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AMENDMENT NO. 9
Dated as of June 17, 1997
This NINTH AMENDMENT is between UNITED FOODS, INC., a Delaware
corporation (the "Borrower"), and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH (the
"Bank").
PRELIMINARY STATEMENTS. The Borrower and the Bank have entered into (i)
a Revolving Credit Agreement (as amended prior to the date hereof and as may be
further amended, supplemented or otherwise modified from time to time, the
"Revolving Credit Agreement") and (ii) a Term Loan Agreement (as amended prior
to the date hereof and as may be further amended, supplemented or otherwise
modified from time to time, the "Term Loan Agreement; together with the
Revolving Credit Agreement, the "Credit Agreements"; the terms defined in the
Credit Agreements being used herein as therein defined), each dated as of August
20, 1992. Each of the Borrower and the Bank wish to amend the Credit Agreements
as hereinafter set forth.
NOW, THEREFORE, the Borrower and the Bank hereby agree as follows:
SECTION 1. Amendment to Credit Agreements. Subsection 4.01(e) of the
Credit Agreements is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, hereby
amended by deleting such subsection in its entirety and substituting, in lieu
thereof, the following:
"(e) Tangible Net Worth". As of the fiscal year end of
February 28, 1995, and as of the last day of each fiscal quarter
thereafter, Borrower shall maintain on a consolidated basis a Tangible
Net Worth of not less than $49,500,000, adjusted upward by 50% of its
net earnings, and adjusted downward by (i) 50% of its net losses; (ii)
50% of the actual amount expended by Borrower in its 1995-96 fiscal
year to repurchase its shares of stock; provided that such adjustment
pursuant to this clause (ii) shall not exceed $1,200,000 and (iii) the
lesser of (A) 100% of the actual amount expended by Borrower in its
1997-98 fiscal year to repurchase its shares of stock or (B)
$10,000,000. All adjustments shall be on a cumulative basis during the
term of this Agreement; provided that the adjustment required hereby as
a result of the adjustment required hereby as a result of clause (i)
above shall never reduce the Tangible Net Worth requirement below the
lesser of (a) $48,300,000 less actual amounts allowed by clause (iii)
hereof or (B) $40,000,000."
SECTION 2. Consent. The Borrower has informed the Bank that the
Borrower wishes to repurchase certain shares of its outstanding common stock for
an aggregate purchase price of not more than $10,000,000 (the "Tender Offer"),
it being understood that such $10,000,000 aggregate purchase price of the Tender
Offer is meant to include the aggregate purchase price of all purchases of
common stock consented to and allowed pursuant to Amendment No. 8, dated as of
May 16, 1997. To the extent that proceeds of the extensions of credit under the
Revolving Credit Agreement
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would be used for the Tender Offer, the Borrower would not be in compliance with
the requirements of Section 3.01(g) of the Revolving Credit Agreement. The Bank
hereby consents to the use of such proceeds in connection with the Tender Offer
and waives, on a limited one time basis, the requirements of Section 3.01(g) of
the Revolving Credit Agreement only to the extent that such Sections would
otherwise be violated by the Tender Offer.
SECTION 3. Conditions of Effectiveness. This Ninth Amendment shall
become effective when, and only when, the Bank shall have received counterparts
of this Ninth Amendment executed by the Borrower.
SECTION 4. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The representations and warranties contained in Section 3.01 of
each Credit Agreement are true and correct on and as of the date hereof as
though made on and as of the date hereof.
(b) The execution, delivery and performance by the Borrower of this
Ninth Amendment, and each Credit Agreement, as amended hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's charter or by-laws, or
(ii) law or any contractual restriction binding on or affecting the Borrower, or
result in, or require, the creation of any lien, security interest or other
charge, encumbrance or upon or with respect to any of its properties.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of this Ninth Amendment
or the Credit Agreements, as amended hereby.
(d) This Ninth Amendment and each Credit Agreement, as amended hereby,
constitute, legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective terms, subject,
however, to the effect on such enforceability of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless whether such
enforceability is considered in a proceeding in equity or at law).
(e) There is no pending or threatened action or proceeding affecting
the Borrower or any of its subsidiaries before any court, governmental agency or
arbitrator, which may materially adversely affect the condition, financial or
otherwise, or operations of the Borrower.
(f) No event has occurred and is continuing which constitutes an Event
of Default or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
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SECTION 5. Reference to and Effect on the Credit Agreement. (a) Upon
the effectiveness of Section 1 hereof, on and after the date hereof, each
reference in each Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import shall mean and be a reference to such Credit
Agreement as amended hereby, and each reference in either the Revolving Credit
Note or the Term Note (together, the "Notes") and the other Loan Documents to a
Credit Agreement shall mean and be a reference to such Credit Agreement as
amended hereby.
(b) Except as specifically amended above, each Credit Agreement and the
Notes shall remain in full force and effect and are hereby ratified and
confirmed in all respects.
(c) The execution, delivery and effectiveness of this Ninth Amendment
and the amendments and consents contained herein shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Bank
under the Credit Agreements, nor constitute a waiver of any provision of the
Credit Agreements.
SECTION 6. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses of the Bank in connection with the preparation,
execution and delivery of this Ninth Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel (who may be in-house
counsel) for the Bank with respect thereto and with respect to advising the Bank
as to its rights and responsibilities hereunder and thereunder. In addition, the
Borrower shall pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Ninth Amendment
and the other instruments and documents to be delivered hereunder, and agrees to
save the Bank harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes.
SECTION 7. Execution in Counterparts. This Ninth Amendment may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
SECTION 8. Governing Law. This Ninth Amendment shall be governed by,
and construed in accordance with, the laws (without giving effect to the
conflicts of laws principles thereof) of the State of New York.
SECTION 9. Final Agreement. This Ninth Amendment represents the final
agreement between you and us as to the subject matter hereof and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties. There are no unwritten oral agreements between the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
UNITED FOODS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇
Sr. Vice President -- Finance Treasurer
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
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