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AMENDMENT NO. 8
Dated as of May 16, 1997
This EIGHTH 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 form 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
therefore, 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)
$2,500,000. 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
$48,300,000 less actual amounts allowed by clause (iii) hereof."
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 $2,500,000 (the "Tender Offer"). To
the extent that proceeds of the extensions of credit under the Revolving Credit
Agreement 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,
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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 Eighth Amendment shall
become effective when, and only when, the Bank shall have received counterparts
of this Eighth 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
the 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
Eighth 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 Eighth
Amendment or the Credit Agreements, as amended hereby.
(d) This Eighth 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 enforeceability of (i) any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) general principles of equity (regardless
whether such enforeceability 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.
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
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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 Eighth 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 Eighth 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
Eighth 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 and delay in paying or omission
to pay such taxes.
SECTION 7. Execution in Counterparts. This Eighth 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 Eighth 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 Eighth 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.
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
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
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Manager
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