EXHIBIT 4.16
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
Effective as of June 24, 2004
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT") among FRESH DEL MONTE PRODUCE INC., a Cayman Island company ("FRESH
PRODUCE"), DEL MONTE FRESH PRODUCE N.A., INC., a Florida corporation ("FRESH
N.A."), DEL MONTE FRESH PRODUCE INTERNATIONAL, INC., a Liberian corporation
("FRESH INTERNATIONAL") and FRESH DEL MONTE SHIP HOLDINGS LTD., a Cayman Island
company ("SHIP HOLDINGS") (Fresh Produce, Fresh N.A., Fresh International, and
Ship Holdings are referred to herein collectively as the "BORROWERS" and each
individually as a "BORROWER"); the entities identified as "Guarantors" on the
signature pages hereof (each a "GUARANTOR" and collectively the "GUARANTORS");
the banks and other lending institutions listed on the signature pages hereof as
Lenders (the "LENDERS"); and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH ("RABOBANK"), as administrative
agent for the Lenders (the "ADMINISTRATIVE AGENT").
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Administrative Agent, and the Lenders are
parties to that certain Amended and Restated Credit Agreement dated as of March
21, 2003, as amended by that certain First Amendment to Amended and Restated
Credit Agreement dated as of January 27, 2004 (as amended, restated, modified or
supplemented from time to time prior to the date hereof, the "CREDIT
AGREEMENT").
(2) The Borrowers have requested that certain terms and conditions of
the Credit Agreement be amended and the Administrative Agent and the Lenders
have agreed to the requested amendments, on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree that all capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Credit Agreement, and further agree
as follows:
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SECTION 1. AMENDMENTS.
1.1 AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT. Section
1.1 of the Credit Agreement, CERTAIN DEFINED TERMS, is hereby amended and
modified as follows:
(a) The definition of "Letter of Credit Commission" is hereby
amended and modified by deleting the final period of such definition and by
substituting the following in lieu thereof:
"; PROVIDED, HOWEVER, that the Letter of Credit Commission
with respect to the Rabobank Italy Letter of Credit shall be
(a) 0.75%, prior to and including the date that is the earlier
of (i) December 31, 2004 or (ii) the date on which the
purchase of assets contemplated by the Bank Guaranty is
consummated, and (b) the rate otherwise applicable pursuant to
this definition from and after the date determined pursuant to
the immediately preceding clause (a)."
(b) The definition of "Letter of Credit Sublimit" is hereby
amended and modified by deleting such definition in its entirety and by
substituting the following in lieu thereof:
""LETTER OF CREDIT SUBLIMIT" means (a) U.S.$400,000,000, prior
to and including the date that is the earlier of (i) December
31, 2004 or (ii) the date on which the purchase of assets
contemplated by the Bank Guaranty is consummated, (b)
U.S.$100,000,000, from and after the date determined pursuant
to the immediately preceding clause (a) until and including
the date on which the Rabobank Italy Letter of Credit expires
or is fully drawn, and (c) U.S.$25,000,000 thereafter."
(c) The following definitions are hereby inserted in Section
1.1 in correct alphabetical order:
""BANK GUARANTY" means that certain First Demand Irrevocable
Bank Guaranty dated as of June 24, 2004 issued by Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
International", Milan Branch."
""RABOBANK ITALY LETTER OF CREDIT" means that certain Letter
of Credit dated as of June 24, 2004 denominated in U.S.
Dollars issued by Issuing Bank for the benefit of Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
International", Milan Branch."
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1.2 AMENDMENT TO SECTION 2.1 OF THE CREDIT AGREEMENT. Section
2.1 of the Credit Agreement, EXTENSIONS OF Credit, is hereby amended and
modified by deleting the second sentence of subsection 2.1(c) in its entirety
and by substituting the following in lieu thereof:
"Each Letter of Credit shall have an expiry date which is 365
days or less immediately following the date of the issuance of
such Letter of Credit (other than the Rabobank Italy Letter of
Credit, which may have an expiry date on or before the
Maturity Date), but in no event shall any Letter of Credit
have an expiry date that occurs on a date later than the
Maturity Date; PROVIDED, HOWEVER, a Borrower may request
issuance or renewal of a Letter of Credit with an expiry date
after the Maturity Date if, at the time of such issuance or
renewal, such Borrower deposits into the L/C Cash Collateral
Account an amount in immediately available funds equal to the
face amount of such Letter of Credit. To the extent the
Rabobank Italy Letter of Credit is outstanding on the date
that is 30 days prior to the Maturity Date, Borrowers shall
deposit into the L/C Cash Collateral Account an amount in
immediately available funds equal to the face amount of the
Rabobank Italy Letter of Credit."
SECTION 2. COVENANT. Each Borrower hereby acknowledges and agrees that
the principal amount of the Rabobank Italy Letter of Credit (as defined herein)
issued under the Credit Agreement shall, at all times, equal or exceed the
equivalent amount (in U.S. Dollars) of the principal amount of that certain
First Demand Irrevocable Bank Guaranty (the "BANK GUARANTY") issued by an
Affiliate of the Administrative Agent for the benefit of Borrowers in support of
Borrowers' binding offer to purchase certain assets. In the event the face
amount available to be drawn under the Rabobank Italy Letter of Credit shall
ever be less than the equivalent amount in U.S. Dollars of the principal amount
of the Bank Guaranty, Issuing Bank hereunder is authorized, without any action
or consent on behalf of Borrowers, to amend the Rabobank Italy Letter of Credit
to so increase the principal amount thereof, not to exceed the Total Commitment,
to equal the principal amount of the Bank Guaranty. In the event the face amount
available to be drawn under the Rabobank Italy Letter of Credit shall exceed the
equivalent amount in U.S. Dollars of the principal amount of the Bank Guaranty
by 5% or more (a) as of the last day of each fiscal month for the period
commencing as of the effective date of this Amendment until and including
December 31, 2004 or (b) as of the last day of each fiscal quarter thereafter
until the Maturity Date, Issuing Bank may, at the request of Borrowers and in
the exercise of Issuing Bank's reasonable discretion, amend the Rabobank Italy
Letter of Credit to so decrease the principal amount thereof to equal the
principal amount of the Bank Guaranty.
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SECTION 3. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and
warrants as follows:
(a) The execution, delivery and performance by each Borrower
of this Amendment and the other transactions contemplated hereby, are within
such Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Borrower's charter or bylaws;
(ii) violate any law (including, without limitation, the Securities Exchange Act
of 1934, the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970 and any similar statute), rule, regulation
(including, without limitation, Regulation X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award; (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on or affecting any Borrower,
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
Borrower 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 Borrower of this Amendment and each other Loan
Document contemplated hereby to which it is or is to be a party, or for the
consummation of the transactions contemplated hereby.
(c) This Amendment and each other document required to be
delivered by a Borrower hereunder have been duly executed and delivered by each
Borrower thereto, and constitute the legal, valid and binding obligation of each
Borrower thereto, enforceable against such Borrower in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally.
(d) The representations and warranties contained in Article 4
of the Credit Agreement, and in each of the Loan Documents, are correct in all
material respects on and as of the date hereof as though made on and as of such
date, other than any such representations and warranties that, by their terms,
expressly refer to an earlier date.
(e) No event has occurred and is continuing that constitutes
an Event of Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall be effective as of the date first set forth above when the
Administrative Agent shall have received, in form and substance satisfactory to
it:
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(a) This Amendment, duly executed by the Borrowers, the
Guarantors, the Administrative Agent, the Issuing Bank and each of the Lenders;
and
(b) Such other documents, instruments, and information
executed and/or delivered by the Borrowers as the Administrative Agent may
reasonably request.
SECTION 5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Amendment as set forth in
Section 4 hereof, on and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import shall mean and be a reference to the Credit Agreement as amended hereby,
and each reference in the Notes and the other Loan Documents to the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended above, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement.
SECTION 6. COSTS, EXPENSES AND TAXES. The Borrowers agree, jointly and
severally, to pay on demand all costs and expenses of the Administrative Agent
in connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent with respect thereto). In addition, the Borrowers
agree, jointly and severally, to pay any and all stamp and other taxes payable
or determined to be payable in connection with the execution and delivery of
this Amendment and the other instruments and documents to be delivered
hereunder, and agree to save the Administrative Agent and the Lenders harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes.
SECTION 7. AFFIRMATION OF GUARANTY. By executing this Amendment, each
Guarantor hereby acknowledges, consents and agrees that all of its obligations
and liability under its Guaranty Agreement remain in full force and effect, and
that the execution and delivery of this Amendment and any and all documents
executed in connection therewith shall not alter, amend, reduce or modify its
obligations and liability under its Guaranty Agreement.
SECTION 8. 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
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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 9. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 10. FINAL AGREEMENT. This Amendment represents the final
agreement between the Borrowers, the Administrative Agent and the Lenders as to
the subject matter hereof and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties. The Amendment shall constitute a
Loan Document for all purposes.
[SIGNATURE PAGES TO FOLLOW]
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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: FRESH DEL MONTE PRODUCE INC.
By:
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Title:
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DEL MONTE FRESH PRODUCE N.A., INC.
By:
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Title:
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DEL MONTE FRESH PRODUCE INTERNATIONAL, INC.
By:
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Title:
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FRESH DEL MONTE SHIP HOLDINGS LTD.
By:
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Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-1
GUARANTORS: DEL MONTE FRESH PRODUCE COMPANY
By:
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Title:
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DEL MONTE FRESH PRODUCE
(SOUTHWEST), INC.
By:
---------------------------------
Title:
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DEL MONTE FRESH PRODUCE (FLORIDA),
INC.
By:
---------------------------------
Title:
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FRESH DEL MONTE PRODUCE (CANADA),
INC.
By:
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Title:
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DEL MONTE FRESH PRODUCE
(SOUTHEAST), INC.
By:
---------------------------------
Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-2
DEL MONTE FRESH PRODUCE (WEST
COAST), INC.
By:
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Title:
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DEL MONTE FRESH PRODUCE (TEXAS), INC.
By:
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Title:
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STANDARD FRUIT AND VEGETABLE OF
ARIZONA, INC.
By:
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Title:
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SFV-AZ, LLC
By:
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Title:
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SFV GEORGIA, INC.
By:
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Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-3
STANDARD FRUIT AND VEGETABLE OF
KANSAS CITY, INC.
By:
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Title:
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DEL MONTE FRESH PRODUCE (UK) LTD.
By:
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Title:
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DEL MONTE FRESH PACKAGED PRODUCE
(UK) LTD.
By:
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Title:
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GLOBAL REEFER CARRIERS, LTD.
By:
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Title:
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FDM HOLDINGS LIMITED
By:
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Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-4
DEL MONTE B.V.I. LIMITED
By:
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Title:
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CORPORATION DE DESARROLLO AGRICOLA
DEL MONTE S.A.
By:
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Title:
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COMPANIA DE DESARROLLO BANANERO
DE GUATEMALA S.A.
By:
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Title:
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DEL MONTE FRESH PRODUCE (ASIA-
PACIFIC) LIMITED
By:
---------------------------------
Title:
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DEL MONTE FRESH PRODUCE B.V.
By:
---------------------------------
Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-5
FRESH DEL MONTE PRODUCE N.V.
By:
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Title:
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WAFER LIMITED
By:
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Title:
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FRESH DEL MONTE JAPAN COMPANY LTD.
By:
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Title:
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DEL MONTE FRESH PRODUCE (CHILE) S.A.
By:
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Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-6
ADMINISTRATIVE AGENT, COOPERATIEVE CENTRALE RAIFFEISEN-
ISSUING BANKS AND BOERENLEENBANK B.A., "Rabobank
LENDERS: Nederland", New York Branch, as Administrative
Agent, Issuing Bank and a Lender
By:
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Title:
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By:
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Title:
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XXXXXX TRUST AND SAVINGS BANK, as a Lender
By:
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Title:
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ING CAPITAL LLC, as a Lender
By:
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Title:
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AGFIRST FARM CREDIT BANK, as a Lender
By:
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Title:
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FARM CREDIT SERVICES OF AMERICA, PCA, as a Lender
By:
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Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-7
FARM CREDIT SERVICES OF MID-AMERICA,
PCA, as a Lender
By:
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Title:
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FARM CREDIT WEST, PCA, as a Lender
By:
---------------------------------
Title:
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FARM CREDIT SERVICES OF MINNESOTA
VALLEY, PCA, d/b/a FCS COMMERCIAL
FINANCE GROUP, as a Lender
By:
---------------------------------
Title:
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SUNTRUST BANK, as a Lender
By:
---------------------------------
Title:
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U.S. BANK NATIONAL ASSOCIATION, as
a Lender
By:
---------------------------------
Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-8
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By:
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Title:
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1ST FARM CREDIT SERVICES, PCA, as
a Lender
By:
---------------------------------
Title:
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UNION BANK OF CALIFORNIA, N.A., as
a Lender
By:
---------------------------------
Title:
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GREENSTONE FARM CREDIT SERVICES,
ACA/FLCA, as a Lender
By:
---------------------------------
Title:
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COBANK, ACB, as a Lender
By:
---------------------------------
Title:
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[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
SECOND AMENDMENT TO CREDIT AGREEMENT
S-9
U.S. AGBANK, FCB f/k/a FARM CREDIT
BANK OF WICHITA, as a Lender
By:
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Title:
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NORDEA BANK FINLAND PLC, NEW YORK
BRANCH, as a Lender
By:
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Title:
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By:
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Title:
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BANK of AMERICA, as a Lender
By:
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Title:
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SECOND AMENDMENT TO CREDIT AGREEMENT
S-10
