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EXHIBIT 2.1
FOURTH AMENDMENT AND CONSENT
Dated as of May 20, 1999
This AMENDMENT AND CONSENT among Del Monte Fresh Produce (UK) Ltd.
("Fresh U.K."), Wafer Limited ("Wafer"), Del Monte Fresh Produce International
Inc. ("Fresh International"), Del Monte Fresh Produce N.A., Inc. ("Fresh N.A.")
Fresh Del Monte Produce Inc. ("Fresh Produce"), Global Reefer Carriers, Ltd.
("Global; collectively with Fresh U.K., Wafer, Fresh International, Fresh N.A.
and Fresh Produce, the "Borrowers"), the banks, financial institutions and other
institutional lenders a party to the Credit Agreement referred to below (the
"Lenders"), the Initial Issuing Bank (as defined in the Credit Agreement), the
Swing Line Bank (as defined in the Credit Agreement) and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch, as
syndication agent, administrative agent and collateral agent (in its capacity as
administrative agent, the "Agent").
PRELIMINARY STATEMENTS. The Borrowers, the Agent, the Issuing Bank, the
Swing Line Bank and the Lenders have entered into a Revolving Credit Agreement
dated as of May 19, 1998 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"; the terms defined in the Credit Agreement
being used herein as therein defined). Each of the Borrowers, the Agent, the
Issuing Bank, the Swing Line Bank and the Lenders wish to amend the Credit
Agreement as hereinafter set forth.
NOW, THEREFORE, the Borrowers, the Agent, Issuing Bank, Swing Line Bank
and the Lenders hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, hereby amended as follows:
(a) Section 5.02(a)(vii) of the Credit Agreement is hereby amended by
deleting the amount "$10,000,000" appearing therein and substituting in lieu
thereof the amount "$20,000,000".
(b) Section 5.02(a) of the Credit Agreement is hereby amended by adding
the following clause (ix) at the end thereof:
"(ix) Liens securing Debt under Capitalized Leases for refrigeration
containers in an aggregate principal amount not to exceed $60,000,000."
(c) Section 5.02(b)(vi) of the Credit Agreement is hereby amended by
deleting the words "or 5.02(a)(vii)" and substituting in lieu thereof the words
", 5.02(a)(vii) or 5.02(a)(ix)".
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SECTION 2. CONSENT TO INCREASE OF COMMITMENTS. The Lenders hereby
consent to increasing the Total Commitment from $378,250,000 to an amount not to
exceed $450,000,000 (the "Commitment Increase"). The Lenders hereby authorize
the Agent to execute on their behalf any amendments and other documentation the
Agent reasonably determines to be necessary in connection with the Commitment
Increase (the "Increase Documentation"); it being expressly understood that no
Lender shall be obligated to increase its Commitment and that no increase in the
Commitment of any Lender shall be effective unless such Lender has executed the
Increase Documentation.
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective when, and only when, the Agent shall have received, in form and
substance satisfactory to the Agent:
(a) counterparts of this Amendment executed by each Borrower and each
Lender;
(b) consents duly executed by each Guarantor in the form of Exhibit A
hereto; and
(c) an amendment fee in the amount of $194,500, for the ratable account
of the Lenders.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The
Borrowers represent and warrant as follows:
(a) The representations and warranties contained in Section 4.01 of the
Credit Agreement, are true and correct on and as of the date hereof as though
made on and as of the date hereof, other than such representations and
warranties that, by their terms, refer to a date other than the date of this
Amendment or a Borrowing; provided that such representation and warranty shall
be deemed to be updated by such information relating to the matters described
therein as and to the extent that Fresh Produce or the relevant Borrower shall
have furnished such information in writing to the Administrative Agent.
(b) The execution, delivery and performance by the Borrowers of this
Amendment, and the Credit Agreement, as amended hereby, are within each
Borrowers' powers, have been duly authorized by all necessary action and do not
contravene (i) any Borrower's charter or by-laws, or equivalent governing
documentation, as applicable, or (ii) any law or contractual restriction binding
on or affecting any Borrower, or result in, or require, the creation of any
lien, security interest or other charge or encumbrance upon or with respect to
any of its properties.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by any Borrower of this Amendment or the
Credit Agreement, as amended hereby.
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(d) This Amendment and the Credit Agreement, as amended hereby,
constitute, legal, valid and binding obligations of the Borrowers enforceable
against the Borrowers in accordance with their respective terms, subject,
however, to the effect on such enforceability of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless whether such
enforceability is considered in a proceeding in equity or at law).
(e) No event has occurred and is continuing which constitutes an Event
of Default or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
SECTION 5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. (a) Upon
the effectiveness of Section 1 hereof, on and after the date hereof, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import shall mean and be a reference to the Credit
Agreement as amended hereby, and each reference in the Notes and the other Loan
Documents to the Credit Agreement shall mean and be a reference to the Credit
Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and the
Notes shall remain in full force and effect and are hereby ratified and
confirmed in all respects.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders under the Credit Agreement, nor constitute a
waiver of any provision of the Credit Agreement.
SECTION 6. COSTS, EXPENSES AND TAXES. The Borrowers agrees, jointly and
severally, to pay on demand all costs and expenses of the Agent in connection
with the preparation, execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and all costs and expenses, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent, with respect to advising the Agent as to its rights and responsibilities
hereunder and thereunder thereto (such costs and expenses not to exceed $5,000).
In addition, the Borrowers agree, jointly and severally, to pay any and all
stamp and other taxes payable or determined to be payable in connection with the
execution and delivery of this Amendment and the other instruments and documents
to be delivered hereunder, and agrees to save the Agent and the Lenders harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
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SECTION 8. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws (without giving effect to the conflicts
of laws principles thereof) of the State of New York.
SECTION 9. FINAL AGREEMENT. This Amendment represents the final
agreement between the Borrowers, the Agent and the Lenders as to the subject
matter hereof and may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWERS:
DEL MONTE FRESH PRODUCE (UK)
LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
WAFER LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
DEL MONTE FRESH PRODUCE
INTERNATIONAL INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
DEL MONTE FRESH PRODUCE N.A., INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
FRESH DEL MONTE PRODUCE INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
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GLOBAL REEFER CARRIERS LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
LENDERS:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as
Agent and as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Title Vice President
---------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title Managing Director
---------------------------------
CHRISTIANIA BANK
OG KREDITKASSE ASA, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title Senior Vice President
----------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ Svendban
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Title Senior Vice President
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FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title Senior Vice President
---------------------------------
UNION BANK OF CALIFORNIA, N.A.
By: /s/
-----------------------------------
Title
---------------------------------
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ABN AMRO BANK N.V. NEW YORK BRANCH
By: /s/
-----------------------------------
Title
---------------------------------
BANQUE FRANCAISE DE L'ORIENT
By: /s/
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Title
---------------------------------
NATIONSBANK N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title Vice President
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WACHOVIA BANK
By: /s/
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Title
---------------------------------
AGFIRST FARM CREDIT BANK
By: /s/
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Title
---------------------------------
THE FUJI BANK, LIMITED
By: /s/
-----------------------------------
Title
---------------------------------
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DEUTSCHE FINANCIAL SERVICES
By: /s/
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Title
------------------------------------
BARCLAYS BANK, PLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Title Associate Director & Vice President
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▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/
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Title
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BANQUE NATIONALE DE PARIS
By: /s/
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Title
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SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/
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Title
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EXHIBIT A
CONSENT
Dated as of May __, 1999
The undersigned, as Guarantor under its respective Guaranty dated as of
May 19, 1998 (with respect to each such Guarantor, its "Guaranty") in favor of
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH, hereby consents to the foregoing amendment dated as of the date
hereof and hereby confirms and agrees that its Guaranty is, and shall continue
to be, in full force and effect and is hereby ratified and confirmed in all
respects except that, upon the effectiveness of, and on and after the date of,
the said amendment, all references in its Guaranty to the Credit Agreement
referred to in the said amendment, "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean the Credit Agreement as
amended by the said amendment.
DEL MONTE FRESH PRODUCE (UK) LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
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WAFER LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
DEL MONTE FRESH PRODUCE INTERNATIONAL INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
---------------------------------
DEL MONTE FRESH PRODUCE N.A., INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
▇-▇
▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ PRODUCE INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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GLOBAL REEFER CARRIERS LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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FRESH DEL MONTE PRODUCE, N.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title
---------------------------------
DEL MONTE FRESH PRODUCE B.V
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
---------------------------------
DEL MONTE FRESH PRODUCE (ASIA-PACIFIC) LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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CLAVERTON LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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▇-▇
▇▇
▇▇▇ ▇▇▇▇▇ BVI LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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COMPANIA DE DESARROLLO BANANERO DE
GUATAMALA, S.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
---------------------------------
DEL MONTE FRESH PRODUCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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FDM HOLDINGS LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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CORPORACION DE DESSARROLLO BANANERO DE
COSTA RICA, S.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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CORPORACION DE DESSARROLLO AGRICOLA DEL
MONTE, S.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title
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