RESTATED LOAN AGREEMENT
This Restated Loan Agreement ("Agreement") is made as of April 16, 1998 between
Dow AgroSciences LLC, a Delaware limited liability company (the "Lender"), and
Mycoyen S.A., an Argentine corporation (the "Borrower") (together, the
"parties").
WHEREAS, Mycogen Corporation has executed an Assignment of Loan dated April 16,
1998, assigning to Lender all of its rights, title and interest to a certain
Revolving Loan Agreement dated January 1, 1997, between Mycogen Corporation,
successor in interest to Agrigenetics, Inc., and Borrower, and
WHEREAS, the parties agree to restate the Revolving Loan Agreement in its
entirety;
NOW, THEREFORE, the parties hereto have agreed and do hereby agree as follows:
1. THE LOAN
1.1 The Advance
From the above date to December 31, 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"). Advances repaid
prior to December 31, 1998, may be reborrowed. This Agreement involves
U.S. dollars only. The term "Termination Date" shall mean December 31,
1998. Borrower must give notice to Lender by 9:00 a.m. Eastern
Standard Time on any Business Day if Advances are requested for that
day.
1.2 Repayment
(a) The unpaid principal amount of each Advance shall be due and
payable on the last Business Day of the term of each Advance
(each, a "Maturity Date"). Notwithstanding the foregoing, the
unpaid principal amount of the Loan shall be due and payable on
the Termination Date.
(b) Interest on the unpaid principal amount of the Loan shall be
capitalized and added to the unpaid principal amount of the Loan
on the first Business Day of each month. Notwithstanding the
foregoing, all accrued and unpaid interest is due and payable on
the Repayment date.
(c) Repayment may be made at any time, provided that the final
repayment be made on or prior to December 31, 1998. Borrower must
receive Lender's request for repayment by 9:00 a.m. Eastern
-1-
Standard Time on an Business Day if repayment is to be made that
day.
1.3 Cancellation/Reduction
As provided under 2, EVENTS OF DEFAULT, 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.
1.5 Interest
(a) The Loan shall bear interest from day to day at an interest rate
per annum
(i) From the date of this Agreement until the Maturity Date
equal to the lesser of
(x) LIBOR, as defined below, plus 0.375%, or
(y) the maximum rate allowable by law (the "Interest
Rate").
(ii) "LIBOR" means the rate of deposits in U.S. dollars for a
period of one month which appears on the Telerate page 3750
as of 11:00 a.m., London time, on the date that is two
Business days prior to the first day of the Interest Period.
Interest accrues on the unpaid principal amount of each
Advance from the date of each Advance and is payable in
accordance with Section 1.2.
(b) The Interest Rate for each Interest Period is calculated by
Lender prior to each interest Period. Such calculation is
conclusive and binding absent manifest error.
(c) Interest is calculated on the basis of a 360-day year for actual
days occurring during the Interest Period.
-2-
(d) "Interest Period" means the period commencing on the first
Business Day of each month and ending on the day immediately
preceding the first Business Day of the succeeding month.
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 Lender,
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 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 represent and
warrants as follows:
(A) The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the Republic of Argentina;
(B) The execution, delivery and performance by the Borrower of this
Agreement are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene
(i) the Borrower's Articles of Formation or By-laws or (ii) any law or
any judgment or contractual restriction binding on or affecting the
Borrower;
-3-
(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 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 initiate litigation. If either party requests
mediation, it shall occur in Indianapolis, Indiana.
-4-
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, Borrower is not an Affiliate of Lender.
"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 in the 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 Borrower
without the express written consent of the other party. This Agreement
may be assigned by Lender to any Affiliate.
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.
-5-
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date first written above.
LENDER: BORROWER:
Dow AgroSciences LLC Mycoyen S.A.
By: /s/ Sean S. Skinner By: [Illegible]
---------------------------- ---------------------------
Printed: Sean S. Skinner Printed: [Illegible]
----------------------- ----------------------
Title: Treasurer Title: Vice President
------------------------- ------------------------
Date: 5/15/98 Date:
-------------------------- -------------------------
[Illegible]
-6-