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EXHIBIT 4.17
EIGHT AMENDMENT
Dated as of October 29, 1999
This EIGHT AMENDMENT 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 appearing on the signature pages hereto
(the "Increasing Lenders") and Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch, as agent (in such capacity, the
"Agent") for the other banks, financial institutions and other institutional
lenders a party to the Credit Agreement referred to below (the "Lenders").
PRELIMINARY STATEMENTS. The Borrowers, the Agent 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 Initial 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 and the Lenders hereby agree as
follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Section 5.02(g) of the Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2 hereof, hereby amended and
restated as follows:
"(g) Dividends, Etc. It will not, nor will it permit any of its Subsidiaries to
declare or pay any dividends, purchase, redeem, retire, defease or otherwise
acquire for value any of its capital stock (or the equivalent thereof) or any
warrants, rights or options to acquire such capital stock (or the equivalent
thereof), now or hereafter outstanding, return any capital to its stockholders
as such, make any distribution of assets, capital stock (or the equivalent
thereof), warrants, rights, options, obligations or securities to its
stockholders as such, except that Fresh Produce may declare and pay dividends
and distributions payable in common stock (or the equivalent thereof) and so
long as no Default shall have occurred and be continuing at the time of any
action described in clause (A) (B) or (C) below or would result therefrom, (A)
Fresh Produce may declare and pay dividends and distributions payable in cash
solely out of and up to 50% of net income of Fresh Produce (computed on a
non-cumulative, Consolidated basis in accordance with GAAP) for the fiscal year
immediately preceding the year in which such dividend or distribution is paid,
(B) any direct or indirect Subsidiary of a Borrower may (i) declare and pay cash
dividends to such Borrower and (ii) declare and pay cash dividends to any other
Wholly-Owned Subsidiary of a Borrower of which it is a direct or indirect
Subsidiary, (C) Fresh Produce may repurchase its own capital stock in an
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aggregate amount not to exceed $25,000,000 and (D) any subsidiary which is not a
Wholly-Owned Subsidiary may declare and pay cash dividends consistent with past
practices.
SECTION 2. 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, the Agent and
each Increasing Lender;
(b) a consent duly executed by each Guarantor in form of Exhibit A hereto;
and
SECTION 3. 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
thought made on and as of the date hereof, other that 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, 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 of the Credit Agreement, as amended hereby.
(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 4. 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.
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(c) 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.
(d) 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 5. COSTS, EXPENSES AND TAXES. The Borrowers agree, 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 with respect to advising the Agent as to its
rights and responsibilities hereunder and thereunder. 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 6. 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.
SECTION 7. 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 8 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 duty authorized, as of the date first
above written.
BORROWERS: DEL MONTE FRESH PRODUCE (UK) LTD., as Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
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DEL MONTE FRESH PRODUCE, NA. INC.,
as Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President and Chief
Financial Officer
WAFER LIMITED, as Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
DEL MONTE FRESH PRODUCE INTERNATIONAL INC.,
as Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
FRESH DEL MONTE PRODUCE INC., as Borrower
GLOBAL REEFER CARRIERS, LTD., as Borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President and Chief
Financial Officer
ADMINISTRATIVE AGENT: COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "Rabobank
Nederland", New York Branch, as Administrative
Agent, Collateral Agent and Lender
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
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Title: Vice President
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LENDERS:
ABN AMRO BANK N.V. NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. SPURGA
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Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
AGFIRST FARM CREDIT BANK
By: /s/
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Title: Senior Vice President
ARTESIA BANK LUXEMBOURG
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Title: General Manager
By:
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Title:
BANQUE ARTESIA NEDERLAND N.V.
By: /s/ HDR FLEDDERNS
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Title: Senior Vice President - Finance
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BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
BANQUE FRANCAISE DE L'ORIENT
By: /s/ N. L ▇▇▇▇
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Title: Vice President
By:
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Title:
BANQUE NATIONALE DE PARIS, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ DU BOCAGE
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Title: Executive Vice President and General Manager
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE ASA,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior Vice President
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DEUTSCHE FINANCIAL SERVICES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
FARM CREDIT BANK OF WICHITA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Assistant Vice President
FARM CREDIT SERVICES OF AMERICA, FLCA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President Commercial Lender
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/
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Title: Vice President
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SUNTRUST BANK
By: /s/
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Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ HAGOD V. JAZMADARIAN
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Title: Vice President
U.S. BANCORP AG CREDIT, INC.
By: /s/
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Title: Vice President
WACHOVIA BANK N.A.
By: /s/
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Title: Vice President
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