Exhibit 10.115
EXTENSION AGREEMENT
THIS EXTENSION AGREEMENT ("Agreement") dated as of March 15, 1999, is made by
and between COGENTRIX DELAWARE HOLDINGS, INC., a Delaware corporation, having
its principal place of business at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxx, XX 00000 ("Seller"), and ECOSCIENCE CORPORATION, a Delaware
corporation, having its principal place of business at 00 Xxxxx Xxxxx, Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Purchaser").
WHEREAS, Seller and Purchaser have entered into a Stock Purchase Agreement (the
"Stock Purchase Agreement") dated as of December 7, 1998 pursuant to which (i)
Purchaser has executed a promissory note in favor of Seller (the "Note") under
the terms of which Purchaser has agreed to pay to Seller the principal sum of
TWENTY MILLION, SIX HUNDRED THOUSAND AND NO/00 Dollars ($20,600,000.00),
together with interest on such principal sum at eleven and one-quarter percent
(11.25%) per annum as set forth therein, on March 15, 1999 and (ii) Seller has
sold to Purchaser all of the outstanding shares of common stock (the "Shares")
of COGENTRIX OF BUFFALO, INC. ("CBI"), COGENTRIX OF FORT XXXXX I, INC., ("CFDI")
COGENTRIX GREENHOUSE INVESTMENTS, INC., ("CGI"), COGENTRIX OF MARFA, INC.,
("CMA") AND COGENTRIX OF POCONO INC. ("CPI"), each a Delaware corporation (each
of CBI, CFDI, CGI, CMI and CDI are referred to herein as a "Company" and
collectively as the "Companies").
WHEREAS, Purchaser desires to extend the date on which the principal amount of
the Note is due and payable and Seller is willing to so extend such payment date
on the terms and conditions set forth herein.
WHEREAS, capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, the parties agree as follows:
1. Extension of Note. On the Effective Date, the date for payment in one
installment of the principal together with all interest accrued on the
Note shall be extended from March 15, 1999 to June 30, 1999. Such
extension shall be evidenced by the execution and delivery by Seller
of an Allonge to Promissory Note (the "Allonge") in the form of
Exhibit A hereto; provided, that the failure of Seller to attach the
Allonge to the Note shall not affect the validity of the extension of
time for payment provided for herein.
2. Consideration for Extension. In consideration of the extension of the
time for payment of the Note, Purchaser shall pay to Seller an
extension fee in the amount of $1,000,000.00, such amount to be paid
to Seller through the
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issuance by Purchaser to Seller of a promissory note, (the "Extension
Note") in the form of Exhibit B hereto.
3. Effective Date. The "Effective Date" shall be the last date which each
of the following conditions shall have been satisfied or waived by the
Seller:
(i) Purchaser shall have delivered to Seller (A) the Extension Note,
(B) an executed counterpart of the Allonge and (C) an executed
counterpart of the Amendment to Stock Pledge Agreement (the
"Pledge Amendment") in the form of Exhibit C hereto.
(ii) Each of the representations of the Purchaser made in this
Agreement shall be true and correct as of the date of this
Agreement and as of the Effective Date as though made as of such
time and Purchaser shall have performed each and every covenant
contained in this Agreement required to be performed by Purchaser
by the Effective Date.
4. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
(i) Organization and Authority of the Purchaser. The Purchaser
is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and
has all necessary corporate power and authority to enter
into this Agreement, the Pledge Amendment and the Allonge
and to issue the Extension Note, to carry out its
obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution
and delivery of this Agreement, the Pledge Amendment and the
Allonge and the issuance of the Extension Note by the
Purchaser, the performance by the Purchaser of its
obligations hereunder and thereunder and the consummation by
the Purchaser of the transactions contemplated hereby and
thereby have been duly authorized by all requisite action on
the part of the Purchaser. This Agreement, the Pledge
Amendment, the Allonge and the Extension Note have been duly
executed and delivered by the Purchaser, and (assuming due
authorization, execution and delivery by the Seller) each of
this Agreement, the Pledge Amendment, the Allonge and the
Extension Note constitutes a valid and binding obligation of
the Purchaser enforceable against the Purchaser in
accordance with its terms.
(ii) No Conflict. Except as may result from any facts or
circumstances relating solely to the Seller, the execution,
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delivery and performance of this Agreement, the Pledge
Amendment and the Allonge and the issuance of the Extension
Note by the Purchaser do not and will not (a) violate,
conflict with or result in the breach of any provision of
the Certificate of Incorporation or By-laws of the
Purchaser, (b) conflict with or violate any law or
governmental order applicable to the Purchaser or (c)
conflict with, or result in any breach of, constitute a
default (or event which with the giving of notice or lapse
or time, or both, would become a default) under, require any
consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or
cancellation of, or result in the creation of any
encumbrance on any of the assets or properties of the
Purchaser pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to
which the Purchaser is a party or by which any of such
assets or properties are bound or affected which would have
a material adverse effect on the ability of the Purchaser to
consummate the transactions contemplated by this Agreement.
(iii) Governmental Consents and Approvals. The execution, delivery
and performance of this Agreement, the Pledge Amendment and
the Allonge and the issuance of the Extension Note by the
Purchaser do not and will not require any consent, approval,
authorization or other order of, action by, filing with, or
notification to, any governmental authority.
5. Miscellaneous.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the
same agreement, it being understood that all parties need
not sign the same counterpart.
(ii) Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the Pledge Amendment (including the documents
and instruments referred to herein and therein) (i)
constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral,
between Seller and Purchaser with respect to the subject
matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies
hereunder.
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(iii) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.
6. Mandatory Prepayments. If an Event of Default under the Stock Pledge
occurs, the principal and all accrued and unpaid interest on the
Extension Note shall without further act become immediately due and
payable in full.
The following shall constitute "Prepayment Events"; (i) Purchaser or
any of its subsidiaries shall incur any indebtedness for borrowed
money, (other than under their respective working capital facilities
(a "Debt Event"), (ii) Purchaser or any of its Subsidiaries shall
issue any capital stock for cash (a "Stock Event"), or (iii) Purchaser
or any of its Subsidiaries, shall sell any asset, other than in the
ordinary course of business (an "Asset Sale"). "Net Proceeds" shall
mean (i) in the case of a Debt Event, all cash loan proceeds, less
reasonable transactions expenses, (ii) in the case of a Stock Event,
all cash proceeds, less reasonable transaction expenses and (iii) in
the case of an Asset Sale, all net cash proceeds, after payment of
reasonable transactions expenses and indebtedness required to be
repaid by any lien attached to the related asset, and, only in the
case of a sale of the Pocono facility, the payment of indebtedness to
Agro Power Development, Inc. related to the Pocono facility.
"Available Net Proceeds" shall mean the excess of Net Proceeds over
the amounts utilized to prepay the Note from Net Proceeds as required
by Section 10 of the Stock Purchase Agreement.
On the day that a Prepayment Event occurs, Purchaser shall pay over to
Seller as a prepayment on the Extension Note, the lesser of the
Available Net Proceeds related to such Prepayment Event and the
principal and interest the outstanding on the Extension Note. Amounts
received by Seller shall be applied first against accrued interest and
the balance against the remaining principal outstanding. If any such
payment shall be sufficient to pay the Extension Note in full, Seller
shall on receipt of such payment, xxxx the Extension Note as cancelled
and return the same to Purchaser. If such payment is not sufficient to
pay the Extension Note in full, Seller shall, on receipt of a new
Extension Note, in the form of Exhibit B in a principal amount equal
to the outstanding principal after such payment, surrender to
Purchaser the Extension Note then held by Seller.
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IN WITNESS WHEREOF, Seller and Purchaser have each caused this Agreement to be
duly executed as of the date first written above.
PURCHASER:
ECOSCIENCE CORPORATION
By:_______________________________
Name: J. Xxxxx Xxxx
Title: Senior Vice President
SELLER:
COGENTRIX DELAWARE HOLDINGS,
INC.
By:_______________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President -
Finance and
