BIOTECHNICA INTERNATIONAL, INC.
SIXTH AMENDMENT TO SECURED REVOLVING CREDIT AGREEMENT
AND FOURTH AMENDMENT TO SECURED REVOLVING CREDIT NOTE
Xxxxxx Trust and Savings Bank
Chicago, Illinois
Gentlemen:
Reference is hereby made to that certain Secured Revolving Credit
Agreement dated as of October 26, 1993, as amended (the "Credit
Agreement") between the undersigned, BioTechnica International, Inc., a
Delaware corporation (the "Company") and you (the "Bank"). All
capitalized terms used herein without definition shall have the same
meanings herein as such terms have in the Credit Agreement.
The Company has requested that the Bank make certain amendments to the
Credit Agreement and the Bank is willing to do so under the terms and
conditions set forth in this Amendment.
1. AMENDMENTS
Upon your acceptance hereof in the space provided for that purpose
below, and the satisfaction of the conditions precedent set forth in
Section 2 hereof, the Credit Agreement and the Note shall be and hereby
are amended as follows:
1.1 Section 1.1 of the Credit Agreement shall be restated in its
entirety to read as follows:
"SECTION 1.1. AMOUNT OF OUTSTANDING CREDIT. (a) The maximum aggregate
principal amount of the Revolving Credit at any one time outstanding
hereunder shall not exceed the lesser of (i) $12,000,000 (such amount,
as reduced pursuant to this Agreement is referred to as the "Bank's
Commitment") from the date hereof through December 1, 1996 (the
"Termination Date"), or (ii) the then Borrowing Base as determined in
the most recent Borrowing Base Certificate, and may be availed by the
Company from time to time, be repaid and used again, during the period
from the date hereof through the Termination Date. Loans under the
Revolving Credit may be Domestic Rate Loans or Eurodollar Rate Loans or
Offered Rate Loans (each as hereinafter defined). Each Fixed Rate Loan
shall be in an amount of $1,000,000 or such greater amount as is an
integral multiple of $100,000 and each Domestic Rate Loan shall be in an
amount of $100,000 or such greater amount as is an integral multiple of
$100,000."
1.2 Section 1.2 of the Credit Agreement shall be amended by restating
the third sentence thereof as follows:
"The Bank shall record on its books or records or on a schedule to the
Note, the amount of each loan made by it under the Revolving Credit, all
payments of principal and interest and the principal balance from time
to time outstanding and the interest rate and Interest Period applicable
to each Fixed Rate Loan, provided that prior to transfer of the Note all
such amounts shall be recorded on the schedule to the Note."
1.3 Sections 1.3 and 1.4 of the Credit Agreement shall be restated in
their entirety to read as follows:
"SECTION 1.3. APPLICABLE INTEREST RATES. (a) All Domestic Rate Loans
hereunder shall bear interest (computed on the basis of a year of 360
days and actual days elapsed) on the unpaid principal amount thereof
from the date such loan is made until maturity (whether by acceleration
or otherwise) at a rate per annum equal to the Domestic Rate from time
to time in effect, payable monthly on the last day of each calendar
month in each year, commencing on the first such date occurring after
the date of this Agreement, and at maturity (whether by acceleration or
otherwise).
(b) Each Eurodollar Rate Loan shall bear interest (computed on the
basis of a year of 360 days and actual days elapsed) on the unpaid
principal amount thereof from the date such Eurodollar Rate Loan is made
until the last day of the Interest Period applicable thereto and at
maturity (whether by acceleration or otherwise) at the rate per annum
equal to the sum of three-quarters of one percent (0.75%) plus the
Adjusted Eurodollar Rate for the Interest Period applicable thereto,
payable on the last day of the Interest Period applicable thereto and at
maturity (whether by acceleration or otherwise) and, with respect to
Interest Periods of greater than three months, on the date occurring
every three months after the day such Interest Period began.
(c) Each Offered Rate Loan shall bear interest (computed on the basis
of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Offered Rate Loan is made until the
last day of the Interest Period applicable thereto and at maturity
(whether by acceleration or otherwise) at the Offered Rate for such
Interest Period. Interest on each Offered Rate Loan shall be due and
payable on the last day of each Interest Period applicable thereto and,
with respect to any Interest Period applicable to an Offered Rate Loan
in excess of ninety (90) days, on the date occurring every ninety (90)
days after the date such Interest Period began and at the end of such
Interest Period. The Company shall notify the Bank on or before 11:00
a.m. (Chicago time) on the Business Day preceding the end of an Interest
Period applicable to an Offered Rate Loan whether such Offered Rate Loan
is to continue as an Offered Rate Loan, in which event the Company shall
notify the Bank of the new Interest Period selected therefor, and in the
event the Company shall fail to so notify the Bank, such Offered Rate
Loan shall automatically be converted into and added to the Domestic
Rate Loan as of and on the last day of such Interest Period. The
Company understands and agrees that the Bank has no obligation to quote
Offered Rates or to make any Offered Rate Loan available to the Company,
that the Bank may refuse to make any such Offered Rate Loan after
receiving a request therefor from the Company, and that any such Offered
Rate Loan made available to the Company shall be subject to such other
terms and conditions are mutually agreed upon by the Company and the
Bank.
(d) If any payment of principal on any loan is not made when due, such
unpaid amount shall bear interest (computed on the basis of a year of
360 days and actual days elapsed) from the date such payment was due
until paid in full, payable on demand, at a rate per annum equal to:
(i) with respect to any Domestic Rate Loan, the sum of 2% plus the
Domestic Rate from time to time in effect; and
(ii) with respect to any Fixed Rate Loan, the sum of 2% plus the rate
of interest in effect thereon at the time of such default until the end
of the Interest Period then applicable thereto, and, thereafter, at a
rate per annum equal to the sum of 2% plus the Domestic Rate from time
to time in effect.
SECTION 1.4. MANNER OF BORROWING. The Company shall notify the Bank
(i) by 1:30 p.m. (Chicago time) on the date any Domestic Rate Loan is to
be made, (ii) by 11:00 a.m. (Chicago time) at least three (3) Business
Days prior to the date upon which the Company requests that any
Eurodollar Rate Loan be made or that any part of the Domestic Rate Loan
or any part of an Offered Rate Portion be converted into a Eurodollar
Rate Loan and (iii) by 11:00 a.m. (Chicago time) at least one (1)
Business Day prior to the date upon which the Company requests that any
Offered Rate Loan be made or that any part of the Domestic Rate Loan or
any part of a Eurodollar Rate Loan be converted into an Offered Rate
Loan (each such notice to specify in each instance the amount thereof
and the Interest Period selected therefor). If any request is made to
convert a Fixed Rate Loan into another type of loan available hereunder,
such conversion shall only be made so as to become effective as of the
last day of the Interest Period applicable thereto. All requests for
the creation, continuance and conversion of loans under this Agreement
shall be irrevocable. Such requests may be written or oral and the Bank
is hereby authorized to honor telephonic requests for creations,
continuances and conversions received by it from any person the Bank in
good faith believes to be an authorized representative of the Company
without the need of independent investigation, the Company hereby
indemnifying the Bank from any liability or loss ensuing from so acting.
The proceeds of each loan made under the Revolving Credit shall be made
available to the Company be being deposited in its account with the Bank
or to such other account as the Company may direct in writing at the
time a loan is requested as provided in this SECTION 1.4; PROVIDED,
HOWEVER, that if prior to the time the Bank has disbursed the proceeds
of such loan an Event of Default or Potential Default shall have
occurred, the Bank shall not be required to disburse such loan."
1.4 Section 2.2 of the Credit Agreement shall be amended by deleting
the last sentence thereof and substituting therefor the following:
"The Company may not prepay any Fixed Rate Loan. Unless the Company
directs otherwise, principal payments shall first be applied to Domestic
Rate Loans until payment in full thereof, with any balance applied to
the Fixed Rate Loans in the order in which their Interest Periods
expire."
1.5 The definition of the term "Eligible Receivables" appearing in
Section 4.1 of the Credit Agreement shall be amended by replacing
subsection (d) thereof with the following:
"(d) it has not remained unpaid in whole or in part for (i) more than
sixty (60) days past its due date or (ii) if during the period from July
1st through November 30th of any calendar year, more than ninety (90)
days past its due date PROVIDED such Receivable appears on the most
recent list of past due Receivables delivered to the Bank pursuant to
Section 7.4(d) hereof;"
1.6 The definition of the term "Interest Period" appearing in Section
4.1 of the Credit Agreement shall be restated in its entirety to read as
follows:
""INTEREST PERIOD" means, with respect to (a) any Eurodollar Rate Loan,
the period commencing on, as the case may be, the creation, continuation
or conversion date with respect to such Eurodollar Rate Loan and ending
one (1), two (2), three (3) or six (6) months thereafter as selected by
the Company in its notice as provided herein and (b) any Offered Rate
Loan, the period commencing on, as the case may be, the creation,
continuation or conversion date with respect to such Offered Rate Loan
and ending five (5) to ninety (90) days thereafter as selected by the
Company in its notice as provided herein; PROVIDED THAT, all of the
foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next
succeeding Business Day, unless in the case of an Interest Period for a
Eurodollar Rate Loan the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) no Interest Period may extend beyond the final maturity date of
the Note;
(iii) the interest rate to be applicable to each Fixed Rate Loan for
each Interest Period shall apply from and including the first day of
such Interest Period to but excluding the last day thereof; and
(iv) no Interest Period may be selected if after giving effect thereto
the Company will be unable to make a principal payment scheduled to be
made during such Interest Period without paying part of a Fixed Rate
Loan on a date other than the last day of the Interest Period applicable
thereto.
For purposes of determining an Interest Period, a month means a period
starting on one day in a calendar month and ending on a numerically
corresponding day in the next calendar month, provided, however, if an
Interest Period begins on the last day of a month or if there is no
numerically corresponding day in the month in which an Interest Period
is to end, then such Interest Period shall end on the last Business Day
of such month."
1.7 Section 4 of the Credit Agreement shall be amended by inserting the
following new definitions in the appropriate alphabetical order:
""FIXED RATE LOAN" means and includes Eurodollar Rate Loans and Offered
Rate Loans, unless the context in which such term is used shall
otherwise require.
"OFFERED RATE" shall mean the rate per annum quoted to the Company by
the Bank for the applicable Interest Period, such Offered Rate being
subject at all times to the provisions of Section 1.3(c) hereof.
"OFFERED RATE LOAN" shall mean a loan hereunder bearing interest as
provided in Section 1.3(c) hereof."
1.8 Section 9 of the Credit Agreement shall be restated in its entirety
to read as follows:
"SECTION 9. CHANGE IN CIRCUMSTANCES REGARDING FIXED RATE LOANS.
SECTION 9.1. CHANGE OF LAW. Notwithstanding any other provisions of
this Agreement or the Note, if at any time the Bank shall determine in
good faith that any change in applicable law or regulation or in the
interpretation thereof makes it unlawful for the Bank to make or
continue to maintain any Fixed Rate Loan or to give effect to its
obligations as contemplated hereby, the Bank shall promptly give notice
thereof to the Company. Company shall prepay on demand the outstanding
principal amount of any such affected Fixed Rate Loan made to it,
together with all interest accrued thereon and all other amounts due and
payable to the Bank under this Agreement; PROVIDED, HOWEVER, the Company
may then elect to borrow the principal amount of such affected Fixed
Rate Loan by means of another type of loan available hereunder, subject
to all of the terms and conditions of this Agreement.
SECTION 9.2. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN
ADJUSTED EURODOLLAR RATE. Notwithstanding any other provision of this
Agreement or of the Note, if prior to the commencement of any Interest
Period, the Bank shall determine that deposits in the amount of any
Eurodollar Rate Loan scheduled to be outstanding during such Interest
Period are not readily available to the Bank in the relevant market or
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Adjusted Eurodollar
Rate, then the Bank shall promptly give notice thereof to the Company
and the obligations of the Bank to create, continue or effect by
conversion any Eurodollar Rate Loan in such amount and for such Interest
Period shall terminate until deposits in such amount and for the
Interest Period selected by the Company shall again be readily available
in the relevant market and adequate and reasonable means exist for
ascertaining the Adjusted Eurodollar Rate.
SECTION 9.3. TAXES AND INCREASED COSTS. With respect to the Fixed Rate
Loans, if the Bank shall determine in good faith that any change in any
applicable law, treaty, regulation or guideline (including, without
limitation, Regulation D of the Board of Governors of the Federal
Reserve System) or any new law, treaty, regulation or guideline, or any
interpretation of any of the foregoing by any governmental authority
charged with the administration thereof or any central Bank or other
fiscal, monetary or other authority having jurisdiction over the Bank or
its lending branch or the Fixed Rate Loans contemplated by this
Agreement (whether or not having the force of law) ("CHANGE IN LAW")
shall:
(a) impose, modify or deem applicable any reserve, special deposit or
similar requirements against assets held by, or deposits in or for the
account of, or loans by, or any other acquisition of funds or
disbursements by, the Bank (other than reserves or assessment rates
included in the determination of the interest rate applicable to such
Fixed Rate Loan);
(b) subject the Bank, any Fixed Rate Loan or the Note to any tax
(including, without limitation, any United States interest equalization
tax or similar tax however named applicable to the acquisition or
holding of debt obligations and any interest or penalties with respect
thereto), duty, charge, stamp tax, fee deduction or withholding in
respect of this Agreement, any Fixed Rate Loan or the Note except such
taxes as may be measured by the overall net income of the Bank or its
lending branch and imposed by the jurisdiction, or any political
subdivision or taxing authority thereof, in which the Bank's principal
executive office or its lending branch is located;
(c) change the basis of taxation of payments of principal and interest
due from the Company to the Bank hereunder or under the Note (other than
by a change in taxation of the overall net income of the Bank); or
(d) impose on the Bank any penalty with respect to the foregoing or any
other condition regarding this Agreement, its disbursement, any Fixed
Rate Loan or the Note;
and the Bank shall determine that the result of any of the foregoing is
to increase the cost (whether by incurring a cost or adding to a cost)
to the Bank by making or maintaining any Fixed Rate Loan hereunder or to
reduce the amount of principal or interest received by the Bank, then
the Company shall pay to the Bank from time to time as specified by the
Bank such additional amounts as the Bank shall determine are sufficient
to compensate and indemnify it for such increased cost or reduced
amount. If the Bank makes such a claim for compensation, it shall
provide to the Company a certificate setting forth such increased cost
or reduced amount as a result of any event mentioned herein. Upon the
imposition of any such cost, the Company may prepay any affected Loan,
subject to the provisions of Section 2.2 and 9.4 hereof, except the
provisions of Section 2.2 limiting prepayment of any Fixed Rate Loan.
SECTION 9.4. FUNDING INDEMNITY. In the event the Bank shall incur any
loss, cost, expense or premium (including, without limitation, any lost
profit and any loss, cost, expense or premium incurred by reason of the
liquidation or re-employment of deposits or other funds acquired by the
Bank to fund or maintain any Eurodollar Rate Loan or the relending or
reinvesting of such deposits or amounts paid or prepaid to the Bank) as
a result of:
(i) any payment or prepayment of a Fixed Rate Loan on a date other than
the last day of the then applicable Interest Period;
(ii) any failure by the Company to borrow any Fixed Rate Loan on the
date specified in the notice given pursuant to Section 1.3 hereof; or
(iii) the occurrence of any Event of Default;
then, upon the demand of the Bank, the Company shall pay to the Bank
such amount as will reimburse the Bank for such loss, cost or expense.
SECTION 9.5. LENDING BRANCH. The Bank may, at its option, elect to
make, fund or maintain its loans hereunder at the branch or office
specified in Section 10.6 hereof or such other of its branches or
offices as the Bank may from time to time elect, subject to the
provisions of Section 1.3 hereof.
SECTION 9.6. DISCRETION OF BANK AS TO MANNER OF FUNDING.
Notwithstanding any provision of this Agreement to the contrary, the
Bank shall be entitled to fund and maintain its funding of all or any
part of its loans in any manner it sees fit, it being understood
however, that for the purposes of this Agreement all determinations
hereunder shall be made as if the Bank had actually funded and
maintained each Fixed Rate Loan during each Interest Period for such
Loan through the purchase of deposits in the relevant interbank market
having a maturity corresponding to such Interest Period and bearing an
Interest Rate equal to the Eurodollar Rate or Offered Rate, as the case
may be, for such Interest Period."
1.9 Section 7.4(d) of the Credit Agreement shall be amended by
inserting the following phrase immediately before the semicolon
appearing at the end thereof:
"and, for each of the months of June, July, August, September, October
and November in each year, a listing of the Account Debtors of the
Company and each Guarantor Subsidiary showing total Receivables plus
Receivables over sixty days and under ninety days past due by Account
Debtor and Location".
1.10 Exhibit A to the Credit Agreement and the Revolving Note of the
Company payable to the order of Xxxxxx Trust and Savings Bank (the
"Note") shall each be amended by replacing the date "December 1, 1995"
appearing in the first paragraph therein with the date "December 1,
1996".
1.11 Exhibit A to the Credit Agreement and the Note shall each be
further amended by (i) replacing the amount of "$17,000,000" appearing in
the upper left corner thereof with the amount "$12,000,000" and (ii)
replacing the phrase "Seventeen Million Dollars ($17,000,000)" appearing
in the first paragraph thereof with the amount "Twelve Million Dollars
($12,000,000)".
1.12 Exhibit A to the Credit Agreement and the Note shall each be
further amended by deleting the third sentence of the second paragraph
thereof and substituting therefor the following:
"The payee hereof shall record on its books or records or on a schedule
to this Note, which is a part hereof, the principal amount of each loan
made under the Credit Agreement, all payments of principal and interest
on this Note, the principal balance from time to time outstanding
hereon, and the interest rate and Interest Period applicable to each
Fixed Rate Loan."
1.13 The Bank shall type the following legend on its Note:
"This Note has been amended pursuant to the terms of a Sixth Amendment
to Secured Revolving Credit Agreement and Fourth Amendment to Secured
Revolving Credit Note dated as of November ___, 1995, including an
extension of the maturity date hereof and a reduction in the principal
amount hereof, to which reference is hereby made for a statement of
terms thereof".
1.14 The Attachment to Compliance Certificate attached to Exhibit E to
the Credit Agreement and Exhibit F to the Credit Agreement shall each be
amended to read as the Attachment to Compliance Certificate and Exhibit
F, respectively, attached to this Amendment.
2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
2.1 The Company and the Bank 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 true and correct.
2.3 The Company shall be in full compliance with all of the terms and
conditions of the Credit Agreement and no Event of Default or Potential
Default shall have occurred and be continuing thereunder or shall result
after giving effect to this Amendment.
2.4 Each of Genetics, Holding and each Guarantor Subsidiary shall have
executed and delivered to the Bank its acknowledgment in the form set
forth below.
3. REPRESENTATIONS.
In order to induce the Bank to execute and deliver this Amendment, the
Company hereby represents to the Bank that as of the date hereof, each
of the representations and warranties set forth in Section 5 of the
Credit Agreement are and shall be and remain true and correct (except
that the representations contained in Section 5.4 shall be deemed to
refer to the most recent financial statements of the Company delivered
to the Bank) and the Company is in full compliance with all of the terms
and conditions of the Credit Agreement and no Potential Default or Event
of Default has occurred and is continuing thereunder or shall result
after giving effect to this Amendment.
4. MISCELLANEOUS.
4.1 The Company has heretofore executed and delivered to the Bank that
certain Security Agreement Re: Accounts Receivable, General Intangibles
and Inventory dated as of October 26, 1993 (the "SECURITY AGREEMENT")
and the Company hereby agrees that notwithstanding the execution and
delivery of this Amendment, the Security Agreement shall be and remain
in full force and effect and that any rights and remedies of the Bank
thereunder, obligations of the Company thereunder and any liens and
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 Agreement as to the indebtedness which
would be secured thereby prior to giving effect to this Amendment.
4.2 Except as specifically amended herein, the Credit Agreement and the
Note shall each continue in full force and effect in accordance with its
original terms. Reference to this specific Amendment need not be made
in any note, document, letter, certificate, the Credit Agreement itself,
the Note or any communication issued or made pursuant to or with respect
to the Credit Agreement or the Note, any reference in any of such to the
Credit Agreement or the Note being sufficient to refer to the Credit
Agreement or the Note, as the case may be, as amended hereby.
4.3 The Company agrees to pay on demand all costs and expenses of or
incurred by the Bank in connection with the negotiation, preparation,
execution and delivery of this Amendment, including the fees and
expenses of counsel for the Bank.
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 hereto 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.
Dated as of November 15, 1995.
BIOTECHNICA INTERNATIONAL, INC.
By: /s/ X.X. GOUACHE
Its: President
Accepted and agreed to as of the date and year last above written.
XXXXXX TRUST AND SAVINGS BANK
By: /s/
Its: Vice President
GUARANTORS' ACKNOWLEDGMENT
The undersigned, LG Seeds, Inc., formerly BioTechnica Agriculture, Inc.,
has heretofore executed and delivered to the Bank a Guaranty Agreement
and a Security Agreement Re: Accounts Receivable, General Intangible
and Inventory, each dated October 26, 1993 and each of the undersigned,
Limagrain Genetics Corp. and Groupe Limagrain Holding S.A. has
heretofore executed and delivered to the Bank a separate Guaranty
Agreement dated October 26, 1993.
Each of the undersigned hereby acknowledges the Sixth Amendment to
Secured Revolving Credit Agreement and Fourth Amendment to Secured
Revolving Credit Note as set forth above and confirms that its Guaranty
and, if applicable, its Security Agreement and all of its obligations
thereunder remain in full force and effect. Each of the undersigned
further agrees that its consent to any further amendments of the Credit
Agreement or the Note shall not be required as a result of this
acknowledgment having been obtained, except to the extent, if any,
required by any Guaranty referred to above.
Dated as of November 15, 1995.
LIMAGRAIN GENETICS CORP.
By: X. XXXXXXX
Its: President and COO
GROUPE LIMAGRAIN HOLDING S.A.
By: X. XXXXXXX
Its: E.V.P. Field Seeds Division Groupe Limagrain
LG SEEDS, INC.
By: X.X. GOUACHE
Its: President
