SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
SVS HOLLAND B.V.
FOURTH AMENDMENT TO CREDIT AGREEMENT
Harris 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 Harris 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. The last sentence of the last paragraph of Section 1.1(a) of
the Credit Agreement shall be amended to read as follows:
"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
January 14, 2003."
1.2. The amortization table appearing in the last paragraph of
Section 1.2 of the Credit Agreement shall be amended to read as follows:
PRINCIPAL PAYMENT DATE AMOUNT OF PRINCIPAL PAYMENT
---------------------- ---------------------------
July 31, 200l $ 2,000,000
August 31, 200l $ 2,000,000
September 30, 200l $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
January 14, 2003 $99,282,389
1.3. 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 January 14, 2003) 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 Harris."
1.4. 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, Harris may, in its discretion and
upon Seminis' request, replace, renew or extend (including,
without limitation, in the case of any L/C with an expiration
date that is automatically extended unless Harris 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
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outstanding on the Fourth Amendment Effective Date to a date
not later than December 31, 2003; provided, however, that at
the time of such replacement, renewal or 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; and provided further, that
without any notice or demand by the Administrative Agent or
any Bank, on January 14, 2003, the Borrowers shall deposit
with the Administrative Agent cash collateral in an amount
equal to 110% of the amount available to be drawn under all
L/Cs outstanding on such date, which the Administrative Agent
shall hold as collateral security for the Borrowers'
indebtedness, obligations and liabilities to the
Administrative Agent and the Banks relating to such L/Cs.."
1.5. Section 2.1 of the Credit Agreement shall be amended to read
as follows:
"Section 2.1. Interest. All Loans and unpaid
Reimbursement Obligations shall bear interest (which the
Borrowers jointly and severally promise to pay at the times
herein provided), at the rate per annum equal to 9%, provided
that upon the occurrence and during the continuation of an
Event of Default all Loans and unpaid Reimbursement
Obligations shall bear interest (which the Borrowers jointly
and severally promise to pay at the times herein provided), at
the rate per annum equal to 11.5%. 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."
1.6. Section 3.1(a) 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 five installments as follows: $776,169 on
each of July 31, 2001, August 31, 2001, and June 30, 2002, and
$1,358,296 on December 31, 2002, and $4,074,887 on the earlier
of January 14, 2003 and the date on which all Loans and
Reimbursement Obligations have been paid in full and no L/Cs
are outstanding. The unpaid balance of the final installment
in the amount of $4,074,887 shall bear interest at the rate
per annum of 15% from December 31, 2002, until such
installment is paid in full"
1.7. Sections 3.3(b) of the Credit Agreement shall be amended to
read as follows:
"(b) Mandatory Prepayments. All Net Asset Sale
Proceeds received by the Borrowers after the Fourth 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
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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. All Net Asset Sale Proceeds received by the
Borrowers from the Fourth Amendment Effective Date shall be
applied to the principal installments on the Term Loans in the
inverse order of their respective maturities."
1.8. The definition of the term "Applicable Margin" appearing in
Section 4.1 of the Credit Agreement shall be deleted.
1.9. Section 4.1 of the Credit Agreement shall be amended by adding
the following definitions thereto in the appropriate alphabetical order:
"Fourth Amendment Effective Date" shall mean
December 31,2002.
"Fox Paine" shall mean Fox Paine & Company, LLC.
"Investment Transaction" shall mean the transactions
described in the Preliminary Letter of Intent.
"Preliminary Letter of Intent" shall mean the
Non-Binding Letter of Intent dated as of December 13, 2002,
among Fox Paine, Savia, Alfonso Romo Garza, Fideicomiso 167-5
and Servasa, S.A. de C.V.
1.10. Section 7.4 of the Credit Agreement shall be amended
by replacing the period appearing at the end of subsection (m) thereof with a
semi-colon and by adding the following provisions thereto as subsections (n),
(o), (p) and q):
(n) as soon as available, and in any event
within one (1) Business Day after the execution thereof, a
copy of a signed letter of intent among Fox Paine, Savia,
Seminis and any other parties thereto regarding definitive
terms for the Investment Transaction consistent with the terms
of the Preliminary Letter of Intent or otherwise acceptable to
the Required Banks
(o) as soon as available, and in any event
within one (1) Business Day after their receipt by Seminis,
copies of all approvals and consents necessary in order to
consummate the Investment Transaction;
(p) as soon as available, and in any event
within one (1) Business Day after the execution thereof,
copies of all documents and agreements among Savia, Pulsar,
Seminis, Fox Paine and others relating to the Investment
Transaction, including without limitation all registration
statements, reports, documents or disclosure materials, if
any, which Seminis, Savia, Pulsar or Fox Paine shall have
filed with the Securities and Exchange Commission or any
governmental agency substituted therefor, or any national
securities exchange; and
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(q) promptly upon the issuance thereof copies of
all press releases issued by Savia, Pulsar or Seminis in
connection with the Investment Transaction."
1.11. Sections 7.20,7.22 and 7.23 of the Credit Agreement shall be
to read as follows:
"Section 7.20. Intentionally omitted.
Section 7.22. Intentionally omitted.
Section 7.23. Intentionally omitted."
1.12. The Credit Agreement shall be amended by adding the following
provisions thereto as Sections 7.31 and 7.32:
"Section 7.31. Additional Matters. (a) The Borrowers
will not, and will not permit their respective Subsidiaries
to, pay, agree to pay or otherwise become liable for any
break-up or other fees in connection with the Investment
Transaction (it being agreed and understood that the foregoing
shall not prevent Seminis from paying its own costs and
expenses incident to the Investment Transaction such as board
costs relating to the board's review of the fairness of the
Investment Transaction to Seminis' shareholders and the costs
of arranging Seminis' financing.
(b) Notwithstanding any provision of this
Agreement and the other Loan Documents, Seminis will not, and
will not permit their respective Subsidiaries to, directly or
indirectly pay in cash or Property or reimburse Savia or any
of it Affiliates any management or similar fees.
Section 7.32. Parent Lenders. If any lenders to Savia
or Pulsar whose indebtedness is secured by liens on any
preferred or common capital stock of Seminis shall take any
action to enforce their rights as creditors of Savia or
Pulsar, respectively, at the Required Banks' request Seminis
(a) shall promptly and diligently proceed with a transaction
in the private or public debt markets to refinance and pay in
full all of the Borrowers' indebtedness, obligations and
liabilities to the Banks and the Administrative Agent under
the Loan Documents and (b) within 30 day of such request by
the Required Banks, retain a financial advisor, investment
banking firm and/or bank syndication agent to assist it in
that process and shall have presented the Banks with a plan
for such refinancing prepared with the assistance of its
advisors."
1.13. 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, 7.31 or 7.32 hereof or of any provision of any of
the
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Security Documents requiring the maintenance of insurance on
the Collateral subject thereto or dealing with the use or
remittance of proceeds of such Collateral;".
1.14. Section 8.1 of the Credit Agreement shall be amended by
deleting the period appearing at the end of subsection (1) thereof with "; or"
and by adding the following provisions thereto as subsection (m) thereof:
"(m) The Investment Transaction is terminated by
any reason, or any party thereto indicates that it is
unwilling or unable to proceed with the Investment
Transaction."
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. 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.
2.3. No Potential Default or Event of Default shall have occurred
and be continuing.
2.4. 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.
2.5. The Borrowers and the Banks shall have agreed upon a term
sheet for an extension of the Credit Agreement through December 31, 2003
subject to customary acceptable documentation and lender credit approval
requirements.
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.
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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.
4.5. No later than January 8, 2003, the Borrowers shall deliver to
the Administrative Agent for the benefit of the Banks in sufficient counterparts
for distribution to the Banks:
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(a) 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; and
(b) an incumbency and signature certificate for each Borrower
satisfactory in form and substance to all of the Banks.
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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 December 31, 2002.
SEMINIS, INC.
By /s/ ENRIQUE OSORIO
Its________________________
SEMINIS VEGETABLE SEEDS, INC.
By /s/ ENRIQUE OSORIO
Its________________________
SVS HOLLAND B.V.
By /s/ GASPAR ALVAREZ
Its________________________
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Accepted and agreed to as of the day and year last above written.
HARRIS TRUST AND SAVINGS BANK,
individually and as Administrative Agent
By /s/ BETSY ERDELYI
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Its Vice President
CREDIT AGRICOLE INDOSUEZ
By /s/ Kathleen M. Sweeney
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Its Vice President
Kathleen M. Sweeney
By /s/ Rene LeBlanc
----------------------------------------
Its Vice President
BANK OF AMERICA, N.A.
By /s/ M. Duncan McDuffie
----------------------------------------
Its Managing Director
M. Duncan McDuffie
THE BANK OF NOVA SCOTIA
By /s/ Mark Sparrow
----------------------------------------
Its Director
Mark Sparrow
COMERICA BANK
By /s/ Ernest M. Zarb
----------------------------------------
Ernest M. Zarb
Its Senior Vice President
BANK ONE, NA
By /s/ Henry W. Howe
----------------------------------------
Henry W. Howe
Its Officer
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UNION BANK OF CALIFORNIA, N.A.
By /s/ Jeffrey Mumm
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Its Vice President
Jeffrey Mumm
FLEET NATIONAL BANK
By /s/ Kali Ramachandran
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Its Vice President
Kali Ramachandran
FORTIS CAPITAL CORP.
By /s/ JOHN C. PRENETA Stephen Suo
----------------------------------------
Its Executive Vice President
John C. Preneta Stephen Suo
A.V.P.
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch
By /s/ Ivan Rodriguez
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Its Vice President
Ivan Rodriguez
By /s/ Ian Reece
----------------------------------------
Its Managing Director
Ian Reece
BANK OF THE WEST
By /s/ Kathleen Stone
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Its Vice President
MIZUHO CORPORATE BANK
By /s/ Masahito Fukuda
----------------------------------------
Its Senior Vice President
Masahito Fukuda
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U.S. BANK NATIONAL ASSOCIATION
By /s/ Harold Nelson
---------------------------------
Its V.P.
KZH HIGHLAND 2 LLC
By /s/ Susan Lee
---------------------------------
Its Authorized Agent