FIRST AMENDMENT to the SECOND AMENDED AND RESTATED ALLIANCE AGREEMENT
Exhibit 10
FIRST AMENDMENT to the
SECOND AMENDED AND RESTATED
Note: Certain portions of this agreement, indicated by an "*", and the exhibits to this agreement, have been omitted pursuant to a request for confidential treatment filed via paper with the Securities and Exchange Commission.
This Amendment, dated June 11, 2010, and effective as of May 26, 2010 (“Amendment Date”), is between General Xxxxx Operations, LLC (“GMOL”) and Seneca Foods Corporation (“Seneca”) (“Amendment”).
WHEREAS, GMOL and Seneca entered into a Second Amended and Restated Alliance Agreement with a revised effective date of April 1, 2009 (“Agreement”); and
WHEREAS, GMOL and Seneca wish to amend the Agreement for the primary purpose of removing the facility in Buhl, Idaho as a Core Alliance Plant in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the covenants and conditions contained herein, the parties agree as follows:
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I.
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Core Alliance Plants
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GMOL shall make a one-time payment to Seneca in the amount of $* in consideration for removal of the Buhl Facility from the definition of Core Alliance Plants as of the Amendment Date (“Payment”). Payment will be made by GMOL via wire transfer within three business days after receipt of a fully executed copy of this Amendment.
The “Buhl Facility” shall mean the vegetable processing facility currently operated by Seneca in Buhl, Idaho. Exhibit A is deleted in its entirety and replaced with the attached Amended Exhibit A to reflect the new status of the Buhl Facility as a Former Alliance Plant.
After making the Payment, GMOL shall have no further responsibilities for, and shall not make payment for, any expenses related to the Buhl Facility or liabilities arising from the Buhl Facility, including without limitation: (a) any obligation to employ, pay severance or any other expenses or obligation associated with persons employed at the Buhl Facility; (b) the transfer of volume away from the Buhl Facility; or (c) a closing or sale of the Buhl facility (collectively, “Excluded Expenses”).
Notwithstanding anything herein to the contrary, the Excluded Expenses are not intended to alter GMOL’s obligations under the Agreement to pay for expenses that are properly part of Fully Allocated Costs attributable to Product purchased by GMOL under the Agreement (subject to the adjustments set forth in Section III hereof). GMOL shall continue to pay the Transfer Price, as set forth in Article III of the Agreement, for any Products GMOL continues to purchase out of the Buhl Facility except as set forth in Section III “Adjustment to Fully Allocated Costs” hereof.
Seneca shall cooperate with GMOL to facilitate the transfer of Products from the Buhl Facility to the Seneca Facilities in Glencoe, Minnesota and Montgomery, Minnesota as requested by GMOL. The Price terms set out in the Agreement shall continue to apply to such transferred volume.
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II.
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RCP Program
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The Payment for the removal of the Buhl Facility shall have the following impact on the method of calculating future RCP Principal Balances. The Payment shall result in a one-time reduction of $* to RCP Principal Balance in the year ending March 31, 2011. (The process underlying this reduction is reflected in Amended Exhibit C, attached hereto, wherein the Payment is included as a positive cash flow item that increases the Net Free Cash Flow and, in turn, decreases RCP Principal Balance.) As of Amendment Date, Buhl shall be removed from “RCP Plants” (as defined in section 7.1(i)) and the RCP Principal Balance shall not include any capital cost, depreciation expense, cost of credit or any other expense of any kind relating to the Buhl Facility.
Exhibit C is deleted and replaced in its entirety and with an updated exhibit reflecting the new RCP Principal Balance attached as Amended Exhibit C. The Buhl Facility shall be removed from the definition of RCP Plants.
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III.
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Adjustment to Fully Allocated Costs
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The parties acknowledge that GMOL is currently paying for a portion of the depreciation and amortization associated with assets and equipment leases at the Buhl Facility (“A&E Costs”). A&E Costs shall include, without limitation, the assets and leases listed in the attached Exhibit 1A, but shall not include the items listed as “Excluded” in Exhibit 1A. Effective April 1, 2010, any and all charges arising from A&E Costs shall be removed from Fully Allocated Costs and Seneca shall not charge GMOL for any portion of A&E Costs through Fully Allocated Costs or any other mechanism. The estimated reduction in A&E Costs is reflected in Exhibit 1B.
All other terms and conditions in the Agreement shall remain unaltered and in full force and effect. All terms not defined herein shall have the meaning set forth in the Agreement. This Amendment may be executed in counter parts and facsimile or email signatures shall be valid and enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the day and year first above written.
SENECA FOODS CORPORATION GENERAL XXXXX OPERATIONS, LLC
By: /s/Xxxx Xxxxxx By:____/s/Xxxxxx Young_________________
Title: Executive Vice President COO Title: __Vice President, Finance Supply Chain
Date:___June 11, 2010___________________ Date:___June 11, 2010___________________
