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CALGENE, INC.
FIFTH 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 amended (the "Credit Agreement")
originally among the undersigned, 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 January 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 the conditions precedent set forth in Section 2
hereof, the Credit Agreement shall be amended as follows:
Section 1.1. The Termination Date of the Credit Agreement shall be
extended to January 31, 1996.
Section 1.2. Section 1.1(a) of the Credit Agreement shall be amended by
replacing the date "January 31, 1995" appearing therein with the date "January
31, 1996".
Section 1.3. Sections 1.5 and 1.6 of the Credit Agreement shall be
amended to read as follows:
"Section 1.5. Letters of Credit. Subject to all the terms and
conditions hereof, satisfaction of all conditions precedent to
borrowing under this Agreement and so long as no Potential Default or
Event of Default is in existence, at the Company's request Xxxxxx may
in its discretion issue letters of credit (an "L/C" and collectively
the "L/C's") for the account of the Company and one or more Qualified
Subsidiaries subject to availability under the Revolving Credit, and
the Banks hereby agree to participate therein as more fully described
in Section 1.8 hereof. Each L/C shall be issued pursuant to an
Application for Letter of Credit (the "L/C Agreement" ) in the form of
Exhibit C hereto. The L/C's shall consist of documentary
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trade letters of credit or standby letters of credit in an aggregate
face amount not to exceed $5,000,000. Each documentary trade L/C
shall have an expiry date not more than 180 days from the date of
issuance thereof (but in no event later than the Termination Date) and
each standby letter of credit shall have an expiry date no later than
the Termination Date. The amount available under each L/C issued
pursuant hereto shall be deducted from the credit otherwise available
under the Revolving Credit. In consideration of the issuance of L/C's
the Company agrees to pay Xxxxxx a fee in the amount of 1% per annum
(computed on the basis of a 360 day year and actual days elapsed) of
the face amount for any documentary trade letter of credit issued
hereunder, payable on the date of issuance of an L/C hereunder and on
the date of each extension, if any, of the expiry date of each L/C.
Section 1.6. Reimbursement Obligation. The Company and each Qualified
Subsidiary for whose account an L/C is issued hereunder are obligated
pursuant to the relevant L/C Agreement, and the Company hereby
unconditionally agrees, to pay in immediately available funds to the
Agent for the account of Xxxxxx the face amount of (i) each B/A created
by Xxxxxx hereunder not later than 11:00 A.M. (Chicago Time) on the
maturity date of such B/A, and (ii) each draft drawn and presented
under an L/C issued by Xxxxxx hereunder (the obligation of the Company
under this Section 1.6 with respect to any B/A or L/C is a
"Reimbursement Obligation" ). If at any time the Company or a Qualified
Subsidiary fails to pay any Reimbursement Obligation when due, the
Company shall be deemed to have automatically requested a Domestic Rate
Loan from the Banks hereunder, as of the maturity date of such
Reimbursement Obligation, the proceeds of which Loan shall be used to
repay such Reimbursement Obligation. Such Loan shall only be made if no
Potential Default or Event of Default shall exist and upon approval by
the Banks, and shall be subject to availability under the Revolving
Credit. If such Loan is not made by the Banks for any reason, the
unpaid amount of such Reimbursement Obligation shall be due and payable
to Xxxxxx upon demand and shall bear interest at the rate of interest
specified in Section 1.3(c) hereof. "
Section 1.4. Section 1.8 of the Credit Agreement shall be amended to read as
follows:
"Section 1.8. Participation in B/A's and L/C's. Each of the Banks will
acquire a risk participation in each B/A upon the creation thereof and
in each L/C upon the issuance thereof, provided that, which respect to
the Noble-Bear L/C, Credit Agricole will be deemed to have acquired a
risk participation therein upon the execution and delivery hereof by
the Company and the Banks. In the event any Reimbursement Obligation is
not immediately paid pursuant to the relevant L/C Agreement and Section
1.6 hereof, each Bank will pay to Xxxxxx funds in an amount equal to
such Bank's ratable share of the unpaid amount of such Reimbursement
Obligation (based upon its proportionate share relative to its
percentage of the Revolving Credit (as set forth in Section 1.1
hereof)). At the election of the Banks, such funding by the Banks of
the unpaid Reimbursement Obligations shall be treated as additional
Loans to the Company hereunder
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rather than a purchase of participations by the Banks in the related
B/A's and L/C's held by Xxxxxx. The availability of funds to the
Company under the Revolving Credit shall be reduced in an amount equal
to any such B/A or L/C which shall be treated as an additional
Domestic Rate Loan for purposes of determining the amount of credit
available hereunder. The obligation of the Banks to Xxxxxx under this
Section 1.8 shall be absolute and unconditional and shall not be
affected or impaired by any Event of Default or Potential Default which
may then be continuing hereunder. Xxxxxx shall notify each Bank by
telephone of its proportionate share relative to its percentage of the
total Banks' Commitments set forth in Section 1.1 hereof (a "Commitment
Percentage") of such unpaid Reimbursement Obligation. If such notice
has been given to each Bank by 12:00 Noon, Chicago time, each Bank
agrees to put Xxxxxx in immediately available and freely transferable
funds on the same Business Day. Funds shall be so made available at the
account designated by Xxxxxx in such notice to the Banks. Upon the
election by the Banks to treat such funding as additional Loans
hereunder and payment by each Bank, such Loans shall bear interest in
accordance with Section 1.3(a) hereof. Xxxxxx shall share with each
Bank on a pro rata basis relative to its Commitment Percentage a
portion of any B/A commission and any L/C commission fee payable by the
Company and any Qualified Subsidiary. Any such fee shall be promptly
remitted to the Banks when and as received by Xxxxxx."
Section 1.5. Section 4.6(iv) of the Credit Agreement shall be amended to read
as follows:
" (iv) 60% of the value of Net Eligible Inventory of the Company
and all other Qualified Subsidiaries except Calgene Fresh, Inc.;".
Section 1.6. Section 7.8 of the Credit Agreement shall be amended to read
as follows:
"Section 7.8. Net Working Capital. The Company will maintain at all
times Net Working Capital in an amount not less than (a) $10,000,000 at
all times during each of two periods (which may not be consecutive)
of up to 60 consecutive days in each year, selected by the Company,
and (b) $13,000,000 at all other times."
Section 1.7. Section 7.10 of the Credit Agreement shall be amended to read
as follows:
"Section 7.10. Current Ratio. The Company will at all times maintain
the ratio of current assets of the Company and its Subsidiaries to the
current liabilities of the Company and its Subsidiaries (each
determined in accordance with general accepted accounting principles,
consistently applied) of not less than (a) 1.3 to 1 at all times during
each of two periods (which may not be consecutive) of up to 60
consecutive days in each year, selected by the Company, and (b) 1.5 to
1 at all other times.
Section 1.8. 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
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deleting the date "January 31, 1995" appearing twice in the first paragraph
therein and inserting in lieu thereof the date "January 31, 1996".
Section 1.9. Exhibit D to the Credit Agreement shall be replaced by Exhibit D
attached hereto.
Section 1.10. Xxxxxx Trust and Savings Bank shall type the following legend
on its Note:
"This Note has been amended pursuant to the terms of a Fifth Amendment
to Secured Revolving Credit Agreement and Secured Revolving Credit Note
dated as of , 1995, 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 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.
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 all legal documents or proceedings taken in connection
with the execution and delivery of this Amendment, all other instruments and
documents contemplated hereby and an opinion of Xxxxxx, Brand, Seymour & Xxxxxx,
counsel to the Company, in the form attached hereto as Exhibit A.
SECTION 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.
SECTION 4. MISCELLANEOUS.
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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.
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 March 15, 1995.
CALGENE, INC.
By /c/ Xxxx Xxxxxxx
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Its Vice President
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Accepted as of the date last written above.
XXXXXX TRUST AND SAVINGS BANK
By /c/ Xxxxxx X. Xxxxxxxx
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Its Vice President
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