LOAN AGREEMENT
This Loan Agreement ("Agreement") is made as of April 1, 1997 between Mycogen
Corporation, a California corporation (the "Lender"), and DowElanco, an
Indiana general partnership (the "Borrower").
The parties hereto have agreed and do hereby agree as follows:
1. THE LOAN
1.1 The Advance
From the above date to April 1, 1998, the Lender agrees to make
from time to time advances to the Borrower ("Advances"), in an
aggregate amount not exceeding $50,000,000 (fifty million U.S.
dollars), at any time outstanding ("Commitment"). Lender must
receive Borrower's request for an advance by 9:00 a.m. Eastern
Standard Time if the advance is to be made that day. Advances
repaid prior to April 1, 1998, may be reborrowed. This Agreement
involves U.S. dollars only.
1.2 Repayment
Repayment may be made at any time, provided that the final
repayment be made on or prior to April 1, 1998.
1.3 Cancellation/Reduction
From time to time and upon 30 days written notice, the Borrower or
Lender may at any time permanently reduce the Commitment and the
unpaid principal and all interest shall be due and payable
immediately.
1.4 Evidence of Debt
The Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower
resulting from the Loan and the amounts of principal and interest
payable and paid from time to time hereunder. In any legal action
or proceeding in respect of the Agreement, the entries made in such
account or accounts shall, unless in case of obvious or manifest
error, be conclusive evidence of the existence and amounts of the
obligations of the Borrower therein recorded.
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1.5 Interest
The Loan shall bear interest from day to day at Borrower's rate of
deposit, as advised from time to time by Borrower, minus 1/8% per
annum payable every three months from the date hereof to maturity
on the outstanding balance.
2. EVENTS OF DEFAULT
In the event that:
(A) The Borrower fails to pay any sum payable hereunder when due; or
(B) The Borrower defaults in the due performance and observance of
any other term of this Agreement and such default is not
remedied within 15 days after notice of such default; or
(C) The Borrower goes bankrupt or becomes insolvent or is subject
to a receivership either voluntary or compulsory; or
(D) Any order is made or law, decree, regulation or resolution
passed for the liquidation, winding up or dissolution of the
Borrower; or
(E) All or any substantial part of the business or assets of the
Borrower is expropriated, nationalized, compulsorily acquired
or taken into public ownership or the Borrower ceases to be
able or entitled to exercise the rights of control or
ownership of the same; or
(F) The Borrower ceases to be directly or indirectly controlled by
The Dow Chemical Company, Midland, Michigan, U.S.A.,
then and in any such event, and at any time thereafter if any such event
shall then be continuing, the Lender may, by written notice to the Borrower
declare the Loan immediately due and payable whereupon the same shall
become immediately due and payable together with all interest accrued
thereon and all other amounts payable hereunder, including all interest
accrued on any past due principal, to the extent permitted by law.
3. REPRESENTATIONS AND WARRANTIES OF BORROWER. The Borrower represents and
warrants as follows:
(A) The Borrower is an Indiana general partnership;
(B) The execution, delivery and performance by the Borrower of
this Agreement are within the Borrower's powers, have been duly
authorized by all necessary action, and do not contravene (i) the
Borrower's
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Partnership Agreement or Authorization Policy or (ii) any law or
any judgment or contractual restriction binding on or affecting
the Borrower;
(C) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory
body which has not already been obtained or made is required
for the due execution, delivery and performance by the
Borrower of this Agreement; and
(D) This Agreement is the legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance
with its terms.
4. COVENANTS OF THE BORROWER; REPORTING REQUIREMENTS. So long as the Loan
shall remain unpaid, the Borrower will, unless the Lender shall otherwise
consent in writing, furnish to the Lender:
(A) As soon as practicable, in any event within five Business Days
after the occurrence of each Event of Default, or each event
which with notice or lapse of time or both would become an
Event of Default, which is continuing on the date of such
statement, a statement of an authorized representative of the
Borrower setting forth details of such Event of Default or
event and the action which the Borrower proposes to take with
respect thereto; and
(B) Such other information respecting the business, properties or
the condition or operations, financial or otherwise, of the
Borrower as the Lender may from time to time reasonably
request.
5. COSTS AND EXPENSES
The Borrower agrees to pay on demand all losses and all costs and
expenses, if any, in connection with the enforcement of this Agreement
and any instruments or other documents delivered hereunder, including,
without limitation, losses, costs and expenses sustained as a result of
a default by the Borrower in the performance of its obligations
contained in this Agreement or any instrument or document delivered
hereunder.
6. ALTERNATIVE DISPUTE RESOLUTION
The parties shall negotiate in good faith to resolve any dispute arising
out of or relating to this Agreement. In the event that the parties
fail to resolve a dispute by good faith negotiations, or if either party
deems a resolution by such means to be improbable, either party may
initiate mediation of the dispute upon written notice to the other
party. Such mediation shall be conducted promptly in accordance with
the Center for Public Resources Model Procedure for Mediation of
Business Disputes. If, within 60 days after notice of mediation, the
parties have failed to resolve the dispute by mediation, either party
may propose binding arbitration or
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initiate litigation. If either party requests mediation, it shall occur
in Indianapolis, Indiana.
7. CHANGE OF CONTROL. After any change of Control (as defined below) of the
Borrower, the Lender may, at its option, upon notice to the Borrower
declare all principal, interest, and other amounts payable under this
Agreement to be immediately due and payable, whereupon the same shall
become immediately due and payable.
8. DEFINITIONS. Capitalized terms as to which such capitalization would not
be required in accordance with standard rules of grammar shall have the
meanings specified below.
"Affiliate" means, with respect to each party hereto, a party that
directly, or indirectly, through one or more intermediaries, controls or
is controlled by, or is under common control with, the party specified.
The term "control" is defined below. For purposes of this Agreement,
Lender is not an Affiliate of Borrower.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banking institutions in Indianapolis, Indiana are required or
authorized by law to suspend operations.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of any
individual, corporation, partnership, unincorporated association or
other entity, whether through the ownership of voting stock, by contract
or otherwise. A person who is the owner of 20% or more of a
corporation's outstanding voting stock shall be deemed to have Control
of such corporation.
9. MISCELLANEOUS
The Borrower agrees to take all such steps and actions and to execute
and to deliver and/or cause to be delivered all such further documents
and instruments as may be necessary at any time or times in the
reasonable opinion of the Lender to establish, maintain and protect the
rights of the Lender hereunder and generally to carry out the true intent
of this Agreement.
10. ASSIGNMENT
This agreement may not be assigned in whole or in part by Lender
without the express written consent of the other party. This Agreement
may be assigned by Borrower to any Affiliate.
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11. SUCCESSORS
This Agreement and any instrument or document executed in accordance
herewith shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assignees.
12. GOVERNING LAW
This Agreement and any instruments or other documents executed in
accordance herewith shall be governed by and construed in accordance
with the laws of the State of Indiana.
13. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or any
instrument delivered hereunder, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by an authorized representative of the
Lender and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date first written above.
LENDER: BORROWER:
DowElanco Mycogen Corporation
By: /s/ Sean S. Skinner By: /s/ James A. Baumker
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Printed: Sean S. Skinner Printed: James A. Baumker
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Title: Treasurer Title: VP CFO
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Date: 5/20/97 Date: 6/10/97
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