on such date minus
(ii) the aggregate principal amount of Triple-A
Loans outstanding on such date and (b) on each date of
determination during the months of March, November,
December, January and February of each Fiscal Year, and
amount equal to the positive difference between (iii)
seventy-five percent(75.0%) of Net Aggregate Eligible
Advances on such date minus (iv) the aggregate
principal amount of Triple-A Loans outstanding on such
date plus (c) on each date of determination prior to the
Termination Date, sixty-five percent (65.0%) of the
documented invoice value of Eligible Inventory on such
date plus (d) on each date of determination date
prior to the Termination Date, fifty percent (50.0%) of
Eligible Seed Financing Receivables on such date.
(ii) Definitions of "Eligible Seed Financing
Receivables", "Eligible Inventory", "Inventory", and
"Seed Financing Receivables" are added as follows:
"Eligible Seed Financing Receivables" as of the date of
determination shall mean Seed Financing Receivables of
the Borrower in which the Banks have a valid and fully
perfected first priority Lien free and clear of all other
Liens, which have initial terms to maturity of not more
than 15 months, no portion of which remains unpaid for
more than 90 days after the original maturity date and
which are not Acquired Customer Advances.
"Eligible Inventory" as of the date determination shall
mean Inventory of the Borrower in which the Banks have a
valid and fully perfected first priority Lien free and
clear of all other Liens and which has not been
contributed by the Borrower to the capital of Ag
Acceptance pursuant to the Asset Securitization Purchase
and Contribution Agreement or purchased from the Borrower
pursuant to the Asset Securitization Purchase and
Contribution Agreement.
"Inventory" shall mean "inventory" as such term is
defined under
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Section 9-109 of the New York Uniform Commercial Code.
"Seed Financing Receivables" means Eligible Advances of
the Borrower arising in connection with customer Advances
made by the Borrower to a Customer to finance such
Customer's purchase of seed.
(b) Section 2.04. Section 2.04(a) of the Loan Agreement is
amended to read as follows:
(a) Rate Prior to Delinquency. (i) Subject to the
provisions of Section 2.04(b), each Advance comprised of Base
Rate Loans shall bear interest at a rate per annum equal to
the Base Rate plus one-half of one percent (.50%). The
interest rate on Advance comprised of Base Rate Loans shall
change as and when the Base Rate changes, effective as of
the opening of business on the day on which such chance in the
Base Rate becomes effective.
(ii) Subject to the provisions of Section 2.04(b), each
Advance comprised of Fed Funds Rate Loans shall bear interest
at a rate per annum equal to the Fed Funds Rate plus two and
one half percent (2.50%). The interest rate on Advance
comprised of said Fed Funds Rate Loans shall change as and
when the Fed Funds Rate changes, effective as of the opening
of business on the day in which such change in the Fed Funds
Rate becomes effective.
(iii) Subject to the provisions of Section 2.04(b), each
Advance comprised of LIBOR Loans shall bear interest as a rate
per annum equal to the LIBOR Rate for the Interest Period in
effect for such Advance plus two (2.00%).
(iv) Interest on each Advance shall accrue from and
including the first day of an Interest Period to but excluding
the last day of such Interest Period or the day such Advance
is paid in full if such day is other than the last day of such
Interest Period.
3. Amendment Fee. In consideration of the amendments
made to the Loan Agreement hereunder, the Borrower agrees to pay
the agent a one-time, non-refundable amendment fee in the amount of
$50,000.00 (the "Amendment Fee") which shall be due and payable at
the time this Amendment is executed by the Borrower.
4. Reaffirmation by Borrower; Collateral. The Borrower
confirms and reaffirms
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in favor of each Bank all the Borrower's obligations and agreements
under the Loan Agreement, as amended hereby and under each Loan
Document to which it is a party and confirms, reaffirms an agrees
the at payment of each Loan, each Note and the payment of all
Indebtedness to each Bank under the Loan Agreement, as amended
hereby, are and shall be secured by the Liens in the Collateral
granted under the Loan Agreement, as amended hereby, and each Loan
Document. The Borrower agrees to execute and deliver such
documents, agreements, financing statements and amendments to the
Loan Documents and to take such further action as may be necessary
in order to vest and fully perfect in each Bank all Liens in
Collateral as first priority Liens therein in each Bank to the
extent required by the Loan Agreement.
5. Representations and Warranties. In order to induce the
Administrative Agent and each Bank to execute this Amendment, the
Borrower represents and warrants as follows:
(a) The Borrower has the power and authority to execute and
perform this Amendment and the Loan Agreement, as amended hereby.
(b) The execution, delivery and performance of this
Amendment and the Loan Agreement, as amended hereby have been duly
authorized by all required corporate action.
(c) This Amendment and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
(d) No authorization, approval, or other action by, and no
notice to or filing with, any Governmental Body is required for the
due execution, delivery and performance by the Borrower of this
Amendment of the Loan Agreement, as amended hereby.
(e) No default or Event of Default has occurred and is
continuing.
(f) All the representations and warranties of the Borrower
contained in the Loan Agreement are true and correct on and as of
the date hereof as though made on and as of such date except to the
extent such representations and warranties relate solely to an
earlier date.
(g) There is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any
Governmental Body which may materially adversely affect the
condition, financial or otherwise, of operations of the Borrower.
6. Conditions Precedent. This Amendment shall not be
effective against any of the parties hereto unless and until
(a) the Amendment Fee shall have been paid to the
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Administrative Agent and (b) the Administrative Agent has been
furnished with (i) this Amendment, duly executed by all the parties
hereto, (ii) certified copies of all corporate action taken by the
Borrower, including resolutions of its Board of Directors,
authorizing the execution, deliver, and performance of this
Amendment and each other document to which it is a party and which
is requires to be delivered pursuant to this Amendment, and (iii)
all other documents, agreement, financing statements and amendments
to Loan documents as necessary in order to grant and perfect each
Lien in Collateral as first priority Liens in favor of the Banks to
the extent required by the Loan Agreement, as amended hereby.
7. Miscellaneous.
a. Upon the effectiveness of this Amendment, on and after
the date hereof, each reference in the Loan Agreement to "this
Agreement", this "Loan Agreement", "hereunder", "hereof", "herein"
or words of like import shall mean and be a reference to
the Loan Agreement as amended hereby, and each reference in the
Notes and the other Loan Documents shall mean and be reference to
the Loan Agreement, as amended hereby.
b. All capitalized terms used and not otherwise defined
herein shall have the same meaning herein as in the Loan Agreement.
c. This Amendment may be executed in any number of
counterparts or facsimile counterparts, each of which shall be an
original and all of which shall constitute one agreement and it
shall not be necessary in making proof of this Amendment to produce
or account for more than one counterpart.
d. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York without regard
to principles of conflicts of laws.
e. The Borrower shall pay on demand all costs and expenses
of the Administrative Agent and the Banks in connection with the
preparation, review and negotiation of this Amendment and the other
instruments and documents to be delivered hereunder, including,
without limitation, the reasonable fees, expenses and out-of-pocket
costs of counsel (who may be in-house counsel) for the
Administrative Agent or the Banks with respect thereto, with
respect to advising the Administrative Agent or the Banks as to its
or their rights and responsibilities hereunder and thereunder and
with respect to the enforcement of its or their rights hereunder,
under any Note or under the Loan Agreement, as amended hereby,
under any Loan Document and the maintenance or perfection of any
Lien in Collateral (including compensation of all agents, attorneys
and accountants employed by the Administrative Agent or the Bank
with respect thereto). In addition, the Borrower shall pay any and
all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder, and
agrees to save the
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Administrative Agent and each Bank harmless from and against any
and all liabilities with respect to or resulting from any delay in
paying or omission to pay taxes.
f. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of the Administrative
Agent or the Banks under the Loan Agreement, nor constitute a
waiver of any provision of the Loan Agreement.
g. This Amendment represents the final agreement by and
among the Borrower, the Administrative Agent and the Banks as to
the subject matter hereof and may not be contradicted by evidence
of prior, contemporaneous or subsequent oral agreements of the
parties. There are no unwritten oral agreement between the
parties.
h. Except for the amendments made hereby, in all other
respects the Loan Agreement and each other Loan Document shall
remain in full force and effect.
8. Acknowledgment. The Borrower hereby acknowledges
receipt of a copy of this Amendment and each other document at any
time executed by a debtor in connection with this Amendment or with
the Indebtedness to the Banks under the Loan Agreement, as amended
hereby.
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IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE
TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTER CONTRACT
MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF
THIS AGREEMENT ONLY BY ANOTHER WRITTER AGREEMENT.
IN WITNESS WHEROF, the Borrower, each Bank and the Administrative
Agent have
caused this agreement to be duly executed by their duly authorized
officers, all as of the
day and year above written.
AG SERVICES OF AMERICA, INC.
(Borrower)
By: _________________________
Xxxxx X. Xxxxxxxx,
President
By: _________________________
Xxxx Xxxxxxxx,
Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "Rabobank
Nederland", New York Branch
(Administrative Agent and Bank)
By: _________________________
Name: __________________
Title:__________________
By: _________________________
Name: __________________
Title:__________________
AG SERVICES OF AMERICA, INC.
EXHIBIT 10.22
AMENDMENT NO. 2 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
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AMENDMENT NO. 2 TO THIRD AMENDED
AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO. 2 TO THIRD AMENDED AND RESTATED LOAN
AGREEMENT is dated as of April 19, 1998, and is by and among AG
SERVICES OF AMERICA, INC., an Iowa corporation (the
"Borrower"); THE FINANCIAL INSTITUTIONS parties hereto from time
to time as lenders (each, a "Bank" and collectively, the "Banks"),
and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B A., "Rabobank
Nederland", New York Branch ("Rabobank"), as agent for the Banks
hereunder (in such capacity, the "Administrative Agent").
RECITALS
The Borrower, the Banks and Rabobank entered into a Third
Amended and Restated Loan Agreement, dated as of March 12, 1997, as
amended by Amendment No.1 to Third Amended and Restated Loan
Agreement, dated as of August 19, 1997 (as amended, the "Loan
Agreement"), pursuant to which the Banks have established a line of
credit in favor of the Borrower on and subject to the terms and
conditions set forth therein. The parties desire to amend the Loan
Agreement to establish a separate Credit Facility in favor of the
Borrower and to modify certain terms and conditions of the Loan
Agreement, all as more particularly set forth herein.
NOW, THEREFORE, in consideration of the above premises and other
good and valuable consideration, the sum and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Amendments to Loan Agreement. The Loan Agreement is
amended as follows:
(a) Section 1.02. Section 1.02 of the Loan Agreement is
amended as follows:
(i) The definitions of each of the terms referenced in
SCHEDULE 1 .02A attached hereto shall replace the definition of
such defined term set forth in Section 1.02 of the Loan Agreement.
(ii) The defined terms set forth in SCHEDULE 1 .02B
attached hereto are added to Section 1.02.
(b) Section 2.02. Section 2.02 of the Loan Agreement is
amended by deleting the reference to "Stated Line of Credit
Commitment Amount" and by substituting therefor "Line of Credit
Commitment". The Loan Agreement is amended accordingly.
(c) Article II. Article II of the Loan Agreement in amended
by adding a Section 2.20 thereto as follows:
Section 2A.20. Reference to Advances. Each reference in this
Article II to "Advances" or an "Advance" shall mean and refer,
respectively, to Line of Credit Advances and a Line of Credit
Advance.
(d) Article IIA. The Loan Agreement is amended by adding an
Article IIA which contains the terms, conditions and provisions set
forth in SCHEDULE 'IA attached hereto.
(e) Section 2.03. Each reference to "Loan" in Section 2.03
shall mean and refer to the "Total Line of Credit Loan". The Loan
Agreement is amended accordingly.
(f) Section 12.10. Each reference to "Line of Credit Loans"
in Section 12.10 shall mean and refer to "Loans". The Loan
Agreement is amended accordingly.
(g) Section 13.14. Each reference to "Line of Credit Loan" in
Section 13.14 shall mean and refer to "Loans". The Loan Agreement
is amended accordingly.
(h) Section 13.15. Each reference to "Line of Credit Loans"
in Section 13.15 shall mean and refer to "Loans". The Loan
Agreement is amended accordingly.
(i) Exhibits and Schedules.
(i) Exhibit G. Exhibit G to the Loan Agreement is
deleted and Exhibit G attached hereto is substituted therefor.
(ii) Exhibit H. An Exhibit H in the form of Exhibit H
attached is added to the Loan Agreement.
(iii) Schedule I. Schedule I to the Loan Agreement is
amended and Schedule I attached hereto is substituted therefor.
3. Reaffirmation by Borrower Collateral. The Borrower
confirms and reaffirms in favor of each Bank all the Borrower 5
obligations and agreements under the Loan Agreement, as amended
hereby, and under each Loan Document to which it is a party and
confirms, reaffirms and agrees that payment of each Loan, each Note
and the payment of all Indebtedness to each Bank under the Loan
Agreement, as amended hereby, are and shall be secured by the Liens
in the Collateral granted under the Loan Agreement, as amended
hereby,
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including, without limitation, each Customer Loan (including each
Intermediate Term Customer Loan) and related Customer Loan
Documents and each Loan Document. The Borrower agrees to execute
and deliver such documents, agreements, financing statements and
amendments to the Loan Documents and to take such further action as
may be necessary in order to vest and fully perfect in each Bank
all Liens in Collateral as first priority Liens therein in each
Bank: to the extent required by the Loan Agreement.
4. Representations and Warranties. In order to induce the
Administrative Agent and each Bank to execute this Amendment, the
Borrower represents and warrants as follows:
(a) The Borrower has the power and authority to execute and
perform this Amendment and the Loan Agreement, as amended hereby.
(b) The execution, delivery and performance of this Amendment
and the Loan Agreement, as amended hereby, have been duly
authorized by all required corporate action.
(c) This Amendment, the Intermediate Term Credit Note and the
Loan Agreement, as amended hereby, constitute legal, valid and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(d) No authorization, approval, or other action by, and no
notice to or filing with, any Governmental Body is required for the
due execution, delivery and performance by the Borrower of this
Amendment of the Loan Agreement, as amended hereby.
(e) No Default or Event of Default has occurred and is
continuing.
(f) All the representations and warranties of the Borrower
contained in the Loan Agreement are true and correct on and as of
the date hereof as though made on and as of such date, except to
the extent such representations and warranties relate solely to an
earlier date.
(g) There is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any
Governmental Body which may materially adversely affect the
condition, financial or otherwise, or operations of the Borrower.
5. Conditions Precedent. This Amendment shall not be
effective against any of the parties hereto unless and until the
Administrative Agent has been furnished with the following:
(a) This Amendment, duly executed by all the parties hereto.
(b) The Intermediate Term Credit Note, duly executed by the
Borrower.
(c) Certified copies of all corporate action taken by the
Borrower, including resolutions of its Board of Directors,
authorizing the execution, delivery, and performance of this
Amendment and each other document to which it is a party and which
is required to be delivered pursuant to this Amendment.
(d) An Intercreditor Agreement in form and content
satisfactory to the Administrative Agent, between the Borrower and
Ag Acceptance pertaining to their relative priorities in collateral
securing loans and advances made to common Customers, duly executed
by the Borrower and Ag Acceptance and consented to and approved by
CapMAC, Triple-A One and Rabobank.
(e) A certificate of the Secretary or an Assistant Secretary
of the Borrower as to (i) the Articles of Incorporation and the
Bylaws of the Borrower having not been amended, modified or changed
in any manner since March 12, 1997, and (ji) the incumbency of the
officer or officers of the Borrower who sign this Amendment, the
Intermediate Term Credit Note and such other documents,
instruments, amendments and modifications to be executed by the
Borrower in connection with this Amendment, including therein a
signature specimen of such officer or officers.
(f) The favorable written opinion of legal counsel to the
Borrower, in form, content and substance satisfactory to the
Administrative Agent, to the effect that (i) this Amendment, the
Intermediate Term Credit Note, the Intercreditor Agreement and such
other documents, instruments, amendments and modifications to be
executed by the Borrower in connection with or pursuant to this
Amendment have been duly authorized by all necessary corporate
action on behalf of the Borrower and each has been duly executed
and delivered on behalf of the Borrower and are valid, binding and
enforceable against the Borrower in accordance with the terms
thereof, (ii) to the knowledge of such counsel, there is no
provision in any indenture, contract or agreement to which the
Borrower is a party or by which it is bound which prohibits the
execution and delivery by the Borrower of this Amendment, the
Intermediate Term Credit Note, the Intercreditor Agreement or any
such other document, instrument, amendment or modification to be
executed by the Borrower in connection with or pursuant to this
Amendment or which prohibits the performance or observance by a
Borrower of this Amendment, the Intermediate Term Credit Note, the
Intercreditor Agreement or any such other document, instrument,
amendment or modification to be executed by the Borrower in
connection with or pursuant to this Amendment and covering such
other matters as the Administrative Agent shall reasonably request.
(g) All other documents, agreements, financing statements and
amendments to Loan Documents as necessary in order to grant and
perfect each Lien in Collateral as first priority Liens in favor of
the Banks to the extent required by the Loan Agreement, as amended
hereby.
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6. Miscellaneous.
(a) Upon the effectiveness of this Amendment, on and after
the date hereof, each reference in the Loan Agreement to "this
Agreement", this "Loan Agreement", "hereunder", "hereof', "herein"
or words of like import shall mean and be a reference to the Loan
Agreement as amended hereby, and each reference in the Notes and
the other Loan Documents shall mean and be reference to the Loan
Agreement, as amended hereby.
(b) All capitalized terms used and not otherwise defined
herein shall have the same meaning herein as in the Loan Agreement,
as amended hereby.
(c) This Amendment may be executed in any number of
counterparts or facsimile counterparts, each of which shall be an
original and all of which shall constitute one agreement and it
shall not be necessary in making proof of this Amendment to produce
or account for more than one counterpart.
(d) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York without regard
to principles of conflicts of laws.
(e) The Borrower shall pay on demand all costs and expenses
of the Administrative Agent and the Banks in connection with the
preparation, review and negotiation of this Amendment and the other
instruments and documents to be delivered hereunder, including,
without limitation, the reasonable fees, expenses and out-of-pocket
costs of counsel (who may be in-house counsel) for the
Administrative Agent or the Banks with respect thereto, with
respect to advising the Administrative Agent or the Banks as to its
or their rights and responsibilities hereunder and thereunder and
with respect to the enforcement of its or their rights hereunder,
under any Note or under the Loan Agreement, as amended hereby,
under any Loan Document and the maintenance or perfection of any
Lien in Collateral (including compensation of all agents, attorneys
and accountants employed by the Administrative Agent or the Bank
with respect thereto). In addition, the Borrower shall pay any and
all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder, and
agrees to save the Administrative Agent and each Bank harmless from
and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay taxes. The Borrower
shall not be required to pay or reimburse the Administrative Agent
more than $7,500 for legal fees (which shall not include related
out-of-pocket expenses of legal counsel) incurred by the
Administrative Agent in connection with the preparation, review and
negotiation of this Amendment and the other instruments and
documents to be delivered hereunder.
(f) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of the
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Administrative Agent or the Banks under the Loan Agreement, nor
constitute a waiver of any provision of the Loan Agreement.
(g) This Amendment represents the final agreement by and
among the Borrower, the Administrative Agent and the Banks as to
the subject matter hereof and may not be contradicted by evidence
of prior, contemporaneous or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the
parties.
(h) Except for the amendments made hereby, in all other
respects the Loan Agreement and each other Loan Document shall
remain in full force and effect.
7. Acknowledgement. The Borrower hereby acknowledges receipt
of a copy of this Amendment, the Intermediate Term Credit Note, the
Intercreditor Agreement and each other document at any time
executed by a debtor in connection with this Amendment or with the
Indebtedness to the Banks under the Loan Agreement, as amended
hereby.
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IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS
OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, the Borrower, each Bank and the Administrative
Agent have caused this Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written
AG SERVICES OF AMERICA, INC
(Borrower)
By: ___________________________
Xxxxx X. Xxxxxxxx
President
By: ___________________________
Xxxx Xxxxxxxx,
Vice President
COOPERATIEVE CENTRALE RAIFFEISENBOERENLEENBANK
B.A., "Rabobank Nederland", New York Branch
(Administrative Agent and Bank)
By: ___________________________
Name: _____________________________
Title: ______________________________
By: ___________________________
Name: ___________________________
Title: ______________________________
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SCHEDULE I
COMMITMENTS AND LENDING OFFICES
Lending Offices
Name of Bank Lending Office
--------------------- -------------------
Cooperatieve Centrale Raiffeisen- Rabobank Nederland
Boerenleenbank B.A. "Rabobank 000 Xxxx Xxxxxx
Xxxxxxxxx", Xxx Xxxx Branch Xxx Xxxx, Xxx Xxxx 00000
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Line of Credit Commitments
and
Total Line of Credit Commitment
Name of Bank Line of Credit Commitment
---------------------- -------------------------
Cooperatieve Centrale Raiffeisen- $8,500,000.00
Boerenleenbank B.A. "Rabobank
Nederland", New York Branch
Total Line of Credit Commitment $8,500,000.00
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Intermediate Term Credit Commitments
and
Total Intermediate Term Credit Commitment
Intermediate Term
Name of Bank Credit Commitment
------------------------------ -----------------
Cooperatieve Centrale Raiffeisen- $20,000,000.00
Boerenleenbank B.A. "Rabobank
Nederland", New York Branch
Total Intermediate Term Credit Commitment $20,000,000.00
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SCHEDULE 1.02A
REPLACEMENT DEFINED TERMS
"Advance" shall mean each Line of Credit Advance made by the Banks
on a single date or each Intermediate Term Advance made by the
Banks on a single date, or both, as the context dictates.
"Base Rate Loan" shall mean each Line of Credit Loan or each
Intermediate Term Loan bearing interest at a rate determined by
reference to the Base Rate, or both, as the context dictates.
"Borrowing Base Certificate" shall mean a report substantially in
the form of Exhibit E to the Asset Securitization Credit Agreement
and otherwise acceptable to the Administrative Agent and which
shall also contain such borrowing base and other information
required by the Administrative Agent relative to Inventory,
Eligible Inventory, Eligible Seed Financing Receivables, Seed
Financing Receivables, Receivables, Intermediate Term Customer
Loans and related Customer Collateral and the Intermediate Term
Credit Borrowing Base.
"Borrowing Base Deficit" shall mean, at any time, the amount, if
any, by which the then outstanding principal amount of the Total
Line of Credit Loan exceeds the Line of Credit Borrowing Base then
in effect.
"Commitment" shall mean each Bank's obligation, if any, to make
Line of Credit Loans and Intermediate Term Loans to the Borrower
hereunder.
"Customer Collateral" shall mean the collateral and Property in
which a Lien has been granted, or which has been assigned, to the
Borrower to secure payment of a Customer Loan or other Indebtedness
owed to the Borrower by a Customer, including, without limitation
(a) all of the Borrower's right, title and interest in and to the
payments to be made by the Customer and any other rights which are
assignable under the related Customer Loan Documents, (b) all
security interests or liens and property subject thereto from time
to time purporting to secure payment of such Customer Loan, whether
pursuant to the Customer Loan Documents related to such Customer
Loan or otherwise, including, without limitation, all interest in
Crop Insurance with respect to such property, all Equipment and all
Real Estate (c) all Records, (d) guaranties and other agreements or
arrangements of whatever character from time to time supporting or
securing payment of such Customer Loan whether pursuant to the
Customer Loan Documents related to such Customer Loan or otherwise,
and (e) all rights under warranties, indemnities, insurance with
respect to the Customer Loans, the related Customer Loan Documents
or other Customer Collateral described above.
-4-
"Fed Funds Rate Loan" shall mean each Line of Credit Loan and each
Intermediate Term Loan bearing interest at a rate determined by
reference to the Fed Funds Rate.
"Fixed Rate Loan" shall mean each Line of Credit Loan bearing
interest determined by reference to the LIBO Rate or each
Intermediate Term Loan bearing interest determined by reference to
the LIBO Rate, or both, as the context dictates.
"Interest Period" shall mean (a) as to any Advance comprised of
Fixed Rate Loans, the period commencing on the date such Advance is
made, or on the last day of the immediately preceding Interest
Period applicable to such Advance, as the case may be, and ending,
on the numerically corresponding day (or if there is no numerically
corresponding day, on the last day) in the calendar month that is
1, 2 or 3 months thereafter in the case of an Advance which is a
Line of Credit advance, or in the calendar month that is 1, 2, 3 or
6 months thereafter, in the case of an Advance which is an
Intermediate Term Credit Advance, as the Borrower may select, and
(b) as to any Advance comprised of Variable Rate Loans, the period
commencing on the date such Advance is made or on the last day of
the immediately preceding Interest Period applicable to such
Advance, as the case may be and ending on the earlier to occur of
(i) the date such Advance is converted to or refinanced as a Fixed
Rate Loan or as a Variable Rate Loan whose interest rate is
determined by reference to a different Type of Variable Rate or
(ii) the Termination Date; provided, however, (x) each Interest
Period applicable to an Advance comprised of Fixed Rate Loans that
commences on the last Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month; (y) no
Interest Period may extend beyond the Line of Credit Maturity Date,
in the case of each Advance which is a Line of Credit Advance, or
the Intermediate Term Credit Maturity Date, in the case of each
Advance which is an Intermediate Term Credit Advance; and (z) if an
Interest Period would end on a day that is not a Business Day, such
Interest Period shall be extended to the next Business Day unless
such Business Day would fall in the next calendar month, in which
event such Interest Period shall end on the immediately preceding
Business Day.
"Line of Credit Advance" shall mean a group of Line of Credit
Loans of a single Type made by the Banks on a single date and as to
which a single Interest Period is in effect.
"Loan" shall mean the aggregate of all outstanding Line of
Credit Loans of the Banks and the aggregate of all outstanding
Intermediate Term Credit Loans of the Banks.
"Loan Fees" shall mean the Line of Credit Facility Fee, the
Intermediate Term Credit Facility Fee and each Default Fee.
-2-
"Termination Date" shall mean the earliest of (a) the Line of
Credit Maturity Date or (b) the Intermediate Term Credit Maturity
Date, or (c) the date on which the Commitments are terminated
pursuant to Section 10.02(a) hereof
"Type", when used in respect of an Advance or a Loan, shall refer
to the Rate by reference to which interest on such Advance or Loan
is determined. For purposes hereof, the term "Rate" shall include
the LIBO Rate, the Base Rate or the Fed Funds Rate.
-3-
SCHEDULE I
COMMITMENTS AND LENDING OFFICES
Lending Offices
Name of Bank Lending Office
--------------------- --------------
Cooperatieve Centrale Raiffeisen- Rabobank Nederland
Boerenleenbank B.A. "Rabobank 000 Xxxx Xxxxxx
Xxxxxxxxx", Xxx Xxxx Branch Xxx Xxxx, Xxx Xxxx 00000
-2-
Line of Credit Commitments
and
Total Line of Credit Commitment
Name of Bank Line of Credit Commitment
------------------------ -------------------------
Cooperatieve Centrale Raiffeisen- $8,500,000.00
Boerenleenbank B.A. "Rabobank
Nederland", New York Branch
Total Line of Credit Commitment $8,500,000.00
-3-
Intermediate Term Credit Commitments
and
Total Intermediate Term Credit Commitment
Intermediate Term
Name of Bank Credit Commitment
----------------------- ------------------
Cooperatieve Centrale Raiffeisen- $20,000,000.00
Boerenleenbank B.A. "Rabobank
Nederland", New York Branch
Total Intermediate Term Credit Commitment $20,000,000.00
-4-
SCHEDULE 1.02A
REPLACEMENT DEFINED TERMS
"Advance" shall mean each Line of Credit Advance made by the
Banks on a single date or each Intermediate Term Advance made by
the Banks on a single date, or both, as the context dictates.
"Base Rate Loan" shall mean each Line of Credit Loan or each
Intermediate Term Loan bearing interest at a rate determined by
reference to the Base Rate, or both, as the context dictates.
"Borrowing Base Certificate" shall mean a report substantially
in the form of Exhibit E to the Asset Securitization Credit
Agreement and otherwise acceptable to the Administrative Agent and
which shall also contain such borrowing base and other information
required by the Administrative Agent relative to Inventory,
Eligible Inventory, Eligible Seed Financing Receivables, Seed
Financing Receivables, Receivables, Intermediate Term Customer
Loans and related Customer Collateral and the Intermediate Term
Credit Borrowing Base.
"Borrowing Base Deficit" shall mean, at any time, the amount,
if any, by which the then outstanding principal amount of the Total
Line of Credit Loan exceeds the Line of Credit Borrowing Base then
in effect.
"Commitment" shall mean each Bank's obligation, if any, to
make Line of Credit Loans and Intermediate Term Loans to the
Borrower hereunder.
"Customer Collateral" shall mean the collateral and Property
in which a Lien has been granted, or which has been assigned, to
the Borrower to secure payment of a Customer Loan or other
Indebtedness owed to the Borrower by a Customer, including, without
limitation (a) all of the Borrower's right, title and interest in
and to the payments to be made by the Customer and any other rights
which are assignable under the related Customer Loan Documents, (b)
all security interests or liens and property subject thereto from
time to time purporting to secure payment of such Customer Loan,
whether pursuant to the Customer Loan Documents related to such
Customer Loan or otherwise, including, without limitation, all
interest in Crop Insurance with respect to such property, all
Equipment and all Real Estate (c) all Records, (d) guaranties and
other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Customer
Loan whether pursuant to the Customer Loan Documents related to
such Customer Loan or otherwise, and (e) all rights under
warranties, indemnities, insurance with respect to the Customer
Loans, the related Customer Loan Documents or other Customer
Collateral described above.
"Fed Funds Rate Loan" shall mean each Line of Credit Loan and
each Intermediate Term Loan bearing interest at a rate determined
by reference to the Fed Funds Rate.
"Fixed Rate Loan" shall mean each Line of Credit Loan bearing
interest determined by reference to the LIBO Rate or each
Intermediate Term Loan bearing interest determined by reference to
the LIBO Rate, or both, as the context dictates.
"Interest Period" shall mean (a) as to any Advance comprised
of Fixed Rate Loans, the period commencing on the date such Advance
is made, or on the last day of the immediately preceding Interest
Period applicable to such Advance, as the case may be, and ending,
on the numerically corresponding day (or if there is no numerically
corresponding day, on the last day) in the calendar month that is
1, 2 or 3 months thereafter in the case of an Advance which is a
Line of Credit advance, or in the calendar month that is 1, 2, 3 or
6 months thereafter, in the case of an Advance which is an
Intermediate Term Credit Advance, as the Borrower may select, and
(b) as to any Advance comprised of Variable Rate Loans, the period
commencing on the date such Advance is made or on the last day of
the immediately preceding Interest Period applicable to such
Advance, as the case may be and ending on the earlier to occur of
(i) the date such Advance is converted to or refinanced as a Fixed
Rate Loan or as a Variable Rate Loan whose interest rate is
determined by reference to a different Type of Variable Rate or
(ii) the Termination Date; provided, however, (x) each Interest
Period applicable to an Advance comprised of Fixed Rate Loans that
commences on the last Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month; (y) no
Interest Period may extend beyond the Line of Credit Maturity Date,
in the case of each Advance which is a Line of Credit Advance, or
the Intermediate Term Credit Maturity Date, in the case of each
Advance which is an Intermediate Term Credit Advance; and (z) if an
Interest Period would end on a day that is not a Business Day, such
Interest Period shall be extended to the next Business Day unless
such Business Day would fall in the next calendar month, in which
event such Interest Period shall end on the immediately preceding
Business Day.
-4-
"Line of Credit Advance" shall mean a group of Line of Credit
Loans of a single Type made by the Banks on a single date and as to
which a single.
"Loan" shall mean the aggregate of all outstanding Line of
Credit Loans of the Banks and the aggregate of all outstanding
Intermediate Term Credit Loans of the Banks.
"Loan Fees" shall mean the Line of Credit Facility Fee, the
Intermediate Term Credit Facility Fee and each Default Fee.
"Termination Date" shall mean the earliest of (a) the Line of
Credit Maturity Date or (b) the Intermediate Term Credit Maturity
Date, or (c) the date on which the Commitments are terminated
pursuant to Section 10.02(a) hereof
"Type", when used in respect of an Advance or a Loan, shall
refer to the Rate by reference to which interest on such Advance
or Loan is determined. For purposes hereof, the term "Rate" shall
include the LIBOR Rate, the Base Rate or the Fed Funds Rate.
-3-
SCHEDULE 1.02B
ADDITIONAL DEFINED TERMS
"Collateral Allocation Amount" shall mean, with respect
to any Primary Intermediate Term Customer Collateral securing
payment of a Customer Crop Input Loan to a Customer, the collateral
value thereof, if any, allocated and used by the Borrower to
support the credit limit established by the Borrower for such
Customer Crop Input Loan in accordance with the Credit Policy as
set forth in the Collateral Allocation Summary most recently
furnished to the Bank.
"Collateral Allocation Summary" shall mean a written
allocation summary, in form and content satisfactory to the
Administrative Agent and completed and signed by a responsible
officer of the Borrower, setting forth the Customer Allocation
Amount allocated and used by the Borrower to support a credit limit
established by the Borrower in respect of a Customer Crop Input
Loan and specifying the Customer Crop Input Loan and amount of the
credit limit established therefor.
"Crop Input Collateral" shall mean, in respect of a
Customer Crop Input Loan, the crops securing such Customer Crop
Input Loan and Crop Insurance relating to or covering such Crops
and the entitlement and payments due or to become due in accordance
with or under applicable government programs which have been
assigned to the Borrower to secure payment of such Customer Crop
Input Loan.
"Customer Claim" means any dispute, claim, offset or
defense of the Customer of a Customer Loan, including, without
limitation, the defense of usury, or any other claim of such
Customer against or adjustment to such Customer Loan resulting from
the transaction out of which such Customer Loan arose or any
related or unrelated transaction.
"Customer Concentration Limit" shall mean, as of any date
of determination, with respect to a Customer under an Intermediate
Term Customer Loan, the amount equal to the highest aggregate
unpaid principal balance of Customer Loans made to such Customer on
any single day during the 14 month period immediately preceding
such date; provided, however, the Customer Concentration Limit with
respect to a Customer shall be calculated as if such Customer and
all of such Customer's Affiliates were one Customer.
"Customer Crop, Input Loan" shall mean a Customer Loan
made by the Borrower to a Customer to finance products and inputs
associated with current growing year crops and which is secured by
such crops.
"Debtor Relief Laws" shall have the meaning attributed to
it is the Credit Agreement.
"Delinquent Intermediate Term Customer Loan" shall mean,
as of any date of determination, any Intermediate Term Customer
Loan with respect to which (a) any required payment or portion
thereof remains unpaid more than 60 days past the original due date
of such payment, (b) a material default exists (whether material or
otherwise, (c) there is in effect any waiver by the Borrower of any
material default or (d) any event or circumstance exists that
would, with notice, the passage of time or both, become a material
default in respect of such Intermediate Term Loan.
"Eligible Intermediate Term Advance" means, at any time,
a Customer Advance in respect of an Intermediate Term Customer
Loan:
(a) which is currently owing under an Intermediate Term
Customer Loan Note which has been duly authorized and which,
together with the related Customer Loan Documents, is in full force
and effect and constitutes the legal, valid and binding obligation
of the Customer of such Customer Advance to pay the outstanding
principal amount of such Customer Advance and interest thereon, and
the related Customer Loan Documents are enforceable against such
Customer in accordance with their respective terms except as
limited by Debtor Relief Laws and except as such enforceability may
be limited by general provisions of equity;
(b) which arose in the ordinary course of business of the
Borrower under Customer Loan Documents, the performance of which
have been completed by the Borrower and by all other parties
other than the Customer, and all advances, goods or services in
connection therewith have been delivered to or performed for the
Customer;
(c) the Customer of which is not also a Customer in respect
of a Delinquent Intermediate Term Customer Loan;
(d) the Customer of which is not the Customer of any Customer
Loan which has been, or which pursuant to the Credit Policy should
be, written off as uncollectible;
(e) the Customer of which is not a Governmental Body;
(f) which, together with the Customer Loan Documents related
thereto, is an "account", a "general intangible", "chattel paper"
or an "instrument" within the meaning of the UCC of all
jurisdictions which govern the perfection of the Borrower's
interest therein;
(g) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations or declarations
with, any Governmental Body required to be obtained, effected or
given in connection with the making of such Customer Advance have
been duly
-2-
obtained, effected or given and are in full force and effect;
(h) the Customer of which is not an Affiliate of any of the
parties hereto;
(i) the Customer in respect of which is organized in and a
resident of the United States;
(j) which is denominated and payable only in United States
Dollars in the United States;
(k) which (i) in the case of a Customer Advance comprising
an Intermediate Term Customer Loan which is an Intermediate Term
Customer Loan-Real Estate, has a final maturity date which is not
later than seven years after the date of the initial Customer
Advance with respect thereto and has an amortization of principal
or of principal and interest over a period of not more than 15
years and (ii) in the case of a Customer Advance comprising an
Intermediate Term Customer Loan which is in Intermediate Term
Customer Loan-Equipment, has a fixed maturity date which is not
later than five years after the date of the initial Customer
Advance with respect thereto;
(l) which bears interest either (i) at a fluctuating per
annum rate equal to or in excess of the prime rate as reported in
the Midwestern edition of the Wall Street Journal as in effect from
time to time (or, if less, the maximum non-usurious rate), or (ii)
in respect of Customers who are residents of Arkansas, at a fixed
interest rate per annum, which as of the date of the Note, is equal
to or in excess of the prime rate as reported in the Midwestern
edition of the Wall Street Journal as in effect on such date (or,
if less, the maximum non-usurious rate);
(m) which, together with the Customer Loan Documents related
thereto, does not contravene in any material respect any laws,
rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to usury, truth in
lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy) and with
respect to which no party to the Customer Loan Documents related
thereto is in material violation of any such law, rule or
regulation in any respect;
(n) which is prepayable without penalty and, together with
the related Customer Loan Documents and related Customer
Collateral, is fully assignable;
(o) which has been originated pursuant to and satisfies in
all material respects all applicable requirements of the Credit
Policy;
(p) with respect to which only one current original Customer
Note exists, which Customer Note has been delivered to the
Custodian;
-3-
(q) which is secured by a perfected security interest in the
related Customer Collateral granted in favor of the Borrower, which
security interest has the priority required for such security
interest in the related Customer Loan Documents and the Credit
Policy;
(r) which has not been compromised, adjusted or similarly
modified and is not subject to any Customer Claims whatsoever and
which did not arise pursuant to Customer Loan Documents giving the
Customer an explicit right of offset;
(s) which was made under the existing Customer Loan
Documents, which Customer Loan Documents have not been modified for
negative credit reasons, except as agreed to by the Administrative
Agent;
(t) with respect to which the Customer Loan Documents are
complete in accordance with the Credit Policy;
(u) which Intermediate Term Customer Loan has not been
classified by the Borrower as "doubtful" or "loss" under the Credit
Policy;
(v) the unpaid principal balance of which at no time exceeds
the Primary Intermediate Term Customer Sub-Limit in respect of the
Primary Intermediate Term Customer Collateral securing payment of
such Intermediate Term Customer Loan minus (i) the unpaid balance
at such time of other Indebtedness (including unpaid interest)
secured by Liens in such Primary Intermediate Term Customer
Collateral which have priority over or rank equally with or to the
Lien in such Primary Intermediate Term Customer Collateral securing
payment of such Intermediate Term Customer Loan minus (ii) the
amount of any Lien against such Primary Intermediate Term Customer
Collateral for taxes or assessment or other governmental charges or
levies which are at such time due, delinquent or payable minus
(iii) the Collateral Allocation Amount, if any, applicable to such
Primary Intermediate Term Customer Collateral;
(x) which is secured by a perfected Lien in Primary
Intermediate Term Customer Collateral granted in favor of the
Borrower pursuant to the Customer Loan Documents related to such
Intermediate Term Customer Loan;
(y) the Customer in respect of which is also a Customer under
a Customer Crop Input Loan at the time the initial Customer Advance
in respect of such Intermediate Term Customer Loan is made;
(z) which is secured by the Crop Input Collateral securing
payment of the Customer Crop Input Loan to the Customer which is
also the Customer under such Intermediate Term Customer Loan;
-4-
(aa) which does not refinance an outstanding Customer Loan
originally made as a Customer Crop Input Loan;
(bb) the Customer Concentration Limit of the Customer with
respect to which does not exceed $3,525,000.00; and
(cc) which the Administrative Agent has not notified the
Servicer or the Borrower that the Administrative Agent has
determined, in its sole discretion, that such Customer Loan is not
acceptable for eligibility hereunder.
"Equipment" shall mean equipment and materials used for
agricultural or farming purposes.
"Intermediate Term Credit" shall have the meaning attributed
to it in Section 2A.0l hereof
"Intermediate Term Credit Advance" shall mean a group of
Intermediate Term Credit Loans of a single Type made by the Banks
on a single date and as to which a single Interest Period is in
effect.
"Intermediate Term Credit Adjustment Factor" shall mean, at
anytime, an amount equal to the aggregate of the following amounts
computed for each Customer of an Eligible Intermediate Term
Advance (calculated as if such Customer and all Related Customers
of such Customer were one Customer): the excess of (a) the
aggregate outstanding principal amount of Eligible Intermediate
Term Advances (if any) extended to a Customer over (b) the
aggregate credit limit amounts established for such Customer by
the Borrower in ac6~rdance with the Credit Policy in respect of the
Customer Crop Input Loan of such Customer.
"Intermediate Term Credit Applicable Percentage" shall mean,
at any time with respect to a Bank, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at
such time of such Bank's Intermediate Term Credit Commitment
divided by the Total Intermediate Term Credit Commitment at such
time.
"Intermediate Term Credit Borrowing Base" shall mean, at any
time, eighty-five percent (85.0%) of Net Aggregate Eligible
Intermediate Term Advances at such time.
"Intermediate Term Credit Borrowing Base Deficit" shall mean,
at any time, the amount, if any, by which the then outstanding
principal amount of the Total Intermediate Term Credit Loan exceeds
the Intermediate Term Credit Borrowing Base then in effect.
"Intermediate Term Credit Commitment" shall mean, at any time
with respect to a Bank, the principal amount set forth besides
such Bank's name under the hearing "Intermediate Term Credit
Commitments" on Schedule I hereto on or the signature page of the
Assignment Certificate pursuant to which such Bank becomes a Bank
hereunder in accordance with the provisions of Section 3.14 hereof
-5-
"Intermediate Term Credit Facility Fee" shall have the meaning
attributed to it in Section 2A.08 hereof
"Intermediate Term Credit Loan" shall mean each revolving loan
made by a Bank to the Borrower pursuant to Section 2A.01 hereof
Each Intermediate Term Credit Loan shall be a Fixed Rate Loan, a
Base Rate Loan or a Fed Funds Rate Loan.
"Intermediate Term Credit Maturity Date" shall mean February
28, 2000.
"Intermediate Term Credit Note" shall have the meaning
attributed to it in Section 2A.02 hereof
"Intermediate Term Customer Loan" shall mean any advance or
loan receivable (a) evidenced by an Intermediate Term Customer Loan
Note in which the Administrative Agent and each Bank have been
granted prior perfected first Liens, (b) comprised of one or more
discretionary advances made by the Borrower from time to time,
arising from the extension of credit to a Customer by the Borrower
in the ordinary course of its business which is an "intermediate
loan" as such term is generally used in the Credit Policy and (c)
which is not a Customer Crop Input Loan and shall include, without
limitation, all monies due or owing, all cash collections and other
cash proceeds and all other amounts received from time to time with
respect to such loan receivable and all proceeds (including,
without limitation, "proceeds" as defined in the UCC of the
jurisdiction the law of which governs the perfection of the
security interest in the Intermediate Term Customer Loans subject
to this Agreement) thereof
"Intermediate Term Customer Loan Note" means any promissory
note evidencing the indebtedness of a Customer under an
Intermediate Term Customer Loan and each Customer Advance made in
respect thereof, together with any modifications thereto.
"Intermediate Term Customer Loan-Equipment" shall mean
Customer Advances comprising an Intermediate Term Customer Loan (a)
made to a Customer to finance the acquisition of Equipment by such
Customer or to refinance a loan made to finance the acquisition of
Equipment by such Customer and (b) which is secured by a Lien in
such Equipment and proceeds thereof
"Intermediate Term Customer Loan-Real Estate" shall mean
Customer Advances comprising an Intermediate Term Customer Loan
made to a Customer to finance the acquisition of Real Estate by
such Customer or to refinance a loan made to finance the
acquisition of Real Estate by such Customer and (b) which is
secured by a Lien in such Real Estate and proceeds thereof
-6-
"Net Aggregate Eligible Intermediate Term Advances" shall
mean, at any time, the aggregate outstanding principal balance of
the Eligible Intermediate Term Advances outstanding at such time
minus the Intermediate Term Credit Factor Adjustment at such time.
"Permitted Encumbrances" shall mean, with respect to any
Customer Collateral securing payment of Customer Loan, liens
against such Customer Collateral (i) which are by statute granted
priority over the lien therein granted to the Borrower pursuant to
the Customer Loan Documents or (ii) which secure Indebtedness to
Persons other than the Borrower which has been deducted by the
Borrower in setting the credit limit for the related Customer.
"Primary Intermediate Term Customer Collateral" shall mean,
with respect to an Intermediate Term Customer Loan, the Real Estate
securing payment of such Customer Loan and the Equipment securing
payment of such Customer Loan.
"Primary Intermediate Term Customer Collateral Sub-Limit"
shall mean, at any time, with respect to the Primary Intermediate
Term Customer Collateral securing payment of an Intermediate Term
Customer Loan, the sum of (a) the lesser of (i) seventy percent
(70.0%) of the appraised value of such Primary Intermediate Term
Customer Collateral which is Real Estate or (ii) the prevailing (or
actual) cash rent value of such Real Estate divided by 7.0% plus
(b) sixty percent (60.0%) of the market value (established in
accordance with the Credit Policy) for such Primary Intermediate
Term Customer Collateral which is Equipment.
"Real Estate" shall mean land, and any buildings, improvements
and fixtures thereon, used for agricultural or farming purposes.
"Related Customer" shall mean, with respect to any Customer,
at any time, (a) all Affiliates of such Customer and (b) all the
lineal descendants and ascendants of such Customer, all brothers,
sisters, step-mothers, step-sisters, half-brothers and half-sisters
of such Customers and the spouse of any of the foregoing.
"Stated Line of Credit Commitments" shall mean, at any time
with respect to a Bank, the Line of Credit Commitment and the
Intermediate Term Credit Commitment of such Bank.
"Total Intermediate Term Credit Advance" shall mean the
aggregate amount of all Intermediate Term Credit Advances made by
the Banks on the same Borrowing Date.
"Total Intermediate Term Credit Commitment' shall mean the
aggregate amount of the Intermediate Term Credit Commitments of all
the Banks.
-7-
"Total Intermediate Term Credit Loan" shall mean the aggregate
of all outstanding Intermediate Term Credit Loans of the Banks
"Total Line of Credit Advance" shall mean the aggregate amount
of all Line of Credit Advances made by the Banks on the same
Borrowing Date.
"Total Line of Credit Commitment" shall mean the aggregate
amount of the Line of Credit Commitments of all the Banks.
"Total Line of Credit Loan" shall mean the aggregate of all
outstanding Line of Credit Loans of the Banks
"Total Stated Line of Credit Commitment" shall mean the
aggregate of the Stated Line of Credit Commitments of all the
Banks.
"UCC" shall have the meaning attributed to it in the Asset
Securitization Credit Agreement.
SCHEDULE IIA
INTERMEDIATE TERM CREDIT
ARTICLE IIA
AMOUNT AND TERMS OF INTERMEDIATE TERM CREDIT
Section 2A.01 Intermediate Term Credit Facility. (a)
Intermediate Term Credit. Subject to the terms and conditions
hereof, a line of credit arrangement is established by the Banks in
favor of the Borrower (the "Intermediate Term Credit") whereby each
Bank agrees, severally and not jointly, to make advances and loans
to the Borrower, on such Borrowing Dates prior to March 1, 1999, as
the Borrower shall select, on a prorata basis as to each such
Intermediate Term Credit Advance requested by the Borrower on such
Borrowing Date determined by such Bank's Intermediate Term Credit
Applicable Percentage in an amount up to but not exceeding the
Intermediate Term Credit Commitment of such Bank; provided,
however, that the Banks will not be required and shall have no
obligation to make any Intermediate Term Credit Loan (i) so long as
a Default or Event of Default has occurred and is continuing, or
(ii) if an Acceleration has occurred, or (iii) at anytime after
February 28, 1999; provided further, however, that immediately
after giving effect to each such Intermediate Term Credit Advance,
the aggregate outstanding principal amount of the Loan shall not
exceed the lesser of the Intermediate Term Credit Borrowing Base or
the Total Intermediate Term Credit Commitment.
(b) Advances. Each Intermediate Term Credit Loan made
by a Bank on a Borrowing Date shall be in an amount equal to such
Bank's Intermediate Term Credit Applicable Percentage of each
Intermediate Term Credit Advance to be made to the Borrower on such
Borrowing Date. No Bank shall have any obligation to make any
Intermediate Term Credit Loan after the Intermediate Term Credit
Maturity Date or after such obligation is sooner terminated or
cancelled by the Banks pursuant to the rights afforded them herein.
Within such limits, the Borrower may, within the limits of this
Section 2A.01, and subject to Article VI hereof, borrow, repay
pursuant to Section 2A.03(b) hereof and reborrow funds under this
Section 2A.01. Notwithstanding any other provision of this
Agreement, in no event shall any Bank be obligated to make an
Intermediate Term Credit Loan if immediately thereafter the
aggregate outstanding principal amount of all of such Bank's
Intermediate Term Credit Loans would exceed the lesser of such
Bank's then applicable Intermediate Term Credit Commitment or such
Bank's Intermediate Term Credit Applicable Percentage of the
Intermediate Term Credit Borrowing Base. Each such Intermediate
Term Credit Advance shall be comprised of Variable Rate Loans or
Fixed Rate Loans as specified by the Borrower in the notice of
advance request given pursuant to Section 2A.05. Each Intermediate
Term Credit Advance shall be in an aggregate principal amount that
is an integral multiple of
$50,000 and not less than $1,000,000.00 in the case of an
Intermediate Term Credit Advance comprised of Fixed Rate Loans or
$250,000.00 in the case of an Intermediate Term Credit Advance
comprised of Variable Rate Loans, or, an aggregate principal amount
equal to an amount which will utilize in full the remaining amount
then available to be borrowed under the Intermediate Term Credit.
The failure by any Bank to make any Intermediate Term Credit Loan
on the specified Borrowing Date shall not relieve any other Bank of
its obligation (if any) to make its own Intermediate Term Credit
Loan on such Borrowing Date, but no Bank shall be responsible for
the failure of any other Bank to make the Intermediate Term Credit
Loan of such other Bank.
Section 2A.02 Intermediate Term Credit Note. The Intermediate
Term Credit Loans made by each Bank shall be evidenced by a
properly executed promissory note of the Borrower substantially in
the form of Exhibit H attached hereto (completed with appropriate
insertions), payable to the order of such Bank in a stated
principal amount equal to such Bank's Intermediate Term Credit
Commitment (each such promissory note and each modification,
extension or replacement thereof or substitution therefor shall
hereinafter be called the "Intermediate Term Credit Note"). Each
Bank is hereby authorized to record the date, Type, and amount of
each Intermediate Term Credit Loan made by such Bank, each
continuation thereof, each conversion of all or a portion thereof
to another Type, the date and amount of each payment or prepayment
of principal thereof and, in the case of Fixed Rate Loans, the
length of each Interest Period with respect thereto, on the
schedule annexed to and constituting a part of its Intermediate
Term Credit Note, and any such recordation shall constitute prima
facie evidence of the accuracy of the information so recorded;
provided, however, that the failure to make any such recordation
shall not affect the obligations of the Borrower hereunder or under
any Intermediate Term Credit Note.
Section 2A.03 Principal.
(a) Mandatory Repayments. The Borrower shall be
obligated to make a principal repayment of the Total Intermediate
Term Loan on each Business Day in an amount equal to the
Intermediate Term Borrowing Base Deficit on such Business Day,
together with accrued interest on such principal amount repaid
through the date of payment. The entire aggregate outstanding
principal of each Bank's Intermediate Term Credit Loans and each
Bank9s Intermediate Term Credit Note shall be due and payable in
full on the Termination Date. Mandatory principal repayments shall
be applied first to Intermediate Term Credit Advances comprised of
Variable Rate Loans. If a mandatory principal repayment is applied
to Intermediate Term Credit Advances comprised of Fixed Rate Loans
on a date other than the last day of the Interest Period therefor,
the Borrower shall pay to each Bank an amount sufficient to
compensate such Bank for any loss, cost or expenses incurred by
such Bank as provided in Section 2A. 17 hereof
-2-
(b) Optional Prepayments. The Borrower shall have the
right to prepay all or a portion of the Total Intermediate Term
Credit Loan at any time upon notice to the Administrative Agent,
prior to the time the payment is made, on the date of prepayment in
the case of Variable Rate Loans and upon notice to the
Administrative Agent given no later than 12:00 noon (New York City
time) on the third Business Day prior to the date of prepayment in
the case of Fixed Rate Loans, which notice shall specify the
Intermediate Term Credit Advance being prepaid, the aggregate
amount thereof to be prepaid, and the date of prepayment. Any
repayment of an Intermediate Term Credit Advance shall be in an.
aggregate principal amount which is an integral multiple of
$50,000.00 and not less than $1,000,000.00 in the case of an
Intermediate Term Credit Administrative Agent, prior to the time
payment is made, on the date of Advance comprised of Fixed Rate
Loans or $250,000.00 in the case of an Intermediate Term Credit
Advance comprised of Variable Rate Loans or in either case an
amount sufficient to repay the outstanding principal amount of such
Intermediate Term Credit Advance. If a prepayment of an
Intermediate Term Credit Advance comprised of Fixed Rate Loans is
made on a date other than the last day of the Interest Period
therefor, the Borrower shall pay to each Bank an amount sufficient
to compensate such Bank for any loss, cost or expenses incurred by
such Bank as provided in Section 2A. 17 hereof Amounts prepaid may
be reborrowed as permitted under Section 2A.0l, subject to the
provisions of Section 6.02 hereof
(c) Loss Indemnification. The provisions of Section 2A.
17 hereof shall apply to each mandatory repayment and optional
prepayment of any Fixed Rate Loan.
Section 2A.04 Interest.
(a) Rate Prior to Delinquency. (i) Subject to the
provisions of Section 2A.04(b), each Intermediate Term Credit
Advance comprised of Base Rate Loans shall bear interest at a rate
per annum equal to the Base Rate plus one-half percent (0.50%). The
interest rate on Intermediate Term Credit Advances comprised of
Base Rate Loans shall change as and when the Base Rate changes,
effective as of the opening of business on the day on which such
change in the Base Rate becomes effective.
(ii) Subject to the provisions of Section 2A.04(b),
each Intermediate Term Credit Advance comprised of Fed Funds Rate
Loans shall bear interest at a rate per annum equal to the Fed
Funds Rate plus a two and one-half percent (2.50%). The interest
rate on Intermediate Term Credit Advances comprised of said Fed
Funds Rate Loans shall change as and when the Fed Funds Rate
changes, effective as of the opening of business on the day in
which such change in the Fed Funds Rate becomes effective.
-3-
(iii) Subject to the provisions of Section 2A.04(b),
each Intermediate Term Credit Advance comprised of LIBOR Loans
shall bear interest at a rate per annum equal to the LIBO Rate for
the Interest Period in effect for such Intermediate Term Credit
Advance plus two percent (2.00%).
(iv) Interest on each Intermediate Term Credit Advance
shall accrue from and including the first day of an Interest Period
to but excluding the last day of such Interest Period or the day
such Intermediate Term Credit Advance is paid in full if such day
is other than the last day of such Interest Period.
(b) Default Rate. Any principal of or interest on a
Intermediate Term Credit Loan not paid when due (whether at
maturity, by acceleration or otherwise) shall, from the due date
therefrom until paid, bear interest at a rate per annum (computed
on the same basis as a Base Rate Loan) equal to the Default Rate.
The Default Rate shall increase or decrease, without limit, as and
when the Base Rate changes, effective as of the opening of business
on the day on which such change in the Base Rate becomes effective.
(c) Required Payments. Interest on each Intermediate
Term Credit Advance comprised of Fixed Rate Loans shall be due and
payable on the last day of the Interest Period applicable to such
Intermediate Term Credit Advance or the day such Intermediate Term
Credit Advance is paid in full if such day is other than the last
day of such Interest Period. Interest on each Intermediate Term
Credit Advance comprised of Variable Rate Loans shall be due and
payable on the first day of each month and on the day such
Intermediate Term Credit Advance is paid in full. If in accordance
with the foregoing interest on any Intermediate Term Credit Advance
would be due and payable on a day which is not a Business Day, such
interest shall be due and payable on the next Business Day,
however, interest shall continue to accrue until paid. Accrued and
unpaid interest on all Intermediate Term Credit Advances shall be
due and payable on the Termination Date.
Section 2A.05 Notice of Advance Requests. The
provisions of Section 2.05 applicable to Advances shall also apply
to each request for an Intermediate Term Credit Advance and the
Borrower shall designate in each notice given pursuant to Section
2.05 whether a Line of Credit Advance or an Intermediate Term
Credit Advance is being requested and the principal amount of each
such Advance.
Section 2A.06 Intermediate Term Advances. Each
Intermediate Term Advance shall be comprised of Fixed Rate Loans,
Base Rate Loans or Fed Funds Rate Loans as the Borrower may request
pursuant to Section 2A.05 hereof The Borrower may refinance all or
any part of any Intermediate Term Advance with an Intermediate Term
Advance of the same or a different Type, subject, in each case, to
the conditions and limitations set forth in this Agreement. Any
Intermediate Term Advance or portion thereof refinanced in
accordance with the foregoing shall
-4-
be deemed to be repaid or prepaid in accordance with Section 2A.03,
with the proceeds of a new Intermediate Term Advance and the
proceeds of the new Intermediate Term Advance, to the extent they
do not exceed the principal amount of the Intermediate Term Advance
being refinanced, shall not be paid by the Banks to the
Administrative Agent or by the Administrative Agent to the Borrower
pursuant to Section 2A. 11 hereof Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to
request any Intermediate Term Advance if the Interest Period
requested with respect thereto would end after the Intermediate
Term Credit Maturity Date.
Section 2A.07 Use of Proceeds. Proceeds of the
Intermediate Term Credit Advances shall be used for the Borrower's
working capital.
Section 2A.08 Intermediate Term Credit Facility Fee. The
Borrower agrees to pay the Administrative Agent, for the pro rata
benefit of each Bank based on their Intermediate Term Credit
Applicable Percentages, a non-refundable fee (the "Intermediate
Term Credit Facility Fee") equal to one-quarter percent (0.25%) of
the daily amount by which the Total Intermediate Term Credit
Commitment exceeds the average daily outstanding principal balance
of the Total Intermediate Term Credit Loan from the effective date
hereof in the case of each Bank that is a signatory hereto and from
the effective date specified in the Assignment Certificate pursuant
to which such Bank became a Bank in accordance with Section 13.14
in the case of each other Bank until the Termination Date. The
Intermediate Term Credit Facility Fee shall be payable on the last
day of each fiscal quarter of the Borrower, in arrears, prior to
March 1, 1999. No portion of any Intermediate Term Credit Facility
fee paid to the Administrative Agent shall be refunded for any
reason, irrespective of the occurrence of the Termination Date
prior to March 1, 1999. Upon receipt of any Intermediate Term
Credit Facility Fee, the Administrative Agent shall promptly
thereafter distribute to each Bank an amount equal to such Bank's
Intermediate Term Credit Applicable Percentage of such Intermediate
Term Credit Facility Fee paid to the Administrative Agent.
Section 2A.09 Calculation of Interest Maximum Lawful
Rates. All interest and fees charged hereunder with respect to all
Intermediate Term Credit Advances, Intermediate Term Credit Loans
and the Intermediate Term Credit Facility Fees and each
Intermediate Term Credit Note shall be calculated based on a year
of 360 days and the actual number of days elapsed. If at any time
the interest rate hereunder or under any Intermediate Term Credit
Note exceeds the highest lawful rate, interest shall accrue at the
highest lawful rate. If any payment by or on behalf of the Borrower
is received after 2;00 p.m. New York City time) on any Business
Day, it will be deemed to be received on the next succeeding
Business Day. If the time for payment of any amount hereunder is
extended by operation of law or otherwise, interest shall continue
to accrue for such extended period.
-5-
Section 2A.10 Notice of Changes in Base Rate. During the
effective period of this Agreement, the Administrative Agent shall
promptly advise Borrower of changes in the Base Rate; provided,
however, that the failure to give such advice or the failure to
give such advice promptly shall not affect the obligation of the
Borrower to pay interest in accordance with the terms of any
Intermediate Term Credit Note and of this Agreement.
Section 2A.11 Funding and Disbursements. The provisions
of Section 2.11 applicable to Advances shall also apply to fundings
of Intermediate Term Credit Advances by the Banks and disbursements
of Intermediate Term Credit Advances to the Borrower.
Section 2A.12 Payments. The provisions of Section 2.12
shall also apply to payments made in respect of Intermediate Term
Credit Loans.
Section 2A.13 Application of Payments. The provisions of
Section 2.13 applicable to Loans shall also control the application
of payments made in respect of Intermediate Term Credit Loans. Each
Bank agrees that in computing such Bank's portion of any
Intermediate Term Credit Advance to be made hereunder or the
portion of any payment to be allocated to such Bank hereunder, the
Administrative Agent may, in its sole discretion, round each Bank's
portion of such payment to the next higher or lower whole dollar
amount. Amounts paid by the Borrower pursuant to Sections 2A. 15,
2A. 16 or 2A. 17 or Article XI shall be remitted to the
Administrative Agent or the Banks entitled thereto.
Section 2A.14 Non-Receipt of Funds by Administrative
Agent. The provisions of Section 2.14 applicable to fundings of
Advances shall also apply to fundings by a Bank of an Intermediate
Term Credit Advance.
Section 2A.15 Increased Cost. The provisions of Section
2.15 applicable to Line of Credit Loans and Line of Credit Notes
and the determination of the amount of and payments of increased
costs with respect thereto shall also apply to Intermediate Term
Credit Loans and Intermediate Term Credit Notes, respectively, and
the determination of the amount of and payment of increased costs
with respect thereto. The payment of the additional amounts
required hereunder shall be made by the Borrower immediately on the
date any Bank gives the required notice to the Borrower.
Section 2A.16 Risk-Based Capital. The provisions of
Section 2.16 applicable to Line of Credit Loans and the
determination of the amount of and payment of additional costs with
respect thereto shall also apply to Intermediate Term Credit Loans
and the determination of the amount of and payment of additional
costs with respect thereto. The payment of the additional amounts
required hereunder shall be made by the Borrower within 30 days
after the date any Bank gives the required notice to the Borrower.
-6-
Section 2A.17 Funding Loss Indemnification. The
provisions of Section 2.17 applicable to a Line of Credit Loan and
the compensation to a Bank for any loss, cost, or expense incurred
as a result of a repayment or prepayment of a Fixed Rate Loan or
the Borrower's failure to borrow, renew or convert an Advance shall
also apply to Intermediate Term Credit Loans and the compensation
to a Bank for any loss, cost or expense incurred as a result of a
repayment or prepayment of a Fixed Rate Loan comprised of
Intermediate Term Credit Advances and the Borrower's failure to
borrow, renew or convert an Intermediate Term Credit Advance.
Section 2A.18 Survival. The Borrower's agreements and
obligations under Sections 2A.12, 2A.15, 2A.16 and 2A.17 shall
survive the payment of all Intermediate Term Credit Loans
hereunder.
Section 2A.19 Pro Rata Treatment. Except as otherwise
specifically provided herein, each Intermediate Term Credit Loan,
each payment or prepayment of principal of the Loan, each payment
of interest on the Loan, each payment of the Intermediate Term
Credit Fee and a Default Fee, each conversion into, or out of, and
renewals of, Fixed Rate Loans shall be allocated pro rata among the
Banks in accordance with each Bank's Intermediate Term Credit
Applicable Percentage. Each Bank agrees that in computing such
amount of any Intermediate Term Credit Loan to be made by such Bank
or any payment to be allocated to such Bank hereunder, the
Administrative Agent may, in its discretion, round the dollar
amount of each Bank's Intermediate Term Credit Loan to the next
higher or lower whole dollar amount.
Section 2A.20 References to Advances. Each reference to
"Advances" and "Advance" in the provisions of Section 2.05, 2.11,
2.12, 2.13, 2.14, 2.15,2.16 and 2.18 made applicable to
Intermediate Term Credit Advances or an Intermediate Term Credit
Advance as provided in this Article IIA shall mean and refer,
respectively, to Intermediate Term Credit Advances and an
Intermediate Term Credit Advance for purposes of this Article IIA.
Section 2A.21 Collateral Allocation Summary. The Borrower
shall complete and furnish to the Custodian a Collateral Allocation
Summary promptly after each allocation of Primary Intermediate Term
Customer Collateral is made by the Borrower to support a credit
limit established for a Customer or a Customer Crop Input Loan.
AG SERVICES OF AMERICA, INC.
EXHIBIT 10.23
AMENDMENT NO. 3 TO THIRD AND RESTATED LOAN AGREEMENT
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AMENDMENT NO. 3 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO.3 TO THIRD AMENDED AND RESTATED LOAN
AGREEMENT is dated as of April 23, 1998, and is by and among AG
SERVICES OF AMERICA, INC., an Iowa corporation (the "Borrower");
THE FINANCIAL INSTITUTIONS parties hereto from time to time as
lenders (each, a "Bank" and collectively, the "Banks"), and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank
Nederland", New York Branch ("Rabobank"), as agent for the Banks
hereunder (in such capacity, the "Administrative Agent").
RECITALS
The Borrower, the Banks and Rabobank entered into a Third
Amended and Restated Loan Agreement, dated as of March 12, 1997, as
amended by Amendment No.1 to Third Amended and Restated Loan
Agreement, dated as of August 19, 1997 and by Amendment No.2 to
Third Amended and Restated Loan Agreement, dated as of February 27,
1998 (as amended, the "Loan Agreement'), pursuant to which the
Banks have established a line of credit in favor of the Borrower on
and subject to the terms and conditions set forth therein. The
parties desire to amend the Loan Agreement to establish a separate
Credit Facility in favor of the Borrower and to modify certain
terms and conditions of the Loan Agreement, all as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the above premises and other
good and valuable consideration, the sum and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows.
1. Amendments to Loan Agreement. The Loan Agreement is
amended as follows:
(a) Section 1.02. Section 1.02 of the Loan Agreement is
amended as follows:
(i) The definitions of each of the terms referenced in
SCHEDULE 1.02A attached hereto shall replace the definition of such
defined term set forth in Section 1.02 of the Loan Agreement.
(ii) The defined terms set forth in SCHEDULE 1 .02B
attached hereto are added to Section 1.02.
(b) Section 2.02. Section 2.02 of the Loan Agreement is
amended by deleting the reference to "Stated Line of Credit
Commitment Amount" and by substituting therefor "Line of Credit
Commitment". The Loan Agreement is amended accordingly.
(c) Article II. Article II of the Loan Agreement in amended by
adding a Section 2.20 thereto as follows:
Section 2A.20. Reference to Advances. Each
reference in this Article fl to "Advances" or an "Advance" shall
mean and refer, respectively, to Line of Credit Advances and a Line
of Credit Advance.
(d) Article IIA. The Loan Agreement is amended by adding an
Article IIA which contains the terms, conditions and provisions set
forth in SCHEDULE IIA attached hereto.
(e) Section 2.03. Each reference to "Loan" in Section 2.03
shall mean and refer to the "Total Line of Credit Loan". The Loan
Agreement is amended accordingly.
(f) Section 12.10. Each reference to "Line of Credit Loans" in
Section 12.10 shall mean and refer to "Loans". The Loan Agreement
is amended accordingly.
(g) Section 13.14. Each reference to "Line of Credit Loan" in
Section 13.14 shall mean and refer to "Loans". The Loan Agreement
is amended accordingly.
(h) Section 13.15. Each reference to "Line of Credit Loans" in
Section 13.15 shall mean and refer to "Loans". The Loan Agreement
is amended accordingly.
(i) Exhibits and Schedules.
(i) Exhibit G. Exhibit G to the Loan Agreement is
deleted and Exhibit G attached hereto is substituted therefor.
(ii) Exhibit H. An Exhibit H in the form of Exhibit
H attached is added to the Loan Agreement.
(iii) Schedule I. Schedule I to the Loan Agreement
is amended and Schedule I attached hereto is substituted therefor.
3. Reaffirmation by Borrower Collateral. The Borrower confirms
and reaffirms in favor of each Bank all the Borrower's obligations
and agreements under the Loan Agreement, as amended hereby, and
under each Loan Document to which it is a party and confirms,
reaffirms and agrees that payment of each Loan, each Note and the
payment of all Indebtedness to each Bank under the Loan Agreement,
as amended hereby, are and shall be secured by the Liens in the
Collateral granted under the Loan Agreement, as amended hereby,
-2-
including, without limitation, each Customer Loan (including each
Intermediate Term Customer Loan) and related Customer Loan
Documents and each Loan Document. The Borrower agrees to
execute and deliver such documents, agreements, financing
statements and amendments to the Loan Documents and to take such
further action as may be necessary in order to vest and fully
perfect in each Bank all Liens in Collateral as first priority
Liens therein in each Bank to the extent required by the Loan
Agreement
4. Representations and Warranties. In order to induce the
Administrative Agent and each Bank to execute this Amendment, the
Borrower represents and warrants as follows:
(a) The Borrower has the power and authority to execute and
perform this Amendment and the Loan Agreement, as amended hereby.
(b) The execution, delivery and performance of this Amendment
and the Loan Agreement, as amended hereby have been duly authorized
by all required corporate action.
(c) This Amendment, the Intermediate Term Credit Note and the
Loan Agreement, as amended hereby, constitute legal, valid and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(d) No authorization, approval, or other action by, and no
notice to or filing with, any Governmental Body is required for the
due execution, delivery and performance by the Borrower of this
Amendment of the Loan Agreement, as amended hereby.
(e) No Default or Event of Default has occurred and is
continuing.
(f) All the representations and warranties of the Borrower
contained in the Loan Agreement are true and correct on and as of
the date hereof as though made on and as of such date except to the
extent such representations and warranties relate solely to an
earlier date.
(g) There is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any
Governmental Body which may materially adversely affect the
condition, financial or otherwise, or operations of the Borrower.
5. Conditions Precedent. This Amendment shall not be effective
against any of the parties hereto unless and until the
Administrative Agent has been furnished with the following:
(a) This Amendment duly executed by all the parties hereto.
(b) The Intermediate Term Credit Note duly executed by the
Borrower.
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(c) Certified copies of all corporate action taken by the
Borrower, including resolutions of its Board of Directors,
authorizing the execution, delivery, and performance of this
Amendment and each other document to which it is a party and which
is required to be delivered pursuant to this Amendment.
(d) An Intercreditor Agreement in form and content
satisfactory to the Administrative Agent, between the Borrower and
Ag Acceptance pertaining to their relative priorities in collateral
securing loans and advances made to common Customers, duly executed
by the Borrower and Ag Acceptance and consented to and approved by
CapMAC, Triple-A One and Rabobank.
(e) A certificate of the Secretary or an Assistant Secretary
of the Borrower as to (i) the Articles of Incorporation and the
Bylaws of the Borrower having not been amended, modified or changed
in any manner since March 12, 1997, and (ji) the incumbency of the
officer or officers of the Borrower who sign this Amendment, the
Intermediate Term Credit Note and such other documents,
instruments, amendments and modifications to be executed by the
Borrower in connection with this Amendment, including therein a
signature specimen of such officer or officers.
(f) The favorable written opinion of legal counsel to the
Borrower, in form, content and substance satisfactory to the
Administrative Agent, to the effect that (i) this Amendment, the
Intermediate Term Credit Note, the Intercreditor Agreement and such
other documents, instruments, amendments and modifications to be
executed by the Borrower in connection with or pursuant to this
Amendment have been duly authorized by all necessary corporate
action on behalf of the Borrower and each has been duly executed
and delivered on behalf of the Borrower and are valid, binding and
enforceable against the Borrower in accordance with the terms
thereof, (ii) to the knowledge of such counsel, there is no
provision in any indenture, contract or agreement to which the
Borrower is a party or by which it is bound which prohibits the
execution and delivery by the Borrower of this Amendment, the
Intermediate Term Credit Note, the Intercreditor Agreement or any
such other document, instrument, amendment or modification to be
executed by the Borrower in connection with or pursuant to this
Amendment or which prohibits the performance or observance by a
Borrower of this Amendment, the Intermediate Term Credit Note, the
Intercreditor Agreement or any such other document, instrument,
amendment or modification to be executed by the Borrower in
connection with or pursuant to this Amendment and covering such
other matters as the Administrative Agent shall reasonably request.
(g) All other documents, agreements, financing statements and
amendments to Loan Documents as necessary in order to grant and
perfect each Lien in Collateral as first priority Liens in favor of
the Banks to the extent required by the Loan Agreement, as amended
hereby.
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6.Miscellaneous.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof, each reference in the Loan Agreement to "this
Agreement", this "Loan Agreement", "hereunder", "hereof', "herein"
or words of like import shall mean and be a reference to the Loan
Agreement as amended hereby, and each reference in the Notes and
the other Loan Documents shall mean and be reference to the Loan
Agreement, as amended hereby.
(b) All capitalized terms used and not otherwise defined
herein shall have the same meaning herein as in the Loan Agreement,
as amended hereby.
(c) This Amendment may be executed in any number of
counterparts or facsimile counterparts, each of which shall be an
original and all of which shall constitute one agreement and it
shall not be necessary in making proof of this Amendment to produce
or account for more than one counterpart.
(d) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York without regard
to principles of conflicts of laws.
(e) The Borrower shall pay on demand all costs and expenses of
the Administrative Agent and the Banks in connection with the
preparation, review and negotiation of this Amendment and the other
instruments and documents to be delivered hereunder, including,
without limitation, the reasonable fees, expenses and out-of-pocket
costs of counsel (who may be in-house counsel) for the
Administrative Agent or the Banks with respect thereto, with
respect to advising the Administrative Agent or the Banks as to its
or their rights and responsibilities hereunder and thereunder and
with respect to the enforcement of its or their rights hereunder,
under any Note or under the Loan Agreement, as amended hereby,
under any Loan Document and the maintenance or perfection of any
Lien in Collateral (including compensation of all agents, attorneys
and accountants employed by the Administrative Agent or the Bank
with respect thereto) In addition, the Borrower shall pay any and
all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder, and
agrees to save the Administrative Agent and each Bank harmless from
and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay taxes- The Borrower
shall not be required to pay or reimburse the Administrative Agent
more than $7,500 for legal fees (which shall not include related
out-of-pocket expenses of legal counsel) incurred by the
Administrative Agent in connection with the preparation, review and
negotiation of this Amendment and the other instruments and
documents to be delivered hereunder..
(f) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of the
-5-
Administrative Agent or the Banks under the Loan Agreement, nor
constitute a waiver of any provision of the Loan Agreement.
(g) This Amendment represents the final agreement by and among
the Borrower, the Administrative Agent and the Banks as to the
subject matter hereof and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the
parties.
(h) Except for the amendments made hereby, in all other
respects the Loan Agreement and each other Loan Document shall
remain in full force and effect.
7. Acknowledgement. The Borrower hereby acknowledges receipt
of a copy of this Amendment, the Intermediate Term Credit Note, the
Intercreditor Agreement and each other document at any time
executed by a debtor in connection with this Amendment or with the
Indebtedness to the Banks under the Loan Agreement, as amended
hereby.
-6-
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS
OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, the Borrower, each Bank and the Administrative
Agent have caused this Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above
written.
AG SERVICES OF AMERICA, INC.
(Borrower)
By: ___________________________
Xxxxx X. Xxxxxxxx,
President
By: ___________________________
Xxxx Xxxxxxxx
Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "Rabobank
Nederland", New York Branch
(Administrative Agent and Bank)
By: ___________________________
Name:_______________________
Title:______________________
By: ___________________________
Name:_______________________
Title_______________________
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SCHEDULE I
COMMITMENTS AND LENDING OFFICES
Lending Offices
Name of Bank Lending Office
------------ --------------
Cooperatieve Centrale Raiffeisen- Rabobank Nederland
Boerenleenbank B.A. "Rabobank 000 Xxxx Xxxxxx
Xxxxxxxxx", Xxx Xxxx Branch Xxx Xxxx, Xxx Xxxx 00000
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Line of Credit Commitments
and
Total Line of Credit Commitment
Name of Bank Line of Credit Commitment
------------ -------------------------
Cooperatieve Centrale Raiffeisen- $8,500,000.00
Boerenleenbank B.A. "Rabobank
Nederland", New York Branch
Total Line of Credit Commitment $8,500,000.00
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Intermediate Term Credit Commitments
and
Total Intermediate Term Credit Commitment
Intermediate Term
Name of Bank Credit Commitment
------------ -----------------
Cooperatieve Centrale Raiffeisen- $20,000,000.00
Boerenleenbank B.A. "Rabobank
Nederland", New York Branch
Total Intermediate Term Credit Commitment $20,000,000.00
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SCHEDULE 1.02A
REPLACEMENT DEFINED TERMS
"Advance" shall mean each Line of Credit Advance made by the Banks
on a single date or each Intermediate Term Advance made by the
Banks on a single date, or both, as the context dictates.
"Base Rate Loan" shall mean each Line of Credit Loan or each
Intermediate Term Loan bearing interest at a rate determined by
reference to the Base Rate, or both, as the context dictates.
"Borrowing Base Certificate" shall mean a report substantially in
the form 6f Exhibit E to the Asset Securitization Credit Agreement
and otherwise acceptable to the Administrative Agent and which
shall also contain such borrowing base and other information
required by the Administrative Agent relative to Inventory,
Eligible Inventory, Eligible Seed Financing Receivables, Seed
Financing Receivables, Receivables, Intermediate Term Customer
Loans and related Customer Collateral and the Intermediate Term
Credit Borrowing Base.
"Borrowing Base Deficit" shall mean, at any time, the amount, if
any, by which the then outstanding principal amount of the Total
Line of Credit Loan exceeds the Line of Credit Borrowing Base then
in effect.
"Commitment" shall mean each Bank's obligation, if any, to make
Line of Credit Loans and Intermediate Term Loans to the Borrower
hereunder.
"Customer Collateral" shall mean the collateral and Property in
which a Lien has been granted, or which has been assigned, to the
Borrower to secure payment of a Customer Loan or other Indebtedness
owed to the Borrower by a Customer, including, without limitation
(a) all of the Borrower's right, title and interest in and to the
payments to be made by the Customer and any other rights which are
assignable under the related Customer Loan Documents, (b) all
security interests or liens and property subject thereto from time
to time purporting to secure payment of such Customer Loan, whether
pursuant to the Customer Loan Documents related to such Customer
Loan or otherwise, including, without limitation, all interest in
Crop Insurance with respect to such property, all Equipment and all
Real Estate (c) all Records, (d) guaranties and other agreements or
arrangements of whatever character from time to time supporting or
securing payment of such Customer Loan whether pursuant to
the Customer Loan Documents related to such Customer Loan or
otherwise, and (e) all rights under warranties, indemnities,
insurance with respect to the Customer Loans, the related Customer
Loan Documents or other Customer Collateral described above.
"Fed Funds Rate Loan" shall mean each Line of Credit Loan and each
Intermediate Term Loan bearing interest at a rate determined by
reference to the Fed Funds Rate. "Fixed Rate Loan" shall mean each
Line of Credit Loan bearing interest determined by reference to the
LIBO Rate or each Intermediate Term Loan bearing interest
determined by reference to the LIBO Rate, or both, as the context
dictates.
"Interest Period" shall mean (a) as to any Advance comprised of
Fixed Rate Loans, the period commencing on the date such Advance is
made, or on the last day of the immediately preceding Interest
Period applicable to such Advance, as the case may be, and ending,
on the numerically corresponding day (or if there is no numerically
corresponding day, on the last day) in the calendar month that is
1, 2 or 3 months thereafter in the case of an Advance which is a
Line of Credit advance, or in the calendar month that is 1, 2, 3 or
6 months thereafter, in the case of an Advance which is an
Intermediate Term Credit Advance, as the Borrower may select, and
(b) as to any Advance comprised of Variable Rate Loans, the period
commencing on the date such Advance is made or on the last day of
the immediately preceding Interest Period applicable to such
Advance, as the case may be and ending on the earlier to occur of
(i) the date such Advance is converted to or refinanced as a Fixed
Rate Loan or as a Variable Rate Loan whose interest rate is
determined by reference to a different Type of Variable Rate or
(ii) the Termination Date; provided, however, (x) each Interest
Period applicable to an Advance comprised of Fixed Rate Loans that
commences on the last Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month; (y) no
Interest Period may extend beyond the Line of Credit Maturity Date,
in the case of each Advance which is a Line of Credit Advance, or
the Intermediate Term Credit Maturity Date, in the case of each
Advance which is an Intermediate Term Credit Advance; and (z) if an
Interest Period would end on a day that is not a Business Day, such
Interest Period shall be extended to the next Business Day unless
such Business Day would fall in the next calendar month, in which
event such Interest Period shall end on the immediately preceding
Business Day.
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"Line of Credit Advance" shall mean a group of Line of
Credit Loans of a single Type made by the Banks on a single date
and as to which a single Interest Period is in effect.
"Loan" shall mean the aggregate of all outstanding Line of
Credit Loans of the Banks and the aggregate of all outstanding
Intermediate Term Credit Loans of the Banks.
"Loan Fees" shall mean the Line of Credit Facility Fee, the
Intermediate Term Credit Facility Fee and each Default Fee.
"Termination Date" shall mean the earliest of (a) the Line
of Credit Maturity Date or (b) the Intermediate Term Credit
Maturity Date, or (c) the date on which the Commitments are
terminated pursuant to Section 10.02(a) hereof.
"Type", when used in respect of an Advance or a Loan, shall
refer to the Rate by reference to which interest on such Advance or
Loan is determined. For purposes hereof, the term "Rate" shall
include the LIBO Rate, the Base Rate or the Fed Funds Rate.
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SCHEDULE 1.02B
ADDITIONAL DEFINED TERMS
"Collateral Allocation Amount" shall mean, with respect to any
Primary Intermediate Term Customer Collateral securing payment of
a Customer Crop Input Loan to a Customer, the collateral value
thereof, if any, allocated and used by the Borrower to support the
credit limit established by the Borrower for such Customer Crop
Input Loan in accordance with the Credit Policy as set forth in the
Collateral Allocation Summary most recently furnished to the Bank.
"Collateral Allocation Summary" shall mean a written
allocation summary, in form and content satisfactory to the
Administrative Agent and completed and signed by a responsible
officer of the Borrower, setting forth the Customer Allocation
Amount allocated and used by the Borrower to support a credit limit
established by the Borrower in respect of a Customer Crop Input
Loan and specifying the Customer Crop Input Loan and amount of the
credit limit established therefor.
"Crop Input Collateral" shall mean, in respect of a Customer
Crop Input Loan, the crops securing such Customer Crop Input Loan
and Crop Insurance relating to or covering such Crops and the
entitlement and payments due or to become due in accordance with or
under applicable government programs which have been assigned to
the Borrower to secure payment of such Customer Crop Input Loan.
"Customer Claim" means any dispute, claim, offset or defense
of the Customer of a Customer Loan, including, without limitation,
the defense of usury, or any other claim of such Customer against
or adjustment to such Customer Loan resulting from the transaction
out of which such Customer Loan arose or any related or unrelated
transaction.
"Customer Concentration Limit" shall mean, as of any date of
determination, with respect to a Customer under an Intermediate
Term Customer Loan, the amount equal to the highest aggregate
unpaid principal balance of Customer Loans made to such Customer on
any single day during the 14 month period immediately preceding
such date; provided, however, the Customer Concentration Limit with
respect to a Customer shall be calculated as if such Customer and
all of such Customer's Affiliates were one Customer.
"Customer Crop Input Loan" shall mean a Customer Loan made by
the Borrower to a Customer to finance products and inputs
associated with current growing year crops and which is secured by
such crops.
"Debtor Relief Laws" shall have the meaning attributed to it
is the Credit Agreement.
"Delinquent Intermediate Term Customer Loan" shall mean, as
of any date of determination, any Intermediate Term Customer Loan
with respect to which (a) any required payment or portion thereof
remains unpaid more than 60 days past the original due date of such
payment, (b) a material default exists, (c) there is in effect any
waiver by the Borrower of any material default or (d) any event or
circumstance exists that would, with notice, the passage of time or
both, become a material default in respect of such Intermediate
Term Loan.
"Eligible Intermediate Term Advance" means, at any time, a
Customer Advance in respect of an Intermediate Term Customer Loan:
(a) which is currently owing under an Intermediate Term
Customer Loan Note which has been duly authorized and which,
together with the related Customer Loan Documents, is in full force
and effect and constitutes the legal, valid and binding obligation
of the Customer of such Customer Advance to pay the outstanding
principal amount of such Customer Advance and interest thereon, and
the related Customer Loan Documents are enforceable against such
Customer in accordance with their respective terms except as
limited by Debtor Relief Laws and except as such enforceability may
be limited by general provisions of equity;
(b) which arose in the ordinary course of business of the
Borrower under Customer Loan Documents, the performance of which
have been completed by the Borrower and by all other parties other
than the Customer, and all advances, goods or services in
connection therewith have been delivered to or performed for the
Customer;
(c) the Customer of which is not also a Customer in respect
of a Delinquent Intermediate Term Customer Loan;
(d) the Customer of which is not the Customer of any
Customer Loan which has been, or which pursuant to the Credit
Policy should be, written off as uncollectible;
(e) the Customer of which is not a Governmental Body;
(f) which, together with the Customer Loan Documents
related thereto, is an "account", a "general intangible", "chattel
paper" or an "instrument" within the meaning of the UCC of all
jurisdictions which govern the perfection of the Borrower's
interest therein;
(g) with respect to which all material consents, licenses,
approvals or authorizations of; or registrations or declarations
with, any Governmental Body required to be obtained, effected or
given in connection with the making of such
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Customer Advance have been duly obtained, effected or given and are
in full force and effect;
(h) the Customer of which is not an Affiliate of any of the
parties hereto;
(i) the Customer in respect of which is organized in and a
resident of the United States;
(j) which is denominated and payable only in United States
Dollars in the United States;
(k) which (i) in the case of a Customer Advance comprising an
Intermediate Term Customer Loan which is an Intermediate Term
Customer Loan-Real Estate, has a final maturity date which is not
later than seven years after the date of the initial Customer
Advance with respect thereto and has an amortization of principal
or of principal and interest over a period of not more than 15
years and (ii) in the case of a Customer Advance comprising an
Intermediate Term Customer Loan which is in Intermediate Term
Customer Loan-Equipment, has a fixed maturity date which is not
later than five years after the date of the initial Customer
Advance with respect thereto;
(l) which bears interest either (i) at a fluctuating per
annum rate equal to or in excess of the prime rate as reported in
the Midwestern edition of the Wall Street Journal as in effect from
time to time (or, if less, the maximum non-usurious rate), or (ii)
in respect of Customers who are residents of Arkansas, at a fixed
interest rate per annum, which as of the date of the Note, is equal
to or in excess of the prime rate as reported in the Midwestern
edition of the Wall Street Journal as in effect on such date (or,
if less, the maximum non-usurious rate);
(m) which, together with the Customer Loan Documents related
thereto, does not contravene in any material respect any laws,
rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to usury, truth in
lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy) and with
respect to which no party to the Customer Loan Documents related
thereto is in material violation of any such law, rule or
regulation in any respect;
(n) which is prepayable without penalty and, together with
the related Customer Loan Documents and related Customer
Collateral, is fully assignable;
(o) which has been originated pursuant to and satisfies in
all material respects all applicable requirements of the Credit
Policy;
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(p) with respect to which only one current original Customer
Note exists, which Customer Note has been delivered to the
Custodian;
(q) which is secured by a perfected security interest in the
related Customer Collateral granted in favor of the Borrower, which
security interest has the priority required for such security
interest in the related Customer Loan Documents and the Credit
Policy;
(r) which has not been compromised, adjusted or similarly
modified and is not subject to any Customer Claims whatsoever and
which did not arise pursuant to Customer Loan Documents giving the
Customer an explicit right of offset;
(s) which was made under the existing Customer Loan
Documents, which Customer Loan Documents have not been modified for
negative credit reasons, except as agreed to by the Administrative
Agent;
(t) with respect to which the Customer Loan Documents are
complete in accordance with the Credit Policy;
(u) which Intermediate Term Customer Loan has not been
classified by the Borrower as "doubtful" or "loss" under the Credit
Policy;
(v) the unpaid principal balance of which at no time exceeds
the Primary Intermediate Term Customer Sub-Limit in respect of the
Primary Intermediate Term Customer Collateral securing payment of
such Intermediate Term Customer Loan minus (i) the unpaid balance
at such time of other Indebtedness (including unpaid interest)
secured by Liens in such Primary Intermediate Term Customer
Collateral which have priority over or rank equally with or to the
Lien in such Primary Intermediate Term Customer Collateral securing
payment of such Intermediate Term Customer Loan minus (ii) the
amount of any Lien against such Primary Intermediate Term Customer
Collateral for taxes or assessment or other governmental charges or
levies which are at such time due, delinquent or payable minus
(iii) the Collateral Allocation Amount, if any, applicable to such
Primary Intermediate Term Customer Collateral;
(x) which is secured by a perfected Lien in Primary
Intermediate Term Customer Collateral granted in favor of the
Borrower pursuant to the Customer Loan Documents related to such
Intermediate Term Customer Loan;
(y) the Customer in respect of which is also a Customer under
a Customer Crop Input Loan at the time the initial Customer Advance
in respect of such Intermediate Term Customer Loan is made;
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(z) which is secured by the Crop Input Collateral securing
payment of the Customer Crop Input Loan to the Customer which is
also the Customer under such Intermediate Term Customer Loan;
(aa) which does not refinance an outstanding Customer Loan
originally made as a Customer Crop Input Loan;
(bb) the Customer Concentration Limit of the Customer with
respect to which does not exceed $3,525,000.00; and
(cc) which the Administrative Agent has not notified the
Servicer or the Borrower that the Administrative Agent has
determined, in its sole discretion, that such Customer Loan is not
acceptable for eligibility hereunder.
"Equipment" shall mean equipment and materials used for
agricultural or farming purposes.
"Intermediate Term Credit" shall have the meaning attributed
to it in Section 2A.01 hereof.
"Intermediate Term Credit Advance" shall mean a group of
Intermediate Term Credit Loans of a single Type made by the Banks
on a single date and as to which a single Interest Period is in
effect.
"Intermediate Term Credit Adjustment Factor" shall mean, at
anytime, an amount equal to the aggregate of the following amounts
computed for each Customer of an Eligible Intermediate Term Advance
(calculated as if such Customer and all Related Customers of such
Customer were one Customer): the excess of (a) the aggregate
outstanding principal amount of Eligible Intermediate Term Advances
(if any) extended to a Customer over (b) the aggregate credit limit
amounts established for such Customer by the Borrower in accordance
with the Credit Policy in respect of the Customer Crop Input Loan
of such Customer.
"Intermediate Term Credit Applicable Percentage" shall mean,
at any time with respect to a Bank, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at
such time of such Bank's Intermediate Term Credit Commitment
divided by the Total Intermediate Term Credit Commitment at such
time.
"Intermediate Term Credit Borrowing Base" shall mean, at any
time, eighty-five percent (85.0%) of Net Aggregate Eligible
Intermediate Term Advances at such time.
"Intermediate Term Credit Borrowing Base Deficit" shall mean,
at any time, the amount, if any, by which the then outstanding
principal amount of the Total Intermediate Term Credit Loan exceeds
the Intermediate Term Credit Borrowing Base then in effect.
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"Intermediate Term Credit Commitment" shall mean, at any time
with respect to a Bank, the principal amount set forth besides such
Bank's name under the hearing "Intermediate Term Credit
Commitments" on Schedule I hereto on or the signature page of the
Assignment Certificate pursuant to which such Bank becomes a Bank
hereunder in accordance with the provisions of Section 3.14 hereof.
"Intermediate Term Credit Facility Fee" shall have the meaning
attributed to it in Section 2A.08 hereof
"Intermediate Term Credit Loan" shall mean each revolving loan
made by a Bank to the Borrower pursuant to Section 2A.01 hereof
Each Intermediate Term Credit Loan shall be a Fixed Rate Loan, a
Base Rate Loan or a Fed Funds Rate Loan.
"Intermediate Term Credit Maturity Date" shall mean February
28, 2000.
"Intermediate Term Credit Note" shall have the meaning
attributed to it in Section 2A.02 hereof
"Intermediate Term Customer Loan" shall mean any advance or
loan receivable (a) evidenced by an Intermediate Term Customer Loan
Note in which the Administrative Agent and each Bank have been
granted prior perfected first Liens, (b) comprised of one or more
discretionary advances made by the Borrower from time to time,
arising from the extension of credit to a Customer by the Borrower
in the ordinary course of its business which is an "intermediate
loan" as such term is generally used in the Credit Policy and (c)
which is not a Customer Crop Input Loan and shall include, without
limitation, all monies due or owing, all cash collections and other
cash proceeds and all other amounts received from time to time with
respect to such loan receivable and all proceeds (including,
without limitation, "proceeds" as defined in the UCC of the
jurisdiction the law of which governs the perfection of the
security interest in the Intermediate Term Customer Loans subject
to this Agreement) thereof
"Intermediate Term Customer Loan Note" means any promissory
note evidencing the indebtedness of a Customer under an
Intermediate Term Customer Loan and each Customer Advance made in
respect thereof; together with any modifications thereto.
"Intermediate Term Customer Loan-Equipment" shall mean
Customer Advances comprising an Intermediate Term Customer Loan (a)
made to a Customer to finance the acquisition of Equipment by such
Customer or to refinance a loan made to finance the acquisition of
Equipment by such Customer and (b) which is secured by a Lien in
such Equipment and proceeds thereof.
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"Intermediate Term Customer Loan-Real Estate" shall mean
Customer Advances comprising an Intermediate Term Customer Loan
made to a Customer to finance the acquisition of Real Estate by
such Customer or to refinance a loan made to finance the
acquisition of Real Estate by such Customer and (b) which is
secured by a Lien in such Real Estate and proceeds thereof.
"Net Aggregate Eligible Intermediate Term Advances" shall
mean, at any time, the aggregate outstanding principal balance of
the Eligible Intermediate Term Advances outstanding at such time
minus the Intermediate Term Credit Factor Adjustment at such time.
"Permitted Encumbrances" shall mean, with respect to any
Customer Collateral securing payment of Customer Loan, liens
against such Customer Collateral (i) which are by statute granted
priority over the lien therein granted to the Borrower pursuant to
the Customer Loan Documents or (ii) which secure Indebtedness to
Persons other than the Borrower which has been deducted by the
Borrower in setting the credit limit for the related Customer.
"Primary Intermediate Term Customer Collateral" shall mean,
with respect to an Intermediate Term Customer Loan, the Real Estate
securing payment of such Customer Loan and the Equipment securing
payment of such Customer Loan.
"Primary Intermediate Term Customer Collateral Sub-Limit"
shall mean, at any time, with respect to the Primary Intermediate
Term Customer Collateral securing payment of an Intermediate Term
Customer Loan, the sum of (a) the lesser of (i) seventy percent
(70.0%) of the appraised value of such Primary Intermediate Term
Customer Collateral which is Real Estate or (ii) the prevailing (or
actual) cash rent value of such Real Estate divided by 7.0% plus
(b) sixty percent (60.0%) of the market value (established in
accordance with the Credit Policy) for such Primary Intermediate
Term Customer Collateral which is Equipment.
"Real Estate" shall mean land, and any buildings, improvements
and fixtures thereon, used for agricultural or farming purposes.
"Related Customer" shall mean, with respect to any Customer,
at any time, (a) all Affiliates of such Customer and (b) all the
lineal descendants and ascendants of such Customer, all brothers,
sisters, step-mothers, step-sisters, half-brothers and half-sisters
of such Customers and the spouse of any of the foregoing.
"Stated Line of Credit Commitments" shall mean, at any time
with respect to a Bank, the Line of Credit Commitment and the
Intermediate Term Credit Commitment of such Bank.
"Total Intermediate Term Credit Advance" shall mean the
aggregate amount of all Intermediate Term Credit Advances made by
the Banks on the same Borrowing Date.
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"Total Intermediate Term Credit Commitment" shall mean the
aggregate amount of the Intermediate Term Credit Commitments of all
the Banks.
"Total Intermediate Term Credit Loan" shall mean the aggregate
of all outstanding Intermediate Term Credit Loans of the Banks.
"Total Line of Credit Advance" shall mean the aggregate amount
of all Line of Credit Advances made by the Banks on the same
Borrowing Date.
"Total Line of Credit Commitment" shall mean the aggregate
amount of the Line of Credit Commitments of all the Banks.
"Total Line of Credit Loan" shall mean the aggregate of all
outstanding Line of Credit Loans of the Banks.
"Total Stated Line of Credit Commitment" shall mean the
aggregate of the Stated Line of Credit Commitments of all the
Banks.
"UCC" shall have the meaning attributed to it in the Asset
Securitization Credit Agreement.
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SCHEDULE IIA
INTERMEDIATE TERM CREDIT
ARTICLE IIA
AMOUNT AND TERMS OF INTERMEDIATE TERM CREDIT
Section 2A.0I Intermediate Term Credit Facility. (a)
Intermediate Term Credit. Subject to the terms and conditions
hereof; a line of credit arrangement is established by the Banks in
favor of the Borrower (the "Intermediate Term Credit") whereby each
Bank agrees, severally and not jointly, to make advances and loans
to the Borrower, on such Borrowing Dates prior to March 1, 1999, as
the Borrower shall select, on a prorata basis as to each such
Intermediate Term Credit Advance requested by the Borrower on such
Borrowing Date determined by such Bank's Intermediate Term Credit
Applicable Percentage in an amount up to but not exceeding the
Intermediate Term Credit Commitment of such Bank; provided,
however, that the Banks will not be required and shall have no
obligation to make any Intermediate Term Credit Loan (i) so long as
a Default or Event of Default has occurred and is continuing, or
(ii) if an Acceleration has occurred, or (iii) at anytime after
February 28, 1999; provided further, however, that immediately
after giving effect to each such Intermediate Term Credit Advance,
the aggregate outstanding principal amount of the Loan shall not
exceed the lesser of the Intermediate Term Credit Borrowing Base or
the Total Intermediate Term Credit Commitment.
(b) Advances. Each Intermediate Term Credit Loan made by a
Bank on a Borrowing Date shall be in an amount equal to such Bank's
Intermediate Term Credit Applicable Percentage of each Intermediate
Term Credit Advance to be made to the Borrower on such Borrowing
Date. No Bank shall have any obligation to make any Intermediate
Term Credit Loan after the Intermediate Term Credit Maturity Date
or after such obligation is sooner terminated or cancelled by the
Banks pursuant to the rights afforded them herein. Within such
limits, the Borrower may, within the limits of this Section 2A.01,
and subject to Article VI hereof; borrow, repay pursuant to Section
2A.03(b) hereof and reborrow funds under this Section 2A.01.
Notwithstanding any other provision of this Agreement, in no event
shall any Bank be obligated to make an Intermediate Term Credit
Loan if immediately thereafter the aggregate outstanding principal
amount of all of such Bankts Intermediate Term Credit Loans would
exceed the lesser of such Bank's then applicable Intermediate Term
Credit Commitment or such Bank's Intermediate Term Credit
Applicable Percentage of the Intermediate Term Credit Borrowing
Base. Each such Intermediate Term Credit Advance shall be comprised
of Variable Rate Loans or Fixed Rate Loans as specified by the
Borrower in the notice of advance request given pursuant to Section
2A.05. Each Intermediate Term Credit Advance shall be in an
aggregate principal amount that is an integral multiple of
$50,000 and not less than $1,000,000.00 in the case of an
Intermediate Term Credit Advance comprised of Fixed Rate Loans or
$250,000.00 in the case of an Intermediate Term Credit Advance
comprised of Variable Rate Loans, or, an aggregate principal amount
equal to an amount which will utilize in full the remaining amount
then available to be borrowed under the Intermediate Term Credit.
The failure by any Bank to make any Intermediate Term Credit Loan
on the specified Borrowing Date shall not relieve any other Bank of
its obligation (if any) to make its own Intermediate Term Credit
Loan on such Borrowing Date, but no Bank shall be responsible for
the failure of any other Bank to make the Intermediate Term Credit
Loan of such other Bank.
Section 2A.02 Intermediate Term Credit Note. The Intermediate
Term Credit Loans made by each Bank shall be evidenced by a
properly executed promissory note of the Borrower substantially in
the form of Exhibit H attached hereto (completed with appropriate
insertions), payable to the order of such Bank in a stated
principal amount equal to such Bank's Intermediate Term Credit
Commitment (each such promissory note and each modification,
extension or replacement thereof or substitution therefor shall
hereinafter be called the "Intermediate Term Credit Note"). Each
Bank is hereby authorized to record the date, Type, and amount of
each Intermediate Term Credit Loan made by such Bank, each
continuation thereof; each conversion of all or a portion thereof
to another Type, the date and amount of each payment or prepayment
of principal thereof and, in the case of Fixed Rate Loans, the
length of each Interest Period with respect thereto, on the
schedule annexed to and constituting a part of its Intermediate
Term Credit Note, and any such recordation shall constitute prima
facie evidence of the accuracy of the information so recorded;
provided, however, that the failure to make any such recordation
shall not affect the obligations of the Borrower hereunder or under
any Intermediate Term Credit Note.
Section 2A.03 Principal.
(a) Mandatory Repayments. The Borrower shall be obligated to
make a principal repayment of the Total Intermediate Term Loan on
each Business Day in an amount equal to the Intermediate Term
Borrowing Base Deficit on such Business Day, together with accrued
interest on such principal amount repaid through the date of
payment. The entire aggregate outstanding principal of each Bank's
Intermediate Term Credit Loans and each Bank's Intermediate Term
Credit Note shall be due and payable in full on the Termination
Date. Mandatory principal repayments shall be applied first to
Intermediate Term Credit Advances comprised of Variable Rate Loans.
If a mandatory principal repayment is applied to Intermediate Term
Credit Advances comprised of Fixed Rate Loans on a date other than
the last day of the Interest Period therefor, the Borrower shall
pay to each Bank an amount sufficient to compensate such Bank for
any loss, cost or expenses incurred by such Bank as provided in
Section 2A. 17 hereof
(b) Optional Prepayments. The Borrower shall have the
right to prepay all or a portion of the Total Intermediate Term
Credit Loan at any time upon notice to the
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Administrative Agent, prior to the time
payment is made, on the date of prepayment in the case of Variable
Rate Loans and upon notice to the Administrative Agent given no
later than 12:00 noon (New York City time) on the third Business
Day prior to the date of prepayment in the case of Fixed Rate
Loans, which notice shall specify the Intermediate Term Credit
Advance being prepaid, the aggregate amount thereof to be prepaid,
and the date of prepayment. Any repayment of an Intermediate Term
Credit Advance shall be in an aggregate principal amount which is
an integral multiple of $50,000.00 and not less than $1,000,000.00
in the case of an Intermediate Term Credit Advance comprised of
Fixed Rate Loans or $250,000.00 in the case of an Intermediate Term
Credit Advance comprised of Variable Rate Loans or in either case
an amount sufficient to repay the outstanding principal amount of
such Intermediate Term Credit Advance. If a prepayment of an
Intermediate Term Credit Advance comprised of Fixed Rate Loans is
made on a date other than the last day of the Interest Period
therefor, the Borrower shall pay to each Bank an amount
sufficient to compensate such Bank for any loss, cost or expenses
incurred by such Bank as provided in Section 2A. 17 hereof. Amounts
prepaid may be reborrowed as permitted under Section 2A.01, subject
to the provisions of Section 6.02 hereof.
(c) Loss Indemnification. The provisions of Section 2A. 17
hereof shall apply to each mandatory repayment and optional
prepayment of any Fixed Rate Loan.
Section 2A.04 Interest.
(a) Rate Prior to Delinquency. (i) Subject to the provisions
of Section 2A.04(b), each Intermediate Term Credit Advance
comprised of Base Rate Loans shall bear interest at a rate per
annum equal to the Base Rate plus one-half percent (0.50%). The
interest rate on Intermediate Term Credit Advances comprised of
Base Rate Loans shall change as and when the Base Rate changes,
effective as of the opening of business on the day on which such
change in the Base Rate becomes effective.
(ii) Subject to the provisions of Section 2A.04(b), each
Intermediate Term Credit Advance comprised of Fed Funds Rate Loans
shall bear interest at a rate per annum equal to the Fed Funds Rate
plus a two and one-half percent (2.50%). The interest rate on
Intermediate Term Credit Advances comprised of said Fed Funds Rate
Loans shall change as and when the Fed Funds Rate changes,
effective as of the opening of business on the day in which such
change in the Fed Funds Rate becomes effective.
(iii) Subject to the provisions of Section 2A.04(b), each
Intermediate Term Credit Advance comprised of LIBOR Loans shall
bear interest at a rate per annum equal to the LIBO Rate for the
Interest Period in effect for such Intermediate Term Credit Advance
plus two percent (2.00%).
(iv) Interest on each Intermediate Term Credit Advance shall
accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest
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Period or the day such Intermediate Term Credit Advance is paid in
full if such day is other than the last day of such Interest
Period.
(b) Default Rate. Any principal of or interest on a
Intermediate Term Credit Loan not paid when due (whether at
maturity, by acceleration or otherwise) shall, from the due date
therefrom until paid, bear interest at a rate per annum (computed
on the same basis as a Base Rate Loan) equal to the Default Rate.
The Default Rate shall increase or decrease, without limit, as and
when the Base Rate changes, effective as of the opening of business
on the day on which such change in the Base Rate becomes effective.
(c) Required Payments. Interest on each Intermediate Term
Credit Advance comprised of Fixed Rate Loans shall be due and
payable on the last day of the Interest Period applicable to such
Intermediate Term Credit Advance or the day such Intermediate Term
Credit Advance is paid in full if such day is other than the last
day of such Interest Period. Interest on each Intermediate Term
Credit Advance comprised of Variable Rate Loans shall be due and
payable on the first day of each month and on the day such
Intermediate Term Credit Advance is paid in full. If in accordance
with the foregoing interest on any Intermediate Term Credit Advance
would be due and payable on a day which is not a Business Day, such
interest shall be due and payable on the next Business Day,
however, interest shall continue to accrue until paid. Accrued and
unpaid interest on all Intermediate Term Credit Advances shall be
due and payable on the Termination Date.
Section 2A.05 Notice of Advance Requests. The provisions of
Section 2.05 applicable to Advances shall also apply to each
request for an Intermediate Term Credit Advance and the Borrower
shall designate in each notice given pursuant to Section 2.05
whether a Line of Credit Advance or an Intermediate Term Credit
Advance is being requested and the principal amount of each such
Advance.
Section 2A.06 Intermediate Term Advances. Each Intermediate
Term Advance shall be comprised of Fixed Rate Loans, Base Rate
Loans or Fed Funds Rate Loans as the Borrower may request pursuant
to Section 2A.05 hereof The Borrower may refinance all or any part
of any Intermediate Term Advance with an Intermediate Term Advance
of the same or a different Type, subject, in each case, to the
conditions and limitations set forth in this Agreement. Any
Intermediate Term Advance or portion thereof refinanced in
accordance with the foregoing shall be deemed to be repaid or
prepaid in accordance with Section 2A.03, with the proceeds of a
new Intermediate Term Advance and the proceeds of the new
Intermediate Term Advance, to the extent they do not exceed the
principal amount of the Intermediate Term Advance being refinanced,
shall not be paid by the Banks to the Administrative Agent or by
the Administrative Agent to the Borrower pursuant to Section 2A. 11
hereof. Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Intermediate Term
Advance if the Interest Period requested with respect thereto would
end after the Intermediate Term Credit Maturity Date.
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Section 2A.07 Use of Proceeds. Proceeds of the Intermediate
Term Credit Advances shall be used for the Borrower's working
capital.
Section 2A.08 Intermediate Term Credit Facility Fee. The
Borrower agrees to pay the Administrative Agent, for the pro rata
benefit of each Bank based on their Intermediate Term Credit
Applicable Percentages, a non-refundable fee (the "Intermediate
Term Credit Facility Fee") equal to one-quarter percent (0.25%) of
the daily amount by which the Total Intermediate Term Credit
Commitment exceeds the average daily outstanding principal balance
of the Total Intermediate Term Credit Loan from the effective date
hereof in the case of each Bank that is a signatory hereto and from
the effective date specified in the Assignment Certificate pursuant
to which such Bank became a Bank in accordance with Section 13.14
in the case of each other Bank until the Termination Date. The
Intermediate Term Credit Facility Fee shall be payable on the last
day of each fiscal quarter of the Borrower, in arrears, prior to
March 1, 1999. No portion of any Intermediate Term Credit Facility
fee paid to the Administrative Agent shall be refunded for any
reason, irrespective of the occurrence of the Termination Date
prior to March 1, 1999. Upon receipt of any Intermediate Term
Credit Facility Fee, the Administrative Agent shall promptly
thereafter distribute to each Bank an amount equal to such Bank's
Intermediate Term Credit Applicable Percentage of such Intermediate
Term Credit Facility Fee paid to the Administrative Agent.
Section 2A.09 Calculation of Interest Maximum Lawful Rates.
All interest and fees charged hereunder with respect to all
Intermediate Term Credit Advances, Intermediate Term Credit Loans
and the Intermediate Term Credit Facility Fees and each
Intermediate Term Credit Note shall be calculated based on a year
of 360 days and the actual number of days elapsed. If at any time
the interest rate hereunder or under any Intermediate Term Credit
Note exceeds the highest lawful rate, interest shall accrue at the
highest lawful rate. If any payment by or on behalf of the Borrower
is received after 2:00 p.m. New York City time) on any Business
Day, it xxxx be deemed to be received on the next succeeding
Business Day. If the time for payment of any amount hereunder is
extended by operation of law or otherwise, interest shall continue
to accrue for such extended period.
Section 2A. 10 Notice of Changes in Base Rate. During the
effective period of this Agreement, the Administrative Agent shall
promptly advise Borrower of changes in the Base Rate; provided,
however, that the failure to give such advice or the failure to
give such advice promptly shall not affect the obligation of the
Borrower to pay interest in accordance with the terms of any
Intermediate Term Credit Note and of this Agreement.
Section 2A 11 Funding and Disbursements. The provisions of
Section 2.11 applicable to Advances shall also apply to fundings of
Intermediate Term Credit Advances by the Banks and disbursements of
Intermediate Term Credit Advances to the Borrower.
Section 2A.12 Payments. The provisions of Section 2.12 shall
also apply to payments made in respect of Intermediate Term Credit
Loans.
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Section 2A.13 Application of Payments. The provisions of
Section 2.13 applicable to Loans shall also control the application
of payments made in respect of Intermediate Term Credit Loans. Each
Bank agrees that in computing such Bank's portion of any
Intermediate Term Credit Advance to be made hereunder or the
portion of any payment to be allocated to such Bank hereunder, the
Administrative Agent may, in its sole discretion, round each Bank's
portion of such payment to the next higher or lower whole dollar
amount. Amounts paid by the Borrower pursuant to Sections 2A.15,
2A.16 or 2A.17 or Article XI shall be remitted to the
Administrative Agent or the Banks entitled thereto.
Section 2A.14 Non-Receipt of Funds by Administrative Agent.
The provisions of Section 2.14 applicable to fundings of Advances
shall also apply to fundings by a Bank of an Intermediate Term
Credit Advance.
Section 2A.15 Increased Cost. The provisions of Section 2.15
applicable to Line of Credit Loans and Line of Credit Notes and the
determination of the amount of and payments of increased costs with
respect thereto shall also apply to Intermediate Term Credit Loans
and Intermediate Term Credit Notes, respectively, and the
determination of the amount of and payment of increased costs with
respect thereto. The payment of the additional amounts required
hereunder shall be made by the Borrower immediately on the date any
Bank gives the required notice to the Borrower.
Section 2A.16 Risk-Based Capital. The provisions of Section
2.16 applicable to Line of Credit Loans and the determination of
the amount of and payment of additional costs with respect thereto
shall also apply to Intermediate Term Credit Loans and the
determination of the amount of and payment of additional costs with
respect thereto. The payment of the additional amounts required
hereunder shall be made by the Borrower within 30 days after the
date any Bank gives the required notice to the Borrower.
Section 2A.17 Funding Loss Indemnification. The provisions of
Section 2.17 applicable to a Line of Credit Loan and the
compensation to a Bank for any loss, cost, or expense incurred as
a result of a repayment or prepayment of a Fixed Rate Loan or the
Borrower's failure to borrow, renew or convert an Advance shall
also apply to Intermediate Term Credit Loans and the compensation
to a Bank for any loss, cost or expense incurred as a result of a
repayment or prepayment of a Fixed Rate Loan comprised of
Intermediate Term Credit Advances and the Borrower's failure to
borrow, renew or convert an Intermediate Term Credit Advance.
Section 2A.18 Survival. The Borrower's agreements and
obligations under Sections 2A.12, 2A.15, 2A.16 and 2A.17 shall
survive the payment of all Intermediate Term Credit Loans
hereunder.
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Section 2A.19 Pro Rata Treatment. Except as otherwise
specifically provided herein, each Intermediate Term Credit Loan,
each payment or prepayment of principal of the Loan, each payment
of interest on the Loan, each payment of the Intermediate Term
Credit Fee and a Default Fee, each conversion into, or out of; and
renewals of; Fixed Rate Loans shall be allocated pro rata among the
Banks in accordance with each Bank's Intermediate Term Credit
Applicable Percentage. Each Bank agrees that in computing such
amount of any Intermediate Term Credit Loan to be made by such Bank
or any payment to be allocated to such Bank hereunder, the
Administrative Agent may, in its discretion, round the dollar
amount of each Bank's Intermediate Term Credit Loan to the next
higher or lower whole dollar amount.
Section 2A.20 References to Advances. Each reference to
"Advances" and "Advance" in the provisions of Section 2.05, 2.11,
2.12, 2.13, 2.14, 2.15, 2.16 and 2.18 made applicable to
Intermediate Term Credit Advances or an Intermediate Term Credit
Advance as provided in this Article IIA shall mean and refer,
respectively, to Intermediate Term Credit Advances and an
Intermediate Term Credit Advance for purposes of this Article IIA.
Section 2A.21 Collateral Allocation Summary. The Borrower
shall complete and furnish to the Custodian a Collateral Allocation
Summary promptly after each allocation of Primary Intermediate Term
Customer Collateral is made by the Borrower to support a credit
limit established for a Customer or a Customer Crop Input Loan.
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AG SERVICES OF AMERICA, INC.
EXHIBIT 10.24
AMENDMENT NO. 1 TO CREDIT AGREEMENT
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EXECUTION COPY
AMENDMENT NO. 1
dated as of March 9, 1998
to
CREDIT AGREEMENT
dated as of March 12, 1997
THIS AMENDMENT NO.1 to CREDIT AGREEMENT, dated as of March 9,
1998 (this "Amendment") is made by AG ACCEPTANCE CORPORATION, a
Delaware corporation (the "Borrower"), TRIPLE-A ONE FUNDING
CORPORATION, a Delaware corporation ("Triple-A"), AG SERVICES OF
AMERICA, INC., an Iowa corporation ("Ag Services"), in its capacity
as Servicer hereunder (in such capacity, the "Servicer"), CapMAC
FINANCIAL SERVICES, INC. ("CFS"), as Administrative Agent (the
"Administrative Agent") and CAPITAL MARKETS ASSURANCE CORPORATION,
a New York insurance company ("CapMAC"), in its separate capacities
as Collateral Agent (the "Collateral Agent") and as Surety (the
"Surety"). Capitalized terms used herein and not defined herein
shall have the meanings assigned to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, Triple-A, the Servicer, the
Administrative Agent and the Collateral Agent are parties to a
certain Credit Agreement dated as of March 12, 1997 (the "Credit
Agreement");
WHEREAS, the Borrower, Triple-A, the Servicer, the
Administrative Agent and the Collateral Agent have agreed to amend
the Credit Agreement, and CapMAC, as the Surety has agreed to such
amendment, in each case, on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises set forth
above) and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, each of the
Borrower, Triple-A, the Servicer, the Administrative Agent, and the
Collateral Agent hereby agree as follows:
Section 1. Amendment of the Credit Agreement
Subject to the fulfillment of the conditions precedent set
forth in Section 2 below, the Credit Agreement is hereby amended as
follows:
(a) The defined term "DIP Financing Limit" set forth in
Section 1.01 of the Credit Agreement is hereby amended by deleting
"5%" contained in clause (i) thereof and substituting with "7.5%"
therefor;
(b) The defined term "Facility Limit" set forth in Section
1.01 of the Credit Agreement is hereby amended by deleting
"$135,000,000" contained thereof and substituting with
"$[171,000,000]" therefor;
(c) Section 9.01(o) of the Credit Agreement is hereby amended
by deleting "ten percent (10%)" contained in clause (i) thereof and
substituting the phrase "eight percent (8%)" therefor;
(d) Section 9.01(g) of the Credit Agreement is hereby amended
by deleting "one percent (1%)" contained in clause (iii) thereof
and substituting the phrase "two percent (2%)" therefor; and
(e) The List of Credit Factors, as set forth under Exhibit J
to the Credit Agreement, is hereby deleted in its entirety and
Exhibit J attached hereto shall be substituted therefor.
Section 2. Conditions Precedent. This Amendment shall
become effective and shall be deemed effective as of the date first
above written upon the receipt by the Administrative Agent of each
of the following:
(i) signed counterparts of this Amendment executed by each of
the Borrower, Triple-A, the Servicer, the Administrative Agent, the
Collateral Agent and the Surety; and
(ii) evidence that Triple-A has delivered a description of
this Amendment to each Liquidity Bank and has certified that this
Amendment has no material adverse effect on the Liquidity Banks'
rights, obligations or interests under the Liquidity Agreement.
Section 3. Representations and Warranties. The Borrower
hereby represents and warrants that (i) the representations and
warranties contained in the Credit Agreement are correct in all
material respects as though made on and as of the date of this
Amendment, other than any such representation or warranty which
relates to a specified prior date, and (ii) no Event of Default or
Unmatured Event of Default has occurred and is continuing.
Section 4. Effect on the Credit Agreement. Except as
specifically set forth above, (i) the Credit Agreement and all
other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and
effect and are hereby ratified and confirmed; and (ii) the
execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the
Administrative Agent or Triple-A under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement or of
any Event of Default or Unmatured Event of Default in existence on
the date of this Amendment.
Section 5. Execution in Counterparts. This Amendment may
be executed in any numbers of counterparts and by different parties
hereto in separate counterparts, each of which
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when so executed and delivered shall be deemed to be an original
and all of which when taken together shall constitute but one and
the same instrument.
Section 6. Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the State of New
York.
Section 7. Section Titles. The section titles contained in
this Amendment are and shall be without substance, meaning or
content of any kind whatsoever and are not a part of the agreement
between the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as the date first above
written.
AG ACCEPTANCE CORPORATION
By: ________________________
Title:_______________________
AG SERVICES OF AMERICA, INC.
By: _________________________
Title:_______________________
TRIPLE-A ONE FUNDING CORPORATION
By: Capital Markets Assurance
Corporation, its Attorney-in-Fact
By: ___________________________
Title:__________________________
CAPITAL MARKETS ASSURANCE
CORPORATION, in its capacity as Collateral
Agent and Surety.
By: ___________________________
Title:__________________________
CAPMAC FINANCIAL SERVICES, INC.
as Administrative Agent
By: ____________________________
Title: __________________________
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EXHIBIT I
to
Credit Agreement
List of Credit Factors
----------------------
Irrigated Crops 95%
Non-irrigated Crops 90%
