EXHIBIT 2.13
EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 21, 2003
by and among
FRESH DEL MONTE PRODUCE INC.,
AND
CERTAIN SUBSIDIARIES NAMED HEREIN,
as Borrowers,
THE LENDERS NAMED HEREIN,
as Lenders,
XXXXXX TRUST AND SAVINGS BANK,
as Syndication Agent,
ING CAPITAL LLC,
as Documentation Agent,
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Administrative Agent
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS ............................................................................ 2
SECTION 1.1 Certain Defined Terms ...................................................... 2
SECTION 1.2 Construction ............................................................... 23
SECTION 1.3 Computation of Time Periods ................................................ 23
SECTION 1.4 Accounting Terms ........................................................... 23
SECTION 1.5 Currency Equivalents Generally ............................................. 24
ARTICLE 2 AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT ............................ 24
SECTION 2.1 Extensions of Credit ....................................................... 24
SECTION 2.2 Making the Advances ........................................................ 25
SECTION 2.3 Issuance of and Drawings and Reimbursement Under Letters of Credit ......... 27
SECTION 2.4 Fees ....................................................................... 29
SECTION 2.5 Reduction of Commitments; Voluntary and Mandatory Prepayment................ 30
SECTION 2.6 Interest .................................................... ........... 31
SECTION 2.7 Payments and Computations .................................................. 32
SECTION 2.8 Sharing of Payments, Etc ................................................... 32
SECTION 2.9 Defaulting Lenders ......................................................... 33
SECTION 2.10 Replacement of Lender in Event of Adverse Condition ........................ 35
SECTION 2.1l Application of Payments .................................................... 36
ARTICLE 3 CONDITIONS ............................................................................. 36
SECTION 3.1 Conditions Precedent to Initial Advance and Issuance of Letters of Credit .. 36
SECTION 3.2 Conditions Precedent to Each Advance and Issuance of Letters of Credit ..... 40
SECTION 3.3 Determinations Under Section 3.1 ........................................... 40
SECTION 3.4 Conditions Subsequent ...................................................... 41
ARTICLE 4 REPRESENTATIONS AND WARRANTIES ......................................................... 41
SECTION 4.1 Representations and Warranties of the Borrowers ............................ 41
SECTION 4.2 Survival of Representations and Warranties, Etc ............................ 46
ARTICLE 5 AFFIRMATIVE COVENANTS .................................................................. 47
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SECTION 5.1 Compliance with Laws, Etc .................................................. 47
SECTION 5.2 Payment of Taxes, Etc ...................................................... 47
SECTION 5.3 Compliance with Environmental Laws ......................................... 47
SECTION 5.4 Maintenance of Insurance ................................................... 47
SECTION 5.5 Preservation of Corporate Existence, Etc ................................... 48
SECTION 5.6 Visitation Rights .......................................................... 48
SECTION 5.7 Preparation of Environmental Reports ....................................... 48
SECTION 5.8 Keeping of Books ........................................................... 48
SECTION 5.9 Maintenance of Properties, Etc ............................................. 48
SECTION 5.10 Compliance with Terms of Leaseholds ........................................ 48
SECTION 5.1l Performance of Material Contracts .......................................... 49
SECTION 5.12 Transactions with Affiliates ............................................... 49
SECTION 5.13 Lockbox Accounts ........................................................... 49
SECTION 5.14 Further Assurances ......................................................... 49
SECTION 5.15 Material Subsidiaries ...................................................... 49
SECTION 5.16 Reporting Requirements ..................................................... 49
SECTION 5.17 Use of Proceeds ............................................................ 52
ARTICLE 6 NEGATIVE COVENANTS ..................................................................... 52
SECTION 6.1 Liens ...................................................................... 52
SECTION 6.2 Debt ....................................................................... 52
SECTION 6.3 Wafer and Fresh N.A ........................................................ 54
SECTION 6.4 Mergers, Etc ............................................................... 54
SECTION 6.5 Sales of Assets ............................................................ 54
SECTION 6.6 Investments; Acquisitions .................................................. 56
SECTION 6.7 Restricted Payments; Restricted Purchases .................................. 57
SECTION 6.8 Change in Nature of Business ............................................... 57
SECTION 6.9 Amendments ................................................................. 57
SECTION 6.10 Prepayments of Debt ........................................................ 58
SECTION 6.1l New Subsidiaries ........................................................... 58
SECTION 6.12 Accounting Changes ......................................................... 58
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SECTION 6.13 Negative Pledge; Restrictions .............................................. 58
SECTION 6.14 Speculative Transactions ................................................... 59
SECTION 6.15 Financial Covenants ........................................................ 59
ARTICLE 7 EVENTS OF DEFAULT ...................................................................... 59
SECTION 7.1 Events of Default ........................................................... 59
SECTION 7.2 Remedies .................................................................... 62
SECTION 7.3 Actions in Respect of the Letters of Credit ................................. 63
ARTICLE 8 THE ADMINISTRATIVE AGENT ............................................................... 63
SECTION 8.1 Authorization and Action .................................................... 63
SECTION 8.2 Administrative Agent's Reliance, Etc ........................................ 64
SECTION 8.3 Rabobank and Affiliates ..................................................... 65
SECTION 8.4 Lender Credit Decision ...................................................... 65
SECTION 8.5 Indemnification ............................................................. 65
SECTION 8.6 Successor Administrative Agent .............................................. 65
SECTION 8.7 Notice of Default or Event of Default ....................................... 66
SECTION 8.8 Agent May File Proofs of Claim .............................................. 66
SECTION 8.9 Documentation Agent and Syndication Agent ................................... 67
SECTION 8.10 Collateral .................................................................. 67
ARTICLE 9 MISCELLANEOUS .......................................................................... 67
SECTION 9.1 Amendment, Etc .............................................................. 67
SECTION 9.2 Notices, Etc ................................................................ 69
SECTION 9.3 No Waiver; Remedies ......................................................... 69
SECTION 9.4 Costs and Expenses .......................................................... 69
SECTION 9.5 Right of Set-off ............................................................ 70
SECTION 9.6 Binding Effect .............................................................. 71
SECTION 9.7 Assignments and Participations .............................................. 71
SECTION 9.8 Marshalling; Payments Set Aside ............................................. 74
SECTION 9.9 Execution in Counterparts ................................................... 74
SECTION 9.10 No Liability of the Issuing Bank ............................................ 74
SECTION 9.1l Survival of Obligations ..................................................... 74
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ARTICLE 10 INCREASED COSTS, TAXES, ETC ............................................................ 75
SECTION 10.1 Increased Costs ............................................................. 75
SECTION 10.2 Taxes ....................................................................... 77
SECTION 10.3 LIBO Breakage Costs ......................................................... 79
SECTION 10.4 Judgment Currency ........................................................... 79
ARTICLE 11 JURISDICTION ........................................................................... 80
SECTION 11.1 Consent to Jurisdiction ..................................................... 80
SECTION 11.2 Governing Law ............................................................... 81
SECTION 11.3 Waiver of Jury Trial ........................................................ 81
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EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Note
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Intercompany Note
SCHEDULES
Schedule C-l Commitments
Schedule G-l Guarantors; Guaranty Agreements
Schedule L-l Domestic Lending Offices; LIBOR Lending Offices
Schedule M-l Material Subsidiaries
Schedule P-l Pledgers
Schedule 2.1(c) Existing Letters of Credit
Schedule 4.1(b) Subsidiaries
Schedule 4.1(c) Joint Ventures
Schedule 4.1(e) Authorizations; Approvals
Schedule 4.1(i) Litigation
Schedule 4.1(m) Environmental Matters
Schedule 4.1(o) Permitted Liens as of the Agreement Date
Schedule 4.1(r) Material Contracts
Schedule 4.1(s) Intellectual Property
Schedule 4.1(t) Material Surviving Debt
Schedule 4.1(u) Investments permitted as of the Agreement Date
Schedule 4.1(v) Property Locations
Schedule 9.2 Notice Addresses
Dated as of March 21, 2003
AMENDED and RESTATED CREDIT AGREEMENT dated as of March 21, 2003 among
FRESH DEL MONTE PRODUCE INC., a Cayman Islands company ("Fresh Produce"), and
the Subsidiaries of Fresh Produce identified on the signature pages hereto
(Fresh Produce and such Subsidiaries are referred to herein collectively as the
"Borrowers" and each individually as a "Borrower"); the various banks and other
lending institutions as are, or may from time to time become, parties hereto
(collectively, the "Lenders" and individually, a "Lender"); ING Capital LLC, as
documentation agent (the "Documentation Agent"); Xxxxxx Trust and Savings Bank,
as syndication agent (the "Syndication Agent"); and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
("Rabobank"), as administrative agent for the Lenders (together with any
successor appointed pursuant to Article 8, the "Administrative Agent").
WITNESSETH:
WHEREAS, certain of the Borrowers entered into a Revolving Credit
Agreement dated as of May 19, 1998 with the Lenders (as defined in the Existing
Credit Agreement) party thereto, and Rabobank, as administrative agent and
collateral agent (such agreement, as amended, modified or supplemented prior to
the date hereof, the "Existing Credit Agreement");
WHEREAS, the Borrowers desire to refinance and replace the Existing
Credit Agreement and each Borrower has asked the Lenders severally to extend
credit to it for the purposes of such refinancing and for general corporate
purposes, and each Lender has severally agreed to replace the Existing Credit
Agreement and to extend such credit, on the terms and conditions set forth
herein;
WHEREAS, each Borrower acknowledges and agrees that the security
interests granted to the Administrative Agent pursuant to the Existing Credit
Agreement and the other Loan Documents (as defined in the Existing Credit
Agreement) shall remain outstanding and in full force and effect in accordance
with the Existing Credit Agreement (except to the extent modified on the
Agreement Date) and such other Loan Documents and shall continue to secure the
Obligations (as defined herein); and
WHEREAS, each of the Borrowers, the Administrative Agent and the
Lenders acknowledges and agrees that (a) the Advances (as such term is defined
herein) on the date hereof represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Existing Credit Agreement) arising in connection
with the Existing Credit Agreement and the other Loan Documents (as defined in
the Existing Credit Agreement) executed in connection therewith; (b) each
Borrower, the Administrative Agent and the Lenders intend that the Existing
Credit Agreement and the other Loan Documents (as defined in the Existing
Credit Agreement) executed in connection therewith and the collateral pledged
thereunder shall secure, without interruption or impairment of any kind, all
existing Obligations (as defined in the Existing Credit Agreement) under the
Existing Credit Agreement and the other Loan Documents (as defined in the
Existing Credit Agreement) executed in connection therewith as amended,
restated, renewed, extended, consolidated and modified hereunder, together
with all other Obligations (as defined herein) hereunder; (c) all Liens (as
defined in the Existing Credit Agreement) evidenced by the Existing Credit
Agreement and the other Loan Documents (as defined in the Existing Credit
Agreement) executed in connection therewith are hereby ratified, confirmed and
continued; (d) this Agreement is intended to restate, renew, extend,
consolidate, amend and modify the Existing Credit Agreement; and (e) the Loan
Documents (as defined in the Existing Credit Agreement) (other than the
Existing Credit Agreement which is hereby being restated, renewed, extended,
consolidated, amended or modified) shall remain extant and in full force and
effect (except to the extent amended, modified or restated as of the date
hereof); and
WHEREAS, each of the Borrowers, the Administrative Agent and the
Lenders intend that (a) the provisions of the Existing Credit Agreement be
hereby superseded and replaced by the provisions hereof; and (b) by entering
into and performing their respective obligations hereunder, this transaction
shall not constitute a novation.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants herein set forth and other good and valuable consideration,
the receipt and adequacy of all of the foregoing as legally sufficient
consideration being hereby acknowledged, the Borrowers, the Administrative
Agent and the Lenders do hereby agree that the Existing Credit Agreement is
amended and restated in its entirety, and agree, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent" has the meaning specified in the introductory
paragraph of this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent with The Bank of New York, ABA # 000-000-000, at its
office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 000-0000-000,
Favor: Rabobank Nederland, New York Branch, Reference: Fresh Del Monte DDA
#80610/ Loan Syndications.
"Advance" means, as applicable, a Revolving Advance or a Swing Line
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly through one or more intermediaries, controls, is controlled by or
is under common control with such Person or is a director, partner or officer
of such Person. For purposes of this definition, the term "control" (including
the terms "controlling", "controlled by" and "under common control with") of a
Person means the possession, directly or indirectly, (a) by such other Person
of the power to vote 5% or more of the Stock of such Person or (b) by such
other Person of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of Stock, by
contract or otherwise.
"Agreement" means this Amended and Restated Credit Agreement.
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"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations, and orders of governmental bodies
or regulatory agencies applicable to such Person, and all orders and decrees of
all courts and arbitrators in proceedings or actions to which the Person in
question is a party or by which it is bound.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's LIBOR Lending Office in the case of a LIBO Rate Advance.
"Applicable Margin" means for any Borrower on any date of
determination, the applicable percentage indicated below which corresponds to
the Leverage Ratio (or senior debt rating, if applicable, pursuant to Level 8
below) of Fresh Produce indicated below:
Applicable Applicable
Applicable Margin Margin for Margin for
for LIBO Rate Base Rate Unused
Level Leverage Ratio Advances Advances Commitment
1 Greater than or equal to 3.0 to 1.00 2.750% 1.500% 0.500%
2 Less than 3.0 to 1.00, but greater 2.400% 1.150% 0.500%
than or equal to 2.5 to 1.00
3 Less than 2.5 to 1.00, but greater 2.250% 1.000% 0.500%
than or equal to 2.0 to 1.00
4 Less than 2.0 to 1.00, but greater 2.000% 0.750% 0.450%
than or equal to 1.5 to 1.00
5 Less than 1.5 to 1.00, but greater 1.750% 0.500% 0.400%
than or equal to 1.0 to 1.00
6 Less than 1.0 to 1.00, but greater 1.500% 0.250% 0.350%
than or equal to 0.50 to 1.00
7 Less than 0.50 to 1.00 1.250% .00% 0.300%
8 Senior Debt Rating of BBB (by S&P) and 1.125% .00% 0.225%
Baa2 (by Xxxxx'x) or higher
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 statements 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 5.16(b) and (c), as the case may be,
and a certificate of the Chief Financial Officer of Fresh Produce demonstrating
such Leverage Ratio, attaching thereto a schedule in form reasonably
satisfactory to the Administrative Agent of the computations used by Fresh
Produce in determining such Leverage Ratio, (b) the Applicable Margin shall be
the highest interest rate margin set forth above with respect to the applicable
Advances and Unused Commitment, respectively, if Fresh Produce has not
submitted to the Administrative Agent the information
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described in clause (a) of this proviso as and when required under Section
5.16(b) or (c), as the case may be, for so long as such information has not
been received by the Administrative Agent, (c) the Applicable Margin with
respect to Advances and the Unused Commitment shall be no lower than Level 6
above from the Agreement Date through the later of (i) September 22, 2003, and
(ii) the date the Administrative Agent receives the information required by
clause (a) of this provision for the fiscal quarter ended June 30, 2003, and
(d) the Applicable Margin shall be determined according to Level 8 above
(rather than the Leverage Ratio) if the senior debt rating of Fresh Produce at
such time is rated BBB or higher by S&P and Baa2 or higher by Xxxxx'x.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
accordance with Section 9.7, and in substantially the form of Exhibit A hereto.
"Bankruptcy Code" means the United States Bankruptcy Code (11 U.S.C.
Section 101 et seq.), and any similar laws relating to the insolvency of
debtors in any other country, as the same may now or hereafter be amended, and
including any successor statute.
"Base Rate" means, at any date of determination, a fluctuating
interest rate per annum in effect from time to time, which rate per annum shall
at all times be equal to the higher of:
(a) the rate of interest announced by Rabobank in New York, New
York, from time to time, as Rabobank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
Each change in the fluctuating interest rate set forth in both clauses (a) and
(b) of this definition shall take effect simultaneously with the corresponding
change in such rate, but in no event shall exceed the maximum interest rate
permitted by Applicable Law.
"Base Rate Advance" means an Advance denominated in U.S. dollars that
bears interest at the Base Rate plus the Applicable Margin in effect from time
to time with respect to Base Rate Advances.
"Board of Directors" means (a) with respect to a corporation, the
board of directors of such corporation or a duly authorized committee of the
board of directors, (b) with respect to a partnership, the board of directors
or similar body of the general partner (or, if more than one general partner,
the managing general partner) of such partnership, and (c) with respect to a
limited liability company, any managing or other authorized committee of such
limited liability company or any board of directors or similar body of any
managing member.
"Borrower" and "Borrowers" have the respective meanings specified
therefor in the introductory paragraph of this Agreement.
"Borrowing" means a Revolving Borrowing or a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City, and, if the applicable Business
Day relates to any LIBO Rate Advances, on which dealings are carried on in the
London interbank market.
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"Capital Expenditures" means, for any Person for any period, all
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet of
such Person or have a useful life of more than one year; provided, however,
that there shall be excluded from this definition that portion of any
expenditure which is (a) financed by Debt (other than the Obligations)
permitted hereunder, including, without limitation, the non-cash portion of
Capitalized Leases, (b) otherwise treated as an expense on the statement of
such Person that would have an effect on such Person's EBITDA, (c) made
pursuant to Section 6.5(c) in respect of the reinvestment in replacement assets
within 12 months of any permitted sale of assets thereunder or (d) made with
insurance proceeds received in respect of loss or damage to a fixed asset to
replace such asset.
"Capitalized Lease" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases on a balance sheet of the
lessee, excluding operating leases.
"Cash Equivalents" means, for any Person, any of the following, to the
extent owned by such Person free and clear of all Liens (other than Permitted
Liens) and having a maturity of not greater than 1 year from the date of
acquisition: (a) readily marketable direct obligations of the Government of the
United States or any agency or instrumentality thereof or obligations
unconditionally guaranteed by the full faith and credit of the Government of
the United States, (b) readily marketable direct obligations denominated in
U.S. dollars of any other sovereign government or any agency or instrumentality
thereof which are unconditionally guaranteed by the full faith and credit of
such government and which have a rating equivalent to at least "Prime-1" (or
the then equivalent grade) by Xxxxx'x or "A-l" (or the then equivalent grade)
by S&P, (c) insured certificates of deposit of or time deposits with any
commercial bank that issues (or the parent of which issues) commercial paper
rated as described in clause (d) below, is organized under the laws of the
United States or any State thereof or is a foreign bank or branch or agency
thereof acceptable to the Administrative Agent and, in any case, has combined
capital and surplus of at least U.S.$1,000,000,000 (or the foreign currency
equivalent thereof), (d) commercial paper issued by any corporation organized
under the laws of any State of the United States or any commercial bank
organized under the laws of the United States or any State thereof or any
foreign bank, each of which shall have a Consolidated net worth of at least
U.S.$250,000,000 and rated at least "Prime-1" (or the then equivalent grade) by
Xxxxx'x or "A-l" (or the then equivalent grade) by S&P or (e) a mutual fund
invested solely in assets that constitute "Cash Equivalents" of the types
described in clauses (a) through (d) of this definition.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"Change of Control" means at any time, with respect to any Loan Party,
the occurrence of any of the following: any Person other than the direct and
indirect shareholders of such Loan Party existing on the date hereof, (a)
acquires (whether through legal or "beneficial ownership," by contract or
otherwise), directly or indirectly, the right to vote more than 45% of the
total voting power of all classes of Stock of such Loan Party then outstanding
and such percentage is in excess of the percentage owned by such direct and
indirect shareholders existing on the date hereof, or (b) shall have elected,
or caused to be elected, a sufficient number of its or their nominees to the
Board of Directors of such Loan Party such that the nominees so elected
(regardless of when elected) shall
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collectively constitute a majority of the Board of Directors of such Loan
Party. For purposes of this definition, "Person" includes any "group" as that
term is used in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, and "beneficial ownership" shall have the meaning provided in Rule 13d-3
under the Securities Exchange Act of 1934.
"Collateral" means all Pledged Stock, all other "Collateral" referred
to in the Security Documents and all other property (including, but not limited
to, the proceeds of such "Collateral" and all after-acquired property) that is
or is intended to be subject to any Lien in favor of the Administrative Agent
in accordance with the terms of the Security Documents.
"Commitment" means, with respect to any Lender at any time, the amount
set forth opposite such Lender's name on Schedule C-l hereto under the caption
"Commitment" or, if such Lender has entered into one or more Assignments and
Acceptances, as set forth in the Register maintained by the Administrative
Agent pursuant to Section 9.7(c), and as such amount may be reduced at or prior
to such time pursuant to Section 2.5 or 2.10.
"Confidential Information" means information that any Loan Party
furnishes to the Administrative Agent or any Lender on a confidential basis,
but does not include any such information that is or becomes generally
available to the public or that is or becomes available to the Administrative
Agent or such Lender from a source other than a Loan Party.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated EBITDA" means, for Fresh Produce for any period, the
sum, determined on a Consolidated basis, of (a) Consolidated Net Income (or net
loss), plus, without duplication and to the extent included in the calculation
of such Consolidated Net Income (or net loss), (b) the sum of (i) net interest
expense, (ii) income tax expense, (iii) depreciation expense, (iv) amortization
expense, and (v) any extraordinary, unusual or non-recurring noncash expenses
or losses, minus (c) the sum of (i) any extraordinary, unusual or non-recurring
income or gains which were included in the calculation of Consolidated Net
Income (or net loss), and (ii) cash expenditures in excess of $5,000,000
incurred per quarter, the effect of which is to reduce balance sheet provisions
previously booked and treated as an extraordinary, unusual or non-recurring
noncash expense, in each case of Fresh Produce and its Subsidiaries, determined
in accordance with GAAP for such period.
"Consolidated Fixed Charges" means, for Fresh Produce for any period,
the sum determined on a Consolidated basis of (a) interest expense of all Debt
of Fresh Produce and its Subsidiaries (including amortization of debt discount
in respect of such Debt), plus (b) scheduled or mandatory payments of principal
of all Debt (other than the Advances), plus (c) expenses in respect of
obligations of Fresh Produce and its Subsidiaries under Capitalized Leases,
plus (d) payments of dividends, paid or payable in each case, by Fresh Produce
and/or its Subsidiaries during such period; provided, however, that
Consolidated Fixed Charges shall not include any obligation under Foreign
Exchange Contracts or Hedge Agreements.
"Consolidated Net Income" means, for Fresh Produce for any period, the
net income of Fresh Produce and its Subsidiaries determined in accordance with
GAAP on a Consolidated basis; provided, however, that there shall not be
included in such Consolidated Net Income:
6
(a) any gain (but not loss) realized upon the sale or other
disposition of any property, plant or equipment of Fresh Produce or its
Subsidiaries (including pursuant to any sale-and-leaseback arrangement) which
is not sold or otherwise disposed of in the ordinary course of business and
gain (but not loss) realized upon the sale or other disposition of any Stock of
any other Person; and
(b) the cumulative effect of a change in accounting principles.
"Consolidated Total Debt" of Fresh Produce means, without duplication,
all Debt of Fresh Produce and its Subsidiaries (including ship mortgages under
which Fresh Produce or any of its Subsidiaries is a mortgagor), excluding (a)
all obligations of Fresh Produce and its Subsidiaries in respect of pension
liabilities, worker's compensation liabilities, accounts payable, accrued
expenses, taxes payable or deferred taxes, (b) contingent obligations in
respect of undrawn letters of credit issued pursuant to worker's compensation
laws, insurance laws or similar legislation or to secure public or statutory
obligations, and (c) obligations under Hedging Agreements and Foreign Exchange
Contracts, in each case determined on a Consolidated basis.
"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 2.2 or Section 10.1.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables,
including trade payables arising in connection with consignment sale
arrangements, not overdue by more than 60 days incurred in the ordinary course
of such Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments (other than trade
payables not overdue by more than 60 days incurred in the ordinary course of
business), (d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all obligations of such Person as lessee under
Capitalized Leases, (f) all obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar facilities, (g) all
obligations under Foreign Exchange Contracts and Hedge Agreements, (h) all
obligations of others referred to in clauses (a) through (g) above or clause
(i) below Guaranteed by such Person, and (i) all obligations referred to in
clauses (a) through (g) above of another Person secured by (or for which the
holder of such obligations has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without limitation, accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such obligations.
"Default" means any of the events specified in Section 7.1 hereof
which, with the passage of time or giving of notice (or both), would, unless
cured or waived, become an Event of Default.
"Default Rate" means a simple per annum interest rate equal to, (a)
with respect to outstanding principal, the sum of (i) the Base Rate or the LIBO
Rate, as applicable, plus (ii) the Applicable Margin then in effect, plus (iii)
2%, and (b) with respect to all other Obligations, the sum of (i) the Base
Rate, plus (ii) the Applicable Margin then in effect with respect to Base Rate
Advances, plus (iii) 2%.
7
"Defaulted Advance" means, with respect to any Lender at any time, the
portion of any Advance required to be made by such Lender to any Borrower
pursuant to Section 2.1 or 2.2 at or prior to such time which has not been made
by such Lender or by the Administrative Agent for the account of such Lender
pursuant to Section 2.2(d) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.9(a), the
remaining portion of such Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to Section 2.1 or 2.2 on the
same date it was originally required to be made.
"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 2.1 (b) to purchase any participation in a Swing Line
Advance made by the Swing Line Bank, (b) the Issuing Bank pursuant to Section
2.3(b) to purchase any participation in a Revolving Advance made by the Issuing
Bank, (c) the Administrative Agent pursuant to Section 2.2(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
2.9 to purchase any participation in Advances owing to such other Lender and
(e) the Administrative Agent pursuant to Section 8.5 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 2.9(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.
"Defaulting Lender" means, at any time, any Lender that, at such time,
(a) owes a Defaulted Advance or a Defaulted Amount or (b) shall be the subject
of any action or proceeding commenced by or against such Lender under the
Bankruptcy Code.
"DMC" means Del Monte Corporation, a New York corporation and licensor
of the Trademarks pursuant to the Trademark Licenses.
"Documentation Agent" has the meaning specified in the introductory
paragraph of this Agreement.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule L-l hereto or in the Assignment and Acceptance pursuant to
which it became a Lender, as the case may be, or such other office of such
Lender as such Lender may from time to time specify to the Borrowers and the
Administrative Agent.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
or (c) a commercial bank or other financial institution (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business,
having a combined capital and surplus of at least U.S. $250,000,000; provided,
however, that neither any Loan Party nor any Affiliate of a Loan Party shall
qualify as an Eligible Assignee under this definition.
8
"Environment" means the ambient air, surface water, drinking water,
groundwater, land surface, subsurface strata, river sediment, plant or animal
life, and other natural resources.
"Environmental Action" means any action, suit, demand, claim, notice
of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement arising under any
Environmental Law or any Environmental Permit or arising from alleged injury or
threat to health, safety or the Environment that is commenced by any
Governmental Authority for enforcement, cleanup, removal, response, remedial or
other actions or damages or by any third party for damages.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction or decree, or judicial or agency interpretation, policy or guidance
determined by a court to have the force and effect of law, relating to
pollution or protection of the Environment, human health or safety (including,
without limitation, employees), animals or natural resources, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any applicable
Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, supplemented or otherwise modified from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of the controlled group of such
Person, or under common control with such Person, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) (i) the occurrence
of a reportable event, within the meaning of Section 4043 of ERISA, with
respect to any Plan of such Person unless the 30-day notice requirement with
respect to such event has been waived by the PBGC, or (ii) the requirements of
subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of
such Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043 (c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days; (b)
the application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to terminate
such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 404 l(e) of ERISA); (d)
the cessation of operations at a facility of such Person or any ERISA Affiliate
in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by such Person or any ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section
302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption
of an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to
administer, such Plan.
9
"Event of Default" has the meaning assigned to such term in Section
7.1.
"Excluded Taxes" has the meaning specified in Section 10.2(a).
"Existing Credit Agreement" has the meaning specified in the recitals
to this Agreement.
"FDM Holdings" means FDM Holdings Limited, a Cayman Islands company.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day for
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Letter" means that certain fee letter executed by the Borrowers
setting forth the applicable fees relating to this Agreement to be paid to the
Administrative Agent, on its behalf and on behalf of the Lenders.
"Fixed Charges Coverage Ratio" means, with respect to Fresh Produce
for any period, the ratio of (a) Consolidated EBITDA of Fresh Produce for such
period less Capital Expenditures made during such period less cash payments of
taxes made during such period to (b) Consolidated Fixed Charges.
"Foreign Exchange Bank" means any Lender or any Affiliate thereof that
is party to a Foreign Exchange Contract with a Loan Party.
"Foreign Exchange Contract" means, with respect to any Person, any
foreign exchange contract, forward foreign exchange contract, currency swap,
currency future, currency option, or other similar agreement or arrangement
designed to protect such Person against fluctuations in foreign exchange rates
or currency valuations, entered into in the ordinary course of business for
bona fide hedging purposes and not for the purpose of speculation.
"Foreign Government Scheme or Arrangement" has the meaning specified
in Section 4.1(k).
"Foreign Plan" has the meaning specified in Section 4.1(k).
"Fresh B.V." means Del Monte Fresh Produce B.V., a Netherlands
corporation.
"Fresh Brasil" means Del Monte Fresh Produce Brasil Ltda, a Brazilian
corporation.
"Fresh Chile" means Del Monte Fresh Produce (Chile) S.A., a Chilean
corporation.
"Fresh International" means Del Monte Fresh Produce International,
Inc., a Liberian corporation.
10
"Fresh International License" means the License Agreement dated as of
December 5, 1989 by and between DMC and Fresh International, as amended by that
certain Amendment No. 1, effective as of October 12, 1992.
"Fresh International Sublicense" means the Sublicense Agreement dated
as of December 5, 1989, by and between Wafer (as sublicensor) and Fresh
International (as sublicensee), as amended by that certain Amendment No. 1,
effective as of October 12, 1992.
"Fresh N.A." means Del Monte Fresh Produce, N.A., Inc., a Florida
corporation.
"Fresh N.A. Sub" means Del Monte Fresh Produce (Florida) Inc., the
Wholly-Owned Subsidiary of Fresh N.A. created to hold the NAJ Sublicense.
"Fresh N.A. Sublicense" means the Sublicensing Use of Trademark
Agreement dated as of December 20, 1996 between Fresh N.A. Sub (as sublicensor)
and Fresh N.A (as sublicensee) in connection with the NAJ License.
"Fresh N.V." means Fresh Del Monte Produce N.V.
"Fresh Produce" has the meaning specified in the introductory
paragraph of this Agreement.
"GAAP" has the meaning specified in Section 1.4.
"Governmental Authority" means any government or political subdivision
of the United States or any other country or any agency, authority, board,
bureau, central bank, commission, department or instrumentality thereof or
therein, including, without limitation, any court, tribunal, grand jury or
arbitrator, having jurisdiction over any Agent, any Borrower, any other Loan
Party or any of their respective assets or properties, in each case whether
U.S. or non-U.S., or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to such government or
political subdivision.
"Guarantors" means each of the Persons listed under the heading of
"Guarantor" on Schedule G-l hereof, and each other Person that delivers a
Guaranty Agreement at any time hereafter.
"Guaranty" or "Guaranteed," as applied to an obligation (each a
"primary obligation"), means (a) any guaranty, direct or indirect, in any
manner, of any part or all of such primary obligation, and (b) any agreement,
direct or indirect, contingent or otherwise, the practical effect of which is
to assure in any way the payment or performance (or payment of damages in the
event of non-performance) of any part or all of such primary obligation,
including any obligation, whether or not contingent, (i) to purchase any such
primary obligation or any property or asset constituting direct or indirect
security therefor, or (ii) to advance or supply funds for the purchase or
payment of such primary obligation, or (iii) to purchase property, assets,
securities or services primarily for the purpose of assuring the owner or
holder of any primary obligation of the ability of the primary obligor with
respect to such primary obligation to make payment thereof; provided, however,
that "Guaranty" shall not include non-binding comfort letters limited to
corporate intent or policies.
"Guaranty Agreements" means the guaranty agreements, guaranty and
indemnity deeds, and other similar agreements delivered on the Agreement Date
by each of the Persons listed under
11
the heading of "Guarantor" on Schedule G-l hereto, guaranteeing or providing an
indemnity for the obligations described on Schedule G-l hereto, and any other
agreement delivered after the Agreement Date (including by way of supplement or
amendment to any guaranty or indemnity agreement) by any Person providing an
indemnity or guaranty of all or any part of the Obligations, in each case as
amended, supplemented or modified from time to time in accordance with its
terms.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any applicable Environmental Law.
"Hedge Agreements" means with respect to any Person, (a) any
arrangement whereby, directly or indirectly, such Person is entitled to receive
from time to time periodic payments calculated by applying either a floating or
a fixed rate of interest on a stated notional amount in exchange for periodic
payments made by such Person calculated by applying a fixed or a floating rate
of interest on the same notional amount and shall include, without limitation,
interest rate swaps, caps, floors, collars and similar agreements and (b) any
forward contract, commodity swap agreement, commodity option agreement or other
similar agreement or arrangement (including any fuel, grain or corrugated board
futures agreement) designed to protect such Person against fluctuations in
commodity prices (including fuel, grain or corrugated board prices), in each
case, entered into in the ordinary course of business for bona fide hedging
purposes and not for the purpose of speculation.
"Indemnified Party" has the meaning specified in Section 9.4(c).
"Initial Borrowing Date" means the date on which the initial Borrowing
shall occur.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each LIBO Rate Advance comprising part of
the same Revolving Borrowing (or portion of the same Revolving 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 Interest Period and ending on the last day of the period
selected by the Borrower requesting a Borrowing pursuant to the provisions
below. The duration of each such Interest Period shall be one, two, three, or
six months, or with the consent of the Lenders, nine or twelve months, as such
Borrower may, upon notice received by the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the first
day of such Interest Period, select; provided that:
(a) the duration of any Interest Period for any LIBO
Rate Advance that commences before the repayment date for such Advance and
otherwise ends after such repayment date shall end on such repayment date;
12
(b) if any Borrower fails to select the duration of any
Interest Period for a LIBO Rate Advance, the duration of such Interest Period
shall be one month;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day;
provided that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial calendar
month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month; and
(e) such Borrower shall not select an Interest Period
for a LIBO Rate Advance that ends after the Maturity Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"IntraLinks" means IntraLinks, Inc. or any other digital workspace
provider selected by the Administrative Agent from time to time after notice
to, and approval of, Fresh Produce.
"Inventory" means, with respect to Fresh Produce or any of its
Subsidiaries, all goods owned and held for sale in the ordinary course of its
business, including all fresh produce, paper and packaging materials and all
raw materials and work in process therefor and materials used or consumed in
the manufacture or production thereof.
"Investment" by any Person in any other Person means any direct or
indirect advance or loan (other than advances to customers in the ordinary
course of business that are recorded as accounts receivable on the balance
sheet of such Person) or other extensions of credit or capital contributions to
(by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Stock, Debt or other similar instruments issued by such Person.
"Issuing Bank" means Rabobank and its successors and assigns hereunder
as issuer of such Letter of Credit.
"L/C Cash Collateral Account" has the meaning specified in Section
7.3.
"L/C Related Documents" has the meaning specified in Section
2.3(c)(i).
"Lenders" means the banks, financial institutions and other
institutional lenders that have agreed to make Advances under the Total
Commitment hereunder, as indicated on Schedule C-l hereto under the caption
"Commitment" or in one or more Assignments and Acceptances entered into from
time to time and set forth in the Register maintained by the Administrative
Agent pursuant to Section 9.7(c).
13
"Letter of Credit" has the meaning specified in Section 2.1(c).
"Letter of Credit Amount" means at any time, the sum of (a) the
aggregate maximum amount available to be drawn under all Letters of Credit
outstanding at such time (assuming compliance at such time with all conditions
to drawing), plus (b) the aggregate drawn but unreimbursed drawings of any
Letters of Credit at such time.
"Letter of Credit Commission" means, for any date of determination,
with respect to any outstanding Letter of Credit, a letter of credit commission
on an amount equal to the stated principal amount of such outstanding Letter of
Credit less any amounts drawn under such Letter of Credit, at the rate per
annum equal to the Applicable Margin for LIBO Rate Advances in effect at such
time.
"Letter of Credit Sublimit" means U.S.$25,000,000.
"Leverage Ratio" means, for any period, the ratio of (a) Consolidated
Total Debt of Fresh Produce to (b) Consolidated EBITDA of Fresh Produce.
"LIBO Rate" means, for any Interest Period for any LIBO Rate Advance
comprising part of the same Revolving Borrowing, an interest rate per annum
obtained by dividing:
(a) either (i) the rate per annum determined by Rabobank
on the basis of the offered rates for deposits in U.S. dollars for
such Interest Period which appear on page 3750 of the Telerate Plus
Service (or such other page or pages as the Administrative Agent, in
agreement with the Borrowers and after consultation with the Lenders,
shall nominate to replace that page or pages for the purpose of
displaying offered rates of leading banks for London interbank
deposits in U.S. dollars) as of 11:00 a.m., London time, on the day
that is two Business Days preceding the first day of such Interest
Period, or (ii) if a rate cannot be determined pursuant to clause (i)
above, a rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1 % per annum, if such average is
not such a multiple) of the rate per annum at which deposits in U.S.
dollars are available to the Administrative Agent as determined by the
Administrative Agent in London, England to prime banks in the
interbank market, as of 11:00 a.m., London time, on the day that is
two Business Days preceding the first day of such Interest Period, by
(b) a percentage equal to 100%, minus the LIBO Rate
Reserve Percentage for such Interest Period.
"LIBO Rate Advance" means an Advance denominated in U.S. dollars that
bears interest at the LIBO Rate plus the Applicable Margin in effect from time
to time with respect to LIBO Rate Advances. The LIBO Rate for any LIBO Rate
Advance shall be adjusted as of the effective date of any change in the LIBO
Rate Reserve Percentage.
"LIBO Rate Reserve Percentage" means the percentage which is in effect
from time to time under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System with respect to liabilities or assets consisting of or
including
14
Eurocurrency Liabilities (as such term is defined in Regulation D of the Board
of Governors as in effect from time to time) or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on LIBO Rate Advances is determined, whether or not any Lender
has any Eurocurrency Liabilities subject to such reserve requirement at that
time.
"LIBOR Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "LIBOR Lending Office" opposite its name on
Schedule L-l hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrowers and the Administrative Agent.
"Lien" means, with respect to any property, any mortgage, lien,
pledge, assignment by way of security, charge, hypothec, security interest,
title retention agreement, levy, execution, seizure, attachment, garnishment,
or other encumbrance of any kind in respect of such property.
"Loan Documents" means this Agreement, the Notes, the Guaranty
Agreements, the Security Documents, all L/C Related Documents, the Fee Letter,
each Notice of Borrowing, each Notice of Issuance, any Foreign Exchange
Contract between a Foreign Exchange Bank and a Loan Party, and all other
documents, instruments, certificates, and agreements executed or delivered by
Fresh Produce or its Subsidiaries in connection with or pursuant to this
Agreement. Without limiting the generality of the foregoing, each amendment to
this Agreement or to any other Loan Document, each waiver of any provision of
this Agreement or any other Loan Document, and each instrument and agreement
executed in connection herewith or therewith shall be deemed to be a Loan
Document for all purposes of this Agreement and the other Loan Documents.
"Loan Party" or "Loan Parties" means each of the Borrowers, the
Guarantors, and the Pledgors.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Effect" means, as of any date of determination, a
material adverse effect on (a) the business, condition (financial or
otherwise), operations, performance, properties or prospects of Fresh Produce
and its Subsidiaries taken as a whole or (b) the material rights and remedies
of the Administrative Agent or any Lender under any Loan Document or (c) the
ability of Fresh Produce and its Subsidiaries, collectively, to perform their
Obligations under the Loan Documents.
"Material Contracts" means, with respect to any Loan Party, (a) each
contract listed on Schedule 4.l(r), (b) each other contract to which such Loan
Party is, or may become, a party which covers and/or replaces the services
and/or arrangements which are provided for in any contract listed on Schedule
4.l(r), and (c) the Trademark Licenses.
"Material Subsidiary" means (a) as of the Agreement Date, those direct
and indirect Subsidiaries of Fresh Produce listed on Schedule M-l hereto, and
(b) thereafter, any direct or indirect Subsidiary of Fresh Produce which, as a
result of any acquisition, Investment, merger, reorganization, transfer of
assets, or other change in circumstances after the Agreement Date, meets any of
the following conditions:
15
(a) Investments in such Subsidiary by Fresh Produce and
its other Subsidiaries, in the aggregate, exceed 10% of the total assets of
Fresh Produce and its Subsidiaries Consolidated as of the end of the most
recently completed fiscal quarter; or
(b) Fresh Produce's and its other Subsidiaries'
proportionate share of the total assets, in the aggregate (after intercompany
eliminations), of such Subsidiary (and its Subsidiaries) exceeds 10% of the
total assets of Fresh Produce and its Subsidiaries Consolidated as of the end
of the most recently completed fiscal quarter; or
(c) Fresh Produce's and its other Subsidiaries' equity
in the income from continuing operations, in the aggregate, before income
taxes, extraordinary items and cumulative effect of a change in accounting
principles of such Subsidiary (and its Subsidiaries) exceeds 10% of such income
of Fresh Produce and its Subsidiaries Consolidated for the most recently
completed fiscal year.
"Material Surviving Debt" has the meaning specified in Section 4.1(t).
"Maturity Date" means the earlier of (a) March 21, 2007 and (b) the
date of the termination in whole of the Commitments pursuant to Section 2.5 or
7.2.
"Moody's" means Xxxxx'x Investors Service Inc. or any successor
thereto.
"Multiemplover Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its
ERISA Affiliates is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation
to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001 (a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and at least one Person
other than such Person and its ERISA Affiliates or (b) was so maintained and in
respect of which such Person or any of its ERISA Affiliates could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been
or were to be terminated.
"NAJ License" means the License Agreement dated as of December 5, 1989
by and between DMC and Fresh N.A., as amended by that certain Amendment No. 1,
effective as of October 12, 1992, and that certain Assignment and Assumption
Agreement dated December 20, 1996, between Fresh N.A. and Fresh N.A. Sub.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or disposition of any asset or the sale or issuance of any Debt or Stock, any
securities convertible into or exchangeable for Stock or any warrants, rights
or options to acquire Stock by any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or through payment
or disposition of deferred consideration) by or on behalf of such Person in
connection with such transaction, after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions, underwriting
fees and discounts, legal fees, finder's fees and other similar fees and
commissions, (b) the amount of taxes payable in connection with or as a result
of such transaction, and (c) the principal amount of, premium or penalty, if
any, and interest on any Debt
16
(other than the Advances) that is secured by a Lien on the assets in question,
in each case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paid to a Person
that is not an Affiliate of such Person and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Nordeste Litigation" means that certain action commenced against
Fresh Brasil by Nordeste Investimentos e Participacoes S.A. on or about October
20, 1997, as more fully described in Fresh Produce's 2002 Annual Report on Form
20-F.
"Note" means a promissory note of any Borrower payable to the order of
a Lender, in substantially the form of Exhibit B hereto, in the principal
amount of such Lender's Commitment, and any extensions, renewals or amendments
to, or replacements of, the foregoing; and "Notes" means all such promissory
notes of any Borrower in an aggregate principal amount equal to the Total
Commitment.
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Notice of Issuance" has the meaning specified in Section 2.3(a).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.2(b).
"Obligation" means, to the extent arising hereunder, under the Notes
or under any other Loan Document, all Advances, loans, debts, liabilities,
covenants and duties owing by any Borrower or any Loan Party to the
Administrative Agent, any Lender, the Issuing Bank, or any Foreign Exchange
Bank of any kind or nature, present or future, whether or not for the payment
of money, whether (a) arising by reason of any (i) extension of credit, (ii)
opening or amendment of a Letter of Credit or payment of any draft drawn
thereunder, (iii) loan, (iv) guaranty, (v) indemnification, or (vi) Foreign
Exchange Contract between a Loan Party and a Foreign Exchange Bank, or (b)
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired (including any interest, fees and expenses that, but for the
provisions of the Bankruptcy Code, would have accrued).
"Other Taxes" has the meaning specified in Section 10.2(b).
"Paid In Full". "Pay In Full" and "Payment In Full" means, with
respect to the Obligations of any Borrower or Loan Party, (a) with respect to
each Letter of Credit issued for the account of any Borrower, the termination
and surrender for cancellation of such Letter of Credit, (b) with respect to
each Letter of Credit (other than those referred to in clause (a) above,
including, without limitation, any Letter of Credit with respect to which,
notwithstanding the termination thereof pursuant to its terms, the beneficiary
thereunder has a right to make drawings thereunder in accordance with
applicable law), the delivery of cash collateral which represents 107% of the
stated amount of such Letter of Credit, in such form requested by the Issuing
Bank for deposit in a cash collateral account, and the execution and delivery
of such documents and instruments as the Issuing Bank may request in order to
protect and perfect the Issuing Bank's Lien, (c) with respect to all other
Obligations (other than, as of any date of payment, Obligations which are
contingent and unliquidated and not then due and owing and which pursuant to
Section 9.11, survive the making and repayment of the Advances, the issuance
and discharge of Letters of Credit hereunder and the termination of the
Commitments hereunder), the payment in full in cash of such Obligations.
17
"Payment Taxes" has the meaning specified in Section 10.2(a).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced:
(a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section 5.2;
(b) Liens imposed by law, such as landlords',
materialmen's, mechanics', carriers', workmen's, warehouseman's and repairmen's
Liens and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30 days or
that are currently being contested in good faith by appropriate proceedings and
for which adequate reserves have been made in accordance with GAAP;
(c) pledges or deposits to secure obligations under
worker's compensation laws or similar legislation or to secure public or
statutory obligations;
(d) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
sublicenses, restrictions on the use of property or minor imperfections in
title thereto which, in the aggregate, are not material in amount, and which
customarily exist on properties of similarly situated corporations engaged in
similar activities and do not in any case materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of the
business of any Loan Party or any of their Subsidiaries;
(e) attachment, judgment and other similar Liens arising
in connection with court proceedings that do not cause an Event of Default
hereunder;
(f) Liens on any assets of any Subsidiary of Fresh
Produce which assets are acquired by any Borrower or any of its Subsidiaries
subsequent to the date of this Agreement, and which Liens were in existence on
or prior to the acquisition of such assets; provided that such Liens (i) were
not created in contemplation of such acquisition and (ii) do not extend to any
assets other than the assets so acquired and the proceeds thereof;
(g) the interests of lessors in any property leased by
any Loan Party or its Subsidiaries;
(h) Liens securing Debt permitted by Section 6.2(e),
(f), and (h) hereof;
(i) Liens in favor of the Administrative Agent pursuant
to the Security Documents; and
(j) the replacement, extension or renewal of any Lien
permitted by clauses (f) through (h) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor) of the
Debt secured thereby.
18
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge Agreements" means any pledge agreement, charge over shares or
similar agreement delivered on the Agreement Date by each of the Persons listed
under the heading of "Xxxxxxx" on Schedule P-l hereto, granting a Lien on the
Stock described on Schedule P-l hereto in favor of the Administrative Agent,
and any other agreement delivered after the Agreement Date (including by way of
supplement to any pledge agreement) by any Person granting a Lien on any Stock
owned by such Person, in each case as amended, supplemented or modified from
time to time in accordance with its terms.
"Pledged Account Agreements" means that certain Lock Box and Assigned
Account Agreement among the Administrative Agent, Fresh N. A. and Xxxxxx Trust
and Savings Bank of even date herewith, and any other similar agreement with a
similar financial institution delivered in connection with a lockbox account of
any Loan Party.
"Pledged Stock" means, collectively, all Stock (or any portion
thereof) of a Subsidiary that has been pledged to the Administrative Agent
pursuant to a Pledge Agreement.
"Pledgors" means each of Persons listed under the heading of "Pledgor"
on Schedule P-l hereof, and each other Person that at any time hereafter
pledges any Stock of any of its Subsidiaries to secure the Obligations or any
part thereof.
"Pro Rata Share" of any amount means, with respect to any Lender at
any time, an amount equal to (a) a fraction the numerator of which is the
amount of such Lender's Commitment at such time and the denominator of which is
the Total Commitment at such time, multiplied by (b) such amount.
"Rabobank" has the meaning specified in the introductory paragraph of
this Agreement.
"RCRA" means the Resource Conservation and Recovery Act, as amended.
"Real Property" means all real property in which any Loan Party has an
ownership interest or leasehold interest.
"Receivables" means any right to payment for goods sold or leased or
for services rendered, whether or not it has been earned by performance.
"Register" has the meaning specified in Section 9.7(c).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means, at any time, a Lender or Lenders owed or
holding not less than 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
19
aggregate principal amount of the Advances made by such Lender and outstanding
at such time, (b) such Lender's Pro Rata Share of the Letter of Credit Amount
outstanding at such time, and (c) such Lender's Unused Commitment at such time.
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 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.
"Restricted Payment" means any direct or indirect distribution,
dividend, or other payment to any Person on account of any general or limited
partnership interest in, or shares of Stock or other securities of such Person
and the payment of any management or similar fee to any Person.
"Restricted Purchase" means any payment by any Person on account of
the purchase, redemption, or other acquisition or retirement of any shares of
Stock or other securities of, such Person.
"Revolving Advance" means an advance under the Commitments pursuant to
Section 2.1 (a).
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Advances of the same Type made by the Lenders.
"S&P" means Standard & Poor's Ratings Services, a Division of The
McGraw Hill Companies, Inc., or any successor thereto.
"Secured Parties" means the Administrative Agent, the Lenders, any
Foreign Exchange Bank and the Issuing Bank.
"Security Agreements" means (a) that certain Security Agreement of
even date herewith among Fresh Produce, certain U.S. Subsidiaries of Fresh
Produce and the Administrative Agent, (b) those certain Floating and Fixed
Charges of even date herewith executed by each of Del Monte Fresh Produce (UK)
Ltd. and Del Monte Fresh Packaged Produce (UK) Ltd. in favor of the
Administrative Agent, (c) that certain Security Agreement executed by Del Monte
Fresh Produce International Inc. in favor of the Administrative Agent, (d) that
certain Security Agreement executed by Fresh Chile in favor of the
Administrative Agent, (e) that certain Intellectual Property Security Agreement
of even date herewith among Wafer, Fresh N.A., Fresh N.A. Sub, Fresh
International, Fresh Chile, Del Monte Fresh Produce Company, Del Monte Fresh
Produce (West Coast), Inc., Global Reefer Carriers, and the Administrative
Agent, and (f) any other agreement delivered on or after the Agreement Date
(including by way of supplement to any of the foregoing) by any Person granting
a Lien on the assets of such Person (including, without limitation, any Lien on
bank accounts of such Person) to secure all or any part of the Obligations, in
each case as amended, supplemented or modified from time to time in accordance
with its terms.
"Security Documents" means, individually and collectively, the Pledge
Agreements, the Pledged Account Agreements and the Security Agreements.
20
"Shipping Holdings" means Fresh Del Monte Ship Holdings Ltd., a Cayman
Islands company.
"Shipping Subsidiary" means any direct or indirect Subsidiary of Fresh
Produce which is a special purpose shipping company created to acquire and own
shipping vessels.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of such Person or any of its ERISA Affiliates and no Person other than such
Person and its ERISA Affiliates or (b) was so maintained and in respect of
which such Person or any of its ERISA Affiliates could have liability under
Section 4069 of ERISA in the event such plan has been or were to be terminated.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the tangible and intangible property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay such debts and liabilities as they mature and (d) such Person is
not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's tangible and intangible
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability; provided, however, that with respect to any Person organized under
the laws of the United Kingdom, "Solvent" shall mean that such Person is able
to pay its debts as they fall due, is not deemed unable to pay its debts as
they fall due within the meaning of Section 123(1) of the Insolvency Act of
1986 and that the value of its assets is greater than the value of its
liabilities, taking into account contingent and prospective liabilities.
"Stock" means, as applied to any Person, any stock, share capital,
partnership interests or other equity of such Person, regardless of class or
designation, and all warrants, options, purchase rights, conversion or exchange
rights, voting rights, calls or claims of any character with respect thereto.
"Sublicenses" means the Fresh International Sublicense and the Fresh
N. A. Sublicense.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding Stock (or the equivalent thereof)
having ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time Stock (or the equivalent
thereof) of any other class or classes of such corporation shall or might have
voting power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such partnership, joint venture or limited liability
company or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Swing Line Advance" means an advance made by the Swing Line Bank
pursuant to Section 2.1(b).
21
"Swing Line Bank" means Rabobank.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"Swing Line Sublimit" has the meaning specified in Section 2.1(b).
"Syndication Agent" has the meaning specified in the introductory
paragraph of this Agreement.
"Tangible Net Worth" means, at any time, an amount equal at such time
to the amount of total tangible assets of Fresh Produce and its Subsidiaries at
such time less the amount of total liabilities of Fresh Produce and its
Subsidiaries at such time, in each case determined on a Consolidated basis.
"Taxes" has the meaning specified in Section 10.2.
"Total Commitment" means the aggregate of all Lenders' Commitments not
to exceed U.S.$400,000,000 at any time, as such amount may be reduced pursuant
to Sections 2.5 and 2.10.
"Total Current Exposure" has the meaning specified in Section 2.1(a).
"Trademark" means the trademarks "DEL MONTE" and "DEL MONTE plus any
design or logotype", in any and all forms, as well as any and all of the
trademarks, applications for registration of trademarks and trademark
applications, to the extent such trademarks, any form thereof or any
applications relating thereto are licensed to Wafer, Fresh International or
Fresh N.A. or any other Loan Party pursuant to the Trademark Licenses.
"Trademark Licenses" means the Fresh International License, the Wafer
Licenses, the NAJ License, the Fresh International Sublicense and the Fresh
N.A. Sublicense.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the LIBO Rate.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect in the state or states referred to.
"United States" or "United States person" has the meaning specified in
Section 10.2.
"Unused Commitment" means, at any time,
(a) the Total Commitment, minus
(b) the sum of (i) the aggregate principal amount of all
Revolving Advances made by the Lenders and outstanding on such date, plus (ii)
the Letter of Credit Amount outstanding on such date.
"U.S." means the United States.
"U.S. dollars" or "U.S.$" means lawful money of the United States of
America.
22
"Wafer" means Wafer Limited, a Gibraltar corporation.
"Wafer Licenses" means the two License Agreements each dated as of
December 5, 1989 by and between DMC and Wafer, as amended by that certain
Amendment No. 1, effective as of October 12, 1992.
"Wholly-Owned Subsidiary" of any Person means (a) with respect to a
corporate Subsidiary all the outstanding Stock (or the equivalent thereof) of
which (other than directors' qualifying shares) is owned by such Person or one
or more Wholly-Owned Subsidiaries or (b) with respect to a partnership
Subsidiary all of the Stock of which, other than not more than a 2% Interest
owned by the general partner of such partnership Subsidiary, is owned by such
Person or one or more Wholly-Owned Subsidiaries.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.2 Construction. The headings, captions or
arrangements used in any of the Loan Documents are, unless specified otherwise,
for convenience only and shall not be deemed to limit, amplify or modify the
terms of the Loan Documents, nor affect the meaning thereof.
SECTION 1.3 Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding".
SECTION 1.4 Accounting Terms. (a) Except as otherwise
expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Administrative Agent
hereunder shall (unless otherwise disclosed to the Lenders in writing at the
time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with U.S. generally accepted accounting principles
("GAAP") applied on a basis consistent with those used in the preparation of
the latest financial statements furnished to the Lenders hereunder. All
calculations made for the purposes of determining compliance with this
Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the annual or quarterly
financial statements furnished to the Lenders pursuant to Section 5.16 most
recently prior to or concurrently with such calculations unless (i) either (x)
Fresh Produce shall have objected to determining such compliance on such basis
at the time of delivery of such financial statements or (y) the Required
Lenders shall so object in writing within 180 days after delivery of such
financial statements and (ii) Fresh Produce and the Required Lenders have not
agreed upon amendments to the financial covenants contained herein to reflect
any change in such basis, in which event such calculations shall be made on a
basis consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made.
(b) Fresh Produce shall deliver to the Administrative
Agent, at the same time as the delivery of any annual or quarterly financial
statement under Section 5.16, (i) a description in reasonable detail of any
material variation between the application of accounting principles employed in
the preparation of such statement and the application of accounting principles
employed in the preparation of the next preceding annual or quarterly financial
statements as to
23
which no objection has been made in accordance with the last sentence of
subsection (a) above, and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
SECTION 1.5 Currency Equivalents Generally. For
purposes of determining in U.S. dollars any amount outstanding in another
currency, the non-U.S. currency equivalent in U.S. dollars of such currency on
the date of any such determination shall be used.
ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.1 Extensions of Credit.
(a) Revolving Advances. Each Lender agrees, severally
and not jointly, on the terms and conditions hereinafter set forth, to make
Revolving Advances in U.S. dollars to the Borrowers from time to time on any
Business Day during the period from the date hereof until the Maturity Date in
an amount for each such Revolving Advance not to exceed such Lender's Pro Rata
Share of the Unused Commitment at such time; provided that at such time, the
sum of (i) the aggregate principal amount of all Revolving Advances, (ii) the
aggregate principal amount of all Swing Line Advances, and (iii) the Letter of
Credit Amount (the sum of clauses (i), (ii) and (iii) being the "Total Current
Exposure"), after giving effect to such Borrowing, shall not exceed the Total
Commitment. Within the limits of the Unused Commitment, the Borrowers may
borrow under this Section 2.1(a), prepay or repay pursuant to Section 2.5 and
reborrow under this Section 2.1(a).
(b) Swing Line Advances. The Borrowers may request the
Swing Line Bank to make, and the Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the Borrowers from
time to time on any Business Day during the period from the date hereof until
the Maturity 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 Commitment. No Swing Line Advance shall be used for the purpose of
funding the payment of principal of any other Swing Line Advance. Each Swing
Line Advance shall be made as a Base Rate Advance. Within the limits of the
Swing Line Sublimit, the Borrowers may borrow under this Section 2.1(b), prepay
or repay pursuant to Section 2.5 and reborrow under this Section 2.1(b).
(c) Letters of Credit. The Issuing Bank agrees, on the
terms and conditions hereinafter set forth, to issue letters of credit (each, a
"Letter of Credit") denominated in U.S. dollars for the account of any Borrower
from time to time on any Business Day from and after the date of the initial
Advance until the Maturity 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 Commitment. Each Letter of Credit
shall have an expiry date which is 365 days or less immediately following the
date of the issuance of such Letter of Credit, 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
24
L/C Cash Collateral Account an amount in immediately available funds equal to
the face amount of such Letter of Credit. Subject to the limits referred to
above, any Borrower may request the issuance of Letters of Credit under this
Section 2.1(c), repay any Revolving Advances resulting from drawings thereunder
pursuant to Section 2.3(b) and request the issuance of additional Letters of
Credit under this Section 2.1(c). The reimbursement obligation under the Letter
of Credit shall be payable in U.S. dollars in accordance with Section 2.3(b).
All amounts paid by the Issuing Bank under a Letter of Credit shall,
immediately upon the making of such payment and without the necessity of
further act or evidence, constitute Revolving Advances to the requesting
Borrower by the Issuing Bank hereunder for all purposes of this Agreement
(including, without limitation, the provisions of Section 2.4 and Section 2.6),
which shall be deemed made by the Issuing Bank, and the Issuing Bank shall be
entitled to all of the benefits of this Agreement and the other Loan Documents
with respect to such Revolving Advances. Each Letter of Credit issued on behalf
of any Borrower may be cancelled before its expiration date without penalty if
the beneficiary of the Letter of Credit delivers the original Letter of Credit
to the Issuing Bank. Each Letter of Credit issued under the Existing Credit
Agreement and outstanding as of the Agreement Date is listed on Schedule 2.1(c)
hereto, and such existing Letters of Credit shall automatically be deemed
to have been issued and outstanding under this Agreement as of the Agreement
Date.
SECTION 2.2 Making the Advances.
(a) Any Revolving Advance shall, at the option of the
Borrowers, be made either as a Base Rate Advance or as a LIBO Rate Advance
(except for the first three Business Days after the Agreement Date, during
which period the Advances 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 2.1(c) hereof, or (C) if, at the time of such Advance, a Default or an
Event of Default has occurred and is continuing. Each Revolving Advance shall
be made, to the extent that a Lender is so obligated under Section 2.1, on
written notice from the Borrower requesting such Revolving Advance to the
Administrative Agent delivered before 11:00 A.M. (New York City time) on, (i)
in the case of a LIBO Rate Advance, a Business Day which is at least three (3)
Business Days prior to the first day of the Interest Period for such LIBO Rate
Advance, and (ii) in the case of a Base Rate Advance, on or before the Business
Day for the making of such Advance, in each case, specifying (v) whether the
Revolving Advance is a new borrowing, or a continuation or Conversion of, a
Revolving Advance under the Commitments, (w) the Type of Revolving Advance to
be made, (x) the date on which such Revolving Advance is to be made, (y) the
amount of such Revolving Advance (which amounts shall be allocated by the
Administrative Agent among the Lenders, on a pro rata basis in accordance with
each Lender's Pro Rata Share of such Revolving Advance), and (z) in the case of
proposed LIBO Rate Advances, the Interest Period therefor (which Interest
Period shall be the same for each Lender) (such written notice to be
substantially in the form of Exhibit C attached hereto, and being hereinafter
referred to as the "Notice of Borrowing"). Each such Notice of Borrowing shall
be sent by electronic mail or facsimile and signed by the chief financial
officer of any of the Borrowers or Vice President of Corporate Finance or the
Senior Director of Treasury or corporate controller of Del Monte Fresh Produce
Company.
25
Each Lender making a Revolving Advance shall, before 1:00 P.M. (New
York City time) on the date such Revolving Advance is to be made, make
available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's Pro Rata Share of such Advance. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article 3, the Administrative Agent will make such funds 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 electronic mail or
facsimile, specifying therein the requested (i) date on which such Swing Line
Advance is to be made and (ii) amount of such Swing Line Advance. The Swing
Line Bank, upon fulfillment of the applicable conditions set forth in Article
3, will make the amount thereof available, no later than 4:00 P.M. (New York
City time) on such Business Day, to the requesting Borrower in same day funds
by crediting the account of such Borrower set forth in the Notice of Swing Line
Borrowing pursuant to which the Swing Line Advance is being made. At any time
the Swing Line Bank makes a Swing Line Advance, each 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 Swing
Line Advance and shall be obligated to fund such participation as a Revolving
Advance at such time and in the manner provided below. Each such Lender's
obligation to participate in, purchase and fund such participating interests
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender or any other Person may
have against the Swing Line Bank or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default or an Event of Default or the
termination of the Commitments; (C) any adverse change in the condition
(financial or otherwise) of the requesting Borrower or any other Person; (D)
any breach of this Agreement by any Borrower or any other Lender; or (E) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing. Each Borrower hereby consents to each such sale and
assignment. Each Lender agrees to fund its Pro Rata Share of an outstanding
Swing Line Advance on (X) the Business Day on which demand therefor is made by
the Swing Line Bank, provided that such demand is made not later than 11:00
A.M. (New York City time) on such Business Day, or (Y) the first Business Day
next succeeding such demand if such demand is made after such time. Upon any
such assignment by the Swing Line Bank to any other Lender of a participation
in a Swing Line Advance, the Swing Line Bank represents and warrants to such
other 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 Lender shall not have so made the amount of such participation in such
Swing Line Advance available to the Administrative Agent, such 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 Lender shall pay to the Administrative Agent such amount
for the account of the Swing Line Bank on any
26
Business Day, such amount so paid in respect of principal shall constitute a
Revolving Advance made by such 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 3, including, without limitation,
any loss (excluding loss of anticipated profits) or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Lender (and the Administrative Agent in the case of Advances by the
Administrative Agent pursuant to Section 2.2(d)) to fund such Advance when such
Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Revolving 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 2.2 and the
Administrative Agent may, in reliance upon such assumption, make available to
the requesting Borrower on such date a corresponding amount. If and to the
extent that such 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 2.6 to such Revolving 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.
(f) Notwithstanding anything in this Agreement to the
contrary, LIBO Rate Advances may not be outstanding as part of more than 10
separate Borrowings in the aggregate. Each LIBO Rate Advance shall be in an
amount of U.S.$5,000,000 or an integral multiple of U.S.$100,000 in excess
thereof. Each Base Rate Advance (other than the initial Base Rate Advance
hereunder) shall be in an amount of U.S. $1,000,000 or an integral multiple of
U.S. $100,000 in excess thereof.
SECTION 2.3 Issuance of and Drawings and Reimbursement
Under Letters of Credit.
(a) Request for Issuance.
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(i) Each Letter of Credit shall be issued upon notice,
given not later than 11:00 A.M. (New York City time) on the second
Business Day prior to the date of the proposed issuance of such Letter
of Credit, by the requesting Borrower to the Administrative Agent. The
Administrative Agent shall give to the Issuing Bank prompt notice
thereof by telex, telecopier or electronic mail of such Borrower's
request for the issuance of a Letter of Credit. Each such notice of
issuance of a Letter of Credit (a "Notice of Issuance") shall be by
telex, telecopier or electronic mail, specifying therein the requested
(A) type of Letter of Credit, (B) date of such issuance (which shall
be a Business Day), (C) stated principal amount of such Letter of
Credit, (D) expiration of such Letter of Credit, (E) name and address
of the beneficiary of such Letter of Credit and (F) form of any such
Letter of Credit.
(ii) If the requested form of such Letter of Credit is
acceptable to the Issuing Bank in its sole discretion, the Issuing
Bank will, upon fulfillment of the applicable conditions set forth in
Article 3, make such Letter of Credit available to the requesting
Borrower at its office referred to in Section 9.2 or as otherwise
agreed with such Borrower in connection with such issuance. At any
time the Issuing Bank issues a Letter of Credit, each Lender (other
than the Issuing Bank) shall be deemed without further action by any
Person, to have purchased from the Issuing Bank an unfunded
participation in such outstanding Letter of Credit in an amount equal
to such Lender's Pro Rata Share of the stated principal amount of such
Letter of Credit and shall be obligated to fund such participation in
the Revolving Advance resulting from any drawing under such Letter of
Credit at such time and in the manner provided below. At the request
of any 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 Advance by the Issuing
Bank bearing interest at the Base Rate in the amount of such draft. In the
event of a payment of any draft drawn under any Letter of Credit issued by the
Issuing Bank, each other Lender shall be deemed to have purchased from the
Issuing Bank, and the Issuing Bank shall sell and assign to each such other
Lender, such other Lender's Pro Rata Share of such outstanding Revolving
Advance as of the date of such purchase, by making available for the account of
its Applicable Lending Office to the Administrative Agent for the account of
the Issuing Bank, by deposit to the Administrative Agent's Account, in same day
funds, an amount equal to the portion of the outstanding principal amount of
such Revolving Advance to be purchased by such Lender. Each Borrower hereby
consents to each such sale and assignment. Each Lender agrees to purchase its
Pro Rata Share of an outstanding Revolving Advance on (i) the Business Day on
which demand therefor is made by the Issuing Bank, provided notice of such
demand is given not later than 11:00 A.M. (New York City time) on such Business
Day or (ii) the first Business Day next succeeding such demand if notice of
such demand is given after such time. Upon any such assignment by the Issuing
Bank to any other Lender of a portion of such Revolving Advance, the Issuing
Bank represents and warrants to such other Lender that it is the legal and
beneficial owner of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Revolving Advance, the Loan Documents or the Borrower for the account of which
such Letter of Credit was issued. If and to the extent that any Lender shall
not have so made the amount of its interest in such Revolving Advance available
to the Administrative Agent, such 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
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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 Lender
of its Pro Rata Share of the Revolving Advances made by the Issuing Bank during
the preceding month pursuant to this Section 2.3(b) and shall pay to each such
Lender in respect of the amount of any funded participations of such Lender in
such Revolving Advances outstanding at any time during the preceding month, an
amount equal to such Lender's Pro Rata Share of the interest payable on such
Revolving Advances only to the extent that such amounts shall have been paid to
the Issuing Bank by the Borrowers.
(c) Obligations Absolute. The payment obligations of the
Borrowers under this Agreement with respect to Letters of Credit and any
agreement or instrument relating to any Letter of Credit shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any other agreement or instrument relating thereto (this
Agreement and all of the foregoing being, collectively, the "L/C
Related Documents");
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations of any
Borrower in respect of any L/C Related Document or any other amendment
or waiver of or consent to or departure from all or any of the L/C
Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that any Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any Persons
for whom any such beneficiary or any such transferee may be acting),
any Lender or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any
unrelated transaction;
(iv) any statement or any other document presented under
a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(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.
SECTION 2.4 Fees.
(a) Administrative Agent. The Borrowers agree to pay to
the Administrative Agent for its own account a fee separately agreed
between the Borrowers and the Administrative Agent and such other fees
required by the Fee Letter.
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(b) Commitment Fee. The Borrowers agree to pay to the
Administrative Agent for the account of each Lender a commitment fee on such
Lender's average daily Pro Rata Share of the Unused Commitment from the date
hereof until the Maturity Date at a rate per annum equal to the Applicable
Margin for the Unused Commitment in effect from time to time, payable in
arrears on the first day of the immediately following calendar quarter during
the term of such Lender's Commitment, commencing on April 1, 2003, and on the
Maturity Date; provided, however, that any commitment fee accrued with respect
to the Commitment of a Defaulting Lender during the period prior to the time
such Lender became a Defaulting Lender and unpaid at such time shall not be
payable by the Borrowers so long as such Lender shall be a Defaulting Lender
except to the extent that such commitment fee shall otherwise have been due and
payable by the Borrowers prior to such time; and provided further that no
commitment fee shall accrue on the Commitment of a Defaulting Lender so long as
such Lender shall be a Defaulting Lender.
(c) Letter of Credit Fees. In addition, the requesting
Borrower shall, in consideration of the issuance by the Issuing Bank of each
Letter of Credit and in addition to other charges payable by each Borrower to
any of the Lenders under this Agreement, (i) pay to the Administrative Agent
for the account of the Issuing Bank, (x) such fee as may be agreed to between
Fresh Produce and the Issuing Bank from time to time in connection with each
Letter of Credit issued hereunder, which fee shall be due and payable quarterly
in arrears on the first day of each calendar quarter during which such Letter
of Credit was outstanding (unless a different payment schedule is agreed to
between Fresh Produce and the Issuing Bank) and, if then unpaid, on the
Maturity Date, and (y) the amount of all usual and customary fees and expenses
of the Issuing Bank for issuing, amending or renewing any Letter of Credit, and
(ii) pay to the Administrative Agent, for the account of the 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 Lenders in
arrears on the first day of each calendar quarter in connection with the
Letters of Credit outstanding during the previous quarter, and, to the extent
that such amounts remain owing and unpaid, on the Maturity Date.
SECTION 2.5 Reduction of Commitments; Voluntary and
Mandatory Prepayment.
(a) Reduction of Commitments. The Borrowers shall have
the right, upon at least two Business Days' notice to the Administrative Agent,
to terminate irrevocably in whole or reduce in part the unused portion of the
Commitments on a pro rata basis (which shall include the termination in whole
or the reduction in part of the obligation of such Lender to make Revolving
Advances to the Borrowers in the amount specified in Section 2.1(a) in the
event of such termination or reduction); provided, however, that each partial
reduction shall be in the amount of U.S.$1,000,000 or an integral multiple
thereof. The Administrative Agent shall give notice of such reduction to the
Lenders.
(b) Optional Prepayments. The Borrowers may, upon at
least three Business Days' notice to the Administrative Agent, prepay pro rata
among the Lenders the outstanding amount of any Advance (other than any Swing
Line Advance or Revolving Advance made by the Issuing Bank (resulting from a
drawing under a Letter of Credit) not participated to any other Lender, in
which case, such prepayment shall not be made on a pro rata basis) in whole or
in part with accrued interest to the date of such prepayment on the amount
prepaid; provided, however, that in the event that any Lender receives payment
of the principal of any LIBO Rate Advance other than on the last day of the
Interest Period relating to such LIBO Rate Advance (whether due to prepayments
made
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by any Borrower, or due to acceleration of the Advances, or due to any other
reason), the Borrowers shall pay to such Lender on demand any amounts owing
pursuant to Section 10.3, and provided, further, that each optional prepayment
shall be in the amount of at least U.S.$1,000,000.
(c) Mandatory Prepayments.
(i) On any date on which the Total Current Exposure
shall exceed the Total Commitment, the Borrowers shall prepay
Revolving Advances in the aggregate principal amount equal to such
excess. Additionally, each Borrower shall repay the aggregate unpaid
principal amount of all Revolving Advances to it of each Lender on the
Maturity 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.
SECTION 2.6 Interest.
(a) Interest. Each Borrower shall pay interest on the
unpaid principal amount of each Advance to it owing to each Lender from the
date of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, (x) with respect to any Base Rate
Advance other than a Swing Line Advance, a rate per annum equal at all
times to the sum of (A) the Base Rate in effect from time to time plus
(B) the Applicable Margin in effect with respect to Base Rate Advances
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 quarterly on the first day
of the immediately following calendar quarter during such periods, (2)
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 quarter, (2) upon the payment or prepayment thereof, and (3)
on the Maturity 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) the
Applicable Margin from time to time in effect for LIBO Rate Advances,
payable in arrears on (1) the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from
the first day of such Interest Period, (2) the day such Advances shall
be paid in full, and (3) the Maturity Date.
(b) Default Interest. Each Borrower shall pay interest
on (i) the unpaid principal amount of each Advance owing to each Lender which
is not paid when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall be paid
in full and on demand, at a rate per annum equal at all times to the applicable
Default Rate and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other
31
amount payable hereunder that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full and on demand, at a rate
per annum equal at all times to the applicable Default Rate.
SECTION 2.7 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.
(b) 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.
(c) All computations of interest and fees (including,
without limitation, 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 2.9 hereof. All fees hereunder shall be
fully earned when due and nonrefundable when paid.
(d) 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 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.
(e) 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.
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SECTION 2.8 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) distributed other than in
accordance with the provisions of this Agreement:
(a) on account of Obligations due and payable to such
Lender hereunder at such time in excess of its Pro Rata 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 amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.8
may, to the fullest extent permitted by law, exercise all 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 2.9 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
33
been made pursuant to this Section 2.9(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 2.1, 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 2.9.
(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 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 2.9.
(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
34
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 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 2.9 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 2.10 Replacement of Lender in Event of Adverse
Condition. If any Borrower becomes obligated to pay additional amounts to any
Lender pursuant to Section 10.1 or Section 10.2 or to Convert the LIBO Rate
Advances into Base Rate Advances pursuant to Section 10.1 as a result of any
condition described in such Sections which is not generally applicable to all
Lenders, or if any Lender shall become a Defaulting Lender then, unless the
Lender to which such conditions apply has theretofore taken steps to remove or
cure, and has removed or cured, the
35
conditions creating the cause for such obligation to pay such additional
amounts or to make such Conversion, the Borrowers may, within six months of
being notified of such condition, (a) designate an Eligible Assignee which is
willing to purchase all rights and obligations of such Lender and which is
acceptable (such acceptance not to be unreasonably withheld) to the
Administrative Agent (such Eligible Assignee being herein called a "Replacement
Lender") to purchase for cash all of the rights and obligations of such Lender
under this Agreement and all of such Lender's rights 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 Commitment
under the Loan Documents or (b) prepay in whole the aggregate outstanding
amount of all Advances owing to such Lender, including all principal, accrued
but unpaid interest thereon and all amounts owing pursuant to Section 9.4,
whereupon the Commitment of such Lender shall be irrevocably terminated in
whole (which shall include the termination in whole of the obligation of such
Lender to make Advances to the Borrowers), and the Total Commitment shall be
reduced in the amount of such Lender's Commitment. 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 2.11 Application of Payments. Subsequent to the
acceleration of the Obligations under Section 7.2 hereof, payments and
prepayments with respect to the Obligations made to the Administrative Agent,
the Lenders, the Issuing Bank, the Swing Line Bank or otherwise received by the
Administrative Agent, any Lender, the Issuing Bank or the Swing Line Bank (from
realization on Collateral or otherwise, but excluding any funds held in the L/C
Cash Collateral Account which shall be applied to, or held to pay, the Letter
of Credit Amount as set forth in Section 7.3) shall be distributed in the
following order of priority: FIRST, to the reasonable costs and expenses
(including reasonable attorneys' fees and expenses), if any, incurred by the
Administrative Agent, any Lender, the Issuing Bank or the Swing Line Bank in
the collection of such amounts under this Agreement or of the Loan Documents,
including, without limitation, any costs incurred in connection with the sale
or disposition of any Collateral; SECOND, to the payment of interest then due
and payable on the Swing Line Advances; THIRD, to the payment of the principal
of any Swing Line Advances then outstanding; FOURTH, to any fees then due and
payable to the Administrative Agent under this Agreement or any other Loan
Document; FIFTH, to any fees then due and payable to the Lenders and the
Issuing Banks under this Agreement; SIXTH, to the payment of interest then due
and payable on the Revolving Advances; SEVENTH, to the payment of principal of
the Revolving Advances; EIGHTH, to the extent of any Letter of Credit
Obligations then outstanding, to the L/C Cash Collateral Account; and NINTH, to
any other Obligations not otherwise referred to in this Section, including any
obligations owed to a Foreign Exchange Bank under Foreign Exchange Contracts
with a Loan Party.
ARTICLE 3
CONDITIONS
36
SECTION 3.1 Conditions Precedent to Initial Advance and
Issuance of Letters of Credit. The obligation of any of the Lenders to make an
initial Advance or the Issuing Bank to issue any initial Letter of Credit in
each case on the earlier to occur of the date of such initial Advance, or
initial issuance, is subject to the following conditions precedent being
satisfied in a manner satisfactory to the Administrative Agent and the Lenders,
in their sole discretion:
(a) The Lenders shall be satisfied (i) in the event such
initial Advance or initial issuance occurs on the date hereof with, or (ii) in
the event such initial Advance or initial issuance occurs on any date after the
date hereof, that there shall have been no material change since the date
hereof with respect to, (x) the corporate and legal structure and
capitalization of each Loan Party and its Subsidiaries, including, without
limitation, the charter, bylaws or equivalent corporate documents and any
shareholders' agreement and (y) the management and operations of the Loan
Parties and their Subsidiaries.
(b) 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 Agreement,
any Note, any other Loan Document or the consummation of the transactions
contemplated hereby.
(d) Each of the Lenders shall have completed a due
diligence investigation of Fresh Produce, the other Loan Parties and their
respective Subsidiaries in scope, and with results, satisfactory to each of the
Lenders, and the results of such investigation shall be acceptable to each of
the Lenders in their sole discretion.
(e) The Administrative Agent, for the benefit of the
Secured Parties, shall have been granted by the Loan Parties a perfected
first-priority Lien in all of the Collateral (subject to the Permitted Liens),
and all filings or other action necessary to perfect such Liens on the Pledged
Stock and such Liens on all other Collateral with respect to which a security
interest may be perfected by filing (whether pursuant to a filing under the
Uniform Commercial Code, a filing with the Companies House or otherwise) shall
have been duly completed in the case of Security Agreements governed by English
law or granted by a company incorporated in the United Kingdom (other than the
perfection of Liens on Commercial Tort Claims (as defined in the Security
Agreements governed by US law) that have not yet been described on Schedule 3
of the Security Agreements governed by US law).
(f) The Loan Parties shall have obtained all necessary
approvals required from regulatory authorities and others, if any, in
connection with the transactions contemplated hereby (without the imposition of
any conditions that are not acceptable to the Lenders).
(g) On the Initial Borrowing Date, there shall exist (i)
no material default by any Loan Party in any Material Contract and all Material
Contracts shall be in full force and effect, nor (ii) to the knowledge of any
Loan Party, any material default in compliance by such Loan Party with any
material Applicable Laws or Material Surviving Debt.
37
(h) In the reasonable opinion of the Administrative
Agent, there shall have occurred no material adverse change in (i) the
properties, business, prospects, operation or condition (financial or
otherwise) of Fresh Produce and its Subsidiaries taken as a whole or (ii) loan
syndication or financial conditions generally or in the syndication, financial
or business conditions in any of the jurisdictions in which a Loan Party is
organized, including, without limitation, material adverse changes in the
regulatory or business environment.
(i) The Lenders shall have received such additional
information not previously provided by the Loan Parties as the Lenders deem
reasonably necessary relating to properties of the Loan Parties located in the
United States, and as to any material environmental hazards or liabilities
relating thereto to which any Loan Party or any of its Subsidiaries may be
subject.
(j) The Lenders shall have received true and correct
copies of the Trademark Licenses and the Sublicenses as in effect as of the
Agreement Date.
(k) The Lenders shall have received evidence
satisfactory to the Administrative Agent that adequate lockbox accounts have
been established by the Borrowers and each other Loan Party which has granted a
security interest to the Lenders pursuant to a Security Agreement in
Receivables owned by such Loan Party, in locations satisfactory to the
Administrative Agent.
(1) The Administrative Agent shall have received on or
before the Initial Borrowing Date the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Lenders (unless
otherwise specified) and (except for the Notes) in sufficient copies for each
Lender:
(i) The Notes payable to the order of the Lenders,
respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of each Borrower and each other Loan Party approving this
Agreement, the Notes, each other Loan Document and each L/C Related
Document 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 Agreement, the Notes, each
other Loan Document and each L/C Related Document.
(iii) 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 Initial Borrowing Date) by an appropriate governmental
official as being a true and correct copy thereof.
(iv) 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 non-U.S.
jurisdiction in which such Borrower or Loan Party is organized), dated
reasonably near the Initial Borrowing Date, 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.
38
(v) 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
Initial Borrowing Date (the statements made in which certificate shall
be true on and as of the Initial Borrowing Date), certifying as to (A)
the absence of any amendments to the charter of such Person since the
date of the certificate referred to in Section 3.1(l)(iv); (B) a true
and correct copy of the bylaws of such Person as in effect on the
Initial Borrowing Date; and (C) the due incorporation and good
standing (or the reasonable equivalent thereof, if any) of such Person
as a corporation organized under the laws of the jurisdiction of its
organization, and the absence of any proceeding for the dissolution or
liquidation of such Person.
(vi) 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 Agreement, the
Notes and each other Loan Document to which it is or is to be a party
and the other documents to be delivered hereunder and thereunder.
(vii) The Security Agreements and Pledge Agreements, duly
executed by the parties thereto, together with (A) certificates, if
any, representing the shares of Pledged Stock (or the equivalent
thereof) of each of the Subsidiaries to be pledged pursuant thereto,
accompanied by undated stock powers (or the equivalent thereof)
executed in blank; (B) executed financing statements and other similar
documents in proper form for filing under the Uniform Commercial Code
of any state of the United States and any similar laws of any
jurisdictions outside the United States, that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the
Liens created by the Security Documents, covering the Collateral
described in the Security Documents; (C) evidence of the completion of
all other recordings, registrations and filings of or with respect to
the Security Documents that the Administrative Agent may deem
necessary or desirable in order to perfect and protect the Liens
created thereby; (D) evidence of the insurance required by the terms
of the Security Agreements or under this Agreement; and (E) evidence
that all other action that the Administrative Agent may deem necessary
or desirable in order to perfect and protect the Liens created by the
Security Documents has been taken.
(viii) This Agreement, duly executed by the parties hereto.
(ix) The Fee Letter duly executed by the Borrowers.
(x) Each of the Guaranty Agreements duly executed by
each Person specified on Schedule G-l, each such Guaranty Agreement to
be in form and substance satisfactory to the Administrative Agent, and
guaranteeing the obligations specified in such Schedule.
(xi) A Pledged Account Agreement, in form and substance
satisfactory to the Administrative Agent, duly executed by each
provider of a lockbox account of Fresh N.A.
(xii) Such financial, business and other information
regarding each Loan Party as the Lenders shall have reasonably
requested, including, without limitation, information as to possible
contingent liabilities, tax matters, environmental matters,
obligations under
39
ERISA, collective bargaining agreements and other arrangements with
employees, the audited annual Consolidated financial statements for
the fiscal year ended December 27, 2002, of Fresh Produce and its
Subsidiaries, the budget for the fiscal year commencing on or about
January 1, 2003, 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 four years commencing on or about
January 1, 2003, in each case in form and substance satisfactory to
the Lenders.
(xiii) A favorable opinion of (A) Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, counsel to the Loan Parties, (B) general counsel for the
Loan Parties, (C) Brazilian counsel to the Loan Parties, (D) British
Virgin Islands counsel to the Loan Parties, (E) Costa Rican counsel to
the Loan Parties, (F) Gibraltar counsel to the Loan Parties, (G)
Guatemalan counsel to the Loan Parties, (H) Hong Kong counsel to the
Loan Parties, (I) United Kingdom counsel to the Loan Parties, (J)
Liberian counsel to the Loan Parties, (K) Netherlands counsel to the
Loan Parties, (L) Netherlands Antilles counsel to the Loan Parties,
(M) Cayman Islands counsel to the Loan Parties, (N) Chilean counsel to
the Loan Parties, (O) Japanese counsel to the Loan Parties, and (P)
such other counsel as the Administrative Agent may reasonably request.
(xiv) Such other documents, instruments and certificates
as the Administrative Agent may reasonably request.
(m) The Borrowers shall have paid all accrued fees and
expenses of the Administrative Agent and the Lenders as required to be paid on
the Initial Borrowing Date under the terms of the fee letter executed by the
Borrowers and the Administrative Agent.
SECTION 3.2 Conditions Precedent to Each Advance and
Issuance of Letters of Credit. The obligation of the Lenders to make each
Advance (including the initial Advance) (other than a Revolving Advance made by
the Issuing Bank pursuant to Section 2.3(b)), and to issue a Letter of Credit
shall be subject to the further conditions precedent that on the date of such
Advance or issuance, as the case may be:
(a) the following statements shall be true (and the
receipt by any Borrower of the proceeds of such Advance shall be deemed to
constitute a representation and warranty by such Borrower that such statements
are true on such date):
(i) The representations and warranties contained in
Article 4 of this Agreement, and in each of the Security Documents,
are correct in all material respects on and as of the date of such
Advance or issuance in accordance with Section 4.2 hereof; and
(ii) No event has occurred and is continuing, or would
result from such Advance or issuance, which constitutes a Default or
Event of Default; and
(b) the Administrative Agent shall have received such
other approvals, opinions or documents as any Lender through the Administrative
Agent may reasonably request.
SECTION 3.3 Determinations Under Section 3.1. For
purposes of determining compliance with the conditions specified in Section
3.1, each Lender shall be deemed to have
40
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lenders unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender prior to the initial
Advance specifying its objection thereto and such Lender shall not have made
available to the Administrative Agent such Lender's ratable portion of such
Advance.
SECTION 3.4 Conditions Subsequent. Fresh Produce shall
cause to be delivered to the Administrative Agent, as soon as reasonably
practicable after the court approval of the final settlement of and the
dismissal of all cases relating thereto, or entry of a final non-appealable
order in, the Nordeste Litigation, but in no event later than 120 days
thereafter, Pledge Agreements duly executed by Fresh International and Fresh
B.V., pledging to the Administrative Agent 100% of the Stock of Fresh Brasil,
and a Guaranty Agreement executed by Fresh Brasil, together with a favorable
opinion of all applicable counsel (including Brazilian counsel) to the Loan
Parties in connection therewith, both in form and substance satisfactory to the
Administrative Agent; provided, however, the foregoing pledge and guaranty
shall not be required to the extent such final order requires the transfer of
the Fresh Brasil Stock to the plaintiffs in such litigation or any other party
that is not an Affiliate of Fresh Produce.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of the
Borrowers. In order to induce the Administrative Agent, the Lenders and the
Issuing Bank to enter into this Agreement and to extend credit to each
Borrower, each Borrower hereby agrees, represents, and warrants as follows:
(a) Organization; Power, (i) Each Loan Party (x) is a
corporation, partnership or other legal entity duly organized or formed,
validly existing and in good standing (if applicable) under the laws of the
jurisdiction of its organization, (x) is duly qualified and in good standing
(if applicable) as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it to
so qualify or be licensed except where the failure to so qualify or be licensed
would not reasonably be likely to have a Material Adverse Effect, and (z) has
all requisite power and authority and has all material licenses,
authorizations, consents and approvals necessary to own or lease and operate
its properties, to conduct its business as now being conducted and as proposed
to be conducted and to enter into and carry out the terms of the Loan Documents
to which it is a party, and (ii) each Subsidiary of each Loan Party, (x) is a
corporation, partnership or other legal entity duly organized or formed,
validly existing and in good standing (if applicable) under the laws of the
jurisdiction of its organization, (y) is duly qualified and in good standing
(if applicable) as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it to
so qualify or be licensed and (z) has all requisite power and authority and has
all material licenses, authorizations, consents and approvals necessary to own
or lease and operate its properties, to conduct its business as now being
conducted and as proposed to be conducted and to enter into and carry out the
terms of the Loan Documents to which it is a party, except where the failure by
such Subsidiary to satisfy the requirement of clause (x), (y) or (z) above
would not have a Material Adverse Effect.
41
(b) Subsidiaries. Set forth on Schedule 4.1(b) is a
complete and accurate list of all Subsidiaries of each Loan Party, as of the
date hereof showing (as to each such Subsidiary) the jurisdiction of its
incorporation or formation, the number of shares of each class of Stock
authorized, and the number outstanding, on the date hereof and the percentage
of the outstanding shares of each such class owned (directly or indirectly) by
such Loan Party. All of the outstanding Stock of all of the Subsidiaries of
Fresh Produce owned by Fresh Produce or any of its Subsidiaries has been
validly issued, is fully paid and non-assessable and is owned by Fresh Produce
or one or more of its Subsidiaries, (i) with respect to the outstanding Stock
constituting Collateral, free and clear of all Liens, except for Liens under
the Security Documents and (ii) with respect to the outstanding Stock not
constituting Collateral, to the best of such Loan Party's knowledge, free and
clear of all Liens except Permitted Liens.
(c) Joint Ventures. Set forth on Schedule 4.1(c) is a
complete and accurate list of all joint ventures of Fresh Produce and/or any of
its Subsidiaries and any third Person as of the date hereof showing (as to each
such joint venture) the other Person or Persons parties thereto, a brief
description of the purpose thereof, and the percentage of the outstanding Stock
of such joint venture owned on the date hereof by Fresh Produce or any of its
Subsidiaries and any outstanding options, warrants, rights of conversion or
purchase and similar rights on the date hereof with respect thereto.
(d) Authorization; No Conflict. The execution, delivery
and performance by each Loan Party of this Agreement, the Notes, each other
Loan Document and each L/C Related Document 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 action (corporate
or otherwise), and do not (i) contravene such Loan Party's charter or by-laws;
(ii) violate any Applicable Law (including, without limitation, to the extent
applicable, 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); (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 (including the
Material Contracts); 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. No Loan Party or any of its Subsidiaries is in violation of any
such Applicable Law or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the violation or
breach of which could have a Material Adverse Effect.
(e) No Authorizations Needed. 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 (i) the
due execution, delivery, recordation, filing or performance by any Loan Party
of this Agreement, the Notes, any other Loan Document or any L/C Related
Document to which it is or is to be a party, or for the consummation of the
transactions hereunder; or (ii) (A) the grant by any Loan Party of the Liens
granted by it pursuant to the Security Documents; (B) the perfection or
maintenance of the Liens created by the Security Documents with respect to the
Pledged Stock and with respect to other Collateral in which a security interest
may be perfected by filing, whether pursuant to a filing under the Uniform
Commercial Code, with the Companies House or otherwise (other than the
perfection of Liens on Commercial Tort Claims (as defined in the Security
Agreements governed by US law) that have not yet been described on Schedule 3
to the Security
42
Agreements governed by US law); or (C) the exercise by the Administrative Agent
of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Security Documents, except for the authorizations,
approvals, actions, notices and filings listed on Schedule 4.1(e), all of which
have been duly obtained, taken, given or made and are in full force and effect,
and the filing or registration of the Security Documents and related financing
statements or other notification filings necessary to perfect any Lien created
thereby.
(f) Enforceability. This Agreement and each of the
Notes, each other Loan Document and each L/C Related Document have been (or,
when delivered hereunder, will have been) duly executed and delivered by each
Loan Party thereto. This Agreement, each of the Notes, each other Loan Document
and each L/C Related Document have been (or, 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.
(g) Financial Statements. The Consolidated balance sheet
of Fresh Produce and its Subsidiaries, as at December 27, 2002, and the related
Consolidated statements of income and cash flows of Fresh Produce and its
Subsidiaries, for the fiscal year then ended, accompanied by an opinion of
Ernst & Young LLP, independent public accountants, 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 period ended on such date, all in accordance with GAAP
applied on a consistent basis, and since December 27, 2002, nothing has
occurred that has resulted in a Material Adverse Effect.
(h) Projections; Other Information. The four year
projected Consolidated balance sheets and income statements of Fresh Produce
and its Subsidiaries delivered to the Administrative Agent pursuant to Section
3.1 were prepared in good faith on the basis of the assumptions stated therein,
which assumptions were fair in the light of conditions existing at the time of
delivery of such projected financial statements, and represented, at the time
of delivery, Fresh Produce's reasonable estimate of its future financial
performance. No information, exhibit or report, taken in the aggregate,
furnished by any Loan Party to the Administrative Agent or any Lender in
connection with the negotiation of the Loan Documents or pursuant to the terms
of the Loan Documents contained at the time such statements were made any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(i) Litigation. There is no action, suit, investigation,
litigation or proceeding affecting Fresh Produce or any of its Subsidiaries,
including any Environmental Action, pending or, to the best of its knowledge,
threatened, before any court, Governmental Authority or arbitrator, involving
an amount in controversy in excess of U.S.$5,000,000, except for (i) matters in
which Fresh Produce or its Subsidiary is the plaintiff, (ii) matters disclosed
on Schedule 4.1(i) hereto, and (iii) matters arising after the Agreement Date
that would not reasonably be likely to have a Material Adverse Effect. No such
matter disclosed on Schedule 4.1(i) purports to affect the legality, validity
or enforceability of this Agreement, any Note, any other Loan Document or any
L/C Related Document or the consummation of the transactions contemplated
thereby or hereby, or is reasonably likely to have a Material Adverse Effect.
43
(j) Use of Proceeds. None of the Borrowers will,
directly or indirectly, use any of the proceeds of any Borrowing for the
purpose, whether immediate, incidental or ultimate, of buying a "margin stock"
or of maintaining, reducing or retiring any Debt originally incurred to
purchase a stock that is currently a "margin stock", or for any other purpose
that would constitute this transaction a "purpose credit", in each case within
the meaning of the margin regulations of the Board of Governors of the Federal
Reserve System, if such use would violate such regulations or cause any Lender
to violate such regulations or impose any filing or reporting requirement on
any Lender.
(k) ERISA Matters. No ERISA Event has occurred or is
reasonably expected to occur with respect to any Plan of any Loan Party or any
of its ERISA Affiliates that has resulted in or is reasonably likely to result
in a Material Adverse Effect. Neither any Loan Party nor any of its ERISA
Affiliates has incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan that would reasonably be expected to have a
Material Adverse Effect. Neither any Loan Party nor any of its ERISA Affiliates
has been notified by the sponsor of a Multiemployer Plan of any Loan Party or
any of its ERISA Affiliates that such Multiemployer Plan is in reorganization
or has been terminated, within the meaning of Title IV of ERISA, and to the
knowledge of Fresh Produce no such Multiemployer Plan is reasonably expected to
be in reorganization or to be terminated, within the meaning of Title IV of
ERISA, in either case which reorganization or termination would reasonably be
expected to have a Material Adverse Effect. With respect to each scheme or
arrangement mandated by a government other than the United States providing for
post-employment benefits (a "Foreign Government Scheme or Arrangement") and
with respect to each employee benefit plan maintained or contributed to by any
Loan Party or any Subsidiary of any Loan Party that is not subject to United
States law providing for post-employment benefits (a "Foreign Plan"): (i) All
material employer and employee contributions required by law or by the terms of
any Foreign Government Scheme or Arrangement or any Foreign Plan have been
made, or, if applicable, accrued, in accordance with applicable generally
accepted accounting principles; (ii) The fair market value of the assets of
each funded Foreign Plan, the liability of each insurer for any Foreign Plan
funded through insurance or the book reserve established for any Foreign Plan,
together with any accrued contributions, is sufficient to procure or provide
for the accrued benefit obligations, as of the date hereof, with respect to all
current and former participants in such Foreign Plan according to the actuarial
assumptions and valuations most recently used to account for such obligations,
in accordance with applicable generally accepted accounting principles, and the
liability of each Loan Party and each Subsidiary of a Loan Party with respect
to a Foreign Plan is reflected in accordance with applicable generally accepted
accounting principles on the financial statements of such Loan Party or such
Subsidiary, as the case may be; and (iii) Each Foreign Plan required to be
registered has been registered and has been maintained in good standing with
applicable regulatory authorities, unless, in each of the foregoing cases, the
failure to do so would not be reasonably likely to have a Material Adverse
Effect.
(1) Casualties; Taking of Properties. Since December 31,
2002, neither the business nor the properties of Fresh Produce or its
Subsidiaries, taken as a whole, has been materially and adversely affected as a
result of any fire, drought, explosion, earthquake, storm, accident, strike or
other labor dispute, embargo, taking of property or cancellation of material
contracts, permits or concessions by any U.S. or non-U.S. government or any
agency thereof, riot, activities of armed forces, act of God or of any public
enemy, or any other casualty (whether or not covered by insurance).
44
(m) Environmental Matters. Except as set forth on
Schedule 4.1(m) hereto (i) each of Fresh Produce and its Subsidiaries is in
compliance with all applicable Environmental Laws, except for such
non-compliance that would not be reasonably likely to have a Material Adverse
Effect; (ii) each of Fresh Produce and its Subsidiaries has obtained and
currently maintains all Environmental Permits necessary for the operation of
its business, all such Environmental Permits are in good standing and Fresh
Produce and its Subsidiaries are in compliance with all such Environmental
Permits, except where the failure to obtain, maintain or comply with such
Environmental Permits would not be reasonably likely to have a Material Adverse
Effect; (iii) to the best knowledge of Fresh Produce, there has been no
release, spill, emission, leaking, pumping, injection, deposit, application,
disposal, discharge, dispersal, leaking or migration into the Environment,
including the movement of any Hazardous Material in or through the Environment,
of any Hazardous Material at, in, on, under, affecting or migrating to or from
any Real Property, which would be reasonably likely to have a Material Adverse
Effect; (iv) neither Fresh Produce not its Subsidiaries have transported or
arranged for the transportation of any Hazardous Materials to any location that
is listed or, to the knowledge of the Loan Parties, proposed for listing on the
National Priorities List under CERCLA ("NPL") or listed on the Comprehensive
Environmental Response, Compensation and Liability Information System
("CERCLIS") maintained by the Environmental Protection Agency, except to the
extent such transportation would not be reasonably likely to have a Material
Adverse Effect; (v) to the best knowledge of Fresh Produce and its
Subsidiaries, none of the Real Properties presently require or previously
required interim status or a hazardous waste permit for the treatment, storage
or disposal of hazardous waste pursuant to RCRA, or any analogous Environmental
Law, except where the failure to obtain such status or permit would not be
reasonably likely to have a Material Adverse Effect, and, except as set forth
on Schedule 4.1(m), no Real Property has been placed or proposed to be placed
on the NPL or its state equivalents or placed on CERCLIS; and (vi) no
asbestos-containing material, polychlorinated biphenyls, or underground
storage tanks are present on or under any Real Property in a manner or
condition that would be reasonably likely to have a Material Adverse Effect.
(n) Taxes. Each of Fresh Produce and each of its
Subsidiaries has filed, has caused to be filed or has been included in all U.S.
federal income-tax returns and all material state, local, provincial and
non-U.S. income-tax returns and governmental remittance returns required to be
filed and has paid all taxes and other amounts shown thereon to be due,
together with applicable interest and penalties, except for any taxes being
contested in good faith by appropriate proceedings promptly initiated and
diligently pursued and for which reserves or other appropriate provisions
required by GAAP have been established and with respect to which no Lien or
right of demand has arisen or attached to its property and become enforceable
against its other creditors.
(o) Title to Properties. Immediately upon the filing of
appropriate financing statements in the jurisdictions listed on Schedule 2 to
the Security Agreements governed by US law and the registration of the Security
Agreements governed by English law or granted by a company incorporated in the
UK with the Companies House, the Security Documents create a valid, continuing
and perfected security interest in favor of the Secured Parties in the Pledged
Stock and in all other Collateral with respect to which a security interest may
be perfected by filing (other than the perfection of Liens on Commercial Tort
Claims (as defined in the Security Agreements governed by US law) that have not
yet been described on Schedule 3 to the Security Agreements governed by US
law), which security interest is free and clear of all other Liens, except for
Permitted Liens. The Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for Permitted Liens. As of the
Agreement Date, all Permitted Liens of
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record of Fresh Produce or any Material Subsidiary are set forth on Schedule
4.1(o) attached hereto.
(p) Solvency. Each Borrower is, and will be after giving
effect to the transactions contemplated hereby, individually and together with
its Subsidiaries, Solvent.
(q) Investment Company. Neither Fresh Produce nor any of
its Subsidiaries is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended. Neither
the making of any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by any Borrower, nor the
consummation of the other transactions contemplated hereby, will violate any
provision of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
(r) Material Contracts. Set forth on Schedule 4.1(r)
hereto is a complete and accurate list of all Material Contracts of each Loan
Party as of the date hereof, showing the parties, subject matter and term
thereof and listing all amendments thereto. Each such Material Contract has
been duly authorized, executed and delivered by all parties thereto, has not
been amended or otherwise modified since the Agreement Date, except to the
extent permitted hereby, is in full force and effect and is binding upon and
enforceable against all parties thereto in accordance with its terms (subject
to any applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally), and there exists no default under
any Material Contract by any party thereto.
(s) Intellectual Property. Set forth on Schedule 4.1(s)
hereto is a complete and accurate list of all patents, trademarks, trade names,
service marks and copyrights of Fresh Produce and its Subsidiaries as of the
date hereof, showing the jurisdiction in which registered, the applicable
registrant, the registration number, the date of registration and the
expiration date. To the best knowledge of Fresh Produce, there are no
sublicenses of the Trademark Licenses to any third parties other than the
Sublicenses.
(t) Material Surviving Debt. Set forth on Schedule
4.1(t) hereto is a complete and accurate list of all surviving debt in excess
of U.S.$1,000,000 (the "Material Surviving Debt") of Fresh Produce and its
Subsidiaries, showing as of the date hereof the principal amount outstanding
thereunder, the maturity date thereof and the amortization schedule therefor.
(u) Investments. Set forth on Schedules 4.1(u) and
4.1(b) hereto is a complete and accurate list of all Investments (excluding
crop-related grower advances) held by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the amount, obligor or issuer and
maturity, if any, thereof.
(v) Locations. Set forth on Schedule 4.1(v) hereto is a
complete and accurate list as of the date hereof of (i) all distribution
centers, warehouses, ports, plantation properties, and other real property
owned or leased by Fresh Produce and any of its Subsidiaries in the United
States or the United Kingdom, indicating whether such property is owned or
leased (and if leased the name of the lessor) and the name of the Subsidiary
with an interest in such location, and (ii) all plantations and distribution
centers owned or leased by Fresh Produce and any of its Subsidiaries outside of
the United States.
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SECTION 4.2 Survival of Representations and Warranties,
Etc. All representations and warranties made under this Agreement shall be
deemed to be made, and shall be true and correct, at and as of the Agreement
Date and the date of each Advance which will increase the principal amount of
the Obligations outstanding, or upon the issuance of a Letter of Credit
hereunder, except to the extent such representation or warranty is limited to a
specified date; provided that each representation and warranty shall be deemed
to be updated by such information relating to the matters described therein as
and to the extent that Fresh Produce or the relevant Borrower shall have
furnished such information in writing to the Administrative Agent and the
matters or event described therein are otherwise permitted under Articles 5 and
6 hereunder. All representations and warranties made under this Agreement shall
survive, and not be waived by, the execution hereof by the Lenders, the
Administrative Agent and the Issuing Bank, any investigation or inquiry by any
Lender, Issuing Bank or the Administrative Agent, or the making of any Advance
or the issuance of any Letter of Credit under this Agreement.
ARTICLE 5
AFFIRMATIVE COVENANTS
Each of the Borrowers covenants and agrees that so long as any
Commitment is outstanding and thereafter until Payment in Full of all of the
Obligations, unless the Required Lenders shall have otherwise consented in
writing thereto:
SECTION 5.1 Compliance with Laws, Etc. It will comply,
and cause each of its Subsidiaries to comply, in all material respects, with
all Applicable Laws, such compliance to include, without limitation, compliance
with ERISA, the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970 or any similar statute, except where the
failure to do so would not or not be reasonably likely to (a) have a material
adverse effect on (i) the business, condition (financial or otherwise),
operations, performance or properties of any Loan Party or (ii) the ability of
any Loan Party to perform its Obligations under any Loan Document to which it
is or is to be a party or (b) result in the imposition of a Lien (other than a
Permitted Lien) on any of the Collateral.
SECTION 5.2 Payment of Taxes, Etc. It will pay and
discharge, and cause each of its Subsidiaries to pay and discharge, before the
same shall become delinquent, (a) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property, and (b) all lawful
claims that, if unpaid, might by law become a Lien upon its property; provided
that none of the Borrowers nor any of its Subsidiaries shall be required to pay
or discharge any such tax, assessment, charge or claim that is being contested
in good faith by appropriate proceedings promptly initiated and diligently
pursued as to which appropriate reserves are being maintained, unless and until
any Lien resulting therefrom attaches to its property and becomes enforceable
against its other creditors and the time period for appeals with respect to the
enforcement of any such Lien and the underlying tax, assessment, charge or
claim shall have expired.
SECTION 5.3 Compliance with Environmental Laws. It will
comply, in all material respects, cause each of its Subsidiaries to comply, in
all material respects, and use its best efforts to cause all lessees and other
Persons operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental Permits;
obtain and renew
47
and cause each of its Subsidiaries to obtain and renew all Environmental
Permits necessary for its operations and properties; and conduct, and cause
each of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties, to
the extent required by Environmental Laws.
SECTION 5.4 Maintenance of Insurance. It will maintain,
and cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations, including, without limitation,
maritime insurance, in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which it operates, provided that each
such insurance policy shall name the Administrative Agent, for the benefit of
the Secured Parties, as additional named insured and, in connection with
property insurance covering assets located in the United States, the United
Kingdom, Chile and Liberia, as co-loss payee thereunder, pursuant to an
endorsement in form acceptable to the Administrative Agent.
SECTION 5.5 Preservation of Corporate Existence, Etc.
It will preserve and maintain, and cause each of its Material Subsidiaries to
preserve and maintain, its existence, legal structure, legal name, rights
(charter and statutory), permits, licenses, approvals, privileges and
franchises; provided that none of the Borrowers nor any of their Material
Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of Fresh Produce or
any such Borrower or any such Subsidiary, as the case may be, shall determine
that the preservation and maintenance thereof is no longer desirable in the
conduct of its business or the business of such Subsidiary, as the case may be,
and that the loss thereof is not disadvantageous in any material respect to any
such Borrower, such Subsidiary or the Lenders.
SECTION 5.6 Visitation Rights. It will, at any
reasonable time and from time to time, permit the Administrative Agent or any
of the Lenders, or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and visit and
inspect the properties of it and any of its Subsidiaries, and to discuss the
assets, liabilities, affairs, finances and business prospects of it and any of
its Subsidiaries with any of their senior officers or directors and with their
independent certified public accountants.
SECTION 5.7 Preparation of Environmental Reports. In
the event an Environmental Action occurs or is issued to any of the Loan
Parties which would be reasonably likely to have a Material Adverse Effect,
each of the Borrowers will, at the request of the Administrative Agent from
time to time, provide to the Lenders within 60 days after such request an
environmental site assessment report for any such property of any Borrower or
its Subsidiaries described in such request, prepared by an environmental
consulting firm acceptable to the Administrative Agent, indicating the presence
or absence of Hazardous Materials and the estimated cost of any compliance,
removal or remedial action to the extent required by applicable Environmental
Law in connection with any Hazardous Materials on such property; without
limiting the generality of the foregoing, if the Administrative Agent
determines at any time that a material risk exists that any such report will
not be provided within the time referred to above, the Administrative Agent may
retain an environmental consulting firm to prepare such report, and each such
Borrower hereby grants and agrees to cause any of its Subsidiaries that owns
any property described in such request to grant at the time of such request, to
the Administrative Agent, the Lenders, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to the
rights of
48
tenants, to enter onto such property to undertake such an assessment; provided
that in no event shall the Administrative Agent require the preparation and
delivery of any environmental site assessment report for the property of Del
Monte Fresh Produce (Hawaii) Inc., which is subject to an Administrative Order
Consent effective as of September 28, 1995.
SECTION 5.8 Keeping of Books. It will keep, and cause
each of its Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial transactions and the
assets and business of it and each such Subsidiary in accordance with its
customary business practice.
SECTION 5.9 Maintenance of Properties, Etc. It will
maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its material properties in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.10 Compliance with Terms of Leaseholds. It
will make, and cause each of its Subsidiaries to make, all payments and
otherwise perform all material obligations in respect of all material leases of
real property to which it or any of its Subsidiaries is a party; keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or canceled if
such occurrence would be reasonably likely to have a Material Adverse Effect;
notify the Administrative Agent of any default by any party with respect to
such leases; and cooperate with the Administrative Agent in all respects to
cure any such default, and cause each of its Subsidiaries to do so.
SECTION 5.11 Performance of Material Contracts. It will
perform and observe, and cause each of its Subsidiaries to perform and observe
all the terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and effect
in accordance with its terms, and enforce each such Material Contract in
accordance with its terms.
SECTION 5.12 Transactions with Affiliates. It will
conduct, and cause each of its Subsidiaries to conduct, all transactions
otherwise permitted under the Loan Documents with any of its Affiliates (other
than Affiliates that are wholly owned, either directly or indirectly, by Fresh
Produce) on terms that are fair and reasonable and no less favorable to it or
such Subsidiary than it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate and in a manner consistent with past practice in
connection with conducting transactions with Affiliates.
SECTION 5.13 Lockbox Accounts. It will maintain lockbox
accounts with one or more financial institutions reasonably acceptable to the
Administrative Agent that have accepted the assignment of such account to the
Administrative Agent pursuant to a Pledged Account Agreement.
SECTION 5.14 Further Assurances. It will, at its own
expense, execute and deliver, and cause its Subsidiaries to execute and
deliver, all further instruments and documents (including without limitation
any security agreement in form and substance satisfactory to the Administrative
Agent), and take all further action, that may be necessary which the
Administrative Agent may reasonably request, in order to perfect or protect any
Lien granted or purported to be granted under any of the Loan Documents in any
Collateral, whether now owned or hereafter acquired, that the Administrative
Agent or the Required Lenders may reasonably specify.
49
SECTION 5.15 Material Subsidiaries. It shall, promptly
and in no event later than 30 days after the date that any Subsidiary becomes a
Material Subsidiary or after the acquisition of any Material Subsidiary, (a)
pledge or cause the pledge of the Stock (or the equivalent thereof) of such
Subsidiary, and (b) cause such Subsidiary to execute and deliver to the
Administrative Agent a guaranty of the Obligations and, to the extent such
Subsidiary is organized under the laws of the United States, the United Kingdom
or Liberia, a security agreement granting a lien on such Subsidiary's personal
property to the Administrative Agent for the benefit of the Secured Parties, in
form and substance reasonably satisfactory to the Administrative Agent, except
to the extent that, at the time such Subsidiary becomes a Material Subsidiary
or such Material Subsidiary is acquired such Stock and/or personal property are
subject to Permitted Liens or may not be permitted to be pledged pursuant to a
negative pledge covenant; provided that if such pledge is not permitted, Fresh
Produce and such Material Subsidiary shall use reasonable best efforts to grant
to the Administrative Agent for the benefit of the Secured Parties security
interests satisfactory to the Lenders in such assets.
SECTION 5.16 Reporting Requirements. Fresh Produce
covenants and agrees that so long as any Commitment is outstanding and
thereafter until Payment in Full of all of the Obligations, it shall deliver to
the Administrative Agent and the Lenders (and, with respect to clauses (b),
(c), (e) and (h) of this Section 5.16, such delivery may be made by Fresh
Produce posting such information directly via IntraLinks):
(a) Default Notice. As soon as possible and in any event
within two Business Days after any officer of it becomes aware of the
occurrence of each Default or after any officer of it becomes aware that any
Person has given written notice to it or any of its Subsidiaries of any event,
development or occurrence reasonably likely to have a Material Adverse Effect
continuing on the date of such statement, a statement of the chief financial
officer of it, setting forth details of such Default or event, development or
occurrence, as the case may be, and the action it has taken and proposes to
take with respect thereto.
(b) Quarterly Financials. As soon as available and in
any event no later than 45 days after the end of each of the first three
quarters of each fiscal year of Fresh Produce, a Consolidated balance sheet of
Fresh Produce and its Subsidiaries as of the end of such quarter and a
Consolidated statement of income and cash flows of Fresh Produce and its
Subsidiaries for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding period of the
preceding fiscal year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer of Fresh Produce.
(c) Annual Financials. As soon as available and in any
event no later than 90 days after the end of each fiscal year of Fresh Produce,
a copy of the audited financial statement for Fresh Produce and its
Subsidiaries, including therein a Consolidated balance sheet of Fresh Produce
and its Subsidiaries and unconsolidated balance sheets of each of the
Borrowers, in each case as of the end of such fiscal year and a Consolidated
statements of income and cash flows of Fresh Produce and its Subsidiaries and
unconsolidated statements of income of the Borrowers, in the case of Fresh
Produce accompanied by an opinion acceptable to the Required Lenders of
independent public accountants of recognized international standing.
50
(d) No Default Certificate. (i) Together with the
delivery of quarterly financial statements pursuant to clause (b) above, (A) a
certificate of the chief financial officer and one of the chief executive
officer, chief operating officer or president of Fresh Produce stating that no
Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that Fresh
Produce has taken and proposes to take with respect thereto, and (B) a schedule
in form satisfactory to the Administrative Agent of the computations used by
Fresh Produce in determining compliance with the financial covenants contained
in Section 6.15; and (ii) together with the delivery of annual financial
statements pursuant to clause (c) above, (A) a certificate addressed to the
Lenders of independent public accountants of recognized international standing
stating that in the course of the regular audit of the business of Fresh
Produce and its Subsidiaries, which audit was conducted by such accounting firm
in accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is continuing, or if,
in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof; and (B) a certificate of the
chief financial officer and one of the chief executive officer, chief operating
officer or president of Fresh Produce stating that no Default has occurred and
is continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that Fresh Produce has taken and proposes
to take with respect thereto, together with a schedule in form satisfactory to
the Administrative Agent of the computations used by Fresh Produce in
determining compliance with the financial covenants contained in Section 6.15.
(e) Annual Forecasts; Location Update. As soon as
available and in any event no later than 45 days after the end of each fiscal
year of Fresh Produce, (i) forecasts prepared by management of Fresh Produce
and its Subsidiaries, in the form currently used by Fresh Produce, of balance
sheets, income statements and cash flow statements on a quarterly basis for the
next four quarters, and (ii) an updated Schedule 4.1(v) hereto indicating the
location of all warehouses, distribution centers, ports, plantations and other
real property interests of Fresh Produce or any Subsidiary as required to be
disclosed on such Schedule.
(f) ERISA. (i) As soon as is reasonably practicable and
in any event within 30 days after any Loan Party or any of its ERISA Affiliates
knows or has reason to know that any material ERISA Event has occurred, a
statement of the chief financial officer of such Loan Party describing such
ERISA Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto and within 10
days after the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information; (ii) promptly and in
any event within three Business Days after receipt thereof by any Loan Party or
any of its ERISA Affiliates, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to administer
any such Plan; and (iii) promptly and in any event within ten Business Days
after receipt thereof by any Loan Party or any of its ERISA Affiliates from the
sponsor of a Multiemployer Plan, copies of each notice concerning (A) the
imposition of Withdrawal Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV of ERISA, of any
such Multiemployer Plan or (C) the amount of liability incurred, or that may be
incurred, by such Loan Party or any of its ERISA Affiliates in connection with
any event described in clause (A) or (B).
(g) Litigation. Promptly upon receipt thereof, notice of
all actions, suits, investigations, litigation and proceedings before any court
or governmental department,
51
commission, board, bureau, agency or instrumentality, U.S. or non-U.S.,
affecting any Loan Party or any of its Subsidiaries, seeking an amount in
controversy in excess of U.S.$15,000,000, or seeking any injunctive relief that
would be reasonably likely to result in a Material Adverse Effect.
(h) Securities Reports. Promptly, and in any event
within 10 days thereof, after the sending or filing thereof, copies of all
regular, periodic and special reports, and all registration statements, that
any Loan Party or any of its Subsidiaries files with the Securities and
Exchange Commission or any Governmental Authority that may be substituted
therefor, or with any national securities exchange.
(i) Material Contract Notices. Promptly upon receipt
thereof, copies of all default notices received by any Loan Party or any of its
Subsidiaries under or pursuant to any Material Contract and, from time to time
upon request by the Administrative Agent such information regarding any
Material Contracts as the Administrative Agent may reasonably request.
(j) Environmental Conditions. Promptly after receipt of
notice of the assertion or occurrence any Environmental Action or noncompliance
with any Environmental Action, notice of any such Environmental Action against
or of any such noncompliance by any Loan Party or any of its Subsidiaries with
any Environmental Law or Environmental Permit that would be reasonably likely
to have a Material Adverse Effect.
(k) Foreign Exchange Contracts. (i) Promptly upon any
Loan Party entering into any Foreign Exchange Contract with any Foreign
Exchange Bank other than Rabobank, a report setting forth the notional amount
thereof, and (ii) at the time of the delivery of the financial statements
pursuant to Section 5.16(b) and (c) above, a report setting forth the amount of
presettlement risk at the end of the applicable fiscal period of each Loan
Party with respect to each Foreign Exchange Contract with a Foreign Exchange
Bank.
(1) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations, performance,
taxes, properties or prospects of any Loan Party or any of its Subsidiaries as
the Administrative Agent may reasonably request or any Lender may from time to
time reasonably request in writing through the Administrative Agent.
SECTION 5.17 Use of Proceeds. The proceeds of the
initial Revolving Advances made hereunder shall be used to refinance and
replace the Existing Credit Agreement and to pay transaction expenses in
connection with this Agreement. The proceeds of all other Advances and the
Letters of Credit issued hereunder shall be used for working capital needs,
general corporate purposes, capital expenditures and Investments, in each case
for the Borrowers and each Borrower's Subsidiaries to the extent permitted
hereunder.
ARTICLE 6
NEGATIVE COVENANTS
Each of the Borrowers covenants and agrees that so long as any
Commitment is outstanding and thereafter until Payment in Full of all of the
Obligations, unless the Required Lenders shall have otherwise consented in
writing thereto:
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SECTION 6.1 Liens. It will not create, incur, assume or
suffer to exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its properties of any
character (including without limitation accounts) whether now owned or
hereafter acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial
Code of any jurisdiction (or the equivalent thereof in a jurisdiction outside
the United States), a financing statement (or the equivalent thereof in a
jurisdiction outside the United States) that names it or any of its
Subsidiaries as debtor, or sign or suffer to exist, or permit any of its
Subsidiaries to sign or suffer to exist, any security agreement authorizing any
secured party thereunder to file such financing statement, or assign, or permit
any of its Subsidiaries to assign, any accounts or other right to receive
income, except for Permitted Liens.
SECTION 6.2 Debt. It will not create, incur, assume or
suffer to exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any Debt other than:
(a) Debt under the Loan Documents;
(b) intercompany Debt; provided, however, that (x) such
Debt shall be unsecured and, to the extent such Debt is incurred by a Loan
Party, subordinated to the Advances and evidenced by an intercompany note in
substantially the form of Exhibit D hereto and, to the extent such Debt is owed
to a Loan Party, pledged to the Lenders pursuant to the Security Documents to
secure the Borrowers' Obligations under the Loan Documents, and (y) loans made
pursuant to this clause (b) may not be made to any Shipping Subsidiary created
after the date hereof other than in an amount not to exceed the amount equal to
the down payment for the vessel owned by such Shipping Subsidiary (such down
payment not to exceed 30% of the purchase price for such vessel);
(c) shipping vessel mortgages of any Shipping Subsidiary
and unsecured guarantees of Shipping Holdings of shipping vessel mortgages of
any Shipping Subsidiary;
(d) other direct or indirect guaranties (other than the
guaranties referred to in clause (c) above) of the Debt of other Persons not to
exceed in the aggregate U.S.$35,000,000 (or the non-U.S. currency equivalent
thereof);
(e) Debt under Capitalized Leases, including any
Capitalized Leases for refrigerated containers, in an aggregate principal
amount not exceeding U.S.$100,000,000 (or the non-U.S. currency equivalent
thereof);
(f) Existing Debt secured by Real Property on the
Agreement Date, and any Debt constituting a refinancing thereof; provided that
any such refinancing shall not increase the aggregate principal amount of such
existing Debt immediately prior to such refinancing and shall not be secured by
any assets other than Real Property;
(g) Debt secured by Liens on acquired assets permitted
by clause (f) of the definition of "Permitted Liens" set forth in Article 1
hereof; provided that (i) such Debt was in existence prior to the acquisition
of such assets and was not created in contemplation thereof, (ii) at the time
of acquisition of such assets, such Debt could not be prepaid without penalty
or premium, and (iii) the aggregate principal amount of such Debt shall not
exceed U.S.$10,000,000 (or the non-U.S. currency equivalent thereof) at any
time;
53
(h) other secured Debt (other than Debt referred to in
clauses (e), (f) or (g) above), including any purchase money indebtedness,
outstanding in an aggregate principal amount not to exceed U.S.$30,000,000 (or
the non-U.S. currency equivalent thereof); provided that no such Debt shall be
secured by any Collateral (other than any Collateral consisting of Equipment
(as defined in the Security Agreement) acquired with purchase money financing;
(i) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(j) Hedge Agreements and Foreign Exchange Contracts
permitted under Section 6.14 hereof; and
(k) other unsecured Debt on commercially reasonable
terms and conditions and aggregating on a Consolidated basis not more than
U.S.$30,000,000 (or the non-U.S. currency equivalent thereof) at any one time
outstanding.
SECTION 6.3 Wafer and Fresh N.A. Sub Debt. Neither
Wafer nor Fresh N.A. Sub will, nor shall Fresh Produce or any of its
Subsidiaries permit or cause Wafer or Fresh N.A. Sub to, create, incur, assume
or suffer to exist any Debt (other than Debt under the Loan Documents to which
it is a party).
SECTION 6.4 Mergers, Etc. It will not, nor will it
permit any of its Subsidiaries to, merge into or consolidate with any Person or
permit any Person to merge into it, except that any direct or indirect
Subsidiary of Fresh Produce may merge into or consolidate with Fresh Produce or
any other Subsidiary (direct or indirect) of Fresh Produce, but only if:
(a) in the case of any such consolidation of a
Wholly-Owned Subsidiary of any Borrower and any other Subsidiary, the Person
formed by such consolidation shall be a Wholly-Owned Subsidiary of such
Borrower;
(b) in the case of any such consolidation of any other
Subsidiary of a Borrower, the Person formed by such consolidation shall be a
Subsidiary of such Borrower;
(c) if a Borrower is a party to such merger or
consolidation and (i) is not the surviving Person of any such merger, or (ii)
is a party to any such consolidation, the surviving Person of such merger or
Person formed by such consolidation, as the case may be, shall assume, in a
manner reasonably satisfactory to the Required Lenders, the obligations of such
Borrower under the Loan Documents to which such Borrower was a party;
(d) if a Loan Party is a party to such merger or
consolidation and (i) is not the surviving Person of any such merger, or (ii)
is a party to any such consolidation, the surviving Person of such merger or
Person formed by such consolidation, as the case may be, shall assume, in a
manner reasonably satisfactory to the Required Lenders, the obligations of such
Loan Party under the Loan Documents to which such Loan Party was a party; and
(e) if the surviving Person of such merger is a Material
Subsidiary, the Administrative Agent receives the documents required to be
delivered pursuant to Section 5.15 hereof;
54
provided, however, that in each case, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes a Default and the
Administrative Agent shall have received written notice of any such merger or
consolidation not later than 30 days (or such longer period as may be
acceptable to the Administrative Agent) after the effectiveness thereof if such
merger or consolidation involves a Loan Party. Fresh Produce shall not, and
shall not permit any Subsidiary to, liquidate or dissolve itself or otherwise
wind up its business, except any Subsidiary may liquidate or dissolve if all of
its assets are transferred to Fresh Produce or another Subsidiary in compliance
with Section 6.5(e) hereof (provided the Administrative Agent receives 30 days'
prior written notice if such Subsidiary is a Loan Party).
SECTION 6.5 Sales of Assets. It will not, nor will it
permit any of its Subsidiaries to, sell, lease, transfer or otherwise dispose
of any assets, including, without limitation, substantially all assets
constituting the business of a division, branch or other unit of operation, or
grant any option or other right to any Person to purchase, lease or otherwise
acquire any of its assets other than Inventory to be sold in the ordinary
course of its business, except
(a) the sale of Inventory in the ordinary course of its
business;
(b) the sale or other disposition of obsolete Equipment
(as defined in the Security Agreement) and periodic clearance of aged
Inventory, in each case consistent with its past business practices, provided
that any such sale or disposition of Equipment or aged Inventory shall be made
for fair market value;
(c) the sale of any asset by it or any of its
Subsidiaries (other than a bulk sale of Inventory and a sale of Receivables
other than delinquent accounts for collection purposes only) so long as (i) the
purchase price paid to it or such Subsidiary for such asset shall be at least
equal to the Fair Market Value (as defined below) of such asset as determined
by (A) with respect to any asset or assets, in a single transaction or related
transactions, with a Fair Market Value of at least U.S.$10,000,000 (or the
non-U.S. equivalent thereof), the Board of Directors of it or such Subsidiary,
as the case may be, and evidenced in a resolution of such Board of Directors
and (B) with respect to any asset or assets, in a single transaction or related
transactions with a Fair Market Value of less than U.S.$10,000,000 (or the
non-U.S. equivalent thereof), any one of the chief financial officer, the chief
executive officer, the president or the chief operating officer, (ii) within 12
months of the receipt of Net Cash Proceeds of such sale of assets, such
proceeds are reinvested in assets similar to the assets sold that (as
determined by the Board of Directors or such officer of the seller of such
assets) will be used in the seller's business existing on the date hereof or in
a business reasonably related thereto (it being understood that any
expenditures made pursuant to this clause (ii) shall be excluded from Capital
Expenditures) and (iii) the aggregate purchase price paid to the Borrowers and
their Subsidiaries for any assets sold by the Borrowers and their Subsidiaries
during the same fiscal year pursuant to this clause (c) (other than amounts
reinvested pursuant to clause (ii)) shall not exceed (x) U.S.$30,000,000 (or
the non-U.S. currency equivalent thereof) for assets that do not constitute
Collateral, or (y) U.S.$15,000,000 (or the non-U.S. currency equivalent
thereof) for assets that constitute Collateral; provided, however, that the
sale of Stock (or the equivalent thereof) or all or substantially all of the
assets of any Subsidiary of Fresh Produce pursuant to the terms of this clause
(c) shall not be permitted unless (1) prior to or simultaneously with such sale
all intercompany loans made and outstanding to such Subsidiary pursuant to
Section 6.2(b) shall have been repaid in full and (2) to the extent any
Investment has been made in such Subsidiary pursuant to Section 6.6(f), the Net
Cash Proceeds of such sale received by Fresh
55
Produce or any of its Subsidiaries shall be in an amount at least equal to the
Fair Market Value of such Subsidiary;
(d) the sale of any asset or assets in a single
transaction or related transactions with an aggregate book value of less than
U.S. $2,000,000 (or the non-U.S. currency equivalent thereof); and
(e) transfers of assets (i) between the Loan Parties;
provided (x) if such asset was subject to a Lien under any Security Document
prior to such transfer it remains subject to an enforceable first priority
(subject to Permitted Liens) perfected Lien under a Security Document after
such transfer, and (y) if such asset was not subject to the Administrative
Agent's Lien but was owned by a Material Subsidiary, such asset is transferred
to another Material Subsidiary, (ii) from a Subsidiary not a Loan Party to a
Loan Party, (iii) between Subsidiaries that are not Loan Parties, and (iv) from
a Loan Party to a Subsidiary that is not a Loan Party; provided (x) such
transfer is in the ordinary course of business of such Loan Party, and if such
asset was subject to a Lien under any Security Document prior to such transfer,
it remains subject to an enforceable first priority (subject to Permitted
Liens) perfected Lien under a Security Document after such transfer, and the
Subsidiary transferee guarantees the Obligations hereunder to the same extent
as the transferor had guaranteed the Obligations, or (y) the aggregate amount
of such transfers during any fiscal year does not exceed U.S.$2,000,000 (or the
non-U.S. currency equivalent thereof).
For the purposes of this Section 6.5, "Fair Market Value" shall mean,
with respect to any asset or property, the value that would be obtained in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined by the Board of Directors or such officer of such seller.
SECTION 6.6 Investments; Acquisitions. It will not, nor
will it permit any of its Subsidiaries to, make or hold any Investment in any
Person, or engage in or consummate any acquisition of all or substantially all
of the assets of a business or a business unit, or all or substantially all of
the operating assets of any Person, or assets which constitute all or
substantially all of the assets of a division or a separate or separable line
of business of any Person, other than:
(a) Investments in Cash Equivalents and in Hedge
Agreements and Foreign Exchange Contracts permitted hereunder;
(b) Loans and advances to, and guaranties issued on
behalf of, officers and employees (i) in the ordinary course of business as
presently conducted in an aggregate principal amount not to exceed
U.S.$1,000,000 (or the non-U.S. currency equivalent thereof) at any time
outstanding and (ii) in respect of the provision of employee housing in the
ordinary course of business as presently conducted and consistent with past
practices;
(c) Investments existing on the date hereof and
described on Schedules 4.l(u) and 4.1(b) hereto;
(d) 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;
56
(e) Investments in Loan Parties;
(f) Investments (other than intercompany loans) in
Wholly-Owned Subsidiaries of Fresh Produce that are not Loan Parties, provided
that the aggregate amount invested from the date hereof pursuant to this clause
(f) shall not exceed an amount equal to the lesser of (i) the amount equal to
10% of Tangible Net Worth at such time and (ii) the amount equal to 10% of the
total tangible and intangible assets of Fresh Produce and its Subsidiaries at
such time;
(g) loans and advances to Subsidiaries of Fresh Produce
to the extent permitted by, and in accordance with, Section 6.2(b); and
(h) Investments and acquisitions in other assets or
Persons after the date hereof by Fresh Produce and its Subsidiaries; provided
(i) any Person acquired will be a Subsidiary immediately after such Investment
or acquisition, (ii) such assets are usable in, or Person is primarily engaged
in, businesses that are related, ancillary or complementary to the business of
Fresh Produce and its Subsidiaries as of the date hereof, (iii) no Default then
exists or would be caused thereby, (iv) the cash flow and operating statements
of Fresh Produce on a Consolidated basis after giving effect to such
acquisition or Investment (based on combined actual results for the twelve
month period ending on the last day of the last month for which financial
statements of Fresh Produce and such acquisition or Investment target are
available) demonstrate to the satisfaction of the Administrative Agent that
Fresh Produce will be in compliance with the financial and other covenants
hereunder at the time of the acquisition or Investment through the four fiscal
quarter period thereafter, (v) prior to making any such acquisition or
Investment involving cash consideration in excess of U.S.$100,000,000 (or the
non-U.S. currency equivalent thereof), Fresh Produce shall provide to the
Administrative Agent a certificate of the chief financial officer of Fresh
Produce certifying (A) that Fresh Produce is in compliance with the financial
covenants hereof before and after giving effect to such acquisition or
Investment (based on combined actual results for the twelve month period ending
on the last day of the last month for which financial statements of Fresh
Produce and such acquisition or Investment target are available), (B) that no
Event of Default then exists or would be caused thereby and (C) the total
amount of such acquisition or Investment and the full name and state of
organization of any new Subsidiary created for the purpose of effecting such
acquisition or Investment, and (vi) to the extent the Person acquired is a
Material Subsidiary, the Administrative Agent shall have received all documents
required by Section 5.15 hereof.
SECTION 6.7 Restricted Payments; Restricted Purchases.
It will not, nor will it permit any of its Subsidiaries to, declare or make any
Restricted Payment or Restricted Purchase, except that Fresh Produce may
declare and pay dividends and distributions payable in common stock (or the
equivalent thereof) and so long as no Default shall have occurred and be
continuing at the time of any action described in clause (a), (b) or (c) below
or would result therefrom, (a) Fresh Produce may declare and pay dividends and
distributions payable in cash solely out of and up to 50% of net income of
Fresh Produce (computed on a non-cumulative, Consolidated basis in accordance
with GAAP) for the fiscal year immediately preceding the year in which such
dividend or distribution is paid, (b) any direct or indirect Subsidiary of a
Borrower may (i) declare and pay cash dividends to such Borrower and (ii)
declare and pay cash dividends to any other Wholly-Owned Subsidiary of a
Borrower of which it is a direct or indirect Subsidiary, (c) Fresh Produce may
repurchase its own Stock in an aggregate amount not to exceed U.S.$100,000,000,
and (d) any
57
Subsidiary which is not a Wholly-Owned Subsidiary may declare and pay cash
dividends consistent with past practices.
SECTION 6.8 Change in Nature of Business. It will not,
nor will it permit any of its Subsidiaries to, make any material change in the
nature of its business as carried on at the date hereof.
SECTION 6.9 Amendments.
(a) It will not, nor will it permit any of its
Subsidiaries to, amend its charter, bylaws or similar constituent documents in
a manner that would have a material adverse effect on the rights and remedies
of the Administrative Agent or Lenders or that would in any other way be
materially disadvantageous to the Administrative Agent or Lenders.
(b) It will not, nor will it permit any of its
Subsidiaries to, (i) cancel or terminate, or accept any cancellation or
termination of, (ii) amend, modify or change any material term or condition of,
or supplement in any material respect (except for any amendment or modification
by the applicable licensor in accordance with such Trademark License), (iii)
waive any material default under or material breach of, or (iv) sell, assign,
transfer or sublicense to any Person, other than a Subsidiary of Fresh Produce,
any of its rights in or with respect to, any Trademark License without the
consent of the Administrative Agent.
SECTION 6.10 Prepayments of Debt. It will not, nor will
it permit any of its Subsidiaries to, prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of, or amend, modify or supplement in any way,
any subordination terms of, any Debt (other than the prepayment of the Advances
in accordance with the terms of this Agreement and regularly scheduled or
required repayments of Debt), except that any of the Borrowers or any of its
Subsidiaries may prepay, redeem, purchase, defease or otherwise satisfy prior
to the scheduled maturity thereof any Debt (a) using proceeds from any Advance
if in the reasonable determination of a Borrower or Subsidiary, as the case may
be, the terms of such Debt are less favorable than the terms hereof, or (b) in
a manner and on terms that are no less favorable to, or that (after giving
effect to such prepayment, redemption, purchase, defeasance or satisfaction)
would have no less favorable effect on the Lenders than if such Debt was not so
prepaid, redeemed, purchased, defeased or otherwise satisfied prior to the
scheduled maturity thereof.
SECTION 6.11 New Subsidiaries. It will not, nor will it
permit any of its Subsidiaries to, acquire or create any new Subsidiary which
is a Material Subsidiary of such Borrower, unless such Borrower or Subsidiary
shall comply with the terms and conditions of Section 5.15.
SECTION 6.12 Accounting Changes. It will not, nor will
it permit any of its Subsidiaries to, make or permit any change in accounting
policies or reporting practices as such policies or practices are used in
connection with the preparation of the financial statements delivered or to be
delivered to the Administrative Agent pursuant to this Agreement, except as
required by generally accepted accounting principles.
58
SECTION 6.13 Negative Pledge; Restrictions. It will not,
nor will it permit any of its Subsidiaries to, enter into or suffer to exist
any agreement prohibiting or conditioning the creation or assumption of any
Lien upon any of its property or assets other than (a) in favor of the Secured
Parties, (b) in connection with any Debt in existence on the Agreement Date,
(c) in connection with purchase money Liens that are Permitted Liens hereunder
or (d) with respect to any Material Subsidiary acquired after the date hereof,
any such negative pledge agreement which exists at the time such Material
Subsidiary is acquired and such negative pledge agreement was not created in
connection with or in contemplation of such acquisition, provided that in any
event if any such negative pledge agreement exists at such time Fresh Produce
shall, and shall cause such Material Subsidiary to, use its reasonable best
efforts to grant to the Administrative Agent for the benefit of the Secured
Parties security interests satisfactory to the Lenders in the property or
assets of such Material Subsidiary. Fresh Produce shall not permit any of its
Subsidiaries to enter into agreements that prohibit or limit the amount of
dividends or loans that may be paid or made to Fresh Produce or another
Subsidiary of Fresh Produce by any of its Subsidiaries or any demands for
payment on Debt owing by any Subsidiary of Fresh Produce to Fresh Produce or
another Subsidiary of Fresh Produce, other than (i) restrictions imposed under
an agreement for the sale of all of the Stock or other equity interest of a
Subsidiary or for the sale of a substantial part of the assets of such
Subsidiary, in either case to the extent permitted hereunder and pending the
consummation of such sale, (ii) restrictions in any agreement with another
Person relating to a joint venture conducted through a Subsidiary of Fresh
Produce in which such Person is a minority stockholder requiring the consent of
such Person to the payment of dividends and (iii) restrictions otherwise
consented to by the Administrative Agent, which consent will not be
unreasonably withheld.
SECTION 6.14 Speculative Transactions. It will not, nor
will it permit any of its Subsidiaries to, engage in any transaction involving
commodity options or futures contracts or any similar speculative transactions
except for Hedge Agreements and Foreign Exchange Contracts entered into in the
ordinary course of business; provided that such agreements are designed solely
to protect Fresh Produce and its Subsidiaries against fluctuations in currency
exchanges, interest rates or commodity prices.
SECTION 6.15 Financial Covenants. Each of the Borrowers
covenants and agrees that so long as any Commitment is outstanding and
thereafter until Payment In Full of all of the Obligations, unless the Required
Lenders shall have otherwise consented in writing thereto:
(a) Maximum Leverage Ratio. Fresh Produce and its
Subsidiaries on a Consolidated basis shall maintain as of the end of each
fiscal quarter of Fresh Produce a Leverage Ratio for such fiscal quarter and
the three immediately preceding completed fiscal quarters of Fresh Produce of
not more than 3.40 to 1.00.
(b) Minimum Tangible Net Worth. Fresh Produce and its
Subsidiaries on a Consolidated basis shall maintain as of the end of each
fiscal quarter of Fresh Produce Tangible Net Worth of not less than an amount
equal to the sum of (i) U.S. $474,143,000, plus (ii) an amount equal to 50% of
Consolidated Net Income (to the extent positive) of Fresh Produce for the
quarter ending on March 28, 2003, and each fiscal quarter thereafter on a
cumulative basis.
(c) Minimum Interest Coverage. Fresh Produce and its
Subsidiaries on a Consolidated basis shall maintain at the end of each fiscal
quarter of Fresh Produce, commencing
59
with the fiscal quarter ending March 28, 2003, a ratio of Consolidated EBITDA
to Consolidated interest expense for such fiscal quarter and the three
immediately preceding completed fiscal quarters of Fresh Produce, of not less
than 2.50 to 1.00.
(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, commencing with the fiscal quarter ending
March 29, 2003, a Fixed Charges Coverage Ratio for such fiscal quarter and the
three immediately preceding completed fiscal quarters of Fresh Produce, of not
less than 1.15 to 1.00.
ARTICLE 7
EVENTS OF DEFAULT
SECTION 7.1 Events of Default. Each of the following
shall constitute an Event of Default (an "Event of Default"), whatever the
reason for such event:
(a) any Loan Party shall fail to pay (i) any principal
of, or any interest on, any Advance payable hereunder or under any Note when
due; or (ii) any fees payable hereunder or any other obligation payable
hereunder, under any Note or any other Loan Document within three Business Days
after notice thereof shall be given to any Borrower by the Administrative Agent
or Lender; or
(b) any material representation or warranty made in
writing by or on behalf of any Loan Party under or in connection with this
Agreement or any other Loan Document or in any instrument furnished in
connection with the transactions contemplated by this Agreement shall prove to
have been incorrect in any material respect when made or deemed made; or
(c) any Loan Party shall fail to perform or comply in
any material respect with any term, covenant or agreement contained in Section
5.16(a) or Article 6 hereof; or
(d) any Loan Party shall fail to perform or comply in
any material respect with any term, covenant or agreement contained in any of
Sections 5.4, 5.5, 5.12, 5.15, or 5.16 (other than 5.16(a)), and such failure
shall remain unremedied for five Business Days after the earlier of (i) the
date any Loan Party knew of the occurrence of such failure, or (ii) notice
thereof shall have been given to any Loan Party by the Administrative Agent or
any Lender; or
(e) any Loan Party shall fail to perform or comply in
any material respect with any other term, covenant or agreement contained in
any Loan Document and such failure shall remain unremedied for 10 Business Days
after the earlier of (i) the date any Loan Party knew of the occurrence of such
failure, or (ii) notice thereof shall have been given to any Loan Party by the
Administrative Agent or any Lender; or
(f) any Loan Party or any of its Material Subsidiaries
shall fail to pay any principal of, premium or interest on or any other amount
payable in respect of any Debt, if such Debt is outstanding in a principal
amount of at least U.S.$10,000,000 (or the non-U.S. currency equivalent
thereof) in the aggregate (but excluding Debt outstanding hereunder), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or
60
otherwise), and such failure shall continue for a period of 10 consecutive days
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or for a period of 10 consecutive days after such applicable grace
period if the effect of such event or condition is to permit the acceleration
of, the maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be declared to be
due and payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof; or
(g) any Loan Party or any of its Material Subsidiaries
shall generally not pay its debts as such debts become due, shall suspend or
threaten to suspend making payment whether of principal or interest with
respect to any class of its debts or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan Party
or any of its Material Subsidiaries (each an "Affected Party") seeking, or
seeking the administration, to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, administrator,
receiver and manager, trustee, or other similar official for it or for any
substantial part of the property of any such Affected Party and its
Subsidiaries, taken as a whole, and, in the case of any such proceeding
instituted against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall remain undismissed
or unstayed for a period of 30 days or any of the actions sought in such
proceeding (including without limitation the entry of an order for relief
against, or the appointment of a receiver, administrator, receiver and manager,
trustee, custodian or other similar official for it or any substantial part of
the property of such Affected Party and its Subsidiaries, taken as a whole,)
shall occur; or any Loan Party or any of its Material Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (g) or an encumbrancer takes possession of, or a trustee or
administrator or other receiver or similar officer is appointed in respect of,
all or any substantial part of the business or assets of any Loan Party and its
Subsidiaries, taken as a whole, or distress or any form of execution is levied
or enforced upon or sued out against any such assets and is not discharged
within 10 days of being levied, enforced or sued out, or any Lien that may for
the time being affect a substantial part of the assets of any Affected Party
and its Subsidiaries, taken as a whole, becomes enforceable, or anything
analogous to any of the events specified in this subsection (g) occurs under
the laws of any applicable jurisdictions; or
(h) any judgment or order for the payment of money shall
be rendered against any Loan Party or any of its Subsidiaries, which when added
to all other unpaid judgments or orders for the payment of money rendered
against the Loan Parties and their Subsidiaries, exceeds U.S.$25,000,000 in the
aggregate and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order and such judgment or order has not
been stayed for any period of 20 consecutive Business Days or (ii) there shall
be any period of 20 consecutive Business Days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
61
(i) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could have a Material
Adverse Effect, and there shall be any period of 20 Business Days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(j) any material provision of any material Loan Document
after delivery thereof pursuant to Section 3.1 shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it, or any
such Loan Party shall so state in writing; or
(k) any Security Document after delivery thereof
pursuant to Section 3.1 shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority lien (subject to
Permitted Liens) on and security interest in the Collateral purported to be
covered thereby; or
(1) any Change of Control with respect to any Loan Party
or any of its Material Subsidiaries shall have occurred, excluding any
consolidation, merger or transfers between or among any Loan Parties or their
respective Subsidiaries to which the Administrative Agent has consented, such
consent not to be unreasonably withheld or any other transaction permitted
under this Agreement; or
(m) any ERISA Event shall have occurred with respect to
a Plan of any Loan Party or any ERISA Affiliate and the sum (determined as of
the date of occurrence of such ERISA Event) of the Insufficiency of such Plan
and the Insufficiency of any and all other Plans of the Loan Parties and their
ERISA Affiliates with respect to which an ERISA Event shall have occurred and
then exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) exceeds U.S.$15,000,000, which liability is not
satisfied within 10 Business Days; or
(n) any Loan Party or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan of such Loan Party or any
ERISA Affiliate that it has incurred Withdrawal Liability to such Multiemployer
Plan in an amount that, when aggregated with all other amounts required to be
paid to Multiemployer Plans by the Loan Parties and their ERISA Affiliates as
Withdrawal Liability (determined as of the date of such notification), exceeds
U.S.$15,000,000 or requires payments exceeding U.S.$5,000,000 per annum, which
liability is not satisfied within 10 Business Days; or
(o) any Loan Party or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such reorganization
or termination the aggregate annual contributions of such Loan Party and their
ERISA Affiliates to all Multiemployer Plans that are then in reorganization or
being terminated have been or will be increased over the amounts contributed to
such Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or termination
occurs by an amount exceeding U.S.$15,000,000, which liability is not satisfied
within 10 Business Days; or
(p) any Trademark License shall at any time and for any
reason be suspended, revoked or otherwise terminated prior to the scheduled
termination thereof, or shall otherwise cease to be in full force and effect or
the right of any Loan Party to use the Trademark pursuant to the
62
Trademark Licenses to which such Loan Party is a party shall at any time be
suspended, revoked or otherwise terminated or, in the sole judgment of the
Lenders, materially impaired.
SECTION 7.2 Remedies. If an Event of Default shall have
occurred and until such Event of Default is waived in writing by the Required
Lenders, or all of the Lenders as may be required by Section 9.1 hereof, the
Administrative Agent:
(a) may, and shall at the request of the Required
Lenders, by notice to Fresh Produce, declare the obligation of each Lender to
make Advances and of the Issuing Banks to issue Letters of Credit and the Swing
Line Bank to make Swing Line Advances to be terminated, whereupon the same
shall forthwith terminate;
(b) may, and shall at the request of the Required
Lenders by notice to Fresh Produce, declare the Advances, Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Advances, the Notes,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrowers; provided that in the
event of an actual or deemed entry of an order for relief with respect to any
Borrower under the Bankruptcy Code, (x) the obligation of each Lender to make
Advances and of the Issuing Bank to issue Letters of Credit and of the Swing
Line Bank to make Swing Line Advances shall automatically be terminated and (y)
the Advances and the Notes, all such interest and all such amounts shall
automatically become due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by the
Borrowers; and
(c) may, and shall at the request of the Required
Lenders, exercise all of the post default rights granted to it and to them
under the Loan Documents or under Applicable Law. The Administrative Agent, for
the benefit of itself, the Issuing Bank and the Lenders, shall have the right
to the appointment of a receiver for the property of each Borrower, and each
Borrower hereby consents to such rights and such appointment and hereby waives
any objection each Borrower may have thereto or the right to have a bond or
other security posted by the Administrative Agent, the Issuing Bank or the
Lenders in connection therewith.
SECTION 7.3 Actions in Respect of the Letters of
Credit. If (a) in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the Bankruptcy Code, the Borrowers will
forthwith, and (b) any other Event of Default shall have occurred and be
continuing, the Administrative Agent may, irrespective of whether it is taking
any of the actions described in Section 7.2 or otherwise, make demand upon the
Borrowers to, and forthwith upon such demand the Borrowers will, pay to the
Administrative Agent on behalf of the Lenders in same-day funds at the
Administrative Agent's office designated in such demand, for deposit in a bank
account designated by the Administrative Agent (the "L/C Cash Collateral
Account"), an amount equal to the Letter of Credit Amount then outstanding. If
at any time the Administrative Agent determines that any funds held in the L/C
Cash Collateral Account are subject to any right or claim of any Person other
than the Administrative Agent and the Lenders or that the total amount of such
funds is less than the amount required to be on deposit hereunder, the
Borrowers will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (i) such amount
required to be deposited hereunder over (ii) the total amount of funds,
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if any, then held in the L/C Cash Collateral Account that the Administrative
Agent determines to be free and clear of any such right and claim. The L/C Cash
Collateral Account shall be in the name and under the sole dominion and control
of the Administrative Agent. The Borrowers grant to the Administrative Agent,
for its benefit and the benefit of the Lenders and the Issuing Bank, a Lien on
and security interest in the L/C Cash Collateral Account and all amounts on
deposit therein as collateral security for the performance of the Borrowers'
obligations under this Agreement and the other Loan Documents. The
Administrative Agent shall have all rights and remedies available to it under
Applicable Law with respect to the L/C Cash Collateral Account and all amounts
on deposit therein.
ARTICLE 8
THE ADMINISTRATIVE AGENT
SECTION 8.1 Authorization and Action. Each Lender
hereby appoints and authorizes Rabobank to take action on its behalf as the
Administrative Agent to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to them respectively by
the terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, in the case of the
Administrative Agent, enforcement or collection of the Notes), no Agent shall
be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all
holders of Notes; provided that no Agent shall be required to take any action
that exposes it or its officers or directors to personal liability or that is
contrary to this Agreement or Applicable Law. The Administrative Agent agrees
to give to each Lender prompt notice of each notice given to it by any Borrower
or other Loan Party pursuant to the terms of this Agreement.
SECTION 8.2 Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with the Loan Documents, except for its or their
own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent:
(a) may treat the payee of any Note as the holder
thereof until the Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.7;
(b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it, and may rely on any opinion of counsel delivered under this Agreement or
any other Loan Document, and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts or any such opinion;
(c) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations made in or in connection with the Loan Documents by any other
Person;
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(d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or to inspect the
property (including the books and records) of any Loan Party;
(e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant hereto (other than its own execution and delivery thereof) or the
creation, attachment, perfection or priority of any Lien purported to be
created under or contemplated by any Loan Document;
(f) shall incur no liability under or in respect of any
Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, telecopy, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties;
(g) shall have no liability or responsibility to any
Loan Party for any failure on the part of any Lender to comply with any
obligation to be performed by such Lender under this Agreement;
(h) shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default under this Agreement unless
they have received notice from a Lender or Loan Party referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "Notice of Default";
(i) shall incur no liability as a result of any
determination whether the transactions contemplated by the Loan Documents
constitute a "highly leveraged transaction" within the meaning of the
interpretations issued by the Comptroller of the Currency, the Federal Deposit
Insurance Corporation and the Board of Governors of the Federal Reserve System;
and
(j) may act directly or through agents on its behalf.
SECTION 8.3 Rabobank and Affiliates. With respect to
its respective Commitments, and the Advances made by it and the Notes issued to
it, respectively, Rabobank shall have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it were not
the Administrative Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Rabobank in its individual capacity.
Rabobank and its respective affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if Rabobank was not the
Administrative Agent and without any duty to account therefor to the Lenders.
SECTION 8.4 Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on the financial statements
referred to in Section 3.1 and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall
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deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 8.5 Indemnification. Each Lender severally
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrowers) from and against such Lender's Pro Rata Share of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (including, without
limitation, fees and expenses of legal counsel consulted pursuant to Section
8.2) of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative
Agent under the Loan Documents; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements determined by a court of
competent jurisdiction in a final order to have resulted from the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any costs and expenses
payable by the Borrowers under Section 9.4, to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrowers.
SECTION 8.6 Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrowers. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank or other
financial institution and having a combined capital and surplus of at least
U.S.$1,000,000,000. Upon the acceptance of any appointment as an Administrative
Agent hereunder by a successor Administrative Agent and upon the execution and
filing or recording of such financing statements, or amendments thereto, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Security Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Article 8
and Section 9.4 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Administrative Agent under this Agreement.
SECTION 8.7 Notice of Default or Event of Default. In
the event that the Administrative Agent or any Lender shall acquire actual
knowledge, or shall have been notified in writing, of any Default or Event of
Default, the Administrative Agent shall promptly notify the Lenders or such
Lender shall promptly notify the Administrative Agent, as applicable, and the
Administrative Agent shall take such action and assert such rights under this
Agreement as the Required Lenders shall request in writing, and the
Administrative Agent shall not be subject to any liability by reason of its
acting pursuant to any such request. If the Required Lenders shall fail to
request the Administrative Agent to take action or to assert rights under this
Agreement in respect of any Event of Default within ten days after their
receipt of the notice of any Event of Default
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from the Administrative Agent, or shall request inconsistent action with
respect to such Event of Default, the Administrative Agent may, but shall not
be required to, take such action and assert such rights as it deems in its
discretion to be advisable for the protection of the Lenders, except that, if
the Required Lenders have instructed the Administrative Agent not to take such
action or assert such right, in no event shall the Administrative Agent act
contrary to such instructions.
SECTION 8.8 Agent May File Proofs of Claim. The
Administrative Agent may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent, its agents,
financial advisors and counsel), the Issuing Bank and the Lenders allowed in
any judicial proceedings relative to any Loan Party, or any of their respective
creditors or property, and shall be entitled and empowered to collect, receive
and distribute any monies, securities or other property payable or deliverable
on any such claims and any custodian in any such judicial proceedings is hereby
authorized by each Lender to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any
amount due to the Administrative Agent for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent, its agents,
financial advisors and counsel, and any other amounts due the Administrative
Agent. Nothing contained in this Agreement or the other Loan Documents shall be
deemed to authorize the Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
holder thereof, or to authorize the Administrative Agent to vote in respect of
the claim of any Lender in any such Proceeding.
SECTION 8.9 Documentation Agent and Syndication Agent.
It is expressly acknowledged and agreed by the Administrative Agent, each
Lender and the Borrowers for the benefit of the Documentation Agent and
Syndication Agent that the Documentation Agent and Syndication Agent, in such
capacity, have no duties or obligations whatsoever with respect to this
Agreement, the Notes or any other document or any matter related thereto.
SECTION 8.10 Collateral.
(a) The Administrative Agent is hereby authorized to
hold all Collateral pledged to it pursuant to any Loan Document and to act on
behalf of the itself, the Lenders and the Issuing Bank, in its own capacity and
through other agents appointed by it, under the Security Documents; provided,
that the Administrative Agent shall not agree to the release of any Collateral
except in accordance with the terms hereof.
(b) Each Lender and the Issuing Bank hereby directs the
Administrate Agent to, in accordance with the terms of this Agreement, and the
Administrative Agent agrees to, release or subordinate any Lien held by the
Administrative Agent for its benefit and the benefit of the Lenders and the
Issuing Bank:
(i) against all of the Collateral, upon final
and indefeasible payment in full of the Obligations and
termination of this Agreement; or
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(ii) against any part of the Collateral sold or
disposed of by the applicable Loan Party if such sale or
disposition is permitted by Section 6.5 hereof as certified
to the Administrative Agent by the Loan Party in a
certificate of an Authorized Signatory or is otherwise
consented to by the requisite Lenders for such release as set
forth in Section 9.1 hereof.
Each Lender and the Issuing Bank hereby directs the Administrative Agent to,
and the Administrative Agent hereby agrees to, execute and deliver or file such
termination and partial release statements and do such other things as are
reasonably necessary to release Liens to be released pursuant to this Section
promptly upon the effectiveness of any such release. Upon request by the
Administrative Agent at any time, the Lenders and the Issuing Bank will confirm
in writing the Administrative Agent's authority to release particular types or
items of Collateral pursuant to this Section.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Amendment, Etc. No amendment or waiver of
any provision of this Agreement, the Notes or any other Loan Document (other
than a Foreign Exchange Contract between a Foreign Exchange Bank and a Loan
Party), nor consent to any departure by any Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Required Lenders (or in connection with an amendment to any other Loan
Document, by the Administrative Agent with the consent of the Required Lenders)
and, in the case of an amendment, all Borrowers, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that:
(a) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders and, in the case of an amendment, all
Borrowers, do any of the following at any time: (1) waive any of the conditions
specified in Section 3.2, (2) change the percentage of the 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 9.1, (4) release any material
portion of the Collateral other than in accordance with the terms of the
Security Documents or any Guarantor from its obligations under its respective
Guaranty Agreement, except in connection with a sale or merger permitted
hereunder;
(b) no amendment, waiver or consent shall, unless in
writing and signed by the Borrowers and the Lender affected thereby, do any of
the following at any time: (1) increase the principal amount of the Commitment
of such Lender over the amount then in effect or increase the Pro Rata Share of
such Lender, (2) reduce or forgive the aggregate unpaid principal amount of the
Note or Advances owing to such Lender, (3) reduce the rate of interest or fees
payable hereunder to such Lender, or (4) postpone any scheduled date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable to such Lender hereunder;
(c) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the Lenders and the
Borrowers required above to take such action, affect the rights or obligations
of the Issuing Bank under this Agreement; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent,
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in addition to the Lenders and the Borrowers required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Loan Document; and
(d) each Lender grants (x) to the Administrative Agent
the right to purchase all (but not less than all) of such Lender's Commitments
and Advances owing to it and the Notes held by it and all of its rights and
obligations hereunder and under the other Loan Documents at a price equal to
the aggregate amount of outstanding Advances owed to such Lender (together with
all accrued and unpaid interest and fees owed to such Lender), and (y) to any
Borrower the right to cause an assignment of all (but not less than all) of
such Lender's Commitments and Advances owing to it and the Notes held by it and
all of its rights and obligations hereunder and under the other Loan Documents,
which right may be exercised by the Administrative Agent or such Borrower, as
the case may be, if such Lender refuses to execute any amendment, waiver or
consent which requires the written consent of all the Lenders and to which the
Required Lenders, the Administrative Agent and such Borrower have agreed. Each
Lender agrees that if the Administrative Agent or such Borrower, as the case
may be, exercises its option hereunder, it shall promptly execute and deliver
all agreements and documentation necessary to effectuate such assignment as set
forth in Section 9.7.
Anything in this Agreement to the contrary notwithstanding, if any Lender shall
fail to fulfill its obligations to make an Advance hereunder, then, for so long
as such failure shall continue, such Lender shall (unless the Borrowers and the
Required Lenders, determined as if such Lender were not a "Lender" hereunder,
shall otherwise consent in writing) be deemed for all purposes relating to
amendments, modifications, waivers or consents under this Agreement or the
Notes (including without limitation under this Section 9.1) to have no Advances
or Commitments, shall not be treated as a "Lender" hereunder when performing
the computation of Required Lenders, and shall have no rights under this
Section 9.1; provided that any action taken by the other Lenders with respect
to the matters referred to in clauses (a) or (b) of this Section 9.1 shall not
be effective as against such Lender.
SECTION 9.2 Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopy
communication) and mailed, telecopied or delivered,
(a) if to any Borrower, at its address set forth in
Schedule 9.2;
(b) if to any Lender, at its Domestic Lending Office
specified opposite its name on Schedule L-l hereto or in the Assignment and
Acceptance pursuant to which it became a Lender; and
(c) if to the Administrative Agent, at its address at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Loan Syndications,
Facsimile No. 000-000-0000;
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall be effective five (5) days after deposit in the mails and
when transmitted by telecopier, except that notices and communications to the
Administrative Agent pursuant to Articles 2, 3, or 8 shall not be effective
until received by the Administrative Agent.
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SECTION 9.3 No Waiver; Remedies. No failure on the part of
any Lender or either Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.4 Costs and Expenses.
(a) The Borrowers agree to pay on demand (i) all
out-of-pocket expenses (including fees, disbursements and other costs of legal
counsel) of the Administrative Agent incurred in connection with the
preparation, execution and delivery of this Agreement and the Loan Documents
required to be delivered pursuant to Section 3.1 of this Agreement in
accordance with the terms of that certain Proposal Letter dated January 10,
2003, between the Administrative Agent and Fresh Produce, and (ii) all
reasonable costs and expenses of the Administrative Agent in connection with
the administration, modification and amendment of the Loan Documents at any
time (including, without limitation, the reasonable out-of-pocket fees and
expenses of counsel for the Administrative Agent with respect to the
administration, modification and amendment of the Loan Documents, in connection
with the preparation, execution and delivery of any Loan Documents required to
be delivered with respect to events or circumstances arising after the
Agreement Date and not contemplated by Section 3.1 hereof, with respect to
advising the Administrative Agent as to its rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under the Loan
Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any
Default or any events or circumstances that may give rise to a Default and with
respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors' rights
generally and any proceeding ancillary thereto).
(b) The Borrowers further agree to pay on demand all
reasonable costs and expenses of the Administrative Agent and each Lender in
connection with the enforcement of the Loan Documents against any Loan Party,
whether in any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally or otherwise
(including without limitation the reasonable out-of-pocket fees and expenses of
counsel for the Administrative Agent and each Lender with respect thereto).
(c) Each Loan Party agrees to indemnify and hold harmless the
Administrative Agent, the Issuing Bank and each Lender and each of their
affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including without limitation reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation, claim or proceeding arising out of, related to or in
connection with:
(i) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its Subsidiaries
or any Environmental Action relating in any way to any Loan Party or
any of its Subsidiaries; or
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(ii) any Loan Document, any breach or alleged breach of
any representation or warranty made by any Loan Party thereunder, or
any financing or issuance of a Letter of Credit hereunder; or
whether or not such investigation, litigation or proceeding is brought by any
Loan Party, its directors, shareholders or creditors or an Indemnified Party or
any Indemnified Party is otherwise a party thereto (except to the extent one
Indemnified Party makes a claim against one or more Indemnified Parties) and
whether or not the transactions contemplated hereby are consummated, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. The
Borrowers agree not to assert any claim against the Administrative Agent, the
Issuing Bank, any Lender, any of their affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to any of the transactions contemplated herein or in
any other Loan Document or the actual or proposed use of the proceeds of the
Advances.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including
without limitation fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender, in its sole discretion.
SECTION 9.5 Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 7.2 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 7.2, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by Applicable Law and subject to Section 2.8, to set off and otherwise apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender or
such Affiliate to or for the credit or the account of a Borrower against any
and all of the Obligations of such Borrower now or hereafter existing under
this Agreement and the Note or Notes held by such Lender, irrespective of
whether such Lender shall have made any demand under this Agreement or such
Note or Notes and although such obligations may be unmatured. Each Lender
agrees promptly to notify such Borrower after any such set-off and application;
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its Affiliates
under this Section are in addition to other rights and remedies (including
without limitation other rights of set-off) that such Lender and its Affiliates
may have.
SECTION 9.6 Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrowers and the other Loan
Parties and the Administrative Agent and when the Administrative Agent shall
have been notified by each Lender that such Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrowers, the
Administrative Agent and each Lender and their respective successors and
assigns, except that no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of each
Lender except as permitted under Section 6.4.
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SECTION 9.7 Assignments and Participations, (a) Each Lender
may assign to one or more banks or other entities all or a portion of its
rights and obligations under this Agreement (including without limitation all
or a portion of its Commitment, and the Advances owing to it and the Note held
by it), and the Issuing Bank may assign its commitment with respect to its
obligation to issue Letters of Credit; provided that
(i) in the case of each such assignment of a Commitment
(except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement), the amount of
the Commitment of the assigning Lender being assigned pursuant to such
assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than
U.S.$2,500,000; provided, however, that no Lender shall have, at any
time, a Commitment in an amount less than U.S.$2,500,000;
(ii) each such assignment shall be to an Eligible
Assignee;
(iii) the proposed Assignee shall be approved by the
Administrative Agent and Fresh Produce (such approval not to be
unreasonably withheld or delayed and such approval of Fresh Produce
not to be required if an Event of Default has occurred and is
continuing); and
(iv) the parties to each such assignment shall execute
and deliver to the Administrative Agent for its own account, for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment
and a processing and recordation fee of U.S.$3,500. Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder or under any other Loan Document have
been assigned to it pursuant to such Assignment and Acceptance, shall
have the rights and obligations of a Lender hereunder, and (y) the
Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement and under each other Loan
Document (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and
Acceptance, such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of any Borrower or the performance or
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observance by any Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant
hereto;
(iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial statements
referred to in Section 3.1 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement;
(v) such assignee confirms that it is an Eligible
Assignee;
(vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto;
and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 9.2 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and their respective Commitments, the principal amount
of the Advances owing hereunder to, and the Notes held by, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit A
hereto, (i) accept such Assignment and Acceptance; (ii) record the information
contained therein in the Register; and (iii) give prompt notice thereof to the
Borrowers. Within five Business Days after its receipt of such notice, the
Borrowers shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal
to the Commitment retained by it hereunder. Such new Note or Notes shall be in
an aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit B
hereto.
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(e) Each Lender may sell participations in or to all or a
portion of its rights and obligations under this Agreement (including without
limitation all or a portion of its Commitment, the Advances owing to it and the
Note held by it); provided that (i) such Lender's obligations under this
Agreement (including without limitation its Commitment) shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations; (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement; (iv) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement; and (v) no participant under any such
participation shall have any right to approve such Lender's action with respect
to any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce or forgive the aggregate unpaid
principal amount of, or reduce the rate of interest or fees on, the Notes, in
each case to the extent subject to such participation, postpone any scheduled
date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, in each case to the extent subject to
such participation, or release any material portion of the Collateral or any
Guarantor from its obligations under its respective Guaranty Agreement, except
in connection with a sale or merger permitted hereunder or in accordance with
the terms of any other Loan Document. Each such participant shall have the
right of set-off set forth in Section 9.5 of this Agreement in respect of its
participating interest to the same extent as if the amount of its participating
interest was owed directly to it as a Lender; provided such right of set-off
shall be subject to the obligation of such participant to share with the
Lenders as provided in Section 2.8 of this Agreement.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.7, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Borrower furnished to such Lender
by or on behalf of such Borrower; provided, however, that, prior to any such
disclosure, such assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including without limitation the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System, or, as to any Lender that is a Farm Credit System
entity, in favor of the Farm Credit Funding Corp. or other appropriate funding
sources and entities within the Farm Credit System in accordance with the Farm
Credit Act of 1971, as amended.
SECTION 9.8 Marshalling; Payments Set Aside. None of the
Administrative Agent, any Lender or any Issuing Bank shall be under any
obligation to marshal any assets in favor of the Borrowers or any other party
or against or in payment of any or all of the Obligations. To the extent that a
Borrower makes a payment or payments to the Administrative Agent, the Lenders
or the Issuing Banks or any of such Persons receives payment from the proceeds
of the Collateral or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, right and
74
remedies therefor, shall be revived and continued in full force and effect as
if such payment had not been made or such enforcement or setoff had not
occurred.
SECTION 9.9 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.10 No Liability of the Issuing Bank. Each Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, that a Borrower
shall have a claim against the Issuing Bank, and the Issuing Bank shall be
liable to a Borrower, to the extent of any direct, but not consequential,
damages suffered by such Borrower that such Borrower proves were caused by (i)
the Issuing Bank's willful misconduct or gross negligence in determining
whether documents presented under any Letter of Credit comply with the terms of
the Letter of Credit or (ii) the Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 9.11 Survival of Obligations. The obligations of the
Loan Parties under Sections 2.3(c), 9.4, 10.2, 10.3, and 10.4, and of the
Lenders under Section 8.5, shall survive the termination of the Loan Documents
and the repayment of amounts due thereunder.
ARTICLE 10
INCREASED COSTS, TAXES, ETC.
SECTION 10.1 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,
upon demand (such demand to be made no later than 45 days subsequent to the
date of the increased
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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); provided further, however, that no amounts shall be payable
under this Section 10.1 (a): (x) for any increase in cost resulting from any
Excluded Taxes, or (y) for any Taxes in respect of which additional amounts are
payable pursuant to Section 10.2 hereof. 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 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
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(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 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 reason for such suspension or conversion, submitted to
such Borrower by such Lender, shall, in the absence of manifest error, be
conclusive and binding for all purposes.
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SECTION 10.2 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 2.7, 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 and the Administrative Agent, taxes that are imposed on
such Lender or the Administrative Agent by the United States and by the state
or non-U.S. 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 or the Administrative 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, (ii) in the case of each Lender, franchise
taxes and net income taxes that are imposed on such Lender by the state or
non-U.S. jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof, and (iii) any taxes imposed by reason of the
Lender's failure to comply with the provisions of Section 10.2(e) and (f)
hereof (such taxes described in the foregoing clauses (i), (ii) and (iii) are
collectively referred to as the "Excluded Taxes"; all taxes, levies, imposts,
deductions, charges, withholdings and liabilities other than the Excluded Taxes
are 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 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, the Issuing
Bank 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, imposed on or paid by such Lender, the Issuing Bank 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, the Issuing Bank or the Administrative Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
the Borrowers shall furnish to the Administrative Agent, at its address
referred to in Section 9.2, 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
78
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 hereunder, and on
the date of the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender, and from time to time thereafter if requested
in writing by a Borrower or the Administrative Agent (but only so long
thereafter as such Lender remains lawfully able to do so), provide the
Administrative Agent and such Borrower with Internal Revenue Service form
W-8BEN or W-8ECI, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party that reduces
the rate of interest-withholding tax on payments under this Agreement or the
Notes or certifying that the income receivable pursuant to this Agreement or
the Notes is effectively connected with the conduct of a trade or business in
the United States. If the appropriate forms provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates an
interest-withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such form; provided that, if at the date of the
Assignment and Acceptance pursuant to which a Lender assignee becomes a party
to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date by a Borrower, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includible in Taxes) withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN
or W-8ECI or other form that the applicable Borrower has indicated in writing
to the Lenders on the date hereof as being a required form to avoid or reduce
withholding tax on payments under this Agreement or on the Notes, that a Lender
reasonably considers to be confidential, such Lender shall give notice thereof
to the Borrowers and shall not be obligated to include in such form or document
such confidential information. If a Lender is a United States person, upon the
request of Fresh Produce, it agrees to complete and deliver to Fresh Produce a
statement signed by an authorized signatory of such Lender to the effect that
it is a United States person together with a duly completed and executed copy
of Internal Revenue Service form W-9 or successor form establishing that such
Lender is not subject to United States backup withholding tax.
(f) 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 and (ii) at least 90 days
prior to the first payment date with respect to which any Borrower shall apply
this subsection (f), such Borrower shall have notified each Lender
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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 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.
(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.
(h) Each Lender shall use reasonable efforts consistent with
its internal policy and legal and regulatory restrictions (including reasonable
efforts to change its Applicable Lending Office; provided that no Lender shall
have an obligation to so designate an Applicable Lending Office located in the
United States) to avoid the imposition of any Taxes for which the Borrowers are
required to pay additional amounts pursuant to Section 10.2(a) through (c)
hereof; provided, however, that such efforts shall not require any Lender to
incur additional costs or legal or regulatory burdens that the Lender considers
to be material.
SECTION 10.3 LIBO Breakage Costs. If any prepayment or
payment (or failure to prepay after the delivery of a notice of prepayment) of
principal of, or Conversion of, or failure to borrow after giving any Notice of
Borrowing of, any LIBO Rate Advance is made by a Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion, acceleration of the maturity of the
Notes pursuant to Section 7.2 or for any other reason, or by an Eligible
Assignee to a Lender other than on the last day of the Interest Period for such
Advance upon an assignment of rights and obligations under this Agreement
pursuant to Section 2.10, such Borrower shall, upon demand by such Lender (with
a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such
Lender for all losses, costs or expenses that such Lender may reasonably incur
as a result of such failure based on customary funding arrangements, whether or
not such arrangements actually occur, and any and all other losses, costs or
expenses incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain any Borrowing and the
unavailability of funds as a result of such Borrower failing to prepay any
amount when specified in a notice of prepayment or otherwise when due, but
excluding loss of anticipated profits.
SECTION 10.4 Judgment Currency, (a) If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due hereunder
or under the Notes in any currency (the "Original Currency") into another
currency (the "Other Currency") the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent
could purchase the Original Currency with the Other Currency at 11:00 A.M. on
the second Business Day preceding that on which final judgment is given.
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(b) The obligation of a Borrower in respect of any sum due in
the Original Currency from it to any Lender, the Issuing Bank or the
Administrative Agent hereunder or under the Notes held by such Lender shall,
notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Lender, the Issuing
Bank or the Administrative Agent (as the case may be) of any sum adjudged to be
so due in such Other Currency such Lender, the Issuing Bank or the
Administrative Agent (as the case may be) may in accordance with normal banking
procedures purchase the Original Currency with such Other Currency; if the
amount of the Original Currency so purchased is less than the sum originally
due to such Lender, the Issuing Bank or the Administrative Agent (as the case
may be) in the Original Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender, the
Issuing Bank or the Administrative Agent (as the case may be) against such
loss, and if the amount of the Original Currency so purchased exceeds the sum
originally due to any Lender, the Issuing Bank or the Administrative Agent (as
the case may be) in the Original Currency, such Lender, the Issuing Bank or the
Administrative Agent (as the case may be) agrees to remit to such Borrower such
excess.
ARTICLE 11
JURISDICTION
SECTION 11.1 Consent to Jurisdiction, (a) Each Borrower
irrevocably (i) submits to the jurisdiction of any New York State or Federal
court (to the extent such court has subject matter jurisdiction) sitting in New
York City and any appellate court from any thereof in any action or proceeding
arising out of or relating to any Loan Document; (ii) agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York State or in such Federal court and (iii) waives, to the fullest extent
that it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. To the fullest extent permitted by
Applicable Law, each Borrower hereby irrevocably appoints CT Corporation System
with an office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Process Agent"), as its agent to receive on behalf of each such Borrower
and its property service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding. Such service may
be made by mailing or delivering a copy of such process to any such Borrower in
care of the Process Agent at the Process Agent's above address, and each
Borrower hereby irrevocably authorizes and directs the Process Agent to accept
such service on its behalf. As an alternative method of service, each Borrower
also irrevocably consents to the service of any and all process in any such
action or processing by the mailing of copies of such process to such Borrower
at its address specified in Section 9.2. Each Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by applicable law.
(b) Nothing in this Section shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by applicable law or affect any right of either Agent or any Lender
to bring any action or proceeding against any Borrower or its property in the
courts of other jurisdictions.
(c) To the extent that any Borrower has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect
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to itself or its property, each Borrower to the extent permitted by law hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement and the other Loan Documents to which it is a party and, without
limiting the generality of the foregoing, agrees that the waivers set forth in
this subsection (c) shall have the fullest scope permitted under the United
States Foreign Sovereign Immunities Act of 1976, as amended, and are intended
to be irrevocable for purposes of such Act.
SECTION 11.2 Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 11.3 Waiver of Jury Trial. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT, AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY
LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers or directors thereunto
duly authorized, as of the date first above written.
BORROWERS: FRESH DEL MONTE PRODUCE INC., as Borrower
By:
-------------------------------------------
Title: Attorney-in-Fact
DEL MONTE FRESH PRODUCE N.A., INC., as
Borrower
By:
-------------------------------------------
Title: Executive Vice President and
Chief Financial Officer
DEL MONTE FRESH PRODUCE
INTERNATIONAL INC., as Borrower
By:
-------------------------------------------
Title: Director
FRESH DEL MONTE SHIP HOLDINGS LTD., as
Borrower
By:
-------------------------------------------
Title: Executive Vice President and Chief
Financial Officer
ADMINISTRATIVE AGENT, COOPERATIEVE CENTRALE RAIFFEISEN-
ISSUING BANKS AND LENDERS: BOERENLEENBANK B.A., "RABOBANK", NEW
YORK BRANCH, as Administrative Agent, Issuing
Bank and Lender
By:
-------------------------------------------
Authorized Officer:
By:
-------------------------------------------
Authorized Officer:
AMENDED AND RESTATED CREDIT AGREEMENT
X-x
XXXXXX TRUST AND SAVINGS BANK, as
a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-2
ING CAPITAL LLC, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-3
AGFIRST FARM CREDIT BANK, as a
Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-4
FARM CREDIT SERVICES OF AMERICA,
PCA, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-5
FARM CREDIT SERVICES OF MID-
AMERICA, PCA, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-6
FARM CREDIT WEST, PCA, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-7
FARM CREDIT SERVICES OF
MINNESOTA VALLEY, PCA d/b/a FCS
COMMERCIAL FINANCE GROUP, as a
Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-8
SUNTRUST BANK, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-9
U.S. BANK NATIONAL ASSOCIATION, as
a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-10
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-ll
1ST FARM CREDIT SERVICES, PCA, as a
Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-12
UNION BANK OF CALIFORNIA, N.A., as
a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
X-00
XXXXXXXXXX XXXX CREDIT
SERVICES, ACA/FLCA, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-14
COBANK, ACB, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-15
FARM CREDIT BANK OF WICHITA, as a
Lender
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
X-00
XXXXXX XXXX XXXXXXX XXX,
XXX XXXX BRANCH, as a Lender
By:
-------------------------------------------
Title:
---------------------------------
By:
-------------------------------------------
Title:
---------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
S-17
