Exhibit 10.62.1
AMENDMENT
THIS AMENDMENT is made as of the 15th day of June, 2000, between General
Electric Capital Corporation ("Secured Party") and Deltagen, Inc. ("Debtor") in
connection with that certain Master Security Agreement dated or dated as of
June 15, 2000 ("Agreement"). The terms of this Amendment are hereby
incorporated into the Agreement as though fully set forth therein. Section
references below refer to the section numbers of the Agreement. The Agreement is
hereby amended as follows:
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
In Subsection (c) the following is added at the end thereof after the word
"laws" and before the semicolon: or other similar laws of general
application relating to or affecting the enforcement of creditors' rights
generally or by principles of equity pertaining to the availability of
equitable remedies."
In Subsection (e)(i), Line 2, the following is hereby added after the words
"applicable to Debtor" and before the comma: "except any violation which
would not have a material adverse effect upon the enforceability of the
Debt Documents or Debtor's ability to perform its obligations under the
Debt Documents."
In Subsection (e)(ii), Line 2, the following is hereby added after the
words "Debtor is a party" and before the comma: "except any breach or
default which would not have a material adverse effect upon the
enforceability of the Debt Documents or Debtor's ability to perform its
obligations under the Debt Documents."
Subsection (f) is hereby amended and replaced in its entirety as follows:
(f) Except as disclosed to Secured Party in the S-I Amendment filed by
Debtor with the Securities and Exchange Commission on June 15, 2000,
there are no suits or proceedings pending in court or before any
commission, board or other administrative agency against or affecting
Debtor which could, in the aggregate, have a material adverse effect
on Debtor, its business or operations, or its ability to perform its
obligations under the Debt Documents, nor to Debtor's knowledge, are
any such suits or proceedings are threatened;
Subsection (j) is hereby amended by adding the following after the words
"in possession of" in the first line: "(except as permitted in Section 3(c)
hereof)."
Subsection (k) is hereby amended by adding the word "reasonable" before the
word "judgment" in the second line.
3. COLLATERAL.
Subsection (c) is hereby amended and replaced with the following:
"(c) Debtor shall not, without the prior written consent of Secured
Party, (i) part with possession of any of the Collateral (except to Secured
Party or for maintenance and repair), (ii) remove any of the Collateral
from the address specified in the Collateral Schedule, or (iii) sell, rent,
lease, mortgage, grant a security interest in or otherwise transfer or
encumber (except for Permitted Liens) any of the Collateral."
In the first line of Subsection (d), the words "when due" are replaced
with the words "prior to delinquency."
In the second line of Subsection (d), the following words are inserted
after the word "option" and before the comma: "after the occurrence and
continuation of a default."
In the fourth line of subsection (d), the word "written" is hereby added
before the word "demand" and the word "reasonable" is hereby added before
the word "costs."
4. INSURANCE.
In the fourth line of subsection (b), the word "reasonably" is hereby added
before the word "acceptable."
In the ninth line of subsection (b), the words "after consultation with
Debtor" are hereby added after the words "Secured Party" and the word
"Debtors" is hereby changed to "Debtor's."
5.REPORTS
Section 5 is hereby amended and replaced with the following:
5. REPORTS.
(a) Debtor shall promptly notify Secured Party of (i) any change
in the name of Debtor, (ii) any relocation of its chief executive
offices, (iii) any relocation of any of the Collateral, which
relocation may not be made unless Debtor has obtained the prior
written consent of Secured Party which shall not be unreasonably
withheld, (iv) any of the Collateral being lost, stolen, missing,
destroyed, materially damaged or worn out, or (v) any lien, claim or
encumbrance other than Permitted Liens attaching to or being made
against any of the Collateral.
(b) Debtor will deliver to Secured Party financial statements as
follows. If Debtor is a privately held company, then Debtor agrees to
provide monthly financial statements, certified by Debtor's chief
financial officer including a balance sheet, statement of operations
and cash flow statement within 30 days of each month end, and its
complete audited annual financial statements, certified by a
recognized firm of certified public accountants, within 120 days of
fiscal year end or at such time as Debtor's Board of Directors
receives the audit. If Debtor is a publicly held company, then Debtor
agrees to provide quarterly and annual audited statements, certified
by a recognized firm of certified public accountants, within 10 days
after the statements are provided to the Securities and Exchange
Commission ("SEC"). All such statements are to be prepared using
generally accepted accounting principles ("GAAP") (except, with
respect to unaudited financial statements, for the absence of
footnotes and normal non-material year-end audit adjustments) and, if
Debtor is a publicly held company, are to be in compliance with SEC
requirements."
6. FURTHER ASSURANCES.
The fourth line of subsection (a) is hereby amended by adding the word
"reasonably" before the words "necessary or advisable."
The second line of subsection (c) is hereby amended by adding the word
"reasonable" before the words "attorneys' fees" and the following words are
hereby added to the end of subsection (c) after the word "Collateral" and
before the period: ", but not for any claims caused by Secured Party's
gross negligence or willful misconduct."
7. DEFAULT AND REMEDIES.
In the second line of subsection (a)(v), the words "when made and Debtor
fails to cure such breach within thirty (30) days after written notice from
Secured Party" are hereby added after the word "respect" and before the
semicolon.
In subsection (a)(vii), the words "beyond any applicable grace period" are
hereby added after the word "default."
In subsection (a)(xi), the words "forty-five (45)" are hereby replaced with
the words "sixty (60)."
In the third line of subsection (b), the words "eighteen percent (18%) are
hereby replaced with the words "sixteen percent (16%)."
In the first line of subsection (c), the word "After" is hereby replaced
with the following: "Upon the occurrence and during the continuance of a."
In the second line of subsection (d), the word "reasonable" is hereby added
before the word "attorneys'."
In the first line of subsection (e), the word "reasonable" is hereby added
before the word "costs."
8. MISCELLANEOUS.
Subsection (c) is hereby amended and replaced with the following:
(c) Secured Party may fill in the blanks left for dates and other
blanks in this Agreement or any Collateral Schedule consistent with the
agreement of the parties, but Secured party may not make any other
correction without the consent of Debtor, which consent shall not be
unreasonably withheld. If Secured Party requests Debtor to consent to any
correction and Debtor does not respond to such request within ten days
after receipt of such request, then Debtor shall be deemed to have
consented to such correction.
The second line of subsection(g) is hereby amended by changing the
word "Connecticut" to "California."
TERMS USED. BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS
GIVEN TO THEM IN THE AGREEMENT. EXCEPT AS EXPRESSLY AMENDED HEREBY, THE
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT. IF THERE IS ANY CONFLICT
BETWEEN THE PROVISIONS OF THE AGREEMENT AND THIS AMENDMENT, THEN THIS AMENDMENT
SHALL CONTROL.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
simultaneously with the Agreement by signature of their respective authorized
representative set forth below.
General Electric Capital Corporation Deltagen, Inc.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxxxx
Title: EVP/General Manager Title: CEO
