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SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
SVS HOLLAND B.V.
THIRD AMENDMENT TO CREDIT AGREEMENT
Xxxxxx Trust and Savings Bank
Chicago, Illinois
The Banks party to the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of June
28, 1999, as amended (the "Credit Agreement"), among the undersigned, SEMINIS,
INC., a Delaware corporation ("Seminis"), SEMINIS VEGETABLE SEEDS, INC., a
California corporation ("SVS") and SVS HOLLAND B.V., a private company with
limited liability incorporated under the laws of The Netherlands ("SVS Holland"
and, together with Seminis and SVS, individually a "Borrower" and collectively
the "Borrowers"), you (the "Banks") and Xxxxxx Trust and Savings Bank, as
administrative agent for the Banks (the "Administrative Agent"). All capitalized
terms used herein shall have the same meaning as in the Credit Agreement unless
otherwise defined herein.
The Administrative Agent, the Banks and the Borrowers wish to amend
certain provisions of the Credit Agreement, all in the manner set forth in this
Amendment.
1. AMENDMENTS.
Upon satisfaction of all of the conditions precedent set forth in Section
2 hereof, the following provisions of the Credit Agreement shall be amended as
follows:
1.1. Section 1.1(a) of the Credit Agreement shall be amended by adding the
following sentence at the end of the last paragraph thereof:
"Notwithstanding anything to the contrary contained in this
Agreement, the Revolving Credit Notes or any other Loan Document,
(i) the Revolving Credit Commitments (including without limitation
the Borrowers' ability to obtain L/Cs) were terminated on February
15, 2001, and (ii) the Revolving Credit Loans shall mature, and
shall be due and payable in full, on December 31, 2002."
1.2. Section 1.1(b) of the Credit Agreement shall be amended to read as
follows:
"(b) Intentionally omitted."
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1.3. The last paragraph of Section 1.2 of the Credit Agreement shall be
amended to read as follows:
"The Term Loan made by each Term Credit Lender to the
Domestic Borrowers shall be evidenced by a Term Credit Note of
the Domestic Borrowers in the form (with appropriate
insertions) attached hereto as Exhibit B-1 payable to the
order of such Term Credit Lender in the amount of its Term
Loan to the Domestic Borrowers, and each Term Loan made by
each Term Credit Lender to SVS Holland shall be evidenced by a
Term Credit Note of SVS Holland in the form (with appropriate
insertions) attached hereto as Exhibit B-2 payable to the
order of such Term Credit Lender in the amount of its Term
Loan to SVS Holland (such Term Credit Notes are hereinafter
referred to individually as a "Term Credit Note" and
collectively as the "Term Credit Notes"). Notwithstanding
anything to the contrary contained in this Agreement, the
Notes or any other Loan Document, the principal amount of the
Term Loans outstanding on the Third Amendment Effective Date
shall mature in ten (10) installments payable on the dates
specified below and with the aggregate principal amount of
each such installment on all Term Loans to be in the amount
specified below for each payment date:
Principal Payment Date Amount of Principal Payment
---------------------- ---------------------------
July 31, 2001 $ 2,000,000
August 31, 2001 $ 2,000,000
September 30, 2001 $12,000,000
October 31, 2001 $19,000,000
February 28, 2002 $ 2,000,000
March 31, 2002 $ 2,000,000
June 30, 2002 $31,000,000
August 31, 2002 $ 9,000,000
October 31, 2002 $ 5,000,000
December 31, 2002 $99,750,000
The amount of each installment due on the Term Loans
held by each Bank shall be a pro rata part (based on the
percentage of the aggregate principal amount of all Term Loans
then outstanding which is held by each Bank) of each such
aggregate amount."
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1.4. The sixth sentence of Section 1.4(a) of the Credit Agreement shall be
amended by deleting the phrase "for LIBOR Portions of the Revolving Credit
Loans" appearing therein.
1.5. The last sentence of Section 1.4(a) of the Credit Agreement shall be
amended to read as follows:
"All L/C Participation Fees shall be payable monthly in arrears on
the last day of each month and on the final maturity date of the
Revolving Credit Loans (whether by lapse of time, acceleration or
otherwise), and all L/C Administrative Fees and L/C Issuance Fees
shall be payable on the date of issuance of each L/C hereunder and
on the date required by Xxxxxx."
1.6. Section 1.4 of the Credit Agreement shall be amended by adding the
following provision thereto as subsection (d) thereof:
"(d) Notwithstanding anything to the contrary contained in
this Agreement, Xxxxxx may, in its discretion and upon Seminis'
request, extend (including, without limitation, in the case of any
L/C with an expiration date that is automatically extended unless
Xxxxxx gives notice that the expiration date will not be extended
beyond its then scheduled expiration date, by means of not giving a
notice of non- renewal) the expiration date of any L/C outstanding
on the Third Amendment Effective Date to a date not later than
December 31, 2002, provided, that at the time of such extension (or
on the latest date any such notice of non-renewal was required to
be given, if applicable) the conditions precedent contained in
Section 6.2 shall be satisfied."
1.7. Section 1.8(b) of the Credit Agreement shall be amended to read as
follows:
"(b) Intentionally omitted."
1.8. Section 2 of the Credit Agreement shall be amended to read as follows:
"SECTION 2. INTEREST.
Section 2.1. Interest. All Loans shall bear interest (which
the Borrowers jointly and severally promise to pay at the times
herein provided), at the rate per annum determined by adding the
Applicable Margin to the Base Rate as in effect from time to time.
Interest on the Loans shall be payable monthly in arrears on the
last day of each month in each year and at maturity (whether by
lapse of time, acceleration or otherwise) of the applicable Notes
and interest after maturity shall be due and payable upon demand.
Section 2.2. Deferred Interest and L/C Participation Fees. In
addition to the L/C Participation Fees payable pursuant to Section
1.4(a) hereof and the interest accrued pursuant to Section 2.1,
from and after May 1, 2001, through the earlier of the date on
which a Payment Default occurs and March 31, 2002, (x) the L/C
Participation Fee, and (y) interest on all Loans and Reimbursement
Obligations shall accrue at an additional rate per annum equal to
two and a half percent (2.5%) (the
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"Deferred Interest"). The Deferred Interest shall be payable
immediately upon the occurrence of a Payment Default; provided,
however, that (a) if no Payment Default has occurred on or before
December 31, 2001, no Deferred Interest shall be payable with
respect to the period from May 1, 2001, through December 31, 2001,
(b) if no Payment Default occurs between January 1, 2002, and on
or before March 31, 2002, no Deferred Interest will be payable
with respect to the period prior to the occurrence of a Payment
Default from January 1, 2002, and March 31, 2002, and (c) no
Deferred Interest shall accrue for any period during which the
Applicable Margins have been increased by 2.5% due to the
existence of an Event of Default as provided in the first proviso
to the definition of the term "Applicable Margins" contained in
Section 4.1 of this Agreement.
Section 2.3. Computation. All interest on the Notes and all
fees, charges and commissions due hereunder shall be computed on
the basis of a year of 365/366 days for the actual number of days
elapsed unless otherwise specifically provided in this Agreement."
1.9. Section 3.1 of the Credit Agreement shall be amended to read as
follows:
"Section 3.1. Fees and Other Amounts. (a) The Borrowers
agree to pay to the Administrative Agent for the account of the
Banks a restructuring fee in the amount of 2.5% of the aggregate
principal amount of all Loans and Reimbursement Obligations and
the maximum amount available to be drawn under all L/Cs
outstanding on the Third Amendment Effective Date, which shall be
fully earned on said date and shall be payable in four
installments as follows: $776,169 on each of July 31, 2001, August
31, 2001, and June 30, 2002, and $5,433,183 on December 31, 2002;
provided, however, that the installments due on June 30, 2002 and
December 31, 2002 shall not be payable if all Loans and
Reimbursement Obligations have been paid in full and no L/Cs are
outstanding on such dates.
(b) The Additional Margin (as defined in the Modification
Agreement) payable pursuant to Section 14 of the Modification
Agreement for the period beginning December 20, 2000, and ending
April 30, 2001, shall be payable in two equal installments of
$1,140,777.40 payable on May 31, 2001, and June 30, 2001.
(c) The waiver fee payable pursuant to Section 18 of the
Modification Agreement shall be payable in two installments of
$396,281.50 each, payable on May 30, 2001, and June 30, 2001."
1.10. Sections 3.3 and 3.4 of the Credit Agreement shall be amended to read
as follows:
"Section 3.3. Prepayments.
(a) Optional Prepayments. The Borrowers shall have the
privilege of prepaying without premium or penalty and in whole or
in part (but if in part, then in a minimum principal amount of
$500,000 or such greater amount which is an integral multiple of
$500,000) any Loan at any time upon prior telecopy or telephonic
notice
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from Seminis to the Administrative Agent on or before 11:00 a.m.
(Chicago time) on the Business Day of such prepayment. Any amount
prepaid may not be reborrowed.
(b) Mandatory Prepayments. The first $18,000,000 of Net Asset
Sale Proceeds received by Seminis and its Subsidiaries after the
Third Amendment Effective Date shall be used concurrently with
their receipt by any Borrower to prepay the Term Loans then
outstanding ratably in accordance with the outstanding principal
amounts thereof. The next $5,000,000 of Net Asset Sale Proceeds
received by Seminis and its Subsidiaries may be retained by the
Borrowers and used for contingency and working capital purposes.
All Net Asset Sale Proceeds in excess of $23,000,000 shall be used
concurrently with their receipt by any Borrower or Third party
Pledgor to prepay the Term Loans then outstanding ratably in
accordance with the outstanding principal amounts thereof until all
Term Loans have been paid in full and then to prepay the Revolving
Credit Loans then outstanding ratably in accordance with the
outstanding principal amounts thereof. Net Asset Sale Proceeds
received by the Borrowers or any Subsidiary from the Third
Amendment Effective Date through October 31, 2001, shall be applied
to the principal installments on the Term Loans payable in calendar
year 2001 in direct order of their maturities, and all Net Asset
Sale Proceeds received by the Borrowers or any Subsidiary after
October 1, 2001, shall be applied to the principal installments on
the Term Loans as follows: 50% of such Net Asset Sale Proceeds
shall be applied to the principal installments of the Term Loans in
the inverse order of their respective maturities and the remaining
50% of all net Asset Sale Proceeds shall be applied to the
principal installments of the Term Loans in direct order of their
respective maturities; provided, however, that up to 100% of Net
Asset Sale Proceeds received after October 31, 2001, may be
applied, at Seminis' election, to pay up to $20,000,000 of the
principal installment of the Term Loans that is payable on June 30,
2002.
Section 3.4. Intentionally Omitted."
1.11. The following definitions appearing in Section 4.1 of the Credit
Agreement shall be amended and restated in their entirety to read as follows:
"Applicable Margin" shall mean, during each period specified
below, the rate of interest per annum shown below for the range of
the aggregate principal amount of the Loans and Reimbursement
Obligations and the aggregate amount available to be drawn under
all L/Cs outstanding during such period specified below:
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05/01/01 11/01/01 01/01/02 04/01/02 07/01/02
OUTSTANDING through through through through and
DEBT: 10/31/01 12//31/01 03/31/02 06/30/02 thereafter
Level I > $275,000,000 2.50% 3.00% 3.25% 3.50% 3.75%
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Level 2 $245,000,000 to 2.25% 2.25% 2.50% 2.75% 3.00%
$274,999,999
Xxxxx 0 $220,000,000 to 1.75% 1.75% 2.00% 2.25% 2.50%
$244,999,999
Xxxxx 0 <$219,999,999 1.25% 1.25% 1.50% 1.75% 2.00%
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provided, however, that if and so long as any Event of Default has
occurred and is continuing, the Applicable Margins as otherwise
computed hereunder shall be increased by adding 2.5% per annum
thereto.
The Applicable Margins will be adjusted on the first day of
each period specified above and upon each date on which the
outstanding principal amount of the Borrowers' Debt is reduced
(each an "Adjustment Date"). Not later than 2 Business Days after
each Adjustment Date, the Administrative Agent shall determine the
outstanding Debt level for the applicable period and shall promptly
notify the Borrowers and the Banks of such determination and of any
change in the Applicable Margins resulting therefrom. Any such
change in the Applicable Margins shall be effective as of the
relevant Adjustment Date with respect to all Loans outstanding on
such date, and such new Applicable Margins shall continue in effect
until the effective date of the next redetermination in accordance
with this Section. Each determination of the amount of outstanding
Debt and Applicable Margins by the Administrative Agent in
accordance with this Section shall be conclusive and binding on the
Borrowers and the Banks absent manifest error. From the Third
Amendment Effective Date until the Applicable Margins are first
adjusted pursuant hereto, the Applicable Margins shall be those set
forth in Level I.
"EBITDA" shall mean for any period, Net Income for such
period plus all amounts deducted in arriving at such Net Income
amount in respect of (a) Interest Expense, amortization or
write-off of debt discount and debt issuance costs and other fees
and charges associated with Debt (including the Loans), (b)
foreign, federal, state and local income taxes for such period, (c)
all amounts properly charged for depreciation of fixed assets and
amortization of intangible assets during such period, (d)
Extraordinary expenses or losses as defined by generally accepted
accounting principles, consistently applied, (e) losses from sale
of assets outside the ordinary course of business, (f) the legal
and consulting fees for restructuring, (g) unrealized gains or
losses under Interest Rate Protection Agreements, (h) expenses or
charges related to closing or down-sizing facilities or corporate
entities ("Down-Sizing Expenses"), (i) minus (in the case of gains)
or plus (in the case of losses) non-cash charges relating to
foreign currency gains or losses, (j) write-offs of non-cash
inventory, (k) non-cash charges for impairment of long-lived
assets, (l) non-cash minority interest expense, (m) minus non-cash
minority interest income, and (n) plus
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(in the case of items deducted in arriving at Net Income) and minus
(in the case of items added in arriving at Net Income) non-cash
charges resulting from changes in accounting principals; and minus,
to the extent included in the statement of such Net Income for such
period, the sum of (a) interest income, (b) Extraordinary income or
gains as defined by generally accepted accounting principles,
consistently applied, (c) gains on sale of assets outside the
ordinary course of business; provided, however that the amount
added to Net Income pursuant to clauses (d), (e) and (f) and (h)
paid in cash shall not exceed $ 11,500,000 at any time.
"Hungnong" shall mean Seminis Korea Inc., a corporation
organized under the laws of Korea and formerly known as Hungnong
Seed Co., Ltd.
"Interest Coverage Ratio" shall mean, as of any date, the
ratio of (a) EBITDA of Seminis and its Subsidiaries for the 12
consecutive months ended on such date, to (b) the Interest Expense
of Seminis and its Subsidiaries for the same period; provided,
however, that (i) the Interest Coverage Ratio as of June 30, 2001
shall be the ratio of EBITDA of Seminis and its Subsidiaries for
the six month ended on such date to the Interest Expense of Seminis
and its Subsidiaries for the same period, and (ii) the Interest
Coverage Ratio as of September 30, 2001 shall be the ratio of
EBITDA of Seminis and its Subsidiaries for the nine consecutive
months ended on such date to the Interest Expense of Seminis and
its Subsidiaries for the same period.
"Interest Expense" shall mean, with reference to any period,
the sum of all interest charges (including imputed interest charges
with respect to Capitalized Lease Obligations, and all amortization
of debt discount and expense) of Seminis and its Subsidiaries for
such period determined on a consolidated basis in accordance with
generally accepted accounting principles, consistently applied.
"Interest Rate Protection Agreements" shall mean any
interest rate swap, interest rate cap, interest rate collar or
other interest rate hedging agreement or arrangement.
"Net Income" means, with reference to any period, the net
income (or net loss) of Seminis and its Subsidiaries for such
period as computed on a consolidated basis in accordance with
generally accepted accounting principles, consistently applied,
and, without limiting the foregoing, after deduction from gross
income of all expenses and reserves, including reserves for all
taxes on or measured by income.
"Security Documents" shall mean the Security Agreement, the
Intellectual Property Security Agreement, the Current Asset
Security Agreement, the General Security Agreement, the Peto
Notarial Deed of Pledge, the SVS Notarial Deed of Pledge, any and
all other security agreements, mortgages, deeds of trust, pledge
agreements and other instruments and documents that grant or create
a Lien in favor of the Administrative Agent for the benefit of the
Banks, all stock powers delivered in connection therewith, all
acknowledgements and other instruments and documents received
pursuant to any of the foregoing and all financing statements filed
in connection therewith.
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1.12. Section 4.1 of the Credit Agreement shall be amended by adding the
following definitions thereto in the appropriate alphabetical order:
"Cash Flow Projections" shall mean the projected cash flow
from SVS for its fiscal years ending on September 30, 2001 and
September 30, 2002 attached hereto as Exhibit R.
"General Security Agreement" shall mean the General Security
Agreement dated as of December 29, 2000, from Seminis, SVS, and the
other debtors named therein to the Administrative Agent, as the
same may be amended, modified, supplemented or restated from time
to time."
"Modification Agreement" shall mean the Modification and
Interim Waiver Agreement dated as of December 29, 2000, among the
Borrowers, the Agent and the Banks.
"Net Asset Sale Proceeds" shall mean the cash proceeds
received by Seminis or its Subsidiaries in respect of any sale or
other disposition of Property, less (a) any transaction expenses
reasonably incurred by Seminis or its Subsidiaries in respect of
such sale, and (b) (i) the amount of any Debt secured by a Lien on
such Property and required to be discharged from, and actually
discharged from, the proceeds thereof, and (ii) any taxes actually
paid or payable by Seminis or its Subsidiaries concurrently with
the completion of such sale or other disposition or within 30 days
thereafter (as estimated by a senior financial or accounting
officer of Seminis, giving effect to the overall tax position of
the Borrowers); provided, however, that Net Asset Sale Proceeds
shall not include any proceeds from sales or other dispositions of
(x) real estate and improvements thereon located in Saticoy,
California, Filer, Idaho and Rengo, Chile, and (y) any other
Property by any Korean Foreign Subsidiary to the extent and for so
long as such Korean Foreign Subsidiary is prohibited by applicable
law from remitting such proceeds to a Borrower and, if applicable
law permits such a remittance with the consent of any governmental
authority, such consent has been requested and denied.
"Payment Default" shall mean an Event of Default under
Section 8.1(a) hereof.
"Third Amendment Effective Date" shall mean May 31, 2001."
1.13. Section 7.4 of the Credit Agreement shall be amended to read as
follows:
"Section 7.4. Financial Reports. Each Borrower will, and
will cause each Material Subsidiary to, maintain a system of
accounting in accordance with sound accounting practice and will
furnish promptly to each of the Banks and their duly authorized
representatives such information respecting the business and
financial condition of such Borrower and its Material Subsidiaries
as may be reasonably requested and, without any request, Seminis
will furnish each Bank:
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(a) as soon as available, and in any event within 45 days
after the close of each of the first three quarterly fiscal periods
in each fiscal year of Seminis and within 60 days after the close
of the fourth quarterly fiscal period in each fiscal year of
Seminis a copy of consolidated and consolidating balance sheets,
consolidated and consolidating income statements and consolidated
cash flow statements for Seminis and its consolidated Subsidiaries
for such quarterly period and the year to date and for the
corresponding periods of the preceding fiscal year, all in
reasonable detail, prepared by Seminis and certified by the chief
financial officer or vice president world-wide corporate controller
of Seminis;
(b) as soon as available, and in any event within 90 days
after the close of each fiscal year of Seminis, a copy of the audit
report for such year and accompanying financial statements,
including consolidated balance sheets, change in stockholder
equity, statements of income and statements of cash flow for
Seminis and its consolidated Subsidiaries showing in comparative
form the figures for the previous fiscal year of Seminis and its
consolidated Subsidiaries, all in reasonable detail, prepared and
certified by Price Waterhouse LLP or any of the other independent
public accountants of nationally recognized standing commonly known
as the "Big Five" accounting firms selected by Seminis;
(c) no later than 45 days after the last day of each fiscal
quarter in each fiscal year of Seminis and within 60 days after the
close of the fourth quarterly fiscal period in each fiscal year of
Seminis, a Compliance Certificate in the form of Exhibit D attached
hereto, prepared and signed by the chief financial officer or vice
president world-wide corporate controller of Seminis;
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which
Seminis shall have filed with the Securities and Exchange
Commission or any governmental agency substituted therefor, or any
national securities exchange, including copies of Seminis' form
10-K annual report, its form 10-Q quarterly report to the
Securities and Exchange Commission and any Form 8-K filed by
Seminis with the Securities and Exchange Commission;
(e) promptly upon the mailing thereof to the shareholders of
Seminis generally, copies of all financial statements, reports and
proxy statements so mailed; and
(f) as soon as available but in any event within 30 days
after the close of each of the first two months of each fiscal
quarter of Seminis, commencing January, 2001, consolidated balance
sheets, income statements and statements of cash flow for Seminis
and not less than 90% of Seminis' consolidated Subsidiaries for
such month and the year to date period, all in reasonable detail,
prepared by Seminis in accordance with generally accepted
accounting principles, consistently applied, and certified by the
chief financial officer or vice president world-wide corporate
controller of Seminis;
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(g) together with the financial statements delivered
pursuant to Section 7.4(f), a Compliance Certificate in the form
of Exhibit S attached hereto, prepared and signed by the chief
financial officer or vice president world-wide corporate
controller of Seminis;
(h) as soon as available but in any event within 30 days
after the close of each month, commencing December, 2000, a
comparison (including without limitation a detail of grower
payments variance to budget) of Seminis' actual financial
performance for such month and the year to date period (except
that for Seminis' fiscal year ending September 30, 2001, such year
to date comparison shall commence as of December 1, 2000) to the
Cash Flow Projections, all in reasonable detail, prepared by
Seminis and certified by the chief financial officer or vice
president world-wide corporate controller of Seminis;
(i) as soon as available but in any event within 30 days
after the close of each month, commencing April, 2001, a written
report on the progress and status of Seminis' proposed and pending
asset sales, certified by Seminis' chief financial officer or vice
president world-wide corporate controller;
(j) promptly upon receiving or completing the same, copies
of all letters of intent, written offers and purchase agreements
entered into by Seminis and its Subsidiaries in connection with
any asset sale;
(k) as soon as available but in any event within 30 days
after the close of each month, commencing May, 2001, a summary of
Seminis' and its Subsidiaries' accounts receivable aging and
accounts payable aging by major Subsidiary and on a global basis
and an inventory report by major categories of inventory,
including reserves by type, all in reasonable detail, prepared and
certified by Seminis' chief financial officer or vice president
world-wide corporate controller;
(l) no later than the day of each month, lists of the
accounts receivable of SVS Holland and its Subsidiaries (the
"Dutch Pledgors") in the form required by the deeds of pledge
executed and delivered by the Dutch Pledgors to the Administrative
Agent; and
(m) no later than 3 Business Days after any Foreign
Subsidiary incurs any Debt permitted by Section 7.8(g) hereof, a
written notice of such incurrence describing the principal amount
of such Debt and the collateral security therefor, if any."
1.14. Section 7.6(b) of the Credit Agreement shall be amended to read as
follows:
"(b) Intentionally omitted."
1.15. Sections 7.8 and 7.9 of the Credit Agreement shall be amended to
read as follows:
"Section 7.8. Borrowings and Guaranties. Each Borrower will
not, and will not permit any Subsidiary to, issue, incur, assume,
create or have outstanding any
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Debt, nor be or remain liable, whether as endorser, surety,
guarantor or otherwise, for or in respect of any Debt of any other
Person, other than:
(a) indebtedness of the Borrowers arising under or pursuant
to this Agreement or the other Loan Documents;
(b) the liability of the Borrowers and their Subsidiaries
arising out of the endorsement for deposit or collection of
commercial paper received in the ordinary course of business;
(c) indebtedness of the Borrowers and their Subsidiaries
existing on the Third Amendment Effective Date and disclosed on
Schedule 7.8 hereof and any refinancings thereof which do not
increase the principal amount thereof;
(d) indebtedness of (i) any Foreign Subsidiary that is a
member of the Restricted Group to any other Foreign Subsidiary
that is a member of the Restricted Group, and (ii) Seminis and any
Domestic Subsidiary that is a member of the Restricted Group to
Seminis and any other Domestic Subsidiary that is a member of the
Restricted Group;
(e) Debt arising out of any currency or commodity hedging
transactions entered into in the ordinary course of business that
is outstanding on the Third Amendment Effective Date and listed on
Schedule 7.8;
(f) Debt in a principal amount not to exceed $15,000,000 and
on market terms and conditions approved by the Required Banks
(which approval shall not be unreasonably withheld); provided that
the proceeds of such Debt are used solely to repay a portion of
the principal balance of the Loans;
(g) any other Debt of Seminis' Foreign Subsidiaries (other
than SVS Holland's Debt under the Loan Documents) so long as (i)
the aggregate principal amount of all such Debt shall not exceed
[$75,000,000], and (ii) except in the case of Hungnong, Xxxxxx Xxx
and their Korean Subsidiaries, all proceeds thereof in excess of
[$40,000,000] are used by such Foreign Subsidiaries to repay Debt
owed by them to the Borrowers and concurrently used by the
Borrowers to repay Loans outstanding under this Agreement; and
(h) indebtedness incurred to finance the purchase of
machinery and equipment by Seminis and its Domestic Subsidiaries
in the ordinary course of their business as presently conducted,
provided, that the principal amount of such indebtedness does not
exceed the fair market value of the Property acquired with the
proceeds thereof.
Section 7.9. Liens. Each Borrower will not, and will not
permit any Subsidiary to, pledge, mortgage or otherwise encumber
or subject to or permit to exist upon or be subjected to any lien,
charge or security interest of any kind (including any conditional
sale or other title retention agreement and any lease in the
nature thereof),
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on any of its Properties of any kind or character at any time
owned by such Borrower or any Subsidiary, other than:
(a) liens, pledges or deposits for worker's compensation,
unemployment insurance, old age benefits or social security
obligations, taxes, assessments, statutory obligations or other
similar charges, good faith deposits made in connection with
tenders, contracts or leases to which a Borrower or a Subsidiary
is a party or other deposits required to be made in the ordinary
course of business, provided in each case the obligation secured
is not overdue or, if overdue, is being contested in good faith by
appropriate proceedings and adequate reserves have been provided
therefor in accordance with generally accepted accounting
principles and that the obligation is not for borrowed money,
customer advances, trade payables, or obligations to agricultural
producers;
(b) the pledge of assets for the purpose of securing an
appeal or stay or discharge in the course of any legal
proceedings, provided that the aggregate amount of liabilities of
any Borrower or a Subsidiary so secured by a pledge of property
permitted under this subsection (b) including interest and
penalties thereon, if any, shall not be in excess of $10,000,000
at any one time outstanding;
(c) liens, pledges, mortgages, security interests or other
charges existing on the Third Amendment Effective Date and
disclosed on Schedule 7.9 hereto;
(d) liens, pledges, mortgages, security interests and other
encumbrances on Property which secure only indebtedness permitted
by Section 7.8(h) incurred to finance the acquisition of such
Property (but only to the extent of the fair market value of such
Property);
(e) liens for property taxes and assessments or governmental
charges or levies which are not yet due and payable or which are
being contested in good faith by appropriate proceedings and for
which adequate reserves have been established in accordance with
generally accepted accounting principles consistently applied;
(f) liens incidental to the conduct of business or the
ownership of properties and assets (including warehousemen's,
grower's lien and attorneys' liens and statutory landlords' liens)
or other liens of like general nature incurred in the ordinary
course of business and not in connection with the borrowing of
money, provided in each case, the obligation secured is not
overdue or, if overdue, is being contested in good faith by
appropriate actions or proceedings;
(g) minor survey exceptions or minor encumbrances, easements
or reservations, or rights of others for rights-of-way, utilities
and other similar purposes, or zoning or other restrictions as to
the use of real properties, which are necessary for the conduct of
the activities of the Borrowers and their Subsidiaries or which
customarily exist on properties of corporations engaged in similar
activities and similarly situated and which do not in any event
materially impair their use in the operation of the business of
the Borrowers and their Subsidiaries;
-12-
13
(h) liens and security interests in favor of the
Administrative Agent;
(i) liens and security interests in favor of the holders of
liens otherwise permitted hereby in all supporting evidence and
documents relating to any of the above-described property,
including, without limitation, computer programs, disks, tapes and
related electronic data processing media, and all rights of such
Borrower or Subsidiary to retrieve the same from third parties,
written applications, credit information, account cards, payment
records, correspondence, delivery and installation certificates,
invoice copies, delivery receipts, notes and other evidences of
indebtedness, insurance certificates and the like, together with
all books of account, ledgers and cabinets in which the same are
reflected or maintained, all whether now existing or hereafter
arising;
(j) liens and security interests not otherwise permitted
hereby that are granted by Foreign Subsidiaries, provided that (i)
such liens and security interests do not attach to any Collateral,
and (ii) such liens and security interests secure only Debt of the
Foreign Subsidiaries granting such liens that is listed on
Schedule 7.8 attached hereto and Debt of Foreign Subsidiaries
permitted by Section 7.8(g); and
(k) any liens and security interests replacing any of the
foregoing."
1.16. Sections 7.10(b) and (c) of the Credit Agreement shall be amended to
read as follows:
"(b) loans and advances from (i) any Foreign Subsidiary that
is a member of the Restricted Group to any other Foreign
Subsidiary that is a member of the Restricted Group, and (ii)
Seminis and any Domestic Subsidiary that is a member of the
Restricted Group to Seminis and any other Domestic Subsidiary that
is a member of the Restricted Group;
(c) Intentionally omitted;".
1.17. Sections 7.11 of the Credit Agreement shall be amended to read as
follows:
"Section 7.11. Sale of Property. The Borrowers will not and
will not permit any Subsidiary to, sell, lease, assign, transfer
or otherwise dispose of all or any part of their Property to any
other Person during any fiscal year; provided, however, that each
Borrower and their Subsidiaries may make:
(a) sales and other dispositions of Inventory in the
ordinary course of business;
(b) sales or leases of machinery and equipment that is
obsolete, unusable or not needed for such Borrower's or
Subsidiary's operations in the ordinary course of its business;
(c) dispositions permitted by Sections 4 and 6(b) of the
Intellectual Property Security Agreement;
-13-
14
(d) transfers from (i) any Foreign Subsidiary that is a
member of the Restricted Group to any other Foreign Subsidiary
that is a member of the Restricted Group, and (ii) Seminis and any
Domestic Subsidiary that is a member of the Restricted Group to
Seminis and any other Domestic Subsidiary that is a member of the
Restricted Group;
(e) any other sales and dispositions of Property, provided
that, (i) such sales and other dispositions are bona fide sales
and dispositions to unaffiliated third parties negotiated at arm's
length and for a consideration which the relevant Borrower's or
Subsidiary's Board of Directors deems fair value in the exercise
of its business judgment, and (ii) the Net Asset Sale Proceeds of
such sales and dispositions are applied as required by Section
3.3(b) hereof.
The Borrowers shall cause their respective Foreign Subsidiaries to remit to
such Borrower or SVS all Net Asset Sale Proceeds received by such Foreign
Subsidiaries concurrently with their receipt thereof, except to the extent and
for so long as such Foreign Subsidiaries are prohibited by mandatory
provisions of applicable law from so remitting any Korean Net Asset Sale
Proceeds and, if such remittance is permitted with the consent of any
governmental authority, such consent has been requested and denied."
1.18. Section 7.18 of the Credit Agreement shall be amended to read as
follows:
"Section 7.18. Capital Expenditures. without the Required
Banks' prior written consent (which consent will not be
unreasonably withheld), no Borrower shall expend or incur, or
permit any of its Subsidiaries to expend or incur, for:
(a) Capital Expenditures outside of the United States of
America ("International Capital Expenditures") in an amount in
excess of the amounts contemplated in the cash flows for such
Subsidiaries as shown on the Cash Flow Projections,
(b) Capital Expenditures within the United States of America
other than Capital Expenditures in an amount reasonably determined
by Seminis and scheduled on the Cash Flow Projections to be the
minimum amount necessary for the maintenance of the Property of
Seminis and its Domestic Subsidiaries in the United States of
America; or
(c) Capital Expenditures made by Xxxxxx Xxx, Hungnong and
their Subsidiaries, unless such Capital Expenditures are funded
with funds generated by Xxxxxx Xxx, Hungnong and their
Subsidiaries;
provided, however, that the aggregate amount of all International
Capital Expenditures and Capital Expenditures permitted by
subsections (a), (b) and (c) shall not exceed $14,000,000 during
the period commencing April 1, 2001, and ending September 30,
2001, and $16,000,000 during Seminis' fiscal year ending September
30, 2002."
-14-
15
1.19. Sections 7.20, 7.21, 7.22 and 7.23 of the Credit Agreement shall be
to read as follows:
"Section 7.20. Minimum Interest Coverage Ratio. Seminis
shall maintain an Interest Coverage Ratio as of the last day of
each fiscal quarter of Seminis of not less than the ratio
specified for such date below:
INTEREST COVERAGE RATIO
FISCAL QUARTER ENDING SHALL NOT BE LESS THAN
--------------------- ----------------------
June 30, 2001 [3.00 to 1]
September 30, 2001 [2.20 to 1]
December 31, 2001 [2.04 to 1]
March 31, 2002 [1.42 to 1]
June 30, 2002 [1.74 to 1]
September 30, 2002 [1.85 to 1]
Section 7.21. Intentionally omitted.
Section 7.22. Maximum Debt Ratio. Seminis shall not permit,
as of the last day of any fiscal quarter, its Debt Ratio to be
greater than the ratio specified for such date below:
DEBT RATIO SHALL NOT BE
FISCAL QUARTER ENDING GREATER THAN
--------------------- ------------------------
June 30, 2001 [11.50 to 1]
September 30, 2001 [6.00 to 1]
December 31, 2001 [6.00 to 1]
March 31, 2002 [5.00 to 1]
June 30, 2002 [5.00 to 1]
September 30, 2002 [4.00 to 1]"
Section 7.23. Minimum EBITDA. (a) Cumulative. Seminis shall
maintain EBITDA for each period commencing on the first day of
each fiscal year specified below and ending on the last day of
each fiscal quarter specified below in an amount not less than the
amount specified below for such period:
EBITDA FOR PERIODS
FISCAL YEAR FISCAL QUARTER SHALL NOT BE LESS
ENDING ENDING THAN
----------- -------------- --------------------
September 30, 2001 June 30, 2001 [$43,363,000]
September 30, 2001 September 30, 2001 [$60,351,000]
September 30, 2002 December 31, 2001 [-$11,749,700]
September 30, 2002 March 31, 2002 [$35,105,300]
September 30, 2002 June 30, 2002 [$51,192,300]
September 30, 2002 September 30, 2002 [$73,419,300]
-15-
16
(b) Quarterly. Seminis shall maintain EBITDA for each fiscal
quarter specified below in an amount not less than the amount
specified below for such fiscal quarter:
EBITDA FOR PERIODS SHALL NOT
FISCAL QUARTER ENDING BE LESS THAN
--------------------- -----------------------------
June 30, 2001 [$7,506,000]
September 30, 2001 [$10,713,000]
December 31, 2001 [-$11,749,700]
March 31, 2002 [$38,697,300]
June 30, 2002 [$7,929,000]
September 30, 2002 [$14,069,300]
1.20. Section 7.26 of the Credit Agreement shall be amended to read as
follows:
"Section 7.26. Restricted Payments. Seminis will not:
(a) declare or pay any dividends or other distributions,
either in cash or Property, on any capital stock of Seminis (except
distributions payable solely in capital stock of Seminis); or
(b) directly or indirectly, through any Subsidiary or
otherwise, purchase, redeem or retire any of its capital stock or
make any other payment or distribution, either directly or
indirectly, through any Subsidiary or otherwise, in respect of its
capital stock, other than in consideration for the issuance or sale
of capital stock of Seminis;
(such purchases, redemptions or retirements of equity interests and
all such dividends and other distributions and all such payments,
prepayments, redemptions, acquisitions and set-offs being herein
collectively "Restricted Payments"); provided, however, that so
long as no Event of Default or Potential Default shall exist both
before and after giving effect thereto, Seminis may make the
following Restricted Payments:
(i) Seminis may pay dividends in an aggregate amount of up
to $2,000,000 in each year on its Class B Preferred Stock, provided
that concurrently with the payment of such dividends the Borrowers
shall repay the Term Loans and, if all Term Loans have been fully
paid, the Revolving Credit Loans, in an aggregate principal amount
equal to three times the amount of such dividends; and
(ii) Seminis may pay dividends on its Class C Preferred
Stock so long as such dividends are paid solely in additional
shares of Class C Preferred Stock."
1.21. The Credit Agreement shall be amended by adding the following
provisions thereto as Sections 7.29 and 7.30:
"Section 7.29. Additional Collateral Matters. (a) The
Borrowers will, and will cause their respective Subsidiaries to,
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17
(i) provide to the Administrative Agent all information regarding
the valuation of the Spanish patents and trademarks necessary to
complete the Spanish security documents at the times specified on
Schedule 7.29 (as such times may be extended by the Administrative
Agent in its sole discretion) and all information regarding the
value of the real estate collateral as the Administrative Agent
requests in order to obtain title insurance on the real estate
collateral and record the Georgia real estate mortgages (or
equivalent), and (ii) proceed to convert its Chilean Subsidiary
from a non-stock entity into a stock entity and thereafter grant to
the Administrative Agent for the benefit of the Banks a security
interest in 65% of such Subsidiary's issued and outstanding stock.
(b) No later than June 30, 2001, (or such later date as the
Administrative Agent and Seminis may agree upon with respect to
Collateral located outside the United States) the Borrowers will,
and will cause their Subsidiaries to, execute and deliver to the
Administrative Agent such amendments and supplements to the
Security Documents to which they are a party as the Administrative
Agent may request in order to ensure that the Liens granted to it
pursuant thereto secure the Term Loans as extended by the last
paragraph of Section 1.2 and the Revolving Credit Loans as extended
by the last paragraph of Section 1.1(a).
Section 7.30. Retention of Investment Bank. No later than
June 15, 2001, Seminis shall retain a nationally recognized
investment banking firm or other nationally recognized
professionals for that purpose to assist Seminis in evaluating its
capital structure and lines of business, including, without
limitation, evaluating the capital structure of Seminis and its
Subsidiaries, identifying alternative sources of equity capital and
debt financing for Seminis and its Subsidiaries and assisting
Seminis in identifying and evaluating assets to be sold by Seminis
and its Subsidiaries. No later than July 31, 2001, Seminis and such
investment banking firm or other professionals shall meet with the
Banks and present their proposed time line for the foregoing."
1.22. Section 8.1(a) of the Credit Agreement shall be amended to read as
follows:
"(a)(i) Default in the payment when due of any principal of
or interest (including without limitation Deferred Interest) on any
Note or any Reimbursement Obligation, whether at the stated
maturity thereof or at any other time provided in this Agreement,
or (ii) default in the payment when due of any other fee or other
amount payable by any Borrower pursuant to this Agreement;".
1.23. Section 8.1(b) of the Credit Agreement shall be amended to read as
follows:
"(b) Default in the observance or performance of any covenant
set forth in Sections 7.4, 7.6, 7.8, 7.9, 7.10, 7.11, 7.16, 7.17,
7.18, 7.20, 7.21, 7.22, 7.23, 7.24, 7.26, 7.27, 7.29 or 7.30 hereof
or of any provision of any of the Security Documents requiring the
maintenance of insurance on the Collateral subject thereto or
dealing with the use or remittance of proceeds of such
Collateral;".
1.24. Section 10 of the Credit Agreement shall be amended by adding the
following provision thereto as Section 10.16:
-17-
18
"Section 10.16. Authorization to Release Liens. The
Administrative Agent is hereby irrevocably authorized by each of
the Banks to release (a) any liens and security interests covering
any Property of the Borrowers or any of their Subsidiaries that is
the subject of a sale or other disposition which is permitted by
this Agreement or which has been consented to in accordance with
Section 12.1, and (b) its security interest in 15/65 of the shares
of capital stock of Xxxxxx Xxx pledged to it and sold to Hungnong."
1.25. Clause (a)(iv ) of Section 12.17 of the Credit Agreement shall be
amended to read as follows:
"(iv) the Administrative Agent must consent, which consent
shall not be unreasonably withheld, to each such assignment
(provided no such consent is required for any assignment to any
affiliate of the assigning Bank),".
1.26. Section 12.1 of the Credit Agreement shall be amended to read as
follows:
"Section 12.1. Amendments and Waivers Any term, covenant,
agreement or condition of this Agreement and the other Loan
Documents may be amended only by a written amendment executed by
the Borrowers, the Required Banks and, if the rights or duties of
an Agent are affected thereby, such Agent, or compliance therewith
only may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Borrowers shall
have obtained the consent in writing of the Required Banks and, if
the rights or duties of an Agent are affected thereby, such Agent,
provided, however, that:
(a) without the consent in writing of the holders of all
outstanding Notes and unpaid Reimbursement Obligations, or all
Banks if no Notes or Reimbursement Obligations are outstanding, no
such amendment or waiver shall (i) change the amount or postpone
the date of payment of any scheduled payment or required prepayment
of principal of the Notes or Reimbursement Obligations or extend
the term of any L/C at a time that the Borrowers would not be able
to obtain a Loan or L/C hereunder or reduce the rate or extend the
time of payment of interest on the Notes or Reimbursement
Obligations, or reduce the amount of principal thereof, or modify
any of the provisions of the Notes with respect to the payment or
prepayment thereof, (ii) give to any Note or Reimbursement
Obligations any preference over any other Notes or Reimbursement
Obligations, (iii) amend the definition of Required Banks, (iv)
alter, modify or amend the provisions of this Section 12.1, (v)
change the amount or term of any of the Banks' Revolving Credit
Commitments, (vi) alter, modify or amend the provisions of Section
6.1 of this Agreement, (vii) alter, modify or amend any Bank's
right hereunder to consent to any action, make any request or give
any notice, (viii) release any Borrower from its obligations
hereunder, including without limitation release any Domestic
Borrower from its obligations as a guarantor under Section 11 of
this Agreement, (ix) except as permitted by the Loan Documents,
release any of the Collateral; or (x) reduce any fee payable to the
Administrative Agent or the Banks pursuant to this Agreement or
extend the time for payment thereof;
-18-
19
(b) without the consent of all of the Term Credit Lenders no
such amendment or waiver shall alter, modify, waive or amend the
provisions of Section 6.2 with respect to any requested Term Loan;
and
(c) without the consent of all of the Revolving Credit
Lenders no such amendment or waiver shall alter, modify, waive or
amend the provisions of Section 6.2 of this Agreement with respect
to any Revolving Credit Loan or L/C.
Any such amendment or waiver shall apply equally to all Banks and
the holders of the Notes and Reimbursement Obligations and shall be
binding upon them, upon each future holder of any Note and
Reimbursement Obligation and upon each Borrower, whether or not
such Note shall have been marked to indicate such amendment or
waiver. No such amendment or waiver shall extend to or affect any
obligation not expressly amended or waived."
1.27. Exhibit D and Schedules 7.8 and 7.9 to the Credit Agreement shall be
replaced by Exhibit D and Schedules 7.8 and 7.9 attached hereto, respectively.
1.28. The Credit Agreement shall be amended by adding thereto as Exhibits R
and S and Schedule 7.29 the forms attached to this Amendment as Exhibits R and S
and Schedule 7.29, respectively.
1.29. The Borrowers acknowledge and agree that until all of the Borrowers'
indebtedness, obligations and liabilities to the Administrative Agent and the
Banks have been fully paid and all L/Cs have terminated or expired, the
Administrative Agent may in its discretion retain Ernst & Young (or other
consultants selected by the Administrative Agent) as a financial consultant to
the Administrative Agent in connection with this Agreement, the transactions
contemplated hereby, the Collateral and any proposed changes to the Borrowers'
capital structure and asset sales to be made by the Borrowers and their
Subsidiaries. The Borrowers further agree to pay to the Administrative Agent, on
demand, all fees and expenses of Ernst & Young (or such other consultants, if
applicable) up to an aggregate amount of $50,000 per calendar quarter commencing
with the calendar quarter ending on , 2001.
2. CONDITIONS PRECEDENT.
This Amendment shall become effective upon the satisfaction of all of the
following conditions precedent:
2.1. The Administrative Agent, the Banks and the Borrowers shall have
executed and delivered this Amendment.
2.2. The Borrowers shall have delivered to the Administrative Agent for
the benefit of the Banks in sufficient counterparts for distribution to the
Banks:
(a) copies of the Articles of Incorporation, and all
amendments thereto, of each Domestic Borrower, certified by the
Secretary of State of its state of incorporation not earlier than
May 1, 2001;
-19-
20
(b) copies of the Articles of Association of SVS Holland,
certified as true, correct and complete on the date hereof by a
Managing Director of SVS Holland;
(c) copies of the By-Laws, and all amendments thereto, of
each Domestic Borrower, certified as true, correct and complete on
the date hereof by the Secretary or Assistant Secretary of each
Domestic Borrower;
(d) good standing certificates for each Domestic Borrower
issued by the Secretary of State of the state of its incorporation
and each state in which it is qualified to do business as a foreign
corporation, dated no earlier than May 1, 2001;
(e) copies, certified as true, correct and complete by the
Secretary or Assistant Secretary of each Domestic Borrower and a
Managing Director of SVS Holland, of resolutions regarding the
transactions contemplated by this Amendment, duly adopted by the
Board of Directors of each Domestic Borrower and the Managing
Director of SVS Holland, respectively, and satisfactory in form and
substance to all of the Banks;
(f) an incumbency and signature certificate for each
Borrower satisfactory in form and substance to all of the Banks;.
2.3. Legal matters incident to the execution and delivery of this
Agreement and the other Loan Documents contemplated hereby shall be satisfactory
to each of the Banks and their legal counsel; and the Administrative Agent shall
have received the favorable written opinion of Milbank, Tweed, Xxxxxx & XxXxxx,
L.L.P., counsel for the Domestic Borrowers, substantially in the form of Exhibit
T, and the favorable written opinion of Stibbe Simont Xxxxxxx Duhot, counsel to
SVS Holland and SVS Europe, substantially in the form of Exhibit U.
2.4. Each of the representations and warranties set forth in Section 5 of
the Credit Agreement shall be and remain true and correct as to each of the
Borrowers, except that the representations and warranties made under Section 5.2
(except the last sentence thereof) shall be deemed to refer to the most recent
financial statements furnished to the Banks pursuant to Section 7.4 of the
Credit Agreement.
2.5. No Potential Default or Event of Default shall have occurred and be
continuing.
2.6. The Borrowers shall have paid the Administrative Agent such fees and
expenses, including legal fees and the fees for the Administrative Agent's
industry consultants and financial consultants, for which the Administrative
Agent has submitted an invoice.
2.7. The Borrowers and their Subsidiaries shall have executed and
delivered to the Administrative Agent or its counsel all documents, instruments,
certificates and other items required in order to grant to the Administrative
Agent valid and perfected lien in the collateral agreed upon in Brazil, Chile,
Korea, Mexico and Spain, and shall have made authorized officers available to
the Administrative Agent and its counsel to the extent necessary for such liens
and security interests to be perfected in a manner satisfactory to the
Administrative Agent and its counsel in each of those countries.
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21
2.8. The Dutch Pledgors shall have executed and delivered to the
Administrative Agent lists that are current as of May 25, 2001, of their
accounts receivable in the form required by the deeds of pledge executed and
delivered by the Dutch Pledgors to the Administrative Agent.
3. REPRESENTATIONS AND WARRANTIES.
The Borrowers represent and warrant to the Administrative Agent and the
Banks as follows:
3.1. Each of the representations and warranties set forth in Section 5 of
the Credit Agreement are true and correct as to each of the Borrowers as of the
effective date hereof, except that the representations and warranties made under
Section 5.2 (except the last sentence thereof) shall be deemed to refer to the
most recent financial statements furnished to the Banks pursuant to Section 7.4
of the Credit Agreement.
3.2. The Borrowers are in full compliance with all of the terms and
conditions of the Loan Documents and no Event of Default or Potential Default
shall have occurred and be continuing thereunder or shall result after giving
effect to this Amendment.
4. MISCELLANEOUS.
4.1. The Borrowers have heretofore executed and delivered to the
Administrative Agent certain Security Documents, and the Borrowers hereby agree
that the Security Documents shall secure all of the Borrowers' indebtedness,
obligations and liabilities to the Administrative Agent and the Banks under the
Credit Agreement as amended by this Amendment, that notwithstanding the
execution and delivery of this Amendment, the Security Documents shall be and
remain in full force and effect and that any rights and remedies of the
Administrative Agent thereunder, obligations of the Borrowers thereunder and any
liens or security interests created or provided for thereunder shall be and
remain in full force and effect and shall not be affected, impaired or
discharged thereby. Nothing herein contained shall in any manner affect or
impair the priority of the liens and security interests created and provided for
by the Security Documents as to the indebtedness which would be secured thereby
prior to giving effect to this Amendment.
4.2. Each Borrower hereby represents, warrants, acknowledges and agrees
that (i) there are no set offs, counterclaims or defenses against the Notes, the
Credit Agreement (as amended or otherwise modified hereby) or any other Loan
Documents (as amended or otherwise modified hereby or by the security agreement
amendments) and (ii) there are no claims (absolute or contingent or matured or
unmatured) or causes of action by any Borrower against any Bank or any Agent in
connection with the Credit Agreement, the Notes and the other Loan Documents.
Notwithstanding the immediately preceding sentence and as further consideration
for the agreements and understandings contained herein, each Borrower hereby
releases the Agents and the Banks, their respective predecessors, officers,
directors, employees, agents, attorneys, affiliates, subsidiaries, successors
and assigns, from any liability, claim, right or cause of action which now
exists or hereafter arises as a result of acts, omissions or events occurring on
or prior to the date hereof, whether known or unknown, in connection with the
Credit Agreement, the Notes and the other Loan Documents.
-21-
22
4.3. Reference to this specific Amendment need not be made in any note,
document, letter, certificate, the Credit Agreement itself, or any communication
issued or made pursuant to or with respect to the Credit Agreement, any
reference to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
4.4. This Amendment may be executed in any number of counterparts, and by
the different parties on different counterparts, all of which taken together
shall constitute one and the same agreement. Any of the parties hereby may
execute this Amendment by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original. This Amendment
shall be governed by the internal laws of the State of Illinois.
-22-
23
Upon acceptance hereof by the Administrative Agent and the Banks in the
manner hereinafter set forth, this Amendment shall be a contract between us for
the purposes hereinabove set forth.
Dated as of May 31, 2001.
SEMINIS, INC.
By
------------------------------------
Its
---------------------------------
SEMINIS VEGETABLE SEEDS, INC.
By
------------------------------------
Its
---------------------------------
SVS HOLLAND B.V
By
------------------------------------
Its
---------------------------------
-23-
24
Accepted and agreed to as of the day and year last above written.
XXXXXX TRUST AND SAVINGS BANK,
individually and as Administrative
Agent
By
---------------------------------------
Its Vice President
CREDIT AGRICOLE INDOSUEZ
By
------------------------------------
Its
---------------------------------
By
------------------------------------
Its
---------------------------------
BANK OF AMERICA, N.A.
By
------------------------------------
Its
---------------------------------
THE BANK OF NOVA SCOTIA
By
------------------------------------
Its
---------------------------------
COMERICA BANK
By
------------------------------------
Its
---------------------------------
BANK ONE, NA
By
------------------------------------
Its
---------------------------------
-24-
25
BNP PARIBAS
By
------------------------------------
Its
---------------------------------
By
------------------------------------
Its
---------------------------------
UNION BANK OF CALIFORNIA, N.A.
By
------------------------------------
Its
---------------------------------
FLEET NATIONAL BANK
By
------------------------------------
Its
---------------------------------
FORTIS CAPITAL CORP.
By
------------------------------------
Its
---------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch
By
------------------------------------
Its
---------------------------------
SANWA BANK CALIFORNIA
By
------------------------------------
Its
---------------------------------
-25-
26
THE FUJI BANK, LIMITED
By
------------------------------------
Its
---------------------------------
THE MITSUBISHI TRUST & BANKING
CORPORATION
By
------------------------------------
Its
---------------------------------
US BANCORP AG CREDIT, INC.
By
------------------------------------
Its
---------------------------------
THE DAI-ICHI KANGYO BANK, LTD.
By
------------------------------------
Its
---------------------------------
-26-
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EXHIBIT D
SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
SVS HOLLAND B.V.
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Xxxxxx Trust and Savings Bank
and the other Banks (collectively, the "Banks") and Xxxxxx Trust and Savings
Bank as Administrative Agent (the "Administrative Agent") for the Banks,
pursuant to that certain Credit Agreement dated as of June 28, 1999, as amended,
by and among Seminis, Inc., a Delaware corporation ("Seminis"), Seminis
Vegetable Seeds, Inc., a California corporation, and SVS Holland B.V., a private
company with limited liability incorporated under the laws of The Netherlands
(the "Borrowers") and the Banks (the "Agreement"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected chief financial officer or vice
president world-wide corporate controller of Seminis;
2. I have reviewed the terms of the Agreement and I have made,
or have caused to be made under my supervision, a detailed review of
the transactions and conditions of the Borrowers during the
accounting period covered by the attached financial statements
sufficient for me to provide this Certificate;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event
which constitutes a Potential Default or Event of Default during or
at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate, except
as set forth below; and
4. If attached financial statements are being furnished
pursuant to Section 7.4(a) of the Agreement, Schedule I attached
hereto sets forth financial data and computations evidencing the
Borrowers' compliance with certain covenants of the Agreement, all
of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrowers have taken, are taking or proposes to
take with respect to each such condition or event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
28
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this __ day of ________ , 200_.
-----------------------------------------
D-2
29
SCHEDULE 1
TO COMPLIANCE CERTIFICATE
SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
SVS HOLLAND B.V.
COMPLIANCE CALCULATIONS FOR
CREDIT AGREEMENT DATED AS OF JUNE 28, 1999, AS AMENDED
CALCULATIONS AS OF , 200_
SECTION 7.20. MINIMUM INTEREST COVERAGE RATIO..
(a) EBITDA (see attached computation) ....................... $_______
(b) Interest Expense ........................................ $_______
(c) Interest Coverage Ratio
((a)/(b)) ............................................... _____to 1*
*Required to be no less than____ to 1
Compliance .............................................. Yes____
.............................................. No_______
SECTION 7.22. MAXIMUM DEBT RATIO.
(a) Debt .................................................... $_______
(b) EBITDA .................................................. $_______
(c) Debt Ratio ((a)/(b)) .................................... _____to 1(*)
*Required to be no greater than_____to 1
Compliance .............................................. Yes____
.............................................. No______
SECTION 7.23. MINIMUM EBITDA.
A. Cumulative
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(a) Cumulative EBITDA ....................................... $_______*
*Required to be no less than $________
Compliance .............................................. Yes____
.............................................. No_______
B. Quarterly
(c) Quarterly EBITDA $_______*
*Required to be no less than $________
Compliance Yes____
.............................................. No_______
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EXHIBIT R
CASH FLOW PROJECTIONS
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EXHIBIT S
SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
SVS HOLLAND B.V.
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Xxxxxx Trust and Savings Bank
and the other Banks (collectively, the "Banks") and Xxxxxx Trust and Savings
Bank as Administrative Agent (the "Administrative Agent") for the Banks,
pursuant to that certain Credit Agreement dated as of June 28, 1999, as amended,
by and among Seminis, Inc., a Delaware corporation ("Seminis"), Seminis
Vegetable Seeds, Inc., a California corporation, and SVS Holland B.V., a private
company with limited liability incorporated under the laws of The Netherlands
(the "Borrowers") and the Banks (the "Agreement"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected chief financial officer or vice
president world-wide corporate controller of Seminis;
2. I have reviewed the terms of the Agreement and I have made,
or have caused to be made under my supervision, a detailed review of
the transactions and conditions of the Borrowers during the
accounting period covered by the attached financial statements
sufficient for me to provide this Certificate;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event
which constitutes a Potential Default or Event of Default during or
at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate, except
as set forth below; and
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrowers have taken, are taking or proposes to
take with respect to each such condition or event:
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The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this __ day of ________ , 200_.
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EXHIBIT T
OPINION OF MILBANK, TWEED, XXXXXX &
XXXXXX, L.L.P.
35
EXHIBIT U
OPINION OF STIBBE SIMONT XXXXXXX DUHOT
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SCHEDULE 7.8
EXISTING INDEBTEDNESS
37
SCHEDULE 7.9
EXISTING LIENS
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SCHEDULE 7.29
ADDITIONAL COLLATERAL MATTERS
1. The Borrowers will provide all information relating to Spanish patents
and trademarks described in Section 7.29(a)(i) no later than June 30, 2001.
2. The Borrowers shall provide all information relating to real estate
values described in Section 7.29(a)(i) no later than June 15, 2001.
3. Seminis shall convert its Chilean Subsidiary into a stock company and
grant the Administrative Agent a security interest in 65% of its stock as
described in Section 7.29(a)(ii) no later than August 31, 2001.
4. The Borrowers and their Subsidiaries will execute and deliver to the
Administrative Agent the Security Documents for collateral located in Chile
(other than the collateral described in 3 above) no later than 10 Business Days
after the Foreign Ministry of Chile legalizes the relevant powers of attorney
executed by Seminis and its Subsidiaries and for the collateral located in Spain
no later July 31, 2001.
