EXHIBIT 10.11
BIOTECHNICA INTERNATIONAL, INC.
EIGHTH AMENDMENT TO SECURED REVOLVING CREDIT AGREEMENT
AND FIFTH AMENDMENT TO SECURED REVOLVING CREDIT NOTE
▇▇▇▇▇▇ 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 3 hereof,
the Credit Agreement shall be and hereby is amended as follows:
1.1. Section 1.1(a) of the Credit Agreement shall be amended by replacing
the date "December 1, 1996" appearing therein with the date "December 31, 1997".
1.2. Section 1.3(b) of the Credit Agreement shall be amended by replacing
the phrase "three-quarters of one percent (0.75%)" with the phrase
"one percent (1%)".
1.3. The definition of the term "Tangible Net Worth" contained in Section 4
of the Credit Agreement shall be amended to read as follows:
"TANGIBLE NET WORTH" shall mean the excess of the total assets minus the
total liabilities (other than liabilities consisting of indebtedness for
borrowed money of the Company which is expressly subordinated to the prior
payment in full of the Company's indebtedness, obligations and liabilities
to the Bank pursuant to written subordination provisions acceptable to the
Bank) of the Company and its Subsidiaries and minus the total amount of all
intangible assets of the Company and its Subsidiaries (including, without
limitation, unamortized debt discount and expense, deferred charges and
goodwill), all as determined on a consolidated basis in accordance with
generally accepted accounting principles consistently applied."
1.4. Section 7.9 of the Credit Agreement shall be amended to read as follows:
7.9. TANGIBLE NET WORTH. The Company will maintain Tangible Net Worth in an
amount not less than (1) $7,000,000 on the last day of each fiscal year of the
Company, and (b) $6,000,000 at all other times."
1.5. Section 7.11 of the Credit Agreement shall be amended by deleting the
word "and" appearing at the end of subsection (i) thereof, by replacing the
period appearing at the end of subsection (j) with the phrase "; and" and by
adding the following provision thereto as subsection 7.11(k):
"(k) indebtedness of the Company to Akin Corporation Seed Company in an
aggregate principal amount not to exceed $5,000,000 at any time."
1.6. Exhibit A to the Credit Agreement and the Revolving Note of the Company
payable to the order of ▇▇▇▇▇▇ Trust and Savings Bank (the "Note") shall each
be amended by replacing the date "December 1, 1996" appearing in the first
paragraph therein with the date "December 31, 1997".
1.7. The Bank shall type the following legend on its Note:
"This Note has been amended pursuant to the terms of an Eighth Amendment to
Secured Revolving Credit Agreement and Fifth Amendment to Secured Revolving
Credit Note dated as of November ___, 1996, including an extension of the
maturity date hereof, to which reference is hereby made for a statement of
terms thereof."
1.8. As soon as available, but in any event no later than December 31, 1996,
the Company shall deliver to the Bank such resolutions of the Company's board
of director authorizing the execution and delivery of this Amendment by the
Company and the performance by the Company of the terms hereof and such
opinions of counsel to the Company as the Bank may request. The Company and
the Bank agree that the Company's failure to comply with this Section 1.8
shall constitute an Event of Default under Section 8.1 of the Credit Agreement.
2. WAIVER.
Upon satisfaction of the conditions precedent set forth in Section 3 hereof:
2.1. The Bank hereby waives non-compliance by the Company with Section 7.8
of the Credit Agreement from November 1, 1996 through January 31, 1997.
2.2. The waiver contained in Section 2.1 of this Amendment is limited to
matters set forth in that Section, and the Company agrees that it remains
obligated to comply with the terms of the Credit Agreement and the other Loan
Documents, including Section 7.8 of the Credit Agreement, and that the Bank
shall not be obligated in the future to waive any provision of the Credit
Agreement or the other Loan Documents.
3. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of all of
the following conditions precedent:
3.1. The Company and the Bank shall have executed and delivered this
Amendment.
3.2. Each of the representations and warranties set forth in Section 5 of
the Credit Agreement shall be true and correct.
3.3. 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.
3.4. All legal matters incident to the execution and delivery hereof and
the instruments and documents contemplated hereby shall be satisfactory to
the Bank.
3.5. Each of Genetics and each Guarantor Subsidiary shall have executed and
delivered to the Bank its acknowledgment in the form set forth below.
4. 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.
5. MISCELLANEOUS.
5.1. 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.
5.2. Except as specifically amended herein, the Credit Agreement and the Note
shall 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
amended hereby.
5.3. 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.
5.4. 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 27, 1996.
BIOTECHNICA INTERNATIONAL, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Its President-COO
Accepted and agreed to as of the date and year last above written.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its Vice President
