Execution
Copy

    

     

    Second
Amendment To Amended and

    Restated
Credit Agreement and Waiver

     

    This
Second Amendment To Amended and Restated Credit Agreement and Waiver
(this “Amendment”) is
entered into as of November 4, 2008, by and among Apio,
Inc., a Delaware corporation (“Borrower”), and Wells
Fargo Bank, National Association (“Bank”).

     

    Recitals

     

    Whereas,
Borrower is currently indebted to Bank pursuant to the terms and conditions of
that certain Amended and Restated Credit Agreement, dated as of November 1,
2005, by and among Borrower and Bank (as amended, modified and/or supplement
from time to time, the “Credit
Agreement”).

     

    Whereas,
Landec Corporation, a California corporation (“Original Parent”) is a party
to that certain Continuing Guaranty, dated as of November 1, 2005, executed by
Original Parent (as “Guarantor”) in favor of Bank
(as amended, modified and/or supplement from time to time, the “Continuing Guaranty”), which
Continuing Guaranty was delivered to Bank in connection with the Credit
Agreement.

     

    Whereas,
Original Parent is a party to that certain Subordination Agreement, dated as of
September 1, 2004, by and among Borrower, Original Parent (as “Creditor”) and Bank (as
amended, modified and/or supplement from time to time, the “Subordination Agreement”),
which Subordination Agreement was delivered to Bank in connection with the
Credit Agreement.

     

    Whereas,
Original Parent is a party to that certain Licensor Agreement, dated as of
September 1, 2004, executed by Original Parent (as “Licensor”) in favor of Bank
(as amended, modified and/or supplement from time to time, the “Licensor Agreement”), which
Licensor Agreement was delivered to Bank in connection with the Credit
Agreement.

     

    Whereas,
Borrower has informed Bank that Original Parent intends to consummate a merger
(the “Landec Merger”)
with a newly formed Delaware corporation named Landec Corporation, a Delaware
corporation (“Parent”)
and, following the Landec Merger, Original Parent shall merge into Parent,
Parent shall be the surviving entity and Original Parent shall cease to
exist.

     

    Whereas,
Borrower has further informed Bank that following the Landec Merger, Parent
shall assume and perform all of Original Parent’s agreements, obligations and
duties to Bank, including, without limitation, all of Original Parent’s
obligations, duties, contracts and agreements under the Guaranty, the
Subordination Agreement and the Licensor Agreement.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    Whereas,
since Original Parent shall cease to exist following the Landec Merger, an Event
of Default will arise under Section 7.1(r) of the Credit Agreement (the “Merger
Default”).

     

    Whereas,
Bank has agreed to waive the Merger Default and Bank and Borrower have agreed to
certain changes in the terms and conditions set forth in the Credit Agreement
and have agreed to amend the Credit Agreement to reflect such
changes.

     

    Now,
Therefore, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that the Credit
Agreement shall be amended as follows:

     

    1. Definitions.  Each
capitalized term used and not otherwise defined herein has the meaning ascribed
thereto in the Credit Agreement.

     

    2. Waiver.  Subject to
the satisfaction of the conditions precedent set forth in Section 7 hereof,
Bank hereby agrees that the Merger Default, if any, under Section 7.1(r) of
the Credit Agreement directly resulting from the Landec Merger shall be deemed
waived.  The waiver set forth herein shall not extend to any matters
other than as set forth in this Section 2.

     

    3. Amendments to Credit
Agreement.   Subject to the satisfaction of the conditions
precedent set forth in Section 7 hereof Section 1.1 of the Credit Agreement
is hereby amended and follows:

     

    (a) the
definitions of “Guarantor(s)”, “Line of Credit Maturity
Date”, “Licensor
Agreement”, “Parent” and “Subordination Agreement” as
found in Section 1.1 of the Credit Agreement are hereby amended and
restated in their entirety as follows:

     

    “Guarantor(s)” means Original
Parent, Parent and any other Person now or hereafter guarantying the Obligations
or assuming any obligations under any Guaranty.

     

    “Licensor Agreement” means
that certain Licensor Agreement, dated as of September 1, 2004, executed by
Original Parent in favor of Bank, with respect to all licensing agreements
between Original Parent, Parent and Borrower.

     

    “Line of Credit Maturity
Date” means August 31, 2009.

     

    “Parent” means Landec
Corporation, a Delaware corporation.

     

    “Subordination Agreement”
means the Subordination Agreement of even date herewith, among Original Parent,
Bank and Borrower, and any other subordination agreement accepted by Bank from
time to time.

     

    (b) the
following definition of “Original Parent” is hereby
added to the Section 1.1 of the Credit Agreement in alphabetical
order:

     

    “Original Parent” means
Landec Corporation, a California corporation.


    
      
         


      

      
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    Borrower
and Bank hereby confirm and agree that the references to “Parent” in the provisions of
Section 6.1 of the Credit Agreement regarding the financial statements to be
provided to Bank shall be deemed to mean “Original Parent” for the
period up to the Landec Merger and shall be deemed to mean the “Parent” for all periods
following the date of the Landec Merger. 

     

    (c)
Schedules 5.1, 5.2, 5.5, 5.11, 6.4 and 6.5 to the Credit Agreement are each
replaced in their entirety with the corresponding Schedule attached hereto as
Exhibit C and
all references in the Credit Agreement and the other Loan Documents to any such
Schedule shall be interpreted as a reference to the corresponding Schedule
hereto.

     

    4. Assumption.  Immediately
following the consummation of the Landec Merger, Borrower shall cause Parent to
execute and deliver to Bank the following: (i) the Assumption and Consent
Agreement attached hereto as Exhibit A whereby Parent confirms its agreement to
assume and be bound by all of Original Parent’s obligations and duties under
each of the Continuing Guaranty, Subordination Agreement and Licensor Agreement;
(ii) a Secretary’s Certificate from Parent attaching certified copies of (a) a
recent good standing certificate for Parent from the Secretary of State of
Delaware and (b) copies of Parent’s certificate of incorporation and by-laws;
(iii) an incumbency certificate for the officer executing the Assumption and
Consent Agreement; and (iv) a corporate resolution from Parent authorizing the
execution and delivery of the Assumption and Consent Agreement and the
transactions contemplated therein.  

     

    5. Survival of Terms;
Interpretation.  Except as specifically provided herein, all
terms and conditions of the Credit Agreement remain in full force and effect,
without waiver or modification.  This Amendment and the Credit
Agreement shall be read together, as one document.  The Recitals
hereto, including the terms defined therein, are incorporated herein by this
reference and acknowledged by Borrower to be true, correct and
accurate.

     

    6. Representations, Warranties and
Covenants.  Borrower hereby remakes all representations and
warranties contained in the Credit Agreement (except to the extent that such
representations and warranties relate solely to an earlier date and after giving
effect to the amendments to the Credit Agreement set forth in this Amendment)
and reaffirms all covenants set forth therein.  Borrower further
certifies that as of the date of this Amendment (after giving effect to the
waiver set forth in Section 2 hereof) there exists no Event of Default as
defined in the Credit Agreement, nor any condition, act or event which with the
giving of notice or the passage of time or both would constitute any such Event
of Default.

     

    7. Effective
Date.  This Amendment will become effective as of the date
first set forth above (the “Effective Date”), provided
that all of the following conditions precedent have been satisfied on or before
November 6, 2008:  (a) Bank shall have received a duly
executed original (or, if elected by Bank, an executed facsimile copy, to be
followed promptly by delivery of an executed original) of this Amendment,
executed by Borrower; (b) Bank shall have received a duly executed original
(or, if elected by Bank, an executed facsimile copy, to be followed promptly by
delivery of an executed original) of the Assumption and Consent Agreement in the
form attached hereto as Exhibit A, executed
by Parent in favor of Bank; (c) Bank shall have received a duly executed
original (or, if elected by Bank, an executed facsimile copy, to be followed
promptly by delivery of an executed original) of the Second Modification to Line
of Credit Note in the form attached hereto as Exhibit B, executed
by Borrower; (c) all of the representations and warranties contained herein
(or incorporated herein by reference) are true and correct as of the Effective
Date.


    
      
         


      

      
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    8. Counterparts.  This
Amendment may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.  Delivery of an executed counterpart of a signature
page to this Amendment by telefacsimile shall be as effective as delivery of a
manually executed counterpart of this Amendment.

     

    9. Severability.  If
any term or provision of this Amendment shall be deemed prohibited by or invalid
under any applicable law, such provision shall be invalidated without affecting
the remaining provisions of this Amendment or the Credit Agreement.

     

    10. Governing
Law.  This Amendment shall be governed by and construed in
accordance with the internal laws of the State of California.

     

    11. Non-Impairment.  Except
as expressly provided herein, nothing in this Amendment shall alter or affect
any provision, condition, or covenant contained in the Loan Documents or affect
or impair any rights, powers, or remedies of Bank, it being the intent of the
parties hereto that the provisions of the Loan Documents shall continue in full
force and effect except as expressly modified hereby.

     

    [Signatures
on Next Page]


    
      
         


      

      
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    In
Witness Whereof, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.

    


    
      
        
          
            
              	
                      Apio,
      Inc.

                    	 
      	
                      Wells
      Fargo Bank,

                    
	 
      	 
      	
                      National
      Association

                    
	 
      	 
      	 
      
	
                      By:

                    	 
      	 
      	
                      By:

                    	 
      
	 
      	
                      Kathleen
      Morgan

                    	 
      	 
      	
                      Tim
      Palmer

                    
	 
      	
                      Chief
      Financial Officer

                    	 
      	 
      	
                      Vice
      President