-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WwGKfWKSiRlSP0WalagMjLJlNoRmNUfgogGwd1W9SnggXNLNVtd7srcOQCkO8OtQ cL84CvlWQb/Kl70UDOEzcA== 0000950152-00-000691.txt : 20000209 0000950152-00-000691.hdr.sgml : 20000209 ACCESSION NUMBER: 0000950152-00-000691 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20000207 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000208 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHIQUITA BRANDS INTERNATIONAL INC CENTRAL INDEX KEY: 0000101063 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 041923360 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-01550 FILM NUMBER: 527674 BUSINESS ADDRESS: STREET 1: 250 E FIFTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5137848011 FORMER COMPANY: FORMER CONFORMED NAME: UNITED BRANDS CO DATE OF NAME CHANGE: 19900403 8-K 1 CHIQUITA BRANDS INTERNATIONAL, INC. FORM 8-K 1 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 2 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. 3 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 ------------------------------------ William A. Tsacalis Vice President and Controller EX-10.1 2 EXHIBIT 10.1 CREDIT AGREEMENT 1 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 -------- 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 2 -2- 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. 3 -3- "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 4 -4- "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: 5 -5- "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. 6 -6- (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: 7 -7- "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: -------------------------------------------------------------------------- Reference Period Fiscal Quarters in Minimum Ratio Reference Period -------------------------------------------------------------------------- 01/01/00-03/31/00 1 2.35:1.00 -------------------------------------------------------------------------- 01/01/00-06/30/00 2 2.35:1.00 -------------------------------------------------------------------------- 01/01/00-09/30/00 3 1.85:1.00 -------------------------------------------------------------------------- 01/01/00-12/31/00 4 1.75:1.00 -------------------------------------------------------------------------- 8 -8- (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 9 -9- 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 10 -10- 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 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: 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. 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 14 -14- 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 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.] 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 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 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: EX-10.2 3 EXHIBIT 10.2 SECURITY AGREEMENT 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: 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. 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. 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"): 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 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". 7 -7- 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: 8 -8- (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 9 -9- 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 10 -10- 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. 11 -11- 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 12 -12- (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 13 -13- 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 14 -14- 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 15 -15- 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. 16 -16- 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. 17 -17- (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 18 -18- 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; 19 -19- (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 20 -20- 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, 21 -21- 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. 22 -22- 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 23 -23- 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.] 24 -24- 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 ------------------------------------ EX-10.3 4 EXHIBIT 10.3 PLEDGE AGREEMENT 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 2 -2- 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. 3 -3- "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. 4 -4- "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). 5 -5- "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; 6 -6- (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 7 -7- 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 8 -8- 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 9 -9- (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 10 -10- 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 11 -11- 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 12 -12- 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). 13 -13- 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; 14 -14- (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; 15 -15- (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 16 -16- (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. 17 -17- 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. 18 -18- 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 19 -19- 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; 20 -20- (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 21 -21- 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 22 -22- 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 23 -23- 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. 24 -24- (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 25 -25- 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, 26 -26- 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; 27 -27- (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 28 -28- 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 29 -29- 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 30 -30- (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 31 -31- 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. 32 -32- (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. 33 -33- (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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 34 -34- 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 -----END PRIVACY-ENHANCED MESSAGE-----