Exhibit 10.85
EXECUTION COPY
FIRST AMENDMENT TO CREDIT AGREEMENT (Construction Loan Funding)
[Regarding EcoScience Merger]
This First Amendment to Credit Agreement (this "Amendment") is entered into
on September ___, 1998 by and between:
Village Farms International Finance Association, a Delaware corporation, with an
address at 00 Xxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000 ("Borrower"); and
CoBank, ACB, sole Agent and sole Syndication Party, as defined in the Credit
Agreement.
R E C I T A L S
A. The Borrower entered into a certain Credit Agreement (Construction Loan
Funding) dated June 24, 1997 (as amended to date the "Credit Agreement") in
connection with certain financing provided by the Syndication Parties to the
Borrower; and,
B. Agro Power Development, Inc. (the "Guarantor") entered into a certain
Guaranty of Agro Power Development, Inc. dated June 24, 1997 (as amended to date
the "Guaranty") in connection with certain financing provided by the Syndication
Parties to the Borrower; and,
C. The Guarantor desires to merge with Agro Acquisition Corp., an affiliate
of EcoScience Corporation, pursuant to a certain Agreement and Plan of Merger
(the "Merger Agreement") dated as of April 28, 1998 and amended and restated as
of July 31, 1998 (the "Merger"), with the name of the survivor being changed to
Agro Power Development, Inc.; and,
D. The parties desire to, among other things, amend and modify the Credit
Agreement as provided herein for the purpose, among other things, of permitting
the transactions described above.
A G R E E M E N T S
NOW, THEREFORE, for value received, and intending to be legally bound
herein, Borrower covenants and agrees with the Agent and the Syndication Parties
as follows:
1. Definitions. Except as otherwise expressly provided herein, all
capitalized terms used herein and defined in the Credit Agreement shall have the
meaning ascribed to such term under the Credit Agreement.
(A) Section 1.11 APD. Upon and after the consummation of the Merger,
the definition of "APD" set forth in Section 1.11 shall be amended and
restated in its entirety as follows:
1.11 APD: Agro Power Development, Inc., a Delaware Corporation.
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2. Other Amendments.
(A) Section 10.14 Real Property. Clause (b) of Section 10.14 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
(b) does not own any fee interest or leasehold interest, or any other
interest, including without limitation any easements, rights of way or
licenses, in real property, other than those evidenced by Underlying Loan
Documents and other than as set forth on Exhibit 10.14 hereto.
(B) Section 10.19 Material Agreements. The first sentence of Section 10.19
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
Exhibit 10.19 attached hereto sets forth all agreements of Borrower
(other than Underlying Loan Documents), the termination or breach of which,
based upon Borrower's knowledge as of the date of making any
representations with respect thereto, would have a Material Adverse Effect
("Material Agreements").
3. Regulatory and Other Notices. Section 12.2.9 of the Credit Agreement is
hereby amended and restated as follows:
12.2.9 Regulatory and Other Notices. Promptly after Borrower's receipt
thereof, copies of (a) 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; or (b) any written notices given by any Underlying
Borrower to Borrower in accordance with the terms of any agreement between
any Underlying Borrower and Borrower.
4. Continuance of Credit Agreement. Except as otherwise expressly provided
herein, the Credit Agreement shall remain in full force and effect in accordance
with its terms.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the date first set forth above.
Agro Power Development, Inc.
BY: ________________________________________
J. Xxxxx Xxxx, Sr. VP. & CFO
CoBank, ACB, as Agent and sole
Syndication Party
BY: ________________________________________
Name:
Title:
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