SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.1

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

dated as of July 17, 2009

by and among

FRESH DEL MONTE PRODUCE INC.,

and

CERTAIN SUBSIDIARIES NAMED HEREIN,

as Borrowers ,

THE LENDERS AND ISSUING BANK NAMED HEREIN,

and

COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,

“RABOBANK NEDERLAND”, NEW YORK BRANCH ,

as Administrative Agent

 

COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,

“RABOBANK NEDERLAND”, NEW YORK BRANCH ,

as Lead Arranger

COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,

“RABOBANK NEDERLAND”, NEW YORK BRANCH,

BANK OF AMERICA, N.A., SUNTRUST ROBINSON HUMPHREY, INC.,

U.S. BANK NATIONAL ASSOCIATION

and

ING CAPITAL LLC,

as Joint Bookrunners

BANK OF AMERICA, N.A. and SUNTRUST BANK,

as Co-Syndication Agents ,

U.S. BANK NATIONAL ASSOCIATION

and

ING CAPITAL LLC,

as Co-Documentation Agents ,

and

AGFIRST FARM CREDIT BANK ,

as Managing Agent

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SECOND AMENDED and RESTATED CREDIT AGREEMENT dated as of July 17, 2009 among FRESH DEL MONTE PRODUCE INC., an exempted company duly incorporated under the laws of the Cayman Islands (“ 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 financial institutions as are, or may from time to time become, parties hereto as Lenders; the Issuing Bank party hereto; COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH , as lead arranger (the “ Lead Arranger ”); COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, BANK OF AMERICA, N.A., SUNTRUST ROBINSON HUMPHREY, INC., U.S. BANK NATIONAL ASSOCIATION and ING CAPITAL LLC, as joint bookrunners (the “ Joint Bookrunners ”); BANK OF AMERICA, N.A. and SUNTRUST BANK , as co-syndication agents (the “ Co-Syndication Agents ”); U.S. BANK NATIONAL ASSOCIATION and ING CAPITAL LLC, as co-documentation agents (the “ Co-Documentation Agents ”); AGFIRST FARM CREDIT BANK, as managing agent (the “ Managing Agent ”); and COÖPERATIEVE 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 ”).

W I T N E S S E T H :

WHEREAS, certain of the Borrowers, the Administrative Agent, the other agents parties thereto, certain of the Lenders, and the Departing Lenders are parties to that certain Amended and Restated Credit Agreement dated as of March 21, 2003 (such agreement, as amended, modified or supplemented prior to the date hereof, the “ Existing Credit Agreement ”); and

WHEREAS, the parties desire to enter into this Agreement to amend and restate the Existing Credit Agreement in its entirety and to replace the Departing Lenders; and

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 (except to the extent modified on the Agreement Date) 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):

“ Additional Lender ” has the meaning specified in Section 2.12.

“ 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 JP Morgan Chase, NA, ABA # 021000021, Account No. 400-212307, Favor: Rabobank International, New York Branch, Reference: Fresh Del Monte #80610, Attention: 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.

 

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“ Agreement ” means this Second Amended and Restated Credit Agreement.

“ Agreement Date ” means the date as of which this Agreement is dated.

“ Anti-Terrorism Laws ” means, collectively, any law, regulation or order relating to terrorism, national security, U.S. embargoes or other sanctions, or money laundering, including, without limitation, the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.), the Trading with the Enemy Act (50 U.S.C. § 5 et seq.), the International Security Development and Cooperation Act (22 U.S.C. § 2349aa-9 et seq.), Executive Order No. 13224, and the USA Patriot Act, and any rules and regulations promulgated pursuant to or under the authority of any of the foregoing (including, without limitation, the rules and regulations promulgated or administered by OFAC).

“ Applicable Accounting Standards ” means, as of the date of this Agreement, GAAP; provided, however, that, upon not less than thirty (30) days prior written notice to the Administrative Agent, Fresh Produce may change to IFRS, provided , however , in the case of any change to IFRS, (a) such notice of its change to IFRS shall be accompanied by a description in reasonable detail of any material variation between the application of accounting principles under GAAP and the application of accounting principles under IFRS in calculating the financial covenants under Section 6.16 hereof and the reasonable estimates of the difference between such calculations arising as a consequence thereof, and (b) if such change is reasonably deemed by the Administrative Agent to be material or detrimental to the Lenders, such change shall not be effective for purposes of calculating the financial covenants (or Applicable Margin) hereunder until Fresh Produce and the Administrative Agent have agreed upon amendments to the financial covenants (and related defined terms) contained herein to reflect any change in such basis.

“ 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 of Fresh Produce indicated below.

 

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The Applicable Margin for each Revolving Advance and the Unused Commitment 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 Revolving Advances and Unused Commitment, respectively, if Fresh Produce has not submitted to the Administrative Agent the information described in clause (a) of this proviso as and when required under Section 5.16(b) or (c), as the case may be, for so long as such information has not been received by the Administrative Agent, and (c) commencing on the Agreement Date, until the date which is three Business Days after the date on which the Administrative Agent receives audited financial statements pursuant to Section 5.16(c) and a certificate of the Chief Financial Officer of Fresh Produce demonstrating the Leverage Ratio for the fiscal year of Fresh Produce ending January 1, 2010, the Applicable Margins shall be the margins at Level 3 set forth in the grid above. In the event that the information contained in any financial statements delivered pursuant to Section 5.16(b) or (c), as the case may be, or the accompanying certificate of the Chief Financial Officer of Fresh Produce demonstrating such Leverage Ratio, is shown to be inaccurate (other than inaccuracies resulting from subsequent changes in accounting principles which were correctly applied at the time such certificate and financial statements were prepared), and such inaccuracy, if corrected, would have led to the application of higher Applicable Margins for any period (an “ ;Applicable Period ”) than the Applicable Margins actually applied for such Applicable Period, then (i) Borrowers shall immediately deliver to Administrative Agent and Lenders a correct certificate of the Chief Financial Officer of Fresh Produce demonstrating the revised Leverage Ratio

 

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for such Applicable Period, (ii) the Applicable Margins shall be determined as if such higher level set forth in the grid that was in effect for such Applicable Period were applicable for such Applicable Period, and (iii) Borrowers shall immediately deliver to the Administrative Agent full payment in respect of the accrued additional interest or fees as a result of such increased Applicable Margins for such Applicable Period, which payment shall be applied by the Administrative Agent in accordance with this Agreement.

“ Applicable Period ” has the meaning specified in the definition of “Applicable Margin” set forth in Section 1.1.

“ Applicant Borrower ” has the meaning specified in Section 2.13.

“ 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 greatest of:

(a) the rate of interest announced by Rabobank in New York, New York, from time to time and as in effect as of such day, as Rabobank’s base rate;

(b) 1/2 of one percent per annum above the Federal Funds Rate in effect as of such day; and

(c) the LIBO Rate for an Interest Period of one month in effect as of such day (or, if such day is not a Business Day, the immediately preceding Business Day) plus one percent (1.00%).

If for any reason the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate or the LIBO Rate for any reason, including the inability of the Administrative Agent to obtain sufficient quotations in accordance with the terms hereof, the Base Rate shall be determined without regard to clause (b) or (c), as applicable of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in Rabobank’s base rate or the LIBO Rate or the Federal Funds Rate shall be effective on the effective date of such change in such base rate or the LIBO Rate or the Federal Funds Rate, respectively, 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 that are Revolving Advances, or the interest rate margin mutually agreed between the Swing Line Bank and Fresh Produce with respect to Swing Line Advances.

“ Blocked Person ” has the meaning specified in Section 4.1(x).

 

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“ 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; provided, however, “Borrower” and “Borrowers” shall also include, if the conditions of Section 2.13 are satisfied, any other Designated Borrower.

“ 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.

“ 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 (a) which is financed by Debt (other than the Obligations) permitted hereunder, including, without limitation, the non-cash portion of Capitalized Leases, (b) which is otherwise treated as an expense on the statement of such Person that would have an effect on such Person’s EBITDA, (c) which is 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, (d) which is made with insurance proceeds received in respect of loss or damage to a fixed asset to replace such asset, (e) to the extent such Person or its Subsidiary is reimbursed in cash for such expenditure by a Person other than such Person or its Subsidiaries (provided if such reimbursement is received in connection with an expenditure made in the immediately preceding fiscal year, the amount of such reimbursement may be applied as a credit against the expenditures made in the current fiscal year), or (f) made in connection with the acquisition of any Person, or the 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, to the extent such acquisition is permitted by Section 6.6(h).

“ 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

 

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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 Moody’s or “A-1” (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 Moody’s or “A-1” (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: (a) any Person other than the direct and indirect shareholders of such Loan Party existing on the date hereof, (i) 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 (ii) 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 collectively constitute a majority of the Board of Directors of such Loan Party; or (b) any “change of control” (or similar defined term) under or as defined in any document governing Debt incurred pursuant to Section 6.2(l). 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.

“ Co-Documentation Agents ” has the meaning specified in the introductory paragraph of this Agreement.

“ Co-Syndication Agents ” has the meaning specified in the introductory paragraph of this Agreement.

“ 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 on its signature page hereto under the caption “Commitment,” or, if such Lender has entered into one or more Assignments and Acceptances or any agreements described in Section 2.12(e), set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.7(c) as such Lender’s “Commitment,” as such amount may be reduced pursuant to Section 2.5 or 2.10 or increased pursuant to Section 2.12.

 

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“ Computation Date ” means the date on which the Equivalent Amount in U.S. dollars of any Letters of Credit denominated in Pounds or Euros, as applicable, is determined.

“ 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) Consolidated Net Interest Expense, (ii) income tax expense, (iii) depreciation expense, (iv) amortization expense, (v) non-cash compensation expense defined in and required by SFAS 123(R), and (vi) 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 non-cash expense, in each case of Fresh Produce and its Subsidiaries, determined in accordance with GAAP for such period.

“ Consolidated Interest Expense ” means, for any period, all amounts that would be deducted in arriving at Consolidated Net Income for such period in respect of interest charges (including amortization of debt discount and expense and imputed interest on Capitalized Leases).

“ Consolidated Interest Income ” means, for any period, the sum of all amounts that would be included, for purposes of determining Consolidated Net Income, as income of Fresh Produce and its Subsidiaries for such period in respect of interest payments by third parties to Fresh Produce and its Subsidiaries.

“ 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:

(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 Net Interest Expense ” means, for any period, (a) Consolidated Interest Expense for such period, minus (b) Consolidated Interest Income for such period.

 

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“ Consolidated Total Debt ” of Fresh Produce means, without duplication and as of any date of determination, 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 Hedge 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 Hedge Contracts, (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 for such Type of Advances, 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%.

“ 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.

 

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“ 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 deemed insolvent by any Governmental Authority or be the subject of any bankruptcy, insolvency or similar action or proceeding in any applicable jurisdiction.

“ Del Monte Europe License ” means the Amended License Agreement dated May 9, 1990 between DMC and Del Monte Foods Limited (now known as Del Monte Europe Limited).

“ Del Monte International ” means Del Monte International, Inc., a company organized under the laws of Panama.

“ Del Monte International Licenses ” means (a) the Amended License Agreement dated May 4, 1990 between DMC and Del Monte International and (b) the Amended License Agreement dated May 9, 1990 between DMC and Del Monte International.

“ Departing Lenders ” means, collectively, any Persons that, immediately prior to the Agreement Date, were party to the Existing Credit Agreement as a “Lender” thereunder but are not Lenders under this Agreement, and are identified as “Departing Lenders” on the signature pages hereto.

“ Designated Borrower ” has the meaning specified in Section 2.13.

“ Designated Borrower Request and Assumption Agreement ” has the meaning specified in Section 2.13.

“ DMC ” means Del Monte Corporation, a New York corporation and licensor of the Trademarks pursuant to the Trademark Licenses.

“ Domestic Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” on its signature page 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.

 

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“ 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.

“ 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.

“ Equivalent Amount ” means (a) whenever this Agreement requires or permits a determination on any date of the equivalent in U.S. dollars of an amount expressed in Pounds or Euros, the equivalent amount in U.S. dollars of such amount expressed in Pounds or Euros, as applicable, as determined by the Administrative Agent on such date on the basis of the Spot Rate for the purchase of U.S. dollars with Pounds or Euros, as applicable, on the relevant Computation Date provided for hereunder; or (b) whenever this Agreement required or permits a determination on any date of the equivalent amount in Pounds or Euros of such amount expressed in U.S. dollars, the equivalent amount in Pounds or Euros, as applicable, of such amount expressed in U.S. dollars, as determined by the Administrative Agent on such date on the basis of the Spot Rate for the purchase of Pounds or Euros, as applicable, with U.S. dollars on the relevant Computation Date provided for hereunder.

“ 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.

 

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“ 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) an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur within the following 30 days with respect to a Plan the contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of which meets the requirements of subsection (1) of Section 4043(b) of ERISA but also including those sponsors generally excluded from the application of Section 4043 by subsection (2) of such Section; (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) or 4041A of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(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, except to the extent such cessation of operations relates to the letter agreement described in Schedule E-1 ; (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 400l(a)(2) of ERISA; (f) the conditions for imposition of a lien under Sections 412 or 430 of the Internal Revenue Code or Section 303(k) of ERISA shall have been met with respect to any Plan; (g) the termination of a Multiemployer Plan under Section 4041A of ERISA; (h) the reorganization or insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA; (i) a Single Employer Plan is in “at risk status” within the meaning of Internal Revenue Code Section 430(i); (j) a Multiemployer Plan is in “endangered status” or “critical status” within the meaning of Internal Revenue Code Section 432(b); or (k) 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.

“ Euros ” means the single currency of participating member states of the European Union.

“ 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).

“ Executive Order No. 13224 ” means Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

“ Existing Credit Agreement ” has the meaning specified in the recitals to this Agreement.

“ 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.

 

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“ 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.

“ 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 Chile ” means Del Monte Fresh Produce (Chile) S.A., a Chilean corporation.

“ Fresh International ” means Del Monte Fresh Produce International Inc., a Liberian corporation.

“ 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 Produce ” has the meaning specified in the introductory paragraph of this Agreement.

“ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be in general use by significant segments of the accounting profession in the U.S., that are applicable to the circumstances as of the date of determination.

“ 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 the Administrative 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-1 hereof, and each other Person that delivers a Guaranty Agreement at any time hereafter.

 

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“ 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 the heading of “Guarantor” on Schedule G-1 hereto, guaranteeing or providing an indemnity for the obligations described on Schedule G-1 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 Bank ” means any Lender or any Affiliate thereof that is party to a Hedge Contract with a Loan Party (or any Person party to a Hedge Contract with a Loan Party that was a Lender or an Affiliate thereof party to such Hedge Contract immediately prior to the assignment of all of its Commitments hereunder pursuant to Section 2.10).

“ Hedge Contracts ” 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, (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), and (c) 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, in each case, entered into in the ordinary course of business for bona fide hedging purposes and not for the purpose of speculation.

“ IFRS ” means the International Financial Reporting Standards, as promulgated by the International Accounting Standards Board.

 

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“ Impacted Lender ” means a Defaulting Lender or a Lender (a) that has defaulted in fulfilling its lending obligations under one or more other syndicated credit facilities, or (b) as to which an entity that controls such Lender has been deemed insolvent by any Governmental Authority or become the subject of a bankruptcy, insolvency or other similar proceeding.

“ Increased Commitments ” has the meaning specified in Section 2.12.

“ 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 Borrowing (or portion of the same Borrowing), the period commencing on the date of such LIBO Rate Advance or the date of Conversion of any Base Rate Advance into such LIBO Rate Advance, and ending on the last day of the period selected by any Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding 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, as such Borrower may, upon notice received by the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, select; provided that:

(a) the duration of any Interest Period for any LIBO Rate Advance that commences before the repayment date for such Advance and otherwise ends after such repayment date shall end on such repayment date;

(b) if any Borrower fails to select the duration of any Interest Period for a LIBO Rate Advance, the duration of such Interest Period shall be one month;

(c) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; provided that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;

(d) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month;

(e) such Borrower shall not select an Interest Period for a LIBO Rate Advance that ends after the Termination Date; and

(f) the Borrowers may also select Interest Periods of one, two, three or five weeks in duration (each, a “ Non-Conforming Interest Period ”), provided (i) no more than four Non-Conforming Interest Periods are selected during any calendar year and (ii) each Lender is able to fund the requested LIBO Rate Advance for such Non-Conforming Interest Period..

 

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“ 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.

“ Joint Bookrunner ” has the meaning specified therefor in the introductory paragraph of this Agreement.

“ 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).

“ Lead Arranger ” has the meaning specified therefor in the introductory paragraph of this Agreement.

“ Lenders ” means the banks and other financial institutions that have agreed to make Revolving Advances under the Total Commitment hereunder, as indicated on the signature pages 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).

“ 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.

 

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“ Letter of Credit Sublimit ” means U.S.$100,000,000.

“ 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 (provided if such Interest Period is a Non-Conforming Interest Period, the offered rate shall be determined based upon the offered rate for deposits in U.S. dollars for an Interest Period of (x) one month in connection with a Non-Conforming Interest Period of 1, 2, or 3 weeks, and (y) two months in connection with a Non-Conforming Interest Period of 5 weeks) which appear on Bloomberg page BBAM, pg.1 (Official BBA Libor Fixings) (or such other page or pages as the Administrative Agent, in agreement with the Borrowers and after consultation with the Lenders, shall nominate to replace that page or pages for the purpose of displaying offered rates of leading banks for London interbank deposits in U.S. dollars) as of 11:00 a.m., London time, on the day that is two Business Days preceding the first day of such Interest Period, or (ii) if a rate cannot be determined pursuant to clause (i) above, a rate per annum equal to the average (rounded upward to the nearest whole multiple of 1/100 of 1% per annum, if such average is not such a multiple) of the rate per annum at which deposits in U.S. dollars are available to the Administrative Agent as determined by the Administrative Agent in London, England to prime banks in the interbank market, as of 11:00 a.m., London time, on the day that is two Business Days preceding the first day of such Interest Period, by

(b) a percentage equal to 100%, minus the LIBO Rate Reserve Percentage for such Interest Period.

“ LIBO Rate Advance ” means a Revolving Advance denominated in U.S. dollars that bears interest at the LIBO Rate plus the Applicable Margin in effect from time to time with respect to Revolving Advances that are LIBO Rate Advances. 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 basic, special, 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 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.

 

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“ LIBOR Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “LIBOR Lending Office” on its signature page 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 Guaranty Agreements, the Security Documents, all L/C Related Documents, the Fee Letter, each Designated Borrower Request and Assumption Agreement, each Notice of Revolving Borrowing, each Notice of Swing Line Borrowing, each Notice of Issuance, any Hedge Contract between a Hedge 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 and, to the extent not modified, superseded, terminated or replaced on or after the Agreement Date, all Security Documents (as defined in the Existing Credit Agreement) delivered in connection with the Existing Credit 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.

“ Managing Agent ” has the meaning specified in the introductory paragraph of this Agreement.

“ 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 4.1(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 4.1(r) , and (c) the Trademark Licenses.

 

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“ Material Subsidiary ” means (a) as of the Agreement Date, those direct and indirect Subsidiaries of Fresh Produce listed on Schedule M-1 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:

(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).

“ Moody’s ” means Moody’s Investors Service Inc. or any successor thereto.

“ Multiemployer 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.

“ 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 (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.

 

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“ Non-Conforming Interest Period ” has the meaning specified in the definition of Interest Period set forth in Section 1.1.

“ Notice of Issuance ” has the meaning specified in Section 2.3(a).

“ Notice of Revolving Borrowing ” has the meaning specified in Section 2.2(a).

“ Notice of Swing Line Borrowing ” has the meaning specified in Section 2.2(b).

“ Obligation ” means, to the extent arising hereunder, 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 Hedge 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) Hedge Contract between a Loan Party and a Hedge 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).

“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“ 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.

“ 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.

 

20

“ 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 Fresh Produce or any Subsidiary of Fresh Produce which assets are acquired by Fresh Produce 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 Loan 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.

“ 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.

 

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“ 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 “Pledgor” on Schedule P-1 hereto, granting a Lien on the Stock described on Schedule P-1 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 Harris Trust and Savings Bank of even date herewith, and any other similar agreement among a Loan Party, the Administrative Agent and a 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-1 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.

“ Pounds ” means the lawful currency of the United Kingdom.

“ Process Agent ” has the meaning specified in Section 11.1(a).

“ Pro Forma Cost Savings ” means, with respect to any period of determination, the reduction in net costs and related adjustments that (a) were directly attributable to the acquisition permitted by Section 6.6(h), (b) result from actions actually taken during such period, (c) prior to the pro forma date of such acquisition, are supportable and quantifiable by the underlying accounting records of such business, and (d) are described, as provided below, in an officers’ certificate, as if all such reductions in costs had been effected as of the beginning of such period. Pro Forma Cost Savings described above shall be accompanied by an officers’ certificate delivered to the Administrative Agent from the chief financial officer of Fresh Produce that outlines the specific actions taken and the net cost savings achieved or to be achieved from each such action.

“ 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.

“ Receivable ” with respect to any Person, means all indebtedness owed to such Person by any obligor, whether or not constituting an account, a payment intangible or a general intangible and whether or not evidenced by chattel paper or an instrument, whether now existing or hereafter arising and wherever located, arising in connection with the sale of goods or the provision of

 

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services by such Person to an obligor, and all monies due or to become due under such indebtedness, and including the right to payment of any other obligations of such obligor with respect thereto.

“ 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 Total Commitment; provided , however , that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Required Lenders at such time (a) the aggregate principal amount of the Revolving Advances made by such Lender and outstanding at such time, (b) such Lender’s Pro Rata Share of the Letter of Credit Amount outstanding at such time, 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 Swing Line 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 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 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, the Swing Line Bank, any Hedge Bank, and the Issuing Bank, and “ Secured Party ” means any of the foregoing.

“ Security Agreements ” means (a) that certain Security Agreement of even date herewith among Fresh Produce, Fresh Chile, Fresh International, 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 Foods International Limited, Del Monte Europe Limited, and Del Monte (UK) Limited in favor of the Administrative Agent, (c) that certain Intellectual Property Security Agreement of even date herewith among Wafer, Fresh N.A., Fresh International, Fresh Chile, Del Monte Fresh Produce Company, Del Monte Fresh Produce (West Coast), Inc., Del Monte Europe Limited, Del Monte International, Del Monte Fresh Produce (Texas), Inc., and the

 

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Administrative Agent, and (d) 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.

“ SFAS 123(R) ” means Statement of Financial Accounting Standards No. 123 (revised 2004), “Share-Based Payment,” which requires all public companies that grant stock options to employees to recognize in its financial statements non-cash compensation expense of the fair value of the options.

“ Shipping Holdings ” means Fresh Del Monte Ship Holdings Ltd., an exempted company duly incorporated under the laws of the Cayman Islands.

“ 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 400l(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.

“ Spot Rate ” for a currency means the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative Agent of such currency with another currency through its foreign exchange office at approximately 11:00 a.m. (New York time) on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made.

 

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“ 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.

“ Subsidiary ” of any Person means any corporation, partnership, joint venture, limited liability company, trust, estate or other entity 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, estate or other entity, 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.

“ Successor Entity ” has the meaning specified in Section 6.4.

“ Supporting Documents ” has the meaning specified in Section 2.13.

“ Swing Line Advance ” means an advance made by the Swing Line Bank pursuant to Section 2.1(b).

“ 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).

“ 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.

“ Termination Date ” means the earlier of (a) January 17, 2013 and (b) the date of the termination in whole of the Commitments pursuant to Section 2.5 or 7.2.

“ Total Commitment ” means the aggregate of all Lenders’ Commitments not to exceed U.S.$500,000,000 at any time, as such amount may be reduced pursuant to Sections 2.5 and 2.10, and as such amount may be increased in accordance with Section 2.12, provided that nothing in this definition or Section 2.12 shall be deemed to obligate any Lender to increase such Lender’s Commitment hereunder, which Commitment shall be set forth as provided in the definition of “Commitment”.

“ Total Current Exposure ” has the meaning specified in Section 2.1(a).

 

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“ 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, the Del Monte Europe License and the Del Monte International Licenses.

“ 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 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 .” or “United States” means the United States of America.

“ U.S. dollars ” or “ U.S.$ ” means lawful money of the United States.

“ USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

“ 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.

 

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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 Applicable Accounting Standards 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 Applicable Accounting Standards 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 (except in connection with the first such statements to be delivered after a change from GAAP to IFRS in accordance with the definition of Applicable Accounting Standards herein) 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 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.

(c) Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations of Consolidated EBITDA, the Leverage Ratio, Consolidated Net Interest Expense and/or the Tangible Net Worth hereunder, (i) after consummation of any acquisition permitted by Section 6.6(h), (x) income statement items (whether positive or negative) attributable to the Person or property acquired in such transaction shall, to the extent not otherwise included in such income statement items for Fresh Produce and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.1, be included to the extent relating to any period applicable in such calculations, (y) Indebtedness incurred by Fresh Produce or its Subsidiaries to consummate such acquisition and, to the extent not retired in connection with such acquisition, Indebtedness of the

 

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Person or property acquired in such transaction, shall be deemed to have been incurred as of the first day of the applicable period, and (z) any assets acquired in such transaction shall be deemed to have been acquired as of the first day of the applicable period, and (ii) after consummation of any such acquisition permitted by Section 6.6(h), any applicable Pro Forma Cost Savings relating to such transaction may be included.

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 Termination 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 Termination Date in an aggregate amount not to exceed at any time outstanding U.S.$25,000,000 (the “ Swing Line Sublimit ”); provided that (i) at such time the Total Current Exposure, after giving effect to such Borrowing, shall not exceed the Total Commitment and (ii) if any Lender is an Impacted Lender, the Swing Line Bank shall have no obligation to fund a Swing Line Advance unless such Impacted Lender or Borrowers have entered into arrangements satisfactory to Administrative Agent and the Swing Line Bank to eliminate any funding risk associated with the Impacted Lender. 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, Pounds or Euros 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 Termination Date in an aggregate amount not to exceed at any time outstanding the Letter of Credit Sublimit in effect at such time; provided that, (i) after giving effect to the issuance of such Letter

 

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of Credit, the Total Current Exposure shall not exceed the Total Commitment, (ii) the aggregate amount of Letters of Credit denominated in Pounds and Euros shall not exceed the Equivalent Amount of U.S.$25,000,000 at any time, and (iii) if any Lender is an Impacted Lender, the Issuing Bank shall have no obligation to issue a Letter of Credit unless such Impacted Lender or Borrowers have entered into arrangements satisfactory to the Administrative Agent and the Issuing Bank to eliminate any funding risk with respect to such Impacted Lender. 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 Termination Date; provided , however , a Borrower may request issuance or renewal of a Letter of Credit with an expiry date after the Termination Date if, at the time of such issuance or renewal, such Borrower deposits into the L/C Cash Collateral Account an amount in immediately available funds equal to the face amount of such Letter of Credit. The reimbursement obligation under the Letter of Credit shall be payable in U.S. dollars (including the Equivalent Amount in U.S. dollars for any Letter of Credit issued in Pounds or Euros) 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 pursuant to Section 2.3(b) 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) Each 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 such Advances shall bear interest as a Base Rate Advance); provided , however , that (i) if the Borrowers fail to give the Administrative Agent three Business Days’ written notice specifying whether a LIBO Rate Advance is to be repaid or reborrowed on the last day of the applicable Interest Period for such LIBO Rate Advance, such LIBO Rate Advance shall be repaid and then reborrowed as a Base Rate Advance on such date, (ii) the Borrowers may not select a LIBO Rate Advance (A) with respect to the Swing Line Advances, (B) with respect to an Advance, the proceeds of which are to reimburse an Issuing Bank pursuant to Section 2.1(c) hereof, or (C) if, at the time of such Advance, a Default or an Event of Default has occurred and is continuing, and (iii) any Conversion of LIBO Rate Advances into Base Rate Advances shall only be made on the last day of the Interest Period for such LIBO Rate Advances, unless Borrowers pay to the Administrative Agent the amounts due under Section 10.3 hereof. Each Revolving Advance shall be made, to the extent that a Lender is so obligated under Section 2.1, on written notice from the Borrower requesting such Revolving Advance to the Administrative Agent delivered before 11:00 A.M. (New York City time) on, (i) in the case of a LIBO Rate Advance, a Business Day which is at least three (3) Business Days prior to the first day of the Interest Period for such LIBO Rate Advance, and (ii) in the case of a Base Rate Advance, on or before the Business Day for the making of such Advance, in each case, specifying (v) whether the Revolving

 

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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, in the case of a Revolving Advance, 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 B attached hereto, and being hereinafter referred to as the “ Notice of Revolving Borrowing ”). Each such Notice of Revolving Borrowing shall be sent by electronic mail or facsimile and signed by the chief financial officer, Vice President of Corporate Finance or the Vice President of Treasury or corporate controller of Del Monte Fresh Produce Company.

Each Lender making a Revolving Advance shall, before 1:00 P.M. (New York City time) on the date such Revolving Advance is to be made, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, such Lender’s Pro Rata Share of such Revolving Advance. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article 3, the Administrative Agent will make such funds available to the requesting Borrower by crediting the account of such Borrower set forth in the Notice of Revolving Borrowing pursuant to which the Revolving Advance is being made.

(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

 

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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 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 Revolving Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrowers requesting the Advances covered by such Notice and such Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Advance the applicable conditions set forth in Article 3, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Administrative Agent in the case of Advances by the Administrative Agent pursuant to Section 2.2(d)) to fund such Advance when such Advance, as a result of such failure, is not made on such date.

(d) Unless the Administrative Agent shall have received notice from a 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 Revolving Advance, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Revolving Advance in accordance with subsection (a) of this Section 2.2 and the Administrative Agent may, in reliance upon such assumption, make available to the requesting Borrower on such date a corresponding amount. If and to the extent that such 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 Revolving Advance for all purposes.

(e) The failure of any Lender to make any Advance required to be made by it shall not relieve any other Lender of its obligation, if any, under this Agreement to make any Advance required to be made by it, but no Lender shall be responsible for the failure of any other Lender to make any Advance required to be made by such other Lender.

 

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(f) Notwithstanding anything in this Agreement to the contrary, LIBO Rate Advances may not be outstanding as part of more than 15 separate Borrowings in the aggregate. Each LIBO Rate Advance shall be in an amount of U.S.$5,000,000 or an integral multiple of U.S.$100,000 in excess thereof. Each Base Rate Advance (other than the initial Base Rate Advance hereunder) shall be in an amount of U.S.$1,000,000 or an integral multiple of U.S. $100,000 in excess thereof.

SECTION 2.3 Issuance of and Drawings and Reimbursement Under Letters of Credit .

(a) Request for Issuance .

(i) Each Letter of Credit shall be issued upon notice, given not later than 11:00 A.M. (New York City time) on the second Business Day prior to the date of the proposed issuance of such Letter of Credit, by the requesting Borrower to the Administrative Agent. The Administrative Agent shall give to the Issuing Bank prompt notice thereof by telex, telecopier or electronic mail of such Borrower’s request for the issuance of a Letter of Credit. Each such notice of issuance of a Letter of Credit (a “ Notice of Issuance ”) shall be by telex, telecopier or electronic mail, specifying therein the requested (A) type of Letter of Credit, (B) date of such issuance (which shall be a Business Day), (C) stated principal amount of such Letter of Credit, (D) expiration of such Letter of Credit, (E) currency in which such Letter of Credit shall be denominated, which shall be U.S. dollars, Pounds or Euros, (F) name and address of the beneficiary of such Letter of Credit and (G) 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 and, in connection with any Letter of Credit denominated in Pounds or Euros, such Revolving Advance shall be made in the Equivalent Amount in U.S. dollars as of the date of such draft payment by the Issuing Bank. 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

 

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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 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;

 

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(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.

(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 Termination 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 second day of the immediately following calendar quarter during the term of such Lender’s Commitment and on the Termination 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 second 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 Termination Date, and (y) the amount of all usual and customary fees and expenses of the Issuing Bank for issuing, amending, or renewing any Letter of Credit, and (ii) pay to the Administrative Agent, for the account of the Lenders, a Letter of Credit Commission in respect of the Equivalent Amount in U.S. dollars 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 second 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 Termination Date.

 

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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 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 an amount of U.S.$300,000 or an integral multiple of U.S.$100,000 in excess thereof.

(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 Termination Date.

(ii) On any date on which the aggregate principal amount of all Swing Line Advances then outstanding shall exceed the amount of the Swing Line Sublimit, the Borrowers shall prepay Swing Line Advances in the aggregate principal amount equal to such excess.

(iii) Fresh Produce shall, if applicable, on the first Business Day of each month, either (x) make payment to the Administrative Agent for deposit in the L/C Cash Collateral Account, or (y) issue to the Administrative Agent a Letter of Credit denominated in U.S. dollars, in form and substance reasonably acceptable to the Administrative Agent, in an amount in either case sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral Account (excluding any amounts deposited pursuant to Section 7.3) or the face amount of such Letter of Credit delivered pursuant to clause (y), as applicable, to equal the amount by which the Equivalent Amount in U.S. dollars of all Letters of Credit denominated in Pounds or Euros exceeds U.S. $25,000,000 on the applicable Computation Date.

 

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SECTION 2.6 Interest .

(a) Interest . Except as set forth in clause (b) below, each Borrower shall pay interest on the unpaid principal amount of each Advance to it owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

(i) Base Rate Advances . During such periods as such Advance is a Base Rate Advance, (x) with respect to any Revolving Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to time plus (B) the Applicable Margin in effect with respect to Base Rate Advances 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 Fresh Produce, payable (A) in the case of any Base Rate Advance which is a Revolving Advance, (1) in arrears quarterly on the second day of the immediately following calendar quarter during such periods, and (2) on the Termination Date, and (B) in the case of any Base Rate Advance which is a Swing Line Advance, in arrears on (1) the second day of each calendar quarter, (2) upon the payment or prepayment thereof, and (3) on the Termination Date.

(ii) LIBO Rate Advances . During such periods as such Revolving Advance is a LIBO Rate Advance, a rate per annum equal at all times during each Interest Period for such Revolving Advance to the sum of (x) the LIBO Rate for such Interest Period for such Revolving 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 Revolving Advances shall be paid in full, and (3) the Termination Date.

(b) Default Interest . The unpaid principal amount of each Advance owing to each Lender and to the fullest extent permitted by law, the amount of any interest, fee or other amount payable under any Loan Document (other than Hedge Contracts) shall bear interest at the applicable Default Rate (i) immediately upon the occurrence of any Event of Default described in Section 7.1(a)(i) as a result of failure to pay principal of any Advance due hereunder, or any Event of Default under Section 7.1(g), and (ii) at the election of the Administrative Agent and the Required Lenders upon the occurrence of any other Event of Default.

SECTION 2.7 Payments and Computations .

(a) Each Borrower shall make each payment hereunder 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.

 

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(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 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 shall be stated to be due, or whenever the last day of the Interest Period would otherwise occur, on a day that is not a Business Day, such payment may be made, and the last day of such Interest Period shall occur, on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest, commitment fee or other fee, as the case may be; provided , however , that, if such extension would cause payment of interest on or principal of LIBO Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

SECTION 2.8 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 at such time) of payments on account of the Obligations due and payable to all Lenders hereunder at such time obtained by all the Lenders at such time, or

 

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(b) on account of Obligations owing (but not due and payable) to such Lender hereunder at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations 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 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 from 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 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

 

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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 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

 

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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 tha