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CALGENE, INC.
THIRD AMENDMENT TO
SECURED REVOLVING CREDIT AGREEMENT
▇▇▇▇▇▇ Trust and Savings Bank
Chicago, Illinois
Ladies and Gentlemen:
Reference is hereby made to that certain Secured Revolving Credit
Agreement dated as of April 26, 1990, as amended (the "Credit Agreement")
originally among the undersigned, CALGENE, INC., a Delaware corporation (the
"Company"), ▇▇▇▇▇▇ Trust and Savings Bank (the "Bank") and Caisse Nationale de
Credit Agricole, acting through its Grand Cayman Branch ("Credit Agricole") and
▇▇▇▇▇▇ Trust and Savings Bank as agent thereunder (the "Agent" ). All defined
terms used herein shall have the same meaning as in the Credit Agreement unless
otherwise defined herein.
The Bank has extended a $10,000,000 revolving credit facility to the
Company on the terms and conditions set forth in the Credit Agreement. The
Company and the Bank now wish to amend the form of Borrowing Base Certificate
attached to the Credit Agreement to reflect the addition of Calgene Fresh, Inc.
as a Guarantor Subsidiary, all in the manner and on the terms and conditions set
forth in this Amendment.
SECTION 1. AMENDMENTS.
Upon satisfaction of all the conditions precedent set forth in Section 2
hereof, the Credit Agreement shall be amended as follows:
Section 1.1 Exhibit D attached to the Credit Agreement shall be replaced
with Exhibit D attached hereto.
SECTION 2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
Section 2.1. The Company and the Bank shall have executed this Amendment
(such execution may be in several counterparts and the several parties hereto
may execute on separate counterparts).
Section 2.2. Each of the representations and warranties set forth in
Section 5 of the Credit Agreement shall be true and correct.
Section 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.
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Section 2.4. All legal matters incident to the execution and delivery
hereof and the instruments and documents contemplated hereby shall be
satisfactory to the Bank.
Section 2.5. The Bank shall have received copies (executed or certified
as may be appropriate) of (a) a Qualified Credit Agreement between the Company
and Calgene Fresh, Inc., a _________________ corporation ("Cal-Fresh"), (b) a
Qualified Promissory Note of CalFresh payable to the order of the Company and
endorsed in blank by the Company, (c) a Qualified Security Agreement from
Cal-Fresh to the Company, (d) a Pledge Agreement from the Company to the Agent,
(e) such financing statements as the Agent may request, (f) all legal documents
or proceedings taken in connection with the execution and delivery of this
Amendment, all other instruments and documents contemplated hereby and, (g) an
opinion of ▇▇▇▇▇▇, Brand, Seymour & ▇▇▇▇▇▇, counsel to the Company, in the form
attached hereto as Exhibit A.
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 5.2 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
Default or Event of Default has occurred and is continuing thereunder or shall
result after giving effect to this Amendment.
4. MISCELLANEOUS.
Section 4.1. The Company has heretofore executed and delivered to the
Agent that certain Security Agreement Re: Inventory and Receivables and various
separate Pledge and Security Agreements, each dated as of April 26, 1990 (the
"Security Documents") and the Company hereby agrees that notwithstanding the
execution and delivery of this Amendment, the Security Documents shall be and
remain in full force and effect and that any rights and remedies of the Agent
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 Documents as to
the indebtedness which would be secured thereby prior to giving effect to this
Amendment.
Section 4.2. 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.
Section 4 3. Except as specifically amended herein the Credit Agreement
and the Note shall continue in full force and effect in accordance with their
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 to the Credit Agreement or Note being
sufficient to refer to the Credit Agreement as amended hereby.
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Section 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 August 26,1993.
CALGENE, INC.
By /c/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Its Vice President, Finance
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Accepted as of the date last written above.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By /c/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Vice President
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