CALGENE TECHNOLOGY CORPORATION
TENTH AMENDMENT TO
SECURED REVOLVING CREDIT AGREEMENT AND
SECURED REVOLVING CREDIT NOTE
Xxxxxx 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 emended (the "Credit Agreement"),
originally among the undersigned, CALGENE TECHNOLOGY CORPORATION (formerly known
as Calgene, Inc.), a Delaware corporation (the "Company"), Xxxxxx Trust and
Savings Bank (the "Bank") and Caisse Nationale de Credit Agricole, acting
through its Grand Cayman Branch ("Credit Agricole") and Xxxxxx 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 revolving credit facility to the Company on the
terms and conditions set forth in the Credit Agreement. Credit Agricole has
assigned to Xxxxxx, and Xxxxxx has assumed all of Credit Agricole's rights and
obligations under the Credit Agreement. The Company and Xxxxxx now wish to
extend the termination date of the Credit Agreement to December 31, 1996, and
amend certain terms of the Credit Agreement, all in the manner and on the terms
and conditions set forth in this Amendment.
SECTION 1. AMENDMENTS.
Upon satisfaction of all conditions precedent set forth in Section 3
hereof, the Credit Agreement shall be amended as follows:
Section 1.1. The Termination Date of the Credit Agreement shall be extended
to December 31, 1996.
Section 1.2. Section 1.1(a) of the Credit Agreement shall be amended by
replacing the date "September 30, 1996" appearing therein with the date
"December 31, 1996".
Section 1.3. Section 7.10 of the Credit Agreement shall be amended by
replacing the figure "1.2" appearing therein with the figure "1.0".
Section 1.4. Section 7.11 of the Credit Agreement shall be amended by
replacing the figure "$10,000,000" with the figure "$3,000,000".
Section 1.5. Section 8.1(1) of the Credit Agreement shall be amended to
read as follows:
"(1) no later than December 15, 1996, the Company shall have
failed to deliver to the Agent copies, certified by the secretary or
assistant secretary of the Company, of resolutions of the Company's
board of directors ratifying the execution and delivery by the Company
of the Tenth Amendment Secured Revolving Credit Agreement and Secured
Revolving Credit Note dated as of September ___, 1996 (the "Tenth
Amendment"), a Certificate of the Secretary or Assistant Secretary of
the Company as to the incumbency and signatures of the authorized
officers of the Company, and an option of counsel to the Company and
its Subsidiaries in form and substance satisfactory to the Bank."
Section 1.6 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 deleting the date "September 30, 1996" appearing twice in the
first paragraph therein and inserting in lieu thereof the date "December 31,
1996".
Section 1.7. Xxxxxx Trust and Savings Bank shall type the following legend
on its Note:
"This Note has been amended pursuant to the terms of a Tenth
Amendment to Secured Revolving Credit Agreement and Secured
Revolving Credit Note dated as of September 30, 1996,
including an extension of the maturity date hereof, to which
reference is hereby made for a statement of terms thereof."
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 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.
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.
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 or 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.
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 by deemed to be an original. This Amendment
shall be governed by the internal laws of the State of Illinois.
Dated as of September 30, 1996.
CALGENE TECHNOLOGY CORPORATION
By /s/ Xxxx Xxxxxxx
Its Vice President
Accepted as of the date last written above.
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxx Xxxxxxxx
Its Vice President
GUARANTOR'S CONSENT
The undersigned, Calgene, Inc., a Delaware corporation, has heretofore
executed and delivered to the Bank a Guaranty Agreement dated march 28, 1996
(the "Guaranty") and hereby consents to the Amendment to the Credit Agreement as
set forth above and confirms that its Guaranty and all of the undersigned's
obligations thereunder remain in full force and effect and, without limiting the
foregoing, acknowledges and agrees that all indebtedness, obligations and
liabilities of the Company under the Credit Agreement as amended as set forth
above constitutes indebtedness which is guarantied by the undersigned under its
Guaranty. The undersigned further agrees that the consent of the undersigned to
any further amendments to the Credit Agreement shall not be required as a result
of this consent having been obtained, except to the extent, if any, required by
the Guaranty referred to above.
CALGENE, INC.
By /s/ Xxxx Xxxxxxx
Its Vice President
