SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10-b

 

 

$167,100,000

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

Dated as of March 27, 2003

 

Among

 

CHIQUITA BRANDS, INC.

 

and ATCON FINANZ, INC.

 

as Borrowers,

 

EACH OF THE LENDERS

INITIALLY A SIGNATORY HERETO,

TOGETHER WITH THOSE ASSIGNEES

PURSUANT TO SECTION 14.6 HEREOF,

 

as Lenders,

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

as Lead Arranger and Syndication Agent

 

and

 

WELLS FARGO FOOTHILL, INC.,

 

as Administrative Agent

 

CONFORMED TO INCORPORATE AMENDMENTS THROUGH DECEMBER 29, 2003, PURSUANT TO (1) FIRST AMENDMENT AND FIRST LIMITED WAIVER TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF MAY 22, 2003, (2) SECOND AMENDMENT AND SECOND LIMITED WAIVER TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF AUGUST 11, 2003, (3) THIRD AMENDMENT, THIRD LIMITED WAIVER AND CONFIRMATION RELATING TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF DECEMBER 1, 2003 AND (4) FOURTH AMENDMENT AND FOURTH LIMITED WAIVER TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF DECEMBER 29, 2003

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of March 27, 2003 among CHIQUITA BRANDS, INC., a Delaware corporation (“ CBI ”), Atcon Finanz, Inc., a Delaware corporation (“ Atcon ”) (each of CBI and Atcon being a “ Borrower ” and collectively the “ Borrowers ”), each of the lenders identified as Lenders on Schedule 1.1A hereto (together with each of their successors and assigns, referred to individually as a “ Lender ” and, collectively, as the “ Lenders ”), WELLS FARGO BANK, NATIONAL ASSOCIATION (“ Wells Fargo ”), acting as lead arranger and syndication agent, and WELLS FARGO FOOTHILL, INC. (“ Foothill ”), acting administrative agent in the manner and to the extent described in Article XIII hereof (in such capacity, the “ Agent ”).

 

W I T N E S S E T H:

 

WHEREAS, CBI, the Lender (as defined therein) and the Agent entered into that certain Amended and Restated Credit Agreement dated as of March 6, 2002 (as amended or otherwise modified to date, the “ Amended and Restated Credit Agreement ”) which amended and restated that certain Credit Agreement dated as of March 7, 2001 (the “ Original Credit Agreement ”) pursuant to which (i) the Lenders have made a term loan facility available to CBI having a current aggregate principal outstanding amount of $50,100,000 maturing on June 7, 2004 and (ii) the Lenders have provided a revolving credit facility (including letter of credit subfacility) to CBI in an aggregate principal amount, after giving effect to reductions made through the date hereof, not to exceed $122,100,000 at any time outstanding;

 

WHEREAS, the Borrowers desire that the Lenders increase the principal amount of credit available to the Borrowers to $187,100,000 by adding a new term loan in the principal amount of $65,000,000 to be provided to Atcon to fund the German Financing (as defined herein), and the Lenders are willing to provide the Borrowers with Loans in such amounts upon the terms and conditions set forth herein;

 

WHEREAS, the Borrowers and each Secured Credit Party desire to secure all of the obligations under the Credit Documents by providing a security interest and lien on all of Atcon’s personal property (to secure the obligations of Atcon) and by continuing the prior grant of a security interest in and lien upon all of CBI’s and each Secured Credit Party’s existing and after-acquired personal property to the Agent, all for the benefit of the Agent and the Lenders; and

 

WHEREAS, the Borrowers, the Lenders and the Agent now desire to amend and restate the Amended and Restated Credit Agreement to, among other things, accomplish the matters set forth above on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, the Borrowers, the Lenders and the Agent hereby agree as follows:

 

ARTICLE I.

 

DEFINITIONS

 

1.1 General Definitions .

 

As used herein, the following terms shall have the meanings herein specified:

 

“ Ableco ” shall mean Ableco Finance LLC.

 

“ Account Designation Letter ” shall mean a letter in the form of Exhibit I attached hereto.

 

“ Accounts ” shall mean all of CBI’s “accounts” (as defined in the Code), whether now existing or existing in the future, including, without limitation, all (i) accounts receivable (whether or not specifically listed on schedules furnished to the Agent), including, without limitation, all accounts created by or arising from all of CBI’s sales of goods or rendition of services made under any of CBI’s trade names or styles, or through any of CBI’s divisions; (ii) unpaid seller’s rights (including rescission, replevin, reclamation and stopping in transit) relating to the foregoing or arising therefrom, (iii) rights to any goods represented by any of the foregoing, including returned or repossessed goods; (iv) reserves and credit balances held by CBI with respect to any such accounts receivable or account debtors; (v) supporting obligations (including guarantees or collateral) for any of the foregoing; and (vi) insurance policies or rights relating to any of the foregoing.

 

“ Acknowledgement Agreements ” shall mean the Acknowledgment Agreements, substantially in the form of Exhibit A hereto, between CBI’s warehousemen, fillers, packers and processors and the Agent, in each case acknowledging and agreeing, among other things, (A) that such warehousemen, fillers, packers and processors do not have any Liens on any of the property of CBI or any Subsidiary and (B) to the collateral assignment by CBI to the Agent of its interest in the contracts with each of such warehousemen, fillers, packers and processors.

 

“ Acquired Company ” shall mean the Person (or the assets or business thereof) which is acquired pursuant to an Acquisition.

 

“ Acquisition ” shall mean (i) the purchase of more than 20% of the Capital Stock of a Person or the purchase of warrants and/or options (other than rights of first refusal, warrants and options received for nominal consideration and warrants and options of CBI or any of its Affiliates) to purchase Capital Stock of a Person which, if exercised, would amount to more than 20% of the Capital Stock of such Person, (ii) the purchase of Capital Stock of a Person if the consideration paid for such Capital Stock exceeds $1,000,000, (iii) the purchase of all or a substantial portion of the assets or business of any Person if the consideration paid for such assets or business exceeds $1,000,000 or (iv) the merger or consolidation with a Person in which CBI or a Subsidiary shall be the surviving or resulting corporation.

 

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“ Acquisition Documents ” shall mean any agreement pursuant to which an Acquisition is made in accordance with the terms hereof, including the exhibits and schedules thereto, and all agreements, documents and instruments executed and delivered pursuant thereto or in connection therewith.

 

“ Affiliate ” shall mean any entity which directly or indirectly controls, is controlled by, or is under common control with, CBI or any Subsidiary of CBI. For purposes of this definition, “control” shall mean the possession, directly or indirectly, of the power to (i) vote ten percent (10%) or more of the securities having ordinary voting power for the election of directors of such Person, or (ii) direct or cause the direction of management and policies of a business, whether through the ownership of voting securities, by contract or otherwise and either alone or in conjunction with others or any group.

 

“ Agent ” shall mean Foothill as Agent under the Amended and Restated Credit Agreement and as provided in the preamble to this Credit Agreement or any successor to Foothill.

 

“ Agent Bank Account ” shall have the meaning given to such term in Section 7.18(a) .

 

“ Agent’s Fees ” shall mean the fees payable by CBI and Atcon to the Agent as described in the Fee Letter.

 

“ Aggregate Required Lenders ” shall mean, at any time, (a) if the Existing Commitments have not been terminated, Lenders holding at least sixty-six and two-thirds percent (66 2/3%) of the sum of the Existing Commitments and the outstanding Term B Loans or (b) if the Existing Commitments have been terminated, Lenders holding at least sixty-six and two-thirds percent (66 2/3%) of the sum of the outstanding Loans and the outstanding Letter of Credit Obligations and participation interests (including the participation interests of the Issuing Bank in any Letters of Credit); provided , however , that such Lenders must be in compliance with their obligations hereunder (as determined by the Agent).

 

“ Aggregation Date ” shall have the meaning given to such term in Section 9.3 .

 

“ Allocated CBII Overhead ” shall mean the following overhead and disbursements of CBII, but only to the extent that they are allocated to CBI or any of its consolidated Subsidiaries: salaries, pension and benefit expenses, taxes (other than taxes on income or revenue), insurance costs, legal expenses, communication and maintenance fees, travel expenses, outside accounting fees, headquarter office expenses, deferred compensation and non-contractual severance expenses and principal, interest and other fees related to any Indebtedness.

 

“ Amended and Restated Credit Agreement ” shall have the meaning given to such term in the recitals to this Credit Agreement.

 

“ Applicable Prepayment Premium ” means, as of any date of determination, an amount equal to one-tenth of one percent (0.1%) of the Maximum Credit Line as of the Closing Date for each full or partial month remaining from the date of payment until the Maturity Date. In the event of an early termination of this Credit Agreement and a prepayment in full of all of

 

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the Obligations from a Qualified Refinancing, the amount of the Applicable Prepayment Premium determined hereunder shall be reduced by a percentage equal to the amount of the sum of the Existing Commitments and the outstanding Term B Loans which are held by those Lenders that participate in the Qualified Refinancing divided by the sum of all Existing Commitments and all outstanding Term B Loans, and the amount of such Applicable Prepayment Premium (as so reduced) shall be allocated to the Lenders not participating in such replacement credit facility.

 

“ Appraisal ” shall mean (i) that certain Trademarks and Tradenames Valuation dated March 27, 2002 performed by Daley-Hodkin Appraisal Corporation relating to Chiquita Brands International, Inc. or (ii) after the receipt by the Lenders of a new or updated valuation appraisal, such new or updated appraisal.

 

“ Asset Disposition ” shall mean the disposition (other than (i) a disposition described in clauses (a), (b), (c), (g), (j) or (k) of Section 9.3 , (ii) a disposition described in clause (d) of Section 9.3 to the extent that Net Cash Proceeds are reinvested or used as set forth therein, (iii) Specified Asset Dispositions, (iv) a disposition described in clauses (h) or (i) of Section 9.3 to the extent that Net Cash Proceeds are reinvested or used as set forth therein, and (v) any disposition of intellectual property rights pursuant to the Trademark License Agreement) of any or all of the assets (including, without limitation, the Capital Stock of CBI or its Subsidiaries) of CBI or its Subsidiaries, whether by sale, lease, transfer or otherwise, in a single transaction, or in a series of related transactions in any consecutive twelve (12) month period beginning on or after the Original Closing Date (a) that have a fair market value in the aggregate in excess of $1,000,000 or (b) for Net Cash Proceeds in the aggregate in excess of $1,000,000.

 

“ Asset Loss ” shall have the meaning given to such term in Section 7.10 .

 

“ Assignment and Acceptance ” shall mean an assignment and acceptance entered into by an assigning Lender and an assignee Lender, accepted by the Agent, in accordance with Section 14.6(g) , in the form attached hereto as Exhibit B .

 

“ Atcon ” shall have the meaning given to such term in the preamble of this Credit Agreement.

 

“ Atlanta ” shall mean ATLANTA Aktiengesellschaft.

 

“ Availability ” shall mean an amount equal to the difference of (i) the Revolving Credit Borrowing Base minus (ii) the sum of (a) the outstanding amount of Revolving Loans and Letter of Credit Obligations plus (b) the aggregate amount, if any, of all trade payables of CBI and the other Credit Parties (other than members of the Chiquita Fresh German Group) aged in excess of historical levels with respect thereto and all book overdrafts in excess of historical practices with respect thereto, in each case as determined in good faith by the Agent.

 

“ Back-to-Back Loan ” shall mean a loan made to a Subsidiary by a financial institution in which CBI or another Subsidiary (other than an Excluded Entity) owns a one hundred percent (100%) participation interest.

 

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“ Base LIBOR Rate ” means the rate per annum, determined by the Agent in accordance with its customary procedures, and utilizing such electronic or other quotation sources as it considers appropriate (rounded upwards, if necessary, to the next 1/16%), based on the rates at which Dollar deposits are offered to major banks in the London interbank market on or about 11:00 a.m. (California time) two (2) Business Days prior to the commencement of the applicable Interest Period, for a term and in amounts comparable to the Interest Period and amount of the LIBOR Rate Loan requested by CBI in accordance with this Credit Agreement, which determination shall be conclusive in the absence of manifest error.

 

“ Benefit Plan ” shall mean a defined benefit plan as defined in Section 3(35) of ERISA (other than a Multiemployer Plan) in respect of which CBI, any Subsidiary of CBI or any ERISA Affiliate is, or within the immediately preceding six (6) years was, an “employer” as defined in Section 3(5) of ERISA.

 

“ Bond Repurchase Fee ” has the meaning set forth in Section 4.3 .

 

“ Borrower ” and “ Borrowers ” shall have the meaning given to such terms in the preamble of this Credit Agreement.

 

“ Borrower Entities ” shall mean each Borrower, each Guarantor and each Subsidiary which is party to one or more Credit Documents.

 

“ Borrower Register ” shall have the meaning given to such term in Section 14.6(k) .

 

“ Bring Down Date ” shall have the meaning given to such term in the introductory paragraph to Article VI .

 

“ Business Day ” shall mean any day other than a Saturday, a Sunday, a legal holiday or a day on which national banks are authorized or required by law or other governmental action to close, except that, if a determination of a Business Day shall relate to a LIBOR Rate Loan, the term “Business Day” also shall exclude any day on which banks are closed for dealings in Dollar deposits in the London interbank market.

 

“ Capital Expenditures ” shall mean expenditures for the acquisition (including the acquisition by capitalized lease) or improvement of capital assets, as determined in accordance with GAAP.

 

“ Capital Lease ” shall mean, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

 

“ Capital Stock ” shall mean (i) in the case of a corporation, capital stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (iii) in the case of a partnership, partnership interests (whether general or limited), (iv) in the case of a limited liability company, membership interests and (v) any other equity interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

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“ Cash Equivalents ” shall mean, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one (1) year from the date of acquisition, (ii) time deposits or certificates of deposit of any commercial bank incorporated under the laws of the United States or any state thereof, of recognized standing having capital and unimpaired surplus in excess of $1,000,000,000 and whose short-term commercial paper rating at the time of acquisition is at least A-1 or the equivalent thereof by Standard & Poor’s Corporation or at least P-1 or the equivalent thereof by Moody’s Investors Services, Inc. (any such bank, an “Approved Bank”), with such deposits or certificates having maturities of not more than one (1) year from the date of acquisition, (iii) repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in clauses (i) and (ii) above entered into with any Approved Bank, (iv) commercial paper or finance company paper issued by any Person incorporated under the laws of the United States or any state thereof and rated at least A-1 or the equivalent thereof by Standard & Poor’s Corporation or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc., and in each case maturing not more than one year after the date of acquisition, and (v) investments in money market funds that are registered under the Investment Company Act of 1940, as amended, which have net assets of at least $1,000,000,000 and at least eighty-five percent (85%) of whose assets consist of securities and other obligations of the type described in clauses (i) through (iv) above. All such Cash Equivalents must be denominated solely for payment in Dollars.

 

“ CBCNA ” shall mean Chiquita Brands Company, North America, a Delaware corporation.

 

“ CBI ” shall have the meaning given to such term in the preamble of this Credit Agreement.

 

“ CBI Guarantee ” shall mean that certain Guarantee dated as of the Closing Date made by CBI in favor of the Agent.

 

“ CBI Maximum Credit Line ” shall mean $112,100,000, as such amount may be reduced from time to time (A) pursuant to and in accordance with Section 2.3 and Section 13.12 , (B) in connection with each Second Amendment Sale, as the Net Cash Proceeds of each Second Amendment Sale are used to prepay the Original Term Loans until an aggregate amount equal to $31,500,000 has been prepaid, by the amount so applied to such prepayment, (C) in connection with the CPF Sale, as CPF Sale Proceeds are used to make additional prepayments of the Original Term Loans (in excess of the $10,000,000 prepayment which was made on or about the CPF Closing Date), by the amount so applied to such prepayment, and (D) in connection with the Second Amendment Sales, as the Net Cash Proceeds of the Second Amendment Sales are used to make additional prepayments of the Original Term Loans (in excess of the $31,500,000 prepayments to be made on the Original Term Loans pursuant to clause (B) above), by the amount so applied to such prepayments.

 

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“ CBII ” shall mean Chiquita Brands International, Inc., a New Jersey corporation.

 

“ CBII Bonds ” shall mean the CBII 10.56% Senior Notes due 2009 issued pursuant to the Indenture dated as of March 15, 2002, with Wells Fargo Bank Minnesota, National Association, as Trustee, and the Certificate of Actions dated March 18, 2002, approving the terms of such Senior Notes.

 

“ Change of Control ” shall mean the occurrence of any of the following: (i) any Person or group of Persons acting collectively, owns more than thirty percent (30%) of the equity shares of CBII entitled to vote for the election of the Board of Directors of CBII (the “Voting Shares”), (ii) at any time a majority of CBII’s directors then in office consists of individuals who meet none of the following criteria: (A) such individuals are members of CBII’s board of directors as of the date of this Credit Agreement; (B) such individuals were members of CBII’s board of directors as of the date twelve months earlier than the date of determination; (C) such individuals are CBII directors appointed to replace any CBII directors who died, became disabled, or voluntarily resigned; (D) such individuals are CBII directors who were approved by a vote of a majority of CBII directors who meet any of the criteria in (A), (B), (C), or (E) or who were previously appointed or elected in accordance with (D) or (E); or (E) such individuals are CBII directors whose nomination for election by CBII shareholders was approved by a vote of a majority of CBII directors who meet any of the criteria in (A), (B), (C), or (D) or who were previously appointed or elected in accordance with (D) or (E), (iii) CBII ceases to own, directly or indirectly, one hundred percent (100%) of the issued and outstanding Capital Stock of CBI, or (iv) CBI ceases to own directly or indirectly one hundred percent (100%) of the issued and outstanding Capital Stock of Atcon, Euro Sub, Atlanta, Hameico GmbH or any Secured Credit Party (other than CBI) or Chiquita Banana Company B.V., a Netherlands company.

 

“ Chiquita Fresh European Group ” shall mean the following Persons and their Subsidiaries (other than members of the Chiquita Fresh German Group):

 

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Banafruta-Comercio de Bananas, LDA

 

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Chiquita Banana Company, B.V.

 

•

Chiquita Ceroz, s.r.o.

 

•

Chiquita Compagnie des Bananes

 

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Chiquita CR, S.r.o.

 

•

Chiquita Far East Holdings B.V.

 

•

Chiquita Finland Oy

 

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Chiquita Fresh B.V.B.A.

 

•

Chiquita Frupac B.V.

 

•

Chiquita International Services Group N.V.

 

•

Chiquita Italia, S.p.A.

 

•

Chiquita Tropical Fruit Company B.V.

 

•

International Banana Ripening Company N.V.

 

•

Meneu Distribucion S.A.

 

•

Processed Fruit Ingredients B.V.

 

•

Spiers N.V.

 

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“ Chiquita Fresh German Group ” shall mean the following Persons and their Subsidiaries:

 

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“Atlanta” Handelsgesellschaft Harder & Co. GmbH

 

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A. Lehmann Fruchtagentur GmbH

 

•

A. Lehmann Italia S.R.L.

 

•

Agenfruits S.A.

 

•

Amhof Frucht-GmbH

 

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ATABEL

 

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ATACRET s.r.l.

 

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Atcon

 

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ATLANTA Aktiengesellschaft

 

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Atlanta Austria Fruchthandel AG

 

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Atlanta Brasil LTDA

 

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Atlanta Fruchtagentur GmbH

 

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Atlanta Fruit Trade GmbH

 

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Atlanta Fruit Trade Kft Hungary

 

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Atlanta Kalisza Sp.z.o.o.

 

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Atlanta Pannonia Produktions und Handelsges mbH

 

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Atlanta PL GmbH

 

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Atlanta Prag Immobilien, sr.o.

 

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Atlanta Praha, Spol. Sr.o.

 

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Atlanta Spol.sr.o.

 

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ATLANTA World Trade GmbH

 

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Atlantis Transportversicherung AG

 

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August Lehmann GmbH & Co. KG

 

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Bieger Beteiligungs-GmbH

 

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Bratlanta B.V.

 

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BT Bau + Technik GmbH

 

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Direct Fruit Marketing DFM GmbH

 

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F. August Lehmann Beteiligungs GmbH

 

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Fruchthandel Gesellschaft Scipio & Fischer mbH

 

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Fruchtunion Bieger GmbH & Co. KG

 

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Fruchtunion Duisburg GmbH

 

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FRUCHTUNION Grosshandel mit Nahrungs- und Genussmittel Ges.mbh

 

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Fruchtunion Hamburg GmbH

 

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Fruit2Trade AG

 

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FRUTERA Fruchthandel Cottbus GmbH

 

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Fruttexport S.r.l.

 

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“Gemos” Assekuranz Kontor GmbH & Co. KG

 

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Habeco Bananenvertrieb GmbH

 

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Habeco-Fruchthandel GmbH

 

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Hameico Bananenvertrieb Stuttgart GmbH

 

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Hameico Berlin GmbH

 

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Hameico Bremen GmbH

 

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Hameico Dortmund GmbH

 

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Hameico Frankfurt GmbH

 

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Hameico Fruchthandel GmbH

 

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Hameico Fruchthandelsgesellschaft mbH

 

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“Hameico” Fruit Trade GmbH

 

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Hameico Hannover GmbH

 

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Hameico Koeln GmbH

 

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Hameico Neunkirchen GmbH

 

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Hameico Nuernberg GmbH

 

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Harwes GmbH

 

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Italimex S.r.l.

 

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Jos. Ahorner Ges.m.b.H.

 

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Lehmann Immobilien GmbH

 

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Leipzig-Bremer Frucht-GmbH

 

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Meneu Export S.A.

 

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Olfko Fruchthandel GmbH

 

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Olko Fruchthandelsgesellschaft Westerland mbH

 

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Profil Werbe- und Verlagsgesellschaft mbH

 

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S.A. Ets. Yves LE ROUX

 

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S.I.E.F.a.r.l.

 

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Scipio GmbH & Co.

 

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Scipio Immobilien GmbH & Co. KG

 

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Scipio Nederland B.V.

 

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Zentralreiferei Bremerhaven GmbH

 

“ Chiquita Fresh Latin American Group ” shall mean the following Persons and their Subsidiaries:

 

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Antioquia Establishment/Bijzondere Benedenwindse Beleggingen Establishment/Uraba Establishment/Tairona Establishment/Quindio Establishment and their Subsidiaries

 

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Banacorp, S.A./Compania Bananera Guatemalteca Independiente, S.A. and their Subsidiaries

 

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Baninc Establishment

 

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Blue Fish Holdings Establishment/CILPAC Establishment and their Subsidiaries (excluding Heaton Holdings, Ltd. and its Subsidiaries)

 

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Catellia Ltd./Tropical Traders Ltd. and their Subsidiaries

 

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Chiquita International Services Group N.V./Banexpro Ltd./Brundicorpi S.A. and their Subsidiaries

 

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Compania Agricola San Nicolas, S.A. and its Subsidiaries

 

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Compania La Cruz, S.A.

 

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Compania Mundimar, S.A.

 

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Conexpro Inc. Establishment and its Subsidiaries

 

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Financiera Agricola Limited

 

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Financiera Agro-Exportaciones Limitada

 

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Financiera Bananera Limitada

 

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Financiera Estrella Limited

 

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Valk Deelnemingen Establishment, Zwaan Deelnemingen Establishment, Buizerd Deelnemingen Establishment, Mus Deelnemingen Establishment,

 

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Kaketoe Deelnemingen Establishment, Struisvogel Deelnemingen Establishment, SZS Sargasso Zeeblelangen B.V. Establishment, Occidentalis Atlantis Establishment, Zonnekoning Overzee B.V. Establishment and their Subsidiaries

 

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Western Commercial International Ltd.

 

“ CIL ” shall mean Chiquita International Limited, a Bermuda company.

 

“ Closing ” shall mean the date on which the conditions set forth in Section 5.2 of this Credit Agreement have been satisfied or waived.

 

“ Closing Date ” shall mean the time at which the Closing occurs, which time shall occur not later than March 31, 2003.

 

“ Code ” shall have the meaning set forth in Section 1.3 .

 

“ Collateral ” shall mean any and all assets and rights and interests in or to property pledged from time to time as security for any or all of the Obligations, or any portion thereof, pursuant to the Security Documents whether now owned or hereafter acquired, including, without limitation, all of the Accounts, Chattel Paper, Deposit Accounts, Documents, Equipment, Fixtures, General Intangibles (including all intellectual property), Inventory, Instruments, Investment Property and Proceeds (each as defined in the Security Agreements).

 

“ Consolidated ” or “ consolidated ” with reference to any term defined herein, shall mean that term as applied to the accounts of CBI and all of its consolidated Subsidiaries, consolidated in accordance with GAAP.

 

“ Consolidated Capital Expenditures ” shall mean, for any applicable period of computation, an amount equal to the consolidated aggregate expenditures of CBI and its consolidated Subsidiaries (other than CPF and its Subsidiaries) during such fiscal period for the acquisition (including the acquisition by capitalized lease) or improvement of capital assets, as determined in accordance with GAAP.

 

“ Consolidated Cash Taxes ” shall mean, for any applicable period of computation, the aggregate of all taxes of CBI and its consolidated Subsidiaries (other than CPF and its Subsidiaries) on a consolidated basis determined in accordance with applicable law and GAAP applied on a consistent basis, to the extent the same are paid in cash during such period and the aggregate amount of all tax distributions made in cash as described in Schedule 9.6 during such period.

 

“ Consolidated EBITDA ” shall mean, for any applicable period of computation, the sum of (i) Consolidated Net Income for such period, but excluding therefrom all extraordinary items of income and all extraordinary non-cash items of loss, plus (ii) the aggregate amount of depreciation and amortization charges made in calculating Consolidated Net Income for such period, plus (iii) aggregate Consolidated Interest Expense for such period, plus (iv) the aggregate amount of all income taxes reflected on the consolidated statements of income of CBI and its Subsidiaries (other than CPF and its Subsidiaries) for such period plus (v) the amount of all non-cash adjustments resulting from fresh start accounting to the extent such amounts were deducted in determining Consolidated Net Income.

 

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“ Consolidated Fixed Charges ” shall mean, for any applicable period of computation, without duplication, the sum of (i) all Consolidated Interest Expense for the applicable period, plus (ii) Consolidated Scheduled Funded Debt Payments due during the applicable period, plus (iii) Consolidated Cash Taxes for the applicable period, plus (iv) Unallocated CBII Overhead for the applicable period, plus (iv) amounts advanced or distributed by CBI or any Subsidiary to CBII to enable it to pay interest on CBII’s Indebtedness.

 

“ Consolidated Funded Debt ” shall mean, as of the date of determination, all Funded Indebtedness of CBI and its consolidated Subsidiaries (other than CPF and its Subsidiaries), determined on a consolidated basis in accordance with GAAP.

 

“ Consolidated Interest Expense ” shall mean, for any applicable period of computation, interest expense, net of interest income, of CBI and its consolidated Subsidiaries (other than CPF and its Subsidiaries) for such period, as determined in accordance with GAAP.

 

“ Consolidated Net Income ” shall mean, for any applicable period of computation, the consolidated net income (or net deficit) of CBI and its consolidated Subsidiaries (other than CPF and its Subsidiaries) for such period, after deduction of all expenses, taxes and other proper charges, all as determined in accordance with GAAP.

 

“ Consolidated Scheduled Funded Debt Payments ” shall mean, for any applicable period of computation, the sum of all scheduled payments of principal on Consolidated Funded Debt for such period (including the principal component of payments due on Capital Leases or under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product (but excluding true leases) during the applicable period ending on such date); it being understood that Consolidated Scheduled Funded Debt Payments shall not include (i) voluntary prepayments or the mandatory prepayments required pursuant to Section 2.3 or (ii) principal payments with respect to Indebtedness of Indian River so long as such Indebtedness is not GAAP Indebtedness of CBI and its consolidated Subsidiaries.

 

“ Contractual Obligations ” shall mean, with respect to any Person, any term or provision of any securities issued by such Person, or any indenture, mortgage, deed of trust, contract, undertaking, document, instrument or other agreement to which such Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

 

“ Controlled ERISA Affiliate ” shall mean an ERISA Affiliate owned or controlled by CBII.

 

“ Coosemupar ” shall have the meaning given to such term in Section 9.3(j) .

 

“ Covenant Compliance Agreement ” means each agreement pursuant to which one or more Subsidiaries has, among other things, agreed that it shall not take, or omit to take any action which would cause either Borrower to be in violation or breach of this Agreement.

 

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“ CPF ” shall mean Chiquita Processed Foods, L.L.C., a Delaware limited liability company.

 

“ CPF Closing ” shall mean the “Closing” (as such term is defined in the CPF Purchase Agreement).

 

“ CPF Closing Date ” shall mean the “Closing Date” (as such term is defined in the CPF Purchase Agreement).

 

“ CPF Purchase Agreement ” shall have the meaning given to such term in Section 9.3(j) .

 

“CPF Sale” shall mean the disposition of 100% of the limited liability company interests in CPF to Seneca as described in more detail in Section 9.3(j).

 

“CPF Sale Proceeds” shall mean the sum of (a) the aggregate cash proceeds received by Friday Holdings from the CPF Sale, net of (i) direct costs (including, without limitation, legal, accounting and investment banking fees, and sales commissions) and (ii) taxes paid or payable as a result thereof plus, without duplication, (b) the Seneca Share Proceeds.

 

“ Credit Agreement ” shall mean this Second Amended and Restated Credit Agreement, dated as of the date hereof, as the same may be modified, amended, extended, restated or supplemented from time to time.

 

“ Credit Documents ” shall mean, collectively, this Credit Agreement, the Revolving Notes, the Term Loan Notes, the Letters of Credit, the Fee Letter, the Security Documents, the Guarantees, the Post-Closing Agreement, the Covenant Compliance Agreement, the German Financing Documents and all other documents, agreements, instruments, opinions and certificates executed and delivered in connection herewith or therewith, as the same may be modified, amended, extended, restated or supplemented from time to time.

 

“ Credit Parties ” shall mean the Borrowers and the Guarantors.

 

“ CTP ” shall mean Chiquita Tropical Products Company, a Delaware corporation.

 

“ Default ” shall mean an event, condition or default which, with the giving of notice, the passage of time or both would be an Event of Default.

 

“ Default Rate ” shall have the meaning given to such term in Section 4.2 .

 

“ Defaulting Lender ” shall have the meaning given to such term in Section 2.1(d)(iii) .

 

“ Documents ” shall have the meaning given to such term in Section 14.19 .

 

“ DOL ” shall mean the U.S. Department of Labor and any successor department or agency.

 

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“ Dollars ” and “ $ ” shall mean dollars in lawful currency of the United States of America.

 

“ Eligible Accounts Receivable ” shall mean the aggregate face amount of CBI’s Accounts that conform to the warranties contained herein, less the aggregate amount of all customer deposits, returns, discounts, claims, credits, charges (including warehousemen’s charges) and allowances of any nature (whether issued, owing, granted or outstanding), and less the aggregate amount of all reserves for slow paying accounts, foreign sales, and bill and hold (or deferred shipment) transactions. Unless otherwise approved in writing by the Agent, no Account shall be deemed to be an Eligible Account Receivable if:

 

(i) it arises out of a sale made by CBI to an Affiliate; or

 

(ii) the Account (a) does not require full payment of the amount thereof within thirty (30) days of the applicable sale or (b) is unpaid more than ninety (90) days after the original due date; or

 

(iii) fifty percent (50%) or more, in face amount, of other Accounts from such account debtor (or any affiliate thereof) are due or unpaid more than ninety (90) days after the original due date; or

 

(iv) the amount of the Account, when aggregated with all other Accounts of such account debtor, exceeds fifteen percent (15%) in face value of all Accounts of CBI then outstanding, to the extent of such excess; or

 

(v) (A) the account debtor is also a creditor of CBI, to the extent of the amount owed by CBI to the account debtor, (B) the account debtor has disputed its liability on, or the account debtor has made any claim with respect to, such Account or any other Account due from such account debtor to CBI, which has not been resolved or (C) the Account otherwise is or may become subject to any right of setoff by the account debtor, to the extent of the amount of such setoff; or

 

(vi) the Account is owing by an account debtor that has commenced a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or made an assignment for the benefit of creditors, or if a decree or order for relief has been entered by a court having jurisdiction in the premises in respect to such account debtor in an involuntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or if any other petition or other application for relief under the federal bankruptcy laws has been filed by or against the account debtor, or if such account debtor has failed, suspended business, ceased to be solvent, or consented to or suffered a receiver, trustee, liquidator or custodian to be appointed for it or for all or a significant portion of its assets or affairs; or

 

(vii) the sale is to an account debtor outside the continental United States or Canada, unless the sale is (A) on letter of credit, guaranty or acceptance terms, or subject to credit insurance, in each case acceptable to the Agent in its sole discretion, or (B) otherwise approved by and acceptable to the Agent in its sole discretion; or

 

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(viii) the sale to the account debtor is on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval or consignment basis or made pursuant to any other written agreement providing for repurchase or return; or

 

(ix) the goods giving rise to such Account have not been shipped and delivered to and accepted by the account debtor or its designee or the services giving rise to such Account have not been performed by or on behalf of CBI and accepted by the account debtor or its designee or the Account otherwise does not represent a final sale; or

 

(x) the Accounts owing by a particular account debtor exceed a credit limit as to that account debtor determined by the Agent, in its reasonable discretion, to the extent such Accounts owing by the particular account debtor exceed such limit; or

 

(xi) the Account is subject to a Lien which has priority over the Lien of the Agent in such Account other than Liens arising from claims under PACA; provided however, the Agent shall establish a reserve against Eligible Accounts Receivable to the extent of such PACA claims;

 

(xii) the Account was acquired by CBI from CBII or any Affiliate of CBI;

 

(xiii) the Account did not arise from the sale of bananas or plantains for which Chiquita Brands Company, North America or Chiquita (Canada) Inc. acted as CBI’s sales agent pursuant to a contract approved by the Agent;

 

(xiv) the account debtor with respect to such Account is either (i) the United States or any department, agency, or instrumentality of the United States (exclusive, however, of Accounts with respect to which CBI has complied, to the reasonable satisfaction of Agent, with the Assignment of Claims Act, 31 USC § 3727), or (ii) any state of the United States (exclusive, however, of (y) Accounts owed by any state that does not have a statutory counterpart to the Assignment of Claims Act, or (z) Accounts owed by any state that does have a statutory counterpart to the Assignment of Claims Act as to which CBI has complied to Agent’s satisfaction); or

 

(xv) the account debtor with respect to such Account is a trucking company.

 

In addition to the foregoing, Eligible Accounts Receivable shall include such Accounts as CBI shall request and that the Agent approves in advance, in writing and in its reasonable judgment.

 

“ Equity Issuance ” shall mean any issuance by CBI or any of its Subsidiaries to any Person other than to CBI or any of its Subsidiaries or any direct or indirect parent of CBI of (a) shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of options or warrants or (c) any shares of its Capital Stock pursuant to the conversion of any debt securities to equity. The term “Equity Issuance” shall not include any Asset Disposition.

 

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute.

 

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“ ERISA Affiliate ” shall mean any (i) corporation which is or was at any time a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Internal Revenue Code) as CBI or any Subsidiary of CBI; (ii) partnership or other trade or business (whether or not incorporated) at any time under common control (within the meaning of Section 414(c) of the Internal Revenue Code) with CBI or any Subsidiary of CBI; and (iii) member of the same affiliated service group (within the meaning of Section 414(m) of the Internal Revenue Code) as CBI or any Subsidiary of CBI, any corporation described in clause (i) above, or any partnership or trade or business described in clause (ii) above.

 

““ Euro Sub ” shall mean Atlanta Finanz Service GmbH & Co. KG (f/k/a Scipio Immobilien GmbH & Co. KG).

 

“ Event of Default ” shall have the meaning provided for in Article XI .

 

“ Excluded Chiquita Fresh German Group Entity ” shall mean each of the following Persons:

 

•

Atlanta Bratislava

 

•

Atlanta Budweis

 

•

Atlanta Bulgaria GmbH

 

•

BFG Bremische Finanz-beteiligungs-GmbH & Co. KG

 

•

Port & Timme Fruchtbeteiligungs-GmbH, Hamburg

 

•

T. Port (GmbH & Co.)

 

“ Excluded Entities ” shall mean Frupac and its Subsidiaries, GWF and its Subsidiaries, and Heaton Holdings, Ltd., Alsama, Ltd., Exportadora Chiquita-Enza Limitada, Servicios Chiquita-Enza Chile Limitada, Anacar LDC and their Subsidiaries.

 

“ Excluded Taxes ” shall have the meaning given to such term in Section 2.7 .

 

“ Exempt Assignment ” shall have the meaning given to such term in Section 14.6(c) .

 

“ Existing Commitment ” of any Lender means the amount set forth opposite such Lender’s name as its “Existing Commitment” on Schedule 1.1A hereto, as such amounts may be modified as a result of an assignment hereunder, or as a result of a reduction pursuant to Section 2.3 .

 

“ Existing Lender ” shall mean each of the Lenders with an Existing Commitment of greater than zero and their respective successors and assigns.

 

“ Existing Letters of Credit ” shall mean those letters of credit listed on Schedule 1.1B hereto.

 

“ Existing Loans ” shall mean the Revolving Loans and the Original Term Loans.

 

“ Existing Required Lenders ” shall mean, at any time, Lenders which are then in compliance with their obligations hereunder (as determined by the Agent) and holding in the

 

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aggregate at least sixty-six and two-thirds percent (66  ² / 3 %) of (i) the sum of all Existing Commitments or (ii) if all the Existing Commitments have been terminated, the outstanding Original Term Loans, Revolving Loans and participation interests (including the participation interests of the Issuing Bank in any Letters of Credit).

 

“ Federal Funds Rate ” shall mean, 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 on such transactions received by the Agent from three Federal Funds brokers of recognized standing selected by it.

 

“ Fee Letter ” shall mean the second amended and restated letter agreement, dated as of the date hereof, among the Agent, Atcon and CBI regarding the fees to be paid by CBI and Atcon to the Agent, as amended, restated, supplemented or otherwise modified from time to time.

 

“ Fees ” shall mean, collectively, the Agent’s Fees, the Letter of Credit Fee and the Issuing Bank Fees payable hereunder.

 

“ Financials ” shall have the meaning given to such term in Section 6.6 .

 

“ Fixed Charge Coverage Ratio ” shall mean, for any period, the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Fixed Charges for such period.

 

“ Food Security Act ” shall mean the Food Security Act of 1985, as amended, and any successor statute thereto, including all rules and regulations thereunder, all as the same may be in effect from time to time.

 

“ Foothill ” shall have the meaning given to such term in the preamble of this Credit Agreement.

 

“ Foreign Currency Exchange Agreement ” shall mean any foreign currency exchange agreement, hedging agreement, cap, collar or similar agreement entered into between one or more Credit Parties and any Lender or an affiliate of any Lender.

 

“ Foreign Lender ” shall have the meaning given to such term in Section 2.7(a) .

 

“ Friday Holdings ” shall have the meaning given to such term in Section 9.3(j) .

 

“ Frupac ” shall mean Chiquita Frupac, Inc., a Delaware corporation.

 

“ Funded Indebtedness ” shall mean, with respect to any Person, without duplication, (a) all Indebtedness of such Person other than Indebtedness of the types referred to in clause (e), (f), (g), (i), (k), (l) and (m) of the definition of “Indebtedness” set forth in this Section 1.1 , (b) all Indebtedness of another Person of the type referred to in clause (a) above

 

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secured by (or for which the holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (c) all guaranties of such Person with respect to Indebtedness of the type referred to in clause (a) above of another Person and (d) Indebtedness of the type referred to in clause (a) above of any partnership or unincorporated joint venture in which such Person is legally obligated or has a reasonable expectation of being liable with respect thereto.

 

“ Funding Bank ” shall have the meaning given to such term in Section 4.7 .

 

“ Funding Losses ” shall have the meaning given to such term in Section 4.8(b)(ii) .

 

“ GAAP ” shall mean generally accepted accounting principles in the United States of America, in effect from time to time.

 

“ GAAP Indebtedness ” shall mean debt for borrowed money which is or is required to be reflected as a liability on the balance sheet of the respective obligor in accordance with GAAP.

 

“ German Acquisition ” shall mean the transactions described on Schedule 1.1F .

 

“ German Collateral ” shall mean any and all assets and rights and interests in or to property pledged by one or more members of the Chiquita Fresh German Group from time to time as security for any or all of the obligations owing in respect of any or all of the German Financing.

 

“ German Financing ” shall mean the Term B Loans and the loans evidenced by the German Notes.

 

“ German Financing Documents ” shall mean the German Notes, the German Pledge Agreements, and each other pledge agreement, security agreement, mortgage or other document, instrument or agreement pursuant to which one or more Persons grant a lien on any or all of their assets to secure any or all of the German Financing.

 

“ German Notes ” shall mean (i) that certain promissory note dated the Closing Date made by Euro Sub to Atcon in the original principal amount of $65,000,000 and (ii) that certain promissory note dated the Closing Date made by Atlanta to Euro Sub in the original principal amount of $65,000,000.

 

“ German Pledge Agreements ” shall mean each pledge agreement or similar agreement pursuant to which the equity, membership interests or partnership interests, or the equivalent thereof, of any Person (other than Atcon) that is, now or in the future, a member of the Chiquita Fresh German Group is pledged to secure any or all of the German Financing.

 

“ Government Acts ” shall have the meaning given to such term in Section 3.8(a) .

 

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“ Governmental Authority ” shall mean any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.

 

“ Guarantees ” shall mean the CBI Guarantee, those certain Guarantees dated as of the Original Closing Date made by certain of the Guarantors in favor of the Agent (for itself and the Lenders) and each other agreement pursuant to which any Person unconditionally guarantees the Obligations or any portion thereof.

 

“ Guarantors ” shall mean CBI in its capacity as a guarantor of Acton’s obligations, each of those Persons listed on Schedule 6.9 hereto as a Guarantor, each of those Persons that executes a Joinder Agreement to a Guarantee after the Closing Date and each other Person which unconditionally guarantees any or all of the Obligations.

 

“ GWF ” shall mean Great White Fleet Ltd., a Bermuda company.

 

“ Hameico ” shall have the meaning given to such term in Section 6.6 .

 

“ Hedging Agreements ” shall mean any Interest Rate Protection Agreement, foreign currency exchange agreement, commodity purchase or option agreement or other interest or exchange rate or commodity price hedging agreements.

 

“ Highest Lawful Rate ” shall mean, at any given time during which any Obligations shall be outstanding hereunder, the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness under this Credit Agreement, under the laws of the State of New York (or the law of any other jurisdiction whose laws may be mandatorily applicable notwithstanding other provisions of this Credit Agreement and the other Credit Documents), or under applicable federal laws which may presently or hereafter be in effect and which allow a higher maximum nonusurious interest rate than under New York or such other jurisdiction’s law, in any case after taking into account, to the extent permitted by applicable law, any and all relevant payments or charges under this Credit Agreement and any other Credit Documents executed in connection herewith, and any available exemptions, exceptions and exclusions.

 

“ Inactive Subsidiary ” shall mean each Subsidiary (other than a Guarantor, a Pledgor Entity or a Pledged Party) which (a) owns assets with a book value of less than $1,000,000 as of the last day of the past fiscal year or (b) had sales for the past fiscal year of less than $1,000,000 (as of the Closing Date, the Inactive Subsidiaries are identified as such on Schedule 6.9 hereto as Inactive Subsidiaries).

 

“ Indebtedness ” shall mean, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and either due within six months of the incurrence thereof or incurred on longer

 

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payment terms for the purchase of cans and related packaging products) which would appear as liabilities on a balance sheet of such Person, (e) all obligations of such Person under take-or-pay or similar arrangements or under commodities agreements, (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all guaranties of such Person with respect to Indebtedness of the type referred to in this definition of another Person, (h) the principal portion of all obligations of such Person under Capital Leases, (i) all obligations of such Person under Hedging Agreements (with the amount thereof, for the purposes of this Credit Agreement, being the net amount thereof in accordance with GAAP), (j) the maximum amount of all standby letters of credit issued or bankers’ acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (k) all preferred Capital Stock issued by such Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date, (l) the principal portion of all obligations of such Person under synthetic leases, tax retention operating leases and other similar off-balance sheet financing arrangements (but excluding true leases) and (m) the Indebtedness of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer and for which such Person is legally obligated.

 

“ Independent Accountant ” shall mean a firm of independent public accountants of nationally recognized standing selected by CBI, which is “independent” as that term is defined in Rule 2-01 of Regulation S-X promulgated by the Securities and Exchange Commission.

 

“ Indian River ” shall mean The Packers of Indian River, Ltd., a limited partnership formed under the laws of the state of Florida.

 

“ Initial Lender ” shall mean Foothill or Ableco.

 

“ Insurance Premium Block ” shall mean a block on Availability pursuant to Section 2.1 hereof that is instituted at any time when the sum of (i) Availability plus (ii) CBI’s and its Subsidiaries’ (other than any Excluded Entity’s) unrestricted cash and Cash Equivalents, is less than $20,000,000. Such Insurance Premium Block shall, as of any date of determination, be in an amount equal to the lesser of (i) the Indebtedness then outstanding and permitted pursuant to clause (d)(xiv) of the defined term “Permitted Indebtedness,” or (ii) the amount of the insurance premium that would be payable for 90 days of the insurance policy for which the premium was financed as permitted pursuant to clause (d)(xiv) of the defined term “Permitted Indebtedness.”

 

“ Interest Period ” means, with respect to each LIBOR Rate Loan, a period commencing on the date of the making of such LIBOR Rate Loan and ending 1, 2, or 3 months thereafter; provided , however , that (a) if any Interest Period would end on a day that is not a Business Day, such Interest Period shall be extended (subject to clauses (c)-(e) below) to the next succeeding Business Day, (b) interest shall accrue at the applicable rate based upon the LIBOR Rate from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period expires, (c) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in

 

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another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (d) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month that is 1, 2, or 3 months after the date on which the Interest Period began, as applicable, and (e) CBI may not elect an Interest Period which will end after the Maturity Date.

 

“ Interest Rate ” shall have the meaning given to such term in Section 4.1 .

 

“ Interest Rate Protection Agreement ” shall mean any interest rate protection agreement, foreign currency exchange agreement, commodity purchase or option agreement or other interest or exchange rate or commodity price hedging agreements between CBI and any Lender or any affiliate of a Lender.

 

“ Internal Revenue Service ” shall mean the Internal Revenue Service and any successor agency.

 

“ Internal Revenue Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time, and any successor statute thereto and all rules and regulations promulgated thereunder.

 

“ Inventory ” shall mean all of CBI’s inventory, including without limitation, (i) all raw materials, work in process, parts, components, assemblies, supplies and materials used or consumed in CBI’s business; (ii) all goods, wares and merchandise, finished or unfinished, held for sale or lease or leased or furnished or to be furnished under contracts of service; and (iii) all goods returned to or repossessed by CBI.

 

“ Investment ” in any Person shall mean (i) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise, but exclusive of the acquisition of inventory, supplies, equipment and other property or assets used or consumed in the ordinary course of business of CBI or its Subsidiaries and Consolidated Capital Expenditures not otherwise prohibited hereunder) of assets, shares of Capital Stock, bonds, notes, debentures, partnership, joint ventures or other ownership interests or other securities of such Person, (ii) any deposit (other than deposits constituting a Permitted Lien) with, or advance, loan or other extension of credit (other than sales of inventory or services on credit in the ordinary course of business and payable or dischargeable in accordance with customary trade terms and sales on credit of the type described in clauses (c) or (d) of Section 9.3 ) to, such Person or (iii) any other capital contribution to or investment in such Person, including, without limitation, any obligation incurred for the benefit of such Person. In determining the aggregate amount of Investments outstanding at any particular time, (a) the amount of any Investment represented by a guaranty shall be taken at not less than the maximum principal amount of the obligations guaranteed and still outstanding; (b) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (c) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise; and (d) there shall not be deducted from the aggregate amount of Investments any decrease in the market value thereof.

 

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“ Issuing Bank ” shall mean Foothill or any Person that is acceptable to the Agent which shall issue an L/C Undertaking for the account of CBI.

 

“ Issuing Bank Fees ” shall have the meaning given to such term in Section 4.5(b) .

 

“ Joinder Agreement ” shall mean an agreement in the form of Exhibit J attached hereto.

 

“ L/C Undertaking ” shall mean a participation in, or a reimbursement or indemnification undertaking with respect to, a Letter of Credit.

 

“ Lender ” shall have the meaning given to such term in the preamble of this Credit Agreement.

 

“ Lending Party ” shall have the meaning given to such term in Section 14.7 .

 

“ Letter of Credit Committed Amount ” shall have the meaning given to such term in Section 3.1 .

 

“ Letter of Credit Documents ” shall mean, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor, and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or at risk or (ii) any collateral security for such obligations.

 

“ Letter of Credit Fee ” shall have the meaning given to such term in Section 4.5(a) .

 

“ Letter of Credit Obligations ” shall mean, at any time, the sum of (i) the aggregate undrawn amount of all Letters of Credit outstanding at such time, plus (ii) the aggregate amount of all drawings under Letters of Credit for which the Issuing Bank has not at such time been reimbursed, paid or repaid, plus (iii) without duplication, the aggregate amount of all payments made by each Lender to the Issuing Bank with respect to such Lender’s participation in L/C Undertakings as provided in Section 3.3 for which CBI has not at such time reimbursed the Lenders, whether by way of a Revolving Loan or otherwise.

 

“ Letters of Credit ” shall mean the stand-by letters of credit issued by an Underlying Issuer for the account of CBI for which an L/C Undertaking has been provided or undertaken by the Issuing Lender, and all amendments, renewals, extensions or replacements thereof.

 

“ Leverage Ratio ” shall mean, for any date of determination, the ratio of (i) GAAP Indebtedness of CBI and its Subsidiaries (other than CPF and its Subsidiaries) on that date to (ii) Consolidated EBITDA for the four quarters ending on such date.

 

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“ Liabilities ” shall have the meaning given to such term in Section 2.10 .

 

“ LIBOR Deadline ” shall have the meaning given to such term in Section 4.8(b)(i) .

 

“ LIBOR Notice ” means a written notice in the form of Exhibit D-1.

 

“ LIBOR Option ” shall have the meaning given to such term in Section 4.8(a) .

 

“ LIBOR Rate ” means, for each Interest Period for each LIBOR Rate Loan, the rate per annum determined by the Agent (rounded upwards, if necessary, to the next 1/16%) by dividing (a) the Base LIBOR Rate for such Interest Period, by (b) 100% minus the Reserve Percentage. The LIBOR Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage.

 

“ LIBOR Rate Loan ” means each portion of a Revolving Loan or an Original Term Loan that bears interest at a rate determined by reference to the LIBOR Rate.

 

“ Lien ” shall mean any lien, license, claim, charge, pledge, security interest, deed of trust, mortgage, or other encumbrance.

 

“ Loan ” or “ Loans ” shall mean the Revolving Loans and/or the Term Loans (or a portion of any Revolving Loan or Term Loan), individually or collectively, as appropriate.

 

“ Loan Account ” shall have the meaning given to such term in Section 2.5 .

 

“ Material Adverse Change ” shall mean (a) a change in the business, operations, assets, liabilities or condition (financial or otherwise) of CBI and its Subsidiaries, taken as a whole, or the Collateral, which in either case would materially and adversely affect the ability of the Borrower Entities, taken as a whole, to perform their obligations under the Credit Documents, or (b) a material adverse change in the rights and remedies of the Agent or any Lender thereunder.

 

“ Material Adverse Effect ” shall mean (a) an effect on the business, operations, assets, liabilities or condition (financial or otherwise) of CBI and its Subsidiaries, taken as a whole, or the Collateral, which in either case would materially and adversely affect the ability of the Borrower Entities, taken as a whole, to perform their obligations under the Credit Documents, or (b) a material adverse effect on the rights and remedies of the Agent or any Lender thereunder.

 

“ Material Contract ” shall mean any contract (other than any of the Credit Documents), whether written or oral, to which CBI or any of its Subsidiaries is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.

 

“ Maturity Date ” shall mean June 7, 2004.

 

“ Maximum Credit Line ” shall mean $167,100,000, as such amount may be reduced from time to time (A) pursuant to and in accordance with Section 2.3 and Section 13.12 ,

 

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(B) in connection with each Second Amendment Sale, as the Net Cash Proceeds of each Second Amendment Sale are used to prepay the Original Term Loans until an aggregate amount equal to $31,500,000 has been prepaid, by the amount so applied to such prepayment, (C) in connection with the CPF Sale, as CPF Sale Proceeds are used to make additional prepayments of the Original Term Loans or the Term B Loans (in excess of the $20,000,000 prepayments which were made on or about the CPF Closing Date), by the amount so applied to such prepayments, and (D) in connection with the Second Amendment Sales, as the Net Cash Proceeds of the Second Amendment Sales are used to make additional prepayments of the Term Loans (in excess of the $31,500,000 prepayments to be made on the Original Term Loans pursuant to clause (B) above), by the amount so applied to such prepayments.

 

“ Minimum Rate ” shall have the meaning given to such term in Section 4.1 .

 

“ Mortgages ” shall mean each mortgage, security agreement and fixture filing, deed of trust or other real estate security document executed in favor of or for the benefit of the Agent and/or the Lenders to secure any or all of the Obligations.

 

“ Multiemployer Plan ” shall mean a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA and (i) which is, or within the immediately preceding six (6) years was, contributed to by CBI, any Subsidiary of CBI or any ERISA Affiliate or (ii) with respect to which CBI or any Subsidiary of CBI may incur any liability.

 

“ Net Cash Proceeds ” shall mean the aggregate cash proceeds and Cash Equivalents received by CBI or the applicable Subsidiary in respect of any Asset Disposition, Specified Asset Disposition or Equity Issuance, net of (a) direct costs (including, without limitation, legal, accounting and investment banking fees, and sales commissions) and (b) taxes paid or payable as a result thereof; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received by CBI or the applicable Subsidiary in any Asset Disposition, Specified Asset Disposition or Equity Issuance.

 

“ Note ” or “ Notes ” shall mean the Revolving Notes and/or the Term Loan Notes, individually or collectively, as appropriate.

 

“ Notice of Borrowing ” shall have the meaning given to such term in Section 2.1(d)(i) .

 

“ Obligations ” shall mean the Loans, any other loans and advances or extensions of credit made or to be made by any Lender to either of the Borrowers, or to others for the account of either of the Borrowers, in each case, pursuant to the terms and provisions of this Credit Agreement, together with interest thereon (including interest which would be payable as post-petition interest in connection with any bankruptcy or similar proceeding) and, including, without limitation, any reimbursement obligation or indemnity of CBI or its Subsidiaries on account of Letters of Credit and all other Letter of Credit Obligations, and all indebtedness, fees, liabilities and obligations which may at any time be owing to the Agent or any Lender pursuant to this Credit Agreement or any other Credit Document, whether now in existence or incurred from time to time hereafter, whether unsecured or secured by pledge, Lien upon or security

 

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interest in any of CBI’s assets or property or the assets or property of any other Person, whether such indebtedness is absolute or contingent, joint or several, matured or unmatured, direct or indirect and whether CBI or any Subsidiary is liable to the Agent or any Lender for such indebtedness as principal, surety, endorser, guarantor or otherwise. Obligations shall also include any other indebtedness owing to the Agent or any Lender under this Credit Agreement and/or the other Credit Documents, the liability of either Borrower to any Lender pursuant to this Credit Agreement as maker or endorser of any promissory note or other instrument for the payment of money, any liability to the Agent or any Lender pursuant to this Credit Agreement or any other Credit Document under any instrument of guaranty or indemnity (including CBI’s and the other Guarantors’ guaranty of the Term B Loans), or arising under any guaranty, endorsement or undertaking which the Agent or any Lender may make or issue to others for the account of either Borrower pursuant to this Credit Agreement, including any accommodation extended with respect to applications for Letters of Credit, all liabilities and obligations owing from either Borrower to the Agent or any Lender, or any affiliate of the Agent or a Lender, arising under Interest Rate Protection Agreements entered into for the purpose of hedging interest rate risk under this Credit Agreement, and all liabilities and obligations owing from either Borrower arising under one or more Foreign Currency Exchange Agreements.

 

“ Operative Documents ” shall mean the Credit Documents and the Security Documents.

 

“ Orderly Liquidation Value ” shall mean the value of the trademarks and related rights owned by CBI, as set forth in the Appraisal.

 

“ Original Closing Date ” shall mean March 7, 2001.

 

“ Original Credit Agreement ” shall have the meaning given to such term in the recitals to this Credit Agreement.

 

“ Original Credit Parties ” shall mean the Persons which were “Credit Parties” as defined in the Original Credit Agreement on the Original Closing Date.

 

“ Original Obligations ” shall mean “Obligations” as defined in the Original Credit Agreement and as defined in the Amended and Restated Credit Agreement.

 

“ Original Term Loan Notes ” shall have the meaning given to such term in Section 2.2(e) .

 

“ Original Term Loans ” shall mean “Term Loans” as defined in the Original Credit Agreement.

 

“ Other Taxes ” shall have the meaning given to such term in Section 2.7(c) .

 

“ PACA ” shall mean the Perishable Agricultural Commodities Act, 7 U.S.C. §499.

 

“ PAFCO ” shall mean Puerto Armuelles Fruit Co., Ltd.

 

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“ PAFCO Framework Agree ment” shall have the meaning given to such term in Section 9.3(j).

 

“ PAFCO Investment ” shall have the meaning given to such term in Section 9.3(j).

 

“ PAFCO Loan ” shall mean an extension of credit in the amount of Five Million Dollars ($5,000,000) by CIL to Coosemupar, either directly or through a participation in a loan to be granted by Banco Nacional de Panama or another bank or financial institution to Coosemupar.

 

“ PAFCO Sale ” shall mean the disposition of all or substantially all of the banana plantation assets owned by PAFCO to Coosemupar as described in more detail in Section 9.3(j).

 

“ Participant Register ” shall have the meaning given to such term in Section 14.6(l) .

 

“ PBGC ” shall mean the Pension Benefit Guaranty Corporation and any Person succeeding to the functions thereof.

 

“ Permitted Acquisitions ” shall mean the German Acquisition or an Acquisition by any Borrower Entity of an Acquired Company which Acquisition complies with the following requirements (in each case to the satisfaction of the Agent): (i) the Acquired Company shall be an operating company that engages in a line of business substantially similar to the business that one or more Borrower Entities engaged in on the Original Closing Date (or if such acquisition is consummated by one or more members of the Chiquita Fresh German Group, the Acquired Company shall be an operating company that engages in a line of business substantially similar to the business, and in substantially the same geographic area, that one or more members of the Chiquita Fresh German Group engaged in on the Closing Date), (ii) the Agent shall have received, if available, a review of the financial condition of the Acquired Company conducted by a firm of independent certified public accountants of nationally recognized standing reasonably acceptable to the Agent and such other reports and analyses in connection with the Acquisition as the Agent may reasonably request and an internal summary of the results of the Borrower Entity’s due diligence and/or its economic justification for such Acquisition and the bases therefor (excluding any information in any such report, analyses or summary to which the attorney client privilege applies), (iii) the Agent shall have completed a field examination relating to the applicable Acquired Company and the results thereof are satisfactory to the Agent, (iv) the Agent shall have received all items required by Sections 7.9 , 7.10 and 7.16 in connection with the Acquired Company, (v) in the case of an Acquisition of the Capital Stock of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (vi) CBI shall have delivered to the Agent a pro forma compliance certificate demonstrating that, upon giving effect to such Acquisition on a pro forma basis, CBI and its Subsidiaries shall be in compliance with all of the covenants set forth in Article VIII and no Default or Event of Default shall exist immediately prior to or immediately after the consummation of the Acquisition, and (viii) CBI shall have delivered to the Agent all Acquisition Documents in connection with such Permitted Acquisition which documents shall be reasonably satisfactory to the Agent.

 

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“ Permitted Indebtedness ” shall mean Indebtedness which meets all of the following tests at the time it is incurred: (a) if such Indebtedness is incurred after the Original Closing Date, CBI, on a pro forma basis and assuming such Indebtedness is incurred, would be in compliance with the financial covenants set forth herein, (b) after giving effect to the incurrence of such Indebtedness, the aggregate principal amount of all GAAP Indebtedness of CBI and its Subsidiaries (including without duplication, GAAP Indebtedness owing under the Credit Documents and GAAP Indebtedness of Excluded Entities, but excluding Indebtedness owing by CBI to CBII and evidenced by that certain Subordinated Promissory Note dated December 31, 2000 in an original principal amount equal to $40,000,000) at such time (i) does not exceed $540,000,000 at any time on a consolidated basis, or (ii) does not, when added, without duplication, to all Indebtedness of such Persons of the types described in clauses (f), (g), (j), (l) or (m) of the definition of Indebtedness (but, in the case of clause (m), excluding Indebtedness of CTP arising solely by virtue of its role as general partner of Indian River), exceed $565,000,000 at all times, (c) after giving effect to the incurrence of such Indebtedness, the aggregate principal amount of all GAAP Indebtedness of CBI and its Subsidiaries (including without duplication, GAAP Indebtedness owing under the Credit Documents and GAAP Indebtedness of Excluded Entities (other than CPF and its Subsidiaries) but excluding Indebtedness owing by CBI to CBII and evidenced by that certain Subordinated Promissory Note dated December 31, 2000 in an original principal amount equal to $40,000,000) at such time (i) does not exceed $360,000,000 at any time, on a consolidated basis, or (ii) does not, when added, without duplication, to all Indebtedness of such Persons of the types described in clauses (f), (g), (j), (l) or (m) of the definition of Indebtedness (but, in the case of clause (m), excluding Indebtedness of CTP arising solely by virtue of its role as general partner of Indian River), exceed $385,000,000 at all times and (d) Indebtedness which consists of:

 

(i) Indebtedness owing to the Agent and the Lenders with respect to the Revolving Loans, the Term Loans, the Letters of Credit or otherwise, pursuant to the Credit Documents;

 

(ii) trade payables incurred in the ordinary course of the business and other payment obligations under grower contracts entered into in the ordinary course of business;

 

(iii) purchase money Indebtedness (including Capital Leases) incurred after the Original Closing Date by CBI or any of its Subsidiaries not otherwise constituting Permitted Indebtedness and incurred to finance the purchase of fixed assets provided that (A) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $10,000,000 at any one time outstanding (excluding any such Indebtedness referred to in clause (v) immediately below); (B) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (C) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing;

 

(iv) obligations of CBI or any of its Subsidiaries in respect of Hedging Agreements entered into in order to manage existing or anticipated interest rate or exchange rate risks or commodity price fluctuations and not for speculative purposes;

 

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(v) (a) Indebtedness described on Schedule 1.1D attached hereto and any refinancings or replacements of such Indebtedness; provided that the aggregate principal amount of such Indebtedness is not increased, the scheduled maturity dates of such Indebtedness are not shortened and such refinancing is on terms and conditions no more restrictive than the terms and conditions of the Indebtedness being refinanced and (b) Indebtedness consisting of the German Financing;

 

(vi) unsecured Indebtedness owing to CBI or a Subsidiary by CBI or a Subsidiary, as long as the related Investment is permitted hereunder;

 

(vii) Indebtedness of Persons who are members of the Chiquita Fresh European Group as long as (i) such Indebtedness is non-recourse to CBI and each of its Subsidiaries which is not a member of the Chiquita Fresh European Group, and (ii) such Indebtedness, when added to the aggregate principal amount of all other Indebtedness of the members of the Chiquita Fresh European Group (other than Indebtedness described in clause (vi) above), is in an aggregate outstanding principal amount not to exceed $30,000,000 at any time and is otherwise not prohibited by any document or instrument to which one or more members of the Chiquita Fresh European Group is a party;

 

(viii) Indebtedness of Persons who are members of the Chiquita Fresh German Group as long as (i) such Indebtedness is non-recourse to CBI and each of its Subsidiaries which is not a member of the Chiquita Fresh German Group, and (ii) such Indebtedness, when added to the aggregate principal amount of all other Indebtedness of the members of the Chiquita Fresh German Group (other than Indebtedness incurred pursuant to the German Financing and Indebtedness described in clause (vi) above or described on Schedule 1.1D ), is in an aggregate outstanding principal amount not to exceed $1,000,000 at any time and is otherwise not prohibited by any document or instrument to which one or more members of the Chiquita Fresh German Group is a party;

 

(ix) Indebtedness of Persons who are members of the Chiquita Fresh Latin American Group as long as (i) such Indebtedness is non-recourse to CBI and each of its Subsidiaries which is not a member of the Chiquita Fresh Latin American Group and such Indebtedness is otherwise not prohibited by any document or instrument to which one or more members of the Chiquita Fresh Latin American Group is a party, and (ii) such Indebtedness, when added to the aggregate principal amount of all other Indebtedness of the members of the Chiquita Fresh Latin American Group (but excluding Back-to-Back Loans and other Indebtedness described in clause (vi) above), is in an aggregate outstanding principal amount not to exceed $35,000,000 at any time;

 

(x) Indebtedness of GWF and its Subsidiaries as long as (i) such Indebtedness is non-recourse to CBI and each of its Subsidiaries (other than GWF) which is not a Subsidiary of GWF and such Indebtedness is otherwise not prohibited by any document or instrument to which GWF or one or more of its Subsidiaries is a party and (ii) the aggregate outstanding principal amount of all such Indebtedness of GWF and its Subsidiaries, when added to the aggregate principal amount of all other Indebtedness of GWF and its Subsidiaries (other than Indebtedness described in clause (vi) above), does not exceed $225,000,000 at any time;

 

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(xi) Indebtedness of CPF and its Subsidiaries as long as (i) such Indebtedness is non-recourse to CBI and each of its Subsidiaries (other than CPF) which is not a Subsidiary of CPF and is otherwise not prohibited by any document or instrument to which CPF or one or more of its Subsidiaries is a party and (ii) the aggregate outstanding principal amount of all such Indebtedness of CPF and its Subsidiaries when added to the aggregate principal amount of all other Indebtedness of CPF and its Subsidiaries (other than Indebtedness described in clause (vi) above), does not exceed $200,000,000 at any time;

 

(xii) Indebtedness of Frupac or its Subsidiaries as long as (i) such Indebtedness is non-recourse to CBI or any of its Subsidiaries (other than Frupac) which is not a Subsidiary of Frupac and is otherwise not prohibited by any document or instrument to which Frupac or one or more of its Subsidiaries is a party and (ii) the aggregate outstanding principal amount of all such Indebtedness of Frupac and its Subsidiaries when added to the aggregate principal amount of all other Indebtedness of Frupac and its Subsidiaries (other than Indebtedness described in clause (vi) above), does not exceed $25,000,000 at any time;

 

(xiii) Indebtedness of CTP arising solely from its status as a general partner of Indian River;

 

(xiv) Indebtedness in an amount not to exceed $15,000,000 outstanding at any time incurred by CBI to finance the payment of insurance premiums;

 

(xv) such other Indebtedness as the Aggregate Required Lenders in their sole and absolute discretion approve in writing; provided , however , if such other Indebtedness involves solely the Chiquita Fresh German Group, then such other Indebtedness shall not require the approval of the Aggregate Required Lenders, but shall require the approval in writing, in their sole discretion, of the Term B Required Lenders;

 

(xvi) Indebtedness of one or more Subsidiaries to the extent, and solely to the extent, that the related Investment in such Subsidiary is permitted pursuant to clause (xxx) of the definition of “ Permitted Investments ”;

 

(xvii) Indebtedness of Atlanta or Eurosub owing to CBI to the extent, and solely to the extent, that the related Investment by CBI in Atlanta or Eurosub is permitted pursuant to clause (xxxi) of the definition of “Permitted Investments”; or

 

(xviii) Indebtedness of Heaton Holdings Ltd., a Cayman Islands corporation, or its Subsidiaries as long as (i) such Indebtedness is non-recourse to CBI or any of its Subsidiaries (other than Heaton Holdings Ltd.) which is not a Subsidiary of Heaton Holdings Ltd. and is otherwise not prohibited by any document or instrument to which Heaton Holdings Ltd. or one or more of its Subsidiaries is a party and (ii) the aggregate outstanding principal amount of all such Indebtedness of Heaton Holdings Ltd. and its Subsidiaries when added to the aggregate principal amount of all other Indebtedness of Heaton Holdings Ltd. and its Subsidiaries (other than Indebtedness described in clause (vi) above), does not exceed $25,000,000 at any time.

 

“ Permitted Investments ” shall mean:

 

(i) Cash Equivalents;

 

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(ii) interest-bearing demand or time deposits (including certificates of deposit) which are insured by the Federal Deposit Insurance Corporation (“FDIC”) or a similar federal insurance program; provided , however , that CBI may, in the ordinary course of business, maintain in its operating accounts from time to time amounts in excess of then applicable FDIC or other program insurance limits;

 

(iii) Investments existing on the Original Closing Date and set forth on Schedule 1.1E attached hereto (including capitalization of any intercompany advances shown thereon);

 

(iv) advances to officers, directors and employees of CBII, CBI or any of CBI’s Subsidiaries for expenses incurred or anticipated to be incurred in the ordinary course as long as (a) no advances to any one Person are in excess of $250,000 in the aggregate at any time outstanding (except for a one-time $750,000 advance to one employee) and (b) all such advances do not exceed $5,000,000 in the aggregate at any time outstanding;

 

(v) Qualified Investments made in or to a Secured Credit Party;

 

(vi) Qualified Investments made by Persons other than members of the Chiquita Fresh European Group in or to one or more Persons who are, as of the Closing Date, members of the Chiquita Fresh Latin American Group (or Persons which are Wholly-Owned Subsidiaries of such members of the Chiquita Fresh Latin America Group) (it being agreed that a Back-to-Back Loan to any member of the Chiquita Fresh Latin American Group shall, solely for the purposes of this clause, constitute an Investment in or to such member of the Chiquita Fresh Latin American Group and not an Investment in or to the applicable lender);

 

(vii) Qualified Investments made by Persons (other than members of the Chiquita Fresh Latin American Group) in or to one or more Persons who are, as of the Closing Date, members of the Chiquita Fresh European Group (or Persons which are Wholly-Owned Subsidiaries of such members of the Chiquita Fresh European Group), as long as the aggregate amount thereof made after the Original Closing Date does not exceed $15,000,000 less any Qualified Investments made by Persons pursuant to clause (viii) below;

 

(viii) Qualified Investments made by Persons (other than members of the Chiquita Fresh Latin American Group) in or to one or more Persons who are, as of the Closing Date, members of the Chiquita Fresh German Group (or Persons which are Wholly-Owned Subsidiaries of such members of the Chiquita Fresh German Group), as long as the aggregate outstanding amount thereof (A) does not exceed (1) at all times prior to May 30, 2003, $15,000,000 or (2) at all times thereafter, $10,000,000 and (B) when added to the aggregate outstanding amount of Qualified Investments made by Persons pursuant to clause (vii) above, does not exceed $15,000,000;

 

(ix) Qualified Investments made by Persons who are members of the Chiquita Fresh European Group in or to one or more Persons who are, as of the Closing Date, members of the Chiquita Fresh European Group (or Persons which are Wholly-Owned Subsidiaries of such members of the Chiquita Fresh European Group);

 

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(x) Qualified Investments made by Persons who are members of the Chiquita Fresh German Group in or to one or more Persons who are, as of the Closing Date, members of the Chiquita Fresh German Group (or Persons which are Wholly-Owned Subsidiaries of such members of the Chiquita Fresh German Group);

 

(xi) Qualified Investments (other than those permitted pursuant to clause (vi) above) made by Persons who are members of the Chiquita Fresh Latin American Group as long as the aggregate outstanding amount thereof made after the Original Closing Date does not exceed $15,000,000 at any one time;

 

(xii) Qualified Investments (other than those permitted pursuant to clause (vii) or (ix) above) made by Persons who are members of the Chiquita Fresh European Group as long as the aggregate outstanding amount thereof made after the Original Closing Date does not exceed $10,000,000 at any one time;

 

(xiii) Qualified Investments (other than those permitted pursuant to clause (viii) or (x) above) made by Persons who are members of the Chiquita Fresh German Group as long as the aggregate outstanding amount thereof made after the Closing Date does not exceed $1,000,000 at any one time;

 

(xiv) Qualified Investments made by the Secured Credit Parties (other than Investments made in or to a member of the Chiquita Fresh Latin American Group, members of the Chiquita Fresh European Group, an Excluded Entity or an Inactive Subsidiary) as long as the aggregate outstanding amount thereof made after the Original Closing Date does not exceed $15,000,000 at any time;

 

(xv) Investments made at a time when no Event of Default has occurred and is continuing (A) (other than by Excluded Entities or one or more members of the Chiquita Fresh German Group) in independent growers in the ordinary course of business as long as the aggregate outstanding balance thereof does not exceed $10,000,000 at any time or (B) by one or more members of the Chiquita Fresh German Group in independent growers in the ordinary course of business as long as the aggregate outstanding balance thereof does not exceed $2,000,000 at any time;

 

(xvi) Investments made by one or more Excluded Entities;

 

(xvii) Loans made by CBI to Frupac which do not exceed $25,000,000 outstanding at any time during the months of September to June and which do not exceed $10,000,000 outstanding at any time during the months of July and August;

 

(xviii) Loans made by Chiquita Banana Company B.V., a Netherlands company, to CIL;

 

(xix) [intentionally omitted]

 

(xx) Investments consisting of securities or debt instruments which are proceeds of Specified Asset Dispositions or Asset Dispositions (to the extent permitted by Section 9.3 );

 

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(xxi) Investments described on Schedule 9.3A ;

 

(xxii) A loan to CBII for Permitted Restructuring Expenses or any transfer of funds as permitted by Section 9.6 ;

 

(xxiii) such other Investments as the Aggregate Required Lenders in their sole discretion approve in writing; provided , however , if such other Investments involve solely the Chiquita Fresh German Group, then such other Investments shall not require the approval of the Aggregate Required Lenders, but shall require the approval in writing, in their sole discretion, of the Term B Required Lenders;

 

(xxiv) advances to CTP solely to the extent necessary to permit CTP to make capital expenditures;

 

(xxv) advances consisting of the payment of insurance premiums by CBI on insurance policies that insure CBI and one or more Subsidiaries, Excluded Entities or CBII, as long as each such advance is repaid to CBI by the applicable Subsidiary (other than Secured Credit Parties), Excluded Entity or CBII within 90 days after the date on which such advance was made;

 

(xxvi) advances consisting of payment of insurance claim deductibles and self-insured retentions by CBI on liability insurance policies that insure CBI and one or more Subsidiaries, Excluded Entities or CBII, provided (a) each such advance is repaid to CBI by the applicable Subsidiary (other than Secured Credit Parties), Excluded Entity or CBII within 90 days after the date on which such advance was made; and (b) the aggregate amount of such advances outstanding at any given time, excluding those made on behalf of the Secured Credit Parties, does not exceed $1,000,000;

 

(xxvii) indemnity obligations incurred by CBI to secure the payment of insurance claim deductibles and self-insured retentions and to support operational bonding obligations of one or more Subsidiaries, Excluded Entities or CBII, provided that (a) any payment made by CBI in compliance with such indemnity obligation is repaid to CBI by the applicable Subsidiary (other than Secured Credit Parties), Excluded Entity or CBII within 90 days after the date on which such payment was made, (b) any letters of credit issued for the account of CBI shall be Letters of Credit; and (c) the aggregate amount of the indemnity obligation of CBI shall not exceed $3,000,000 for Subsidiaries (other than Secured Credit Parties), Excluded Entities or CBII for any given annual policy year;

 

(xxviii) Investments made in or to Excluded Entities (other than those made by an Excluded Entity) as long as (a) all such Investments made after March 6, 2002, do not exceed $5,000,000 in the aggregate at any time outstanding and (b) at the time of any such Investment (i) no Event of Default shall have occurred and be continuing and (ii) the sum of Availability plus CBI and its Subsidiaries’ (other than any Excluded Entity’s) unrestricted cash and Cash Equivalents shall be equal to at least $65,000,000;

 

(xxix) Investments made in or to any newly formed or newly acquired Subsidiary or to an Inactive Subsidiary that is ceasing to be an Inactive Subsidiary where such Subsidiary has not yet signed applicable Joinder Agreements, Security Agreements, Guaranty

 

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Agreements or Pledge Agreements if required by the terms of this Agreement, provided , however , that (i) notice was provided to the Agent within sixty (60) Business Days after such Subsidiary was formed or acquired or ceased to be an Inactive Subsidiary and (ii) all such Investments shall not exceed $500,000 per Subsidiary and $1,000,000 in the aggregate at any time outstanding;

 

(xxx) Investments made in one or more Subsidiaries (other than Atlanta or Euro Sub) in an aggregate amount not to exceed at any time (A) the aggregate amount of the Net Cash Proceeds from Second Amendment Sales and CPF Sale Proceeds minus (B) the aggregate amount paid to CBII pursuant to Section 9.6(e) minus (C) the aggregate amount invested pursuant to clause (xxxi) of the definition of Permitted Investments minus , without duplication, (D) the aggregate amount of the Net Cash Proceeds from Second Amendment Sales and CPF Sale Proceeds applied directly or indirectly to repay Loans, as long as (1) all amounts invested pursuant to this clause (xxx) shall, promptly upon the applicable Subsidiary’s receipt thereof, be used to pay Indebtedness of such Subsidiary or of one or more Subsidiaries of such Subsidiary, (2) no Default or Event of Default shall have occurred and be continuing at the time of such Investments (or would result therefrom) and (3) simultaneously with the making of such Investment, CBI notifies Agent of such Investment; and

 

(xxxi) Investments by CBI or its Subsidiaries in Atlanta or Euro Sub in an aggregate amount not to exceed at any time (A) the aggregate amount of the Net Cash Proceeds from Second Amendment Sales and CPF Sale Proceeds minus (B) the aggregate amount paid to CBII pursuant to Section 9.6(e) minus (C) the aggregate amount invested pursuant to clause (xxx) of the definition of Permitted Investments minus , without duplication, (D) the aggregate amount of the Net Cash Proceeds from Second Amendment Sales and CPF Sale Proceeds applied directly or indirectly to repay Loans, as long as (1) to the extent such Investments are made in Atlanta, Atlanta promptly and in any event within two (2) Business Days, use the proceeds of such Investments for so long as the German Note executed by Atlanta in favor of Euro Sub is in effect, to repay obligations owing by Atlanta to Euro Sub evidenced by such German Note, and thereafter, to make an Investment in all events permitted hereby in Euro Sub, (2) Euro Sub promptly, and in any event within two Business Days, uses the proceeds of such Investments (or, for so long as the German Note executed by Atlanta in favor of Euro Sub is in effect, repayment in the case of an Investment in Atlanta which Atlanta then uses to repay obligations owing by Atlanta to Euro Sub evidenced by such German Note) to repay obligations owing by Euro Sub to Atcon evidenced by a German Note and (3) Atcon is, as a result of the limited waivers provided pursuant to the Second Amendment and Second Limited Waiver, permitted to use, and Atcon immediately uses, the proceeds of such repayment to make a repayment of Term B Loans;

 

Notwithstanding the foregoing, Permitted Investments shall not include (i) Investments made in or to an Inactive Subsidiary (other than Investments permitted pursuant to clauses (iii), (xxv), (xxvi), (xxvii) or (xxviii) above); (ii) Investments made in or to an Excluded Entity (other than Investments permitted pursuant to clauses (iii), (xvii), (xix), (xxv), (xxvi), (xxvii), (xxviii) or (xxx) above and Investments made by an Excluded Entity”); (iii) Investments (other than as described in clause (xxii), (xxv), (xxvi) or (xxvii) above) made in or to CBII or any Subsidiary of CBII which is not CBI or a Subsidiary of CBI; and (iv) investments in or to CTP other than those permitted pursuant to clause (xxiv) above.

 

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“ Permitted Liens ” shall mean

 

(i) Liens granted to the Agent or the Lenders or any affiliate of a Lender pursuant to any Credit Document;

 

(ii) Liens listed on Schedule 1.1C attached hereto;

 

(iii) Liens on fixed assets securing purchase money Indebtedness (including Capital Leases) to the extent permitted under Section 9.2 , provided that (A) any such Lien attaches to such assets concurrently with or within thirty (30) days after the acquisition thereof and only to the assets to be acquired and (B) a description of the assets so acquired is furnished to the Agent;

 

(iv) Liens of warehousemen, mechanics, materialmen, workers, repairmen, fillers, packagers, processors, common carriers, landlords and other similar Liens arising by operation of law or otherwise, not waived in connection herewith, for amounts that are not yet due and payable or which are being diligently contested in good faith by CBI by appropriate proceedings, provided that in any such case an adequate reserve is being maintained by CBI for the payment of same;

 

(v) attachment or judgment Liens individually or in the aggregate not in excess of $250,000 (exclusive of (a) any amounts that are duly bonded to the satisfaction of the Agent in its reasonable judgment or (b) any amount adequately covered by insurance as to which the insurance company has acknowledged in writing its obligations for coverage);

 

(vi) Liens for taxes, assessments or other governmental charges not yet due and payable or which are being diligently contested in good faith by CBI or the applicable Subsidiary charged with such Lien by appropriate proceedings, provided that in any such case an adequate reserve is being maintained by CBI for the payment of same in accordance with GAAP;

 

(vii) deposits or pledges to secure obligations under workmen’s compensation, social security or similar laws, or under unemployment insurance;

 

(viii) deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of money), leases, regulatory or statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of business;

 

(ix) Liens arising from claims under PACA;

 

(x) Liens on assets of GWF, CPF or Frupac or their respective Subsidiaries to secure Indebtedness of one or more of such Persons as long as the owner of the assets which are the subject of such Liens is the primary obligor on such Indebtedness (or is a Subsidiary or parent of such primary obligor, provided that, in the case of a parent, such parent is an Excluded Entity), and as long as the applicable Indebtedness is permitted pursuant to clause (d)(x), (d)(xi), (d)(xii) or (d)(xiii) of the definition of Permitted Indebtedness herein;

 

(xi) Liens on assets of a Person (other than on Collateral or assets intended to constitute Collateral) to secure Indebtedness of such Person permitted hereunder;

 

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(xii) Liens on insurance proceeds and unearned insurance premiums which secure the Permitted Indebtedness described in clause (d)(xiv) of the definition of Permitted Indebtedness; and

 

(xiii) such other Liens as the Aggregate Required Lenders in their sole and absolute discretion approve in writing; provided , however , if such other Liens involve solely the Chiquita Fresh German Group, then such other Liens shall not require the approval of the Aggregate Required Lenders, but shall require the approval in writing, in their sole discretion, of the Term B Required Lenders.

 

“ Permitted Restructuring Expenses ” shall mean payments made on or before March 31, 2002 to or for the benefit of CBII for legal, investment banking and other professional fees and related expenses (including court costs) incurred in connection with the proposed restructuring of CBII’s Indebtedness and which are made at a time when all of the following conditions are satisfied: (i) no Event of Default has occurred and is continuing (or would be caused thereby); (ii) the average Availability plus CBI’s and its Subsidiaries’ (other than any Excluded Entity’s) unrestricted cash and Cash Equivalents for the thirty (30) day period ending ten (10) days prior to the date of such payment was at least $20,000,000; (iii) the amount of such payment, when added to all other payments made during such fiscal quarter, other than any payment of the “Restructuring Fee” to The Blackstone Group as contemplated by clause (iv) below and other than any payment of the fee payable to Houlihan, Lokey, Howard & Zukin as contemplated by clause (vi) below, does not exceed $3,000,000; provided that if the total of all such payments made under this clause (iii) in any fiscal quarter shall be less than $3,000,000, the unutilized portion of such $3,000,000 permitted payment may be carried forward into subsequent fiscal quarters so long as aggregate payments, other than any payment of the “Restructuring Fee”, of more than $6,000,000 are not made in any fiscal quarter; (iv) if the payment is to fund payment of the “Restructuring Fee” owing to The Blackstone Group pursuant to that certain engagement letter between The Blackstone Group and CBII dated November 6, 2000, the amount of such payment shall not exceed the lesser of the maximum amount owing for that fee and $7,600,000; (v) if the payment is made after the commencement of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding by or against CBII, the payment shall be made by way of a loan from CBI to CBII which is protected by an appropriate court order which is acceptable to the Agent and the Existing Required Lenders and specifically assigned to the Agent as Collateral; and (vi) if the payment is to CBII to permit CBII to pay the success fee of Houlihan Lokey Howard & Zukin, such success fee shall not exceed $5,000,000.

 

“ Person ” shall mean any individual, sole proprietorship, partnership, joint venture, limited liability company, trust, unincorporated organization, association, corporation, institution, entity, party or government (including any division, agency or department thereof), and, as applicable, the successors, heirs and assigns of each.

 

“ Pledge Agreements ” shall mean (i) that certain Stock Pledge Agreement dated as of the Original Closing Date between the pledgors named therein and the Agent, (ii) that certain LLC Pledge Agreement dated as of the Original Closing Date between the pledgors named therein and the Agent, (iii) the German Pledge Agreements, and (iv) each other agreement (other than a Security Agreement) pursuant to which the equity of any Person is pledged to the Agent to secure any of the Obligations.

 

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“ Pledged Party ” shall mean each Person (other than a Credit Party) whose equity, in whole or in part, is pledged to the Agent to secure any of the Obligations.

 

“ Pledgor Entity ” means each Person which has pledged equity in a Pledged Party to the Agent to secure the Obligations.

 

“ Portfolio Sale ” shall have the meaning given to such term in Section 14.6(c) .

 

“ Post-Closing Agreement ” shall mean that certain Post-Closing Agreement, dated as of the date hereof, among the Borrowers and the Agent.

 

“ Prime Rate ” shall mean the rate which Wells Fargo announces from time to time as its prime lending rate, as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Wells Fargo (and its affiliates) may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

 

“ Prime Rate Loan ” means each portion of a Loan that bears interest at a rate determined by reference to the Prime Rate.

 

“ Pro Rata Share ” of any (i) Existing Lender means a fraction, the numerator of which is such Existing Lender’s Existing Commitment and the denominator of which is the sum of all Existing Lenders’ Existing Commitments; provided , however , in the event that all Existing Commitments have been terminated or reduced to zero, Pro Rata Share shall be determined according to the Existing Commitments in effect immediately prior to such termination and (ii) Term B Lender means a fraction, the numerator of which is such Term B Lender’s Term B Loan Commitment and the denominator of which is the sum of all Term B Lenders’ Term B Loan Commitments; provided, however , that after each Term B Lender has funded its portion of the Term B Loans, Pro Rata Share of any Term B Lender shall mean a fraction, the numerator of which is such Term B Lender’s outstanding Term B Loans and the denominator of which is the sum of all outstanding Term B Loans.

 

“ Process Agent ” shall have the meaning given to such term in Section 14.3 .

 

“ Proprietary Rights ” shall have the meaning given to such term in Section 6.18 .

 

“ Qualified Investment ” means an Investment which meets all of the following tests: (i) it is made when no Default or Event of Default has occurred and is continuing (or would be caused thereby), (ii) it is made to a Person which is Solvent after giving effect to such Investment but ignoring intercompany liabilities to CBI and its Subsidiaries ( provided , however , that Investments in an aggregate amount not to exceed $3,000,000 per fiscal year may be made in Persons without regard to this clause (ii) as long as such Investments otherwise are “Qualified Investments”); (iii) if it is a loan, it is made to a Person which is not subject to any restriction, contractual or otherwise, that would prohibit or restrain it from returning or repaying such Investment, (iv) if it is an Investment described in clauses (xi), (xii), (xiii) or (xiv) of the

 

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definition of Permitted Investments, it is made when CBI, immediately after giving effect thereto, has Availability of at least $10,000,000 and (v) if such Investment is an Acquisition, it constitutes a Permitted Acquisition.

 

“ Qualified Refinancing ” shall mean a refinancing of this Credit Agreement in which all of the Obligations are paid in full in cash and for which Ableco or Foothill or an Affiliate thereof is agent.

 

“ Rating Agencies ” shall have the meaning given to such term in Section 2.10 .

 

“ Register ” shall have the meaning given to such term in Section 14.6(f) .

 

“ Registered Loan ” shall have the meaning given to such term in Section 2.5(b) .

 

“ Registered Note ” shall have the meaning given to such term in Section 2.5(b) .

 

“ Reportable Event ” shall mean any of the events described in Section 4043 of ERISA and the regulations thereunder.

 

“ Reserve Percentage ” means, on any day, for any Lender, the maximum percentage prescribed by the Board of Governors of the Federal Reserve System (or any successor Governmental Authority) for determining the reserve requirements (including any basic, supplemental, marginal, or emergency reserves) that are in effect on such date with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities”) of that Lender, but so long as such Lender is not required or directed under applicable regulations to maintain such reserves, the Reserve Percentage shall be zero.

 

“ Restricted Payment ” shall mean (i) any cash dividend or other cash distribution, direct or indirect, on account of any shares of any class of Capital Stock of CBI or any of its Subsidiaries, as the case may be, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of CBI or any of its Subsidiaries now or hereafter outstanding by CBI or any of its Subsidiaries, as the case may be, except for any redemption, retirement, sinking funds or similar payment payable solely in such shares of that class of stock or in any class of stock junior to that class, (iii) any cash payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any shares of any class of Capital Stock of CBI or any of its Subsidiaries now or hereafter outstanding, or (iv) any payment to any Affiliate of CBI except to the extent expressly permitted in this Credit Agreement.

 

“ Retiree Health Plan ” shall mean an “employee welfare benefit plan” within the meaning of Section 3(1) of ERISA that provides benefits to persons after termination of employment, other than as required by Section 601 of ERISA.

 

“ Revolving Credit Borrowing Base ” shall have the meaning given to such term in Section 2.1(b)(i) .

 

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“ Revolving Credit Borrowing Base Certificate ” shall have the meaning given to such term in Section 7.1(e)(i).

 

“ Revolving Credit Committed Amount ” shall mean, at any time, the CBI Maximum Credit Line less the principal balance of then outstanding Original Term Loans.

 

“ Revolving Loans ” shall have the meaning given to such term in Section 2.1(b) .

 

“ Revolving Notes ” shall have the meaning given to such term in Section 2.1(c) .

 

“ Sale Leaseback Transaction ” shall have the meaning given to such term in Section 9.13 .

 

“ Second Amendment and Second Limited Waiver ” shall mean the Second Amendment and Second Limited Waiver to the Second Amended and Restated Credit Agreement, dated as of August 11, 2003, among the Borrowers, Wells Fargo, the Agent and the Lenders.

 

“ Second Amendment Sales ” shall mean, collectively, all of the transactions set forth on Schedule 1.1H , and “ Second Amendment Sale ” shall mean any of such transactions.

 

“ Secondary Transactions ” shall mean the transactions described on Schedule 1.1G hereto, as long as at all times that such transactions are being consummated, Availability is at least $65,000,000.

 

“ Secured Credit Parties ” shall mean each Credit Party (other than any member of the Chiquita Fresh German Group) which is also a party to a Security Agreement.

 

“ Securitization ” shall have the meaning given to such term in Section 2.10 .

 

“ Securitization Party ” shall have the meaning given to such term in Section 2.10 .

 

“ Security Agreements ” shall mean (i) the Security Agreement dated as of the Original Closing Date between the Agent, CBI and the obligors named therein, (ii) the Security Agreement dated as of the Original Closing Date between the Agent and Chiquita (Canada) Inc., (iii) composite Guarantee and Charge dated as of the Closing Date, as amended, by and among the Agent and CIL, Banexpro Ltd., Catellia Ltd., Tela Railroad Company Ltd., Financiera Agricola, Ltd., Financiera Estrella Ltd., and M.M. Holding Ltd. and (iv) each other agreement (other than a Pledge Agreement) pursuant to which one or more Persons grant a lien on any or all of their assets to secure any or all of the Obligations.

 

“ Security Documents ” shall mean, collectively, the Security Agreements, the Pledge Agreements, the Mortgages, any Acknowledgment Agreements and any lockbox agreement or any other tri-party arrangement with respect to the bank accounts of either of the Borrowers.

 

“ Seneca ” shall have the meaning given to such term in Section 9.3(j).

 

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“ Seneca Shares ” shall have the meaning given to such term in Section 9.3(j).

 

“ Seneca Share Proceeds ” shall mean the aggregate cash proceeds received by CBI or any Subsidiary of CBI in respect of any disposition of Seneca Shares, net of (a) direct costs (including, without limitation, legal, accounting and investment banking fees, and sales commissions) and (b) taxes paid or payable as a result thereof.

 

“ Settlement Period ” shall have the meaning given to such term in Section 2.1(d)(ii) .

 

“ Solvent ” shall mean, with respect to any Person, that (i) the fair saleable value of such Person’s assets exceeds all of its probable liabilities, (ii) such Person does not have unreasonably small capital in relation to the business in which it is or proposes to be engaged and (iii) such Person has not incurred, and does not believe that it will incur, debts beyond its ability to pay such debts as they become due.

 

“ Specified Asset Disposition ” means each disposition of one or more of the assets described on Schedule 9.3 .

 

“ Subsidiary ” shall mean, as to any Person, (a) any corporation more than fifty percent (50%) of whose Capital Stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time, any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, (b) any partnership, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries has more than a fifty percent (50%) interest in the total capital, total income and/or total ownership interests of such entity at any time and (c) any partnership in which such Person is a general partner (it being agreed that unless otherwise designated, “Subsidiary” shall mean any direct or indirect “Subsidiary” of CBI); provided however , that neither Indian River nor Heaton Holdings Ltd., a Cayman Islands company, shall constitute a Subsidiary of CBI or any of its Subsidiaries, unless such entity is consolidated with CBI or any of its Subsidiaries in accordance with GAAP.

 

“ Taxes ” shall mean any federal, state, local or foreign income, sales, use, transfer, payroll, personal, property, occupancy, franchise or other tax, levy, impost, fee, imposition, assessment or similar charge, together with any interest or penalties thereon.

 

“ Term B Lender ” shall mean each of the Lenders holding outstanding Term B Loans or with a Term B Loan Commitment greater than zero and their respective successors and assigns.

 

“ Term B Loans ” shall have the meaning given to such term in Section 2.2(b) .

 

“ Term B Loan Commitment ” of any Lender means the amount set forth opposite such Lender’s name as its “Term B Loan Commitment” on Schedule 1.1A .

 

“ Term B Loan Notes ” shall have the meaning given to such term in Section 2.2(e) .

 

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“ Term B Required Lenders ” shall mean, at any time, Term B Lenders which are then in compliance with their obligations hereunder (as determined by the Agent) and holding in the aggregate at least sixty-six and two-thirds percent (66  ² / 3 %) of the outstanding Term B Loans.

 

“ Term Loans ” shall mean the Original Term Loans and/or the Term B Loans.

 

“ Term Loan Notes ” shall mean the Original Term Loan Notes and the Term B Loan Notes.

 

“ Termination Event ” shall mean (i) a Reportable Event with respect to any Benefit Plan or Multiemployer Plan; (ii) the withdrawal of CBI, any Subsidiary of CBI or any ERISA Affiliate from a Benefit Plan during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA; (iii) the providing of notice of intent to terminate a Benefit Plan pursuant to Section 4041 of ERISA; (iv) the institution by the PBGC of proceedings to terminate a Benefit Plan or Multiemployer Plan; (v) any event or condition (a) which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan or Multiemployer Plan, or (b) that may result in termination of a Multiemployer Plan pursuant to Section 4041A of ERISA; or (vi) the partial or complete withdrawal, within the meaning of Sections 4203 and 4205 of ERISA, of CBI, any Subsidiary of CBI or any ERISA Affiliate from a Multiemployer Plan.

 

“ Trademark License Agreement ” shall mean that certain Trademark License Agreement dated November 1, 2001, by and between CBI and CIL.

 

“ Trademark Note ” shall mean that certain Promissory Note executed by CIL in favor of CBI dated November 1, 2001.

 

“ Tropical Farms ” means farms (and related assets, including farm land held in reserve but not currently planted) located in Guatemala, Chile, Colombia, Panama, Honduras, Costa Rica, Guadeloupe, Martinique or Ivory Coast on which bananas, plantains and similar produce is grown, but excluding any assets subject to the PAFCO Sale.

 

“ UCP ” shall have the meaning given to such term in Section 3.7 .

 

“ Unallocated CBII Overhead ” shall mean the following overhead and disbursements of CBII, but only to the extent that they are not otherwise allocated to CBI and its consolidated Subsidiaries: consulting fees and expenses, salaries, pension and benefit expenses, taxes (other than taxes on income or revenue), insurance costs, legal expenses, communication and maintenance fees, travel expenses, outside accounting fees, headquarter office expenses, deferred compensation and non-contractual severance expenses, but excluding Permitted Restructuring Expenses and principal, interest and other fees related to any Indebtedness.

 

“ Underlying Issuer ” means a third Person which is the beneficiary of an L/C Undertaking and which has issued a Letter of Credit at the request of the Issuing Bank for the benefit of CBI.

 

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“ Voting Stock ” shall mean, with respect to any Person, Capital Stock issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency.

 

“ Wells Fargo ” shall have the meaning given to such term in the preamble of this Credit Agreement.

 

“ Wholly-Owned Subsidiary ” of a Person means each entity in which (other than directors’ qualifying shares or the equivalent thereof required by law) one hundred percent (100%) of the outstanding equity interests are directly owned, beneficially and of record, by such Person or by one or more of such Person’s Wholly-Owned Subsidiaries.

 

1.2 Accounting Terms and Determinations

 

Unless otherwise defined or specified herein, all accounting terms shall be construed herein and all accounting determinations for purposes of determining compliance with Sections 8.1 through 8.5 hereof and otherwise to be made under this Credit Agreement shall be made in accordance with GAAP applied on a basis consistent in all material respects with the Financials. All financial statements required to be delivered hereunder from and after the Original Closing Date and all financial records shall be maintained in accordance with GAAP as in effect as of the date of such financial statements. If GAAP shall change from the basis used in preparing the consolidated financial statements of CBI dated as of September 30, 2000, the certificates required to be delivered pursuant to Section 7.1 demonstrating compliance with the covenants contained herein shall include calculations setting forth the adjustments necessary to demonstrate how CBI is in compliance with the financial covenants based upon GAAP as in effect as of the date of the consolidated financial statements of CBI dated as of September 30, 2000. If CBI shall change its method of inventory accounting, all calculations necessary to determine compliance with the covenants contained herein shall be made as if such method of inventory accounting had not been so changed.

 

1.3 Other Definitional Terms .

 

Terms not otherwise defined herein which are defined in the Uniform Commercial Code as in effect in the State of New York from time to time (the “ Code ”) shall have the meanings given them in the Code. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Credit Agreement shall refer to the Credit Agreement as a whole and not to any particular provision of this Credit Agreement, unless otherwise specifically provided. References in this Credit Agreement to “Articles”, “Sections”, “Schedules” or “Exhibits” shall be to Articles, Sections, Schedules or Exhibits of or to this Credit Agreement unless otherwise specifically provided. Any of the terms defined in Section 1.1 may, unless the context otherwise requires, be used in the singular or plural depending on the reference. “Include”, “includes” and “including” shall be deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing, computer disk, e-mail and other means of reproducing words in a visible form. References to any agreement or contract are to such agreement or contract as amended, modified or supplemented from time to time in

 

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accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of such Person. References “from” or “through” any date mean, unless otherwise specified, “from and including” or “through and including”, respectively. References to any times herein shall refer to Eastern Standard time or Eastern Daylight time, as then in effect.

 

ARTICLE II.

 

LOANS

 

2.1 Revolving Loans .

 

(a) Commitment . Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each of the Existing Lenders severally agrees to lend to CBI at any time or from time to time on or after the Closing Date and before the Maturity Date, such Existing Lender’s Pro Rata Share of the Revolving Credit Committed Amount as may be requested or deemed requested by CBI.

 

(b) Determination of Revolving Credit Borrowing Base .

 

(i) Each of the Existing Lenders severally agrees, subject to the terms and conditions of this Credit Agreement, from time to time, to make loans and advances to CBI hereunder on a revolving basis. Such loans and advances to CBI (each, a “ Revolving Loan ”; and collectively, the “ Revolving Loans ”) together with the Letter of Credit Obligations outstanding with respect to the Letters of Credit shall not in the aggregate exceed the least of ( the “ Revolving Credit Borrowing Base ”):

 

(A) the Revolving Credit Committed Amount at such time minus the aggregate amount of the Insurance Premium Block then in place;

 

(B) twenty-five percent (25%) of the Orderly Liquidation Value minus the aggregate amount of the Insurance Premium Block then in place;

 

(C) the following amount:

 

(1) an amount up to eighty-five percent (85%) of Eligible Accounts Receivable; plus

 

(2) twenty percent (20%) of the Orderly Liquidation Value, minus

 

(3) the aggregate amount of reserves established by the Agent from time to time in its sole discretion, exercised in a commercially reasonable manner and in good faith, including, without limitation, reserves for claims under PACA (including,

 

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without limitation, a reserve in an amount equal to all amounts then owed to Persons other than CIL for the purchase of bananas and plantains) and reserves for accruals to be paid to customers, minus

 

(4) the aggregate amount of the Insurance Premium Block then in place; or

 

(D) the amount equal to Consolidated EBITDA of CBI and its Subsidiaries (other than CPF and its Subsidiaries) as of the most recently completed twelve month fiscal period for which information is available (exclusive of unusual items as determined in accordance with GAAP and non-cash items to the extent not already excluded in determining Consolidated EBITDA) minus the sum of (1) the outstanding principal balance of the Original Term Loans and (2) the aggregate amount of the Insurance Premium Block then in place.

 

Subject to the relevant terms and provisions set forth herein, the Agent at all times shall have the right to reduce or increase the advance rates (but not in excess of the advance rates set forth in the definition of Revolving Credit Borrowing Base) and standards of eligibility under this Credit Agreement, in each case in its sole discretion, exercised in a commercially reasonable manner and in good faith, if the Agent shall determine in its reasonable credit judgment that there is a risk that the Obligations may be undersecured as a result of a change in the condition or valuation of the Collateral. Such reduction or increase shall become effective after one (1) Business Day’s prior notice from the Agent to CBI and the Existing Lenders. Each Existing Lender expressly authorizes the Agent to determine, subject to the terms of this Credit Agreement, on behalf of such Existing Lender whether or not Accounts shall be deemed to constitute Eligible Accounts Receivable.

 

(ii) No Existing Lender shall be obligated at any time to make available to CBI its Pro Rata Share of any requested Revolving Loan if such amount plus its Pro Rata Share of all Revolving Loans, Letter of Credit Obligations and Original Term Loans then outstanding would exceed such Existing Lender’s Existing Commitment at such time. No Existing Lender shall be obligated to make available, nor shall the Agent make available, any Revolving Loans to CBI to the extent such Revolving Loan when added to the then outstanding Revolving Loans and all Letter of Credit Obligations would cause the aggregate outstanding Revolving Loans and all Letter of Credit Obligations to exceed the Revolving Credit Borrowing Base. CBI shall promptly repay to the Agent for the account of the Existing Lenders from time to time the full amount of the excess, if any of (A) the amount of all Revolving Loans and Letter of Credit Obligations outstanding over (B) the lesser of (1) the Revolving Credit Committed Amount at such time and (2) the Revolving Credit Borrowing Base.

 

(c) Revolving Notes . The obligations to repay the Revolving Loans and to pay interest thereon shall be evidenced by separate promissory notes of CBI to each Existing Lender in substantially the form of Exhibit C-1 attached

 

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hereto (the “ Revolving Notes ”), with appropriate insertions, one Revolving Note being payable to the order of each Existing Lender in a principal amount equal to such Existing Lender’s Pro Rata Share of the Revolving Credit Committed Amount and representing the obligations of CBI to pay such Existing Lender the amount of such Existing Lender’s Pro Rata Share of the Revolving Credit Committed Amount or, if less, the aggregate unpaid principal amount of all Revolving Loans made by such Existing Lender hereunder, plus interest accrued thereon, as set forth herein. CBI irrevocably authorizes each Existing Lender to make or cause to be made appropriate notations on its Revolving Note, or on a record pertaining thereto, reflecting Revolving Loans and repayments thereof. The outstanding amount of the Revolving Loans set forth on such Existing Lender’s Revolving Note or record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Existing Lender, but the failure to make such notation or record, or any error in such notation or record shall not limit or otherwise affect the obligations of CBI hereunder or under any Revolving Note to make payments of principal of or interest on any Revolving Note when due.

 

(d) Borrowings under Revolving Notes .

 

(i) Subject to Section 4.8(b)(i) , each request for borrowings hereunder shall be made by a notice in the form attached hereto as Exhibit D from CBI to the Agent (a “ Notice of Borrowing ”), given not later than 11:00 a.m. New York City time on the Business Day on which the proposed borrowing is requested to be made for Revolving Loans. Each Notice of Borrowing shall be given by either telephone or telecopy, and, if requested by the Agent, confirmed in writing if by telephone, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing, (3) certification by CBI that it has complied in all respects with Article V , all of which shall be specified in such manner as is necessary to comply with all limitations on Revolving Loans outstanding hereunder (including, without limitation, availability under the Revolving Credit Borrowing Base) and (4) the account at which such requested funds should be made available. Each Notice of Borrowing shall be irrevocable by and binding on CBI. CBI shall be entitled to borrow Revolving Loans in a minimum principal amount of $1,000,000 and integral multiples of $500,000 in excess thereof (or the remaining amount of the Revolving Credit Committed Amount at such time, if less). Revolving Loans may be repaid and reborrowed in accordance with the provisions hereof.

 

(ii) The Agent shall give to each Existing Lender prompt notice (but in no event later than 2:00 p.m. New York City time on the date of the Agent’s receipt of notice from CBI) of each Notice of Borrowing by telecopy, telex or cable (other than any Notice of Borrowing which will be funded by the Agent in accordance with subsection (d)(iii) below). No later than 3:00 p.m. New York City time on the date on which a borrowing is requested to be made pursuant to the applicable Notice of Borrowing, each Existing Lender will make available to the Agent at the address of the Agent set forth on the signature pages hereto, in immediately available funds, its Pro Rata Share of such borrowing requested to be made. Unless the Agent shall have been notified by any

 

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Existing Lender prior to the date of borrowing that such Existing Lender does not intend to make available to the Agent its portion of the borrowing to be made on such date, the Agent may assume that such Existing Lender will make such amount available to the Agent as required above and the Agent may, in reliance upon such assumption, make available the amount of the borrowing to be provided by such Existing Lender. Upon fulfillment of the conditions set forth in Article V for such borrowing, the Agent will make such funds available to CBI at the account specified by CBI in such Notice of Borrowing.

 

(iii) Because CBI anticipates requesting borrowings of Revolving Loans on a daily basis and repaying Revolving Loans on a daily basis through the collection of Accounts and the proceeds of other Collateral, resulting in the amount of outstanding Revolving Loans fluctuating from day to day, in order to administer the Revolving Loans in an efficient manner and to minimize the transfer of funds between the Agent and the Existing Lenders, the Existing Lenders hereby instruct the Agent, and the Agent may (but is not obligated to) (A) make available, on behalf of the Existing Lenders, the full amount of all Revolving Loans requested by CBI not to exceed $20,000,000 in the aggregate at any one time outstanding without requiring that CBI give the Agent a Notice of Borrowing with respect to such borrowing and without giving each Existing Lender prior notice of the proposed borrowing, of such Existing Lender’s Pro Rata Share thereof and the other matters covered by the Notice of Borrowing and (B) if the Agent has made any such amounts available as provided in clause (A), upon repayment of Revolving Loans by CBI, apply such amounts repaid directly to the amounts made available by the Agent in accordance with clause (A) and not yet settled as described below; provided that the Agent shall not advance funds as described in clause (A) above if the Agent has actually received prior to such borrowing (1) an officer’s certificate from CBI pursuant to and in accordance with Section 7.1(j) that a Default or Event of Default is in existence or (2) a Notice of Borrowing from CBI wherein the certification provided therein states that the conditions to the making of the requested Revolving Loans have not been satisfied or (3) a written notice from any Existing Lender that the conditions to such borrowing have not been satisfied, which officer’s certificate, Notice of Borrowing or notice, in each case, shall not have been rescinded. If the Agent advances Revolving Loans on behalf of the Existing Lenders, as provided in the immediately preceding sentence, the amount of outstanding Revolving Loans and each Existing Lender’s Pro Rata Share thereof shall be computed weekly rather than daily and shall be adjusted upward or downward on the basis of the amount of outstanding Revolving Loans as of 5:00 p.m. New York City time on the Business Day immediately preceding the date of each computation; provided , however , that the Agent retains the absolute right at any time or from time to time to make the aforedescribed adjustments at intervals more frequent than weekly. The Agent shall deliver to each of the Existing Lenders after the end of each week, or such lesser period or periods as the Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereafter referred to as a “ Settlement Period ”). If the summary statement is sent by the Agent and received by the Existing Lenders prior to 12:00 Noon New York City time on any Business Day each Existing Lender shall make the transfers described in the next succeeding sentence no later than 3:00 p.m. New York City time on the day such summary statement was sent; and if such

 

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summary statement is sent by the Agent and received by the Existing Lenders after 12:00 Noon New York City time on any Business Day, each Existing Lender shall make such transfers no later than 3:00 p.m. New York City time on the next succeeding Business Day. If in any Settlement Period, the amount of an Existing Lender’s Pro Rata Share of the Revolving Loans is in excess of the amount of Revolving Loans actually funded by such Existing Lender, such Existing Lender shall forthwith (but in no event later than the time set forth in the next preceding sentence) transfer to the Agent by wire transfer in immediately available funds the amount of such excess; and, on the other hand, if the amount of an Existing Lender’s Pro Rata Share of the Revolving Loans in any Settlement Period is less than the amount of Revolving Loans actually funded by such Existing Lender, the Agent shall forthwith transfer to such Existing Lender by wire transfer in immediately available funds the amount of such difference. The obligation of each of the Existing Lenders to transfer such funds shall be irrevocable and unconditional and without recourse to or warranty by the Agent. Each of the Agent and the Existing Lenders agree to mark their respective books and records at the end of each Settlement Period to show at all times the dollar amount of their respective Pro Rata Shares of the outstanding Revolving Loans. Because the Agent on behalf of the Existing Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when the Existing Lenders will actually advance and/or be repaid Revolving Loans, interest with respect to Revolving Loans shall be allocated by the Agent to each Existing Lender (including the Agent) in accordance with the amount of Revolving Loans actually advanced by and repaid to each Existing Lender (including the Agent) during each Settlement Period and shall accrue from and including the date such Revolving Loans are advanced by the Agent to but excluding the date such Revolving Loans are repaid by CBI in accordance with Section 2.4 or actually settled by the applicable Existing Lender as described in this Section 2.1(d)(iii) .

 

(iv) If the amounts described in subsection (d)(i) , (d)(ii) or (d)(iii) of this Section 2.1 are not in fact made available to the Agent by an Existing Lender (such Existing Lender being hereinafter referred to as a “ Defaulting Lender ”) and the Agent has made such amount available to CBI, the Agent shall be entitled to recover such corresponding amount on demand from such Defaulting Lender. If such Defaulting Lender does not pay such corresponding amount forthwith upon the Agent’s demand therefor, the Agent shall promptly notify CBI and CBI shall immediately (but in no event later than five (5) Business Days after such demand) pay such corresponding amount to the Agent. The Agent shall also be entitled to recover from such Defaulting Lender and CBI, (A) interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Agent to CBI to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to either (1) if paid by such Defaulting Lender, the overnight Federal Funds Rate or (2) if paid by CBI, the then applicable rate of interest, calculated in accordance with Section 4.1 , plus (B) in each case, an amount equal to any costs (including legal expenses) and losses incurred as a result of the failure of such Defaulting Lender to provide such amount as provided in this Credit Agreement. Nothing herein shall be deemed to relieve any Existing Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which CBI may have against any Existing Lender as a result of any default by such Existing Lender hereunder, including, without limitation, the right of CBI to seek reimbursement from any Defaulting Lender for any amounts paid by CBI under clause (B) above on account of such Defaulting Lender’s default.

 

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(v) The failure of any Existing Lender to make the Revolving Loan to be made by it as part of any borrowing shall not relieve any other Existing Lender of its obligation, if any, hereunder to make its Revolving Loan on the date of such borrowing, but no Existing Lender shall be responsible for the failure of any other Existing Lender to make the Revolving Loan to be made by such other Existing Lender on the date of any borrowing.

 

(vi) Each Existing Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article IV , on outstanding Revolving Loans which it has funded to the Agent from the date such Existing Lender funded such Revolving Loan to, but excluding, the date on which such Existing Lender is repaid with respect to such Revolving Loan.

 

(vii) Notwithstanding the obligation of CBI to send written confirmation of a Notice of Borrowing made by telephone if and when requested by the Agent, in the event that the Agent agrees to accept a Notice of Borrowing made by telephone, such telephonic Notice of Borrowing shall be binding on CBI whether or not written confirmation is sent by CBI or requested by the Agent. The Agent may act prior to the receipt of any requested written confirmation, without any liability whatsoever, based upon telephonic notice believed by the Agent in good faith to be from CBI or its agents. The Agent’s records of the terms of any telephonic Notices of Borrowing shall be conclusive on CBI in the absence of gross negligence or willful misconduct on the part of the Agent in connection therewith.

 

2.2 Term Loans .

 

(a) Original Term Loan . As of the date hereof, the aggregate outstanding principal amount of the Original Term Loans is $50,100,000. Once Term Loans are paid or prepaid, they may not be reborrowed.

 

(b) Amount of Term B Loans . Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Term B Lender severally agrees to make available to Atcon on the Closing Date term loans in Dollars (each a “ Term B Loan ” and collectively the “ Term B Loans ”) equal to such Term B Lender’s Pro Rata Share of $65,000,000 for the purposes hereinafter set forth. Once Term B Loans are paid or prepaid, they may not be reborrowed.

 

(c) Funding of Term B Loans . Not later than Noon New York City time on March 28, 2003, each Term B Lender will make available to the Agent for the account of Atcon, at the office of the Agent in funds immediately available to the Agent, the amount of such Term B Lender’s Pro Rata Share of $65,000,000. Atcon hereby irrevocably authorizes the Agent to disburse the proceeds of the Term B Loans in immediately available funds by wire transfer as directed by Atcon in writing.

 

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(d) Repayment of Original Term Loans and Term B Loans . The principal amount of the Original Term Loans shall be repaid in consecutive monthly payments on the first day of each calendar month; such payments commenced with the first day of October, 2002 and shall continue until the Original Term Loans are repaid in full. The amount of each such payment on the Original Term Loans (other than the final payment) shall equal $1,250,000. In addition to the other payments of the principal amount of Term B Loans required hereunder, a portion of the principal amount of the Term B Loans shall be repaid in an amount equal to $3,000,000 not later than December 31, 2003; provided , however , that to the extent that the principal amount of the Term B Loans are prepaid in an aggregate amount equal to at least $10,000,000 within four Business Days of the CPF Closing Date, the requirements of this sentence shall be deemed satisfied. If not sooner repaid, the principal amount of the Term Loans shall be repaid in full on the Maturity Date.

 

(e) Term Notes . The obligations to repay the Original Term Loans and to pay interest thereon shall be evidenced by separate promissory notes of CBI to each applicable Lender in substantially the form of Exhibit C-2 attached hereto (the “ Original Term Loan Notes ”), with appropriate insertions, one Original Term Loan Note being payable to the order of each Existing Lender in a principal amount equal to such Existing Lender’s Pro Rata Share of the Original Term Loans and representing the obligations of CBI to pay such Existing Lender the amount of such Existing Lender’s Pro Rata Share of the Original Term Loans or, if less, the aggregate unpaid principal amount of the Original Term Loans made by such Existing Lender hereunder, plus interest accrued thereon, as set forth herein. The obligations to repay the Term B Loans and to pay interest thereon shall be evidenced by separate promissory notes of Atcon to each Term B Lender in substantially the form of Exhibit C-3 attached hereto (the “ Term B Loan Notes ”), with appropriate insertions, one Term B Loan Note being payable to the order of each Term B Lender in a principal amount equal to such Term B Lender’s Pro Rata Share of the Term B Loans and representing the obligations of Atcon to pay such Term B Lender the amount of such Term B Lender’s Pro Rata Share of the Term B Loans or, if less, the aggregate unpaid principal amount of the Term B Loans made by such Lender hereunder, plus interest accrued thereon, as set forth herein. Each Borrower irrevocably authorizes each applicable Lender to make or cause to be made appropriate notations on its Term Loan Notes, or on a record pertaining thereon, reflecting Term Loans and repayments thereof. The outstanding amount of the Term Loans set forth on such Lender’s Term Loan Notes or record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to make such notation or record, or any error in such notation or record shall not limit or otherwise affect the obligations of the Borrowers hereunder or under any Term Loan Note to make payments of principal of or interest on any Term Loan Note when due.

 

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2.3 Optional and Mandatory Prepayments .

 

(a) Voluntary Prepayments . Except as set forth below, the Borrowers shall have the right to prepay Loans in whole or in part from time to time, without premium or penalty; provided , however , that each such partial prepayment of Loans shall be in a minimum principal amount of $1,000,000 and integral multiples of $500,000 in excess thereof. Amounts prepaid on Existing Loans under this Section 2.3(a) shall be applied first to Revolving Loans, then to the Original Term Loans, and then to the Term B Loans. Voluntary prepayments on the Original Term Loans shall not be permitted unless, immediately prior to such prepayment, the sum of the Existing Commitments are equal to the then outstanding principal amount of the Original Term Loans. All voluntary prepayments of the Original Term Loans shall be applied to the remaining principal installments thereof in the inverse order of maturity thereof. No voluntary prepayments of the Term B Loans shall be permitted unless all obligations under the Original Term Loans have been paid in full and no Revolving Loans are outstanding. The Borrowers have the option, at any time upon ninety (90) days prior written notice to Agent, to terminate this Credit Agreement by paying to Agent, in cash, the Obligations (including either (i) providing cash collateral to be held by Agent in an amount equal to one hundred five percent (105%) of the then extant Letter of Credit Obligations, or (ii) causing the original Letters of Credit to be returned to the Issuing Bank), in full, together with the Applicable Prepayment Premium (which may be allocated based upon letter agreements between Agent and individual Lenders). If the Borrowers have sent a notice of termination pursuant to the provisions of this section, then the Existing Commitments shall terminate and the Borrowers shall be obligated to repay the Obligations (including either (i) providing cash collateral to be held by the Agent in an amount equal to one hundred five percent (105%) of the then extant Letter of Credit Obligations, or (ii) causing the original Letters of Credit to be returned to the Issuing Bank (with an applicable authorization to cancel such Letters of Credit), in full, together with the Applicable Prepayment Premium, on the date set forth as the date of termination of this Credit Agreement in such notice. In the event of the termination of this Credit Agreement and repayment of the Obligations at any time prior to the Maturity Date, for any other reason, including (a) termination after the occurrence of an Event of Default, (b) foreclosure and sale of Collateral, (c) sale of the Collateral in any insolvency or bankruptcy related proceeding, or (iv) restructure, reorganization or compromise of any or all of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructuring, or arrangement in any insolvency or bankruptcy related proceeding, then, in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Agent and the Lenders or profits lost by the Agent and the Lenders as a result of such early termination, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Agent and the Lenders, the Borrowers, jointly and severally, shall pay the Applicable Prepayment Premium to the Agent (which may be allocated based upon letter agreements between Agent and individual Lenders).

 

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(b) Mandatory Prepayments .

 

(i) Revolving Credit Committed Amount . If at any time, the sum of the aggregate principal amount of outstanding Revolving Loans plus Letter of Credit Obligations outstanding shall exceed the amount of the Revolving Credit Borrowing Base, CBI immediately shall prepay, subject to Section 4.8(c) , the Revolving Loans, and (after all Revolving Loans have been repaid) cash collateralize the Letter of Credit Obligations, in an amount sufficient to eliminate such excess.

 

(ii) Asset Loss . To the extent of Net Cash Proceeds received in connection with an Asset Loss, CBI or Atcon, as the case may be, shall prepay the Loans (in the case of CBI) or the Term B Loans (in the case of Atcon) in an amount equal to one hundred percent (100%) of such Net Cash Proceeds unless the Agent shall have elected not to apply the proceeds realized from such Asset Loss to the prepayment of the Loans (any such prepayment under this Section 2.3(b)(ii) to be applied, subject to Section 4.8(c) , as set forth in clause (vi) below).

 

(iii) Asset Transfers . Promptly, and in any event within one (1) day following the occurrence of any Asset Disposition, CBI or Atcon, as the case may be, shall prepay the Loans (in the case of CBI) or the Term B Loans (in the case of Atcon) in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Asset Disposition (any such prepayment under this Section 2.3(b)(iii) to be applied, subject to Section 4.8(c) , as set forth in clause (vi) below). Promptly, and in any event within one (1) day following the occurrence of any Specified Asset Disposition, CBI or Atcon, as the case may be, shall prepay the Loans (in the case of CBI) or the Term B Loans (in the case of Atcon) in an aggregate amount equal to the greater of (a) seventy-five percent (75%) of the Net Cash Proceeds of such Specified Asset Disposition or (b) the amount set forth opposite the description of the applicable assets on Schedule 9.3 (any such prepayment under this Section 2.3(b)(iii) to be applied, subject to Section 4.8(c) , as set forth in clause (vi) below).

 

(iv) Issuances of Equity and Payments with respect to Trademarks . Promptly, and in any event within five (5) days following the receipt by either of the Borrowers of Net Cash Proceeds from any Equity Issuance occurring after the Original Closing Date, CBI or Atcon, as the case may be, shall prepay the Loans (in the case of CBI) or the Term B Loans (in the case of Atcon) in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Equity Issuance (any such prepayment under this Section 2.3(b)(iv) to be applied, subject to Section 4.8(c) , as set forth in clause (vi) below). Promptly, and in any event within one (1) day following the receipt of any payment under or pursuant to the Trademark License Agreement or Trademark Note, CBI shall prepay the Loans in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds received (any such payment under this Section 2.3(b)(iv) to be applied, subject to Section 4.8(c) , as set forth in clause (vi) below); provided however , if, at the time of such receipt no Default or Event of Default has occurred and is continuing, no such prepayment shall be required pursuant to this sentence.

 

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(v) Intercompany Loan Payments . Promptly, and in any event within one (1) Business Day following payment of principal on a German Note, Atcon shall prepay the Term B Loans in an amount equal to the payment on such German Note.

 

(vi) Application of Mandatory Prepayments . All amounts required to be paid pursuant to this Section 2.3(b) shall be applied, subject to Section 4.8(c) , as follows:

 

(A) with respect to all amounts prepaid pursuant to Section 2.3(b)(i) , to Revolving Loans and (after all Revolving Loans have been repaid) to a cash collateral account in respect of Letter of Credit Obligations;

 

(B) with respect to all amounts prepaid pursuant to Sections 2.3(b)(ii)-(iii) in connection with an Asset Loss, Asset Disposition or Specified Asset Disposition, (other than an Asset Loss, Asset Disposition or Specified Asset Disposition by any member of the Chiquita Fresh German Group) (1) first to the Original Term Loans, to be applied to the remaining principal installments thereof in the inverse order of maturity, (2) second to the Revolving Loans and (after all Revolving Loans have been repaid) to a cash collateral account in respect of Letter of Credit Obligations and (3) third to the Term B Loans;

 

(C) with respect to all amounts prepaid pursuant to Sections 2.3(b)(ii)-(iii) in connection with an Asset Loss, Asset Disposition or Specified Asset Disposition by any member of the Chiquita Fresh German Group, to the Term B Loans;

 

(D) with respect to all amounts prepaid pursuant to Section 2.3(b)(iv) (other than an Equity Issuance by any member of the Chiquita Fresh German Group), unless CBI shall otherwise elect a different application in its discretion (1) first to the Revolving Loans and (after all Revolving Loans have been repaid) to a cash collateral account in respect of Letter of Credit Obligations, (2) second to the Original Term Loans, to be applied pro rata to the remaining principal installments thereof in the inverse order of maturity and (3) third to the Term B Loans; and

 

(E) with respect to all amounts prepaid pursuant to Section 2.3(b)(iv) in connection with an Equity Issuance by any member of the Chiquita Fresh German Group, to the Term B Loans.

 

So long as no Event of Default shall have occurred and be continuing, amounts on deposit in any cash collateral account in respect of Letter of Credit Obligations

 

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shall be remitted promptly to CBI upon satisfaction of such Letter of Credit Obligations. Upon and during the continuance of an Event of Default, amounts on deposit in any cash collateral account in respect of Letter of Credit Obligations shall be applied in accordance with the Security Agreement. Upon each application of funds pursuant to this Section 2.3(b)(vi) (other than pursuant to Section 2.3(b)(vi)(A) ) to the Term Loans, Revolving Loans or to a cash collateral account in respect of Letter of Credit Obligations, (i) the Maximum Credit Line shall be reduced by the amount so applied and (ii) to the extent that the funds applied pursuant to this Section 2.3(b)(vi) were not applied to Term B Loans, each Existing Lender’s Existing Commitment shall be reduced by its Pro Rata Share of the amount so applied and the CBI Maximum Credit Line shall be reduced by the amount so applied.

 

(c) Voluntary Reductions . The Borrowers may from time to time permanently reduce or terminate the Maximum Credit Line and/or the CBI Maximum Credit Line (and upon each reduction of the CBI Maximum Credit Line, the Maximum Credit Line shall also be reduced by the amount of such reduction in the CBI Maximum Credit Line) in whole or in part (in minimum aggregate amounts of $5,000,000 or in integral multiples of $5,000,000 in excess thereof (or, if less, the full remaining amount of the Existing Commitment) upon three (3) Business Days’ prior written notice to the Agent; provided , however , that no such termination or reduction shall be made which would cause the aggregate principal amount of (i) Original Term Loans to exceed the CBI Maximum Credit Line, (ii) Term B Loans to exceed the difference of (A) the Maximum Credit Line and (B) the CBI Maximum Credit Line or (iii) Revolving Loans plus Letter of Credit Obligations outstanding to exceed the Revolving Credit Borrowing Base, unless, concurrently with such termination or reduction, Loans are repaid to the extent necessary to eliminate such excess. The Agent shall promptly notify each affected Lender of receipt by the Agent of any notice from the Borrowers pursuant to this Section 2.3(c) . Upon each reduction in the CBI Maximum Credit Line, each Lender’s Existing Commitment shall be reduced by its Pro Rata Share of the amount of such reduction.

 

(d) Maturity Date . The Existing Commitments of the Lenders and the Letter of Credit Commitment of the Issuing Bank shall automatically terminate on the Maturity Date.

 

2.4 Payments and Computations .

 

(a) The Borrowers shall make each payment hereunder and under the Notes not later than 2:00 p.m. New York City time on the day when due. Payments made by either Borrower shall be in Dollars to the Agent at its address referred to in Section 14.5 hereof in immediately available funds without deduction, withholding, setoff or counterclaim. As soon as practicable after the Agent receives payment from either Borrower, but in no event later than one (1) Business Day after such payment has been made, subject to Section 2.1(d)(iii) , the Agent will cause to be distributed like funds relating to the payment of

 

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principal, interest, or Fees (other than amounts payable to the Agent to reimburse the Agent and the Issuing Bank for fees and expenses payable solely to them pursuant to Article IV hereof) or expenses payable to the Agent and the Lenders in accordance with Section 14.8 hereof ratably to the Lenders, and like funds relating to the payment of any other amounts payable to such Lender. The Borrowers’ obligations to the Lenders with respect to such payments shall be discharged by making such payments to the Agent pursuant to this Section 2.4(a) or if not timely paid or any Event of Default then exists, may be added to the principal amount of the Revolving Loans outstanding.

 

(b) Each Borrower hereby authorizes each Lender to charge from time to time against any or all of such Borrower’s accounts with such Lender any of the Obligations which are then due and payable. Each Lender receiving any payment as a result of charging any such account shall promptly notify the Agent thereof and make such arrangements as the Agent shall request to share the benefit thereof in accordance with Section 2.8 .

 

(c) Any payments falling due under this Credit Agreement on a day other than a Business Day shall be due and payable on the next succeeding Business Day and shall accrue interest at the applicable interest rate provided for in this Credit Agreement to but excluding such Business Day. Computation of interest and fees hereunder shall be made on the basis of actual number of days elapsed over a 360 day year.

 

2.5 Maintenance of Account; Register .

 

(a) The Agent shall maintain an account (the “ Loan Account ”) on its books in the name of each Borrower in which the respective Borrower will be charged with all loans and other extensions of credit made by Agent and the Lenders (including, without limitation, the Issuing Bank) to the respective Borrower or for the respective Borrower’s account, including the Revolving Loans, the Term Loans, the Letter of Credit Obligations and any other Obligations, including any and all costs, expenses and attorney’s fees which the Agent may incur, including, without limitation, in connection with the exercise by or for the Lenders of any of the rights or powers herein conferred upon the Agent (other than in connection with any assignments or participations by any Lender) or in the prosecution or defense of any action or proceeding by or against the respective Borrower or the Lenders concerning any matter arising out of, connected with, or relating to this Credit Agreement or the Accounts, or any Obligations owing to the Lenders by the Borrowers. In no event shall prior recourse to any Accounts or other Collateral be a prerequisite to the Agent’s right to demand payment of any Obligation upon its maturity. Further, it is understood that the Agent shall have no obligation whatsoever to perform in any respect any of CBI’s contracts or obligations relating to the Accounts.

 

(b) The Borrowers agree to record the amount of each Revolving Loan and each Term Loan on the Borrower Register referred to in Section

 

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14.6(k) . Each Revolving Loan and each Term Loan recorded on the Borrower Register (the “ Registered Loan ”) may not be evidenced by promissory notes other than a Registered Note (as defined below). Upon the registration of any Revolving Loan or a Term Loan, any promissory note (other than a Registered Note) evidencing the same shall be null and void and shall be returned to the respective Borrower. The Borrowers agree, at the request of any Lender, to execute and deliver to such Lender a promissory note in registered form to evidence such Registered Loan (i.e. containing registered note language) and registered as provided in Section 14.6 (a “ Registered Note ”), payable to the order of such Lender and otherwise duly completed. Once recorded on the Borrower Register, the Obligations evidenced by such Note may not be removed from the Borrower Register so long as it remains outstanding, and a Registered Note may not be exchanged for a promissory note that is not a Registered Note.

 

2.6 Statement of Account

 

After the end of each month the Agent shall send CBI, as representative of both Borrowers, a statement showing the accounting for the charges, loans, advances and other transactions occurring between the Lenders and the Borrowers during that month. The monthly statements shall be deemed correct and binding upon the Borrowers and shall constitute an account stated between the Borrowers and the Lenders unless the Agent receives a written statement of exceptions from the Borrowers within thirty (30) days after same is mailed to CBI.

 

2.7 Taxes .

 

(a) Any and all payments by the Borrowers hereunder or under the Notes to or for the benefit of any Lender shall be made, in accordance with Section 2.4 , free and clear of and without deduction for any and all present or future Taxes, deductions, charges or withholdings and all liabilities with respect thereto, excluding, in the case of each such Lender and the Agent, Taxes imposed on or measured by the Agent’s or any Lender’s net income or receipts or franchise taxes or taxes measured by the Agent’s or such Lender’s, as applicable, net worth by the jurisdiction under the laws of which such Lender or the Agent, as applicable, is organized or maintains a lending office (any such excluded Taxes, collectively, “ Excluded Taxes ”). If either Borrower shall be required by law to deduct any Taxes (other than Excluded Taxes) from or in respect of any sum payable hereunder or under any Note to or for the benefit of any Lender or the Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions of Taxes (including deductions of Taxes applicable to additional sums payable under this Section 2.7 ) such Lender or the Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount so deducted to the relevant taxation authority or other authority in accordance with applicable law; provided , however , that the Borrowers shall be under no obligation to increase the sum payable to any Lender not organized under the laws of the United States or a state thereof (a “ Foreign Lender ”) by an

 

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amount equal to the amount of the U.S. Tax required to be withheld under United States law from the sums paid to such Foreign Lender, if such withholding is caused by the failure of such Foreign Lender to be engaged in the active conduct of a trade or business in the United States or all amounts of interest and fees to be paid to such Foreign Lender hereunder are not effectively connected with such trade or business within the meaning of U.S. Treasury Regulation 1.1441-4(a).

 

(b) Each Foreign Lender agrees that it will deliver to CBI, as representative of both Borrowers, and the Agent (i) two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form(s), as the case may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form, together with any other certificate or statement of exemption required under the Internal Revenue Code or regulations issued thereunder. Each such Lender also agrees to deliver to CBI, as representative of both Borrowers, and the Agent two (2) further copies of the said Form W-8BEN or W-8ECI and Form W-8 or W-9, or successor applicable forms or other manner of certification, as the case may be, on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it to CBI, and such extensions or renewals thereof as may reasonably be requested by CBI or the Agent, unless in any such case an event (including, without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises CBI and the Agent. Such Lender shall certify (A) in the case of a Form W-8BEN or W-8ECI, that it is entitled to receive payments under this Credit Agreement without deduction or withholding of any U.S. federal income taxes and (B) in the case of a Form W-8 or W-9, that it is entitled to an exemption from U.S. backup withholding tax.

 

(c) In addition, the Borrowers agree to pay any present or future stamp, documentary, privilege, intangible or similar Taxes or any other excise or property Taxes, charges or similar levies that arise at any time or from time to time (other than Excluded Taxes) (i) from any payment made under any and all Credit Documents, (ii) from the transfer of the rights of any Lender under any Credit Documents to any other Lender or Lenders or (iii) from the execution or delivery by the Borrowers of, or from the filing or recording or maintenance of, or otherwise with respect to, any and all Credit Documents (hereinafter referred to as “ Other Taxes ”).

 

(d) The Borrowers will indemnify each Lender and the Agent for the full amount of Taxes (including, without limitation and without duplication, any Taxes imposed by any jurisdiction on amounts payable under this Section 2.7 ), subject to (i) the exclusion set out in the first sentence of Section 2.7(a) , (ii) the provisions of Section 2.7(b) , and (iii) the provisions of the proviso set forth in

 

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Section 2.7(a) , and will indemnify each Lender and the Agent for the full amount of Other Taxes (including, without limitation and without duplication, any Taxes imposed by any jurisdiction on amounts payable under this Section 2.7 ) paid by such Lender or the Agent (on its own behalf or on behalf of any Lender), as the case may be, in respect of payments made or to be made hereunder, and any liability (including penalties, interest and expenses) arising solely therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Payment of this indemnification shall be made within thirty (30) days from the date such Lender or the Agent, as the case may be, makes written demand therefor.

 

(e) Within thirty (30) days after the date of any payment of Taxes or Other Taxes, the Borrowers shall furnish to the Agent, at its address referred to in Section 14.5 , the original or certified copy of a receipt evidencing payment thereof.

 

(f) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in this Section 2.7 shall survive the payment in full of all Obligations hereunder and under the Revolving Notes or the Term Notes.

 

2.8 Sharing of Payments .

 

If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of setoff or otherwise) on account of the Loans made by it or its participation in Letters of Credit in excess of its Pro Rata Share of a payment that is to be applied to Existing Loans or its Pro Rata Share of a payment that is to be applied to Term B Loans as provided for in this Credit Agreement, such Lender shall forthwith purchase from the other applicable Lenders such participations in the Loans made by them or in their participation in Letters of Credit as shall be necessary to cause such purchasing Lender to share the excess payment accruing to all applicable Lenders in accordance with their respective ratable shares as provided for in this Credit Agreement; provided , however , that if all or any portion of such excess is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) or any interest or other amount paid or payable by the purchasing Lender in respect to the total amount so recovered. The Borrowers agree 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 of its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor of the respective Borrower in the amount of such participation.

 

2.9 Pro Rata Treatment .

 

Each Loan, each payment or prepayment of principal of any Loan or reimbursement obligations arising from drawings under Letters of Credit, each payment of

 

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interest on the Loans, each payment of the Letter of Credit Fee, each reduction of the Existing Commitments and each conversion or extension of any Loan, shall be allocated pro rata among the Lenders in accordance with the respective principal amounts of their outstanding Loans and their participation interests in the Letters of Credit; provided , however , that the foregoing fees payable hereunder to the Lenders shall be allocated to each Lender based on such Lender’s Pro Rata Share of the Existing Commitments or the outstanding Term B Loans, as applicable.

 

2.10 Securitization .

 

The Borrowers hereby acknowledge that the Lenders and any of their affiliates may sell or securitize the Obligations (a “ Securitization ”) through the pledge of the Obligations as collateral security for loans to such Lenders or their affiliates or through the sale of the Obligations or the issuance of direct or indirect interests in the Obligations, which loans to such Lenders or their affiliates or direct or indirect interests will be rated by Moody’s, Standard & Poor’s or one or more other rating agencies (the “ Rating Agencies ”). The Borrowers shall cooperate reasonably with such Lenders and their affiliates to effect any such Securitization including, without limitation, by (a) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by such Lenders, in connection with the Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrowers, (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations (including administrative duties or reporting obligations), of the Borrowers under the Credit Documents or change or affect in a manner adverse to the Borrowers the financial terms of the Obligations, and (b) providing such information as may be reasonably requested by such Lenders, in connection with the rating of the Obligations or the Securitization, (c) providing in connection with any rating of the Obligations, a certificate (i) agreeing to indemnify such Lenders and any of their affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the “ Securitization Parties ”) for any losses, claims, damages or liabilities (the “ Liabilities ”) to which such Lenders, their affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Credit Document or in any writing delivered by or on behalf of the Borrowers and their respective affiliates to the Agent or one or more Lenders in connection with any Credit Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and such indemnity shall survive any transfer by such Lenders or their successors or assigns of the Obligatio