ex102061608.htm


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    


     

     

    SECOND
AMENDMENT AGREEMENT

     

    SECOND AMENDMENT AGREEMENT
(this “Agreement”) dated
as of April 28, 2008 by and among (1) Seneca Foods Corporation, Seneca Snack
Company and Seneca Foods, LLC (formerly known as Signature Fruit Company, LLC)
(collectively, the “Borrowers”), (2) the lending
institutions party to the Credit Agreement (as defined below) as lenders
(collectively, the “Lenders” and individually, a
“Lender”), (3) Bank of
America, N.A. (“Bank of
America”) as administrative agent (the “Administrative Agent”) for the Lenders and
(4) Bank of America as collateral agent for the Lenders and as an Issuing Bank
and as Swing Line Lender (in such respective capacities, the “Collateral Agent”, an “Issuing Bank” and/or “Swing Line Lender” as the case
may be) with respect to a certain Amended and Restated Revolving Credit
Agreement dated as of August 18, 2006, by and among the Borrowers, the Lenders,
the Administrative Agent, the Collateral Agent, the Issuing Bank and the
Documentation Agent party thereto, as amended by that certain First Amendment
Agreement dated as of November 20, 2006 (as amended from time to time, the
“Credit
Agreement”).

     

    W
I T N E S S E T H:

     

    WHEREAS, the Borrowers have
requested that the Lenders agree to amend certain provisions of the Credit
Agreement; and

     

    WHEREAS, the Lenders have
agreed to such amendments, on the terms and conditions set forth
herein.

     

    NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:

     

    §1. Definitions.  Capitalized
terms used herein without definition that are defined in the Credit Agreement
shall have the same meanings herein as therein.

     

    §2. Ratification
of Existing Agreements.  All of the Borrowers’ obligations and
liabilities to the Administrative Agent, the Collateral Agent, the Issuing Bank
and the Lenders as evidenced by or otherwise arising under the Credit Agreement,
the Notes and the other Loan Documents, are, by each Borrower’s execution of
this Agreement, ratified and confirmed in all respects.  In addition,
by each Borrower’s execution of this Agreement, each of the Borrowers represents
and warrants that no Borrower has any counterclaim, right of set-off or defense
of any kind with respect to such obligations and liabilities.

     

    §3. Representations
and Warranties.  Each of the Borrowers hereby represents and
warrants to the Administrative Agent, the Collateral Agent, the Issuing Bank and
Lenders that all of the representations and warranties made by the Borrowers in
the Credit Agreement, the Notes and the other Loan Documents are true in all
material respects on the date hereof as if made on and as of the date hereof,
except to the extent there are changes resulting from transactions contemplated
or permitted by the Credit Agreement and the other Loan Documents, changes
occurring in the ordinary course of business that singly or in the aggregate are
not materially adverse, and to the extent such representations and warranties
relate expressly to an earlier date.

     

    §4. Conditions
Precedent.  The effectiveness of the amendments contemplated
hereby shall be subject to the satisfaction on or before the date hereof of each
of the following conditions precedent:

     

    (a) Representations and
Warranties.  All of the representations and warranties made by
the Borrowers herein, whether directly or incorporated by reference, shall be
true and correct on the date hereof except as provided in §3
hereof.

     

    (b) Performance; No Event of
Default.  The Borrowers shall have performed and complied in
all respects with all terms and conditions herein required to be performed or
complied with by them prior to or at the time hereof, and there shall exist no
Default or Event of Default.

     

    (c) Action.  All
requisite corporate or other action necessary for the valid execution, delivery
and performance by the Borrowers of this Agreement and all other instruments and
documents delivered by the Borrowers in connection therewith shall have been
duly and effectively taken.

     

    (d) Expenses and
Fees.  The Borrowers shall have paid to the Administrative
Agent the reasonable fees and expenses of counsel to the Administrative Agent in
connection with the preparation of this Agreement.

     

    (e) Delivery.  The
Borrowers, the Required Lenders and the Issuing Bank shall have executed and
delivered this Agreement.  In addition, the Borrowers shall have
executed and delivered such further instruments and taken such further action as
the Administrative Agent and the Required Lenders may have reasonably requested,
in each case further to effect the purposes of this Agreement, the Credit
Agreement and the other Loan Documents.

     

    §5. Amendments
to the Credit Agreement.

     

    (a) Amendment to clause (a) of
Section 8.3.  Clause (a) of Section 8.3 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:

     

    “(a)
keep, and cause each of their Subsidiaries to keep, true and accurate records
and books of account in which full, true and correct entries will be made in
accordance with GAAP (except that they may at their option use the last-in,
first-out method of accounting so long as they also keep records and books of
account sufficient for them to make the computations required to be made by
them, and to comply with their obligations, under this Agreement as if they were
still using a first-in, first-out method of accounting),”

     

    (b) Amendment to subsection (c)
of Section 8.4.  Subsection (c) of Section 8.4 of the Credit
Agreement is hereby amended by adding the following to the end of such
subsection:

     

    “;
without limiting the generality of the foregoing, with respect to any fiscal
period as to which any of the Borrowers use a last-in, first-out method of
accounting, the computations set forth in Appendix I attached to each Compliance
Certificate shall set forth, in addition to all other computations required to
be set forth therein, computations of EBITDA and the Fixed Charge Coverage Ratio
as if the Borrowers were using a first-in, first-out method of
accounting.”

     

    (c) Amendment to subsection (e)
of Section 8.4.  Subsection (e) of Section 8.4 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:

     

    “(e)           within
twenty (20) days after the end of each fiscal month or at such earlier time as
the Administrative Agent may reasonably request, (i) a Borrowing Base Report
setting forth the Borrowing Base as at the end of such fiscal month or other
date so requested by the Administrative Agent and (ii) a listing of all
locations where inventory of Signature Fruit is located and the value of the
inventory located thereon, in form and detail satisfactory to the Administrative
Agent (which value shall be computed on a first-in, first-out basis); provided
that the Borrowing Base Report will be delivered weekly setting forth the
Borrowing Base as at the end of each calendar week within five (5) days after
the ending of each week during which the Excess Availability Percentage is less
than 30% for each Business Day of such week (or for any period of five (5)
consecutive Business Days ending during such week); (it being understood that
such weekly Borrowing Base Reports shall reflect changes in Accounts Receivable
and that changes in inventory and ineligible Accounts Receivable and inventory
will continue to be updated on a monthly basis);”

     

    §6. Miscellaneous
Provisions.

     

    (a) Except as
otherwise expressly provided by this Agreement, all of the respective terms,
conditions and provisions of the Credit Agreement, the Notes and the other Loan
Documents shall remain the same.  The Credit Agreement, as amended
hereby, shall continue in full force and effect, and this Agreement and the
Credit Agreement, shall be read and construed as one instrument.

     

    (b) This
Agreement is intended to take effect under, and shall be construed according to
and governed by, the laws of the State of New York, excluding any choice of law
or conflicts of law principles that would permit or require the applications of
the laws of another jurisdiction.

     

    (c) This
Agreement may be executed in any number of counterparts, but all such
counterparts shall together constitute but one instrument.  In making
proof of this Agreement it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.  A facsimile of an executed counterpart
shall have the same effect as the original executed counterpart.

     

    [Remainder
of Page Intentionally Left Blank; Signature Page Follows]

     


    
      
        
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    IN WITNESS WHEREOF, the
undersigned have duly executed this Second Amendment Agreement as of the date
first set forth above.

     

    SENECA
FOODS CORPORATION

     

    


     

    


     

    By:  /s/Roland E.
Breunig

     

    Name:
Roland E. Breunig

     

    Title:   CFO

     

    SENECA
SNACK COMPANY

     

    


     

    


     

    By:  /s/ Jeffrey Van
Riper

     

    Name:
Jeffrey Van Riper

     

    Title:   Secretary

     

    SENECA
FOODS, LLC

     

    


     

    


     

    By:  /s/ Jeffrey Van
Riper

     

    Name:  Jeffrey
Van Riper

     

    Title:    Secretary

     

    The
undersigned acknowledges and accepts the foregoing and ratifies and confirms its
obligations under the Marion Guaranty:

     

    MARION
FOODS, INC.

     

    


     

    


     

    By:  /s/ Jeffrey Van
Riper                                                                

     

    Name:  Jeffrey
Van Riper

     

    Title:    Secretary

     


    
      
        
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          A/72495885.2 

           

        

         


      

      
         


        
          

        

      

      
         


      

    


    BANK
OF AMERICA, N.A.,

     

    individually,
as a Lender, as Administrative Agent, as Collateral Agent and as Issuing
Bank

     

    


     

    


     

    By:   /s/Lisa Freeman

     

    Name:  Lisa
Freeman

     

    Title:    Senior
Vice President

     

    GENERAL
ELECTRIC CAPITAL CORPORATION,

     

    as
a Lender and as Syndication Agent

     

    


     

    


     

    By:  /s/ Meeno
Sameer

     

    Name:
Meeno Sameer

     

    Title:   Duly
Authorized Signatory

     

    COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK
BRANCH, as a Lender and as Documentation Agent

    


    


    By:  /s/Betty Mills

    Name:  Betty
Mills

    Title:    Executive
Director

    


     

    


     

    By:  /s/Brett
Delfino

                                    Name:  Brett
Delfino

                                    Title:    Executive
Director

     

    M&T
TRUST COMPANY,

     

    as
a Lender

     

    


     

    


     

    By:  /s/ Jon M.
Fogle

     

    Name:  Jon
M. Fogle

     

    Title:    Vice
President

     

    U.S.
BANK NATIONAL ASSOCIATION,

     

    as a
Lender

     

    


     

    


     

    By:  /s/James CD.
Pegues

     

    Name:
James CD. Pegues

     

    Title:   Vice
President

     


    
      
        
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