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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest
Event Reported): February 7, 2000
CHIQUITA BRANDS INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Charter)
New Jersey 1-1550 04-1923360
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
250 East Fifth Street, Cincinnati, Ohio 45202
(Address of Principal Executive Offices)
Registrant's telephone number, including area code:
(513) 784-8000
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INFORMATION TO BE INCLUDED IN THE REPORT
Items 1, 2, 3, 4, 6 and 8 are not applicable and are omitted from this report.
ITEM 5. OTHER EVENTS.
This Report places on file the Exhibits listed in Item 7, including
Amendment No. 4 dated as of February 7, 2000 to the Company's Credit Agreement
dated December 31, 1996 with a group of lending institutions. This Amendment
sets the amount of the revolving credit facility at $110 million, amends
certain covenants and provides for the pledge of certain Company assets as
security for its obligations.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(a) Financial Statements of Businesses Acquired
Not Applicable
(b) Pro Forma Financial Information
Not Applicable
(c) Exhibits
10.1 Amendment No. 4 to Credit Agreement, dated as of February
7, 2000, among Chiquita Brands International, Inc.,
BankBoston, N.A., as administrative agent, the financial
institutions which are lenders thereunder and BankBoston,
N.A., ING Bank N.V. and PNC Bank, National Association, as
co-agents for the lenders. The Credit Agreement dated December
31, 1996 among Chiquita Brands International, Inc.,
BankBoston, N.A. (f/k/a/ The First National Bank of Boston),
as administrative agent, and the lenders is filed as Exhibit
10-d to the Company's Annual Report on Form 10-K for the year
ended December 31, 1996. The Credit Agreement has been
previously amended by Amendment No. 1, dated as of December 8,
1997, filed as Exhibit 10-c to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997, and by
Amendment No. 2, dated as of May 19, 1999, and Amendment No.
3, dated July 23, 1999, both filed as Exhibit 10 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999.
10.2 Security Agreement, dated as of February 7, 2000, by and
between Chiquita Brands International, Inc., and BankBoston,
N.A., as collateral agent for the benefit of the secured
creditors.
10.3 Pledge Agreement, dated as of February 7, 2000, by and
between Chiquita Brands International, Inc., and BankBoston,
N.A., as collateral agent for the benefit of the secured
creditors.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: February 8, 2000 CHIQUITA BRANDS INTERNATIONAL, INC.
By: /s/ WILLIAM A. TSACALIS
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William A. Tsacalis
Vice President and Controller
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EXHIBIT 10.1
AMENDMENT NO. 4 TO CREDIT AGREEMENT
AMENDMENT NO. 4, dated as of February 7, 2000, to the Credit Agreement,
dated as of December 31, 1996 (the "CREDIT AGREEMENT"), among (i) CHIQUITA
BRANDS INTERNATIONAL, INC., a New Jersey corporation (the "BORROWER"), (ii) the
financial institutions which are now, or in accordance with SECTION 12.2 of the
Credit Agreement hereafter become, parties to the Credit Agreement
(collectively, "LENDERS"), (iii) BANKBOSTON, N.A., as Administrative Agent for
the Lenders, and (iv) BANKBOSTON, N.A., ING BANK N.V. and PNC BANK, NATIONAL
Association, as Co-agents for the Lenders.
RECITALS
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The Borrower, the Lenders and the Agents party to this
Amendment No. 4 ("THIS AGREEMENT") have agreed to amend certain of the
provisions contained in the Credit Agreement as set forth herein.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I -- DEFINITIONS
SECTION 1.1. DEFINITIONS. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
ARTICLE II -- AMENDMENTS
Unless otherwise indicated below, effective on and as of 5:00 p.m.,
February 7, 2000 (the "AMENDMENT Date"), the Credit Agreement is hereby amended
in each of the following respects:
SECTION 2.1. AMENDMENTS TO DEFINED TERMS.
(a) SECTION 1.1. SECTION 1.1 is hereby amended by inserting in
its correct alphabetical sequence the following definitions:
"AMENDMENT DOCUMENTS" means, collectively, (a) Amendment No. 4
to Credit Agreement, dated as of February 7, 2000, by and among the
Borrower, the Agents, and the certain financial institutions party
thereto, and (b) the Collateral Documents.
"CHIQUITA PROCESSED FOODS" means Chiquita Processed Foods,
L.L.C., a Delaware limited liability company, and a direct wholly-owned
Subsidiary of Friday.
"COLLATERAL" means, collectively, (a) the Pledged Collateral,
(b) the Security Agreement Collateral, and (c) any and all other
collateral provided by the Borrower or by any of its Subsidiaries to
the Agents, the Issuer and the Lenders from time to time pursuant to
the Collateral Documents and the other Loan Documents.
"COLLATERAL AGENT" means BankBoston, N.A., in its capacity as
collateral agent for the Agents, the Issuer and the Lenders under this
Agreement, the
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Collateral Documents and the other Loan Documents, and any successor to
such collateral agent.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Pledge Agreement, all other Instruments (including the
Agency Account Agreements, as defined in the Security Agreement)
executed and delivered to the Administrative Agent or the Collateral
Agent on the Amendment Date or from time to time thereafter, and all
other Instruments executed and/or delivered from time to time pursuant
to any of the foregoing.
"COMMITMENT AMOUNT CERTIFICATE" means a certificate duly
executed by an Authorized Officer of the Borrower, substantially in the
form of EXHIBIT J attached hereto (with such changes thereto as may be
agreed upon by the Administrative Agent and the Borrower), and
delivered to the Administrative Agent pursuant to SECTION 9.1.1(d).
"FRIDAY" means Friday Holdings, L.L.C., a Delaware limited
liability company and a direct wholly-owned Subsidiary of the Borrower.
"INVESTMENT CAP" means an amount equal to $45,000,000, unless
and until such time as the Borrower has made a mandatory repayment of
principal of Revolving Loans pursuant to SECTION 3.3.3(A) or (B) in an
aggregate principal amount of not less than $10,000,000, at which time
such amount shall be increased to $50,000,000.
"MAXIMUM PERMITTED AMOUNT" is defined in EXHIBIT J hereto.
"NINETY PERCENT MAJORITY LENDERS" means, at the time any
determination thereof is to be made, (a) until all of the Commitments
have terminated, Lenders then having in the aggregate at least 90% of
the aggregate Commitments then in effect, and (b) after all of the
Commitments have terminated, Lenders then holding in the aggregate at
least 90% of the aggregate outstanding principal amount of all of the
Revolving Loans; PROVIDED, HOWEVER, that, for purposes of this
definition, (i) so long as there are four (4) or more Lenders, in no
event shall less than three (3) Lenders constitute the "NINETY PERCENT
MAJORITY LENDERS", and (ii) after all of the Commitments have
terminated, each of the Lenders shall, for purposes only of CLAUSE (b)
of this definition, be deemed to hold from time to time Revolving Loans
in an aggregate principal amount equal to such Lender's applicable
Percentage of all undrawn Letters of Credit from time to time
outstanding.
"PACA" is defined in SECTION 8.13.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of
February 7, 2000, by and between the Borrower and the Collateral Agent.
"PLEDGED COLLATERAL" shall mean the Collateral under and as
defined in the Pledge Agreement.
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"SECURITY AGREEMENT" means the Security Agreement, dated as of
February 7, 2000, by and between the Borrower and the Collateral Agent.
"SECURITY AGREEMENT COLLATERAL" has the meaning specified in
the Security Agreement.
"SECURITY INSTRUMENT" means any security agreement, chattel
mortgage, assignment, pledge agreement, financing or other similar
statement or notice, continuation statement, other agreement or
Instrument, or any amendment or supplement to any thereof, creating,
governing or providing for, evidencing or perfecting any security
interest or Lien.
"SUPER-MAJORITY LENDERS" means, at the time any determination
thereof is to be made, (a) until all of the Commitments have
terminated, Lenders then having in the aggregate at least 66.67% of the
aggregate Commitments then in effect, and (b) after all of the
Commitments have terminated, Lenders then holding in the aggregate at
least 66.67% of the aggregate outstanding principal amount of all of
the Revolving Loans; PROVIDED, HOWEVER, that, for purposes of this
definition, (i) so long as there are four (4) or more Lenders, in no
event shall less than three (3) Lenders constitute the "SUPER-MAJORITY
LENDERS", and (ii) after all of the Commitments have terminated, each
of the Lenders shall, for purposes only of CLAUSE (b) of this
definition, be deemed to hold from time to time Revolving Loans in an
aggregate principal amount equal to such Lender's applicable Percentage
of all undrawn Letters of Credit from time to time outstanding.
(b) SECTION 1.1. SECTION 1.1 is hereby further amended by
deleting the definitions of the following terms: "Level I Status", "Level II
Status", "Level III Status", "Level IV Status", "Level V Status", and "Status".
(c) SECTION 1.1. The definition of "Alternate Base Rate
Margin" appearing in SECTION 1.1 of the Credit Agreement is hereby amended by
restating such definition in its entirety as follows:
"ALTERNATE BASE RATE MARGIN" means, for any Base Rate Tranche
at any date, the rate of 1.25% per annum.
(d) SECTION 1.1. The definition of "Applicable Commitment Fee
Rate" appearing in SECTION 1.1 of the Credit Agreement is hereby amended by
restating such definition in its entirety as follows:
"APPLICABLE COMMITMENT FEE RATE" means, at any date, (i) if
the Unused Commitment Amount is less than or equal to 50% of the
Commitment Amount, the rate of .50% per annum, and (ii) if the Unused
Commitment Amount is greater than 50% of the Commitment Amount, the
rate of .75% per annum.
(e) SECTION 1.1. The definition of "Change of Control
Triggering Event" appearing in SECTION 1.1 of the Credit Agreement is hereby
amended by deleting the word
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"or", immediately preceding clause (f) thereof, and inserting immediately
following such clause (f), the new clauses (g) and (h) as follows:
"(g) the Borrower shall cease to directly own and control, both legally
and beneficially, with full power to vote, one hundred percent (100%)
of the membership interests in Friday; or (h) Friday shall cease to
directly own and control, both legally and beneficially, with full
power to vote, one hundred percent (100%) of the membership interests
in Chiquita Processed Foods."
(f) SECTION 1.1. The definitions of "Consolidated EBITDA",
"Consolidated Net Interest Expense" and "Consolidated Operating Income"
appearing in SECTION 1.1 of the Credit Agreement are each hereby amended by
inserting immediately following the phrase "any fiscal year or fiscal quarter",
the phrase "or fiscal quarters" in the first sentence of each such definition.
(g) SECTION 1.1. The definition of "Eurodollar Rate Margin"
appearing in SECTION 1.1 of the Credit Agreement is hereby amended by restating
such definition in its entirety as follows:
"EURODOLLAR RATE MARGIN" means, for any Eurodollar Tranche at
any date, the rate of 2.75% per annum.
(h) SECTION 1.1. The definition of "Leverage Ratio" appearing
in SECTION 1.1 of the Credit Agreement is hereby amended by inserting the
following PROVISO at the end of such definition, immediately following the word
"date":
"; PROVIDED, HOWEVER, that for the sole purpose of calculating
and reporting the Leverage Ratio pursuant to SECTION 9.2.3(a) at the
end of any fiscal quarter, Total Senior Debt and Total Capitalization
shall each be reduced by the amount of cash shown on the balance sheet
of the Borrower as at the end of such fiscal quarter solely to the
extent such cash (a) represents the proceeds of Indebtedness for
Borrowed Money which is permitted by SECTION 9.2.1, and (b) has been
raised to repay other Indebtedness of the Borrower or its Subsidiaries
and is being held in reserve for such purpose."
(i) SECTION 1.1. The definition of "Loan Documents" appearing
in SECTION 1.1 of the Credit Agreement is hereby amended by restating such
definition in its entirety as follows:
"LOAN DOCUMENTS" means, collectively, this Agreement, the
Notes, the Agents' Fee Letter, each Assignment and Acceptance
Agreement, each Intercompany Subordination Agreement, the Collateral
Documents and each other Instrument executed and delivered pursuant to
or in connection with any thereof.
(j) SECTION 1.1. The definition of "Reference Period"
appearing in SECTION 1.1 of the Credit Agreement is hereby amended by restating
such definition in its entirety as follows:
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"REFERENCE PERIOD" means each period of four (4) consecutive
fiscal quarters of the Borrower; PROVIDED, that solely for the purpose
of calculating and reporting the Interest Coverage Ratio pursuant to
SECTION 9.2.3(b), Reference Period shall mean each of the periods set
forth therein.
Anything herein to the contrary notwithstanding, the amendments set forth in
SECTION 2.1(f), (h) and (j) above shall be effective as of December 30, 1999.
SECTION 2.2. AMENDMENTS TO COMMITMENTS.
(a) SECTION 2.2. SECTION 2.2 is amended by deleting the Dollar
amount "$125,000,000" appearing in such SECTION 2.2, and by inserting in place
thereof the following phrase: "(a) for the period prior to February 7, 2000,
$125,000,000, and (b) from and after February 7, 2000, $110,000,000."
SECTION 2.3. AMENDMENTS TO REVOLVING LOANS AND NOTES.
(a) SECTION 3.3. SECTION 3.3 is amended by inserting the
following new SECTION 3.3.3 immediately after the existing SECTION 3.3.2:
"SECTION 3.3.3. MANDATORY REPAYMENTS. (a) If at any time any
payment (whether upon prepayment, repurchase or redemption) is made in
cash or cash equivalents to or for the account of the Borrower (i) in
satisfaction of all or any part of the principal of the intercompany
debt owing to the Borrower, as evidenced by that certain Loan
Agreement, by and between Chiquita Brands South Pacific Ltd. and the
Borrower, dated as of June 24, 1998 (as the same may be amended,
extended, restated or otherwise modified from time to time), or (ii) in
satisfaction of all or any part of the principal of, or on account of
the redemption, repurchase or acquisition of, any debt or equity
Investment exchanged therefor, there shall immediately become due and
payable the principal amount of Revolving Loans equal to the lesser of
(A) the amount of such payment, or (B) the aggregate principal amount
of Revolving Loans then outstanding.
(b) If at any time any payments are made in cash or cash
equivalents to or for the account of the Borrower as proceeds or
otherwise in connection with a Sale of any Subsidiary permitted under
SECTION 9.2.5(e), where the Net Disposition Proceeds of such Sale equal
or exceed the sum of $10,000,000, there shall immediately become due
and payable the principal amount of Revolving Loans equal to the lesser
of (i) the Net Disposition Proceeds of such Sale, or (ii) the aggregate
principal amount of Revolving Loans then outstanding.
(c) Any such payments made to or for the account of the
Borrower as set forth in PARAGRAPH (a) or (b) above, in excess of the
then aggregate outstanding principal amount of all Revolving Loans, may
be applied by the Borrower to the repurchase of public debt pursuant to
SECTION 9.2.10 or may be otherwise used by the Borrower in accordance
with this Agreement.
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(d) If at any time the sum of the aggregate principal of all
Revolving Loans outstanding and the aggregate Letter of Credit
Outstandings shall exceed the Maximum Permitted Amount, then, unless
the Super-Majority Lenders shall otherwise consent in writing, there
shall immediately become due and payable the principal amount of
Revolving Loans equal to the amount of such excess.
(e) Any prepayments pursuant to SECTION 3.3.3(a), (b) or (d)
made on any day other than the end of an Interest Period for any
Eurodollar Tranche shall be applied: first, to any Base Rate Tranche
then outstanding; and, then, to the Eurodollar Tranche with the
shortest Interest Period remaining and then, successively, to
Eurodollar Tranches with, in each case, the then next shortest Interest
Period; provided that, so long as no Event of Default shall then be
continuing, the Administrative Agent shall, upon the request of the
Borrower, apply any such prepayments to Eurodollar Tranches only on the
last day of each of the respective Interest Periods relating thereto,
and, until such application of any such prepayments, the Administrative
Agent shall hold the amount thereof as cash Collateral for the
Obligations upon the terms contained in the Collateral Documents.
(f) Each prepayment of Revolving Loans made pursuant to this
SECTION 3.3.3 shall be without premium or penalty, except as may be
required by SECTION 4.8. Prepayments hereunder shall not automatically
reduce the Commitment Amount, and any amounts repaid hereunder may be
reborrowed from time to time, in accordance with SECTION 3.1 hereof."
SECTION 2.4. AMENDMENTS TO CONDITIONS TO CREDIT EXTENSIONS.
(a) SECTION 7.2. SECTION 7.2 is amended by inserting the
following new SECTION 7.2.5 immediately after the existing SECTION 7.2.4:
"SECTION 7.2.5. SUPER-MAJORITY LENDERS CONSENT REQUIREMENT.
If, immediately after giving effect to the proposed Credit Extension,
the SUM of (a) the aggregate principal of all Revolving Loans
outstanding, PLUS (b) the aggregate Letter of Credit Outstandings,
would exceed:
(i) $106,500,000, at any time prior to the date of
the delivery of the Commitment Amount Certificate pursuant to SECTION
9.1.1(d) hereof; or
(ii) the Maximum Permitted Amount, at any time from
and after the date of the delivery of the Commitment Amount
Certificate;
then the Borrower shall have received the prior written consent of the
Super-Majority Lenders for such Credit Extension.
SECTION 2.5. AMENDMENTS TO WARRANTIES, ETC.
(a) SECTION 8.13. SECTION 8.13 is amended by restating such
SECTION 8.13 in its entirety as follows:
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"SECTION 8.13. COMPLIANCE WITH APPLICABLE LAWS. Each of the
Borrower and its Material Subsidiaries is in substantial compliance
with all Applicable Laws, including, without limitation, the Perishable
Agricultural Commodities Act (7 USCS Sections 499a et seq.)("PACA"),
except to the extent that any failure so to be in compliance has not
had and will not be reasonably likely to have a Materially Adverse
Effect. The Borrower has no knowledge of any claims outstanding, or of
any events that with the passage of time are likely to result in
claims, against the Borrower or its Subsidiaries under PACA."
SECTION 2.6. AMENDMENTS TO CERTAIN AFFIRMATIVE COVENANTS.
(a) SECTION 9.1.1 is amended by deleting the word "and"
appearing at the end of paragraph (c) thereof, renumbering existing paragraph
(d) as paragraph (e), and inserting the following text immediately following
paragraph (c):
"(d) promptly when the information required to complete such
certificate becomes available, and in any event by April 1, 2000, the
Commitment Amount Certificate; and"
SECTION 2.7. AMENDMENTS TO CERTAIN NEGATIVE COVENANTS.
(a) SECTION 9.2.2(e). SECTION 9.2.2(e) is amended by deleting
the Dollar amount "$250,000,000" appearing in such SECTION 9.2.2(e), and by
inserting in place thereof the Dollar amount "$225,000,000" effective as of
December 30, 1999.
(b) SECTION 9.2.3(a). PARAGRAPH (a) of SECTION 9.2.3 is
amended by restating such SECTION 9.2.3(a) in its entirety effective as of
December 30, 1999, as follows:
"(a) LEVERAGE RATIO: Permit the Leverage Ratio to be greater
than the ratio of 0.475:1.000 at the end of any fiscal quarter ending
on or after December 30, 1999."
(c) SECTION 9.2.3(b). PARAGRAPH (b) of SECTION 9.2.3 is
amended by restating such SECTION 9.2.3(b) in its entirety effective as of
December 30, 1999, as follows:
"(b) INTEREST COVERAGE RATIO. Permit the Interest Coverage
Ratio for any Reference Period set forth below, as measured at the end
of such Reference Period, to be less than the amount set forth opposite
such Reference Period in the table below:
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Reference Period Fiscal Quarters in Minimum Ratio
Reference Period
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01/01/00-03/31/00 1 2.35:1.00
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01/01/00-06/30/00 2 2.35:1.00
--------------------------------------------------------------------------
01/01/00-09/30/00 3 1.85:1.00
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01/01/00-12/31/00 4 1.75:1.00
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(d) SECTION 9.2.4. SECTION 9.2.4 is amended by restating such
SECTION 9.2.4 in its entirety effective as of December 30, 1999, as follows:
"SECTION 9.2.4. RESTRICTED PAYMENTS. Make or extend or enter
into any agreement to make any Restricted Payments, EXCEPT:
(a) the making by any Subsidiary of the Borrower (i)
to the Borrower or to any other Subsidiary of the Borrower of
any Restricted Payments of the kind described in CLAUSE (c) of
the definition "RESTRICTED PAYMENTS", and (ii) of any
Restricted Payments of the kind described in CLAUSE (b) of the
definition "RESTRICTED PAYMENTS"; PROVIDED, HOWEVER, that no
such Restricted Payments of the kind described in CLAUSE (b)
of the definition "RESTRICTED PAYMENTS" shall in any event be
permitted unless any such Restricted Payments on any shares of
a particular class of Capital Stock of a corporation shall be
made on or with respect to all of the issued and outstanding
shares of such class of Capital Stock of such corporation on a
PRO RATA basis, at the same time and on the same terms;
(b) the declaration of cash dividends on the Capital
Stock of the Borrower, in an aggregate amount not to exceed
$30,300,000 in fiscal year 2000, by the Borrower and the
payment of such cash dividends within sixty (60) days after
the declaration thereof; PROVIDED THAT at the time of the
declaration of such cash dividends, each of the Special
Covenant Conditions shall be satisfied, it being expressly
understood and agreed that the Borrower shall in any event be
permitted to pay cash dividends within sixty (60) days after
the declaration thereof if at the time of the declaration of
such cash dividends, each of the Special Covenant Conditions
(determined after giving PRO FORMA effect to the payment of
such cash dividends) shall be satisfied;
(c) the making by the Borrower of any Restricted
Payments of the kind described in CLAUSE (b) of the definition
"RESTRICTED PAYMENTS", solely in connection with and as
required by the Borrower's employee benefit plans or the
Borrower's dividend reinvestment plan;
(d) the making by the Borrower of any Restricted
Payments of the kind described in CLAUSE (d) of the definition
"RESTRICTED PAYMENTS"; PROVIDED, HOWEVER, that no such
Restricted Payments by the Borrower that would otherwise be
permitted by this CLAUSE (d) shall in any event be permitted
unless each of the Special Covenant Conditions shall be
satisfied both at the time of the making of such Restricted
Payments by the Borrower and also after giving effect thereto;
and
(e) Restricted Payments, not otherwise permitted by
any of the other CLAUSES of this SECTION 9.2.4, by the
Borrower to any of its Affiliates, in each case only if (i) at
the time of the making by the Borrower of any such Restricted
Payments, and after giving effect thereto, each of the
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Special Covenant Conditions shall be satisfied, and (ii) such
Restricted Payments shall not otherwise be prohibited by
SECTION 9.2.8.
The Borrower shall not, and shall not cause or permit any of its
Subsidiaries to, create or permit to exist any contractual restrictions
on the making of Restricted Payments by Subsidiaries of the Borrower to
the Borrower or to any other Subsidiaries of the Borrower which
materially impair or which will be reasonably likely to materially
impair the ability of the Borrower to perform any of its payment
Obligations under this Agreement or the Notes."
(e) SECTION 9.2.5. SECTION 9.2.5 is amended by inserting as a
new full non-indented paragraph immediately following the last subparagraph
thereof the following proviso:
"; PROVIDED, HOWEVER, that notwithstanding anything in this Agreement
to the contrary, the Borrower shall not engage in any Sale of all or
any part of, or otherwise transfer or dilute, its ownership interest in
Friday, and shall not cause or permit Friday to engage in any Sale of
all or any part of, or to otherwise transfer or dilute, its ownership
interest in Chiquita Processed Foods."
(f) SECTION 9.2.6(b). SECTION 9.2.6(b) is amended by deleting
the Dollar amount "$50,000,000" appearing in SUB-CLAUSE (i) of such SECTION
9.2.6(b), and by inserting in place thereof the following phrase "the Investment
Cap".
(g) SECTION 9.2.7. SECTION 9.2.7 is amended by inserting the
letter "(a)" prior to the first sentence thereof, deleting the date "January 1,
2002" and inserting the date "January 1, 2000" in place thereof in the first
sentence of such SECTION 9.2.7(a), and inserting new paragraph (b) at the end of
such SECTION 9.2.7 as follows:
"(b) Cause or permit the Consolidated Capital Expenditures of
the Borrower and its Subsidiaries for the calendar years ending
December 31, 2000 and December 31, 2001, to exceed $75,000,000 per
calendar year; PROVIDED, HOWEVER, that for the purposes of the
foregoing calculations, there shall be excluded the aggregate amount of
all capital expenditures made by the Borrower or any of its
Subsidiaries (i) with Capital Stock of the Borrower, or (ii) with the
net cash proceeds (A) from the issue or Sale of Capital Stock of the
Borrower, (B) from Sales and from Sale and Leaseback Transactions that
are not Permitted Dispositions but are otherwise permitted under
SECTION 9.2.5."
(h) SECTION 9.2.10. SECTION 9.2 is amended by inserting the
following new SECTION 9.2.10 immediately after the existing SECTION 9.2.9:
"Section 9.2.10. RESTRICTIONS ON REPURCHASING PUBLIC DEBT.
Neither Borrower nor its Subsidiaries shall make any payment or other
distribution on account of the redemption, repurchase, defeasance or
other acquisition for value of any of the Borrower's public debt,
whether senior or subordinated, except to the extent of (i) the
proceeds from a $50,000,000 term loan incurred by Chiquita
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Processed Foods, (ii) the proceeds from any unsecured public debt
issues of the Borrower, which would otherwise qualify as Indebtedness
for Borrowed Money permitted by SECTION 9.2.1, or (iii) any excess
payments available for such purpose pursuant to SECTION 3.3.3(C)
hereof."
SECTION 2.8. AMENDMENTS TO EVENTS OF DEFAULT.
(a) SECTION 10.1.8. SECTION 10.1.8 is amended by restating
such SECTION 10.1.8 in its entirety as follows:
"SECTION 10.1.8. IMPAIRMENT OF LOAN DOCUMENT, ETC. (i) Any
Loan Document shall (except in accordance with its terms), in whole or
in part, terminate, cease to be effective, or cease to be the legally
valid, binding and enforceable obligation of the Borrower or shall
cease to create valid and perfected security interests in and Liens
(subject only to Permitted Liens) upon the Collateral purported to be
covered by the Collateral Documents; or (ii) the Borrower shall,
directly or indirectly, contest in any manner such effectiveness,
validity, binding nature or enforceability of any of the Collateral
Documents."
SECTION 2.9. AMENDMENT TO THE AGENTS.
(a) SECTION 11.4. Section 11.4 is amended by restating such SECTION
11.4 in its entirety as follows:
"SECTION 11.4. LOAN DOCUMENTS, ETC.
(a) Each of the Lenders and the other Agents hereby further
authorizes the Administrative Agent, on behalf of and for the benefit
of Lenders and the other Agents, to be the agent for and representative
of the Lenders and the other Agents with respect to the Collateral and
the Collateral Documents, and to enter into any other Loan Documents
and to take all action contemplated thereby.
(b) Anything herein express or implied to the contrary
notwithstanding, without any notice to or consent, approval or
authorization from any of the Lenders or the Agents, the Administrative
Agent may from time to time execute any Instruments necessary to (i)
release any Liens encumbering any item of Collateral that is (in each
such case) the subject of a Sale permitted by the Loan Documents or to
which Required Lenders (or such other Lenders as may be required to
give such consent under SECTION 13.1) have otherwise consented, or (ii)
release any guarantor from any guaranty if and to the extent that such
release is otherwise permitted by the terms of the Loan Documents.
(c) Anything contained in any of the Loan Documents to be
contrary notwithstanding, the Administrative Agent, each of the Lenders
and the other Agents hereby agree that (i) none of the Lenders shall
have any rights individually to realize upon any of the Collateral or
to enforce any guaranty provided by any Loan Document, it being
understood and agreed that all
<PAGE> 11
-11-
powers, rights and remedies with respect to the Collateral and any
guaranty may be exercised solely by the Administrative Agent for the
benefit of the Lenders and the Agents in accordance with the terms of
the Loan Documents and (ii) in the event of a foreclosure by the
Administrative Agent on any of the Collateral pursuant to a public or
private Sale, the Administrative Agent or any Lender may be the
purchaser of any or all of such Collateral at any such Sale, and the
Administrative Agent, as agent for and representative of the Lenders
(but not any Lender or Lenders in its or their respective individual
capacities, unless the Required Lenders shall otherwise agree in
writing), shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such Sale, to use and apply any of the
Obligations as a credit on account of the purchase price payable by the
Administrative Agent for any Collateral at such Sale."
SECTION 2.10. AMENDMENT TO MISCELLANEOUS.
(a) SECTION 13.1(b). PARAGRAPH (b) of SECTION 13.1 is amended by
restating such SECTION 13.1(b) in its entirety, as follows:
"(b) (i) which would modify SECTION 7.2.5 or this SECTION
13.1, change the definition of "REQUIRED LENDERS" or "COMMITMENT
TERMINATION EVENT" or "COMMITMENT TERMINATION DATE" or "SUPER-MAJORITY
LENDERS" or "NINETY PERCENT MAJORITY LENDERS", release the Guaranty, or
increase the aggregate amount of all of the Commitments, shall be
effective unless consented to by all of the Lenders, and (ii) which
would release all or substantially all of the Collateral, shall be
effective unless consented to by the Ninety Percent Majority Lenders;"
SECTION 2.11. AMENDMENTS TO EXHIBITS.
(a) EXHIBIT D -- COMPLIANCE CERTIFICATE. EXHIBIT D to the
Credit Agreement is amended by replacing the existing EXHIBIT D in its entirety
with new EXHIBIT D, a copy of which is attached to this Amendment.
(b) EXHIBIT J -- COMMITMENT AMOUNT CERTIFICATE. The Exhibits
to the Credit Agreement are amended by inserting immediately following the
existing EXHIBIT I a new EXHIBIT J, a copy of which is attached to this
Amendment.
SECTION 2.12. AMENDMENTS TO SCHEDULES.
(a) SCHEDULE I -- AGENTS AND LENDERS. SCHEDULE I to the Credit
Agreement is amended by replacing the existing SCHEDULE I in its entirety with
new SCHEDULE I, a copy of which is attached to this Amendment.
ARTICLE III -- REPRESENTATIONS, WARRANTIES AND COVENANT
The Borrower represents and warrants to and covenants with each Agent
and Lender as follows:
<PAGE> 12
-12-
SECTION 3.1. REPRESENTATIONS IN LOAN DOCUMENTS. Each of the
representations and warranties made by or on behalf of the Borrower to the
Agents and the Lenders in the Loan Documents was true and correct in all
material respects when made and is true and correct in all material respects on
and as of the date hereof, except, in each case, (a) as affected by the
consummation of the transactions contemplated by the Loan Documents (including
this Agreement), (b) to the extent that any such representation or warranty
relates by its express terms solely to a prior date, and (c) in the case of the
representations set forth in SECTION 8.6 regarding litigation, to the extent
that the information contained in SECTION 8.6 of the DISCLOSURE SCHEDULE has
been updated since the Effective Date by written materials provided by the
Borrower to the Administrative Agent and the Lenders.
SECTION 3.2. CORPORATE AUTHORITY, ETC. The execution and delivery by
the Borrower of each Amendment Document entered into by the Borrower on or prior
to the date hereof, and the performance by the Borrower of its agreements and
obligations under each such Amendment Document, have been duly and properly
authorized by all necessary corporate or other action on the part of the
Borrower, and do not and will not conflict with, result in any violation of, or
constitute any default under (a) any provision of any Governing Document of the
Borrower, (b) any Contractual Obligation of the Borrower, including without
limitation any indenture pursuant to which the Borrower has incurred
Indebtedness, or (c) any Applicable Law.
SECTION 3.3. VALIDITY, ETC. Each Amendment Document entered into by the
Borrower on or prior to the date hereof has been duly executed and delivered by
the Borrower and constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as such enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws at the time in effect affecting the
enforceability of the rights of creditors generally and to general equitable
principles. The Borrower hereby ratifies and confirms all of the Obligations and
all terms and conditions of the Credit Agreement in all respects, including,
without limitation, the obligations of the Borrower as Guarantor of the
Subsidiary Reimbursement Obligations, pursuant to ARTICLE VI of the Credit
Agreement.
SECTION 3.4. NO DEFAULTS. Immediately after giving effect to this
Agreement, no Defaults or Events of Default are or will be continuing under the
Credit Agreement.
SECTION 3.5. AMENDMENT FEE. In consideration of the execution and
delivery of this Agreement by the Administrative Agent and the Required Lenders,
the Borrower hereby promises to pay to the Administrative Agent on or prior to
the third Business Day after the date hereof, for the account of each of the
Lenders (each, a "CONSENTING LENDER") that (a) has sent confirmation of its
approval of this Amendment on or prior to January 13, 2000, AND (b) (i) executes
and delivers this Agreement and (ii) delivers and releases to the Administrative
Agent or its special counsel, by the second Business Day after the date hereof,
an execution copy of this Agreement signed by such Lender (or a facsimile copy
thereof), an amendment fee ("AMENDMENT FEE") equal to 1/8th of 1% (.00125) of
the Commitment of each such Consenting Lender in effect as of January 31, 2000.
<PAGE> 13
-13-
ARTICLE IV -- PROVISIONS OF GENERAL APPLICATION
SECTION 4.1. EFFECTIVENESS. This Agreement shall become effective upon
the satisfaction of each of the following conditions; PROVIDED, HOWEVER, that
upon satisfaction of all of such conditions, this Agreement shall be effective
as of 5:00 p.m. on the Amendment Date, regardless of the date on which such
conditions are satisfied:
(a) PLEDGE AGREEMENT. The Administrative Agent shall have
received counterparts of the Pledge Agreement, dated as of the Amendment Date,
duly executed and delivered by the Borrower and the Collateral Agent, together
with:
(i) all certificates and other Instruments
representing Pledged Collateral then to be pledged thereunder;
(ii) with respect to Pledged Collateral, if any,
consisting of book-entry shares, evidence that all actions described in the
Pledge Agreement which are necessary to create and perfect the security
interests and Liens therein pursuant to the Pledge Agreement in accordance with
Article 8 of the Uniform Commercial Code have been taken;
(iii) with respect to the Pledged Collateral,
executed copies of financing statements (Form UCC-1) in appropriate form for
filing under the Uniform Commercial Code of each jurisdiction as may be
necessary to perfect the security interests in limited liability company
interests or other Pledged Collateral purported to be created by the Pledge
Agreement; and
(iv) evidence that all such other actions have been
taken as may be necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests and Liens purported to be created by
the Pledge Agreement (including evidence that Friday has duly recorded the
security interests and Liens created by the Pledge Agreement in its limited
liability company books).
(b) SECURITY AGREEMENT; UCC FILINGS; ETC. The Administrative
Agent shall have received counterparts of the Security Agreement, dated as of
the Amendment Date, duly executed and delivered by the Borrower and the
Collateral Agent, together with:
(i) executed copies of financing statements (Form
UCC-1) in appropriate form for filing under the Uniform Commercial Code of each
jurisdiction as may be necessary to perfect the security interests and Liens
purported to be created by the Security Agreement;
(ii) certified copies of requests for information or
copies (Form UCC-11), or equivalent reports, each of recent date, listing all
effective financing statements that name the Collateral Agent as debtor and that
are filed in the jurisdictions referred to in CLAUSE (a), together with copies
of such financing statements (none of which shall cover the Collateral, EXCEPT
(A) those with respect to which appropriate termination statements executed by
the secured party thereunder
<PAGE> 14
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have been delivered to the Administrative Agent, and (B) to the extent
evidencing Liens permitted by the Loan Documents); and
(iii) evidence that all other action necessary or, in
the reasonable opinion of the Collateral Agent, desirable to perfect and protect
the security interests and Liens purported to be created by the Pledge Agreement
and the Security Agreement have been properly taken by the Borrower.
(c) THIS AGREEMENT. The Administrative Agent shall have
received counterparts of this Agreement, dated as of the Amendment Date, duly
executed and delivered by the Borrower and the Required Lenders.
(d) OPINION. The Administrative Agent shall have received
favorable opinions addressed to the Agents and Lenders in form and substance
satisfactory to the Administrative Agent from in-house counsel to the Borrower
and its Subsidiaries with respect to New York law and certain matters of New
Jersey corporate and Delaware limited liability company law.
(e) AMENDMENT FEE AND OTHER EXPENSES. The Administrative Agent
shall have received from the Borrower (i) payment of the Amendment Fee for the
account of each Consenting Lender, and (ii) payment in full of all of the
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including reasonable counsel fees and disbursements) incurred in connection
with the Amendment Documents for which invoices have been submitted on or prior
to the Amendment Date.
(f) RESOLUTIONS, ETC. The Administrative Agent shall have
received:
(x) from the Borrower, a certificate, dated as of the
Amendment Date, of its secretary or any assistant secretary as to:
(i) resolutions of its board of directors
then in full force and effect authorizing the execution, delivery and
performance by the Borrower, of this Agreement and each of the other Amendment
Documents;
(ii) the incumbency and signatures of the
responsible officers of the Borrower authorized to act with respect to the
Borrower, this Agreement and each of the other Amendment Documents (upon which
certificate each of the Agents and the Lenders may conclusively rely until the
Administrative Agent shall have received a further certificate of the Borrower
canceling or amending such prior certificate, which further certificate shall be
reasonably satisfactory to the Administrative Agent);
(iii) each Governing Document of the
Borrower and Friday; and
(iv) each shareholder agreement, stock
subscription agreement, voting agreement, voting trust agreement, securities
purchase agreement and other similar agreement to which the Borrower or Friday
is a party; and
<PAGE> 15
-15-
(y) such other similar documents (certified as of the
Closing Date) as the Administrative Agent may reasonably request with respect to
any matter relevant to this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
Each of such documents shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders.
(g) CERTIFICATES OF GOOD STANDING, ETC. The Administrative
Agent shall have received (a) the Governing Documents and other organizational
documents of the Borrower, Friday and Chiquita Processed Foods as in effect on
the Amendment Date, certified as of a recent date by the Secretary of State (or
other similar applicable Governmental Authority) of the jurisdiction of
incorporation or organization of such entity, and (b) a good standing
certificate as of a recent date (i) for the Borrower, Friday and Chiquita
Processed Foods from the Secretary of State of the jurisdiction of incorporation
or organization of such entity, and (ii) for the Borrower and Friday from the
Secretary of State in each State or other jurisdiction where the failure of such
entity to be qualified to do business as a foreign corporation or other entity
could reasonably be expected to have a Materially Adverse Effect.
(h) MISCELLANEOUS CERTIFICATES, INFORMATION. The
Administrative Agent shall have received such other certificates or information
(certified as of the Amendment Date) as the Administrative Agent may reasonably
request with respect to any matter relevant to this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby.
SECTION 4.2. MISCELLANEOUS. Except as otherwise expressly provided by
this Agreement, all of the terms, conditions and provisions of the Credit
Agreement and each of the other Loan Documents shall remain unaltered, and such
Loan Documents are in full force and effect. This Agreement and each of the
other Amendment Documents is a Loan Document for all purposes of the Credit
Agreement. This Agreement and the rights and obligations hereunder of each of
the parties hereto shall in all respects be construed in accordance with and
governed by the internal laws of the State of New York, without regard to
conflict of laws principles except for Section 5-1401 of the General Obligations
Law of the State of New York. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, but all
of such counterparts shall together constitute but one and the same agreement.
In making proof of this Agreement, it shall not be necessary to produce or
account for more than one counterpart hereof signed by each of the parties
hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
<PAGE> 16
-16-
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 4
to be executed by their respective authorized officers as of the date first
above written.
THE BORROWER:
CHIQUITA BRANDS INTERNATIONAL, INC.
By: /s/
-------------------------------------
Name: Gerald R. Kondritzer
Title: Vice President and Treasurer
THE AGENTS AND LENDERS:
BANKBOSTON, N.A., AS ADMINISTRATIVE AGENT,
AS ONE OF THE CO-AGENTS, AND AS ONE OF THE
LENDERS
By: /s/
-------------------------------------
Name: Robert F. Milordi
Title: Managing Director
ING BANK N.V., AS ONE OF THE CO-AGENTS AND
AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: J.J. Heuff
Title: Senior Relationship Manager
By: /s/
-------------------------------------
Name: H.W.L. Engelhart
Title: Senior Relationship Manager
<PAGE> 17
-17-
PNC BANK, NATIONAL ASSOCIATION, AS ONE OF
THE CO-AGENTS AND AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: Bruce A. Kintner
Title: Vice President
THE SUMITOMO BANK, LIMITED, AS ONE OF THE
LENDERS
By: /s/
-------------------------------------
Name: John H. Kemper
Title: Senior Vice President
BANK OF AMERICA, N.A., AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: J. Casey Cosgrove
Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW
YORK BRANCH, AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: Hans Chr. Kjelsrud
Title: Senior Vice President
By: /s/
-------------------------------------
Name: Martin Lunder
Title: Senior Vice President
<PAGE> 18
-18-
THE MITSUBISHI TRUST AND BANKING
CORPORATION, AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: Nobuo Tominaga
Title: Chief Manager
FIRSTAR BANK, N.A., AS ONE OF THE LENDERS
By: /s/
-------------------------------------
Name: Derek S. Roudebush
Title: Vice President
SUNTRUST BANK, N.A., AS ONE OF THE LENDERS
By:
-------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 10.2
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of February 7, 2000, by and between
CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation (the "BORROWER"),
and BANKBOSTON, N.A., as Collateral Agent for the benefit of the Secured
Creditors (as defined in the RECITALS hereto) (the "COLLATERAL AGENT").
RECITALS
A. The Borrower has entered into that certain Credit Agreement, dated
as of December 31, 1996, as amended through the date hereof (as further amended,
modified, extended, renewed, replaced, restated, supplemented, restructured
and/or refinanced from time to time, the "CREDIT AGREEMENT"), by and among the
Borrower, the financial institutions which are now, or in accordance with
SECTION 12.2 thereof hereafter become, parties thereto (collectively, the
"LENDERS"), BankBoston, N.A., as Administrative Agent and Collateral Agent for
the benefit of the Co-agents and Lenders, and BankBoston, N.A., ING Bank N.V.,
and PNC Bank, National Association, as Co-agents for the Lenders (the
"CO-AGENTS", and collectively with the Lenders, the Administrative Agent and the
Collateral Agent, the "SECURED CREDITORS").
B. It is a condition precedent of the entry by certain of the Secured
Creditors into Amendment No. 4 to Credit Agreement, dated as of the date hereof,
and of each Credit Extension made or to be made on or after the date hereof
under the Credit Agreement and the other Loan Documents that the Borrower shall
have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the benefits accruing to the
Borrower, the receipt and sufficiency of which are hereby acknowledged, the
Borrower hereby makes the following representations and warranties to the
Collateral Agent for the benefit of the Secured Creditors and hereby covenants
and agrees with the Collateral Agent for the benefit of the Secured Creditors as
follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN TERMS. The following terms when used in this Agreement,
including the introductory paragraph and RECITALS hereto, shall, except where
the context otherwise requires, have the following meanings:
<PAGE> 2
-2-
"ACCOUNTS RECEIVABLE" means any "ACCOUNT" as such term is defined in the UCC,
now or hereafter owned by the Borrower relating to the Borrower's rights to
payment for goods sold or leased or services performed by the Borrower in its
ordinary course of business, whether now in existence or arising from time to
time hereafter, including, without limitation, rights evidenced by an account,
note, contract, security agreement, chattel paper or other evidence of
indebtedness or security, and all rights of the Borrower now existing or from
time to time hereafter created or arising under the Commission Sales Agreements,
together with: (a) all security pledged, assigned, hypothecated or granted to or
held by the Borrower to secure the foregoing; (b) all of the Borrower's right,
title and interest in and to any goods, the sale of which gave rise thereto; (c)
all guarantees, endorsements and indemnifications on, or of, any of the
foregoing; (d) all powers of attorney for the execution of any evidence of
indebtedness or security or other writing in connection therewith; (e) all
books, records, ledger cards, and invoices relating thereto; (f) all evidences
of the filing of financing statements and other statements and the registration
of other instruments in connection therewith and amendments thereto, notices to
other creditors or secured parties and certificates from filing or other
registration officers; (g) all credit information, reports and memoranda
relating thereto; and (h) all other writings related in any way to the
foregoing.
"AGENCY ACCOUNT" means any depository, securities, investment or other
similar account maintained by the Borrower with an Agency Account Institution,
the funds or other assets from which shall be subject to transfer, upon the
terms contained in the Agency Account Agreement applicable thereto, to the
Collateral Agent for the benefit of the Secured Creditors.
"AGENCY ACCOUNT AGREEMENT" is defined in SECTION 4.6.
"AGENCY ACCOUNT INSTITUTION" means any financial institution (other
than the Collateral Agent) which (a) receives deposits directly or indirectly
(whether as the result of an interim concentration of funds in depository
accounts or otherwise) or cash equivalents from or for the account of the
Borrower and (b) is a party to and bound by an Agency Account Agreement as
contemplated and provided by SECTION 4.6.
"AGREEMENT" means this Security Agreement, as amended, supplemented or
otherwise modified from time to time.
"BORROWER" is defined in the introductory paragraph hereto.
"CBCNA" means Chiquita Brands Company, North America, a Delaware
corporation.
<PAGE> 3
-3-
"CCI" means Chiquita (Canada) Inc., formerly known as Chiquita Brands
Limited, a Canadian corporation.
"CHIQUITA AFFILIATES" means, collectively, CBCNA, CCI and CIL.
"CHIQUITA AGREEMENTS" means, collectively, the Commission Sales
Agreements and the Supply Agreement.
"CHIQUITA SOUTH PACIFIC LOAN AGREEMENT" is defined in CLAUSE (c) of
SECTION 2.1.
"CIL" means Chiquita International Limited, a Bermuda corporation.
"CO-AGENTS" is defined in the first paragraph of the RECITALS hereto.
"COLLATERAL AGENT" is defined in the introductory paragraph hereto.
"COMMISSION SALES AGREEMENT (CANADA)" means that certain letter
agreement relating to the sales and distribution of bananas in Canada, dated
April 29, 1980, by and between CCI and the Borrower, as the same may be amended,
modified, supplemented or restated from time to time.
"COMMISSION SALES AGREEMENT (UNITED STATES)" means that certain U.S.
Sale of Fruit Commission Sales Agreement, dated as of February 1, 2000, by and
between CBCNA and the Borrower, as the same may be amended, modified,
supplemented or restated from time to time.
"COMMISSION SALES AGREEMENTS" means, collectively, the Commission Sales
Agreement (Canada) and the Commission Sales Agreement (United States).
"CONSENT TO ASSIGNMENT" is defined in SECTION 4.5.
"CONTRACT RIGHTS" is defined in CLAUSE (a) of SECTION 2.1.
"CREDIT AGREEMENT" is defined in the first paragraph of the RECITALS
hereto.
"EQUIPMENT" is defined in SECTION 3.5.
"EXCLUDED PROPERTY" is defined in SECTION 2.2.
"LENDERS" is defined in the first paragraph of the RECITALS hereto.
"RELATED CONTRACTS" is defined in CLAUSE (a) of SECTION 2.1.
<PAGE> 4
-4-
"SECURED CREDITORS" is defined in the first paragraph of the RECITALS
hereto.
"SECURITY AGREEMENT COLLATERAL" is defined in SECTION 2.1.
"SUPPLY AGREEMENT" means that certain Banana Supply Agreement, dated as
of January 1, 2000, by and between CIL and the Borrower, as the same may be
amended, modified, supplemented or restated from time to time.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
1.2. CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined herein or
the context otherwise requires, terms used in this Agreement, including the
introductory paragraph and RECITALS hereto, that are defined in the Credit
Agreement have the meanings given to such terms in the Credit Agreement.
1.3. UCC DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms for which meanings are provided in the UCC are used in
this Agreement, including the introductory paragraph and RECITALS hereto, with
such meanings.
1.4. GENERAL PROVISIONS RELATING TO DEFINITIONS. Terms for which
meanings are defined in this Agreement shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The term
"INCLUDING" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's permitted successors and assigns. References to any
Instrument in this Agreement refer to such Instrument as originally executed or,
if subsequently amended or supplemented from time to time, as so amended or
supplemented and in effect at the relevant time of reference thereto.
ARTICLE II
SECURITY INTEREST
2.1. GRANT OF SECURITY INTEREST. The Borrower hereby pledges and
assigns as collateral to the Collateral Agent for the benefit of the Secured
Creditors, and hereby grants to the Collateral Agent, for the benefit of the
Secured Creditors, a continuing security interest in and to, all of its right,
title and interest in and to all of the following Property, wheresoever located,
whether now owned or hereafter acquired, created, arising or existing (all of
such Property being collectively called the "SECURITY AGREEMENT COLLATERAL"):
<PAGE> 5
-5-
(a) all Accounts Receivable, the Chiquita Agreements, any
other contracts, contract rights, chattel paper, documents,
instruments, general intangibles, and other obligations and rights of
the Borrower of any kind, in each case relating to the Accounts
Receivable, including all of the following:
(i) all rights and remedies in and to all Instruments
securing or otherwise relating to any Accounts Receivable, the
Chiquita Agreements, any other contracts, contract rights,
chattel paper, documents, instruments, general intangibles,
and other obligations in each case relating to the Accounts
Receivable; and
(ii) all Instruments evidencing any of the foregoing
Accounts Receivable, the Chiquita Agreements, any other
contracts, contract rights, chattel paper, documents,
instruments, general intangibles, and other agreements, or
other obligations in each case relating to the Accounts
Receivable (all such Instruments being collectively called the
"RELATED CONTRACTS");
(any and all such Accounts Receivable, Chiquita Agreements, other
contracts, contract rights, chattel paper, documents, instruments,
general intangibles and other obligations, Related Contracts and other
Property described in this CLAUSE (a) being collectively called the
"CONTRACT RIGHTS");
(b) all claims, demands, judgments, rights, choses in action
and equities relating to the Accounts Receivable and other Contract
Rights, credits, bank accounts, cash on hand and in banks, lock boxes
and other post office boxes;
(c) all rights of the Borrower to receive payment under that
certain Loan Agreement, by and between Chiquita Brands South Pacific
Ltd. and the Borrower, dated as of June 24, 1998 (the "CHIQUITA SOUTH
PACIFIC LOAN AGREEMENT");
(d) all Agency Accounts;
(e) all books, records, writings, data bases, information and
other Property (OTHER THAN EXCLUDED PROPERTY) relating to, evidencing,
embodying or incorporating any of the foregoing Security Agreement
Collateral; and
(f) all products, royalties, rents, issues, profits, returns,
income and proceeds of or rights with respect to any and all of the
foregoing Security Agreement Collateral, including proceeds which
constitute Property of the
<PAGE> 6
-6-
types described in CLAUSES (A) through (E) and, to the extent not
otherwise included, all payments under any indemnity, warranty or
guaranty payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Security Agreement Collateral.
2.2. EXCLUDED PROPERTY. Notwithstanding anything in this Agreement or
in any of the other Collateral Documents to the contrary, the term "SECURITY
AGREEMENT COLLATERAL" shall not include, and the Collateral Agent shall not have
any security interests in or Liens upon:
(i) any Property which the Borrower and the
Collateral Agent shall have agreed, in a writing signed by
both parties identifying such Property, is not subject to the
security interests and Liens created by the Borrower in favor
of the Collateral Agent;
(ii) any Property consisting of (A) the Equity
Interests now owned or hereafter acquired by the Borrower in
any of its direct Subsidiaries, except for the Borrower's
Equity Interests in Friday and any Chiquita South Pacific
Equity that the Borrower shall own or from time to time
acquire, (B) the Equity Interests of the Borrower in Lindemann
and Securities Transfer, or (C) any Note (or other
Indebtedness) issued by Lindemann or Securities Transfer, or
by any direct or indirect Subsidiary of the Borrower to the
Borrower, other than the Chiquita South Pacific Note, the
Chiquita South Pacific Loan Agreement and the Friday Note;
(iii) any lease payments, lease rights, insurance
proceeds or tax refunds that may be received by the Borrower
from time to time; or
(iv) any Accounts Receivable payable by Lindemann or
Securities Transfer, or by any direct or indirect Subsidiary
of the Borrower to the Borrower, other than any amounts
payable under the Chiquita Agreements or the Chiquita South
Pacific Loan Agreement.
The defined terms "EQUITY INTEREST", "CHIQUITA SOUTH PACIFIC EQUITY",
"LINDEMANN", "SECURITIES TRANSFER", "NOTE", "CHIQUITA SOUTH PACIFIC NOTE", and
"FRIDAY NOTE" used in this SECTION 2.2 shall have the meanings given thereto in
the Pledge Agreement. The Property identified and described in CLAUSES (i)
through (iv) above as not included in the Collateral shall be referred to herein
as the "EXCLUDED PROPERTY".
<PAGE> 7
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2.3. SECURITY FOR OBLIGATIONS. This Agreement is made by Borrower for
the benefit of the Secured Creditors in order to secure the full and prompt
payment when due (whether at stated maturity, by acceleration or otherwise) of
all of the Obligations. Notwithstanding anything in the Collateral Documents to
the contrary, the aggregate amount of all of the Obligations from time to time
secured by the Collateral Documents shall not at any time exceed the Maximum
Permitted Amount.
2.4. BORROWER REMAINS LIABLE, ETC. Anything herein to the contrary
notwithstanding:
(a) the Borrower shall remain liable under all Instruments
included in the Security Agreement Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed;
(b) the exercise by the Collateral Agent of any rights
hereunder shall not release the Borrower from any of its duties or
obligations under any Instruments included in the Security Agreement
Collateral; and
(c) the Collateral Agent shall not have any obligation or
liability under any Instruments included in the Security Agreement
Collateral by reason of this Agreement, nor shall the Collateral Agent
be obligated to perform any of the obligations or duties of the
Borrower thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
2.5. SECURITY INTERESTS ABSOLUTE. All rights and security interests of
the Collateral Agent granted hereunder, and all obligations of the Borrower
hereunder, shall be absolute and unconditional irrespective of, and shall not be
impaired or affected by:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other Instrument relating to
any thereof or to any of the Obligations;
(b) any change in the existence, organization, structure or
ownership of the Borrower or of any of its Subsidiaries or any
Bankruptcy or Insolvency Proceeding affecting any such Person or any
Property of any such Person or any resulting release or discharge of
any of the Obligations contained in the Credit Agreement or any other
Loan Documents;
(c) the failure of the Collateral Agent:
<PAGE> 8
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(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower or any other Persons
under any provisions of the Credit Agreement or any other Loan
Documents or any other agreement or Instrument relating to any
thereof or under any Applicable Law, or
(ii) to exercise any right or remedy against any
Collateral;
(d) any change in the time, manner or place of payment of, or
in any other term of all or any Obligations, or any other compromise,
renewal, extension, acceleration or release with respect thereto or
with respect to the Collateral, or any other amendment to, rescission,
waiver or other modification of, or any consent to any departure from
any of the terms, of the Credit Agreement, any other Loan Document or
any other Instrument relating to any thereof;
(e) any increase, reduction, limitation, impairment or
termination of the Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and any defense
or set-off, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise or unenforceability of, or any other event or occurrence
affecting, any of the Obligations (and the Borrower hereby waives any
right to or claim of any such defense or set-off, counterclaim,
recoupment or termination);
(f) any sale, exchange, release, surrender or non-perfection
of any of the Security Agreement Collateral or any other Collateral, or
any release or amendment or waiver of, or any consent to any departure
from, any guaranty or collateral held by the Collateral Agent securing
or guaranteeing all or any of the Obligations;
(g) any defense, set-off or counterclaim which may at any time
be available to or be asserted by the Borrower against the Collateral
Agent; or
(h) any other circumstances which might otherwise constitute a
suretyship or other defense available to, or a legal or equitable
discharge of, the Borrower.
2.6. ATTORNEY-IN-FACT. The Borrower hereby irrevocably appoints the
Collateral Agent, and any officer or agent thereof, the Borrower's
attorney-in-fact, with full authority in the place and stead of the Borrower and
in the name of the Borrower or otherwise, from time to time in the Collateral
Agent's discretion, at any time and from time to time during the continuance of
an Event of Default, to take any and all action and to execute any Instrument or
other assurance which the
<PAGE> 9
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Collateral Agent may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement (subject to the rights of the Borrower under SECTION
4.2), including, without limitation:
(a) to ask, demand, collect, sue, recover, compromise,
receive, and give acquittances and receipts, for moneys due or to
become due under or in respect of any of the Security Agreement
Collateral;
(b) to receive, endorse and collect any drafts or other
Instruments and chattel paper in connection with CLAUSE (a);
(c) to execute and do all such assurances, acts and things
which the Borrower ought to do under the covenants and provisions of
this Agreement;
(d) to take any and all such actions as the Collateral Agent
may, in its reasonable discretion, determine to be necessary or
advisable for the purpose of maintaining, preserving or protecting the
security constituted by this Agreement or any of the rights, remedies,
powers or privileges of the Collateral Agent under this Agreement;
(e) generally, in the name of the Borrower or in the name of
the Collateral Agent, to exercise all or any of the powers, authorities
and discretions conferred on or reserved to the Collateral Agent
pursuant to this Agreement; and
(f) to file such financing statements with respect hereto, or
a photocopy of this Agreement in substitution for a financing
statement, as the Collateral Agent may deem appropriate.
The Borrower hereby ratifies all that the Collateral Agent shall do or cause to
be done by virtue hereof. The Borrower hereby acknowledges, consents, and agrees
that the power of attorney granted to the Collateral Agent pursuant to this
SECTION 2.6 is irrevocable and coupled with an interest and shall terminate only
upon termination in full of all of the Commitments and payment in full and in
cash of all of the Obligations.
2.7. PROTECTION OF COLLATERAL. The Collateral Agent may from time to
time, at its option, perform any act which the Borrower shall have agreed
hereunder to perform and which the Borrower shall fail to perform after being
requested in writing to so perform (it being understood that no such request
need be given during the continuance of any Event of Default), and the
Collateral Agent may from time to time take any other action which the
Collateral Agent reasonably deems necessary for the maintenance, preservation or
protection of any of the Security Agreement Collateral or of the security
interests therein. The Collateral Agent will
<PAGE> 10
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exercise reasonable care in the custody and preservation of the Security
Agreement Collateral in its possession.
2.8. COLLATERAL AGENT HAS NO DUTY. The powers conferred on the
Collateral Agent hereunder are solely to protect its interest in the Security
Agreement Collateral and shall not impose any duty upon it to exercise any such
powers. Except as provided in SECTION 2.7, the accounting for moneys actually
received by it hereunder and other duties imposed by the UCC upon secured
creditors (unless otherwise modified hereby), the Collateral Agent shall have no
duty as to any Security Agreement Collateral or responsibility for taking any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Security Agreement Collateral.
2.9. CONTINUING SECURITY INTERESTS; TERMINATION OF SECURITY INTERESTS.
This Agreement has created and shall create continuing security interests in all
of the Security Agreement Collateral and shall:
(a) remain in full force and effect until the latest to occur
of the termination of all of the Commitments of the Secured Creditors
under the Credit Agreement and all other Loan Documents, the payment in
full of the unpaid principal of all of the Loans, the payment in full
or (as the case may be) the termination of all Letter of Credit
Outstandings, or the payment in full in cash of all the other
Obligations;
(b) be binding upon the Borrower and its successors and
assigns (PROVIDED that the Borrower may not assign any of its
obligations hereunder without the prior written consent of the
Collateral Agent); and
(c) inure to the benefit of the Collateral Agent and its
successors, transferees and assigns.
Upon the latest to occur of the termination of all of the Commitments of the
Secured Creditors under the Credit Agreement and all other Loan Documents, the
payment in full of the unpaid principal of all of the Revolving Loans, the
payment in full or (as the case may be) the termination of all Letter of Credit
Outstandings, or the payment in full in cash of all of the Obligations, the
security interests granted hereby by the Borrower shall automatically terminate
and all rights to the Security Agreement Collateral of the Borrower shall revert
to the Borrower. Upon any such termination of the security interests granted
hereby, the Collateral Agent will, at the sole expense of the Borrower, promptly
execute and deliver to the Borrower such Instruments and other assurances as the
Borrower shall reasonably request to evidence such termination, including
properly completed UCC-3 Financing Statements.
<PAGE> 11
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Collateral Agent as set
forth in this ARTICLE III.
3.1. LOCATIONS. As of the date hereof, the chief place of business and
chief executive offices of the Borrower and each of the Chiquita Affiliates and
the offices where the Borrower and each of the Chiquita Affiliates keeps its
respective records concerning its Security Agreement Collateral are specified in
ITEM A of EXHIBIT A. As of the date hereof, no Security Agreement Collateral is
located at any location other than those locations specified in ITEM A of
EXHIBIT A. As of the date hereof, the Borrower has accounts containing cash,
cash equivalents, securities and other investments only with those institutions
listed on ITEM B of EXHIBIT A.
3.2. OWNERSHIP, POSSESSION, ETC. As of the date hereof, the Borrower
owns its Security Agreement Collateral free and clear of all Liens, EXCEPT (a)
for Liens from time to time permitted by the Loan Documents, and (b) as
otherwise provided or contemplated by the Credit Agreement. No effective
financing statements or other Security Instruments similar in effect covering
all or any part of the Security Agreement Collateral of the Borrower are on file
as of the date hereof in any recording office, except such as may have been
filed in favor of the Collateral Agent relating to this Agreement and except
such as are identified in ITEM C of EXHIBIT A or are from time to time permitted
under the Loan Documents. The Borrower does no business in the United States as
of the date hereof under any trade names other than those listed in ITEM D of
EXHIBIT A. No material item of Security Agreement Collateral consists of chattel
paper which evidences Contract Rights, and no item of Security Agreement
Collateral is evidenced by a promissory note or other Instrument (other, in any
case, than checks or drafts received in the ordinary course of business and
other than the Collateral pledged pursuant to the Pledge Agreement).
3.3. CONTRACTS, ETC. Each of the material Related Contracts, including
the Chiquita Agreements, and other contracts (and all agreements and contract
rights embodied therein), which constitutes Security Agreement Collateral has
been, to the knowledge of the Borrower, duly authorized, executed and delivered
by the parties thereto, has not been amended or modified in any manner which
would have a Materially Adverse Effect, is in full force and effect, and is
binding upon and enforceable against the parties thereto in accordance with its
terms, subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar Applicable Laws affecting the
enforceability of the rights of creditors generally. There exists no material
default or other condition which, after notice or lapse of time, would become a
material default under any such Related Contract
<PAGE> 12
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(including any of the Chiquita Agreements) or other contract, which default has
had or could reasonably be expected to have a Materially Adverse Effect.
3.4. PERFECTION, ETC. This Agreement, together with the filing of the
UCC-1 Financing Statements signed by the Borrower and delivered to the
Collateral Agent on or prior to the date hereof, will create, upon the filing of
the UCC-l Financing Statements in the appropriate filing offices, a valid
security interest in substantially all the Security Agreement Collateral as to
which a security interest may be perfected by filing UCC-1 Financing Statements.
This Agreement together with the delivery of fully executed Agency Account
Agreements will create a valid security interest in the Agency Accounts. The
security interest created hereby (except as to any Security Agreement Collateral
in which another Person has a prior security interest pursuant to a Lien
permitted under the Loan Documents) is or shall be a first-priority security
interest, to the extent that such security interest may be perfected and such
first-priority status be established by the filing of UCC-1 Financing Statements
or the entry by the Borrower, the Collateral Agent, and the other parties
thereto into Agency Account Agreements. No authorization, approval or other
action by and no notice to or filing with any Governmental Authority is required
either for the grant by the Borrower of the security interest created hereby or
for the execution, delivery or performance of this Agreement by the Borrower or
for the perfection of such security interests created hereby in any Security
Agreement Collateral as to which a security interest may be perfected by the
filing of UCC-1 Financing Statements, EXCEPT for:
(i) the filing of the UCC-1 Financing Statements
signed by the Borrower and delivered to the Collateral Agent
on or prior to the date hereof;
(ii) with respect to the exercise by the Collateral
Agent of its rights and remedies with respect to contracts
pursuant to which the United States government (or any of its
agencies, departments, or instrumentalities) is the obligor,
compliance with the notice provisions of the Assignment of
Claims Act of 1940 or comparable provisions of State law;
(iii) with respect to the exercise by the Collateral
Agent of its rights and remedies with respect to any
securities, compliance with the federal and state laws
affecting the offering and sale of securities; and
(iv) the timely filing of UCC continuation
statements.
3.5. EQUIPMENT. As of the date hereof, the SUM of (a) the Fair Market
Value of all computer hardware, computer software, office furniture and office
equipment (collectively, the "EQUIPMENT") owned by Borrower; PLUS (b) the Fair
<PAGE> 13
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Market Value of Borrower's interest in any Equipment licensed or leased by
Borrower, is less than $7,500,000.
ARTICLE IV
COVENANTS
4.1. FURTHER ASSURANCES GENERALLY. The Borrower hereby covenants and
agrees that it will, from time to time at its own expense, promptly execute and
deliver all further Instruments and other assurances and take all further action
that may be necessary or reasonably desirable, or that the Collateral Agent may
reasonably request, in order to perfect and protect any security interests
purported to be granted by the Borrower under this Agreement or to enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder with
respect to any of the Security Agreement Collateral. Without limitation of the
foregoing, the Borrower will, with respect to all of its following Property
constituting Security Agreement Collateral:
(a) at the request of the Collateral Agent at any time when
any Event of Default is continuing, immediately mark conspicuously each
chattel paper included in the Contract Rights, each Related Contract,
each Account Receivable and each of its records pertaining to Security
Agreement Collateral with a legend, in form and substance reasonably
satisfactory to the Collateral Agent, indicating that such Account
Receivable, document, chattel paper, Related Contract or Security
Agreement Collateral is subject to the security interests granted
hereby;
(b) at the written request of the Collateral Agent, if any
Account Receivable shall be evidenced by any Instruments, Securities or
chattel paper, promptly deliver and pledge to the Collateral Agent
hereunder such Instruments, Securities or chattel paper duly endorsed
and accompanied by duly executed Instruments of transfer or assignment
(other, in any case, than any checks or drafts received in the ordinary
course of business), all in form and substance reasonably satisfactory
to the Collateral Agent; and
(c) execute and file such financing or continuation
statements, or amendments thereto, and such other Instruments and
notices, as may be necessary or reasonably desirable, or as the
Collateral Agent may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted
hereby.
The Borrower hereby further authorizes the Collateral Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
<PAGE> 14
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any part of the Security Agreement Collateral without the signature of the
Borrower where permitted by Applicable Law. A copy of this Agreement shall be
sufficient as a financing statement where permitted by Applicable Law. The
Borrower will furnish to the Collateral Agent from time to time statements and
schedules further identifying and describing the Security Agreement Collateral
and such other reports in connection with the Security Agreement Collateral as
the Collateral Agent may reasonably request, all in reasonable detail.
4.2. AS TO CONTRACT RIGHTS. The Borrower will, and will cause each of
the Chiquita Affiliates to, with respect to all of its Property constituting
Security Agreement Collateral:
(a) keep its chief place of business and chief executive
office and the offices where it keeps its records concerning the
Contract Rights, and all originals of all chattel paper which evidence
Contract Rights, at the location therefor specified in SECTION 3.1 or,
upon thirty (30) days' prior written notice to the Collateral Agent, at
such other locations as the Borrower or such Chiquita Affiliate may
desire; PROVIDED, HOWEVER, that all statements set forth in SECTION 3.4
shall be true and correct and all action reasonably required by the
Collateral Agent pursuant to SECTION 4.1 shall have been taken; and
(b) hold and preserve such records and chattel paper and
permit representatives of the Collateral Agent upon reasonable advance
written notice at any time during normal business hours to inspect and
make abstracts from such records and chattel paper.
Unless any Event of Default is continuing and the Collateral Agent has
instructed the Borrower otherwise, the Borrower shall, except as otherwise
provided by the Credit Agreement or by the Pledge Agreement, continue to
collect, at its own expense, all amounts due or to become due to the Borrower
under the Contract Rights, and the Borrower may adjust, settle or compromise the
amount or payment thereof, in the ordinary course of business, subject always to
the provisions contained in SECTION 4.5 hereof. In connection with such
collections, the Borrower may take such action as the Borrower may deem
necessary or advisable to enforce collection of the Contract Rights; PROVIDED,
HOWEVER, that the Collateral Agent shall have the right, at any time during the
continuance of any Event of Default, to communicate with account debtors in
order to verify with them, to the Collateral Agent's reasonable satisfaction,
the existence, amount and terms of any Accounts Receivable or other Contract
Rights, to notify the account debtors or obligors under any Accounts Receivable
or other Contract Rights of the assignment of such Accounts Receivable or other
Contract Rights to the Collateral Agent, and to direct such account debtors or
obligors to make payment of all amounts due or to become due to the Borrower
thereunder directly to the Collateral Agent (to such account of
<PAGE> 15
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the Collateral Agent as the Collateral Agent shall reasonably designate) and,
upon such notification and at the expense of the Borrower, to enforce collection
of any such Accounts Receivable or other Contract Rights, and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same
extent as the Borrower might have done. During the continuance of any Event of
Default and receipt (at any time while such Event of Default is continuing) by
the Borrower of notice from the Collateral Agent instructing the Borrower to
comply with the following provisions of this SECTION 4.2: (i) all amounts and
proceeds (including any Instruments) received by the Borrower in respect of any
Accounts Receivable or other Contract Rights shall be received in trust for the
benefit of the Collateral Agent hereunder, shall be segregated from other funds
of the Borrower, and shall be forthwith paid over to the Collateral Agent (to
such account of the Collateral Agent as the Collateral Agent shall designate) in
the same form as so received (with any necessary endorsements) to be held as
cash collateral and applied in accordance with SECTION 5.2; and (ii) the
Borrower will not, without the consent of the Collateral Agent, adjust, settle,
or compromise the amount or payment of any Accounts Receivable or other Contract
Rights, or release wholly or partly any account debtor or obligor thereof, or
allow any credit or discount thereon.
4.3. TRANSFERS AND OTHER LIENS.
(a) The Borrower hereby covenants and agrees that it will not
at any time:
(i) sell, assign (by operation of law or otherwise)
or otherwise dispose of any of its Security Agreement
Collateral, except (in any case) for Sales and other
dispositions of Property from time to time permitted by the
Loan Documents;
(ii) create or suffer to exist any Liens upon or with
respect to any of its Security Agreement Collateral, except
for (A) the security interests created by this Agreement, and
(B) any other Liens from time to time permitted by the Loan
Documents; or
(iii) create or suffer to exist, or cause or permit
CBCNA or CCI to create or suffer to exist, any Liens (other
than Liens arising by operation of Applicable Law) upon or
with respect to any fruit or other inventory transferred by
the Borrower to CBCNA or CCI pursuant to the Commission Sales
Agreements.
(b) The Borrower hereby covenants and agrees that it will
defend the right, title and interest of the Collateral Agent in and to
its Security Agreement Collateral and in and to all of the proceeds and
products thereof against the claims and demands of all other Persons.
<PAGE> 16
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4.4. NOTICES. The Borrower hereby covenants and agrees that it will,
upon obtaining knowledge thereof, advise the Collateral Agent promptly, in
reasonable detail, (a) of any Lien made or asserted against any of its Security
Agreement Collateral (except for Liens from time to time permitted by the Loan
Documents to attach to such Security Agreement Collateral), (b) of any material
change outside of the ordinary course of business in the composition of its
Security Agreement Collateral, (c) of the occurrence of any other event which
would have a materially adverse effect on the aggregate value of its Security
Agreement Collateral or on the security interests created by it hereunder (it
being understood that Accounts Receivable may vary seasonally and otherwise,
based on pricing, supply and demand), (d) of any material default under, or of
any amendment, material modification, termination or cancellation of, any of the
Chiquita Agreements, and (e) of any other matters relating to its Security
Agreement Collateral that the Collateral Agent may from time to time reasonably
request in writing.
4.5. LIMITATION ON CHANGES TO THE CHIQUITA AGREEMENTS, ETC.
(a) The Borrower hereby covenants and agrees that the Borrower
shall not at any time or times alter or permit to be altered in any
material respect:
(i) the way in which Accounts Receivable attributable
to North American banana sales are recorded, from the way in
which such Accounts Receivable are recorded on or about the
date hereof;
(ii) the basis (including, without limitation,
material terms and conditions, timing and frequency, manner
and the like) on which such Accounts Receivable are
transferred to and acquired by the Borrower, from the basis on
which such Accounts Receivables are so transferred and
acquired on or about the date hereof;
(iii) the present operating relationship between the
Borrower and CBCNA, as set forth in the Commission Sales
Agreement (United States) as in effect on the date hereof;
(iv) the present operating relationship between the
Borrower and CCI, as set forth in the Commission Sales
Agreement (Canada) as in effect on the date hereof; or
(v) the present operating relationship with respect
to fruit purchases for the North American market between the
Borrower and CIL, as set forth in the Supply Agreement as in
effect on the date hereof.
<PAGE> 17
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(b) The Borrower covenants and agrees that the Borrower shall
not at any time or times amend, modify, terminate or cancel, or
otherwise cause or permit the amendment, modification, termination or
cancellation of, any of the Chiquita Agreements or any of the terms and
conditions of any of the Chiquita Agreements, without (in each case)
the prior written consent of the Collateral Agent.
(c) The Borrower will ensure that CBCNA will at all times
continue to act as exclusive agent and consignee for the Borrower with
respect to sales in the United States upon the terms and subject to the
conditions contained in the Commission Sales Agreement (United States)
as in effect on the date hereof. The Borrower will ensure that CCI will
at all times continue to act as exclusive agent and consignee for the
Borrower with respect to sales in Canada upon the terms and subject to
the conditions contained in the Commission Sales Agreement (Canada) as
in effect on the date hereof.
(d) During the continuation of any Event of Default, if and as
so requested by the Collateral Agent in writing, the Borrower will
cause CBCNA and CCI to make all payments that would otherwise be made
to the Borrower under the Commission Sales Agreements, directly to the
Collateral Agent for application by the Collateral Agent toward payment
of the Obligations pursuant to the Loan Documents. Any payments which
are received by the Borrower contrary to the provisions of this SECTION
4.5 shall be received in trust for the benefit of the Collateral Agent
and the other Secured Creditors, shall be segregated from other
Property or funds of the Borrower, and shall be forthwith paid over to
the Collateral Agent in the same form as so received (with any
necessary endorsements).
(e) During the continuation of any Event of Default, if and as
so requested by the Collateral Agent in writing, the Borrower will
cause each of the Chiquita Affiliates to treat the Collateral Agent as
the collateral assignee entitled to the direct benefit of all of rights
and interests of the Borrower under each of the Chiquita Agreements.
(f) The Borrower shall enter into, and shall cause each of
CBCNA, CCI and CIL to enter into, a consent to collateral assignment of
its respective Chiquita Agreement in substantially the form of EXHIBIT
C (each, a "CONSENT TO ASSIGNMENT").
(g) The Borrower shall not at any time or times take any
action, omit to take any action, enter into or terminate any contract,
or effect or permit any change in its corporate structure or that of
any of its
<PAGE> 18
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Subsidiaries (whether by way of any merger, sale of assets,
reorganization or otherwise), which will impair or hinder the ability
or obligation of any of the Chiquita Affiliates to perform any of its
duties and responsibilities under the Chiquita Agreement to which it is
a party.
4.6. BANKING ARRANGEMENTS. By March 31, 2000, and at all times
thereafter, the Borrower will, except as and to the extent otherwise expressly
permitted by the Collateral Agent from time to time, make subject to an agency
account agreement, in or substantially in the form of EXHIBIT B or otherwise in
form and substance reasonably satisfactory to the Collateral Agent (each, an
"AGENCY ACCOUNT AGREEMENT"), each bank, securities or other investment account
held or maintained by the Borrower with any bank or other financial institution
other than the Collateral Agent and in which any cash or cash equivalents owned
by the Borrower are at any time held or maintained, excluding any accounts
opened and maintained by the Borrower as a fiduciary for its employees, or
otherwise in connection with the Borrower's employee benefits plans,
specifically excluding the "Capital Appreciation Plan" of the Borrower. Existing
accounts are listed in ITEM B of EXHIBIT A hereto. The Borrower shall notify the
Collateral Agent of any new accounts to be established from time to time. The
Borrower shall deliver to the Collateral Agent from time to time, and in any
case quarterly, a description of all accounts in form and substance satisfactory
to the Collateral Agent, which description shall include the account numbers and
balances of such accounts.
ARTICLE V
REMEDIES
5.1. EXERCISE. If any Event of Default is continuing, the Collateral
Agent may exercise in respect of all or any of the Security Agreement
Collateral, in addition to all other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of the Collateral Agent
upon default under the UCC (whether or not the UCC applies to the affected
Security Agreement Collateral) and other Applicable Law. Without limitation of
the above, the Collateral Agent may, whenever an Event of Default is continuing,
without (to the extent permitted by Applicable Law) notice to the Borrower, take
all or any of the following actions:
(a) transfer all or any part of the Security Agreement
Collateral into the name of the Collateral Agent or its nominee, with
or without disclosing that such Security Agreement Collateral is
subject to any Liens hereunder;
<PAGE> 19
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(b) notify the parties obligated in respect of any of the
Security Agreement Collateral to make payments directly to the
Collateral Agent of any amount due or to become due thereunder;
(c) enforce collection of any of the Security Agreement
Collateral by suit or otherwise, and surrender, release or exchange all
or any part thereof, or compromise or extend or renew for any period
(whether or not longer than the original period) any obligations of any
nature of any party with respect thereto;
(d) endorse any checks, drafts or other writings in the name
of the Borrower to allow collection of the Security Agreement
Collateral;
(e) take control of any proceeds of the Security Agreement
Collateral;
(f) execute (in the name, place, and stead of the Borrower)
endorsements, assignments, stock powers and other Instruments of
conveyance or transfer with respect to all or any of the Security
Agreement Collateral; and
(g) generally, do all such other acts and things as may be
considered incidental or conducive to any of the matters or powers
mentioned in the foregoing provisions of this SECTION 5.1 and which the
Collateral Agent may or can do lawfully and to use the name of the
Borrower for such purposes and in any proceedings arising therefrom.
In furtherance of, and not in limitation of, the foregoing, the Collateral
Agent, without demand of performance or other demand, advertisement or notice of
any kind (except the notice specified below of time and place of public or
private sale) to or upon the Borrower or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly irrevocably waived
by the Borrower), may, whenever any Event of Default is continuing, in a
commercially reasonable manner, collect, receive, appropriate and realize upon
the Security Agreement Collateral, or any part thereof, and sell, assign,
give an option or options to purchase, contract to sell or otherwise dispose of
and deliver the Security Agreement Collateral, or any part thereof, in one or
more parcels at public or private sale or sales, at any exchange, at any
broker's board or at any of the Collateral Agent's offices or elsewhere upon
such terms and conditions as it may reasonably deem advisable and at such prices
as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk, with the right to the Collateral Agent upon any
such sale or sales, public or private, to purchase the whole or any part of the
Security Agreement Collateral so sold, free of any right or equity of redemption
in the Borrower, which right or equity is hereby expressly
<PAGE> 20
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irrevocably waived and released by the Borrower. Unless Security Agreement
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, in which event no notification is
required, the Borrower agrees that the Collateral Agent need not give it more
than ten (10) days' notice of the time and place of any public sale or of the
time after which a private sale or other intended disposition is to take place
and that such notice is reasonable notification of such matters.
5.2. APPLICATION OF PROCEEDS. Cash proceeds received or otherwise held
by the Collateral Agent in respect of any Sale of, collection from, or other
realization upon, all or any part of the Collateral under this Agreement or the
Pledge Agreement shall be applied by the Collateral Agent in the following
order:
(a) FIRST, subject always to the limitations contained in the
next paragraph of this SECTION 5.2, to the Collateral Agent for the
benefit of the Secured Creditors, on account of the Obligations of the
Borrower to the Secured Creditors (whether or not such Obligations are
then due and payable, matured or unmatured, absolute or contingent, or
otherwise); and
(b) SECOND, to the extent that proceeds remain after the
application pursuant to the preceding CLAUSE (A), to the Borrower or to
whomsoever else may be lawfully entitled to receive such surplus.
NOTWITHSTANDING ANYTHING EXPRESS OR IMPLIED IN THE COLLATERAL DOCUMENTS
TO THE CONTRARY, THE MAXIMUM AGGREGATE AMOUNT OF ALL PROCEEDS OF COLLATERAL
(WHETHER RECEIVED OR REALIZED UPON PURSUANT TO THIS AGREEMENT OR THE PLEDGE
AGREEMENT) WHICH MAY BE APPLIED BY THE COLLATERAL AGENT AND THE OTHER SECURED
CREDITORS TOWARDS PAYMENT OF THE OBLIGATIONS SHALL NOT EXCEED THE MAXIMUM
PERMITTED AMOUNT.
THE BORROWER SHALL REMAIN LIABLE FOR ANY DEFICIENCY.
5.3. INDEMNITY AND EXPENSES. The Borrower hereby indemnifies and holds
harmless the Collateral Agent and the shareholders, officers, directors,
employees, agents, Subsidiaries and affiliates of the Collateral Agent, from and
against any and all claims, losses, and liabilities arising out of or resulting
from this Agreement (including the enforcement thereof), except to the extent
that such claims, losses or liabilities have been found by a court of competent
jurisdiction, in a final, nonappealable order, to have resulted as a consequence
of the Collateral Agent's fraud, gross negligence or willful misconduct. The
Borrower will, upon written demand, pay to the Collateral Agent the amount of
any and all reasonable expenses,
<PAGE> 21
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including the reasonable fees and disbursements of its counsel and of any
experts, which the Collateral Agent may incur in connection with:
(a) the administration of this Agreement or any agreement or
other Instrument relating hereto;
(b) the removal, custody, preservation, use or operation of,
or the sale of, collection from, or other realization upon, any of the
Borrower's Security Agreement Collateral;
(c) the exercise or enforcement against the Borrower of any of
the rights or remedies of the Collateral Agent hereunder;
(d) the failure by the Borrower to perform or observe any of
the provisions hereof; or
(e) the advancement of any funds in connection with actions
taken pursuant to SECTION 2.7.
5.4. NO WAIVER; REMEDIES CUMULATIVE. No delay, act or omission on the
part of the Collateral Agent of any of its rights hereunder shall be deemed a
waiver of any rights hereunder unless also contained in a writing signed by the
Collateral Agent, nor shall any single or partial exercise of, or any failure to
exercise, any right, power or privilege preclude any other or further or initial
exercise thereof of any other right, power or privilege. The rights and remedies
provided herein are cumulative, and not exclusive of rights and remedies which
may be granted or provided by Applicable Law.
5.5. MARSHALLING. The Collateral Agent shall not be required to marshal
any present or future collateral security (including, but not limited to, this
Agreement and the Security Agreement Collateral) for, or other assurances of
payment of, the Obligations or any of them or to resort to such collateral
security or other assurances of payment in any particular order, and all of the
rights of the Collateral Agent hereunder or in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, the Borrower hereby agrees that it will not invoke any Applicable Law
relating to the marshalling of collateral which might cause delay in or impede
the enforcement of the Collateral Agent's rights under this Agreement or under
any other Instrument creating or evidencing any of the Obligations or under
which any of the Obligations is outstanding or by which any of the Obligations
is secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, the Borrower hereby irrevocably waives the benefits of all such
laws.
<PAGE> 22
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ARTICLE VI
MISCELLANEOUS
6.1. COLLATERAL DOCUMENT, ETC. For all purposes of the Credit
Agreement, this Agreement is a "COLLATERAL DOCUMENT" and a "LOAN DOCUMENT"
executed and delivered pursuant to the Credit Agreement, and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in
accordance with and subject to the terms and provisions of the Credit Agreement.
6.2. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement nor consent to any departure by the Borrower herefrom shall in any
event be effective unless the same shall be in writing and signed by the
Collateral Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is given.
6.3. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing or by facsimile transmission and, if
to the Borrower, addressed or delivered to it at the address specified in the
Credit Agreement, and if to the Collateral Agent, addressed or delivered to it
at the address specified in the Credit Agreement, or as to any party at such
other address as shall be designated by such party in a written notice to the
other parties complying as to delivery with the terms of this SECTION 6.3. Any
such notices and other communications, if mailed and properly addressed with
postage prepaid or if transmitted by facsimile transmission, shall be deemed
given when received.
6.4. SPECIFIC PERFORMANCE. For the avoidance of doubt, the parties
hereto hereby acknowledge that the Borrower's covenants in SECTION 4.5 hereof
are of the essence of this Agreement and that, accordingly, upon application to
a court of equity having jurisdiction, the Collateral Agent shall be entitled
to a decree requiring specific performance by the Borrower of such covenants.
6.5. CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL
IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
EXCEPT FOR SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK.
6.6. COUNTERPARTS; ENTIRE AGREEMENT. This Agreement may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement. This Agreement, the Credit Agreement and the other Loan Documents
constitute the entire understanding between the parties hereto with respect to
the
<PAGE> 23
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subject matter hereof and supersede any prior agreements, written or oral,
with respect thereto.
6.7. HEADINGS. The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
6.8. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW WHICH CANNOT BE WAIVED, EACH OF THE COLLATERAL AGENT AND THE BORROWER HEREBY
WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR
ANY OBLIGATION OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE COLLATERAL AGENT OR OF THE BORROWER IN CONNECTION WITH ANY OF
THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN
CONTRACT OR TORT OR OTHERWISE. THE BORROWER ACKNOWLEDGES THAT THE PROVISIONS OF
THIS SECTION 6.8 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE COLLATERAL
AGENT IS RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. THE COLLATERAL
AGENT OR THE BORROWER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
6.8 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE COLLATERAL AGENT
AND THE BORROWER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
<PAGE> 24
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IN WITNESS WHEREOF, the parties hereto have caused this SECURITY
AGREEMENT to be duly executed and delivered by their respective officers
thereunto duly authorized on and as of the date first above written.
THE BORROWER:
-------------
[SEAL] CHIQUITA BRANDS
INTERNATIONAL, INC.
Attest: /s/ By: /s/
-------------------------------------- -----------------------------
Barbara Wagner Name: Gerald R. Kondritzer
Assistant Secretary Title: Vice President and
Treasurer
THE COLLATERAL AGENT:
---------------------
BANKBOSTON, N.A.,
as Collateral Agent
for the Lenders
By: /s/
-----------------------------
Name: Robert F. Milordi
Title: Managing Director
State of Ohio )
) ss.
County of Hamilton )
Personally appeared before me, the undersigned, a Notary Public in and
for said county, Gerald R. Kondritzer, personally known to me, who, being by me
first duly sworn, declared that he is the Vice President and Treasurer of
CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation, that being duly
authorized he did sign and seal the said SECURITY AGREEMENT as such officer of
and on behalf of such corporation, and that the same is such corporation's free
act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal on
this 4th day of February, 2000.
/s/
----------------------------
Barbara Howland
Notary Public
My Commission Expires:
[SEAL] JULY 27, 2003
------------------------------------
<PAGE> 1
EXHIBIT 10.3
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of February 7, 2000, by and between
CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation (referred to
herein as the "PLEDGOR"), and BANKBOSTON, N.A., as Collateral Agent for the
benefit of the Secured Creditors (as defined in the RECITALS hereto) (referred
to herein as the "PLEDGEE").
RECITALS
A. The Pledgor has entered into that certain Credit Agreement, dated as
of December 31, 1996, as amended through the date hereof (as further amended,
modified, extended, renewed, replaced, restated, supplemented, restructured
and/or refinanced from time to time, the "CREDIT AGREEMENT"), by and among the
Pledgor, as borrower, the financial institutions which are now, or in accordance
with SECTION 12.2 thereof hereafter become, parties thereto (collectively, the
"LENDERS"), BankBoston, N.A., as Administrative Agent and Collateral Agent for
the benefit of the Co-agents and Lenders, and BankBoston, N.A., ING Bank N.V.,
and PNC Bank, National Association, as Co-agents for the Lenders (the
"CO-AGENTS", and collectively with the Lenders, the Administrative Agent and the
Pledgee, the "SECURED CREDITORS").
B. It is a condition precedent of the entry by certain of the Secured
Creditors into Amendment No. 4 to Credit Agreement, dated as of the date hereof,
and of each Credit Extension made or to be made on or after the date hereof
under the Credit Agreement and the other Loan Documents that the Pledgor shall
have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the benefits accruing to
the Pledgor, the receipt and sufficiency of which are hereby acknowledged, the
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Creditors and hereby covenants and agrees with
the Pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the
Pledgor for the benefit of the Secured Creditors in order to secure the full and
prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of all of the Obligations. Notwithstanding anything in the Collateral
Documents to the contrary, the aggregate amount of all of the Obligations from
time to time secured by the Collateral Documents shall not at any time exceed
the Maximum Permitted Amount.
2. DEFINITIONS. (a) Unless otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement shall be used
<PAGE> 2
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herein as therein defined. Reference to singular terms shall include the
plural and VICE VERSA. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The term
"INCLUDING" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's permitted successors and assigns. References to any
Instrument in this Agreement refer to such Instrument as originally executed or,
if subsequently amended or supplemented from time to time, as so amended or
supplemented and in effect at the relevant time of reference thereto.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"ADVERSE CLAIM" shall have the meaning given such term in
Section 8-102(a)(1) of the UCC.
"AGREEMENT" shall mean this Pledge Agreement, as the same may
from time to time be amended, modified, extended, renewed, replaced, restated or
supplemented.
"CERTIFICATED SECURITY" shall have the meaning given such term
in Section 8-102(a)(4) of the UCC.
"CHIQUITA SOUTH PACIFIC" shall mean Chiquita Brands South
Pacific Ltd., an Australian company.
"CHIQUITA SOUTH PACIFIC EQUITY" shall mean the resulting
Equity Interests if and to the extent that Indebtedness under or in respect of
the Chiquita South Pacific Loan Agreement or the Chiquita South Pacific Note is
ever converted to or exchanged for Equity Interests in Chiquita South Pacific.
"CHIQUITA SOUTH PACIFIC LOAN AGREEMENT" shall mean that
certain Loan Agreement, by and between Chiquita South Pacific and the Pledgor,
dated as of June 24, 1998, as the same may be amended, restated, extended or
otherwise modified from time to time.
"CHIQUITA SOUTH PACIFIC NOTE" shall mean any note or notes
that may be issued by Chiquita South Pacific from time to time in connection
with or pursuant to the Chiquita South Pacific Loan Agreement to evidence all or
any part of the Indebtedness of Chiquita South Pacific thereunder, as the same
may be amended, replaced, restated, extended or otherwise modified from time to
time.
"CLEARING CORPORATION" shall have the meaning given such term
in Section 8-102(a)(5) of the UCC.
"COLLATERAL" shall have the meaning set forth in SECTION 3.1
hereof.
<PAGE> 3
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"COLLATERAL ACCOUNTS" shall mean, in relation to the Pledgor,
any and all accounts established and maintained by the Pledgee in the name of
the Pledgor and to which any Collateral may from time to time be credited.
"CONSENT TO ASSIGNMENT" shall have the meaning set forth in
SECTION 15(f) hereof.
"CREDIT AGREEMENT" shall have the meaning set forth in the
RECITALS hereto.
"EQUITY INTERESTS" shall mean (a) in the case of any
corporation, any Capital Stock of any class or series, (b) in the case of any
association or business entity, any shares, interests, participations, rights or
other equivalents (howsoever designated) of Capital Stock, and (c) in the case
of any partnership or limited liability company, partnership or membership
interests (whether general or limited), and all warrants, options or other
rights to purchase, subscribe for or otherwise acquire such interests (but
excluding any Notes that are convertible into, or exchangeable for, Capital
Stock or other Equity Interests).
"FINANCIAL ASSET" shall have the meaning given such term in
Section 8-102(a)(9) of the UCC).
"FRIDAY" shall mean Friday Holdings, L.L.C., a Delaware
limited liability company.
"FRIDAY NOTE" shall mean that certain Promissory Note, dated
as of December 30, 1998, payable by Friday to the order of Chiquita Brands,
Inc., as the same may be amended, replaced, restated, extended or otherwise
modified from time to time. The Friday Note and all of the rights, title and
interests of Chiquita Brands, Inc. thereunder have been assigned and transferred
to the Pledgor.
"INDEMNITEES" shall have the meaning set forth in SECTION 11
hereof.
"INSTRUMENT" shall have the meaning given such term in Section
9-105(l)(1) of the UCC.
"INVESTMENT PROPERTY" shall have the meaning given in Section
9-115(l)(f) of the UCC.
"LENDERS" shall have the meaning set forth in the RECITALS
hereto.
"LIMITED LIABILITY COMPANY ASSETS" shall mean all Property,
whether tangible or intangible, and whether real, personal or mixed (including,
without limitation, all limited liability company capital and interest in any
other limited liability company), at any time owned or represented by any
Limited Liability Company Interests.
<PAGE> 4
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"LIMITED LIABILITY COMPANY INTERESTS" shall mean all of the
limited liability company membership interests at any time or from time to time
owned or acquired by the Pledgor in any limited liability company.
"LINDEMANN" shall mean Lindemann Produce, L.L.C., a Nevada
limited liability company.
"NOTES" shall mean, in relation to the Pledgor, all promissory
notes or other similar Instruments now owned or from time to time hereafter
acquired by the Pledgor.
"OBLIGATIONS" shall have the meaning given such term in the
Credit Agreement.
"PARTNERSHIP ASSETS" shall mean all Property, whether tangible
or intangible, and whether real, personal or mixed (including, without
limitation, all partnership capital and interest in any other partnership), at
any time owned or represented by any Partnership Interests.
"PARTNERSHIP INTERESTS" shall mean all of the general
partnership interests and all of the limited partnership interests at any time
or from time to time owned or acquired by the Pledgor in any general partnership
or limited partnership.
"PLEDGEE" shall have the meaning set forth in the PREAMBLE
hereto.
"PLEDGOR" shall have the meanings set forth in the PREAMBLE
hereto.
"PROCEEDS" shall have the meaning given such term in Section
9-306(1) of the UCC.
"SECURED CREDITORS" shall have the meaning set forth in the
RECITALS hereto.
"SECURITIES ACCOUNT" shall have the meaning given such term in
Section 8-501(a) of the UCC.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, as in effect from time to time.
"SECURITIES TRANSFER" shall mean American Securities Transfer
Company Limited Partnership, an Ohio limited partnership.
"SECURITY" shall have the meaning given such term in Section
8-102(a)(15) of the UCC, and shall in any event include all Stock and Notes (to
the extent same constitute "Securities" under Section 8-102(a)(15) of the UCC).
<PAGE> 5
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"SECURITY ENTITLEMENT" shall have the meaning given such term
in Section 8-102(a)(17) of the UCC.
"STOCK" shall mean with respect to any corporation, all of the
issued and outstanding shares of Capital Stock and other Equity Interests of
such corporation at any time owned or acquired by the Pledgor.
"TERMINATION DATE" shall have the meaning set forth in SECTION
19(a) hereof.
"UCC" shall mean the Uniform Commercial Code as in effect in
the relevant jurisdiction from time to time; PROVIDED, HOWEVER, that all
references herein to specific sections or subsections of the UCC are references
to such sections or subsections, as the case may be, of the Uniform Commercial
Code as in effect in the relevant jurisdiction on the date hereof.
"UNCERTIFICATED SECURITY" shall have the meaning given such
term in Section 8-102(a)(18) of the UCC.
3. PLEDGE OF SECURITY INTEREST, ETC.
3.1. PLEDGE. To secure the punctual payment or performance of
all and each and every part of the Obligations now or hereafter owed or to be
paid or performed by the Pledgor, the Pledgor does hereby grant, pledge and
assign to the Pledgee for the benefit of the Secured Creditors, and does hereby
create a continuing security interest and Lien (subject to Liens from time to
time permitted to exist with respect to the Collateral pursuant to the Loan
Documents from time to time in effect) in favor of the Pledgee for the benefit
of the Secured Creditors in all of the rights, title and interests of the
Pledgor in and to each of the following, whether now existing or hereafter from
time to time created, arising or acquired (collectively, the "COLLATERAL"):
(a) each of the Collateral Accounts of the Pledgor, including
any and all of the Property of whatsoever type or kind from time to
time deposited by the Pledgor in each such Collateral Account, whether
such Property is now owned or existing or is hereafter created or
acquired, including, without limitation, all Financial Assets,
Investment Property, moneys, checks, drafts, Instruments, Securities or
interests therein of any type or nature deposited or required by the
Credit Agreement or by any of the other Loan Documents to be deposited
in such Collateral Account, and all Investments and all certificates
and other Instruments (including depository receipts, if any) from time
to time representing or evidencing the same, and all dividends,
interest, distributions, cash and other Property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing;
<PAGE> 6
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(b) all Securities owned or acquired by the Pledgor from time
to time (but excluding any Stock of Subsidiaries, except for the
Chiquita South Pacific Equity, and also excluding any Notes payable by
Subsidiaries of the Pledgor, other than the Chiquita South Pacific Note
and the Friday Note);
(c) all Limited Liability Company Interests owned or acquired
by the Pledgor from time to time (including those in Friday, but
excluding those in any other limited liability company that is a
Subsidiary of the Pledgor, and also excluding those in any limited
liability company that is not a Subsidiary of the Pledgor to the extent
(and only to the extent) that such Limited Liability Company Interests
may not be pledged hereunder without violating the terms of the
operating agreement or other Governing Documents of such limited
liability company) and all of its right, title and interest in each
limited liability company to which each such interest relates, whether
now existing or hereafter created, arising or acquired, including,
without limitation:
(i) all of its capital therein and all of its
interest in all profits, losses, Limited Liability Company
Assets and other distributions to which the Pledgor shall at
any time be entitled in respect of such Limited Liability
Company Interests;
(ii) all other payments due or to become due to the
Pledgor in respect of such Limited Liability Company
Interests, whether under any limited liability company
agreement or otherwise, whether as contractual obligations,
damages or otherwise;
(iii) all of its claims, rights, powers, privileges,
authority, options, security interests, Liens and remedies, if
any, under any limited liability company agreement or
operating agreement, or at law, or otherwise in respect of
such Limited Liability Company Interests;
(iv) all present and future claims, if any, of the
Pledgor against any such limited liability company for moneys
loaned or advanced, for services rendered or otherwise;
(v) all of the Pledgor's rights under any limited
liability company agreement or operating agreement or at law
to exercise and enforce every right, power, remedy, authority,
option and privilege of the Pledgor relating to such Limited
Liability Company Interests, including any power to terminate,
cancel or modify any limited liability company agreement or
operating agreement, to execute any Instruments and to take
any and all other action on behalf of and in the name of the
Pledgor in respect of such Limited Liability Company Interests
and any such limited liability company, to make
<PAGE> 7
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determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Limited Liability Company Assets, to enforce or execute
any checks or other Instruments or orders, to file any claims
and to take any action in connection with any of the
foregoing; and
(vi) all other Property from time to time hereafter
delivered in substitution for or in addition to any of the
foregoing, all certificates and Instruments representing or
evidencing such other Property, and all cash, Securities,
interest, dividends, rights and other Property at any time and
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(d) all Partnership Interests owned or acquired by the Pledgor
from time to time (excluding those in any partnership that is a
Subsidiary of the Pledgor, and also excluding those in any partnership
that is not a Subsidiary of the Pledgor to the extent (and only to the
extent) that such Partnership Interests may not be pledged hereunder
without violating the terms of the partnership agreement or other
Governing Documents of such partnership) and all of its right, title
and interest in each partnership to which each such interest relates,
whether now existing or hereafter created, arising or acquired,
including, without limitation:
(i) all of its capital therein and all of its
interest in all profits, losses, Partnership Assets and other
distributions to which the Pledgor shall at any time be
entitled in respect of such Partnership Interests;
(ii) all other payments due or to become due to the
Pledgor in respect of such Partnership Interests, whether
under any partnership agreement or otherwise, whether as
contractual obligations, damages or otherwise;
(iii) all of its claims, rights, powers, privileges,
authority, options, security interests, Liens and remedies, if
any, under any partnership agreement or operating agreement,
or at law, or otherwise in respect of such Partnership
Interests;
(iv) all present and future claims, if any, of the
Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
(v) all of the Pledgor's rights under any partnership
agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and
privilege of the
<PAGE> 8
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Pledgor relating to such Partnership Interests, including any
power to terminate, cancel or modify any partnership agreement
or operating agreement, to execute any Instruments and to take
any and all other action on behalf of and in the name of the
Pledgor in respect of such Partnership Interests and any such
partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Assets, to enforce or execute
any checks, or other Instruments or orders, to file any claims
and to take any action in connection with any of the
foregoing; and
(vi) all other Property from time to time hereafter
delivered in substitution for or in addition to any of the
foregoing, all certificates and Instruments representing or
evidencing such other Property, and all cash, Securities,
interest, dividends, rights and other Property at any time and
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(e) all Security Entitlements owned or acquired by the Pledgor
from time to time in any and all of the foregoing;
(f) all Financial Assets and Investment Property owned or
acquired by the Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing;
PROVIDED, HOWEVER, that notwithstanding anything in this Agreement or in any of
the other Collateral Documents to the contrary, the Pledgor shall NOT be
required to pledge, and the term "COLLATERAL" shall be deemed NOT to include:
(i) any Equity Interests now owned or hereafter
acquired by the Pledgor in any Persons which are or (in
connection with such acquisition) become Subsidiaries of the
Pledgor, other than the Pledgor's Limited Liability Company
Interests in Friday and the Chiquita South Pacific Equity that
it shall own or from time to time acquire;
(ii) the Equity Interests of the Pledgor in Lindemann
and Securities Transfer;
(iii) the Pledgor's interest in any Note issued by
Lindemann or Securities Transfer or by any Subsidiary of the
Pledgor to the Pledgor, other than the Chiquita South Pacific
Note and the Friday Note, each of which is pledged hereunder;
or
<PAGE> 9
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(iv) the Pledgor's interest in any Securities that
are held in accounts which are opened and maintained by the
Pledgor as a fiduciary for its employees or otherwise in
connection with the Pledgor's employee benefits plans, and
specifically, any Securities included in the "Capital
Appreciation Plan" of the Pledgor.
The Property identified and described by the preceding PROVISO as not included
in the Collateral shall be referred to herein as the "EXCLUDED PROPERTY". The
term "COLLATERAL" shall in any event include all Equity Interests owned by the
Pledgor in any Persons (other than Lindemann or Securities Transfer) that have
ceased to be Subsidiaries of the Pledgor; such Equity Interests in any such
Person to become automatically subject to pledge hereunder and a part of the
Collateral immediately when such Person ceases to be a Subsidiary of the
Pledgor.
3.2. PROCEDURES. (a) Subject always to SECTION 3.6 hereof, to
the extent that the Pledgor at any time or from time to time owns,
acquires or obtains any right, title or interest in any Collateral,
such Collateral shall automatically (and without the taking of any
action by the Pledgor) be pledged pursuant to SECTION 3.1 of this
Agreement and, in addition thereto, the Pledgor shall (to the extent
provided below) take the following actions as set forth below (as
promptly as practicable and, in any event, within 30 days after it
obtains such Collateral) for the benefit of the Pledgee and the other
Secured Creditors:
(i) with respect to any Certificated Security (other
than a Certificated Security credited on the books of a
Clearing Corporation), the Pledgor shall physically deliver
such Certificated Security to the Pledgee, endorsed in blank;
(ii) with respect to any Uncertificated Security
(other than an Uncertificated Security credited on the books
of a Clearing Corporation), Limited Liability Company
Interests or Partnership Interests, the Pledgor shall cause
the issuer of such Uncertificated Security, Limited Liability
Company Interests or Partnership Interests to duly authorize
and execute, and deliver to the Pledgee, an agreement for the
benefit of the Pledgee and the other Secured Creditors
substantially in the form of ANNEX C hereto (appropriately
completed to the satisfaction of the Pledgee and with such
modifications, if any, as shall be satisfactory to the
Pledgee) pursuant to which such issuer shall agree to comply
with any and all instructions originated by the Pledgee
without further consent by the registered owner and not to
comply with instructions regarding such Uncertificated
Security, Partnership Interests or Limited Liability Company
Interests originated by any other Person, other than a court
of competent jurisdiction; it being understood and agreed that
the
<PAGE> 10
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Pledgee will not so originate any instructions to any such
issuer unless an Event of Default has occurred and is
continuing;
(iii) with respect to any Certificated Security,
Uncertificated Security, Partnership Interests or Limited
Liability Company Interests credited on the books of a
Clearing Corporation (including a Federal Reserve Bank,
Participants Trust Company or The Depository Trust Company),
the Pledgor shall promptly notify the Pledgee thereof and
shall promptly take all actions (A) required (1) to comply
with the applicable rules of such Clearing Corporation, and
(2) to perfect the security interest of the Pledgee under
Applicable Law (including, in any event, under Sections 9-115
(4)(a) and (b), 9-115 (1)(e) and 8-106(d) of the UCC), and (B)
as the Pledgee deems necessary or desirable to effect the
foregoing;
(iv) with respect to any Partnership Interests or
Limited Liability Company Interests (other than any
Partnership Interests or Limited Liability Interests credited
on the books of a Clearing Corporation), (A) if such
Partnership Interests or Limited Liability Company Interests
are represented by a certificate, the procedure set forth in
SECTION 3.2(a)(i), and (B) if such Partnership Interests or
Limited Liability Company Interests are not represented by a
certificate, the procedure set forth in SECTION 3.2(a)(ii);
(v) with respect to any Note, physical delivery of
such Note to the Pledgee, endorsed in blank; and
(vi) upon written request of the Pledgee while any
Event of Default shall be continuing, with respect to cash,
(A) establishment by the Pledgee of a cash account in the name
of the Pledgor over which the Pledgee shall have exclusive and
absolute control and dominion (and no withdrawals or transfers
may be made therefrom by any Person, without the prior written
consent of the Pledgee), and (B) deposit of such cash in such
cash account.
(b) In addition to the actions required to be taken pursuant
to PARAGRAPH (a) of this SECTION 3.2, the Pledgor shall take the
following additional actions with respect to the Securities and
Collateral (as defined below):
(i) with respect to all Collateral of the Pledgor
with respect to which the Pledgee may obtain "control" thereof
within the meaning of Section 8-106 of the UCC (or under any
provision of the UCC as same may be amended or supplemented
from time to time, or under the Applicable Laws of any
relevant jurisdiction), the Pledgor shall
<PAGE> 11
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take all actions as may be requested from time to time by the
Pledgee so that "control" of such Collateral is obtained and
at all times held by the Pledgee; and
(ii) the Pledgor shall from time to time cause
appropriate financing statements (on Form UCC-1 or other
appropriate form) under the Uniform Commercial Code as in
effect in the various relevant jurisdictions, on forms
covering all Collateral hereunder (with the form of such
financing statements to be satisfactory to the Pledgee), to be
filed in the relevant filing offices so that at all times the
Pledgee has a security interest and Lien in all Investment
Property and other Collateral which is perfected by the filing
of such financing statements (in each case to the maximum
extent perfection by filing may be obtained under the
Applicable Laws of the relevant jurisdictions, including,
without limitation, Section 9-115(4)(b) of the UCC).
3.3. SUBSEQUENTLY ACQUIRED COLLATERAL. Subject always to the
provisions of SECTION 3.6 hereof, if the Pledgor shall acquire (by purchase,
merger, stock dividend, capital contribution or otherwise) any additional
Collateral at any time or from time to time after the date hereof, or when the
Equity Interests in any Person that ceases to be a Subsidiary of the Pledgor
becomes part of the Collateral, such Collateral shall automatically (and without
any further action being required to be taken) be subject to the pledge and
security interests created pursuant to SECTION 3.1, and, furthermore, the
Pledgor will within 30 days thereafter take (or cause to be taken) all action
with respect to such Collateral in accordance with the procedures set forth in
SECTION 3.2, and will promptly thereafter deliver to the Pledgee (a) a
certificate executed by a principal executive officer of the Pledgor describing
such Collateral and certifying that the same has been duly pledged in favor of
the Pledgee (for the benefit of the Secured Creditors) hereunder, and (b) such
supplements to ANNEX A hereto as are necessary to cause such ANNEX A to be
complete and accurate at such time. Notwithstanding anything contained herein to
the contrary, this SECTION 3.3 shall not apply to, and no duties shall arise
hereunder with respect to any Excluded Property whensoever owned or acquired.
3.4. TRANSFER TAXES. Each pledge of Collateral under SECTION
3.1 or SECTION 3.3 shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5. CERTAIN REPRESENTATIONS AND WARRANTIES REGARDING THE
COLLATERAL. The Pledgor represents and warrants that on the date hereof (a)
ANNEX A contains a correct and complete listing of all Equity Interests in any
Person owned by the Pledgor which constitute Collateral under Section 3.1
hereof, except for Equity Interests in any Person which, in the reasonable
judgement of the Pledgor, have an aggregate value of $25,000 or less on the date
hereof; (b) ANNEX A
<PAGE> 12
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contains a correct and complete listing of all Notes payable to the Pledgor by
any Person which constitute Collateral under SECTION 3.1 hereof, except for
Notes issued by any Person which have an aggregate face value of $25,000 or less
on the date hereof; and (c) the aggregate value of the Equity Interests (as
determined by the Pledgor in its reasonable judgement) and Notes (as determined
by face value) which constitute Collateral under SECTION 3.1 hereof, but are not
listed on ANNEX A by virtue of the exclusions set forth in CLAUSES (a) and (b)
above, does not exceed $500,000 on the date hereof.
3.6. PERFECTION IN COLLATERAL PRIOR TO EVENT OF DEFAULT. (a)
It is the intention of the parties hereto that at all times the Pledgee
shall have the benefit of a perfected first-priority security interest
in each of: (i) the Limited Liability Company Interests in Friday; (ii)
the Friday Note; (iii) all of the rights, title and interests of the
Pledgor on, under or in respect of the Chiquita South Pacific Loan
Agreement; (iv) the Chiquita South Pacific Note; (v) the Chiquita South
Pacific Equity; and (vi) all payments and distributions (whether in
cash or in any other form of Property) from time to time made on, or in
respect of, the Limited Liability Company Interests in Friday, the
Friday Note, the Chiquita South Pacific Equity, the Chiquita South
Pacific Loan Agreement and the Chiquita South Pacific Note.
Accordingly, with respect to all Property constituting Collateral
described in CLAUSES (i) through (iv) hereof, the Pledgor shall comply
at all times from and after the date hereof and in all respects with
the provisions contained in SECTIONS 3.2, 3.3 and 15(E) through (H)
hereof.
(b) It is the intention of the parties hereto that at all
times, so long as any Event of Default shall be continuing, the Pledgee
shall have, if it so requests, the benefit of a first priority security
interest in all other Property from time to time constituting
Collateral. Accordingly, so long as any Event of Default shall be
continuing, the Pledgor may from time to time deliver to Pledgee
written instructions (i) identifying the specific additional Collateral
with respect to which the Pledgor shall be required to comply with
SECTIONS 3.2 and 3.3, and (ii) specifying the action which the Pledgor
shall be required to take pursuant to this SECTION 3 in relation to
such additional Collateral.
(c) With respect to all Collateral hereunder, other than that
which is specifically identified in CLAUSE (a) hereof, unless and until
such time as an Event of Default shall be continuing and the Pledgor
shall have received written instructions from the Pledgee as set forth
in CLAUSE (B) above, it is understood and agreed that the Pledgor shall
not be required to comply with any of the provisions contained in
SECTIONS 3.2 or 3.3 hereof, except to the extent that the Pledgee may
from time to time require the filing of financing statements covering
ALL COLLATERAL hereunder pursuant to SECTION 3.2(b)(ii).
<PAGE> 13
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4. APPOINTMENT OF SUB-AGENTS: ENDORSEMENTS. ETC. The Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the Pledgor, endorsed or assigned in
blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless there shall
be continuing an Event of Default, the Pledgor shall be entitled to exercise any
and all voting rights attaching to any and all Collateral owned by it, and to
give consents, waivers or ratifications in respect thereof; PROVIDED, HOWEVER,
that no vote shall be cast or any consent, waiver or ratification given or any
action taken which would violate, result in breach of any covenant contained in,
or be inconsistent with, any of the terms of this Agreement, the Credit
Agreement or any of the other Loan Documents. All such rights of a Pledgor to
vote and to give consents, waivers and ratifications with respect to all or any
part of the Collateral owned by it shall cease if an Event of Default shall be
continuing if, and to the extent that, the Pledgee shall notify the Pledgor in
writing of the Pledgee's decision to exercise such rights with respect to all or
(as the case may be) such part of such Collateral.
6. DIVIDENDS AND OTHER DISTRIBUTIONS.
(a) Unless an Event of Default shall be continuing and Pledgee
shall have otherwise requested in writing, and except as otherwise
provided by SECTION 3.6(a), PARAGRAPH (c) of this SECTION 6 or by
PARAGRAPHS (e) through (h) of SECTION 15, (i) all ordinary cash
dividends and other similar cash distributions payable in respect of
any Equity Interests constituting Collateral shall be paid to (and may
be retained by) the Pledgor; and (ii) the Proceeds of any Collateral,
other than that Collateral which is described in SECTION 3.6(a), to the
extent that such Proceeds do not exceed the sum of $500,000 per fiscal
year, shall be paid to (and may be retained by) the Pledgor.
(b) As contemplated and provided by SECTION 3.3 hereof, but
subject always to SECTIONS 3.6 and 15(e) through (h) hereof, the
Pledgee shall at all times be entitled to receive directly, and to
retain as part of the Collateral:
(i) all other or additional Stock, Notes, Limited
Liability Company Interests, Partnership Interests,
Instruments or other Securities or Property (including, but
not limited to, cash, except as otherwise provided by
PARAGRAPH (a) of this SECTION 6) paid or distributed by way of
dividend or otherwise in respect of the Collateral;
<PAGE> 14
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(ii) all other or additional Stock, Notes, Limited
Liability Company Interests, Partnership Interests,
Instruments or other Securities or Property (including, but
not limited to, cash, except as otherwise provided by
PARAGRAPH (a) of this SECTION 6) paid or distributed in
respect of the Collateral by way of stock-split, spin-off,
split-up, reclassification, combination of shares or similar
rearrangement; and
(iii) all other or additional Stock, Notes, Limited
Liability Company Interests, Partnership Interests,
Instruments or other Securities or Property (including, but
not limited to, cash, except as otherwise provided by
PARAGRAPH (a) of this SECTION 6) which may be paid in respect
of the Collateral by reason of any consolidation, merger,
exchange of stock, conveyance of assets, liquidation or
similar corporate reorganization.
(c) During the continuation of any Event of Default, if and as
so requested by the Pledgee in writing, all ordinary cash dividends and
other similar cash distributions paid or payable in respect of all or
any part of any Equity Interests constituting Collateral shall be paid
to the Pledgee for application by the Pledgee toward payment of the
Obligations pursuant to the Loan Documents. All dividends,
distributions or other payments which are received by the Pledgor
contrary to the provisions of any of SECTION 3.6, this SECTION 6,
SECTION 7 or SECTION 15(e) through (h) shall be received in trust for
the benefit of the Pledgee and the other Secured Creditors, shall be
segregated from other Property or funds of the Pledgor, and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so
received (with any necessary endorsements).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT. If any Event of
Default shall be continuing, the Pledgee shall be entitled to exercise all of
the rights, powers and remedies (whether vested in it by this Agreement or by
any other Loan Document or by law) for the protection and enforcement of its
rights in respect of the Collateral, including, without limitation, its rights
set forth in SECTION 3 hereof and all of the rights and remedies of a secured
party upon default under the UCC, and the Pledgee shall be entitled, without
limitation, to exercise any or all of the following rights, which the Pledgor
hereby irrevocably agrees to be commercially reasonable:
(a) to receive all amounts payable or distributable in respect
of the Collateral or otherwise payable under SECTION 6 to the Pledgor;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or into the name of its nominee or nominees;
<PAGE> 15
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(c) to accelerate any Note pledged hereunder, which may be
accelerated in accordance with its terms, and take any other lawful
action to collect upon any Note pledged hereunder (including, without
limitation, to make any demand for payment thereon);
(d) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though the Pledgee were the outright owner
thereof (subject to any applicable operating agreement, partnership
agreement or other Governing Document in the case of any Collateral
constituting a Partnership Interest or Limited Liability Company
Interest) (the Pledgor hereby irrevocably constituting and appointing
the Pledgee the proxy and attorney-in-fact of the Pledgor, with full
power of substitution to do so, pursuant to SECTION 12(b));
(e) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private Sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of Sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by the Pledgor),
for cash, on credit or for other Property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine; PROVIDED, HOWEVER, that at least 10 days' prior notice of
the time and place of any such Sale shall be given to the Pledgor. The
Pledgee shall not be obligated to make such Sale of Collateral
regardless of whether any such notice of Sale has theretofore been
given. Each purchaser at any such Sale shall hold the Property so sold
absolutely free from any claim or right on the part of the Pledgor, and
the Pledgor hereby irrevocably waives and releases to the fullest
extent permitted by law any right or equity of redemption with respect
to the Collateral, whether before or after Sale hereunder, all rights,
if any, to require marshalling of the Collateral or any other security
for the Obligations or otherwise, and all rights, if any, of stay
and/or appraisal which it now has or may at any time in the future have
under rule of law or statute now existing or hereafter enacted. At any
such Sale, unless prohibited by Applicable Law, the Pledgee on behalf
of all Secured Creditors (or certain of them) may bid for and purchase
(by bidding in Obligations or otherwise) all or any part of the
Collateral so sold free from any such right or equity of redemption.
Neither the Pledgee nor any other Secured Creditor shall be liable for
failure to collect or realize upon any or all of the Collateral or for
any delay in so doing nor shall any of them be under any obligation to
take any action whatsoever with regard thereto; and
<PAGE> 16
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(f) to set-off all or any part of the Collateral against all
or any part of the Obligations, and to withdraw any and all cash or
other Collateral from any and all Collateral Accounts and to apply such
cash and other Collateral to the payment of any and all Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of
the Pledgee provided for in this Agreement or in any other Loan Document, or now
or hereafter existing at law or in equity or by statute, shall be cumulative and
concurrent and shall be in addition to every other such right, power or remedy.
The exercise or beginning of the exercise by the Pledgee or any other Secured
Creditor of any one or more of the rights, powers or remedies provided for in
this Agreement or any other Loan Document or now or hereafter existing at law or
in equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by the Pledgee or any other Secured Creditor of all such other
rights, powers or remedies, and no failure or delay on the part of the Pledgee
or any other Secured Creditor to exercise any such right, power or remedy shall
operate as a waiver thereof. Unless otherwise required by the Loan Documents, no
notice to or demand on the Pledgor in any case shall entitle the Pledgor to any
other or further notice or demand in similar circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without demand or notice. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Pledgee, acting on behalf of the Secured Creditors pursuant to ARTICLE XI
of the Credit Agreement, and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security granted or to be granted hereby, it being understood and agreed
that such rights and remedies may be exercised by the Pledgee or the holders of
at least a majority of the outstanding Obligations, as the case may be, for the
benefit of the Secured Creditors upon the terms of this Agreement and the other
Credit Documents.
9. APPLICATION OF PROCEEDS. Cash proceeds received or
otherwise held by the Pledgee in respect of any Sale of, collection from, or
other realization upon, all or any part of the Collateral under this Agreement
or the Security Agreement shall be applied by the Pledgee in the following
order:
(a) FIRST, subject always to the limitations contained in the
next paragraph of this SECTION 9, to the Pledgee for the benefit of the
Secured Creditors, on account of the Obligations of the Pledgor to the
Secured Creditors (whether or not such Obligations are then due and
payable, matured or unmatured, absolute or contingent, or otherwise);
and
(b) SECOND, to the extent that proceeds remain after the
application pursuant to the preceding CLAUSE (a), to the Pledgor or to
whomsoever else may be lawfully entitled to receive such surplus.
<PAGE> 17
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NOTWITHSTANDING ANYTHING EXPRESS OR IMPLIED IN THE COLLATERAL DOCUMENTS
TO THE CONTRARY, THE MAXIMUM AGGREGATE AMOUNT OF ALL PROCEEDS OF COLLATERAL
(WHETHER RECEIVED OR REALIZED UPON PURSUANT TO THIS AGREEMENT OR THE SECURITY
AGREEMENT) WHICH MAY BE APPLIED BY THE PLEDGEE AND THE OTHER SECURED CREDITORS
TOWARDS PAYMENT OF THE OBLIGATIONS SHALL NOT EXCEED THE MAXIMUM PERMITTED
AMOUNT.
THE PLEDGOR SHALL REMAIN LIABLE FOR ANY DEFICIENCY.
10. PURCHASERS OF COLLATERAL. Upon any Sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of Sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making such Sale of the purchase money paid as consideration pursuant to
such Sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold, and such purchaser or purchasers shall not be obligated to
see to the application of all or any part of the purchase money paid over to the
Pledgee or such officer or be answerable in any way for the misapplication or
nonapplication thereof.
11. INDEMNITY. The Pledgor jointly and severally irrevocably
agrees (a) to indemnify and hold harmless the Pledgee, each other Secured
Creditor and their respective successors, assigns, employees, agents and
servants (individually, an "INDEMNITEE" and, collectively, the "INDEMNITEES") on
demand from and against any and all claims, demands, losses, judgments and
liabilities (including liabilities for penalties) of whatsoever kind or nature,
and (b) to reimburse each Indemnitee on demand for all reasonable costs and
expenses, including reasonable attorneys' fees, in each case arising out of or
resulting from this Agreement or the exercise by any Indemnitee of any right or
remedy granted to it hereunder or under any other Loan Document (but excluding
any claims, demands, losses, judgments and liabilities (including liabilities
for penalties) or expenses of whatsoever kind or nature to the extent incurred
or arising by reason of gross negligence or willful misconduct of such
Indemnitee). In no event shall any Indemnitee hereunder be liable, in the
absence of gross negligence or willful misconduct on its part, for any matter or
thing in connection with this Agreement other than to account for moneys or
other Property actually received by it in accordance with the terms hereof. If
and to the extent that the obligations of the Pledgor under this SECTION 11 are
unenforceable for any reason, the Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law. The indemnity obligations of the Pledgor
contained in this SECTION 11 shall continue in full force and effect
notwithstanding the full payment of all of the Loans and other Credit Extensions
made under the Credit Agreement, the termination of all Letters of Credit, and
the payment of all of the other Obligations, and notwithstanding the discharge
thereof.
<PAGE> 18
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12. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) The Pledgor
agrees that it will join with the Pledgee in executing and, at the
Pledgor's own cost and expense, file and refile under the Uniform
Commercial Code such financing statements, continuation statements and
other documents in such offices as the Pledgee (acting on its own or on
the instructions of the Required Lenders) may reasonably deem necessary
or appropriate and wheresoever required or permitted by law in order to
perfect and preserve the Pledgee's security interest in the Collateral
hereunder and hereby authorizes the Pledgee to file financing
statements and amendments thereto relative to all or any part of the
Collateral without the signature of the Pledgor where permitted by law,
and agrees to do such further acts and things and to execute and
deliver to the Pledgee such additional conveyances, assignments,
agreements and Instruments as the Pledgee may reasonably require or
deem advisable to carry into effect the purposes of this Agreement or
to further assure and confirm unto the Pledgee its rights, powers and
remedies hereunder or thereunder.
(b) The Pledgor hereby irrevocably appoints the Pledgee the
Pledgor's attorney-in-fact, with full authority in the place and stead
of the Pledgor and in the name of the Pledgor or otherwise, from time
to time during the continuance of an Event of Default, in the Pledgee's
discretion to take any action and to execute any Instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes of
this Agreement, including any actions permitted under SECTION 7(d)
hereof.
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee shall hold,
in accordance with this Agreement, all items of the Collateral at any time
received by the Pledgee under this Agreement. It is expressly understood and
agreed that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
ARTICLE XI of the Credit Agreement.
14. TRANSFER BY THE PLEDGOR. The Pledgor will not sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber all or any part of the Collateral or any interest therein
(except, in each case, in accordance with or as otherwise permitted by the terms
of this Agreement and the other Loan Documents).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR.
(a) The Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of,
and has good and marketable title to, all of the Limited
Liability Company
<PAGE> 19
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Interests in Friday, the Friday Note, and all other Collateral
consisting of one or more Securities and it has sufficient
interest in all Collateral in which a security interest is
purported to be created hereunder for such security interest
to attach (subject, in each case, to no pledge, Lien,
mortgage, hypothecation, security interest, charge, option,
Adverse Claim or other encumbrance whatsoever, EXCEPT the
Liens and security interests created by this Agreement or
permitted by the terms of the Credit Agreement and EXCEPT for
restrictions and limitations (if any) imposed by Applicable
Law, applicable Governing Documents or any applicable
shareholder agreements);
(ii) it has full power, authority and legal right to
pledge all the Collateral pledged or to be pledged by it
pursuant to this Agreement;
(iii) this Agreement has been duly authorized,
executed and delivered by the Pledgor and constitutes a legal,
valid and binding obligation of the Pledgor enforceable
against the Pledgor in accordance with its terms, except to
the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights
and by equitable principles (regardless of whether enforcement
is sought in equity or at law) and principles of good faith
and fair dealing;
(iv) except to the extent already obtained or made,
no consent of any other party (including, without limitation,
any stockholder, member, partner or creditor of the Pledgor or
of any of its Subsidiaries), and no consent, license, permit,
approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any
Governmental Authority is required to be obtained by the
Pledgor in connection with (A) the execution, delivery or
performance of this Agreement, (B) the validity or
enforceability of this Agreement (except as otherwise set
forth in CLAUSE (iii) above), (C) the perfection or
enforceability of the Pledgee's security interest in the
Collateral, (D) except for compliance with or as may be
required by applicable securities laws, the exercise by the
Pledgee of any of its rights or remedies provided herein, or
(E) except for compliance with or as may required by any
applicable partnership agreement, limited liability company
agreement or other Governing Document relating to any
partnership or limited liability company that is not a
Subsidiary of the Pledgor, the exercise by the Pledgee of any
of its rights or remedies provided herein with respect to the
Partnership Interests or Limited Liability Company Interests
relating to such partnership or limited liability company;
<PAGE> 20
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(v) the execution, delivery and performance of this
Agreement will not violate any provision of any Applicable Law
or of any order, judgment, writ, award or decree of any court,
arbitrator or other Governmental Authority, domestic or
foreign, applicable to the Pledgor, or of the Governing
Documents of the Pledgor or of any Securities issued by the
Pledgor or by any of its Subsidiaries, or of any mortgage,
deed of trust, indenture, lease, loan agreement, credit
agreement or other contract, agreement or Instrument or
undertaking to which the Pledgor or any of its Subsidiaries is
a party or which purports to be binding upon the Pledgor or
any of its Subsidiaries or upon any of their respective
Property and will not result in the creation or imposition of
(or the obligation to create or impose) any Lien on any of the
Property of the Pledgor or of any of its Subsidiaries, EXCEPT
as contemplated by this Agreement (other than the Liens
created by the Collateral Documents);
(vi) (A) the Limited Liability Company Interests in
Friday have been duly and validly issued, are fully paid and
nonassessable and are subject to no options to purchase or
other similar rights; PROVIDED, HOWEVER, that such Limited
Liability Company Interests in Friday may require further
payments and/or assessments in respect thereof in accordance
with Applicable Law; (B) if the Collateral shall at any time
consist of Chiquita South Pacific Equity, such Chiquita South
Pacific Equity shall be duly and validly issued, fully paid
and nonassessable and shall be subject to no options to
purchase or other similar rights; (C) Friday is the legal and
beneficial and record owner of, and has good and marketable
title to, all of the Limited Liability Company Interests in
Chiquita Processed Foods; and (D) the Limited Liability
Company Interests in Chiquita Processed Foods have been duly
and validly issued, are fully paid and nonassessable and are
subject to no options to purchase or other similar rights;
PROVIDED, HOWEVER, that such Limited Liability Company
Interest in Chiquita Processed Foods may require further
payments and/or assessments in respect thereof in accordance
with Applicable Law.
(vii) (A) the Chiquita South Pacific Loan Agreement
constitutes the legal, valid and binding obligation of
Chiquita South Pacific, enforceable in accordance with its
terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at
law) and principles of good faith and fair dealing; and (B)
the Friday Note constitutes the legal, valid and binding
obligation of Friday, enforceable in accordance with its
terms, except to the extent that the
<PAGE> 21
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enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is
sought in equity or at law) and principles of good faith and
fair dealing;
(viii) the pledge, collateral assignment and delivery
to the Pledgee of the Collateral consisting of Certificated
Securities (together with Instruments of transfer therefor)
pursuant to this Agreement creates a valid and perfected
first-priority security interest in such Securities and the
Proceeds thereof, subject to no prior Liens or encumbrances or
to any agreement purporting to grant to any third party any
Lien or encumbrance on the Property of the Pledgor which would
include such Securities, and the Pledgee is entitled to all of
the rights, priorities and benefits afforded by the UCC or
other Applicable Law as enacted in any applicable jurisdiction
to perfected security interests in respect of such Collateral,
subject always to SECTION 3.6 hereof; and
(ix) subject always to SECTION 3.6, "control" (as
defined in Section 8-106 of the UCC) has been obtained by the
Pledgee over all Collateral consisting of Securities
(including Notes which are Securities) with respect to which
such "control" may be obtained pursuant to Section 8-106 of
the UCC; PROVIDED, HOWEVER, that, in the case of the Pledgee
obtaining "control" over Collateral consisting of a Security
Entitlement, the Pledgor shall have taken all steps in its
control so that the Pledgee obtains "control" over such
Security Entitlement.
(b) The Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities
and the Proceeds thereof against the claims and demands of all Persons
whomsoever; and the Pledgor covenants and agrees that it will have like
title to and right to pledge any other Property at any time hereafter
pledged to the Pledgee as Collateral hereunder and will likewise defend
the right thereto and security interest therein of the Pledgee and the
other Secured Creditors.
(c) The Pledgor shall not cause or otherwise agree to, and to
the extent it can control the same, shall not permit: (i) the amendment
or modification of the operating agreements, certificates of formation
or any other Governing Documents pertaining to, or the issuance of new
membership interests in, Friday or Chiquita Processed Foods, without
the prior written consent of the Pledgee; or (ii) the cancellation,
termination or recission of, or the forgiveness, release or waiver of
any of the Indebtedness or any other obligations under any of the
operating agreements or any
<PAGE> 22
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Governing Documents of, or otherwise pertaining to, Friday or Chiquita
Processed Foods. The Pledgor shall not cease to own a 100% direct
membership interest in Friday, and shall not cause or permit Friday to
cease to own a 100% direct membership interest in Chiquita Processed
Foods.
(d) The Pledgor covenants and agrees that it shall make no
Investments in Equity Interests or Notes, which will become part of the
Collateral hereunder, if, after giving effect to such Investments, the
aggregate fair market value of all of the Equity Interests, Notes and
other Investments constituting Collateral at any given time hereunder
(but excluding for purposes of this calculation the fair market value
of the Property described in Section 3.6(a) hereof) shall exceed
$10,000,000. For purposes of the preceding sentence, "fair market
value" shall be determined on the basis of (i) the value of such
Investments on the date of this Agreement, if owned by Pledgor on the
date of this Agreement or (ii) the original cost of such Investments,
if acquired after the date of this Agreement (without giving effect to
any increase or decrease in value of such Investments after the date of
this Agreement or the date of acquisition, as the case may be).
(e) The Pledgor covenants and agrees that it shall not, and to
the extent it can control the same, it shall not cause or permit
Chiquita South Pacific to, do any of the following:
(i) take any action or omit to take any action that
will result in the cancellation, termination, compromise,
rescission, forgiveness, release or waiver of any of the
obligations of Chiquita South Pacific under the Chiquita South
Pacific Loan Agreement or the Chiquita South Pacific Note,
other than as a result and to the extent of any cash payments
made by Chiquita South Pacific to or for the account of the
Pledgor in respect of any of its obligations
under the Chiquita South Pacific Loan Agreement or the
Chiquita South Pacific Note, which payments shall be made
directly by Chiquita South Pacific to the Pledgee for the
benefit of the Secured Creditors, pursuant to SECTION 15(f)
hereof and SECTION 3.3.3(a) of the Credit Agreement; or
(ii) exercise any rights of setoff or counterclaim
with respect to any obligations owed by the Pledgor to
Chiquita South Pacific against any obligations owed by
Chiquita South Pacific to the Pledgor under the Chiquita South
Pacific Loan Agreement or the Chiquita South Pacific Note; or
(iii) amend any of the terms of payment or otherwise
modify any of the other provisions of the Chiquita South
Pacific Loan Agreement or the Chiquita South Pacific Note (or
the terms of any Chiquita South
<PAGE> 23
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Pacific Equity issued upon conversion of or in exchange
therefor) in a manner which will reduce the value of, or
otherwise impair any of the material rights, remedies or other
benefits available to the Pledgor with respect to, any such
debt or equity, or otherwise adversely affect in any material
respect the validity or enforceability of the Chiquita South
Pacific Loan Agreement, the Chiquita South Pacific Note or the
Chiquita South Pacific Equity;
PROVIDED; HOWEVER that nothing in the foregoing CLAUSES (i) through
(iii) shall be construed to limit the rights of the Pledgor and
Chiquita South Pacific at any time to convert the debt outstanding
under the Chiquita South Pacific Loan Agreement (or the Chiquita South
Pacific Note) into Chiquita South Pacific Equity, to convert such debt
into convertible debt or to extend the maturity of such debt.
(f) The Pledgor shall cause Chiquita South Pacific to make and
remit directly to the Pledgee, for the benefit of the Secured
Creditors, all cash payments and other cash distributions payable by
Chiquita South Pacific for or on account of the Chiquita South Pacific
Loan Agreement, the Chiquita South Pacific Note or any Chiquita South
Pacific Equity. So long as no Event of Default is continuing, the
Pledgee shall apply any and all cash payments or distributions received
under this SECTION 15(f) in accordance with SECTION 3.3.3(a) of the
Credit Agreement, and any amounts so received by the Pledgee in excess
of the aggregate principal amount of Revolving Loans then outstanding
shall be remitted by the Pledgee to the Pledgor. If any Event of
Default shall be continuing, the Pledgee shall apply any and all cash
payments or distributions received under this SECTION 15(f) to pay
Obligations under the Credit Agreement, and any amounts so received by
the Pledgee in excess of the aggregate principal amount of Revolving
Loans shall be held by the Pledgee as Collateral in which the Pledgee
will have a perfected first-priority security interest pursuant to
SECTIONS 3.2, 3.3 and 3.6(a), and which shall be subject to the other
terms and conditions of this Agreement. The Pledgor shall cause
Chiquita South Pacific to remit directly to the Pledgee all non-cash
payments or distributions payable by Chiquita South Pacific for or on
account of the Chiquita South Pacific Loan Agreement, the Chiquita
South Pacific Note or any Chiquita South Pacific Equity, which non-cash
payments or distributions shall be held by the Pledgee as Collateral in
which the Pledgee will have a perfected first-priority security
interest pursuant to SECTIONS 3.2, 3.3 and 3.6(a), and which shall be
subject to the other terms and conditions of this Agreement. The
Pledgor shall, and shall cause Chiquita South Pacific to, enter into a
consent to assignment in substantially the form of ANNEX D hereto (the
"CONSENT TO ASSIGNMENT"), and shall deliver the same to the Pledgee
within twenty (20) Business Days after the date hereof.
<PAGE> 24
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(g) The Pledgor covenants and agrees that it shall not, and to
the extent it can control the same, it shall not cause or permit Friday
to, do any of the following:
(i) take any action or omit to take any action that
will result in the cancellation, termination, compromise,
rescission, forgiveness, release or waiver of any of the
obligations of Friday under the Friday Note, other than as a
result and to the extent of any cash payments made by Friday
to or for the account of the Pledgor in respect of any of its
obligations under the Friday Note, which payments shall be
made directly by Friday to the Pledgee, for the benefit of the
Secured Creditors, pursuant to SECTION 15(h) hereof; or
(ii) exercise any rights of setoff or counterclaim
with respect to any obligations owed by the Pledgor to Friday
against any obligations owed by Friday to the Pledgor under
the Friday Note; or
(iii) amend any of the terms of payment or otherwise
modify any of the other provisions of the Friday Note, in a
manner which will reduce the value of or otherwise impair any
of the material rights, remedies or other benefits available
to the Pledgor with respect to the Friday Note, or otherwise
adversely affect in any material respect the validity or
enforceability of the Friday Note.
(h) The Pledgor shall cause Friday to make and remit directly
to the Pledgee, for the benefit of the Secured Creditors, all cash
payments and other cash distributions payable by Friday for or on
account of the Friday Note. So long as no Event of Default is
continuing, the Pledgee shall apply any and all cash payments or
distributions received under this SECTION 15(h) to pay down Revolving
Loans then outstanding, and any amounts so received by the Pledgee in
excess of the aggregate principal amount of Revolving Loans then
outstanding shall be remitted by the Pledgee to the Pledgor. If any
Event of Default shall be continuing, the Pledgee shall apply any and
all cash payments or distributions received under this SECTION 15(h),
to pay Obligations under the Credit Agreement, and any amounts so
received by the Pledgee in excess of the aggregate principal amount of
Revolving Loans shall be held by the Pledgee as Collateral in which the
Pledgee will have a perfected first-priority security interest pursuant
to SECTIONS 3.2, 3.3 and 3.6(a), and which shall be subject to the
other terms and conditions of this Agreement. The Pledgor shall cause
Friday to remit directly to the Pledgee all non-cash payments or
distributions payable by Friday for or on account of the Friday Note,
which non-cash payments or distributions shall be held by the Pledgee
as Collateral in which the Pledgee will have a perfected security
interest pursuant to SECTIONS 3.2, 3.3 and 3.6(a), and which shall be
subject to the other terms and conditions of this Agreement. The
Pledgor shall, and
<PAGE> 25
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shall cause Friday to, enter into a Consent to Assignment in
substantially the form of ANNEX D hereto, and shall deliver the same to
the Pledgee within ten (10) Business Days after the date hereof. As
shall be provided by such Consent to Assignment, so long as any Event
of Default shall be continuing, the Pledgee shall be entitled to
accelerate the payment of all Indebtedness of Friday under the Friday
Note.
16. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive
office of the Pledgor is located at the address specified in ANNEX B hereto. The
Pledgor agrees that it will not move its chief executive office except to such
new location as the Pledgor may establish in accordance with the provisions of
this SECTION 16. The originals of all documents in the possession of the Pledgor
evidencing all Collateral, including, but not limited to, all Limited Liability
Company Interests and Partnership Interests, and the only original books of
account and records of the Pledgor relating thereto are, and will continue to
be, kept at its chief executive office at the location specified in ANNEX B
hereto, or at such new locations as the Pledgor may establish in accordance with
the provisions of this SECTION 16. All Limited Liability Company Interests and
Partnership Interests are, and will continue to be, maintained at, and
controlled and directed (including, without limitation, for general accounting
purposes) from, such chief executive office location specified in ANNEX B
hereto, or such new locations as the Pledgor may establish in accordance with
the provisions of this SECTION 16. The Pledgor shall not establish a new
location for such offices until (a) it shall have given to the Pledgee not less
than 30 days' prior written notice of its intention so to do, clearly describing
such new location and providing such other information in connection therewith
as the Pledgee may reasonably request, and (b) with respect to such new
location, it shall have taken all action, satisfactory to the Pledgee, to
maintain the security interest of the Pledgee in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect.
Promptly after establishing a new location for such offices in accordance with
the immediately preceding sentence, the Pledgor shall deliver to the Pledgee a
supplement to ANNEX B hereto so as to cause such ANNEX B hereto to be complete
and accurate.
17. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. (a) The Obligations
of the Pledgor under this Agreement shall be absolute, unconditional
and irrevocable and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated
or otherwise impaired or affected by, any circumstance or occurrence
whatsoever (other than termination of this Agreement pursuant to
SECTION 19 hereof), including, without limitation:
(i) the dissolution, termination of existence,
winding up, bankruptcy, liquidation, insolvency, appointment
of a receiver for all or any part of the Property of,
assignment for the benefit of creditors by,
<PAGE> 26
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or the commencement of any Bankruptcy or Insolvency Proceeding
by or against, the Pledgor or any of the Subsidiaries of the
Pledgor;
(ii) the absorption, merger or consolidation of, or
the effectuation of any other change whatsoever in the name,
ownership, membership, constitution or place of organization
or formation of, the Pledgor or any of its Subsidiaries;
(iii) any extension or postponement of the time for
the payment of any of the Obligations, the acceptance of any
partial payment thereon, any and all other indulgences
whatsoever by any of the Secured Creditors in respect of any
of the Obligations, the taking, addition, substitution or
release, in whole or in part, at any time or times, of any
collateral or Liens securing any of the Obligations, or the
addition, substitution or release, in whole or in part, of any
Person or Persons primarily or secondarily liable in respect
of any of the Obligations of the Pledgor;
(iv) any action or delay in acting or failure to act
on the part of any Secured Creditor under any Loan Documents
or in respect of any Obligations of the Pledgor or any
collateral or Liens securing any Obligations of the Pledgor or
otherwise, including (A) any action by any Secured Creditor to
enforce any of its rights, remedies or claims in respect of
any collateral or Liens securing any Obligations of the
Pledgor, (B) any failure by any Secured Creditor strictly or
diligently to assert any rights or to pursue any remedies or
claims against the Pledgor or any other Person or Persons
under any of the Loan Documents or provided by statute
or at law or in equity, (C) any failure by the Pledgee or by
any other Secured Creditor to perfect or to preserve the
perfection or priority of any of its Liens securing any of the
Obligations of the Pledgor, or (D) any failure or refusal by
the Pledgee or by any other Secured Creditor to foreclose or
to realize upon any collateral or Liens securing any of the
Obligations of the Pledgor, or to take any action to enforce
any of its rights, remedies or claims under any Loan
Documents;
(v) any modification or amendment of, or any
supplement or addition to, any of the Loan Documents;
(vi) any waiver, consent or other action or
acquiescence by the Pledgee or by any other Secured Creditor
in respect of any default by the Pledgor in its performance or
observance of or compliance with any term, covenant or
condition contained in any of the Loan Documents;
<PAGE> 27
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(vii) the existence or creation at any time or times
on or after the date of this Agreement of any claim, defense,
right of set-off or counterclaim of any nature whatsoever of
the Pledgor against any of its Subsidiaries or against any of
the Secured Creditors;
(viii) any incapacity or lack of authority of the
Pledgor;
(ix) any of the Obligations of the Pledgor or any of
the Loan Documents or any provision of any thereof or any of
the Liens securing any of the Obligations of the Pledgor shall
at any time and for any reason whatsoever cease to be in full
force or effect with respect to the Pledgor or shall be
declared null and void or illegal, invalid, unenforceable or
inadmissible in evidence in relation to the Pledgor, or any of
the Obligations of the Pledgor or any Liens securing any of
the Obligations of the Pledgor shall be subject to avoidance,
or shall be avoided, as a fraudulent transfer or fraudulent
conveyance, whether prior to or after the commencement of any
Insolvency Proceedings; or
(x) the existence of any other condition or
circumstance or the occurrence of any other event or condition
that might otherwise constitute a legal or equitable discharge
of or a suretyship defense to performance by the Pledgor of
any of its Obligations to any of the Secured Creditors.
(b) THE PLEDGOR HEREBY ABSOLUTELY, UNCONDITIONALLY AND
IRREVOCABLY WAIVES ALL SURETYSHIP AND OTHER SIMILAR DEFENSES TO
PERFORMANCE BY THE PLEDGOR OF ANY OF ITS OBLIGATIONS TO THE PLEDGEE OR
TO ANY OF THE OTHER SECURED CREDITORS.
(c) This Agreement shall be effective as to and shall be
enforceable by the Pledgee against the Pledgor from and after the
execution and delivery by the Pledgor of a counterpart of this
Agreement.
(d) The Pledgor hereby absolutely, unconditionally and
irrevocably assents to and waives notice of, and waives any defenses
that it may otherwise have as a result of, any and all circumstances,
occurrences and other matters specified in CLAUSES (i) through (x) of
PARAGRAPH (a) of this SECTION 17.
18. SALE OF COLLATERAL WITHOUT REGISTRATION. If at any time
when the Pledgee shall determine to exercise its right to sell all or any part
of the Collateral consisting of Securities, Limited Liability Company Interests
or Partnership Interests pursuant to SECTION 7, and such Collateral or the part
thereof to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the Pledgee may,
in its sole and absolute discretion, sell such Collateral or part thereof by
private Sale in such
<PAGE> 28
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manner and under such circumstances as the Pledgee may deem necessary or
advisable in order that such Sale may legally be effected without such
registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion: (a) may proceed to make
such private Sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act; (b) may approach and negotiate with a single possible purchaser
to effect such Sale; and (c) may restrict such Sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or Sale of such Collateral
or part thereof. In the event of any such Sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, may in good faith
deem reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the Sale were deferred until the
registration as aforesaid.
19. TERMINATION; RELEASE. (a) On the Termination Date (as
defined below), this Agreement shall terminate (provided that all
indemnities set forth herein including, without limitation, in SECTION
11 hereof shall survive any such termination), and the Pledgee, at the
request and expense of the Pledgor, will execute and deliver to the
Pledgor a proper Instrument or Instruments acknowledging the
satisfaction and termination of this Agreement (including, without
limitation, UCC termination statements and Instruments of satisfaction,
discharge and/or reconveyance), and will duly assign, transfer and
deliver to the Pledgor (without recourse, and without any
representation or warranty) such of the Collateral as may be in the
possession of the Pledgee and as has not theretofore been sold or
otherwise applied or released pursuant to this Agreement, together with
any moneys at the time held by the Pledgee or any of its sub-agents
hereunder, and, with respect to any Collateral consisting of an
Uncertificated Security (other than an Uncertificated Security credited
on the books of a Clearing Corporation), a Partnership Interest or a
Limited Liability Company Interest, a termination of the agreement
relating thereto executed and delivered by the issuer of such
Uncertificated Security pursuant to SECTION 3.2(a)(ii) or by the
respective partnership or limited liability company pursuant to SECTION
3.2(a)(iv). As used in this Agreement, the term "TERMINATION DATE"
shall mean the date upon which all of the Commitments have been
terminated and no Letters of Credit are outstanding and all Revolving
Loans have been paid in full and all other Obligations have been paid
in full (other than any indemnity, not then due and payable, which by
its terms shall survive such termination and payment).
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (i) at any time prior to the time at which all of
the Obligations have been paid in full and all of the Commitments and
Letters of Credit
<PAGE> 29
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under the Credit Agreement have been terminated, in connection with a
Sale or disposition permitted by the Credit Agreement or any of the
other Loan Documents or is otherwise released at the direction of the
Required Lenders, or (ii) at any time thereafter, to the extent
permitted by the other Loan Documents, and in the case of CLAUSES (i)
and (ii), the proceeds of such Sale or disposition (or from such
release) are applied in accordance with the terms of the Credit
Agreement or such other Loan Document, as the case may be, to the
extent required to be so applied, the Pledgee, at the request and
expense of the Pledgor, will duly assign, transfer and deliver to the
Pledgor (without recourse, and without any representation or warranty)
such of the Collateral as is then being (or has been) so sold or
released and as may be in possession of the Pledgee and has not
theretofore been released pursuant to this Agreement.
(c) At any time that the Pledgor desires that Collateral be
released as provided in the foregoing SECTION 19(a) or (b), it shall
deliver to the Pledgee a certificate signed by a principal executive
officer of the Pledgor stating that the release of the respective
Collateral is permitted pursuant to SECTION 19(a) or (b). If reasonably
requested by the Pledgee (although the Pledgee shall have no obligation
to make any such request), the relevant Pledgor shall furnish
appropriate legal opinions (from counsel reasonably acceptable to the
Pledgee) to the effect set forth in the immediately preceding sentence.
The Pledgee shall have no liability whatsoever to any Secured Creditor
as the result of any release of Collateral by it as permitted by this
SECTION 19.
20. NOTICES, ETC. All notices and other communications
hereunder shall be in writing and shall be delivered or mailed by first-class
mail, postage prepaid, addressed:
(a) if to the Pledgor, at:
Chiquita Brands International, Inc.
250 E. Fifth Street
Cincinnati, OH 45202
Attention: Vice-President and Treasurer
Tel: (513) 784-8542
Fax: (513) 564-2547
<PAGE> 30
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(b) if to the Pledgee, at:
BankBoston, N.A.
One Federal Street, Mail Stop: MA OF D03D
Boston, Massachusetts 02110
Attention: Robert F. Milordi, Managing Director
Tel: (617) 434-8092
Fax: (617) 346-4345
(c) if to any Lender (other than the Pledgee), at such address
as such Lender shall have specified in the Credit Agreement;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
21. THE PLEDGEE. The Pledgee will hold, directly or indirectly
in accordance with this Agreement, all items of the Collateral at any time
received by it under this Agreement. It is expressly understood and agreed that
the obligations of the Pledgee with respect to the Collateral, interests therein
and the disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in the UCC and in this Agreement.
22. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, discharged or terminated in any manner
whatsoever unless such change, waiver, discharge or termination is in writing
duly signed by the Pledgor and by the Pledgee.
23. MISCELLANEOUS. This Agreement shall create a continuing
security interest in the Collateral and shall (a) remain in full force and
effect, subject to release and/or termination as set forth in SECTION 19, (b) be
binding upon the Pledgor, its successors and assigns; PROVIDED, HOWEVER, that
Pledgor shall not assign any of its rights or obligations hereunder without the
prior written consent of the Pledgee, and (c) inure, together with the rights
and remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Parties and their respective successors, transferees and assigns. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
EXCEPT FOR SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK. The headings of the several sections and subsections in this Agreement are
for purposes of reference only and shall not limit or define the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute but one
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instrument. In the event that any provision of this Agreement shall prove to be
invalid or unenforceable, such provision shall be deemed to be severable from
the other provisions of this Agreement which shall remain binding on all of the
parties hereto.
24. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
25. FULL RECOURSE. This Agreement is made with full recourse
to the Pledgor and pursuant to and upon all of the representations, warranties,
covenants and agreements on the part of the Pledgor contained herein and in the
other Loan Documents and otherwise in writing in connection herewith or
therewith.
26. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.
(a) Nothing herein shall be construed to make the Pledgee or any other
Secured Creditor liable as a member of any limited liability company or
partnership, and neither the Pledgee nor any other Secured Creditor by
virtue of this Agreement or otherwise (except as referred to in the
following sentence) shall have any of the duties, obligations or
liabilities of a member of any limited liability company or
partnership. The parties hereto expressly agree that, unless the
Pledgee shall become the absolute owner of Collateral consisting of a
Limited Liability Company Interest or Partnership Interest pursuant
hereto, this Agreement shall not be construed as creating a partnership
or joint venture among the Pledgee, any other Secured Creditor and/or
the Pledgor.
(b) Except as provided in the last sentence of PARAGRAPH (a)
of this SECTION 26, the Pledgee, by becoming a party to this Agreement,
did not intend to become a member of any limited liability company or
partnership or otherwise be deemed to be a co-venturer with respect to
the Pledgor or any limited liability company or partnership either
before or after an Event of Default shall have occurred. The Pledgee
shall have only those powers set forth herein, and the Secured
Creditors shall assume none of the duties, obligations or liabilities
of a member of any limited liability company or partnership or the
Pledgor, EXCEPT as provided in the last sentence of PARAGRAPH (a) of
this SECTION 26.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of the Pledgor as a
result of any of the pledges hereby effected.
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(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at
any time or in any event obligate the Pledgee or any other Secured
Creditor to appear in or defend any action or proceeding relating to
the Collateral, or to take any action hereunder or thereunder, or to
expend any money or incur any expenses or perform or discharge any
obligation, duty or liability under the Collateral.
27. ACTIONS REQUIRING APPROVAL UNDER THE LIMITED LIABILITY
COMPANY AGREEMENT.
(a) If an Event of Default shall be continuing, the Pledgor
shall take any action which the Pledgee may request in the exercise of
its rights and remedies under this Agreement in order to transfer or
assign the Collateral to the Pledgee or to such one or more third
parties as the Pledgee may designate, or to a combination of the
foregoing. To enforce the provisions of this SECTION 27, the Pledgee is
empowered to seek from any Governmental Authority, to the extent
required, consent to or approval of any involuntary transfer of control
of any entity whose Collateral is subject to this Agreement for the
purpose of seeking a BONA FIDE purchaser to whom control will
ultimately be transferred. The Pledgor agrees to cooperate with any
such purchaser and with the Pledgee in the preparation, execution and
filing of any forms and providing any information that may be necessary
or helpful in obtaining the consent to the assignment to such purchaser
of the Collateral. The Pledgor hereby agrees to consent to any such
involuntary transfer of control upon the request of the Pledgee during
the continuation of an Event of Default, and, without limiting any
rights of the Pledgee under this Agreement, to authorize the Pledgee to
nominate a trustee or receiver to assume control of the Collateral,
subject only to required judicial, or other consent required by
Governmental Authorities, in order to effectuate the transactions
contemplated in this SECTION 27. Such trustee or receiver shall have
all the rights and powers as provided to it by law or court order, or
to the Pledgee under this Agreement. The Pledgor shall cooperate fully
in obtaining the approval or consent of, and in making the required
filings with each Governmental Authority required to effectuate the
foregoing.
(b) The Pledgor shall use its best efforts to assist in
obtaining the consent or approval of any Governmental Authority or to
make any other filing, if required, for any action or transactions
contemplated by this Agreement. Anything herein to the contrary
notwithstanding, Pledgor shall not be obligated to sign any such
document which the Pledgor has reasonable cause to believe contains any
inaccuracy or to make any statements concerning the qualifications of
any transferee or assignee.
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(c) Without limiting the obligations of the Pledgor hereunder
in any respect, the Pledgor further agrees that if the Pledgor, upon or
after the occurrence of an Event of Default, should fail or refuse for
any reason whatsoever, without limitation, including any refusal
pursuant to SECTION 27(b) to execute any application necessary or
appropriate to obtain any governmental consent necessary or appropriate
for the exercise of any right of the Pledgee hereunder, the Pledgor
agrees that such application may be executed on the Pledgor's behalf by
the clerk of any competent jurisdiction without notice to the Pledgor
pursuant to court order.
28. SPECIFIC PERFORMANCE. For the avoidance of doubt, the
parties hereto hereby acknowledge that the Pledgor's covenants in SECTION 15
hereof are of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Pledgee shall be
entitled to a decree requiring specific performance by the Pledgor of such
covenants.
29. EFFECTIVENESS. This Agreement shall become effective on
and as of the date hereof when the Pledgee and the Pledgor shall have signed
counterparts hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the Pledgee.
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IN WITNESS WHEREOF, the parties hereto have caused this PLEDGE
AGREEMENT to be duly executed and delivered by their respective officers
thereunto duly authorized on and as of the date first above written.
THE PLEDGOR:
[SEAL] CHIQUITA BRANDS
INTERNATIONAL, INC.
Attest: /s/ By: /s/
-------------------------------------- -----------------------------
Barbara Wagner Name: Gerald R. Kondritzer
Assistant Secretary Title: Vice President and
Treasurer
THE COLLATERAL AGENT:
BANKBOSTON, N.A.,
as Collateral Agent
for the Lenders
By: /s/
-----------------------------
Name: Robert F. Milordi
Title: Managing Director
