Exhibit 10.13
SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
SVS HOLLAND B.V.
THIRD AMENDMENT TO CREDIT AGREEMENT
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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."
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"). 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."
-2-
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
(scheduled to be December 31, 2002) 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 ▇▇▇▇▇▇."
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, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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
-3-
accrue at an additional rate per annum equal to two and a half
percent (2.5%) (the "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 from
January 1, 2002 through March 31, 2002, and (c) no Deferred
Interest shall accrue for any period during which the Applicable
Margins have been previously 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 pro rata 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 31, 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
-4-
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 the Borrowers after the Third
Amendment Effective Date shall be used 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 the Borrowers 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 received by
the Borrowers after the Third Amendment Effective Date shall be
used 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. Each prepayment
required by this Section shall be made no later than the Business
Day following the date on which such Net Asset Sale Proceeds are
immediately available to any Borrower. Net Asset Sale Proceeds
received by the Borrowers 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 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 (collectively, the "Bank
Debt") specified below:
-5-
05/01/01 11/01/01 01/01/02 04/01/02 07/01/02
OUTSTANDING through through through through and
Bank 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%
▇▇▇▇▇ ▇ $245,000,000 2.25% 2.25% 2.50% 2.75% 3.00%
to $274,999,999
▇▇▇▇▇ ▇ $220,000,000 1.75% 1.75% 2.00% 2.25% 2.50%
to $244,999,999
▇▇▇▇▇ ▇ ** $219,999,999 1.25% 1.25% 1.50% 1.75% 2.00%
* Greater than or equal to
** Less than or equal to
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; and provided further, that in the case of any
Event of Default resulting from non-compliance with any of
Sections 7.18, 7.20, 7.22 and 7.23 such increase in the
Applicable Margin shall be effective as of the date of the
financial statements showing such non-compliance regardless of
when such financial statements are actually delivered to the
Banks.
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' Bank Debt is
reduced (each an "Adjustment Date"). Not later than 2 Business
Days after each Adjustment Date, the Administrative Agent shall
determine the outstanding Bank 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 Bank 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
-6-
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) non-cash write-offs of 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 (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 principles; 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 aggregate amount paid in
cash and added to Net Income pursuant to clauses (d), (f) and (h)
for the period commencing January 1, 2001 through September 30,
2002, shall not exceed $11,500,000.
"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 consecutive months 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
-7-
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.
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 other than sales or dispositions
permitted by Sections 7.11(a), (b), (c) (to the extent of
licenses granted in the ordinary course of business as presently
conducted) and (d) hereof, 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 Foreign Subsidiary to
the extent and for so long as such Foreign Subsidiary is
prohibited by mandatory provisions of applicable law from
remitting such proceeds to a Borrower or, if applicable law
permits such a remittance with the consent of any governmental
authority, such consent has been requested and has not been
granted.
"Payment Default" shall mean an Event of Default under
Section 8.1(a)(i) 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:
-8-
"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:
(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,
together with any management letters delivered by such
accountants to 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
-9-
(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 and income statements and 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;
(g) together with the financial statements delivered
pursuant to Section 7.4(f), an Officer's 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 April, 2001, 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 May, 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 outside the ordinary course of business;
(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 summary by type and grower 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 15th 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) at the Agent's request, but no more frequently than
once a month, Seminis shall participate on conference calls with
the Agent and the Banks to discuss the results of the Borrowers'
and their Subsidiaries' operations and to report any
-10-
material progress on the matters on which they are being assisted
by an investment banking firm or other professional pursuant to
Section 7.30 hereof."
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 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,
except in the case of Debt incurred by Hungnong, ▇▇▇▇▇▇ ▇▇▇ and
their Korean Subsidiaries, all proceeds thereof in an aggregate
amount which, together with the aggregate principal amount of all
Debt permitted by Section 7.8(c) hereof exceeds $50,000,000, 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
-11-
(h) indebtedness (other than indebtedness permitted by
subsection (g) above) 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 (i) the principal amount of such indebtedness does
not exceed the fair market value of the Property acquired with
the proceeds thereof and (ii) the principal amount of all such
indebtedness shall not exceed $10,000,000.
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), 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
-12-
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;
(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. Section 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
-13-
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;
(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 fair value (and, in the case of sales or
other dispositions of Property having a fair market value in
excess of $10,000,000, 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 Subsidiaries to remit to such
Borrower or SVS all Net Asset Sale Proceeds received by such
Subsidiaries no later than the Business Day following the date on which
such Net Asset Sale Proceeds are immediately available to such
Subsidiary (or, in the case of the Borrowers' Korean Subsidiaries, as
soon as all corporate actions necessary to authorize such remittance
have been completed), except to the extent and for so long as any
Foreign Subsidiaries are prohibited by mandatory provisions of
applicable law from so remitting any Net Asset Sale Proceeds or, if such
remittance is permitted with the consent of any governmental authority,
such consent has been requested and has not been granted."
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
-14-
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 ▇▇▇▇▇▇ ▇▇▇, Hungnong and
their Subsidiaries, unless such Capital Expenditures are funded
with funds generated by ▇▇▇▇▇▇ ▇▇▇, 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."
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 SHALL NOT
FISCAL QUARTER ENDING BE LESS THAN
June 30, 2001 1.75 to 1
September 30, 2001 1.65 to 1
December 31, 2001 1.15 to 1
March 31, 2002 1.45 to 1
June 30, 2002 1.55 to 1
September 30, 2002 1.75 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:
-15-
DEBT RATIO SHALL NOT BE
FISCAL QUARTER ENDING GREATER THAN
June 30, 2001 11.50 to 1
September 30, 2001 6.30 to 1
December 31, 2001 6.15 to 1
March 31, 2002 5.20 to 1
June 30, 2002 4.55 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 (i) January
1, 2001, with respect to each fiscal quarter ending in the fiscal
year ending September 30, 2001, and (ii) October 1, 2001, with
respect to each fiscal quarter ending in the fiscal year ending
September 30, 2002, 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 SHALL
FISCAL YEAR ENDING FISCAL QUARTER ENDING NOT BE LESS 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
(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 BE
FISCAL QUARTER ENDING 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 $7,929,300
September 30, 2002 $14,069,300
-16-
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
Domestic Borrowers shall make principal prepayments on the Term
Loans in addition to the principal payments required by Sections
1.2 and 3.3(b) hereof 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,
at the times specified on Schedule 7.29 (as such times may be
extended by the Administrative Agent in its sole discretion) (i)
provide to the Administrative Agent all information regarding the
valuation of the Spanish patents and trademarks necessary to
complete the Spanish security documents 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, and (iii) execute and deliver to
the Administrative Agent and its counsel all documents,
instruments, certificates and other items required in order to
grant the Administrative
-17-
Agent valid and perfected liens in the collateral agreed upon in
Chile (other than the equity interests in its Chilean Subsidiary)
and Spain.
(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 of any fee (including without limitation fees
payable pursuant to Sections 1.4(a), 3.1 and 3.2 hereof) or other
amounts payable by any Borrower to the Administrative Agent or
any Bank pursuant to 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 or
7.29 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:
"Section 10.16. Authorization to Release Liens. The
Administrative Agent is hereby irrevocably authorized by each of
the Banks to release (a) any liens
-18-
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% of the total issued and outstanding
shares of capital stock of ▇▇▇▇▇▇ ▇▇▇ 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 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)
intentionally omitted, (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 Banks pursuant to this Agreement or extend the
time for payment thereof, including without limitation, all fees
required by Section 3.1 hereof;
(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
-19-
(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) provided that so long as no Event of Default shall have occurred and
be continuing the amount payable by the Borrowers pursuant hereto shall not
exceed $50,000 per calendar quarter commencing with the calendar quarter ending
on September 30, 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;
(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;
-20-
(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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
counsel for the Domestic Borrowers, substantially in the form of Exhibit T, and
the favorable written opinion of Stibbe Simont ▇▇▇▇▇▇▇ 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 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
-21-
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
has occurred and is 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.
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-
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-
Accepted and agreed to as of the day and year last above written.
▇▇▇▇▇▇ 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-
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
----------------------------------
By
Its
----------------------------------
-25-
SANWA BANK CALIFORNIA
By
Its
----------------------------------
THE FUJI BANK, LIMITED
By
Its
----------------------------------
THE MITSUBISHI TRUST & BANKING
CORPORATION
By
Its
----------------------------------
U.S. BANK NATIONAL ASSOCIATION
By
Its
----------------------------------
THE DAI-ICHI KANGYO BANK, LTD.
By
Its
----------------------------------
-26-
EXHIBIT D
SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
SVS HOLLAND B.V.
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to ▇▇▇▇▇▇ Trust and Savings
Bank and the other Banks (collectively, the "Banks") and ▇▇▇▇▇▇ 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:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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_.
SEMINIS, INC.
By
Its
----------------------------------
D-2
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
(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_____
-2-
EXHIBIT R
CASH FLOW PROJECTIONS
EXHIBIT S
SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
SVS HOLLAND B.V.
OFFICER'S CERTIFICATE
This Officer's Certificate is furnished to ▇▇▇▇▇▇ Trust and Savings Bank
and the other Banks (collectively, the "Banks") and ▇▇▇▇▇▇ 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 Officer's 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. During the period covered by this Officer's Certificate,
Seminis' Foreign Subsidiaries have not incurred Debt permitted by
Section 7.8(g), except as set forth below:
NAME OF FOREIGN SUBSIDIARY PRINCIPAL AMOUNT COLLATERAL
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:
------------------------------------------------------------------------
------------------------------------------------------------------------
The foregoing certifications are made and delivered this _____ day of
_______________________, 200_.
SEMINIS, INC.
By
Its
----------------------------------
S-2
EXHIBIT T
OPINION OF MILBANK, TWEED, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP
EXHIBIT U
OPINION OF STIBBE SIMONT ▇▇▇▇▇▇▇ DUHOT
SCHEDULE 7.8
EXISTING INDEBTEDNESS
-----------------------------------------------------------------------------
Company Long Term Debt Revolving Lines of Credit
-----------------------------------------------------------------------------
SVS US 17,014,010 -
SVS Holland 410,969 -
▇▇▇▇▇▇ 845,415 -
Garden Holland - 81,471
Incotec NL - 199,232
SVS Chile - 8,825,053 *1
SVS Argentina - -
SVS Peru 937,610 250,000
Hungnong Seeds 1,304,214 28,317,518
▇▇▇▇▇▇ ▇▇▇ Seeds 882,859 2,259,376
SVS South Africa 9,634 -
SVS India 20,812 752,627
Selekta 903 -
Asgrow Italia - 1,261,140
RS Italia 44,259 -
Peto Italiana 588,389 5,178,602
SVS Iberica 780,240 4,406,245 *2
Gammavivai - 681,267
Jasco - 492,264
SVS France 800,008 923,100 *3
SVS Germany 130,634 -
SVS U.K. - 716,640
Incotec Japan 819,421 -
-------------------- --------------------
Total 24,589,377 54,344,535
-----------------------------------------------------------------------------
----------------
1 Chile's current line with ▇▇▇▇▇▇▇ Bank is frozen. Additional $5.0 million
credit line may be available dependent on the outcome of the Syndicated
bank agreement in the US.
2 Iberica potentially has $0.4 million additional credit line available upon
finalization of Syndicated agreement.
3 France has approximately $4.3 million potential credit line available once
the agreement with the Syndicated bank is finalized.
SCHEDULE 7.9
EXISTING LIENS
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.