DATE (IN WHICH CASE SUCH
REPRESENTATIONS AND WARRANTIES WERE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS
OF SUCH EARLIER DATE).
(C)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
SECTION 4.
EFFECTIVENESS.
THIS AMENDMENT SHALL BECOME EFFECTIVE AS OF THE DATE
FIRST SET FORTH ABOVE ON THE DATE (THE "AMENDMENT EFFECTIVE DATE") OCCURRING ON
OR PRIOR TO FEBRUARY 2, 2007, THAT:
(A)
THE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED COUNTERPARTS OF THIS
AMENDMENT THAT, WHEN TAKEN TOGETHER, BEAR THE SIGNATURES OF THE BORROWER, EACH
SUBSIDIARY GUARANTOR, THE AGENT AND THE REQUISITE LENDERS.
AS USED HEREIN, THE
TERM "REQUISITE LENDERS" SHALL MEAN (X) THE REQUIRED LENDERS AND (Y) THE
REQUIRED REVOLVING LENDERS.
(B)
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS 3(B) AND (C)
HEREOF SHALL BE TRUE AND CORRECT, AND THE AGENT SHALL HAVE RECEIVED A
CERTIFICATE TO THAT EFFECT DATED AS OF THE AMENDMENT EFFECTIVE DATE AND EXECUTED
BY THE CHIEF FINANCIAL OFFICER OF THE BORROWER.
(C)
THE AGENT SHALL NOTIFY THE BORROWER AND THE LENDERS OF THE EFFECTIVENESS OF
THIS AMENDMENT.
SECTION 5.
CONDITIONS PRECEDENT TO ADDITIONAL TERM LOANS AND ADDITIONAL
REVOLVING CREDIT COMMITMENTS.
THE OBLIGATIONS OF THE ADDITIONAL TERM LENDERS TO
MAKE ADDITIONAL TERM LOANS AND THE INCREASING REVOLVING CREDIT LENDERS TO
PROVIDE ADDITIONAL REVOLVING CREDIT COMMITMENTS, AS THE CASE MAY BE, ON THE
CLOSING DATE OF THE ACQUISITION (THE "ACQUISITION CLOSING DATE"), ARE SUBJECT TO
THE SATISFACTION OF EACH OF THE FOLLOWING CONDITIONS:
4
(A)
THIS AMENDMENT SHALL HAVE BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 4
HEREOF.
(B)
ON THE ACQUISITION CLOSING DATE, THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTION 3(B) HEREOF SHALL BE TRUE AND CORRECT AS IF MADE AS OF THE
ACQUISITION CLOSING DATE; PROVIDED THAT THIS CONDITION SHALL BE DEEMED SATISFIED
(OTHER THAN WITH RESPECT TO THE SPECIFIED REPRESENTATIONS (AS DEFINED BELOW)) IF
AND TO THE EXTENT THE CONDITIONS IN THE AGREEMENT AND PLAN OF MERGER DATED AS OF
JANUARY 9, 2007, AMONG THE COMPANY, THE BORROWER AND PROJECT COFFEE ACQUISITION
CO. (THE "MERGER AGREEMENT") RELATING TO (A) THE ACCURACY OF THE REPRESENTATIONS
AND WARRANTIES OF THE COMPANY AND (B) THE ABSENCE OF A MATERIAL ADVERSE EFFECT
(AS DEFINED IN THE MERGER AGREEMENT)AFTER JANUARY 9, 2007 SHALL HAVE BEEN
SATISFIED (WITHOUT GIVING EFFECT TO ANY WAIVER, AMENDMENT OR OTHER MODIFICATION
TO SUCH CONDITIONS IN A MANNER MATERIALLY ADVERSE TO THE LENDERS EFFECTED
WITHOUT THE CONSENT OF THE AGENT). FOR PURPOSES OF THIS PARAGRAPH (B),
"SPECIFIED REPRESENTATIONS" SHALL MEAN THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTIONS 3.01, 3.02, 3.03(B), (C) (ONLY WITH RESPECT TO THE
CONSTITUTIONAL DOCUMENTS OF ANY LOAN PARTY OR ITS SUBSIDIARIES) AND (D), 3.08,
3.16, 3.18 AND 3.19 OF THE CREDIT AGREEMENT.
(C)
ON THE ACQUISITION CLOSING DATE AND IMMEDIATELY THEREAFTER, NO EVENT OF
DEFAULT OF A TYPE DESCRIBED IN PARAGRAPH (A), (B), (F) OR (G) OF ARTICLE VII OF
THE CREDIT AGREEMENT SHALL HAVE OCCURRED AND BE CONTINUING.
(D)
THE AGENT SHALL HAVE RECEIVED A CERTIFICATE DATED AS OF THE ACQUISITION
CLOSING