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EXHIBIT 10.9
SEMINIS, INC.
SEMINIS VEGETABLE SEEDS, INC.
INTERIM WAIVER AGREEMENT
To the Lender Parties to the Credit
Agreement Identified Below
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of June 28, 1999 (the "Credit
Agreement") among the undersigned, SEMINIS, INC., an Illinois 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"), the Banks from time
to time party thereto and Harris Trust and Savings Bank, as administrative agent
for the Banks (the "Administrative Agent"), as heretofore or hereafter amended
(the "Credit Agreement"), capitalized terms used without definition below to
have the meanings ascribed to them in the Credit Agreement. Upon satisfaction of
the conditions precedent to effectiveness set forth below, certain Potential
Defaults and/or Events of Default shall be waived, all on and subject to the
conditions and limitations set forth below:
1. Interim Waivers with Respect to Certain Financial Covenants. Any
Potential Default or Event of Default occasioned solely by the failure of the
Borrowers to be in compliance with Section 7.20 or 7.22 of the Credit Agreement
as of, but only as of, September 30, 2000 is hereby waived but only for the
period (the "Waiver Period") from September 30, 2000 to and including December
20, 2000 (the "Expiry Date"). From and after the Expiry Date such waivers shall
be of no further force or effect and, absent a further waiver of such Potential
Defaults and/or Events of Default by the Required Banks such Potential Defaults
and Events of Default shall once again arise all as though the waivers provided
for in this Section 1 had never been given.
2. Conditions to Effectiveness. The waivers contained in Section 1 above
shall only become effective if on or before November 30, 2000 (a) the Borrowers
shall have made the interest payment on the Loans required to be paid on such
date, and (b) during the period from November 14, 2000 through November 30,
2000, Savia shall have made capital contributions to Seminis in an aggregate
amount not less than $14,000,000.
3. Availability. In consideration of the waivers hereinabove provided,
the Borrowers hereby agree that, anything contained in the Credit Agreement to
the contrary notwithstanding, during the Waiver Period (and thereafter if any
Potential Default or Event of Default shall have occurred and be continuing) the
Borrowers shall have no right to request or obtain Revolving Credit Loans (other
than Revolving Credit Loans obtained pursuant to Section 1.5 of the Credit
Agreement to repay a Reimbursement Obligation on the date such Reimbursement
Obligation arises) or Swingline Loans or the issuance of L/Cs under the Credit
Agreement.
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4. Interest Periods. Anything contained in the Credit Agreement to the
contrary notwithstanding, the Borrowers shall not be entitled to create,
continue or convert LIBOR Portions or select new Interest Periods therefor and
all existing LIBOR Portions shall be converted into Base Rate Portions on the
expiration of the Interest Periods currently applicable thereto.
5. Transactions with Foreign Affiliates. Seminis will not, and will not
permit any of its Domestic Subsidiaries to, directly or indirectly, make any
loans or advances or transfer any of their respective Property to or for the
benefit of any Foreign Subsidiary or Foreign Affiliate (as hereinafter defined)
of Seminis except in the ordinary course of business and consistent with past
practices between Seminis and its Domestic Subsidiaries, on the one hand, and
Seminis' Foreign Subsidiaries and Affiliates on the other hand. As used herein,
the term "Foreign Affiliate" means any Affiliate of Seminis that is not
organized under the laws of a State of the United States of America or the
District of Columbia.
6. Waiver Fee. Upon the effectiveness of this Interim Waiver Agreement
(the "Effective Date"), the Banks shall have earned, and the Borrowers hereby
jointly and severally promise to pay to the Administrative Agent for the ratable
benefit of the Banks, a non-refundable fee in the amount of $350,000, which fee
shall be due and payable on March 31, 2001. Said fee shall be payable to the
Banks party to the Credit Agreement on the Effective Date ratably in accordance
with their respective Exposures on the Effective Date.
7. Representations and Releases. 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. 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, including but not limited to claims arising
from or in any way related to the Credit Agreement, the other Loan Documents or
the business relationship among the Borrowers, the Agents and the Banks.
8. Miscellaneous. Except as specifically modified hereby, all of the
terms, conditions and provisions of the Credit Agreement shall stand and remain
unchanged and in full force and effect. The Borrowers' obligations under Section
12.8 of the Credit Agreement shall be unaffected by the waiver contained herein.
No reference to this Interim Waiver Agreement need be made in any instrument or
document at any time referring to the Credit Agreement, a reference to the
Credit Agreement in any of such to be deemed to be a reference to the same as
modified hereby. This Interim Waiver Agreement may be executed in counterparts
and by separate parties hereto on separate counterparts, each to constitute an
original but all of which shall constitute one and the same instrument. The
Borrowers hereby confirm that all representations and warranties made by them in
the Loan Documents are true and correct as of the date hereof except to the
extent that any of same expressly relate to any earlier date and acknowledge
that their obligations under the Loan Documents are justly and truly owing
without defense, offset or counterclaim. The waivers provided for herein shall
be strictly construed and limited as hereinafter provided. This Interim Waiver
Agreement shall
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become effective upon receipt by the Administrative Agent of counterparts hereof
which, taken together, bear the signatures of the Borrowers and the Required
Banks, provided however that upon satisfaction of such conditions such
effectiveness shall relate back to and be deemed effective as of September 30,
2000 all with the same force and effect as though such conditions precedent to
effectiveness had been satisfied as of and on such date. This Interim Waiver
Agreement shall be deemed to be a "Loan Document" for purposes of the Credit
Agreement and the other Loan Documents. This Interim Waiver Agreement shall be
construed in accordance with and governed by the laws of the state of Illinois.
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Dated and to become effective as of this 30(th) day of September 2000.
SEMINIS, INC.
By
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Its
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SEMINIS VEGETABLE SEEDS, INC.
By
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Its
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SVS HOLLAND B.V.
By
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Its
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HARRIS TRUST AND SAVINGS BANK, individually
and as Administrative Agent
By
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Its Vice President
CREDIT AGRICOLE INDOSUEZ
By
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Its
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BANK OF AMERICA, N.A.
By
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Its
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THE BANK OF NOVA SCOTIA
By
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Its
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COMERICA BANK
By
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Its
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BANK ONE
By
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Its
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PARIBAS
By
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Its
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UNION BANK OF CALIFORNIA, N.A.
By
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Its
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FLEET NATIONAL BANK
By
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Its
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MEESPIERSON CAPITAL CORP.
By
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Its
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RABOBANK INTERNATIONAL
By
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Its
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SANWA BANK CALIFORNIA
By
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Its
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THE FUJI BANK, LIMITED
By
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Its
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THE MITSUBISHI TRUST & BANKING
CORPORATION
By
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Its
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US BANCORP AG CREDIT, INC.
By
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Its
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THE DAI-ICHI KANGYO BANK, LTD.
By
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Its
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