Exhibit 10.1
$120,000,000
CREDIT AGREEMENT
Dated as of March 7, 2001
Among
▇▇▇▇▇▇▇▇ BRANDS, INC.
as Borrower,
EACH OF THE LENDERS
INITIALLY A SIGNATORY HERETO,
TOGETHER WITH THOSE ASSIGNEES
PURSUANT TO SECTION 14.6 HEREOF,
as Lenders,
and
FOOTHILL CAPITAL CORPORATION,
as Arranger and Administrative Agent
EXHIBITS AND SCHEDULES EXHIBITS
Exhibit A Form of Acknowledgment Agreement
Exhibit B Form of Assignment and Acceptance
Exhibit C-1 Form of Revolving Note
Exhibit C-2 Form of Term Loan Note
Exhibit D Form of Notice of Borrowing
Exhibit E-1 Form of Lockbox Agreement
Exhibit E-2 Form of Lockbox Letter
Exhibit F Form of Compliance Certificate
Exhibit F-1 Form of Monthly Compliance Certificate
Exhibit G Form of Revolving Credit Borrowing Base
Certificate
Exhibit H Form of Solvency Certificate
Exhibit I Form of Account Designation Letter
Exhibit J Form of Joinder Agreement
Exhibit K Closing Checklist
SCHEDULES
Schedule 1.1A Lenders and Commitments
Schedule 1.1B Existing Letters of Credit
Schedule 1.1C Liens
Schedule 1.1D Indebtedness
Schedule 1.1E Investments
Schedule 3.1 Issuance of Letters of Credit
Schedule 6.1 Jurisdictions of Organization
Schedule 6.7 Collateral Locations
Schedule 6.8 Fictitious Business Names
Schedule 6.9 Borrower and Subsidiaries
Schedule 6.10 Litigation
Schedule 6.15 ERISA
Schedule 6.16 Environmental Disclosures
Schedule 6.18 Intellectual Property
Schedule 6.26 CBII Obligations
Schedule 6.29 Material Contracts
Schedule 6.31 Affiliate Transactions
Schedule 6.32 Insurance
Schedule 9.3 Permitted Asset Sales
Schedule 9.3A Additional Permitted Investments
Schedule 9.6 Tax Sharing Arrangements
Schedule 9.10 Bank Accounts
Schedule 9.12 Negative Pledges
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of March 7, 2001 among
▇▇▇▇▇▇▇▇ BRANDS, INC., a Delaware corporation (the "Borrower"),
each of the lenders identified as Lenders on SCHEDULE 1.1A
hereto (together with each of their successors and
assigns, referred to individually as a "Lender" and,
collectively, as the "Lenders"), and FOOTHILL CAPITAL CORPORATION
("Foothill"), acting as arranger and administrative agent in the
manner and to the extent described in ARTICLE XIII hereof (in
such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower wishes to obtain a revolving
credit facility and a term loan facility for the purposes set
forth hereinafter; and
WHEREAS, upon the terms and subject to the conditions
set forth herein, the Lenders are willing to make loans and
advances to the Borrower;
NOW, THEREFORE, the Borrower, the Lenders and the Agent
hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 GENERAL DEFINITIONS.
As used herein, the following terms shall have the
meanings herein specified:
"Ableco" shall mean Ableco Finance LLC.
"Accounts" shall mean all of the Borrower's "accounts"
(as defined in the Code), whether now existing or existing in the
future, including, without limitation, all (i) accounts
receivable (whether or not specifically listed on schedules
furnished to the Agent), including, without limitation, all
accounts created by or arising from all of the Borrower's sales
of goods or rendition of services made under any of the
Borrower's trade names or styles, or through any of the
Borrower's divisions; (ii) unpaid seller's rights (including
rescission, replevin, reclamation and stopping in transit)
relating to the foregoing or arising therefrom, (iii) rights to
any goods represented by any of the foregoing, including returned
or repossessed goods; (iv) reserves and credit balances held by
the Borrower with respect to any such accounts receivable or
account debtors; (v) guarantees or collateral for any of the
foregoing; and (vi) insurance policies or rights relating to any
of the foregoing.
"Acknowledgement Agreements" shall mean the
Acknowledgment Agreements, substantially in the form of EXHIBIT A
hereto, between the Borrower's warehousemen, fillers, packers and
processors and the Agent, in each case acknowledging and
agreeing, among other things, (A) that such warehousemen,
fillers, packers and processors do not have any Liens on any of
the property of the Borrower or any Subsidiary and (B) to the
collateral assignment by the Borrower to the Agent of its
interest in the contracts with each of such warehousemen,
fillers, packers and processors.
"Acquired Company" shall mean the Person (or the assets
or business thereof) which is acquired pursuant to an
Acquisition.
"Acquisition" shall mean (i) the purchase of the
Capital Stock of a Person, (ii) the purchase of all or a
substantial portion of the assets or business of any Person or
(iii) the merger or consolidation with a Person in which the
Borrower or a Subsidiary shall be the surviving or resulting
corporation.
"Acquisition Documents" shall mean any agreement
pursuant to which an Acquisition is made in accordance with the
terms hereof, including the exhibits and schedules thereto, and
all agreements, documents and instruments executed and delivered
pursuant thereto or in connection therewith.
"Affiliate" shall mean any entity which directly or
indirectly controls, is controlled by, or is under common control
with, the Borrower or any Subsidiary of the Borrower. For
purposes of this definition, "control" shall mean the possession,
directly or indirectly, of the power to (i) vote ten percent
(10%) or more of the securities having ordinary voting power for
the election of directors of such Person, or (ii) direct or cause
the direction of management and policies of a business, whether
through the ownership of voting securities, by contract or
otherwise and either alone or in conjunction with others or any
group.
"Agent" shall mean Foothill as provided in the preamble
to this Credit Agreement or any successor to Foothill.
"Agent Bank Account" shall have the meaning set forth
in SECTION 7.18(A).
"Agent's Fees" shall mean the fees payable by the
Borrower to the Agent as described in the Fee Letter.
"Aggregate Commitment" means the sum of the
Commitments.
"Allocated CBII Overhead" shall mean the following
overhead and disbursements of CBII, but only to the extent that
they are allocated to the Borrower or any of its consolidated
Subsidiaries: salaries, pension and benefit expenses, taxes
(other than taxes on income or revenue), insurance costs, legal
expenses, communication and maintenance fees, travel expenses,
outside accounting fees, headquarter office expenses, deferred
compensation and non-contractual severance expenses, but
excluding Permitted Restructuring Expenses, and principal,
interest and other fees related to any Indebtedness.
"Applicable Prepayment Premium" means, as of any date
of determination, an amount equal to (a) during the period of
time from and after the date of the execution and delivery of
this Credit Agreement, up to the date that is the first
anniversary of the Closing Date, $3,600,000, (b) during the
period of time from and including the date that is the first
anniversary of the Closing Date up to the date that is the second
anniversary of the Closing Date, $2,400,000, and (c) during the
period of time from and including the date that is the second
anniversary of the Closing Date up to the Maturity Date $600,000.
In the event of an early termination of this Agreement and a
prepayment in full of all of the Obligations from a Qualified
Refinancing, the amount of the Applicable Prepayment Premium
determined hereunder shall be reduced by a percentage equal to
the amount of the Commitment which is held by (a) those Lenders
that participate in the Qualified Refinancing plus (b) those
Lenders (other than Foothill or Ableco) which were offered the
opportunity to participate in the Qualified Refinancing at a
level of commitment equivalent to the respective pro rata
Commitments of such Lenders hereunder and which elected not to so
participate (the "Declining Lenders") divided by the total of all
the Commitments and the amount of such Applicable Prepayment
Premium (as so reduced) shall be allocated to the Lenders (other
than Declining Lenders) not participating in such replacement
credit facility.
"Appraisal" shall mean that certain Trademarks and
Tradenames Valuation dated December 5, 2000 performed by ▇▇▇▇▇
▇▇▇▇▇▇ Appraisal Corporation relating to ▇▇▇▇▇▇▇▇ Brands
International, Inc., a copy of which was delivered to the Lenders
on or prior to January 26, 2001.
"Asset Disposition" shall mean the disposition (other
than (i) a disposition described in clauses (a), (b), (c), (g) or
(i) of SECTION 9.3, (ii) a disposition described in clause (d) of
SECTION 9.3, to the extent that any Asset Sale Block put in place
or any cash proceeds held by the Agent, in either case in
connection therewith pursuant to SECTION 9.3 hereof, are released
by the Agent as provided in SECTION 9.3 within one hundred and
twenty (120) days of such disposition, (iii) Specified Asset
Dispositions and (iv) the sales of one or more Tropical Farms
(and equity interests in Persons which own only Tropical Farms)
to the extent that any Farm Sale Block put in place or any cash
proceeds held by the Agent, in either case in connection
therewith pursuant to SECTION 9.3, are released by the Agent as
provided in SECTION 9.3 within one hundred and twenty (120) days
of such sale) of any or all of the assets (including, without
limitation, the Capital Stock of the Borrower or its
Subsidiaries) of the Borrower or its Subsidiaries, whether by
sale, lease, transfer or otherwise, in a single transaction, or
in a series of related transactions in any consecutive twelve
(12) month period beginning on or after the Closing Date (a) that
have a fair market value in the aggregate in excess of $1,000,000
or (b) for Net Cash Proceeds in the aggregate in excess of
$1,000,000.
"Asset Loss" shall have the meaning given to such term
in SECTION 7.10.
"Asset Sale Block" shall have the meaning set forth in
SECTION 9.3.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by an assigning Lender and an assignee
Lender, accepted by the Agent, in accordance with SECTION
14.6(F), in the form attached hereto as EXHIBIT B.
"Availability" shall mean an amount equal to the excess
of (i) the Revolving Credit Borrowing Base over (ii) the sum of
(a) the outstanding amount of Revolving Loans and Letter of
Credit Obligations plus (b) the aggregate amount, if any, of all
trade payables of Borrower and the other Credit Parties aged in
excess of historical levels with respect thereto and all book
overdrafts in excess of historical practices with respect
thereto, in each case as determined in good faith by the Agent.
"Back-to-Back Loan" shall mean a loan made to a
Subsidiary by a financial institution in which the Borrower or
another Subsidiary (other than an Excluded Entity) owns a one
hundred percent (100%) participation interest.
"Benefit Plan" shall mean a defined benefit plan as
defined in Section 3(35) of ERISA (other than a Multiemployer
Plan) in respect of which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate is, or within the immediately
preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"Borrower" shall have the meaning given to such term in
the preamble of this Credit Agreement.
"Borrower Entities" shall mean the Borrower, each
Guarantor and each Subsidiary which is party to one or more
Credit Documents.
"Business Day" shall mean any day other than a
Saturday, a Sunday, a legal holiday or a day on which national
banks are authorized or required by law or other governmental
action to close.
"Capital Expenditures" shall mean expenditures for the
acquisition (including the acquisition by capitalized lease) or
improvement of capital assets, as determined in accordance with
GAAP.
"Capital Lease" shall mean, as applied to any Person,
any lease of any property (whether real, personal or mixed) by
that Person as lessee which, in accordance with GAAP, is or
should be accounted for as a capital lease on the balance sheet
of that Person.
"Capital Stock" shall mean (i) in the case of a
corporation, capital stock, (ii) in the case of an association or
business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited
liability company, membership interests and (v) any other equity
interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by
the United States or any agency or instrumentality thereof
(PROVIDED that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than
one (1) year from the date of acquisition, (ii) time deposits or
certificates of deposit of any commercial bank incorporated under
the laws of the United States or any state thereof, of recognized
standing having capital and unimpaired surplus in excess of
$1,000,000,000 and whose short-term commercial paper rating at
the time of acquisition is at least A-1 or the equivalent thereof
by Standard & Poor's Corporation or at least P-1 or the
equivalent thereof by ▇▇▇▇▇'▇ Investors Services, Inc. (any such
bank, an "Approved Bank"), with such deposits or certificates
having maturities of not more than one (1) year from the date of
acquisition, (iii) repurchase obligations with a term of not more
than seven (7) days for underlying securities of the types
described in clauses (i) and (ii) above entered into with any
Approved Bank, (iv) commercial paper or finance company paper
issued by any Person incorporated under the laws of the United
States or any state thereof and rated at least A-1 or the
equivalent thereof by Standard & Poor's Corporation or at least P
1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc.,
and in each case maturing not more than one year after the date
of acquisition, and (v) investments in money market funds that
are registered under the Investment Company Act of 1940, as
amended, which have net assets of at least $1,000,000,000 and at
least eighty-five percent (85%) of whose assets consist of
securities and other obligations of the type described in
clauses (i) through (iv) above. All such Cash Equivalents must
be denominated solely for payment in Dollars.
"CBCNA" shall mean ▇▇▇▇▇▇▇▇ Brands Company, North
America, a Delaware corporation.
"CBII" shall mean ▇▇▇▇▇▇▇▇ Brands International, Inc.,
a New Jersey corporation.
"Change of Control" shall mean the occurrence of any of
the following: (i) (a) other than Permitted Holders, any Person
or group of Persons acting collectively, owns more than thirty
percent (30%) of the equity shares of CBII entitled to vote for
the election of the Board of Directors of CBII (the "Voting
Shares"), (b) such Persons own more Voting Shares than the
Permitted Holders and (c) the Permitted Holders do not have the
voting power to elect or appoint a majority of the Board of
Directors of CBII, (ii) CBII ceases to own, directly or
indirectly, one hundred percent (100%) of the issued and
outstanding Capital Stock of the Borrower, or (iii) the Borrower
ceases to own directly or indirectly one hundred percent (100%)
of the issued and outstanding Capital Stock of any Secured Credit
Party (other than the Borrower) or ▇▇▇▇▇▇▇▇ Banana Company B.V.,
a Netherlands company.
"▇▇▇▇▇▇▇▇ Fresh Latin American Group" shall mean the
following Persons and their Subsidiaries:
- Blue Fish Holdings Establishment/CILPAC
Establishment and their Subsidiaries (excluding
▇▇▇▇▇▇ Holdings, Ltd. and its Subsidiaries)
- Valk Deelnemingen Establishment, Zwaan
Deelnemingen Establishment, Buizerd Deelnemingen
Establishment, Mus Deelnemingen Establishment,
Kaketoe Deelnemingen Establishment, Struisvogel
Deelnemingen Establishment, SZS Sargasso
Zeeblelangen B.V. Establishment, Occidentalis
Atlantis Establishment, Zonnekoning Overzee B.V.
Establishment and their Subsidiaries
- Conexpro Inc. Establishment and its Subsidiaries
- Antioquia Establishment/Bijzondere Benedenwindse
Beleggingen Establishment/Uraba
Establishment/Tairona Establishment/Quindio
Establishment and their Subsidiaries
- Banacorp, S.A./Compania Bananera Guatemalteca
Independiente, S.A. and their Subsidiaries
- Catellia Ltd./Tropical Traders Ltd./Compania
- Agricola San Nicolas, S.A. and their Subsidiaries
- Financiera Agro-Exportaciones Limitada
- Financiera ▇▇▇▇▇▇▇▇ Limited
- Financiera Agricola Limited
- ▇▇▇▇▇▇▇▇ International Services Group
N.V./Banexpro Ltd./Brundicorpi S.A. and their
Subsidiaries
"▇▇▇▇▇▇▇▇ Fresh European Group" shall mean the
following Persons and their Subsidiaries:
- ▇▇▇▇▇▇▇▇ Banana Company, B.V.
- ▇▇▇▇▇▇▇▇ Compagnie des Bananes
- ▇▇▇▇▇▇▇▇ CR, S.r.o.
- ▇▇▇▇▇▇▇▇ Finland Oy
- ▇▇▇▇▇▇▇▇ Fresh B.V.B.A.
- ▇▇▇▇▇▇▇▇ Frupac B.V.
- ▇▇▇▇▇▇▇▇ Italia, S.p.A.
- ▇▇▇▇▇▇▇▇ Packaged Goods Distributing S.r.l.
- ▇▇▇▇▇▇▇▇ Tropical Fruit Company B.V.
- B.V. v/h Bruigom en ▇▇▇▇▇▇
- Banafruta-Comercio de Bananas, LDA
- E.C. van Eeuwijk Banaanen B.V.
- International Banana Ripening Company N.V.
- Processed Fruit Ingredients B.V.
- ▇▇▇▇▇▇ N.V.
- Ter Wal Bananen B.V.
"CIL" shall mean ▇▇▇▇▇▇▇▇ International Limited, a
Bermuda company.
"Citrus" shall mean ▇▇▇▇▇▇▇▇ Gulf Citrus, Inc., a
Delaware corporation.
"Closing" shall mean the consummation of the making of
the initial loan or advance by the Lenders to the Borrower under
this Credit Agreement.
"Closing Date" shall mean the date on which the Closing
occurs.
"Code" shall have the meaning set forth in SECTION 1.3.
"Collateral" shall mean any and all assets and rights
and interests in or to property pledged from time to time as
security for the Obligations pursuant to the Security Documents
whether now owned or hereafter acquired, including, without
limitation, all of the Accounts, Chattel Paper, Deposit Accounts,
Documents, Equipment, Fixtures, General Intangibles (including
all intellectual property), Inventory, Instruments, Investment
Property and Proceeds (each as defined in the Security
Agreements).
"Commitment" of any Lender means the amount set forth
opposite such Lender's name on Schedule 1.1A hereto, as such
amounts may be modified as a result of an assignment hereunder,
or as a result of a reduction pursuant to SECTION 2.3.
"Consolidated" or "consolidated" with reference to any
term defined herein, shall mean that term as applied to the
accounts of the Borrower and all of its consolidated
Subsidiaries, consolidated in accordance with GAAP.
"Consolidated Capital Expenditures" shall mean, for any
applicable period of computation, an amount equal to the
consolidated aggregate expenditures of the Borrower and its
consolidated Subsidiaries (other than CPF and its Subsidiaries)
during such fiscal period for the acquisition (including the
acquisition by capitalized lease) or improvement of capital
assets, as determined in accordance with GAAP.
"Consolidated Cash Taxes" shall mean, for any
applicable period of computation, the aggregate of all taxes of
the Borrower and its consolidated Subsidiaries (other than CPF
and its Subsidiaries) on a consolidated basis determined in
accordance with applicable law and GAAP applied on a consistent
basis, to the extent the same are paid in cash during such period
and the aggregate amount of all tax distributions made in cash as
described in SCHEDULE 9.6(B) during such period.
"Consolidated EBITDA" shall mean, for any applicable
period of computation, the sum of (i) Consolidated Net Income for
such period, but excluding therefrom all extraordinary items of
income and all extraordinary non-cash items of loss, plus (ii)
the aggregate amount of depreciation and amortization charges
made in calculating Consolidated Net Income for such period, plus
(iii) aggregate Consolidated Interest Expense for such period,
plus (iv) the aggregate amount of all income taxes reflected on
the consolidated statements of income of the Borrower and its
Subsidiaries (other than CPF and its Subsidiaries) for such
period.
"Consolidated Fixed Charges" shall mean, for any
applicable period of computation, without duplication, the sum of
(i) all Consolidated Interest Expense for the applicable period,
plus (ii) Consolidated Scheduled Funded Debt Payments due during
the applicable period, plus (iii) Consolidated Cash Taxes for the
applicable period, plus (iv) Unallocated CBII Overhead for the
applicable period.
"Consolidated Funded Debt" shall mean, as of the date
of determination, all Funded Indebtedness of the Borrower and its
consolidated Subsidiaries (other than CPF and its Subsidiaries),
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any
applicable period of computation, interest expense, net of
interest income, of the Borrower and its consolidated
Subsidiaries (other than CPF and its Subsidiaries) for such
period, as determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any
applicable period of computation, the consolidated net income (or
net deficit) of the Borrower and its consolidated Subsidiaries
(other than CPF and its Subsidiaries) for such period, after
deduction of all expenses, taxes and other proper charges, all as
determined in accordance with GAAP.
"Consolidated Scheduled Funded Debt Payments" shall
mean, for any applicable period of computation, the sum of all
scheduled payments of principal on Consolidated Funded Debt for
such period (including the principal component of payments due on
Capital Leases or under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance
sheet financing product (but excluding true leases) during the
applicable period ending on such date); it being understood that
Consolidated Scheduled Funded Debt Payments shall not include (i)
voluntary prepayments or the mandatory prepayments required
pursuant to SECTION 2.3; (ii) the repayment of up to $55,000,000
of Indebtedness owing on the Closing Date by thirteen Costa Rican
Subsidiaries to Fleet National Bank (the "COBAL Loan"); or
(iii) principal payments with respect to Indebtedness of Packers
of Indian River so long as such Indebtedness is not GAAP
Indebtedness of the Borrower and its consolidated Subsidiaries.
"Contractual Obligations" shall mean, with respect to
any Person, any term or provision of any securities issued by
such Person, or any indenture, mortgage, deed of trust, contract,
undertaking, document, instrument or other agreement to which
such Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject.
"Controlled ERISA Affiliate" shall mean an ERISA
Affiliate owned or controlled by CBII.
"Covenant Compliance Agreement" means each agreement
pursuant to which one or more Subsidiaries has, among other
things, agreed that it shall not take, or omit to take any action
which would cause the Borrower to be in violation or breach of
this Agreement.
"CPF" shall mean ▇▇▇▇▇▇▇▇ Processed Foods, L.L.C., a
Delaware limited liability company.
"Credit Agreement" shall mean this credit agreement,
dated as of the date hereof, as the same may be modified,
amended, extended, restated or supplemented from time to time.
"Credit Documents" shall mean, collectively, this
Credit Agreement, the Revolving Notes, the Term Loan Notes, the
Letters of Credit, the Security Documents, the Guarantees, the
Covenant Compliance Agreement and all other documents,
agreements, instruments, opinions and certificates executed and
delivered in connection herewith or therewith, as the same may be
modified, amended, extended, restated or supplemented from time
to time.
"Credit Parties" shall mean the Borrower and the
Guarantors.
"Default" shall mean an event, condition or default
which, with the giving of notice, the passage of time or both
would be an Event of Default.
"Default Rate" shall have the meaning given to such
term in SECTION 4.2.
"Defaulting Lender" shall have the meaning given to
such term in SECTION 2.1(D)(III).
"DOL" shall mean the U.S. Department of Labor and any
successor department or agency.
"Dollars" and "$" shall mean dollars in lawful currency
of the United States of America.
"Eligible Accounts Receivable" shall mean the aggregate
face amount of the Borrower's Accounts that conform to the
warranties contained herein, less the aggregate amount of all
customer deposits, returns, discounts, claims, credits, charges
(including warehousemen's charges) and allowances of any nature
(whether issued, owing, granted or outstanding), and less the
aggregate amount of all reserves for slow paying accounts,
foreign sales, and ▇▇▇▇ and hold (or deferred shipment)
transactions. Unless otherwise approved in writing by the Agent,
no Account shall be deemed to be an Eligible Account Receivable
if:
(i) it arises out of a sale made by the Borrower to an
Affiliate; or
(ii) the Account (a) does not require full payment of
the amount thereof within thirty (30) days of the applicable sale
or (b) is unpaid more than ninety (90) days after the original
due date; or
(iii) fifty percent (50%) or more, in face amount,
of other Accounts from such account debtor (or any Affiliate
thereof) are due or unpaid more than ninety (90) days after the
original due date; or
(iv) the amount of the Account, when aggregated with
all other Accounts of such account debtor, exceeds fifteen
percent (15%) in face value of all Accounts of the Borrower then
outstanding, to the extent of such excess; or
(v) (A) the account debtor is also a creditor of the
Borrower, to the extent of the amount owed by the Borrower to the
account debtor, (B) the account debtor has disputed its liability
on, or the account debtor has made any claim with respect to,
such Account or any other Account due from such account debtor to
the Borrower, which has not been resolved or (C) the Account
otherwise is or may become subject to any right of setoff by the
account debtor, to the extent of the amount of such setoff; or
(vi) the Account is owing by an account debtor that has
commenced a voluntary case under the federal bankruptcy laws, as
now constituted or hereafter amended, or made an assignment for
the benefit of creditors, or if a decree or order for relief has
been entered by a court having jurisdiction in the premises in
respect to such account debtor in an involuntary case under the
federal bankruptcy laws, as now constituted or hereafter amended,
or if any other petition or other application for relief under
the federal bankruptcy laws has been filed by or against the
account debtor, or if such account debtor has failed, suspended
business, ceased to be solvent, or consented to or suffered a
receiver, trustee, liquidator or custodian to be appointed for it
or for all or a significant portion of its assets or affairs; or
(vii) the sale is to an account debtor outside the
continental United States or Canada, unless the sale is (A) on
letter of credit, guaranty or acceptance terms, or subject to
credit insurance, in each case acceptable to the Agent in its
sole discretion, or (B) otherwise approved by and acceptable to
the Agent in its sole discretion; or
(viii) the sale to the account debtor is on a ▇▇▇▇
and-hold, guaranteed sale, sale-and-return, sale on approval or
consignment basis or made pursuant to any other written agreement
providing for repurchase or return; or
(ix) the goods giving rise to such Account have not
been shipped and delivered to and accepted by the account debtor
or its designee or the services giving rise to such Account have
not been performed by or on behalf of the Borrower and accepted
by the account debtor or its designee or the Account otherwise
does not represent a final sale; or
(x) the Accounts owing by a particular account debtor
exceed a credit limit as to that account debtor determined by the
Agent, in its reasonable discretion, to the extent such Accounts
owing by the particular account debtor exceed such limit; or
(xi) the Account is subject to a Lien which has
priority over the Lien of the Agent in such Account other than
Liens arising from claims under PACA; provided however, the Agent
shall establish a reserve against Eligible Accounts Receivable to
the extent of such PACA claims;
(xii) the Account was acquired by the Borrower from
CBII or any Affiliate of the Borrower;
(xiii) the Account did not arise from the sale of
bananas or plantains for which ▇▇▇▇▇▇▇▇ Brands Company, North
America or ▇▇▇▇▇▇▇▇ (Canada) Inc. acted as the Borrower's sales
agent pursuant to a contract approved by the Agent;
(xiv) the account debtor with respect to such
Account is either (i) the United States or any department,
agency, or instrumentality of the United States (exclusive,
however, of Accounts with respect to which Borrower has complied,
to the reasonable satisfaction of Agent, with the Assignment of
Claims Act, 31 USC section 3727), or (ii) any state of the United
States (exclusive, however, of (y) Accounts owed by any state
that does not have a statutory counterpart to the Assignment of
Claims Act, or (z) Accounts owed by any state that does have a
statutory counterpart to the Assignment of Claims Act as to which
Borrower has complied to Agent's satisfaction); or
(xv) the account debtor with respect to such Account is
a trucking company.
In addition to the foregoing, Eligible Accounts
Receivable shall include such Accounts as the Borrower shall
request and that the Agent approves in advance, in writing and in
its reasonable judgment.
"Equity Issuance" shall mean any issuance by the
Borrower or any of its Subsidiaries to any Person other than to
the Borrower or any of its Subsidiaries or any direct or indirect
parent of the Borrower of (a) shares of its Capital Stock, (b)
any shares of its Capital Stock pursuant to the exercise of
options or warrants or (c) any shares of its Capital Stock
pursuant to the conversion of any debt securities to equity. The
term "Equity Issuance" shall not include any Asset Disposition.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any
successor statute.
"ERISA Affiliate" shall mean any (i) corporation which
is or was at any time a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as the Borrower or any Subsidiary of the
Borrower; (ii) partnership or other trade or business (whether or
not incorporated) at any time under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the
Borrower or any Subsidiary of the Borrower; and (iii) member of
the same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as the Borrower or any
Subsidiary of the Borrower, any corporation described in clause
(i) above, or any partnership or trade or business described in
clause (ii) above.
"Event(s) of Default" shall have the meaning provided
for in ARTICLE XI.
"Excluded Entities" shall mean CPF and its
Subsidiaries, Frupac and its Subsidiaries, PV and its
Subsidiaries, GWF and its Subsidiaries and Citrus.
"Excluded Taxes" shall have the meaning given to such
term in SECTION 2.7.
"Existing Letters of Credit" shall mean those letters
of credit listed on SCHEDULE 1.1(B) hereto.
"Farm Sale Block" shall have the meaning set forth in
SECTION 9.3.
"Federal Funds Rate" shall mean, for any period, a
fluctuating interest rate per annum equal, for each day during
such period, to the weighted average of the rates on overnight
Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal Funds
brokers of recognized standing selected by it.
"Fee Letter" shall mean the letter agreement, dated
March 7, 2001, by and between the Agent and the Borrower
regarding the fees to be paid by the Borrower to the Agent.
"Fees" shall mean, collectively, the Agent's Fees, the
Letter of Credit Fee and the Issuing Bank Fees payable hereunder.
"Financials" shall have the meaning given to such term
in SECTION 6.6.
"Fixed Charge Coverage Ratio" shall mean, for any
period, the ratio of (i) Consolidated EBITDA for such period to
(ii) Consolidated Fixed Charges for such period.
"Food Security Act" shall mean the Food Security Act of
1985, as amended, and any successor statute thereto, including
all rules and regulations thereunder, all as the same may be in
effect from time to time.
"Foothill" has the meaning set forth in the preamble
hereto.
"Foreign Lender" shall have the meaning given to such
term in SECTION 2.7(A).
"Frupac" shall mean ▇▇▇▇▇▇▇▇ Frupac, Inc., a Delaware
corporation.
"Funded Indebtedness" shall mean, with respect to any
Person, without duplication, (a) all Indebtedness of such Person
other than Indebtedness of the types referred to in clause (e),
(f), (g), (i), (k), (l) and (m) of the definition of
"Indebtedness" set forth in this SECTION 1.1, (b) all
Indebtedness of another Person of the type referred to in clause
(a) above secured by (or for which the holder of such Funded
Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
(c) all guaranties of such Person with respect to Indebtedness of
the type referred to in clause (a) above of another Person and
(d) Indebtedness of the type referred to in clause (a) above of
any partnership or unincorporated joint venture in which such
Person is legally obligated or has a reasonable expectation of
being liable with respect thereto.
"Funding Bank" shall have the meaning given to such
term in SECTION 4.7.
"GAAP" shall mean generally accepted accounting
principles in the United States of America, in effect from time
to time.
"GAAP Indebtedness" shall mean debt for borrowed money
which is or is required to be reflected as a liability on the
balance sheet of the respective obligor in accordance with GAAP.
"Governmental Authority" shall mean any federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantees" shall mean that certain Guarantee dated
the date hereof made by certain of the Guarantors in favor of the
Agent (for itself and the Lenders) and each other agreement
pursuant to which any Person unconditionally guarantees the
Obligations.
"Guarantors" shall mean those Persons listed on SCHEDULE 6.9
hereto as a Guarantor, and each other Person which
unconditionally guarantees the Obligations.
"GWF" shall mean Great White Fleet Ltd., a Bermuda
company.
"Hedging Agreements" shall mean any Interest Rate
Protection Agreement or other interest rate protection agreement,
foreign currency exchange agreement, commodity purchase or option
agreement or other interest or exchange rate or commodity price
hedging agreements.
"Highest Lawful Rate" shall mean, at any given time
during which any Obligations shall be outstanding hereunder, the
maximum nonusurious interest rate, if any, that at any time or
from time to time may be contracted for, taken, reserved, charged
or received on the indebtedness under this Credit Agreement,
under the laws of the State of New York (or the law of any other
jurisdiction whose laws may be mandatorily applicable
notwithstanding other provisions of this Credit Agreement and the
other Credit Documents), or under applicable federal laws which
may presently or hereafter be in effect and which allow a higher
maximum nonusurious interest rate than under New York or such
other jurisdiction's law, in any case after taking into account,
to the extent permitted by applicable law, any and all relevant
payments or charges under this Credit Agreement and any other
Credit Documents executed in connection herewith, and any
available exemptions, exceptions and exclusions.
"Inactive Subsidiary" shall mean each Subsidiary (other
than a Guarantor, a Pledgor Entity or a Pledged Party) which (a)
owns assets with a book value of less than $1,000,000 as of the
last day of the past fiscal year or (b) had sales for the past
fiscal year of less than $1,000,000 (as of the Closing Date, the
Inactive Subsidiaries are identified as such on SCHEDULE 6.9
hereto as Inactive Subsidiaries).
"Indebtedness" shall mean, with respect to any Person,
without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which
interest payments are customarily made, (c) all obligations of
such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other
than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed
as the deferred purchase price of property or services purchased
by such Person (other than trade debt incurred in the ordinary
course of business and either due within six months of the
incurrence thereof or incurred on longer payment terms for the
purchase of cans and related packaging products) which would
appear as liabilities on a balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all
Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
(g) all guaranties of such Person with respect to Indebtedness of
the type referred to in this definition of another Person, (h)
the principal portion of all obligations of such Person under
Capital Leases, (i) all obligations of such Person under Hedging
Agreements (with the amount thereof, for the purposes of this
Credit Agreement, being the net amount thereof in accordance with
GAAP), (j) the maximum amount of all standby letters of credit
issued or bankers' acceptances facilities created for the account
of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (k) all preferred
Capital Stock issued by such Person and required by the terms
thereof to be redeemed, or for which mandatory sinking fund
payments are due, by a fixed date, (l) the principal portion of
all obligations of such Person under synthetic leases, tax
retention operating leases and other similar off-balance sheet
financing arrangements (but excluding true leases) and (m) the
Indebtedness of any partnership or unincorporated joint venture
in which such Person is a general partner or a joint venturer and
for which such Person is legally obligated.
"Independent Accountant" shall mean a firm of
independent public accountants of nationally recognized standing
selected by the Borrower, which is "independent" as that term is
defined in Rule 2-01 of Regulation S-X promulgated by the
Securities and Exchange Commission.
"Indian River" shall mean The Packers of Indian River,
Ltd., a limited partnership formed under the laws of the state of
Florida.
"Initial Lender" shall mean Foothill or Ableco.
"Interest Rate" shall have the meaning given to such
term in SECTION 4.1.
"Interest Rate Protection Agreement" shall mean any
interest rate protection agreement, foreign currency exchange
agreement, commodity purchase or option agreement or other
interest or exchange rate or commodity price hedging agreements
between the Borrower and any Lender, or any affiliate of a
Lender.
"Internal Revenue" shall mean the Internal Revenue
Service and any successor agency.
"Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time, and any successor
statute thereto and all rules and regulations promulgated
thereunder.
"Inventory" shall mean all of the Borrower's inventory,
including without limitation, (i) all raw materials, work in
process, parts, components, assemblies, supplies and materials
used or consumed in the Borrower's business; (ii) all goods,
wares and merchandise, finished or unfinished, held for sale or
lease or leased or furnished or to be furnished under contracts
of service; and (iii) all goods returned to or repossessed by the
Borrower.
"Investment" in any Person shall mean (i) the
acquisition (whether for cash, property, services, assumption of
Indebtedness, securities or otherwise, but exclusive of the
acquisition of inventory, supplies, equipment and other property
or assets used or consumed in the ordinary course of business of
the Borrower or its Subsidiaries and Consolidated Capital
Expenditures not otherwise prohibited hereunder) of assets,
shares of Capital Stock, bonds, notes, debentures, partnership,
joint ventures or other ownership interests or other securities
of such Person, (ii) any deposit (other than deposits
constituting a Permitted Lien) with, or advance, loan or other
extension of credit (other than sales of inventory or services on
credit in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms and sales
on credit of the type described in clauses (c) or (d) of SECTION
9.3) to, such Person or (iii) any other capital contribution to
or investment in such Person, including, without limitation, any
obligation incurred for the benefit of such Person. In
determining the aggregate amount of Investments outstanding at
any particular time, (a) the amount of any Investment represented
by a guaranty shall be taken at not less than the maximum
principal amount of the obligations guaranteed and still
outstanding; (b) there shall be deducted in respect of each such
Investment any amount received as a return of capital (but only
by repurchase, redemption, retirement, repayment, liquidating
dividend or liquidating distribution); (c) there shall not be
deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or
otherwise; and (d) there shall not be deducted from the aggregate
amount of Investments any decrease in the market value thereof.
"Issuing Bank" shall mean Foothill or any Person that
is acceptable to the Agent which shall issue an L/C Undertaking
for the account of the Borrower.
"Issuing Bank Fees" shall have the meaning given to
such term in SECTION 4.5(B).
"Joinder Agreement" shall mean an agreement in the form
of EXHIBIT J attached hereto.
"L/C Undertaking" shall mean a participation in, or a
reimbursement or indemnification undertaking with respect to, a
Letter of Credit.
"Lender" shall have the meaning given to such term in
the preamble of this Credit Agreement.
"Lending Party" shall have the meaning given to such
term in SECTION 14.7.
"Letter of Credit Committed Amount" shall have the
meaning given to such term in SECTION 3.1.
"Letter of Credit Documents" shall mean, with respect
to any Letter of Credit, such Letter of Credit, any amendments
thereto, any documents delivered in connection therewith, any
application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (i) the
rights and obligations of the parties concerned or at risk or
(ii) any collateral security for such obligations.
"Letter of Credit Fee" shall have the meaning given to
such term in SECTION 4.5(A).
"Letter of Credit Obligations" shall mean, at any time,
the sum of (i) the aggregate undrawn amount of all Letters of
Credit outstanding at such time, plus (ii) the aggregate amount
of all drawings under Letters of Credit for which the Issuing
Bank has not at such time been reimbursed, paid or repaid, plus
(iii) without duplication, the aggregate amount of all payments
made by each Lender to the Issuing Bank with respect to such
Lender's participation in L/C Undertakings as provided in SECTION
3.3 for which the Borrower has not at such time reimbursed the
Lenders, whether by way of a Revolving Loan or otherwise.
"Letters of Credit" shall mean the stand-by letters of
credit issued by an Underlying Issuer for the account of the
Borrower for which an L/C Undertaking has been provided or
undertaken by the Issuing Lender, and all amendments, renewals,
extensions or replacements thereof.
"Leverage Ratio" shall mean, for any date of
determination, the ratio of (i) GAAP Indebtedness of Borrower and
its Subsidiaries (other than CPF and its Subsidiaries) on that
date to (ii) Consolidated EBITDA for the four quarters ending on
such date; provided that, for the quarters ending on March 31,
2001, June 30, 2001 and September 30, 2001, Consolidated EBITDA
shall be calculated by multiplying Consolidated EBITDA for the
period from January 1, 2001 to such ending date by 4, 2 and 1.33,
respectively.
"Lien(s)" shall mean any lien, license, claim, charge,
pledge, security interest, deed of trust, mortgage, or other
encumbrance.
"Loan" or "Loans" shall mean the Revolving Loans and/or
the Term Loans (or a portion of any Revolving Loan or Term Loan),
individually or collectively, as appropriate.
"Loan Account" shall have the meaning set forth in
SECTION 2.5.
"Material Adverse Change" shall mean (a) a change in
the business, operations, assets, liabilities or condition
(financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, or the Collateral, which in either case would
materially and adversely affect the ability of the Borrower
Entities, taken as a whole, to perform their obligations under
the Credit Documents, or (b) a material adverse change in the
rights and remedies of the Agent or any Lender thereunder.
"Material Adverse Effect" shall mean (a) an effect on
the business, operations, assets, liabilities or condition
(financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, or the Collateral, which in either case would
materially and adversely affect the ability of the Borrower
Entities, taken as a whole, to perform their obligations under
the Credit Documents, or (b) a material adverse effect on the
rights and remedies of the Agent or any Lender thereunder.
"Material Contract" shall mean any contract (other than
any of the Credit Documents), whether written or oral, to which
the Borrower or any of its Subsidiaries is a party as to which
the breach, nonperformance, cancellation or failure to renew by
any party thereto could reasonably be expected to have a Material
Adverse Effect.
"Maturity Date" shall mean the third (3rd) anniversary
of the Closing Date.
"Maximum Credit Line" means $120,000,000, as such
amount may be reduced from time to time pursuant to and in
accordance with SECTION 2.3.
"Mortgages" shall mean each mortgage, security
agreement and fixture filing, deed of trust or other real estate
security document executed in favor of or for the benefit of the
Agent and/or the Lenders to secure any or all of the Obligations.
"Multiemployer Plan" shall mean a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA and (i) which is, or
within the immediately preceding six (6) years was, contributed
to by the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate or (ii) with respect to which the Borrower or any
Subsidiary of the Borrower may incur any liability.
"Net Cash Proceeds" shall mean the aggregate cash
proceeds and Cash Equivalents received by the Borrower or the
applicable Subsidiary in respect of any Asset Disposition,
Specified Asset Disposition or Equity Issuance, net of (a) direct
costs (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and (b) taxes
paid or payable as a result thereof; it being understood that
"Net Cash Proceeds" shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash
consideration received by the Borrower in any Asset Disposition,
Specified Asset Disposition or Equity Issuance.
"Net Liquidation Value" shall mean the value of the
Borrower's trademarks and related rights, as set forth in the
Appraisal.
"Note" or "Notes" shall mean the Revolving Notes and/or
the Term Loan Notes, individually or collectively, as
appropriate.
"Notice of Borrowing" shall have the meaning given to
such term in SECTION 2.1(D)(I).
"Obligations" shall mean the Loans, any other loans and
advances or extensions of credit made or to be made by any Lender
to the Borrower, or to others for the Borrower's account in each
case pursuant to the terms and provisions of this Credit
Agreement, together with interest thereon (including interest
which would be payable as post-petition interest in connection
with any bankruptcy or similar proceeding) and, including,
without limitation, any reimbursement obligation or indemnity of
the Borrower or its Subsidiaries on account of Letters of Credit
and all other Letter of Credit Obligations, and all indebtedness,
fees, liabilities and obligations which may at any time be owing
to the Agent or any Lender pursuant to this Credit Agreement or
any other Credit Document, whether now in existence or incurred
from time to time hereafter, whether unsecured or secured by
pledge, Lien upon or security interest in any of the Borrower's
assets or property or the assets or property of any other Person,
whether such indebtedness is absolute or contingent, joint or
several, matured or unmatured, direct or indirect and whether the
Borrower or any Subsidiary is liable to the Agent or any Lender
for such indebtedness as principal, surety, endorser, guarantor
or otherwise. Obligations shall also include any other
indebtedness owing to the Agent or any Lender under this Credit
Agreement and the other Credit Documents, the Borrower's
liability to any Lender pursuant to this Credit Agreement as
maker or endorser of any promissory note or other instrument for
the payment of money, any liability to the Agent or any Lender
pursuant to this Credit Agreement or any other Credit Document
under any instrument of guaranty or indemnity, or arising under
any guaranty, endorsement or undertaking which the Agent or any
Lender may make or issue to others for the Borrower's account
pursuant to this Credit Agreement, including any accommodation
extended with respect to applications for Letters of Credit, and
all liabilities and obligations owing from the Borrower to the
Agent or any Lender, or any affiliate of the Agent or a Lender,
arising under Interest Rate Protection Agreements entered into
for the purpose of hedging interest rate risk under this Credit
Agreement.
"Operative Documents" shall mean the Credit Documents
and the Security Documents.
"Other Taxes" shall have the meaning given to such term
in SECTION 2.7(C).
"PACA" shall mean the Perishable Agricultural
Commodities Act, 7 U.S.C. section 499.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation and any Person succeeding to the functions thereof.
"Permitted Acquisitions" shall mean an Acquisition by
any Borrower Entity of an Acquired Company which Acquisition
complies with the following requirements (in each case to the
satisfaction of the Agent): (i) the Acquired Company shall be an
operating company that engages in a line of business
substantially similar to the business that one or more Borrower
Entities engaged in on the Closing Date, (ii) the Agent shall
have received, if available, a review of the financial condition
of the Acquired Company conducted by a firm of independent
certified public accountants of nationally recognized standing
reasonably acceptable to the Agent and such other reports and
analyses in connection with the Acquisition as the Agent may
reasonably request and an internal summary of the results of the
Borrower Entity's due diligence and/or its economic justification
for such Acquisition and the bases therefor (excluding any
information in any such report, analyses or summary to which the
attorney client privilege applies), (iii) the Agent shall have
completed a field examination relating to the applicable Acquired
Company and the results thereof are satisfactory to the Agent,
(iv) the Agent shall have received all items required by SECTIONS
7.9, 7.10 and 7.16 in connection with the Acquired Company, (v)
in the case of an Acquisition of the Capital Stock of another
Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such
Acquisition, (vi) the Borrower shall have delivered to the Agent
a pro forma compliance certificate demonstrating that, upon
giving effect to such Acquisition on a pro forma basis, the
Borrower and its Subsidiaries shall be in compliance with all of
the covenants set forth in ARTICLE VIII and no Default or Event
of Default shall exist immediately prior to or immediately after
the consummation of the Acquisition, and (viii) the Borrower
shall have delivered to the Agent all Acquisition Documents in
connection with such Permitted Acquisition which documents shall
be reasonably satisfactory to the Agent.
"Permitted Holders" shall mean American Financial
Group, Inc. and its Affiliates and each other Person consented to
by Agent and the Required Lenders (which consent shall not be
unreasonably withheld, conditioned or delayed)
"Permitted Indebtedness" shall mean Indebtedness which
meets all of the following tests at the time it is incurred: (a)
if such Indebtedness is incurred after the Closing Date, the
Borrower, on a pro forma basis and assuming such Indebtedness is
incurred, would be in compliance with the financial covenants set
forth herein, (b) after giving effect to the incurrence of such
Indebtedness, the aggregate principal amount of all GAAP
Indebtedness of the Borrower and its Subsidiaries (including
without duplication, GAAP Indebtedness owing under the Credit
Documents and GAAP Indebtedness of Excluded Entities, but
excluding Indebtedness owing by the Borrower to CBII and
evidenced by that certain Subordinated Promissory Note dated
December 31, 2000 in an original principal amount equal to
$40,000,000) at such time (i) does not exceed $560,000,000 during
the period ending on December 31, 2001 and $540,000,000 at any
time thereafter, in each case, on a consolidated basis, or (ii)
does not, when added, without duplication, to all Indebtedness of
such Persons of the types described in clauses (f), (g), (j), (l)
or (m) of the definition of Indebtedness (but, in the case of
clause (m), excluding Indebtedness of Citrus arising solely by
virtue of its role as general partner of Packers of Indian
River), exceed $585,000,000 during the period ending on
December 31, 2001 and $565,000,000 at all times thereafter, (c)
after giving effect to the incurrence of such Indebtedness, the
aggregate principal amount of all GAAP Indebtedness of the
Borrower and its Subsidiaries (including without duplication,
GAAP Indebtedness owing under the Credit Documents and GAAP
Indebtedness of Excluded Entities (other than CPF and its
Subsidiaries) but excluding Indebtedness owing by the Borrower to
CBII and evidenced by that certain Subordinated Promissory Note
dated December 31, 2000 in an original principal amount equal to
$40,000,000) at such time (i) does not exceed $380,000,000 during
the period ending on December 31, 2001 and $360,000,000 at any
time thereafter, in each case, on a consolidated basis, or (ii)
does not, when added, without duplication, to all Indebtedness of
such Persons of the types described in clauses (f), (g), (j), (l)
or (m) of the definition of Indebtedness (but, in the case of
clause (m), excluding Indebtedness of Citrus arising solely by
virtue of its role as general partner of Packers of Indian
River), exceed $405,000,000 during the period ending on
December 31, 2001 and $385,000,000 at all times thereafter and
(d) Indebtedness which consists of:
(i) Indebtedness owing to the Agent and the Lenders
with respect to the Revolving Loans, the Term Loans, the Letters
of Credit or otherwise, pursuant to the Credit Documents;
(ii) trade payables incurred in the ordinary course of
the business and other payment obligations under grower contracts
entered into in the ordinary course of business;
(iii) purchase money Indebtedness (including
Capital Leases) hereafter incurred by the Borrower or any of its
Subsidiaries not otherwise constituting Permitted Indebtedness
and incurred to finance the purchase of fixed assets PROVIDED
that (A) the total of all such Indebtedness for all such Persons
taken together shall not exceed an aggregate principal amount of
$10,000,000 at any one time outstanding (excluding any such
Indebtedness referred to in clause (v) immediately below); (B)
such Indebtedness when incurred shall not exceed the purchase
price of the asset(s) financed; and (C) no such Indebtedness
shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such
refinancing;
(iv) obligations of the Borrower or any of its
Subsidiaries in respect of Hedging Agreements entered into in
order to manage existing or anticipated interest rate or exchange
rate risks or commodity price fluctuations and not for
speculative purposes;
(v) Indebtedness described on SCHEDULE 1.1D attached
hereto and any refinancings or replacements of such Indebtedness;
PROVIDED that the aggregate principal amount of such Indebtedness
is not increased, the scheduled maturity dates of such
Indebtedness are not shortened and such refinancing is on terms
and conditions no more restrictive than the terms and conditions
of the Indebtedness being refinanced;
(vi) unsecured Indebtedness owing to the Borrower or a
Subsidiary by the Borrower or a Subsidiary, as long as the
related Investment is permitted hereunder;
(vii) Indebtedness of Persons who are members of
the ▇▇▇▇▇▇▇▇ Fresh European Group as long as (i) such
Indebtedness is non-recourse to the Borrower and each of its
Subsidiaries which is not a member of the ▇▇▇▇▇▇▇▇ Fresh European
Group, and (ii) such Indebtedness, when added to the aggregate
principal amount of all other Indebtedness of the members of the
▇▇▇▇▇▇▇▇ Fresh European Group (other than Indebtedness described
in clause (vi) above), is in an aggregate outstanding principal
amount not to exceed $30,000,000 at any time and is otherwise not
prohibited by any document or instrument to which one or more
members of the ▇▇▇▇▇▇▇▇ Fresh European Group is a party;
(viii) Indebtedness of Persons who are members of
the ▇▇▇▇▇▇▇▇ Fresh Latin American Group as long as (i) such
Indebtedness is non-recourse to the Borrower and each of its
Subsidiaries which is not a member of the ▇▇▇▇▇▇▇▇ Fresh Latin
American Group and such Indebtedness is otherwise not prohibited
by any document or instrument to which one or more members of the
▇▇▇▇▇▇▇▇ Fresh Latin American Group is a party, and (ii) such
Indebtedness, when added to the aggregate principal amount of all
other Indebtedness of the members of the ▇▇▇▇▇▇▇▇ Fresh Latin
American Group (but excluding Back-to-Back Loans and other
Indebtedness described in clause (vi) above), is in an aggregate
outstanding principal amount not to exceed $35,000,000 at any
time;
(ix) Indebtedness of GWF and its Subsidiaries as long
as (i) such Indebtedness is non-recourse to the Borrower and each
of its Subsidiaries (other than GWF) which is not a Subsidiary of
GWF and such Indebtedness is otherwise not prohibited by any
document or instrument to which GWF or one or more of its
Subsidiaries is a party and (ii) the aggregate outstanding
principal amount of all such Indebtedness of GWF and its
Subsidiaries, when added to the aggregate principal amount of all
other Indebtedness of GWF and its Subsidiaries (other than
Indebtedness described in clause (vi) above), does not exceed
$225,000,000;
(x) Indebtedness of CPF and its Subsidiaries as long
as (i) such Indebtedness is non-recourse to the Borrower and each
of its Subsidiaries (other than CPF) which is not a Subsidiary of
CPF and is otherwise not prohibited by any document or instrument
to which CPF or one or more of its Subsidiaries is a party and
(ii) the aggregate outstanding principal amount of all such
Indebtedness of CPF and its Subsidiaries when added to the
aggregate principal amount of all other Indebtedness of CPF and
its Subsidiaries (other than Indebtedness described in
clause (vi) above), does not exceed $200,000,000 at any time;
(xi) Indebtedness of Frupac or its Subsidiaries as long
as (i) such Indebtedness is non-recourse to the Borrower or any
of its Subsidiaries (other than Frupac) which is not a Subsidiary
of Frupac and is otherwise not prohibited by any document or
instrument to which Frupac or one or more of its Subsidiaries is
a party and (ii) the aggregate outstanding principal amount of
all such Indebtedness of Frupac and its Subsidiaries when added
to the aggregate principal amount of all other Indebtedness of
Frupac and its Subsidiaries (other than Indebtedness described in
clause (vi) above), does not exceed $25,000,000 at any time;
(xii) Indebtedness of PV and its Subsidiaries as
long as (i) such Indebtedness is non-recourse to the Borrower or
any of its Subsidiaries (other than PV) which is not a Subsidiary
of PV and is otherwise not prohibited by any document or
instrument to which PV or one or more of its Subsidiaries is a
party and (ii) the aggregate outstanding principal amount of all
Indebtedness of PV and its Subsidiaries, when added to the
aggregate principal amount of all other Indebtedness of PV and
its Subsidiaries (other than Indebtedness described in clause
(vi) above) does not exceed $35,000,000 at any time; or
(xiii) Indebtedness of Citrus arising solely from
its status as a general partner of Packers of Indian River.
"Permitted Investments" shall mean:
(i) Cash Equivalents;
(ii) interest-bearing demand or time deposits
(including certificates of deposit) which are insured by the
Federal Deposit Insurance Corporation ("FDIC") or a similar
federal insurance program; provided, however, that the Borrower
may, in the ordinary course of business, maintain in its
operating accounts from time to time amounts in excess of then
applicable FDIC or other program insurance limits;
(iii) Investments existing on the Closing Date and
set forth on SCHEDULE 1.1E attached hereto (including
capitalization of any intercompany advances shown thereon);
(iv) advances to officers, directors and employees of
CBII, the Borrower or any of its Subsidiaries for expenses
incurred or anticipated to be incurred in the ordinary course as
long as (a) no advances to any one Person are in excess of
$250,000 in the aggregate at any time outstanding (except for a
one-time $750,000 advance to one employee) and (b) all such
advances do not exceed $5,000,000 in the aggregate at any time
outstanding;
(v) Qualified Investments made in or to a Secured
Credit Party;
(vi) Qualified Investments made by Persons other than
members of the ▇▇▇▇▇▇▇▇ Fresh European Group in or to one or more
Persons who are, as of the Closing Date, members of the ▇▇▇▇▇▇▇▇
Fresh Latin American Group (or Persons which are Wholly-Owned
Subsidiaries of such members of the ▇▇▇▇▇▇▇▇ Fresh Latin America
Group) (it being agreed that a Back-to-Back Loan to any member of
the ▇▇▇▇▇▇▇▇ Fresh Latin American Group shall, solely for the
purposes of this clause, constitute an Investment in or to such
member of the ▇▇▇▇▇▇▇▇ Fresh Latin American Group and not an
Investment in or to the applicable lender);
(vii) Qualified Investments made by Persons other
than members of the ▇▇▇▇▇▇▇▇ Fresh Latin American Group in or to
one or more Persons who are, as of the Closing Date, members of
the ▇▇▇▇▇▇▇▇ Fresh European Group (or Persons which are Wholly
Owned Subsidiaries of such members of the ▇▇▇▇▇▇▇▇ Fresh European
Group), as long as the aggregate amount thereof made after the
Closing Date does not exceed $10,000,000 in any given fiscal
year;
(viii) Qualified Investments made by Persons who are
members of the ▇▇▇▇▇▇▇▇ Fresh European Group in or to one or more
Persons who are, as of the Closing Date, members of the ▇▇▇▇▇▇▇▇
Fresh European Group (or Persons which are Wholly-Owned
Subsidiaries of such members of the ▇▇▇▇▇▇▇▇ Fresh European
Group);
(ix) Qualified Investments (other than those permitted
pursuant to clause (vi) above) made by Persons who are members of
the ▇▇▇▇▇▇▇▇ Fresh Latin American Group as long as (a) the
aggregate outstanding amount thereof made after the Closing Date
does not exceed $15,000,000 at any one time and (b) the sum of
the aggregate outstanding amount thereof plus the sum of the
aggregate outstanding amount of the Investments permitted
pursuant to clauses (x) or (xi) of this definition does not
exceed $30,000,000 at any time;
(x) Qualified Investments (other than those permitted
pursuant to clause (vii) or (viii) above) made by Persons who are
members of the ▇▇▇▇▇▇▇▇ Fresh European Group as long as (a) the
aggregate outstanding amount thereof made after the Closing Date
does not exceed $15,000,000 at any one time and (b) the sum of
the aggregate outstanding amount thereof plus the sum of the
aggregate outstanding amount of the Investments permitted
pursuant to clauses (ix) or (xi) of this definition does not
exceed $30,000,000 at any time;
(xi) Qualified Investments made by the Secured Credit
Parties (other than Investments made in or to a member of the
▇▇▇▇▇▇▇▇ Fresh Latin American Group, members of the ▇▇▇▇▇▇▇▇
Fresh European Group, an Excluded Entity or an Inactive
Subsidiary) as long as (a) the aggregate outstanding amount
thereof made after the Closing Date does not exceed $15,000,000
at any time and (b) the sum of the aggregate outstanding amount
thereof plus the sum of the aggregate outstanding amount of the
Investments permitted pursuant to clauses (ix) or (x) of this
definition does not exceed $30,000,000 at any time;
(xii) Investments made at a time when no Event of
Default has occurred and is continuing (other than by Excluded
Entities) in independent growers in the ordinary course of
business as long as the aggregate outstanding balance permitted
under this clause (xii) do not exceed $10,000,000 at any time;
(xiii) Investments made by one or more Excluded
Entities;
(xiv) Loans made by the Borrower to Frupac which do
not exceed $25,000,000 outstanding at any time during the months
of October to May and, which do not exceed $5,000,000 outstanding
at any time during the months of June to September;
(xv) Loans made by ▇▇▇▇▇▇▇▇ Banana Company B.V., a
Netherlands company, to CIL;
(xvi) Investments made by the Borrower in Citrus to
the extent required to service existing debt of Citrus but not to
exceed $1,100,000 in any fiscal year;
(xvii) Investments consisting of securities or debt
instruments which are proceeds of Specified Asset Dispositions or
Asset Dispositions (to the extent permitted by SECTION 9.3);
(xviii) Investments described on SCHEDULE 9.3A;
(xix) A loan to CBII for Permitted Restructuring
Expenses; and
(xx) such other Investments as the Required Lenders may
approve in their sole discretion.
Notwithstanding the foregoing, Permitted Investments
shall NOT include (i) Investments made in or to an Inactive
Subsidiary, (ii) Investments made in or to an Excluded Entity
(other than Investments permitted pursuant to clause (xiv) or
(xvi) above and Investments made by an Excluded Entity) and (iii)
Investments (other than as described in clause (xix) above) made
in or to CBII or any Subsidiary of CBII which is not the Borrower
or a Subsidiary of the Borrower.
"Permitted Liens" shall mean
(i) Liens granted to the Agent or the Lenders or any
Affiliate of a Lender pursuant to any Credit Document;
(ii) Liens listed on SCHEDULE 1.1C attached hereto;
(iii) Liens on fixed assets securing purchase money
Indebtedness (including Capital Leases) to the extent permitted
under SECTION 9.2, PROVIDED that (A) any such Lien attaches to
such assets concurrently with or within thirty (30) days after
the acquisition thereof and only to the assets to be acquired and
(B) a description of the assets so acquired is furnished to the
Agent;
(iv) Liens of warehousemen, mechanics, materialmen,
workers, repairmen, fillers, packagers, processors, common
carriers, landlords and other similar Liens arising by operation
of law or otherwise, not waived in connection herewith, for
amounts that are not yet due and payable or which are being
diligently contested in good faith by the Borrower by appropriate
proceedings, PROVIDED that in any such case an adequate reserve
is being maintained by the Borrower for the payment of same;
(v) attachment or judgment Liens individually or in
the aggregate not in excess of $250,000 (exclusive of (a) any
amounts that are duly bonded to the satisfaction of the Agent in
its reasonable judgment or (b) any amount adequately covered by
insurance as to which the insurance company has acknowledged in
writing its obligations for coverage);
(vi) Liens for taxes, assessments or other governmental
charges not yet due and payable or which are being diligently
contested in good faith by the Borrower by appropriate
proceedings, PROVIDED that in any such case an adequate reserve
is being maintained by the Borrower for the payment of same in
accordance with GAAP;
(vii) deposits or pledges to secure obligations
under workmen's compensation, social security or similar laws, or
under unemployment insurance;
(viii) deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money),
leases, regulatory or statutory obligations, surety and appeal
bonds and other obligations of like nature arising in the
ordinary course of business;
(ix) Liens arising from claims under PACA;
(x) Liens on assets of GWF, CPF, PV or Frupac or their
respective Subsidiaries to secure Indebtedness of one or more of
such Persons as long as the owner of the assets which are the
subject of such Liens is the primary obligor on such Indebtedness
(or is a Subsidiary or parent of such primary obligor, provided
that, in the case of a parent, such parent is an Excluded
Entity), as long as the applicable Indebtedness is permitted
pursuant to clause (ix), (x), (xi) or (xii) of the definition of
Permitted Indebtedness herein; and
(xi) Liens on assets of a Person (other than on
Collateral or assets intended to constitute Collateral) to secure
Indebtedness of such Person permitted hereunder.
"Permitted Restructuring Expenses" shall mean payments
made on or before March 31, 2002 to or for the benefit of CBII
for legal, investment banking and other professional fees and
related expenses (including court costs) incurred in connection
with the proposed restructuring of CBII's Indebtedness and which
are made at a time when all of the following conditions are
satisfied: (i) no Event of Default has occurred and is
continuing (or would be caused thereby); (ii) the average
Availability for the thirty (30) day period ending ten (10) days
prior to the date of such payment was at least $20,000,000; (iii)
the amount of such payment, when added to all other payments made
during such fiscal quarter, other than any payment of the
"Restructuring Fee" to The Blackstone Group as contemplated by
clause (iv) below, does not exceed $3,000,000; PROVIDED that if
the total of all such payments made under this clause (iii) in
any fiscal quarter shall be less than $3,000,000, the unutilized
portion of such $3,000,000 permitted payment may be carried
forward into subsequent fiscal quarters so long as aggregate
payments, other than any payment of the "Restructuring Fee", of
more than $6,000,000 are not made in any fiscal quarter; (iv) if
the payment is to fund payment of the "Restructuring Fee" owing
to The Blackstone Group pursuant to that certain engagement
letter between The Blackstone Group and CBII dated November 6,
2000, the amount of such payment shall not exceed the lesser of
the maximum amount owing for that fee and $7,600,000; and (v) if
the payment is made after the commencement of any bankruptcy,
insolvency, arrangement, reorganization, receivership or similar
proceeding by or against CBII, the payment shall be made by way
of a loan from Borrower to CBII which is protected by an
appropriate court order which is acceptable to the Agent and the
Required Lenders and specifically assigned to the Agent as
Collateral.
"Person" shall mean any individual, sole
proprietorship, partnership, joint venture, limited liability
company, trust, unincorporated organization, association,
corporation, institution, entity, party or government (including
any division, agency or department thereof), and, as applicable,
the successors, heirs and assigns of each.
"Plan" shall mean any employee benefit plan, program or
arrangement, whether oral or written, maintained or contributed
to by the Borrower or any Subsidiary, or with respect to which
the Borrower or any such Subsidiary may incur liability.
"Pledge Agreements" shall mean (i) that certain Stock
Pledge Agreement of even date herewith between the pledgors named
therein and the Agent, (ii) that certain LLC Pledge Agreement of
even date herewith between the pledgors named therein and the
Agent and (iii) each other agreement (other than a Security
Agreement) pursuant to which the equity of any Person is pledged
to the Agent to secure the Obligations.
"Pledged Party" shall mean each Person (other than a
Credit Party) whose equity, in whole or in part, is pledged to
the Agent to secure the Obligations.
"Pledgor Entity" means each Person which has pledged
equity in a Pledged Party to the Agent to secure the Obligations.
"Prime Rate" shall mean the rate which ▇▇▇▇▇ Fargo
announces from time to time as its prime lending rate, as in
effect from time to time. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate actually
charged to any customer. ▇▇▇▇▇ Fargo (and its affiliates) may
make commercial loans or other loans at rates of interest at,
above or below the Prime Rate.
"Pro Rata Share" of any Lender means a fraction, the
numerator of which is such Lender's Commitment and the
denominator of which is the Aggregate Commitment; PROVIDED,
HOWEVER, in the event all Commitments have been terminated or
reduced to zero, Pro Rata Share shall be determined according to
the Commitments in effect immediately prior to such termination.
"Proprietary Rights" shall have the meaning given to
such term in SECTION 6.18.
"PV" shall mean Produce Ventures, L.L.C., a Delaware
limited liability company.
"Qualified Investment" means an Investment which meets
all of the following tests: (i) it is made when no Default or
Event of Default has occurred and is continuing (or would be
caused thereby), (ii) it is made to a Person which is Solvent
after giving effect to such Investment but ignoring intercompany
liabilities to the Borrower and its Subsidiaries, (iii) if it is
a loan, it is made to a Person which is not subject to any
restriction, contractual or otherwise, that would prohibit or
restrain it from returning or repaying such Investment, (iv) if
it is an Investment described in clauses (ix), (x) and (xi) of
the definition of Permitted Investments, it is made when the
Borrower, immediately after giving effect thereto, has
Availability of at least $10,000,000 and (v) if such Investment
is an Acquisition, it constitutes a Permitted Acquisition.
"Qualified Refinancing" shall mean a refinancing of
this Agreement in which all of the Obligations are paid in full
in cash and for which either Ableco or Foothill or an Affiliate
thereof serves as agent.
"Reportable Event" shall mean any of the events
described in Section 4043 of ERISA and the regulations
thereunder.
"Required Lenders" shall mean, at any time, Lenders
which are then in compliance with their obligations hereunder (as
determined by the Agent) and holding in the aggregate at least
sixty-six and two-thirds percent (66 2/3%) of (i) the aggregate
Commitments or (ii) if the Commitments have been terminated, the
outstanding Loans and participation interests (including the
participation interests of the Issuing Bank in any Letters of
Credit).
"Restricted Payment" shall mean (i) any cash dividend
or other cash distribution, direct or indirect, on account of any
shares of any class of Capital Stock of the Borrower or any of
its Subsidiaries, as the case may be, now or hereafter
outstanding, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of Capital Stock of the
Borrower or any of its Subsidiaries now or hereafter outstanding
by the Borrower or any of its Subsidiaries, as the case may be,
except for any redemption, retirement, sinking funds or similar
payment payable solely in such shares of that class of stock or
in any class of stock junior to that class, (iii) any cash
payment made to redeem, purchase, repurchase or retire, or to
obtain the surrender of, any outstanding warrants, options or
other rights to acquire any shares of any class of Capital Stock
of the Borrower or any of its Subsidiaries now or hereafter
outstanding, or (iv) any payment to any Affiliate of the Borrower
except to the extent expressly permitted in this Credit
Agreement.
"Retiree Health Plan" shall mean an "employee welfare
benefit plan" within the meaning of Section 3(1) of ERISA that
provides benefits to persons after termination of employment,
other than as required by Section 601 of ERISA.
"Revolving Credit Borrowing Base" shall have the
meaning given to such term in SECTION 2.1(B)(I).
"Revolving Credit Borrowing Base Certificate" shall
have the meaning given to such term in SECTION 7.1(E)(I).
"Revolving Credit Committed Amount" shall mean, at any
time, the Maximum Credit Line less the principal balance of then
outstanding Term Loans.
"Revolving Loans" shall have the meaning given to such
term in SECTION 2.1(B).
"Revolving Notes" shall have the meaning given to such
term in SECTION 2.1(C).
"Secured Credit Parties" shall mean each Credit Party
which is also a party to a Security Agreement.
"Securitization" has the meaning specified therefor in
SECTION 2.10.
"Securitization Party" the meaning specified therefor
in SECTION 2.10.
"Security Agreements" shall mean (i) the Security
Agreement of even date herewith between the Agent, the Borrower
and the obligors named therein, (ii) the Security Agreement of
even date herewith between the Agent and ▇▇▇▇▇▇▇▇ (Canada) Inc.,
(iii) composite Guarantee and Charge of even date herewith by and
among the Agent and CIL, Banexpro Ltd., Catellia Ltd., Tela
Railroad Company Ltd., Financiera Agricola, Ltd., Financiera
▇▇▇▇▇▇▇▇ Ltd., and M.M. Holding Ltd. and (iv) each other
agreement (other than a Pledge Agreement) pursuant to which one
or more Persons ▇▇▇▇▇ ▇ ▇▇▇▇ on any or all of their assets to the
Agent to secure the Obligations.
"Security Documents" shall mean, collectively, the
Security Agreements, the Pledge Agreements, the Mortgages, any
Acknowledgment Agreements and any lockbox agreement or any other
tri-party arrangement with respect to the bank accounts of the
Borrower.
"Settlement Period" shall have the meaning given to
such term in SECTION 2.1(D)(II).
"Solvent" shall mean, with respect to any Person, that
(i) the fair saleable value of such Person's assets exceeds all
of its probable liabilities, (ii) such Person does not have
unreasonably small capital in relation to the business in which
it is or proposes to be engaged and (iii) such Person has not
incurred, and does not believe that it will incur, debts beyond
its ability to pay such debts as they become due.
"Specified Asset Disposition" means each disposition of
one or more of the assets described on SCHEDULE 9.3.
"Subsidiary" shall mean, as to any Person, (a) any
corporation more than fifty percent (50%) of whose Capital Stock
of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any
class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through
Subsidiaries, (b) any partnership, association, joint venture or
other entity in which such Person directly or indirectly through
Subsidiaries has more than a fifty percent (50%) interest in the
total capital, total income and/or total ownership interests of
such entity at any time and (c) any partnership in which such
Person is a general partner (it being agreed that unless
otherwise designated, "Subsidiary" shall mean any direct or
indirect "Subsidiary" of the Borrower); PROVIDED HOWEVER, that
neither Indian River nor ▇▇▇▇▇▇ Holdings Ltd., a Cayman Islands
company, shall constitute a Subsidiary of the Borrower or any of
its Subsidiaries, unless such entity is consolidated with the
Borrower or any of its Subsidiaries in accordance with GAAP.
"Taxes" shall mean any federal, state, local or foreign
income, sales, use, transfer, payroll, personal, property,
occupancy, franchise or other tax, levy, impost, fee, imposition,
assessment or similar charge, together with any interest or
penalties thereon.
"Term Loans" shall have the meaning given to such term
in SECTION 2.2(A).
"Term Loan Committed Amount" shall mean the aggregate
term loan facility extended by the Lenders to the Borrower for
Term Loans pursuant to and in accordance with the terms of this
Credit Agreement, in an amount up to $75,000,000, as such term
loan facility shall be reduced in accordance with SECTION 2.3(C).
"Term Loan Notes" shall have the meaning given to such
term in SECTION 2.2(E) hereof.
"Termination Event" shall mean (i) a Reportable Event
with respect to any Benefit Plan or Multiemployer Plan; (ii) the
withdrawal of the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate from a Benefit Plan during a plan year in which
such entity was a "substantial employer" as defined in Section
4001(a)(2) of ERISA; (iii) the providing of notice of intent to
terminate a Benefit Plan pursuant to Section 4041 of ERISA; (iv)
the institution by the PBGC of proceedings to terminate a Benefit
Plan or Multiemployer Plan; (v) any event or condition (a) which
might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer,
any Benefit Plan or Multiemployer Plan, or (b) that may result in
termination of a Multiemployer Plan pursuant to Section 4041A of
ERISA; or (vi) the partial or complete withdrawal within the
meaning of Sections 4203 and 4205 of ERISA, of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate from a
Multiemployer Plan.
"Tropical Farms" means farms (and related assets,
including farm land held in reserve but not currently planted)
located in Guatemala, Chile, Colombia, Panama, Honduras or Costa
Rica on which bananas, plantains and similar produce is grown.
"Tropical Products" shall mean ▇▇▇▇▇▇▇▇ Tropical
Products Company, a Delaware corporation.
"Unallocated CBII Overhead" shall mean the following
overhead and disbursements of CBII, but only to the extent that
they are not otherwise allocated to the Borrower and its
consolidated Subsidiaries: salaries, pension and benefit
expenses, taxes (other than taxes on income or revenue),
insurance costs, legal expenses, communication and maintenance
fees, travel expenses, outside accounting fees, headquarter
office expenses, deferred compensation and non-contractual
severance expenses, but excluding Permitted Restructuring
Expenses and principal, interest and other fees related to any
Indebtedness.
"Underlying Issuer" means a third Person which is the
beneficiary of an L/C Undertaking and which has issued a Letter
of Credit at the request of the Issuing Bank for the benefit of
the Borrower.
"Voting Stock" shall mean, with respect to any Person,
Capital Stock issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar
functions) of such Person, even though the right so to vote has
been suspended by the happening of such a contingency.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National
Association, a national banking association, and its successors
and assigns.
"Wholly-Owned Subsidiary" of a Person means each entity
in which (other than directors' qualifying shares or the
equivalent thereof required by law) one hundred percent (100%) of
the outstanding equity interests are directly owned, beneficially
and of record, by such Person or by one or more of such Person's
Wholly-Owned Subsidiaries.
1.2 ACCOUNTING TERMS AND DETERMINATIONS
Unless otherwise defined or specified herein, all accounting
terms shall be construed herein and all accounting determinations
for purposes of determining compliance with SECTIONS 8.1
through 8.5 hereof and otherwise to be made under
this Credit Agreement shall be made in accordance with GAAP
applied on a basis consistent in all material respects with the
Financials. All financial statements required to be delivered
hereunder from and after the Closing Date and all financial
records shall be maintained in accordance with GAAP as in effect
as of the date of such financial statements. If GAAP shall
change from the basis used in preparing the Financials, the
certificates required to be delivered pursuant to SECTION 7.1
demonstrating compliance with the covenants contained herein
shall include calculations setting forth the adjustments
necessary to demonstrate how the Borrower is in compliance with
the financial covenants based upon GAAP as in effect as of the
date of the Financials. If the Borrower shall change its method
of inventory accounting, all calculations necessary to determine
compliance with the covenants contained herein shall be made as
if such method of inventory accounting had not been so changed.
If the Borrower's financial statements or the calculation of the
covenants contained herein are impacted by "fresh start"
accounting as a result of or pursuant to the reorganization or
restructuring of CBII, the Borrower, the Agent and the Lenders
agree to amend the provisions hereof so that the criteria for
evaluating the Borrower's financial condition and performance
will be the same as if such impact had not occurred.
1.3 OTHER DEFINITIONAL TERMS.
Terms not otherwise defined herein which are defined in
the Uniform Commercial Code as in effect in the State of New York
from time to time (the "CODE") shall have the meanings given them
in the Code. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Credit Agreement shall
refer to the Credit Agreement as a whole and not to any
particular provision of this Credit Agreement, unless otherwise
specifically provided. References in this Credit Agreement to
"Articles", "Sections", "Schedules" or "Exhibits" shall be to
Articles, Sections, Schedules or Exhibits of or to this Credit
Agreement unless otherwise specifically provided. Any of the
terms defined in SECTION 1.1 may, unless the context otherwise
requires, be used in the singular or plural depending on the
reference. "Include", "includes" and "including" shall be deemed
to be followed by "without limitation" whether or not they are in
fact followed by such words or words of like import. "Writing",
"written" and comparable terms refer to printing, typing,
computer disk, e-mail and other means of reproducing words in a
visible form. References to any agreement or contract are to
such agreement or contract as amended, modified or supplemented
from time to time in accordance with the terms hereof and
thereof. References to any Person include the successors and
permitted assigns of such Person. References "from" or "through"
any date mean, unless otherwise specified, "from and including"
or "through and including", respectively. References to any
times herein shall refer to Eastern Standard time or Eastern
Daylight time, as then in effect.
ARTICLE II.
LOANS
2.1 REVOLVING LOANS.
(A) COMMITMENT. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties
set forth herein, each of the Lenders severally agrees to lend to
the
Borrower at any time or from time to time on or after the Closing
Date and before the Maturity Date, such Lender's Pro Rata Share
of the Revolving Loans as may be requested or deemed requested by
the Borrower.
(b) DETERMINATION OF REVOLVING CREDIT BORROWING BASE.
(i) The Lenders agree, subject to the terms and
conditions of this Credit Agreement, from time to time,
to make loans and advances to the Borrower hereunder on a
revolving basis. Such loans and advances to the Borrower
(each, a "Revolving Loan"; and collectively, the
"Revolving Loans") together with the Letter of Credit
Obligations outstanding with respect to the Letters of
Credit shall not in the aggregate exceed the least of
(the "Revolving Credit Borrowing Base":
(A) the Revolving Credit Committed Amount at
such time minus the aggregate amount of all Asset
Sale Blocks and all Farm Sale Blocks then in
place;
(B) twenty percent (20%) of the Net
Liquidation Value minus the aggregate amount of
all Asset Sale Blocks and Farm Sale Blocks
then in place; or
(C) the following amount:
(1) an amount up to eighty-five percent
(85%) of Eligible Accounts Receivable; PLUS
(2) ten percent (10%) of the Net
Liquidation Value, MINUS
(3) reserves established by the
Agent from time to time in its sole
discretion, exercised in a commercially
reasonable manner and in good faith,
including, without limitation, reserves for
claims under PACA (including, without
limitation, a reserve in an amount equal
to all amounts then owed to Persons other
than CIL for the purchase of bananas and
plantains) and reserves for accruals to be
paid to customers, MINUS
(4) the aggregate amount of all Asset
Sale Blocks and all Farm
Sale Blocks then in place.
Subject to the relevant terms and provisions set forth
herein, the Agent at all times shall have the right to
reduce or increase the advance rates (but not in excess of
the advance rates set forth in the definition of Revolving
Credit Borrowing Base) and standards of eligibility under
this Credit Agreement, in each case in its sole discretion,
exercised in a commercially reasonable manner and in good
faith, if the Agent shall determine in its reasonable credit
judgment that there is a risk that the Obligations may be
undersecured as a result of a change in the condition or
valuation of the Collateral. Such reduction or increase
shall become effective after one (1) Business Day's prior
notice from the Agent to the Borrower and the Lenders. Each
Lender expressly authorizes the Agent to determine, subject
to the terms of this Credit Agreement, on behalf of such
Lender whether or not Accounts shall be deemed to constitute
Eligible Accounts Receivable.
(ii) No Lender shall be obligated at any time to
make available to the Borrower its Pro Rata Share of any
requested Revolving Loan if such amount
plus its Pro Rata Share of all Revolving
Loans, Letter of Credit Obligations and Term Loans then
outstanding would exceed such Lender's Commitment at such
time. No Lender shall be obligated to make available, nor
shall the Agent make available, any Revolving Loans to the
Borrower to the extent such Revolving Loan when added to the
then outstanding Revolving Loans and all Letter of Credit
Obligations would cause the aggregate outstanding Revolving
Loans and all Letter of Credit Obligations to exceed the
Revolving Credit Borrowing Base. The Borrower shall promptly
repay to the Agent for the account of the Lenders from time
to time the full amount of the excess, if any of (A) the
amount of all Revolving Loans and Letter of Credit
Obligations outstanding over (B) the lesser of (1) the
Revolving Credit Committed Amount at such time and (2) the
Revolving Credit Borrowing Base.
(c) REVOLVING NOTES. The obligations to repay the
Revolving Loans and to pay interest thereon shall be evidenced
by separate promissory notes of the Borrower to each Lender
in substantially the form of EXHIBIT C-1 attached hereto
(the "Revolving Notes"), with appropriate insertions, one
Revolving Note being payable to the order of each Lender in a
principal amount equal to such Lender's Revolving Credit
Committed
Amount and representing the
obligations of the Borrower to pay such Lender the amount of such
Lender's Revolving Credit Committed Amount or, if less, the
aggregate unpaid principal amount of all Revolving Loans made by
such Lender hereunder, plus interest accrued thereon, as set
forth herein. The Borrower irrevocably authorizes each Lender to
make or cause to be made appropriate notations on its Revolving
Note, or on a record pertaining thereto, reflecting Revolving
Loans and repayments thereof. The outstanding amount of the
Revolving Loans set forth on such Lender's Revolving Note or
record shall be prima facie evidence of the principal amount
thereof owing and unpaid to such Lender, but the failure to make
such notation or record, or any error in such notation or record
shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Revolving Note to make payments
of principal of or interest on any Revolving Note when due.
(d) BORROWINGS UNDER REVOLVING NOTES.
(i) Each request for borrowings hereunder shall
be made by a notice in the form attached hereto as EXHIBIT D
from the Borrower to the Agent
(a "Notice of Borrowing"), given not later than
11:00 a.m. on the Business Day on which the proposed
borrowing is requested to be made for Revolving Loans. Each
Notice of Borrowing shall be given by either telephone or
telecopy, and, if requested by the Agent, confirmed in
writing if by telephone, setting forth (1) the requested
date of such borrowing, (2) the aggregate amount of such
requested borrowing, (3) certification by the Borrower that
it has complied in all respects with ARTICLE 5, all of which
shall be specified in such manner as is necessary to comply
with all limitations on Revolving Loans outstanding
hereunder (including, without limitation, availability under
the Revolving Credit Borrowing Base) and (4) the account at
which such requested funds should be made available. Each
Notice of Borrowing shall be irrevocable by and binding on
the Borrower. The Borrower shall be entitled to borrow
Revolving Loans in a minimum principal amount of $1,000,000
and integral multiples of $500,000 in excess thereof (or the
remaining amount of the Revolving Credit Committed Amount at
such time, if less). Revolving Loans may be repaid and
reborrowed in accordance with the provisions hereof.
The Agent shall give to each Lender prompt notice (but
in no event later than 2:00 p.m. on the date of the Agent's
receipt of notice from the Borrower) of each Notice of
Borrowing by telecopy, telex or cable (other than any Notice
of Borrowing which will be funded by the Agent in accordance
with SUBSECTION (D)(II) below). No later than 3:00 p.m. on
the date on which a borrowing is requested to be made
pursuant to the applicable Notice of Borrowing, each Lender
will make available to the Agent at the address of the Agent
set forth on the signature pages hereto, in immediately
available funds, its Pro Rata Share of such borrowing
requested to be made. Unless the Agent shall have been
notified by any Lender prior to the date of borrowing that
such Lender does not intend to make available to the Agent
its portion of the borrowing to be made on such date, the
Agent may assume that such Lender will make such amount
available to the Agent as required above and the Agent may,
in reliance upon such assumption, make available the amount
of the borrowing to be provided by such Lender. Upon
fulfillment of the conditions set forth in ARTICLE V for
such borrowing, the Agent will make such funds available
to the Borrower at the account specified by the Borrower
in such Notice of Borrowing.
(ii) Because the Borrower anticipates requesting
borrowings of Revolving Loans on a daily basis and repaying
Revolving Loans on
a daily basis through the collection of Accounts and the proceeds
of other Collateral, resulting in the amount of outstanding
Revolving Loans fluctuating from day to day, in order to
administer the Revolving Loans in an efficient manner and to
minimize the transfer of funds between the Agent and the Lenders,
the Lenders hereby instruct the Agent, and the Agent may (but is
not obligated to) (A) make available, on behalf of the Lenders,
the full amount of all Revolving Loans requested by the Borrower
not to exceed $20,000,000 in the aggregate at any one time
outstanding without requiring that the Borrower give the Agent a
Notice of Borrowing with respect to such borrowing and without
giving each Lender prior notice of the proposed borrowing, of
such Lender's Pro Rata Share thereof and the other matters
covered by the Notice of Borrowing and (B) if the Agent has made
any such amounts available as provided in clause (A), upon
repayment of Revolving Loans by the Borrower, apply such amounts
repaid directly to the amounts made available by the Agent in
accordance with clause (A) and not yet settled as described
below; PROVIDED that the Agent shall not advance funds as
described in clause (A) above if the Agent has actually received
prior to such borrowing (1) an officer's certificate from the
Borrower pursuant to and in accordance with SECTION 7.1(J) that a
Default or Event of Default is in existence or (2) a Notice of
Borrowing from the Borrower wherein the certification provided
therein states that the conditions to the making of the requested
Revolving Loans have not been satisfied or (3) a written notice
from any Lender that the conditions to such borrowing have not
been satisfied, which officer's certificate, Notice of Borrowing
or notice, in each case, shall not have been rescinded. If the
Agent advances Revolving Loans on behalf of the Lenders, as
provided in the immediately preceding sentence, the amount of
outstanding Revolving Loans and each Lender's Pro Rata Share
thereof shall be computed weekly rather than daily and shall be
adjusted upward or downward on the basis of the amount of
outstanding Revolving Loans as of 5:00 p.m. on the Business Day
immediately preceding the date of each computation; provided,
however, that the Agent retains the absolute right at any time or
from time to time to make the aforedescribed adjustments at
intervals more frequent than weekly. The Agent shall deliver to
each of the Lenders after the end of each week, or such lesser
period or periods as the Agent shall determine, a summary
statement of the amount of outstanding Revolving Loans for such
period (such week or lesser period or periods being hereafter
referred to as a "Settlement Period"). If the summary statement
is sent by the Agent and received by the Lenders prior to 12:00
Noon on any Business Day each Lender shall make the transfers
described in the next succeeding sentence no later than 3:00 p.m.
on the day such summary statement was sent; and if such summary
statement is sent by the Agent and received by the Lenders after
12:00 Noon on any Business Day, each Lender shall make such
transfers no later than 3:00 p.m. on the next succeeding Business
Day. If in any Settlement Period, the amount of a Lender's Pro
Rata Share of the Revolving Loans is in excess of the amount of
Revolving Loans actually funded by such Lender, such Lender shall
forthwith (but in no event later than the time set forth in the
next preceding sentence) transfer to the Agent by wire transfer
in immediately available funds the amount of such excess; and, on
the other hand, if the amount of a Lender's Pro Rata Share of the
Revolving Loans in any Settlement Period is less than the amount
of Revolving Loans actually funded by such Lender, the Agent
shall forthwith transfer to such Lender by wire transfer in
immediately available funds the amount of such difference.
The obligation of each of the Lenders to transfer such funds
shall be irrevocable and unconditional and without recourse
to or warranty by the Agent. Each of the Agent and the
Lenders agree to ▇▇▇▇ their respective books and records at
the end of each Settlement Period to show at all times the
dollar amount of their respective Pro Rata Shares of the
outstanding Revolving Loans. Because the Agent on behalf of
the Lenders may be advancing and/or may be repaid Revolving
Loans prior to the time when the Lenders will actually
advance and/or be repaid Revolving Loans, interest with
respect to Revolving Loans shall be allocated by the Agent
to each Lender (including the Agent) in accordance with the
amount of Revolving Loans actually advanced by and repaid to
each Lender (including the Agent) during each Settlement
Period and shall accrue from and including the date such
Revolving Loans are advanced by the Agent to but excluding
the date such Revolving Loans are repaid by the Borrower in
accordance with SECTION 2.4 or actually settled by the
applicable Lender as described in this SECTION 2.1(D)(II).
(iii) If the amounts described in SUBSECTION
(D)(I) or (D)(II) of this SECTION 2.1 are not in fact made
available to the Agent by a Lender (such Lender being hereinafter
referred to as a "Defaulting Lender") and the Agent has made
such amount available to the Borrower, the Agent shall be
entitled
to recover such corresponding amount on demand from such
Defaulting Lender. If such Defaulting Lender does not pay
such corresponding amount forthwith upon the Agent's demand
therefor, the Agent shall promptly notify the Borrower and the
Borrower shall immediately (but in no event later than five (5)
Business Days after such demand) pay such corresponding amount
to the Agent. The Agent shall also be entitled to recover from
such Defaulting Lender and the Borrower, (A) interest on such
corresponding amount in respect of each day from the date
such corresponding amount was made available by the Agent to
the Borrower to the date such corresponding amount is
recovered by the Agent, at a rate per
annum equal to either (1) if paid by such Defaulting Lender, the
overnight Federal Funds Rate or (2) if paid by the Borrower, the
then applicable rate of interest, calculated in accordance with
SECTION 4.1, plus (B) in each case, an amount equal to any costs
(including legal expenses) and losses incurred as a result of the
failure of such Defaulting Lender to provide such amount as
provided in this Credit Agreement. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its
commitments hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default
by such Lender hereunder, including, without limitation, the
right of the Borrower to seek reimbursement from any Defaulting
Lender for any amounts paid by the Borrower under clause (B)
above on account of such Defaulting Lender's default.
(iv) The failure of any Lender to make the Revolving Loan to be
made by it as part of any borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving
Loan on the date of such borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
Revolving Loan to be made by such other Lender on the date of any
borrowing.
(v) Each Lender shall be entitled to earn
interest at the then
applicable rate of interest, calculated in accordance with
ARTICLE IV, on outstanding Revolving Loans which it has funded to
the Agent from the date such Lender funded such Revolving Loan
to, but excluding, the date on which such Lender is repaid with
respect to such Revolving Loan.
(vi) Notwithstanding the obligation of the
Borrower to send
written confirmation of a Notice of Borrowing made by telephone
if and when requested by the Agent, in the event that the Agent
agrees to accept a Notice of Borrowing made by telephone, such
telephonic Notice of Borrowing shall be binding on the Borrower
whether or not written confirmation is sent by the Borrower or
requested by the Agent. The Agent may act prior to the receipt
of any requested written confirmation, without any liability
whatsoever, based upon telephonic notice believed by the Agent in
good faith to be from the Borrower or its agents. The Agent's
records of the terms of any telephonic Notices of Borrowing shall
be conclusive on the Borrower in the absence of gross negligence
or willful misconduct on the part of the Agent in connection
therewith.
2.2 TERM LOANS.
(A) TERM LOAN COMMITMENTS. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties
set forth herein each Lender severally agrees to make available
to the Borrower on the date hereof term loans in Dollars (each a
"Term Loan"; collectively the "Term Loans") equal to such
Lender's Pro Rata Share of the Term Loan Committed Amount for the
purposes hereinafter set forth. The Borrower shall give the
Agent a Notice of Borrowing prior to 11:00 a.m. on the date
hereof, requesting that the Lenders make a Term Loan in the
amount specified in the Notice of Borrowing. Once Term Loans are
paid or prepaid, they may not be reborrowed. The Term Loan
Committed Amount shall be automatically and permanently reduced
by the amount of Term Loans made.
(b) FUNDING OF TERM LOANS. Not later than 3:00 p.m. on the date
hereof, each Lender will make available to the Agent for the
account of the Borrower, at the office of the Agent in funds
immediately available to the Agent, the amount of such Lender's
Pro Rata Share of the requested Term Loan. The Borrower hereby
irrevocably authorizes the Agent to disburse the proceeds of the
Term Loans in immediately available funds by wire transfer in
accordance with the Notice of Borrowing received pursuant to
SECTION 2.2(A).
(c) [INTENTIONALLY DELETED]
(D) REPAYMENT OF TERM LOANS. The principal amount of the Term
Loans shall be repaid in consecutive monthly payments on the
first day of each calendar month commencing with the first day of
April 2002 and continuing thereafter until the Term Loans are
repaid in full. The amount of each such payment (other than the
final payment) shall equal $1,250,000. The amount of the final
payment shall be an amount equal to the then outstanding
principal balance of the Term Loans.
(e) TERM NOTES. The obligations to repay the Term Loans and to
pay interest thereon shall be evidenced by separate promissory
notes of the Borrower to each Lender in substantially the form of
EXHIBIT C-2 attached hereto (the "Term Loan Notes"), with
appropriate insertions, one Term Loan Note being payable to the
order of each Lender in a principal amount equal to such Lender's
Pro Rata Share of the Term Loans and representing the obligations
of the Borrower to pay such Lender the amount of such Lender's
Pro Rata Share of the Term Loans or, if less, the aggregate
unpaid principal amount of the Term Loans made by such Lender
hereunder, plus interest accrued thereon, as set forth herein.
The Borrower irrevocably authorizes each Lender to make or cause
to be made appropriate notations on its Term Loan Note, or on a
record pertaining thereon, reflecting Term Loans and repayments
thereof. The outstanding amount of the Term Loans set forth on
such Lender's Term Loan Note or record shall be prima facie
evidence of the principal amount thereof owing and unpaid to such
Lender, but the failure to make such notation or record, or any
error in such notation or record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any
Term Loan Note to make payments of principal of or interest on
any Term Loan Note when due.
2.3 OPTIONAL AND MANDATORY PREPAYMENTS.
(A) VOLUNTARY PREPAYMENTS. The Borrower shall have
the right to prepay Loans in whole or in part from time to time,
without
premium or penalty; provided, however, that each such partial
prepayment of Loans shall be in a minimum principal amount of
$1,000,000 and integral multiples of $500,000 in excess thereof.
Subject to the foregoing terms, amounts prepaid under this
SECTION 2.3(A) shall be applied first to Revolving Loans and then
to the Term Loans. Voluntary prepayments on Term Loans shall not
be permitted unless, immediately prior to such prepayment, the
aggregate Commitments are equal to the then outstanding principal
amount of the Term Loans. All voluntary prepayments of the Term
Loans shall be applied to the remaining principal installments
thereof in the inverse order of maturity thereof. The Borrower
has the option, at any time upon ninety (90) days prior written
notice to Agent, to terminate this Credit Agreement by paying to
Agent, in cash, the Obligations (including either (i) providing
cash collateral to be held by Agent in an amount equal to one
hundred five percent (105%) of the then extant Letter of Credit
Obligations, or (ii) causing the original Letters of Credit to be
returned to the Issuing Bank), in full, together with the
Applicable Prepayment Premium (which may be allocated based upon
letter agreements between Agent and individual Lenders). If the
Borrower has sent a notice of termination pursuant to the
provisions of this section, then the Commitments shall terminate
and the Borrower shall be obligated to repay the Obligations
(including either (i) providing cash collateral to be held by
Agent in an amount equal to one hundred five percent (105%) of
the then extant Letter of Credit Obligations, or (ii) causing the
original Letters of Credit to be returned to the Issuing Bank
(with an applicable authorization to cancel such Letters of
Credit), in full, together with the Applicable Prepayment
Premium, on the date set forth as the date of termination of this
Credit Agreement in such notice. In the event of the termination
of this Credit Agreement and repayment of the Obligations at any
time prior to the Maturity Date, for any other reason, including
(a) termination after the occurrence of an Event of Default, (b)
foreclosure and sale of Collateral, (c) sale of the Collateral in
any insolvency or bankruptcy related proceeding, or (iv)
restructure, reorganization or compromise of any or all of the
Obligations by the confirmation of a plan of reorganization or
any other plan of compromise, restructuring, or arrangement in
any insolvency or bankruptcy related proceeding, then, in view of
the impracticability and extreme difficulty of ascertaining the
actual amount of damages to the Agent and the Lenders or profits
lost by the Agent and the Lenders as a result of such early
termination, and by mutual agreement of the parties as to a
reasonable estimation and calculation of the lost profits or
damages of the Agent and the Lenders, Borrower shall pay the
Applicable Prepayment Premium to Agent (which may be allocated
based upon letter agreements between Agent and individual
Lenders).
(b) MANDATORY PREPAYMENTS.
(i) REVOLVING CREDIT COMMITTED AMOUNT. If at any
time, the sum of the aggregate principal amount of
outstanding Revolving Loans
plus Letter of Credit Obligations outstanding shall exceed
the amount of the Revolving Credit Borrowing Base minus
$10,000,000, the Borrower immediately shall prepay the
Revolving Loans, and (after all Revolving Loans have been
repaid) cash collateralize the Letter of Credit Obligations,
in an amount sufficient to
eliminate such excess.
(ii) ASSET LOSS. To the extent of Net Cash Proceeds received in
connection with an Asset Loss, the Borrower shall prepay the
Loans in an amount equal to one hundred percent (100%) of such
Net Cash Proceeds unless the Agent shall have elected not to
apply the proceeds realized from such Asset Loss to the
prepayment of the Loans (such prepayment to be applied as set
forth in clause (v) below).
(iii) ASSET TRANSFERS. Promptly and in any event within one
(1) day following the occurrence of any Asset Disposition, the
Borrower shall prepay the Loans in an aggregate amount equal to
one hundred percent (100%) of the Net Cash Proceeds of the such
Asset Disposition (such prepayment to be applied as set forth in
clause (v) below); unless the Net Cash Proceeds of an Asset
Disposition do not exceed $100,000, in which case, the Borrower
shall prepay the Loans within thirty (30) days of the end of the
fiscal month in which such Asset Disposition took place. Promptly
and in any event within one (1) day following the
occurrence of any Specified Asset Disposition, the Borrower shall
prepay the Loans in an aggregate amount equal to the greater of
(a) seventy-five percent (75%) of the Net Cash Proceeds of such
Specified Asset Disposition or (b) the amount set forth opposite
the description of the applicable assets on SCHEDULE 9.3 (such
prepayment to be applied as set forth in clause (v) below).
(iv) ISSUANCES OF EQUITY. Promptly and in any event within five
(5) days following the receipt by the Borrower of Net Cash
Proceeds from any Equity Issuance occurring after the Closing
Date, the Borrower shall prepay the Loans in an aggregate amount
equal to one hundred percent (100%) of the Net Cash Proceeds of
such Equity Issuance (such prepayment to be applied as set forth
in clause (v) below).
(v) APPLICATION OF MANDATORY PREPAYMENTS. All amounts required
to be paid pursuant to this SECTION 2.3(B) shall be applied as
follows: (A) with respect to all amounts prepaid pursuant to
SECTION 2.3(B)(I), to Revolving Loans and (after all Revolving
Loans have been repaid) to a cash collateral account in respect
of Letter of Credit Obligations, (B) with respect to all amounts
prepaid pursuant to SECTION 2.3(B)(II) in connection with an
Asset Loss, (1) first to the Term Loans, to be applied to the
remaining principal installments thereof in the inverse order of
maturity and (2) second to the Revolving Loans and (after all
Revolving Loans have been repaid) to a cash collateral account in
respect of Letter of Credit Obligations, (C) with respect to all
amounts prepaid pursuant to SECTION 2.3(B)(III), (1) first to the
Term Loans, to be applied to the remaining principal installments
thereof in the inverse order of maturity, and (2) second to the
Revolving Loans and (after all Revolving Loans have been repaid)
to a cash collateral account in respect of Letter of Credit
Obligations and (D) with respect to all amounts prepaid pursuant
to SECTION 2.3(B)(IV), unless the Borrower shall otherwise elect
a different application in its discretion (1) first to the
Revolving Loans and (after all Revolving Loans have been repaid)
to a cash collateral account in respect of Letter of Credit
Obligations and (2) second to the Term Loans, to be applied pro
rata to the remaining principal installments thereof. So long as
no Event of Default shall have occurred and be continuing,
amounts on deposit in any cash collateral account in respect of
Letter of Credit Obligations shall be remitted promptly to the
Borrower upon satisfaction of such Letter of Credit Obligations.
Upon and during the continuance of an Event of Default, amounts
on deposit in any cash collateral account in respect of Letter of
Credit Obligations shall be applied in accordance with the
Security Agreement. Upon each application of funds pursuant to
this SECTION 2.3(B)(V) (other than pursuant to clause
2.3(b)(v)(A)) to the Term Loans, Revolving Loans or to a cash
collateral account in respect of Letter of Credit Obligations,
(i) the Maximum Credit Line shall be reduced by the amount so
applied and (ii) each Lender's Commitment shall be reduced by its
Pro Rata Share of the amount so applied.
(c) VOLUNTARY REDUCTIONS. The Borrower may from time
to time permanently reduce or terminate the Maximum Credit Line
in whole
or in part (in minimum aggregate amounts of $5,000,000 or in
integral multiples of $5,000,000 in excess thereof (or, if less,
the full remaining amount of the then applicable Commitments))
upon three (3) Business Days' prior written notice to the Agent;
PROVIDED, HOWEVER, that no such termination or reduction shall be
made which would cause the aggregate principal amount of (i) Term
Loans to exceed the Maximum Credit Line or (ii) Revolving Loans
plus Letter of Credit Obligations outstanding to exceed the
Revolving Credit Borrowing Base, unless, concurrently with such
termination or reduction, Loans are repaid to the extent
necessary to eliminate such excess. The Agent shall promptly
notify each affected Lender of receipt by the Agent of any notice
from the Borrower pursuant to this SECTION 2.3(C). Upon each
reduction in the Maximum Credit Line, each Lender's Commitment
shall be reduced by its Pro Rata Share of the amount of such
reduction.
(d) MATURITY DATE. The Commitments of the Lenders and the
Letter of Credit Commitment of the Issuing Bank shall
automatically terminate on the Maturity Date.
2.4 PAYMENTS AND COMPUTATIONS.
(A) The Borrower shall make each payment hereunder and
under the Notes not later than 2:00 p.m. on the day when due.
Payments
made by the Borrower shall be in Dollars to the Agent at its
address referred to in SECTION 14.5 hereof in immediately
available funds without deduction, withholding, setoff or
counterclaim. As soon as practicable after the Agent receives
payment from the Borrower, but in no event later than one (1)
Business Day after such payment has been made, subject to SECTION
2.1(D)(II), the Agent will cause to be distributed like funds
relating to the payment of principal, interest, or Fees (other
than amounts payable to the Agent to reimburse the Agent and the
Issuing Bank for fees and expenses payable solely to them
pursuant to ARTICLE IV hereof) or expenses payable to the Agent
and the Lenders in accordance with SECTION 14.8 hereof ratably to
the Lenders, and like funds relating to the payment of any other
amounts payable to such Lender. The Borrower's obligations to
the Lenders with respect to such payments shall be discharged by
making such payments to the Agent pursuant to this SECTION 2.4(A)
or if not timely paid or any Event of Default then exists, may be
added to the principal amount of the Revolving Loans outstanding.
(b) The Borrower hereby authorizes each Lender to charge from
time to time against any or all of the Borrower's accounts with
such Lender any of the Obligations which are then due and
payable. Each Lender receiving any payment as a result of
charging any such account shall promptly notify the Agent thereof
and make such arrangements as the Agent shall request to share
the benefit thereof in accordance with SECTION 2.8.
(c) Any payments falling due under this Credit Agreement on a
day other than a Business Day shall be due and payable on the
next succeeding Business Day and shall accrue interest at the
applicable interest rate provided for in this Credit Agreement to
but excluding such Business Day. Computation of interest and
fees hereunder shall be made on the basis of actual number of
days elapsed over a 360 day year.
2.5 MAINTENANCE OF ACCOUNT; REGISTER.
(A) The Agent shall maintain an account (the "Loan
Account") on
its books in the name of the Borrower in which the Borrower will
be charged with all loans and other extensions of credit made by
Agent and the Lenders (including, without limitation, the Issuing
Bank) to the Borrower or for the Borrower's account, including
the Revolving Loans, the Term Loans, the Letter of Credit
Obligations and any other Obligations, including any and all
costs, expenses and attorney's fees which the Agent may incur,
including, without limitation, in connection with the exercise by
or for the Lenders of any of the rights or powers herein
conferred upon the Agent (other than in connection with any
assignments or participations by any Lender) or in the
prosecution or defense of any action or proceeding by or against
the Borrower or the Lenders concerning any matter arising out of,
connected with, or relating to this Credit Agreement or the
Accounts, or any Obligations owing to the Lenders by the
Borrower. In no event shall prior recourse to any Accounts or
other Collateral be a prerequisite to the Agent's right to demand
payment of any Obligation upon its maturity. Further, it is
understood that the Agent shall have no obligation whatsoever to
perform in any respect any of the Borrower's contracts or
obligations relating to the Accounts.
(b) The Borrower agrees to record the amount of each Revolving
Loan and each Term Loan on the Register referred to in SECTION
14.6. Each Revolving Loan and each Term Loan recorded on the
Register (the "Registered Loan") may not be evidenced by
promissory notes other than a Registered Note (as defined below).
Upon the registration of any Revolving Loan or a Term Loan, any
promissory note (other than a Registered Note) evidencing the
same shall be null and void and shall be returned to the
Borrower. The Borrower agrees, at the request of any Lender, to
execute and deliver to such Lender a promissory note in
registered form to evidence such Registered Loan (i.e. containing
registered note language) and registered as provided in SECTION
14.6 (a "Registered Note"), payable to the order of such Lender
and otherwise duly completed. Once recorded on the Register, the
Obligations evidenced by such Note may not be removed from the
Register so long as it remains outstanding, and a Registered Note
may not be exchanged for a promissory note that is not a
Registered Note.
2.6 STATEMENT OF ACCOUNT
After the end of each month the Agent shall send the
Borrower a statement showing the accounting for the charges,
loans, advances and other transactions occurring between the
Lenders and the Borrower during that month. The monthly
statements shall be deemed correct and binding upon the Borrower
and shall constitute an account stated between the Borrower and
the Lenders unless the Agent receives a written statement of the
Borrower's exceptions within thirty (30) days after same is
mailed to the Borrower.
2.7 TAXES.
(A) Any and all payments by the Borrower hereunder or
under the Notes to or for the benefit of any Lender shall be
made, in
accordance with SECTION 2.4, free and clear of and without
deduction for any and all present or future Taxes, deductions,
charges or withholdings and all liabilities with respect thereto,
excluding, in the case of each such Lender and the Agent, Taxes
imposed on or measured by the Agent's or any Lender's net income
or receipts or franchise taxes or taxes measured by the Agent's
or such Lender's, as applicable, net worth by the jurisdiction
under the laws of which such Lender or the Agent, as applicable,
is organized or maintains a lending office (any such excluded
Taxes, collectively, "Excluded Taxes"). If the Borrower shall be
required by law to deduct any Taxes (other than Excluded Taxes)
from or in respect of any sum payable hereunder or under any Note
to or for the benefit of any Lender or the Agent, (i) the sum
payable shall be increased as may be necessary so that after
making all required deductions of Taxes (including deductions of
Taxes applicable to additional sums payable under this SECTION
2.7) such Lender or the Agent, as the case may be, receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount so
deducted to the relevant taxation authority or other authority in
accordance with applicable law; provided, however, that the
Borrower shall be under no obligation to increase the sum payable
to any Lender not organized under the laws of the United States
or a state thereof (a "Foreign Lender") by an amount equal to the
amount of the U.S. Tax required to be withheld under United
States law from the sums paid to such Foreign Lender, if such
withholding is caused by the failure of such Foreign Lender to be
engaged in the active conduct of a trade or business in the
United States or all amounts of interest and fees to be paid to
such Foreign Lender hereunder are not effectively connected with
such trade or business within the meaning of U.S. Treasury
Regulation 1.1441-4(a).
(b) Each Foreign Lender agrees that it will deliver to the
Borrower and the Agent (i) two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI or
successor applicable form(s), as the case may be, and (ii) an
Internal Revenue Service Form W-8 or W-9 or successor applicable
form, together with any other certificate or statement of
exemption required under the Internal Revenue Code or regulations
issued thereunder. Each such Lender also agrees to deliver to
the Borrower and the Agent two (2) further copies of the said
Form W-8BEN or W-8ECI and Form W-8 or W-9, or successor
applicable forms or other manner of certification, as the case
may be, on or before the date that any such form expires or
becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Borrower, and such extensions or renewals thereof as may
reasonably be requested by the Borrower or the Agent, unless in
any such case an event (including, without limitation, any change
in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Lender
from duly completing and delivering any such form with respect to
it and such Lender so advises the Borrower and the Agent. Such
Lender shall certify (A) in the case of a Form W-8BEN or W-8ECI,
that it is entitled to receive payments under this Credit
Agreement without deduction or withholding of any U.S. federal
income taxes and (B) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from U.S. backup withholding tax.
(c) In addition, the Borrower agrees to pay any present or
future stamp, documentary, privilege, intangible or similar Taxes
or any other excise or property Taxes, charges or similar levies
that arise at any time or from time to time (other than Excluded
Taxes) (i) from any payment made under any and all Credit
Documents, (ii) from the transfer of the rights of any Lender
under any Credit Documents to any other Lender or Lenders or
(iii) from the execution or delivery by the Borrower of, or from
the filing or recording or maintenance of, or otherwise with
respect to, any and all Credit Documents (hereinafter referred to
as "Other Taxes").
(d) The Borrower will indemnify each Lender and the Agent for
the full amount of Taxes (including, without limitation and
without duplication, any Taxes imposed by any jurisdiction on
amounts payable under this SECTION 2.7), subject to (i) the
exclusion set out in the first sentence of SECTION 2.7(A), (ii)
the provisions of SECTION 2.7(B), and (iii) the provisions of the
proviso set forth in SECTION 2.7(A), and will indemnify each
Lender and the Agent for the full amount of Other Taxes
(including, without limitation and without duplication, any Taxes
imposed by any jurisdiction on amounts payable under this SECTION
2.7) paid by such Lender or the Agent (on its own behalf or on
behalf of any Lender), as the case may be, in respect of payments
made or to be made hereunder, and any liability (including
penalties, interest and expenses) arising solely therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Payment of this
indemnification shall be made within thirty (30) days from the
date such Lender or the Agent, as the case may be, makes written
demand therefor.
(e) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes, the Borrower shall furnish to the Agent, at
its address referred to in SECTION 14.5, the original or
certified copy of a receipt evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the
Borrower contained in this SECTION 2.7 shall survive the payment
in full of all Obligations hereunder and under the Revolving
Notes.
2.8 SHARING OF PAYMENTS.
If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of
setoff or otherwise) on account of the Loans made by it or its
participation in Letters of Credit in excess of its pro rata
share of such payment as provided for in this Credit Agreement,
such Lender shall forthwith purchase from the other Lenders such
participations in the Loans made by them or in their
participation in Letters of Credit as shall be necessary to cause
such purchasing Lender to share the excess payment accruing to
all Lenders in accordance with their respective ratable shares as
provided for in this Credit Agreement; provided, however, that if
all or any portion of such excess is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be
rescinded and each such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to
the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the
purchasing Lender) or any interest or other amount paid or
payable by the purchasing Lender in respect to the total amount
so recovered. The Borrower agrees that any Lender so purchasing
a participation from another Lender pursuant to this SECTION 2.8
may, to the fullest extent permitted by law, exercise all of its
rights of payment (including the right of setoff) with respect to
such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
2.9 PRO RATA TREATMENT.
Each Loan, each payment or prepayment of principal of
any Loan or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Loans, each
payment of the Letter of Credit Fee, each reduction of the
Commitments and each conversion or extension of any Loan, shall
be allocated pro rata among the Lenders in accordance with the
respective principal amounts of their outstanding Loans and their
participation interests in the Letters of Credit; provided,
however, that the foregoing fees payable hereunder to the Lenders
shall be allocated to each Lender based on such Lender's Pro Rata
Share.
2.10 SECURITIZATION.
The Borrower hereby acknowledges that the Lenders and
any of their Affiliates may sell or securitize the Obligations (a
"Securitization") through the pledge of the Obligations as
collateral security for loans to such Lenders or their Affiliates
or through the sale of the Obligations or the issuance of direct
or indirect interests in the Obligations, which loans to such
Lenders or their Affiliates or direct or indirect interests will
be rated by ▇▇▇▇▇'▇, Standard & Poor's or one or more other
rating agencies (the "Rating Agencies"). The Borrower shall
cooperate reasonably with such Lenders and their Affiliates to
effect the Securitization including, without limitation, by (a)
amending this Agreement and the other Loan Documents, and
executing such additional documents, as reasonably requested by
such Lenders, in connection with the Securitization, provided
that (i) any such amendment or additional documentation does not
impose material additional costs on the Borrower, (ii) any such
amendment or additional documentation does not materially
adversely affect the rights, or materially increase the
obligations (including administrative duties or reporting
obligations), of the Borrower under the Credit Documents or
change or affect in a manner adverse to the Borrower the
financial terms of the Obligations, and (b) providing such
information as may be reasonably requested by such Lenders, in
connection with the rating of the Obligations or the
Securitization, (c) providing in connection with any rating of
the Obligations, a certificate (i) agreeing to indemnify such
Lenders and any of their Affiliates, any of the Rating Agencies,
or any party providing credit support or otherwise participating
in the Securitization (collectively, the "Securitization
Parties") for any losses, claims, damages or liabilities (the
"Liabilities") to which such Lenders, their Affiliates or such
Securitization Parties may become subject insofar as the
Liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any
Credit Document or in any writing delivered by or on behalf of
the Borrower and its respective Affiliates to the Agent or one or
more Lenders in connection with any Credit Document or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading and
such indemnity shall survive any transfer by such Lenders or
their successors or assigns of the Obligations, and (ii) agreeing
to reimburse such Lenders and any of their Affiliates and other
Securitization Parties for any legal or other expenses reasonably
incurred by such Persons in connection with defending the
Liabilities; and (d) providing such information regarding the
Borrower, the Guarantors, the Collateral and other property,
assets and business of the Borrower and the Guarantors (including
appraisals and valuations) as may be reasonably requested by such
Lenders or their successors or assignees.
ARTICLE III.
LETTERS OF CREDIT
3.1 ISSUANCE.
Subject to the terms and conditions hereof and of the
Letter of Credit Documents, if any, and any other terms and
conditions which the Issuing Bank may reasonably require, the
Lenders will participate in the issuance by the Issuing Bank to
the Underlying Issuer from time to time of one or more L/C
Undertakings with respect to Letters of Credit issued from time
to time by the Underlying Issuer in Dollars from the Closing Date
until the Maturity Date as the Borrower may request, in each case
in a form acceptable to the Issuing Bank; provided, however, that
(a) the Letter of Credit Obligations outstanding shall not at any
time exceed TWENTY-FIVE MILLION DOLLARS ($25,000,000) (the
"Letter of Credit Committed Amount") and (b) the sum of the
aggregate principal amount of outstanding Revolving Loans plus
Letter of Credit Obligations outstanding shall not at any time
exceed the Revolving Credit Borrowing Base. No Letter of Credit
shall (x) have an original expiry date more than one year from
the date of issuance or (y) as originally issued or as extended,
have an expiry date extending beyond the Maturity Date. Each
Letter of Credit shall comply with the related Letter of Credit
Documents. The issuance and expiry date of each Letter of Credit
shall comply with the related Letter of Credit Documents. The
issuance and expiry date of each Letter of Credit shall be a
Business Day. Notwithstanding anything to the contrary herein or
otherwise, no Letter of Credit shall be issued to or for the
benefit of CBII (or any Person in its capacity as a creditor of
CBII) or to support, replace or supplement any obligation of
CBII, except for those Letters of Credit set forth in SCHEDULE
3.1 hereto.
3.2 NOTICE AND REPORTS.
The request for the issuance of a Letter of Credit
shall be submitted by the Borrower to the Issuing Bank at least
three (3) Business Days prior to the requested date of issuance.
The Issuing Bank will, upon request, disseminate to each of the
Lenders a detailed report specifying the Letters of Credit which
are then issued and outstanding and any activity with respect
thereto which may have occurred since the date of the prior
report, and including therein, among other things, the
beneficiary, the face amount and the expiry date as well as any
payment or expirations which may have occurred.
3.3 PARTICIPATION.
Each Lender, upon issuance of a Letter of Credit, shall
be deemed to have purchased without recourse a risk participation
from the Issuing Bank in the applicable L/C Undertaking and the
Issuing Bank's rights with respect to such Letter of Credit and
the obligations arising thereunder, in each case in an amount
equal to its Pro Rata Share of such Letter of Credit, and shall
absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and be obligated to pay to the Issuing
Bank therefor and discharge when due, its Pro Rata Share of the
obligations arising under such L/C Undertaking. Without limiting
the scope and nature of each Lender's participation in any L/C
Undertaking, to the extent that the Issuing Bank has not been
reimbursed as required hereunder, each such Lender shall pay to
the Issuing Bank its Pro Rata Share of such unreimbursed drawing
pursuant to the provisions of SECTION 3.4. The obligation of
each Lender to so reimburse the Issuing Bank shall be absolute
and unconditional and shall not be affected by the occurrence of
a Default, an Event of Default or any other occurrence or event.
Any such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to make a payment to the Issuing Bank
as a result of drawings under any Letter of Credit, together with
interest as hereinafter provided.
3.4 PAYMENT.
In the event of any drawing under any Letter of Credit,
the Issuing Bank will, promptly upon receiving actual knowledge
thereof, notify the Borrower. Unless the Borrower shall
immediately notify the Issuing Bank that the Borrower intends to
otherwise make a payment to the Issuing Bank in the amount of
such drawing as a result of such drawing, the Borrower shall be
deemed to have requested that the Lenders make a Revolving Loan
in the amount of the drawing as provided in SECTION 3.5 on the
related Letter of Credit, the proceeds of which will be used to
satisfy the related obligations to the Issuing Bank. The
Borrower promises to make a payment to the Issuing Bank in an
amount equal to the amount of each drawing on a Letter of Credit
on the day of drawing under any Letter of Credit (either with the
proceeds of a Revolving Loan obtained hereunder or otherwise) in
same day funds. If the Borrower shall fail to pay the Issuing
Bank as provided hereinabove, the amount of such payment which
has not been made to the Issuing Bank shall bear interest at a
per annum rate equal to the greater of (i) sixteen percent (16%)
per annum or (ii) the Prime Rate plus seven percent (7%) per
annum. The Borrower's payment obligations hereunder shall be
absolute and unconditional under all circumstances irrespective
of any rights of setoff, counterclaim or defense to payment the
Borrower may claim or have against the Underlying Issuer, the
Issuing Bank, the Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including
without limitation any defense based on any failure of the
Borrower to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The
Issuing Bank will promptly notify the other Lenders of the amount
of any payment owing to the Issuing Bank as a result of a draw on
a Letter of Credit that has not been paid by the Borrower as
provided above, and each Lender shall promptly pay to the Agent
for the account of the Issuing Bank in Dollars and in immediately
available funds, the amount of such Lender's Pro Rata Share of
such amount. Such payment shall be made on the Business Day such
notice is received by such Lender from the Issuing Bank if such
notice is received at or before 2:00 p.m. otherwise such payment
shall be made at or before 12:00 Noon on the Business Day next
succeeding the day such notice is received. If such Lender does
not pay such amount to the Issuing Bank in full upon such
request, such Lender shall, on demand, pay to the Agent for the
account of the Issuing Bank interest on the unpaid amount during
the period from the date of such drawing until such Lender pays
such amount to the Issuing Bank in full at a rate per annum equal
to, if paid within two (2) Business Days of the date that such
Lender is required to make payments of such amount pursuant to
the preceding sentence, the Federal Funds Rate and thereafter at
a rate equal to the Prime Rate. Each Lender's obligation to make
such payment to the Issuing Bank, and the right of the Issuing
Bank to receive the same, shall be absolute and unconditional,
shall not be affected by any circumstance whatsoever and without
regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of
Default or the acceleration of the obligations of the Borrower
hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever. Simultaneously with the
making of each such payment by a Lender to the Issuing Bank, such
Lender shall, automatically and without any further action on the
part of the Issuing Bank or such Lender, acquire a participation
in an amount equal to such payment (excluding the portion of such
payment constituting interest owing to the Issuing Bank) in the
related unreimbursed drawing portion of the Letter of Credit
Obligation and in the interest thereon and in the related Letter
of Credit Documents, and shall have a claim against the Borrower
with respect thereto.
3.5 REPAYMENT WITH REVOLVING LOANS.
On any day on which the Borrower shall have requested, or been
deemed to have requested, a Revolving Loan advance to make a
payment as a result of a drawing under a Letter of Credit, the
Agent shall give notice to the Lenders that a Revolving Loan has
been requested or deemed requested by the Borrower to be made in
connection with a drawing under a Letter of Credit, in which case
a Revolving Loan advance shall be immediately made to the
Borrower by all Lenders (notwithstanding any termination of the
Commitments pursuant to SECTION 11.2) pro rata based on the
respective Pro Rata Shares of the Lenders (determined before
giving effect to any termination of the Commitments pursuant to
SECTION 11.2) and the proceeds thereof shall be paid directly by
the Agent to the Issuing Bank for application to the respective
Letter of Credit Obligations. Each such Lender hereby
irrevocably agrees to make its Pro Rata Share of each such
Revolving Loan immediately upon any such request or deemed
request in the amount, in the manner and on the date specified in
the preceding sentence notwithstanding (i) the amount of such
borrowing may not comply with the minimum amount for advances of
Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in ARTICLE V are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving Loan
to be made by the time otherwise required hereunder, (v) whether
the date of such borrowing is a date on which Revolving Loans are
otherwise permitted to be made hereunder or (vi) any termination
of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a
result of the commencement of a bankruptcy or insolvency
proceeding with respect to the Borrower), then each such Lender
hereby agrees that it shall forthwith purchase (as of the date
such borrowing would otherwise have occurred, but adjusted for
any payments received from the Borrower on or after such date and
prior to such purchase) from the Issuing Bank such participation
in the outstanding Letter of Credit Obligations as shall be
necessary to cause each such Lender to share in such Letter of
Credit Obligations ratably (based upon the respective Pro Rata
Shares of the Lenders (determined before giving effect to any
termination of the Commitments pursuant to SECTION 11.2)),
PROVIDED that at the time any purchase of participation pursuant
to this sentence is actually made, the purchasing Lender shall be
required to pay to the Issuing Bank, to the extent not paid to
the Issuing Bank by the Borrower in accordance with the terms of
SECTION 3.4, interest on the principal amount of participation
purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date
of payment for such participation, at the rate equal to, if paid
within two (2) Business Days of the date of the Revolving Loan
advance, the Federal Funds Rate, and thereafter at a rate equal
to the Prime Rate.
3.6 RENEWAL, EXTENSION.
The renewal or extension of any Letter of Credit shall,
for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
3.7 UNIFORM CUSTOMS AND PRACTICES.
The Issuing Bank or the Underlying Issuer may provide
that the Letters of Credit shall be subject to The Uniform
Customs and Practice for Documentary Credits, as published as of
the date of issue by the International Chamber of Commerce (the
"UCP"), in which case the UCP may be incorporated by reference
therein and deemed in all respects to be a part thereof.
3.8 INDEMNIFICATION; NATURE OF ISSUING BANK'S DUTIES.
(A) In addition to their other obligations under this
ARTICLE III, the Borrower agrees to protect, indemnify, pay and
save the
Issuing Bank harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing
Bank may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or any L/C
Undertaking or (B) the failure of the Underlying Issuer or the
Issuing Bank to honor a drawing under a Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of
any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein called
"Government Acts").
(b) As between the Borrower and the Issuing Bank, the Borrower
shall assume all risks of the acts, omissions or misuse of any
Letter of Credit or any L/C Undertaking by the beneficiary
thereof. The Issuing Bank shall not be responsible: (i) for the
form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with
the application for and issuance of any Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective
for any reason; (iii) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in
cipher; (iv) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (v) for
any consequences arising from causes beyond the control of the
Issuing Bank, including, without limitation, any Government Acts.
None of the above shall affect, impair, or prevent the vesting of
the Issuing Bank's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Bank, under or in connection with any
Letter of Credit or the related certificates, if taken or omitted
in good faith, shall not put such Issuing Bank under any
resulting liability to the Borrower. It is the intention of the
parties that this Credit Agreement shall be construed and applied
to protect and indemnify the Issuing Bank against any and all
risks involved in the issuance of the Letters of Credit, all of
which risks are hereby assumed by the Borrower, including,
without limitation, any and all Government Acts. The Issuing
Bank shall not, in any way, be liable for any failure by the
Issuing Bank or anyone else to pay any drawing under any Letter
of Credit as a result of any Government Acts or any other cause
beyond the control of the Issuing Bank.
(d) Nothing in this SECTION 3.8 is intended to limit the
reimbursement obligations of the Borrower contained in SECTION
3.4 above. The obligations of the Borrower under this SECTION
3.8 shall survive the termination of this Credit Agreement. No
act or omission of any current or prior beneficiary of a Letter
of Credit shall in any way affect or impair the rights of the
Issuing Bank to enforce any right, power or benefit under this
Credit Agreement.
(e) Notwithstanding anything to the contrary contained in this
SECTION 3.8, the Borrower shall have no obligation to indemnify
the Issuing Bank in respect of any liability incurred by the
Issuing Bank arising solely out of the gross negligence or
willful misconduct of the Issuing Bank, as determined by a court
of competent jurisdiction.
3.9 RESPONSIBILITY OF ISSUING BANK.
It is expressly understood and agreed that the
obligations of the Issuing Bank hereunder to the Lenders are only
those expressly set forth in this Credit Agreement and that the
Issuing Bank shall be entitled to assume that the conditions
precedent set forth in ARTICLE III or V have been satisfied
unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however,
that nothing set forth in this ARTICLE III shall be deemed to
prejudice the right of any Lender to recover from the Issuing
Bank any amounts made available by such Lender to the Issuing
Bank pursuant to this ARTICLE III in the event that it is
determined by a court of competent jurisdiction that the payment
with respect to a Letter of Credit constituted gross negligence
or willful misconduct on the part of the Issuing Bank.
3.10 CONFLICT WITH LETTER OF CREDIT DOCUMENTS.
In the event of any conflict between this Credit
Agreement and any Letter of Credit Document (including any letter
of credit application), this Credit Agreement shall control.
ARTICLE IV.
INTEREST AND FEES
4.1 INTEREST ON LOANS.
Interest on the Loans and other amounts charged to the
Loan Account shall accrue each day on the balance thereof, and
shall be payable monthly in arrears on the first day of each
calendar month (for the preceding month). Subject to the
provisions of SECTION 4.2, the interest rate (the "Interest
Rate") with respect to the Loans shall be equal to the greater of
(i) the Prime Rate plus five percent (5%) per annum or (ii)
fourteen percent (14%) per annum. The interest rate hereunder
shall be calculated based on a 360 day year for the actual number
of days elapsed.
4.2 INTEREST AFTER EVENT OF DEFAULT.
Interest on the Loans and other amounts charged to the
Loan Account, as of the date an Event of Default occurs, and at
all times thereafter until the earlier of the date upon which (a)
all Obligations have been paid and satisfied in full in cash or
(b) such Event of Default shall have been cured or waived, shall
be payable on demand at a rate equal to the Interest Rate plus
two percent (2%) per annum (the "Default Rate"). Interest shall
be payable on any other amount due hereunder and shall accrue at
the Default Rate from the date due and payable until paid in
full. The rates hereunder shall be calculated based on a 360-day
year for the actual number of days elapsed.
4.3 [INTENTIONALLY DELETED]
4.4 AGENT'S FEES.
The Borrower shall pay all fees required to be paid to
the Agent under the Fee Letter at the times and in the amounts
set forth therein.
4.5 LETTER OF CREDIT FEES.
(A) LETTER OF CREDIT FEE. In consideration of the
issuance of Letters of Credit hereunder, the Borrower promises to
pay to the
Agent for the account of each Lender a fee (the "Letter of Credit
Fee") on such Lender's Pro Rata Share of the average daily
maximum amount available to be drawn under each such Letter of
Credit computed at a per annum rate for each day from the date of
issuance to the date of expiration equal to three percent (3%)
per annum. The Letter of Credit Fee will be payable upon
issuance.
(b) ISSUING BANK FEES. In addition to the Letter of Credit Fee
payable pursuant to clause (a) above, the Borrower promises to
pay to the Issuing Bank for its own account without sharing by
the other Lenders the letter of credit fronting and negotiation
fees agreed to by the Borrower and the Issuing Bank from time to
time and the customary charges from time to time of the Issuing
Bank with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings
under, such Letters of Credit (collectively, the "Issuing Bank
Fees") and all fees or other amounts charged to the Issuing Bank
by the Underlying Issuer.
4.6 AUTHORIZATION TO CHARGE LOAN ACCOUNT.
The Borrower hereby authorizes the Agent to charge the
Loan Account with the amount of all payments, fees and other
amounts due hereunder or under the Fee Letter to the Lenders, the
Agent and the Issuing Bank as and when such payments become due.
The Borrower confirms that any charges which the Agent may so
make to the Borrower's accounts as herein provided will be made
as an accommodation to the Borrower and solely at the Agent's
discretion.
4.7 INDEMNIFICATION IN CERTAIN EVENTS.
If after the Closing Date, either (a) any change in or
in the interpretation of any law or regulation is introduced,
including, without limitation, with respect to reserve
requirements, applicable to Foothill or any other banking or
financial institution from whom any of the Lenders borrow funds
or obtain credit (a "Funding Bank") or any of the Lenders, or (b)
a Funding Bank or any of the Lenders complies with any future
guideline or request from any central bank or other Governmental
Authority or (c) a Funding Bank or any of the Lenders determines
that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof has or would
have the effect described below, or a Funding Bank or any of the
Lenders complies with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, and in the case of
any event set forth in this clause (c), such adoption, change or
compliance has or would have the direct or indirect effect of
reducing the rate of return on any of the Lenders' capital as a
consequence of its obligations hereunder to a level below that
which such Lender could have achieved but for such adoption,
change or compliance (taking into consideration the Funding
Bank's or Lenders' policies with respect to capital adequacy) by
an amount deemed by such Lender to be material, and the result of
any of the foregoing events described in clauses (a), (b) or (c)
is or results in an increase in the cost to any of the Lenders of
funding or maintaining any Commitment, the Revolving Loans, the
Term Loans or the Letters of Credit, then the Borrower shall from
time to time upon demand by the Agent, pay to the Agent
additional amounts sufficient to indemnify the Lenders against
such increased cost. A certificate as to the amount of such
increased cost shall be submitted to the Borrower by the Agent
and shall be conclusive and binding absent manifest error.
ARTICLE V.
CONDITIONS PRECEDENT
The obligation of the Lenders to make the Term Loans or
any Revolving Loan or of the Issuing Bank to issue any Letter of
Credit hereunder is subject to the satisfaction of, or waiver of,
immediately prior to or concurrently with the making of such Term
Loans or any Revolving Loan or issuance of such Letter of Credit
the following conditions precedent:
5.1 CLOSING CONDITIONS.
The obligation of each Lender to make Loans and/or of
the Issuing Bank to issue Letters of Credit hereunder shall be
subject to the satisfaction, on or prior to the Closing Date, of
the following conditions precedent:
(a) EXECUTED CREDIT DOCUMENTS. Receipt by the Agent
of duly executed copies of: this Credit Agreement; the Notes; the
Security Documents and the Guarantees; and all other Credit
Documents, and each other agreement, document, certificate or
instrument described on the Closing Checklist attached hereto as
EXHIBIT K, each in form and substance acceptable to the Agent and
the Lenders in their sole discretion.
(b) CORPORATE DOCUMENTS. Receipt by the Agent of the
following:
(i) CHARTER DOCUMENTS. Copies of the articles or
certificates of incorporation or formation or other charter
documents of each Credit Party certified,
to the extent available, to be true and
complete as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its
incorporation or formation and certified by a secretary or
assistant secretary of such Credit Party to be true and
correct as of the Closing Date.
(ii) BYLAWS. A copy of the bylaws or limited liability company
agreement or similar agreement of each Credit Party certified by
a secretary or assistant secretary of such Credit Party to be
true and correct as of the Closing Date.
(iii) RESOLUTIONS. Copies of resolutions of the Board of
Directors or similar managing body of each Credit Party approving
and adopting the Credit Documents to which it is a party, the
transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary
of such Credit Party to be true and correct and in force and
effect as of the Closing Date.
(iv) GOOD STANDING. Copies of (i) certificates of good standing,
existence or its equivalent with respect to each Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of incorporation
and each other jurisdiction in which the failure to so qualify
and be in good standing could reasonably be expected to have a
Material Adverse Effect and (ii) to the extent available, a
certificate indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate taxing
Governmental Authorities.
(v) INCUMBENCY. An incumbency certificate of each Credit Party
certified by a secretary or assistant secretary to be true and
correct as of the Closing Date.
(c) FINANCIAL STATEMENTS. Receipt by the Agent and
the Lenders of the unaudited balance sheet of the Borrower as of,
and a
statement of income for the period ending, September 30, 2000
prepared by the chief accounting officer of the Borrower and such
other information relating to the Borrower Entities as the Agent
may reasonably require in connection with the structuring and
syndication of credit facilities of the type described herein.
(d) OPINIONS OF COUNSEL. Receipt by the Agent of an opinion, or
opinions (which shall cover, among other things, authority,
legality, validity, binding effect, enforceability and attachment
and perfection of liens), satisfactory to the Agent, addressed to
the Agent and the Lenders and dated the Closing Date, from legal
counsel to the Borrower and the relevant Subsidiaries.
(e) COLLATERAL. The Agent shall have received:
(i) searches of Uniform Commercial Code, PPSA or
other similar filings in the jurisdiction of the chief
executive office of each
Secured Credit Party and each jurisdiction where any
Collateral is located or where a filing would need to be
made in order to perfect the Agent's security interest in
the Collateral, copies of the financing statements on file
in such jurisdictions and evidence that no Liens exist other
than Permitted Liens;
(ii) duly executed UCC, PPSA or other similar financing
statements for each appropriate jurisdiction as is necessary, in
the Agent's sole discretion, to perfect the Agent's security
interest in the Collateral;
(iii) searches of ownership of intellectual property in the
appropriate governmental offices and such
patent/trademark/copyright filings as requested by the Agent in
order to perfect the Agent's security interest in the Collateral;
(iv) all instruments and chattel paper in the possession of the
Borrower, together with allonges or assignments as may be
necessary or appropriate to perfect the Agent's security interest
in the Collateral to the extent required under the Security
Agreement;
(v) duly executed consents as are necessary, in the Agent's sole
discretion, to perfect the Agent's security interest in the
Collateral, including, without limitation, such Acknowledgment
Agreements as the Agent may require;
(vi) duly executed tri-party agreements in form and substance
acceptable to the Agent with respect to each bank account of the
Borrower (other than payroll and ▇▇▇▇▇ cash bank accounts
maintained as zero balance accounts and other similar bank
accounts having limited or no activity and balances of not more
than $10,000 and disbursement accounts and investment accounts
acceptable to the Agent); and
(vii) duly executed mortgages on the real property which is
owned by CBCNA.
(f) PRIORITY OF LIENS. The Agent shall have received
satisfactory evidence that the Agent, on behalf of the Lenders,
holds a perfected, first priority Lien on all Collateral (subject
only to Permitted Liens).
(g) OPENING REVOLVING CREDIT BORROWING BASE CERTIFICATE. The
Agent and the Borrower shall have agreed upon Revolving Credit
Borrowing Base calculation and reporting procedures and the Agent
shall have received a Revolving Credit Borrowing Base Certificate
as of March 7, 2001, substantially in the form of EXHIBIT G and
certified by the chief accounting officer or treasurer of the
Borrower on the Closing Date to be true and correct as of
February 24, 2001.
(h) [INTENTIONALLY DELETED]
(I) [INTENTIONALLY DELETED]
(J) EVIDENCE OF INSURANCE. Receipt by the Agent of copies of
insurance policies or certificates of insurance of the Borrower
and it Subsidiaries evidencing liability and casualty insurance
meeting the requirements set forth in the Credit Documents,
including, without limitation, naming the Agent as loss payee on
behalf of the Lenders and as additional insured to the extent
required by SECTION 7.10.
(k) CORPORATE STRUCTURE. The corporate capital and ownership
structure of the Borrower and its Subsidiaries shall be as
described in SCHEDULE 6.9.
(l) CONSENTS. Receipt by the Agent of evidence that all
governmental, shareholder and third party consents and approvals
required in connection with the transactions and the related
financings contemplated hereby and expiration of all applicable
waiting periods without any action being taken by any authority
that could restrain, prevent or impose any material adverse
conditions on such transactions or that could seek or threaten
any of the foregoing, and no law or regulation shall be
applicable which in the judgment of the Agent could have such
effect.
(m) LITIGATION. There shall not exist any pending or threatened
action, suit, investigation or proceeding against the Borrower or
any of its Subsidiaries or its assets that could reasonably be
expected to have a Material Adverse Effect.
(n) OTHER INDEBTEDNESS. Receipt by the Agent of evidence that,
after giving effect to the making of the Loans made on the
Closing Date, the Borrower and its Subsidiaries shall have no
Funded Indebtedness other than the Indebtedness under the Credit
Documents and as disclosed on SCHEDULE 1.1D.
(o) SOLVENCY CERTIFICATE. Receipt by the Agent of an officer's
certificate for the Borrower prepared by its chief accounting
officer or treasurer as to the financial condition, solvency and
related matters of the Borrower, in each case after giving effect
to the initial borrowings under the Credit Documents, in
substantially the form of EXHIBIT H hereto.
(p) OFFICER'S CERTIFICATES. The Agent shall have received a
certificate or certificates executed by the president or chief
accounting officer or treasurer of the Borrower as of the Closing
Date stating that (i) after giving effect to the making of the
Loans and application of the proceeds thereof, the Borrower is in
compliance with all existing financial obligations, (ii) all
governmental, shareholder and third party consents and approvals,
if any, with respect to the Credit Documents and the transactions
contemplated thereby have been obtained, (iii) no action, suit,
investigation or proceeding is pending or threatened in any court
or before any arbitrator or governmental instrumentality that
purports to affect the Borrower or any transaction contemplated
by the Credit Documents, if such action, suit, investigation or
proceeding could reasonably be expected to have a Material
Adverse Effect and (iv) immediately after giving effect to this
Credit Agreement, the other Credit Documents and all the
transactions contemplated therein to occur on such date, (A) the
Borrower is Solvent, (B) no Default or Event of Default exists,
(C) all representations and warranties contained herein and in
the other Credit Documents are true and correct in all material
respects, and (D) the Borrower is in compliance with each of the
financial covenants set forth in ARTICLE VIII.
(q) FEES AND EXPENSES. Payment by the Borrower of all fees and
expenses owed by it to the Lenders and the Agent, including,
without limitation, payment to the Agent of the fees set forth in
the Fee Letter.
(r) SOURCES AND USES; PAYMENT INSTRUCTIONS. Receipt by the
Agent of (a) a statement of sources and uses of funds covering
all payments reasonably expected to be made by the Borrower in
connection with the transactions contemplated by the Credit
Documents to be consummated on the Closing Date, including an
itemized estimate of all fees, expenses and other closing costs
and (b) payment instructions with respect to each wire transfer
to be made by the Agent on behalf of the Lenders or the Borrower
on the Closing Date setting forth the amount of such transfer,
the purpose of such transfer, the name and number of the account
to which such transfer is to be made, the name and ABA number of
the bank or other financial institution where such account is
located and the name and telephone number of an individual that
can be contacted to confirm receipt of such transfer.
(s) ACCOUNT DESIGNATION LETTER. Receipt by the Agent of an
Account Designation Letter substantially in the form of EXHIBIT I
hereto.
(t) MATERIAL ADVERSE CHANGE. (i) No material adverse change in
the business, operations, profits or prospects of the Borrower
and its Subsidiaries, taken as a whole, shall have occurred since
September 30, 2000 and (ii) on or prior to the Closing Date,
there shall not have occurred a substantial impairment of the
financial markets generally which, in the opinion of the Lenders,
has materially and adversely affected the transactions
contemplated hereby.
(u) AVAILABILITY. The Lenders shall be satisfied that, after
reserving for amounts to bring the current liabilities of the
Borrower within their terms (and after giving effect to payments
made to comply with item (r) above), the sum of (a) Availability
plus (ii) the unrestricted cash and Cash Equivalents then held or
owned directly by the Borrower, shall be equal to at least
$40,000,000.
(v) PACA. The Agent shall have received evidence satisfactory
to the Agent that all contracts between the Borrower and any of
its Subsidiaries that are subject to the benefits of PACA have
payment terms of at least thirty-one (31) days and include
language necessary to exclude the underlying sales transactions
from the benefits of PACA.
(w) SUBORDINATION. The Agent shall have received evidence
satisfactory to the Agent that (i) either (A) all obligations
(other than obligations in an aggregate principal amount not to
exceed $40,000,000, which are evidenced by a note in form and
substance acceptable to the Agent, and other than amounts
accruing after January 1, 2001 relating to amounts owing with
respect to overhead or tax sharing agreements) of the Borrower or
any of its Subsidiaries owing to CBII have been converted into
equity or (B) all claims of and amounts, now or in the future,
owing by the Borrower or any of its Subsidiaries to the Borrower
or any of its Subsidiaries are subordinated to the Obligations,
and (ii) all claims of, and amounts now or in the future owing by
the Borrower by any of its Subsidiaries to CBII are subordinated
to the Obligations.
(x) SALES AGENT. The Agent shall have received evidence
satisfactory to the Agent that (i) CBCNA is the agent of the
Borrower for the sale of bananas, plantains and other items in
the United States and that all money received by CBCNA in
connection with such sales is received for the benefit of, and is
the property of, the Borrower, (ii) CBCNA is no longer the agent
of, and no longer collects any funds for or on behalf of, CBII,
(iii) ▇▇▇▇▇▇▇▇ (Canada) Inc. is the agent of the Borrower for the
sale of bananas, plantains and other items in Canada and that all
money received by ▇▇▇▇▇▇▇▇ (Canada) Inc. in connection with such
sales is received for the benefit of, and is the property of, the
Borrower and (iv) ▇▇▇▇▇▇▇▇ (Canada) Inc. is no longer the agent
of, and no longer collects any funds for or on behalf of, CBII.
(y) OTHER. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by
any Lender, including, without limitation, information regarding
litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent
liabilities of the Borrower.
(z) The Agent shall have received copies, certified by an
officer of the Borrower as being true, correct, complete and in
full force and effect and not modified, of each of the following
documents:
(i) that certain License Agreement dated as of
December 31, 2000 by and between the Borrower and CBII;
(ii) that certain Banana Supply Agreement made effective as of
December 31, 2000 by and between CIL and the Borrower;
(iii) that certain Business Assignment Agreement made
effective as of December 31, 2000 by and between CBII and the
Borrower;
(iv) that certain U.S. Sale of Fruit Commission Sales Agreement
dated effective as of December 31, 2000 by and between the
Borrower and CBCNA;
(v) that certain Canadian Sale of Fruit Commission Sales
Agreement dated effective as of December 31, 2000 by and between
the Borrower and ▇▇▇▇▇▇▇▇ (Canada) Inc.;
(vi) that certain Waiver dated as of December 31, 2000 by and
between CIL and the Borrower; and
(vii) that certain Subordinated Promissory Note dated
December 31, 2000 made by the Borrower in favor of CBII in an
original principal amount equal to $40,000,000.
5.2 [INTENTIONALLY DELETED]
5.3 CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT.
(A) On the date of the making of any Term Loan,
Revolving Loan or the issuance of any Letter of Credit, both
before and after
giving effect thereto and to the application of the proceeds
therefrom, the following statements shall be true in the
reasonable judgment of the Agent (and each request for a Term
Loan, a Revolving Loan and request for a Letter of Credit, and
the acceptance by the Borrower of the proceeds of such Term Loan,
Revolving Loan or issuance of such Letter of Credit, shall
constitute a representation and warranty by the Borrower that on
the date of such Term Loan, Revolving Loan or issuance of such
Letter of Credit before and after giving effect thereto and to
the application of the proceeds therefrom, such statements are
true):
(i) the representations and warranties contained
in the Credit Documents are true and correct in all material
respects on and as
of the date of such Term Loan, Revolving Loan or issuance of
such Letter of Credit as though made on and as of such date,
except to the extent that such representations and
warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have
been true and complete on and as of such earlier date);
(ii) no event has occurred and is continuing, or would result
from such Term Loan, Revolving Loan or issuance of such Letter of
Credit or the application of the proceeds thereof, which would
constitute a Default or an Event of Default under this Credit
Agreement;
(iii) No material adverse change in the business, operations,
profits or prospects of the Borrower and its Subsidiaries, taken
as a whole, shall have occurred since September 30, 2000; and
(iv) Availability is not less than $10,000,000.
(b) In connection with the making of any Revolving
Loan or Term Loan, the Agent shall have received a Notice of
Borrowing to the
extent such Notice of Borrowing is required to be given with
respect to the making of such Revolving Loan or Term Loan.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this
Credit Agreement and the Issuing Bank to issue the Letters of
Credit, and to make available the credit facilities contemplated
hereby, the Borrower hereby represents and warrants to the
Lenders and the Issuing Bank as of the Closing Date and on the
date of each extension of credit hereunder, as follows:
6.1 ORGANIZATION AND QUALIFICATION.
The Borrower and each of its Subsidiaries (i) is a
limited liability company, corporation or entity duly organized,
validly existing and in good standing under the laws of the state
of its jurisdiction or organization, (ii) has the power and
authority to own its properties and assets and to transact the
businesses in which it is presently, or proposes to be, engaged,
and (iii) is duly qualified and is authorized to do business and
is in good standing in every jurisdiction in which the failure to
be so qualified could reasonably be expected to have a Material
Adverse Effect. SCHEDULE 6.1 contains a true, correct and
complete list of all jurisdictions in which each Secured Credit
Party is qualified to do business as a foreign corporation or
foreign limited liability company as of the Closing Date.
6.2 SOLVENCY.
The Borrower is Solvent.
6.3 LIENS; INVENTORY.
There are no Liens in favor of third parties with
respect to any of the Collateral, other than Permitted Liens.
Upon the proper filing of financing statements and the proper
recordation of other applicable documents with the appropriate
filing or recordation offices in each of the necessary
jurisdictions, the security interests granted pursuant to the
Credit Documents constitute and shall at all times constitute
valid and enforceable and, with respect to assets in which a
security interest can be perfected by filing, first, prior and
perfected Liens on the Collateral (other than Permitted Liens).
The Borrower or the relevant Subsidiary, as applicable, is or
will be at the time additional Collateral is acquired by it, the
absolute owner of the Collateral with full right to pledge, sell,
consign, transfer and create a Lien therein, free and clear of
any and all Liens in favor of third parties, except Permitted
Liens. The Borrower and each of its Subsidiaries which is a
party to a Security Document will at its expense warrant, until
payment in full of the Obligations and termination of the
Commitments, and, at the Agent's request, defend the Collateral
from any and all Liens (other than Permitted Liens) of any third
party.
6.4 NO CONFLICT.
The execution and delivery by each of the Borrower
Entities of this Credit Agreement and each of the other Credit
Documents executed and delivered in connection herewith by one or
more of the Borrower Entities and the performance of the
obligations of such Borrower Entities hereunder and thereunder
and the consummation by such Borrower Entities of the
transactions contemplated hereby and thereby: (i) are within the
corporate or limited liability company powers of such Borrower
Entity; (ii) are duly authorized by the Board of Directors or
similar managing body of such Borrower Entity; (iii) are not in
contravention of the terms of the organizational documents of
such Borrower Entity or of any indenture, contract, lease,
agreement, instrument or other commitment to which such Borrower
Entity is a party or by which such Borrower Entity or any of its
properties are bound; (iv) do not require the consent,
registration or approval of any Governmental Authority or any
other Person (except such as have been duly obtained, made or
given, and are in full force and effect); (v) do not contravene
any statute, law, ordinance, regulation, rule, order or other
governmental restriction applicable to or binding upon such
Borrower Entity; and (vi) will not, except as contemplated herein
for the benefit of the Agent on behalf of the Lenders, result in
the imposition of any Liens upon any property of such Borrower
Entity under any existing indenture, mortgage, deed of trust,
loan or credit agreement or other material agreement or
instrument to which such Borrower Entity is a party or by which
it or any of its property may be bound or affected.
6.5 ENFORCEABILITY.
The Credit Agreement and all of the other Credit
Documents executed and delivered by the Borrower are the legal,
valid and binding obligations of the Borrower, and with respect
to those Credit Documents executed and delivered by any of its
Subsidiaries, of each such Subsidiary, and are enforceable
against the Borrower and such Subsidiaries, as the case may be,
in accordance with their terms except as such enforceability may
be limited by (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, (ii) general principles of equity
and (iii) the effect of foreign laws which may limit the
enforcement of certain provisions of a Credit Document executed
by a non-United States entity provided that the effect thereof
does not materially impair the rights and remedies of the Agent
and the Lenders under such Credit Document.
6.6 FINANCIAL DATA.
The Borrower has furnished to the Lenders the following
financial statements (the "Financials"): (i) the unaudited
consolidated balance sheet of the Borrower as of, and
consolidated statements of income for the fiscal year ended,
December 31, 1999 and (ii) the unaudited consolidated balance
sheet of the Borrower as of, and consolidated statement of income
for the nine (9) months ended, September 30, 2000 prepared by the
chief accounting officer of the Borrower. The Financials are and
the historical financial statements to be furnished to the
Lenders in accordance with SECTION 7.1 below will be in
accordance with the books and records of the Borrower, except as
provided in SECTION 7.1, and fairly present the financial
condition of the Borrower at the dates thereof and the results of
operations for the periods indicated (subject, to normal year-end
and audit adjustments and the absence of statements of cash
flows, shareholder's equity and footnotes). Such financial
statements have been and will be prepared in conformity with GAAP
consistently applied throughout the periods involved, except as
provided in SECTION 7.1 or as otherwise disclosed in such
financial statements. Since September 30, 2000, there has been
no development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
6.7 LOCATIONS OF OFFICES, RECORDS AND INVENTORY.
The Secured Credit Parties' principal places of
business and chief executive offices are set forth in SCHEDULE
6.7 hereto, and the books and records of the Secured Credit
Parties and all chattel paper and all records of accounts are
located at the principal places of business and chief executive
offices of such Secured Credit Party. There is no jurisdiction
in the United States in which any Secured Credit Party or any of
its Subsidiaries has any Collateral (except for vehicles,
intermodal equipment consisting of containers, mobile
refrigeration units and mobile generator sets, Inventory held for
shipment by third Persons, Inventory in transit, Inventory held
for processing by third Persons, or immaterial quantities of
assets, equipment or Inventory) other than those jurisdictions
listed on SCHEDULE 6.7. SCHEDULE 6.7 is a true, correct and
complete list of (i) the legal names and addresses of each
warehouseman, filler, processor and packer at which Inventory is
stored, (ii) the address of the chief executive offices of the
Secured Credit Parties and (iii) the address of all offices where
records and books of account of the Secured Credit Parties are
kept. None of the receipts received by any of the Secured Credit
Parties from any warehouseman, filler, processor or packer states
that the goods covered thereby are to be delivered to bearer or
to the order of a named person or to a named person and such
named person's assigns.
6.8 FICTITIOUS BUSINESS NAMES.
No Secured Credit Party has used any corporate or
fictitious name during the five (5) years preceding the date
hereof, other than the name shown on its or such Subsidiary's
articles or certificate of incorporation or certification of
formation and as set forth on SCHEDULE 6.8.
6.9 SUBSIDIARIES.
The only Subsidiaries of the Borrower are those listed
on SCHEDULE 6.9 attached hereto. The record and beneficial owner
of all of the shares of Capital Stock of each of the Subsidiaries
listed on SCHEDULE 6.9 is as set forth on SCHEDULE 6.9, there are
no proxies, irrevocable or otherwise, with respect to such
shares, and no equity securities of any of the Subsidiaries are
or may become required to be issued by reason of any options,
warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of any Capital Stock
of any Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Subsidiary is or may
become bound to issue additional shares of its Capital Stock or
securities convertible into or exchangeable for such shares. All
of such shares so owned by the Borrower are owned by it free and
clear of any Liens other than Permitted Liens. Each of the
Persons identified on SCHEDULE 6.9 as an Inactive Subsidiary is
an Inactive Subsidiary.
6.10 NO JUDGMENTS OR LITIGATION.
Except as set forth on SCHEDULE 6.10, no judgments,
orders, writs or decrees are outstanding against the Borrower or
any of its Subsidiaries nor is there now pending or, to the best
of the Borrower's knowledge after diligent inquiry, threatened
any litigation, contested claim, investigation, arbitration, or
governmental proceeding by or against the Borrower or any of its
Subsidiaries except judgments and pending or threatened
litigation, contested claims, investigations, arbitrations and
governmental proceedings which could not reasonably be expected
to have a Material Adverse Effect.
6.11 NO DEFAULTS.
Neither the Borrower nor any of its Subsidiaries is in
default under any term of any indenture, contract, lease,
agreement, instrument or other commitment to which any of them is
a party or by which any of them is bound which default has had or
could be reasonably expected to have a Material Adverse Effect.
6.12 NO EMPLOYEE DISPUTES.
There are no controversies pending or, to the best of
the Borrower's knowledge after diligent inquiry, threatened
between the Borrower or any of its Subsidiaries and any of their
respective employees, other than those arising in the ordinary
course of business which could not, in the aggregate, have a
Material Adverse Effect.
6.13 COMPLIANCE WITH LAW.
Neither the Borrower nor any of its Subsidiaries has
violated or failed to comply with any statute, law, ordinance,
regulation, rule or order of any foreign, federal, state or local
government, or any other Governmental Authority or any self
regulatory organization, or any judgment, decree or order of any
court, applicable to its business or operations except where the
aggregate of all such violations or failures to comply would not
have a Material Adverse Effect. The conduct of the business of
the Borrower and each of its Subsidiaries is in conformity with
all securities, commodities, energy, public utility, zoning,
building code, health, OSHA and environmental requirements and
all other foreign, federal, state and local governmental and
regulatory requirements and requirements of any self regulatory
organizations, except where such non-conformities could not
reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries has received any
notice to the effect that, or otherwise been advised that, it is
not in compliance with, and neither the Borrower nor any of its
Subsidiaries has any reason to anticipate that any currently
existing circumstances are likely to result in the violation of
any such statute, law, ordinance, regulation, rule, judgment,
decree or order which failure or violation could reasonably be
expected to have a Material Adverse Effect.
6.14 PACA.
Neither the Borrower nor any of its Subsidiaries has
violated or failed to comply with PACA, except for any violation
or failure which could not reasonably be expected to have a
Material Adverse Effect. Neither the purchases by CIL of bananas
nor the purchases by CIL of plantains give rise to the formation
of a trust under PACA. Neither the purchases by the Borrower of
bananas from CIL nor the purchases from CIL of plantains give
rise to the formation of a trust under PACA. Neither the bananas
nor the plantains, the sales of which in each case give rise to
Accounts, nor the Accounts, are subject to a trust under PACA.
6.15 ERISA.
Neither the Borrower, any of its Subsidiaries nor any Controlled
ERISA Affiliate maintains or contributes to any Benefit Plan or
Retiree Health Plan other than those listed on SCHEDULE 6.15.
Each such Benefit Plan has been and is being
maintained and funded in accordance with its terms and in
compliance in all material respects with all provisions of ERISA
and the Internal Revenue Code applicable thereto. The Borrower,
each of its Subsidiaries and each Controlled ERISA Affiliate has
fulfilled all obligations related to the minimum funding
standards of ERISA and the Internal Revenue Code for each Benefit
Plan, is in compliance in all material respects with the
currently applicable provisions of ERISA and of the Internal
Revenue Code and has not incurred any liability (other than
routine liability for premiums) under Title IV of ERISA. No
Termination Event has occurred nor has any other event occurred
that may result in such a Termination Event which could
reasonably be expected to have a Material Adverse Effect. No
event or events have occurred in connection with which the
Borrower, any of its Subsidiaries, any Controlled ERISA
Affiliate, any fiduciary of a Benefit Plan or any Benefit Plan,
directly or indirectly, would be subject to any liability,
individually or in the aggregate, under ERISA, the Internal
Revenue Code or any other law, regulation or governmental order
or under any agreement, instrument, statute, rule of law or
regulation pursuant to or under which any such entity has agreed
to indemnify or is required to indemnify any person against
liability incurred under, or for a violation or failure to
satisfy the requirements of, any such statute, regulation or
order which could reasonably be expected to have a Material
Adverse Effect. No ERISA Affiliate (excluding for purposes
hereof any ERISA Affiliate which is a Controlled ERISA Affiliate)
has incurred or to the best knowledge of the Borrower and its
Subsidiaries, could reasonably be expected to incur, any
liability under ERISA, the Internal Revenue Code, or any other
applicable law that has had or could reasonably be expected to
have a Material Adverse Effect.
6.16 COMPLIANCE WITH ENVIRONMENTAL LAWS.
Except as disclosed on SCHEDULE 6.16 attached hereto,
(a) the operations of the Borrower and each of its Subsidiaries
comply with all applicable federal, state or local environmental,
health and safety statutes, regulations, directions, ordinances,
criteria or guidelines except where such failure to comply could
not reasonably be expected to have a Material Adverse Effect and
(b) to the Borrower's knowledge, none of the operations of the
Borrower or any of its Subsidiaries is the subject of any
judicial or administrative proceeding alleging the violation of
any federal, state or local environmental, health or safety
statute, regulation, direction, ordinance, criteria or guidelines
except where such proceeding could not reasonably be expected to
have a Material Adverse Effect. Except as disclosed on
SCHEDULE 6.16, to the Borrower's knowledge, none of the
operations of the Borrower or any of its Subsidiaries is the
subject of any federal or state investigation evaluating whether
the Borrower or any of its Subsidiaries disposed any hazardous or
toxic waste, substance or constituent or other substance at any
site that may require remedial action, or any federal or state
investigation evaluating whether any remedial action is needed to
respond to a release of any hazardous or toxic waste, substance
or constituent, or other substance into the environment where it
is reasonably likely that the Borrower's share of the cost of
remediation or clean-up would exceed $250,000. Except as
disclosed on SCHEDULE 6.16, neither the Borrower nor any of its
Subsidiaries has filed any notice under CERCLA section 103(c), 42
U.S.C. section 9603(c) or its equivalent order, or any other federal or
state law indicating past or present treatment, storage or
disposal of a hazardous waste or reporting an unpermitted spill
or release of a hazardous or toxic waste, substance or
constituent that remains uncorrected where it is reasonably
likely that the Borrower's share of the cost of remediation or
clean-up would exceed $250,000. Except as disclosed on SCHEDULE
6.16, neither the Borrower nor any of its Subsidiaries has any
contingent liability of which the Borrower has knowledge or
reasonably should have knowledge in connection with any release
of any hazardous or toxic waste, substance or constituent, nor
has the Borrower or any of its Subsidiaries received any notice,
letter or other indication of potential liability arising from
the disposal of any hazardous or toxic waste, substance or
constituent, except where such potential liability could not
reasonably be expected to have a Material Adverse Effect.
6.17 USE OF PROCEEDS.
All proceeds of the Loans will be used only in
accordance with SECTION 7.13.
6.18 INTELLECTUAL PROPERTY.
The Borrower and each of its Subsidiaries possess
adequate assets, licenses, patents, patent applications,
copyrights, service marks, trademarks and trade names to continue
to conduct its business as heretofore conducted by it.
SCHEDULE 6.18 attached hereto sets forth (a) all of the federal,
state and foreign registrations of trademarks, service marks and
trade names of the Borrower and its Subsidiaries, and all pending
applications for any such registrations, (b) all of the patents
and registered copyrights of the Borrower and its Subsidiaries
and all pending applications therefor and (c) all other
trademarks, service marks and trade names owned by or licensed to
and used by the Borrower or any of its Subsidiaries in connection
with their businesses and the loss of which would have a Material
Adverse Effect (collectively, clauses (a), (b) and (c), the
"Proprietary Rights"). The Borrower or one of its Subsidiaries
is the owner of each of the trademarks listed on SCHEDULE 6.18 as
indicated on such schedule, and except as set forth on SCHEDULE
6.18, no other Person has the right to use any of such marks in
commerce either in the identical form or, to the knowledge of the
Borrower and its Subsidiaries, in such near resemblance thereto
as may be likely to cause confusion or to cause mistake or to
deceive. Each of the trademarks listed on SCHEDULE 6.18 and
identified as a "U.S." registered trademark is a federally
registered trademark of the Borrower or one of its Subsidiaries
having the registration number and issue date set forth on
SCHEDULE 6.18. The Proprietary Rights listed on SCHEDULE 6.18
are all those used in the businesses of the Borrower and its
Subsidiaries, the loss of which would have a Material Adverse
Effect. Except as disclosed on SCHEDULE 6.18, no person has a
right to receive any royalty or similar payment in respect of any
Proprietary Rights pursuant to any contractual arrangements
entered into by the Borrower, or any of its Subsidiaries, and, to
the knowledge of the Borrower and its Subsidiaries, no person
otherwise has a right to receive any royalty or similar payment
in respect of any such Proprietary Rights except as disclosed on
SCHEDULE 6.18. Except as disclosed on SCHEDULE 6.18 or as
permitted by SECTION 9.14, neither the Borrower nor any of its
Subsidiaries has granted any license or sold or otherwise
transferred any interest in any of the Proprietary Rights to any
other person. To the knowledge of the Borrower and its
Subsidiaries, the use of each of the Proprietary Rights by the
Borrower and its Subsidiaries is not infringing upon or otherwise
violating the rights of any third party in or to such Proprietary
Rights, and no proceeding has been instituted against or written
notice received by the Borrower or any of its Subsidiaries that
are presently outstanding alleging that the use of any of the
Proprietary Rights infringes upon or otherwise violates the
rights of any third party in or to any of the Proprietary Rights.
Neither the Borrower nor any of its Subsidiaries has given notice
to any Person that it is infringing on any of the Proprietary
Rights and to the best of the Borrower's knowledge, no Person is
infringing on any of the Proprietary Rights. All of the
Proprietary Rights of the Borrower and its Subsidiaries are valid
and enforceable rights of the Borrower and its Subsidiaries and
will not cease to be valid and in full force and effect by reason
of the execution and delivery of this Credit Agreement or the
Credit Documents or the consummation of the transactions
contemplated hereby or thereby. The Borrower is the owner of the
Proprietary Rights which are the subject of the Appraisal and
CBII does not own any of such Proprietary Rights.
6.19 LICENSES AND PERMITS.
The Borrower and each of its Subsidiaries has obtained
and holds in full force and effect, all material franchises,
licenses, leases, permits, certificates, authorizations,
qualifications, easements, rights of way and other rights and
approvals which are necessary to the operation of its business as
presently conducted. Neither the Borrower nor any of its
Subsidiaries is in violation of the terms of any such franchise,
license, lease, permit, certificate, authorization,
qualification, easement, right of way, right or approval in any
such case which could not reasonably be expected to have a
Material Adverse Effect.
6.20 TITLE TO PROPERTY.
Each Borrower Entity has good and marketable title to
all of its owned property (including without limitation, all real
and other property in each case as reflected in the Financial
Statements delivered to the Agent hereunder), other than
properties disposed of in the ordinary course of business or in
any manner otherwise permitted under this Credit Agreement since
the date of the most recent audited consolidated balance sheet of
the Borrower, and in each case subject to no Liens other than
Permitted Liens.
6.21 LABOR MATTERS.
There is (a) no material unfair labor practice
complaint pending against the Borrower or any of its Subsidiaries
or, to the best knowledge of the Borrower, threatened against any
of them, before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under
collective bargaining agreements that has or could reasonably be
expected to have a Material Adverse Effect is so pending against
the Borrower or any of its Subsidiaries or, to the best knowledge
of the Borrower, threatened against any of them, (b) no strike,
labor dispute, slowdown or stoppage pending against the Borrower
or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against any of them that has or could
reasonably be expected to have a Material Adverse Effect, and (c)
no union representation question with respect to the employees of
the Borrower or any Subsidiaries and no union organizing activity
that has or could reasonably be expected to have a Material
Adverse Effect.
6.22 INVESTMENT COMPANY.
Neither the Borrower nor any of its Subsidiaries is (a)
an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended, (b) a "holding company" or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company,"
within the meaning of the Public Utility Holding Company Act of
1935, as amended, or (c) subject to any other law which purports
to regulate or restrict its ability to borrow money or to
consummate the transactions contemplated by this Credit Agreement
or the other Credit Documents or to perform its obligations
hereunder or thereunder.
6.23 MARGIN SECURITY.
Neither the Borrower nor any of its Subsidiaries owns
any margin stock and no portion of the proceeds of any Loans or
Letters of Credit shall be used by the Borrower for the purpose
of purchasing or carrying any "margin stock" (as defined in
Regulation U of the Board of Governors of the Federal Reserve
System) or for any other purpose, in either case, which violates
the provisions or Regulation T, U or X of said Board of Governors
or for any other purpose in violation of any applicable statute
or regulation, or of the terms and conditions of this Credit
Agreement.
6.24 NO EVENT OF DEFAULT.
No Default or Event of Default has occurred and is
continuing.
6.25 TAXES AND TAX RETURNS.
Each Borrower Entity has filed, or caused to be filed,
all material tax returns (federal, state, local and foreign)
required to be filed and paid all amounts of taxes shown thereon
to be due (including interest and penalties) and has paid all
other material taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes
(a) that are not yet delinquent or (b) that are being contested
in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP.
Except as covered by (a) and (b) of the immediately preceding
sentence, with respect to those arising after the date hereof,
the Borrower is not aware of any proposed material tax
assessments against it or any other Borrower Entity.
6.26 INDEBTEDNESS; CBII OBLIGATIONS.
Neither the Borrower nor any of its Subsidiaries has
Indebtedness that is senior, pari passu or subordinated in right
of payment to their Indebtedness to the Lenders hereunder, except
for Permitted Indebtedness. Except as set forth on SCHEDULE
6.26, neither the Borrower nor any of its Subsidiaries has
guaranteed (in whole or in part) or is otherwise directly or
indirectly responsible or liable for any or all of the
obligations of CBII.
6.27 STATUS OF ACCOUNTS.
Each Account is based on an actual and bona fide sale
and delivery of goods or rendition of services to customers, made
by the Borrower in the ordinary course of its business; the goods
and inventory being sold and the Accounts created are its
exclusive property and are not and shall not be subject to any
Lien, consignment arrangement, encumbrance, security interest or
financing statement whatsoever, other than the Permitted Liens;
and the Borrower's customers have accepted the goods or services,
owe and are obligated to pay the full amounts stated in the
invoices according to their terms, without any dispute, offset,
defense, counterclaim or contra (including, but not limited to,
claims arising under PACA) that could reasonably be expected to
have, when aggregated with any such other disputes, offsets,
defenses, counterclaims or contras, a Material Adverse Effect.
The Borrower confirms to the Lenders that any and all taxes or
fees relating to its business, its sales, the Accounts or the
goods relating thereto, are its sole responsibility and that same
will be paid by the Borrower when due (unless duly contested and
adequately reserved for) and that none of said taxes or fees is
or will become a lien on or claim against the Accounts.
6.28 REPRESENTATIONS AND WARRANTIES.
Each of the representations and warranties made in the
Operative Documents by the Borrower and its Subsidiaries and, to
the knowledge of the Borrower and its Subsidiaries, the other
parties thereto, was or will be true and correct in all material
respects as of when made.
6.29 MATERIAL CONTRACTS.
SCHEDULE 6.29 sets forth a true, correct and complete
list of all the Material Contracts currently in effect. None of
the Material Contracts contains provisions the performance or
nonperformance of which have or could reasonably be expected to
have a Material Adverse Effect. All of the Material Contracts
are in full force and effect, and no material defaults currently
exist thereunder.
6.30 SURVIVAL OF REPRESENTATIONS.
All representations made by the Borrower in this Credit
Agreement and in any other Credit Document shall survive the
execution and delivery hereof and thereof.
6.31 AFFILIATE TRANSACTIONS.
Except as set forth on SCHEDULE 6.31 (and transactions
permitted by SECTION 9.2, SECTION 9.7 or SECTION 9.8), neither
the Borrower nor any of its Subsidiaries is a party to or bound
by any agreement or arrangement (whether oral or written) to
which any Affiliate of the Borrower or Subsidiary is a party
except (a) in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's
business and (b) upon fair and reasonable terms no less favorable
to the Borrower and such Subsidiary than it could obtain in a
comparable arm's-length transaction with an unaffiliated Person.
6.32 INSURANCE.
As of the Closing Date, SCHEDULE 6.32 accurately
describes the insurance coverage maintained by the Borrower and
its Subsidiaries.
6.33 ACCURACY AND COMPLETENESS OF INFORMATION.
Except for projections, all factual information
heretofore, contemporaneously or hereafter furnished by or on
behalf of the Borrower or any of their respective Subsidiaries in
writing to the Agent, any Lender, or the Independent Accountant
for purposes of or in connection with this Credit Agreement or
any Credit Documents, or any transaction contemplated hereby or
thereby is or will be true and accurate in all material respects
on the date as of which such information is dated or certified
and not incomplete by omitting to state any material fact
necessary to make such information not misleading at such time.
All projections from time to time delivered to the Agent or one
or more Lenders have been prepared based upon assumptions which
the Borrower believes in good faith are reasonable at the time
such projections are delivered to the Agent or such Lenders.
ARTICLE VII.
AFFIRMATIVE COVENANTS
Until termination of this Credit Agreement and the
Commitments hereunder and payment and satisfaction of all
Obligations due or to become due hereunder, the Borrower agrees
that it shall, and, with respect to covenants which apply to its
Subsidiaries or to Credit Parties, it shall cause its
Subsidiaries or the Credit Parties, as applicable, to, unless the
Required Lenders shall have otherwise consented in writing:
7.1 INFORMATION.
The Borrower will furnish to the Lenders the following
information within the following time periods:
(a) within one hundred and fifty (150) days after the
close of the 2000 fiscal year of the Borrower (and within one
hundred
twenty (120) days after the close of each fiscal year of the
Borrower thereafter), both (i) the audited consolidated balance
sheet and consolidated statements of income, shareholder's equity
and cash flow of the Borrower and its consolidated Subsidiaries
and (ii) an unaudited consolidating balance sheet and
consolidating statements of income, cash flows and shareholder's
equity which shall present separately the financial condition and
results of operations of the Borrower and its Subsidiaries (other
than CPF and its Subsidiaries) and the financial condition and
results of operations of CPF and its Subsidiaries, in each case,
for such year, each in reasonable detail, each (starting with
those relating to the 2001 fiscal year) setting forth in
comparative form the corresponding figures for the preceding
year, prepared in accordance with GAAP, and accompanied by a
report and unqualified audit opinion (such report and opinion not
to include any going concern qualification) (in the case of the
reports under clause (i) above) or an "other financial
information report" (in the case of the reports under clause (ii)
above) of Ernst & Young LLP or other Independent Accountant
selected by the Borrower and approved by the Required Lenders;
(b) within sixty (60) days after the end of each of the first
three (3) fiscal quarters of the Borrower, both (i) the unaudited
consolidated balance sheet, consolidated statement of income and
consolidated statement of cash flow, of the Borrower and its
consolidated Subsidiaries and (ii) an unaudited consolidating
balance sheet and consolidating statements of income and cash
flows which shall present separately the financial condition and
results of operations of the Borrower and its Subsidiaries (other
than CPF and its Subsidiaries) and the financial condition and
results of operations of CPF and its Subsidiaries, in the form
regularly prepared by the Borrower and consistent with the
Financials, together with a certificate of the chief accounting
officer or treasurer of the Borrower stating that such financial
statements fairly present the financial condition of the Borrower
and its consolidated Subsidiaries or the Borrower and its
consolidated Subsidiaries (other than CPF and its Subsidiaries)
at the dates thereof and the results of their operations for the
periods indicated (subject to normal year-end and audit
adjustments and the absence of statements of shareholders' equity
and footnotes) and that such financial statements have been
prepared in conformity with GAAP consistently applied throughout
the periods involved except as otherwise disclosed in such
financial statements;
(c) within thirty (30) days after the end of each fiscal month
of the Borrower (other than January, March, June, September and
December), a copy of the internal operating income analysis for
such month and for the period from the beginning of the current
fiscal year to the end of such month, in reasonable detail, and
beginning with the fiscal month of February 2002, setting forth
in comparative form the corresponding analysis for the same month
and same year-to-date period in the preceding fiscal year, in the
form regularly prepared by the Borrower, certified by the chief
accounting officer or treasurer of the Borrower as being a true
and correct copy;
(d) at the time of delivery of the quarterly financial
statements of the Borrower pursuant to paragraph (b) above and
the annual financial statements pursuant to paragraph (a) above,
a certificate, executed by the chief accounting officer or
treasurer of the Borrower, in substantially the form of EXHIBIT F
attached hereto (the "Compliance Certificate"), and stating that
such officer has caused this Credit Agreement to be reviewed and
has no knowledge of any default by the Borrower in the
performance or observance of any of the provisions of this Credit
Agreement, during such quarter or at the end of such year, or, if
such officer has such knowledge, specifying each default and the
nature thereof, and compliance by the Borrower as of the date of
such statement with the financial covenants set forth in ARTICLE
VIII hereof and the other applicable covenants set forth in
EXHIBIT F;
(e) every two (2) weeks (provided, that if Availability, plus
the amount of unrestricted cash and Cash Equivalents then held or
owned directly by the Borrower, is less than $20,000,000, such
reporting shall be done weekly), not later than Wednesday of such
week for the week ending on the then preceding Saturday, a
Revolving Credit Borrowing Base Certificate (the "Revolving
Credit Borrowing Base Certificate") in substantially the form of
EXHIBIT G hereto, duly completed and certified by the Borrower's
chief accounting officer or treasurer, detailing, among other
things, the Borrower's Eligible Accounts Receivable as of the end
of the immediately preceding week and the then outstanding amount
of all amounts owing by the Borrower to Persons (other than CIL)
for the purchase of bananas and plantains. In addition, on the
tenth (10th) Business Day of each fiscal month (or if such day is
not a Business Day, then on the next succeeding Business Day),
the Borrower shall furnish a written report to the Lenders
setting forth (i) the accounts receivable aged trial balance at
the immediately preceding month end (along with a report
reconciling accounts receivable to the prior month's receivables
aging) for each account debtor, aged by due date; such aging
reports shall indicate which Accounts are current, up to thirty
(30), thirty (30) to sixty (60) and over sixty (60) days past due
and shall list the names of all applicable account debtors and
(ii) a monthly accounts payable listing or open item listing
including a report as to all claims (which have given rise or
could give rise to a trust under PACA) arising under PACA owing
by the Borrower or its Subsidiaries and a report as to all banana
and plantain supplier accruals owing by the Borrower (which
report shall include a schedule of amounts owing to CIL by the
Borrower and a schedule of amounts owed by CIL to its banana and
plantain suppliers), with such listings and reports to be in form
satisfactory to the Agent. The Agent may, but shall not be
required to, rely on each Revolving Credit Borrowing Base
Certificate delivered hereunder as accurately setting forth the
available Revolving Credit Borrowing Base for all purposes of
this Credit Agreement until such time as a new Revolving Credit
Borrowing Base Certificate is delivered to the Agent in
accordance herewith; Revolving Credit Borrowing Base Certificates
may be prepared and submitted to the Lenders on a more frequent
basis, PROVIDED that such certificate complies with the
requirements set forth elsewhere herein;
(f) within thirty (30) days after the end of each fiscal month
of the Borrower (it being agreed that no report shall be required
for each fiscal January and the applicable report for each fiscal
February shall include year-to-date information), a certificate
executed by the person preparing such report, in substantially
the form of Exhibit F-1 attached hereto (the "Monthly Compliance
Certificate") including a report setting forth (i) the aggregate
amounts paid to CBII during such month by the Borrower and its
Subsidiaries (and the reasons therefor, including detailed
information regarding payments during such month and for the year
(or from the Closing Date during fiscal year 2001) to date) of
(A) Allocated CBII Overhead, (B) Unallocated CBII Overhead and
(C) Permitted Restructuring Expenses; (ii) the aggregate amount
owing to CBII by the Borrower and its Subsidiaries as of the last
day of such month (and the reasons therefor); (iii) a detailed
list of the amounts, as of the last day of such month, of the
Permitted Investments permitted pursuant to each of clauses (iv),
(vii), (ix), (x), (xi), (xii), (xiv), (xvi) and (xvii) of the
definition of Permitted Investments; (iv) a detailed list of the
amounts, as of the last day of such month, of the Permitted
Indebtedness permitted pursuant to each of clauses (b), (c),
(d)(iii), (d)(vii), (d)(viii), (d)(ix), (d)(x), (d)(xi) and
(d)(xii) of the definition of Permitted Indebtedness; (v) a list
of all sales of Tropical Farms or Asset Dispositions consummated
during such month (which list shall include the names of the
applicable Subsidiaries and the purchase price received in
connection therewith), the amount of the aggregate Asset Sale
Blocks and the amount of the aggregate Farm Sale Blocks as of the
last day of such month and the amount, as of the last day of such
month, of all proceeds of sales of Tropical Farms after the
Closing Date that have been used to make Capital Expenditures;
(vi) a report detailing all Assets Dispositions with a value not
exceeding $100,000, which have occurred during the prior fiscal
month; (vii) a report detailing cash receipts and related
transfers through the tri-party accounts; and (viii) a list of
any sale-leaseback transactions which were completed in such
month;
(g) promptly upon receipt thereof, copies of the portions
relevant to the Borrower of all management letters and other
material reports which are prepared by its Independent
Accountants in connection with any audit of the Borrower's
financial statements by such Accountants;
(h) as soon as practicable but, in any event, within ten (10)
Business Days after the issuance thereof, copies of all regular
and periodic reports which CBII or the Borrower may be required
to file with the Securities and Exchange Commission or any
similar or corresponding governmental commission, department or
agency substituted therefor, or any similar or corresponding
Governmental Authority;
(i) no later than thirty (30) days after the end of the
Borrower's fiscal year during each year when this Credit
Agreement is in effect, a forecast for the current fiscal year of
(i) the Borrower and its Subsidiaries which includes projected
consolidated statement of income for such fiscal year and a
projected consolidated statement of cash flows for such fiscal
year and projected consolidated balance sheets, statements of
income and statements of cash flows on a quarterly basis for such
fiscal year; (ii) the Borrower and its Subsidiaries (other than
CPF and its Subsidiaries) which includes projected consolidating
statements of income for such fiscal year and a projected
consolidating statement of cash flows for such fiscal year and
projected consolidating balance sheets, statements of income and
statements of cash flows on a quarterly basis for such fiscal
year; and (iii) Availability under the Revolving Credit Borrowing
Base for such fiscal year; PROVIDED that the parties acknowledge
that the information in such forecasts is not compiled or
presented in accordance with GAAP and may not necessarily be
presented on a basis consistent with the Borrower's financial
statements to be delivered pursuant to paragraphs (a) and (b)
above;
(j) promptly and in any event within three (3) Business Days
after becoming aware of the occurrence of a Default or Event of
Default, a certificate of the chief executive officer, chief
accounting officer or treasurer of the Borrower specifying the
nature thereof and the Borrower's proposed response thereto, each
in reasonable detail;
(k) promptly upon a responsible officer of Borrower obtaining
knowledge thereof, copies of all claims (which have given rise or
could give rise to a trust under PACA) filed with respect to any
Credit Party under or pursuant to PACA (or any similar statute,
law, rule or regulation); and
(l) with reasonable promptness, such other data, reports or
information as the Agent or any of the Lenders may reasonably
request.
7.2 [INTENTIONALLY DELETED]
7.3 CORPORATE EXISTENCE.
The Borrower and each of its Subsidiaries (other than
Inactive Subsidiaries) (a) subject to SECTION 9.4 hereof, will
maintain their corporate or limited liability company existence,
will maintain in full force and effect all material licenses,
bonds, franchise, leases, trademarks and qualifications to do
business (PROVIDED, that an entity may cease to maintain its
franchises and qualifications to do business if it ceases to
exist as a result of a transaction permitted by SECTION 9.4
hereof), (b) will obtain or maintain patents, contracts and other
rights necessary to the profitable conduct of their businesses,
(c) will continue in, and limit their operations to, the same
general lines of business as that presently conducted by them and
(d) will comply with all applicable laws and regulations of any
federal, state or local Governmental Authority, except where
noncompliance could not reasonably be expected to have a Material
Adverse Effect.
7.4 ERISA.
The Borrower will deliver to the Agent, at the
Borrower's expense, the following information at the times
specified below:
(a) within ten (10) Business Days after the Borrower,
any of its Subsidiaries or any Controlled ERISA Affiliate knows
or has
reason to know that a material Termination Event has occurred, a
written statement of the chief accounting officer of the Borrower
describing such Termination Event and the action, if any, which
the Borrower or other such entities have taken, are taking or
propose to take with respect thereto, and when known, any action
taken or threatened by the Internal Revenue, DOL or PBGC with
respect thereto;
(b) within ten (10) Business Days after the Borrower, any of its
Subsidiaries or any Controlled ERISA Affiliate knows or has
reason to know that a prohibited transaction (as defined in
Section 406 of ERISA and Section 4975 of the Internal Revenue
Code) has occurred, a statement of the chief accounting officer
of the Borrower describing such transaction and the action which
the Borrower or other such entities have taken, are taking or
propose to take with respect thereto;
(c) within thirty (30) Business Days after the filing thereof
with the DOL, Internal Revenue or PBGC, copies of each annual
report (form 5500 series), including all schedules and
attachments thereto, filed with respect to each Benefit Plan of
the Borrower, its Subsidiaries or any Controlled ERISA Affiliate;
(d) within thirty (30) Business Days after receipt by the
Borrower, any of its Subsidiaries or any Controlled ERISA
Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan of the Borrower, its Subsidiaries or any
Controlled ERISA Affiliate and each annual report for any such
Multiemployer Plan, copies of each such report;
(e) within ten (10) Business Days prior to the filing thereof
with the Internal Revenue, a copy of any funding waiver request
with respect to any Benefit Plan of the Borrower, its
Subsidiaries or any Controlled ERISA Affiliate and within three
(3) Business Days after receipt of any communications received by
the Borrower, any of its Subsidiaries or any Controlled ERISA
Affiliate with respect to such request;
(f) within ten (10) Business Days upon the occurrence thereof,
notification of any increase in the benefits of any existing
Benefit Plan of the Borrower, its Subsidiaries or any Controlled
ERISA Affiliate or the establishment of any new Benefit Plan of
the Borrower, its Subsidiaries or any Controlled ERISA Affiliate
or the commencement of contributions to any Benefit Plan to which
the Borrower, any of its Subsidiaries or any Controlled ERISA
Affiliate was not previously contributing;
(g) within three (3) Business Days after receipt by the
Borrower, any of its Subsidiaries or any Controlled ERISA
Affiliate of the PBGC's intention to terminate a Benefit Plan or
to have a trustee appointed to administer a Benefit Plan, copies
of each such notice;
(h) within ten (10) Business Days after receipt by the Borrower,
any of its Subsidiaries or any Controlled ERISA Affiliate of any
favorable or unfavorable determination letter from the Internal
Revenue Service regarding the qualification of a Benefit Plan or
other employee pension benefit plan intending to qualify under
section 401(a) of the Internal Revenue Code of the Borrower, its
Subsidiaries or any Controlled ERISA Affiliate under Section
401(a) of the Internal Revenue Code, copies of each such letter;
(i) within ten (10) Business Days after receipt by the Borrower,
any of its Subsidiaries or any Controlled ERISA Affiliate of a
notice regarding the imposition of withdrawal liability under any
Multiemployer Plan, copies of each such notice;
(j) within ten (10) Business Days prior to the date the
Borrower, any of its Subsidiaries or any Controlled ERISA
Affiliate intends to fail to make a required installment or any
other required payment under Section 412 of the Internal Revenue
Code on or before the due date for such installment or payment, a
notification of such failure;
(k) within three (3) Business Days after the Borrower, any of
its Subsidiaries or any Controlled ERISA Affiliate knows (a) a
Multiemployer Plan of the Borrower, its Subsidiaries or any
Controlled ERISA Affiliate has been terminated, (b) the
administrator or plan sponsor of a Multiemployer Plan of the
Borrower, its Subsidiaries or any Controlled ERISA Affiliate
intends to terminate any such Multiemployer Plan, or (c) the PBGC
has instituted or will institute proceedings under Section 4042
of ERISA to terminate a Multiemployer Plan of the Borrower, its
Subsidiaries or any Controlled ERISA Affiliate, a written
statement setting forth any such event or information;
(l) within three (3) Business Days after the Borrower, any of
its Subsidiaries or any Controlled ERISA Affiliate knows that an
ERISA Affiliate (excluding for purposes hereof any ERISA
Affiliate which is a Controlled ERISA Affiliate) has incurred or
to the best knowledge of the Borrower and its Subsidiaries, could
reasonably be expected to incur, any liability under ERISA, the
Internal Revenue Code, or any other law applicable to Benefit
Plans that has had or could reasonably be expected to have a
Material Adverse Effect, a statement of the chief accounting
officer of the Borrower describing such transaction and the
action which the Borrower or other such entities have taken, are
taking or propose to take with respect thereto; and
(m) within thirty (30) days after receipt by the Borrower or any
of its Subsidiaries of each actuarial report for any Retiree
Health Plan of Borrower or any of its Subsidiaries, copies of
each such report.
For purposes of this SECTION 7.4, the Borrower, any of
its Subsidiaries and any Controlled ERISA Affiliate shall be
deemed to know all facts known by the administrator of any
Benefit Plan of which such entity is then the plan sponsor.
The Borrowers will establish, maintain and operate all
Benefit Plans of the Borrower, of its Subsidiaries or any
Controlled ERISA Affiliate to comply in all material respects
with the provisions of ERISA, the Internal Revenue Code, and all
other applicable laws, and the regulations and interpretations
thereunder other than to the extent that the Borrower is in good
faith contesting by appropriate proceedings the validity or
implication of any such provision, law, rule, regulation or
interpretation.
7.5 PROCEEDINGS OR ADVERSE CHANGES.
The Borrower will as soon as practicable, and in any
event within thirty (30) Business Days after the Borrower learns
of the following, give written notice to the Agent of any
proceeding(s) being instituted or threatened in writing to be
instituted by or against the Borrower or any of its Subsidiaries
in any federal, state, local or foreign court or before any
commission or other regulatory body (federal, state, local or
foreign). The Borrower will as soon as possible, and in any
event within five (5) Business Days after the Borrower learns of
the following, give written notice to the Agent of any Material
Adverse Change. Provision of any such notice by the Borrower
will not constitute a waiver or excuse of any Default or Event of
Default occurring as a result of such changes or events.
7.6 ENVIRONMENTAL MATTERS.
The Borrower will conduct its business and the
businesses of each of its Subsidiaries so as to comply in all
material respects with all environmental laws, regulations,
directions and ordinances in all applicable jurisdictions
including, without limitation, environmental land use,
occupational safety or health laws, regulations, directions,
ordinances, requirements or permits in all applicable
jurisdictions, except to the extent that the Borrower or any of
its Subsidiaries is contesting, in good faith by appropriate
legal proceedings, any such law, regulation, direction, ordinance
or interpretation thereof or application thereof; provided,
further, that the Borrower and each of its Subsidiaries will
comply with the order of any court or other governmental body of
the applicable jurisdiction relating to such laws unless the
Borrower or its Subsidiaries shall currently be prosecuting an
appeal or proceedings for review and shall have secured a stay of
enforcement or execution or other arrangement postponing
enforcement or execution pending such appeal or proceedings for
review. If the Borrower or any of its Subsidiaries shall (a)
receive notice that any violation of any federal, state or local
environmental law, regulation, direction or ordinance may have
been committed or is about to be committed by the Borrower or any
of its Subsidiaries except where such violation could not
reasonably be expected to have a Material Adverse Effect, (b)
receive notice that any administrative or judicial complaint or
order has been filed or is about to be filed against the Borrower
or any of its Subsidiaries alleging violations of any federal,
state or local environmental law, regulation, direction or
ordinance requiring the Borrower or any of its Subsidiaries to
take any action in connection with the release of toxic or
hazardous substances into the environment where the cost of
taking any such action is reasonably likely to exceed $250,000 or
(c) receive any notice from a federal, state, or local
governmental agency or private party alleging that the Borrower
or any of its Subsidiaries may be liable or responsible for costs
associated with a response to or cleanup of a release of a toxic
or hazardous substance into the environment or any damages caused
thereby except where such liability could not reasonably be
expected to have a Material Adverse Effect, the Borrower will
provide the Agent with a copy of such notice within forty-five
(45) days after the receipt thereof by the Borrower or any of its
Subsidiaries. Within forty-five (45) days after the Borrower
learns of the enactment or promulgation of any federal, state or
local environmental law, regulation, direction, ordinance,
criteria or guideline which could reasonably have a Material
Adverse Effect, the Borrower will provide the Agent with notice
thereof. The Borrower will promptly take all actions necessary
to prevent the imposition of any Liens on any of its properties
arising out of or related to any environmental matters. At the
time that the Agent learns of any environmental condition or
occurrence at any property of the Borrower, which environmental
condition or occurrence has or could reasonably be expected to
have a Material Adverse Effect, the Agent may request, and at the
sole cost and expense of the Borrower, the Borrower will retain,
an environmental consulting firm, satisfactory to the Agent in
its commercially reasonable judgment, to conduct an environmental
review and audit of such affected property and promptly provide
to the Agent and each Lender a copy of any reports delivered in
connection therewith.
7.7 BOOKS AND RECORDS; INSPECTION.
(a) The Borrower will, and will cause each of its
Subsidiaries to, maintain books and records pertaining to their
property and assets in such detail, form and scope as is
consistent with good business practice.
(b) The Borrower agrees that the Agent or its agents
may enter upon the premises of the Borrower or any of its
Subsidiaries at any time and from time to time, during normal
business hours, and at any time at all on and after the
occurrence of an Event of Default which continues beyond the
expiration of any grace or cure period applicable thereto, and
which has not otherwise been waived by the Agent, for the purpose
of (a) enabling the Agent's internal auditors to conduct
quarterly field examinations at the Borrower's expense (such
expense to include amounts specified in SECTION 14.8), (b)
inspecting the Collateral, (c) inspecting and/or copying (at
Borrowers' expense) any and all records pertaining thereto, (d)
discussing the affairs, finances and business of the Borrower
with any officers and employees of the Borrower, (e) discussing
the affairs, finances and business of the Borrower with the
Independent Accountant, but only so long as the Agent has
provided prior notice to the Borrower and the discussions with
the Independent Accountant are reasonable in scope and frequency
and (f) verifying Eligible Accounts Receivable. The Lenders, in
the reasonable discretion of the Agent, may accompany the Agent
at their sole expense in connection with the foregoing
inspections. The Borrower agrees to afford the Agent thirty (30)
days prior written notice of any change in the location of any
Collateral (other than Inventory held for shipment by third
Persons, Inventory and equipment in transit, Inventory held for
processing by third Persons or immaterial quantities of assets,
equipment or Inventory) or in the location of its chief executive
office or place of business from the locations specified in
SCHEDULE 6.7, and to execute in advance of such change, cause to
be filed and/or delivered to the Agent any financing statements
or other documents required by the Agent, all in form and
substance satisfactory to the Agent. The Borrower agrees to
furnish any Lender with such other information regarding its
business affairs and financial condition as such Lender may
reasonably request from time to time.
7.8 COLLATERAL RECORDS.
The Borrower will, and will cause each Borrower Entity
to, execute and deliver to the Agent, from time to time, solely
for the Agent's convenience in maintaining a record of the
Collateral, such written statements and schedules as the Agent
may reasonably require, including without limitation those
described in SECTION 7.1 of this Credit Agreement, designating,
identifying or describing the Collateral. The Borrower's or any
Borrower Entity's failure, however, to promptly give the Agent
such statements or schedules shall not affect, diminish, modify
or otherwise limit the Lenders' security interests in the
Collateral. The Borrower agrees to maintain such books and
records regarding Accounts and the other Collateral as the Agent
may reasonably require, and agrees that such books and records
will reflect the Lenders' interest in the Accounts and such other
Collateral.
7.9 SECURITY INTERESTS.
The Borrower will, and will cause each Borrower Entity
to, defend the Collateral against all claims and demands of all
Persons at any time claiming the same or any interest therein.
The Borrower agrees to, and will cause each Borrower Entity to,
comply with the requirements of all state and federal laws in
order to grant to the Lenders valid and perfected first security
interest in the Collateral subject only to Permitted Liens. The
Agent is hereby authorized by each Borrower Entity to file any
financing statements covering the Collateral whether or not any
Borrower Entity's signature appears thereon. The Borrower agrees
to, and will cause each Borrower Entity to, do whatever the Agent
may reasonably request, from time to time, by way of: filing
notices of liens, financing statements, fixture filings and
amendments, renewals and continuations thereof; cooperating with
the Agent's custodians; keeping stock records; obtaining waivers
from landlords and mortgagees and from warehousemen, fillers,
processors and packers and their respective landlords and
mortgagees; paying claims, which might if unpaid, become a Lien
(other than a Permitted Lien) on the Collateral; assigning its
rights to the payment of Accounts pursuant to the Assignment of
Claims Act of 1940, as amended (31 U.S.C. section 3727 et. seq.) (the
failure of which to so assign will permit the Agent to exclude
such accounts from the Revolving Credit Borrowing Base); and
performing such further acts as the Agent may reasonably require
in order to effect the purposes of this Credit Agreement and the
other Credit Documents. Any and all fees, costs and expenses of
whatever kind and nature (including any Taxes, reasonable
attorneys' fees or costs for insurance of any kind), which the
Agent may incur with respect to the Collateral or the
Obligations: in filing public notices; in preparing or filing
documents; making title examinations or rendering opinions; in
protecting, maintaining, or preserving the Collateral or its
interest therein; in enforcing or foreclosing the Liens
hereunder, whether through judicial procedures or otherwise; or
in defending or prosecuting any actions or proceedings arising
out of or relating to its transactions with any Borrower Entity
under this Credit Agreement or any other Credit Document, will be
borne and paid by the Borrower. If the same are not promptly
paid by the Borrower, the Agent may pay the same on the
Borrower's behalf, and the amount thereof shall be an Obligation
secured hereby and due to the Agent on demand.
7.10 INSURANCE; ASSET LOSS.
The Borrower will, and will cause each of its
Subsidiaries to, maintain third party liability insurance and
replacement value property insurance on their assets under such
policies of insurance, with such insurance companies, in such
amounts and covering such risks as are consistent with industry
practices and consistent with the insurance described on SCHEDULE
6.32. All such policies (other than to the extent they relate
solely to one or more Excluded Entities) are to name the
Borrower, the Agent and the Lenders as additional insureds on
liability policies and the Agent and the Borrower as loss payees
in case of property loss, as their interests may appear, and are
to contain such other provisions as the Agent may reasonably
require to fully protect the Agent's interest in the assets of
the Borrower and its Subsidiaries and to any payments to be made
under such policies. True copies of all original insurance
policies or certificates of insurance evidencing such insurance
covering the assets of the Borrower and its Subsidiaries are to
be delivered to the Agent on or prior to the Closing Date,
premium prepaid, with (other than to the extent they relate
solely to one or more Excluded Entities) the loss payable
endorsement in the Agent's favor, and shall provide for not less
than ten (10) days prior written notice to the Agent, of the
exercise of any right of cancellation. In the event the Borrower
or any of its Subsidiaries fail to respond in a timely and
appropriate manner with respect to collecting under any insurance
policies required to be maintained under this SECTION 7.10, the
Agent shall have the right, in the name of the Agent, the
Borrower or any of its Subsidiaries, to file claims under such
insurance policies, to receive and give acquittance for any
payments that may be payable thereunder, and to execute any and
all endorsements, receipts, releases, assignments, reassignments
or other documents that may be necessary to effect the
collection, compromise or settlement of any claims under any such
insurance policies. The Borrower will, and will cause each
Subsidiary to, provide written notice to the Lenders of the
occurrence of any of the following events within five (5)
Business Days after the Borrower's risk management department
learns (or should reasonably have learned) of the occurrence of
such event: any asset or property owned or used by the Borrower
or any of its Subsidiaries is (i) materially damaged or
destroyed, or suffers any other loss or (ii) is condemned,
confiscated or otherwise taken, in whole or in part, or the use
thereof is otherwise diminished so as to render impracticable or
unreasonable the use of such asset or property for the purpose to
which such asset or property were used immediately prior to such
condemnation, confiscation or taking, by exercise of the powers
of condemnation or eminent domain or otherwise, and in either
case amount of the damage, destruction, loss or diminution in
value of the assets of the Borrower and its Subsidiaries is in
excess of, in the aggregate for the Borrower and all of its
Subsidiaries, $2,000,000 in any fiscal year of the Borrower (any
such damage, destruction, loss or diminution in value of the
Collateral is referred to herein as an "Asset Loss"). The
Borrower will, and will cause each Subsidiary to, diligently file
and prosecute its claim or claims for any award or payment in
connection with an Asset Loss. In the event of an Asset Loss,
the Borrower will, and will cause each Subsidiary (other than an
Excluded Entity) to, pay to the Agent, promptly upon receipt
thereof, any and all insurance proceeds and payments received by
a Subsidiary on account of damage, destruction or loss of all or
any portion of the assets of the Borrower or its Subsidiaries
(other than an Excluded Entity) to which the Agent is entitled.
The Agent's right to retain such insurance proceeds is subject to
(i) the limitations set forth in the definition of Asset Loss,
and until there is an Asset Loss and unless an Event of Default
shall have occurred and be continuing, the Agent shall pay to
Borrower (or as directed by Borrower) any such insurance proceeds
to which Borrower is entitled and (ii) the rights of any lessor
or secured creditor senior to Agent, if the underlying obligation
is permitted by this Credit Agreement. The Agent may, with the
consent of the Required Lenders, either (a) apply the proceeds
realized from Asset Losses, as set forth in SECTION 2.3(B) or (b)
pay such proceeds to the Borrower or the applicable Subsidiary to
be used to repair, replace or rebuild the asset or property or
portion thereof that was the subject of the Asset Loss. After
the occurrence and during the continuance of an Event of Default,
(i) no settlement on account of any such Asset Loss (other than
those of an Excluded Entity) shall be made without the consent of
the Lenders and (ii) the Agent may participate in any such
proceedings and the Borrower will, and will cause each applicable
Subsidiary to, deliver to the Agent such documents as may be
requested by the Agent to permit such participation and will
consult with the Agent, its attorneys and agents in the making
and prosecution of such claim or claims. The Borrower and each
Subsidiary (other than an Excluded Entity) hereby irrevocably
authorizes and appoints the Agent its attorney-in-fact, after the
occurrence and continuance of an Event of Default, to collect and
receive for any such award or payment and to file and prosecute
such claim or claims, which power of attorney shall be
irrevocable and shall be deemed to be coupled with an interest,
and the Borrower shall, and will cause each such Subsidiary to,
upon demand of the Agent, make, execute and deliver any and all
assignments and other instruments sufficient for the purpose of
assigning any such award or payment to the Agent for the benefit
of the Lenders, free and clear of any encumbrances of any kind or
nature whatsoever.
7.11 TAXES.
The Borrower will, and will cause each of the
Subsidiaries to, pay, when due and in any event prior to
delinquency, all Taxes lawfully levied or assessed against the
Borrower, any of its Subsidiaries or any of the Collateral;
provided, however, that unless such Taxes have become a federal
tax Lien or ERISA Lien on any of the assets of the Borrower or
any Subsidiary, no such Tax need be paid if the same is being
contested in good faith, by appropriate proceedings promptly
instituted and diligently conducted and if an adequate reserve or
other appropriate provision shall have been made therefor as
required in order to be in conformity with GAAP.
7.12 COMPLIANCE WITH LAWS.
The Borrower will, and will cause each of its
Subsidiaries to, comply with all acts, rules, regulations,
orders, and ordinances of any legislative, administrative or
judicial body or official applicable to the Collateral or any
part thereof, or to the operation of its business, except where
the failure to so comply could not reasonably be expected to have
a Material Adverse Effect.
7.13 USE OF PROCEEDS.
Subject to the terms and conditions hereof, the
proceeds of any Loans made hereunder shall be used by the
Borrower solely for the financing of working capital and the
financing of capital expenditures for food-related businesses
(other than the fresh or processed meat business); provided,
however, that in any event, no portion of the proceeds of any
such advances shall be used by the Borrower for the purpose of
purchasing or carrying any "margin stock" (as defined in
Regulation U of the Board of Governors of the Federal Reserve
System) or for any other purpose which violates the provisions or
Regulation T, U or X of said Board of Governors or for any other
purpose in violation of any applicable statute or regulation, or
of the terms and conditions of this Credit Agreement.
7.14 FISCAL YEAR.
The Borrower agrees that it will give the Agent at
least forty-five (45) days' prior written notice of any change in
its fiscal year from a year ending December 31.
7.15 NOTIFICATION OF CERTAIN EVENTS.
The Borrower agrees that it will promptly notify the
Agent of the occurrence of any of the following events:
(a) any Material Contract of the Borrower or any of
its Subsidiaries is terminated or amended in any material adverse
respect or any new Material Contract is entered into (in which
event the Borrower shall provide the Agent with a copy of such
Material Contract); or
(b) any of the terms upon which suppliers to the Borrower or any
of its Subsidiaries do business with the Borrower or any of its
Subsidiaries are changed or amended in any respect which has or
could reasonably be expected to have a Material Adverse Effect;
or
(c) any order, judgment or decree in excess of $2,500,000 shall
have been entered against the Borrower or any of its Subsidiaries
or any of their respective properties or assets, or
(d) any written notification of violation of any law or
regulation or any inquiry with respect thereto shall have been
received by the Borrower or any of its Subsidiaries from any
local, state, federal or foreign Governmental Authority or agency
which violation could reasonably be expected to have a Material
Adverse Effect.
7.16 ADDITIONAL SUBSIDIARIES; INACTIVE SUBSIDIARIES.
Promptly, and in any event within two (2) Business
Days, upon any Person becoming a direct or indirect Subsidiary of
the Borrower or upon any Subsidiary which was an Inactive
Subsidiary ceasing to be an Inactive Subsidiary, the Borrower
will provide the Agent with written notice thereof setting forth
information in reasonable detail describing all of the assets of
such Person and shall, to the extent consistent with the
documentation requested or required prior to such time, (a) cause
such Person to execute a Joinder Agreement in substantially the
same form as EXHIBIT J hereto, (b) cause such Person to pledge
all of its assets of the type included in the Collateral to the
Agent pursuant to a security agreement in substantially the form
of the Security Agreement and otherwise in a form acceptable to
the Agent, (c) cause such Person to execute and deliver such
other documents as the Agent reasonably requests and (d) execute
and deliver such other documentation as the Agent may reasonably
request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements,
Acknowledgment Agreements, certified resolutions and other
organizational and authorizing documents of such Person and
favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above), all in
form, content and scope reasonably satisfactory to the Agent.
7.17 SCHEDULES OF ACCOUNTS AND PURCHASE ORDERS.
In furtherance of the continuing assignment and
security interest in the Accounts of the Borrower granted
pursuant to the Security Agreement, upon the creation of
Accounts, the Borrower will execute and deliver to the Agent in
such form and manner as the Agent may require, solely for its
convenience in maintaining records of collateral, such
confirmatory schedules of Accounts, and other appropriate reports
designating, identifying and describing the Accounts as the Agent
may require. In addition, upon the Agent's reasonable request,
the Borrower will provide the Agent with copies of agreements
with, or purchase orders from, the customers of the Borrower and
CBCNA and copies of invoices to customers, proof of shipment or
delivery and such other documentation and information relating to
said Accounts and other collateral as the Agent may require.
Failure to provide the Agent with any of the foregoing shall in
no way affect, diminish, modify or otherwise limit the security
interests granted herein. The Borrower hereby authorizes the
Agent to regard the Borrower's or any of its Subsidiaries'
printed name or rubber stamp signature on assignment schedules or
invoices as the equivalent of a manual signature by the
Borrower's or such Subsidiaries' authorized officers or agents.
7.18 COLLECTION OF ACCOUNTS.
(A) Other than amounts received in the cafeteria and
from the sale of promotional items to employees at the Borrower's
corporate headquarters and other similar de minimus amounts which
are deposited in an account at Firstar Bank, N.A. in Cincinnati,
Ohio, all proceeds of Collateral in the United States and Canada
and all proceeds of Accounts shall be directed to one or more
lockboxes which are subject to tri-party agreements between the
Agent, the applicable Credit Party and applicable bank or to an
Agent Bank Account. All amounts received in such lockboxes shall
be deposited into a bank account in the Agent's name (or with
respect to accounts at Bank of America NT & SA, in the Borrower's
name for the benefit of the Agent) (each an "AGENT BANK ACCOUNT")
and the Borrower shall, and shall cause each of its domestic
Subsidiaries to, cause all amounts that it receives from any
source to be deposited into an Agent Bank Account. The Agent
agrees that, unless Availability (plus the amount of unrestricted
cash and Cash Equivalents then held or owned directly by the
Borrower) shall fall below $20,000,000 or a Default or an Event
of Default has occurred, the Agent shall not deliver a notice to
cause funds in any of the applicable accounts to be sent to any
account of the Agent or any of its Affiliates.
(b) Any checks, cash, notes or other instruments or property
received by the Borrower or any of its Subsidiaries with respect
to any Accounts shall be held by the Borrower or any of its
Subsidiaries in trust for the benefit of the Lenders, separate
from the Borrower's or Subsidiary's own property and funds, and
immediately turned over to the Agent or deposited in lockbox
accounts under the dominion and control of the Agent, with proper
assignments or endorsements. No checks, drafts or other
instruments received by the Agent shall constitute final payment
unless and until such instruments have actually been collected.
The Agent on behalf of the Lenders shall have sole dominion and
control over the domestic bank accounts of the Credit Parties
subject to the limited rights of deposit and withdrawal granted
to the Credit Parties pursuant to the lockbox letters delivered
to the lockbox banks.
7.19 NOTICE; CREDIT MEMORANDA; AND RETURNED GOODS.
In addition to the reports required pursuant to SECTION
7.1, the Borrower will notify the Agent promptly of any matters
materially affecting the value, enforceability or collectability
of any Account, and of all material customer disputes, offsets,
defenses, counterclaims, returns and rejections, and all
reclaimed or repossessed merchandise or goods, provided, however,
that such notice shall only be required as to any such matter
that affects Accounts outstanding at any one time from any
account debtor, which affected Accounts have a value greater than
$500,000. The Borrower will issue credit memoranda promptly
(with duplicates to the Agent upon its request for same) upon
accepting returns or granting allowances, and may continue to do
so until the occurrence of an Event of Default which continues
beyond the expiration of the applicable grace or cure period, or
which has not otherwise been waived by the Required Lenders.
After the occurrence and during the continuance of an Event of
Default, the Borrower agrees that all returned, reclaimed or
repossessed merchandise or goods shall be set aside by the
Borrower, marked with the Lenders' name and held by the Borrower
for the Lenders' account as owner and assignee.
7.20 ACKNOWLEDGMENT AGREEMENTS.
The Borrower will assist the Agent in obtaining
executed Acknowledgment Agreements from each of the warehousemen,
processors, packers, fillers, landlords and mortgagees with whom
the Borrower conducts business from time to time.
7.21 TRADEMARKS ETC.
The Borrower will do and cause to be done all things
necessary to preserve and keep in full force and effect all
registrations of trademarks, service marks and other marks, trade
names or other trade rights which registrations are of value to
the Borrower or any of its Subsidiaries (other than those which
are, individually and in the aggregate, of de minimus value).
7.22 MAINTENANCE OF PROPERTY.
The Borrower will, and will cause each of its
Subsidiaries to, keep all property necessary to its respective
business in good working order and condition (ordinary wear and
tear excepted) in accordance with their past operating practices
and not to commit or suffer any waste with respect to any of its
properties, except for properties which either individually or in
the aggregate are not material.
7.23 [INTENTIONALLY DELETED]
7.24 REVISIONS OR UPDATES TO SCHEDULES.
If any of the information or disclosures provided on
any of SCHEDULES 6.7, 6.8, 6.9, 6.15, 6.18 or 6.29, originally
attached hereto become outdated or incorrect in any material
respect, the Borrower shall deliver to the Agent and the Lenders
as part of the compliance certificate required pursuant to
SECTION 7.1(D) (or earlier if the Borrower so elects) such
revision or updates to such Schedule(s) as may be necessary or
appropriate to update or correct such Schedule(s) which revisions
shall be effective from the date accepted in writing by the
Agent, such acceptance not to be unreasonably withheld or
delayed; provided, that no such revisions or updates to any such
Schedule(s) shall be deemed to have cured any breach of warranty
or misrepresentation occurring prior to the delivery of such
revision or update by reason of the inaccuracy or incompleteness
of any such Schedule(s) at the time such warranty or
representation previously was made or deemed to be made.
7.25 [INTENTIONALLY DELETED]
7.26 COMPLIANCE WITH PACA.
The Borrower shall, and shall cause each Borrower
Entity to:
(a) Comply with all applicable provisions of PACA,
including, without limitation, those governing trust formation
and prompt repayment.
(b) Maintain written records pertaining to perishable
agricultural commodities and by-products in its possession to
which a constructive trust under PACA is applicable.
All terms used in this SECTION 7.26 and defined in PACA shall
have the meanings ascribed to such terms therein.
7.27 COVENANTS RELATING TO FOOD SECURITY ACT.
The Borrower shall, and shall cause each Borrower
Entity to:
(a) Promptly provide the Agent with a copy of any
notice received by the Borrower with respect to a security
interest created by a seller of farm products.
(b) With respect to any farm products produced in a state with a
central filing system, register with the secretary of state of
such state prior to the purchase of such farm products.
All terms used in this SECTION 7.27 and defined in the Food
Security Act shall have the meanings ascribed to such terms
therein.
7.28 PAYMENT FOR PERISHABLE GOODS.
(A) The Borrower shall pay, not later than one (1)
Business Day prior to the date required for payment therein, any
outstanding
invoices for perishable agricultural commodities purchased from
any vendor other than an Affiliate; provided, however, that in
the event that any such invoice requires payment upon delivery,
payment shall be made on such date of delivery, provided,
further, however, that any such invoices which require payment
upon delivery may be paid at a later date up to thirty (30) days
after delivery of such commodities so long as the Borrower has
provided evidence satisfactory to the Agent of prior course of
dealing with any existing or current vendor and for all vendors
carried out in accordance with standard industry practices or the
Borrower has obtained a waiver of the vendors' rights under PACA.
Notwithstanding anything to the contrary contained in this
SECTION 7.28(A), neither Borrower nor any Subsidiary shall be
obligated to pay amounts on any invoice with respect to which
Borrower or such Subsidiary has a bona fide dispute concerning
payment for any reason, including, without limitation, quality of
the perishable commodities received, quantity of the perishable
commodities received, or compliance of the perishable commodities
received with applicable rules and regulations.
(b) The Borrower shall pay, in the event that written
notification other than on an invoice is received from any vendor
of perishable agricultural commodities of its intent to enforce
its rights under Section 5 of PACA, or to establish a federal
statutory lien or trust under the Food Security Act, the related
invoice within one (1) Business Day of receipt and promptly
notify the Agent of such receipt; provided, however, that such
invoice may remain unpaid if, and only so long as, (i)
appropriate legal or administrative action has been commenced and
is being diligently pursued or defended by the Borrower, (ii) the
ability of the vendor to pursue any rights or enforce any liens
or trusts provided under PACA has been stayed or is otherwise
legally prohibited during the pendency of such action or the
benefits of Section 5 of PACA are not available to such vendor
and (iii) the Agent shall have established a reserve against the
Revolving Credit Borrowing Base in an amount at least equal to
the amount claimed to be due by such vendor under the relevant
invoice. Notwithstanding anything to the contrary contained in
this SECTION 7.28(B), neither Borrower nor any Subsidiary shall
be obligated to pay the full amount of any invoice which is
subject to offset by Borrower or such Subsidiary pursuant to
Section 46.46(e)(4) of the regulations promulgated under PACA.
This SECTION 7.28 should not be construed to impose a
responsibility on Borrower or any of its Subsidiaries to pay to
the vendor or report to the Agent any informal or formal
complaints received by Borrower or any such Subsidiary under
PACA; instead, this SECTION 7.28 should be construed to impose
such responsibilities only in the event a formal claim under a
statutory trust under Section 5 of PACA is made by a vendor.
ARTICLE VIII.
FINANCIAL COVENANTS
Until termination of this Credit Agreement and the
Commitments hereunder and payment and satisfaction of all
Obligations due or to become due hereunder, the Borrower agrees
that, unless the Required Lenders shall have otherwise consented
in writing:
8.1 LEVERAGE RATIO.
The Borrower and its consolidated Subsidiaries (other
than CPF and its Subsidiaries) shall have a Leverage Ratio, as of
the dates set forth below, of no greater than the applicable
ratio set forth below:
DATE LEVERAGE RATIO
March 31, 2001 1.60:1.00
June 30, 2001 1.70:1.00
September 30, 2001 2.10:1.00
December 31, 2001 2.50:1.00
The last day of
each quarter thereafter 2.50:1.00
8.2 FIXED CHARGE COVERAGE RATIO.
The Borrower and its consolidated Subsidiaries (other
than CPF and its Subsidiaries) shall have a Fixed Charge Coverage
Ratio of at least 1.45:1.00 for the three (3) months ending March
31, 2001, of at least 1.50:1.00 for the six (6) months ending
June 30, 2001, of at least 1.20:1.00 for the nine (9) months
ending September 30, 2001, of at least 1.00:1.00 for the twelve
(12) months ending December 31, 2001, and thereafter (tested
quarterly), of at least 1.00:1.00 for the four (4) fiscal quarter
period then ended.
8.3 CAPITAL EXPENDITURES.
The Borrower shall not, and shall not permit its
Subsidiaries (other than CPF and its Subsidiaries) to, make or
commit to make Consolidated Capital Expenditures in an aggregate
amount in excess of the amounts set forth below, for the
following fiscal years:
FISCAL YEAR CAPITAL EXPENDITURES
LIMIT
2001 $30,000,000
2002 $40,000,000
2003 $50,000,000
provided, however, that (a) the amount expended in any fiscal
year for any Permitted Acquisition shall not reduce the Capital
Expenditure limit for such fiscal year and (b) the proceeds of
any property loss under any insurance policy applied to replace
or rebuild any such affected property shall not be included in
the calculation of Consolidated Capital Expenditures for the
purpose of determining compliance with this SECTION 8.3.
8.4 EBITDA.
The Borrower and its consolidated Subsidiaries (other
than CPF and its Subsidiaries) shall have Consolidated EBITDA of
at least $56,000,000 for the three (3) months ending March 31,
2001, of at least $106,000,000 for the six (6) months ending June
30, 2001, of at least $120,000,000 for the nine (9) months ending
September 30, 2001, of at least $126,000,000 for the twelve (12)
months ending December 31, 2001, and thereafter, of at least
$126,000,000 for the four (4) fiscal quarter period then ended.
8.5 FRESH LATIN AMERICAN GROUP.
(A) The Borrower shall not permit the aggregate amount
of cash and Cash Equivalents owned or maintained by Persons which
are
members of the ▇▇▇▇▇▇▇▇ Fresh Latin American Group to exceed
$10,000,000 at any time, provided that such members may own or
maintain up to $20,000,000 of cash and Cash Equivalents from time
to time for period not to exceed two (2) Business Days.
(b) The Borrower shall not permit Persons which are members of
the ▇▇▇▇▇▇▇▇ Fresh Latin American Group to make or commit to make
Capital Expenditures in an aggregate amount for all of the
Persons which are members of the ▇▇▇▇▇▇▇▇ Fresh Latin American
Group in excess of (i) $15,000,000 during fiscal year 2001;
(ii) $20,000,000 during fiscal year 2002; and (iii) $25,000,000
during fiscal year 2003; provided, however, that the proceeds of
any property loss under any insurance policy applied to replace
or rebuild any such affected property shall not be included in
the calculation of Capital Expenditures for the purpose of
determining compliance with this SECTION 8.5.
ARTICLE IX.
NEGATIVE COVENANTS
Until termination of the Credit Agreement and the
Commitments hereunder and payment and satisfaction of all
Obligations due or to become due hereunder, the Borrower agrees
that, unless the Required Lenders shall have otherwise consented
in writing, it will not, and will not permit any of the
Subsidiaries to:
9.1 RESTRICTIONS ON LIENS.
Mortgage, assign, pledge or otherwise permit any Lien
(whether as a result of a purchase money or title retention
transaction, or other security interest, or otherwise) to exist
on any of its assets or properties, whether real, personal or
mixed, whether now owned or hereafter acquired, except for
Permitted Liens; PROVIDED, that this covenant shall not apply to
an Excluded Entity to the extent complying with this covenant
would cause a breach or default of any agreement relating to
borrowed money to which such Excluded Entity is a party.
9.2 RESTRICTIONS ON INDEBTEDNESS.
Incur, create or suffer to exist any Indebtedness other
than Permitted Indebtedness.
9.3 RESTRICTIONS ON TRANSFER OF ASSETS.
Sell, lease, assign, transfer or otherwise dispose of
any assets (including Intellectual Property and the Capital Stock
of any Subsidiary of the Borrower) other than:
(a) sales of Inventory in the ordinary course of
business,
(b) sale-leaseback transactions (involving assets other than
Proprietary Rights), when the applicable selling entity receives
fair market value for the sale and which are permitted by SECTION
9.13,
(c) transfers (other than of Proprietary Rights) to a Secured
Credit Party,
(d) sales in the ordinary course of business, when the
applicable selling entity receives fair market value for the sale
of assets or properties (other than Inventory, Proprietary Rights
or Capital Stock of any Subsidiary of the Borrower) used in the
Borrower's or a Subsidiary's business that are worn out (it being
agreed that (x) the Net Cash Proceeds of each such sale of worn
out assets shall be paid to the Agent and (A) applied to repay
outstanding Revolving Loans (and if such Net Cash Proceeds are so
applied, a block against Revolving Loans and Letters of Credit
(an "Asset Sale Block") in the amount so applied shall be put in
place) and (B) to the extent there are not sufficient outstanding
Revolving Loans then outstanding, held by the Agent as Collateral
(PROVIDED, HOWEVER, that if the applicable sale was made by a
Subsidiary which is not a Person organized under the laws of the
United States of America (or a political subdivision thereof) and
the Borrower in good faith believes that paying such Net Cash
Proceeds to the Agent would expose the Borrower to tax
liabilities that the Borrower would not otherwise have, as long
as Availability is, at the time of the receipt of such Net Cash
Proceeds by the Borrower or the applicable Subsidiary, at least
equal to the amount of such Net Cash Proceeds (and the Borrower
delivers a written statement representing and warranting to the
Agent and the Lenders that each of such conditions then exist),
the Borrower does not need to pay such Net Cash Proceeds to the
Agent (and an Asset Sale Block will then be put in place in the
amount of such Net Cash Proceeds)) and (y) as long as no Event of
Default then exists or would be caused thereby, the Agent shall
release the applicable Asset Sale Block or the applicable funds
it then holds as Collateral pursuant to this clause (d) to the
Borrower or the applicable Subsidiary upon a written request
(received by the Agent within one hundred twenty (120) days of
the applicable sale) from the Borrower requesting that such Asset
Sale Block or funds be promptly released by the Agent and
representing and warranting to the Agent and the Lenders that the
applicable funds are going to be used promptly upon such release
or receipt thereof by the Borrower or the applicable Subsidiary
to purchase assets to replace the applicable worn out assets),
(e) sales, made while no Default or Event of Default has
occurred and is continuing and as long as no Default or Event of
Default would result therefrom, of assets (other than Accounts,
Proprietary Rights, general intangibles or Tropical Farms (or
equity interests in Person which own any Tropical Farms) and
Capital Stock of any Subsidiary of the Borrower) that are no
longer needed or useful in such Person's operations as long as
(i) at least seventy-five percent (75%) of the consideration
received by the Borrower and its Subsidiaries is in the form of
cash and Cash Equivalents, (ii) the aggregate consideration
(including assumed debt) for all such sales after the date hereof
does not exceed $10,000,000, (iii) the assets so sold after the
date hereof will not have contributed Consolidated EBITDA, over
the four fiscal quarter period ending prior to the date of such
sale, exceeding five percent (5%) of the Consolidated EBITDA as
of December 31, 2000, (iv) the Borrower can demonstrate that had
such sale occurred immediately prior to the then most recently
completed four fiscal quarter period, the Borrower would have
been in compliance with the financial covenants set forth herein,
and (v) the Borrower delivers a certificate executed by an
authorized officer of the Borrower representing and warranting to
the Agent and the Lenders that the conditions set forth in
clauses (i) through (iv) of this clause (e) have been satisfied
or complied with and that the applicable transferring entity
received fair market value for the applicable assets,
(f) sales, made while no Default or Event of Default has
occurred and is continuing and as long as no Default or Event of
Default would result therefrom, of the assets set forth on
SCHEDULE 9.3 (which schedule shall also indicate the minimum
amount of the Loans that shall be repaid upon the sale of such
assets) and which are made on a basis where the selling entity
receives fair market value for the sale,
(g) dispositions by Excluded Entities,
(h) sales, made while no Default or Event of Default has
occurred and is continuing and as long as no Default or Event of
Default would result therefrom, of Tropical Farms (and equity
interests in Persons which own only Tropical Farms) in the
ordinary course of business as long as (i) no single sale (or
series of related sales) is of property with a fair market value
of greater than $5,000,000, (ii) all of such sales made after the
Closing Date do not involve sales of property which produced
bananas and plantains in an amount in excess of ten percent (10%)
of the bananas and plantains sold by the Borrower and its
Subsidiaries (to Persons other than the Borrower or a Subsidiary)
during the then most recently completed fiscal year of the
Borrower (it being agreed that if a particular sale is permitted
at the time it was made, it shall be permitted at all times
thereafter) and (iii) the Borrower delivers a certificate
executed by an authorized officer of the Borrower representing
and warranting to the Agent and the Lenders that the conditions
set forth in clauses (i) and (ii) of this clause (h) have been
satisfied or complied with and that the applicable selling entity
received fair market value for the applicable Tropical Farm (it
being agreed that (x) the Net Cash Proceeds of each such sale of
a Tropical Farm shall be paid to the Agent and (A) applied to
repay outstanding Revolving Loans (and if such Net Cash Proceeds
are so applied, a block against Revolving Loans and Letters of
Credit (a "Farm Sale Block") in the amount so applied shall be
put in place) and (B) to the extent there are not sufficient
outstanding Revolving Loans then outstanding, held by the Agent
as Collateral (PROVIDED, HOWEVER, that if the Borrower in good
faith believes that paying such Net Cash Proceeds to the Agent
would expose the Borrower to tax liabilities that the Borrower
would not otherwise have, as long as Availability is, at the time
of the receipt of such Net Cash Proceeds by the Borrower or the
applicable Subsidiary, at least equal to the amount of such Net
Cash Proceeds (and the Borrower delivers a written statement
representing and warranting to the Agent and the Lenders that
each of such conditions then exists), the Borrower does not need
to pay such Net Cash Proceeds to the Agent (and a Farm Sale Block
will then be put in place in the amount of such Net Cash
Proceeds)) and (y) as long as no Event of Default then exists or
would be caused thereby, the Agent shall release the applicable
Farm Sale Block or the applicable funds it then holds as
Collateral pursuant to this clause (h) to the Borrower or the
applicable Subsidiary upon a written request (received by the
Agent within one hundred twenty (120) days of the applicable
sale) from the Borrower requesting that such Farm Sale Block or
funds be promptly released by the Agent and representing and
warranting to the Agent and the Lenders that the applicable funds
are going to be used promptly upon such release or receipt
thereof by the Borrower or the applicable Subsidiary) to (1)
acquire one or more Tropical Farms (or all of the equity in one
or more entities that own only Tropical Farms) or (2) make a
Capital Expenditure in an existing Tropical Farm owned by a
Subsidiary in an amount (when added to the amount of all proceeds
of the sales of Tropical Farms used to make Capital Expenditures
after the Closing Date) not to exceed $2,500,000, and
(i) the transactions set forth in SCHEDULE 9.3A hereto.
Any Asset Sale Block , Farm Sale Block or amounts held by the
Agent as Collateral pursuant to this SECTION 9.3 not released by
the Agent as described in clause (d) or (h) above within one
hundred twenty (120) days of the applicable sale shall constitute
Net Cash Proceeds from an Asset Disposition and shall, in
accordance with SECTION 2.3, be applied to prepay Loans (and to
the extent such prepayment relates to any amount of an Asset Sale
Block or Farm Sale Block not so released (a) the Borrower shall
be deemed to have requested a Revolving Loan in the amount of the
applicable Asset Sale Block or Farm Sale Block, (b) such
applicable Asset Sale Block or Farm Sale Block shall be released
to permit Revolving Loans to be made, and (c) the requested
Revolving Loans shall be made and the proceeds thereof shall be
applied to prepay Loans in accordance with SECTION 2.3).
9.4 NO CORPORATE CHANGES.
(i) Merge or consolidate with any Person, provided,
however, that (a) the Credit Parties may merge or consolidate
with and into each other (as long as) if such merger or
consolidation involves (x) the Borrower, the Borrower is the
surviving entity, (y) a Secured Credit Party (but not the
Borrower), a Secured Credit Party is the surviving entity or (z)
a Guarantor but not a Secured Credit Party, such Guarantor is the
surviving entity), (b) any Subsidiary of the Borrower may merge
or consolidate with and into a Credit Party (as long as (x) if
either of such Persons is the Borrower, the surviving entity is
the Borrower, (y) if neither of such Persons is the Borrower, but
one of such Persons is a Secured Credit Party, the surviving
entity is a Secured Credit Party), or (z) if neither of such
Persons is a Secured Credit Party, the surviving entity is a
Guarantor, and (c) any Subsidiary of the Borrower which is not a
Credit Party may merge or consolidate with any Subsidiary of the
Borrower which is not a Credit Party (as long as (x) unless each
Person is an Excluded Entity, the surviving entity is not an
Excluded Entity and (y) if either of such Subsidiaries is a
Pledged Entity, the surviving entity is a Pledged Entity) or (ii)
alter or modify the Borrower's or any of its Subsidiaries'
Articles or Certificate of Incorporation or other equivalent
organizational document or form of organization (other than in
connection with an Equity Issuance permitted hereunder) or (iii)
alter or modify any legal names, mailing addresses, principal
places of business, structure, status or existence of any Credit
Party unless the same shall have been notified to the Agent in
writing at least ten (10) Business Days prior to such alteration
or modification or enter into or engage in any business,
operation or activity materially different from that presently
being conducted by the Borrower; PROVIDED, HOWEVER, that upon ten
(10) days' notice to the Agent (and subject to the prior
perfection of the Agent in the resulting limited liability
company interest), any corporation may be converted to a limited
liability company.
9.5 NO GUARANTEES.
Assume, guarantee, endorse, or otherwise become liable
upon the obligations of any other Person, including, without
limitation, any Subsidiary or Affiliate of the Borrower, except
(a) by the endorsement of negotiable instruments in the ordinary
course of business, (b) by the giving of indemnities in
connection with the sale of Inventory or other asset dispositions
permitted hereunder and (c) a guaranty of Indebtedness if the
Indebtedness so guaranteed would itself constitute Permitted
Indebtedness of the incurring guarantor; PROVIDED, that (i) any
Subsidiary of any Person may guarantee the direct obligations of
such Person as long as such direct obligations are otherwise
permitted hereby (provided, however, that the foregoing shall not
permit the guarantee of any obligation of CBII by the Borrower or
any Subsidiary), (ii) GWF may guarantee the obligations of its
Subsidiaries or Subsidiaries of the Borrower, (iii) any Secured
Credit Party may guarantee the obligations (other than
Indebtedness) of any other Secured Credit Party, (iv) any member
of the ▇▇▇▇▇▇▇▇ Fresh Latin American Group may guarantee the
obligations (other than Indebtedness) of any other member of the
▇▇▇▇▇▇▇▇ Fresh Latin American Group, (v) any member of the
▇▇▇▇▇▇▇▇ Fresh European Group may guarantee the obligations
(other than Indebtedness) of any other member of the ▇▇▇▇▇▇▇▇
Fresh European Group, and (vi) any Excluded Entity may guarantee
the obligations of its Subsidiaries.
9.6 NO RESTRICTED PAYMENTS.
Make any payment to or for the benefit of CBII
(including, without limitation, a payment to CBII to permit CBII
to pay its obligations, a payment to any holders of obligations
of CBII or to any trustee or agent for holders of obligations of
CBII or a payment on or with respect to any obligation which is
subordinated to any or all of the Obligations) or any Restricted
Payment, other than (a) a payment to the Borrower or any
Subsidiary of the Borrower, (b) cash dividends, distributions or
payments to make tax sharing payments in accordance with the CBII
tax sharing arrangements as described in SCHEDULE 9.6 hereto in
an amount which is not in excess of the amount which the Person
making such payment would have been liable to pay the applicable
taxing authorities had it not been filing a consolidated tax
return with CBII or a party to such tax sharing arrangement, (c)
payments of Unallocated CBII Overhead in any fiscal year in a
maximum amount of $49,000,000, (d) payments of Allocated CBII
Overhead in any fiscal year in a maximum amount of $46,000,000
and (e) Permitted Restructuring Expenses.
9.7 NO INVESTMENTS.
Make any Investment other than Permitted Investments.
9.8 NO AFFILIATE TRANSACTIONS.
Enter into any transaction with, including, without
limitation, the purchase, sale or exchange of property or the
rendering of any service to any Subsidiary or Affiliate of the
Borrower except (a) in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's business and upon fair
and reasonable terms no less favorable to the Borrower than could
be obtained in a comparable arm's-length transaction with an
unaffiliated Person, (b) as permitted under SECTION 9.6 or as
described on SCHEDULE 6.31 and (c) transactions (other than
transfers of Accounts, Proprietary Rights and general
intangibles) among and between Secured Credit Parties.
9.9 NO PROHIBITED TRANSACTIONS UNDER ERISA.
(A) Engage, or permit any Controlled ERISA Affiliate
to engage, in any prohibited transaction which could result in a
civil
penalty or excise tax described in Section 406 of ERISA or
Section 4975 of the Internal Revenue Code for which a statutory
or class exemption is not available or a private exemption has
not been previously obtained from the DOL;
(b) permit to exist with respect to any Benefit Plan of the
Borrower, its Subsidiaries or any Controlled ERISA Affiliate any
accumulated funding deficiency (as defined in Sections 302 of
ERISA and 412 of the Internal Revenue Code), whether or not
waived;
(c) fail, or permit any Controlled ERISA Affiliate to fail, to
pay timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;
(d) terminate, or permit any Controlled ERISA Affiliate to
terminate, any Benefit Plan where such event would result in any
material liability of the Borrower, any Subsidiary of the
Borrower or any Controlled ERISA Affiliate under Title IV of
ERISA;
(e) fail, or permit any Controlled ERISA Affiliate to fail to
make any required contribution or payment to any Multiemployer
Plan;
(f) fail, or permit any Controlled ERISA Affiliate to fail, to
pay any required installment or any other payment required under
Section 412 of the Internal Revenue Code on or before the due
date for such installment or other payment;
(g) amend, or permit any Controlled ERISA Affiliate to amend, a
Benefit Plan resulting in an increase in current liability for
the plan year such that either of the Borrower, any Subsidiary of
the Borrower or any Controlled ERISA Affiliate is required to
provide security to such Benefit Plan under Section 401(a)(29) of
the Internal Revenue Code;
(h) withdraw, or permit any Controlled ERISA Affiliate to
withdraw, from any Multiemployer Plan where such withdrawal may
result in any material liability of any such entity under Title
IV of ERISA;
(i) allow any representation made in SECTION 6.15 to be untrue
at any time during the term of this Credit Agreement; or
(j) amend, or adopt any new Retiree Health Plan which would
result in any material increase in liability to Borrower or any
its Subsidiaries.
9.10 NO ADDITIONAL BANK ACCOUNTS.
Permit (i) any Secured Credit Party (other than CIL) to
open, maintain or otherwise have any checking, savings or other
accounts at any bank or other financial institution, or any other
account where money is or may be deposited or maintained with any
Person, other than the accounts set forth on SCHEDULE 9.10 hereto
and, after the Closing Date, such other accounts so long as each
such account (other than payroll and ▇▇▇▇▇ cash accounts
maintained as zero balance accounts and other similar bank
accounts with limited or no activity and balances not exceeding
$10,000) is subject to a tri-party lockbox or other blocked
account agreement satisfactory to the Agent nor (ii) CIL to keep
any account as its primary account or as a "concentration"
account other than those currently maintained at Bank of America
NT & SA in London. All such checking, savings or other accounts
of the Borrower shall, subject to the terms hereof, be under the
sole dominion and control of the Agent in accordance with the
Security Agreement. All payroll and ▇▇▇▇▇ cash accounts shall be
maintained as zero balance accounts.
9.11 AMENDMENTS OF MATERIAL CONTRACTS.
Without the prior written consent of the Agent, amend,
modify, cancel or terminate or permit the amendment,
modification, cancellation or termination of any of the Material
Contracts if such amendment, modification, cancellation or
termination has or could reasonably be expected to have a
Material Adverse Effect.
9.12 ADDITIONAL NEGATIVE PLEDGES.
(A) Create or otherwise cause to exist or become
effective, or permit any of the Subsidiaries to create or
otherwise cause to
exist or become effective, directly or indirectly, (i) other than
(x) restrictions set forth in agreements relating to debt for
borrowed money of an Excluded Entity, as long as such
restrictions are binding only on the applicable Excluded Entity
and its Subsidiaries, (y) restrictions set forth in documents
relating to Permitted Indebtedness, as long as such restrictions
are binding only on the primary obligor on such Indebtedness (and
its Subsidiaries) or (z) as described on SCHEDULE 9.12, any
prohibition or restriction (including any agreement to provide
equal and ratable security to any other Person in the event a
Lien is granted to or for the benefit of the Agent and the
Lenders) on the creation or existence of any Lien upon the assets
of the Borrower or any of its Subsidiaries, other than Permitted
Liens or (ii) any Contractual Obligation, except as described on
SCHEDULE 9.12, which may restrict or inhibit the Agent's rights
or ability to sell or otherwise dispose of the Collateral or any
part thereof after the occurrence of an Event of Default, or
(b) Suffer to exist or permit any of the Subsidiaries to suffer
to exist, directly or indirectly, (i) other than (x) restrictions
set forth in agreements relating to debt for borrowed money of an
Excluded Entity, as long as such restrictions are binding only on
the applicable Excluded Entity, (y) restrictions set forth in
documents relating to Permitted Indebtedness, as long as such
restrictions are binding only on the primary obligor on such
Indebtedness (and its Subsidiaries) and (z) as described on
SCHEDULE 9.12, any prohibition or restriction (including any
agreement to provide equal and ratable security to any other
Person in the event a Lien is granted to or for the benefit of
the Agent and the Lenders) on the creation or existence of any
Lien upon the assets of the Borrower or any of its Subsidiaries,
other than Permitted Liens or (ii) any Contractual Obligation
which may restrict or inhibit the Agent's rights or ability to
sell or otherwise dispose of the Collateral or any part thereof
after the occurrence of an Event of Default, which prohibition,
restriction or Contractual Obligation is more restrictive than
those in effect on the Closing Date.
9.13 SALE AND LEASEBACK.
Enter into any arrangement, directly or indirectly,
whereby the Borrower or any of its Subsidiaries shall sell or
transfer any property owned by it to a Person (other than the
Borrower or any of its Subsidiaries) in order then or thereafter
to lease such property or lease other property which the Borrower
or any of its Subsidiaries intends to use for substantially the
same purpose as the property being sold or transferred
(collectively, a "Sale Leaseback Transaction"); PROVIDED,
HOWEVER, the Borrower and its Subsidiaries may enter into Sale
Leaseback Transactions involving assets other than Accounts,
general intangibles and Proprietary Rights as long as (i) the
current market value of all assets subject to such transactions
after the date hereof (determined at the time of the applicable
transfer) does not exceed $25,000,000, (ii) the applicable assets
are containers and similar equipment and assets initially
acquired by the Borrower or one of its Subsidiaries (from a
Person other than the Borrower or one of its Subsidiaries) after
the Closing Date and (iii) such Sale Leaseback Transactions are
consummated within one hundred twenty (120) days of the initial
acquisition of such assets by the Borrower or one of its
Subsidiaries from a Person other than the Borrower or one of its
Subsidiaries; PROVIDED, FURTHER, this SECTION 9.13 shall not
apply to Excluded Entities.
9.14 LICENSES, ETC.
Other than in the ordinary course of business and on
terms and conditions consistent with the Borrower's historical
practices as of the Closing Date, enter into licenses of, or
otherwise restrict the use of, any patents, trademarks or
copyrights or other Proprietary Rights.
9.15 LIMITATIONS.
Create, nor will it permit any of its Subsidiaries
(other than an Excluded Subsidiary) to, directly or indirectly,
create or otherwise cause, incur, assume, suffer or permit to
exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Person to
(a) pay dividends or make any other distribution on any of such
Person's Capital Stock, (b) pay any Indebtedness owed to the
Borrower, (c) make loans or advances to the Borrower or (d)
transfer any of its property to the Borrower, except for
encumbrances or restrictions existing under or by reason of (i)
customary non-assignment provisions in any lease governing a
leasehold interest, (ii) any agreement or other instrument of a
Person existing at the time it becomes a Subsidiary of the
Borrower; PROVIDED that such encumbrance or restriction is not
applicable to any other Person, or any property of any other
Person, other than such Person becoming a Subsidiary of the
Borrower and was not entered into in contemplation of such Person
becoming a Subsidiary of the Borrower and (iii) this Credit
Agreement and the other Credit Documents.
9.16 TRANSFER PRICING.
(i) Other than as required by applicable law, modify,
or permit any Subsidiary to modify, its transfer pricing policies
in a manner that has, or is reasonably likely to have, a material
adverse effect on the Borrower or any Guarantor or (ii) make any
material modification to the fees or other amounts paid to GWF or
any of its Subsidiaries for the transportation of products and
related services, excluding adjustments reflecting changes in GWF
cost structure.
9.17 SALES.
Permit or cause (i) the Borrower to purchase or
otherwise acquire bananas or plantains from any Person other than
CIL (provided, however, that in any consecutive twelve month
period the Borrower may purchase or acquire five percent (5%) of
the aggregate amount of the bananas and plantains which it
purchases and acquires during such period from Persons other than
CIL), (ii) CIL to sell bananas or plantains to any Person (other
than the Borrower) for sales or consumption in North America or
(iii) bananas or plantains to be sold in North America or Europe
by any Subsidiary of the Borrower if such bananas or plantains
were not sold by CIL directly or through CBCBV to such Subsidiary
of the Borrower (PROVIDED, HOWEVER, that (a) up to five percent
(5%) of the bananas and plantains sold in North America by the
Borrower during any consecutive twelve-month period may be
purchased from Persons other than CIL and (b) the bananas and
plantains sold in Europe by members of the ▇▇▇▇▇▇▇▇ Fresh
European Group may be purchased from a Person other than CIL.
9.18 EXCLUDED ENTITIES.
Knowingly take or omit to take any action if the effect
of such action or omission could reasonably be expected to
materially decrease the value of the equity interests in one or
more Excluded Entities.
9.19 HEDGING AND INTEREST RATE PROTECTION.
Enter into any Hedging Agreements other than Hedging
Agreements which constitute Permitted Indebtedness and which are
agreements that constitute hedging and which are not speculative
in nature.
9.20 PAYMENTS ON CERTAIN INTERCOMPANY OBLIGATIONS.
Make any payment on or distribution with respect to any
of the intercompany receivables identified on SCHEDULE 1.1E(3)(B)
hereto, whether directly or indirectly (and regardless of whether
such payment or distribution might otherwise be permitted under
other provisions of this Agreement), except for (a)
capitalization of intercompany advances that is permitted under
the definition of Permitted Investments, (b) payments or
distributions (i) among or to Secured Credit Parties, (ii) by
members of the ▇▇▇▇▇▇▇▇ Fresh European Group to any Person other
than an Excluded Entity, or (iii) by members of the ▇▇▇▇▇▇▇▇
Fresh Latin American Group to other members of that Group or to
Secured Credit Parties, (c) payments with respect to current
obligations for goods or services in accordance with ordinary
practice, and (d) any other payments or distribution to the
extent that within five (5) Business Days thereafter there is at
least an equivalent payment to one or more Secured Credit
Parties.
ARTICLE ▇.
▇▇▇▇▇▇
10.1 APPOINTMENT AS ATTORNEY-IN-FACT.
The Borrower hereby irrevocably authorizes and appoints
the Agent, or any Person or agent the Agent may designate, as the
Borrower's attorney-in-fact, at the Borrower's cost and expense,
to exercise, subject to the limitations set forth in SECTION
10.2, all of the following powers, which being coupled with an
interest, shall be irrevocable until all of the Obligations to
the Lenders have been paid and satisfied in full and all of the
Commitments have been terminated:
(a) To receive, take, endorse, sign, assign and
deliver, all in the name of the Agent, the Lenders or the
Borrower, as the case
may be, any and all checks, notes, drafts, and other documents or
instruments relating to the Collateral;
(b) To receive, open and dispose of all mail addressed to the
Borrower and to notify postal authorities to change the address
for delivery thereof to such address as the Agent may designate;
(c) To request at any time from customers indebted on Accounts,
in the name of the Borrower or a third party designee of the
Agent, information concerning the Accounts and the amounts owing
thereon;
(d) To give customers indebted on Accounts notice of the
Lenders' interest therein, and/or to instruct such customers to
make payment directly to the Agent for the Borrower's account;
(e) To take or bring, in the name of the Agent, the Lenders or
the Borrower, all steps, actions, suits or proceedings deemed by
the Agent necessary or desirable to enforce or effect collection
of the Accounts; and
(f) To file, record and register any or all of the Lenders'
security interest in intellectual property of the Borrower with
the United States Patent and Trademark Office.
10.2 LIMITATION ON EXERCISE OF POWER.
Notwithstanding anything hereinabove to the contrary,
the powers set forth in subparagraphs (b), (d) and (e) above may
only be exercised by the Agent on and after the occurrence of an
Event of Default which has not otherwise been waived by the
Agent. The powers set forth in subparagraphs (a), (c) and (f)
above may be exercised by the Agent at any time.
ARTICLE XI.
EVENTS OF DEFAULT AND REMEDIES
11.1 EVENTS OF DEFAULT.
The occurrence of any of the following events shall
constitute an "Event of Default" hereunder:
(a) failure of the Borrower to pay (i) any interest or
Fees or other amounts hereunder within one (1) Business Day of
when due hereunder, in each case whether at stated maturity, by
acceleration, or otherwise, or (ii) any principal of the Loans or
the Letter of Credit Obligations hereunder within one (1)
Business Day of when due hereunder, whether at stated maturity,
by acceleration or otherwise;
(b) any representation or warranty of a Borrower Entity,
contained in this Credit Agreement, the other Credit Documents or
any other agreement, document, instrument or certificate among
the Borrower, the Agent and the Lenders or executed by the
Borrower in favor of the Agent or the Lenders shall prove untrue
in any material respect on or as of the date it was made or was
deemed to have been made;
(c) failure of the Borrower to perform, comply with or observe
any term, covenant or agreement applicable to it contained in
SECTION 7.1, SECTION 7.5, SECTION 7.7(B), SECTION 7.10, SECTION
7.18, ARTICLE VIII or ARTICLE IX;
(d) failure of the Borrower to perform, comply with or observe
any term, covenant or agreement applicable to it contained in
SECTION 7.7(a) and such failure is not cured within two (2)
Business Days after the Borrower shall have received notice
thereof from the Agent or any Lender;
(e) failure to comply with any other covenant contained in this
Credit Agreement, the other Credit Documents or any other
agreement, document, instrument or certificate among the
Borrower, the Agent and the Lenders or executed by the Borrower
in favor of the Agent or the Lenders and, in the event such
breach or failure to comply is capable of cure, such breach or
failure to comply is not cured within thirty (30) days after the
Borrower becomes aware of its occurrence;
(f) except as permitted in SECTION 9.4, dissolution,
liquidation, winding up or cessation of the business of the
Borrower or any Subsidiary (other than an Inactive Subsidiary) or
the failure of the Borrower or any Subsidiary to meet its debts
generally as they mature, or the calling of a meeting by the
Borrower of the Borrower's or any of its Subsidiaries' creditors
for purposes of compromising the Borrower's or any of its
Subsidiaries' debts, or the admission by the Borrower of its
inability to pay its debts as they become due;
(g) the commencement by or against the Borrower or any of its
Subsidiaries of any bankruptcy, insolvency, arrangement,
reorganization, receivership or similar proceedings with respect
to it under any federal or state law and, in the event any such
proceeding is commenced against the Borrower or any Subsidiary,
such proceeding is not dismissed within sixty (60) days;
(h) the occurrence of a Change in Control;
(i) the occurrence of a default or event of default (in each
case which shall continue beyond the expiration of any applicable
grace periods) under, or the occurrence of any event that results
in or would permit the acceleration of the maturity of any note,
agreement or instrument evidencing any other Indebtedness of the
Borrower or any of its Subsidiaries and the aggregate principal
amount of all such other Indebtedness with respect to which a
default or an event of default has occurred, or the maturity of
which is accelerated or permitted to be accelerated, exceeds
$2,500,000.
(j) any covenant, agreement or obligation of the Borrower
contained in or evidenced by any of the Credit Documents shall
cease to be enforceable in accordance with its terms, or any
party (other than the Agent or the Lenders) to any Credit
Document shall deny or disaffirm its obligations under any of the
Credit Documents, or any Credit Document shall be canceled,
terminated, revoked or rescinded without the express prior
written consent of the Agent, or any action or proceeding shall
have been commenced by any Person (other than the Agent or any
Lender) seeking to cancel, revoke, rescind or disaffirm the
obligations of the Borrower under any Credit Document, or any
court or other Governmental Authority shall issue a judgment,
order, decree or ruling to the effect that any of the obligations
of the Borrower to any Credit Document are illegal, invalid or
unenforceable;
(k) [INTENTIONALLY DELETED];
(l) one or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries in the amount of
$2,500,000 or more in the aggregate (to the extent not paid or
covered by insurance (i) provided by a carrier who has
acknowledged coverage and has the ability to perform or (ii) as
determined by the Agent in its reasonable discretion) and any
such judgments or decrees shall not have been vacated, discharged
or stayed or bonded pending appeal within thirty (30) days from
the entry thereof; or
(m) any Termination Event with respect to a Benefit Plan shall
have occurred and be continuing thirty (30) days after notice
thereof shall have been given to the Borrower by the Agent or any
Lender, and the current value of such Benefit Plan's benefits
guaranteed under Title IV of ERISA as of the end of that thirty
(30) day period exceeds the then current value of such Benefit
Plan's assets allocable to such benefits by more than $2,500,000
(or in the case of a Termination Event involving the withdrawal
of a substantial employer, the withdrawing employer's
proportionate share of such excess exceeds such amount).
11.2 ACCELERATION.
After the occurrence and during the continuance of an
Event of Default, and at any time thereafter, at the direction of
the Required Lenders, the Agent shall, upon the written or
telecopied request of the Required Lenders, and by delivery of
written notice to the Borrower from the Agent, take any or all of
the following actions, without prejudice to the rights of the
Agent, any Lender or the holder of any Note to enforce its claims
against the Borrower: (a) declare all Obligations to be
immediately due and payable (except with respect to any Event of
Default set forth in SECTION 11.1(G) in which case all
Commitments shall terminate and all Obligations shall
automatically become immediately due and payable without the
necessity of any notice or other demand) without presentment,
demand, protest or any other action or obligation of the Agent or
any Lender, (b) immediately terminate this Credit Agreement and
the Commitments hereunder; and (c) enforce any and all rights and
interests created and existing under the Credit Documents or
arising under applicable law, including, without limitation, all
rights and remedies existing under the Security Documents and all
rights of setoff. The enumeration of the foregoing rights is not
intended to be exhaustive and the exercise of any right shall not
preclude the exercise of any other rights, all of which shall be
cumulative.
In addition, upon demand by the Agent or the Required
Lenders upon the occurrence of any Event of Default, and at any
time thereafter unless and until such Event of Default has been
waived by the requisite Lenders (in accordance with the voting
requirements of SECTION 14.10), the Borrower shall deposit with
the Agent for the benefit of the Lenders with respect to each
Letter of Credit then outstanding, promptly upon such demand,
cash or Cash Equivalents in an amount equal to one hundred five
percent (105%) of the greatest amount for which such Letter of
Credit may be drawn. Such deposit shall be held by the Agent for
the benefit of the Issuing Bank and the other Lenders as security
for, and to provide for the payment of, outstanding Letters of
Credit.
ARTICLE XII.
TERMINATION
Except as otherwise provided in ARTICLE XI of this
Credit Agreement, the Commitments made hereunder shall terminate
on the Maturity Date and all then outstanding Loans shall be
immediately due and payable in full and all outstanding Letters
of Credit shall immediately terminate. Unless sooner demanded,
all Obligations shall become due and payable as of any
termination hereunder or under ARTICLE XI and, pending a final
accounting, the Agent may withhold any amounts it then holds, in
an amount sufficient, in the Agent's sole discretion, to cover
all of the Obligations, whether absolute or contingent, unless
supplied with a satisfactory indemnity to cover all of such
Obligations. All of the Agent's and the Lenders' rights, liens
and security interests shall continue after any termination until
all Obligations have been paid and satisfied in full.
ARTICLE XIII.
THE AGENT
13.1 APPOINTMENT OF AGENT.
(A) Each Lender hereby designates Foothill as Agent to
act as herein specified. Each Lender hereby irrevocably
authorizes, and
each holder of any Note or participation in any Letter of Credit
by the acceptance of a Note or participation shall be deemed
irrevocably to authorize, the Agent to take such action on its
behalf under the provisions of this Credit Agreement and the
Notes and any other instruments and agreements referred to herein
and to exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or required of
the Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Agent shall hold all
Collateral and all payments of principal, interest, Fees, charges
and expenses received pursuant to this Credit Agreement or any
other Credit Document for the ratable benefit of the Lenders.
The Agent may perform any of its duties hereunder by or through
its agents or employees.
(b) The provisions of this ARTICLE XIII are solely for the
benefit of the Agent and the Lenders, and the Borrower shall not
have any rights as a third party beneficiary of any of the
provisions hereof (other than SECTION 13.9). In performing its
functions and duties under this Credit Agreement, the Agent shall
act solely as agent of the Lenders and does not assume and shall
not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for the Borrower.
13.2 NATURE OF DUTIES OF AGENT.
The Agent shall have no duties or responsibilities
except those expressly set forth in this Credit Agreement.
Neither the Agent nor any of its officers, directors, employees
or agents shall be liable for any action taken or omitted by it
as such hereunder or in connection herewith, unless caused by its
or their gross negligence or willful misconduct. The duties of
the Agent shall be mechanical and administrative in nature; the
Agent shall not have by reason of this Credit Agreement a
fiduciary relationship in respect of any Lender; and nothing in
this Credit Agreement, expressed or implied, is intended to or
shall be so construed as to impose upon the Agent any obligations
in respect of this Credit Agreement except as expressly set forth
herein.
13.3 LACK OF RELIANCE ON AGENT.
(A) Independently and without reliance upon the Agent,
each Lender, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of
the financial or other condition and affairs of the Borrower in
connection with the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the
creditworthiness of the Borrower, and, except as expressly
provided in this Credit Agreement, the Agent shall have no duty
or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with
respect thereto, whether coming into its possession before the
making of the Revolving Loans or at any time or times thereafter.
(b) The Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered
in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, collectability, priority
or sufficiency of this Credit Agreement or the Notes or the
financial or other condition of the Borrower. The Agent shall
not be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or
conditions of this Credit Agreement or the Notes, or the
financial condition of the Borrower, or the existence or possible
existence of any Default or Event of Default, unless specifically
requested to do so in writing by any Lender.
13.4 CERTAIN RIGHTS OF THE AGENT.
The Agent shall have the right to request instructions
from the Required Lenders or, as required, each of the Lenders.
If the Agent shall request instructions from the Required Lenders
or each of the Lenders, as the case may be, with respect to any
act or action (including the failure to act) in connection with
this Credit Agreement, the Agent shall be entitled to refrain
from such act or taking such action unless and until the Agent
shall have received instructions from the Required Lenders or
each of the Lenders, as the case may be, and the Agent shall not
incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Agent as a result of the Agent
acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders or each of the Lenders, as
the case may be.
13.5 RELIANCE BY AGENT.
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex teletype or telecopier message,
cablegram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be
genuine and correct and to have been signed, sent or made by the
proper person. The Agent may consult with legal counsel
(including counsel for the Borrower with respect to matters
concerning the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
13.6 INDEMNIFICATION OF AGENT.
To the extent the Agent is not reimbursed and
indemnified by the Borrower, each Lender will reimburse and
indemnify the Agent, in proportion to its respective Commitment,
for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in performing its duties
hereunder, in any way relating to or arising out of this Credit
Agreement, PROVIDED that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct.
13.7 THE AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to its obligation to lend under this
Credit Agreement, the Loans made by it and the Notes issued to
it, its participation in Letters of Credit issued hereunder, and
all of its rights and obligations as a Lender hereunder and under
the other Credit Documents, the Agent shall have the same rights
and powers hereunder as any other Lender or holder of a Note or
participation interests and may exercise the same as though it
was not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar
terms shall, unless the context clearly otherwise indicates,
include the Agent in its individual capacity. The Agent may
accept deposits from, lend money to, acquire equity interests in,
and generally engage in any kind of banking, trust, financial
advisory or other business with the Borrower or any Affiliate of
the Borrower as if it were not performing the duties specified
herein, and may accept fees and other consideration from the
Borrower for services in connection with this Credit Agreement
and otherwise without having to account for the same with the
Lenders.
13.8 HOLDERS OF NOTES.
The Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall have
been filed with the Agent. Any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange
therefor.
13.9 SUCCESSOR AGENT.
(A) The Agent may, upon five (5) Business Days' notice
to the Lenders and the Borrower, resign at any time (effective
upon the appointment of a successor Agent pursuant to the
provisions of
this SECTION 13.9(A)) by giving written notice thereof to the
Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, upon five (5) days'
notice, to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within thirty (30) days after the
retiring Agent's giving of notice of resignation, then, upon five
(5) days' notice , the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a bank or a
trust company or other financial institution which maintains an
office in the United States, or a commercial bank organized under
the laws of the United States of America or of any State thereof,
or any affiliate of such bank or trust company or other financial
institution which is engaged in the banking business, having a
combined capital and surplus of at least $500,000,000.
Notwithstanding anything herein to the contrary, so long as no
Event of Default shall have occurred and be continuing, any
successor Agent (whether appointed by the Required Lenders or the
Agent) shall have been approved in writing by the Borrower (such
approval not to be unreasonably withheld).
(b) Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Credit
Agreement. After any retiring Agent's resignation hereunder as
Agent, the provisions of this ARTICLE XIII shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Credit Agreement.
13.10 COLLATERAL MATTERS.
(A) Each Lender authorizes and directs the Agent to
enter into the Security Documents for the benefit of the Lenders.
Each
Lender authorizes and directs the Agent to make such changes to
the form Acknowledgment Agreement attached hereto as EXHIBIT A as
the Agent deems necessary in order to obtain any Acknowledgment
Agreement from any landlord, warehouseman, filler, packer or
processor of the Borrower. Each Lender also authorizes and
directs the Agent to review and approve all agreements regarding
lockboxes and lockbox accounts and blocked accounts (including
the related lockbox or blocked account agreements) on such terms
as the Agent deems necessary. Each Lender hereby agrees, and
each holder of any Note by the acceptance thereof will be deemed
to agree, that, except as otherwise set forth herein, any action
taken by the Required Lenders or each of the Lenders, as
applicable, in accordance with the provisions of this Credit
Agreement or the Security Documents, and the exercise by the
Required Lenders or each of the Lenders, as applicable, of the
powers set forth herein or therein, together with such other
powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders. The Agent is hereby
authorized on behalf of all of the Lenders, without the necessity
of any notice to or further consent from any Lender, from time to
time prior to an Event of Default, to take any action with
respect to any Collateral or Security Document which may be
necessary or appropriate to perfect and maintain perfected the
security interest in and liens upon the Collateral granted
pursuant to the Security Documents.
(b) The Lenders hereby authorize the Agent, at its option and in
its discretion, to release any Lien granted to or held by the
Agent upon any Collateral (i) upon termination of the Commitments
and payment in cash and satisfaction of all of the Obligations
(including the Letter of Credit Obligations) at any time arising
under or in respect of this Credit Agreement or the Credit
Documents or the transactions contemplated hereby or thereby,
(ii) constituting property being sold or disposed of upon receipt
of the proceeds of such sale by the Agent if the Borrower
certifies to the Agent that the sale or disposition is made in
compliance with SECTION 9.3 (and the Agent may rely conclusively
on any such certificate, without further inquiry) or (iii) if
approved, authorized or ratified in writing by the Required
Lenders, unless such release is required to be approved by all of
the Lenders hereunder. Upon request by the Agent at any time,
the Lenders will confirm in writing the Agent's authority to
release particular types or items of Collateral pursuant to this
SECTION 13.10(B).
(c) Upon any sale and transfer of Collateral which is expressly
permitted pursuant to the terms of this Credit Agreement, or
consented to in writing by the Required Lenders or all of the
Lenders, as applicable, and upon at least five (5) Business Days'
prior written request by the Borrower, the Agent shall (and is
hereby irrevocably authorized by the Lenders to) execute such
documents as may be necessary to evidence the release of the
Liens granted to the Agent for the benefit of the Lenders herein
or pursuant hereto upon the Collateral that was sold or
transferred; PROVIDED that (i) the Agent shall not be required to
execute any such document on terms which, in the Agent's opinion,
would expose the Agent to liability or create any obligation or
entail any consequence other than the release of such Liens
without recourse or warranty and (ii) such release shall not in
any manner discharge, affect or impair the Obligations or any
Liens upon (or obligations of the Borrower or any of its
Subsidiaries in respect of) all interests retained by the
Borrower or any of its Subsidiaries, including (without
limitation) the proceeds of the sale, all of which shall continue
to constitute part of the Collateral. In the event of any sale
or transfer of Collateral, or any foreclosure with respect to any
of the Collateral, the Agent shall be authorized to deduct all of
the expenses reasonably incurred by the Agent from the proceeds
of any such sale, transfer or foreclosure.
(d) The Agent shall have no obligation whatsoever to the Lenders
or to any other Person to assure that the Collateral exists or is
owned by the Borrower or any of its Subsidiaries or is cared for,
protected or insured or that the liens granted to the Agent
herein or pursuant hereto have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to
continue exercising at all or in any manner or under any duty of
care, disclosure or fidelity any of the rights, authorities and
powers granted or available to the Agent in this SECTION 13.10 or
in any of the Security Documents, it being understood and agreed
that in respect of the Collateral, or any act, omission or event
related thereto, the Agent may act in any manner it may deem
appropriate, in its sole discretion, given the Agent's own
interest in the Collateral as one of the Lenders and that the
Agent shall have no duty or liability whatsoever to the Lenders,
except for its gross negligence or willful misconduct.
(e) The Lenders acknowledge that Foothill is entering into the
Pledge Agreements governed by the law of the Netherlands and
Belgium in its individual capacity. The Lenders agree that if
any amounts are received by Foothill pursuant to such Pledge
Agreements, the total amount of the Obligations then owing shall
be decreased by such amounts as if such amounts were received by
the Agent. Foothill agrees that Foothill shall transfer any such
amounts to the Agent. To the extent that it is required to
accomplish the allocation of payment intended hereby, each Lender
shall purchase and Foothill shall sell, without representation or
warranty of any kind, participations in the rights under such
Pledge Agreements.
13.11 ACTIONS WITH RESPECT TO DEFAULTS.
In addition to the Agent's right to take actions on its
own accord as permitted under this Credit Agreement, the Agent
shall take such action with respect to a Default or Event of
Default as shall be directed by the Required Lenders or all of
the Lenders, as the case may be; PROVIDED that, until the Agent
shall have received such directions, the Agent may (but shall not
be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable and in the best interests of the Lenders.
13.12 DELIVERY OF INFORMATION.
The Agent shall not be required to deliver to any
Lender originals or copies of any documents, instruments,
notices, communications or other information received by the
Agent from the Borrower, any Subsidiary, the Required Lenders,
any Lender or any other Person under or in connection with this
Credit Agreement or any other Credit Document except (a) as
specifically provided in this Credit Agreement or any other
Credit Document and (b) as specifically requested from time to
time in writing by any Lender with respect to a specific document
instrument, notice or other written communication received by and
in the possession of the Agent at the time of receipt of such
request and then only in accordance with such specific request.
ARTICLE XIV.
MISCELLANEOUS
14.1 WAIVERS.
The Borrower hereby waives due diligence, demand,
presentment and protest and any notices thereof as well as notice
of nonpayment. No delay or omission of the Agent or the Lenders
to exercise any right or remedy hereunder, whether before or
after the happening of any Event of Default, shall impair any
such right or shall operate as a waiver thereof or as a waiver of
any such Event of Default. No single or partial exercise by the
Agent or the Lenders of any right or remedy shall preclude any
other or further exercise thereof, or preclude any other right or
remedy.
14.2 JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
BORROWER, THE AGENT AND THE LENDERS EACH HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF
THIS CREDIT AGREEMENT, THE CREDIT DOCUMENTS OR ANY OTHER
AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.
14.3 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(A) THIS CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Credit Agreement or any other
Credit Document shall be brought in the courts of the State of
New York in New York County or of the United States for the
Southern District of New York, and, by execution and delivery of
this Credit Agreement, the Borrower hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts.
The Borrower hereby agrees that service of all writs, process and
summonses in any suit, action or proceeding brought in the State
of New York may be made upon CT Corporation, presently located at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (the "Process
Agent"), and the Borrower hereby confirms and agrees that the
Process Agent has been duly and irrevocably appointed as its
agent and true and lawful attorney-in-fact in its name, place and
stead to accept such service of any and all such writs, process
and summonses, and agrees that the failure of the Process Agent
to give any notice of any such service of process to such Obligor
shall not impair or affect the validity of such service or of any
judgment based thereon. The Borrower further irrevocably
consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices
pursuant to SECTION 14.5, such service to become effective three
(3) days after such mailing. Nothing herein shall affect the
right of the Agent or any Lender to serve process in any other
manner permitted by law or to commence legal proceedings or to
otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection
with this Credit Agreement or any other Credit Document brought
in the courts referred to in SUBSECTION (A) above and hereby
further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
14.4 [INTENTIONALLY DELETED].
14.5 NOTICES.
Except as otherwise provided herein, all notices and
correspondences hereunder shall be in writing and sent by
certified or registered mail return receipt requested, or by
overnight delivery service, with all charges prepaid, if to the
Agent, then to Foothill Capital Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Loan Portfolio Manager, with a copy to ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., if to the Borrower, then to Borrower at
▇▇▇▇▇▇▇▇ Brands, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, Attention to each of: Treasurer and General Counsel, if to
a Lender at the address set forth on SCHEDULE 1.1A hereto, or by
facsimile transmission, promptly confirmed in writing sent by
first class mail, if to the Agent, at (▇▇▇) ▇▇▇-▇▇▇▇, with a copy
to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ and if to the Borrower at
(▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇ and if to any Lender at the
facsimile number set forth on SCHEDULE 1.1A hereto. All such
notices and correspondence shall be deemed given (i) if sent by
certified or registered mail, three (3) Business Days after being
postmarked, (ii) if sent by overnight delivery service, when
received at the above stated addresses or when delivery is
refused and (iii) if sent by facsimile transmission, when receipt
of such transmission is acknowledged; PROVIDED that notices to
the Agent shall not be effective until received.
14.6 ASSIGNABILITY.
(A) The Borrower shall not have the right to assign
this Credit Agreement or any interest therein except with the
prior written consent of the Lenders.
(b) Notwithstanding SUBSECTION (C) of this SECTION 14.6, nothing
herein shall restrict, prevent or prohibit any Lender from (i)
pledging its Loans hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank
or (ii) granting assignments or participations in such Lender's
Loans and/or Commitments hereunder to its parent company and/or
to any affiliate of such Lender or to any existing Lender or
affiliate thereof. Any Lender may make, carry or transfer Loans
at, to or for the account of, any of its branch offices or the
office of an affiliate of such Lender except to the extent such
transfer would result in increased costs to the Borrower.
(c) Each Lender may, with the consent of the Agent (such consent
not to be unreasonably withheld, conditioned or delayed and such
consent shall not be required in connection with any assignment
by a Lender to its Affiliates or managed funds or managed
accounts (an "EXEMPT ASSIGNMENT") or in connection with a sale of
all or a material portion of the loan portfolio of such Lender (a
"PORTFOLIO SALE")), but without the consent of any other Lender
or other Person, assign to one or more Persons all or a portion
of its rights and obligations under this Credit Agreement and the
Notes; PROVIDED that (i) for each such assignment, the parties
thereto shall execute and deliver to the Agent, for its
acceptance and recording in the Register (as defined below), an
Assignment and Acceptance, together with any Note or Notes
subject to such assignment and a processing and recordation fee
of $3,500 to be paid by the assignee (such fee being waived in
the case of an Exempt Assignment), (ii) no such assignment shall
be for less than $5,000,000 or, if less, the entire remaining
Commitments of such Lender, (iii) if such assignee is a Foreign
Lender, all of the requirements of SECTION 2.7(B) shall have been
satisfied as a condition to such assignment and (iv) other than
in connection with an Exempt Assignment, each such assignment
shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of the Commitments
and all Loans of such Lender; PROVIDED, ADDITIONALLY, that, other
than pursuant to a Portfolio Sale, no Initial Lender shall have
the right to make any such assignment and delegation if,
immediately after giving effect thereto, such Lender's Pro Rata
Share (plus the Pro Rata Share of such Lender's Affiliates and
the funds and accounts managed by such Lender or one or more of
its Affiliates) of the sum of the principal amount of the then
outstanding Term Loans plus the Revolving Credit Committed Amount
at such time would be less than the lesser of (i) $20,000,000 or
(ii) one-sixth of the principal amount of the then outstanding
Term Loans plus the Revolving Credit Committed Amount at such
time; PROVIDED, ADDITIONALLY, that, as long as no Default or
Event of Default has occurred and is continuing, and other than
to an Affiliate of such Lender (or a fund or amount managed by
such Lender or one or more of its Affiliates), no Lender shall
have the right to make any such assignment and delegation to any
entity which is not a financial institution or other entity which
is not generally engaged in the business of buying, selling or
funding transactions of the type contemplated hereby. Upon such
execution and delivery of the Assignment and Acceptance to the
Agent, from and after the date specified as the effective date in
the Assignment and Acceptance (the "Acceptance Date"), (x) the
assignee thereunder shall be a party hereto, and, to the extent
that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, such assignee shall
have the rights and obligations of a Lender hereunder and (y) the
assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than any
rights it may have pursuant to SECTION 14.8 which will survive)
and be released from its obligations under this Credit Agreement
(and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and
obligations under this Credit Agreement, such Lender shall cease
to be a party hereto).
(d) By executing and delivering an Assignment and Acceptance,
the assignee thereunder confirms and agrees as follows: (i) other
than as provided in such Assignment and Acceptance, the assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit
Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the
Notes or any other instrument or document furnished pursuant
hereto, (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this
Credit Agreement or any other instrument or document furnished
pursuant hereto, (iii) such assignee confirms that it has
received a copy of this Credit Agreement, together with copies of
the financial statements referred to in SECTION 7.1 and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Assignment and Acceptance, (iv) such assignee will, independently
and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Credit
Agreement, (v) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under this Credit Agreement as are delegated to the Agent
by the terms hereof, together with such powers as are reasonably
incidental thereto and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of this Credit Agreement are required to be
performed by it as a Lender.
(e) The Agent shall maintain at its address referred to in
SECTION 14.5 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitments of, and
principal amount of the Loans owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error,
and the Borrower, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for
all purposes of this Credit Agreement. The Register and copies
of each Assignment and Acceptance shall be available for
inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender, together with the Note or Notes subject to
such assignment, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of
EXHIBIT B hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five
(5) Business Days after its receipt of such notice, the Borrower
shall execute and deliver to the Agent in exchange for the
surrendered Note or Notes (which the assigning Lender agrees to
promptly deliver to the Borrower) a new Note or Notes to the
order of the assignee in an amount equal to the Commitment or
Commitments assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment
or Commitments hereunder, a new Note or Notes to the order of the
assigning Lender in an amount equal to the Commitment or
Commitments retained by it hereunder. Such new Note or Notes
shall re-evidence the indebtedness outstanding under the old
Notes or Notes and shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note
or Notes, shall be dated the Closing Date and shall otherwise be
in substantially the form of the Note or Notes subject to such
assignments.
(g) Each Lender may sell participations (without the consent of
the Agent, the Borrower or any other Lender) to one or more
parties in or to any portion of its rights and obligations under
this Credit Agreement (including, without limitation, any portion
of its Commitments, the Loans owing to it and the Note or Notes
held by it); PROVIDED that (i) such Lender's obligations under
this Credit Agreement (including, without limitation, its
Commitments to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii)
such Lender shall remain the holder of any such Note for all
purposes of this Credit Agreement, (iv) the Borrower, the Agent,
and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Credit Agreement and (v) such Lender shall
not transfer, grant, assign or sell any participation under which
the participant shall have rights to approve any amendment or
waiver of this Credit Agreement except to the extent such
amendment or waiver would (A) extend the final maturity date or
the date for the payments of any installment of fees or principal
or interest of any Loans or Letter of Credit reimbursement
obligations in which such participant is participating, (B)
reduce the amount of any installment of principal of the Loans or
Letter of Credit reimbursement obligations in which such
participant is participating, (C) except as otherwise expressly
provided in this Credit Agreement, reduce the interest rate
applicable to the Loans or Letter of Credit reimbursement
obligations in which such participant is participating, or (D)
except as otherwise expressly provided in this Credit Agreement,
reduce any Fees payable hereunder.
(h) Each Lender agrees that, without the prior written consent
of the Borrower and the Agent, it will not make any assignment or
sell a participation hereunder in any manner or under any
circumstances that would require registration or qualification
of, or filings in respect of, any Loan, Note or other Obligation
under the securities laws of the United States of America or of
any jurisdiction.
(i) In connection with the efforts of any Lender to assign its
rights or obligations or to participate interests, such Lender
may disclose any information in its possession regarding the
Borrower.
(j) Borrower shall maintain, or cause to be maintained, a
register (the "Register") on which it enters the name of each
Lender as the registered owner of the Loans held by such Lender.
A Registered Loan (and the Registered Note, if any, evidencing
the same) may be assigned or sold in whole or in part only by
registration of such assignment or sale on the Register (and each
Registered Note shall expressly so provide). Any assignment or
sale of all or part of such Registered Loan (and the Registered
Note, if any, evidencing the same) may be effected only by
registration of such assignment or sale on the Register, together
with the surrender of the Registered Note, if any, evidencing the
same duly endorsed by (or accompanied by a written instrument of
assignment or sale duly executed by) the holder of such
Registered Note, whereupon, at the request of the designated
assignee(s) or transferee(s), one or more new Registered Notes in
the same aggregate principal amount shall be issued to the
designated assignee(s) or transferee(s). Prior to the
registration of assignment or sale of any Registered Loan (and
the Registered Note, if any evidencing the same), Borrower shall
treat the Person in whose name such Loan (and the Registered
Note, if any, evidencing the same) is registered as the owner
thereof for the purpose of receiving all payments thereon and for
all other purposes, notwithstanding notice to the contrary.
(k) In the event that any Lender sells participations in the
Registered Loan, such Lender shall maintain a register on which
it enters the name of all participants in the Registered Loans
held by it (the "PARTICIPANT REGISTER"). A Registered Loan (and
the Registered Note, if any, evidencing the same) may be
participated in whole or in part only by registration of such
participation on the Participant Register (and each Registered
Note shall expressly so provide). Any participation of such
Registered Loan (and the Registered Note, if any, evidencing the
same) may be effected only by the registration of such
participation on the Participant Register.
14.7 INFORMATION.
The Agent and each Lender (each, a "Lending Party")
agrees to keep confidential any information furnished or made
available to it by the Borrower pursuant to this Credit Agreement
that is marked confidential; PROVIDED that nothing herein shall
prevent any Lending Party from disclosing such information (a) to
any other Lending Party or any affiliate of any Lending Party, or
any officer, director, employee, agent, or advisor of any Lending
Party or affiliate of any Lending Party, (b) to any other Person
if reasonably incidental to the administration of the credit
facility provided herein, (c) as required by any law, rule, or
regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency
or authority; provided, however, that, to the extent permitted by
law, the affected Lending Party shall provide prior written
notice to the Borrower of any such request or demand, (f) that
is or becomes available to the public or that is or becomes
available to any Lending Party other than as a result of a
disclosure by any Lending Party prohibited by this Credit
Agreement, (g) in connection with any litigation to which such
Lending Party or any of its affiliates may be a party, (h) to the
extent necessary in connection with the exercise of any remedy
under this Credit Agreement or any other Credit Document, (i)
subject to provisions substantially similar to those contained in
this SECTION 14.7, to any actual or proposed participant or
assignee and (j) to Gold Sheets and other similar bank trade
publications; such information to consist of deal terms and other
information approved by the Borrower and customarily found in
such publications.
14.8 PAYMENT OF EXPENSES; INDEMNIFICATION.
The Borrower agrees to pay, upon demand, all reasonable
out-of-pocket costs and expenses of (a) the Agent and each Lender
in connection with (i) the negotiation, preparation, execution
and delivery of this Credit Agreement and the other Credit
Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses
of special external counsel to the Agent and special external
counsel to the Lenders and the fees and expenses of special
external counsel for the Agent in connection with collateral
issues but excluding any amounts for services rendered by
internal counsel) and (ii) any amendment, waiver or consent
relating hereto and thereto including, without limitation, any
such amendments, waivers or consents resulting from or related to
any work-out, re-negotiation or restructure relating to the
performance by the Borrower under this Credit Agreement and (b)
the Agent and each Lender in connection with enforcement of the
Credit Documents and the documents and instruments referred to
therein, including but not limited to, any work-out, re
negotiation or restructure relating to the performance by the
Borrower under this Credit Agreement, including, without
limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel for the Agent and
each of the Lenders (including the allocated costs of internal
counsel). In addition, the Borrower agrees to pay, upon demand,
for the separate account of Agent, audit, appraisal, and
valuation fees and charges as follows: (i) a fee of $750 per day,
per auditor, plus out-of-pocket expenses for each financial audit
performed by personnel employed by Agent, (ii) if implemented, a
one time charge of $3,000 plus out-of-pocket expenses for
expenses for the establishment of electronic collateral reporting
systems, (iii) a fee of $1,500 per day per appraiser, plus out-of
pocket expenses, for each appraisal of the Collateral performed
by personnel employed by Agent, and (iv) the actual charges paid
or incurred by Agent if it elects to employ the services of one
or more third Persons to perform financial audits, to appraise
the Collateral, or any portion thereof, or to assess the
Borrower's (or any of its Subsidiaries') business valuation. The
Borrower shall indemnify, defend and hold harmless the Agent, the
Issuing Bank and each of the Lenders and their respective
directors, officers, agents, employees and counsel from and
against (x) any and all losses, claims, damages, liabilities,
deficiencies, judgments or expenses incurred by any of them
(except to the extent that it is finally judicially determined to
have resulted from their own gross negligence or willful
misconduct) arising out of or by reason of any litigation,
investigation, claim or proceeding which arises out of or is in
any way related to (i) this Credit Agreement, any Letter of
Credit or the transactions contemplated thereby, (ii) any actual
or proposed use by the Borrower of the proceeds of the Loans or
(iii) the Agent's, the Issuing Bank's or the Lenders' entering
into this Credit Agreement, the other Credit Documents or any
other agreements and documents relating hereto, including,
without limitation, amounts paid in settlement, court costs and
the fees and disbursements of counsel incurred in connection with
any such litigation, investigation, claim or proceeding or any
advice rendered in connection with any of the foregoing and (y)
any such losses, claims, damages, liabilities, deficiencies,
judgments or expenses incurred in connection with any remedial or
other action taken by the Borrower or any of the Lenders in
connection with compliance by the Borrower or any of its
Subsidiaries, or any of their respective properties, with any
federal, state or local environmental laws, acts, rules,
regulations, orders, directions, ordinances, criteria or
guidelines. If and to the extent that the obligations of the
Borrower hereunder are unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under
applicable law. The Borrower's obligations under this SECTION
14.8 shall survive any termination of this Credit Agreement and
the other Credit Documents and the payment in full of the
Obligations, and are in addition to, and not in substitution of,
any other of their Obligations set forth in this Credit
Agreement. In addition, the Borrower shall, upon demand, pay to
the Agent and any Lender all costs and expenses (including the
reasonable fees and disbursements of counsel and other
professionals) paid or incurred by the Agent, the Issuing Bank or
such Lender in (A) enforcing or defending its rights under or in
respect of this Credit Agreement, the other Credit Documents or
any other document or instrument now or hereafter executed and
delivered in connection herewith against the Borrower (or, in the
case of the Agent, against any Lender, except to the extent that
the claim or liability giving rise to such enforcement or defense
is finally judicially determined to have resulted from the
Agent's own gross negligence or willful misconduct), (B) in
collecting the Loans, (C) in foreclosing or otherwise collecting
upon the Collateral or any part thereof and (D) obtaining any
legal, accounting or other advice in connection with any of the
foregoing.
14.9 ENTIRE AGREEMENT, SUCCESSORS AND ASSIGNS.
This Credit Agreement along with the other Credit
Documents and the Fee Letter constitutes the entire agreement
among the Borrower, the Agent and the Lenders, supersedes any
prior agreements among them, and shall bind and benefit the
Borrower and the Lenders and their respective successors and
permitted assigns.
14.10 AMENDMENTS, ETC.
Neither the amendment or waiver of any provision of
this Credit Agreement or any other Credit Document, nor the
consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed
by the Required Lenders, or if the Lenders shall not be parties
thereto, by the parties thereto and consented to by the Required
Lenders, and each such amendment, waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; PROVIDED that no amendment, waiver or
consent shall unless in writing and signed by all the Lenders, do
any of the following: (a) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (b)
except as otherwise expressly provided in this Credit Agreement,
reduce the principal of, or interest on, any Note or any Letter
of Credit reimbursement obligations or any fees hereunder, (c)
postpone any date fixed for any payment or mandatory prepayment
in respect of principal of, or interest on, any Note or any
Letter of Credit reimbursement obligations or any fees hereunder,
(d) change the percentage of the Commitments, or any minimum
requirement necessary for the Lenders or the Required Lenders to
take any action hereunder, (e) amend or waive SECTION 2.8,
SECTION 2.9, SECTION 13.6 or this SECTION 14.10, or change the
definition of Required Lenders, (f) except as otherwise expressly
provided in this Credit Agreement, and other than in connection
with the financing, refinancing, sale or other disposition of any
asset of the Borrower permitted under this Credit Agreement,
release any Liens in favor of the Lenders on any material portion
of the Collateral, (g) except as expressly permitted hereunder,
increase the advance rates used to calculate the Revolving Credit
Borrowing Base or the terms used in the calculation thereof, or
(h) terminate, waive or modify any indemnification obligations of
the Borrower under the Credit Agreement or any other Credit
Document and, provided, further, that no amendment, waiver or
consent affecting the rights or duties of the Agent or the
Issuing Bank under any Credit Document shall in any event be
effective, unless in writing and signed by the Agent and/or the
Issuing Bank, as applicable, in addition to the Lenders required
hereinabove to take such action. Notwithstanding any of the
foregoing to the contrary, the consent of the Borrower shall not
be required for any amendment, modification or waiver of the
provisions of ARTICLE XIII (other than the provisions of
SECTION 13.9). In addition, the Borrower and the Lenders hereby
authorize the Agent to modify this Credit Agreement by
unilaterally amending or supplementing SCHEDULE 1.1A from time to
time in the manner requested by the Borrower, the Agent or any
Lender in order to reflect any assignments or transfers of the
Loans as provided for hereunder; provided, however, that the
Agent shall promptly deliver a copy of any such modification to
the Borrower and each Lender.
14.11 NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrower on the one hand
and the Lenders and the Agent on the other hand shall be solely
that of borrower and lender. Neither the Agent nor any Lender
shall have any fiduciary responsibilities to the Borrower.
Neither the Agent nor any Lender undertakes any responsibility to
the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or
operations.
14.12 INDEPENDENT NATURE OF LENDERS' RIGHTS.
The amounts payable at any time hereunder to each
Lender under such Lender's Note or Notes shall be a separate
and independent debt.
14.13 COUNTERPARTS.
This Credit Agreement may be executed in any number of
counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall
be an original, but all of which shall together constitute one
and the same instrument.
14.14 EFFECTIVENESS.
This Credit Agreement shall become effective on the
date on which all of the parties have signed a copy hereof
(whether the same or different copies) and shall have delivered
the same to the Agent pursuant to SECTION 14.5 or, in the case of
the Lenders, shall have given to the Agent written, telecopied or
telex notice (actually received) at such office that the same has
been signed and mailed to it.
14.15 SEVERABILITY.
In case any provision in or obligation under this
Credit Agreement or the Notes or the other Credit Documents
shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or
impaired thereby.
14.16 HEADINGS DESCRIPTIVE.
The headings of the several sections and subsections of
this Credit Agreement, and the Table of Contents, are inserted
for convenience only and shall not in any way affect the meaning
or construction of any provision of this Credit Agreement.
14.17 MAXIMUM RATE.
Notwithstanding anything to the contrary contained
elsewhere in this Credit Agreement or in any other Credit
Document, the Borrower, the Agent and the Lenders hereby agree
that all agreements among them under this Credit Agreement and
the other Credit Documents, whether now existing or hereafter
arising and whether written or oral, are expressly limited so
that in no contingency or event whatsoever shall the amount paid,
or agreed to be paid, to the Agent or any Lender for the use,
forbearance, or detention of the money loaned to the Borrower and
evidenced hereby or thereby or for the performance or payment of
any covenant or obligation contained herein or therein, exceed
the Highest Lawful Rate. If due to any circumstance whatsoever,
fulfillment of any provisions of this Credit Agreement or any of
the other Credit Documents at the time performance of such
provision shall be due shall exceed the Highest Lawful Rate,
then, automatically, the obligation to be fulfilled shall be
modified or reduced to the extent necessary to limit such
interest to the Highest Lawful Rate, and if from any such
circumstance any Lender should ever receive anything of value
deemed interest by applicable law which would exceed the Highest
Lawful Rate, such excessive interest shall be applied to the
reduction of the principal amount then outstanding hereunder or
on account of any other then outstanding Obligations and not to
the payment of interest, or if such excessive interest exceeds
the principal unpaid balance then outstanding hereunder and such
other then outstanding Obligations, such excess shall be refunded
to the Borrower. All sums paid or agreed to be paid to the Agent
or any Lender for the use, forbearance, or detention of the
Obligations and other indebtedness of the Borrower to the Agent
or any Lender shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread throughout the full
term of such indebtedness until payment in full so that the
actual rate of interest on account of all such indebtedness does
not exceed the Highest Lawful Rate throughout the entire term of
such indebtedness. The terms and provisions of this Section
shall control every other provision of this Credit Agreement and
all agreements among the Borrower, the Agent and the Lenders.
14.18 RIGHT OF SETOFF.
In addition to and not in limitation of all rights of
offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, if
any Event of Default has occurred and is continuing and whether
or not such Lender or such holder has made any demand or the
Obligations of the Borrower have matured, have the right to
appropriate and apply to the payment of the Obligations of the
Borrower all deposits (general or special, time or demand,
provisional or final) then or thereafter held by and other
indebtedness or property then or thereafter owing by such Lender
or other holder. Any amount received as a result of the exercise
of such rights shall be reallocated among the Lenders as set
forth in SECTION 3.8.
14.19 POWER OF ATTORNEY.
Each Subsidiary of the Borrower appoints the chief
accounting officer and any vice president of the Borrower, (each
of whom is a senior officer of the Borrower) to be its attorneys
("its Attorneys") and in its name and on its behalf and as its
act and deed or otherwise to sign all documents and carry out all
such acts as are necessary or appropriate in connection with
executing any Notice of Borrowing, any Revolving Credit Borrowing
Base Certificate or any security documents (the "Documents") in
connection with this Credit Agreement, PROVIDED that such
Documents are in substantially the form provided therefor in the
applicable exhibits thereto. This Power of Attorney shall be
valid for the duration of the term of this Credit Agreement.
Each Subsidiary of the Borrower hereby undertakes to ratify
everything which either of its Attorneys shall do in order to
execute the Documents mentioned herein.
IN WITNESS WHEREOF the parties hereto have caused this
Credit Agreement to be executed and delivered by their proper and
duly authorized officers as of the date set forth above.
BORROWER ▇▇▇▇▇▇▇▇ BRANDS, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and
Treasurer
AGENT AND LENDER FOOTHILL CAPITAL CORPORATION,
as Agent and as a Lender
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
LENDERS ABLECO FINANCE LLC
as a Lender
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Credit Officer
SCHEDULE 1.1A
LENDER COMMITMENT
Foothill Capital Corporation $50,000,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Portfolio Manager
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Ableco Finance LLC $70,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
| CH_DOCS\298659.13 [W97]|| Final Versaion