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FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT made as of October
___, 1997, by and among UNIMARK FOODS, INC., a Texas corporation which is the
Borrower, and THE UNIMARK GROUP, INC., a Texas corporation ("GROUP"), UNIMARK
INTERNATIONAL, INC., a Texas corporation and a wholly-owned subsidiary of
Group, and SIMPLY FRESH FRUIT, INC., a California corporation and a
wholly-owned subsidiary of Borrower (each of which shall be a "GUARANTOR"
hereunder and which collectively shall be "GUARANTORS"); and COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND," NEW YORK BRANCH,
a New York Branch of a Netherlands Cooperative Banking Organization which is
the Lender.
R E C I T A L S:
A. The Borrower, the Guarantors and the Lender are parties to a
Revolving Credit Agreement dated as of February 12, 1997 (the "Original Credit
Agreement").
B. The Borrower has asked the Lender to reduce the credit
available to Borrower's Mexican subsidiaries and to increase the maximum amount
of credit available to Borrower in the United States.
C. The parties desire to amend the Original Credit Agreement to
reflect such increase in the maximum amount available for the Borrower to
borrow from $8,500,000 to $9,500,000, subject to the terms and conditions
hereinafter provided.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SAME TERMS. All terms used herein which are defined in the
Original Credit Agreement shall have the same meanings when used herein, unless
the context hereof otherwise requires or provides. In addition, all references
in the Loan Documents to the "Agreement" shall mean the Original Credit
Agreement, as amended by this First Amendment to Revolving Credit Agreement,
and as the same shall hereafter be amended from time to time.
2. AMENDMENTS TO ORIGINAL CREDIT AGREEMENT. Effective as of the
date above, the following changes shall be made to the Original Credit
Agreement.
a. In Section 2.1(ii), $8,500,000 shall be changed to
$9,500,000.
b. In the Definitions contained in the Appendix, under
the definition of "Revolving Note", Exhibit 2.2 shall be changed to
Exhibit 2.2A.
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c. In Section 2.2, in the first sentence, the words "is
dated the date hereof" shall be deleted, and, therefore, the first
sentence of Section 2.2 shall now read in its entirety the following:
The Advances made by the Lender shall be evidenced by
a Revolving Note executed by the Borrower which is in
the amount of the Commitment, is payable to the order
of Lender at the office of the Lender, and bears
interest in accordance with the terms thereof.
d. Exhibit 2.2, Form of Revolving Note, shall be wholly
replaced by Exhibit 2.2A, Form of Restated Revolving Note, which is
attached hereto as Exhibit 2.2A and incorporated herein by reference.
e. Exhibit 5.9(b), Borrowing Base Certificate, shall be
wholly replaced by Exhibit 5.9(b)A, Restated Borrowing Base
Certificate, which is attached hereto as Exhibit 5.9(b)A and
incorporated herein by reference.
3. CERTAIN REPRESENTATIONS. Each Obligated Party, jointly and
severally, represents and warrants that, as of the date hereof:
(a) the representations and warranties contained in the
Original Credit Agreement are true and correct on and as of the date
hereof as made on and as of such date;
(b) no event has occurred and is continuing which
constitutes a Default or an Event of Default;
(c) the Borrower and each of the Guarantors have full
power and authority to execute this First Amendment to Revolving
Credit Agreement, and this First Amendment to Revolving Credit
Agreement constitutes the legal, valid and binding obligation of the
Borrower and each of the Guarantors enforceable in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other similar
laws affecting the enforcement of creditors' rights generally; and
(d) no authorization, approval, consent or other action
by, notice to, or filing with, any governmental authority or other
person is required for the execution, delivery and performance by the
Borrower or any of the Guarantors of this First Amendment to Revolving
Credit Agreement.
4. GUARANTORS' ACKNOWLEDGMENT. By signing below, each of the
Guarantors (i) acknowledges and consents to the execution, delivery and
performance of this First Amendment to Revolving Credit Agreement, (ii) agrees
that its obligations in respect of its Guaranty are not released, modified,
impaired or affected in any manner by this First Amendment to Revolving
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Credit Agreement or any of the provisions contemplated herein, and (iii)
acknowledges that it has no claims or offsets against, or defenses or
counterclaims to, its Guaranty.
5. CONDITIONS OF EFFECTIVENESS. This First Amendment to
Revolving Credit Agreement shall be effective as of the date and year first
above written, subject to the following:
(a) The Lender shall have received this First Amendment
to Revolving Credit Agreement executed by Borrower and each Guarantor;
and
(b) The Lender shall have received the Restated Revolving
Note and the Restated Borrowing Base Certificate executed by Borrower,
such Restated Revolving Note to be in substitution for, in lieu of,
and in replacement of that certain Revolving Note executed by Borrower
on February 12, 1997.
6. LIMITATION ON AGREEMENTS. The modifications set forth herein
are limited precisely as written and shall not be deemed (a) to be a consent
under or a waiver of or an amendment to any other term or condition in the
Original Credit Agreement or any of the Loan Documents, or (b) to prejudice any
right or rights which the Lender now has or may have in the future under or in
connection with the Original Credit Agreement and the Loan Documents, each as
amended hereby, or any of the other documents referred to herein or therein.
This First Amendment to Revolving Credit Agreement shall constitute a Loan
Document for all purposes. The Original Credit Agreement, as amended by this
First Amendment to Revolving Credit Agreement, and all other Loan Documents
executed in connection therewith shall remain in full force and effect and are
hereby ratified and confirmed.
7. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand
all costs and expenses of the Lender in connection with the preparation,
reproduction, execution and delivery of this First Amendment to Revolving
Credit Agreement and the other instruments and documents to be delivered
hereunder (including the reasonable fees and out-of- pocket expenses of counsel
for the Lender with respect thereto and with respect to advising the Lender as
to its rights and responsibilities under the Revolving Credit Agreement, as
amended by this First Amendment to Revolving Credit Agreement).
8. EXECUTION IN COUNTERPARTS. This First Amendment to Revolving
Credit Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each 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.
9. ENTIRETY, ETC. This instrument together with all of the other
Loan Documents embodies the entire agreement between the parties. THIS
AGREEMENT AND ALL OF THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES 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 executed this
First Amendment to Revolving Credit Agreement to be effective as of the date
and year first above written.
BORROWER AND OBLIGATED PARTY:
UNIMARK FOODS, INC.
By:
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Name:
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Title:
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Notice Address:
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OTHER OBLIGATED PARTIES:
THE UNIMARK GROUP, INC.
By:
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Name:
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Title:
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UNIMARK INTERNATIONAL, INC.
By:
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Name:
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Title:
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SIMPLY FRESH FRUIT, INC.
By:
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Name:
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Title:
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LENDER:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND, NEW YORK BRANCH,
a New York Branch of a Netherlands
Cooperative Banking Organization
By:
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Name:
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Title:
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By:
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Name:
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Title:
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NOTICE ADDRESS:
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Attention: Corporate Services
cc: Rabobank Nederland
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