CONSOLIDATED, AMENDED AND
RESTATED LOAN AGREEMENT
BY AND BETWEEN
COBANK, ACB
AND
VILLAGE FARMS, L.P.
DATED AS OF JANUARY 2, 2000
CONSOLIDATED, AMENDED AND RESTATED LOAN AGREEMENT
THIS CONSOLIDATED, AMENDED AND RESTATED LOAN AGREEMENT ("AGREEMENT") is
entered into as of the 2nd day of January, 2000, by and between COBANK, ACB
("COBANK"), whose mailing address is X.X. Xxx 0000, Xxxxxx, Xxxxxxxx 00000, and
VILLAGE FARMS, L.P., a limited partnership formed under the laws of the State of
Delaware, whose mailing address is 00 Xxxxx Xxxxx, Xxx Xxxxxxxxx, XX 00000
("BORROWER").
RECITALS
A. CoBank has purchased all right, title and interest of Village Farms
International Finance Association, a Delaware corporation ("VFIFA") to the
Buffalo Loan, the Marfa Loan, the Presidio Loan and the Texas Loan, and all
collateral security therefor, pursuant to that certain Note Purchase Agreement
of even date herewith by and between VFIFA and CoBank ("NOTE PURCHASE
AGREEMENT").
B. The borrower under each of the Buffalo Loan, the Marfa Loan, the
Presidio Loan and the Texas Loan has merged into Borrower and Borrower is the
surviving entity. Borrower and CoBank desire to consolidate, amend and restate
the terms and conditions of the Buffalo Loan, the Marfa Loan, the Presidio Loan
and the Texas Loan.
C. Certain other entities which were merged into Borrower also
previously borrowed money from VFIFA and from Agro Power Development, a Delaware
corporation ("APD"), and Borrower desires to refinance such loans.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1.
DEFINED TERMS
As used in this Agreement, the following terms shall have the meanings
set forth below (and such meaning shall be equally applicable to both the
singular and plural form of the terms defined, as the context may require):
1.1 APD Entities: Village Farms, L.L.C., a Delaware limited liability
company; and Cogentrix Greenhouse Investments, Inc., a Delaware corporation.
1.2 APD Guaranty: that certain Guaranty of even date herewith pursuant to
which APD unconditionally guarantees the payment and performance of all
obligations
of Borrower to CoBank, whether now existing or hereafter arising and including,
without limitation, all indebtedness of Borrower to CoBank under the Loan
Documents, as amended, modified or supplemented from time to time.
1.3 APD Loans: the loans made by APD to Village Farms of Presidio, L.P., a
Delaware limited partnership, Keystone Village Farms, L.L.C., a Delaware limited
liability company, and Village Farms of Virginia, Inc., a Delaware corporation,
with proceeds of the loans which were made to APD by VFIFA using proceeds of the
loan made to VFIFA by CoBank under the Line of Credit Agreement and using
distributions received by APD on account of the sale of the assets of Pocono.
1.4 APD Finance Loan: the loans made to APD by VFIFA with proceeds of the
loans made by CoBank to VFIFA under the Line of Credit Agreement.
1.5 Bank Debt: all amounts owing under the Notes, fees owing under the Loan
Documents, indemnification obligations arising under the Loan Documents
(including, without limitation, Article 14 of this Agreement), all draws under
the Issued Letter of Credit and all reimbursement obligations of Borrower under
any reimbursement agreement executed in connection with the Issued Letter of
Credit, Additional Costs, and all interest, expenses, charges and other amounts
payable by Borrower pursuant to the Loan Documents.
1.6 Borrower Pension Plan: a Borrower Benefit Plan that is an "employee
pension benefit plan" as defined in Section 3(2) of ERISA that is intended to
satisfy the requirements of Section 401(a) of the Code.
1.7 Buffalo Loan: the loans made to Village Farms of Buffalo, L.P., a
Delaware limited partnership, by VFIFA with proceeds of the loans made by CoBank
to VFIFA pursuant to the VFIFA Loan Agreements.
1.8 Business Day: any day other than a Saturday or Sunday and other than a
day which is a Federal legal holiday or a legal holiday for banks in the State
of Colorado or the State of New Jersey.
1.9 Capital Lease: means any lease of property (whether real, personal or
mixed) by a Person where the discounted present value of the rental obligations
of such Person as lessee under such lease, in accordance with GAAP, is required
to be capitalized on the balance sheet of such Person.
1.10 Change of Control: any of the following events: (a) any "person" or
any syndicate or group deemed a "person" within the meaning of Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") has become, directly or indirectly, the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), of 30% or more of the voting power of the voting stock of
EcoScience on a fully-diluted basis, after giving effect to
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the conversion and exercise of all outstanding warrants, options and other
securities of EcoScience (whether or not such securities are then currently
convertible or exercisable), or (b) during any period of two consecutive board
election years, individuals who at the beginning of such period constituted the
board of directors of EcoScience cease for any reason (other than death,
disability or expiration of term) to constitute a majority of the directors of
EcoScience then in office unless such new directors were elected by the
directors of EcoScience who constituted the board of directors of EcoScience at
the beginning of such period; provided, however, that no Change of Control shall
occur or be deemed to have occurred if any of Xxxxxxx X. XxXxxxxx, Xxxxxx
Xxxxxxxx or Xxxxxx Xxxxxxxx, acting individually or as a group, becomes the
beneficial owner of 30% or more of the voting power of the voting stock of
EcoScience or if any of Xxxxxxx X. XxXxxxxx, Xxxxxx Xxxxxxxx or Xxxxxx Xxxxxxxx
disposes of 35% or less of the voting power of the voting stock of EcoScience of
which he is the beneficial owner (as herein defined) as of the date of this
Agreement, with ownership percentages determined in all cases on a fully diluted
basis after giving effect to the conversion and exercise of all outstanding
warrants, options and other securities of EcoScience (whether or not such
securities are then currently convertible or exercisable).
1.11 Cogentrix: Cogentrix Delaware Holdings, Inc.
1.12 Collateral: the Borrower Collateral, the General Partner Collateral
and the Guarantor Collateral.
1.13 Compliance Certificate: a certificate in the form of Exhibit 1.13
hereto.
1.14 Construction Loan Agreement: that certain Credit Agreement
(Construction Loan Funding) dated as of June 24, 1997 by and between CoBank, for
its own benefit as a lender and, as Agent Bank for the benefit of the present
and future Syndication Parties, and VFIFA, as amended
1.15 Default Interest Rate: a rate of interest equal to 400 basis points
over the Interest Rate.
1.16 EBITDA: for any period, the consolidated net income of Borrower for
such period (excluding the effect of any extraordinary gains or losses), plus
the sum of the amounts of (a) Interest Expense, plus (b) federal and state
income taxes, plus (c) depreciation and amortization expense, all as determined
in accordance with GAAP.
1.17 EcoScience: EcoScience Corporation, a Delaware corporation.
1.18 EcoScience Guaranty: that certain Guaranty of even date herewith
pursuant to which EcoScience unconditionally guarantees the payment and
performance of all obligations of Borrower to CoBank, whether now existing or
hereafter arising and including, without limitation, all indebtedness of
Borrower to CoBank under the Loan Documents, as amended, modified or
supplemented from time to time.
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1.19 Effective Date: the first date on which the conditions set forth in
Article 9 shall have been satisfied.
1.20 Environmental Laws: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 as amended, 42 U.S.C. 9601-9657 and the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901-6987.
1.21 Environmental Regulations: any federal, state or local law, statute,
code, ordinance, regulation, requirement or rule (other than the Environmental
Laws) now in effect or hereinafter enacted relating to pollution or protection
of the environment, health, safety or natural resources.
1.22 GAAP: generally accepted accounting principles in the United States of
America, applied consistently, as in effect from time to time.
1.23 General Partner: Village Farms of Delaware, L.L.C., a Delaware limited
liability company.
1.24 General Partner Entities: Cogentrix of Buffalo, Inc., a Delaware
corporation; Cogentrix of Fort Xxxxx I, Inc., a Delaware corporation; and
Cogentrix of Marfa, Inc., a Delaware corporation.
1.25 General Partner Security Agreement: that certain Security and Pledge
Agreement of even date herewith pursuant to which General Partner pledges and
grants to CoBank a security interest in the General Partner Collateral, as
amended, modified or supplemented from time to time.
1.26 Greenhouses: the greenhouses operated by Borrower for the production
of vegetables or other produce.
1.27 Greenhouse Properties: the real property on which the Greenhouses are
located.
1.28 Gross Profit: Borrower's revenue from sales minus the cost of goods
sold, determined on a consolidated basis and calculated in accordance with GAAP.
1.29 Guarantees: the APD Guaranty and the EcoScience Guaranty.
1.30 Guarantors: APD and EcoScience.
1.31 Guarantor Collateral: the APD Collateral and the EcoScience
Collateral.
1.32 Hazardous Substances: dangerous, toxic or hazardous pollutants,
contaminants, chemicals, wastes, materials or substances, as defined in or
governed by the provisions of any Environmental Laws or Environmental
Regulations, and also including urea formaldehyde, polychlorinated biphenyls,
asbestos, asbestos-containing materials, nuclear fuel or waste, and petroleum
products, or any other waste, material, substances, pollutant or contaminant
which would subject an owner of property to any
4
damages, penalties or liabilities under any applicable Environmental Laws or
Environmental Regulations.
1.33 Interest Expense: for any period, total interest expense (including
the interest component of any Capital Leases) of Borrower determined on a
consolidated basis and in accordance with GAAP.
1.34 Interest Rate: the National Variable Rate plus 200 basis points.
1.35 Issued Letter of Credit: that certain Letter of Credit issued by
CoBank on October 1, 1997 for the benefit of National Fuel Gas Distribution
Corporation in the face amount of $80,000, as amended, modified, extended or
replaced from time to time.
1.36 Lien: any mortgage, pledge, lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and, with respect to real property, any easement, right of
way or other encumbrance on title to real property.
1.37 Line of Credit Agreement: that certain Credit Agreement (Line of
Credit Funding) dated as of June 24, 1997 by and between CoBank, for its own
benefit as a lender and, as Agent Bank for the benefit of the present and future
Syndication Parties, and VFIFA, as amended.
1.38 Loan Documents: this Agreement, the Notes, the Note Purchase
Agreement, the Guarantees, the Security Documents, and other documents required
by CoBank from time to time to grant or assign to CoBank a perfected security
interest in the Collateral, together with all renewals, extensions, amendments,
modifications, and supplements thereto.
1.39 Marfa Loan: the loans made to Village Farms of Marfa, L.P., a Delaware
limited partnership, by VFIFA with proceeds of the loans made by CoBank to VFIFA
pursuant to the VFIFA Loan Agreements.
1.40 Material Adverse Change: with respect to any Person, any material
adverse change in the business, condition (financial or otherwise), operations,
performance or properties of such Person.
1.41 Material Adverse Effect: with respect to any Person, a material
adverse effect on (a) the business, condition (financial or otherwise),
operations, performance or properties of such Person, (b) the ability of such
Person to perform its obligations under any Loan Document to which it is a party
or (c) the rights and remedies of CoBank under any Loan Document.
1.42 Mission Critical: a Person with respect to whom the failure of such
Person's Significant Software to be Year 2000 Compliant could reasonably be
expected to have a Material Adverse Effect on Borrower.
5
1.43 National Variable Rate: the rate of interest established by CoBank
from time to time as its National Variable Rate. The National Variable Rate is
intended by CoBank to be a reference rate, and CoBank may charge other borrowers
rates at, above, or below that rate. Any change in the National Variable Rate
shall take effect on the date established by CoBank as the effective date of
such change.
1.44 Notes: the Tranche A Note and the Tranche B Note, as amended, modified
or supplemented from time to time.
1.45 Participant: collectively, any Person to whom CoBank shall sell or
assign a loan participation or other fractional undivided interest in the Bank
Debt, as evidenced by the Notes and other Loan Documents, and the legal
representatives, successors and assigns of any such Person.
1.46 Pennsylvania Loan: the loans made to Keystone Village Farms, L.L.C. by
VFIFA with proceeds of the loans made by CoBank to VFIFA pursuant to the VFIFA
Loan Agreements.
1.47 Permits: any and all permits, licenses and consents from any
governmental entity or third party that must be obtained in order to own/lease
and operate the Greenhouses and the Greenhouse Properties and for Borrower to
perform Borrower's obligations under the Loan Documents.
1.48 Permitted Liens: Liens against any Collateral which are permitted
under Section 12.3 of this Agreement or otherwise expressly permitted pursuant
to any other Loan Document.
1.49 Person: any individual, sole proprietorship, joint venture,
unincorporated organization, cooperative association, limited liability company,
corporation, association, partnership, trust, government, governmental agency,
or other entity.
1.50 Potential Default: any event which with the giving of notice or lapse
of time, or both, would become an Event of Default.
1.51 Pocono: Village Farms of Pocono, L.P., a Delaware limited partnership.
1.52 Pocono Loan: the loans made to Village Farms of Pocono, L.P., a
Delaware limited partnership, by VFIFA with proceeds of the loans made by CoBank
to VFIFA pursuant to the Construction Loan Agreement.
1.53 Presidio: Village Farms of Presidio, L.P., a Delaware limited
partnership.
1.54 Presidio Loan: the loans made to Presidio by VFIFA with proceeds of
the loans made by CoBank to VFIFA pursuant to the VFIFA Loan Agreements.
6
1.55 Projections: the projections provided to CoBank with respect to
projected operations and financial results of operations of Borrower after
consummation of the Borrower Merger, identified on, or attached hereto as,
Exhibit 1.55.
1.56 Quarter: the quarters of Borrower's Fiscal Year.
1.57 Security Documents: the security agreements, mortgages, deeds of
trust, financing statements, pledge agreements, amendments to ground leases,
lessor's consents, and/or other security documents required pursuant to this
Agreement and/or executed by Borrower, General Partner or any Guarantor in favor
of, or assigned by VFIFA to, CoBank to secure the performance of Borrower's
obligations under the Notes and other Loan Documents with a Lien on the
Collateral, in form and substance acceptable to CoBank, together with all
renewals, extensions, amendments, modifications, and supplements thereto.
1.58 Significant Software: any device or system owned or licensed by a
Person (including without limitation all computer hardware or software,
firmware, equipment containing embedded microchips or integrated circuits, or
other set or collection of processing instructions) regularly used by such
Person in its business operations or financial accounting which, individually,
or together with one or more such items, would, if it failed to be Year 2000
Compliant, have a material adverse effect on the business condition (financial
or otherwise), operations, performance, or properties of such Person.
1.59 Significant Software Provider: a third party vendor which provides
Significant Software.
1.60 Term Loans: the Tranche A Loan and the Tranche B Loan.
1.61 Term Loan Agreement: that certain Credit Agreement (Term Loan Funding)
dated as of June 24, 1997 by and between CoBank, for its own benefit as a lender
and, as Agent Bank for the benefit of the present and future Syndication
Parties, and VFIFA, as amended.
1.62 Texas Loan: the loans made to Village Farms of Texas, L.P., a Delaware
limited partnership, by VFIFA with proceeds of the loans made by CoBank to VFIFA
pursuant to the VFIFA Loan Agreements and the loans originally made to Village
Farms of Texas, L.P. by the Farm Credit Bank of Texas and the Texas Production
Credit Association which were subsequently purchased by VFIFA from the Farm
Credit Bank of Texas and the Texas Production Credit Association.
1.63 Tranche A Commitment: $13,400,000
1.64 Tranche B Commitment: $58,885,739.67 plus the amount of any and all
draws on the Issued Letter of Credit.
1.65 Tranche A Maturity Date: July 31, 2000 or such later date to which the
maturity of the Tranche A Loan is extended by CoBank pursuant to Section 6.3.1
of this Agreement.
1.66 Tranche B Maturity Date: July 31, 2001 or such later date to which the
maturity of the Tranche B Loan is extended by CoBank pursuant to Section 6.3.2
of this Agreement.
1.67 Tranche A Note: the promissory note of even date herewith made by
Borrower payable to CoBank in the principal amount of the Tranche A Commitment,
as amended, modified or supplemented from time to time.
1.68 Tranche B Note: the promissory note of even date herewith made by
Borrower payable to CoBank in the principal amount of the Tranche B Commitment,
as amended, modified or supplemented from time to time.
1.69 Turnaround Manager: a qualified turnaround manager, reasonably
acceptable to CoBank, to perform the functions of the chief executive officer of
Borrower and APD.
1.70 VFIFA Loan Agreements: the Line of Credit Agreement, the Construction
Loan Agreement and the Term Loan Agreement.
1.71 Village Farms Entities: collectively, Village Farms of Colorado, Inc.,
a Delaware corporation; Village Farms, Inc., a Delaware corporation; Village
Farms Mediterranean, Inc., a Delaware corporation; Village Farms of Virginia,
Inc., a Delaware corporation; Village Farms of Texas, L.P., a Delaware limited
partnership; Village Farms of Marfa, L.P., a Delaware limited partnership;
Village Farms of Presidio, L.P., a Delaware limited partnership; Village Farms
of Buffalo, L.P., a Delaware limited partnership; and Keystone Village Farms,
L.L.C., a Delaware limited liability company.
1.72 Virginia Loan: the loans made to Village Farms of Virginia, Inc. , a
Delaware corporation, by VFIFA with proceeds of the loans made by CoBank to
VFIFA pursuant to the VFIFA Loan Agreements.
1.73 Year 2000 Compliant: shall mean, with respect to Significant Software,
(a) that it shall include calendar year 2000 date conversion and compatibility
capabilities, including date data century recognition, same century and multiple
century formula and date value calculations and user interface date data values
that reflect the century so that it will (i) manage and manipulate data
involving dates, including single century and multiple century dates and
formulas, and will not cause an abnormally ending scenario within the
application or cause an abort or result in the generation of incorrect values or
invalid output involving such dates, (ii) include the indication of the correct
century in all date related user interface functions, and (iii) operate in the
same manner with year dates of 2000 and beyond as it operates with year dates of
1900 to 1999; and (b) that it shall recognize the year 2000 as a leap year,
including recognition
8
and processing of the correct date on February 29, 2000. Significant Software
that is Year 2000 Compliant shall be considered to be in "Year 2000 Compliance".
The following terms are defined in portions of this Agreement other than
Article 1:
Additional Costs Section 15.10
Advance Date Section 5.1
Agrorent Buy-Out Section 9.1.15
APD Collateral Section 7.2
APD Merger Section 9.1.10
Borrower Benefit Plan Section 10.19
Borrower Collateral Section 7.1
Borrower Merger Section 9.1.10
CoBank Equity Interests Section 8.1
Code Section 10.19
Dalsem Section 12.3
EcoScience Collateral Section 7.2
ERISA Section 10.19
Event of Default Section 13.1
Facility Fee Section 5.3
Financial Statements Section 10.13
Fiscal Year Section 10.26
General Partner Collateral Section 7.3
General Partner Merger Section 9.1.10
Indemnified Parties Section 14.1
Intellectual Property Section 10.25
Material Agreements Section 10.12
Merged Entities Balance Sheets Section 10.13
Regulatory Change Section 15.10
Required Licenses Section 10.18
Title Commitments Section 9.1.2
Title Insurers Section 9.1.2
Title Policy Section 9.1.2
Tranche A Loan Section 2.1.1
Tranche B Loan Section 2.1.2
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ARTICLE 2.
LOAN AMOUNTS
2.1 The Term Loans.
2.1.1 Tranche A Loan. CoBank agrees, on the terms and conditions
hereinafter set forth, to make a loan to Borrower in the amount of the Tranche A
Commitment ("TRANCHE A LOAN"). Amounts borrowed under this Section 2.1.1 and
repaid or prepaid may not be reborrowed.
2.1.2 Tranche B Loan. CoBank agrees, on the terms and conditions
hereinafter set forth, to make a loan to Borrower in the amount of the Tranche B
Commitment ("TRANCHE B LOAN"). Amounts borrowed under this Section 2.1.2 and
repaid or prepaid may not be reborrowed.
ARTICLE 3.
USE OF PROCEEDS
3.1 Proceeds. The proceeds of the Term Loans shall be used as follows: (a)
$63,239,340.67 shall represent the aggregate of the outstanding balance of the
Buffalo Loan, Marfa Loan, Presidio Loan and Texas Loan purchased by CoBank from
VFIFA which loans are amended and restated herein, and (b) $9,046,399 shall be
used by Borrower solely to pay off the APD Loans, the Virginia Loan, and the
Pennsylvania Loan.
ARTICLE 4.
AVAILABILITY AND DISBURSEMENT
4.1 Availability - Tranche A Loan. The Tranche A Loan will be made
available to Borrower in a single advance on the Effective Date for the purposes
set forth in Section 3.1 hereof.
4.2 Availability - Tranche B Loan. The Tranche B Loan will be made
available to Borrower in a single advance on the Effective Date for the purposes
set forth in Section 3.2 hereof.
ARTICLE 5.
INTEREST AND FEES
5.1 Interest. Except as provided in Sections 5.2 and 5.3, the outstanding
principal balance under the Term Loans shall bear interest at the Interest Rate.
Interest shall be calculated on the actual number of days the proceeds of the
Term Loans are outstanding on the basis of a year consisting of 360 days. In
calculating interest, the Business Day on which an advance of the proceeds of
the Term Loans is made ("ADVANCE DATE") shall be included and the Business Day
on which any amounts are repaid shall be excluded.
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5.2 Default Interest Rate. All past due payments of any Bank Debt (whether
as a result of nonpayment by Borrower when due, at maturity, or upon
acceleration) shall, at the option of CoBank, bear interest at the Default
Interest Rate from and after the due date for the payment, or on the date of
maturity or acceleration, as the case may be.
5.3 Facility Fee. Borrower shall pay to CoBank, a facility fee equal to
$1,807,143.49 ("FACILITY FEE"), payable as follows: (a) an amount equal to
$361,428.70 shall be paid on the next Business Day after the first to occur of
the original Tranche B Maturity Date or payment in full of all Bank Debt and the
termination of this Agreement, and (b) an amount equal to $1,445,714.79 shall be
paid on the next Business Day after the Tranche B Maturity Date; provided,
however, that if the Tranche A Loan has been previously paid in full and
Borrower has repaid at least 50% of the original principal amount of the Tranche
B Loan and, as a result, the original Tranche B Maturity Date has been extended
to January 31, 2003 pursuant to Section 6.3.2 hereof, then the remaining portion
of the Facility Fee payable on the next Business Day after the Tranche B
Maturity Date (as extended pursuant to Section 6.3.2) shall be reduced to
$722,857.40; and, provided further, that if the original Tranche B Maturity Date
is extended pursuant to Section 6.3.2 and the outstanding principal amount of
the Tranche B Loan is paid in full on or before such extended Tranche B Maturity
Date, payment of the portion of the Facility Fee described in this clause (b)
shall be waived.
ARTICLE 6.
PAYMENTS
6.1 Principal Payments.
6.1.1 Tranche A Loan. Borrower shall make a principal payment to
CoBank on March 31, 2000 in the amount of $5,000,000 and shall pay in full to
CoBank the remaining outstanding principal amount of the Tranche A Loan on or
before the Tranche A Maturity Date.
6.1.2 Tranche B Loan. Borrower shall (i) make principal payments to
CoBank, on the last day of the first, second and fourth calendar quarters
occurring during the term of this Agreement, commencing on March 31, 2000, in
the amounts specified below for the calendar quarters indicated below, and (ii)
pay the entire outstanding principal balance owing under the Tranche B Loan
(including without limitation the amount of all draws under the Issued Letter of
Credit) on or before the Tranche B Maturity Date:
Calendar Quarter Ending Principal Payment Amount
----------------------- ------------------------
Each March 31 $1,500,000
Each June 30 $1,000,000
Each December 31 $2,500,000
6.2 Interest Payments. Interest on the Tranche A Loan shall be payable in
arrears on the first Business Day of each month, commencing March 31, 2000, and
on the Tranche A Maturity Date. Interest on the Tranche B Loan shall be payable
in arrears
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on the first Business Day of each month, commencing March 31, 2000, and on the
Tranche B Maturity Date.
6.3 Extension of Maturity Dates.
6.3.1 Tranche A Loan. Borrower may, at least 60 days but no more than
90 days prior to the original Tranche A Maturity Date, request that CoBank
extend the Tranche A Maturity Date from July 31, 2000 to July 31, 2001. CoBank
shall notify Borrower of its decision with respect to such extension request no
later than 30 days prior to the original Tranche A Maturity Date. CoBank shall
be obligated to grant such extension request if no Potential Default or Event of
Default has occurred prior to the original Tranche A Maturity Date, but
otherwise may grant or reject such request in its sole discretion.
6.3.2 Tranche B Loan. The Tranche B Maturity Date shall be extended by
CoBank from July 31, 2001 to January 31, 2003 if (a) on or before the original
Tranche B Maturity Date the original principal amount of the Tranche B Loan has
been paid down with the proceeds of equity, or indebtedness subordinated to the
Bank Debt on terms and conditions satisfactory to CoBank in its sole discretion,
or with cash flow generated from Borrower's operation of the Greenhouses in
excess of Borrower's expenses, such that no more than fifty percent (50%) of the
original principal amount of the Tranche B Loan is then outstanding, and (b) no
Potential Default or Event of Default has occurred prior to the original Tranche
B Maturity Date.
6.4 Voluntary Prepayments. Borrower shall have the right to prepay, without
premium or penalty, all, or a portion, in increments of not less than $1,000,000
(or the unpaid balance if less), of the outstanding principal balance under the
Term Loans upon one (1) Business Day's prior written notice to CoBank. Voluntary
prepayments shall not forgive, excuse, or postpone, subsequently scheduled
principal payments.
6.5 Application of Prepayments. Provided no Event of Default or Potential
Default has occurred, all prepayments of principal will be applied first to the
Tranche A Loan, if any portion thereof is outstanding, and then to outstanding
amounts under the Tranche B Loan. Upon the occurrence of an Event of Default or
Potential Default, any prepayments made by Borrower shall be applied, as CoBank,
in its sole discretion, shall determine, to fees, interest or principal owing
under the Tranche A Loan or the Tranche B Loan, or to any other Bank Debt.
6.6 Manner of Payment. All payments, including prepayments, that Borrower
is required or permitted to make under the terms of this Agreement shall be made
to CoBank (a) in immediately available federal funds, to be received no later
than 12:00 noon Mountain Time of the Business Day on which such payment is due
by wire transfer through Federal Reserve Bank, Kansas City, Routing Number:
000000000, COBANK ENGWD (or to such other account as CoBank may designate by
notice); and (b) without setoff or counterclaim and free and clear of, and
without deduction for, any taxes, levies, impost, duties, charges, fees,
deductions, withholding, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any
12
jurisdiction or any political subdivision thereof or taxing or other authority
therein unless Borrower is compelled by law to make such deduction or
withholding. Whenever any payment (including principal of or interest on the
Term Loans or any fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a date that is not a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
interest or fees, if applicable.
ARTICLE 7.
SECURITY
7.1 Borrower's Assets. As security for the payment and performance of all
obligations of Borrower to CoBank, including but not limited to principal and
interest under the Notes, the Facility Fee, Additional Costs, and all other Bank
Debt or obligations under any of the Loan Documents, Borrower shall grant to,
and maintain for, CoBank, subject to Permitted Liens, a first Lien on all of its
assets, both real and personal, tangible and intangible, whether now owned or
hereafter acquired, including, without limitation, the Greenhouses, the
Greenhouse Properties, and all equipment, machinery, fixtures, accounts and
inventory of Borrower (the "BORROWER COLLATERAL"). Borrower shall execute and
deliver to CoBank the Security Documents to evidence and perfect the first
priority security interest of CoBank in the Collateral. Borrower shall also
execute such further security agreements, mortgages, deeds of trust, financing
statements, assignments or other documents as CoBank may reasonably request, in
form and substance as CoBank shall specify, to establish, confirm, perfect,
maintain the first priority of, or provide notice of, CoBank's Lien on the
Borrower Collateral. Borrower shall deliver to CoBank possession of any
instruments and certificated securities included in the Borrower Collateral
(duly endorsed to CoBank's reasonable satisfaction).
7.2 Guarantees. The payment and performance of Borrower's obligations under
this Agreement and all other Loan Documents shall be guaranteed by (a) APD
pursuant to the APD Guaranty, and APD's obligations under the APD Guaranty shall
be secured by, subject to Permitted Liens, a first Lien in favor of CoBank on
all assets of APD, both real and personal, tangible and intangible, whether now
owned or hereafter acquired ("APD COLLATERAL"), and (b) EcoScience pursuant to
the EcoScience Guaranty, and EcoScience's obligations under the EcoScience
Guaranty shall be secured by a first Lien in favor of CoBank on all issued and
outstanding capital stock of APD ("ECOSCIENCE COLLATERAL").
7.3 Pledge by General Partner. General Partner shall pledge and grant to
CoBank a first Lien, as evidenced by the General Partner Security Agreement, in
all of its assets and properties (other than its general partnership interest in
Village Farms of Pocono, L.P.) as security for the payment and performance of
Borrower's obligations under this Agreement and all other Loan Documents
("GENERAL PARTNER COLLATERAL").
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ARTICLE 8.
COBANK EQUITY
8.1 CoBank Equity Interests. Borrower agrees to maintain such equity
interests in CoBank ("COBANK EQUITY INTERESTS") as CoBank may from time to time
require in accordance with its bylaws and capital plan as applicable to its
borrowers generally. In connection with the foregoing, Borrower hereby
acknowledges receipt, prior to the execution of this Agreement, of CoBank's
bylaws, a written description of the terms and conditions under which the CoBank
Equity Interests are issued, CoBank's Loan-Based Capital Plan, CoBank's most
recent annual report, and if more recent than CoBank's latest annual report, its
latest quarterly report.
ARTICLE 9.
CONDITIONS TO TERM LOANS
9.1 Conditions to Term Loans. CoBank's obligation to enter into the Loan
Documents and to make the Term Loans is subject to satisfaction, in CoBank's
sole discretion, of each of the following conditions precedent:
9.1.1 Loan Documents; Other Documents. CoBank shall have received: (a)
duly executed originals of the Loan Documents; and (b) such other instruments
and documents in which CoBank has been granted a security interest and of which
CoBank is to have possession under the terms of the Loan Documents.
9.1.2 Searches; UCC Filings; Title Insurance. CoBank shall have
received:
(a) searches of appropriate filing offices in the states where the
Greenhouses are located, the states where the Village Farms Entities had their
respective chief executive offices and/or where any assets were located prior to
the consummation of the Borrower Merger, the states where APD has material
assets or properties, the states where the APD Entities had their respective
chief executive offices prior to the consummation of the APD Merger, the states
where the General Partner Entities had their respective chief executive offices
prior to consummation of the General Partner Merger, and the respective states
of residence for EcoScience and General Partner, showing that (i) no state or
federal tax liens have been filed which remain in effect against Borrower, the
Village Farms Entities, the APD Entities, the General Partner Entities, General
Partner or any Guarantor, (ii) no financing statements have been filed by any
Person other than CoBank and the holders of Liens permitted under the Loan
Documents which remain in effect against Borrower, the Village Farms Entities,
the APD Entities, the General Partner Entities, General Partner or any Guarantor
or any of the Collateral, (iii) all Security Documents necessary to perfect the
Liens granted to CoBank in the Collateral have been filed or recorded, to the
extent such Liens are capable of being perfected by a filing; and
(b) title insurance commitments ("TITLE COMMITMENTS") in form and amount
acceptable to CoBank from one or more insurers acceptable to CoBank ("TITLE
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INSURERS") committing to issue an American Land Title Association lender's title
insurance policy ("TITLE POLICY") insuring CoBank's Lien on Borrower's fee or
leasehold interest in each Greenhouse Property, as applicable, as a valid first
priority Lien, and (i) containing only such exceptions to title as are
acceptable to CoBank, and (ii) containing such other endorsements as CoBank may
require; and
(c) closing letters, satisfactory to CoBank, from the Title Insurers
confirming that the Title Insurers are irrevocably committed to issue the Title
Policies in form and substance satisfactory to CoBank and that all conditions
precedent to the issuance of the Title Policies have been satisfied.
9.1.3 Organizational Documents. CoBank shall have received: (a) good
standing certificates, dated no more than thirty (30) days prior to the
Effective Date, for each of Borrower, General Partner and Guarantors for their
respective states of organization and for each state where their respective
operations require qualification or authorization to transact business including
without limitation, with respect to Borrower, each state where a Greenhouse
Property is located; (b) a copy of the Certificate of Limited Partnership of
Borrower, a copy of the Certificate of Formation or Articles of Organization of
General Partner, and a copy of the Certificate or Articles of Incorporation of
each of APD and EcoScience, certified by the Secretary of State of their
respective states of organization, no more than thirty (30) days prior to the
Effective Date; and (c) a copy of the limited partnership agreement of Borrower,
the operating agreement of General Partner and the bylaws of APD and EcoScience,
including all amendments thereto, certified by General Partner, in the case of
Borrower, by a manager of General Partner, in the case of General Partner, and
by the corporate secretary, in the case of APD and EcoScience.
9.1.4 Evidence of Partnership Action; Incumbency Certificate. CoBank
shall have received in form and substance satisfactory to CoBank, (a) documents
(including a resolution signed by the proper authority under Borrower's limited
partnership agreement) evidencing all action taken by Borrower to authorize the
execution, delivery and performance of the Loan Documents, and naming those
persons with authority to execute the Loan Documents on behalf of Borrower, and
(b) an incumbency certificate issued by General Partner certifying the names and
true signatures of the officers/agents authorized to execute the Loan Documents
to which Borrower is a party on behalf of Borrower.
9.1.5 Evidence of General Partner Action; Incumbency Certificate.
CoBank shall have received in form and substance satisfactory to CoBank, (a) a
copy, certified as true, correct and complete by a manager of General Partner,
of the resolutions adopted by the proper authority under General Partner's
operating agreement which authorize the execution, delivery and performance of
the Security Documents to which General Partner is a party, and naming those
persons with authority to execute the Security Documents to which it is a party
on behalf of General Partner, and (b) an incumbency certificate executed by the
manager of General Partner certifying the names
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and true signatures of the officers/agents authorized to execute the Security
Documents to which General Partner is a party on behalf of General Partner.
9.1.6 Evidence of Action by APD and EcoScience; Incumbency
Certificates. CoBank shall have received in form and substance satisfactory to
CoBank, (a) a copy, certified as true, correct and complete by the corporate
secretary, of the resolutions adopted by the Board of Directors of each of APD
and EcoScience which authorize the execution, delivery and performance of the
Loan Documents to which such Guarantor is a party, and naming those persons with
authority to execute such Loan Documents on behalf such Guarantor, and, with
respect to APD, approving the appointment of the individual hired as the
Turnaround Manager to perform the duties and responsibilities of the chief
executive officer of APD, and (b) a certificate of the corporate secretary of
each of such Guarantors, certifying the names and true signatures of the
officers/agents authorized to execute the Loan Documents to which such Guarantor
is a party on behalf of such Guarantor.
9.1.7 Legal Opinion. CoBank shall have received a favorable opinion of
counsel (who shall be reasonably acceptable to CoBank) for Borrower, General
Partner and Guarantors, in substantially the form of Exhibit 9.1.7 hereto and as
to such other matters as CoBank may reasonably request.
9.1.8 Evidence of Insurance. Borrower and APD shall have provided
CoBank with insurance certificates and such other evidence, in form and
substance satisfactory to CoBank, of all insurance required to be maintained by
them under the Loan Documents.
9.1.9 Evidence of Mergers and Borrower Applications for Qualification.
CoBank shall have received evidence, in form and substance satisfactory to
CoBank (including copies of the relevant transaction documents), that (a) the
Village Farms Entities have been duly and properly merged into Borrower (the
"BORROWER MERGER") in accordance with the laws of all applicable jurisdictions,
including, without limitation, a certified copy of all filings made with any
governmental authority in order to effect the Borrower Merger; (b) all necessary
filings have been made in the appropriate real property records of the
jurisdictions where the Greenhouse Properties are located in order to reflect
the fact that Borrower is the surviving entity of the Borrower Merger and that
the interests previously held by the Village Farms Entities in the Greenhouse
Properties, and all interests in personal property used in connection with the
Greenhouse Properties, are now vested in Borrower; (c) Borrower has filed
applications with the appropriate governmental authorities to qualify to do
business as a foreign limited partnership in each state where a Greenhouse is
located; (d) the APD Entities have been duly and properly merged into APD (the
"APD MERGER") in accordance with the laws of all applicable jurisdictions,
including, without limitation, a certified copy of all filings made with any
governmental authority in order to effect the APD Merger; and (e) the General
Partner Entities have been duly and properly merged into General Partner (the
"GENERAL PARTNER MERGER") in accordance with the laws of all
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applicable jurisdictions, including, without limitation, a certified copy of all
filings made with any governmental authority in order to effect the General
Partner Merger.
9.1.10 Evidence of Cogentrix Debt Subordination. CoBank shall have
received evidence, in form and substance satisfactory to CoBank (including
copies of the relevant transaction documents), that all indebtedness of APD and
EcoScience owed to Cogentrix (including, without limitation, indebtedness owing
by EcoScience to Cogentrix pursuant to the promissory note dated December 30,
1998 in the principal amount of $20,600,000.00 and the promissory note dated
March 15, 1999 in the principal amount of $1,000,000.00, and indebtedness owing
by APD to Cogentrix pursuant to the promissory note dated March 10, 1997 in the
principal amount of $893,750) has been subordinated to all indebtedness owed to
CoBank under the Loan Documents on terms and conditions satisfactory to CoBank
in its sole discretion.
9.1.11 Management and Marketing Agreements. CoBank shall have (a)
received evidence, in form and substance satisfactory to CoBank, of the
termination of all management and all marketing agreements binding on Borrower,
the Village Farms Entities, the APD Entities, the General Partner Entities,
General Partner or APD, or (b) received a true, correct and complete copy of all
management and all marketing agreements binding on Borrower, the Village Farms
Entities, the APD Entities, the General Partner Entities, General Partner or
APD, certified by an appropriate officer of such entity, and shall have approved
the terms of any such agreements in writing.
9.1.12 Approval of Action Plan for Pocono and Wheatfield. CoBank shall
have received (a) General Partner's action plan to resolve the claims of
creditors of Pocono and to dissolve Pocono upon resolution of such claims, and
(b) APD's action plan to resolve the claims of creditors of Village Farms of
Wheatfield, L.L.C. ("Wheatfield") and to dissolve Wheatfield upon resolution of
such claims, and CoBank shall have approved, in its sole discretion, such action
plans in writing.
9.1.13 Purchase and Sale of VFIFA Loans. CoBank and VFIFA, after the
Borrower Merger, shall have consummated the purchase by CoBank from VFIFA, with
full recourse, of all of VFIFA's right, title and interest in and to the Buffalo
Loan, the Marfa Loan, the Presidio Loan and the Texas Loan pursuant to the Note
Purchase Agreement and upon terms and conditions satisfactory to CoBank in its
sole discretion.
9.1.14 Recording of Documents. All of the Security Documents required
to be recorded or filed to perfect the Liens granted therein shall be so
recorded and filed, including without limitation the filing or recording of all
Security Documents or other documents necessary to transfer VFIFA's right, title
and interest in the collateral security for the Buffalo Loan, the Marfa Loan,
the Presidio Loan and the Texas Loan to CoBank.
9.1.15 Agrorent Buy-Out. CoBank shall have (a) received evidence, in
form and substance satisfactory to CoBank, that Agrorent A, L.L.C. has
transferred all of its general partnership interests in Presidio to General
Partner and that Agrorent B, L.L.C. transferred all of its limited partnership
interests in Presidio to Village Farms,
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L.L.C. prior to the APD Merger (the "AGRORENT BUY-OUT"), and (b) approved the
terms and conditions (including, without limitation, the purchase price and the
payment terms thereof) of the Agrorent Buy-Out, and (c) received copies of all
transaction documents concerning the Agrorent Buy-Out certified as true, correct
and complete by the Chief Executive Officer or Chief Financial Officer of APD.
9.1.16 Payoffs. CoBank shall have received (a) evidence that APD has
paid the outstanding balance under the APD Finance Loan and the Pocono Loan to
VFIFA, and (b) payment in full of the outstanding balance under the VFIFA Loan
Agreements.
9.1.17 Expenses. CoBank shall have received payment, by wire transfer
of immediately available federal funds for all out-of-pocket costs and expenses
incurred by CoBank and any Participant in the Term Loans as of the Effective
Date (including, without limitation, the reasonable fees and expenses of counsel
retained by CoBank and any such Participant) in connection with the preparation,
negotiation, review, and execution of the Loan Documents and the transactions
contemplated thereby.
9.1.18 Litigation. There shall be no litigation by any person or
entity (private or governmental) pending or threatened: (a) with respect to the
Term Loans or any of the Loan Documents or the transactions contemplated
thereby, (b) with respect to the Borrower Merger, the General Partner Merger or
the APD Merger or (c) which could result in a Material Adverse Change with
respect to Borrower, General Partner or any Guarantor.
9.1.19 Appointment of Agent for Service. CoBank shall have received
evidence satisfactory to CoBank that Borrower, General Partner and Guarantors
have appointed The Corporation Company to serve as their agent for service of
process at The Corporation Company's Denver, Colorado office, and that The
Corporation Company has accepted such appointment by Borrower, General Partner
and Guarantors.
9.1.20 No Material Change. No Material Adverse Change shall have
occurred and be continuing with respect to Borrower, General Partner or any
Guarantor.
9.1.21 Financial Information. CoBank shall have received (a) the
financial statements and Projections described in Sections 10.13 and 10.16 of
this Agreement, and (b) an internally prepared balance sheet as at October 31,
1999 for each of the Village Farms Entities, APD Entities and General Partner
Entities prepared in accordance with GAAP duly certified by the chief financial
officer of each such entity certifying that such balance sheet is complete and
presents fairly the financial position of such entity as at such date in
conformity with GAAP.
9.1.22 Further Assurances. Borrower, General Partner and Guarantors
shall have provided and/or executed and delivered to CoBank such further
assignments, documents or financing statements, in form and substance
satisfactory to CoBank, that
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Borrower, General Partner and Guarantors are required to execute and/or deliver
pursuant to the terms of the Loan Documents or as CoBank may reasonably request.
ARTICLE 10.
REPRESENTATIONS AND WARRANTIES
To induce CoBank to make the Term Loans, and recognizing that CoBank is
relying thereon, Borrower represents and warrants as follows:
10.1 Organization, Good Standing, Etc. Borrower is duly organized, validly
existing and in good standing as a limited partnership under the laws of the
State of Delaware. Borrower has filed applications for authority to transact
business as a foreign limited partnership in each jurisdiction where the
Greenhouse Properties are located and in each other jurisdiction in which the
failure to be so qualified would have a Material Adverse Effect on Borrower.
10.2 Authority; Due Authorization. Borrower has full power and authority
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as contemplated to be conducted. The execution and
delivery of, and performance by Borrower of its obligations under, each Loan
Document to which it is a party, and the consummation of the transactions
contemplated by the Loan Documents, are within Borrower's partnership powers and
have been duly authorized by all necessary partnership action.
10.3 Mergers. Each of the Borrower Merger, the APD Merger and the General
Partner Merger has been duly and fully consummated in accordance with the laws
of the State of Delaware. Borrower is the surviving entity of the Borrower
Merger. APD is the surviving entity of the APD Merger, and General Partner is
the surviving entity of the General Partner Merger.
10.4 Consents. All consents or approvals of any Person which were necessary
for, or required in connection with, the Borrower Merger (including without
limitation any necessary consents of any lessor of any Greenhouse Property), the
APD Merger and/or the General Partner Merger have been obtained in writing, and
a true and correct copy thereof has been delivered to CoBank. All consents or
approvals of any Person which are necessary for, or are required as a condition
of, the execution, delivery and performance of the Loan Documents and the
transactions contemplated thereby have been obtained in writing, and a true and
correct copy thereof have been delivered to CoBank.
10.5 Ownership of Borrower. General Partner is the sole general partner of
Borrower and owns a 1% partnership interest in Borrower. Borrower's sole limited
partner is APD, and APD owns a 99% partnership interest in Borrower. General
Partner and APD own their respective partnership interests in Borrower, in each
case, free and clear of any Lien other than Liens created under the Loan
Documents.
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10.6 Title to Borrower Collateral. Borrower has all real and personal
property necessary for the conduct of its business and has good and marketable
title to all of the Borrower Collateral, free and clear of all Liens, except for
Permitted Liens. The Borrower Collateral is in good operating condition and
repair, reasonable wear and tear excepted, and suitable in all material respects
for the purposes for which it is being utilized except where the failure to be
in good operating condition could not reasonably be expected to result in a
Material Adverse Effect on Borrower.
10.7 Litigation. There are no pending legal or governmental actions,
proceedings or investigations to which Borrower is a party or to which any
property of Borrower is subject which could reasonably be expected to have a
Material Adverse Effect on Borrower, and, to the best of Borrower's knowledge,
no such actions or proceedings are threatened or contemplated by governmental
authorities or any other Person. There are no outstanding judgments,
injunctions, orders, writs or decrees of any arbitrator, court or governmental
authority binding on Borrower or its assets or properties.
10.8 No Violations. The Borrower Merger did not, and the execution,
delivery and performance of the Loan Documents, will not: (a) violate any
provision of Borrower's certificate of limited partnership or partnership
agreement; (b) violate, conflict with, result in a breach of, constitute a
default under, or with the giving of notice or the expiration of time or both,
constitute a default under, any existing material indenture, lease, security
agreement, mortgage, permit or other governmental authorization, contract, note,
instrument or any other agreements or documents binding on Borrower or affecting
its property; (c) violate or conflict with any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to
Borrower, or (d) except for the Liens created under the Loan Documents, result
in or require the creation or imposition of any Lien upon or with respect to any
of the properties of Borrower.
10.9 Binding Agreement. Each of the Loan Documents to which Borrower is a
party is, or when executed and delivered, will be, the legal, valid and binding
obligation of Borrower, enforceable in accordance with its terms, subject only
to limitations on enforceability imposed by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally and by general principles of equity.
10.10 Compliance with Laws. Borrower is in compliance in all material
respects with all federal, state, and local laws, rules, regulations,
ordinances, codes and orders, including without limitation all Permits necessary
for the conduct of Borrower's business.
10.11 Chief Executive Office. Borrower's place of business, or chief
executive office if it has more than one place of business, is located at 00
Xxxxx Xxxxx, Xxxx Xxxxxxxxx, XX 00000.
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10.12 Material Agreements. All agreements, excluding the Loan Documents, of
Borrower, the termination or breach of which could result in a Material Adverse
Effect on Borrower ("MATERIAL AGREEMENTS") are listed on Schedule 10.12 hereto
and neither Borrower nor, to Borrower's knowledge, any other party to any
Material Agreement, is in default thereunder, and no facts exist which with the
giving of notice or the passage of time, or both, would constitute such a
default. A true, correct and complete copy of each Material Agreement and all
amendments thereto which was requested by CoBank has been provided to CoBank by
Borrower. All of Borrower's leases which constitute Material Agreements are in
full force and effect and afford Borrower peaceful and undisturbed possession of
the subject matter thereof.
10.13 Financial Statements. Borrower has heretofore furnished to CoBank (a)
the consolidated audited balance sheet of APD as at January 3, 1999, and the
related consolidated statement of income and operations of APD for the fiscal
year then ended, accompanied by an opinion of APD's independent public
accountants, and the internally prepared consolidated balance sheet of APD as at
October 31, 1999, and the related consolidated statement of income and
operations of APD for the month then ended, duly certified by the chief
financial officer of APD (collectively, the "FINANCIAL STATEMENTS"), and (b) the
internally prepared balance sheet of each of the Village Farms Entities, the APD
Entities and the General Partner Entities as at October 3, 1999, duly certified
by the chief financial officer of each such entity (collectively, the "MERGED
ENTITIES BALANCE SHEETS"). The Financial Statements, including the notes
thereto, are complete, and present fairly the financial position and results of
operations and changes in the financial position of APD and its consolidated
entities as at such dates and for the periods specified, in conformity with
GAAP; provided, however that the internally prepared financial statements
through October 31, 1999 are subject to normal year-end adjustments and do not
include footnotes. The Merged Entities Balance Sheets are complete, and present
fairly the financial position of each of the Village Farms Entities, the APD
Entities and the General Partner Entities as at such date and for the period
specified, in conformity with GAAP; provided, however that the Merged Entities
Balance Sheets are subject to normal year-end adjustments and do not include
footnotes
10.14 Absence of Undisclosed Liabilities. Except as described on Schedule
10.14, neither APD nor any of its consolidated entities nor any of the Village
Farms Entities, APD Entities or General Partner Entities has any material
liability (whether absolute, accrued, contingent or otherwise and whether due or
to become due), arising out of any set of facts existing on or prior to the date
hereof, except liabilities and obligations fully reflected or reserved against
in the Financial Statements or the Merged Entities Balance Sheets.
10.15 No Material Adverse Change. Except as described on Schedule 10.15,
since (a) October 31, 1999, there has been no Material Adverse Change in the
financial condition, results of operations, business or prospects of APD or any
of its consolidated entities; and (b) October 3, 1999, there has been no
Material Adverse Change in the financial condition, results of operations,
business or prospects of any of the Village Farms Entities, the APD Entities or
the General Partner Entities.
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10.16 Projections. The Projections of Borrower delivered to CoBank fairly
present in all material respects the projected operations, financial condition,
assets and liabilities of Borrower as of the dates covered thereby. To
Borrower's knowledge, no undisclosed facts existed at the time of submission of
the Projections which, if taken into account, would have resulted in any
material change in the Projections. The Projections were prepared in good faith
on the basis of the assumptions stated therein, which assumptions were fair in
light of the conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, Borrower's best estimate of its future
results of operations and other information projected therein (it being
recognized by CoBank that such Projections are an estimate and that actual
results during the period or periods covered by the Projections may differ from
the projected results). No change in the business, condition (financial or
otherwise), operations, performance or properties of Borrower has occurred since
the date of the Projections that would materially change any of the information
set forth in the Projections.
10.17 Payment of Taxes. Borrower has filed all required federal, state and
local tax returns and has paid all taxes as shown on such returns as they have
become due. Borrower has paid when due all other taxes, assessments or
impositions levied or assessed against Borrower or its business or properties.
10.18 Licenses and Approvals. Borrower: (a) has ownership of, or license to
use, all franchises, certificates, approvals, Permits, and licenses used,
necessary, or desirable to permit it to own its properties and to conduct its
business in substantially the manner as presently conducted or contemplated to
be conducted, with respect to which the failure to obtain and maintain would
have a Material Adverse Effect on Borrower ("REQUIRED LICENSES"); and (b) has
taken all action, including the filing of all reports and requests for
extensions or continuation, necessary to maintain all such Required Licenses,
and has not taken or failed to take any action which, with the giving of notice,
or the expiration of time, or both, could result in any such Required License
being withdrawn, revoked, modified, or limited. Schedule 10.18 lists all
Required Licenses presently in existence with respect to Borrower. Except as set
forth on Schedule 10.18, each Required License is in full force and effect, and
there is no outstanding notice of cancellation or termination or, to Borrower's
knowledge, any threatened cancellation or termination in connection therewith,
nor has an event occurred with respect to any Required License which, with the
giving of notice or passage of time or both, could result in the revocation or
termination thereof or otherwise in any impairment of Borrower's rights with
respect thereto, which impairment could reasonably be expected to result in a
Material Adverse Effect. None of the Required Licenses is subject to any
restrictions or conditions that limit Borrower's ability to conduct its business
in substantially the manner as presently conducted or contemplated to be
conducted (other than restrictions or conditions generally applicable to
licenses of that type). No consent, permission, authorization, order, or license
of any governmental authority is necessary in connection with the: (x)
execution, delivery, performance, or enforcement of the Loan Documents to which
Borrower is a party; and (y) the operation of the Greenhouses, except such as
have been obtained and are in full force and effect and as are described on
Schedule 10.18.
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10.19 Employee Benefit Plans. Borrower does not presently maintain or
participate in, and has not in the past maintained or participated in, and is
not obligated to contribute to, any of the following (each a "BORROWER BENEFIT
PLAN"): (a) any funded "employee welfare benefit plan," as that term is defined
in Section 3(1) of the Employee Retirement Income Security Act of 1974, as
amended, and the regulations thereunder ("ERISA"); (b) any "multiemployer
plans," as defined in Section 3(37) of ERISA; (c) any "employee pension benefit
plan" as defined in Section 3(2) of ERISA; (d) any "employee benefit plan", as
such term is defined in Section 3(3) of ERISA; (e) any "multiple employer plan"
within the meaning of Section 413 of the Internal Revenue Code of 1986, as
amended from time to time ("CODE"); (f) any "multiple employer welfare
arrangement" within the meaning of Section 3(40) of ERISA; (g) a "voluntary
employees' beneficiary association" within the meaning of Section 501(a)(9) of
the Code; (h) a "welfare benefit fund" within the meaning of Section 419 of the
Code; or (i) any employee welfare benefit plan within the meaning of Section
3(1) of ERISA for the benefit of retired or former employees.
10.20 Equity Investments. Borrower does not have any subsidiaries or own
any stock or other voting or equity interest, directly or indirectly, in any
Person, except for the CoBank Equity Interests and a membership interest in
VFIFA.
10.21 Owned Real Property and Greenhouses. Set forth on Schedule 10.21
hereto is a complete and accurate list of all real property owned by Borrower,
showing as of the date hereof the street address, county or other relevant
jurisdiction, state, and book and fair value thereof and indicating whether a
Greenhouse is located on such real property. Borrower has good, marketable and
insurable fee simple title to such real property and Greenhouses located
thereon, free and clear of all Liens, except for Permitted Liens.
10.22 Leased Real Property and Greenhouses. Set forth on Schedule 10.22
hereto is a complete and accurate list of all leases of real property under
which Borrower is the lessee, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, lessor, record owner (if different
from lessor), expiration date and annual rental cost thereof and indicating
whether a Greenhouse is located on such real property. Each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms, and affords Borrower peaceful and undisturbed
possession of the subject matter thereof. Borrower's leasehold interests in the
real property that is the subject of the leases listed on Schedule 10.22, and
the Greenhouses located thereon, are held by Borrower free and clear of all
Liens, except for Permitted Liens.
10.23 Liens. Set forth on Schedule 10.23 hereto is a complete and accurate
list of all Liens securing equipment lease obligations or purchase money
indebtedness on the property or assets of Borrower, showing as of the date
hereof the lienholder thereof, the principal amount of the obligations secured
thereby, the payment terms of such obligations, and the property or assets of
Borrower subject thereto.
23
10.24 Environmental Compliance. Without limiting the provisions of Section
10.10 above, all real property owned or leased by Borrower and all operations
conducted by Borrower are, and prior to consummation of the Borrower Merger
were, in compliance in all material respects with all Environmental Laws and
Environmental Regulations, with respect to which the failure to comply would
have a Material Adverse Effect. To the best of Borrower's knowledge, no
environmental contamination or condition currently exists on any property owned
or leased by Borrower which could delay the sale or other disposition of, or
could have (or already has had) an adverse effect on the value of, the property
of Borrower. To the best of Borrower's knowledge, no environmental contamination
or condition currently exists on any property adjoining any property owned or
leased by Borrower which could delay the sale or other disposition of, or could
have (or already has had) an adverse effect on the value of, the property of
Borrower.
10.25 Intellectual Property. Set forth on Schedule 10.25 hereto is a
complete and accurate list of all patents, trademarks, trade names, service
marks and copyrights, and all applications for any of the foregoing that are
owned by Borrower and are registered with any federal or state governmental
authority (collectively, "INTELLECTUAL PROPERTY") and all licenses thereof,
showing as of the date hereof the jurisdiction in which registered, the
registration number, the date of registration and the expiration date or, if
registration is not yet complete, the date of the application therefor and the
application number and title, if any, and listing any licenses thereof. Borrower
is not a licensee under any written license for any patent, trademark,
tradename, service xxxx or copyright other than shrinkwrap licenses for
"off-the-shelf" software used by Borrower in the conduct of its business.
Borrower owns or licenses all Intellectual Property that it utilizes in its
business as presently being conducted and as anticipated to be conducted, except
where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect on Borrower. The Intellectual Property registrations are
in full force and effect, and Borrower has taken or caused to be taken all
action, necessary to maintain the Intellectual Property registrations in full
force and effect and has not taken or failed to take or cause to be taken any
action which, with the giving of notice, or the expiration of time, or both,
could result in any such Intellectual Property registrations being revoked,
invalidated, modified, or limited.
10.26 Fiscal Year. Each fiscal year of Borrower ("FISCAL YEAR") begins on
the day after the Sunday closest to December 31 of each calendar year and ends
on the Sunday closest to December 31 of each calendar year.
10.27 Year 2000. Borrower has (i) initiated a review and assessment of all
areas within its business and operations (including those affected by suppliers,
vendors and customers) that could be adversely affected by the risk that the
Significant Software used by Borrower or Borrower's Mission Critical suppliers,
vendors and customers may not be Year 2000 Compliant, (ii) developed a plan and
timetable for remediation of Borrower's Significant Software that may not be
Year 2000 Compliant and for the development of contingency plans in the event of
a failure of the Significant Software of Borrower or its Mission Critical
suppliers, vendors and customers to be Year 2000
2000
24
Compliant, and (iii) to date, implemented that plan in accordance with such
timetable. Based on the foregoing, to the best of Borrower's knowledge, after
due inquiry, the impact of the yearon Borrower and the Mission Critical
customers and suppliers of Borrower will not be such as to have a Material
Adverse Effect on Borrower.
10.28 Disclosure. Neither the representations and warranties contained in
this Article 10 nor any information, exhibit or report furnished by Borrower to
CoBank in connection with the negotiation and preparation of this Agreement or
the other Loan Documents contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained herein
or therein not misleading.
ARTICLE 11.
AFFIRMATIVE COVENANTS
From and after the date of this Agreement and until the Bank Debt is
indefeasibly paid in full, Borrower agrees that it will observe and comply with
the following covenants for the benefit of CoBank:
11.1 Books and Records. Borrower shall at all times keep proper books of
record and account, in which correct and complete entries shall be made of all
its dealings, in accordance with GAAP.
11.2 Reports and Notices. Borrower shall provide to CoBank the following
reports, information and notices:
11.2.1 Annual Financial Statements. As soon as available, but no later
than ninety (90) days after the end of any Fiscal Year of Borrower occurring
during the term hereof, (a) the consolidated annual financial statements of
Borrower, prepared in accordance with GAAP consistently applied which shall: (i)
be audited by independent certified public accountants selected by Borrower
which are reasonably acceptable to CoBank; (ii) be accompanied by a report of
such accountants containing an opinion reasonably acceptable to CoBank; (iii) be
accompanied by a Compliance Certificate; (iv) be prepared in reasonable detail
and in comparative form; and (v) include a balance sheet, an income statement, a
statement of cash flows, a statement of stockholders' equity, and all notes and
schedules relating thereto, and (b) include a comparison of Borrower's actual
operating results for such completed Fiscal Year to the budgeted results of
operations for such Fiscal Year.
11.2.2 Monthly Financial Reports. As soon as available but no later
than thirty (30) days after the end of each month, a comparison of Borrower's
actual operating results for such month to the budgeted results of operations
for such month, prepared in accordance with GAAP consistently applied.
11.2.3 Quarterly Financial Statements. As soon as available but in no
event more than forty-five (45) days after the end of each of the first three
Quarters in the Fiscal Year, the following internally-prepared consolidated
financial statements of Borrower, prepared in accordance with GAAP consistently
applied: (a) a balance sheet,
25
(b) an income statement, (c) a statement of cash flows, (d) a comparison of
Borrower's actual operating results for such Quarter to the budgeted operating
results for such Quarter, and (e) such other quarterly statements as CoBank may
specifically request, which quarterly statements shall include any and all notes
and schedules thereto. Such quarterly financial statements required pursuant to
this Subsection 11.2.3 shall be accompanied by a Compliance Certificate.
11.2.4 Budget. Promptly upon becoming available and in any event no
later than thirty (30) days prior to the end of each Fiscal Year, a copy of
Borrower's budget setting forth the projected operating results of Borrower on a
month-by-month basis for the next Fiscal Year and broken-out by Greenhouse
operation, in a form satisfactory to CoBank, together with the assumptions and
projections on which such budget is based. Each budget submitted by Borrower to
CoBank shall: (a) reflect Borrower's reasonable estimate of the results of
Borrower's operations for the succeeding Fiscal Year and other information
projected therein, and (b) be based upon assumptions and projections that are
reasonable and fair in light of all conditions existing at the time of the
submission of such budget to CoBank. In addition, if any material changes are
made to such budget during the year, then Borrower will promptly furnish copies
to CoBank of any such changes.
11.2.5 Additional Information. With reasonable promptness, such
additional financial information or documentation as CoBank may reasonably
request.
11.2.6 Notice of Default. As soon as the existence of any Event of
Default or Potential Default becomes known to any management executives of
Borrower, written notice of such Event of Default or Potential Default, the
nature and status thereof, and the action being taken or proposed to be taken
with respect thereto.
11.2.7 Notice of Litigation. Notice in writing promptly after Borrower
obtains knowledge thereof, of all litigation in which Borrower, General Partner
or any Guarantor is a party, and which either: (a) involves an amount of
$100,000 or more, singularly or in the aggregate at any time; or (b) could
reasonably be expected to result in a Material Adverse Effect with respect to
Borrower, General Partner or any Guarantor.
11.2.8 Notice of Material Adverse Effect. Promptly after Borrower
obtains knowledge thereof, notice of any matter which has resulted or could
result in a Material Adverse Effect on Borrower, General Partner or any
Guarantor.
11.2.9 Notice of Environmental Litigation. Without limiting the
provisions of Subsection 11.2.7 of this Agreement, promptly after Borrower's
receipt thereof, notice of the receipt of all pleadings, orders, complaints,
indictments, or other communication alleging a condition that may require
Borrower to undertake or to contribute to a cleanup or other response under
Environmental Laws or Environmental Regulations, or which seeks penalties,
damages, injunctive relief, or criminal sanctions related to alleged violations
of such laws, or which claims personal injury or property
26
damage to any person as a result of environmental factors or conditions or
which, if adversely determined, could have a Material Adverse Effect on
Borrower.
11.2.10 Regulatory and Other Notices. Promptly after Borrower's
receipt thereof, copies of any notices or other communications received from any
governmental authority with respect to any matter or proceeding the effect of
which could reasonably be expected to have a Material Adverse Effect on
Borrower.
11.2.11 Adverse Action Regarding Required Licenses and Intellectual
Property. In the event Borrower learns that any petition, action, investigation,
notice of violation or apparent liability, notice of forfeiture, order to show
cause, complaint or proceeding is pending, or, to the best of Borrower's
knowledge, threatened, to seek to revoke, cancel, suspend, modify, or limit any
of the Required Licenses or the Intellectual Property registrations, Borrower
shall provide CoBank with prompt written notice thereof and shall take, or cause
to be taken, all reasonable measures to contest such action in good faith.
11.3 Maintenance of Existence. Borrower shall maintain its existence as a
limited partnership in good standing under the laws of the State of Delaware.
Within 30 days of the date of this Agreement, Borrower (a) shall be authorized
to do business and in good standing in each state where the Greenhouse
Properties are located and each other state where the transaction of its
business makes such qualification necessary and the failure to be so qualified
would have a Material Adverse Effect on Borrower, and (b) shall deliver to
CoBank good standing certificates evidencing such authorization and good
standing.
11.4 Compliance with Legal Requirements and Agreements. Borrower shall
comply with: (a) all laws, rules, regulations and orders applicable to Borrower
or its business; and (b) all agreements, indentures, mortgages, and other
instruments to which it is a party or by which it or any of its property is
bound, where the failure to so comply could have a Material Adverse Effect on
Borrower.
11.5 Compliance with Environmental Laws. Without limiting the provisions of
Section 11.4 of this Agreement, Borrower shall comply in all material respects
with, and take all reasonable steps necessary to cause all persons occupying or
present on any properties owned or leased by Borrower to comply with, all
Environmental Laws and Environmental Regulations, with respect to which the
failure to comply could have a Material Adverse Effect on Borrower.
11.6 Insurance. Borrower shall keep the Borrower Collateral insured at all
times by an insurance carrier or carriers approved by CoBank which have an A
rating by the current BEST Key Rating Guide (provided that Florists Mutual Group
will be deemed an approved insurance carrier so long as its BEST Key Rating does
not fall below its rating as of the date of this Agreement), against all risks
covered by a special form policy (and including flood coverage for the
Greenhouse located in Buffalo, New York only, and including windstorm coverage
for all Greenhouses but specifically excluding earthquake coverage) in the
amount of the full replacement cost (other than
27
with respect to motor vehicles) of the Borrower Collateral as well as liability,
worker's compensation, business interruption, boiler and machinery and such
other insurance as CoBank may reasonably require, in amounts and with
deductibles or maximum payouts customarily carried by entities in similar lines
of business. Borrower shall also maintain fidelity coverage (including employee
dishonesty) on such officers and employees and in such amounts as CoBank shall
specify, or in the absence of any such specification, as customarily carried by
entities engaged in comparable businesses and comparably situated. Such
insurance policies shall contain such reasonable endorsements as CoBank shall
from time to time require and all liability policies shall name CoBank as an
additional insured as its interests may appear. All such insurance policies
shall be endorsed with a mortgagee's or loss payable clause, as appropriate, in
favor of CoBank. The policy or policies evidencing all insurance referred to in
this Section and receipts for the payment of premiums thereon or certificates of
such insurance satisfactory to CoBank shall be delivered to and held by CoBank.
All such insurance policies shall contain a provision requiring at least ten
(10) days' notice to CoBank prior to any cancellation for non-payment of
premiums and at least forty-five (45) days' notice to CoBank of cancellation for
any other reason or of modification or non-renewal. No later than thirty (30)
days prior to expiration, Borrower shall give CoBank satisfactory written
evidence of renewal of all such policies with premiums paid. Borrower agrees to
pay all premiums on such insurance as they become due, and will not permit any
condition to exist on or with respect to the Borrower Collateral which would
wholly or partially invalidate any insurance thereon. Effective upon the
occurrence of an Event of Default, all of Borrower's right, title and interest
in and to all such policies and any unearned premiums paid thereon are hereby
assigned to CoBank who shall have the right, but not the obligation, to assign
the same to any purchaser of the Borrower Collateral at any foreclosure sale.
Borrower shall give immediate written notice to the insurance carrier and CoBank
of any loss. Borrower hereby authorizes and empowers CoBank upon the occurrence
and during the continuation of an Event of Default, at CoBank's option and in
CoBank's sole discretion, to act as attorney-in-fact for Borrower to make proof
of loss, to adjust and compromise any claim under insurance policies, to collect
and receive insurance proceeds, and to deduct therefrom CoBank's expenses
incurred in the collection of such proceeds, and all insurance policies of
Borrower shall provide that CoBank may act as Borrower's attorney-in-fact for
such purposes.
11.7 Taxes. Borrower shall cause to be paid when due all taxes,
assessments, and other governmental charges and levies upon it, its income, its
sales, its properties, and federal and state taxes withheld from its employees'
earnings, unless (a) such taxes, assessments, or other governmental charges or
levies shall be contested in good faith by appropriate actions or legal
proceedings, (b) adequate reserves therefor shall be established by Borrower in
accordance with GAAP during the period of such contest, (c) the enforcement of
any contested item, and any Lien relating thereto, is effectively stayed, and
(d) the failure to pay or comply with the contested item could not reasonably be
expected to result in a Material Adverse Effect with respect to Borrower.
11.8 Title to Assets and Maintenance. Borrower shall defend and maintain
title to, and shall maintain, keep and preserve all of its material properties
(tangible and
28
intangible) necessary or used in the proper conduct of its business in good
working order and condition, ordinary wear and tear excepted, and shall cause to
be made all repairs, renewals, replacements, betterments and improvements
thereof, all as in the sole judgment of Borrower may be reasonably necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
11.9 Payment of Liabilities. Except for those liabilities set forth on
Schedule 11.9 which shall be paid in accordance with the schedule therefor set
forth on Schedule 11.9, Borrower shall pay all liabilities as they become due
unless (with the exception of the Bank Debt) they are contested in good faith by
appropriate actions or legal proceedings, Borrower establishes adequate reserves
therefor in accordance with GAAP, the enforcement of such liability, and any
Lien relating thereto, is effectively stayed, and such contest will not result
in a Material Adverse Effect on Borrower.
11.10 Further Assurances; Real Property Security Interests. Borrower shall,
as may be required from time to time by CoBank, provide such documents as may be
necessary or desirable in the judgment of CoBank to confirm the Lien on the
Borrower Collateral granted to CoBank. Promptly after the purchase or other
acquisition of any interest in real estate, Borrower shall provide CoBank with
written notice of such acquisition and shall grant to CoBank a first deed of
trust or mortgage on such interest in real estate, such deed of trust or
mortgage to be in form and substance as specified by CoBank. In connection with
the delivery of any mortgage or deed of trust, Borrower shall deliver to CoBank
a mortgagee's title policy satisfactory to CoBank in such amount as CoBank shall
specify, to be obtained at Borrower's sole cost. In connection with entering
into, as lessee, any ground lease upon which a Greenhouse will be located, or
any other real property lease with respect to which the annual rental is
$50,000.00 or more, Borrower shall deliver to CoBank a lease amendment or
leasehold assignment and consent (naming CoBank as assignee), as determined by
CoBank and in the form specified by CoBank, together with such consents or
estoppels of lessor as CoBank shall specify.
11.11 Inspection. Borrower shall permit CoBank and its agents, during
normal business hours or at such other times as the parties may agree, to
examine Borrower's properties, books, and records, and to discuss Borrower's
affairs, finances, operations, and accounts with its respective officers,
directors, employees, and independent certified public accountants.
11.12 Required Licenses and Intellectual Property. Borrower shall duly and
lawfully obtain and maintain in full force and effect all Required Licenses, and
Borrower shall maintain, or cause to be maintained, in full force and effect the
Intellectual Property registrations, except where the failure to do so would not
have a Material Adverse Effect on Borrower.
11.13 ERISA. In the event Borrower adopts , maintains, or becomes obligated
to make payments under, any Borrower Benefit Plan in the future (which Borrower
may not do without the prior written consent of CoBank), Borrower shall: (a)
cause each such Borrower
29
Benefit Plan to comply in all material respects with the Code and ERISA,
including but not limited to preparing and delivering each material report,
statement or other document required by ERISA and the Code within the period
specified therein and conforming in form and substance to the provisions
thereof; (b) cause any Borrower Benefit Plan that is intended to satisfy the
requirements of Section 401(a) of the Code to satisfy such requirements
including, but not limited to obtaining a favorable determination letter with
respect to each such Borrower Benefit Plan; and (c) administer each Borrower
Benefit Plan in all material respects in accordance with the terms of such plan
and with ERISA, the Code, and any other applicable law, except to the extent any
failure to comply with the preceding clauses would not have a Material Adverse
Effect on Borrower.
11.14 Performance Standards; Budgets. Borrower shall meet the performance
standards described on Exhibit 11.14 for each calendar month and Quarter, except
that Borrower will not be deemed to have breached the covenants of this Section
11.14: (a) if the negative variance from one or more of the performance
standards set forth on Exhibit 11.14 is ten percent (10%) or less in any
calendar month or five percent (5%) or less in any Quarter, or (b) even when the
negative variance from one or more of the performance standards exceeds ten
percent (10%) in any calendar month or five percent (5%) in any Quarter, if (i)
such negative variance is recouped in the immediately succeeding calendar month,
and (ii) there is no negative variance in any amount in any of the standards set
forth on Exhibit 11.14 in such succeeding calendar month. No later than 30 days
after the end of each month and forty-five days after the end of each Quarter,
Borrower shall provide to CoBank a certificate of Borrower's chief financial
officer stating that: (1) he has reviewed all necessary reports regarding the
operations of Borrower, (2) he has, based upon such reports and such review,
calculated (which calculations shall be set forth in detail and attached to such
certificate) each of the performance standards for Borrower referred to on
Exhibit 11.14 hereto for the relevant measurement period, and (3) based upon
such review and calculations, each of such performance standards have been met
for such measurement period.
11.15 Year 2000. Borrower agrees: (a) to use its best efforts to obtain
from all Significant Software Providers, no later than the Effective Date,
reasonable assurance that Borrower's Significant Software is Year 2000
Compliant; (b) to use its best efforts to obtain, no later than the Effective
Date, reasonable assurance from all of Borrower's Mission Critical third party
suppliers and customers that such suppliers' and customers' Significant Software
is Year 2000 Compliant; (c) to diligently conduct thorough Year 2000 Compliance
tests on or before the Effective Date on all of Borrower's Significant Software
and to provide a written report to CoBank within two Business Days thereafter
detailing any Year 2000 Compliance failures of Borrower's Significant Software
and Borrower's plans for timely remediation of such Significant Software; (d) to
complete all remediation of identified Year 2000 Compliance failures in
Borrower's Significant Software no later than the Effective Date; (e) to provide
to CoBank, no later than the Effective Date, the written certification of
Borrower's chief financial officer, or other officer satisfactory to CoBank,
that: all of Borrower's Significant Software has been diligently and thoroughly
tested; any necessary remediation, with respect to Year 2000
30
Compliance failures identified through such testing, has been completed; and, to
the best of Borrower's knowledge, its Significant Software is Year 2000
Compliant; and (f) to provide to CoBank, no later than the Effective, a written
report detailing Borrower's contingency plans in the event of an unexpected
failure of Borrower's Significant Software or Mission Critical suppliers or
customers to be Year 2000 Compliant.
ARTICLE 12.
NEGATIVE COVENANTS
From and after the date of this Agreement and until the Bank Debt is
indefeasibly paid in full, Borrower agrees that it will observe and comply with
the following covenants for the benefit of CoBank:
12.1 Borrowing. Borrower shall not create, incur, assume or permit to
exist: (a) any indebtedness for borrowed money or for the deferred purchase
price of property or services; (b) any contingent liabilities, such as
guarantees and reimbursement obligations; or (c) any obligations under leases
(whether operating or capital leases), except for: (v) indebtedness for the
deferred purchase price of property and services acquired in the ordinary course
of business which is described on Schedule 11.9, (w) indebtedness owing under
the Loan Documents and any other indebtedness owing to CoBank (provided,
however, that any such indebtedness shall be subordinated to the Bank Debt), (x)
the leases of Greenhouses and/or Greenhouse properties listed on Schedule 10.22
hereto, and (y) leases and purchase money financing of equipment required in the
ordinary course of Borrower's business the aggregate amount of which does not
exceed $250,000.00 at any time; and (z) indebtedness constituting any
refinancing or refunding of indebtedness described in subparagraph (y) of this
Section, provided that the principal amount thereof does not increase as a
result of any such refinancing or refunding from the balance owing on the date
hereof or on the date of such refinancing or refunding, whichever is lower.
12.2 No Other Businesses. Except as set forth on Schedule 12.2, Borrower
shall not transact or engage in any business other than the operation of the
Greenhouses, including the planting, growing, harvesting, and marketing of
tomatoes, vegetables or other crops without CoBank's prior written consent.
12.3 Liens. Borrower shall not create, incur, assume or suffer to exist any
Lien on any of the Borrower Collateral, except:
(a) the Liens resulting from the Loan Documents;
(b) Liens for taxes or other governmental charges which are not due or
remain payable without penalty, unless (i) such taxes, assessments, or
other governmental charges or levies shall be contested in good faith by
appropriate actions or legal proceedings, (ii) adequate reserves therefor
shall be established by Borrower in accordance with GAAP during the period
of such contest, (iii) the enforcement of any contested item, and any Lien
resulting therefrom, is effectively stayed, and (iv) the failure to pay or
comply with the contested item
31
could not reasonably be expected to result in a Material Adverse Effect with
respect to Borrower;
(c) deposits or pledges to secure workmen's compensation, unemployment
insurance, old age benefits or other social security obligations or in
connection with or to secure the performance of bids, tenders, trade
contracts or leases or to secure statutory obligations or surety or appeal
bonds or other pledges or deposits of like nature and all in the ordinary
course of business;
(d) mechanics', carriers', workmen's, repairmen's or other like Liens
arising in the ordinary course of business in respect of obligations not
yet due or which are being contested in good faith and by appropriate
proceedings so long as (i) adequate reserves therefor shall be established
by Borrower in accordance with GAAP during the period of such contest, (ii)
the enforcement of any contested item, and any Lien resulting therefrom, is
effectively stayed, and (iii) the failure to pay or comply with the
contested item could not reasonably be expected to result in a Material
Adverse Effect with respect to Borrower;
(e) easements, rights-of-way, zoning restrictions and other similar matters
incidental to the ownership of real property which do not in the aggregate
materially detract from the value of such real property or materially
impair their use in the operation of the business of Borrower;
(f) Liens securing leases or purchase money financing of equipment acquired
in the ordinary course of Borrower's business, provided that such Liens
shall attach only to the equipment so leased or purchased and that the
aggregate amount of all lease obligations and purchase money financing so
secured does not exceed the amount permitted under Section 12.1; (g) Liens,
deposits, or pledges to secure the performance of bids, contracts (other
than contracts for the payment of money), leases (to the extent not
otherwise prohibited hereunder), public or statutory obligations, surety,
stay, appeal, indemnity, performance or similar bonds, or other similar
obligations arising out of or entered into in the ordinary course of
Borrower's business; and
(h) With respect to the Greenhouse owned and operated by Presidio prior to
the Borrower merger, the mechanic's lien of Dalsem Horticultural Projects,
B.V. ("DALSEM") securing the amount described on Schedule 11.9 hereto as
owing to Dalsem, which amount has been subordinated to at least $3,521,854
of the Bank Debt.
12.4 Sale of Assets. Borrower shall not sell, convey, assign, lease or
otherwise transfer or dispose of, voluntarily, by operation of law or otherwise,
any of the Borrower Collateral to any Person, except that: (a) Borrower may, in
the ordinary course of Borrower's business, make sales or other dispositions of
tomatoes, vegetables, and other crops grown in the Greenhouses; and (b) Borrower
may dispose of worn-out or obsolete equipment so long as (i) if an Event of
Default has occurred and is continuing, any
32
proceeds are paid to CoBank for application to the Bank Debt, (ii) whether or
not an Event of Default has occurred and is continuing, such sales do not
involve equipment having an aggregate fair market value in excess of $100,000.00
for all such equipment disposed of in any calendar year that is not replaced
with comparable equipment, and (iii) the transfer is made in an arm's-length
transaction.
12.5 Liabilities of Others. Borrower shall not assume, guarantee, endorse
or otherwise become directly or contingently liable in connection with any
obligation of any other Person.
12.6 Payments on Indebtedness. Borrower shall not make any principal
payment (including without limitation any prepayment) on any indebtedness except
indebtedness owing to CoBank under the Loan Documents and, so long as no Event
of Default or Potential Default shall exist, indebtedness not prohibited by
Section 12.1 of this Agreement.
12.7 Change in Business Structure. Borrower shall not merge or consolidate
with any entity, or acquire all or substantially all of the assets of any person
or entity, acquire or construct any Greenhouse after the date hereof, or form or
create any new subsidiary or affiliate, or commence operations under any other
name, organization, or entity, including any joint venture without CoBank's
prior written consent. Borrower shall not cease operations at any Greenhouse
without CoBank's prior written consent.
12.8 Loans, Advances and Investments. Except for the purchase and ownership
of CoBank Equity Interests, Borrower shall not make or permit to remain
outstanding any loan or advance to, or own, purchase or acquire any stock,
obligations or securities or equities of, or any other interest in, or make any
capital contribution to, any Person, except that Borrower may own, purchase or
acquire:
(a) commercial paper maturing not in excess of one year from the date of
acquisition and rated P1 by Xxxxx'x Investors Service, Inc. or A1 by
Standard & Poor's Corporation on the date of acquisition;
(b) certificates of deposit in North American commercial banks rated C or
better by Xxxxx, Xxxxxxxx & Xxxxx, Inc. or 3 or better by Xxxxx Consulting
Analysts, maturing not in excess of one year from the date of acquisition;
(c) obligations of the United States government or any agency thereof, the
obligations of which are guaranteed by the United States government,
maturing, in each case, not in excess of one year from the date of
acquisition; and
(d) repurchase agreements of any bank or trust company incorporated under
the laws of the United States of America or any state thereof and fully
secured by a pledge of obligations issued or fully and unconditionally
guaranteed by the United States government.
33
12.9 Transactions With Related Parties. Borrower shall not purchase,
acquire, or sell any equipment, other personal property, real property or
services from or to any affiliate of Borrower, except in the ordinary course of
Borrower's business and upon fair and reasonable terms no less favorable than
would be obtained by Borrower in a comparable arm's-length transaction with an
unrelated Person.
12.10 ERISA. Borrower shall not: (a) adopt, maintain or become obligated to
contribute to any Borrower Benefit Plan or any Borrower Pension Plan without the
prior written consent of CoBank; (b) engage in or permit any transaction which
could result in a "prohibited transaction" (as such term is defined in Section
406 of ERISA) or in the imposition of an excise tax pursuant to Section 4975 of
the Code; (c) engage in or permit any transaction or other event which could
result in a "reportable event" as such term is defined in Section 4043 of ERISA
for any Borrower Pension Plan; (d) fail to make full payment when due of all
amounts which, under the provisions of any Borrower Benefit Plan, Borrower is
required to pay as contributions thereto; (e) permit to exist any "accumulated
funding deficiency" (as such term is defined in Section 302 of ERISA) in excess
of $25,000.00, whether or not waived, with respect to any Borrower Pension Plan;
(f) fail to make any payments to any "multiemployer plan" that Borrower may be
required to make under any agreement relating to such "multiemployer plan" or
any law pertaining thereto; or (g) terminate any Borrower Pension Plan in a
manner which could result in the imposition of a lien on any property of
Borrower pursuant to Section 4068 of ERISA. Borrower shall not terminate any
Borrower Pension Plan so as to result in any liability to the Pension Benefit
Guaranty Corporation. As used in this Section, all terms enclosed in quotation
marks shall have the meanings set forth in ERISA. Borrower's failure to comply
with any of the foregoing provisions of this Section shall not constitute a
breach of this Agreement or an Event of Default unless such failure has a
Material Adverse Effect on Borrower.
12.11 Distributions to Partners. Borrower shall not return any capital,
pay, make, or allocate or otherwise set apart for the payment of, any
distributions or loans, whether in cash, assets, or in obligations of Borrower,
whatsoever to Borrower's partners, except:
(a) in connection with transactions permitted under Section 12.9, and
(b) that, so long as no Potential Default or Event of Default has occurred,
Borrower may, in connection with that certain Promissory Note dated January
2, 2000 made by EcoScience payable to Cogentrix in the principal amount of
$15,900,000 ("COGENTRIX NOTE"):
(i) make distributions to APD in December of each year, commencing in
December 2000 and continuing until the Cogentrix Note has been paid in
full in the following amount provided that such distributions to APD
must in turn be distributed to EcoScience and must be used by
EcoScience only to make mandatory annual prepayments to Cogentrix
pursuant to Section 7(b)(i) of that certain Exchange Agreement
("EXCHANGE AGREEMENT") dated as of
34
January 2, 2000 by and between Cogentrix and EcoScience (but not
mandatory prepayments on account of "Prepayment Events" as such term
is defined in the Exchange Agreement) and scheduled payments to
Cogentrix under section 7(a) of the Exchange Agreement, so long as
such indebtedness has been subordinated to all indebtedness owed to
CoBank under the Loan Documents on terms and conditions satisfactory
to CoBank in its sole discretion, in an aggregate amount equal to:
seventy percent (70%) of all EBITDA in excess of $15,000,000
(determined on the basis of the most recent consolidated and
consolidating audited financial statements of APD that have been
delivered to CoBank); provided, however, that effective December 1,
2003, the foregoing restriction is waived to the extent necessary to
enable Borrower to make distributions to APD in the amount of the
scheduled payment to Cogentrix, on the date that each such scheduled
payment is due, pursuant to Section 7(a) of the Exchange Agreement
provided that such distributions to APD must in turn be distributed to
EcoScience and must be used by EcoScience only to make such scheduled
payments.
12.12 Dissolution or Liquidation. Borrower shall not dissolve or liquidate,
or enter into any consolidation, pool, joint venture, or other combination.
12.13 Amendment of Organizational Documents. Borrower shall not amend any
material term of its Certificate of Limited Partnership or its limited
partnership agreement without the prior written consent of CoBank.
12.14 Change in Fiscal Year. Borrower shall not change its Fiscal Year.
12.15 Issued Letter of Credit. The expiration date of the Issued Letter of
Credit shall not be extended past July 31, 2001 unless Borrower has signed
CoBank's standard form of reimbursement agreement and provided such collateral
security for such reimbursement obligations as CoBank may require. If,
notwithstanding such prohibition, the expiration date of the Issued Letter of
Credit is extended beyond July 31, 2001 and Borrower has not executed such
reimbursement agreement and provided CoBank with such collateral security, then
on the Tranche B Maturity Date, Borrower shall be required to deposit with
CoBank cash in an amount equal to the undrawn face amount of the Issued Letter
of Credit as collateral security for Borrower's reimbursement obligations in
connection with the Issued Letter of Credit.
ARTICLE 13.
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
13.1 Events of Default. The occurrence of any of the following events (each
an "EVENT OF DEFAULT") shall terminate any obligation on the part of CoBank to
disburse the proceeds of the Term Loans and, at the option of CoBank, shall make
the Notes and the entire Bank Debt immediately due and payable (provided, that
in the case of an Event of Default under Subsection 13.1(g) all amounts owing
under the Notes and the
35
other Loan Documents shall automatically and immediately become due and payable
without any action by or on behalf of CoBank), and CoBank may exercise all
rights and remedies for the collection of any amounts outstanding hereunder and
take whatever action it deems necessary to secure itself, all without notice of
default, presentment or demand for payment, protest or notice of nonpayment or
dishonor, or other notices or demands of any kind or character:
(a) Failure of Borrower to pay within five (5) days of the date when due,
whether by acceleration or otherwise, any of the Bank Debt in accordance
with this Agreement or the other Loan Documents.
(b) Any representation or warranty set forth in any Loan Document, or in
connection with any transaction contemplated by any such document, shall
prove in any material respect to have been false or misleading when made by
Borrower, VFIFA, General Partner or any Guarantor, as applicable.
(c) Any default by Borrower, General Partner or any Guarantor in the
performance or compliance with the covenants, promises, conditions or
provisions of Sections 11.6, 11.11, 11.14, 12.1, 12.3, 12.4, 12.5, 12.6,
12.7, 12.11, 12.12, or 12.14, or Sections 5.4, 5.5, 5.6, or 5.10 of the
General Partner Security Agreement, or Sections 8.6, 8.11, 8.14, 9.1, 9.3,
9.4, 9.5, 9.6, 9.7, 9.11, 9.12, 9.14, 9.15, or 9.16 of the APD Guaranty or
Sections 8.6, 8.9, 9.1, 9.2, 9.3 or 9.6 of the EcoScience Guaranty.
(d) Any breach of the covenants set forth in Sections 11.2, 11.3, 11.8,
11.9 (except as provided in Section 13.1(f)), 11.12, 11.13, 11.15, 12.8,
12.9, or 12.10 of this Agreement, or Sections 5.12 or 5.13 of the General
Partner Security Agreement, or Sections 8.2, 8.3, 8.8, 8.9, 8.12, 8.13,
8.15, 9.8, 9.9, or 9.10 of the APD Guaranty, or Sections 8.2, 8.3, 8.7,
8.10, 8.11, or 9.5 of the EcoScience Guaranty, and such failure continues
for five (5) days after Borrower, General Partner or any Guarantor, as
applicable, learns of such failure to comply, whether by Borrower's,
General Partner's or such Guarantor's own discovery or through notice from
CoBank.
(e) The occurrence of an "Event of Default" as that term is defined in any
other Loan Document.
(f) Failure of Borrower, General Partner or any Guarantor to comply with
any other provision of this Agreement or the other Loan Documents not
constituting an Event of Default under any of the preceding provisions of
this Section 13.1, and such failure continues for thirty (30) days after
Borrower, General Partner or such Guarantor learns of such failure to
comply, whether by Borrower's, General Partner's or such Guarantor's own
discovery or through notice from CoBank.
(g) The failure of Borrower, General Partner or any Guarantor to pay when
due, or failure to perform or observe any other obligation or condition
with respect to, any of the following obligations to any Person, beyond any
period of
36
grace under the instrument creating such obligation: (i) any indebtedness
for borrowed money or for the deferred purchase price of property or
services in excess of $50,000.00, (ii) any obligations under leases which
have or should have been characterized as capitalized leases, as determined
in accordance with GAAP, or (iii) any contingent liabilities, such as
guarantees, for the obligations of others relating to indebtedness for
borrowed money or for the deferred purchase price of property or services
or relating to obligations under leases which have or should have been
characterized as capitalized leases, as determined in accordance with GAAP.
(h) Borrower, General Partner or any Guarantor applies for or consents to
the appointment of a trustee or receiver for any part of their respective
properties; any bankruptcy, reorganization, debt arrangement, dissolution
or liquidation proceeding is commenced or consented to by Borrower, General
Partner or any Guarantor; or any application for appointment of a receiver
or a trustee, or any proceeding for bankruptcy, reorganization, debt
management or liquidation is filed for or commenced against Borrower,
General Partner or any Guarantor, and is not withdrawn or dismissed within
sixty (60) days thereafter.
(i) In the event (i) General Partner ceases to be the sole general partner
of Borrower or APD ceases to be the sole limited partner or Borrower, or
(ii) EcoScience ceases to own 100% of the issued and outstanding capital
stock of APD, or (iii) a Change of Control occurs with respect to
EcoScience without CoBank's prior written consent.
(j) Failure by APD or Borrower to maintain a Turnaround Manager reasonably
acceptable to CoBank.
(k) Any Guaranty or any Security Document to which General Partner or any
Guarantor is a party shall, at any time after their execution, cease to be
in full force and effect, or shall be revoked or declared null and void, or
the validity or enforceability thereof shall be contested by General
Partner or any Guarantor, or General Partner or any Guarantor shall deny
any further liability or obligation thereunder, or shall be in default or
fail to perform its obligations thereunder, or any covenant or agreement
set forth therein shall be breached, or General Partner or any Guarantor
should breach or be in default under the terms of any of the Loan Documents
to which General Partner or such Guarantor is a party.
(l) The entry of one or more judgments in an aggregate amount in excess of
$50,000.00 against Borrower and/or in excess of $100,000.00 in the
aggregate against General Partner or any Guarantor, in either case not
stayed or discharged within thirty (30) days after entry.
13.2 No Advances. CoBank shall have no obligation to disburse the proceeds
of the Term Loans if a Potential Default or an Event of Default shall occur and
be continuing.
37
13.3 Rights and Remedies. In addition to the remedies set forth in Section
13.1 and 13.2 of this Agreement, upon the occurrence of an Event of Default,
CoBank shall be entitled to exercise all the rights and remedies provided in the
Security Documents and other Loan Documents and by any applicable law,
including, without limitation, the Uniform Commercial Code as enacted in the
state of Colorado or the state where the Collateral is located at such time,
whichever provides CoBank with greater rights. Each and every right or remedy
granted to CoBank pursuant to this Agreement and the other Loan Documents, or
allowed CoBank by law or equity, shall be cumulative. Failure or delay on the
part of CoBank to exercise any such right or remedy shall not operate as a
waiver thereof. Any single or partial exercise by CoBank of any such right or
remedy shall not preclude any future exercise thereof or the exercise of any
other right or remedy.
ARTICLE 14.
INDEMNIFICATION
14.1 General; Stamp Taxes; Intangibles Tax. Borrower agrees to indemnify
and hold CoBank and each Participant and their respective directors, officers,
employees, agents, professional advisers and representatives ("INDEMNIFIED
PARTIES") harmless from and against any and all claims, damages, losses,
liabilities, costs or expenses whatsoever which any Indemnified Party may incur
(or which may be claimed against any such Indemnified Party by any Person),
including attorneys' fees incurred by any Indemnified Party, arising out of or
resulting from: (a) the material inaccuracy of any representation or warranty of
Borrower, VFIFA, General Partner or any Guarantor in this Agreement or any other
Loan Document; (b) the material failure of Borrower, VFIFA, General Partner or
any Guarantor to perform or comply with any covenant or obligation of Borrower,
VFIFA, General Partner or such Guarantor under this Agreement or any other Loan
Document; or (c) the exercise by CoBank of any right or remedy set forth in this
Agreement or the other Loan Documents, provided that Borrower shall have no
obligation to indemnify any Indemnified Party against claims, damages, losses,
liabilities, costs or expenses to the extent that a court of competent
jurisdiction renders a final non-appealable determination that the foregoing are
solely the result of the willful misconduct or gross negligence of such
Indemnified Party. In addition, Borrower agrees to indemnify and hold the
Indemnified Parties harmless from and against any and all claims, damages,
losses, liabilities, costs or expenses whatsoever which CoBank or any other
Indemnified Party may incur (or which may be claimed against any such
Indemnified Party by any Person), including attorneys' fees incurred by any
Indemnified Party, arising out of or resulting from the imposition or nonpayment
by Borrower, VFIFA, General Partner or any Guarantor of any stamp tax,
intangibles tax, or similar tax imposed by any governmental authority, including
any amounts owing by virtue of the assertion that the property valuation used to
calculate any such tax was understated. Borrower shall have the right to assume
the defense of any claim as would give rise to Borrower's indemnification
obligation under this Section with counsel of Borrower's choosing so long as
such defense is being diligently and properly conducted and Borrower shall
establish to the Indemnified Party's satisfaction that the amount of such claims
are not, and will not be, material in comparison to the liquid and
38
unrestricted assets of Borrower available to respond to any award which may be
granted on account of such claim. So long as the conditions of the preceding
sentence are met, Indemnified Party shall have no further right to reimbursement
of attorneys' fees incurred thereafter. The obligation to indemnify set forth in
this Section shall survive the termination of this Agreement and the other Loan
Documents.
14.2 Indemnification Relating to Hazardous Substances. Borrower shall not
locate, produce, treat, transport, incorporate, discharge, emit, release,
deposit or dispose of any Hazardous Substance in, upon, under, over or from any
property owned or operated by Borrower, except in accordance with all
Environmental Laws and Environmental Regulations; Borrower shall not permit any
Hazardous Substance to be located, produced, treated, transported, incorporated,
discharged, emitted, released, deposited, disposed of or to escape in, upon,
under, over or from any property owned or operated by Borrower, except in
accordance with Environmental Laws and Environmental Regulations; and Borrower
shall comply with all Environmental Laws and Environmental Regulations which are
applicable to such property. If CoBank reasonably believes that an Environmental
Law or Environmental Regulation has been violated by Borrower's activities upon
property owned or operated by Borrower, and if CoBank so requests, Borrower
shall have prepared an environmental review, audit, assessment and/or report
relating to the subject property, at Borrower's sole cost and expense, by an
engineer or other environmental expert acceptable to CoBank. If, however, the
environmental review, audit, assessment and/or report reveals that no
Environmental Law or Environmental Regulation has been violated, CoBank shall
reimburse Borrower for the costs and expenses of such engineer or other
environmental expert in completing such audit or report. Borrower shall
indemnify the Indemnified Parties against, and shall reimburse the Indemnified
Parties for, any and all claims, demands, judgments, penalties, liabilities,
costs, damages and expenses, including court costs and attorneys' fees incurred
by the Indemnified Parties (prior to trial, at trial and on appeal) in any
action against or involving the Indemnified Parties, resulting from any breach
of the foregoing covenants, or from the discovery of any Hazardous Substance in,
upon, under or over, or emanating from, such property, it being the intent of
Borrower and the Indemnified Parties that the Indemnified Parties shall have no
liability or responsibility for damage or injury to human health, the
environmental or natural resources caused by, for abatement and/or clean-up of,
or otherwise with respect to, Hazardous Substances by virtue of the interest of
CoBank (or any Participant), in the property created by any documents securing
Bank Debt (including without limitation the Loan Documents) or as the result of
CoBank exercising any of its rights or remedies with respect thereto, including
but not limited to becoming the owner thereof by foreclosure or conveyance in
lieu of foreclosure. The foregoing covenants of this Section shall be deemed
continuing covenants for the benefit of the Indemnified Parties, and any
successors and assigns of the Indemnified Parties, including but not limited to
the holder of any certificate of purchase, any transferee of the title of CoBank
or any subsequent owner of the property, and shall survive the satisfaction or
release of any Lien, any foreclosure of any Lien and/or any acquisition of title
to the property or any part thereof by CoBank, or anyone claiming by, through or
under CoBank or Borrower by deed in lieu of foreclosure or otherwise. Any
amounts covered by the foregoing
39
indemnification shall bear interest from the date incurred at the Default
Interest Rate, shall be payable on demand, and shall be secured by the Security
Documents. The indemnification and covenants of this Section shall survive the
termination of this Agreement and the other Loan Documents.
ARTICLE 15.
MISCELLANEOUS
15.1 Costs and Expenses. To the extent permitted by law, Borrower agrees to
pay to CoBank, on demand, all out-of-pocket costs and expenses incurred by it
and any Participant in the Term Loans as of the Effective Date (including,
without limitation, the reasonable fees and expenses of counsel retained by
CoBank and any such Participant and reasonable consulting, appraisal,
engineering and environmental assessment costs) in connection with the
preparation, negotiation, and execution of the Loan Documents and the
transactions contemplated thereby (including without limitation any post-closing
matters) and the enforcement or protection of CoBank's rights under the Loan
Documents, including without limitation collection of any of the Bank Debt and
the enforcement of any security interest in the Collateral (regardless of
whether such enforcement or collection is by court action or otherwise), as
applicable.
15.2 Service of Process and Consent to Jurisdiction. Borrower irrevocably
agrees that any litigation with respect to this Agreement or to enforce any
judgment obtained against Borrower for breach of this Agreement or under the
Notes or other Loan Documents may be brought in the courts of the State of
Colorado and in the United States District Court for the District of Colorado
(if applicable subject matter jurisdictional requirements are present), as
CoBank may elect; and, by execution and delivery of this Agreement, Borrower
irrevocably submits to such jurisdiction. With respect to litigation concerning
this Agreement or any other Loan Document within the jurisdiction of the courts
of the State of Colorado or the United States District Court for the District of
Colorado, Borrower hereby irrevocably appoints, until January 31, 2005, The
Corporation Company, 0000 Xxxxxxxx, Xxxxxx, Xxxxxxxx 00000, as the agent of
Borrower to receive for and on behalf of Borrower, service of process, which
service may be made by mailing a copy of any summons or other legal process to
Borrower in care of such agent. Borrower agrees that Borrower shall maintain a
duly appointed agent for service of summons and other legal process in Colorado
as long as Borrower remains obligated under this Agreement. The receipt by such
agent and/or by Borrower of such summons or other legal process in any such
litigation shall be deemed personal service and acceptance by Borrower for all
purposes of such litigation. Borrower agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
15.3 Jury Waiver. IT IS MUTUALLY AGREED BY AND BETWEEN COBANK AND BORROWER
THAT THEY EACH WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
BROUGHT BY EITHER OF THEM AGAINST THE OTHER PARTY ON ANY MATTER WHATSOEVER
ARISING OUT
40
OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE NOTES, OR THE OTHER LOAN
DOCUMENTS.
15.4 Notices. All notices, requests and demands required or permitted under
the terms of this Agreement shall be in writing and (a) shall be addressed as
set forth below or at such other address as either party shall designate in
writing and shall be personally delivered or sent by facsimile transmission,
overnight courier, or United States Mail, certified and return receipt
requested, and (b) shall be deemed to have been given or made: (i) if delivered
personally, immediately upon delivery, (ii) if by facsimile transmission,
immediately upon sending and upon confirmation of receipt, (iii) if by
nationally recognized overnight courier service with instructions to deliver the
next Business Day, one (1) Business Day after sending, and (iv) if by United
States Mail, certified mail, return receipt requested, five (5) days after
mailing.
15.4.1 Borrower:
Village Farms, L.P.
00 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx XxXxxxxx, President
15.4.2 CoBank:
CoBank, ACB
0000 X. Xxxxxx Xx.
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxxx X. Xxxxxx
Vice President, Special Assets
With a copy to:
Farm Credit Bank of Texas
0000 Xxxxxxx 000 Xxxx
Xxxxxx, Xxxxx 00000
X.X. Xxx 00000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxx Xxxxx
15.5 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of Borrower and CoBank and their respective successors and
assigns, except that Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of CoBank. CoBank may,
without notice to Borrower, assign its rights and delegate its obligations under
this Agreement and the other Loan
41
Documents and further may assign, or sell participations in, all or any part of
the Term Loans or any other interest herein.
15.6 Severability. The invalidity or unenforceability of any provision of
this Agreement or the other Loan Documents shall not affect the remaining
portions of such documents or instruments; in case of such invalidity or
unenforceability, such documents or instruments shall be construed as if such
invalid or unenforceable provisions had not been included therein.
15.7 Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE APPLICABLE LAWS OF THE STATE OF
COLORADO FROM TIME TO TIME IN EFFECT, without giving effect to any otherwise
applicable rules concerning conflicts of law.
15.8 Captions. The captions or headings in this Agreement and any table of
contents hereof are for convenience only and in no way define, limit or describe
the scope or intent of any provision of this Agreement.
15.9 Amendments. This Agreement may not be modified or amended unless such
modification or amendment is in writing and is signed by both Borrower and
CoBank. Borrower agrees that it shall reimburse CoBank for all fees and expenses
incurred by it and any Participant in retaining outside legal counsel in
connection with any amendment or modification to this Agreement requested by
Borrower.
15.10 Additional Costs of Maintaining Loan. Borrower shall pay to CoBank
from time to time such amounts as CoBank may determine to be necessary to
compensate it and any Participant for any costs incurred by CoBank or any
Participant which are attributable to the making or maintaining of the Term
Loans hereunder or its obligation to make any advance of the proceeds of the
Term Loans, or any reduction in any amount receivable by CoBank or any
Participant under this Agreement or the Notes in respect to any such advances
under the Term Loans or such obligation (such increases in costs and reductions
in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from
any change after the date of this Agreement in United States federal, state,
municipal, or foreign laws or regulations (including Regulation D), or the
adoption or making after such date of any interpretations, directives, or
requirements applying to a class of banks including CoBank or any Participant of
or under any United States federal, state, municipal, or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof ("REGULATORY CHANGE"), which: (a) changes the basis of
taxation of any amounts payable to CoBank or any Participant under this
Agreement or the Notes in respect of the Term Loans (other than taxes imposed on
the overall net income of CoBank or any Participant); or (b) imposes or modifies
any reserve, special deposit, or similar requirements relating to any extensions
of credit or other assets of, or any deposits with or other liabilities of,
CoBank or any Participant; or (c) imposes any other condition affecting this
Agreement or the Notes (or any of such
42
extensions of credit or liabilities). CoBank will notify Borrower of any event
occurring after the date of this Agreement which will entitle CoBank or any
Participant to compensation pursuant to this Section as promptly as practicable
after it obtains knowledge thereof and determines to request such compensation.
CoBank shall include with such notice, a certificate from CoBank setting forth
in reasonable detail the calculation of the amount of such compensation.
Determinations by CoBank for purposes of this Section of the effect of any
Regulatory Change on the costs of CoBank or any Participant of making or
maintaining the Term Loans or on amounts receivable by CoBank or any Participant
in respect of the Term Loans, and of the additional amounts required to
compensate CoBank or any Participant in respect of any Additional Costs, shall
be conclusive absent manifest error, provided that such determinations are made
on a reasonable basis.
15.11 Capital Requirements. In the event that the introduction of or any
change in (a) any law or regulation, or (b) the judicial, administrative, or
other governmental interpretation of any law or regulation, or (c) compliance by
CoBank or any Participant or any corporation controlling CoBank or any
Participant with any guideline or request from any governmental authority
(whether or not having the force of law) has the effect of requiring an increase
in the amount of capital required or expected to be maintained by CoBank or any
Participant or any corporation controlling CoBank or any Participant, and CoBank
certifies that such increase is based in any part upon its or any Participant's
obligations hereunder, and other similar obligations, Borrower shall pay to
CoBank such additional amount as shall be certified by CoBank to Borrower to be
the net present value (discounted at the National Variable Rate) of the amount
by which such increase in capital reduces the rate of return on capital which
CoBank or any Participant could have achieved over the period remaining until
the Tranche B Maturity Date but for such introduction or change. CoBank will
notify Borrower of any event occurring after the date of this Agreement that
will entitle CoBank or any Participant to compensation pursuant to this Section
as promptly as practicable after it obtains knowledge thereof and of CoBank's
determination to request such compensation. CoBank shall include with such
notice, a certificate setting forth in reasonable detail the calculation of the
amount of such compensation. Determinations by CoBank for purposes of this
Section of the effect of any increase in the amount of capital required to be
maintained by CoBank or any Participant and of the amount of compensation owed
to CoBank under this Section shall be conclusive absent manifest error, provided
that such determinations are made on a reasonable basis.
15.12 RELEASE. BORROWER HEREBY RELEASES, WAIVES AND FOREVER DISCHARGES
VFIFA, COBANK AND EACH PARTICIPANT AND EACH OF THEIR RESPECTIVE SHAREHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ALL KNOWN AND UNKNOWN, ABSOLUTE
AND CONTINGENT, CLAIMS, DEFENSES, SETOFFS, COUNTERCLAIMS, CAUSES OF ACTION,
ACTIONS, SUITS OR OTHER LEGAL PROCEEDINGS OF ANY KIND EXISTING OR ACCRUED AS OF
THE DATE OF THIS AGREEMENT IN FAVOR OF BORROWER OR THE VILLAGE FARMS ENTITIES.
43
15.13 ENTIRE AGREEMENT. THIS AGREEMENT (TOGETHER WITH ALL EXHIBITS AND
SCHEDULES HERETO, WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE) AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AND ENTIRE UNDERSTANDING BETWEEN
COBANK AND BORROWER WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
15.14 Liberal Construction. This Agreement constitutes a fully negotiated
agreement between commercially sophisticated parties, each assisted by legal
counsel, and shall not be construed and interpreted for or against any party
hereto.
44
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BORROWER:
VILLAGE FARMS, L.P., a Delaware limited
partnership
By: Village Farms of Delaware, L.L.C., its
general partner
By:
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
COBANK:
COBANK, ACB
By:
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President, Special Assets
45
TABLE OF CONTENTS
ARTICLE 1. DEFINED TERMS..........................................................................................1
1.1 APD Entities ............................................................................................1
1.2 APD Guaranty ............................................................................................1
1.3 APD Loans ...............................................................................................2
1.4 APD Finance Loan ........................................................................................2
1.5 Bank Debt ...............................................................................................2
1.6 Borrower Pension Plan ...................................................................................2
1.7 Buffalo Loan ............................................................................................2
1.8 Business Day ............................................................................................2
1.9 Capital Lease ...........................................................................................2
1.10 Change of Control ......................................................................................2
1.11 Cogentrix ..............................................................................................3
1.12 Collateral .............................................................................................3
1.13 Compliance Certificate .................................................................................3
1.14 Construction Loan Agreement ............................................................................3
1.15 Default Interest Rate ..................................................................................3
1.16 EBITDA .................................................................................................3
1.17 EcoScience .............................................................................................3
1.18 EcoScience Guaranty ....................................................................................3
1.19 Effective Date .........................................................................................3
1.20 Environmental Laws .....................................................................................3
1.21 Environmental Regulations ..............................................................................3
1.22 GAAP ...................................................................................................4
1.23 General Partner ........................................................................................4
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1.24 General Partner Entities ...............................................................................4
1.25 General Partner Security Agreement .....................................................................4
1.26 Greenhouses ............................................................................................4
1.27 Greenhouse Properties ..................................................................................4
1.28 Greenhouse Properties ..................................................................................4
1.29 Guarantees .............................................................................................4
1.30 Guarantors .............................................................................................4
1.31 Guarantor Collateral ...................................................................................4
1.32 Hazardous Substances ...................................................................................4
1.33 Interest Expense .......................................................................................4
1.34 Interest Rate ..........................................................................................4
1.35 Issued Letter of Credit ................................................................................4
1.36 Lien ...................................................................................................4
1.37 Line of Credit Agreement ...............................................................................5
1.38 Loan Documents .........................................................................................5
1.39 Marfa Loan .............................................................................................5
1.40 Material Adverse Change ................................................................................5
1.41 Material Adverse Effect ................................................................................5
1.42 Mission Critical .......................................................................................5
1.43 National Variable Rate .................................................................................5
1.44 Notes ..................................................................................................5
1.45 Participant ............................................................................................5
1.46 Pennsylvania Loan ......................................................................................5
1.47 Permits ................................................................................................6
1.48 Permitted Liens ........................................................................................6
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1.49 Person .................................................................................................6
1.50 Potential Default ......................................................................................6
1.51 Pocono .................................................................................................6
1.52 Pocono Loan ............................................................................................6
1.53 Presidio ...............................................................................................6
1.54 Presidio Loan ..........................................................................................6
1.55 Projections ............................................................................................6
1.56 Quarter ................................................................................................6
1.57 Security Documents .....................................................................................6
1.58 Significant Software ...................................................................................6
1.59 Significant Software Provider ..........................................................................7
1.60 Term Loans .............................................................................................7
1.61 Term Loan Agreement ....................................................................................7
1.62 Texas Loan .............................................................................................7
1.63 Tranche A Commitment ...................................................................................7
1.64 Tranche B Commitment ...................................................................................7
1.65 Tranche A Maturity Date ................................................................................7
1.66 Tranche B Maturity Date ................................................................................7
1.67 Tranche A Note .........................................................................................7
1.68 Tranche B Note .........................................................................................7
1.69 Turnaround Manager .....................................................................................7
1.70 VFIFA Loan Agreements ..................................................................................7
1.71 Village Farms Entities .................................................................................7
1.72 Virginia Loan ..........................................................................................8
1.73 Year 2000 Compliant ....................................................................................8
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ARTICLE 2. LOAN AMOUNTS...........................................................................................9
2.1 The Term Loans ..........................................................................................9
2.1.1 Tranche A Loan .........................................................................9
2.1.2 Tranche B Loan .........................................................................9
ARTICLE 3. USE OF PROCEEDS........................................................................................9
3.1 Proceeds ................................................................................................9
ARTICLE 4. AVAILABILITY AND DISBURSEMENT..........................................................................9
4.1 Availability - Tranche A Loan ...........................................................................9
4.2 Availability - Tranche B Loan ...........................................................................9
ARTICLE 5. INTEREST AND FEES......................................................................................9
5.1 Interest ................................................................................................9
5.2 Default Interest Rate ..................................................................................10
5.3 Facility Fee ...........................................................................................10
ARTICLE 6. PAYMENTS..............................................................................................10
6.1 Principal Payments .....................................................................................10
6.1.1 Tranche A Loan ........................................................................10
6.1.2 Tranche B Loan ........................................................................10
6.2 Interest Payments ......................................................................................10
6.3 Extension of Maturity Dates ............................................................................11
6.3.1 Tranche A Loan ........................................................................11
6.3.2 Tranche B Loan ........................................................................11
6.4 Voluntary Prepayments ..................................................................................11
6.5 Application of Prepayments .............................................................................11
6.6 Manner of Payment ......................................................................................11
ARTICLE 7. SECURITY..............................................................................................12
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7.1 Borrower's Assets ......................................................................................12
7.2 Guarantees .............................................................................................12
7.3 Pledge by General Partner ..............................................................................12
ARTICLE 8. COBANK EQUITY.........................................................................................12
8.1 CoBank Equity Interests ................................................................................12
ARTICLE 9. CONDITIONS TO TERM LOANS..............................................................................13
9.1 Conditions to Term Loans ...............................................................................13
9.1.1 Loan Documents; Other Documents .......................................................13
9.1.2 Searches; UCC Filings; Title Insurance ................................................13
9.1.3 Organizational Documents ..............................................................13
9.1.4 Evidence of Partnership Action; Incumbency Certificate ................................14
9.1.5 Evidence of General Partner Action; Incumbency Certificate ............................14
9.1.6 Evidence of Action by APD and EcoScience; Incumbency Certificates .....................14
9.1.7 Legal Opinion .........................................................................14
9.1.8 Evidence of Insurance .................................................................14
9.1.9 Evidence of Mergers and Borrower Applications for Qualification .......................15
9.1.10 Evidence of Cogentrix Debt Subordination .............................................15
9.1.11 Management and Marketing Agreements ..................................................15
9.1.12 Approval of Action Plan for Pocono and Wheatfield ....................................15
9.1.13 Purchase and Sale of VFIFA Loans .....................................................16
9.1.14 Recording of Documents ...............................................................16
9.1.15 Agrorent Buy-Out .....................................................................16
9.1.16 Payoffs ..............................................................................16
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9.1.17 Expenses .............................................................................16
9.1.18 Litigation ...........................................................................16
9.1.19 Appointment of Agent for Service .....................................................16
9.1.20 No Material Change ...................................................................16
9.1.21 Financial Information ................................................................17
9.1.22 Further Assurances ...................................................................17
ARTICLE 10. REPRESENTATIONS AND WARRANTIES.......................................................................17
10.1 Organization, Good Standing, Etc ......................................................................17
10.2 Authority; Due Authorization ..........................................................................17
10.3 Mergers ...............................................................................................17
10.4 Consents ..............................................................................................17
10.5 Ownership of Borrower .................................................................................18
10.6 Title to Borrower Collateral ..........................................................................18
10.7 Litigation ............................................................................................18
10.8 No Violations .........................................................................................18
10.9 Binding Agreement .....................................................................................18
10.10 Compliance with Laws .................................................................................18
10.11 Chief Executive Office ...............................................................................18
10.12 Material Agreements ..................................................................................19
10.13 Financial Statements .................................................................................19
10.14 Absence of Undisclosed Liabilities ...................................................................19
10.15 No Material Adverse Change ...........................................................................19
10.16 Projections ..........................................................................................19
10.17 Payment of Taxes .....................................................................................20
10.18 Licenses and Approvals ...............................................................................20
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10.19 Employee Benefit Plans ...............................................................................20
10.20 Equity Investments ...................................................................................21
10.21 Owned Real Property and Greenhouses ..................................................................21
10.22 Leased Real Property and Greenhouses .................................................................21
10.23 Liens ................................................................................................21
10.24 Environmental Compliance .............................................................................21
10.25 Intellectual Property ................................................................................22
10.26 Fiscal Year ..........................................................................................22
10.27 Year 2000 ............................................................................................22
10.28 Disclosure ...........................................................................................22
ARTICLE 11. AFFIRMATIVE COVENANTS................................................................................22
11.1 Books and Records .....................................................................................23
11.2 Reports and Notices ...................................................................................23
11.2.1 Annual Financial Statements ..........................................................23
11.2.2 Monthly Financial Reports ............................................................23
11.2.3 Quarterly Financial Statements .......................................................23
11.2.4 Budget ...............................................................................23
11.2.5 Additional Information ...............................................................23
11.2.6 Notice of Default ....................................................................24
11.2.7 Notice of Litigation .................................................................24
11.2.8 Notice of Material Adverse Effect ....................................................24
11.2.9 Notice of Environmental Litigation ...................................................24
11.2.10 Regulatory and Other Notices ........................................................24
11.2.11 Adverse Action Regarding Required Licenses and Intellectual Property ................24
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11.3 Maintenance of Existence ..............................................................................24
11.4 Compliance with Legal Requirements and Agreements .....................................................24
11.5 Compliance with Environmental Laws ....................................................................25
11.6 Insurance .............................................................................................25
11.7 Taxes .................................................................................................26
11.8 Title to Assets and Maintenance .......................................................................26
11.9 Payment of Liabilities ................................................................................26
11.10 Further Assurances; Real Property Security Interests .................................................26
11.11 Inspection ...........................................................................................26
11.12 Required Licenses and Intellectual Property ..........................................................27
11.13 ERISA ................................................................................................27
11.14 Performance Standards, Budgets .......................................................................27
11.15 Year 2000 ............................................................................................27
ARTICLE 12. NEGATIVE COVENANTS...................................................................................28
12.1 Borrowing .............................................................................................28
12.2 No Other Businesses ...................................................................................28
12.3 Liens .................................................................................................28
12.4 Sale of Assets ........................................................................................29
12.5 Liabilities of Others .................................................................................30
12.6 Payments on Indebtedness ..............................................................................30
12.7 Change in Business Structure ..........................................................................30
12.8 Loans, Advances and Investments .......................................................................30
12.9 Transactions With Related Parties .....................................................................30
12.10 ERISA ................................................................................................30
12.11 Distributions to Partners ............................................................................31
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12.12 Dissolution or Liquidation ...........................................................................31
12.13 Amendment of Organizational Documents ................................................................31
12.14 Change in Fiscal Year ................................................................................31
12.15 Issued Letter of Credit ..............................................................................32
ARTICLE 13. EVENTS OF DEFAULT; RIGHTS AND REMEDIES...............................................................32
13.1 Events of Default .....................................................................................32
13.2 No Advances ...........................................................................................34
13.3 Rights and Remedies ...................................................................................34
ARTICLE 14. INDEMNIFICATION......................................................................................34
14.1 General; Stamp Taxes; Intangibles Tax .................................................................34
14.2 Indemnification Relating to Hazardous Substances ......................................................35
ARTICLE 15. MISCELLANEOUS........................................................................................36
15.1 Costs and Expenses ....................................................................................36
15.2 Service of Process and Consent to Jurisdiction ........................................................36
15.3 Jury Waiver ...........................................................................................36
15.4 Notices ...............................................................................................36
15.4.1 Borrower .............................................................................37
15.4.2 CoBank ...............................................................................37
15.5 Successors and Assigns ................................................................................37
15.6 Severability ..........................................................................................37
15.7 Applicable Law ........................................................................................37
15.8 Captions ..............................................................................................37
15.9 Amendments ............................................................................................38
15.10 Additional Costs of Maintaining Loan .................................................................38
15.11 Capital Requirements .................................................................................38
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15.12 Release ..............................................................................................39
15.13 Entire Agreement .....................................................................................39
15.14 Liberal Construction .................................................................................39
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EXHIBITS AND SCHEDULES
Exhibits
--------
Exhibit 1.13 Compliance Certificate
Exhibit 1.55 Projections
Exhibit 9.1.7 Opinion Letter
Exhibit 11.14 Performance Standards
Schedules
---------
Schedule 10.12 Material Agreements
Schedule 10.14 Undisclosed Liabilities
Schedule 10.15 Material Adverse Changes
Schedule 10.18 Required Licenses
Schedule 10.21 Owned Real Property and Greenhouses
Schedule 10.22 Leased Real Property and Greenhouses
Schedule 10.23 Liens
Schedule 10.25 Intellectual Property
Schedule 11.9 Permitted Past-Due Liabilities and Payment Schedule
Schedule 12.2 Other Businesses
