exv10w11



 






Exhibit 10.11




SEVENTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT




     SEVENTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this “Amendment”), dated as of
December 20, 2004, among DHM HOLDING COMPANY, INC., a Delaware corporation (“Holdings”),
DOLE HOLDING COMPANY, LLC, a Delaware limited liability company (“Intermediate Holdco”),
DOLE FOOD COMPANY, INC., a Delaware corporation (the “U.S. Borrower”), SOLVEST LTD., a
corporation organized under the laws of Bermuda (the “Bermuda Borrower” and, together with
the U.S. Borrower, the “Borrowers” and, the Borrowers, together with Holdings and
Intermediate Holdco, the “Credit Agreement Parties”), the Lenders from time to time party
to the Credit Agreement referred to below, and DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative
Agent (in such capacity, the “Administrative Agent”). All capitalized terms used herein
and not otherwise defined shall have the respective meanings provided such terms in the Credit
Agreement referred to below.



W I T N E S S E T H:




     WHEREAS, Holdings, Intermediate Holdco, the Borrowers, the Lenders and the Administrative
Agent are parties to a Credit Agreement, dated as of March 28, 2003 (as amended, modified and/or
supplemented from time to time to, but not including, the date hereof, the “Credit
Agreement”);



     WHEREAS, the Credit Agreement Parties have requested certain amendments to the Credit
Agreement, and a consent to certain provisions of the Credit Documents, in each case as more fully
described below; and



     WHEREAS, subject to the terms and conditions of this Amendment, the parties hereto wish to
amend the Credit Agreement, and the Lenders wish to grant a consent to certain provisions of the
Credit Documents, in each case as herein provided;



     NOW, THEREFORE, it is agreed:



I. Amendments and Consent to Credit Agreement.




     1. Notwithstanding anything to the contrary contained in the Credit Agreement or in any other
Credit Documents, the Lenders hereby (i) consent to the release of the security interests in that
certain parcel of Real Property owned by Standard Fruit Company de Costa Rica, S.A. identified by
“Property Registry Number 1-231140-000” and located in Distrito Merced, San Jose, Costa Rica (the
“San Jose Property”), which security interests were granted in favor of Banco Cuscatlan, as
trustee for the Collateral Agent and the other Secured Creditors, by means of a guaranty trust
formed pursuant to a public deed executed on June 3rd, 2003 (the “Existing Guaranty Trust”)
and (ii) authorize the Collateral Agent to execute such documents, agreements and/or instruments
and take such other actions as may be necessary to effectuate such release; provided that,
if the San Jose Property has a Fair Market Value of greater than



 









 




$5,000,000, then the San Jose Property will be subjected to a Lien in favor of the Collateral
Agent for the benefit of the Secured Creditors pursuant to documentation in form and substance
reasonably satisfactory to the Collateral Agent within 45 days (or such longer time as may be
reasonably agreed to by the Collateral Agent) after the release of the San Jose Property from the
Existing Guaranty Trust unless the Collateral Agent determines that the cost of creating an
enforceable Lien over the San Jose Property in favor of the Collateral Agent is excessive in
relation to the benefits to the Secured Creditors afforded thereby.




     2. Sections 2A.01(c) and 2B.01(c) of the Credit Agreement are each hereby amended by deleting
the text “75%” appearing in clause (i)(y) of each of said Sections and inserting the text “80%” in
lieu thereof.



     3. Section 8.01(d) of the Credit Agreement is hereby amended by deleting the word “three”
appearing immediately after the text “each of the immediately succeeding” appearing in clause (ii)
of said Section and inserting the word “two” in lieu thereof.



     4. Section 8.11(g) of the Credit Agreement is hereby amended by (i) deleting the text “(y)”
appearing in the proviso to the second sentence of said Section and inserting the text “(z)” in
lieu thereof, (ii) deleting the text “(x)” appearing in the proviso to the second sentence of said
Section and inserting the text “(y)” in lieu thereof and (iii) inserting the text “(x) the Credit
Documents required to be executed and delivered pursuant to Section 8.11(c) by such newly formed,
created or acquired Subsidiary shall not be required to be so executed and delivered until 45 days
after the formation, creation or acquisition of such Subsidiary,” immediately after the text
“provided that” appearing in the second sentence of said Section.



     5. Section 9.03 of the Credit Agreement is hereby amended by (i) deleting the text “and”
appearing at the end of clause (xviii) of said Section, (ii) deleting the period appearing at the
end of clause (xix) of said Section and inserting the text “; and” in lieu thereof and (iii)
inserting the following new clause (xx) immediately after clause (xix) of said Section:




     “(xx) Liens in favor of the Saba Minority Shareholders on the Equity Interests of Saba
Trading AB acquired by Saba Trading Holding AB upon the exercise of any “put” right by the
Saba Minority Shareholders pursuant to the Saba Share Option Agreement, to the extent
securing any unsatisfied payment obligation of Saba Trading Holding AB owing to the Saba
Minority Shareholders under the Saba Share Option Agreement.”.



     6. Section 9.04 of the Credit Agreement is hereby amended by (i) deleting the text “and”
appearing at the end of clause (xxii) of said Section, (ii) deleting the period appearing at the
end of clause (xxiii) of said Section and inserting the text “; and” in lieu thereof and (iii)
inserting the following new clause (xxiv) immediately after clause (xxiii) of said Section:




     “(xxiv) to the extent that same constitutes Indebtedness, the payment obligation of
Saba Trading Holding AB owing to the Saba Minority Shareholders pursuant to the terms of the
Saba Share Option Agreement after the exercise by the Saba Minority Shareholders of any
“put” right pursuant thereto and the transfer of title to the Equity



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Interests of Saba Trading AB held by the Saba Minority Shareholders to Saba Trading
Holding AB.”.



     7. Section 9.05 of the Credit Agreement is hereby amended by deleting clause (xiv) of said
Section in its entirety and inserting the following new clause (xiv) in lieu thereof:




     “(xiv) Investments arising as a result of the exercise of any “put” right of minority
shareholders, or “call” rights of Saba Trading Holding AB, pursuant to that certain Share
Option Agreement, dated as of September 28, 1998, among Saba Trading Holding AB (as
successor-in-interest to the Bermuda Borrower) and the Saba Minority Shareholders (as in
effect on December 7, 2004 and giving effect to the Amendment and Waiver of the Saba Share
Option Agreement to be made and entered into on December 30, 2004 by and between Saba
Trading Holdings AB, the Saba Minority Shareholders and the Bermuda Borrower in the form
provided to the Administrative Agent, the “Saba Share Option Agreement”);”.



     8. Section 9.06 of the Credit Agreement is hereby amended by deleting the text “consideration
any shares of any class of the capital stock or other Equity Interests of Holdings or any other
Subsidiary, as the case may be,” appearing in the preamble of said Section and inserting the text
“a consideration any shares of any class of the capital stock or other Equity Interests of any
direct or indirect parent of such Subsidiary” in lieu thereof.



     9. Section 9.17(a) of the Credit Agreement is hereby amended by (i) deleting the text “(y)”
appearing in the second proviso to said Section and inserting the text “(z)” in lieu thereof, (ii)
deleting the text “(x)” appearing in the second proviso to said Section and inserting the text
“(y)” in lieu thereof and (iii) inserting the text “(x) the Credit Documents required to be
executed and delivered pursuant to clauses (C), (D) and (E) by such newly formed, created or
acquired Subsidiary shall not be required to be so executed and delivered until 45 days after the
formation, creation or acquisition of such Subsidiary,” immediately after the second instance of
the text “provided that” appearing in said Section.



     10. The definition of “Consolidated Debt” appearing in Section 11 of the Credit
Agreement is hereby amended by inserting the text “(v) the amount of any Indebtedness of Saba
Trading Holding AB outstanding pursuant to Section 9.04(xxiv) of this Agreement shall not be
included in any determination of “Consolidated Debt”, immediately after the text “provided
that” appearing in said definition.



     11. Section 11 of the Credit Agreement is hereby further amended by inserting the following
definition in said Section in appropriate alphabetical order:




     “Saba Minority Shareholders” shall mean Axel Johnson AB (as
successor-in-interest to Axel Johnson Saba AB) and Kooperativa Förbundet (KF), Ekonomisk
Förening (as successor-in-interest to Kooperative Detaljhandelsgruppen AB).



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II. Miscellaneous Provisions.




     1. In order to induce the Lenders to enter into this Amendment, each Credit Agreement Party
hereby represents and warrants that:




     (a) no Default or Event of Default exists as of the Seventh Amendment Effective Date,
immediately after giving effect thereto; and




     (b) all of the representations and warranties contained in the Credit Agreement and the
other Credit Documents are true and correct in all material respects on the Seventh
Amendment Effective Date immediately after giving effect thereto, with the same effect as
though such representations and warranties had been made on and as of the Seventh Amendment
Effective Date immediately after giving effect thereto (it being understood that any
representation or warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).



     2. This Amendment is limited as specified and shall not constitute a modification, acceptance
or waiver of any other provision of the Credit Agreement or any other Credit Document.



     3. This Amendment may be executed in any number of counterparts and by the different parties
hereto on separate counterparts, each of which counterparts when executed and delivered shall be an
original, but all of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with Holdings and the Administrative Agent.



     4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.



     5. This Amendment shall become effective on the date (the “Seventh Amendment Effective
Date”) when each Credit Agreement Party and Lenders constituting the Required Lenders shall
have signed a counterpart hereof (whether the same or different counter parts) and shall have
delivered (including by way of facsimile or other electronic transmission) the same to White & Case
LLP, 1155 Avenue of the Americas, New York, NY 10036 Attention: May Yip (facsimile number:
212-354-8113 / e-mail address: myip@whitecase.com).



     6. From and after the Seventh Amendment Effective Date, all references in the Credit Agreement
and each of the other Credit Documents to the Credit Agreement shall be deemed to be references to
the Credit Agreement as modified hereby on the Seventh Amendment Effective Date.



* * *




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     IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this Amendment as of the date first above written.



	 	 	 	 	 
	 	 	DHM HOLDING COMPANY, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	DOLE HOLDING COMPANY, LLC
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	DOLE FOOD COMPANY, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	SOLVEST, LTD.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:






 









 





	 	 	 	 	 
	 	 	DEUTSCHE BANK AG NEW YORK BRANCH,
Individually, and as Administrative Agent
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






SIGNATURE PAGE TO THE SEVENTH AMENDMENT AND CONSENT TO CREDIT
AGREEMENT, DATED AS OF DECEMBER 20, 2004, AMONG DHM HOLDING
COMPANY, INC., DOLE HOLDING COMPANY, LLC, DOLE FOOD COMPANY,
INC., SOLVEST LTD., THE LENDERS FROM TIME TO TIME PARTY TO THE
CREDIT AGREEMENT AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT



	 	 	 	 	 
	 	 	NAME OF INSTITUTION:
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title: