DATE, THE BORROWER AGREES TO DELIVER THE SAME WITHIN 30 DAYS
THEREAFTER (OR SUCH LATER DATE AGREED TO BY THE AGENT)
(M)
THE MERGER (AS DEFINED IN THE MERGER AGREEMENT) SHALL HAVE BEEN, OR
SUBSTANTIALLY SIMULTANEOUSLY WITH THE FUNDING OF ADDITIONAL TERM LOANS ON THE
ACQUISITION CLOSING DATE SHALL BE, CONSUMMATED IN ACCORDANCE WITH THE MERGER
AGREEMENT AND APPLICABLE LAW, WITHOUT GIVING EFFECT TO ANY WAIVER OF ANY
MATERIAL TERMS OR CONDITIONS OF THE MERGER AGREEMENT NOT APPROVED BY THE AGENT.
THE AGENT SHALL HAVE RECEIVED COPIES OF THE MERGER AGREEMENT AND ALL
CERTIFICATES AND OTHER DOCUMENTS DELIVERED THEREUNDER, CERTIFIED BY A
RESPONSIBLE OFFICER AS BEING COMPLETE AND CORRECT.
THERE SHALL NOT HAVE
OCCURRED AFTER THE DATE OF THE MERGER AGREEMENT ANY CHANGE, EVENT OR EFFECT THAT
HAS HAD, OR IS REASONABLY LIKELY TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A
MATERIAL ADVERSE EFFECT; PROVIDED THAT
NO PERSON SHALL BE ABLE TO ASSERT THAT
ANY CONDITION SET FORTH IN THIS PARAGRAPH HAS NOT BEEN SATISFIED UNLESS CREDIT
SUISSE SHALL ALSO MAKE SUCH ASSERTION.
(N)
THE BORROWER SHALL HAVE RECEIVED GROSS CASH PROCEEDS OF NOT LESS THAN
$300,000,000 FROM THE ISSUANCE OF THE SENIOR SUBORDINATED NOTES.
THE TERMS AND
CONDITIONS OF THE SENIOR SUBORDINATED NOTES, THE INDENTURE RELATED THERETO AND
ALL OTHER DOCUMENTS EXECUTED AND DELIVERED WITH RESPECT TO THE SENIOR
SUBORDINATED NOTES OR THE INDENTURE RELATED THERETO (COLLECTIVELY, THE "SENIOR
SUBORDINATED NOTE DOCUMENTS") SHALL BE REASONABLY SATISFACTORY TO THE AGENT. THE
AGENT SHALL HAVE RECEIVED COPIES OF THE SENIOR SUBORDINATED NOTE DOCUMENTS,
CERTIFIED BY A RESPONSIBLE OFFICER AS BEING COMPLETE AND CORRECT.
SECTION 6.
CONSENT AND AGREEMENT.
(A) THE REQUISITE LENDERS HEREBY CONSENT TO
THE INCURRENCE BY THE BORROWER OF THE ADDITIONAL TERM LOANS AND THE INCREASE IN
THE REVOLVING CREDIT COMMITMENTS CONTEMPLATED BY THIS AMENDMENT.
(B)
SUBJECT TO SECTION 5 ABOVE, PROJECT COFFEE ACQUISITION CO. SHALL NOT BE
REQUIRED TO BECOME A LOAN PARTY (AND NO LOAN PARTY SHALL BE REQUIRED TO PLEDGE
ANY
7
EQUITY INTEREST IN PROJECT COFFEE ACQUISITION CO.) UNLESS THE ACQUISITION FAILS
TO OCCUR WITHIN 15 BUSINESS DAYS AFTER THE AMENDMENT EFFECTIVE DATE, IN WHICH
CASE, WITHIN 20 BUSINESS DAYS AFTER THE AMENDMENT EFFECTIVE DATE, PROJECT COFFEE
ACQUISITION CO. SHALL BE REQUIRED TO SATISFY THE REQUIREMENTS OF SECTION 5.11 OF
THE CREDIT AGREEMENT.
SECTION 7.
EFFECT OF AMENDMENT.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THIS
AMENDMENT SHALL NOT BY IMPLICATION OR OTHERWISE LIMIT, IMPAIR, CONSTITUTE A
WAIVER OF, OR OTHERWISE AFFECT THE RIGHTS AND REMEDIES OF THE LENDERS, THE
ISSUING BANK OR THE AGENT UNDER THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT,
AND SHALL NOT ALTER, MODIFY, AMEND OR IN ANY WAY AFFECT ANY OF THE TERMS,
CONDITIONS, OBLIGATIONS, COVENANTS OR AGREEMENTS CONTAINED IN THE CREDIT
AGREEMENT OR ANY OTHER LOAN DOCUMENT, ALL OF WHICH ARE RATIFIED AND AFFIRMED IN
ALL RESPECTS AND SHALL CONTINUE IN FULL FORCE AND EFFECT.
NOTHING HEREIN SHALL
BE DEEMED TO ENTITLE ANY LOAN PARTY TO A CONSENT TO, OR A WAIVER, AMENDMENT,
MODIFICATION OR OTHER CHANGE OF,