EXHIBIT 4.17
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 10, 2004
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT") by and among FRESH DEL MONTE PRODUCE INC., a Cayman Island company
("FRESH PRODUCE"), DEL MONTE FRESH PRODUCE N.A., INC., a Florida corporation
("FRESH N.A."), DEL MONTE FRESH PRODUCE INTERNATIONAL, INC., a Liberian
corporation ("FRESH INTERNATIONAL"), and FRESH DEL MONTE SHIP HOLDINGS LTD., a
Cayman Island company ("SHIP HOLDINGS") (Fresh Produce, Fresh N.A., Fresh
International and Ship Holdings are referred to herein collectively as the
"EXISTING BORROWERS" and each individually as an "EXISTING BORROWER"); DEL MONTE
FRESH PRODUCE B.V., a Netherlands corporation ("FRESH B.V."), DEL MONTE FRESH
PRODUCE (UK) LTD., an English limited company ("FRESH UK"), DEL MONTE FOODS
INTERNATIONAL LTD., an English limited company ("FOODS INTERNATIONAL"), DEL
MONTE INTERNATIONAL INC., a Panama corporation ("DEL MONTE INTERNATIONAL"), and
DEL MONTE EUROPE LTD., an English limited company ("DEL MONTE EUROPE") (Fresh
B.V., Fresh U.K., Foods International, Del Monte International and Del Monte
Europe are referred to herein collectively as the "NEW BORROWERS" and each
individually as a "NEW BORROWER" and, together with the Existing Borrowers are
referred to herein collectively as the "BORROWERS" and each individually as a
"BORROWER"); the entities identified as "Guarantors" on the signature pages
hereof (each a "GUARANTOR" and collectively, the "GUARANTORS"); the banks and
other lending institutions listed on the signature pages hereof as Lenders (the
"LENDERS"); and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH ("RABOBANK"), as administrative agent for the
Lenders (the "ADMINISTRATIVE AGENT").
PRELIMINARY STATEMENTS:
WHEREAS:
(1) The Existing Borrowers, the Administrative Agent, certain
Guarantors (the "EXISTING GUARANTORS") and certain Lenders (the "EXISTING
LENDERS") are parties to that certain Amended and Restated Credit Agreement
dated as of March 21, 2003, as amended by that certain First Amendment to
Amended and Restated Credit Agreement dated as of January 27, 2004 and as
further amended by that certain Second Amendment to Amended and Restated Credit
Agreement dated as of June 24, 2004 (as may be further amended, restated,
modified or supplemented from time to time prior to the date hereof, the "CREDIT
AGREEMENT").
(2) In connection with the Credit Agreement, the Existing Borrowers and
their respective Subsidiaries executed and delivered the Guaranty Agreements and
the Security Documents in favor of the Administrative Agent to secure the
Obligations.
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(3) Each of the New Borrowers desires to become a party to the Credit
Agreement as a "Borrower" thereunder (such New Borrowers to become "Borrowers"
under the Credit Agreement by executing and delivering a Borrower Joinder
Agreement (as defined herein)).
(4) Each of the Borrowers desires to amend the Credit Agreement to,
among other things, (a) permit the New Borrowers to become "Borrowers" under the
Credit Agreement, (b) provide for the Incremental Term Loans (as defined herein)
to the Borrowers in an aggregate amount of up to U.S.$400,000,000 and (c)
increase the Revolving Commitment (as defined herein) from U.S.$400,000,000 to
U.S.$600,000,000 (such increase to be effected by way of certain of the Existing
Lenders increasing their Commitments (as defined in the Credit Agreement) as
indicated on Schedule C-1 hereto under the caption "Revolving Commitments" and
certain new Lenders executing and delivering a Lender Joinder Agreement (as
defined herein) (the "NEW LENDERS" and, together with the Existing Lenders, the
"LENDERS") and assuming a Revolving Commitment as indicated on Schedule C-1
hereto as of the date hereof, and the Administrative Agent and the Lenders have
agreed to the requested amendments, on the terms and conditions set forth
herein.
(5) In connection with this Amendment, the New Borrowers and New
Guarantors (as defined below) will execute and deliver Guaranty Agreements and
Security Documents in favor of the Administrative Agent to secure the
Obligations.
(6) Each Borrower and Guarantor acknowledges and agrees that the
security interests and guarantees granted to the Administrative Agent pursuant
to the Loan Documents shall remain outstanding and in full force and effect in
accordance with such other Loan Documents (except to the extent modified on the
Third Amendment Date) and shall continue to guaranty and secure the Obligations,
as applicable.
(7) Each Borrower and each Guarantor acknowledges and agrees that (a)
the Security Documents and the other Loan Documents executed in connection
therewith and the collateral pledged thereunder shall secure, without
interruption or impairment of any kind, all Obligations under the Credit
Agreement and the other Loan Documents executed in connection therewith, as they
may be amended, restated, renewed, extended, consolidated and modified
hereunder, together with all other obligations hereunder; and (b) all Liens
evidenced by the Security Documents are hereby ratified, confirmed and
continued.
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree that all capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Credit Agreement, and further agree
as follows:
SECTION 1. AMENDMENTS.
1.1 AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT. Section
1.1 of the Credit Agreement, CERTAIN DEFINED TERMS, is hereby amended and
modified by deleting the definition of "Unused Commitment" in its entirety and
by adding the following definitions in appropriate alphabetical order (in the
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case of any new definition) and amending and restating in their entirety the
following definitions (in the case of any definition already included in Section
1.1 of the Credit Agreement):
"ADVANCE" means, as applicable, a Revolving Advance, a Swing
Line Advance or an Incremental Term Loan.
"APPLICABLE MARGIN" means for any Borrower on any date of
determination, (a) with respect to an Incremental Term Loan, the applicable
interest rate percentage governing such Tranche of Incremental Term Loans as set
forth in the related Notice of Incremental Term Loan Borrowing, and (b) with
respect to Revolving Advances, the applicable percentage indicated below which
corresponds to the Leverage Ratio (or senior debt rating, if applicable,
pursuant to Level 8 below) of Fresh Produce indicated below:
----------- ------------------------------------------- ---------------------- -------------------- --------------------
Applicable Margin
Applicable Margin Applicable Margin for Unused
for LIBO Rate for Base Rate Revolving
Level Leverage Ratio Advances Advances Commitment
----------- ------------------------------------------- ---------------------- -------------------- --------------------
1 Greater than or equal to 3.00 to 1.00 2.000% 0.750% 0.400%
----------- ------------------------------------------- ---------------------- -------------------- --------------------
2 Less than 3.00 to 1.00, but greater than 1.750% 0.500% 0.400%
or equal to 2.50 to 1.00
----------- ------------------------------------------- ---------------------- -------------------- --------------------
3 Less than 2.50 to 1.00, but greater than 1.500% 0.250% 0.350%
or equal to 2.00 to 1.00
----------- ------------------------------------------- ---------------------- -------------------- --------------------
4 Less than 2.00 to 1.00, but greater than 1.250% 0.000% 0.300%
or equal to 1.50 to 1.00
----------- ------------------------------------------- ---------------------- -------------------- --------------------
5 Less than 1.50 to 1.00, but greater than 1.000% 0.000% 0.250%
or equal to 1.00 to 1.00
----------- ------------------------------------------- ---------------------- -------------------- --------------------
6 Less than 1.00 to 1.00, but greater than 0.750% 0.000% 0.200%
or equal to 0.50 to 1.00
----------- ------------------------------------------- ---------------------- -------------------- --------------------
7 Less than 0.50 to 1.00 0.625% 0.000% 0.175%
----------- ------------------------------------------- ---------------------- -------------------- --------------------
8 Senior Debt Rating of BBB (by S&P) and 0.500% 0.000% 0.125%
Baa2 (by ▇▇▇▇▇'▇) or higher
----------- ------------------------------------------- ---------------------- -------------------- --------------------
The Applicable Margin for each Revolving Advance shall be determined by
reference to the Leverage Ratio in effect from time to time at the end of each
fiscal quarter based on the financial statements for the most recently ended
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fiscal quarter and the three immediately preceding completed fiscal quarters;
provided, however, that (a) no change in the Applicable Margin shall be
effective until three Business Days after the date on which the Administrative
Agent receives financial statements pursuant to Section 5.16(b) and (c), as the
case may be, and a certificate of the Chief Financial Officer of Fresh Produce
demonstrating such Leverage Ratio, attaching thereto a schedule in form
reasonably satisfactory to the Administrative Agent of the computations used by
Fresh Produce in determining such Leverage Ratio, (b) the Applicable Margin
shall be the highest interest rate margin set forth above with respect to the
applicable Revolving Advances and Unused Revolving Commitment, respectively, if
Fresh Produce has not submitted to the Administrative Agent the information
described in clause (a) of this proviso as and when required under Section
5.16(b) or (c), as the case may be, for so long as such information has not been
received by the Administrative Agent, and (c) the Applicable Margin shall be
determined according to Level 8 above (rather than the Leverage Ratio) if the
senior debt rating of Fresh Produce at such time is rated BBB or higher by S&P
and Baa2 or higher by ▇▇▇▇▇'▇.
"BORROWER" and "BORROWERS" have the respective meanings
specified therefor in the introductory paragraph of this Agreement; provided,
however, "Borrower" and "Borrowers" shall also include any Subsidiary of Fresh
Produce acceptable to the Administrative Agent which executes and delivers a
Borrower Joinder Agreement to the Administrative Agent as of the Third Amendment
Date.
"BORROWER JOINDER AGREEMENT" means a joinder agreement in
substantially the form of Exhibit E-1 hereto and otherwise acceptable to the
Administrative Agent, entered into by the Administrative Agent and each
Subsidiary of Fresh Produce acceptable to the Administrative Agent dated as of
the Third Amendment Date whereby each such Subsidiary has agreed to be bound by
the terms and conditions of this Agreement and to become a "Borrower" hereunder
as of the Third Amendment Date.
"BORROWING" means a Revolving Borrowing, a Swing Line
Borrowing or an Incremental Term Loan Borrowing.
"COMMITMENT" means, with respect to any Lender at any time,
its Revolving Commitment and its Incremental Term Loan Commitment.
"CONSOLIDATED FIXED CHARGES" means, for Fresh Produce for any
period, the sum determined on a Consolidated basis of (a) interest expense of
all Debt of Fresh Produce and its Subsidiaries (including amortization of debt
discount in respect of such Debt), PLUS (b) scheduled or mandatory payments of
principal of all Debt (other than the Revolving Advances and the Swing Line
Advances, but including the Incremental Term Loans), PLUS (c) expenses in
respect of obligations of Fresh Produce and its Subsidiaries under Capitalized
Leases, PLUS (d) payments of dividends, paid or payable in each case, by Fresh
Produce and/or its Subsidiaries during such period; provided, however, that
Consolidated Fixed Charges shall not include any obligation under Foreign
Exchange Contracts or Hedge Agreements.
"DEL MONTE EUROPE LICENSE" means the Amended License Agreement
dated May 9, 1990 between DMC and Del Monte Foods Limited (now known as Del
Monte Europe Ltd.).
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"DEL MONTE INTERNATIONAL LICENSES" means (a) the Amended
License Agreement dated May 4, 1990 between DMC and Del Monte International and
(b) the Amended License Agreement dated May 9, 1990 between DMC and Del Monte
International.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on SCHEDULE L-1 hereto or in the Assignment and Acceptance or Lender
Joinder Agreement pursuant to which it became a Lender, as the case may be, or
such other office of such Lender as such Lender may from time to time specify to
the Borrowers and the Administrative Agent.
"FARM CREDIT LENDER" means a lending institution organized and
existing pursuant to the provisions of the Farm Credit Act of 1971, as amended,
and under the regulation of the Farm Credit Administration.
"INCREMENTAL TERM LOAN BORROWING" means a borrowing consisting
of simultaneous Incremental Term Loans of the same Tranche made by the
Incremental Term Loan Lenders.
"INCREMENTAL TERM LOAN COMMITMENT" means, with respect to any
Lender at any time, the amount set forth opposite such Lender's name on a Lender
Joinder Agreement as its "Incremental Term Loan Commitment" or, if such Lender
has entered into one or more Assignments and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.7(c) as such Lender's "Incremental Term Loan Commitment", with respect
to any Tranche of Incremental Term Loans; PROVIDED HOWEVER, after the initial
funding of any Tranche of Incremental Term Loans by such Lender, the Term Loan
Commitment of any Lender with respect to such Tranche shall be deemed to be in
an amount equal to the outstanding principal amount of Incremental Term Loans
owing to such Lender in connection with such Tranche.
"INCREMENTAL TERM LOAN LENDER" means any Lender having an
Incremental Term Loan Commitment or making Incremental Term Loans pursuant
thereto.
"INCREMENTAL TERM LOAN NOTE" means a promissory note of any
Borrower payable to the order of an Incremental Term Loan Lender, in
substantially the form of Exhibit B-2 hereto, in the principal amount of such
Incremental Term Loan Lender's Incremental Term Loan Commitment for any Tranche,
and any extensions, renewals or amendments to, or replacements of, the
foregoing; and "INCREMENTAL TERM LOAN NOTES" means all such promissory notes of
any Borrower in an aggregate principal amount equal to the aggregate Incremental
Term Loan Commitments of all Incremental Term Loan Lenders.
"INCREMENTAL TERM LOANS" shall mean the amounts advanced from
time to time by the Incremental Term Loan Lenders holding an Incremental Term
Loan Commitment to any Borrower as Incremental Term Loans under the applicable
Incremental Term Loan Commitment; provided, the aggregate amount of Incremental
Term Loans advanced under this Agreement shall not exceed U.S.$400,000,000.
"INTEREST PERIOD" means, for each LIBO Rate Advance comprising
part of the same Borrowing (or portion of the same Borrowing), the period
commencing on the date of such LIBO Rate Advance or the date of Conversion of
any Base Rate Advance into such LIBO Rate Advance, and ending on the last day of
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the period selected by any Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected by
the Borrower requesting a Borrowing pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three, or six months,
or with the consent of the Lenders, nine or twelve months, as such Borrower may,
upon notice received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of such
Interest Period, select; PROVIDED that:
(a) the duration of any Interest Period for any LIBO Rate
Advance that commences before the repayment date for such Advance and
otherwise ends after such repayment date shall end on such repayment
date;
(b) if any Borrower fails to select the duration of any
Interest Period for a LIBO Rate Advance, the duration of such Interest
Period shall be one month;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided that, if such extension would cause the last day
of such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the next preceding
Business Day;
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month; and
(e) such Borrower shall not select an Interest Period for a
LIBO Rate Advance under the Revolving Commitment that ends after the
Revolving Termination Date, and such Borrower shall not select an
Interest Period for a LIBO Rate Advance under the Incremental Term Loan
Commitment that ends after the Maturity Date.
"LENDER JOINDER AGREEMENT" means a joinder agreement in
substantially the form of Exhibit E-2 hereto and otherwise acceptable to the
Administrative Agent, by and between the Administrative Agent and a New Lender,
pursuant to which such New Lender agrees to (a) become a Revolving Lender
hereunder bound by the terms and conditions of this Agreement and assume a
Revolving Commitment in the amount set forth next to such New Lender's name on
SCHEDULE C-1 hereto, in each case as of the Third Amendment Date, or (b) become
an Incremental Term Loan Lender hereunder bound by the terms and conditions of
this Agreement and assume an Incremental Term Loan Commitment in the amount set
forth for such New Lender in such joinder agreement, as of the effective date of
such joinder agreement.
"LENDERS" means, collectively the Revolving Lenders and the
Incremental Term Loan Lenders, and "LENDER" means any one of them.
"LETTER OF CREDIT SUBLIMIT" means U.S.$100,000,000.
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"LIBO RATE" means, for any Interest Period for any LIBO Rate
Advance comprising part of the same Revolving Borrowing, an interest rate per
annum obtained by dividing:
(a) either (i) the rate per annum determined by Rabobank on
the basis of the offered rates for deposits in U.S. dollars for such
Interest Period which appear on Bloomberg page BBAM, pg.1 (Official BBA
Libor Fixings) (or such other page or pages as the Administrative
Agent, in agreement with the Borrowers and after consultation with the
Lenders, shall nominate to replace that page or pages for the purpose
of displaying offered rates of leading banks for London interbank
deposits in U.S. dollars) as of 11:00 a.m., London time, on the day
that is two Business Days preceding the first day of such Interest
Period, or (ii) if a rate cannot be determined pursuant to clause (i)
above, a rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1 % per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S.
dollars are available to the Administrative Agent as determined by the
Administrative Agent in London, England to prime banks in the interbank
market, as of 11:00 a.m., London time, on the day that is two Business
Days preceding the first day of such Interest Period, by
(b) a percentage equal to 100%, MINUS the LIBO Rate Reserve
Percentage for such Interest Period.
"LIBO RATE ADVANCE" means (a) a Revolving Advance denominated
in U.S. dollars that bears interest at the LIBO Rate plus the Applicable Margin
in effect from time to time with respect to Revolving Advances that are LIBO
Rate Advances, and (b) a portion of an Incremental Term Loan denominated in U.S.
dollars that bears interest at the LIBO Rate plus the Applicable Margin in
effect from time to time with respect to that Tranche of Incremental Term Loans
that are LIBO Rate Advances. The LIBO Rate for any LIBO Rate Advance shall be
adjusted as of the effective date of any change in the LIBO Rate Reserve
Percentage.
"LIBOR LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "LIBOR Lending Office" opposite its name
on SCHEDULE L-1 hereto or in the Assignment and Acceptance or Lender Joinder
Agreement pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to the Borrowers and the
Administrative Agent.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty
Agreements, the Security Documents, all L/C Related Documents, the Fee Letter,
the Supplemental Fee Letter, each Borrower Joinder Agreement, each Lender
Joinder Agreement, the Ratification Agreement, the documents executed in
connection with the Incremental Term Loans, each Notice of Borrowing, each
Notice of Issuance, any Foreign Exchange Contract between a Foreign Exchange
Bank and a Loan Party, and all other documents, instruments, certificates, and
agreements executed or delivered by Fresh Produce or its Subsidiaries in
connection with or pursuant to this Agreement. Without limiting the generality
of the foregoing, each amendment to this Agreement or to any other Loan
Document, each waiver of any provision of this Agreement or any other Loan
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Document, and each instrument and agreement executed in connection herewith or
therewith shall be deemed to be a Loan Document for all purposes of this
Agreement and the other Loan Documents.
"MATURITY DATE" means (a) (i) for any Incremental Term Loan
advanced on or before the third anniversary of the Third Amendment Date, five
years from the date such Incremental Term Loan is advanced, (ii) for any
Incremental Term Loan advanced after the third anniversary of the Third
Amendment Date but on or before the fourth anniversary of the Third Amendment
Date, four years from the date such Incremental Term Loan is advanced and (iii)
for any Incremental Term Loan advanced after the fourth anniversary of the Third
Amendment Date but on or before the Revolving Termination Date, three years from
the date such Incremental Term Loan is advanced, or (b) such earlier date as
payment of the Incremental Term Loan shall become due (whether by acceleration
or otherwise).
"NEW LENDER" means any Person that is an Eligible Assignee, is
approved by the Administrative Agent and Fresh Produce (such approval not to be
unreasonably withheld or delayed) and executes and delivers a Lender Joinder
Agreement to the Administrative Agent.
"NOTES" means, collectively, the Revolving Loan Notes and the
Incremental Term Loan Notes.
"NOTICE OF BORROWING" means a Notice of Incremental Term Loan
Borrowing, a Notice of Revolving Borrowing or a Notice of Continuation or
Conversion of Incremental Term Loan Borrowing, as applicable.
"NOTICE OF CONTINUATION OR CONVERSION OF INCREMENTAL TERM LOAN
BORROWING" has the meaning specified in Section 2.2(a).
"NOTICE OF INCREMENTAL TERM LOAN BORROWING" has the meaning
specified in Section 2.1(d).
"NOTICE OF REVOLVING BORROWING" has the meaning specified in
Section 2.2(a).
"PRO RATA SHARE" of any amount means, with respect to (a) any
Revolving Lender under the Revolving Commitment at any time, an amount equal to
(i) a fraction the numerator of which is the amount of such Revolving Lender's
Revolving Commitment at such time and the denominator of which is the Total
Revolving Commitment at such time, multiplied by (ii) such amount, (b) any
Incremental Term Loan Lender under the Incremental Term Loan Commitment at any
time, an amount equal to (i) a fraction the numerator of which is the amount of
such Incremental Term Loan Lender's Incremental Term Loan Commitment at such
time and the denominator of which is the aggregate Incremental Term Loan
Commitments of all Incremental Term Loan Lenders, multiplied by (ii) such
amount, and (c) with respect to any Lender at any time, an amount equal to (i) a
fraction the numerator of which is the sum of such Lender's Revolving Commitment
and such Lender's Incremental Term Loan Commitment at such time and the
denominator of which is the Total Commitment at such time, multiplied by (ii)
such amount.
"RATIFICATION AGREEMENT" means that certain Ratification
Agreement dated as of the Third Amendment Date by each of the Loan Parties in
favor of the Administrative Agent.
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"REQUIRED LENDERS" means, at any time, a Lender or Lenders
owed or holding not less than 51% of the Total Commitment; PROVIDED, HOWEVER,
that if any Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Required Lenders at such time (a) the
aggregate principal amount of the Revolving Advances made by such Lender and
outstanding at such time, (b) such Lender's Pro Rata Share of the Letter of
Credit Amount outstanding at such time, (c) such Lender's Unused Revolving
Commitment at such time, and (d) such Lender's Incremental Term Loan Commitment.
For purposes of this definition, (i) the portion of the Letter of Credit Amount
relating to the Letters of Credit issued by Rabobank and (ii) the aggregate
principal amount of Swing Line Advances owing to the Swing Line Bank shall be
considered to be owed to the Lenders ratably in accordance with their respective
Revolving Commitments, except to the extent any such Lender shall have failed to
purchase the participation in such Advance, in which case Rabobank shall retain
the right to vote such amount.
"REVOLVING ADVANCE" means an advance under the Revolving
Commitments pursuant to Section 2.1(a).
"REVOLVING BORROWING" means a borrowing consisting of
simultaneous Revolving Advances of the same Type made by the Revolving Lenders.
"REVOLVING COMMITMENT" means, with respect to any Lender at
any time, the amount set forth opposite such Lender's name on SCHEDULE C-1
hereto under the caption "Revolving Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 9.7(c) as
such Lender's "Revolving Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.5 or 2.10.
"REVOLVING LENDERS" means the banks, financial institutions
and other institutional lenders that have agreed to make Advances under the
Total Revolving Commitment hereunder, as indicated on SCHEDULE C-1 hereto under
the caption "Revolving Commitment" or in one or more Assignments and Acceptances
entered into from time to time and set forth in the Register maintained by the
Administrative Agent pursuant to Section 9.7(c).
"REVOLVING LOAN NOTE" means a promissory note of any Borrower
payable to the order of a Revolving Lender, in substantially the form of Exhibit
B-1 hereto, in the principal amount of such Revolving Lender's Revolving
Commitment, and any extensions, renewals or amendments to, or replacements of,
the foregoing; and "REVOLVING LOAN NOTES" means all such promissory notes of any
Borrower in an aggregate principal amount equal to the Total Revolving
Commitment.
"REVOLVING TERMINATION DATE" means the earlier of (a) November
10, 2009 and (b) the date of the termination in whole of the Revolving
Commitments pursuant to Section 2.5 or 7.2.
"SAICO" means Siam Agro Industry Pineapple & Others PCL, a
company governed by Thai law.
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"SUPPLEMENTAL FEE LETTER" means that certain fee letter dated
as of the Third Amendment Date executed by the Borrowers in favor of the
Administrative Agent.
"THIRD AMENDMENT DATE" means November 10, 2004.
"TOTAL COMMITMENT" means, as of any date of determination,
the sum of the Total Revolving Commitments and the Incremental Term Loan
Commitments of all Incremental Term Loan Lenders.
"TOTAL REVOLVING COMMITMENT" means the aggregate of all
Revolving Lenders' Revolving Commitments not to exceed U.S.$600,000,000 at any
time, as such amount may be reduced pursuant to Sections 2.5 and 2.10.
"TRADEMARK LICENSES" means the Fresh International License,
the Wafer Licenses, the NAJ License, the Fresh International Sublicense, the
Fresh N.A. Sublicense, the Del Monte Europe License and the Del Monte
International Licenses.
"TRANCHE" means, with respect to any Incremental Term Loans,
all Incremental Term Loans made on the same date pursuant to the terms of the
same Notice of Incremental Term Loan Borrowing.
"UNUSED REVOLVING COMMITMENT" means, at any time,
(a) the Total Revolving Commitment, MINUS
(b) the sum of (i) the aggregate principal amount of all
Revolving Advances made by the Revolving Lenders and outstanding on
such date, PLUS (ii) the Letter of Credit Amount outstanding on such
date.
"VOTING PARTICIPANT" has the meaning assigned to such term in
Section 9.7(e).
"VOTING PARTICIPANT NOTIFICATION" has the meaning assigned to
such term in Section 9.7(e).
1.2 AMENDMENT TO SECTION 2.1. Section 2.1 of the Credit
Agreement, EXTENSIONS OF CREDIT, is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"SECTION 2.1 EXTENSIONS OF CREDIT.
(a) REVOLVING ADVANCES. Each Revolving Lender agrees,
severally and not jointly, on the terms and conditions hereinafter set forth, to
make Revolving Advances in U.S. dollars to the Borrowers from time to time on
any Business Day during the period from the date hereof until the Revolving
Termination Date in an amount for each such Revolving Advance not to exceed such
Revolving Lender's Pro Rata Share of the Unused Revolving Commitment at such
time; PROVIDED that at such time, the sum of (i) the aggregate principal amount
of all Revolving Advances, (ii) the aggregate principal amount of all Swing Line
Advances, and (iii) the Letter of Credit Amount (the sum of clauses (i), (ii)
and (iii) being the "TOTAL CURRENT EXPOSURE"), after giving effect to such
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Borrowing, shall not exceed the Total Revolving Commitment. Within the limits of
the Unused Revolving Commitment, the Borrowers may borrow under this Section
2.1(a), prepay or repay pursuant to Section 2.5 and reborrow under this Section
2.1(a).
(b) SWING LINE ADVANCES. The Borrowers may request the Swing
Line Bank to make, and the Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the Borrowers from time
to time on any Business Day during the period from the date hereof until the
Revolving Termination Date in an aggregate amount not to exceed at any time
outstanding U.S.$15,000,000 (the "SWING LINE SUBLIMIT"); PROVIDED that at such
time the Total Current Exposure, after giving effect to such Borrowing, shall
not exceed the Total Revolving Commitment. No Swing Line Advance shall be used
for the purpose of funding the payment of principal of any other Swing Line
Advance. Each Swing Line Advance shall be made as a Base Rate Advance. Within
the limits of the Swing Line Sublimit, the Borrowers may borrow under this
Section 2.1(b), prepay or repay pursuant to Section 2.5 and reborrow under this
Section 2.1(b).
(c) LETTERS OF CREDIT. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (each, a
"LETTER OF CREDIT") denominated in U.S. dollars for the account of any Borrower
from time to time on any Business Day from and after the date of the initial
Advance until the Revolving Termination Date in an aggregate amount not to
exceed at any time outstanding the Letter of Credit Sublimit in effect at such
time; provided that, after giving effect to the issuance of such Letter of
Credit, the Total Current Exposure shall not exceed the Total Revolving
Commitment. Each Letter of Credit shall have an expiry date which is 365 days or
less immediately following the date of the issuance of such Letter of Credit
(other than the Rabobank Italy Letter of Credit), but in no event shall any
Letter of Credit have an expiry date that occurs on a date later than the
Revolving Termination Date; PROVIDED, HOWEVER, a Borrower may request issuance
or renewal of a Letter of Credit with an expiry date after the Revolving
Termination Date if, at the time of such issuance or renewal, such Borrower
deposits into the L/C Cash Collateral Account an amount in immediately available
funds equal to the face amount of such Letter of Credit. The reimbursement
obligation under the Letter of Credit shall be payable in U.S. dollars in
accordance with Section 2.3(b). All amounts paid by the Issuing Bank under a
Letter of Credit shall, immediately upon the making of such payment and without
the necessity of further act or evidence, constitute Revolving Advances to the
requesting Borrower by the Issuing Bank hereunder for all purposes of this
Agreement (including, without limitation, the provisions of Section 2.4 and
Section 2.6), which shall be deemed made by the Issuing Bank, and the Issuing
Bank shall be entitled to all of the benefits of this Agreement and the other
Loan Documents with respect to such Revolving Advances. Each Letter of Credit
issued on behalf of any Borrower may be cancelled before its expiration date
without penalty if the beneficiary of the Letter of Credit delivers the original
Letter of Credit to the Issuing Bank. Each Letter of Credit issued under the
Existing Credit Agreement and outstanding as of the Agreement Date is listed on
SCHEDULE 2.1(C) hereto, and such existing Letters of Credit shall automatically
be deemed to have been issued and outstanding under this Agreement as of the
Agreement Date.
11
(d) INCREMENTAL TERM LOANS.
(i) At any time after the Third Amendment Date until
180 days prior to the Revolving Termination Date, any Borrower may
request an Incremental Term Loan Borrowing by delivering a Notice of
Incremental Term Loan Borrowing to the Administrative Agent
substantially in the form of Exhibit C-2 hereto (a "NOTICE OF
INCREMENTAL TERM LOAN BORROWING"), specifying (subject to Section
2.1(d)(iii)) therein the (1) amount of the Tranche of Incremental Term
Loans requested (which Tranche shall be in a minimum principal amount
of $100,000,000 and integral multiples of $50,000,000 in excess
thereof), (2) requested advance date of the proposed Incremental Term
Loans comprising such Tranche (which shall be at least 30 days but not
more than 90 days from the date of delivery of the Notice of
Incremental Term Loan Borrowing), (3) the interest rate to be
applicable to all Incremental Term Loans in such Tranche, (4) the
amortization and maturity date requested for all Incremental Term Loans
in such Tranche, and (5) the amount of any upfront or closing fees to
be paid by such Borrower to the Incremental Term Loan Lenders funding
the Tranche of Incremental Term Loans requested. The Administrative
Agent shall deliver a copy of each Notice of Incremental Term Loan
Borrowing to each Lender. Each Notice of Incremental Term Loan
Borrowing shall be binding on all Borrowers. At the time of delivery of
the Notice of Incremental Term Loan Borrowing, Fresh Produce shall
deliver to the Administrative Agent a certificate of the chief
financial officer of Fresh Produce certifying (A) that Fresh Produce is
in compliance with the financial covenants hereof before and after
giving effect to such Incremental Term Loan Borrowing (based on
combined actual results for the twelve month period ending on the last
day of the last month for which financial statements of Fresh Produce
are available, after giving effect to such Incremental Term Loan
Borrowing), and (B) that no Event of Default then exists or would be
caused thereby.
(ii) Each Lender (or New Lender) may, if, in its sole
discretion, it elects to do so, offer to assume an Incremental Term
Loan Commitment to fund a portion of the Tranche of Incremental Term
Loans requested in such Notice of Incremental Term Loan Borrowing by
notifying the Administrative Agent of the minimum and maximum amount of
the Incremental Term Loan Commitment which such Lender would be willing
to assume as part of such Incremental Term Loan Borrowing, not later
than 14 days after the date of Administrative Agent's delivery of such
Notice of Incremental Term Loan Borrowing to such Lender (or New
Lender). If the Administrative Agent does not receive Incremental Term
Loan Commitments from Lenders (or New Lenders) in an amount sufficient
to fund the Incremental Term Loans requested in the Notice of
Incremental Term Loan Borrowing, the Administrative Agent shall so
notify Fresh Produce and the Notice of Incremental Term Loan Borrowing
shall be deemed automatically rescinded; PROVIDED, the Borrowers may
submit a replacement Notice of Incremental Term Loan Borrowing setting
forth different terms for the requested Incremental Term Loan
Borrowing. If the Administrative Agent receives Incremental Term Loan
Commitments equal to or in excess of the amount necessary to fund the
Incremental Term Loans requested in the Notice of Incremental Term Loan
Borrowing, the Notice of Incremental Term Loan Borrowing shall be
irrevocable by the Borrowers and the Administrative Agent shall have
the right, in its sole discretion, to reduce and reallocate (within the
minimum and maximum amounts specified by each such Lender in its notice
to the Administrative Agent) the Incremental Term Loan Commitments of
the Lenders willing to fund such Incremental Term Loan Borrowing so
that the total Incremental Term Loan Commitments in connection with
such Tranche equals the Incremental Term Loan Borrowing requested for
such Tranche. The Administrative Agent shall notify each Lender of the
acceptance and amount of its Incremental Term Loan Commitment, and such
12
Lender shall thereafter execute and deliver a Lender Joinder Agreement,
and be deemed an "Incremental Term Loan Lender" hereunder, with respect
to such Incremental Term Loan Commitment for such Tranche requested by
such Notice of Incremental Term Loan Borrowing. Each Incremental Term
Loan Lender shall, before 11:00 A.M. (New York City time) on the date
such Incremental Term Loan Borrowing is to be made, make available for
the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds, such
Incremental Term Loan Lender's Pro Rata Share of such Incremental Term
Loans. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article 3, the
Administrative Agent will make such funds immediately available to the
requesting Borrower by crediting the account of such Borrower set forth
in the Notice of Incremental Term Loan Borrowing pursuant to which such
Incremental Term Loans are being made.
(iii) The final maturity date for each Incremental
Term Loan shall be the applicable Maturity Date. The aggregate amount
of Incremental Term Loans advanced under this Agreement shall not (x)
have a scheduled amortization providing for principal repayments which
exceed $50,000,000 prior to the Revolving Termination Date (exclusive
of any optional prepayments under Section 2.5(b)) or (y) exceed the
principal amount of $400,000,000. Amounts repaid under the Incremental
Term Loan Commitment may not be reborrowed.
(iv) Each Tranche of Incremental Term Loans (i) shall
bear interest at the Base Rate or the LIBO Rate plus such Applicable
Margin as is set forth in the Notice of Incremental Term Loan Borrowing
related to such Tranche, and shall otherwise be subject to the
amortization and other terms set forth in the applicable Notice of
Incremental Term Loan Borrowing relating to such Tranche, (ii) shall
for all purposes be Obligations hereunder and under the Loan Documents;
(iii) shall be represented by an Incremental Term Loan Note to the
order of each Incremental Term Loan Lender for such Tranche, and (iv)
shall rank pari passu with the Revolving Advances."
1.3 AMENDMENT TO SECTION 2.2. Section 2.2 of the Credit
Agreement, MAKING THE ADVANCES, is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"SECTION 2.2 MAKING THE ADVANCES.
(a) Each Revolving Advance and Incremental Term Loan shall, at
the option of the Borrowers, be made either as a Base Rate Advance or as a LIBO
Rate Advance (except for the first three Business Days after the Agreement Date
with respect to Revolving Advances, and for the first three Business Days after
the funding of Incremental Term Loans with respect to such Incremental Term
Loans, during which period such Advances, respectively, shall bear interest as a
Base Rate Advance); PROVIDED, HOWEVER, that (i) if the Borrowers fail to give
13
the Administrative Agent three Business Days' written notice specifying whether
a LIBO Rate Advance is to be repaid or reborrowed on the last day of the
applicable Interest Period for such LIBO Rate Advance, such LIBO Rate Advance
shall be repaid and then reborrowed as a Base Rate Advance on such date, (ii)
the Borrowers may not select a LIBO Rate Advance (A) with respect to the Swing
Line Advances, (B) with respect to an Advance, the proceeds of which are to
reimburse an Issuing Bank pursuant to Section 2.1(c) hereof, or (C) if, at the
time of such Advance, a Default or an Event of Default has occurred and is
continuing, and (iii) any Conversion of LIBO Rate Advances into Base Rate
Advances shall only be made on the last day of the Interest Period for such LIBO
Rate Advances, unless Borrowers pay to the Administrative Agent the amounts due
under Section 10.3 hereof. Each Revolving Advance shall be made, to the extent
that a Lender is so obligated under Section 2.1, on written notice from the
Borrower requesting such Revolving Advance to the Administrative Agent delivered
before 11:00 A.M. (New York City time) on, (i) in the case of a LIBO Rate
Advance, a Business Day which is at least three (3) Business Days prior to the
first day of the Interest Period for such LIBO Rate Advance, and (ii) in the
case of a Base Rate Advance, on or before the Business Day for the making of
such Advance, in each case, specifying (v) whether the Revolving Advance is a
new borrowing, or a continuation or Conversion of, a Revolving Advance under the
Revolving Commitments, (w) the Type of Revolving Advance to be made, (x) the
date on which such Revolving Advance is to be made, (y) the amount of such
Revolving Advance (which amounts shall be allocated by the Administrative Agent
among the Lenders, in the case of a Revolving Advance, on a pro rata basis in
accordance with each Revolving Lender's Pro Rata Share of such Revolving
Advance), and (z) in the case of proposed LIBO Rate Advances, the Interest
Period therefor (which Interest Period shall be the same for each Lender) (such
written notice to be substantially in the form of Exhibit C-1 attached hereto,
and being hereinafter referred to as the "NOTICE OF REVOLVING BORROWING"). Each
such Notice of Revolving Borrowing shall be sent by electronic mail or facsimile
and signed by the chief financial officer of any of the Borrowers or Vice
President of Corporate Finance or the Senior Director of Treasury or corporate
controller of Del Monte Fresh Produce Company. All or a portion of the
Incremental Term Loans of one Type may be Converted to Incremental Term Loans of
another Type or continued as Incremental Term Loans of the same Type at the end
of the Interest Period applicable thereto upon written notice from the Borrower
obligated on such Incremental Term Loan to the Administrative Agent delivered
before 11:00 A.M. (New York City time) on a Business Day which is at least three
(3) Business Days prior to the applicable Conversion or continuation date
specifying (x) the Type of Incremental Term Loan to be continued or Converted,
(y) the date on which such Incremental Term Loan is to be continued or
Converted, and (z) in the case of proposed LIBO Rate Advances, the Interest
Period therefor (which Interest Period shall be the same for each Incremental
Term Loan Lender) (such written notice to be substantially in the form of
Exhibit C-3 attached hereto, and being hereinafter referred to as the "NOTICE OF
CONTINUATION OR CONVERSION OF INCREMENTAL TERM LOAN BORROWING").
Each Lender making a Revolving Advance shall, before 1:00 P.M.
(New York City time) on the date such Revolving Advance is to be made, make
available for the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds, such Lender's
Pro Rata Share of such Revolving Advance. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
14
forth in Article 3, the Administrative Agent will make such funds available to
the requesting Borrower by crediting the account of such Borrower set forth in
the Notice of Revolving Borrowing pursuant to which the Revolving Advance is
being made. Each Lender making an Incremental Term Loan Advance shall fund such
Incremental Term Loan in accordance with Section 2.1(d)(ii).
(b) Each Swing Line Advance shall be made on notice, given not
later than 11:00 A.M. (New York City time) on the date of the proposed Swing
Line Advance, by any Borrower to the Swing Line Bank. Each such notice of a
proposed Swing Line borrowing (a "NOTICE OF SWING LINE BORROWING") shall be by
telephone, confirmed immediately in writing, or electronic mail or facsimile,
specifying therein the requested (i) date on which such Swing Line Advance is to
be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon
fulfillment of the applicable conditions set forth in Article 3, will make the
amount thereof available, no later than 4:00 P.M. (New York City time) on such
Business Day, to the requesting Borrower in same day funds by crediting the
account of such Borrower set forth in the Notice of Swing Line Borrowing
pursuant to which the Swing Line Advance is being made. At any time the Swing
Line Bank makes a Swing Line Advance, each Revolving Lender (other than the
Swing Line Bank) shall be deemed, without further action by any Person, to have
purchased from the Swing Line Bank an unfunded participation in any such Swing
Line Advance in an amount equal to such Revolving Lender's Pro Rata Share of
such Swing Line Advance and shall be obligated to fund such participation as a
Revolving Advance at such time and in the manner provided below. Each such
Revolving Lender's obligation to participate in, purchase and fund such
participating interests shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender or any other
Person may have against the Swing Line Bank or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default or an Event of
Default or the termination of the Revolving Commitments; (C) any adverse change
in the condition (financial or otherwise) of the requesting Borrower or any
other Person; (D) any breach of this Agreement by any Borrower or any other
Lender; or (E) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. Each Borrower hereby consents to each such
sale and assignment. Each Revolving Lender agrees to fund its Pro Rata Share of
an outstanding Swing Line Advance on (X) the Business Day on which demand
therefor is made by the Swing Line Bank, provided that such demand is made not
later than 11:00 A.M. (New York City time) on such Business Day, or (Y) the
first Business Day next succeeding such demand if such demand is made after such
time. Upon any such assignment by the Swing Line Bank to any other Revolving
Lender of a participation in a Swing Line Advance, the Swing Line Bank
represents and warrants to such other Revolving Lender that it is the legal and
beneficial owner of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or the Borrower to which such Swing Line
Advance was made. If and to the extent that any Revolving Lender shall not have
so made the amount of such participation in such Swing Line Advance available to
the Administrative Agent, such Revolving Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of request by the Swing Line Bank until the
15
date such amount is paid to the Administrative Agent, at the Federal Funds Rate.
If such Revolving Lender shall pay to the Administrative Agent such amount for
the account of the Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Revolving Advance made by such Revolving
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by the Swing Line Bank shall be
reduced by such amount on such Business Day.
(c) Each Notice of Revolving Borrowing and Notice of Swing
Line Borrowing shall be irrevocable and binding on the Borrowers requesting the
Advances covered by such Notice and such Borrower shall indemnify each Lender
against any loss or expense incurred by such Lender as a result of any failure
to fulfill on or before, as applicable, the date specified for such Advance the
applicable conditions set forth in Article 3, including, without limitation, any
loss (excluding loss of anticipated profits) or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender (and the Administrative Agent in the case of Advances by the
Administrative Agent pursuant to Section 2.2(d)) to fund such Advance when such
Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Revolving Lender prior to the date of any Revolving Advance, that such
Lender will not make available to the Administrative Agent such Revolving
Lender's Revolving Commitment Pro Rata Share of such Revolving Advance, the
Administrative Agent may assume that such Revolving Lender has made such portion
available to the Administrative Agent on the date of such Revolving Advance in
accordance with subsection (a) of this Section 2.2 and the Administrative Agent
may, in reliance upon such assumption, make available to the requesting Borrower
on such date a corresponding amount. If and to the extent that such Revolving
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Revolving Lender and the requesting Borrower
severally agree to repay or pay to the Administrative Agent forthwith on demand
such corresponding amount and to pay interest thereon, for each day from the
date such amount is made available to the requesting Borrower until the date
such amount is repaid or paid to the Administrative Agent, at (i) in the case of
repayment or payment by the Borrower, the interest rate applicable at such time
under Section 2.6 to such Revolving Advance, and (ii) in the case of repayment
or payment by such Revolving Lender, the Federal Funds Rate. If such Revolving
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Revolving Lender's Revolving Advance for
all purposes.
(e) The failure of any Lender to make any Advance required to
be made by it shall not relieve any other Lender of its obligation, if any,
under this Agreement to make any Advance required to be made by it, but no
Lender shall be responsible for the failure of any other Lender to make any
Advance required to be made by such other Lender.
(f) Notwithstanding anything in this Agreement to the
contrary, LIBO Rate Advances may not be outstanding as part of more than 15
separate Borrowings in the aggregate. Each LIBO Rate Advance shall be in an
amount of U.S.$5,000,000 or an integral multiple of U.S.$100,000 in excess
thereof. Each Base Rate Advance (other than the initial Base Rate Advance
hereunder) shall be in an amount of U.S.$1,000,000 or an integral multiple of
U.S. $100,000 in excess thereof."
16
1.4 AMENDMENT TO SECTION 2.3. Section 2.3 of the Credit
Agreement, ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER LETTERS OF CREDIT,
is hereby deleted in its entirety and the following is substituted in lieu
thereof:
"SECTION 2.3 ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER
LETTERS OF CREDIT.
(a) REQUEST FOR ISSUANCE.
(i) Each Letter of Credit shall be issued upon notice, given
not later than 11:00 A.M. (New York City time) on the second Business
Day prior to the date of the proposed issuance of such Letter of
Credit, by the requesting Borrower to the Administrative Agent. The
Administrative Agent shall give to the Issuing Bank prompt notice
thereof by telex, telecopier or electronic mail of such Borrower's
request for the issuance of a Letter of Credit. Each such notice of
issuance of a Letter of Credit (a "NOTICE OF ISSUANCE") shall be by
telex, telecopier or electronic mail, specifying therein the requested
(A) type of Letter of Credit, (B) date of such issuance (which shall be
a Business Day), (C) stated principal amount of such Letter of Credit,
(D) expiration of such Letter of Credit, (E) name and address of the
beneficiary of such Letter of Credit and (F) form of any such Letter of
Credit.
(ii) If the requested form of such Letter of Credit is
acceptable to the Issuing Bank in its sole discretion, the Issuing Bank
will, upon fulfillment of the applicable conditions set forth in
Article 3, make such Letter of Credit available to the requesting
Borrower at its office referred to in Section 9.2 or as otherwise
agreed with such Borrower in connection with such issuance. At any time
the Issuing Bank issues a Letter of Credit, each Revolving Lender
(other than the Issuing Bank) shall be deemed without further action by
any Person, to have purchased from the Issuing Bank an unfunded
participation in such outstanding Letter of Credit in an amount equal
to such Revolving Lender's Revolving Commitment Pro Rata Share of the
stated principal amount of such Letter of Credit and shall be obligated
to fund such participation in the Revolving Advance resulting from any
drawing under such Letter of Credit at such time and in the manner
provided below. At the request of any Revolving Lender, the Issuing
Bank will send to such Revolving Lender a copy of any Letter of Credit
issued by the Issuing Bank under this clause (ii).
(b) DRAWING AND REIMBURSEMENT. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making of a Revolving Advance by the Issuing Bank bearing
interest at the Base Rate in the amount of such draft. In the event of a payment
of any draft drawn under any Letter of Credit issued by the Issuing Bank, each
other Revolving Lender shall be deemed to have purchased from the Issuing Bank,
and the Issuing Bank shall sell and assign to each such other Revolving Lender,
such other Revolving Lender's Revolving Commitment Pro Rata Share of such
outstanding Revolving Advance as of the date of such purchase, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Issuing Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
17
outstanding principal amount of such Revolving Advance to be purchased by such
Revolving Lender. Each Borrower hereby consents to each such sale and
assignment. Each Revolving Lender agrees to purchase its Pro Rata Share of an
outstanding Revolving Advance on (i) the Business Day on which demand therefor
is made by the Issuing Bank, PROVIDED notice of such demand is given not later
than 11:00 A.M. (New York City time) on such Business Day or (ii) the first
Business Day next succeeding such demand if notice of such demand is given after
such time. Upon any such assignment by the Issuing Bank to any other Revolving
Lender of a portion of such Revolving Advance, the Issuing Bank represents and
warrants to such other Revolving Lender that it is the legal and beneficial
owner of such interest being assigned by it, but makes no other representation
or warranty and assumes no responsibility with respect to such Revolving
Advance, the Loan Documents or the Borrower for the account of which such Letter
of Credit was issued. If and to the extent that any Revolving Lender shall not
have so made the amount of its interest in such Revolving Advance available to
the Administrative Agent, such Revolving Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Issuing Bank until the date
such amount is paid to the Administrative Agent, at the Federal Funds Rate. On
the last day of each month, the Issuing Bank shall notify each Revolving Lender
of its Pro Rata Share of the Revolving Advances made by the Issuing Bank during
the preceding month pursuant to this Section 2.3(b) and shall pay to each such
Revolving Lender in respect of the amount of any funded participations of such
Revolving Lender in such Revolving Advances outstanding at any time during the
preceding month, an amount equal to such Revolving Lender's Pro Rata Share of
the interest payable on such Revolving Advances only to the extent that such
amounts shall have been paid to the Issuing Bank by the Borrowers.
(c) OBLIGATIONS ABSOLUTE. The payment obligations of the
Borrowers under this Agreement with respect to Letters of Credit and any
agreement or instrument relating to any Letter of Credit shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any other agreement or instrument relating thereto (this Agreement
and all of the foregoing being, collectively, the "L/C RELATED
DOCUMENTS");
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of any Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or consent to or departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set-off, defense or other
right that any Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Lender or any
other Person, whether in connection with the transactions contemplated
by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
18
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any Collateral
or other collateral for all or any of the obligations of any Borrower
in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including, without limitation,
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, any Borrower."
1.5 AMENDMENT TO SECTION 2.4. Section 2.4 of the Credit
Agreement, FEES, is hereby deleted in its entirety and the following is
substituted in lieu thereof:
"SECTION 2.4 FEES.
(a) ADMINISTRATIVE AGENT. The Borrowers agree to pay to the
Administrative Agent for its own account a fee separately agreed between the
Borrowers and the Administrative Agent and such other fees required by the Fee
Letter or the Supplemental Fee Letter.
(b) COMMITMENT FEE. The Borrowers agree to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee
on such Lender's average daily Pro Rata Share of the Unused Revolving Commitment
from the date hereof until the Revolving Termination Date at a rate per annum
equal to the Applicable Margin for the Unused Revolving Commitment in effect
from time to time, payable in arrears on the first day of the immediately
following calendar quarter during the term of such Lender's Revolving
Commitment, commencing on April 1, 2003, on the Third Amendment Date and on the
Revolving Termination Date; PROVIDED, HOWEVER, that any commitment fee accrued
with respect to the Revolving Commitment of a Defaulting Lender during the
period prior to the time such Revolving Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrowers so long as such
Revolving Lender shall be a Defaulting Lender except to the extent that such
commitment fee shall otherwise have been due and payable by the Borrowers prior
to such time; and PROVIDED FURTHER that no commitment fee shall accrue on the
Revolving Commitment of a Defaulting Lender so long as such Revolving Lender
shall be a Defaulting Lender.
(c) LETTER OF CREDIT FEES. In addition, the requesting
Borrower shall, in consideration of the issuance by the Issuing Bank of each
Letter of Credit and in addition to other charges payable by each Borrower to
any of the Lenders under this Agreement, (i) pay to the Administrative Agent for
the account of the Issuing Bank, (x) such fee as may be agreed to between Fresh
Produce and the Issuing Bank from time to time in connection with each Letter of
Credit issued hereunder, which fee shall be due and payable quarterly in arrears
on the first day of each calendar quarter during which such Letter of Credit was
outstanding (unless a different payment schedule is agreed to between Fresh
19
Produce and the Issuing Bank) and, if then unpaid, on the Revolving Termination
Date, and (y) the amount of all usual and customary fees and expenses of the
Issuing Bank for issuing, amending or renewing any Letter of Credit, and (ii)
pay to the Administrative Agent, for the account of the Revolving Lenders, a
Letter of Credit Commission in respect of each Letter of Credit, with such
Letter of Credit Commission to be paid by the Administrative Agent to the
Revolving Lenders in arrears on the first day of each calendar quarter in
connection with the Letters of Credit outstanding during the previous quarter,
and, to the extent that such amounts remain owing and unpaid, on the Revolving
Termination Date."
1.6 AMENDMENT TO SECTION 2.5. Section 2.5 of the Credit
Agreement, REDUCTIONS OF COMMITMENTS; VOLUNTARY AND MANDATORY, is hereby deleted
in its entirety and the following is substituted in lieu thereof:
"SECTION 2.5 REDUCTION OF REVOLVING COMMITMENTS; VOLUNTARY AND
MANDATORY PREPAYMENT.
(a) REDUCTION OF REVOLVING COMMITMENTS. The Borrowers shall
have the right, upon at least two Business Days' notice to the Administrative
Agent, to terminate irrevocably in whole or reduce in part the unused portion of
the Revolving Commitments on a pro rata basis (which shall include the
termination in whole or the reduction in part of the obligation of such
Revolving Lender to make Revolving Advances to the Borrowers in the amount
specified in Section 2.1(a) in the event of such termination or reduction);
PROVIDED, HOWEVER, that each partial reduction shall be in the amount of
U.S.$1,000,000 or an integral multiple thereof. The Administrative Agent shall
give notice of such reduction to the Revolving Lenders.
(b) OPTIONAL PREPAYMENTS. The Borrowers may, upon at least
three Business Days' notice to the Administrative Agent, prepay pro rata among
the Lenders the outstanding amount of any Advance (other than any Swing Line
Advance or Revolving Advance made by the Issuing Bank (resulting from a drawing
under a Letter of Credit) not participated to any other Lender, in which case,
such prepayment shall not be made on a pro rata basis) in whole or in part with
accrued interest to the date of such prepayment on the amount prepaid; PROVIDED,
HOWEVER, that in the event that any Lender receives payment of the principal of
any LIBO Rate Advance other than on the last day of the Interest Period relating
to such LIBO Rate Advance (whether due to prepayments made by any Borrower, or
due to acceleration of the Advances, or due to any other reason), the Borrowers
shall pay to such Lender on demand any amounts owing pursuant to Section 10.3,
PROVIDED, FURTHER, that to the extent any Borrower prepays any Incremental Term
Loan, such amount shall not be available to be reborrowed and shall be applied
on a pro rata basis to all Incremental Term Loans comprising such Tranche and to
the installments of the such Incremental Term Loans as set forth in the Notice
of Incremental Term Loan Borrowing governing such Tranche in the inverse order
of maturity; and PROVIDED, FURTHER, that each optional prepayment shall be in
the amount of at least U.S.$1,000,000.
(c) MANDATORY PREPAYMENTS.
(i) On any date on which the Total Current Exposure shall
exceed the Total Revolving Commitment, the Borrowers shall prepay Revolving
Advances in the aggregate principal amount equal to such excess. Additionally,
20
each Borrower shall repay the aggregate unpaid principal amount of all Revolving
Advances to it of each Lender on the Revolving Termination Date.
(ii) On any date on which the aggregate principal amount of
all Swing Line Advances then outstanding shall exceed the amount of the Swing
Line Sublimit, the Borrowers shall prepay Swing Line Advances in the aggregate
principal amount equal to such excess.
(iii) The outstanding principal balance of each Tranche of
Incremental Term Loans shall be repaid by the Borrowers on such dates and in
such amounts as is required in the Notice of Incremental Term Loan Borrowing
governing such Tranche. Any unpaid principal and interest on the Incremental
Term Loans shall be due and payable in full on the applicable Maturity Date."
1.7 AMENDMENT TO SECTION 2.6. Section 2.6 of the Credit
Agreement, INTEREST, is hereby deleted in its entirety and the following is
substituted in lieu thereof:
"SECTION 2.6 INTEREST.
(a) INTEREST. Each Borrower shall pay interest on the unpaid
principal amount of each Advance to it owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Advance is
a Base Rate Advance, (x) with respect to any Revolving Advance, a rate
per annum equal at all times to the sum of (A) the Base Rate in effect
from time to time PLUS (B) the Applicable Margin in effect with respect
to Base Rate Advances that are Revolving Advances from time to time,
(y) with respect to any Incremental Term Loan, a rate per annum equal
at all times to the sum of (A) the Base Rate in effect from time to
time PLUS (B) the Applicable Margin in effect with respect to Base Rate
Advances comprising such Tranche of Incremental Term Loans as set forth
in the Notice of Incremental Term Loan Borrowing governing such
Tranche, and (z) with respect to any Swing Line Advance, a rate per
annum to be mutually agreed between the Swing Line Bank and the
Borrowers, payable (A) in the case of any Base Rate Advance which is a
Revolving Advance, (1) in arrears quarterly on the first day of the
immediately following calendar quarter during such periods, and (2) on
the Revolving Termination Date, (B) in the case of any Base Rate
Advance which is an Incremental Term Loan, (1) in arrears quarterly on
the first day of the immediately following calendar quarter during such
periods, (2) upon the payment or prepayment thereof, and (3) on the
Maturity Date, and (C) in the case of any Base Rate Advance which is a
Swing Line Advance, in arrears on (1) the first day of each calendar
quarter, (2) upon the payment or prepayment thereof, and (3) on the
Revolving Termination Date.
(ii) LIBO RATE ADVANCES. During such periods as such Revolving
Advance is a LIBO Rate Advance, a rate per annum equal at all times
during each Interest Period for such Revolving Advance to the sum of
(x) the LIBO Rate for such Interest Period for such Advance, and (y)
the Applicable Margin from time to time in effect for LIBO Rate
Advances that are Revolving Advances, payable in arrears on (1) the
21
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period, (2) the day such Revolving Advances shall be paid in full, and
(3) the Revolving Termination Date. During such periods as any
Incremental Term Loan is a LIBO Rate Advance, a rate per annum equal at
all times during each Interest Period for such Incremental Term Loan to
the sum of (x) the LIBO Rate for such Interest Period for such
Incremental Term Loan, and (y) the Applicable Margin from time to time
in effect for LIBO Rate Advances comprising such Tranche of Incremental
Term Loans as set forth in the Notice of Incremental Term Loan
Borrowing governing such Tranche, payable in arrears on (1) the last
day of such Interest Period and, if such Interest Period has a duration
of more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period,
(2) the day such Incremental Term Loan shall be paid in full, and (3)
the applicable Maturity Date.
(b) DEFAULT INTEREST. Each Borrower shall pay interest on (i)
the unpaid principal amount of each Advance owing to each Lender which is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to the applicable Default
Rate and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full and on
demand, at a rate per annum equal at all times to the applicable Default Rate."
1.8 AMENDMENT TO SECTION 2.10. Section 2.10 of the Credit
Agreement, REPLACEMENT OF LENDER IN EVENT OF ADVERSE CONDITION, is hereby
deleted in its entirety and the following is substituted in lieu thereof:
"SECTION 2.10 REPLACEMENT OF LENDER IN EVENT OF ADVERSE
CONDITION. If any Borrower becomes obligated to pay additional amounts to any
Lender pursuant to Section 10.1 or Section 10.2 or to Convert the LIBO Rate
Advances into Base Rate Advances pursuant to Section 10.1 as a result of any
condition described in such Sections which is not generally applicable to all
Lenders, or if any Lender shall become a Defaulting Lender then, unless the
Lender to which such conditions apply has theretofore taken steps to remove or
cure, and has removed or cured, the conditions creating the cause for such
obligation to pay such additional amounts or to make such Conversion, the
Borrowers may, within six months of being notified of such condition, (a)
designate an Eligible Assignee which is willing to purchase all rights and
obligations of such Lender and which is acceptable (such acceptance not to be
unreasonably withheld) to the Administrative Agent (such Eligible Assignee being
herein called a "REPLACEMENT LENDER") to purchase for cash all of the rights and
obligations of such Lender under this Agreement and all of such Lender's rights
22
hereunder, without recourse to or warranty (other than title) by, or expense to,
such Lender for a purchase price equal to the outstanding principal amount of
the Advances payable to such Lender plus any accrued but unpaid interest on such
Advances, expense reimbursements and indemnities in respect of that Lender's
Revolving Commitment and Incremental Term Loan Commitment under the Loan
Documents or (b) prepay in whole the aggregate outstanding amount of all
Advances owing to such Lender, including all principal, accrued but unpaid
interest thereon and all amounts owing pursuant to Section 9.4, whereupon the
Revolving Commitment of such Lender shall be irrevocably terminated in whole
(which shall include the termination in whole of the obligation of such Lender
to make Advances to the Borrowers), and the Total Revolving Commitment shall be
reduced in the amount of such Lender's Revolving Commitment, and any Incremental
Term Loan shall be repaid in the amount of all Advances of the Incremental Term
Loan owed to such Lender, as applicable. Such Lender shall consummate such sale
or the Borrowers shall make such prepayment in accordance with such terms within
a reasonable time not exceeding five Business Days from the date the Borrowers
shall have designated a Replacement Lender or the Borrowers shall have given
notice of prepayment to such Lender, and whereupon such Lender shall no longer
be a party hereto or have any obligations or rights hereunder (except rights
which, pursuant to the provisions of this Agreement, survive the termination of
this Agreement and the repayment of the Notes), and, if applicable, the
Replacement Lender shall succeed to such obligations and rights."
1.9 AMENDMENT TO SECTION 2.11. Section 2.11 of the Credit
Agreement, APPLICATION OF PAYMENTS, is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"SECTION 2.11 APPLICATION OF PAYMENTS. Subsequent to the
acceleration of the Obligations under Section 7.2 hereof, payments and
prepayments with respect to the Obligations made to the Administrative Agent,
the Lenders, the Issuing Bank, the Swing Line Bank or otherwise received by the
Administrative Agent, any Lender, the Issuing Bank or the Swing Line Bank (from
realization on Collateral or otherwise, but excluding any funds held in the L/C
Cash Collateral Account which shall be applied to, or held to pay, the Letter of
Credit Amount as set forth in Section 7.3) shall be distributed in the following
order of priority: FIRST, to the reasonable costs and expenses (including
reasonable attorneys' fees and expenses), if any, incurred by the Administrative
Agent, any Lender, the Issuing Bank or the Swing Line Bank in the collection of
such amounts under this Agreement or of the Loan Documents, including, without
limitation, any costs incurred in connection with the sale or disposition of any
Collateral; SECOND, to the payment of interest then due and payable on the Swing
Line Advances; THIRD, to the payment of the principal of any Swing Line Advances
then outstanding; FOURTH, to any fees then due and payable to the Administrative
Agent under this Agreement or any other Loan Document; FIFTH, to any fees then
due and payable to the Lenders and the Issuing Banks under this Agreement;
SIXTH, to the payment of interest then due and payable on the Revolving Advances
and the Incremental Term Loan, on a pro rata basis; SEVENTH, to the payment of
principal of the Revolving Advances and principal of the Incremental Term Loan,
on a pro rata basis; EIGHTH, to the extent of any Letter of Credit Obligations
then outstanding, to the L/C Cash Collateral Account; and NINTH, to any other
Obligations not otherwise referred to in this Section, including any obligations
owed to a Foreign Exchange Bank under Foreign Exchange Contracts with a Loan
Party."
1.10 AMENDMENT TO SECTION 5.16. Section 5.16 of the Credit
Agreement, REPORTING REQUIREMENTS, is hereby amended by deleting clause (c) in
its entirety and substituting the following in lieu thereof:
"(c) ANNUAL FINANCIALS. As soon as available and in any event
no later than 90 days after the end of each fiscal year of Fresh Produce, a copy
of the audited financial statement for Fresh Produce and its Subsidiaries,
23
including therein a Consolidated balance sheet of Fresh Produce and its
Subsidiaries and, upon the request of the Administrative Agent, unconsolidated
balance sheets of each of the Borrowers, in each case as of the end of such
fiscal year and a Consolidated statements of income and cash flows of Fresh
Produce and its Subsidiaries and, upon the request of the Administrative Agent,
unconsolidated statements of income of the Borrowers, in the case of Fresh
Produce accompanied by an opinion acceptable to the Required Lenders of
independent public accountants of recognized international standing."
1.11 AMENDMENT TO SECTION 6.2. Section 6.2 of the Credit
Agreement, DEBT, is hereby deleted in its entirety and the following is
substituted in lieu thereof:
"SECTION 6.2 DEBT. It will not create, incur, assume or suffer
to exist, or permit any of its Subsidiaries to create, incur, assume or suffer
to exist, any Debt other than:
(a) Debt under the Loan Documents;
(b) intercompany Debt; PROVIDED, HOWEVER, that (x) such Debt
shall be unsecured and, to the extent such Debt is incurred by a Loan Party,
subordinated to the Advances and evidenced by an intercompany note in
substantially the form of Exhibit D hereto and, to the extent such Debt is owed
to a Loan Party, pledged to the Lenders pursuant to the Security Documents to
secure the Borrowers' Obligations under the Loan Documents, and (y) loans made
pursuant to this clause (b) may not be made to any Shipping Subsidiary created
after the date hereof other than in an amount not to exceed the amount equal to
the down payment for the vessel owned by such Shipping Subsidiary (such down
payment not to exceed 30% of the purchase price for such vessel);
(c) shipping vessel mortgages of any Shipping Subsidiary and
unsecured guarantees of Shipping Holdings of shipping vessel mortgages of any
Shipping Subsidiary;
(d) other direct or indirect guaranties (other than the
guaranties referred to in clause (c) above) of the Debt of other Persons not to
exceed in the aggregate U.S.$50,000,000 (or the non-U.S. currency equivalent
thereof);
(e) Debt under Capitalized Leases, including any Capitalized
Leases for refrigerated containers, in an aggregate principal amount not
exceeding U.S.$200,000,000 (or the non-U.S. currency equivalent thereof);
(f) Existing Debt secured by Real Property on the Agreement
Date, and any Debt constituting a refinancing thereof; PROVIDED that any such
refinancing shall not increase the aggregate principal amount of such existing
Debt immediately prior to such refinancing and shall not be secured by any
assets other than Real Property;
(g) Debt secured by Liens on acquired assets permitted by
clause (f) of the definition of "Permitted Liens" set forth in Article 1 hereof;
PROVIDED that (i) such Debt was in existence prior to the acquisition of such
assets and was not created in contemplation thereof, (ii) at the time of
acquisition of such assets, such Debt could not be prepaid without penalty or
premium, and (iii) the aggregate principal amount of such Debt shall not exceed
U.S.$50,000,000 (or the non-U.S. currency equivalent thereof) at any time;
24
(h) other secured Debt (other than Debt referred to in clauses
(e), (f) or (g) above), including any purchase money indebtedness, outstanding
in an aggregate principal amount not to exceed U.S.$50,000,000 (or the non-U.S.
currency equivalent thereof); PROVIDED that no such Debt shall be secured by any
Collateral (other than any Collateral consisting of Equipment (as defined in the
Security Agreement) acquired with purchase money financing);
(i) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(j) Hedge Agreements and Foreign Exchange Contracts permitted
under Section 6.14 hereof;
(k) Debt incurred in connection with or as a consequence of
the acquisition of a controlling equity interest in Saico or the subsequent
mandatory tender offer of outstanding shares of Saico, including Debt incurred
to refinance and restructure Saico's business, in an aggregate principal amount
not to exceed U.S.$30,000,000 (or the non-U.S. currency equivalent thereof); and
(l) other unsecured Debt on commercially reasonable terms and
conditions and aggregating on a Consolidated basis not more than U.S.$75,000,000
(or the non-U.S. currency equivalent thereof) at any one time outstanding."
1.12 AMENDMENT TO SECTION 6.6. Section 6.6 of the Credit
Agreement, INVESTMENTS; ACQUISITIONS, is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"SECTION 6.6 INVESTMENTS; ACQUISITIONS. It will not, nor will
it permit any of its Subsidiaries to, make or hold any Investment in any Person,
or engage in or consummate any acquisition of all or substantially all of the
assets of a business or a business unit, or all or substantially all of the
operating assets of any Person, or assets which constitute all or substantially
all of the assets of a division or a separate or separable line of business of
any Person, other than:
(a) Investments in Cash Equivalents and in Hedge Agreements
and Foreign Exchange Contracts permitted hereunder;
(b) loans and advances to, and guaranties issued on behalf of,
officers and employees (i) in the ordinary course of business as presently
conducted in an aggregate principal amount not to exceed U.S.$1,000,000 (or the
non-U.S. currency equivalent thereof) at any time outstanding and (ii) in
respect of the provision of employee housing in the ordinary course of business
as presently conducted and consistent with past practices;
(c) Investments existing on the Agreement Date and described
on SCHEDULES 4.1(U) and 4.1(B) hereto;
(d) (x) crop-related grower advances with respect to fresh
produce growers made in the ordinary course of business and consistent with past
practices of any Borrower or any of its Subsidiaries, as the case may be and (y)
25
owner/operator loans or advances to Can-Am Express Inc. and RLN Leasing, Inc. in
an aggregate principal amount not to exceed U.S.$20,000,000 (or the non-U.S.
currency equivalent thereof) at any time outstanding;
(e) Investments in Loan Parties;
(f) Investments (other than intercompany loans) in
Wholly-Owned Subsidiaries of Fresh Produce that are not Loan Parties; PROVIDED
that the aggregate amount invested from the date hereof pursuant to this clause
(f) shall not exceed an amount equal to the lesser of (i) the amount equal to
10% of Tangible Net Worth at such time and (ii) the amount equal to 10% of the
total tangible and intangible assets of Fresh Produce and its Subsidiaries at
such time except where local law requires an Investment in such Wholly-Owned
Subsidiary above the amounts set forth in subclauses (i) and (ii) of this clause
(f) to prevent (x) the insolvency (as determined by such local law) of such
Wholly-Owned Subsidiary or (y) the violation of such local law;
(g) loans and advances to Subsidiaries of Fresh Produce to the
extent permitted by, and in accordance with, Section 6.2(b); and
(h) Investments and acquisitions in other assets or Persons
after the Agreement Date by Fresh Produce and its Subsidiaries; PROVIDED (i) any
Person acquired will be a Subsidiary immediately after such Investment or
acquisition, (ii) such assets are usable in, or Person is primarily engaged in,
businesses that are related, ancillary or complementary to the business of Fresh
Produce and its Subsidiaries as of the date hereof, (iii) no Default then exists
or would be caused thereby, (iv) the cash flow and operating statements of Fresh
Produce on a Consolidated basis after giving effect to such acquisition or
Investment (based on combined actual results for the twelve month period ending
on the last day of the last month for which financial statements of Fresh
Produce and such acquisition or Investment target are available) demonstrate to
the satisfaction of the Administrative Agent that Fresh Produce will be in
compliance with the financial and other covenants hereunder at the time of the
acquisition or Investment through the four fiscal quarter period thereafter, (v)
prior to making any such acquisition or Investment involving cash consideration
in excess of U.S.$100,000,000 (or the non-U.S. currency equivalent thereof),
Fresh Produce shall provide to the Administrative Agent a certificate of the
chief financial officer of Fresh Produce certifying (A) that Fresh Produce is in
compliance with the financial covenants hereof before and after giving effect to
such acquisition or Investment (based on combined actual results for the twelve
month period ending on the last day of the last month for which financial
statements of Fresh Produce and such acquisition or Investment target are
available), (B) that no Event of Default then exists or would be caused thereby
and (C) the total amount of such acquisition or Investment and the full name and
state of organization of any new Subsidiary created for the purpose of effecting
such acquisition or Investment, and (vi) to the extent the Person acquired is a
Material Subsidiary, the Administrative Agent shall have received all documents
required by Section 5.15 hereof."
26
1.13 AMENDMENT TO SECTION 6.7. Section 6.7 of the Credit
Agreement, RESTRICTED PAYMENTS; RESTRICTED PURCHASES, is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 6.7 RESTRICTED PAYMENTS; RESTRICTED PURCHASES. It
will not, nor will it permit any of its Subsidiaries to, declare or make any
Restricted Payment or Restricted Purchase, except that Fresh Produce may declare
and pay dividends and distributions payable in common stock (or the equivalent
thereof) and so long as no Default shall have occurred and be continuing at the
time of any action described in clause (a), (b) or (c) below or would result
therefrom, (a) Fresh Produce may declare and pay dividends and distributions
payable in cash solely out of and up to 50% of net income of Fresh Produce
(computed on a non-cumulative, Consolidated basis in accordance with GAAP) for
the fiscal year immediately preceding the year in which such dividend or
distribution is paid; PROVIDED that, Fresh Produce may declare and pay dividends
and distributions payable in cash solely out of and up to 70% of net income of
Fresh Produce (computed on a non-cumulative, Consolidated basis in accordance
with GAAP) for the fiscal year immediately preceding the year in which such
dividend or distribution is paid if after giving effect to such dividend payment
(based on actual results for the four fiscal quarters ending on the last day of
the last fiscal quarter for which financial statements of Fresh Produce are
available) Fresh Produce and its Subsidiaries on a Consolidated basis shall have
as of the end of such four fiscal quarters then ending a Leverage Ratio for such
four fiscal quarters then ending of less than 2.50 to 1.00, (b) any direct or
indirect Subsidiary of a Borrower may (i) declare and pay cash dividends to such
Borrower and (ii) declare and pay cash dividends to any other Wholly-Owned
Subsidiary of a Borrower of which it is a direct or indirect Subsidiary, (c)
Fresh Produce may repurchase its own Stock in an aggregate amount not to exceed
U.S.$100,000,000, and (d) any Subsidiary which is not a Wholly-Owned Subsidiary
may declare and pay cash dividends consistent with past practices."
1.14 AMENDMENT TO SECTION 6.15. Section 6.15 of the Credit
Agreement, FINANCIAL COVENANTS, is hereby amended by deleting clause (b) thereof
in the entirety and substituting the following in lieu thereof:
"(b) MINIMUM TANGIBLE NET WORTH. Fresh Produce and its
Subsidiaries on a Consolidated basis shall maintain as of June 25,
2004, and as of the end of each fiscal quarter thereafter of Fresh
Produce, Tangible Net Worth of not less than an amount equal to the sum
of (i) U.S. $640,554,000, plus (ii) an amount equal to 50% of
Consolidated Net Income (to the extent positive) of Fresh Produce for
the quarter ending on September 24, 2004, and each fiscal quarter
thereafter on a cumulative basis."
1.15 AMENDMENT TO SECTION 9.1. Section 9.1 of the Credit
Agreement, AMENDMENT, ETC., is hereby deleted in its entirety and the following
is substituted in lieu thereof:
"SECTION 9.1 AMENDMENT, ETC. No amendment or waiver of any
provision of this Agreement, the Notes or any other Loan Document (other than a
Foreign Exchange Contract between a Foreign Exchange Bank and a Loan Party), nor
consent to any departure by any Borrower therefrom, shall in any event be
27
effective unless the same shall be in writing and signed by the Required Lenders
(or in connection with an amendment to any other Loan Document, by the
Administrative Agent with the consent of the Required Lenders) and, in the case
of an amendment, all Borrowers, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED that:
(a) no amendment, waiver or consent shall, unless in writing
and signed by all of the Lenders and, in the case of an amendment, all
Borrowers, do any of the following at any time: (1) waive any of the conditions
specified in Section 3.2, (2) change the percentage of the Total Commitment, or
the number of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder, (3) amend this Section 9.1, (4) release any material
portion of the Collateral other than in accordance with the terms of the
Security Documents or any Guarantor from its obligations under its respective
Guaranty Agreement, except in connection with a sale or merger permitted
hereunder;
(b) no amendment, waiver or consent shall, unless in writing
and signed by the Borrowers and each Lender affected thereby, do any of the
following at any time: (1) increase the principal amount of the Revolving
Commitment or Incremental Term Loan Commitment of such Lender over the amount
then in effect or increase the Pro Rata Share of such Lender, (2) reduce or
forgive the aggregate unpaid principal amount of the Note or Revolving Advances,
Swing Line Advances or Incremental Term Loan owing to such Lender, (3) reduce
the rate of interest or fees payable hereunder to such Lender, or (4) postpone
any scheduled date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable to such Lender hereunder;
(c) no amendment, waiver or consent shall, unless in writing
and signed by the Issuing Bank in addition to the Lenders and the Borrowers
required above to take such action, affect the rights or obligations of the
Issuing Bank under this Agreement; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent, in addition to the Lenders and the Borrowers required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Loan Document; and
(d) each Lender grants (x) to the Administrative Agent the
right to purchase all (but not less than all) of such Lender's Commitments and
Advances owing to it and the Notes held by it and all of its rights and
obligations hereunder and under the other Loan Documents at a price equal to the
aggregate amount of outstanding Advances owed to such Lender (together with all
accrued and unpaid interest and fees owed to such Lender), and (y) to any
Borrower the right to cause an assignment of all (but not less than all) of such
Lender's Commitments and Advances owing to it and the Notes held by it and all
of its rights and obligations hereunder and under the other Loan Documents,
which right may be exercised by the Administrative Agent or such Borrower, as
the case may be, if such Lender refuses to execute any amendment, waiver or
consent which requires the written consent of all the Lenders and to which the
Required Lenders, the Administrative Agent and such Borrower have agreed. Each
Lender agrees that if the Administrative Agent or such Borrower, as the case may
be, exercises its option hereunder, it shall promptly execute and deliver all
agreements and documentation necessary to effectuate such assignment as set
forth in Section 9.7.
Anything in this Agreement to the contrary notwithstanding, if any Lender shall
fail to fulfill its obligations to make an Advance hereunder, then, for so long
28
as such failure shall continue, such Lender shall (unless the Borrowers and the
Required Lenders, determined as if such Lender were not a "Lender" hereunder,
shall otherwise consent in writing) be deemed for all purposes relating to
amendments, modifications, waivers or consents under this Agreement or the Notes
(including without limitation under this Section 9.1) to have no Advances or
Commitments, shall not be treated as a "Lender" hereunder when performing the
computation of Required Lenders, and shall have no rights under this Section
9.1; PROVIDED that any action taken by the other Lenders with respect to the
matters referred to in clauses (a) or (b) of this Section 9.1 shall not be
effective as against such Lender."
1.16 AMENDMENT TO SECTION 9.2. Section 9.2 of the Credit
Agreement, NOTICES, ETC., is hereby amended by deleting clause (b) thereof in
its entirety and substituting the following in lieu thereof:
"(b) if to any Lender, at its Domestic Lending Office
specified opposite its name on SCHEDULE L-1 hereto or in the Assignment and
Acceptance or Lender Joinder Agreement pursuant to which it became a Lender;
and"
1.17 AMENDMENTS TO SECTION 9.7.
(a) Section 9.7 of the Credit Agreement, ASSIGNMENTS AND
PARTICIPATIONS, is hereby amended by deleting paragraph (i) of clause (a)
thereof in its entirety and substituting the following in lieu thereof:
"(i) in the case of each such assignment of a
Revolving Commitment or an Incremental Term Loan Commitment (except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights
and obligations under this Agreement), the amount of the Revolving
Commitment or Incremental Term Loan Commitment of the assigning Lender
being assigned pursuant to such assignment (determined as of the date
of the Assignment and Acceptance with respect to such assignment) shall
in each case not be less than U.S.$2,500,000; PROVIDED, HOWEVER, that
(x) no Revolving Lender shall have, at any time, a Revolving Commitment
in an amount less than U.S.$2,500,000, and (y) no Incremental Term Loan
Lender shall have, at any time, an Incremental Term Loan Commitment in
an amount less than U.S.$2,500,000 (other than as a result of the
prepayment of the principal amount of such Incremental Term Loans);"
(b) Section 9.7 of the Credit Agreement, ASSIGNMENTS AND
PARTICIPATIONS, is hereby amended by deleting clause (e) thereof in its entirety
and substituting the following in lieu thereof:
"(e) Each Lender may sell participations in or to all or a
portion of its rights and obligations under this Agreement (including without
limitation all or a portion of its Commitment, the Advances owing to it and the
Note held by it); PROVIDED that (i) such Lender's obligations under this
Agreement (including without limitation its Commitment) 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 Agreement; (iv) the Borrowers, the
Administrative 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 Agreement; and (v) no participant under any such
participation shall have any right to approve such Lender's action with respect
29
to any amendment or waiver of any provision of any Loan Document, or any consent
to any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce or forgive the aggregate unpaid
principal amount of, or reduce the rate of interest or fees on, the Notes, in
each case to the extent subject to such participation, postpone any scheduled
date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, in each case to the extent subject to
such participation, or release any material portion of the Collateral or any
Guarantor from its obligations under its respective Guaranty Agreement, except
in connection with a sale or merger permitted hereunder or in accordance with
the terms of any other Loan Document. Each such participant shall have the right
of set-off set forth in Section 9.5 hereof in respect of its participating
interest to the same extent as if the amount of its participating interest was
owed directly to it as a Lender; PROVIDED such right of set-off shall be subject
to the obligation of such participant to share with the Lenders as provided in
Section 2.8 hereof. Notwithstanding anything in this Section 9.7 to the
contrary, any Farm Credit Lender that (1) is the owner of a participation in the
minimum amount of $15,000,000, (2) is, by written notice to Fresh Produce and
the Administrative Agent ("VOTING PARTICIPANT NOTIFICATION"), designated by the
selling Lender as being entitled to be accorded the rights of a voting
participant hereunder (any Farm Credit Lender so designated being called a
"VOTING PARTICIPANT") and (3) receives the prior written consent of Fresh
Produce and the Administrative Agent to become a Voting Participant, shall be
entitled to vote for so long as such Farm Credit Lender owns such participation
and notwithstanding any subparticipation by such Farm Credit Lender (and the
voting rights of the selling Lender shall be correspondingly reduced), on a
dollar for dollar basis, as if such participant were a Lender, on any matter
requiring or allowing a Lender to provide or withhold its consent, or to
otherwise vote on any proposed action. To be effective, each Voting Participant
Notification shall, with respect to any Voting Participant, (x) state the full
name, as well as all contact information required of an assignee in an
Assignment and Acceptance and (y) state the dollar amount of the participation
purchased. The selling Lender and the Voting Participant shall notify the
Administrative Agent and Fresh Produce within 3 Business Days' of any
termination of, or reduction or increase in the amount of, such participation.
Fresh Produce and the Administrative Agent shall be entitled to conclusively
rely on information contained in notices delivered pursuant to this paragraph.
The voting rights hereunder are solely for the benefit of the Voting Participant
and shall not inure to any assignee or participant of the Voting Participant."
1.18 AMENDMENTS TO SECTION 10.2. Section 10.2 of the Credit
Agreement, TAXES, is hereby amended by deleting clauses (e) and (f) thereof in
their entirety and substituting the following in lieu thereof:
"(e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each initial Lender hereunder, and on
the date of the Assignment and Acceptance or Lender Joinder Agreement pursuant
to which it became a Lender in the case of each other Lender, and from time to
time thereafter if requested in writing by a Borrower or the Administrative
Agent (but only so long thereafter as such Lender remains lawfully able to do
so), provide the Administrative Agent and such Borrower with (1)(x) if such
30
Lender claims an exemption from withholding tax pursuant to its portfolio
interest exception, (A) a statement of the Lender, signed under penalty of
perjury, that it is not (I) a "bank" as described in Section 881(c)(3)(A) of the
Internal Revenue Code, (II) a ten percent (10%) shareholder of any Borrower
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code), or
(III) a controlled foreign corporation related to any Borrower within the
meaning of Section 864(d)(4) of the Internal Revenue Code, and (B) a properly
completed and executed IRS Form W-8BEN, (y) if such Lender claims an exemption
from, or a reduction of, withholding tax under a United States tax treaty,
properly completed and executed IRS Form W-8BEN, or (z) if such Lender claims
that interest paid under this Agreement or the Notes is exempt from United
States withholding tax because it is effectively connected with a United States
trade or business of such Lender, a properly completed and executed copy of IRS
Form W-8ECI, and (2) such other form or forms as may be required under the
Internal Revenue Code or other laws, regulations, administrative practice or
applicable treaties of the United States as a condition to exemption from, or
reduction in the rate of, deduction or withholding of any United States
withholding tax for which any Borrower is required to pay additional amounts
under this Section 10.2. If the appropriate forms provided by a Lender at the
time such Lender first becomes a party to this Agreement indicates an
interest-withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; PROVIDED that, if at the date of the
Assignment and Acceptance or Lender Joinder Agreement pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date by a Borrower, then, to such extent, the
term Taxes shall include (in addition to withholding taxes that may be imposed
in the future or other amounts otherwise includible in Taxes) withholding tax,
if any, applicable with respect to the Lender assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN
or W-8ECI or other form that the applicable Borrower has indicated in writing to
the Lenders on the date hereof as being a required form to avoid or reduce
withholding tax on payments under this Agreement or on the Notes, that a Lender
reasonably considers to be confidential, such Lender shall give notice thereof
to the Borrowers and shall not be obligated to include in such form or document
such confidential information. If a Lender is a United States person, upon the
request of Fresh Produce, it agrees to complete and deliver to Fresh Produce a
statement signed by an authorized signatory of such Lender to the effect that it
is a United States person together with a duly completed and executed copy of
Internal Revenue Service form W-9 or successor form establishing that such
Lender is not subject to United States backup withholding tax.
(f) If any Lender claims exemption from, or reduction of,
withholding tax pursuant to subsection (e), and such Lender sells, assigns,
grants a participation in, or otherwise transfers all or part of the Obligations
of the Borrowers to such Lender, such Lender agrees to notify the Administrative
Agent of the percentage amount in which it is no longer the beneficial owner of
Obligations of the Borrowers to such Lender. To the extent of such percentage
amount, the Administrative Agent will treat such Lender's documentation as no
longer valid. If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
31
to such Lender in an amount equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or other documentation required
by subsection (e) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax. If the Internal Revenue Service or any other
Governmental Authority of the United States or other jurisdiction asserts a
claim that the Administrative Agent did not properly withhold tax from amounts
paid to or for the account of any Lender (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
the Administrative Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Lender shall indemnify and hold the Administrative Agent harmless
for all amounts paid, directly or indirectly, by the Administrative Agent as tax
or otherwise, including penalties and interest, and including any taxes imposed
by any jurisdiction on the amounts payable to the Administrative Agent under
this Section, together with all costs and expenses (including attorneys fees and
expenses). The obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of the
Administrative Agent."
1.19 AMENDMENTS TO COVER PAGE, EXHIBITS AND SCHEDULES. The
cover page of the Credit Agreement is hereby deleted in its entirety and
replaced with the cover page attached hereto. Each of Exhibit A: Form of
Assignment and Acceptance, Exhibit B: Form of Note, and Exhibit C: Form of
Notice of Borrowing is hereby deleted in its entirety and replaced with Exhibit
A: Form of Assignment and Acceptance, Exhibit B-1: Form of Revolving Loan Note,
Exhibit B-2: Form of Incremental Term Loan Note, Exhibit C-1: Form of Notice of
Revolving Borrowing, Exhibit C-2: Form of Notice of Incremental Term Loan
Borrowing and Exhibit C-3: Form of Notice of Continuation or Conversion of
Incremental Term Loan Borrowing, respectively, attached hereto. The Credit
Agreement is hereby further modified and amended by incorporating Exhibit E-1:
Form of Borrower Joinder Agreement and Exhibit E-2: Form of Lender Joinder
Agreement, attached hereto as an exhibit thereto. Each of Schedule C-1:
Commitments, Schedule G-1: Guarantors; Guaranty Agreements, Schedule P-1:
Pledgors, Schedule 4.1(b): Subsidiaries, Schedule 4.1(r): Material Contracts,
Schedule 4.1(s): Intellectual Property and Schedule 9.2: Notice Address, is
hereby deleted in its entirety and replaced with Schedule C-1: Revolving
Commitments, Schedule G-1: Guarantors; Guaranty Agreements, Schedule P-1:
Pledgors, Schedule 4.1(b): Subsidiaries, Schedule 4.1(r): Material Contracts,
Schedule 4.1(s): Intellectual Property and Schedule 9.2: Notice Address,
respectively, attached hereto.
SECTION 2. COVENANT. Each Borrower hereby acknowledges and agrees that
the principal amount of the Rabobank Italy Letter of Credit issued under and as
defined in the Credit Agreement shall, at all times, equal or exceed the
equivalent amount (in U.S. dollars) of the principal amount of that certain
First Demand Irrevocable Bank Guaranty (the "BANK GUARANTY") issued by an
Affiliate of the Administrative Agent for the benefit of Borrowers in support of
Borrowers' binding offer to purchase certain assets. In the event the face
amount available to be drawn under the Rabobank Italy Letter of Credit shall
ever be less than the equivalent amount in U.S. dollars of the principal amount
of the Bank Guaranty, Issuing Bank hereunder is authorized, without any action
or consent on behalf of Borrowers, to amend the Rabobank Italy Letter of Credit
to so increase the principal amount thereof, not to exceed the Total Revolving
32
Commitment, to equal the principal amount of the Bank Guaranty. In the event the
face amount available to be drawn under the Rabobank Italy Letter of Credit
shall exceed the equivalent amount in U.S. dollars of the principal amount of
the Bank Guaranty by 5% or more (a) as of the last day of each fiscal month for
the period commencing as of the effective date of this Amendment until and
including December 31, 2004 or (b) as of the last day of each fiscal quarter
thereafter until the Revolving Termination Date, Issuing Bank may, at the
request of Borrowers and in the exercise of Issuing Bank's reasonable
discretion, amend the Rabobank Italy Letter of Credit to so decrease the
principal amount thereof to equal the principal amount of the Bank Guaranty.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each Borrower and Guarantor
represents and warrants as follows:
(a) The execution, delivery and performance by such Loan Party
of this Amendment and the other transactions contemplated hereby, are within
such Loan Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party's charter or bylaws;
(ii) violate any law (including, without limitation, the Securities Exchange Act
of 1934, the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970 and any similar statute), rule, regulation
(including, without limitation, Regulation X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award; (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on or affecting any Loan Party,
any of its Subsidiaries or any of their properties; or (iv) except for the Liens
created under the Security Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of any Loan
Party or any of its Subsidiaries.
(b) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body or any
other third party is required for the due execution, delivery, recordation,
filing or performance by any Loan Party of this Amendment and each other Loan
Document contemplated hereby to which it is or is to be a party, or for the
consummation of the transactions contemplated hereby.
(c) This Amendment and each other document required to be
delivered by a Loan Party hereunder have been duly executed and delivered by
each Loan Party thereto, and constitute the legal, valid and binding obligation
of each Loan Party thereto, enforceable against such Loan Party in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally.
(d) The representations and warranties contained in Article 4
of the Credit Agreement, and in each of the Loan Documents, are correct in all
material respects on and as of the date hereof as though made on and as of such
date, other than any such representations and warranties that, by their terms,
expressly refer to an earlier date.
(e) The Consolidated balance sheet of Fresh Produce and its
Subsidiaries, as at June 25, 2004, and the related Consolidated statements of
income and cash flows of Fresh Produce and its Subsidiaries, for the fiscal
quarter then ended, copies of which have been furnished to the Administrative
33
Agent, fairly present the Consolidated financial condition of Fresh Produce and
its Subsidiaries, as at such date and the Consolidated results of the operations
of Fresh Produce and its Subsidiaries, for the period ended on such date, all in
accordance with GAAP applied on a consistent basis, and since June 25, 2004,
nothing has occurred that has resulted in a Material Adverse Effect.
(f) The four year projected Consolidated balance sheets and
income statements of Fresh Produce and its Subsidiaries delivered to the
Administrative Agent pursuant to Section 4 of this Amendment were prepared in
good faith on the basis of the assumptions stated therein, which assumptions
were fair in the light of conditions existing at the time of delivery of such
projected financial statements, and represented, at the time of delivery, Fresh
Produce's reasonable estimate of its future financial performance. No
information, exhibit or report, taken in the aggregate, furnished by any Loan
Party to the Administrative Agent or any Lender in connection with the
negotiation of this Amendment or the other Loan Documents or pursuant to the
terms of the Loan Documents contained at the time such statements were made any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(g) All Material Subsidiaries of Fresh Produce (other than Del
Monte Foods Europe Ltd.) are listed on Schedule M-1 to the Credit Agreement.
(h) No event has occurred and is continuing that constitutes
an Event of Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall be effective as of the date first set forth above upon the
satisfaction of the following conditions precedent in a manner acceptable to the
Administrative Agent:
(a) The Lenders shall be satisfied that there shall have been
no material change since the Agreement Date with respect to, (x) the corporate
and legal structure and capitalization of each Loan Party and its Subsidiaries,
including, without limitation, the charter, bylaws or equivalent corporate
documents and any shareholders' agreement and (y) the management and operations
of the Loan Parties and their Subsidiaries.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its Subsidiaries
pending or threatened before any court, governmental agency or arbitrator that
(i) would reasonably be likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this Amendment,
any Note, the Credit Agreement (as amended hereby), any other Loan Document or
the consummation of the transactions contemplated hereby.
(c) The Administrative Agent shall have received a solvency
letter, in form and substance satisfactory to the Lenders, attesting that Fresh
Produce and its Subsidiaries, taken as a whole, is and will be Solvent after
giving effect to the transactions contemplated hereby, from its Chief Financial
Officer.
(d) Each of the Lenders shall have completed a due diligence
investigation of the New Borrowers, the New Guarantors and the Persons and
assets acquired in connection with the Share Purchase Agreement entered into on
34
July 15, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ N.V. and Cirio Del Monte S.p.A. on one
hand, and Fresh N.V. on the other, and their respective Subsidiaries in scope
satisfactory to each of the Lenders, and the results of such investigation shall
be acceptable to each of the Lenders in their sole discretion.
(e) The Administrative Agent, for the benefit of the Secured
Parties, shall have been granted by the Loan Parties a perfected first-priority
Lien in all of the Collateral owned by Del Monte Foods Europe Ltd. and Del Monte
Foods Northern Europe Ltd. and the New Borrowers (subject to the Permitted
Liens), and all filings or other action necessary to perfect such Liens on the
Pledged Stock of Del Monte Fresh Produce Brasil Ltda., Del Monte Foods Europe
Ltd. and Del Monte Foods Northern Europe Ltd. (collectively, the "NEW
GUARANTORS") and New Borrowers and such Liens on all other Collateral with
respect to which a security interest may be perfected by filing (whether
pursuant to a filing under the Uniform Commercial Code, a filing with the
Companies House or otherwise) shall have been duly completed in the case of
Security Agreements governed by English law or granted by a company incorporated
in the United Kingdom.
(f) The Loan Parties shall have obtained all necessary
approvals required from regulatory authorities and others, if any, in connection
with the transactions contemplated hereby (without the imposition of any
conditions that are not acceptable to the Lenders).
(g) On the Third Amendment Date, there shall exist (i) no
material default by any Loan Party in any Material Contract and all Material
Contracts shall be in full force and effect, nor (ii) to the knowledge of any
Loan Party, any material default in compliance by such Loan Party with any
material Applicable Laws.
(h) In the reasonable opinion of the Administrative Agent,
there shall have occurred no material adverse change in (i) the properties,
business, prospects, operation or condition (financial or otherwise) of Fresh
Produce and its Subsidiaries taken as a whole or (ii) loan syndication or
financial conditions generally or in the syndication, financial or business
conditions in any of the jurisdictions in which a Loan Party is organized,
including, without limitation, material adverse changes in the regulatory or
business environment.
(i) The Borrowers shall have paid to the Administrative Agent,
(i) on behalf of the Lenders a fee in an amount equal to (x) with respect to
each Existing Lender, (A) 0.125% MULTIPLIED BY the lesser of such Existing
Lender's Revolving Commitment immediately prior to giving effect to this
Amendment or such Existing Lender's Revolving Commitment immediately after
giving effect to this Amendment PLUS (B) 0.25% MULTIPLIED BY the amount equal
to, to the extent positive, (I) such Existing Lender's Revolving Commitment
immediately after giving effect to this Amendment MINUS (II) such Existing
Lender's Revolving Commitment immediately prior to giving effect to this
Amendment and (y) with respect to each New Lender, 0.25% MULTIPLIED BY such New
Lender's Revolving Commitment, and (ii) on its behalf, such fees as may be due
and owing under the terms of the Supplemental Fee Letter.
(j) The Administrative Agent shall have received each of the
following, in form and substance satisfactory to the Administrative Agent:
35
(i) this Amendment duly executed by the Borrower, the
Guarantors, the Administrative Agent, the Issuing Bank and each of the
Lenders;
(ii) the Ratification Agreement duly executed by each Existing
Borrower and each Existing Guarantor;
(iii) replacement Revolving Loan Notes in the amount of the
Revolving Commitment of each Revolving Lender as set forth on Schedule
C-1 hereto;
(iv) (A) a Lender Joinder Agreement duly executed by each New
Lender agreeing to comply with all obligations of a "Revolving Lender"
under the Credit Agreement, and (B) a Borrower Joinder Agreement duly
executed by each New Borrower;
(v) the Supplemental Fee Letter duly executed by the Borrowers
and the Administrative Agent;
(vi) certified copies of the resolutions of the Board of
Directors of each Borrower and each other Loan Party approving this
Amendment, the Notes, each other Loan Document contemplated hereby to
which it is or is to be a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with
respect to this Amendment, the Notes and each other Loan Document;
(vii) (A) a copy of the charter or memorandum and articles of
association, as the case may be, of each Borrower (other than Fresh
Produce and Ship Holdings) and each Guarantor (other than FDM Holdings
Limited) and each amendment thereto, certified (as of a date reasonably
near the Third Amendment Date) by an appropriate governmental official
as being a true and correct copy thereof and (B) a copy of the
memorandum and articles of association of Fresh Produce, Ship Holdings
and FDM Holdings Limited and each amendment thereto, certified (as of a
date reasonably near the Third Amendment Date) by Cayman Islands
counsel to the Loan Parties as being a true and correct copy thereof;
(viii) a copy of a certificate of the Secretary of State of
the state of organization of each Borrower and each Guarantor (or the
equivalent, if any, of such certificate in any non-U.S. jurisdiction in
which such Borrower or Guarantor is organized), dated reasonably near
the Third Amendment Date, listing the charter of such Borrower or
Guarantor and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to such
Person's charter on file in his office; (B) such Person has paid all
franchise taxes to the date of such certificate; and (C) such Person
(other than Del Monte Fresh Packaged Produce (UK) Ltd.) is duly
incorporated and in good standing or presently subsisting under the
laws of the jurisdiction of its organization;
(ix) a certificate of each Borrower and each Guarantor, signed
on behalf of such Person by its President or a Vice President and its
Secretary or any Assistant Secretary or by one of its directors, or by
other appropriate officers of it, dated as of the Third Amendment Date
36
(the statements made in which certificate shall be true on and as of
the Third Amendment Date), certifying as to (A) the absence of any
amendments to the charter of such Person since the date of the
certificate referred to in Section 3.1(l)(iv); (B) a true and correct
copy of the bylaws of such Person as in effect on the Third Amendment
Date (or that there have been no amendments to such bylaws to the
extent delivered to the Administrative Agent on the Agreement Date);
and (C) the due incorporation and good standing (or the reasonable
equivalent thereof, if any) of such Person as a corporation organized
under the laws of the jurisdiction of its organization, and the absence
of any proceeding for the dissolution or liquidation of such Person;
(x) a certificate of the Secretary or an Assistant Secretary
or other appropriate officer of each Borrower and each Guarantor
certifying the names and true signatures of the directors and officers
of such Person authorized to sign this Amendment, the Notes and each
other Loan Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder;
(xi) any Security Agreements and Pledge Agreements with
respect to the Collateral owned by the New Guarantors or the New
Borrowers or the Pledged Stock of the New Guarantors or the New
Borrowers and any new Security Agreements and Pledge Agreements or
amendments or supplements to any existing Security Documents as the
Agent may require with respect to any new Collateral owned by the
Guarantors or the Borrowers or the Pledged Stock of the Guarantors or
the Borrowers duly executed by the parties thereto, together with (A)
certificates, if any, representing the shares of such Pledged Stock (or
the equivalent thereof) of each of the Subsidiaries to be pledged
pursuant thereto, accompanied by undated stock powers (or the
equivalent thereof) executed in blank; (B) executed financing
statements and other similar documents in proper form for filing under
the Uniform Commercial Code of any state of the United States and any
similar laws of any jurisdictions outside the United States, that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the Liens created by such Security Documents,
covering the Collateral described in such Security Documents; (C)
evidence of the completion of all other recordings, registrations and
filings of or with respect to such Security Documents that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the Liens created thereby; (D) evidence of the
insurance required by the terms of such Security Agreements or under
the Credit Agreement; and (E) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the Liens created by such Security Documents has
been taken;
(xii) the Guaranty Agreements duly executed by each New
Guarantor and New Borrower specified on Schedule G-1, each such
Guaranty Agreement to be in form and substance satisfactory to the
Administrative Agent, and guaranteeing the obligations specified in
such Schedule;
(xiii) such financial, business and other information
regarding each Loan Party as the Lenders shall have reasonably
requested, including, without limitation, information as to possible
contingent liabilities, tax matters, environmental matters, obligations
under ERISA, collective bargaining agreements and other arrangements
with employees, the budget for the fiscal year commencing on or about
January 1, 2005, as to Fresh Produce and its Subsidiaries, and the
37
projected balance sheet, income statement and cash flow statement as to
Fresh Produce and its Subsidiaries for the four year period commencing
on or about January 1, 2005, in each case in form and substance
satisfactory to the Lenders; and
(xiv) a favorable opinion of (A) Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to the Loan Parties, (B) general counsel for the Loan
Parties, (C) Brazilian counsel to the Loan Parties, (D) British Virgin
Islands counsel to the Loan Parties, (E) Costa Rican counsel to the
Loan Parties, (F) Gibraltar counsel to the Loan Parties, (G) Guatemalan
counsel to the Loan Parties, (H) Hong Kong counsel to the Loan Parties,
(I) United Kingdom counsel to the Loan Parties, (J) Liberian counsel to
the Loan Parties, (K) Netherlands counsel to the Loan Parties, (L)
Netherlands Antilles counsel to the Loan Parties, (M) Cayman Islands
counsel to the Loan Parties, (N) Chilean counsel to the Loan Parties,
(O) Japanese counsel to the Loan Parties, (P) Panamanian counsel to the
Loan Parties, and (Q) such other counsel as the Administrative Agent
may reasonably request.
(k) The Administrative Agent shall have received such other
documents, instruments, and information executed and/or delivered by the
Borrowers as the Administrative Agent may reasonably request.
SECTION 5. CONDITIONS SUBSEQUENT TO THE EFFECTIVENESS OF THIS
AMENDMENT. The obligation of the Lenders to continue to make Advances (or
otherwise extend credit under the Credit Agreement, as amended hereby) is
subject to the fulfillment, on or before the date applicable thereto, of each of
the conditions subsequent set forth below:
(a) Within 45 days of the Third Amendment Date (or such longer
period of time as may be acceptable to the Administrative Agent), the Borrowers
shall deliver a copy of the memorandum and articles of association of Fresh
Produce, Ship Holdings and FDM Holdings Limited and each amendment thereto,
certified (as of a date reasonably near the Third Amendment Date) by the
Registrar of Companies as being a true and correct copy thereof.
(b) Within 45 days of the Third Amendment Date (or such longer
period of time as may be acceptable to the Administrative Agent), the Borrowers
shall deliver a copy of a Certificate of Good Standing issued by the Companies
House for Del Monte Fresh Packaged Produce (UK) Ltd.
SECTION 6. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Amendment as set forth in
Section 4 hereof, on and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import shall mean and be a reference to the Credit Agreement as amended hereby,
and each reference in the Notes and the other Loan Documents to the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended above, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects.
38
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement.
SECTION 7. COSTS, EXPENSES AND TAXES. The Borrowers agree, jointly and
severally, to pay on demand all costs and expenses of the Administrative Agent
in connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent with respect thereto). In addition, the Borrowers
agree, jointly and severally, to pay any and all stamp and other taxes payable
or determined to be payable in connection with the execution and delivery of
this Amendment and the other instruments and documents to be delivered
hereunder, and agree to save the Administrative Agent and the Lenders harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes.
SECTION 8. AFFIRMATION OF GUARANTY. By executing this Amendment, each
Guarantor hereby acknowledges, consents and agrees that all of its obligations
and liability under its Guaranty Agreement remain in full force and effect in
relation to the Credit Agreement, as amended and modified by this Amendment, and
that the execution and delivery of this Amendment and any and all documents
executed in connection therewith shall not alter, amend, reduce or modify its
obligations and liability under its Guaranty Agreement.
SECTION 9. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of a signature page hereto by facsimile
transmission or by e-mail transmission of an adobe file format document (also
known as a PDF file) shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 10. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 11. FINAL AGREEMENT. This Amendment represents the final
agreement between the Borrowers, the Administrative Agent and the Lenders as to
the subject matter hereof and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties. The Amendment shall constitute a
Loan Document for all purposes.
[SIGNATURE PAGES TO FOLLOW]
39
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duty authorized,
as of the date first above written.
BORROWERS: FRESH DEL MONTE PRODUCE INC.
By:
---------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE N.A., INC.
By:
---------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE
INTERNATIONAL, INC.
By:
---------------------------------------
Name:
Title:
FRESH DEL MONTE SHIP HOLDINGS LTD.
By:
---------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-1
DEL MONTE FRESH PRODUCE B.V.
By:
------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE (UK) LTD.
By:
------------------------------------
Name:
Title:
DEL MONTE FOODS INTERNATIONAL LTD.
By:
------------------------------------
Name:
Title:
DEL MONTE INTERNATIONAL INC.
By:
------------------------------------
Name:
Title:
DEL MONTE EUROPE LTD.
By:
------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-2
GUARANTORS: DEL MONTE FRESH PRODUCE COMPANY
By:
--------------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE (SOUTHWEST), INC.
By:
--------------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE (FLORIDA), INC.
By:
--------------------------------------------
Name:
Title:
FRESH DEL MONTE PRODUCE (CANADA), INC.
By:
--------------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-3
DEL MONTE FRESH PRODUCE (SOUTHEAST), INC.
By:
----------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE (WEST COAST), INC.
By:
----------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE (TEXAS), INC.
By:
----------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE (KANSAS CITY) INC.
By:
----------------------------------------
Name:
Title:
DEL MONTE FOODS EUROPE LTD.
By:
----------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-4
DEL MONTE FOODS NORTHERN EUROPE LTD.
By:
-------------------------------------------
Name:
Title:
DEL MONTE FRESH PACKAGED PRODUCE (UK) LTD.
By:
-------------------------------------------
Name:
Title:
GLOBAL REEFER CARRIERS, LTD.
By:
-------------------------------------------
Name:
Title:
FDM HOLDINGS LIMITED
By:
-------------------------------------------
Name:
Title:
DEL MONTE B.V.I. LIMITED
By:
-------------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-5
CORPORATION DE DESARROLLO AGRICOLA
DEL MONTE S.A.
By:
-------------------------------
Name:
Title:
COMPANIA DE DESARROLLO BANANERO
DE GUATEMALA S.A.
By:
-------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE (ASIA-
PACIFIC) LIMITED
By:
-------------------------------
Name:
Title:
FRESH DEL MONTE PRODUCE N.V.
By:
-------------------------------
Name:
Title:
WAFER LIMITED
By:
-------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-6
FRESH DEL MONTE JAPAN COMPANY LTD.
By:
------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE (CHILE) S.A.
By:
------------------------------------
Name:
Title:
DEL MONTE FRESH PRODUCE BRASIL LTDA.
By:
------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-7
ADMINISTRATIVE AGENT,
ISSUING BANKS AND
LENDERS: COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as
Administrative Agent,
Issuing Bank and a Lender
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
AGFIRST FARM CREDIT BANK, as a Lender
By:
---------------------------------------
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as a Lender
By:
---------------------------------------
Name:
Title:
SUNTRUST BANK, as a Lender
By:
---------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-8
FARM CREDIT SERVICES OF MID-AMERICA,
PCA, as a Lender
By:
-----------------------------------------
Name:
Title:
ING CAPITAL LLC, as a Lender
By:
-----------------------------------------
Name:
Title:
U.S. AGBANK, FCB, as a Lender
By:
-----------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
a Lender
By:
-----------------------------------------
Name:
Title:
BANK OF AMERICA, as a Lender
By:
-----------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-9
COBANK, ACB, as a Lender
By:
----------------------------------------------
Name:
Title:
FARM CREDIT BANK OF TEXAS, as a Lender
By:
----------------------------------------------
Name:
Title:
FARM CREDIT WEST, PCA, as a Lender
By:
----------------------------------------------
Name:
Title:
GREENSTONE FARM CREDIT SERVICES ACA/FCLA,
as a Lender
By:
----------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By:
----------------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-10
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By:
----------------------------------------
Name:
Title:
1ST FARM CREDIT SERVICES, PCA,
as a Lender
By:
----------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as a Lender
By:
----------------------------------------
Name:
Title:
NORDEA BANK FINLAND PLC, NEW YORK
BRANCH, as a Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
AMERICAN AGCREDIT, FLCA, as a Lender
By:
----------------------------------------
Name:
Title:
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
S-11