Exhibit 10-b
$187,100,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 27, 2003
Among
▇▇▇▇▇▇▇▇ BRANDS, INC.
and ATCON FINANZ, INC.
as Borrowers,
EACH OF THE LENDERS
INITIALLY A SIGNATORY HERETO,
TOGETHER WITH THOSE ASSIGNEES
PURSUANT TO SECTION 14.6 HEREOF,
as Lenders,
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Lead Arranger and Syndication Agent
and
FOOTHILL CAPITAL CORPORATION,
as Administrative Agent
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into
as of March 27, 2003 among ▇▇▇▇▇▇▇▇ BRANDS, INC., a Delaware corporation
("CBI"), Atcon Finanz, Inc., a Delaware corporation ("Atcon") (each of CBI and
Atcon being a "Borrower" and collectively the "Borrowers"), 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"), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION ("▇▇▇▇▇
Fargo"), acting as lead arranger and syndication agent, and FOOTHILL CAPITAL
CORPORATION ("Foothill"), acting 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, CBI, the Lender (as defined therein) and the Agent
entered into that certain Amended and Restated Credit Agreement dated as of
March 6, 2002 (as amended or otherwise modified to date, the "Amended and
Restated Credit Agreement") which amended and restated that certain Credit
Agreement dated as of March 7, 2001 (the "Original Credit Agreement") pursuant
to which (i) the Lenders have made a term loan facility available to CBI having
a current aggregate principal outstanding amount of $50,100,000 maturing on June
7, 2004 and (ii) the Lenders have provided a revolving credit facility
(including letter of credit subfacility) to CBI in an aggregate principal
amount, after giving effect to reductions made through the date hereof, not to
exceed $122,100,000 at any time outstanding;
WHEREAS, the Borrowers desire that the Lenders increase the
principal amount of credit available to the Borrowers to $187,100,000 by adding
a new term loan in the principal amount of $65,000,000 to be provided to Atcon
to fund the German Financing (as defined herein), and the Lenders are willing to
provide the Borrowers with Loans in such amounts upon the terms and conditions
set forth herein;
WHEREAS, the Borrowers and each Secured Credit Party desire to
secure all of the obligations under the Credit Documents by providing a security
interest and lien on all of Atcon's personal property (to secure the obligations
of Atcon) and by continuing the prior grant of a security interest in and lien
upon all of CBI's and each Secured Credit Party's existing and after-acquired
personal property to the Agent, all for the benefit of the Agent and the
Lenders; and
WHEREAS, the Borrowers, the Lenders and the Agent now desire to
amend and restate the Amended and Restated Credit Agreement to, among other
things, accomplish the matters set forth above on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, the Borrowers, 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.
"Account Designation Letter" shall mean a letter in the form of
Exhibit I attached hereto.
"Accounts" shall mean all of CBI'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 CBI's sales of goods or rendition of services
made under any of CBI's trade names or styles, or through any of CBI'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 CBI with respect to any such accounts receivable or account debtors; (v)
supporting obligations (including 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 CBI'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
CBI or any Subsidiary and (B) to the collateral assignment by CBI 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 CBI 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.
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"Affiliate" shall mean any entity which directly or indirectly
controls, is controlled by, or is under common control with, CBI or any
Subsidiary of CBI. 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 Agent under the Amended and
Restated Credit Agreement and as provided in the preamble to this Credit
Agreement or any successor to Foothill.
"Agent Bank Account" shall have the meaning given to such term in
Section 7.18(a).
"Agent's Fees" shall mean the fees payable by CBI and Atcon to the
Agent as described in the Fee Letter.
"Aggregate Required Lenders" shall mean, at any time, (a) if the
Existing Commitments have not been terminated, Lenders holding at least
sixty-six and two-thirds percent (66 2/3%) of the sum of the Existing
Commitments and the outstanding Term B Loans or (b) if the Existing Commitments
have been terminated, Lenders holding at least sixty-six and two-thirds percent
(66 2/3%) of the sum of the outstanding Loans and the outstanding Letter of
Credit Obligations and participation interests (including the participation
interests of the Issuing Bank in any Letters of Credit); provided, however, that
such Lenders must be in compliance with their obligations hereunder (as
determined by the Agent).
"Aggregation Date" shall have the meaning given to such term in
Section 9.3.
"Allocated CBII Overhead" shall mean the following overhead and
disbursements of CBII, but only to the extent that they are allocated to CBI 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 and principal, interest and other fees related to any Indebtedness.
"Amended and Restated Credit Agreement" shall have the meaning
given to such term in the recitals to this Credit Agreement.
"Applicable Prepayment Premium" means, as of any date of
determination, an amount equal to one-tenth of one percent (0.1%) of the Maximum
Credit Line as of the Closing Date for each full or partial month remaining from
the date of payment until the Maturity Date. In the event of an early
termination of this Credit 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 sum of the Existing Commitments and the outstanding Term B
Loans which are held by those Lenders that participate in the Qualified
Refinancing divided by the sum of all Existing Commitments and all outstanding
Term B Loans, and the amount of such Applicable
3
Prepayment Premium (as so reduced) shall be allocated to the Lenders not
participating in such replacement credit facility.
"Appraisal" shall mean (i) that certain Trademarks and Tradenames
Valuation dated March 27, 2002 performed by ▇▇▇▇▇-▇▇▇▇▇▇ Appraisal Corporation
relating to ▇▇▇▇▇▇▇▇ Brands International, Inc. or (ii) after the receipt by the
Lenders of a new or updated valuation appraisal, such new or updated appraisal.
"Asset Disposition" shall mean the disposition (other than (i) a
disposition described in clauses (a), (b), (c), (g), (j) or (k) of Section 9.3,
(ii) a disposition described in clause (d) of Section 9.3 to the extent that Net
Cash Proceeds are reinvested or used as set forth therein, (iii) Specified Asset
Dispositions, (iv) a disposition described in clauses (h) or (i) of Section 9.3
to the extent that Net Cash Proceeds are reinvested or used as set forth
therein, and (v) any disposition of intellectual property rights pursuant to the
Trademark License Agreement) of any or all of the assets (including, without
limitation, the Capital Stock of CBI or its Subsidiaries) of CBI 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 Original 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.
"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(g), in the form attached hereto as
Exhibit B.
"Atcon" shall have the meaning given to such term in the preamble
of this Credit Agreement.
"Atlanta" shall mean ATLANTA Aktiengesellschaft.
"Availability" shall mean an amount equal to the difference of (i)
the Revolving Credit Borrowing Base minus (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 CBI and the other Credit
Parties (other than members of the ▇▇▇▇▇▇▇▇ Fresh German Group) 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 CBI or another Subsidiary (other than an Excluded
Entity) owns a one hundred percent (100%) participation interest.
"Base LIBOR Rate" means the rate per annum, determined by the
Agent in accordance with its customary procedures, and utilizing such electronic
or other quotation sources as it considers appropriate (rounded upwards, if
necessary, to the next 1/16%), based on the rates at which Dollar deposits are
offered to major banks in the London interbank market on or about 11:00 a.m.
(California time) two (2) Business Days prior to the commencement of the
applicable Interest Period, for a term and in amounts comparable to the Interest
Period and
4
amount of the LIBOR Rate Loan requested by CBI in accordance with
this Credit Agreement, which determination shall be conclusive in the absence of
manifest error.
"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
CBI, any Subsidiary of CBI 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" and "Borrowers" shall have the meaning given to such
terms in the preamble of this Credit Agreement.
"Borrower Entities" shall mean each Borrower, each Guarantor and
each Subsidiary which is party to one or more Credit Documents.
"Borrower Register" shall have the meaning given to such term in
Section 14.6(k).
"Bring Down Date" shall have the meaning given to such term in the
introductory paragraph to Article VI.
"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, except that, if a determination of a
Business Day shall relate to a LIBOR Rate Loan, the term "Business Day" also
shall exclude any day on which banks are closed for dealings in Dollar deposits
in the London interbank market.
"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
5
$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.
"CBI" shall have the meaning given to such term in the preamble of
this Credit Agreement.
"CBI Guarantee" shall mean that certain Guarantee dated as of the
Closing Date made by CBI in favor of the Agent.
"CBI Maximum Credit Line" shall mean $122,100,000 as such amount
may be reduced from time to time pursuant to and in accordance with Section 2.3
and Section 13.12.
"CBII" shall mean ▇▇▇▇▇▇▇▇ Brands International, Inc., a New
Jersey corporation.
"Change of Control" shall mean the occurrence of any of the
following: (i) 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"), (ii) at any
time a majority of CBII's directors then in office consists of individuals who
meet none of the following criteria: (A) such individuals are members of CBII's
board of directors as of the date of this Credit Agreement; (B) such individuals
were members of CBII's board of directors as of the date twelve months earlier
than the date of determination; (C) such individuals are CBII directors
appointed to replace any CBII directors who died, became disabled, or
voluntarily resigned; (D) such individuals are CBII directors who were approved
by a vote of a majority of CBII directors who meet any of the criteria in (A),
(B), (C), or (E) or who were previously appointed or elected in accordance with
(D) or (E); or (E) such individuals are CBII directors whose nomination for
election by CBII shareholders was approved by a vote of a majority of CBII
directors who meet any of the criteria in (A), (B), (C), or (D) or who were
previously appointed or elected in accordance with (D) or (E), (iii) CBII ceases
to own, directly or indirectly, one hundred percent (100%) of the issued and
6
outstanding Capital Stock of CBI, or (iv) CBI ceases to own directly or
indirectly one hundred percent (100%) of the issued and outstanding Capital
Stock of Atcon, Euro Sub, Atlanta, Hameico GmbH or any Secured Credit Party
(other than CBI) or ▇▇▇▇▇▇▇▇ Banana Company B.V., a Netherlands company.
"▇▇▇▇▇▇▇▇ Fresh European Group" shall mean the following Persons
and their Subsidiaries (other than members of the ▇▇▇▇▇▇▇▇ Fresh German Group):
. Banafruta-Comercio de Bananas, LDA
. ▇▇▇▇▇▇▇▇ Banana Company, B.V.
. ▇▇▇▇▇▇▇▇ Ceroz, s.r.o.
. ▇▇▇▇▇▇▇▇ Compagnie des Bananes
. ▇▇▇▇▇▇▇▇ CR, S.r.o.
. ▇▇▇▇▇▇▇▇ Far East Holdings B.V.
. ▇▇▇▇▇▇▇▇ Finland Oy
. ▇▇▇▇▇▇▇▇ Fresh B.V.B.A.
. ▇▇▇▇▇▇▇▇ Frupac B.V.
. ▇▇▇▇▇▇▇▇ International Services Group N.V.
. ▇▇▇▇▇▇▇▇ Italia, S.p.A.
. ▇▇▇▇▇▇▇▇ Tropical Fruit Company B.V.
. International Banana Ripening Company N.V.
. Meneu Distribucion S.A.
. Processed Fruit Ingredients B.V.
. ▇▇▇▇▇▇ N.V.
"▇▇▇▇▇▇▇▇ Fresh German Group" shall mean the following Persons and
their Subsidiaries:
. "Atlanta" Handelsgesellschaft Harder & Co GmbH
. ▇. ▇▇▇▇▇▇▇ Fruchtagentur GmbH
. ▇. ▇▇▇▇▇▇▇ Italia S.R.L.
. Agenfruits S.A.
. Amhof Frucht GmbH
. ATABEL
. ATACRET s.r.l.
. Atcon
. ATLANTA Aktiengesellschaft
. Atlanta Austria Fruchthandel AG
. Atlanta Brasil LTDA
. Atlanta Bratislava
. Atlanta Budweis
. Atlanta Bulgaria GmbH
. Atlanta Fruchtagentur GmbH
. Atlanta Fruit Trade GmbH
. Atlanta Fruit Trade Kft Hungary
. Atlanta Kalisza Sp.z.o.o.
. Atlanta Pannonia Produktionsund Handelsges mbH
. Atlanta PL GmbH
. Atlanta Prag Immobilien, sr.o.
7
. Atlanta Praha, Spol. Sr.o.
. Atlanta Spol.sr.o.
. Atlanta World Trade GmbH
. Atlantis Transportversicherung AG
. August ▇▇▇▇▇▇▇ GmbH & Co. KG
. BFG Bremische Finanz-beteiligungs-GmbH & Co. KG
. ▇▇▇▇▇▇ Beteiligungs-GmbH
. Bratlanta B.V.
. BT Bau + Technik GmbH
. Direct Fruit Marketing DFM GmbH
. F. August ▇▇▇▇▇▇▇ Beteiligungs-GmbH
. Fruchthandel Gesellschaft Scipio & ▇▇▇▇▇▇▇ mbH
. Fruchtunion ▇▇▇▇▇▇ GmbH & Co. KG
. Fruchtunion Duisburg GmbH
. FRUCHTUNION Grobhandel mit Nahrungs-und GenuBmittel Ges.mbh
. Fruchtunion Hamburg GmbH
. Fruit2 Trade AG
. FRUTERA Fruchthandel Cottbus GmbH
. Fruttexport S.r.l.
. FSB Frigo Service Bremen GmbH
. "Gemos" Assekuranz Kontor GmbH & ▇▇.▇▇
. Habeco Bananenvertrieb GmbH
. Habeco-Fruchthandel GmbH
. Hameico Bananenvertrieb Stuttgart GmbH
. Hameico Berlin GmbH
. Hameico Bremen GmbH
. Hameico Dortmund GmbH
. Hameico Frankfurt GmbH
. Hameico Fruchthandel GmbH
. Hameico Fruchthandels-gesellschaft mbH
. "Hameico" Fruit Trade GmbH
. Hameico Hannover GmbH
. Hameico Koln GmbH
. Hameico Neunkirchen GmbH
. Hameico Nurnberg GmbH
. Harwes GmbH
. Heuer Internationale Speditions-Gesellschaft Hamburg mbH
. Heuer Internationale Speditions-Gesellschaft mbH & Co. KG
. Italimex S.r.l.
. ▇▇▇. ▇▇▇▇▇▇▇ Ges.m.b.H.
. ▇▇▇▇▇▇▇ Immobilien GmbH
. Leipzig-▇▇▇▇▇▇ ▇▇▇▇▇▇-GmbH
. Meneu Export S.A.
. Olfko Fruchthandel GmbH Regensburg
. ▇▇▇▇ Fruchthandelsgesellschaft Westerland mbH
. Port & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇
▇
. ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇) GmbH, Bremerhaven
. Profil Werbe & Verlagsgesellschaft mbH
. S.A. Ets. ▇▇▇▇ ▇▇ ▇▇▇▇
. S.I.E.F.a.r.l.
. Schiffahrts-und Speditions-Gesellschaft ▇▇▇▇▇ & Co. GmbH
. Scipio GmbH & Co.
. Scipio Immobilien GmbH & ▇▇.▇▇
. Scipio Nederland B.V.
. T. Port (GmbH & Co.)
. Uniata Union Atlantica Hortofruticola Import - Export S.L.
. Zentralreiferei Bremerhaven GmbH
"▇▇▇▇▇▇▇▇ Fresh Latin American Group" shall mean the following Persons
and their 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
. Baninc Establishment
. Blue Fish Holdings Establishment/CILPAC Establishment and
their Subsidiaries (excluding ▇▇▇▇▇▇ Holdings, Ltd. and its
Subsidiaries)
. Catellia Ltd./Tropical Traders Ltd. and their Subsidiaries
. ▇▇▇▇▇▇▇▇ International Services Group N.V./Banexpro
Ltd./Brundicorpi S.A. and their Subsidiaries
. Compania Agricola San Nicolas, S.A. and its Subsidiaries
. Compania ▇▇ ▇▇▇▇, ▇.▇.
. Compania Mundimar, S.A.
. Conexpro Inc. Establishment and its Subsidiaries
. Financiera Agricola Limited
. Financiera Agro-Exportaciones Limitada
. Financiera Bananera Limitada
. Financiera ▇▇▇▇▇▇▇▇ Limited
. 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
. Western Commercial International Ltd.
"CIL" shall mean ▇▇▇▇▇▇▇▇ International Limited, a Bermuda
company.
"Citrus" shall mean ▇▇▇▇▇▇▇▇ Gulf Citrus, Inc., a Delaware
corporation.
9
"Closing" shall mean the date on which the conditions set forth in
Section 5.2 of this Credit Agreement have been satisfied or waived.
"Closing Date" shall mean the time at which the Closing occurs,
which time shall occur not later than March 31, 2003.
"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 any or all
of the Obligations, or any portion thereof, 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).
"Consolidated" or "consolidated" with reference to any term
defined herein, shall mean that term as applied to the accounts of CBI 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 CBI 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 CBI 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 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 CBI and its Subsidiaries (other than CPF and its
Subsidiaries) for such period plus (v) the amount of all non-cash adjustments
resulting from fresh start accounting to the extent such amounts were deducted
in determining Consolidated Net Income.
"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, plus (iv) amounts advanced or distributed by CBI or any
Subsidiary to CBII to enable it to pay interest on CBII's Indebtedness.
10
"Consolidated Funded Debt" shall mean, as of the date of
determination, all Funded Indebtedness of CBI 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 CBI 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 CBI 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 or (ii) principal payments with respect to
Indebtedness of Indian River so long as such Indebtedness is not GAAP
Indebtedness of CBI 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 either 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 Second Amended and Restated
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
Fee Letter, the Security Documents, the Guarantees, the Post-Closing Agreement,
the Covenant Compliance Agreement, the German Financing Documents 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.
11
"Credit Parties" shall mean the Borrowers and the Guarantors.
"CTP" shall mean ▇▇▇▇▇▇▇▇ Tropical Products Company, a Delaware
corporation.
"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).
"Documents" shall have the meaning given to such term in Section
14.19.
"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 CBI'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 CBI 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 CBI then outstanding, to the extent of such excess; or
(v) (A) the account debtor is also a creditor of CBI, to the
extent of the amount owed by CBI 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
CBI, 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
12
(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 CBI 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 CBI from CBII or any
Affiliate of CBI;
(xiii) the Account did not arise from the sale of bananas or
plantains for which ▇▇▇▇▇▇▇▇ Brands Company, North America or ▇▇▇▇▇▇▇▇ (Canada)
Inc. acted as CBI'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 CBI 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 CBI has complied to Agent's satisfaction); or
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(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 CBI shall request and that the Agent approves in
advance, in writing and in its reasonable judgment.
"Equity Issuance" shall mean any issuance by CBI or any of its
Subsidiaries to any Person other than to CBI or any of its Subsidiaries or any
direct or indirect parent of CBI 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 CBI or any Subsidiary
of CBI; (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 CBI or any Subsidiary of CBI; and
(iii) member of the same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as CBI or any Subsidiary of CBI, any
corporation described in clause (i) above, or any partnership or trade or
business described in clause (ii) above.
"Euro Sub" shall mean Scipio Immobilien GmbH & Co. KG.
"Event of Default" shall have the meaning provided for in Article
XI.
"Excluded Entities" shall mean CPF and its Subsidiaries, Frupac
and its Subsidiaries, GWF and its Subsidiaries and Citrus.
"Excluded Taxes" shall have the meaning given to such term in
Section 2.7.
"Exempt Assignment" shall have the meaning given to such term in
Section 14.6(c).
"Existing Commitment" of any Lender means the amount set forth
opposite such Lender's name as its "Existing Commitment" 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.
"Existing Lender" shall mean each of the Lenders with an Existing
Commitment of greater than zero and their respective successors and assigns.
"Existing Letters of Credit" shall mean those letters of credit
listed on Schedule 1.1B hereto.
"Existing Loans" shall mean the Revolving Loans and the Original
Term Loans.
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"Existing 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 sum of all Existing Commitments or (ii) if all the Existing
Commitments have been terminated, the outstanding Original Term Loans, Revolving
Loans and participation interests (including the participation interests of the
Issuing Bank in any Letters of Credit).
"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 second amended and restated letter
agreement, dated as of the date hereof, among the Agent, Atcon and CBI regarding
the fees to be paid by CBI and Atcon to the Agent, as amended, restated,
supplemented or otherwise modified from time to time.
"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" shall have the meaning given to such term in the
preamble of this Credit Agreement.
"Foreign Currency Exchange Agreement" shall mean any foreign
currency exchange agreement, hedging agreement, cap, collar or similar agreement
entered into between one or more Credit Parties and any Lender or an affiliate
of any Lender.
"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
15
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.
"Funding Losses" shall have the meaning given to such term in
Section 4.8(b)(ii).
"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.
"German Acquisition" shall mean the transactions described on
Schedule 1.1F.
"German Collateral" shall mean any and all assets and rights and
interests in or to property pledged by one or more members of the ▇▇▇▇▇▇▇▇ Fresh
German Group from time to time as security for any or all of the obligations
owing in respect of any or all of the German Financing.
"German Financing" shall mean the Term B Loans and the loans
evidenced by the German Notes.
"German Financing Documents" shall mean the German Notes, the
German Pledge Agreements, and each other pledge agreement, security agreement,
mortgage or other document, instrument or agreement pursuant to which one or
more Persons ▇▇▇▇▇ ▇ ▇▇▇▇ on any or all of their assets to secure any or all of
the German Financing.
"German Notes" shall mean (i) that certain promissory note dated
the Closing Date made by Euro Sub to Atcon in the original principal amount of
$65,000,000 and (ii) that certain promissory note dated the Closing Date made by
Atlanta to Euro Sub in the original principal amount of $65,000,000.
"German Pledge Agreements" shall mean each pledge agreement or
similar agreement pursuant to which the equity, membership interests or
partnership interests, or the equivalent thereof, of any Person (other than
Atcon) that is, now or in the future, a member of the ▇▇▇▇▇▇▇▇ Fresh German
Group is pledged to secure any or all of the German Financing.
"Government Acts" shall have the meaning given to such term in
Section 3.8(a).
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"Governmental Authority" shall mean any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantees" shall mean the CBI Guarantee, those certain
Guarantees dated as of the Original Closing Date 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 or any portion thereof.
"Guarantors" shall mean CBI in its capacity as a guarantor of
Acton's obligations, each of those Persons listed on Schedule 6.9 hereto as a
Guarantor, each of those Persons that executes a Joinder Agreement to a
Guarantee after the Closing Date and each other Person which unconditionally
guarantees any or all of the Obligations.
"GWF" shall mean Great White Fleet Ltd., a Bermuda company.
"Hameico" shall have the meaning given to such term in Section
6.6.
"Hedging Agreements" 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.
"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
17
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 CBI, 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.
"Insurance Premium Block" shall mean a block on Availability
pursuant to Section 2.1 hereof that is instituted at any time when the sum of
(i) Availability plus (ii) CBI's and its Subsidiaries' (other than any Excluded
Entity's) unrestricted cash and Cash Equivalents, is less than $20,000,000. Such
Insurance Premium Block shall, as of any date of determination, be in an amount
equal to the lesser of (i) the Indebtedness then outstanding and permitted
pursuant to clause (d)(xiv) of the defined term "Permitted Indebtedness," or
(ii) the amount of the insurance premium that would be payable for 90 days of
the insurance policy for which the premium was financed as permitted pursuant to
clause (d)(xiv) of the defined term "Permitted Indebtedness."
"Interest Period" means, with respect to each LIBOR Rate Loan, a
period commencing on the date of the making of such LIBOR Rate Loan and ending
1, 2, or 3 months thereafter; provided, however, that (a) if any Interest Period
would end on a day that is not a Business Day, such Interest Period shall be
extended (subject to clauses (c)-(e) below) to the next succeeding Business Day,
(b) interest shall accrue at the applicable rate based upon the LIBOR Rate from
and including the first day of each Interest Period to, but excluding, the day
on which any Interest Period expires, (c) any Interest Period that would end on
a day that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in
18
another calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (d) with respect to an Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period), the Interest Period shall end on the last Business Day of the calendar
month that is 1, 2, or 3 months after the date on which the Interest Period
began, as applicable, and (e) CBI may not elect an Interest Period which will
end after the Maturity Date.
"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 CBI and any Lender or any affiliate of a Lender.
"Internal Revenue Service" 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 CBI's inventory, including without
limitation, (i) all raw materials, work in process, parts, components,
assemblies, supplies and materials used or consumed in CBI'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 CBI.
"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 CBI 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
19
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
CBI.
"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 CBI 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 CBI 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 CBI and its Subsidiaries (other than CPF and
its Subsidiaries) on that date to (ii) Consolidated EBITDA for the four quarters
ending on such date.
20
"Liabilities" shall have the meaning given to such term in Section
2.10.
"LIBOR Deadline" shall have the meaning given to such term in
Section 4.8(b)(i).
"LIBOR Notice" means a written notice in the form of Exhibit D-1.
"LIBOR Option" shall have the meaning given to such term in
Section 4.8(a).
"LIBOR Rate" means, for each Interest Period for each LIBOR Rate
Loan, the rate per annum determined by the Agent (rounded upwards, if necessary,
to the next 1/16%) by dividing (a) the Base LIBOR Rate for such Interest Period,
by (b) 100% minus the Reserve Percentage. The LIBOR Rate shall be adjusted on
and as of the effective day of any change in the Reserve Percentage.
"LIBOR Rate Loan" means each portion of a Revolving Loan or an
Original Term Loan that bears interest at a rate determined by reference to the
LIBOR Rate.
"Lien" 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 given to such term in
Section 2.5.
"Material Adverse Change" shall mean (a) a change in the business,
operations, assets, liabilities or condition (financial or otherwise) of CBI 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 CBI 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 CBI 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 June 7, 2004.
"Maximum Credit Line" means $187,100,000, as such amount may be
reduced from time to time pursuant to and in accordance with Section 2.3 and
Section 13.12.
21
"Minimum Rate" shall have the meaning given to such term in
Section 4.1.
"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 CBI, any Subsidiary of CBI or any
ERISA Affiliate or (ii) with respect to which CBI or any Subsidiary of CBI may
incur any liability.
"Net Cash Proceeds" shall mean the aggregate cash proceeds and
Cash Equivalents received by CBI 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 CBI or the applicable Subsidiary in any Asset
Disposition, Specified Asset Disposition or Equity Issuance.
"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 either of the
Borrowers, or to others for the account of either of the Borrowers, 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
CBI 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 CBI'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 CBI 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/or the other Credit Documents, the liability of either
Borrower 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 (including CBI's and the
other Guarantors' guaranty of the Term B Loans), or arising under any guaranty,
endorsement or undertaking which the Agent or any Lender may make or issue to
others for the
22
account of either Borrower pursuant to this Credit Agreement, including any
accommodation extended with respect to applications for Letters of Credit, all
liabilities and obligations owing from either 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, and all liabilities and obligations owing from
either Borrower arising under one or more Foreign Currency Exchange Agreements.
"Operative Documents" shall mean the Credit Documents and the
Security Documents.
"Orderly Liquidation Value" shall mean the value of the trademarks
and related rights owned by CBI, as set forth in the Appraisal.
"Original Closing Date" shall mean March 7, 2001.
"Original Credit Agreement" shall have the meaning given to such
term in the recitals to this Credit Agreement.
"Original Credit Parties" shall mean the Persons which were
"Credit Parties" as defined in the Original Credit Agreement on the Original
Closing Date.
"Original Obligations" shall mean "Obligations" as defined in the
Original Credit Agreement and as defined in the Amended and Restated Credit
Agreement.
"Original Term Loan Notes" shall have the meaning given to such
term in Section 2.2(e).
"Original Term Loans" shall mean "Term Loans" as defined in the
Original Credit Agreement.
"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. Section499.
"Participant Register" shall have the meaning given to such term
in Section 14.6(l).
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
Person succeeding to the functions thereof.
"Permitted Acquisitions" shall mean the German Acquisition or 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 Original Closing Date (or if such
acquisition is consummated by one or more members of the ▇▇▇▇▇▇▇▇ Fresh German
Group, the Acquired Company shall be an operating company that engages in a line
of business substantially similar to the business, and in substantially the same
geographic area, that one or more members of the
23
▇▇▇▇▇▇▇▇ Fresh German Group 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) CBI shall have delivered to the Agent a pro forma compliance certificate
demonstrating that, upon giving effect to such Acquisition on a pro forma basis,
CBI 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)
CBI 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 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 Original Closing Date, CBI, 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 CBI and
its Subsidiaries (including without duplication, GAAP Indebtedness owing under
the Credit Documents and GAAP Indebtedness of Excluded Entities, but excluding
Indebtedness owing by CBI 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 $540,000,000 at any time 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 CTP arising solely by virtue of its role as general
partner of Indian River), exceed $565,000,000 at all times, (c) after giving
effect to the incurrence of such Indebtedness, the aggregate principal amount of
all GAAP Indebtedness of CBI 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 CBI 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 $360,000,000 at
any time, 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 CTP arising solely by virtue of
its role as general partner of Indian River), exceed $385,000,000 at all times
and (d) Indebtedness which consists of:
24
(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)
incurred after the Original Closing Date by CBI 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 CBI 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) (a) 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 and (b) Indebtedness consisting
of the German Financing;
(vi) unsecured Indebtedness owing to CBI or a Subsidiary by
CBI 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 CBI 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 German Group as long as (i) such Indebtedness is non-recourse to CBI and
each of its Subsidiaries which is not a member of the ▇▇▇▇▇▇▇▇ Fresh German
Group, and (ii) such Indebtedness, when added to the aggregate principal amount
of all other Indebtedness of the members of the ▇▇▇▇▇▇▇▇ Fresh German Group
(other than Indebtedness incurred pursuant to the German Financing and
Indebtedness described in clause (vi) above or described on Schedule 1.1D), is
in an aggregate outstanding principal amount not to exceed $1,000,000 at any
time and is otherwise not
25
prohibited by any document or instrument to which one or more members of the
▇▇▇▇▇▇▇▇ Fresh German Group is a party;
(ix) Indebtedness of Persons who are members of the ▇▇▇▇▇▇▇▇
Fresh Latin American Group as long as (i) such Indebtedness is non-recourse to
CBI 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;
(x) Indebtedness of GWF and its Subsidiaries as long as (i)
such Indebtedness is non-recourse to CBI 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
at any time;
(xi) Indebtedness of CPF and its Subsidiaries as long as (i)
such Indebtedness is non-recourse to CBI 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;
(xii) Indebtedness of Frupac or its Subsidiaries as long as (i)
such Indebtedness is non-recourse to CBI 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;
(xiii) Indebtedness of CTP arising solely from its status as a
general partner of Indian River;
(xiv) Indebtedness in an amount not to exceed $15,000,000
outstanding at any time incurred by CBI to finance the payment of insurance
premiums; and
(xv) such other Indebtedness as the Aggregate Required Lenders
in their sole and absolute discretion approve in writing; provided, however, if
such other Indebtedness involves solely the ▇▇▇▇▇▇▇▇ Fresh German Group, then
such other Indebtedness shall not require
26
the approval of the Aggregate Required Lenders, but shall require the approval
in writing, in their sole discretion, of the Term B Required Lenders.
"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 CBI 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 Original 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, CBI
or any of CBI's 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
Original Closing Date does not exceed $15,000,000 less any Qualified Investments
made by Persons pursuant to clause (viii) below;
(viii) 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 German Group (or
Persons which are Wholly-Owned Subsidiaries of such members of the ▇▇▇▇▇▇▇▇
Fresh German Group), as long as the aggregate outstanding amount thereof (A)
does not exceed (1) at all times prior to May 30, 2003, $15,000,000 or (2) at
all times thereafter, $10,000,000 and (B) when added to the aggregate
outstanding amount of Qualified Investments made by Persons pursuant to clause
(vii) above, does not exceed $15,000,000;
27
(ix) 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);
(x) Qualified Investments made by Persons who are members of
the ▇▇▇▇▇▇▇▇ Fresh German Group in or to one or more Persons who are, as of the
Closing Date, members of the ▇▇▇▇▇▇▇▇ Fresh German Group (or Persons which are
Wholly-Owned Subsidiaries of such members of the ▇▇▇▇▇▇▇▇ Fresh German Group);
(xi) 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 the aggregate outstanding amount thereof
made after the Original Closing Date does not exceed $15,000,000 at any one
time;
(xii) Qualified Investments (other than those permitted
pursuant to clause (vii) or (ix) above) made by Persons who are members of the
▇▇▇▇▇▇▇▇ Fresh European Group as long as the aggregate outstanding amount
thereof made after the Original Closing Date does not exceed $10,000,000 at any
one time;
(xiii) Qualified Investments (other than those permitted
pursuant to clause (viii) or (x) above) made by Persons who are members of the
▇▇▇▇▇▇▇▇ Fresh German Group as long as the aggregate outstanding amount thereof
made after the Closing Date does not exceed $1,000,000 at any one time;
(xiv) 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 the aggregate outstanding amount thereof
made after the Original Closing Date does not exceed $15,000,000 at any time;
(xv) Investments made at a time when no Event of Default has
occurred and is continuing (A) (other than by Excluded Entities or one or more
members of the ▇▇▇▇▇▇▇▇ Fresh German Group) in independent growers in the
ordinary course of business as long as the aggregate outstanding balance thereof
does not exceed $10,000,000 at any time or (B) by one or more members of the
▇▇▇▇▇▇▇▇ Fresh German Group in independent growers in the ordinary course of
business as long as the aggregate outstanding balance thereof does not exceed
$2,000,000 at any time;
(xvi) Investments made by one or more Excluded Entities;
(xvii) Loans made by CBI to Frupac which do not exceed
$25,000,000 outstanding at any time during the months of September to June and
which do not exceed $7,000,000 outstanding at any time during the months of July
and August;
(xviii) Loans made by ▇▇▇▇▇▇▇▇ Banana Company B.V., a Netherlands
company, to CIL;
28
(xix) Investments made by CBI in Citrus to the extent required
to service existing debt of Citrus but not to exceed $1,100,000 in any fiscal
year;
(xx) 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);
(xxi) Investments described on Schedule 9.3A;
(xxii) A loan to CBII for Permitted Restructuring Expenses or
any transfer of funds as permitted by Section 9.6;
(xxiii) such other Investments as the Aggregate Required Lenders
in their sole discretion approve in writing; provided, however, if such other
Investments involve solely the ▇▇▇▇▇▇▇▇ Fresh German Group, then such other
Investments shall not require the approval of the Aggregate Required Lenders,
but shall require the approval in writing, in their sole discretion, of the Term
B Required Lenders;
(xxiv) advances to CTP solely to the extent necessary to permit
CTP to make capital expenditures;
(xxv) advances consisting of the payment of insurance premiums
by CBI on insurance policies that insure CBI and one or more Subsidiaries,
Excluded Entities or CBII, as long as each such advance is repaid to CBI by the
applicable Subsidiary (other than Secured Credit Parties), Excluded Entity or
CBII within 90 days after the date on which such advance was made;
(xxvi) advances consisting of payment of insurance claim
deductibles and self-insured retentions by CBI on liability insurance policies
that insure CBI and one or more Subsidiaries, Excluded Entities or CBII,
provided (a) each such advance is repaid to CBI by the applicable Subsidiary
(other than Secured Credit Parties), Excluded Entity or CBII within 90 days
after the date on which such advance was made; and (b) the aggregate amount of
such advances outstanding at any given time, excluding those made on behalf of
the Secured Credit Parties, does not exceed $1,000,000;
(xxvii) indemnity obligations incurred by CBI to secure the
payment of insurance claim deductibles and self-insured retentions and to
support operational bonding obligations of one or more Subsidiaries, Excluded
Entities or CBII, provided that (a) any payment made by CBI in compliance with
such indemnity obligation is repaid to CBI by the applicable Subsidiary (other
than Secured Credit Parties), Excluded Entity or CBII within 90 days after the
date on which such payment was made, (b) any letters of credit issued for the
account of CBI shall be Letters of Credit; and (c) the aggregate amount of the
indemnity obligation of CBI shall not exceed $3,000,000 for Subsidiaries (other
than Secured Credit Parties), Excluded Entities or CBII for any given annual
policy year;
(xxviii) Investments made in or to Excluded Entities or
Exportadora ▇▇▇▇▇▇▇▇-▇▇▇▇ Chile Limitada (other than those made by an Excluded
Entity) as long as (a) all such Investments made after March 6, 2002, do not
exceed $3,000,000 in the aggregate at any time
29
outstanding and (b) at the time of any such Investment (i) no Event of Default
shall have occurred and be continuing and (ii) the sum of Availability plus CBI
and its Subsidiaries' (other than any Excluded Entity's) unrestricted cash and
Cash Equivalents shall be equal to at least $65,000,000; and
(xxix) Investments made in or to any newly formed or newly
acquired Subsidiary or to an Inactive Subsidiary that is ceasing to be an
Inactive Subsidiary where such Subsidiary has not yet signed applicable Joinder
Agreements, Security Agreements, Guaranty Agreements or Pledge Agreements if
required by the terms of this Agreement, provided, however, that (i) notice was
provided to the Agent within sixty (60) Business Days after such Subsidiary was
formed or acquired or ceased to be an Inactive Subsidiary and (ii) all such
Investments shall not exceed $500,000 per Subsidiary and $1,000,000 in the
aggregate at any time outstanding;
Notwithstanding the foregoing, Permitted Investments shall not
include (i) Investments made in or to an Inactive Subsidiary (other than
Investments permitted pursuant to clauses (iii), (xxv), (xxvi), (xxvii) or
(xxviii) above); (ii) Investments made in or to an Excluded Entity (other than
Investments permitted pursuant to clauses (iii), (xvii), (xix), (xxv), (xxvi),
(xxvii), or (xxviii) above and Investments made by an Excluded Entity); (iii)
Investments (other than as described in clause (xxii), (xxv), (xxvi) or (xxvii)
above) made in or to CBII or any Subsidiary of CBII which is not CBI or a
Subsidiary of CBI; and (iv) investments in or to CTP other than those permitted
pursuant to clause (xxiv) above.
"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 CBI by appropriate proceedings, provided
that in any such case an adequate reserve is being maintained by CBI 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);
30
(vi) Liens for taxes, assessments or other governmental
charges not yet due and payable or which are being diligently contested in good
faith by CBI or the applicable Subsidiary charged with such Lien by appropriate
proceedings, provided that in any such case an adequate reserve is being
maintained by CBI 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 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), and as long as the applicable Indebtedness is permitted pursuant to
clause (d)(x), (d)(xi), (d)(xii) or (d)(xiii) of the definition of Permitted
Indebtedness herein;
(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;
(xii) Liens on insurance proceeds and unearned insurance
premiums which secure the Permitted Indebtedness described in clause (d)(xiv) of
the definition of Permitted Indebtedness; and
(xiii) such other Liens as the Aggregate Required Lenders in
their sole and absolute discretion approve in writing; provided, however, if
such other Liens involve solely the ▇▇▇▇▇▇▇▇ Fresh German Group, then such other
Liens shall not require the approval of the Aggregate Required Lenders, but
shall require the approval in writing, in their sole discretion, of the Term B
Required Lenders.
"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 plus CBI's and its Subsidiaries' (other
than any Excluded Entity's) unrestricted cash and Cash Equivalents 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
and other than any payment of the fee payable to Houlihan, Lokey, ▇▇▇▇▇▇ & Zukin
as contemplated by clause (vi) 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
31
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; (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 CBI to CBII
which is protected by an appropriate court order which is acceptable to the
Agent and the Existing Required Lenders and specifically assigned to the Agent
as Collateral; and (vi) if the payment is to CBII to permit CBII to pay the
success fee of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, such success fee shall not exceed
$5,000,000.
"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.
"Pledge Agreements" shall mean (i) that certain Stock Pledge
Agreement dated as of the Original Closing Date between the pledgors named
therein and the Agent, (ii) that certain LLC Pledge Agreement dated as of the
Original Closing Date between the pledgors named therein and the Agent, (iii)
the German Pledge Agreements, and (iv) each other agreement (other than a
Security Agreement) pursuant to which the equity of any Person is pledged to the
Agent to secure any of 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 any of the
Obligations.
"Pledgor Entity" means each Person which has pledged equity in a
Pledged Party to the Agent to secure the Obligations.
"Portfolio Sale" shall have the meaning given to such term in
Section 14.6(c).
"Post-Closing Agreement" shall mean that certain Post-Closing
Agreement, dated as of the date hereof, among the Borrowers and the Agent.
"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.
"Prime Rate Loan" means each portion of a Loan that bears interest
at a rate determined by reference to the Prime Rate.
"Pro Rata Share" of any (i) Existing Lender means a fraction, the
numerator of which is such Existing Lender's Existing Commitment and the
denominator of which is the sum of all Existing Lenders' Existing Commitments;
provided, however, in the event that all Existing
32
Commitments have been terminated or reduced to zero, Pro Rata Share shall be
determined according to the Existing Commitments in effect immediately prior to
such termination and (ii) Term B Lender means a fraction, the numerator of which
is such Term B Lender's Term B Loan Commitment and the denominator of which is
the sum of all Term B Lenders' Term B Loan Commitments; provided, however, that
after each Term B Lender has funded its portion of the Term B Loans, Pro Rata
Share of any Term B Lender shall mean a fraction, the numerator of which is such
Term B Lender's outstanding Term B Loans and the denominator of which is the sum
of all outstanding Term B Loans.
"Process Agent" shall have the meaning given to such term in
Section 14.3.
"Proprietary Rights" shall have the meaning given to such term in
Section 6.18.
"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 CBI and its Subsidiaries (provided, however, that
Investments in an aggregate amount not to exceed $3,000,000 per fiscal year may
be made in Persons without regard to this clause (ii) as long as such
Investments otherwise are "Qualified Investments"); (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 (xi), (xii), (xiii)
or (xiv) of the definition of Permitted Investments, it is made when CBI,
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 Credit
Agreement in which all of the Obligations are paid in full in cash and for which
Ableco or Foothill or an Affiliate thereof is agent.
"Rating Agencies" shall have the meaning given to such term in
Section 2.10.
"Register" shall have the meaning given to such term in Section
14.6(f).
"Registered Loan" shall have the meaning given to such term in
Section 2.5(b).
"Registered Note" shall have the meaning given to such term in
Section 2.5(b).
"Reportable Event" shall mean any of the events described in
Section 4043 of ERISA and the regulations thereunder.
"Reserve Percentage" means, on any day, for any Lender, the
maximum percentage prescribed by the Board of Governors of the Federal Reserve
System (or any successor Governmental Authority) for determining the reserve
requirements (including any basic, supplemental, marginal, or emergency
reserves) that are in effect on such date with respect to eurocurrency funding
(currently referred to as "eurocurrency liabilities") of that Lender, but so
long as such Lender is not required or directed under applicable regulations to
maintain such reserves, the Reserve Percentage shall be zero.
33
"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 CBI 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 CBI or any of its Subsidiaries now or
hereafter outstanding by CBI 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 CBI or any
of its Subsidiaries now or hereafter outstanding, or (iv) any payment to any
Affiliate of CBI 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
CBI Maximum Credit Line less the principal balance of then outstanding Original
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).
"Sale Leaseback Transaction" shall have the meaning given to such
term in Section 9.13.
"Secondary Transactions" shall mean the transactions described on
Schedule 1.1G hereto, as long as at all times that such transactions are being
consummated, Availability is at least $65,000,000.
"Secured Credit Parties" shall mean each Credit Party (other than
any member of the ▇▇▇▇▇▇▇▇ Fresh German Group) which is also a party to a
Security Agreement.
"Securitization" shall have the meaning given to such term in
Section 2.10.
"Securitization Party" shall have the meaning given to such term
in Section 2.10.
"Security Agreements" shall mean (i) the Security Agreement dated
as of the Original Closing Date between the Agent, CBI and the obligors named
therein, (ii) the Security Agreement dated as of the Original Closing Date
between the Agent and ▇▇▇▇▇▇▇▇ (Canada) Inc., (iii) composite Guarantee and
Charge dated as of the Closing Date, as amended, by and among
34
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 secure any or all
of 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 either of the Borrowers.
"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 CBI); provided however, that neither Indian River nor
▇▇▇▇▇▇ Holdings Ltd., a Cayman Islands company, shall constitute a Subsidiary of
CBI or any of its Subsidiaries, unless such entity is consolidated with CBI 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 B Lender" shall mean each of the Lenders holding outstanding
Term B Loans or with a Term B Loan Commitment greater than zero and their
respective successors and assigns.
"Term B Loans" shall have the meaning given to such term in
Section 2.2(b).
"Term B Loan Commitment" of any Lender means the amount set forth
opposite such Lender's name as its "Term B Loan Commitment" on Schedule 1.1A.
35
"Term B Loan Notes" shall have the meaning given to such term in
Section 2.2(e).
"Term B Required Lenders" shall mean, at any time, Term B 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 the outstanding Term B Loans.
"Term Loans" shall mean the Original Term Loans and/or the Term B
Loans.
"Term Loan Notes" shall mean the Original Term Loan Notes and the
Term B Loan Notes.
"Termination Event" shall mean (i) a Reportable Event with respect
to any Benefit Plan or Multiemployer Plan; (ii) the withdrawal of CBI, any
Subsidiary of CBI 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
CBI, any Subsidiary of CBI or any ERISA Affiliate from a Multiemployer Plan.
"Trademark License Agreement" shall mean that certain Trademark
License Agreement dated November 1, 2001, by and between CBI and CIL.
"Trademark Note" shall mean that certain Promissory Note executed
by CIL in favor of CBI dated November 1, 2001.
"Tropical Farms" means farms (and related assets, including farm
land held in reserve but not currently planted) located in Guatemala, Chile,
Colombia, Panama, Honduras, Costa Rica, Guadeloupe, Martinique or Ivory Coast on
which bananas, plantains and similar produce is grown.
"UCP" shall have the meaning given to such term in Section 3.7.
"Unallocated CBII Overhead" shall mean the following overhead and
disbursements of CBII, but only to the extent that they are not otherwise
allocated to CBI and its consolidated Subsidiaries: consulting fees and
expenses, 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.
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"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 CBI.
"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" shall have the meaning given to such term in the
preamble of this Credit Agreement.
"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
Original 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 consolidated financial
statements of CBI dated as of September 30, 2000, 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 CBI is in compliance with the financial covenants
based upon GAAP as in effect as of the date of the consolidated financial
statements of CBI dated as of September 30, 2000. If CBI 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.
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
37
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 Existing Lenders severally agrees to lend to CBI at any time or from time
to time on or after the Closing Date and before the Maturity Date, such Existing
Lender's Pro Rata Share of the Revolving Credit Committed Amount as may be
requested or deemed requested by CBI.
(b) Determination of Revolving Credit Borrowing Base.
(i) Each of the Existing Lenders severally agrees,
subject to the terms and conditions of this Credit Agreement, from
time to time, to make loans and advances to CBI hereunder on a
revolving basis. Such loans and advances to CBI (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 the Insurance
Premium Block then in place;
(B) twenty-five percent (25%) of the Orderly
Liquidation Value minus the aggregate amount of the
Insurance Premium Block then in place;
(C) the following amount:
(1) an amount up to eighty-five percent
(85%) of Eligible Accounts Receivable; plus
(2) twenty percent (20%) of the Orderly
Liquidation Value, minus
38
(3) the aggregate amount of 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 the Insurance
Premium Block then in place; or
(D) the amount equal to Consolidated EBITDA of
CBI and its Subsidiaries (other than CPF and its
Subsidiaries) as of the most recently completed twelve
month fiscal period for which information is available
(exclusive of unusual items as determined in accordance
with GAAP and non-cash items to the extent not already
excluded in determining Consolidated EBITDA) minus the
sum of (1) the outstanding principal balance of the
Original Term Loans and (2) the aggregate amount of the
Insurance Premium Block 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 CBI and the Existing Lenders. Each Existing Lender expressly
authorizes the Agent to determine, subject to the terms of this
Credit Agreement, on behalf of such Existing Lender whether or not
Accounts shall be deemed to constitute Eligible Accounts
Receivable.
(ii) No Existing Lender shall be obligated at any time
to make available to CBI 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 Original Term
Loans then outstanding would exceed such Existing Lender's
Existing Commitment at such time. No Existing Lender shall be
obligated to make available, nor shall the Agent make available,
any Revolving Loans to CBI 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. CBI shall promptly repay to the Agent for
the account of the Existing 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.
39
(c) Revolving Notes. The obligations to repay the Revolving
Loans and to pay interest thereon shall be evidenced by separate promissory
notes of CBI to each Existing 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 Existing Lender in a principal
amount equal to such Existing Lender's Pro Rata Share of the Revolving Credit
Committed Amount and representing the obligations of CBI to pay such Existing
Lender the amount of such Existing Lender's Pro Rata Share of the Revolving
Credit Committed Amount or, if less, the aggregate unpaid principal amount of
all Revolving Loans made by such Existing Lender hereunder, plus interest
accrued thereon, as set forth herein. CBI irrevocably authorizes each Existing
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
Existing Lender's Revolving Note or record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Existing 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 CBI 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) Subject to Section 4.8(b)(i), each request for
borrowings hereunder shall be made by a notice in the form attached
hereto as Exhibit D from CBI to the Agent (a "Notice of Borrowing"),
given not later than 11:00 a.m. New York City time 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 CBI that it has
complied in all respects with Article V, 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 CBI. CBI 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.
(ii) The Agent shall give to each Existing Lender
prompt notice (but in no event later than 2:00 p.m. New York City time on
the date of the Agent's receipt of notice from CBI) 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)(iii)
below). No later than 3:00 p.m. New York City time on the date on which a
borrowing is requested to be made pursuant to the applicable Notice of
Borrowing, each Existing 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
Existing Lender prior to the date of borrowing that such Existing Lender
does not intend
40
to make available to the Agent its portion of the borrowing to be made on
such date, the Agent may assume that such Existing 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 Existing Lender. Upon fulfillment of the
conditions set forth in Article V for such borrowing, the Agent will make
such funds available to CBI at the account specified by CBI in such
Notice of Borrowing.
(iii) Because CBI 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 Existing Lenders, the Existing Lenders hereby instruct the
Agent, and the Agent may (but is not obligated to) (A) make available, on
behalf of the Existing Lenders, the full amount of all Revolving Loans
requested by CBI not to exceed $20,000,000 in the aggregate at any one
time outstanding without requiring that CBI give the Agent a Notice of
Borrowing with respect to such borrowing and without giving each Existing
Lender prior notice of the proposed borrowing, of such Existing 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 CBI, 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 CBI 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 CBI 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 Existing 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 Existing Lenders, as provided in the immediately preceding
sentence, the amount of outstanding Revolving Loans and each Existing
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. New York City time 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
Existing 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
Existing Lenders prior to 12:00 Noon New York City time on any Business
Day each Existing Lender shall make the transfers described in the next
succeeding sentence no later than 3:00 p.m. New York City time on the day
such summary statement was sent; and if such summary statement is sent by
the Agent and received by the Existing Lenders after 12:00
▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ time on any Business Day, each Existing Lender shall
make such transfers no later than 3:00 p.m. New York City time on the
next succeeding Business Day. If in any Settlement Period, the amount of
an Existing Lender's Pro Rata Share of the Revolving Loans is in excess
of the amount of Revolving Loans actually funded by such Existing Lender,
such Existing 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 an Existing 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 Existing Lender, the Agent
shall forthwith transfer to such Existing Lender by wire transfer in
immediately available funds the amount of such difference. The obligation
of each of the Existing 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 Existing 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 Existing
Lenders may be advancing and/or may be repaid Revolving Loans prior to
the time when the Existing Lenders will actually advance and/or be repaid
Revolving Loans, interest with respect to Revolving Loans shall be
allocated by the Agent to each Existing Lender (including the Agent) in
accordance with the amount of Revolving Loans actually advanced by and
repaid to each Existing 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 CBI in accordance with Section 2.4 or
actually settled by the applicable Existing Lender as described in this
Section 2.1(d)(iii).
(iv) If the amounts described in subsection (d)(i),
(d)(ii) or (d)(iii) of this Section 2.1 are not in fact made available to
the Agent by an Existing Lender (such Existing Lender being hereinafter
referred to as a "Defaulting Lender") and the Agent has made such amount
available to CBI, 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 CBI and CBI
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 CBI,
(A) interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Agent to CBI 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 CBI, 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 Existing Lender
from its obligation to fulfill its commitments hereunder or to prejudice
any rights which CBI may have against any Existing Lender as a result of
any default by such Existing Lender hereunder, including, without
limitation, the right of CBI to seek reimbursement
42
from any Defaulting Lender for any amounts paid by CBI under clause (B)
above on account of such Defaulting Lender's default.
(v) The failure of any Existing Lender to make the
Revolving Loan to be made by it as part of any borrowing shall not
relieve any other Existing Lender of its obligation, if any, hereunder to
make its Revolving Loan on the date of such borrowing, but no Existing
Lender shall be responsible for the failure of any other Existing Lender
to make the Revolving Loan to be made by such other Existing Lender on
the date of any borrowing.
(vi) Each Existing 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 Existing Lender funded such
Revolving Loan to, but excluding, the date on which such Existing Lender
is repaid with respect to such Revolving Loan.
(vii) Notwithstanding the obligation of CBI 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 CBI whether or not written confirmation is
sent by CBI 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 CBI or its agents. The Agent's records of the terms of
any telephonic Notices of Borrowing shall be conclusive on CBI in the
absence of gross negligence or willful misconduct on the part of the
Agent in connection therewith.
2.2 TERM LOANS.
(a) Original Term Loan. As of the date hereof, the aggregate
outstanding principal amount of the Original Term Loans is $50,100,000. Once
Term Loans are paid or prepaid, they may not be reborrowed.
(b) Amount of Term B Loans. Subject to the terms and
conditions hereof and in reliance upon the representations and warranties set
forth herein, each Term B Lender severally agrees to make available to Atcon on
the Closing Date term loans in Dollars (each a "Term B Loan" and collectively
the "Term B Loans") equal to such Term B Lender's Pro Rata Share of $65,000,000
for the purposes hereinafter set forth. Once Term B Loans are paid or prepaid,
they may not be reborrowed.
(c) Funding of Term B Loans. Not later than Noon New York
City time on March 28, 2003, each Term B Lender will make available to the Agent
for the account of Atcon, at the office of the Agent in funds immediately
available to the Agent, the amount of such Term B Lender's Pro Rata Share of
$65,000,000. Atcon hereby irrevocably authorizes the Agent to disburse the
proceeds of the Term B Loans in immediately available funds by wire transfer as
directed by Atcon in writing.
43
(d) Repayment of Original Term Loans and Term B Loans. The
principal amount of the Original Term Loans shall be repaid in consecutive
monthly payments on the first day of each calendar month; such payments
commenced with the first day of October, 2002 and shall continue until the
Original Term Loans are repaid in full. The amount of each such payment on the
Original Term Loans (other than the final payment) shall equal $1,250,000. In
addition to the other payments of the principal amount of Term B Loans required
hereunder, a portion of the principal amount of the Term B Loans shall be repaid
in an amount equal to $3,000,000 not later than December 31, 2003. If not sooner
repaid, the principal amount of the Term Loans shall be repaid in full on the
Maturity Date.
(e) Term Notes. The obligations to repay the Original Term
Loans and to pay interest thereon shall be evidenced by separate promissory
notes of CBI to each applicable Lender in substantially the form of Exhibit C-2
attached hereto (the "Original Term Loan Notes"), with appropriate insertions,
one Original Term Loan Note being payable to the order of each Existing Lender
in a principal amount equal to such Existing Lender's Pro Rata Share of the
Original Term Loans and representing the obligations of CBI to pay such Existing
Lender the amount of such Existing Lender's Pro Rata Share of the Original Term
Loans or, if less, the aggregate unpaid principal amount of the Original Term
Loans made by such Existing Lender hereunder, plus interest accrued thereon, as
set forth herein. The obligations to repay the Term B Loans and to pay interest
thereon shall be evidenced by separate promissory notes of Atcon to each Term B
Lender in substantially the form of Exhibit C-3 attached hereto (the "Term B
Loan Notes"), with appropriate insertions, one Term B Loan Note being payable to
the order of each Term B Lender in a principal amount equal to such Term B
Lender's Pro Rata Share of the Term B Loans and representing the obligations of
Atcon to pay such Term B Lender the amount of such Term B Lender's Pro Rata
Share of the Term B Loans or, if less, the aggregate unpaid principal amount of
the Term B Loans made by such Lender hereunder, plus interest accrued thereon,
as set forth herein. Each Borrower irrevocably authorizes each applicable Lender
to make or cause to be made appropriate notations on its Term Loan Notes, 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 Notes
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 Borrowers 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. Except as set forth below, the
Borrowers 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. Amounts prepaid on Existing
Loans under this Section 2.3(a) shall be applied first to Revolving Loans, then
to the Original Term Loans, and then to the Term B Loans. Voluntary prepayments
on the Original Term Loans shall not be permitted unless, immediately prior to
such prepayment, the sum of the Existing Commitments are equal to the then
outstanding principal amount of the Original Term Loans. All voluntary
prepayments of the Original Term Loans shall be applied to the remaining
principal installments thereof in the inverse order of maturity thereof. No
44
voluntary prepayments of the Term B Loans shall be permitted unless all
obligations under the Original Term Loans have been paid in full and no
Revolving Loans are outstanding. The Borrowers have 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
Borrowers have sent a notice of termination pursuant to the provisions of this
section, then the Existing Commitments shall terminate and the Borrowers shall
be obligated to repay the Obligations (including either (i) providing cash
collateral to be held by the 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, the Borrowers, jointly and severally, shall pay the Applicable
Prepayment Premium to the 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, CBI immediately shall prepay,
subject to Section 4.8(c), 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, CBI or Atcon, as the case may
be, shall prepay the Loans (in the case of CBI) or the Term B Loans (in
the case of Atcon) 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
(any such prepayment under this Section 2.3(b)(ii) to be applied, subject
to Section 4.8(c), as set forth in clause (vi) below).
45
(iii) Asset Transfers. Promptly, and in any event
within one (1) day following the occurrence of any Asset Disposition, CBI
or Atcon, as the case may be, shall prepay the Loans (in the case of CBI)
or the Term B Loans (in the case of Atcon) in an aggregate amount equal
to one hundred percent (100%) of the Net Cash Proceeds of such Asset
Disposition (any such prepayment under this Section 2.3(b)(iii) to be
applied, subject to Section 4.8(c), as set forth in clause (vi) below).
Promptly, and in any event within one (1) day following the occurrence of
any Specified Asset Disposition, CBI or Atcon, as the case may be, shall
prepay the Loans (in the case of CBI) or the Term B Loans (in the case of
Atcon) 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 (any such prepayment under this Section
2.3(b)(iii) to be applied, subject to Section 4.8(c), as set forth in
clause (vi) below).
(iv) Issuances of Equity and Payments with respect to
Trademarks. Promptly, and in any event within five (5) days following the
receipt by either of the Borrowers of Net Cash Proceeds from any Equity
Issuance occurring after the Original Closing Date, CBI or Atcon, as the
case may be, shall prepay the Loans (in the case of CBI) or the Term B
Loans (in the case of Atcon) in an aggregate amount equal to one hundred
percent (100%) of the Net Cash Proceeds of such Equity Issuance (any such
prepayment under this Section 2.3(b)(iv) to be applied, subject to
Section 4.8(c), as set forth in clause (vi) below). Promptly, and in any
event within one (1) day following the receipt of any payment under or
pursuant to the Trademark License Agreement or Trademark Note, CBI shall
prepay the Loans in an aggregate amount equal to one hundred percent
(100%) of the Net Cash Proceeds received (any such payment under this
Section 2.3(b)(iv) to be applied, subject to Section 4.8(c), as set forth
in clause (vi) below); provided however, if, at the time of such receipt
no Default or Event of Default has occurred and is continuing, no such
prepayment shall be required pursuant to this sentence.
(v) Intercompany Loan Payments. Promptly, and in any
event within one (1) Business Day following payment of principal on a
German Note, Atcon shall prepay the Term B Loans in an amount equal to
the payment on such German Note.
(vi) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to this Section 2.3(b) shall be applied,
subject to Section 4.8(c), 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 Sections 2.3(b)(ii)-(iii) in connection with
an Asset Loss, Asset Disposition or Specified Asset
Disposition, (other than an Asset Loss, Asset Disposition
or Specified Asset Disposition by any member of the
▇▇▇▇▇▇▇▇ Fresh
46
German Group) (1) first to the Original Term Loans, to be
applied to the remaining principal installments thereof
in the inverse order of maturity, (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 (3) third to the Term B Loans;
(C) with respect to all amounts prepaid
pursuant to Sections 2.3(b)(ii)-(iii) in connection with
an Asset Loss, Asset Disposition or Specified Asset
Disposition by any member of the ▇▇▇▇▇▇▇▇ Fresh German
Group, to the Term B Loans;
(D) with respect to all amounts prepaid
pursuant to Section 2.3(b)(iv) (other than an Equity
Issuance by any member of the ▇▇▇▇▇▇▇▇ Fresh German
Group), unless CBI 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, (2) second to the Original Term Loans, to be
applied pro rata to the remaining principal installments
thereof in the inverse order of maturity and (3) third to
the Term B Loans; and
(E) with respect to all amounts prepaid
pursuant to Section 2.3(b)(iv) in connection with an
Equity Issuance by any member of the ▇▇▇▇▇▇▇▇ Fresh
German Group, to the Term B Loans.
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 CBI 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)(vi) (other than pursuant to Section
2.3(b)(vi)(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) unless the funds applied pursuant to this Section
2.3(b)(vi) were applied to Term B Loans, each Existing Lender's
Existing Commitment shall be reduced by its Pro Rata Share of the
amount so applied and the CBI Maximum Credit Line shall be reduced
by the amount so applied.
(c) Voluntary Reductions. The Borrowers may from time to time
permanently reduce or terminate the Maximum Credit Line and/or the CBI Maximum
Credit Line (and upon each reduction of the CBI Maximum Credit Line, the Maximum
Credit Line shall also be reduced by the amount of such reduction in the CBI
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 Existing Commitment) 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
47
(i) Original Term Loans to exceed the CBI Maximum Credit Line, (ii) Term B Loans
to exceed the difference of (A) the Maximum Credit Line and (B) the CBI Maximum
Credit Line or (iii) 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 Borrowers pursuant to this Section
2.3(c). Upon each reduction in the CBI Maximum Credit Line, each Lender's
Existing Commitment shall be reduced by its Pro Rata Share of the amount of such
reduction.
(d) Maturity Date. The Existing 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 Borrowers shall make each payment hereunder and under
the Notes not later than 2:00 p.m. New York City time on the day when due.
Payments made by either 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 either Borrower, but in no event later than one (1)
Business Day after such payment has been made, subject to Section 2.1(d)(iii),
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
Borrowers' 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) Each Borrower hereby authorizes each Lender to charge
from time to time against any or all of such 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 each Borrower in which the respective 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 respective
Borrower or for the respective Borrower's account, including the
48
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 respective 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 Borrowers. 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 CBI's contracts or obligations relating to the Accounts.
(b) The Borrowers agree to record the amount of each
Revolving Loan and each Term Loan on the Borrower Register referred to in
Section 14.6(k). Each Revolving Loan and each Term Loan recorded on the Borrower
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
respective Borrower. The Borrowers agree, 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 Borrower
Register, the Obligations evidenced by such Note may not be removed from the
Borrower 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 CBI, as
representative of both Borrowers, a statement showing the accounting for the
charges, loans, advances and other transactions occurring between the Lenders
and the Borrowers during that month. The monthly statements shall be deemed
correct and binding upon the Borrowers and shall constitute an account stated
between the Borrowers and the Lenders unless the Agent receives a written
statement of exceptions from the Borrowers within thirty (30) days after same is
mailed to CBI.
2.7 TAXES.
(a) Any and all payments by the Borrowers 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
49
the Agent, as applicable, is organized or maintains a lending office (any such
excluded Taxes, collectively, "Excluded Taxes"). If either 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) such
Borrower shall make such deductions and (iii) such 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 Borrowers 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 CBI,
as representative of both Borrowers, 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
CBI, as representative of both Borrowers, 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 CBI, and such extensions or renewals thereof as may reasonably be requested
by CBI 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 CBI
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 Borrowers agree 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 Borrowers 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 Borrowers 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
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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 Borrowers 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 Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 2.7 shall survive the payment in full of all
Obligations hereunder and under the Revolving Notes or the Term 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 a payment that is to be applied to Existing
Loans or its Pro Rata Share of a payment that is to be applied to Term B Loans
as provided for in this Credit Agreement, such Lender shall forthwith purchase
from the other applicable 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 applicable
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 Borrowers agree 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 respective 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 Existing
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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
of the Existing Commitments or the outstanding Term B Loans, as applicable.
2.10 SECURITIZATION.
The Borrowers hereby acknowledge 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 Borrowers shall cooperate reasonably with such Lenders and their affiliates
to effect any such 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 Borrowers, (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 Borrowers under the Credit Documents or change
or affect in a manner adverse to the Borrowers 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 Borrowers and
their 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 Borrowers, the
Guarantors, the Collateral and other property, assets and business of the
Borrowers and the Guarantors (including appraisals and valuations) as may be
reasonably requested by such Lenders or their successors or assignees.
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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 Existing 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 Original Closing Date until
the Maturity Date as CBI 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 thirty million Dollars ($30,000,000)
(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 CBI 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 Existing 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 Existing Lender, shall be deemed, upon issuance of a Letter
of Credit, 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 such Existing
Lender's participation in any L/C Undertaking, to the extent that the Issuing
Bank has not been reimbursed as required hereunder,
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each such Existing 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 such Existing 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 CBI 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 CBI.
Unless CBI shall immediately notify the Issuing Bank that CBI intends to
otherwise make a payment to the Issuing Bank in the amount of such drawing as a
result of such drawing, CBI shall be deemed to have requested that the Existing
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. CBI 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 CBI 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 interest rate applicable to Revolving
Loans that are Prime Rate Loans. CBI's payment obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any rights of
setoff, counterclaim or defense to payment CBI may claim or have against the
Underlying Issuer, the Issuing Bank, the Agent, the Existing Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person, including
without limitation any defense based on any failure of CBI to receive
consideration or the legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Bank will promptly notify the other Existing
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 CBI as provided above, and
each such Existing 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
Existing Lender's Pro Rata Share of such amount. Such payment shall be made on
the Business Day such notice is received by such Existing Lender from the
Issuing Bank if such notice is received at or before 2:00 p.m. New York City
time otherwise such payment shall be made at or before 12:00 Noon New York City
time on the Business Day next succeeding the day such notice is received. If
such Existing Lender does not pay such amount to the Issuing Bank in full upon
such request, such Existing 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 Existing 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 Existing 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 Existing 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 Existing Commitments hereunder, the existence of a Default or
Event of Default or the acceleration of the obligations of CBI hereunder and
shall be made without any
54
offset, abatement, withholding or reduction whatsoever. Simultaneously with the
making of each such payment by an Existing Lender to the Issuing Bank, such
Existing Lender shall, automatically and without any further action on the part
of the Issuing Bank or such Existing 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 CBI with
respect thereto.
3.5 REPAYMENT WITH REVOLVING LOANS.
On any day on which CBI 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 Existing
Lenders that a Revolving Loan has been requested or deemed requested by CBI 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 CBI by all such Existing
Lenders (notwithstanding any termination of the Existing Commitments pursuant to
Section 11.2) pro rata based on the respective Pro Rata Shares of such Existing
Lenders (determined before giving effect to any termination of the Existing
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 Existing 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 Existing 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 CBI), then each such
Existing 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 CBI 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 Existing Lender to share in such Letter
of Credit Obligations ratably (based upon the respective Pro Rata Shares of the
Existing Lenders (determined before giving effect to any termination of the
Existing Commitments pursuant to Section 11.2)), provided that at the time any
purchase of participation pursuant to this sentence is actually made, the
purchasing Existing Lender shall be required to pay to the Issuing Bank, to the
extent not paid to the Issuing Bank by CBI 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.
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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, CBI 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 CBI and the Issuing Bank, CBI 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 CBI. 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 CBI, including,
without limitation, any and all Government
56
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 CBI contained in Section 3.4 above. The obligations
of CBI 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, CBI 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 Existing 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 Existing Lender
to recover from the Issuing Bank any amounts made available by such Existing
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.
Subject to Section 4.8(a), 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 (a) all Obligations (other than those
owing to the Term B Lenders) and relating to (i) a LIBOR Rate Loan shall be
equal to the LIBOR Rate plus three and three-quarters percent (3.75%) and (ii) a
Prime Rate Loan shall be equal to a per annum rate equal to the Prime Rate plus
one percent (1%) and (b) the Term B Loans shall be equal to a per annum rate
equal to the Prime Rate plus three and one-
57
quarter percent (3.25%). The interest rates hereunder shall be calculated based
on a 360 day year for the actual number of days elapsed.
The foregoing notwithstanding, at no time shall any portion of the
Obligations bear interest on any day on the daily balance thereof at a per annum
rate (i) with respect to Obligations owing to the Agent or the Existing Lenders
less than six percent (6.00%) or (ii) with respect to Obligations owing to the
Term B Lenders, less than seven and one-half percent (7.50%) (collectively, the
"Minimum Rate"). To the extent that interest accrued hereunder at the rate
otherwise set forth herein would be less than the foregoing minimum daily rate,
the interest rate chargeable hereunder for such day shall automatically be
deemed increased to the Minimum Rate.
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 greater of (a) the
Interest Rate, or (b) the Minimum Rate, in each case, 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.
CBI and Atcon 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, CBI promises to pay to the Agent for the account of
each Existing Lender a fee (the "Letter of Credit Fee") on such Existing
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 in arrears on a monthly
basis.
(b) Issuing Bank Fees. In addition to the Letter of Credit
Fee payable pursuant to clause (a) above, CBI promises to pay to the Issuing
Bank for its own account without sharing by the other Existing Lenders the
letter of credit fronting and negotiation fees agreed to by CBI 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.
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4.6 AUTHORIZATION TO CHARGE LOAN ACCOUNT.
Each Borrower hereby authorizes the Agent to charge its 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. Each Borrower confirms that any charges which the
Agent may so make to such Borrower's accounts as herein provided will be made as
an accommodation to such Borrower and solely at the Agent's discretion.
4.7 INDEMNIFICATION IN CERTAIN EVENTS.
If after the Original 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
Existing Commitment, the Revolving Loans, the Term Loans or the Letters of
Credit, then the Borrowers 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 Borrowers by the Agent and shall be conclusive and binding
absent manifest error.
4.8 LIBOR OPTION.
(a) Interest and Interest Payment Dates. In lieu of having
interest charged at the rate based upon the Prime Rate, CBI shall have the
option (the "LIBOR Option") to have interest on all or a portion of the
Revolving Loans or the Original Term Loans be charged at a rate of interest
based upon the LIBOR Rate. Interest on LIBOR Rate Loans shall be payable on the
earliest of (i) the last day of the Interest Period applicable thereto, (ii) the
occurrence of an Event of Default in consequence of which the Aggregate Required
Lenders or Agent on behalf thereof elect to accelerate the maturity of all or
any portion of the Obligations, or (iii) termination of this Agreement pursuant
to the terms hereof. On the last day of each applicable Interest Period, unless
CBI properly has exercised the LIBOR Option with respect thereto, the
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interest rate applicable to such LIBOR Rate Loan automatically shall convert to
the rate of interest then applicable to Prime Rate Loans of the same type
hereunder. At any time that an Event of Default has occurred and is continuing,
CBI no longer shall have the option to request that Revolving Loans or Original
Term Loans bear interest at the LIBOR Rate and Agent shall have the right to
convert the interest rate on all outstanding LIBOR Rate Loans to the rate then
applicable to Prime Rate Loans hereunder.
(b) LIBOR Election.
(i) CBI may, at any time and from time to time, so
long as no Event of Default has occurred and is continuing, elect to
exercise the LIBOR Option by notifying Agent prior to 11:00 a.m.
(California time) at least three (3) Business Days prior to the
commencement of the proposed Interest Period (the "LIBOR Deadline").
Notice of CBI's election of the LIBOR Option for a permitted portion of
the Revolving Loans or Original Term Loans and an Interest Period
pursuant to this Section shall be made by delivery to the Agent of a
LIBOR Notice received by Agent before the LIBOR Deadline, or by
telephonic notice received by the Agent before the LIBOR Deadline (to be
confirmed by delivery to the Agent of a LIBOR Notice received by Agent
prior to 5:00 p.m. New York City time (California time) on the same day.
Promptly upon its receipt of each such LIBOR Notice, the Agent shall
provide a copy thereof to each of the Existing Lenders.
(ii) Each LIBOR Notice shall be irrevocable and binding
on CBI. In connection with each LIBOR Rate Loan, CBI shall indemnify,
defend, and hold the Agent and the Existing Lenders harmless against any
loss, cost, or expense incurred by the Agent or any Existing Lender as a
result of (a) the payment of any principal of any LIBOR Rate Loan other
than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any LIBOR Rate
Loan other than on the last day of the Interest Period applicable
thereto, or (c) the failure to borrow, convert, continue or prepay any
LIBOR Rate Loan on the date specified in any LIBOR Notice delivered
pursuant hereto (such losses, costs, and expenses, collectively, "Funding
Losses"). Funding Losses shall, with respect to the Agent or any Existing
Lender, be deemed to equal the amount determined by the Agent or such
Existing Lender to be the excess, if any, of (i) the amount of interest
that would have accrued on the principal amount of such LIBOR Rate Loan
had such event not occurred, at the LIBOR Rate that would have been
applicable thereto, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of
a failure to borrow, convert, or continue, for the period that would have
been the Interest Period therefor), minus (ii) the amount of interest
that would accrue on such principal amount for such period at the
interest rate which the Agent or such Existing Lender would be offered
were it to be offered, at the commencement of such period, for Dollar
deposits of a comparable amount and period in the London interbank
market. A certificate of the Agent or an Existing Lender delivered to CBI
setting forth any amount or amounts that the Agent or such Existing
Lender is entitled to receive pursuant to this Section shall be
conclusive absent manifest error.
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(iii) CBI shall have not more than five (5) LIBOR Rate
Loans in the aggregate in effect at any given time. CBI may only exercise
the LIBOR Option for LIBOR Rate Loans of at least $1,000,000 and integral
multiples of $500,000 in excess thereof.
(c) Prepayments. CBI may prepay LIBOR Rate Loans at any time;
provided, however, that in the event that LIBOR Rate Loans are prepaid on any
date that is not the last day of the Interest Period applicable thereto,
including as a result of any mandatory prepayment in accordance with Section
2.3(b) or for any other reason, including early termination of the term of this
Credit Agreement or acceleration of all or any portion of the Obligations
pursuant to the terms hereof, CBI shall indemnify, defend, and hold Agent and
the Existing Lenders and their Participants harmless against any and all Funding
Losses in accordance with clause (b)(ii) above; provided, however that if any
prepayment would prepay a LIBOR Rate Loan, CBI may elect to either prepay such
Loan at such time or have the Agent hold any such prepayment amount as cash
collateral until the end of the Interest Period applicable to such LIBOR Rate
Loan. All amounts held by the Agent as cash collateral pursuant to this Section
4.8(c) and not yet applied to prepay Loans shall bear interest for the account
of CBI at a rate equal to the Federal Funds Rate. All such interest shall be
treated as a portion of the original amount held as cash collateral by the Agent
and shall be applied to prepay LIBOR Rate Loans, if applicable, in accordance
with this Section 4.8(c).
(d) Special Provisions Applicable to LIBOR Rate.
(i) The LIBOR Rate may be adjusted by the Agent with
respect to any Existing Lender on a prospective basis to take into
account any additional or increased costs to such Existing Lender of
maintaining or obtaining any eurodollar deposits or increased costs due
to changes in applicable law occurring subsequent to the commencement of
the then applicable Interest Period, including changes in tax laws
(except changes of general applicability in corporate income tax laws)
and changes in the reserve requirements imposed by the Board of Governors
of the Federal Reserve System (or any successor), excluding the Reserve
Percentage, which additional or increased costs would increase the cost
of funding loans bearing interest at the LIBOR Rate. In any such event,
the affected Existing Lender shall give CBI and the Agent notice of such
a determination and adjustment and the Agent promptly shall transmit the
notice to each other Existing Lender and, upon its receipt of the notice
from the affected Existing Lender, CBI may, by notice to such affected
Existing Lender (y) require such Existing Lender to furnish to CBI a
statement setting forth the basis for adjusting such LIBOR Rate and the
method for determining the amount of such adjustment, or (z) repay the
LIBOR Rate Loans with respect to which such adjustment is made (together
with any amounts due under clause (b)(ii) above).
(ii) In the event that any change in market conditions
or any law, regulation, treaty, or directive, or any change therein or in
the interpretation or application thereof, shall at any time after the
date hereof, in the reasonable opinion of any Existing Lender, make it
unlawful or impractical for such Existing Lender to fund or maintain
LIBOR Rate Loans or to continue such funding or maintaining, or to
determine or charge interest rates at the LIBOR Rate, such Existing
Lender shall give notice of such
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changed circumstances to the Agent and CBI and the Agent promptly shall
transmit the notice to each other Existing Lender and (y) in the case of
any LIBOR Rate Loans of such Existing Lender that are outstanding, the
date specified in such Existing Lender's notice shall be deemed to be the
last day of the Interest Period of such LIBOR Rate Loans, and interest
upon the LIBOR Rate Loans of such Existing Lender thereafter shall accrue
interest at the rate then applicable to Prime Rate Loans, and (z) CBI
shall not be entitled to elect the LIBOR Option until such Existing
Lender determines that it would no longer be unlawful or impractical to
do so.
(e) No Requirement of Matched Funding. Anything to the
contrary contained herein notwithstanding, neither Agent, nor any Existing
Lender, nor any of their participants, is required actually to acquire
eurodollar deposits to fund or otherwise match fund any Obligation as to which
interest accrues at the LIBOR Rate. The provisions of this Section shall apply
as if each Existing Lender or its participants had match funded any Obligation
as to which interest is accruing at the LIBOR Rate by acquiring eurodollar
deposits for each Interest Period in the amount of the LIBOR Rate Loans.
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 ORIGINAL CLOSING DATE CONDITIONS.
The obligation of each Lender to make Loans and/or of the Issuing
Bank to issue Letters of Credit under the Original Credit Agreement was subject
to the satisfaction, on or prior to the Original Closing Date, of the following
conditions precedent (all of which were either satisfied or waived):
(a) Executed Credit Documents. Receipt by the Agent of duly
executed copies of: the Original Credit Agreement; the Notes issued pursuant to
the Original Credit Agreement; 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 to the Original Credit
Agreement 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 Original 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
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or formation and certified by a secretary or assistant secretary of such
Original Credit Party to be true and correct as of the Original Closing
Date.
(ii) Bylaws. A copy of the bylaws or limited liability
company agreement or similar agreement of each Original Credit Party
certified by a secretary or assistant secretary of such Original Credit
Party to be true and correct as of the Original Closing Date.
(iii) Resolutions. Copies of resolutions of the Board of
Directors or similar managing body of each Original 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 Original
Credit Party to be true and correct and in force and effect as of the
Original Closing Date.
(iv) Good Standing. Copies of (i) certificates of good
standing, existence or its equivalent with respect to each Original
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
Original Credit Party certified by a secretary or assistant secretary to
be true and correct as of the Original Closing Date.
(c) Financial Statements. Receipt by the Agent and the
Lenders of the unaudited balance sheet of CBI as of, and a statement of income
for the period ending, September 30, 2000 prepared by the chief accounting
officer of CBI and such other information relating to the Borrower Entities
(determined at the Original Closing Date) 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 covered, 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
Original Closing Date, from legal counsel to CBI and the relevant Subsidiaries.
(e) Collateral. Receipt by the Agent of:
(i) searches of Uniform Commercial Code, PPSA or other
similar filings in the jurisdiction of the chief executive office of each
Secured Credit Party (as defined in the Original Credit Agreement) as of
the Original Closing Date 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
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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 CBI, 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
CBI (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. Receipt by the Agent of 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.
Agreement between the Agent and CBI upon the Revolving Credit Borrowing Base
calculation and reporting procedures and receipt by the Agent of 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 CBI
on the Original 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 CBI 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.
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(k) Corporate Structure. The corporate capital and ownership
structure of CBI 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 CBI 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 Original
Closing Date, CBI 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 CBI prepared by its chief accounting officer or
treasurer as to the financial condition, solvency and related matters of CBI, 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. Receipt by the Agent of a
certificate or certificates executed by the president or chief accounting
officer or treasurer of CBI as of the Original Closing Date stating that (i)
after giving effect to the making of the Loans and application of the proceeds
thereof, CBI 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 CBI 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) CBI 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) CBI is in compliance with each of the financial
covenants set forth in Article VIII.
(q) Fees and Expenses. Payment by CBI 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
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CBI in connection with the transactions contemplated by the Credit Documents to
be consummated on the Original 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 CBI on the Original 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 CBI and its Subsidiaries,
taken as a whole, shall have occurred since September 30, 2000 and (ii) on or
prior to the Original 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 CBI 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 CBI, shall be equal to at least $40,000,000.
(v) PACA. Receipt by the Agent of evidence satisfactory to
the Agent that all contracts between CBI 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. Receipt by the Agent of 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 CBI 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 CBI or any of its Subsidiaries to CBI or any of
its Subsidiaries are subordinated to the Obligations, and (ii) all claims of,
and amounts now or in the future owing by CBI or any of its Subsidiaries to CBII
are subordinated to the Obligations.
(x) Sales Agent. Receipt by the Agent of evidence
satisfactory to the Agent that (i) CBCNA is the agent of CBI 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, CBI, (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 CBI 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
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property of, CBI 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 CBI.
(z) Receipt by the Agent of copies, certified by an officer
of CBI 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 CBI and CBII;
(ii) that certain Banana Supply Agreement made
effective as of December 31, 2000 by and between CIL and CBI;
(iii) that certain Business Assignment Agreement made
effective as of December 31, 2000 by and between CBII and CBI;
(iv) that certain U.S. Sale of Fruit Commission Sales
Agreement dated effective as of December 31, 2000 by and between CBI and
CBCNA;
(v) that certain Canadian Sale of Fruit Commission
Sales Agreement dated effective as of December 31, 2000 by and between
CBI and ▇▇▇▇▇▇▇▇ (Canada) Inc.;
(vi) that certain Waiver dated as of December 31, 2000
by and between CIL and CBI; and
(vii) that certain Subordinated Promissory Note dated
December 31, 2000 made by CBI in favor of CBII in an original principal
amount equal to $40,000,000.
5.2 CLOSING CONDITIONS.
The obligation of each Lender to make Loans and/or of the Issuing
Bank to issue Letters of Credit under this Credit Agreement is 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, all other Credit Documents
amended or otherwise modified or executed in connection with the transactions
contemplated by this Credit Agreement, 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 reasonable judgment.
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(b) Corporate Documents. Receipt by the Agent of a
certificate of a secretary or assistant secretary of each Secured Credit Party
certifying that as of the Closing Date the following statements are true and
correct or attaching the following, as applicable.
(i) Charter Documents. The articles or certificates of
incorporation or formation or other charter documents of each Secured
Credit Party have not been amended after the Original Closing Date or, in
the case of Secured Credit Parties that became such after the Original
Closing Date, the date such information was supplied to the Agent.
(ii) Bylaws. The bylaws or limited liability company
agreement or similar agreement of each Secured Credit Party has not been
amended after the Original Closing Date or, in the case of Secured Credit
Parties that became such after the Original Closing Date, the date such
information was supplied to the Agent.
(iii) Resolutions. Copies of resolutions of the Board of
Directors or similar managing body of each Credit Party approving, in the
case of the Borrowers, the Credit Agreement and, in the case of the other
Credit Parties, the transactions contemplated by the Credit Agreement
and, in the case of the Borrowers, authorizing execution and delivery
thereof, and in the case of the other Credit Parties, acknowledging and
reaffirming the Credit Documents to which such other Credit Party is a
party.
(c) Opinions of Counsel. Receipt by the Agent of an opinion,
or opinions (which shall cover, among other things, authority, legality,
validity, binding effect, enforceability) satisfactory to the Agent, addressed
to the Agent and the Lenders and dated the Closing Date, from legal counsel to
the Borrowers.
(d) Officer's Certificates. The Agent shall have received a
certificate or certificates executed by the president or chief accounting
officer or treasurer of CBI as of the Closing Date stating that (i) after giving
effect to the making of the Loans and application of the proceeds thereof, the
Borrowers are 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) except as disclosed to the Agent in writing by the
Borrowers, 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 Borrowers 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 herein or therein to occur on such date, (A) each of
the Borrowers 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 Borrowers
are in compliance with each of the financial covenants set forth in Article
VIII.
(e) Fees and Expenses. Payment by the Borrowers of all fees
and expenses owed by the Borrowers to the Lenders and the Agent, including,
without limitation, payment to the Agent of the fees set forth in the Fee
Letter.
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(f) Material Adverse Change. (i) No material adverse change
in the business, operations, profits or prospects of CBI and its Subsidiaries,
taken as a whole, shall have occurred since September 30, 2002 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.
(g) Availability. The Lenders shall be satisfied that on the
Closing Date (for the purposes of the making of the Term B Loans and the other
Loans to be made on the Closing Date), after reserving for amounts to bring the
current liabilities of CBI and its Subsidiaries (other than the Excluded
Entities) within their terms, the sum of (i) Availability, plus (ii) CBI's and
its Subsidiaries' (other than any Excluded Entity's) unrestricted cash and Cash
Equivalents shall be equal to at least $25,000,000.
(h) Review of Books and Records. Satisfactory review by the
Lenders of the Borrowers' books and records and the operating projections for
CBI and its Subsidiaries performed by a third party.
(i) Review of German Acquisition and German Financing
Documents. Satisfactory review by the Lenders of the German Acquisition and
German Financing Documents.
(j) Completion of German Acquisition. Evidence of completion
of the German Acquisition and the simultaneous funding of the German Financing
with the proceeds of the Term B Loans.
(k) Post-Closing Agreement. Receipt by the agent of a
Post-Closing Agreement, in form and substance satisfactory to the Agent, duly
executed by each of the Borrowers.
(l) 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 Borrowers.
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 respective Borrower of the proceeds of such Term Loan,
Revolving Loan or issuance of such Letter of Credit, shall constitute a
representation and warranty by such 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
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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; and
(iii) No material adverse change in the business,
operations, profits or prospects of CBI and its Subsidiaries, taken as a
whole, shall have occurred since September 30, 2002.
(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
Notwithstanding anything to the contrary in this Credit Agreement
or any of the other Credit Documents, to the extent that any of the
representations and warranties in this Article VI relate to any of the members
of the ▇▇▇▇▇▇▇▇ Fresh German Group other than Atcon or any of their activities,
operations, liabilities, or properties, such representations and warranties
shall be limited in each such instance until May 30, 2003 (the "Bring Down
Date") to the knowledge (after due inquiry) as of the Closing Date of CBI and
its Subsidiaries (other than members of the ▇▇▇▇▇▇▇▇ Fresh German Group). The
Borrowers covenant and agree to prepare and to deliver to each Term B Lender by
the Bring Down Date written supplements to all schedules to this Credit
Agreement so that the representations and warranties in this Article VI are true
and correct as of the Bring Down Date as if such supplements were part of the
applicable schedules and, to the extent that each Term B Lender notifies the
Agent in writing that such supplements are acceptable, such supplements shall
constitute part of the applicable Schedule.
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, each Borrower hereby represents and
warrants to the Lenders and the Issuing Bank as of the Closing Date, on the date
of each extension of credit hereunder and on the Bring Down Date, as follows:
6.1 ORGANIZATION AND QUALIFICATION.
CBI 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
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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.
Each 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).
Each 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. CBI 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 Existing 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,
including without limitation the German Acquisition and the German Financing,
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
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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 each Borrower are the legal, valid and binding
obligations of such Borrower, and with respect to those Credit Documents
executed and delivered by any of CBI's Subsidiaries, of each such Subsidiary,
and are enforceable against each 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.
CBI has furnished to the Lenders the following financial
statements (the "Financials"): (i) the unaudited consolidated balance sheet of
CBI as of, and consolidated statements of income for the fiscal year ended,
December 31, 2001; (ii) the unaudited consolidated balance sheet of CBI as of,
and consolidated statement of income for the nine (9) months ended, September
30, 2002 prepared by the chief accounting officer of CBI and (iii) the unaudited
consolidated balance sheet of "Hameico" Fruit Trade GmbH ("Hameico"), as of, and
consolidated statement of income for the years ended, September 30, 2002 and
2001, prepared by the chief accounting officer of Atlanta. 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 CBI, except as provided in Section 7.1, and fairly present the
financial condition of CBI 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
(other than the financial statements of Hameico previously provided to the
Lenders which shall have been prepared in accordance with German generally
accepted accounting principles) consistently applied throughout the periods
involved, except as provided in Section 7.1 or as otherwise disclosed in such
financial statements. Since September 30, 2002, 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,
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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 CBI 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 CBI 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 CBI or any of its Subsidiaries nor is there
now pending or, to the best of each Borrower's knowledge after diligent inquiry,
threatened any litigation, contested claim, investigation, arbitration, or
governmental proceeding by or against CBI 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 CBI 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.
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6.12 NO EMPLOYEE DISPUTES.
There are no controversies pending or, to the best of each
Borrower's knowledge after diligent inquiry, threatened between CBI 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 CBI 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 CBI 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 CBI 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 CBI 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 CBI 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 CBI 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 CBI, 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. CBI, 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. Except as previously
reported to the Agent, no Termination Event has occurred nor
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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 CBI, 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 CBI 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 CBI 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 each Borrower's knowledge, none of the operations of CBI 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 each Borrower's
knowledge, none of the operations of CBI or any of its Subsidiaries is the
subject of any federal or state investigation evaluating whether CBI 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 any
Borrower's share of the cost of remediation or clean-up would exceed $250,000.
Except as disclosed on Schedule 6.16, neither CBI 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 CBI's
share of the cost of remediation or clean-up would exceed $250,000. Except as
disclosed on Schedule 6.16, neither any Borrower nor any of its Subsidiaries has
any contingent liability of which any Borrower has knowledge or reasonably
should have knowledge in connection with any release of any hazardous or toxic
waste, substance or constituent, nor has any 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.
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6.17 USE OF PROCEEDS.
All proceeds of the Loans will be used only in accordance with
Section 7.13.
6.18 INTELLECTUAL PROPERTY.
CBI 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 CBI and
its Subsidiaries, and all pending applications for any such registrations, (b)
all of the patents and registered copyrights of CBI 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 CBI 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"). CBI 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 CBI 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 CBI 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 CBI 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 CBI, or any of its Subsidiaries, and, to the
knowledge of CBI 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 CBI 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 CBI and its
Subsidiaries, the use of each of the Proprietary Rights by CBI 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 CBI 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, except such alleged infringement that is not
reasonably likely to have a Material Adverse Effect. Neither CBI 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 each Borrower's knowledge, no Person is
infringing on any of the Proprietary Rights, unless such alleged infringement
could not reasonably be expected to have a Material Adverse Effect. All of the
Proprietary Rights of CBI and its Subsidiaries are valid and enforceable rights
of CBI 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. CBI is the owner of the Proprietary Rights which are the subject of the
Appraisal and CBII does not own any of such Proprietary Rights.
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6.19 LICENSES AND PERMITS.
CBI 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 CBI 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.
Other than as set forth in Schedule 6.20, 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 CBI, and in each case subject to no Liens other
than Permitted Liens.
6.21 LABOR MATTERS.
Other than set forth in Schedule 6.21, there is (a) no material
unfair labor practice complaint pending against CBI or any of its Subsidiaries
or, to the best knowledge of CBI, 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
CBI or any of its Subsidiaries or, to the best knowledge of each Borrower,
threatened against any of them, (b) no strike, labor dispute, slowdown or
stoppage pending against CBI or any of its Subsidiaries or, to the best
knowledge of each 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 CBI 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 CBI 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 CBI nor any of its Subsidiaries owns any margin stock
(other than margin stock of CBII owned as of the Closing Date with a fair market
value of less than $50,000) and no
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portion of the proceeds of any Loans or Letters of Credit shall be used by any
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, no
Borrower is aware of any proposed material tax assessments against it or any
other Borrower Entity.
6.26 INDEBTEDNESS; CBII OBLIGATIONS.
Neither CBI 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 CBI 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 CBI 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 CBI'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. CBI 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 CBI 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.
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6.28 REPRESENTATIONS AND WARRANTIES.
Each of the representations and warranties made in the Operative
Documents by CBI and its Subsidiaries and, to the knowledge of each 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 one or more Borrower Entities 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 CBI 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 CBI or any of CBI's Subsidiaries is a
party except (a) in the ordinary course of and pursuant to the reasonable
requirements of CBI's or such Subsidiary's business and (b) upon fair and
reasonable terms no less favorable to CBI or 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 CBI 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 CBI or any of its
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 each Borrower believes in good faith are
reasonable at the time such projections are delivered to the Agent or such
Lenders.
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6.34 ATCON.
Atcon has no assets or operations other than its loan (and
security rights related thereto) to Euro Sub as a part of the German Financing.
ARTICLE VII.
AFFIRMATIVE COVENANTS
Until termination of this Credit Agreement and the Existing
Commitments hereunder and payment and satisfaction of all Obligations due or to
become due hereunder, each 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 Aggregate
Required Lenders (or, if the provisions of this Article VII explicitly state
otherwise, the Existing Required Lenders or the Term B Required Lenders, as
applicable) shall have otherwise consented in writing:
7.1 INFORMATION.
Each Borrower will furnish to the Lenders the following
information within the following time periods:
(a) within one hundred and twenty (120) days after the close
of each fiscal year of CBI both (i) the audited consolidated balance sheet and
consolidated statements of income, shareholder's equity and cash flow of CBI 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 CBI 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 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 CBI and approved by the
Aggregate Required Lenders;
(b) within sixty (60) days after the end of each of the first
three (3) fiscal quarters of CBI, both (i) the unaudited consolidated balance
sheet, consolidated statement of income and consolidated statement of cash flow,
of CBI 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 CBI 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 CBI and consistent with the Financials, together with a
certificate of the chief accounting officer or treasurer of CBI stating that
such financial statements fairly present the financial condition of CBI and its
consolidated Subsidiaries or CBI and its consolidated Subsidiaries (other than
CPF and its Subsidiaries) at the dates thereof and the results of their
operations for the periods indicated
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(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 sixty (60) days after the end of each fiscal
December and within thirty (30) days after the end of each other fiscal month of
CBI (other than January, March, June and September), 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
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 CBI, certified by the chief accounting officer or treasurer of CBI
as being a true and correct copy;
(d) at the time of delivery of the quarterly financial
statements of CBI pursuant to paragraph (b) above and the annual financial
statements pursuant to paragraph (a) above, a compliance certificate, executed
by the chief accounting officer or treasurer of CBI, in substantially the form
of Exhibit F attached hereto, and stating that such officer has caused this
Credit Agreement to be reviewed and has no knowledge of any default by any
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 CBI 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) within thirty (30) days after the end of each fiscal
month of CBI (provided, that if Availability, plus the amount of CBI's and its
Subsidiaries' (other than any Excluded Entity's) unrestricted cash and Cash
Equivalents is less than $20,000,000, such reporting shall be done weekly), 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 CBI's chief accounting officer or treasurer, detailing, among
other things, CBI's Eligible Accounts Receivable as of the end of the
immediately preceding month end and the then outstanding amount of all amounts
owing by CBI to Persons (other than CIL) for the purchase of bananas and
plantains. In addition, within thirty (30) days after the end of each fiscal
month of CBI (or if such day is not a Business Day, then on the next succeeding
Business Day), CBI 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 CBI or its
Subsidiaries and a report as to all banana and plantain supplier accruals owing
by CBI (which report shall include a schedule of amounts owing to CIL by CBI 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
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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 CBI (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 monthly compliance certificate executed by the
person preparing such report, in substantially the form of Exhibit F-1 attached
hereto including a report setting forth (i) the aggregate amounts paid to CBII
during such month by CBI and its Subsidiaries (and the reasons therefor,
including detailed information regarding payments during such month and for the
year to date) of (A) Allocated CBII Overhead, (B) Unallocated CBII Overhead and
(C) Permitted Restructuring Expenses; (ii) the aggregate amount owing to CBII by
CBI 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) and the amount, as of the last day of such
month, of all proceeds of sales of Tropical Farms after the Original Closing
Date that have been used to make Capital Expenditures; (vi) a report detailing
all Assets Dispositions with a value not exceeding $1,000,000, 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 CBI of all management letters and other material reports which are
prepared by its Independent Accountants in connection with any audit of CBI's
financial statements by such Accountants;
(h) (A) within one hundred and twenty (120) days after the
close of each fiscal year of CBI, the unaudited consolidated balance sheet and
consolidated statement of income of Hameico on the same basis as, and in a form
similar to, that presented in CBII's annual report on Form 10-K; and
(B) within sixty (60) days after the end of the first
three (3) fiscal quarters of CBI, the unaudited consolidated balance sheet and
consolidated statement of income of Hameico on the same basis as and in a form
similar to that presented in CBII's quarterly reports on Form 10-Q;
(i) no later than thirty (30) days after the end of CBI's
fiscal year during each year when this Credit Agreement is in effect, a forecast
for the current fiscal year of (i) CBI 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) CBI and its Subsidiaries (other
than CPF and its Subsidiaries)
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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 CBI'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 CBI specifying the nature thereof and CBI's proposed response
thereto, each in reasonable detail;
(k) promptly upon a responsible officer of any 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.
Each 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.
CBI will deliver to the Agent, at the Borrowers' expense, the
following information at the times specified below:
(a) within ten (10) Business Days after CBI, 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 CBI describing such Termination Event and the action, if
any, which CBI 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 Service, DOL or PBGC with respect thereto;
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(b) within ten (10) Business Days after CBI, 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 CBI describing such transaction and the action which CBI 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 Service or PBGC, copies of each annual report
(form 5500 series), including all schedules and attachments thereto, filed with
respect to each Benefit Plan of CBI, its Subsidiaries or any Controlled ERISA
Affiliate;
(d) within thirty (30) Business Days after receipt by CBI,
any of its Subsidiaries or any Controlled ERISA Affiliate of each actuarial
report for any Benefit Plan or Multiemployer Plan of CBI, any of 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 Service, a copy of any funding waiver request with
respect to any Benefit Plan of CBI, its Subsidiaries or any Controlled ERISA
Affiliate and within three (3) Business Days after receipt of any communications
received by CBI, any of its Subsidiaries or any Controlled ERISA Affiliate with
respect to such request;
(f) within sixty (60) Business Days upon the occurrence
thereof, notification of any increase in the benefits of any existing Benefit
Plan of CBI, any of its Subsidiaries or any Controlled ERISA Affiliate or the
establishment of any new Benefit Plan of CBI, any of its Subsidiaries or any
Controlled ERISA Affiliate or the commencement of contributions to any Benefit
Plan to which CBI, any of its Subsidiaries or any Controlled ERISA Affiliate was
not previously contributing;
(g) within ten (10) Business Days after receipt by CBI, 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 CBI, 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 CBI, any of 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 CBI, 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 CBI, 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;
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(k) within ten (10) Business Days after CBI, any of its
Subsidiaries or any Controlled ERISA Affiliate knows (a) a Multiemployer Plan of
CBI, any of its Subsidiaries or any Controlled ERISA Affiliate has been
terminated, (b) the administrator or plan sponsor of a Multiemployer Plan of
CBI, 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
CBI, its Subsidiaries or any Controlled ERISA Affiliate, a written statement
setting forth any such event or information;
(l) within ten (10) Business Days after CBI, 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 CBI or any of 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 CBI describing such transaction and
the action which CBI or other such entities have taken, are taking or propose to
take with respect thereto; and
(m) within thirty (30) days after receipt by CBI or any of
its Subsidiaries of each actuarial report for any Retiree Health Plan of CBI or
any of its Subsidiaries, copies of each such report.
For purposes of this Section 7.4, CBI, 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.
CBI will establish, maintain and operate all Benefit Plans of CBI,
any 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 CBI 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.
Each Borrower will as soon as practicable, and in any event within
thirty (30) Business Days after any 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 CBI 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) that is reasonably likely to
expose CBI or any of its Subsidiaries to liability in excess of $2,500,000
(without regard to whether any or all of such amount is covered by insurance).
Each Borrower will as soon as possible, and in any event within five (5)
Business Days after any Borrower learns of the following, give written notice to
the Agent of any Material Adverse Change. Provision of any such notice by any
Borrower will not constitute a waiver or excuse of any Default or Event of
Default occurring as a result of such changes or events.
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7.6 ENVIRONMENTAL MATTERS.
Each 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 such 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 each
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 such 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 any 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 CBI 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 CBI or any of its Subsidiaries
alleging violations of any federal, state or local environmental law,
regulation, direction or ordinance requiring CBI 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 $500,000 or (c) receive any notice from a federal, state, or
local governmental agency or private party alleging that CBI 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, CBI will provide the
Agent with a copy of such notice within forty-five (45) days after the receipt
thereof by CBI or any of its Subsidiaries. Within forty-five (45) days after any
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, such Borrower will provide the
Agent with notice thereof. Each 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 any
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 such Borrower, such 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) Each 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.
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(b) Each Borrower agrees that the Agent or its agents may
enter upon the premises of such 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 CBI's expense (such
expense to include amounts specified in Section 14.8), (b) inspecting the
Collateral, (c) inspecting and/or copying (at CBI's expense) any and all records
pertaining thereto, (d) discussing the affairs, finances and business of any
Borrower with any officers and employees of any Borrower, (e) discussing the
affairs, finances and business of any Borrower with the Independent Accountant,
but only so long as the Agent has provided prior notice to such 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. Each 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. Each 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.
Each 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. Any 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. Each 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.
Each 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. Each 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. Each
Borrower agrees to, and will cause each Borrower Entity to, do whatever the
Agent may reasonably request, from time to
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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 Borrowers. If the same are
not promptly paid by the Borrowers, the Agent may pay the same on the Borrowers'
behalf, and the amount thereof shall be an Obligation secured hereby and due to
the Agent on demand.
7.10 INSURANCE; ASSET LOSS.
Each 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 Agent and the Lenders as additional insureds
on liability policies and the Agent and CBI as loss payees in case of property
loss, as its 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 CBI 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 CBI and its
Subsidiaries are to be delivered to the Agent, to the extent such policies or
certificates have not been previously 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 CBI or any
of its Subsidiaries fails 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, CBI 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. Each Borrower will, and will cause each of its Subsidiaries to,
provide written notice to the Lenders of the occurrence of any of the following
events within fifteen (15)
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Business Days after the end of any quarter in which the CBI's risk management
department learns (or should reasonably have learned) of the occurrence of such
event: any asset or property owned or used by CBI or any of its Subsidiaries
that has an estimated replacement value equal to or greater than $500,000 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
CBI and its Subsidiaries is in excess of, in the aggregate for CBI and all of
its Subsidiaries, $2,000,000 in any fiscal year of CBI (any such damage,
destruction, loss or diminution in value of the Collateral is referred to herein
as an "Asset Loss"). Each Borrower will, and will cause each of its Subsidiaries
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, each 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 any such Subsidiary on account of damage, destruction or
loss of all or any portion of the assets of CBI 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 the
applicable Borrower (or as directed by the applicable Borrower) any such
insurance proceeds to which the applicable Borrower is entitled, (ii) the rights
of any lessor or secured creditor senior to Agent, if the underlying obligation
is permitted by this Credit Agreement and (iii) the application of Net Cash
Proceeds from Asset Losses pursuant to Section 2.3(b)(vi)(C). The Agent may,
with the consent of the Existing Required Lenders or Term B Required Lenders, as
applicable, either (a) apply the proceeds realized from Asset Losses, as set
forth in Section 2.3(b)(vi) or (b) pay such proceeds to the applicable 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 Aggregate Required Lenders and (ii) the Agent
may participate in any such proceedings and each 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. Each 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 each 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.
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7.11 TAXES.
Each Borrower will, and will cause each of its Subsidiaries to,
pay, when due and in any event prior to delinquency, all Taxes lawfully levied
or assessed against such 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 a 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.
Each 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 to (i) CBI shall be used by CBI 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) and (ii) Atcon
shall be used solely to fund the German Financing; provided, however, that in
any event, no portion of the proceeds of any such advances shall be used by CBI
or Atcon 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.
Each 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.
Each Borrower agrees that it will promptly notify the Agent of the
occurrence of any of the following events:
(a) any Material Contract of CBI 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 CBI shall provide the Agent with a copy
of such Material Contract); or
(b) any of the terms upon which suppliers to CBI or any of
its Subsidiaries do business with CBI 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
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(c) any order, judgment or decree in excess of $2,500,000
shall have been entered against CBI 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 CBI
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 sixty (60) Business Days, upon
any Person becoming a direct or indirect Subsidiary of CBI or upon any
Subsidiary which was an Inactive Subsidiary ceasing to be an Inactive
Subsidiary, CBI 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, provided, however, that until (i) CBI has provided the Agent written
notice of the formation of any new Subsidiary or that a formerly Inactive
Subsidiary is ceasing to be an Inactive Subsidiary and (ii) such Subsidiary or
Subsidiaries have signed any necessary Joinder Agreements, Security Agreements,
Pledge Agreements or Guaranty Agreements required by the terms of this
Agreement, neither CBI nor any of its Subsidiaries shall invest more than
$500,000 in each such Subsidiary or $1,000,000 in the aggregate at any time
outstanding in all such Subsidiaries.
7.17 SCHEDULES OF ACCOUNTS AND PURCHASE ORDERS.
In furtherance of the continuing assignment and security interest
in the Accounts of CBI granted pursuant to the Security Agreement, upon the
creation of Accounts, CBI 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, CBI will
provide the Agent with copies of agreements with, or purchase orders from, the
customers of CBI 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. CBI hereby authorizes the
Agent to regard CBI's or any of its Subsidiaries' printed name or rubber stamp
signature on assignment
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schedules or invoices as the equivalent of a manual signature by CBI's or such
Subsidiaries' authorized officers or agents.
7.18 COLLECTION OF ACCOUNTS.
(a) Other than amounts received from the sale of promotional
items to employees at CBI's corporate headquarters and other similar de minimus
amounts which are deposited in an account at US 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 the
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, N.A., in CBI's name for the benefit of
the Agent) (each an "Agent Bank Account") and each 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 of CBI and its Subsidiaries' (other than any Excluded Entity) 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 any Borrower or any of its Subsidiaries with respect to any Accounts
shall be held by such Borrower or any of its Subsidiaries in trust for the
benefit of the Lenders, separate from such 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, CBI
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. CBI 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 Aggregate Required
Lenders. After the occurrence and during the continuance of an Event of Default,
CBI agrees that all returned, reclaimed or repossessed merchandise or goods
shall be set aside by CBI, marked with the Lenders' name and held by CBI for the
Lenders' account as owner and assignee.
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7.20 ACKNOWLEDGMENT AGREEMENTS.
CBI will assist the Agent in obtaining executed Acknowledgment
Agreements from each of the warehousemen, processors, packers, fillers,
landlords and mortgagees with whom CBI conducts business from time to time.
7.21 TRADEMARKS ETC.
Each 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 such 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.
Each 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, CBI shall deliver to the Agent
and the Lenders as part of the compliance certificate required pursuant to
Section 7.1(d) (or earlier if CBI 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 and the Aggregate Required Lenders, 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.
Each 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.
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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.
Each Borrower shall, and shall cause each Borrower Entity to:
(a) Promptly provide the Agent with a copy of any notice
received by any Borrower Entity 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) CBI 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 CBI 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 CBI has obtained a
waiver of the vendors' rights under PACA. Notwithstanding anything to the
contrary contained in this Section 7.28(a), neither CBI nor any Subsidiary shall
be obligated to pay amounts on any invoice with respect to which CBI 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) CBI 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 CBI, (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 CBI nor any
Subsidiary shall be obligated to pay the full amount of any invoice which is
subject to offset by CBI or such Subsidiary pursuant to Section 46.46(e)(4)
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of the regulations promulgated under PACA. This Section 7.28 should not be
construed to impose a responsibility on CBI or any of its Subsidiaries to pay to
the vendor or report to the Agent any informal or formal complaints received by
CBI 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 Existing
Commitments hereunder and payment and satisfaction of all Obligations due or to
become due hereunder, each Borrower agrees that, unless the Aggregate Required
Lenders shall have otherwise consented in writing:
8.1 LEVERAGE RATIO.
CBI and its consolidated Subsidiaries (other than CPF and its
Subsidiaries) shall have a Leverage Ratio, as of the end of each fiscal quarter
of CBI of no greater than 2.65:1.00.
8.2 FIXED CHARGE COVERAGE RATIO.
CBI and its consolidated Subsidiaries (other than CPF and its
Subsidiaries) shall have a Fixed Charge Coverage Ratio (tested quarterly), of at
least 1.00:1.00 for the four (4) fiscal quarter period then ended.
8.3 CAPITAL EXPENDITURES.
CBI shall not, and shall not permit its Subsidiaries (other than
CPF and its Subsidiaries and the ▇▇▇▇▇▇▇▇ Fresh German Group) 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
---------------------- --------------------------
2002 $50,000,000
2003 - and each fiscal $55,000,000
year thereafter
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.
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8.4 EBITDA.
CBI and its consolidated Subsidiaries (other than CPF and its
Subsidiaries) shall have Consolidated EBITDA of at least (i) $140,000,000 for
the four (4) fiscal quarter period ending December 31, 2002 and (ii)
$150,000,000 for the four (4) fiscal quarter period ending on March 31, 2003 and
each fiscal quarter thereafter.
8.5 ▇▇▇▇▇▇▇▇ FRESH LATIN AMERICAN GROUP.
(a) CBI 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 a period not to exceed two (2) Business Days.
(b) CBI 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) $25,000,000 during
fiscal year 2002; (ii) $30,000,000 during fiscal year 2003; and (iii)
$30,000,000 during fiscal year 2004; 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.
8.6 ▇▇▇▇▇▇▇▇ FRESH GERMAN GROUP.
(a) CBI shall not permit the aggregate amount of cash and
Cash Equivalents owned or maintained by Persons which are members of the
▇▇▇▇▇▇▇▇ Fresh German Group to exceed $10,000,000 at any time, provided that
such members may own or maintain up to $15,000,000 of cash and Cash Equivalents
from time to time for a period not to exceed two (2) Business Days.
(b) CBI shall not permit Persons which are members of the
▇▇▇▇▇▇▇▇ Fresh German Group to make or commit to make Capital Expenditures in an
aggregate amount for all of the Persons which are members of the ▇▇▇▇▇▇▇▇ Fresh
German Group in excess of $15,000,000 during either fiscal year 2003 or fiscal
year 2004; 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 8.6.
ARTICLE IX.
NEGATIVE COVENANTS
Until termination of the Credit Agreement and the Existing
Commitments hereunder and payment and satisfaction of all Obligations due or to
become due hereunder, each Borrower agrees that, unless the Aggregate Required
Lenders (and, with respect to any decision or action that directly or indirectly
impacts the ▇▇▇▇▇▇▇▇ Fresh German Group, the Term B
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Required Lenders) shall have otherwise consented in writing, it will not, and
will not permit any of its Subsidiaries to (provided, however, that nothing
contained herein shall prohibit the Secondary Transactions):
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 CBI)
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 (i) assets
or properties (other than Inventory, Proprietary Rights or Capital Stock of any
Subsidiary of CBI) used in a Borrower's or a Subsidiary's business that are worn
out or (ii) the Capital Stock of a Subsidiary, if such Subsidiary owns only
assets which are worn out (it being agreed that the Net Cash Proceeds of each
such sale of worn out assets or Capital Stock shall be reinvested by the
applicable selling entity in the ordinary course of business to replace such
worn out assets or properties within 120 days of receipt of such Net Cash
Proceeds, and to the extent such Net Cash Proceeds have not been reinvested
within such 120 days, such Net Cash Proceeds shall, on the 121st day following
receipt thereof, be paid to the Agent and applied to repay outstanding Loans
pursuant to Sections 2.3(b)(iii) and (vi)),
(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 (i) assets (other than Accounts, Proprietary Rights,
general intangibles or Tropical Farms (or equity interests in Persons which own
only Tropical Farms)) that are no longer needed or useful in such Person's
operations or (ii) the Capital Stock of a Subsidiary, if such Subsidiary is, or
owns only
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assets which are, no longer needed or useful in such Person's operations, as
long as in any instance where the aggregate consideration received by CBI and
its Subsidiaries exceeds $500,000, (i) at least seventy-five percent (75%) of
the consideration received by CBI 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 Original Closing Date does not exceed $20,000,000,
(iii) the assets or Subsidiary so sold after the Original Closing Date 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) CBI can demonstrate that had such sale
occurred immediately prior to the then most recently completed four fiscal
quarter period, the Borrowers would have been in compliance with the financial
covenants set forth herein, and (v) CBI delivers a certificate executed by an
authorized officer of CBI 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 Original 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 CBI
and its Subsidiaries (to Persons other than CBI or its Subsidiaries) during the
then most recently completed fiscal year of CBI (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) CBI delivers a certificate executed by an
authorized officer of CBI 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 the Net Cash Proceeds of each such sale of a Tropical Farm or equity
interests shall be reinvested by the applicable selling entity in the ordinary
course of business within 120 days of receipt of such Net Cash Proceeds 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 Original Closing Date) not to exceed $2,500,000, and to the extent
such Net Cash Proceeds have not been reinvested within such 120 days, such Net
Cash Proceeds shall, on the 121st day after receipt thereof, be paid to the
Agent and applied to repay outstanding Loans pursuant to Sections 2.3(b)(iii)
and (vi));
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(i) 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, by any member of the ▇▇▇▇▇▇▇▇ Fresh German Group of its assets
(and equity interests in Persons which own only ▇▇▇▇▇▇▇▇ Fresh German Group
members) as long as: (i) if, and to the extent that, the aggregate Net Cash
Proceeds of all such sales occurring after the Closing Date (A) are less than
$2,000,000, such Net Cash Proceeds shall be used as the applicable ▇▇▇▇▇▇▇▇
Fresh German Group member deems appropriate (and as otherwise permitted
hereunder), (B) are greater than or equal to $2,000,000 but less than or equal
to $5,000,000, such Net Cash Proceeds are used as follows: (1) 50% of such Net
Cash Proceeds shall be used as the applicable ▇▇▇▇▇▇▇▇ Fresh German Group member
deems appropriate (and as otherwise permitted hereunder) and (2) 50% of such Net
Cash Proceeds shall be used to repay outstanding Term B Loans pursuant to
Section 2.3(b)(vi) and (C) are greater than $5,000,000, such Net Cash Proceeds
shall be used to repay outstanding Term B Loans pursuant to Section 2.3(b)(vi);
and (ii) Atcon delivers a certificate executed by an authorized officer of Atcon
representing and warranting to the Agent and the Lenders that the conditions set
forth in clause (i) of this Section 9.3(i) have been satisfied or complied with
and that the applicable selling entity received fair market value for the
applicable ▇▇▇▇▇▇▇▇ Fresh German Group asset or equity interests;
(j) the transactions set forth in Schedule 9.3A hereto; and
(k) sales by a Subsidiary, 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 its assets or the equity interests or assets
of any of its Subsidiaries to another Subsidiary, as long as: (1) if the selling
Subsidiary is a Secured Credit Party, the buying Subsidiary shall be CBI or a
Secured Credit Party, (2) if the selling Subsidiary is a Guarantor, the buying
Subsidiary shall be CBI, a Secured Credit Party or a Guarantor, (3) if the
selling Subsidiary is a signatory to the Covenant Compliance Agreement, the
buying Subsidiary shall be CBI, a Secured Credit Party, a Guarantor or a
Subsidiary that is also a party to the Covenant Compliance Agreement, and (4) if
the selling Subsidiary is an Excluded Entity, the buying Subsidiary shall be
CBI, a Secured Credit Party, a Guarantor, a Subsidiary party to the Covenant
Compliance Agreement or an Excluded Entity, (5) notice of any such sale is given
to the Agent in writing within ten (10) Business Days prior to consummation of
the sale and (6) such sale does not materially impair the Collateral taken as a
whole or the value thereof to the Lenders.
Notwithstanding the foregoing, the Borrowers shall not be required
to pay to the Agent any asset proceeds obtained from a sale or disposition made
pursuant to the terms of clause (d) or (h) above if the sum of (i) the aggregate
amount of such proceeds plus (ii) the aggregate amount of all proceeds
previously received as consideration for a sale or disposition permitted
pursuant to clause (d) or (h) above that have not already been paid to the Agent
is less than $1,000,000; provided however, that once the sum of all proceeds
received pursuant to sales permitted pursuant to clause (d) or (h) above which
have not been paid to the Agent (and, but for this paragraph, would be required
to be paid to the Agent) equals or exceeds $1,000,000 (the "Aggregation Date"),
all such proceeds which have not been paid to the Agent and which were received
and not reinvested more than 120 days prior to the Aggregation Date must be paid
to Agent within thirty (30) days after the end of the fiscal month in which the
amount of unpaid proceeds received pursuant to sales or dispositions permitted
pursuant to (d) or (h) above reaches $1,000,000.
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Notwithstanding anything to the contrary in this Section 9.3, each
Borrower agrees that, unless the Term B Required Lenders shall have otherwise
consented in writing, it will not, and will not permit any of its Subsidiaries
to sell, pledge or assign (other than pursuant to the Credit Documents): (a)
stock of Atcon, (b) stock of Euro Sub, (c) stock of Atlanta, (d) intercompany
claims owing to Atcon from Euro Sub, (e) intercompany claims owing to Euro Sub
from Atlanta and (f) intercompany claims owing to Atlanta from its Subsidiaries.
9.4 NO CORPORATE CHANGES.
(i) Merge or consolidate with any Person unless such merger
or consolidation does not materially impair the Collateral taken as a whole or
the value thereof to the Lenders; 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) a Borrower, such Borrower is the surviving entity,
(y) a Secured Credit Party (but not a 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 CBI may merge or
consolidate with and into a Credit Party (as long as (x) if either of such
Persons is a Borrower, the surviving entity is such Borrower, (y) if neither of
such Persons is a 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, (c) any
Subsidiary of CBI which is not a Credit Party may merge or consolidate with any
Subsidiary of CBI 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) and (d) one or more members of the ▇▇▇▇▇▇▇▇ Fresh German Group
may engage in the transactions described on Schedule 9.4 or (ii) alter or modify
any 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 CBI; 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. Notwithstanding anything to the contrary in this
Credit Agreement, clauses (i) and (ii) of this Section 9.4 shall not apply to
CIL.
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 CBI, 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, (c)
a guaranty of Indebtedness if the Indebtedness so guaranteed would itself
constitute Permitted Indebtedness of the incurring guarantor, (d) a guaranty of
a real property lease by CBI or one of its Subsidiaries for real property leases
entered into by (i) CBI or (ii) one of CBI's Subsidiaries that is not an
Excluded Entity or Inactive Subsidiary and (e) guarantees by members of the
▇▇▇▇▇▇▇▇ Fresh German Group and listed on Schedule 9.5; provided, that (i) any
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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 CBI or any Subsidiary of CBI), (ii) GWF may guarantee the obligations of
its Subsidiaries or Subsidiaries of CBI, (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, (vi) any member of the ▇▇▇▇▇▇▇▇ Fresh German
Group may guarantee the obligations (other than Indebtedness) of any other
member of the ▇▇▇▇▇▇▇▇ Fresh German Group and (vii) 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 CBI or any Subsidiary of CBI, provided, however, that any
Subsidiary may make cash dividends with respect to its common equity to entities
that are not Subsidiaries or Affiliates of CBI in an aggregate amount for all
Subsidiaries not to exceed $300,000 per annum as long as any such cash dividend
is simultaneously paid, on a pro rata basis (based upon each Person's equity
ownership in such Subsidiary) to all holders of such Subsidiary's equity, (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 the difference of (i) $46,000,000 less
(ii) the payments made by CBI in respect of certain contractual obligations to
vendors and service providers relating to normal operations that CBI has assumed
from CBII with the consent of the Existing Required Lenders, (e) [intentionally
omitted], and (f) payments to CBII which CBII, promptly upon receipt thereof,
uses to pay interest on Indebtedness of CBII which exists as of March 19, 2002
so long as (i) at the time of such payment and immediately after giving effect
to such payment no Event of Default shall have occurred and be continuing and
the sum of Availability plus CBI's and its Subsidiaries' (other than any
Excluded Entity's) unrestricted cash and Cash Equivalents shall be equal to at
least $65,000,000 and (ii) immediately prior to each such payment to CBII, a
duly authorized officer of CBI executes and delivers an officer's certificate to
the Agent certifying that the conditions set forth in subclause (i) of this
clause (f) have been satisfied with respect to such payment.
9.7 NO INVESTMENTS.
Make any Investment other than Permitted Investments.
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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 CBI except (a) in the ordinary course of and
pursuant to the reasonable requirements of CBI's business and upon fair and
reasonable terms no less favorable to CBI 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) Except as set forth on Schedule 9.9, 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 CBI
or 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 CBI, any Subsidiary of CBI 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 CBI, any Subsidiary of CBI 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
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(j) amend, or adopt any new Retiree Health Plan which would
result in any material increase in liability to CBI or any of 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, N.A. in London. All such checking,
savings or other accounts of CBI 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 CBI 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 its 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
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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 CBI 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 Original Closing Date.
9.13 SALE AND LEASEBACK.
Except as set forth on Schedule 9.13, enter into any arrangement,
directly or indirectly, whereby CBI or any of its Subsidiaries shall sell or
transfer any property owned by it to a Person (other than CBI or any of its
Subsidiaries) in order then or thereafter to lease such property or lease other
property which CBI 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, CBI 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 Original Closing Date
(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 CBI or one of its Subsidiaries (from a Person other than
CBI or one of its Subsidiaries) after the Original Closing Date and (iii) such
Sale Leaseback Transactions are consummated within one hundred twenty (120) days
of the initial acquisition of such assets by CBI or one of its Subsidiaries from
a Person other than CBI 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 CBI's historical practices as of the Original Closing
Date, enter into licenses of, or otherwise restrict the use of, any patents,
trademarks or copyrights or other Proprietary Rights. Additionally, neither CBI
nor CIL will allow any party other than the Agent or the Lenders to obtain an
interest, including without limitation, any lien, security interest or charge,
in the trademark or license rights granted under the Trademark License
Agreement; provided, however, that this limitation does not prohibit any
sublicensing of these trademark or license rights as contemplated by the
Trademark License Agreement.
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 any Borrower, (c) make loans or advances
to any Borrower or (d) transfer any of its property to any 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
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time it becomes a Subsidiary of CBI; 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 CBI and was not entered
into in contemplation of such Person becoming a Subsidiary of CBI 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 any 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) CBI to purchase or otherwise acquire bananas
or plantains from any Person other than CIL (provided, however, that in any
consecutive twelve month period CBI 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 CBI) for sales or consumption in
North America or (iii) bananas or plantains to be sold in North America or
Europe by any Subsidiary of CBI if such bananas or plantains were not sold by
CIL directly or through CBCBV to such Subsidiary of CBI (provided, however, that
(a) up to five percent (5%) of the bananas and plantains sold in North America
by CBI 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 and the ▇▇▇▇▇▇▇▇ Fresh German 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) to Schedule 1.1E
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
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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.
9.21 ATCON.
Notwithstanding anything to the contrary contained herein or
otherwise, Atcon shall not (i) have any operations or assets other than the
loans made with the proceeds of the Term B Loans to Euro Sub and the proceeds
thereof and security therefor, (ii) sell, transfer, assign or otherwise convey
any or all of its assets or equity interests other than to the Agent, (iii) use
the proceeds of a payment on a German Note for any purpose other than to make a
payment of principal or interest on Term B Loans or (iv) incur any Indebtedness
(other than the Term B Loans), sell any equity or accept any capital
contribution. In addition, notwithstanding anything to the contrary contained
herein or otherwise, (i) no Person (other than the Term B Lenders) shall make
any loan, advance or capital contribution to (or purchase of equity from) Atcon
and (ii) CBI shall not sell, transfer, assign or otherwise convey any or all of
its equity interest in Atcon (other than to the Agent).
ARTICLE ▇.
▇▇▇▇▇▇
10.1 APPOINTMENT AS ATTORNEY-IN-FACT.
Each Borrower hereby irrevocably authorizes and appoints the
Agent, or any Person or agent the Agent may designate, as such Borrower's
attorney-in-fact, at the Borrowers' 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 the Existing
Commitments have been terminated:
(a) To receive, take, endorse, sign, assign and deliver, all
in the name of the Agent, the Lenders or any 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 any
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 any 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 any Borrower's account;
106
(e) To take or bring, in the name of the Agent, the Lenders
or any 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 CBI 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 any 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 one or more Borrower
Entities, the Agent and the Lenders or executed by one or more Borrower Entities
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 any 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 any 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 any
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 one or more Borrower Entities, the
Agent and the Lenders or executed by one
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or more Borrower Entities 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 any Borrower becomes aware of
its occurrence;
(f) except as permitted in Section 9.4, dissolution,
liquidation, winding up or cessation of the business of any Borrower or any
Subsidiary (other than an Inactive Subsidiary) or the failure of any Borrower or
any Subsidiary to meet its debts generally as they mature, or the calling of a
meeting by any Borrower of any Borrower's or any of its Subsidiaries' creditors
for purposes of compromising any Borrower's or any of its Subsidiaries' debts,
or the admission by any Borrower of its inability to pay its debts as they
become due;
(g) the commencement by or against any 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 any
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 any 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 any 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 any 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 any Borrower to any Credit
Document are illegal, invalid or unenforceable;
(k) the occurrence of a default or event of default (in each
case which shall continue beyond the expiration of any applicable grace periods)
under the German Financing Documents or the failure of Atlanta or Eurosub to pay
any amounts when due under the German Financing Documents;
(l) one or more judgments or decrees shall be entered against
any 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
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such judgments or decrees shall not have been vacated, discharged or stayed or
bonded pending appeal within thirty (30) days from the entry thereof;
(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 any 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); or
(n) (i) CIL merges or consolidates with any Person unless
such merger or consolidation does not materially impair the Collateral taken as
a whole or the value thereof to the Lenders; provided, however, that CIL may
merge or consolidate with and into any Credit Party (as long as) if such merger
or consolidation involves (x) a Borrower, such Borrower is the surviving entity
or (y) a Secured Credit Party (but not a Borrower), a Secured Credit Party is
the surviving entity) or (ii) CIL alters or modifies CIL's organizational
documents or form of organization (other than in connection with an Equity
Issuance permitted hereunder).
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 Aggregate Required
Lenders, the Agent shall, upon the written or telecopied request of the
Aggregate Required Lenders, and by delivery of written notice to any 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 one or more of the Borrowers: (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 the Existing 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 Existing 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 Aggregate 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), CBI 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.
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ARTICLE XII.
TERMINATION
Except as otherwise provided in Article XI of this Credit
Agreement, the Existing 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 no Borrower shall 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 any 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
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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 each Borrower in connection with the taking or not taking of any
action in connection herewith and (ii) its own appraisal of the creditworthiness
of each 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
any 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 any 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 any 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
Aggregate Required Lenders, the Existing Required Lenders or the Term B Required
Lenders, as applicable, or, as required, each of the Lenders. If the Agent shall
request instructions from the Aggregate Required Lenders, the Existing Required
Lenders or the Term B Required Lenders, as applicable, 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 Aggregate Required Lenders, the Existing
Required Lenders or the Term B Required Lenders, as applicable, 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 Aggregate Required Lenders, the Existing Required Lenders or
the Term B Required Lenders, as applicable, 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,
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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 one or more of the Borrowers with respect to matters
concerning one or more of the Borrowers), 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 one
or more of the Borrowers, each Lender will reimburse and indemnify the Agent in
proportion to its respective Existing Commitment and/or outstanding Term B Loans
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 however, that only the Term B Lenders shall be required to
reimburse the Agent (in proportion to their respective outstanding Term B Loans)
for and against any of the liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements incurred by or asserted against the Agent
relating solely to the German Collateral or the German Financing; and provided
further, 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," "Aggregate
Required Lenders," "Existing Required Lenders," "Term B 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
one or more of the Borrowers or any affiliate of one or more of the Borrowers as
if it were not performing the duties specified herein, and may accept fees and
other consideration from the Borrowers 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
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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 CBI, 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 CBI. Upon any such resignation, the
Aggregate 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 Aggregate 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 Aggregate Required
Lenders or the Agent) shall have been approved in writing by CBI (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 CBI. 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 Aggregate 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
Aggregate 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
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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 Existing 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 CBI 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 Aggregate 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 Aggregate Required Lenders or all of the Lenders, as
applicable, and upon at least five (5) Business Days' prior written request by
any 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
CBI or any of its Subsidiaries in respect of) all interests retained by CBI 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 CBI 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.
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(e) The Lenders acknowledge that Foothill has entered 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 Aggregate
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 APPLICATION OF PROCEEDS UPON AN EVENT OF DEFAULT.
(a) All proceeds of Collateral (other than proceeds of German
Collateral) received by the Agent pursuant to the exercise of remedies under the
Credit Documents or otherwise realized upon the occurrence and during the
continuation of an Event of Default shall, when received by the Agent in cash or
its equivalent, be applied as follows: first, to all reasonable costs and
expenses of the Agent (including, without limitation, reasonable attorneys' fees
and expenses) incurred in connection with the implementation and/or enforcement
of the Security Documents and other Credit Documents; second, to all costs and
expenses of the Existing Lenders of Original Term Loans and Revolving Loans
(including, without limitation, reasonable attorneys' fees and expenses)
incurred in connection with the implementation and/or enforcement of the
Security Documents and other Credit Documents; third, to the Original Term
Loans, to be applied to the remaining principal installments thereof in inverse
order of maturity; fourth, to the Revolving Loans (and after all Revolving Loans
have been repaid) to a cash collateral account in an amount equal to existing
Letter of Credit Obligations; fifth, to all costs and expenses of the Term B
Lenders (including, without limitation, reasonable attorneys' fees and expenses)
incurred in connection with the implementation and/or enforcement of the
Security Documents and other Credit Documents; sixth, to the Term B Loans;
seventh, to the payment of any other Obligations (other than Obligations
incurred pursuant to Foreign Currency Exchange Agreements) secured by such
Collateral; eighth, to the payment of any Obligations incurred pursuant to
Foreign Currency Exchange Agreements secured by such Collateral; and ninth, to
the payment of the surplus, if any, to whomever may be lawfully entitled to
receive such surplus. CBI and the Guarantors shall remain liable to the Agent
and the Lenders for any deficiency. Any and all amounts applied pursuant to the
third and fourth clauses of this Section 13.12(a) shall result in a reduction of
both the CBI Maximum Credit Line and the Maximum Credit Line by such amount.
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(b) All proceeds of German Collateral received by the Agent
pursuant to the exercise of remedies under the Credit Documents or otherwise
realized upon the occurrence and during the continuation of an Event of Default
shall, when received by the Agent in cash or its equivalent, be applied as
follows: first, to all reasonable costs and expenses of the Agent (including,
without limitation, reasonable attorneys' fees and expenses) incurred in
connection with the implementation and/or enforcement of the Security Documents
and other Credit Documents; second, to all costs and expenses of the Term B
Lenders (including, without limitation, reasonable attorneys' fees and expenses)
incurred in connection with the implementation and/or enforcement of the
Security Documents and other Credit Documents; third, to the Term B Loans;
fourth, to the payment of any other Obligations of Atcon; fifth, to the payment
of the surplus, if any, to whomever may be lawfully entitled to receive such
surplus. Atcon and the Guarantors shall remain liable to the Agent and the
Lenders for any deficiency.
Notwithstanding anything to the contrary in this Credit Agreement
or any other Credit Document, all proceeds of Collateral received by the Agent
pursuant to the exercise of remedies under the Credit Documents shall be applied
in accordance with this Section 13.12.
13.13 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 any Borrower, any Subsidiary, the
Aggregate Required Lenders, the Existing Required Lenders, the Term B 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.
13.14 ▇▇▇▇▇ FARGO AS LEAD ARRANGER AND SYNDICATION AGENT.
▇▇▇▇▇ Fargo shall not have any rights, powers, duties or
responsibilities hereunder or any other Credit Document in its capacity as Lead
Arranger and Syndication Agent and no implied rights, powers, duties or
responsibilities shall be read into this Credit Agreement or any other Credit
Document or otherwise exist on behalf of or against ▇▇▇▇▇ Fargo in its capacity
as Lead Arranger and Syndication Agent.
ARTICLE XIV.
MISCELLANEOUS
14.1 WAIVERS.
Each 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
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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, EACH 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,
each Borrower hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each 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 each 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. Each 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 any Borrower in any other
jurisdiction.
(b) Each 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.
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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 any Borrower,
then to such Borrower c/o ▇▇▇▇▇▇▇▇ Brands, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention to each of: Chief Financial Officer 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 any Borrower at (▇▇▇) ▇▇▇-▇▇▇▇ and (513)
784-6691 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) No Borrower shall 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 Existing 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 any
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
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assignment shall be for less than $5,000,000 or, if less, the entire remaining
Existing Commitment or outstanding Term B Loans, as applicable, 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 assignment of Existing
Commitments or Existing Loans shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of the Existing
Commitments and the Existing Loans; 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 account 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, (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) Upon the occurrence and during the continuation of any
Event of Default, the Term B Lenders shall have the option to require any Lender
that is not participating in the Term B Loans to assign, at par plus all accrued
interest and fees, all of such Lender's rights and obligations under the Credit
Agreement to the Term B Lenders so long as the parties provide for the
termination of the Existing Commitment of each of the assigning Lenders and an
increase in the Existing Commitments of one or more of the Term B Lenders
accepting such assignment, so that the Existing Commitments, after giving effect
to such assignment, shall be in the same aggregate amount as the Existing
Commitments immediately before giving effect to such assignment. The foregoing
right may be exercised by one or more of the Term B Lenders at any time upon
notice to the Agent and the other Lenders, provided that the Agent shall
thereupon notify the other Term B Lenders of the exercise of such option and
each of the other Term B Lenders shall have five (5) Business Days to notify the
Agent of such other Term B Lender's intention to participate in such purchase on
a pro rata basis with those other Term B Lenders which have elected to
participate in the purchase. The Agent shall thereupon take all actions needed
to complete the assignment in accordance with the same procedures used under
subparagraph (c) above within five (5) additional Business Days and each of the
Term B Lenders shall remit to the Agent for payment to the selling Lender the
full amount of its purchase price. The Term B Lenders purchasing hereunder shall
pay the assignment fee to the Agent as contemplated by Section 14.6(c) above.
(e) 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
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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 any Borrower or the
performance or observance by any 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.
(f) 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 aggregate 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 each 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 each Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(g) 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 each Borrower. Within five (5)
Business Days after its receipt of such notice, each applicable 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 applicable
Borrower) a new Note or Notes to the order of the assignee in an amount equal to
the Existing Commitment and/or outstanding Term B Loans assumed by it pursuant
to such Assignment and Acceptance and, if the assigning Lender has retained an
Existing Commitment and/or outstanding Term B Loans, a new Note or Notes to the
order of the assigning Lender in an amount equal to the Existing Commitment
and/or outstanding Term B Loans 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.
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(h) Each Lender may sell participations (without the consent
of the Agent, any 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 Existing Commitment, 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 Existing Commitment to any 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) each 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.
(i) Each Lender agrees that, without the prior written
consent of each 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.
(j) 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 any Borrower.
(k) Each Borrower shall maintain, or cause to be maintained,
a register (the "Borrower 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
Borrower 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), each Borrower shall treat the Person in whose name such
Loan (and the Registered Note, if any, evidencing the same) is
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registered as the owner thereof for the purpose of receiving all payments
thereon and for all other purposes, notwithstanding notice to the contrary.
(l) 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 any 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 Borrowers 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 CBI and customarily found in such publications.
14.8 PAYMENT OF EXPENSES; INDEMNIFICATION.
The Borrowers, jointly and severally, agree 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 either Borrower under this Credit
Agreement and (b) the Agent and each Lender in connection with enforcement of
the
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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 either 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
Borrowers, jointly and severally, agree to pay, upon demand, for the separate
account of the 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 the 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 the 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 Borrowers' (or any of
their Subsidiaries') business valuation. The Borrowers, jointly and severally,
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 one or
more of the Borrowers 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 one or more of the Borrowers or any of the
Lenders in connection with compliance by CBI 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 any Borrower hereunder
are unenforceable for any reason, such Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations which
is permissible under applicable law. The Borrowers' 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 Borrowers, jointly and
severally, 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 one or more
Borrowers (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
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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 Borrowers, the Agent
and the Lenders, supersedes any prior agreements among them, and shall bind and
benefit each Borrower and the Lenders and their respective successors and
permitted assigns, provided, however, that the foregoing shall not affect the
continuing effectiveness of any waiver of any provision of the Original Credit
Agreement heretofore granted to CBI.
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 one
or more Borrowers therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Aggregate Required Lenders, or if the
Lenders shall not be parties thereto, by the parties thereto and consented to by
the Aggregate 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, however, that amendments, consents or waivers of any
provisions of Sections 2.2(d) and 2.3(a)-(b) (to the extent and solely to the
extent that such provisions relate to Atcon's obligations to repay the Term B
Loans), Section 4.1 (to the extent such provisions relate to the Interest Rate
or Minimum Rate applicable to Obligations owing solely to the Term B Lenders)
and Section 9.3(i) shall be effective if the same shall be in writing and signed
by the Term B Required Lenders; provided further, that no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) increase the Existing Commitment 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 Existing
Commitments or Term B Loan Commitments, or any minimum requirement necessary for
the Lenders or the Aggregate Required Lenders, Existing Required Lenders or Term
B Required Lenders to take any action hereunder, (e) amend or waive Section 2.3,
Section 2.8, Section 2.9, Section 13.6, Section 13.12, Section 14.6 or this
Section 14.10, or change the definitions of Aggregate Required Lenders, Existing
Required Lenders or Term B 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 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 Borrowers 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
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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, no consent of any Borrower shall 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 Borrowers 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 any
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 each Borrower
and each Lender.
14.11 NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrowers on the one hand and the
Lenders and the Agent on the other hand shall be solely that of borrowers and
lenders. Neither the Agent nor any Lender shall have any fiduciary
responsibilities to any Borrower. Neither the Agent nor any Lender undertakes
any responsibility to any Borrower to review or inform any Borrower of any
matter in connection with any phase of any 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.
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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 Borrowers, 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 Borrowers 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 applicable
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
Borrowers 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 Borrowers, 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 any Borrower have matured, have the right to appropriate and
apply to the payment of the Obligations of any 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.
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14.19 POWER OF ATTORNEY.
Each Subsidiary of CBI hereby appoints the chief accounting
officer and any vice president of CBI (each of whom is a senior officer of CBI)
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 CBI hereby
undertakes to ratify everything which either of its Attorneys shall do in order
to execute the Documents mentioned herein.
14.20 RESTATEMENT OF AMENDED AND RESTATED CREDIT AGREEMENT.
The parties hereto agree that, on the Closing Date, the following
transactions shall be deemed to occur automatically, without further action by
any party hereto:
(a) the Amended and Restated Credit Agreement shall be deemed
to be amended and restated in its entirety in the form of this Agreement
(provided that the foregoing shall not be deemed or otherwise construed to
constitute a waiver of any Default or Event of Default under this Credit
Agreement or the Amended and Restated Credit Agreement to the extent not
previously waived);
(b) all Original Obligations outstanding on the Closing Date
(including without limitation all accrued and unpaid principal, interest and
fees) shall, to the extent not paid on the Closing Date, be deemed to be
Obligations outstanding hereunder;
(c) the Guaranties and Security Documents, including the
Liens created thereunder, and securing payment of the Original Obligations,
shall remain in full force and effect with respect to the Obligations and are
hereby reaffirmed; and
(d) all references in the other Credit Documents to the
Original Credit Agreement shall be deemed for all time periods after the date
hereof to refer without further amendment to this Credit Agreement as the same
may be amended, restated, supplemented, renewed or otherwise modified from time
to time.
The parties acknowledge and agree that this Credit Agreement and
the other Credit Documents do not constitute a novation, payment and reborrowing
or termination of the Original Obligations and that all such Original
Obligations are in all respects continued and outstanding as Obligations under
this Credit Agreement and the Notes with only the terms being modified from and
after the effective date of this Agreement as provided in this Agreement, the
Notes and the other Credit Documents.
14.21 PRODUCE VENTURES.
The parties hereto agree to the provisions set forth in Schedule
14.21.
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14.22 CBI ACKNOWLEDGEMENT.
CBI acknowledges and agrees that (i) any and all liens, security
interests and encumbrances granted by CBI pursuant to one or more Credit
Documents secure the payment and performance of CBI's obligations in its
capacity as a Borrower and also in its capacity as a guarantor of Atcon's
obligations and (ii) the license of certain assets, rights and interests to CIL
pursuant to the Trademark License Agreement is expressly subject to the prior
liens and rights of the Agent under the Credit Documents in such assets, rights
and interests
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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.
BORROWERS: ▇▇▇▇▇▇▇▇ BRANDS, INC.
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
ATCON FINANZ, INC.
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
AGENTS AND LENDERS: FOOTHILL CAPITAL CORPORATION,
as Agent and as a Lender
By: /s/
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Lead Arranger, Syndication Agent and as a Lender
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
LENDERS: ABLECO FINANCE LLC, for itself and its affiliated
assignees, as an Existing Lender
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Credit Officer
ABLECO FINANCE LLC, for itself and its affiliated
assignees, as a Term B Lender
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Credit Officer
PNC BANK, National Association,
as a Lender
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Oak Hill Securities Fund, L.P.,
as a Lender
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Oak Hill Securities Fund II, L.P.,
as a Lender
By: Oak Hill Securities GenPar II, L.P.
its General Partner
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By: /s/
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LaSalle Bank National Association,
as a Lender
By: /s/
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President