ex10510k033113.htm


 


 


Exhibit 10.5


 


EXECUTION VERSION


 

















SECOND AMENDMENT AGREEMENT

















SECOND AMENDMENT AGREEMENT (this “Agreement”) dated as of December 20, 2012 by and among (1) Seneca Foods Corporation, Seneca Snack Company and Seneca Foods, LLC (collectively, the “Borrowers”), (2) Marion Foods, Inc., Lebanon Valley Cold Storage, LLC and Lebanon Valley Cold Storage, LP (collectively, the “Guarantors”), (3) the financial institutions party to the Loan and Security Agreement (as defined below) as lenders (collectively, the “Lenders” and individually, a “Lender”), and (4) Bank of America, N.A. (“Bank of America”) as agent (the “Agent”) for the Lenders and as Issuing Bank with respect to a certain Second Amended and Restated Loan and Security Agreement dated as of July 20, 2011, by and among the Borrowers, the Guarantors, the Lenders, the Agent, the Issuing Bank and RBS Citizens, N.A. as Syndication Agent, as amended by that certain First Amendment Agreement dated as of August 1, 2011 (as amended, the “Loan and Security 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 Loan and Security 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 Loan and Security Agreement shall have the same meanings herein as therein.







§2. Ratification of Existing Agreements. All of the Obligors’ obligations and liabilities to the Agent, the Issuing Bank and the Lenders as evidenced by or otherwise arising under the Loan and Security Agreement, the Notes and the other Loan Documents, are, by each Obligor’s execution of this Agreement, ratified and confirmed in all respects. In addition, by each Obligor’s execution of this Agreement, each of the Obligors represents and warrants that no Obligor 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 Obligors hereby represents and warrants to the Agent, the Issuing Bank and Lenders that all of the representations and warranties made by the Obligors in the Loan and Security 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 that 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 Obligors 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 Obligors 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 Obligors of this Agreement and all other instruments and documents delivered by the Obligors in connection herewith shall have been duly and effectively taken.







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








	
(e)  

	
Delivery.












(i) This Agreement. The Obligors, the Agent, the Required Lenders and the Issuing Bank shall have executed and delivered this Agreement.







(ii)  Intercreditor Amendment. The Lenders, Hancock and Bank of America as a Lender, Administrative Agent and Collateral Agent shall have executed and delivered that certain First Amendment to Second Amended and Restated Intercreditor Agreement.







(iii)  Hancock Documents. The Agent shall have received a certified copy of (A) that certain Consent and Waiver among Hancock, the Parent and Seneca LLC, and (B) that certain Security Agreement, dated as of the date hereof, by Marion in favor of Hancock, each in form and substance satisfactory to the Required Lenders.







(iv)  General Electric Documents. The Agent shall have received a certified copy of (A) that certain Limited Recourse Guaranty, dated as of the date hereof, between Marion and General Electric, and (B) that certain Security Agreement, dated as of the date hereof, by Marion in favor of General Electric, each in form and substance satisfactory to the Required Lenders.







(v)  Other Documents. In addition, the Obligors shall have executed and delivered such further instruments and taken such further action as the Agent and the Required Lenders may have reasonably requested, in each case further to effect the purposes of this Agreement, the Loan and Security Agreement and the other Loan Documents.







§5.           Amendments to the Loan and Security Agreement.







(a) Amendment to Section 10.2.1 of the Loan and Security Agreement. Section 10.2.1 of the Loan and Security Agreement is hereby amended by deleting “and” at the end of clause (k), deleting the period at the end of clause (l) and replacing it with “; and” and adding a new clause (m) to read as follows:







“(m) the guaranty by Marion of the Indebtedness of Parent owing to General Electric under that certain Master Reimbursement Agreement.”







(b)  Amendment to Section 10.2.2 of the Loan and Security Agreement. Section 10.2.2 of the Loan and Security Agreement is hereby amended by deleting “and” at the end of clause (o), deleting the period at the end of clause (p) and replacing it with “; and” and adding a new clause (q) to read as follows:







“(q) Liens on the Collateral (as defined in that certain Security Agreement, dated as of December 20, 2012, between Marion and General Electric, as in effect on such date) to secure the Indebtedness of Marion permitted pursuant to Section 10.2.1(m).”







§6.             Miscellaneous Provisions.







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







(b)  THIS AGREEMENT, UNLESS OTHERWISE SPECIFIED, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS).







(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.


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/Timothy J. Benjamin                                                      


Name: TIMOTHY BENJAMIN


Title:    Chief Financial Officer












 


SENECA SNACK COMPANY


 







 


By:            /s/Timothy J. Benjamin                                                      


 


Name:            TIMOTHY BENJAMIN


 


Title:            Treasurer







 







SENECA FOODS, LLC







 


                                                      By:           /s/Timothy J. Benjamin                                                      


 Name: TIMOTHY BENJAMIN


            Title: Treasurer


 







 







MARION FOODS, INC.


 







By:           /s/Timothy J. Benjamin                                                      


Name: TIMOTHY BENJAMIN


 


Title:               Treasurer







 







LEBANON VALLEY COLD STORAGE, LLC







 


By:           /s/John D. Exner                                           


Name: John D. Exner


Title:  Assistant Secretary







 







LEBANON VALLEY COLD STORAGE, LP







By:           /s/John D. Exner                                           


Name:  John D. Exner


Title:  Assistant Secretary

















[Signature page to Second Amendment Agreement-Seneca]



















  





  











  


























BANK OF AMERICA, NA.,


as Agent, Lender and Issuing Bank












By:           /s/Edgar Ezerins                                           


Name:  Edgar Ezerins


Title:  Senior Vice President



































































































































































































































[Signature page to Second Amendment-Seneca]


































  





  











  































RBS CITIZENS BUSINESS CAPITAL, a division


of  RBS ASSET FINANCE, INC., a subsidiary of


RBS CITIZENS, N.A.,


 as a Lender












                                         By:                      /s/John D. Bobbin                                           


         Name:  John D. Bobbin


         Title:  Vice President










































































































































































































[Signature page to Second Amendment Agreement-Seneca]


























  





  











  













 


 

















 

 


COÖPERATIEVE CENTRALE RAIFFETSEN­


BOERENLEENBANK BA., “RABOBANK


NEDERLANU”, NEW YORK BRANCH, as a


        Lender













	  





                                                                By:           /s/Betty Janelle                                           


                                                                Name: Betty Janelle


                                                               Title: Managing Director







                                                                 By:           /s/Michael T. Harder                                           


                                                                 Name: Michael T. Harder


                                                                 Title: Executive Director







































































































































































[Signature page to Second Amendment Agreement - Seneca]







 











  





  











  













 






















MANUFACTURERS AND TRADERS TRUST


COMPANY, as a Lender












By:           /s/Jon M. Fogle                                                                


Name: Jon M. Fogle


Title:  Vice President




















































































































































































































                                               [Signature page to Second Amendment Agreement - Seneca]






  





  











  


















U.S. BANK NATIONAL ASSOCIATION,


as a Lender












By:           /s/Lisa Freeman                                                      


Name: Lisa Freeman


Title: Senior Vice President










































































































































































































[Signature page to Second Amendment Agreement - Seneca]






  





  











  













 










































WELLS FARGO BANK, N.A., as a Lender

















         By:                      /s/Krisa Wade                                           


         Name: Krista Wade


                                                                                        Title: Authorized Signatory
































































































































































































[Signature page to Second Amendment Agreement - Seneca]





























































  





  











  













 










































BMO HARRIS BANK, N.A., as a Lender

















         By:      /s/John S. Gil                                           


         Name: John S. Gil


                                                                                         Title: Director
































































































































































































[Signature page to Second Amendment Agreement - Seneca]











  





  











  













 












GENERAL ELECTRIC CAPITAL


CORPORATION, as a Lender












By:        /s/Philip F. Carfora                                           


Name:  Philip F. Carfora


Title:  Duly Authorized Signatory

















































































































































































[Signature page to Second Amendment Agreement - Seneca]