EXHIBIT 10.94
Amendment To LOAN DOCUMENTS
Parties:
"CoBank": CoBank, ACB
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
"Borrower": Village Farms International Finance Association
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
"Guarantor": Agro Power Development, Inc.
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Effective Date: September 29, 1998
Recitals:
X. XxXxxx, acting in its capacity as Agent (in such capacity "Line of
Credit Agent") and as a Syndication Party, and Borrower entered into that
certain Credit Agreement (Line of Credit Facility) dated as of June 24, 1997 (as
amended from time to time, the "LOC Credit Agreement").
X. XxXxxx, acting in its capacity as Agent (in such capacity "Term Agent")
and as a Syndication Party, and Xxxxxxxx entered into that certain Credit
Agreement (Term Loan Funding) dated as of June 24, 1997 (as amended from time to
time, the "Term Credit Agreement").
X. Xxxxxxxx's obligations under the LOC Credit Agreement are secured by
liens on certain of Xxxxxxxx's assets pursuant to that certain Line of Credit
Security Agreement by and between Borrower and CoBank, as the Line of Credit
Agent for the Line of Credit Lenders (as such term is defined therein) and dated
as of June 24, 1997 ("LOC Security Agreement").
X. Xxxxxxxx's obligations under the Term Credit Agreement are secured by
liens on certain of Xxxxxxxx's assets pursuant to that certain Term Loan
Security Agreement by and between Borrower and CoBank, as the Term Agent for the
Term Lenders (as such term is defined therein) and dated as of June 24, 1997
("Term Security Agreement").
X. Xxxxxxxxx executed its Guaranty of Agro Power Development, Inc. dated as
of June 24, 1997 (as amended from time to time, the "Guaranty") whereby
Guarantor guaranteed payment of certain obligations of Borrower, including,
without limitation, all
Agreement and other Loan Documents. Guarantor's obligations under the Guaranty
are secured by liens on certain of Guarantor's assets pursuant to (a) that
certain Guarantor Security and Pledge Agreement by and between Guarantor and the
Construction Agent, the Term Agent, and the Line of Credit Agent (as such terms
are defined therein) and dated as of June 24, 1997 ("Guarantor Security
Agreement"), and (b) that certain Trademark Collateral Assignment and Security
Agreement by and between Guarantor and the Construction Agent, the Term Agent,
and the Line of Credit Agent (as such terms are defined therein) and dated as of
June 24, 1997 ("Guarantor Trademark Security Agreement")
F. The Construction Lenders, the Term Lenders, the Line of Credit Lenders,
the Construction Agent, the Term Agent, the Line of Credit Agent (as all of such
terms are defined therein) and Borrower entered into that certain Intercreditor
Agreement dated as of June 24, 1997 ("Intercreditor Agreement").
X. Xxxxxxxx and Guarantor have requested Agent and the Syndication Parties
under the LOC Credit Agreement to increase the loan amount available under the
LOC Credit Agreement to the principal amount of $13,319,175.00, which Agent and
the Syndication Parties are willing to do under certain conditions, including
the terms and conditions as set forth in that certain document entitled Second
Amendment to Credit Agreement (Line of Credit Facility) ("Second Amendment").
H. The amendment as set forth in the Second Amendment affects certain
provisions of the LOC Security Agreement, the Term Security Agreement, the
Guarantor Security Agreement, and the Guarantor Trademark Security Agreement
(collectively the "Security Agreements"), as well as the Guaranty and the
Intercreditor Agreement, and the parties desire to address such provisions
herein.
Agreement:
Now, therefore, for good and valuable consideration, the receipt of which
is hereby acknowledged, including the mutual covenants contained herein, the
parties hereto hereby agree as follows:
1. Amendments to Security Agreements. The Security Agreements are amended
as of the Effective Date as follows:
1.1 The reference in Recital A of the LOC Security Agreement to
"$10,000,000.00" is hereby changed to be a reference to "$13,319,175.00".
1.2 The reference in Recital A of the Term Security Agreement to
"$50,000,000.00" is hereby changed to be a reference to "$46,680,825.00".
1.3 The reference in Recital C of the Guarantor Security Agreement to
"$10,000,000.00" is hereby changed to be a reference to "$13,319,175.00".
1.4 The reference in Recital C of the Guarantor Trademark Security
Agreement to "$10,000,000.00" is hereby changed to be a reference to
"$13,319,175.00".
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2. Amendments to Guaranty and Intercreditor Agreement. The Guaranty and the
Intercreditor Agreement are amended as of the Effective Date as follows:
2.1 The reference in Recital B of the Guaranty to "$50,000,000.00" is
hereby changed to be a reference to "$46,680,825.00".
2.2 The reference in Recital C of the Guaranty to "$10,000,000.00" is
hereby changed to be a reference to "$13,319,175.00".
2.3 The reference in Recital B of the Intercreditor Agreement to
"$50,000,000.00" is hereby changed to be a reference to "$46,680,825.00".
2.4 The reference in Recital C of the Intercreditor Agreement to
"$10,000,000.00" is hereby changed to be a reference to "$13,319,175.00".
3. Conditions to Effectiveness of this Amendment to Loan Documents. The
effectiveness of this Amendment to Loan Documents ("Amendment") is subject to
satisfaction, in Agent's sole discretion, of each of the following conditions
precedent:
3.1 Amendment Documents. Agent shall have received the following documents
and such further assignments, documents or financing statements as Agent may
reasonably request, all fully executed and in form and substance satisfactory to
Agent:
(a) Amended and Restated Promissory Note (Line of Credit Facility).
(b) Second Amendment to Credit Agreement (Term Loan Funding).
(c) Second Amendment to Credit Agreement (Line of Credit Facility).
3.2 Fees and Expenses. Borrower shall have paid Agent, by wire transfer of
immediately available federal funds all fees and expenses, including attorneys'
fees, incurred by Agent in connection with the preparation, negotiation and
execution of the documents described or referred to in Section 3.1 hereof, this
Amendment, and related documents, and the filing or recording of any such
documents.
3.3 No Event of Default. No Event of Default or Potential Default shall
have occurred and be continuing under the LOC Credit Agreement, the Term Credit
Agreement, or the Guaranty.
4. General Provisions.
4.1 The Guaranty, the Intercreditor Agreement, and the Security Agreements,
except as expressly modified herein, shall continue in full force and effect and
be binding upon the parties thereto.
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4.2 This Amendment shall be binding upon and inure to the benefit of
Borrower, Agents, and the Syndication Parties, and their respective successors
and assigns.
4.3 The invalidity or unenforceability of any provision of this Amendment
shall not affect the remaining portions of this Amendment; in case of such
invalidity or unenforceability, this Amendment shall be construed as if such
invalid or unenforceable provisions had not been included therein.
4.4 To the extent not governed by federal law, this Amendment and the
rights and obligations of the parties hereto and thereto shall be governed by
and interpreted in accordance with the internal laws of the State of Colorado,
without giving effect to any otherwise applicable rules concerning conflicts of
law.
4.5 The captions or headings in this Amendment are for convenience only and
in no way define, limit or describe the scope or intent of any provision of this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the Effective Date set forth above.
COBANK:
CoBank, ACB, as Line of Credit Agent, Term
Agent, and Construction Agent
By: __________________________
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
COBANK:
CoBank, ACB, as sole Syndication Party
under the Term Credit Agreement
By: __________________________
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
COBANK:
CoBank, ACB, as sole Syndication Party
under the LOC Credit Agreement
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By: __________________________
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
BORROWER:
Village Farms International Finance
Association
By: ___________________________
Name: _________________________
Title: ________________________
AGREEMENT AND CONSENT OF GUARANTOR
Guarantor hereby consents and agrees to the foregoing Amendment.
GUARANTOR:
Agro Power Development, Inc.
By: ___________________________
Name: _________________________
Title: ________________________
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