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EXHIBIT 4.18
NINTH AMENDMENT
Dated as of May 10, 2000
This NINTH AMENDMENT among DEL MONTE FRESH PRODUCE (UK) LTD., an
English limited company ("FRESH UK"), WAFER LIMITED, a Gibraltar corporation
("WAFER"), DEL MONTE FRESH PRODUCE INTERNATIONAL INC., a Liberian corporation
("FRESH INTERNATIONAL"), DEL MONTE FRESH PRODUCE N.A., INC., a Florida
corporation ("FRESH N.A."), FRESH DEL MONTE PRODUCE INC., a Cayman Islands
company ("FRESH PRODUCE"), and GLOBAL REEFER CARRIERS, LTD., a Liberian
corporation ("GLOBAL REEFER") (Fresh UK, Wafer, Fresh International, Fresh N.A.,
Fresh Produce and Global Reefer are referred to herein collectively as the
"BORROWERS" and each individually as a "BORROWER"); the banks, financial
institutions and other institutional lenders listed in the signature pages
hereof as Lenders (the "LENDERS"); the Issuing Bank and the Swing Line Bank; and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH ("RABOBANK"), as syndication agent, administrative agent and
collateral agent for the Lenders (the "ADMINISTRATIVE AGENT").
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Administrative Agent, the Issuing Bank, the
Swing Line Bank and certain of the Lenders are parties to a Revolving Credit
Agreement dated as of May 19, 1998 (as amended, modified or supplemented from
time to time prior to the date hereof, the "CREDIT AGREEMENT").
(2) Each of the Borrowers desires to amend the Credit Agreement to,
among other things, provide for the Term Loan (as defined herein) and increase
the Revolving Commitment from $439,250,000 to $450,000,000 as of the effective
date hereof, and each of the Administrative Agent, the Issuing Bank, the Swing
Line Bank and the Lenders has severally agreed to the requested amendments, on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, 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 TO ARTICLE I. Article I of the Credit Agreement,
DEFINITIONS, is hereby amended by adding the following definitions thereto in
appropriate alphabetical order, and deleting in their entirety any existing
definition of any the following, respectively, currently set forth therein:
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(a) "APPLICABLE MARGIN" means for any Borrower on any date of
determination, the applicable percentage indicated below which corresponds to
the Leverage Ratio of Fresh Produce indicated below:
-------------------------------------------- ------------------- --------------------- ----------------------
Applicable Margin Applicable Margin Applicable
Leverage Ratio for LIBO Rate for LIBO Rate Margin for
Advances under Advances under the Unused Revolving
the Term Loan Revolving Commitment Commitments
Commitment
-------------------------------------------- ------------------- --------------------- ----------------------
Greater than 3.0 to 1.00 2.75% 2.25% 0.450%
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Less than or equal to 3.0 to 1.00, but 2.25% 1.75% 0.425%
greater than 2.5 to 1.00
-------------------------------------------- ------------------- --------------------- ----------------------
Less than or equal to 2.5 to 1.00, but 2.00% 1.50% 0.400%
greater than 2.0 to 1.00
-------------------------------------------- ------------------- --------------------- ----------------------
Less than or equal to 2.0 to 1.00, but 1.75% 1.25% 0.350%
greater than 1.5 to 1.00
-------------------------------------------- ------------------- --------------------- ----------------------
Less than or equal to 1.5 to 1.00, but 1.50% 1.00% 0.300%
greater than 1.0 to 1.00
-------------------------------------------- ------------------- --------------------- ----------------------
Less than or equal to 1.0 to 1.00 1.25% 0.75% 0.250%
-------------------------------------------- ------------------- --------------------- ----------------------
The Applicable Margin for each 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 statement for the most recently ended 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 5.03(b) and (c) or 5.03(k), as the case
may be, and a certificate of the Chief Financial Officer of Fresh Produce
demonstrating such 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, and (B) 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 5.03(b), (c) or (k), as the case
may be, the Applicable Margin shall be the highest interest rate margin set
forth above with respect to the applicable Advances and Unused Revolving
Commitments, respectively, for so long as such information has not been received
by the Administrative Agent.
(b) "APPLICABLE RATE" has the meaning specified in Section 2.06(a).
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(c) "BASE RATE ADVANCE" means an Advance under the Revolving
Commitments or the Term Loan Commitments denominated in U.S. dollars that bears
interest as provided in Section 2.06(a)(i).
(d) "COMMITMENTS" means, collectively, the Total Revolving Commitment
and the Total Term Loan Commitment; and "COMMITMENT" means the aggregate
Revolving Commitment and Term Loan Commitment of any Lender.
(e) "CONSOLIDATED FIXED CHARGES" means, for Fresh Produce for any
period, the sum determined on a Consolidated basis of (i) interest expense of
all Debt of Fresh Produce and its Subsidiaries (including amortization of debt
discount in respect of such Debt), PLUS (ii) the deferred amount of any
amortization of vessel leases, PLUS (iii) payments of principal of all term Debt
(other than the Revolving Loans and the Swing Line Advances, but including the
Term Loans) PLUS (iv) expenses in respect of obligations of Fresh Produce and
its Subsidiaries under Capitalized Leases, PLUS (v) payments of dividends (to
the extent permitted under Section 5.02(g)), paid or payable in each case, by
Fresh Produce and/or its Subsidiaries during such period.
(f) "CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion
of LIBO Rate Advances into Base Rate Advances or the conversion of Base Rate
Advances into LIBO Rate Advances pursuant to Section 2.02 or Section 2.08.
(g) "DEFAULTED AMOUNT" means, with respect to any Lender at any time,
any amount required to be paid by such Lender to the Administrative Agent or any
other Lender hereunder or under any other Loan Document at or prior to such time
which has not been so paid as of such time, including, without limitation, any
amount required to be paid by such Lender to (a) the Swing Line Bank pursuant to
Section 2.01(c) to purchase any participation in a Swing Line Advance made by
the Swing Line Bank, (b) the Issuing Bank pursuant to Section 2.03(c) to
purchase any participation in a US Dollar Advance made by the Issuing Bank, (c)
the Administrative Agent pursuant to Section 2.02(d) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Lender, (d) any other Lender pursuant to Section
2.14 to purchase any participation in Advances owing to such other Lender and
(e) the Administrative Agent pursuant to Section 8.05 to reimburse the
Administrative Agent for such Lender's ratable share of any amount required to
be paid by the Lenders to the Administrative Agent or such Lender as provided
therein. In the event that a portion of a Defaulted Amount shall be deemed paid
pursuant to Section 2.14(b), the remaining portion of such Defaulted Amount
shall be considered a Defaulted Amount originally required to be paid hereunder
or under any other Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
(h) "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 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
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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 or three 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:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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
(v) 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 Term Loan Commitment
that ends after the Maturity Date.
(i) "LENDERS" means, collectively, the Revolving Lenders and the Term
Lenders, and "LENDER" means any one of them.
(j) "LETTER OF CREDIT SUBLIMIT" means $35,000,000.
(k) "LIBO RATE ADVANCE" means an Advance under the Revolving
Commitments or the Term Loan Commitments denominated in U.S. dollars that bears
interest as provided in Section 2.06(a)(ii).
(l) "MATURITY DATE" means May 10, 2005 or such earlier date as payment
of the Term Loan shall be due (whether by acceleration or otherwise).
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(m) "NOTES" shall mean, collectively, the Term Loan Notes and the
Revolving Loan Notes.
(n) "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 Term
Lender under the Term Loan Commitment at any time, an amount equal to (i) a
fraction the numerator of which is the amount of such Term Lender's Term Loan
Commitment at such time and the denominator of which is the Total Term Loan
Commitment at such time, 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 Term Loan
Commitment at such time and the denominator of which is the Commitments at such
time, multiplied by (ii) such amount.
(o) "REQUIRED LENDERS" means, at any time, a Lender or Lenders owed or
holding not less than fifty-one percent (51%) of the Commitments; 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 Loans 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 Term Loans. 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.
(p) "REVOLVING LENDERS" means the banks, financial institutions and
other institutional lenders that have agreed to make Advances under the
Revolving Commitment hereunder, as indicated on Schedule I 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 8.07(c).
(q) "REVOLVING COMMITMENT" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I 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 8.07(c) as such
Lender's "Revolving Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05 or 2.15.
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(r) "REVOLVING LOAN NOTE" means a promissory note of any Borrower
payable to the order of a Revolving Lender, in substantially the form of Exhibit
A-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.
(s) "REVOLVING LOANS" means, collectively, the amounts advanced from
time to time by the Revolving Lenders to the Borrowers under the Revolving
Commitment, not to exceed the amount of the Total Revolving Commitment, and
evidenced by the Revolving Loan Notes.
(t) "REVOLVING TERMINATION DATE" means the earlier of (i) May 19, 2003
and (ii) the date of the termination in whole of the Revolving Commitments
pursuant to Section 2.05 or 6.01.
(u) "SWING LINE ADVANCE" means an advance made by the Swing Line Bank
pursuant to Section 2.01(c).
(v) "SWING LINE SUBLIMIT" has the meaning specified in Section 2.01(c).
(w) "TERM LENDERS" means the banks, financial institutions and other
institutional lenders that have agreed to make Advances under the Term Loan
Commitment hereunder, as indicated on Schedule I hereto under the caption "Term
Loan 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 8.07(c).
(x) "TERM LOAN ADVANCE DATE" means May 10, 2000.
(y) "TERM LOAN COMMITMENT" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "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 8.07(c) as such
Lender's "Term Loan Commitment".
(z) "TERM LOAN NOTE" means a promissory note of any Borrower payable to
the order of a Term Lender, in substantially the form of Exhibit A-2 hereto, in
the principal amount of such Term Lender's Term Loan Commitment, and any
extensions, renewals or amendments to, or replacements of, the foregoing; and
"TERM LOAN NOTES" means all such promissory notes of any Borrower in an
aggregate principal amount equal to the Total Term Loan Commitment.
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(aa) "TERM LOANS" means, collectively, the amounts advanced from time
to time by the Term Lenders to the Borrowers under the Term Loan Commitment, not
to exceed the amount of the Total Term Loan Commitment, and evidenced by the
Term Loan Notes.
(bb) "TOTAL REVOLVING COMMITMENT" means the aggregate of all Revolving
Lenders' Revolving Commitments not to exceed U.S.$450,000,000 at any time, as
such amount may be reduced pursuant to Sections 2.05 and 2.15.
(cc) "TOTAL TERM LOAN COMMITMENT" means the several obligations of the
Term Lenders to advance the sum of U.S.$135,000,000 on the Term Loan Advance
Date, in accordance with their respective Term Loan Commitments, to the
Borrowers pursuant to the terms hereof.
(dd) "UNUSED REVOLVING COMMITMENT" means, at any time,
(i) the Total Revolving Commitment, minus
(ii) the sum of (i) the aggregate principal amount of all
Advances of Revolving Loans made by the Revolving Lenders and
outstanding on such date, PLUS (ii) the Letter of Credit Amount
outstanding on such date.
(ee) "US DOLLAR ADVANCE" means an advance under the Revolving
Commitment or the Term Loan Commitment pursuant to Section 2.01.
SECTION 2. AMENDMENTS TO ARTICLE II. Article II of the Credit
Agreement, AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT, is
hereby deleted in its entirety and the following is substituted in its place:
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS AND THE LETTERS OF CREDIT
SECTION 2.01 THE EXTENSIONS OF CREDIT. (a) THE REVOLVING LOANS. Each
Revolving Lender agrees, severally and not jointly, on the terms and conditions
hereinafter set forth, to make Revolving Loans in US Dollars to the Borrowers
from time to time on any Business Day during the period from the date hereof to
and including the Revolving Termination Date in an amount for each such
Revolving Loan not to exceed such Lender's Pro Rata portion of the Unused
Revolving Commitment at such time; provided that at such time, the sum of (i)
the aggregate principal amount of all Revolving Loans, (ii) the Letter of Credit
Amount and (iii) the Foreign Exchange Contract Exposure (the sum of clauses (i),
(ii) and (iii) being the "Total Current Exposure"), after giving effect to such
Borrowing, shall not exceed the Total Revolving Commitment. Within the limits of
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the Unused Revolving Commitments, the Borrowers may borrow under this Section
2.01(a), prepay pursuant to Section 2.05 or repay pursuant to Section 2.07 and
reborrow under this Section 2.01(a).
(b) THE TERM LOAN. Each Term Lender agrees, severally and not jointly,
on the terms and conditions hereinafter set forth, to make an advance in US
Dollars to the Borrowers on the Term Loan Advance Date in an amount for each
Term Lender not to exceed such Lender's Pro Rata portion of the Term Loan
Commitment at such time, with all such advances not exceeding in the aggregate
the Term Loan Commitment. Advances under the Term Loan Commitment may be repaid
and reborrowed as provided in SECTION 2.02 hereof in order to reborrow Base Rate
Advances, or LIBO Rate Advances for new Interest Periods, provided, however,
that there shall be no increase in the aggregate principal amount outstanding
under the Term Loan Commitment at any time after the Term Loan Advance Date.
(c) THE 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 2.01(c),
prepay pursuant to Section 2.05 or repay pursuant to Section 2.07 and reborrow
under this Section 2.01(c).
(d) LETTERS OF CREDIT. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue Letters 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 three hundred sixty-five (365) days or less immediately
following the date of the issuance of such Letter of Credit, but in no event
shall any Letter of Credit have an expiry date that occurs on a date later than
90 days after the Revolving Termination Date. Subject to the limits referred to
above, any Borrower may request the issuance of Letters of Credit under this
Section 2.01(d), repay any Revolving Loans resulting from drawings thereunder
pursuant to Section 2.03(b) and request the issuance of additional Letters of
Credit under this Section 2.01(d). The reimbursement obligation under the Letter
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of Credit shall be payable in U.S. dollars in accordance with Section 2.03(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 Loans to the requesting Borrower by the Issuing
Bank hereunder for all purposes of this Agreement (including, without
limitation, the provisions of Section 2.04 and Section 2.06), 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 Loans. 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.
(e) FOREIGN EXCHANGE CONTRACTS. Each Foreign Exchange Bank agrees, on
the terms and conditions hereinafter set forth and subject to Section 5.02(r),
to enter into foreign exchange contracts with any Borrower from time to time at
the request of such Borrower during the period from the date hereof to and
including the Revolving Termination Date but only to the extent that the
aggregate amount of Foreign Exchange Contract Exposure shall not exceed the
maximum amount permitted by Section 5.02(r)(i) at such time. Each Foreign
Exchange Bank agrees to furnish to the Administrative Agent promptly after the
end of each month a report setting forth the amount of presettlement risk at the
end of each month of each Borrower with which such Foreign Exchange Bank has
entered into a Foreign Exchange Contract. The rights and obligations of the
parties to the Foreign Exchange Contract shall be documented pursuant to the
documentation customarily used by the Foreign Exchange Bank. The Foreign
Exchange Contract Exposure of the Borrowers to the Foreign Exchange Bank shall
be secured pari passu with the other Obligations hereunder and under the Loan
Documents.
(f) Notwithstanding anything in this Section 2.01 to the contrary, the
US Dollar Advances bearing interest at the LIBO Rate may not be outstanding as
part of more than 15 separate Borrowings in the aggregate. Each LIBO Rate
Advance made in US Dollars shall be in an amount of U.S.$5,000,000 or an
integral multiple of U.S.$1,000,000 in excess thereof.
SECTION 2.02 MAKING THE ADVANCES. (a) Any Advance of a Revolving Loan
or the 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 (3) Business
Days after the Term Loan Advance Date, during which period the Term Loan shall
bear interest as a Base Rate Advance); provided, however, that (i) if the
Borrowers fail to give the Administrative Agent 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, and
(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 2.01(d) hereof, or (C) if, at
the time of such Advance, a Default or an Event of Default has occurred and is
continuing. Each US Dollar Advance shall be made, to the extent that a Lender is
so obligated under Section 2.01, on written notice from the Borrower requesting
such 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
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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 Advance is a new borrowing, or a continuation or conversion of,
an Advance under the Revolving Commitment, or a continuation or conversion of an
Advance under the Term Loan Commitment, (w) the Type of Advance to be made, (x)
the date on which such Advance is to be made, (y) the amount of such Advance
(which amounts shall be allocated by the Administrative Agent among the Lenders,
on a pro rata basis in accordance with each Lender's Pro Rata Share of such
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 B attached hereto, and
being hereinafter referred to as the "Notice of Borrowing"). Each such Notice of
Borrowing shall be sent by telex, telecopier or cable and signed by the chief
financial officer of any of the Borrowers or the Director of Treasury or
corporate controller of Del Monte Fresh Produce Company.
Each Lender making a US Dollar Advance shall, before 11:00 A.M. (New
York City time) on the date such US Dollar 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 Advance. After the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article II, 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 Borrowing
pursuant to which the Advance is being made.
(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 telex or telecopier, 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 II, 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 Borrowing pursuant to which the 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
Lender's Pro Rata Share of such Advance and shall be obligated to fund such
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participation as a Revolving Loan 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, (1) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Lender or
any other Person may have against the Swing Line Bank or any other Person for
any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default or the termination of the Revolving Commitments; (iii) any
adverse change in the condition (financial or otherwise) of the requesting
Borrower or any other Person; (iv) any breach of this Agreement by any Borrower
or any other Revolving Lender; or (v) 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 Revolving Commitment Pro Rata Share of an outstanding Swing Line Advance on
(i) 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 (ii) 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 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 US Dollar 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 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 II, 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 2.02(d)) to fund such Advance when such Advance, as a
result of such failure, is not made on such date.
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(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any US Dollar Advance, that such Lender will not
make available to the Administrative Agent such Lender's Pro Rata Share of such
Advance, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Advance in
accordance with subsection (a) of this Section 2.02 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 Lender shall
not have so made such ratable portion available to the Administrative Agent,
such 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 2.06 to such
US Dollar Advance, and (ii) in the case of repayment or payment by such Lender,
the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
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.
SECTION 2.03 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 cable 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 cable, 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 II, make such Letter of Credit available to the requesting
Borrower at its office referred to in Section 8.02 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
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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 Loan resulting from any
drawing under such Letter of Credit at such time and in the manner
provided below. At the request of any Lender, the Issuing Bank will
send to such 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 Loan 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 Loan 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 outstanding principal
amount of such Revolving Loan to be purchased by such Revolving Lender; provided
that no such Revolving Lender shall be obligated to purchase its Pro Rata Share
of such Revolving Loan for any wrongful payment made by the Issuing Bank as a
result of its gross negligence or willful misconduct. Each Borrower hereby
consents to each such sale and assignment. Each Revolving Lender agrees to
purchase its Pro Rata Share of an outstanding Revolving Loan 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 Loan,
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 Loan, 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 Loan 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 Loans made
by the Issuing Bank during the preceding month pursuant to this Section 2.03(b)
and shall pay to each such Revolving Lender in respect of the amount of any
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funded participations of such Revolving Lender in such Revolving Loans
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
Loans 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;
(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.
Without limiting the generality of the foregoing, nothing in this subsection (c)
shall limit any rights of the Borrowers under Section 8.13.
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(d) 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, at the time
of the issuance of such Letter of Credit the amount of all usual and customary
fees and expenses (other than facing fees) incurred by the Issuing Bank in
connection with the issuance of, or paid by the Issuing Bank in connection with
the issuance of, such 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 at the end of each
calendar month during which any such Letter of Credit is outstanding, and, to
the extent that such amounts remain owing and unpaid, on the Revolving
Termination Date.
SECTION 2.04 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.
(b) COLLATERAL AGENT. The Borrowers agree to pay to the Collateral
Agent for its own account a fee separately agreed between the Borrowers and the
Collateral Agent.
(c) COMMITMENT FEE. The Borrowers agree to pay to the Administrative
Agent for the account of each Revolving Lender a commitment fee on such
Revolving Lender's average daily Pro Rata portion 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 Unused Revolving Commitments in
effect from time to time, payable in arrears on the first day of the immediately
following calendar month during the term of such Revolving Lender's Revolving
Commitment, commencing on June 1, 1998, and on the Revolving Termination Date;
PROVIDED, HOWEVER, that any commitment fee accrued with respect to any of the
Revolving Commitments 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 any of the Revolving Commitments
of a Defaulting Lender so long as such Revolving Lender shall be a Defaulting
Lender.
SECTION 2.05 REDUCTION OF REVOLVING COMMITMENT; VOLUNTARY PREPAYMENT.
(a) REDUCTION OF REVOLVING COMMITMENT. 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 Loans to the Borrowers in the amount specified in Section 2.01(a)
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in the event of such termination or reduction); PROVIDED, HOWEVER, that each
partial reduction shall be in the amount of U.S.$10,000,000 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 five
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 US Dollar 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
8.04(c), and to the extent any Borrower prepays any Advance under the Term Loan,
such amount shall not be available to be reborrowed and shall be applied to the
quarterly installments of the Term Loan due under Section 2.07(b) in the inverse
order of maturity.
SECTION 2.06 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 (the "APPLICABLE RATE"):
(i) BASE RATE ADVANCES. During such periods as such Advance is
a Base Rate Advance, (x) with respect to any Base Rate Advance other
than a Swing Line Advance, a rate per annum equal at all times to the
Base Rate in effect from time to time and (y) 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, other than a Swing Line Advance, (1) in arrears monthly on the
first day of the immediately following calendar month during such
periods, (2) in the case of any Base Rate Advance under the Revolving
Commitment, on the Revolving Termination Date, and (3) in the case of
any Base Rate Advance under the Term Loan Commitment, on the Maturity
Date, and (B) in the case of any Base Rate Advance which is a Swing
Line Advance, in arrears on (1) the first day of each calendar month,
(2) upon the payment or prepayment thereof, and (3) on the Revolving
Termination Date.
(ii) LIBO RATE ADVANCES. During such periods as such Advance
is a LIBO Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (x) the LIBO Rate for
such Interest Period for such Advance, and (y) (A) the Applicable
Margin from time to time in effect for LIBO Rate Advances under the
Revolving Commitment in connection with Advances of Revolving Loans, or
(B) the Applicable Margin in effect from time to time for LIBO Rate
Advances under the Term Loan Commitment in connection with Advances of
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the Term Loan, payable in arrears on 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 and on which such
Advances shall be paid in full, and on the Revolving Termination Date
in connection with Advances of Revolving Loans, and on the Maturity
Date in connection with Advances of the Term Loan.
(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 2% per annum above the rate
per annum required to be paid on such Advance pursuant to Section 2.06(a)(i) or
2.06(a)(ii) above 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 2% per annum above the
rate per annum required to be paid, in the case of interest, on such Advance
pursuant to Section 2.06(b)(i) or 2.06(b)(ii) above.
SECTION 2.07 MANDATORY PREPAYMENTS OR COLLATERALIZATION. (a) MANDATORY
REPAYMENTS OF REVOLVING LOANS AND SWING LINE ADVANCES.
(i) On any date on which the Total Current Exposure shall
exceed the Total Revolving Commitment, the Borrowers shall prepay
Revolving Loans in the aggregate principal amount equal to such excess.
Additionally, each Borrower shall repay the aggregate unpaid principal
amount of all Revolving Loans 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.
(b) MANDATORY REPAYMENTS OF TERM LOAN. The outstanding principal
balance of the Term Loan shall be repaid by the Borrowers in quarterly
installments each in the amount of $3,375,000, commencing September 30, 2000,
and at the end of each calendar quarter thereafter, through the Maturity Date.
Any remaining unpaid principal and interest on the Term Loan shall be due and
payable in full on the Maturity Date.
SECTION 2.08 INCREASED COSTS. (a) If either (i) the introduction of or
any change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation or (ii) the compliance by any Lender with any guideline or request
from any central bank or other governmental authority (whether or not having the
force of law), shall result in any increase in the cost to any Lender of
agreeing to make, fund or maintain any LIBO Rate Advance or of agreeing to issue
or of issuing, maintaining or participating in Letters of Credit in any case to
or for the account of any Borrower, then such Borrower shall from time to time,
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upon demand (such demand to be made no later than 45 days subsequent to the date
of the increased cost) by such Lender (with a copy of such demand to the
Administrative Agent), accompanied by the certificate referred to in the
succeeding sentence, pay to such Lender additional amounts sufficient to
compensate for such increased cost; PROVIDED, HOWEVER, that each Lender agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost and would not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender (PROVIDED that such Lender shall have
no obligation to so designate an Applicable Lending Office located in the United
States of America). A certificate as to the amount of such increased cost,
together with reasonable detail as to the calculation of such increased cost,
submitted to such Borrower by such Lender, shall, in the absence of manifest
error, be conclusive and binding for all purposes.
(b) If either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) compliance by any Lender with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by any Lender or any corporation
controlling such Lender and any Lender determines that the amount of such
capital, is increased by or based upon the existence of such Lender's commitment
to lend or participate in Letters of Credit or, in the case of the Issuing Bank,
to issue Letters of Credit hereunder and other commitments of this type, in any
case to or for the account of any Borrower, then, upon demand (such demand to be
made no later than 45 days subsequent to the date on which such Lender is
notified of such increase in capital or determines that such increase in capital
has occurred) by such Lender, accompanied by the certificate referred to in the
succeeding sentence, such Borrower shall promptly pay to such Lender, from time
to time as specified by such Lender, additional amounts sufficient to compensate
such Lender in the light of such circumstances, to the extent that any Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend or to the issuance or maintenance of, or
participation in, any Letters of Credit hereunder; PROVIDED, HOWEVER, that each
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such a designation would avoid the need for, or reduce
the amount of, such increased cost and would not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender (PROVIDED that such Lender
shall have no obligation to so designate an Applicable Lending Office located in
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the United States of America). A certificate as to such amounts, together with
reasonable detail as to the calculation of such increased cost, submitted to
such Borrower by such Lender in good faith, shall, in the absence of manifest
error, be conclusive and binding for all purposes.
(c) If, with respect to any LIBO Rate Advances, the Required Lenders
notify the Administrative Agent that the LIBO Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Lenders of making,
funding or maintaining their LIBO Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the affected Borrower and the
Lenders, whereupon
(i) if U.S. dollars are the affected currency, each such LIBO
Rate Advance denominated in U.S. dollars will automatically, on the
last day of the then-existing Interest Period therefor, Convert into a
Base Rate Advance; and
(ii) the obligation of the Lenders to make such LIBO Rate
Advances in the affected currency shall be suspended,
in each case, until the Administrative Agent shall notify the affected Borrowers
that such Lenders have determined that the circumstances causing such suspension
no longer exist; PROVIDED, HOWEVER, that with respect to LIBO Rate Advances,
each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different LIBOR
Lending Office if the making of such a designation would avoid the need to
suspend such Lender's obligations to make LIBO Rate Advances to the Borrowers
hereunder and would not, in the sole judgment of such Lender, be otherwise
disadvantageous to such Lender (provided that such Lender shall have no
obligation to so designate an Applicable Lending Office located in the United
States of America).
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its LIBOR Lending
Office to perform its obligations hereunder to make LIBO Rate Advances or to
purchase participations in such Advances or to continue to fund or maintain LIBO
Rate Advances, or participations therein, as the case may be, hereunder, then,
on notice thereof and demand therefor by such Lender to the Borrowers through
the Administrative Agent, (i) the obligation of such Lenders to make LIBO Rate
Advances, or participate therein, as the case may be, shall be suspended, and
(ii) each LIBO Rate Advance denominated in U.S. dollars will automatically, upon
such demand Convert into a Base Rate Advance, until the Administrative Agent
shall notify the affected Borrowers that such Lender has determined that the
circumstances causing such suspension no longer exist; PROVIDED, HOWEVER, that
with respect to LIBO Rate Advances, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different LIBOR Lending Office if the making of such a designation
would avoid the need to suspend such Lender's obligations to make LIBO Rate
Advances to the Borrowers hereunder and would not, in the sole judgment of such
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Lender, be otherwise disadvantageous to such Lender (provided that such Lender
shall have no obligation to so designate an Applicable Lending Office located in
the United States of America).
SECTION 2.09 PAYMENTS AND COMPUTATIONS. (a) Each Borrower shall make
each payment hereunder and under the Notes free and clear of any setoff or
counterclaim not later than 11:00 A.M. (New York City time) on the day when due,
in U.S. dollars, to the Administrative Agent in same-day funds by deposit of
such funds to the Administrative Agent's Account. The Administrative Agent will
promptly thereafter (and in any event, if received from a Borrower by the time
specified in the preceding sentence, on the day of receipt) cause like funds to
be distributed
(i) if such payment by a Borrower is in respect of principal,
interest, fees or any other Obligation then payable hereunder in a
particular currency and under the Notes to more than one Lender, to
such Lenders for the account of their respective Applicable Lending
Offices for payments in such currency ratably in accordance with the
amounts of such respective Obligations in such currency then payable to
such Lenders., and
(ii) if such payment by a Borrower is in respect of any
Obligation then payable hereunder to one Lender, to such Lender for the
account of its Applicable Lending Office for payments in the applicable
currency.
Upon its acceptance of an executed Assignment and Acceptance, from and after the
effective date of such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
Each Borrower hereby authorizes each Lender, if and to the extent payment of any
amount is not made when due under any Loan Document, to charge from time to time
against any account of such Borrower with such Lender any amount so due.
(b) All computations of interest, fees and Letter of Credit Commissions
shall be made by the Administrative Agent on the basis of a year of 360 days, in
each case, for the actual number of days (including the first day but excluding
the last day) elapsed in the period for which such interest, fees or commissions
are payable. Payments received by the Administrative Agent shall be promptly
distributed to each Lender on a pro rata basis to the extent such Lender is
entitled to share in such payment, subject to Section 2.14 hereof.
(c) Unless the Administrative Agent shall have received notice from any
Borrower prior to the date on which any payment is due to any Lender hereunder
that such Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each such Lender on such due
date an amount equal to the amount then due to such Lender. If and to the extent
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such Borrower shall not have so made such payment in full to the Administrative
Agent and the Administrative Agent makes available to a Lender on such date a
corresponding amount, such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.10 PAYMENT ON NON-BUSINESS DAYS. Whenever any payment to be
made hereunder or under any Note shall be stated to be due, or whenever the last
day of the Interest Period would otherwise occur, on a day that is not a
Business Day, such payment may be made, and the last day of such Interest Period
shall occur, on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest,
commitment fee or other fee, as the case may be; PROVIDED, HOWEVER, that, if
such extension would cause payment of interest on or principal of LIBO Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
SECTION 2.11 USE OF PROCEEDS. The proceeds of the initial Revolving
Loans made hereunder shall be used (i) to refinance and replace the Existing
Facility, and (ii) to redeem, repurchase, repay or call all or a portion of the
outstanding aggregate principal amount of the Fresh N.V. Notes, plus accrued
interest thereon and premiums payable in respect thereof. The proceeds of the
Term Loan, all other Advances and the Letters of Credit issued hereunder shall
be used for general corporate purposes of the Borrowers.
SECTION 2.12 TAXES. (a) Any and all payments by the Borrowers hereunder
or under the Notes or under any other Loan Document to which it is a party shall
be made, in accordance with Section 2.09, free and clear of, and without
deduction for, any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, EXCLUDING (i)
in the case of each Lender, the Administrative Agent and the Collateral Agent,
taxes that are imposed on such Lender, the Administrative Agent or the
Collateral Agent by the United States and by the state or foreign jurisdiction
under the laws of which such Lender or the Administrative Agent (as the case may
be) is organized or any political subdivision thereof and franchise taxes and
net income taxes that would not have been imposed but for the fact that such
Lender, the Administrative Agent or the Collateral Agent had engaged in business
or was present or had such contact in the state or other jurisdiction imposing
such taxes that was unrelated to the transactions contemplated by this Agreement
and, (ii) in the case of each Lender, franchise taxes and net income taxes that
are imposed on such Lender by the state or foreign jurisdiction of such Lender's
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Applicable Lending Office or any political subdivision thereof (all taxes,
levies, imposts, deductions, charges, withholdings and liabilities other than
those excluded as provided in clauses (i) and (ii) above or pursuant to other
terms hereof being hereinafter referred to as "PAYMENT TAXES"). If the Borrowers
shall be required by law to deduct any Taxes as such term is defined in
subsection (b) below, from or in respect of any sum payable hereunder or under
any Note to any Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrowers shall make such deductions and (iii) the Borrowers shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
(b) In addition, the Borrowers shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Notes, the Security Documents and the other documents to be delivered thereunder
(hereinafter referred to as "OTHER TAXES", and, together with the Payment Taxes,
as the "TAXES").
(c) The Borrowers shall indemnify each Lender and the Administrative
Agent for the full amount of Taxes, and for the full amount of Taxes imposed by
any jurisdiction on amounts payable under this Section 2.12, imposed on or paid
by such Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or any Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the later of (i) the date of any payment of
Taxes and (ii) a request from the Administrative Agent, the Borrowers shall
furnish to the Administrative Agent, at its address referred to in Section 8.02,
a certified copy of the receipt of payment thereof. In the case of any payment
hereunder or under the Notes by or on behalf of any Borrower organized under the
laws of the United States through an account or branch outside the United States
or on behalf of any such Borrower by a payor that is not a United States person,
if any such Borrower determines that no Taxes are payable in respect thereof, if
requested by the Administrative Agent, such Borrower shall furnish, or shall
cause such payor to furnish, to the Administrative Agent, at such address, a
certificate acceptable to the Administrative Agent, or if deemed necessary by
the Administrative Agent, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(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 or Initial Issuing Bank, as
the case may be, and on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Lender, and from time to
time thereafter as requested in writing by any Borrower (but only so long
thereafter as such Lender remains lawfully able to do so), provide each of the
Administrative Agent and such Borrower with two original Internal Revenue
Service forms 1001 or 4224 or (in the case of a Lender that has certified in
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writing to the Administrative Agent that it is not a "bank" as defined in
Section 881 (c)(3)(A) of the Internal Revenue Code) form W-8 (and, if such
Lender delivers a form W-8, a certificate representing that such Lender is not a
"bank" for purposes of Section 881(c) of the Internal Revenue Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of such Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes or, in the case of a Lender
providing a form W-8, certifying that such Lender is a foreign corporation,
partnership, estate or trust. If the forms provided by a Lender at the time such
Lender first becomes a party to this Agreement indicates a United States
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, HOWEVER, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender 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, then this sentence shall apply to the Lender assignee only to the extent
the Lender assignee is subject to withholding at a rate in excess of that
applicable to the Lender assignor 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 1001, 4224 or W-8 (or the related
certificate described above), that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Borrowers and shall
not be obligated to include in such form or document such confidential
information.
(f) Each Lender shall comply (but only if in the judgment of such
Lender it remains lawfully able to do so) with any certification,
identification, information or documentation reporting requirement if (i) such
compliance is clearly required by law, regulation, administrative practice or an
applicable treaty as a precondition to exemption from, or reduction in the rate
of, deduction or withholding of any Taxes for which any Borrower is required to
pay additional amounts under this Section 2.12 and (ii) at least 90 days prior
to the first payment date with respect to which any Borrower shall apply this
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subsection (f), such Borrower shall have notified each Lender in writing that
such Lender will be required to comply with such requirement, PROVIDED, HOWEVER,
that this subsection (f) shall not apply in respect of any certification,
identification, information, or documentation reporting requirement if such
requirement (a) would be materially more onerous, in form, in procedure or with
respect to the substance of information disclosed, to such Lender than
comparable certification, identification, information, or documentation
reporting requirements imposed under U.S. tax law Lender makes such change.
(g) For any period with respect to which a Lender has failed to provide
the Borrowers with the appropriate form described in subsection (e) or (f) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) or (f) above), such Lender shall not be
entitled to indemnification under subsection (a) or (c) with respect to Taxes
imposed by reason of such failure; PROVIDED, HOWEVER, that should a Lender
become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
SECTION 2.13 SHARING OF PAYMENTS,ETC. If any Lender shall obtain at any
time any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) (a) on account of Obligations due and payable to
such Lender hereunder at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations due and payable to such
Lender at such time to (ii) the aggregate amount of the Obligations due and
payable to all Lenders hereunder and under the Notes at such time) of payments
on account of the Obligations due and payable to all Lenders hereunder and under
the Notes at such time obtained by all the Lenders at such time or (b) on
account of Obligations owing (but not due and payable) to such Lender hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender at
such time to (ii) the aggregate amount of the Obligations owing (but not due and
payable) to all Lenders hereunder at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lenders hereunder and under
the Notes at such time obtained by all of the Lenders at such time, such Lender
shall forthwith purchase from the other Lenders such participations in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase front
each other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price to the extent of such Lender's ratable
share (according to the proportion of (i) the purchase price paid to such Lender
to (ii) the aggregate purchase price paid to all Lenders) of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such other Lender's required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
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25
amount so recovered. Each Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.14 DEFAULTING LENDERS. (a) In the event that, at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to any Borrower and (iii) any Borrower shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then such Borrower may, so long as no
Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set off and otherwise apply the obligation of such
Borrower to make such payment to or for the account of such Defaulting Lender
against the obligation of such Defaulting Lender to make such Defaulted Advance.
In the event that, on any date, such Borrower shall so set off and otherwise
apply its obligation to make any such payment against the obligation of such
Defaulting Lender to make any such Defaulted Advance on or prior to such date,
the amount so set off and otherwise applied by such Borrower shall constitute
for all purposes of this Agreement and the other Loan Documents an Advance by
such Defaulting Lender made on the date pursuant to which such set off shall
have been made pursuant to this Section 2.14(a). Such Advance shall be a Base
Rate Advance and shall be considered, for all purposes of this Agreement, to
comprise part of the Borrowing in connection with which such Defaulted Advance
was originally required to have been made pursuant to Section 2.01, even if the
other Advances comprising such Borrowing shall be LIBO Rate Advances on the date
such Advance is deemed to be made pursuant to this subsection (a). Each Borrower
shall notify the Administrative Agent at any time such Borrower exercises its
right of set-off pursuant to this subsection (a) and shall set forth in such
notice (A) the name of the Defaulting Lender and the Defaulted Advance required
to be made by such Defaulting Lender and (B) the amount set off and otherwise
applied in respect of such Defaulted Advance pursuant to this subsection (a).
Any portion of such payment otherwise required to be made by any Borrower to or
for the account of such Defaulting Lender which is paid by such Borrower, after
giving effect to the amount set off and otherwise applied by such Borrower
pursuant to this subsection (a), shall be applied by the Administrative Agent as
specified in subsection (b) or (c) of this Section 2.14.
(b) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent or any of the other Lenders and (iii) any Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lenders and
to the fullest extent permitted by applicable law, apply at such time the amount
so paid by such Borrower to or for the account of such Defaulting Lender to the
payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount; PROVIDED that, for the avoidance of doubt, notwithstanding
such application, such payment by such Borrower shall constitute payment of
Obligations owing to the Defaulting Lender. In the event that the Administrative
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26
Agent shall so apply any such amount to the payment of any such Defaulted Amount
on any date, the amount so applied by the Administrative Agent shall constitute
for all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lenders, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lenders and, if the amount
of such payment made by the Borrower shall at such time be insufficient to pay
all Defaulted Amounts owing at such time to the Administrative Agent and the
other Lenders, in the following order of priority:
(i) FIRST, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) SECOND, to any other Lenders for any Defaulted Amounts
then owing to such other Lenders, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lenders.
Any portion of such amount paid by any Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.14.
(c) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) any Borrower, the Administrative Agent or any
other Lender shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then the Borrower or such other Lender shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an account
with Rabobank, in the name and under the control of the Administrative Agent,
but subject to the provisions of this subsection (c). The terms applicable to
such account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be Rabobank's standard terms
applicable to escrow accounts maintained with it. Any interest credited to such
account from time to time shall be held by the Administrative Agent in escrow
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under, and applied by the Administrative Agent from time to time in accordance
with the provisions of, this subsection (c). The Administrative Agent shall, to
the fullest extent permitted by applicable law, apply all funds so held in
escrow from time to time to the extent necessary to make any Advances required
to be made by such Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender, as and when such Advances or amounts
are required to be made or paid and, if the amount so held in escrow shall at
any time be insufficient to make and pay all such Advances and amounts required
to be made or paid at such time, in the following order of priority:
(i) FIRST, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) SECOND, to any other Lenders for any amount then due and
payable by such Defaulting Lender to such other Lenders hereunder,
ratably in accordance with such respective amounts then due and payable
to such other Lenders; and
(iii) THIRD, to any Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender that is a Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Administrative Agent in
escrow at such time with respect to such Lender shall be distributed by the
Administrative Agent to such Lender and applied by such Lender to the
Obligations owing to such Lender at such time under this Agreement and the other
Loan Documents ratably in accordance with the respective amounts of such
Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.14 are in addition to other rights and remedies that the Borrowers may
have against such Defaulting Lender with respect to any Defaulted Advance and
that the Administrative Agent or any Lender may have against such Defaulting
Lender with respect to any Defaulted Amount.
SECTION 2.15 REPLACEMENT OF LENDER IN EVENT OF ADVERSE CONDITION. If
any Borrower becomes obligated to pay additional amounts to any Lender pursuant
to Section 2.08 or Section 2.12 or to Convert the LIBO Rate Advances into Base
Rate Advances pursuant to Section 2.08 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, (i) 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 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 Term Loan Commitment under the Loan Documents or (ii) prepay in whole the
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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 8.04(c), 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), the Revolving
Commitment shall be reduced in the amount of such Lender's Pro Rata share of the
Revolving Commitment, and the Term Loan shall be repaid in the amount of all
Advances of the 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.
SECTION 2.16 APPLICATION OF PAYMENTS. Subsequent to the acceleration of
the Obligations under Section 6.01 hereof, payments and prepayments with respect
to the Obligations made to any Agent, the Lenders, the Issuing Bank, the Swing
Line Bank or otherwise received by any 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 6.02) 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 any 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 Agents 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 or any other Loan Document; SIXTH, to the payment of interest then due
and payable on the Revolving Loans and the Term Loan, on a pro rata basis;
SEVENTH, to the payment of principal of the Revolving Loans, principal of the
Term Loan, and any obligation under any Hedge Agreement and any Foreign Exchange
Contract between any Loan Party, on the one hand, and any Hedge Bank or Foreign
Exchange Bank, respectively, on the other hand, all 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."
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SECTION 3. AMENDMENT TO SECTION 5.02. Section 5.02 of the Credit
Agreement, NEGATIVE COVENANTS, is hereby amended by deleting paragraph (f)
thereof in its entirety and replacing such paragraph (f) with the following:
"(f) INVESTMENTS. It will not, nor will it permit any of its
Subsidiaries to, make or hold any Investment in any Person other than
(i) Investments in Cash Equivalents and in Hedge
Agreements;
(ii) loans and advances to, and guaranties issued on
behalf of, officers and employees (A) in the ordinary
course of business as presently conducted in an
aggregate principal amount not to exceed
U.S.$1,000,000 (or the foreign currency equivalent
thereof) at any time outstanding and (B) in respect
of the provision of employee housing in the ordinary
course of business as presently conducted and
consistent with past practices;
(iii) Investments existing on the date hereof and described
on Schedules 4.01(aa) and 4.01 (b) hereto;
(iv) Investments in Subsidiaries which are not
wholly-owned to the extent that the portion of any
such Investment proportional to the percentage of the
Subsidiary owned by other than Fresh Produce and its
Subsidiaries is included in the calculation of
Capital Expenditures for purposes of Section 5.02(o);
(v) Acquisition-related Investments in any Person which
conducts a business similar to the business conducted
by it or such Subsidiary on the date hereof; PROVIDED
that the aggregate amount invested pursuant to this
clause (v) (other than the amount invested in
connection with the BMB Acquisition) shall not exceed
in the aggregate U.S.$75,000,000 in any calendar
year;
(vi) 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;
(vii) Intentionally Omitted;
(viii) Investments in Loan Parties;
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(ix) 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
(ix) shall not exceed an amount equal to the lesser
of (A) the amount equal to 10% of Tangible Net Worth
at such time and (B) the amount equal to 10% of the
total tangible and intangible assets of Fresh Produce
and its Subsidiaries at such time; and
(x) loans and advances to Subsidiaries of Fresh Produce
to the extent permitted by, and in accordance with,
Section 5.02(b)(ii)."
SECTION 4. AMENDMENT TO SECTION 5.04. Section 5.04 of the Credit
Agreement, FINANCIAL COVENANTS, is hereby amended by deleting paragraph (d)
thereof in its entirety and replacing such paragraph (d) with the following:
"(d) MINIMUM FIXED CHARGES COVERAGE RATIO. Fresh Produce and
its Subsidiaries on a Consolidated basis shall maintain as of the end
of each fiscal quarter of Fresh Produce a Fixed Charges Coverage Ratio
for such fiscal quarter and the three immediately preceding completed
fiscal quarters of Fresh Produce, of not less than the ratio set forth
below for such quarter:
-------------------------------------- ---------------------
QUARTER ENDING MINIMUM RATIO
-------------------------------------- ---------------------
March 2000, June 2000, September 1.15 to 1.00
2000, December 2000, March 2001,
June 2001, September 2001
-------------------------------------- ---------------------
December 2001, March 2002, June 1.20 to 1.00
2002, September 2002
-------------------------------------- ---------------------
December 2002, March 2003 and 1.25 to 1.00
thereafter
-------------------------------------- ---------------------
SECTION 5. AMENDMENT TO SECTION 8.01. Section 8.01 of the Credit
Agreement, AMENDMENTS, ETC., is hereby amended by deleting such section in its
entirety and replacing such section with the following:
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"SECTION 8.01 AMENDMENT, ETC. No amendment or waiver of any provision
of this Agreement, the Notes or any other Loan Document, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by 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) (i) 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 2.02, (2) change the
percentage of the Commitments, 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 8.01, (4) increase the aggregate amount of the
Commitments or the Total Revolving Commitment, (5) alter any provision
for the distribution of proceeds of foreclosing on any Collateral, (6)
release any Collateral other than in accordance with the terms of the
Security Documents or any Loan Party Guaranty or in connection with the
release of the pledge of the capital stock of Fresh N.V. and the share
capital of FDM Holdings in accordance with Section 5.01 (e) or (7)
permit any Letter of Credit to have an expiration date (including all
rights of a Borrower or beneficiary to require renewal) later than 90
days after the Revolving Termination Date;
(ii) no amendment, waiver or consent shall, unless in
writing and signed by all of the Revolving Lenders and, in the
case of an amendment, all Borrowers, do any of the following
at any time: (1) change the aggregate unpaid principal amount
of the Revolving Loan Notes, (2) reduce or forgive the
principal of, or interest on, the Revolving Loan Notes or any
fees or other amounts payable thereunder or under the
Revolving Commitment, or (3) postpone any date fixed for any
payment of principal of, or interest on, the Revolving Loan
Notes or any fees or other amounts payable thereunder or amend
Section 2.07(a);
(iii) no amendment, waiver or consent shall, unless
in writing and signed by all of the Term Lenders and, in the
case of an amendment, all Borrowers, do any of the following
at any time: (1) change the aggregate unpaid principal amount
of the Term Loan Notes, (2) reduce or forgive the principal
of, or interest on, the Term Loan Notes or any fees or other
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amounts payable thereunder or under the Term Commitment, or
(3) postpone any date fixed for any payment of principal of,
or interest on, the Term Loan Notes or any fees or other
amounts payable thereunder or amend Section 2.07(b);
(b) 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 or the Collateral Agent, as the
case may be, in addition to the Lenders and the Borrowers required
above to take such action, affect the rights or duties of such Agent
under this Agreement or any Note; and
(c) each Lender grants (x) to each 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 such 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 8.07.
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 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 8.01) 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 8.01; PROVIDED that any action taken by the other Lenders
with respect to the matters referred to in clause (a) or of this Section 8.01
shall not be effective as against such Lender."
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SECTION 6. AMENDMENT OF EXHIBITS AND SCHEDULES. Each of EXHIBIT A: FORM
OF NOTE, EXHIBIT B: FORM OF NOTICE OF BORROWING, and EXHIBIT F: FORM OF
ASSIGNMENT AND ACCEPTANCE, to the Credit Agreement is hereby deleted in its
entirety and replaced with Exhibit A-1: Form of Revolving Loan Note, Exhibit
A-2: Form of Term Loan Note, Exhibit B: Form of Notice of Borrowing/Conversion,
and Exhibit F: Form of Assignment and Acceptance, respectively, hereto. Schedule
I to the Credit Agreement, COMMITMENTS AND LENDING OFFICES, is hereby deleted in
its entirety and replaced with Schedule I attached hereto.
SECTION 7. REPRESENTATIONS AND WARRANTIES. Each of Fresh Produce and
the other Borrowers represents and warrants as follows:
(a) The execution, delivery and performance by each Loan Party of this
Amendment, the Term Loan Notes, the Replacement Revolving Notes, and each other
Loan Document contemplated hereby to which it is or is to be a party 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 by-laws; (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, the Term Loan Notes, the
Replacement Revolving Notes, 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 has been, and each of the Term Notes, Replacement
Revolving Notes and each other Loan Document when delivered hereunder or
pursuant hereto will have been, duly executed and delivered by each Loan Party
thereto. This Amendment is, and each of the Term Notes, Replacement Revolving
Notes, and each other Loan Document when delivered hereunder will be, the legal,
valid and binding obligation of each Loan Party thereto, enforceable against
such Loan Party in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally.
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(d) The audited Consolidated balance sheet of Fresh Produce and its
Subsidiaries as at December 31, 1999 and the related audited Consolidated
statements of income and cash flows of Fresh Produce and its Subsidiaries for
the fiscal year then ended, copies of which have been furnished to the
Administrative 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 periods ended on
such date, all in accordance with GAAP applied on a consistent basis, and since
December 31,1999, there has been no Material Adverse Change.
(e) The three-year projected Consolidated balance sheets and income
statements of Fresh Produce and its Subsidiaries delivered to the Administrative
Agent for the period commencing January 1, 2000 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 best
estimate of its future financial performance.
(f) No application of the proceeds of the Term Loan will violate
Regulation U.
(g) The Security Documents create a valid and perfected first priority
security interest in the Collateral, subject to Permitted Liens, securing the
payment of the Secured Obligations (as therein defined). The Loan Parties are
the legal and beneficial owners of the Collateral free and clear of any Lien,
except for Permitted Liens and any other liens and security interests created or
permitted under the Loan Documents.
(h) Borrowers are, and will be after giving effect to the transactions
contemplated hereby, on a consolidated basis together with their Subsidiaries,
Solvent.
(i) The representations and warranties contained in Article IV of the
Credit Agreement, and in each of the Security Documents, are correct in all
material respects on and as of the Term Loan Advance Date 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.
(j) No event has occurred and is continuing, or would result from the
Advance of the Term Loan, which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
SECTION 8. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall be effective on the date on which the following conditions
precedent have been satisfied in a manner satisfactory to the Lenders, in their
sole discretion:
(a) The Lenders shall be satisfied that there shall have been no
material change since December 31, 1999 with respect to, (x) the corporate and
legal structure and capitalization of each Loan Party and its Subsidiaries,
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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) The information provided by or on behalf of any Loan Party and its
Subsidiaries to the Lenders prior to their committing to lend hereunder shall be
true and correct in all material respects.
(c) 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 Term Loan
Note, any Replacement Revolving Note, the Credit Agreement (as amended hereby)
or the consummation of the transactions contemplated hereby.
(d) All Material Contracts shall be in full force and effect.
(e) 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.
(f) In the 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.
(g) No event shall have occurred and be continuing, or shall result
from the Advance of the Term Loan on the Term Loan Advance Date, which would
constitute a Default or an Event of Default.
(h) The Administrative Agent shall have received, in form and substance
satisfactory to the Lenders (unless otherwise specified):
(i) This Amendment, duly executed by the parties hereto.
(ii) A Ratification Agreement duly executed by each Loan
Party.
(iii) Term Loan Notes payable to the order of the Term
Lenders, respectively, and replacement Revolving Loan
Notes (the "Replacement Revolving Notes") in the
amount of the Revolving Loan Commitment of each
Revolving Lender as set forth on Schedule I hereto.
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(iv) An Assumption Agreement, duly executed by each Term
Lender and each Revolving Lender that was not
previously a "Lender" under the Credit Agreement,
agreeing to comply with all obligations of a "Lender"
under the Credit Agreement.
(v) Certified copies of the resolutions of the Board of
Directors of each Borrower and each other Loan Party
approving this Amendment, the Term Loan Notes, the
Replacement Revolving Notes, and 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 Term Loan Notes, the Replacement Revolving Notes,
and each other Loan Document.
(vi) A copy of the charter or memorandum and articles of
association, as the case may be, of each Borrower and
each other Loan Party and each amendment thereto,
certified (as of a date reasonably near the date
hereof) by an appropriate governmental official as
being a true and correct copy thereof.
(vii) A copy of a certificate of the Secretary of State of
the state of organization of each Borrower and each
other Loan Party (or the equivalent, if any, of such
certificate in any foreign jurisdiction in which such
Borrower or Loan Party is organized), dated
reasonably near the date hereof, listing the charter
of such Borrower or Loan Party 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 is duly
incorporated and in good standing or presently
subsisting under the laws of the jurisdiction of its
organization.
(viii) A certificate of each Borrower and each other Loan
Party, 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 Term Loan Advance Date (the statements made in
which certificate shall be true on and as of the Term
Loan Advance 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
8(h)(vii); (B) a true and correct copy of the bylaws
of such Person as in effect on the hereof; and (C)
the due incorporation and good standing (or the
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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.
(ix) A certificate of the Secretary or an Assistant
Secretary or other appropriate officer of each
Borrower and each other Loan Party certifying the
names and true signatures of the directors and
officers of such Person authorized to sign this
Amendment, the Term Loan Notes, the Replacement
Revolving Notes, and each other Loan Documents to
which it is or is to be a party and the other
documents to be delivered hereunder and thereunder.
(x) Evidence that the Security Agreements are in full
force and effect and will continue to secure all
Advances under the Total Term Loan Commitment and the
Total Revolving Commitment; (B) evidence of the
insurance required by the terms of the Security
Agreements or under the Credit Agreement; and (C)
evidence that all other action that the Collateral
Agent may deem necessary or desirable in order to
perfect and protect the Liens created by the Security
Agreements has been taken and is in full force and
effect.
(xi) Such financial, business and other information
regarding each Borrower as the Lenders shall have
reasonably requested, including, without limitation,
audited annual Consolidated financial statements for
the fiscal year ending 1999, of Fresh Produce and its
Subsidiaries, the budget for the fiscal year
commencing January 1, 2000 as to Fresh Produce and
its Subsidiaries and the projected balance sheet,
income statement and cash flow as to Fresh Produce
and its Subsidiaries for three years commencing on
January 1, 2000, in each case in form and substance
satisfactory to the Lenders.
(xii) (A) A favorable opinion of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, counsel to the Borrowers and the Loan
Parties, and (B) a favorable opinion of the general
counsel for the Borrowers and the other Loan Parties.
(xiii) A favorable opinion of (A) Xxxxxxx Xxxx & Xxxxxxx,
Bermudan counsel to the Lenders, (B) Xxxxxx Xxxx &
Co., British Virgin Islands counsel to the Borrowers,
(C) Xxxxx & Xxxxx, Costa Rican counsel to the
Lenders, (D) Isola & Isola, Gibraltar counsel to the
Borrowers, (E) Xxxxxxx-Xxxx, Guatemalan counsel to
the Borrowers, (F) Xxxxxxxxx Xxxxxx Xxx & Xxxx, Xxxx
Xxxx counsel to the Borrowers, (G) Xxxxxxx Xxxxx,
United Kingdom counsel to the Borrowers, (H) Henries
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Law Firm, Liberian counsel to the Lenders, (I) Xxxxxx
& Partners, Netherlands counsel to the Borrowers, (J)
Smeets Thesseling van Bokhorst, Netherlands Antilles
counsel to the Borrowers, (K) Aoki, Xxxxxxxxxxx &
Nomoto, Japanese counsel to the Borrowers, (L) Ibanez
& Xxxxxxxxx, Chilean counsel to the Borrowers and (M)
Walkers, Attorneys-At-Law, Cayman Islands counsel to
the Borrowers.
(i) The Borrowers shall have paid all accrued fees and expenses of the
Agents and the Lenders as required to be paid under the terms of the fee letter
executed by the Borrowers and the Administrative Agent.
SECTION 9. CONDITIONS SUBSEQUENT TO EFFECTIVENESS OF THIS AMENDMENT.
Within fourteen (14) days after the effective date of the Amendment, the
Borrowers shall deliver to the Administrative Agent evidence that the Borrowers
have made all filings and registrations (a) with the Companies House as may be
necessary or desirable to ensure that any Security Documents in connection with
Collateral located in the United Kingdom shall remain in full force and effect
and shall continue to secure the Obligations (as increased hereby), and (b) with
any applicable governmental authorities in the British Virgin Islands as may be
necessary or desirable to ensure that any Security Documents in connection with
Collateral located in the British Virgin Islands shall remain in full force and
effect and shall continue to secure the Obligations (as increased hereby).
SECTION 10. ASSUMPTION OF COMMITMENTS. Each Lender hereby acknowledges
that, from and after the effective date of this Amendment, such Lender shall be
a Lender under the Credit Agreement with a Revolving Commitment and/or Term Loan
Commitment in the respective amounts set forth opposite such Lender's name on
Schedule I hereto, and each Lender hereby authorizes and instructs the
Administrative Agent to reallocate the Commitments among the Lenders so that on
and as of the effective date of this Amendment, each Lender will have Revolving
Commitment and/or Term Loan Commitment in the amount set forth opposite such
Lender's name on Schedule I hereto.
SECTION 11. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Amendment as set forth in Section 8
hereof, on and after the date hereof, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of like import shall
mean and be a reference to the Credit Agreement as amended hereby, and each
reference in the Notes and the other Loan Documents to the Credit Agreement
shall mean and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and the
Notes shall remain in full force and effect and are hereby ratified and
confirmed in all respects.
(c) The execution, delivery and effectiveness of this Amendment shall
not except as expressly provided herein, operate as a waiver of any right, power
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or remedy of the Lenders under the Credit Agreement, nor constitute a waiver of
any provision of the Credit Agreement.
SECTION 12. 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 and with respect to advising
the Administrative Agent as to its rights and responsibilities hereunder and
thereunder), which costs and expenses (other than fees and expenses of counsel
for the Administrative Agent) shall not exceed $5,000. In addition, the
Borrowers agree, jointly and severally, to pay any and all stamp and other taxes
payable or determined to be payable in connection with the execution and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, and 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 13. 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 shall be as effective as delivery of a manually
executed counterpart hereof.
SECTION 14. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws (without giving effect to the conflicts
of laws principles thereof) of the State of New York.
SECTION 15. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duty authorized, as of the date
first above written.
BORROWERS: DEL MONTE FRESH PRODUCE (UK) LTD., as Borrower
By: /s/ XXXX X. XXXXXXX
---------------------------------------------
Title: Director
DEL MONTE FRESH PRODUCE, NA. INC., as Borrower
By: /s/ XXXX X. XXXXXXX
---------------------------------------------
Title: Executive Vice President and Chief
Financial Officer
WAFER LIMITED, as Borrower
By: /s/ XXXX X. XXXXXXX
---------------------------------------------
Title: Director
DEL MONTE FRESH PRODUCE INTERNATIONAL INC.,
as Borrower
By: /s/ XXXX X. XXXXXXX
---------------------------------------------
Title: Director
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FRESH DEL MONTE PRODUCE INC., as Borrower
GLOBAL REEFER CARRIERS, LTD., as Borrower
By: /s/ XXXX X. XXXXXXX
-------------------------------------------
Title: Executive Vice President and Chief
Financial Officer
ADMINISTRATIVE AGENT: COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,
"Rabobank", New York Branch, as
Administrative Agent, Collateral
Agent and Lender
By: XXXXX X. XXXXX
----------------------------------
Title: Executive Director
By: XXX XXXXX
----------------------------------
Title: Sr. Credit Officer
LENDERS:
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