BIOTECHNICA INTERNATIONAL, INC.
EIGHTH AMENDMENT TO SECURED REVOLVING CREDIT AGREEMENT
AND FIFTH AMENDMENT TO SECURED REVOLVING CREDIT NOTE
Harris Trust and Savings Bank
Chicago, IL
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 (a) $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 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 Harris 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 in 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 directors 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/ Bruno Carette
Its: President-COO
Accepted and agreed to as of the date and year last above written.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Brian J. Moeller
Its: Vice President