<PAGE> 1
THIS REGISTRATION STATEMENT ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT NO. 33-43946
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY __, 1994.
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHIQUITA BRANDS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY 04-1923360
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
250 East Fifth Street
Cincinnati, Ohio 45202
(513) 784-8011
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
CHARLES R. MORGAN, ESQ.
Vice President, General Counsel
and Secretary
CHIQUITA BRANDS INTERNATIONAL, INC.
250 East Fifth Street
Cincinnati, Ohio 45202
(513) 784-8332
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with copies to:
GARY L. SELLERS, ESQ.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS
DETERMINED IN LIGHT OF MARKET CONDITIONS AND OTHER FACTORS.
__________________________
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED PURSUANT
TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. [
]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. [x]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of each class of Proposed maximum Proposed maximum
securities Aggregate amount to be offering price aggregate Amount of
to be registered registered(1) per unit (1) offering price (1)(2) registration fee
Debt Securities; (3) (3) $300,000,000 $103,448
Preferred Stock, par
value $1.00 per share;
Capital Stock, par
value $0.33 per share
(4)
</TABLE>
(1) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Registration
Statement exceed $300,000,000, or if any Debt Securities are issued
with original issue discount, such greater amount as shall result in
an aggregate offering price of $300,000,000. Any securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(o) of the rules and regulations (the "Rules") of
the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "1933 Act").
(3) Not applicable pursuant to Form S-3 General Instruction II.D.
(4) Subject to Note 1 above, there is being registered hereunder an
indeterminate principal amount of Debt Securities and/or shares of
Preferred Stock and/or shares of Capital Stock as may be sold, from
time to time, by the registrant.
Pursuant to Rule 429 of the Rules under the 1933 Act, this Registration
Statement contains a combined prospectus that also relates to a Registration
Statement on Form S-3 No. 33-43946 (relating to an aggregate of $350,000,000
principal amount of Senior Debt Securities) previously filed by the registrant
and declared effective on November 22, 1991. This Registration Statement
constitutes Post-Effective Amendment No. 1 to Registration Statement No.
33-43946 with respect to the remaining $100,000,000 of unsold securities
thereunder, and such Post-Effective Amendment shall hereafter become effective
concurrently with the effectiveness of this Registration Statement and in
accordance with Section 8(c) of the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE> 3
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED ___________, 1994
PROSPECTUS
[logo] $400,000,000
CHIQUITA BRANDS INTERNATIONAL, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
Chiquita Brands International, Inc. ("Chiquita" or the "Company") may
offer from time to time (i) in one or more series unsecured debt securities,
which may be either senior or subordinated debt securities (together, the "Debt
Securities"), consisting of debentures, notes and/or other evidences of
indebtedness; (ii) in one or more series shares of Non-Voting Cumulative
Preferred Stock, par value $1.00 per share ("Preferred Stock"), and (iii) shares
of its Capital Stock, par value $0.33 per share ("Common Stock") (the Debt
Securities, Preferred Stock and Common Stock being collectively referred to as
the "Securities"), or any combination of the foregoing, at an aggregate initial
offering price not to exceed $400,000,000, at prices and on terms to be
determined at or prior to the time of sale.
Specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement"), together with the terms of the offering of the
Securities and the initial price and the net proceeds to Chiquita from the sale
thereof. The Prospectus Supplement will set forth with regard to the particular
Securities, without limitation, the following: (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, ranking as
senior debt or subordinated debt, authorized denominations, maturity, rate (or
method of calculation thereof) of interest and dates (or method of determination
thereof) for payment thereof, and any exchangeability, conversion, redemption,
prepayment or sinking fund provisions, (ii) in the case of Preferred Stock, the
designation, number of shares, liquidation preference per share, initial public
offering price, dividend rate (or method of calculation thereof), dates on which
dividends shall be payable and dates from which dividends shall accrue, any
redemption or sinking fund provisions, any conversion or exchange rights and any
special voting or other special rights and (iii) in the case of Common Stock,
the number of shares of Common Stock and the terms of the offering and sale
thereof. The Prospectus Supplement will also contain information, where
applicable, about certain Federal income tax considerations relating to, and any
listing on a securities exchange of, the Securities covered by the Prospectus
Supplement.
The Securities may be offered for sale directly, through agents, to or
through underwriters or dealers designated from time to time or through a
combination of such methods. If agents of Chiquita or any underwriters or
dealers are involved in the sale of the Securities the names of such agents,
underwriters or dealers and any applicable commission or discounts will be set
forth in the Prospectus Supplement. See "Plan of Distribution."
SEE "INVESTMENT CONSIDERATIONS" FOR A DISCUSSION OF CERTAIN FACTORS
WHICH SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES.
__________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
_______________________________
THE DATE OF THIS PROSPECTUS IS ___________, 1994.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE> 4
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY AGENT, UNDERWRITER OR DEALER.
THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY SUCH OFFER
OR SOLICITATION IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
Chiquita is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy and information statements and other
information with the Securities and Exchange Commission (the "Commission").
Chiquita has filed with the Commission a Registration Statement on Form S-3
(together with all amendments and exhibits, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Securities offered hereby. This Prospectus does not contain all the
information set forth in the Registration Statement and exhibits thereto, or
amendments thereto, to which reference is hereby made. Such reports, proxy and
information statements, Registration Statement and exhibits and other
information filed by Chiquita may be inspected and, upon payment of the
Commission's customary charges, copied at the public reference facilities of
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Regional Offices of the Commission at Suite
1300, 7 World Trade Center, New York, New York 10048, and Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois 60661.
Chiquita's Common Stock is listed on the New York, Boston and Pacific
Stock Exchanges. Reports, proxy and information statements and other
information concerning Chiquita may be inspected and copied at the Library of
the New York Stock Exchange at 20 Broad Street, New York, New York; at the
Secretary's Office of the Boston Stock Exchange at 1 Boston Place, Boston,
Massachusetts; and at the Listing Department of the Pacific Stock Exchange at
301 Pine Street, San Francisco, California.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Chiquita will furnish, without charge, to any person to whom this
Prospectus is delivered, upon such person's written or oral request, a copy of
any and all of the information that has been incorporated by reference in the
Registration Statement of which this Prospectus is a part (not including
exhibits to such information unless such exhibits are specifically incorporated
by reference into such information). Any such request should be directed to the
Vice President, Corporate Affairs of Chiquita, 250 East Fifth Street,
Cincinnati, Ohio 45202; telephone: (513) 784-6366.
The Annual Report on Form 10-K for the year ended December 31, 1992
(which incorporates by reference certain information contained in the Company's
1992 Annual Report to Shareholders) (the "1992 10-K"), the Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1993, June 30, 1993 and September
30, 1993 (the "1993 Third Quarter 10-Q" and, collectively, the "1993 10- Q's")
and the Current Reports on Form 8-K dated January 13, 1993 and March 4, 1993
filed by Chiquita with the Commission (Commission file number 1-1550) are
incorporated herein by reference and made a part hereof.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities shall be deemed to
be incorporated by reference into this Prospectus and to be a part hereof from
the respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
- 2 -
<PAGE> 5
THE COMPANY
Chiquita Brands International, Inc. is a leading international
marketer, processor and producer of quality fresh and processed food products.
Chiquita produces and markets an extensive line of fresh fruits and vegetables
sold under the Chiquita(R) and other brand names. These products include
tropical fruit, such as bananas, pineapples, mangos, papaya, kiwi and citrus,
and a wide variety of other fresh produce. The core of the Company's
operations is the marketing, distribution and sourcing of bananas.
The Company's operations also include brand extensions, such as fruit
and vegetable juices and banana puree, and other processed fruits and
vegetables marketed worldwide under the Chiquita and other brand names; wet and
dry salads sold under various brand names; and consumer packaged foods marketed
in Latin America under various brand names.
During the fourth quarter of 1992, the Company adopted a plan of
disposal for its Meat Division and classified it as a discontinued operation.
The Meat Division encompasses a wide range of value-added fresh meats and
processed meat products sold in the United States nationally under the John
Morrell and Mosey's brand names and under a number of regional brand names.
See "Recent Developments -- Discontinued Operations."
American Financial Corporation ("AFC") owns, either directly or
through its subsidiaries, approximately 47% of Chiquita's outstanding shares of
Common Stock and 31% of Chiquita's $1.32 Depositary Shares. All of the
outstanding common stock of AFC is owned by Carl H. Lindner and members of his
family.
Chiquita is a New Jersey corporation. The address of its principal
executive offices is 250 East Fifth Street, Cincinnati, Ohio 45202 and its
telephone number is (513) 784-8011. Unless the context indicates otherwise,
the term "Chiquita" also includes the subsidiaries of the Company.
INVESTMENT CONSIDERATIONS
In addition to the other information set forth in this Prospectus,
prospective investors should carefully consider the following before making an
investment in the Securities.
SUBSIDIARIES
Substantially all of the operations of the Company are conducted
through its subsidiaries and the Company is therefore dependent on the cash
flow of its subsidiaries to meet its obligations. Because the assets of the
Company are held by its subsidiaries (some of which are highly leveraged and
others of which are unleveraged), the claims of holders of the Securities will
be structurally subordinated to any existing and future obligations (whether or
not for borrowed money) of such subsidiaries. As of September 30, 1993, the
total debt of the Company's subsidiaries aggregated $748 million, of which $381
million represented non- recourse long-term debt of the Company's shipping
subsidiaries secured by ships and related equipment and $114 million
represented short-term notes and loans payable.
RECENT LOSSES
From 1984 to 1991, Chiquita reported a continuous record of growth in
annual earnings. In 1992, however, Chiquita experienced unprecedented
challenges, including a decline in product quality resulting from an
extraordinary outbreak of banana plant disease and unusual weather patterns in
Latin America. These factors contributed to a loss of $146 million ($2.91 per
share) from continuing operations before taxes and non-recurring charges for
the year ended December 31, 1992. Chiquita's management addressed these
challenges by implementing control measures to address the quality issues and
commenced an aggressive program to adjust the Company's fresh fruit volume and
cost structure to reduce significantly production, distribution and overhead
costs. This program included consolidation of operations, asset disposals and
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<PAGE> 6
workforce reductions. As a result of the adoption of this program,
restructuring and reorganization charges of $61 million ($1.18 per share) were
recorded in the fourth quarter of 1992. In addition, during the fourth quarter
of 1992, the Company adopted a plan of disposal for its Meat Division and
classified it as a discontinued operation. The net loss for the year,
including non-recurring charges and losses from discontinued operations, was
$284 million ($5.48 per share). Fixed charges exceeded earnings by
approximately $239 million for the year. See "Recent Developments--Results of
Operations" below and "Management's Analysis of Operations and Financial
Condition" in the Company's 1992 10-K.
For the nine months ended September 30, 1993, the Company reported net
income of $9.3 million, compared to a net loss of $90.6 million (including a
loss on discontinued operations of $21.4 million) for the same period in 1992.
However, the Company expects to report a 1993 fourth quarter loss which is
sizable, but considerably less than the 1992 fourth quarter loss from
continuing operations excluding nonrecurring charges. The improvement in 1993
over 1992 is attributable principally to the continuing benefits of Chiquita's
multi-year investment spending program and the ongoing impact of its
restructuring and cost reduction efforts. See "Recent Developments -- Results
of Operations."
LEVERAGE
As of September 30, 1993, the Company had short-term notes and loans
payable of $114.3 million and long-term debt (including current maturities) of
approximately $1.5 billion. As of September 30, 1993, the Company had total
long-term debt maturities and sinking fund requirements for the remainder of
1993 of $16 million, and for the years 1994 through 1997 amounts ranging from
$81 million to $96 million. The percentage of total debt to total
capitalization for the Company was 71.1% at September 30, 1993.
COMPETITION AND PRICING
Approximately 60% of the Company's consolidated net sales comes from
the sale of bananas. Banana marketing is highly competitive. In order to
compete successfully, Chiquita must be able to source bananas of uniformly high
quality and distribute them in worldwide markets on a timely basis. A limited
number of competitors account for most of the banana imports throughout the
world. While smaller companies, including growers' cooperatives, have also
become a competitive factor, Chiquita's principal competitors continue to be a
limited number of international companies. In addition, competition in the
sale of bananas also comes from other fresh fruit. Chiquita has been able to
obtain a premium price for its bananas due to its reputation for quality and
its innovative marketing techniques.
The effect of competition with respect to the majority of the
Company's products is intensified by their perishable nature. Bananas are
highly perishable and must be brought to market and sold generally within 60
days after harvest. Therefore, selling prices which importers receive for
bananas are significantly affected by fluctuations in the available supplies of
bananas and other fresh fruit in each market and by the relative quality and
wholesaler and retailer acceptance of bananas offered by competing importers.
Excess supplies may result in increased price competition.
Although production of bananas tends to be relatively stable
throughout the year, competition in the sale of bananas from other fresh fruit
may be seasonal in nature. The resulting seasonal variations in demand cause
banana pricing to be seasonal, with the first six months of the calendar year
being the strongest.
ADVERSE WEATHER CONDITIONS AND CROP DISEASE
Bananas are also vulnerable to adverse local weather conditions, which
are quite common but difficult to predict, and to crop disease, the control of
which entails significant expense. These factors may restrict worldwide
supplies and result in increased prices for bananas. However, competitors may
be affected differently, depending upon their ability to obtain adequate
supplies from sources in other geographic areas. During 1993, approximately 30%
of all bananas sold by Chiquita were sourced from Panama. Bananas sourced from
other countries, including Colombia, Costa Rica, Guatemala, Honduras, Mexico
and the
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<PAGE> 7
Philippines, comprised from 6% to 17% (depending on the country) of bananas
sold by Chiquita during 1993. See the Company's 1992 10-K.
EUROPEAN COMMUNITY BANANA REGULATION
On July 1, 1993, the European Community ("EC") implemented a new quota
restricting the volume of Latin American bananas imported into the EC. Most of
the Company's bananas are produced in Latin America and subject to the quota.
The quota is administered through a licensing system. Since imposition of the
new EC quota regime on July 1, 1993, prices within the EC have increased to a
higher level than for prior years. Banana prices in other worldwide markets,
however, have been lower than in previous years, as the displaced EC volume has
entered those markets. Challenges to the quota and many matters regarding
implementation and administration of the quota remain to be resolved.
Therefore, there can be no assurance that EC banana regulation will not change
further. See "Recent Developments -- European Community Banana Regulation" and
"-- Results of Operations" for further discussion of the EC quota and its
impact on current operations.
OTHER RISKS OF INTERNATIONAL OPERATIONS
A significant portion of the Company's operations are conducted in
foreign countries, and are subject to risks that are inherent in operating in
such foreign countries, including government regulation, currency restrictions
and other restraints, risks of expropriation and burdensome taxes. There is
also a risk that legal or regulatory requirements will be changed or that
administration and enforcement policies will change. Certain of the Company's
operations are dependent upon leases and other agreements with the governments
of these countries. Although the Company's operations are a significant factor
in the economies of many of the countries where the Company produces and
purchases bananas and other agricultural and consumer products, the Company's
overall risk from these factors, as well as from political changes, is reduced
by the large number and geographic diversity of its sources of bananas, which
exceed that of any competitor.
The Company's operations worldwide and the products it sells are
subject to numerous governmental regulations and inspections by environmental,
food safety and health authorities. Although the Company believes it is
substantially in compliance with such regulations, changes in legislation or
regulations and actions by regulators, including changes in administration and
enforcement policies, may from time to time require operational improvements or
modifications at various locations or the payment of fines and penalties, or
both.
The Company is also subject to a variety of governmental regulations
in certain countries where it markets its products, including import quotas and
tariffs, currency exchange controls and taxes.
The Company's operations involve transactions in a variety of
currencies. Results of its operations may be significantly affected by
fluctuations of currency exchange rates. Such fluctuations are significant to
the Company's banana operations because many of its costs are incurred in
currencies different from those that are received from the sale of bananas in
foreign markets, and there is normally a time lag between the incurrence of
such costs and collection of the related sales proceeds. The Company's policy
is to exchange local currencies for dollars immediately upon receipt, thus
reducing exchange risk. The Company also engages from time to time in various
hedging activities to minimize potential losses on cash flows originating in
foreign currencies. See Note 1 to the Company's Consolidated Financial
Statements and "Management's Analysis of Operations and Financial Condition"
included in the Company's 1992 10-K for information with respect to foreign
exchange.
SHARES AVAILABLE FOR FUTURE SALE
No prediction can be made as to the effect, if any, that future sales
of shares of Common Stock, or the availability of such shares for future sales,
will have on the market price of Common Stock, or any then outstanding
preferred stock, prevailing from time to time. Sales of substantial amounts of
Common Stock, or the perception that such sales could occur, could adversely
affect prevailing market prices for the Common Stock or, in certain instances,
the Preferred Stock. At January 17, 1994, the Company had outstanding
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<PAGE> 8
48,511,853 shares of Common Stock, including 22,868,805 shares held, directly
or indirectly, by AFC, and 648,310 shares of Cumulative Preference Stock,
including 200,000 shares held, directly or indirectly, by AFC. In addition to
the Securities offered from time to time hereby, the Company has filed a
Registration Statement on Form S-3 registering 1,616,480 shares of Common Stock
pursuant to the Securities Act on behalf of certain former stockholders of
Friday Canning Corporation. These shares were issued to such holders in
connection with the merger of Friday Canning Corporation into the Company
during the first quarter of 1992. Such Registration Statement was declared
effective on _____________, 1994.
ABSENCE OF PUBLIC MARKET FOR SECURITIES (OTHER THAN COMMON STOCK)
Since the Debt Securities and the Preferred Stock will be newly
issued, there is no current market for such Securities. The Company may, but
has no obligation to, apply for listing of such Securities on the New York
Stock Exchange or another stock exchange, and there can be no assurance that
the applicable listing requirements of any such exchange will be met. There
can be no assurance that there will be an active trading market for such
Securities.
RECENT DEVELOPMENTS
EUROPEAN COMMUNITY BANANA REGULATION
On July 1, 1993, the EC implemented a new quota effectively
restricting the volume of Latin American bananas imported into the EC to
approximately 80% of prior levels. The quota is administered through a
licensing system. Challenges to the quota and many matters regarding
implementation and administration of the quota remain to be resolved. In May
1993, the principles underlying the new regulation that discriminate against
Latin American banana exporting countries in favor of certain African,
Caribbean and Pacific countries were ruled illegal under the General Agreement
on Tariffs and Trade ("GATT") by a GATT dispute settlement panel. In December
1993, EC representatives discussed a tentative, even more discriminatory
proposal with a few Latin American banana producing countries. The tentative
proposal was rejected by an overwhelming majority of the Latin American
countries. As widely reported in the press, in January 1994 a GATT dispute
settlement panel ruled on a second lawsuit against the current EC regulation in
favor of the Latin American countries. GATT rulings in favor of the Latin
American countries could result in an increase in the total volume of Latin
American bananas, including banana volume of the Company, which could be
imported under the quota. However, there can be no assurance that the EC will
comply, or the manner in which it would comply, with such rulings. (See
"Results of Operations" below for discussion of the impact of the EC quota on
current operations.)
RESULTS OF OPERATIONS
Net sales for the third quarter of 1993 of $552 million and first nine
months of 1993 of $1.966 billion declined from the comparable prior year
amounts of $612 million and $2.102 billion primarily as a result of lower
banana volumes and prices. Nevertheless, for the third quarter of 1993, the
Company reported a reduced net loss of $25.9 million, or $.50 per share,
compared to a 1992 third quarter net loss of $79.4 million, or $1.55 per share
(including a loss on discontinued operations of $7.5 million, or $.15 per
share). For the nine months ended September 30, 1993, the Company reported net
income of $9.3 million, or $.18 per share, as compared to a net loss of $90.6
million, or $1.74 per share, in the same period of 1992 (which included a loss
on discontinued operations of $21.4 million, or $.41 per share). This
improvement is attributable to the continuing benefits of Chiquita's multi-year
investment spending program and the ongoing impact of its restructuring and
cost reduction efforts. These programs address all aspects of the banana
business including a decreased reliance on high-cost purchased fruit, enhanced
production practices, shipping fleet realignment, reorganization and
consolidation of marketing organizations, and overhead reductions.
Since imposition of the new EC quota regime on July 1, 1993, prices
within the EC have increased to a higher level than the levels in prior years.
Banana prices in other worldwide markets have been lower than in previous
years, as displaced EC volume has entered those markets.
- 6 -
<PAGE> 9
The favorable cost comparisons achieved during the first nine months
of 1993 as a result of the Company's investment spending and cost reduction
programs have continued throughout the fourth quarter. Fourth quarter banana
price levels in the EC remained higher than pre-quota price levels of the 1992
fourth quarter. However, EC prices weakened during the fourth quarter from
earlier post-quota levels partially as a result of the EC's late issuance of
fourth quarter import licenses and its announcement of an expiration date for
these licenses that was earlier than marketplace expectations. The Company
expects that, absent unforeseeable factors, it will report a 1993 fourth
quarter loss which is sizable, but considerably less than the $1.77 per share
loss from continuing operations (excluding restructuring and reorganization
charges) for the same period in 1992.
Chiquita also expects that the improved cost trend will continue into
1994. In addition, the EC quota impact could cause first half 1994 banana
prices in the EC to exceed pre-quota first half 1993 levels as they have since
implementation of the quota. First half 1994 prices outside the EC could
continue at levels lower than in previous years as they have since
implementation of the quota, although the continuing growth in per capita
consumption of bananas outside the EC could mitigate any such decline.
DISCONTINUED OPERATIONS
During the fourth quarter of 1992, after evaluation of reorganization
plans announced earlier that year and completion of other preparatory actions,
the Company adopted a plan of disposal for all remaining Meat Division
operations. Accordingly, these operations were classified as discontinued
operations and were deconsolidated. (See Note 3 to the Company's Consolidated
Financial Statements for the year ended December 31, 1992, included in the
Company's 1992 10-K.)
Pursuant to the plan, the Company immediately completed the sale of a
major fresh pork processing facility in December 1992.
During 1993, the Company engaged in extensive activity with respect to
execution of the balance of its disposal plan. Numerous proposals for the
purchase of individual components of the Meat Division were received from a
larger number of buyers than originally expected. Although progress under the
plan has been slower than anticipated, partially as a result of the Company
evaluating all these proposals in the interest of maximizing shareholder value,
the Company has made significant progress in the implementation of its disposal
plan. This progress includes:
o successful ongoing cost reduction efforts that have contributed to the
improvement in Meat Division operating results to approximately
breakeven levels for 1993.
o progress toward obtaining further substantial cost reductions for 1994
and beyond relating to retiree medical costs. In June 1993, the
Company received a favorable court ruling on its previously filed
litigation that confirms its right to unilaterally reduce medical
benefits of retired hourly employees. This ruling is being appealed
by the union and a hearing on the appeal is scheduled for February
1994.
o receiving subsidies and concessions from the State of South Dakota and
the City of Sioux Falls that will enhance the operating profitability
of the Sioux Falls plant. These incentives were offered in September
1993 by newly installed state and city administration officials who
took office in April 1993 after their predecessors, including the
Governor of South Dakota, were killed in a plane crash on their return
from a meeting to discuss incentives with Company and Meat Division
representatives.
o obtaining financial incentives and concessions in November 1993 from
the City of Sioux City, Iowa and the local labor union to enhance the
salability of the Sioux City pork processing plant as an operating
facility.
- 7 -
<PAGE> 10
o signing a letter of intent in December 1993 for the sale of the entire
Specialty Meat Group. The Company is presently negotiating with this
buyer and expects to complete the sale of this group in the first half
of 1994.
o obtaining a new stand-alone revolving credit facility in June 1993 to
fund the Meat Division's working capital needs.
The Company also continues to be engaged in vigorous marketing efforts
with respect to the remaining Meat Division operations that now reflect
improved prospects as a result of the favorable developments described above.
It expects to complete the divestitures of these operations by the end of 1994.
The Company has reevaluated its provision for loss on discontinued
operations recorded in 1992 and believes it is adequate to provide for any
losses on disposition. The developments during 1993 regarding the Company's
Meat Division have not had and are not expected to have a material adverse
effect on the Company's liquidity, financial condition or results of
operations.
Net sales from discontinued operations for the nine months ended
September 30, 1993 were approximately $1.2 billion.
USE OF PROCEEDS
Unless otherwise indicated in the Prospectus Supplement, the net
proceeds to be received by the Company from the sale of the Securities will be
used to repay outstanding debt of the Company and its subsidiaries and for
general corporate purposes.
- 8 -
<PAGE> 11
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data set forth below for the years
ended December 31, 1988 through 1992 were derived from the Company's audited
consolidated financial statements. Information presented below for interim
periods was derived from the Company's unaudited consolidated financial
statements and in the opinion of management includes all adjustments (which
include only normal recurring adjustments) necessary to present fairly the
results of operations for the interim periods. This information should be read
in conjunction with the Company's Consolidated Financial Statements and notes
thereto and "Management's Analysis of Operations and Financial Condition"
included or incorporated by reference in the Company's Reports on Forms 10-K
and 10-Q for such periods. Interim results are subject to significant seasonal
variations and are not necessarily indicative of the results of operations for
a full fiscal year.
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
---------------------- -----------------------
1993 1992 1992 1991
---------- ---------- --------- ---------
(Dollars in thousands,
except per share data)
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales . . . . . . . . . . . . . . . . . . . . $1,965,790 $2,102,289 $2,723,250 $2,604,128
Operating expenses
Cost of sales . . . . . . . . . . . . . . . . 1,520,718 1,736,968 2,309,425 2,027,669
Selling, general and administrative expenses . 246,122 279,966 368,675 324,240
Depreciation . . . . . . . . . . . . . . . . . 75,484 56,645 80,438 54,401
Restructuring and reorganization . . . . . . . -- -- 61,300 --
--------- --------- --------- ---------
1,842,324 2,073,579 2,819,838 2,406,310
--------- --------- --------- ---------
Operating income (loss) . . . . . . . . . . . 123,466 28,710 (96,588) 197,818
Interest income . . . . . . . . . . . . . . . . . 17,512 32,830 43,301 47,319
Interest expense . . . . . . . . . . . . . . . . (126,612) (111,829) (155,036) (88,406)
Other income (expense), net . . . . . . . . . . . 5,969 (8,979) (8,385) 3,278
--------- --------- --------- ---------
Income (loss) from continuing operations
before income taxes . . . . . . . . . . . . 20,335 (59,268) (216,708) 160,009
Income taxes . . . . . . . . . . . . . . . . . . (11,000) (10,000) (5,000) (49,100)
--------- --------- ---------- ---------
Income (loss) from continuing operations 9,335 (69,268) (221,708) 110,909
Discontinued operations1 . . . . . . . . . . . -- (21,355) (62,332) 17,586
--------- --------- ---------- ---------
Net income (loss) . . . . . . . . . . . . . . . . $ 9,335 $ (90,623) $ (284,040) $ 128,495
========= ========= ========== =========
Fully diluted earnings (loss) per common share:
Continuing operations . . . . . . . . . . . . $ .18 $ (1.33) $ (4.28) $ 2.19
Discontinued operations1 . . . . . . . . . . . -- (.41) (1.20) .33
========= ========= ========= =========
Net income (loss) . . . . . . . . . . . . . . $ .18 $ (1.74) $ (5.48) $ 2.52
========= ========= ========= =========
Ratio of earnings to fixed charges2 . . . . . . . 1.08 --2 --2 1.73
Ratio of earnings to combined fixed charges and
preferred stock dividends2 . . . . . . . . . . 1.06 --2 --2 1.73
BALANCE SHEET DATA:
Cash and marketable securities . . . . . . . . $ 194,820 $ 491,206 $ 413,181 $ 825,447
Working capital . . . . . . . . . . . . . . . 301,966 648,775 482,338 960,093
Total assets . . . . . . . . . . . . . . . . . 2,821,898 3,034,410 2,880,624 2,937,344
Short-term debt . . . . . . . . . . . . . . . 189,966 196,198 229,286 187,821
Long-term debt (other than subordinated debt) 805,607 717,656 778,784 571,493
Subordinated debt . . . . . . . . . . . . . . 633,530 632,226 632,535 631,346
Shareholders' equity . . . . . . . . . . . . . 663,000 874,252 674,887 967,925
OTHER DATA:
Operating income (loss) plus depreciation
and amortization . . . . . . . . . . . . . . $ 204,351 $ 90,390 $ (9,079) $ 258,076
Capital expenditures3 . . . . . . . . . . . . 174,185 381,578 472,273 395,641
Dividends declared per common share . . . . . .39 .49 .66 .55
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------
1990 1989 1988
---------- ---------- ----------
(Dollars in thousands,
except per share data)
<S> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales . . . . . . . . . . . . . . . . . . . . $2,186,452 $1,892,657 $1,679,429
Operating expenses
Cost of sales . . . . . . . . . . . . . . . . 1,698,557 1,497,306 1,333,688
Selling, general and administrative expenses . 284,299 205,780 205,712
Depreciation . . . . . . . . . . . . . . . . . 37,416 31,825 25,797
Restructuring and reorganization . . . . . . . -- -- --
--------- --------- ---------
2,020,272 1,734,911 1,565,197
--------- --------- ---------
Operating income (loss) . . . . . . . . . . . 166,180 157,746 114,232
Interest income . . . . . . . . . . . . . . . . . 31,461 28,169 25,376
Interest expense . . . . . . . . . . . . . . . . (55,361) (53,952) (38,923)
Other income (expense), net . . . . . . . . . . . 11,251 3,077 3,731
--------- --------- ---------
Income (loss) from continuing operations
before income taxes . . . . . . . . . . . . 153,531 135,040 104,416
Income taxes . . . . . . . . . . . . . . . . . . (57,700) (51,200) (47,200)
--------- --------- ---------
Income (loss) from continuing operations 95,831 83,84 57,216
Discontinued operations1 . . . . . . . . . . . (1,913) (16,073) 3,147
--------- --------- ---------
Net income (loss) . . . . . . . . . . . . . . . . $ 93,918 $ 67,767 $ 60,363
========= ========= =========
Fully diluted earnings (loss) per common share:
Continuing operations . . . . . . . . . . . . $ 2.24 $ 2.05 $ 1.38
Discontinued operations1 . . . . . . . . . . . (.04) (.38) .07
========= ========= =========
Net income (loss) . . . . . . . . . . . . . . $ 2.20 $ 1.67 $ 1.45
========= ========= =========
Ratio of earnings to fixed charges2 . . . . . . . 2.13 2.20 2.18
Ratio of earnings to combined fixed charges and
preferred stock dividends2 . . . . . . . . . . 2.13 2.20 2.18
BALANCE SHEET DATA:
Cash and marketable securities . . . . . . . . $ 318,246 $ 287,658 $ 188,619
Working capital . . . . . . . . . . . . . . . 433,424 394,640 345,784
Total assets . . . . . . . . . . . . . . . . . 1,913,674 1,373,480 1,230,946
Short-term debt . . . . . . . . . . . . . . . 106,698 58,540 18,236
Long-term debt (other than subordinated debt) 221,884 85,398 69,950
Subordinated debt . . . . . . . . . . . . . . 272,298 299,852 297,764
Shareholders' equity . . . . . . . . . . . . . 687,709 463,954 400,792
OTHER DATA:
Operating income (loss) plus depreciation
and amortization . . . . . . . . . . . . . . $ 208,963 $ 194,919 $ 144,482
Capital expenditures3 . . . . . . . . . . . . 312,698 117,425 63,621
Dividends declared per common share . . . . . .35 .20 .20
</TABLE>
1 Includes net operating results (and, in 1992, provision for loss on
disposal) of the Company's Meat Division operations, which have been classified
as discontinued operations. See "Recent Developments--Discontinued Operations"
and Note 3 to the Company's Consolidated Financial Statement for the year ended
December 31, 1992, included in the Company's 1992 10-K. All other Income
Statement Data presented above have been restated to exclude amounts relating to
the Meat Division. The Company's net investment in
<PAGE> 12
discontinued operations, which is included in "Total assets", aggregated
approximately $42 million at September 30, 1993. The net assets of
discontinued operations consist principally of property, plant and equipment
and trademarks, and at September 30, 1993 include a seasonally high $53 million
of short-term borrowings under an $80 million credit facility secured by Meat
Division working capital. These net assets also include net liabilities
recorded for Meat Division defined benefit pension plans of approximately $40
million at September 30, 1993.
2 For purposes of calculating the ratios of earnings to fixed charges
and of earnings to combined fixed charges and preferred stock dividends,
earnings are calculated as the sum of the income (loss) from continuing
operations before income taxes, fixed charges (other than capitalized interest)
and amortization of capitalized interest, less undistributed earnings of
less-than- fifty-percent-owned investees. Fixed charges consist of interest on
indebtedness (including amortization of debt discount and capitalized interest)
and a portion (one-third) of rent considered to represent interest cost.
Preferred dividends are dividends on shares of Chiquita's Mandatorily
Exchangeable Cumulative Preference Stock, Series C, which have been outstanding
since October 1992. Fixed charges and combined fixed charges and preferred
stock dividends both exceeded earnings by approximately $80 million for the
nine months ended September 30, 1992, and approximately $239 million for the
year ended December 31, 1992.
3 Includes capital expenditures in connection with the acquisition of
ships and containers of approximately $120 million during the nine months ended
September 30, 1993, $225 million during the nine months ended September 30,
1992, $280 million in 1992, $180 million in 1991, $200 million in 1990 and $20
million in 1989.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the Debt Securities sets forth certain
general terms and provisions of the Debt Securities to which any Prospectus
Supplement may relate. The particular terms of the Debt Securities offered by
any Prospectus Supplement and the extent, if any, to which such general
provisions do not apply to those Debt Securities will be described in the
Prospectus Supplement relating to such Debt Securities.
The Debt Securities will be general unsecured obligations of the
Company and will constitute either senior debt securities or subordinated debt
securities. In the case of Debt Securities that will be senior debt securities
("Senior Debt Securities"), the Debt Securities will be issued under an
Indenture (the "Senior Indenture") to be executed between the Company and The
Fifth Third Bank, Cincinnati, Ohio, as trustee (the "Senior Debt Trustee"),
under the Senior Indenture. In the case of Debt Securities that will be
subordinated debt securities ("Subordinated Debt Securities"), the Debt
Securities will be issued under an Indenture (the "Subordinated Indenture") to
be executed by the Company and Star Bank, N.A., Cincinnati, Ohio, as trustee
(the "Subordinated Debt Trustee"), under the Subordinated Indenture. The
Senior Indenture and the Subordinated Indenture are sometimes referred to
herein individually as an "Indenture" and collectively as the "Indentures."
The Senior Debt Trustee and the Subordinated Debt Trustee are sometimes
referred to herein individually as the "Trustee" or collectively as the
"Trustees." The statements made under this caption relating to the Debt
Securities and the Indentures are summaries only, do not purport to be complete
and are qualified in their entirety by reference to the forms of Indentures or
the Indentures which have been or will be filed with the Commission in
connection with the issuance of any series of Debt Securities. Such summaries
make use of terms defined in the Indentures. Wherever such terms are used
herein, such terms are incorporated by reference from the Indentures as part of
the statements made herein. Summaries of certain terms used herein will be
included in the Prospectus Supplement relating to the issuance of any
particular series of Debt Securities.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
GENERAL. Except as may be set forth in the terms of the Debt
Securities and described in the Prospectus Supplement relating to such Debt
Securities, neither of the Indentures limits the amount of Debt Securities
which can be issued thereunder and each provides that additional Debt
Securities may be issued thereunder up to the aggregate principal amount which
may be authorized from time to time by the Company's Board of Directors.
Reference is made to the Prospectus Supplement for the following terms of the
particular series of Debt Securities being offered thereby: (i) the
designation, aggregate principal amount
- 10 -
<PAGE> 13
and authorized denominations of the series; (ii) the price at which the series
will be issued; (iii) the date or dates on which the series will mature (or
manner of determining the same); (iv) the rate or rates per annum, if any, at
which the series will bear interest (or the manner of calculation thereof) and
the date or dates from which such interest will accrue; (v) certain covenants
which will be applicable to that series of Debt Securities; (vi) the times at
which any interest will be payable (or manner of determining the same) and the
Regular Record Dates for Interest Payment Dates; (vii) the place or places
where the principal of (and premium, if any) and interest, if any, on the
series will be payable and each office or agency, as described below under
"Denominations, Registration and Transfer," where the Debt Securities may be
presented for transfer or exchange; (viii) any mandatory or optional sinking
fund or analogous provisions; (ix) the date, if any, after which, and the price
at which, such Debt Securities are payable pursuant to any optional or
mandatory redemption provisions; (x) the terms and conditions upon which the
Debt Securities of such series may be repayable prior to maturity at the option
of the holder thereof and the price at which such Debt Securities are so
repayable; (xi) any provisions regarding exchangeability or conversion of the
Debt Securities; (xii) information with respect to book-entry procedures, if
any; (xiii) any provisions of the Indenture which will not be applicable to
that series of Debt Securities; (xiv) whether the Debt Securities are Senior
Debt Securities or Subordinated Debt Securities; and (xv) any other additional
provisions or specific terms which may be applicable to that series of Debt
Securities.
Some of the Debt Securities may be issued as Discounted Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any Discounted Securities will be described in the
Prospectus Supplement relating thereto.
DENOMINATIONS, REGISTRATION AND TRANSFER. The Debt Securities of a
series will be issuable only in fully registered form. Unless otherwise
provided in an applicable Prospectus Supplement with respect to a series of
Debt Securities, Debt Securities will be issued only in denominations of $1,000
or any integral multiple thereof.
Debt Securities of any series will be exchangeable for other Debt
Securities of the same series and of a like aggregate principal amount and
tenor of different authorized denominations. Debt Securities may be presented
for exchange or for registration of transfer (with the form of transfer duly
executed) at the office of a transfer agent designated by the Company for such
purpose with respect to any series of Debt Securities. If a Prospectus
Supplement refers to any transfer agent initially designated by the Company
with respect to any series of Debt Securities, the Company may at any time
rescind the designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, except that the Company
will be required to maintain a transfer agent in each Place of Payment for such
series.
The Company is not required to issue, register the transfer of or
exchange Debt Securities of any series for the 15-day period prior to the
mailing of a notice of redemption and, with respect to any Debt Securities
called for redemption in whole or in part (except for the unredeemed portion of
any Debt Securities being redeemed in part), following such mailing.
PAYMENT AND PAYING AGENTS. Unless otherwise indicated in an
applicable Prospectus Supplement, payment of principal of (and premium, if any)
and interest, if any, on Debt Securities will be made (i) by check mailed or
delivered to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account (with a
bank located inside the United States) maintained by the Person entitled
thereto. Unless otherwise indicated in an applicable Prospectus Supplement,
payment of any installment of interest on any Debt Security will be made to the
Person in whose name such Debt Security is registered at the close of business
on the Regular Record Date for such interest payment.
All moneys paid by the Company to the Trustee or a Paying Agent for
the payment of principal of (and premium, if any) and interest, if any, on any
Debt Security which remains unclaimed at the end of two
- 11 -
<PAGE> 14
years after such principal, premium or interest shall have become due and
payable will be repaid to the Company and the holder of such Debt Security will
thereafter look only to the Company for payment thereof.
CONSOLIDATION, MERGER AND SALE OF ASSETS. Under each of the
Indentures, the Company may not consolidate with or merge into any other entity
or sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to any entity,
unless: (1) either (a) the Company shall be the continuing corporation or (b)
the entity (if other than the Company) formed by such consolidation or into
which the Company is merged or the entity that acquires, by sale, assignment,
conveyance, transfer, lease or disposition, all or substantially all of the
properties and assets of the Company as an entirety shall be a corporation,
partnership or trust organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia, and shall
expressly assume by a supplemental indenture, the due and punctual payment of
the principal of and premium, if any, and interest on all the Debt Securities
and the performance and observance of every covenant of the Indenture on the
part of the Company to be performed or observed; (2) immediately thereafter, no
Event of Default (and no event that, after notice or lapse of time, or both,
would become an Event of Default) shall have occurred and be continuing; and
(3) certain other conditions, if any, are met, as are described in the
Prospectus Supplement relating to the Debt Securities being offered thereby.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in the immediately preceding paragraphs in
which the Company is not the continuing corporation, the successor entity
formed or remaining would be substituted for the Company and the Company would
be discharged from all obligations and covenants under the Indenture and the
Debt Securities.
EVENTS OF DEFAULT. The following events are defined in each of the
Indentures as "Events of Default" with respect to a series of Debt Securities:
(i) default in the payment of any installment of interest on any Debt
Securities in such series for 30 days after becoming due; (ii) default in the
payment of the principal of (or premium, if any, on) any Debt Securities in
such series when due; (iii) default in the performance of any other covenant
applicable to such series contained in the Debt Securities or the Indenture for
a period of 60 days after written notice of such failure, requiring the Company
to remedy the same, shall have been given to the Company by the Trustee or to
the Company and the Trustee by the holders of 25% in aggregate principal amount
of such series of Debt Securities then Outstanding; (iv) default shall have
occurred under any other series of Debt Securities or any agreements,
indentures or instruments under which the Company then has outstanding
Indebtedness in excess of $10 million in the aggregate and, if not already
matured in accordance with its terms, such Indebtedness shall have been
accelerated and such acceleration shall not have been rescinded or annulled
within ten days after notice thereof shall have been given to the Company by
the Trustee or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of such series of Debt Securities then Outstanding,
provided, that if, prior to the entry of judgment in favor of the Trustee, such
default under such indenture or instrument shall be remedied or cured by the
Company, or waived by the holders of such Indebtedness, then the Event of
Default under such Indenture shall be deemed likewise to have been remedied,
cured or waived and provided, further, that if such default results from an
action of the United States government or a foreign government which prevents
the Company from performing its obligations under such agreement, indenture or
instrument, the occurrence of such default will not be an Event of Default
under such Indenture; (v) one or more judgments, orders or decrees for the
payment of money in excess of $10 million, either individually or in the
aggregate, shall be entered against the Company and shall not be discharged,
there shall have been a period of 60 days during which a stay of enforcement of
such judgment or order, by reason of an appeal or otherwise, shall not be in
effect and there shall have been given written notice of the default to the
Company by the Trustee or to the Company and the Trustee by the holders of 25%
in aggregate principal amount of such series of Debt Securities then
Outstanding; or (vi) certain events of bankruptcy, insolvency or reorganization
with respect to the Company shall have occurred. If an Event of Default shall
occur and be continuing with respect to a series of Debt Securities, either the
Trustee or the holders of at least 25% in principal amount of the Outstanding
Debt Securities of such series may declare the entire principal amount, or, in
the case of Discounted Securities, such lesser amount as may
- 12 -
<PAGE> 15
be provided for in such Discounted Securities, of all the Debt Securities of
such series to be immediately due and payable.
Under each of the Indentures, the Company is required to furnish the
Trustee annually a statement by certain officers of the Company to the effect
that to the best of their knowledge the Company is not in default in the
fulfillment of any of its obligations under the Indenture or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default.
Each of the Indentures provides that the Trustee shall, within 90 days
after the occurrence of a default with respect to a particular series of Debt
Securities, give the holders of the Debt Securities of such series notice of
such default known to it (the term default to mean the events specified above
without grace periods); provided that, except in the case of a default in the
payment of principal of (or premium, if any) or interest, if any, on any of the
Debt Securities of such series, the Trustee shall be protected in withholding
such notice if it in good faith determines the withholding of such notice is in
the interest of the holders of the Debt Securities of such series.
The holders of a majority in principal amount of a particular series
of Debt Securities Outstanding have the right, subject to certain limitations,
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee with respect to such series or exercising any
trust or power conferred on the Trustee, and to waive certain defaults. Each of
the Indentures provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs. Subject to such provisions, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at
the request of any of the holders of the Debt Securities unless they shall have
offered to the Debt Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request.
SATISFACTION AND DISCHARGE. Except as may otherwise be set forth in
the Prospectus Supplement relating to a series of Debt Securities, each of the
Indentures provides that the Company shall be discharged from its obligations
under the Debt Securities of such series (with certain exceptions) at any time
prior to the Stated Maturity or redemption thereof when (a) the Company has
deposited with the Trustee, in trust, sufficient funds to pay the principal of
(and premium, if any) and interest, if any, to Stated Maturity (or redemption)
on, the Debt Securities of such series, (b) the Company has paid all other sums
payable with respect to the Debt Securities of such series and (c) certain
other conditions are met. Upon such discharge, the holders of the Debt
Securities of such series shall no longer be entitled to the benefits of the
Indenture, except for certain rights, including registration of transfer and
exchange of the Debt Securities of such series and replacement of mutilated,
destroyed, lost or stolen Debt Securities, and shall look only to such
deposited funds.
Such discharge may be treated as a taxable exchange of the related
Debt Securities for an issue of obligations of the trust or a direct interest
in the cash and securities held in the trust. In that case, holders of such
Debt Securities would recognize gain or loss as if the trust obligations or the
cash or securities deposited, as the case may be, had actually been received by
them in exchange for their Debt Securities. Such holders thereafter might be
required to include in income a different amount than would be includable in
the absence of discharge. Prospective investors are urged to consult their own
tax advisors as to the specific consequences of discharge.
MODIFICATION AND WAIVER. Certain modifications and amendments (which,
generally, either benefit or do not affect the holders of Outstanding Debt
Securities) of each of the Indentures may be made by the Company and the
Trustee without the consent of holders of the Debt Securities. Other
modifications and amendments of each Indenture require the consent of the
holders of more than 40% in principal amount of the Outstanding Debt Securities
of each series issued under the Indenture affected by the modification or
- 13 -
<PAGE> 16
amendment; provided, however, that no such modification or amendment may,
without the consent of the holder of each Outstanding Debt Security affected
thereby, (a) change the Stated Maturity of the principal of, or any installment
of principal of or interest, if any, on any Debt Security, (b) reduce the
principal amount of (or premium, if any) or interest, if any, on any Debt
Security, (c) reduce the amount of principal of a Discounted Security payable
upon acceleration of the Maturity thereof, (d) change the Place of Payment, (e)
impair the right to institute suit for the enforcement of any payment on or
with respect to any Debt Security on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date) or (f) reduce the
percentage in principal amount of Outstanding Debt Securities of any series,
the consent of the holders of which is required for modification or amendment
of such Indenture or for waiver of compliance with certain provisions of such
Indenture or for waiver of certain defaults.
The holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
The holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the holders of all Debt
Securities of that series waive any past default under the Indenture with
respect to that series, except a default in the payment of the principal of (or
premium, if any) and interest, if any, on any Debt Security of that series or
in respect of a provision which under the Indenture cannot be modified or
amended without the consent of the holder of each Outstanding Debt Security of
that series affected.
NOTICES. Notices to holders of Debt Securities will be given by mail
to the addresses of such holders as they appear in the Security Register.
GOVERNING LAW. The Indentures and the Debt Securities are to be
governed by and construed in accordance with the laws of the State of New York.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior Debt Securities will be issued under the Senior Indenture and
will rank pari passu with all other unsecured and unsubordinated debt of the
Company.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
GENERAL. Subordinated Debt Securities will be issued under the
Subordinated Indenture and will rank pari passu with certain other subordinated
debt of the Company that may be outstanding from time to time and will rank
junior to all senior indebtedness of the Company (including any Senior Debt
Securities) that may be outstanding from time to time.
SUBORDINATION. The Indebtedness represented by the Subordinated Debt
Securities is subordinated in right of payment to the prior payment in full of
all Senior Indebtedness.
No payment or distribution shall be made on account of the principal
of or premium, if any, or interest on, or the purchase, redemption or other
acquisition of, the Subordinated Debt Securities in the event and during the
continuation of any default in the payment of any Senior Indebtedness beyond
any applicable grace period. Payments of principal, premium, if any, and
interest on, or redemption or other acquisition by the Company of, the
Subordinated Debt Securities may also be blocked in the event of other defaults
which allow acceleration of the maturity of any Senior Indebtedness.
The Subordinated Indenture will provide that in the event of any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith,
relative to the Company or its assets, or any liquidation, dissolution or other
winding up of the Company, whether voluntary or involuntary, or any assignment
for the benefit of creditors or other marshalling of assets or liabilities of
the Company, all Senior Indebtedness must be paid in full, or provision made
for such payment, before any payment or distribution (excluding certain
permitted equity or subordinated securities) is made on account of the
principal of or premium, if any, or interest on the Subordinated Debt
Securities.
- 14 -
<PAGE> 17
By reason of such subordination, in the event of liquidation or insolvency,
creditors of the Company who are holders of Senior Indebtedness may recover
more, ratably, than the holders of the Subordinated Debt Securities.
For purposes of the foregoing, Senior Indebtedness will be defined to
mean all Indebtedness of the Company and any accrued but unpaid interest on
such Indebtedness, unless in each case by the terms of the instrument creating
or evidencing such Indebtedness it is provided that such Indebtedness is not
senior in right of payment to the Subordinated Debt Securities or that such
Indebtedness is pari passu with or subordinate in right of payment to the
Subordinated Debt Securities; provided that Senior Indebtedness does not
include (i) the Company's 9 1/8% Subordinated Debentures due February 1, 1998,
10 1/4% Subordinated Debentures due August 1, 2005, 10 1/2% Subordinated
Debentures due August 1, 2004, 11 1/2% Subordinated Notes due June 1, 2001, 11
7/8% Subordinated Debentures due May 1, 2003 and 7% Convertible Subordinated
Debentures due March 28, 2001, (ii) any obligations of the Company to any of
its subsidiaries, or (iii) any obligations of the Company arising from
redeemable stock.
CONCERNING THE TRUSTEES. The Senior Debt Trustee, The Fifth Third
Bank, Cincinnati, Ohio, is a state banking association organized under the laws
of the State of Ohio. The Bank is a regional commercial bank offering a wide
range of banking services to individual and business customers. The
Subordinated Debt Trustee, Star Bank, National Association, Cincinnati, Ohio,
is a national banking association organized under the laws of the United States
of America.
DESCRIPTION OF EQUITY SECURITIES
Chiquita has 100,000,000 authorized shares of Capital Stock, par value
$.33 per share (the "Common Stock"), of which 48,511,853 shares were
outstanding on January 17, 1994. Chiquita has authorized 10,000,000 shares of
Non-Voting Cumulative Preferred Stock, $1.00 par value per share (the
"Preferred Stock"); 46,028 shares of voting $3.00 Cumulative Preferred Stock,
without par value (the "$3.00 Preferred"); and 4,000,000 shares of Cumulative
Preference Stock, without par value (the "Cumulative Preference Stock"), of
which 2,568,096 shares have been designated $1.20 Cumulative Convertible
Preference Stock, Series A, none of which is currently outstanding, 75,813
shares have been designated $3.20 Cumulative Convertible Preference Stock,
Series B, none of which is currently outstanding, and 1,000,000 shares have
been designated Mandatorily Exchangeable Cumulative Preference Stock, Series C,
648,310 shares of which are currently outstanding. Each of the Preferred Stock
and the Cumulative Preference Stock may be issued in one or more series having
such designated preferences and rights, qualifications and limitations as the
Board of Directors may from time to time determine without requiring any vote
of the shareholders; however, the terms of the designated series of Cumulative
Preference Stock and of the $3.00 Preferred are fixed and, should they be
reissued, would have such terms unless the Company's shareholders amend the
Restated Certificate of Incorporation to delete such terms and designations.
The issuance of preferred or preference stock by the Board of
Directors could be utilized, under certain circumstances, as a method of
preventing a takeover of Chiquita. There are no other provisions in the
Company's Restated Certificate of Incorporation or By-Laws that would have an
effect of delaying, deferring or preventing a change in control of Chiquita.
Various debt instruments of the Company restrict, among other things,
dividends and other distributions on, and repurchases or redemptions of, the
Company's capital stock. At September 30, 1993, these restrictions would have
allowed the payment of approximately $90 million for dividends and other
corporate distributions, redemptions or repurchases. The ability of the
Company to pay dividends when, as and if declared by the Board of Directors,
may be subject to restrictions contained in any future debt agreements and to
limitations contained in future series or classes of preferred or preference
shares and is subject to the legal availability of funds.
- 15 -
<PAGE> 18
DESCRIPTION OF COMMON STOCK
Chiquita has 100,000,000 authorized shares of Common Stock, of which
48,511,853 were outstanding on January 17, 1994.
Holders of Common Stock are entitled to one vote per share on the
election of directors and all other matters submitted to a vote of
shareholders. Shares of Common Stock do not have cumulative voting rights.
Holders of Common Stock are entitled to receive dividends when, as and
if declared by the Board of Directors, out of funds legally available therefor;
provided, however, that all dividends on any preferred stock and preference
stock which may be issued in the future must be fully paid or declared and set
apart before any dividends can be paid or declared and set apart with respect
to the Common Stock.
Upon liquidation, dissolution or winding-up of Chiquita, the holders
of the Common Stock are entitled to share ratably in the assets of Chiquita
remaining after the payment of its obligations and liabilities and after
payment due the holders of Chiquita's preferred stock and preference stock.
Holders of Common Stock have no preemptive or other rights to
subscribe for or purchase additional securities of Chiquita. All outstanding
shares of Common Stock are fully paid and nonassessable.
DESCRIPTION OF PREFERRED STOCK
The Board of Directors of the Company may provide for the issuance of
up to 10,000,000 shares of Preferred Stock in one or more series. The rights,
preferences, privileges and restrictions, including dividend rights, conversion
rights, terms of redemption and liquidation preferences, of the Preferred Stock
of each series will be fixed or designated by the Board of Directors without
any further vote or action by the Company's shareholders. Upon issuance after
full payment of the purchase price therefor, shares of Preferred Stock offered
hereby will be fully paid and nonassessable. The description of the terms of a
particular series of Preferred Stock which will be set forth in a Prospectus
Supplement does not purport to be complete and is qualified in its entirety by
reference to the Restated Certificate of Incorporation of the Company and the
Certificate of Amendment thereto which will be filed with the Secretary of
State of New Jersey to set forth the terms and designations of the particular
series of Preferred Stock.
The specific terms of a particular series of Preferred Stock offered
hereby will be described in a Prospectus Supplement relating to such series and
will include, without limitation, the following:
(i) The maximum number of shares to constitute the series
and the distinctive designation thereof;
(ii) The annual dividend rate, if any, on shares of the
series, whether such rate is fixed or variable or both, the date or
dates from which dividends will begin to accrue or accumulate and
whether dividends will be cumulative;
(iii) Whether the shares of the series will be redeemable
and, if so, the price at and the terms and conditions on which the
shares of the series may be redeemed, including the time during which
shares of the series may be redeemed and any accumulated dividends
thereon that the holders of shares of the series shall be entitled to
receive upon the redemption thereof;
(iv) The liquidation preference, if any, applicable to shares
of the series;
(v) Whether the shares of the series will be subject to
operation of a retirement or sinking fund and, if so, the extent and
manner in which any such fund shall be applied to the purchase or
- 16 -
<PAGE> 19
redemption of the shares of the series for retirement or for other
corporate purposes, and the terms and provisions relating to the
operation of such fund;
(vi) The terms and conditions, if any, on which the shares of
the series shall be convertible into, or exchangeable for, any other
debt or equity securities;
(vii) Special voting rights, if any, of any series; and
(viii) Any other preferences and relative, participating,
optional or other special rights or qualifications, limitations or
restrictions thereof.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters or
dealers; (ii) through agents; (iii) directly to one or more institutional
purchasers; or (iv) through a combination of any such methods of sale. The
Prospectus Supplement with respect to the Securities offered thereby will set
forth the terms of the offering of such Securities, including the name or names
of any underwriters, dealers or agents, the purchase price of such Securities
and the proceeds to the Company from such sale, any underwriting discounts and
other items constituting compensation to underwriters, dealers or agents, any
initial public offering price, any discounts or concessions allowed or
reallowed or paid by underwriters or dealers to other dealers and any
securities exchanges on which such Securities may be listed. Only underwriters
so named in the Prospectus Supplement are deemed to be underwriters in
connection with the Securities offered thereby.
If underwriters or dealers are used in the sale, the Securities will
be acquired by the underwriters or dealers for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Securities may be offered to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. Unless otherwise set
forth in the Prospectus Supplement, the obligations of the underwriters to
purchase such Securities will be subject to certain conditions precedent, and
the underwriters will be obligated to purchase all of the Securities offered by
the Prospectus Supplement if any are purchased. Any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the
offering and sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent (or the method by which such commissions can be determined) will be set
forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement any such agent will be acting on a best efforts basis for
the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters, dealers or other persons acting as the Company's agents
to solicit offers by certain specified institutions to purchase Securities from
the Company at the public offering price set forth in the Prospectus Supplement
pursuant to contracts providing for payment and delivery on a specified date in
the future. Institutional investors to which such offers may be made, when
authorized, include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and such
other institutions as may be approved by the Company. The obligations of any
such purchasers pursuant to such delayed delivery and payment arrangements will
not be subject to any conditions except that such purchase shall not at the
time of delivery be prohibited under the laws of any jurisdiction to which such
purchaser is subject. The Prospectus Supplement will set forth the commission
payable for solicitation of such contracts. The underwriters and other persons
soliciting such contracts will have no responsibility for the validity or
performance of any such contracts.
- 17 -
<PAGE> 20
Underwriters, dealers and agents may be entitled under agreements
entered into with the Company to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution by the Company with respect to payments they may be required to
make in respect thereof. Underwriters, dealers and agents may be customers of,
engage in transactions with, or perform services for the Company in the
ordinary course of business.
Securities other than the Company's Common Stock may or may not be
listed on a national securities exchange. No assurances can be given that
there will be a market for such Securities.
LEGAL MATTERS
The legality of the Securities and certain other legal matters in
connection with the offering will be passed upon for Chiquita by Charles R.
Morgan, Vice President, General Counsel and Secretary of the Company. Certain
legal matters will be passed upon for any underwriter or agent by Simpson
Thacher & Bartlett (a partnership which includes professional corporations),
New York, New York. Charles R. Morgan presently holds shares of Chiquita's
Common Stock and options to purchase shares of Chiquita's Common Stock.
EXPERTS
The Consolidated Financial Statements incorporated by reference in
this Prospectus and the Prospectus Supplement (other than those for interim
periods) have been audited by Ernst & Young, independent auditors, as stated in
their opinion (which is incorporated by reference in the Company's Annual
Report on Form 10-K for the year ended December 31, 1992), and have been so
included in reliance upon such opinion given upon the authority of that firm as
experts in accounting and auditing.
- 18 -
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be incurred
by Chiquita in connection with the issuance and distribution of the securities
being registered hereby:
<TABLE>
<S> <C>
SEC registration fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $103,448
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000
Blue Sky fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,000
Printing and engraving expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,000
Trustees' fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,000
Rating agency fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130,000
Marketing expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .350,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,552
--------
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $750,000
========
</TABLE>
All the above expenses other than the SEC registration fee are
estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of Chiquita's By-Laws provides directors and officers with
the right to indemnification and advancement of expenses to the fullest extent
not prohibited by the New Jersey Business Corporation Act. Directors and
officers of Chiquita are indemnified generally against expenses and liabilities
incurred in connection with any proceedings, including proceedings by or on
behalf of Chiquita, relating to their service to or at the request of Chiquita.
However, no indemnification may be made if a final adjudication establishes
that a person's acts or omissions (a) breached the person's duty of loyalty to
Chiquita or its shareholders, (b) were not in good faith or involved a knowing
violation of law, or (c) resulted in receipt by the person of an improper
personal benefit. Section VIII of Chiquita's Certificate of Incorporation
(Restated) also limits the liability of Chiquita's directors and officers, to
the fullest extent permitted by the New Jersey Business Corporation Act, to
Chiquita or its shareholders for monetary damages for breach of any duty,
except in the situations set forth in (a) through (c) above.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration
Statement:
Exhibit No.
1 Form of Underwriting Agreement Basic Provisions (with forms of Terms
Agreement attached)
4(a) Restated Certificate of Incorporation of the Company, as amended
4(b) By-Laws of the Company, as amended
4(c) Form of Indenture between the Company and The Fifth Third Bank,
as Senior Debt Trustee, relating to the Senior Debt Securities
4(d) Form of Indenture between the Company and Star Bank, National
Association, as Subordinated Debt Trustee, relating to the
Subordinated Debt Securities
5 Opinion of counsel
II-1
<PAGE> 22
12 Statement of computation of ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends
23(a) Consent of Independent Auditors
23(b) Consent of Counsel (included in Exhibit 5)
24 Powers of Attorney
25(a) Statement of Eligibility on Form T-1 of The Fifth Third Bank, as
Senior Debt Trustee, under the Trust Indenture Act of 1939, as
amended, relating to the Senior Indenture
25(b) Statement of Eligibility on Form T-1 of Star Bank, N.A., as
Subordinated Debt Trustee, under the Trust Indenture Act of 1939,
as amended, relating to the Subordinated Indenture
The Company will furnish to the Commission upon request its long-term debt
instruments not listed in this Item.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
*(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
*(b) That for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-2
<PAGE> 23
*(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
*(i) (1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
*(j) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act ("Act") in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act.
- --------------------------
*Paragraph references correspond to those of Item 512 of Regulation S-K.
II-3
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Cincinnati, Ohio, as of the 21st day of January, 1994.
CHIQUITA BRANDS INTERNATIONAL, INC.
By: /s/ Carl H. Lindner
-------------------
Carl H. Lindner
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 21st day of January, 1994.
Signature Title
/s/ Carl H. Lindner Chairman of the Board and
- -------------------- Chief Executive Officer
Carl H. Lindner
/s/ Keith E. Lindner Director, President and
- -------------------- Chief Operating Officer
Keith E. Lindner
/s/ S. Craig Lindner Director
- --------------------
S. Craig Lindner
- -------------------- Director
Hugh F. Culverhouse
/s/ Fred J. Runk Director, Vice President and
- -------------------- Chief Financial Officer
Fred J. Runk
- -------------------- Director
Jean H. Sisco
/s/ Ronald F. Walker Director
- --------------------
Ronald F. Walker
/s/ William A. Tsacalis Vice President and Controller
- ----------------------- (Chief Accounting Officer)
William A. Tsacalis
II-4
<PAGE> 25
INDEX TO EXHIBITS
Exhibit
No. Description
* 1 Form of Underwriting Agreement Basic Provisions (with forms of Terms
Agreement attached)
** 4(a) Restated Certificate of Incorporation of the
Company, as amended
** 4(b) By-Laws of the Company, as amended
4(c) Form of Indenture between the Company and The Fifth Third Bank, as
Senior Debt Trustee, relating to the Senior Debt Securities
4(d) Form of Indenture between the Company and Star Bank, N.A., as
Subordinated Debt Trustee, relating to the Subordinated Debt
Securities
5 Opinion of counsel
12 Statement of computation of ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends
23(a) Consent of Independent Auditors
23(b) Consent of Counsel (included in Exhibit 5)
24 Powers of Attorney
25(a) Statement of Eligibility on Form T-1 of The Fifth Third Bank, as
Senior Debt Trustee, under the Trust Indenture Act of 1939, as
amended, relating to the Senior Indenture
25(b) Statement of Eligibility on Form T-1 of Star Bank, N.A., as
Subordinated Debt Trustee, under the Trust Indenture Act of 1939,
as amended, relating to the Subordinated Indenture
* To be filed by amendment.
** Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1992.
<PAGE> 1
Exhibit 4(c)
=================================================================
CHIQUITA BRANDS INTERNATIONAL, INC.
and
THE FIFTH THIRD BANK,
Trustee
-------------
INDENTURE
Dated as of ___________, 1994
-------------
Senior Debt Securities
=================================================================
<PAGE> 2
CHIQUITA BRANDS INTERNATIONAL, INC.
Reconciliation and tie showing the location in the Indenture
dated as of ___________, 1994 of the provisions inserted pursuant to Sections
310 to 318(a), inclusive, of the Trust Indenture Act of 1939.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610(d)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
Section 316 (a)(1)(A) 502 and 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certificate of a Firm of Independent Public
Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Security Register and Debt Security
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Discounted Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Non-Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 114. Immunity of Incorporators, Stockholders,
Officers and Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
DEBT SECURITY FORM . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Form of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 301. Title; Payment and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Debt Securities and Exchange of
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . 24
SECTION 401. Satisfaction and Discharge of Debt
Securities of any Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 403. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 505. Trustee May Enforce Claims Without
Possession of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 508. Unconditional Right of Holders to Receive
Principal (and Premium, if any) and
Interest, if any . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 604. Not Responsible for Recitals or Issuance
of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 605. May Hold Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 609. Corporate Trustee Required, Different
Trustees for Different Series;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 614. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SEVEN
HOLDERS' REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . 48
SECTION 701. Preservation of Information; Company to
Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 702. Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER . . . . . . . . . . . . . . . . 49
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 802. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . 50
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 902. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 906. Reference in Debt Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1001. Payment of Principal (and Premium, if
any) and Interest, if any . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1003. Money for Debt Securities Payments to Be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1004. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1006. Statements as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1007. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . 59
SECTION 1101. Applicability of This Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1103. Selection by Trustee of Debt Securities
to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1106. Debt Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1107. Debt Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1201. Applicability of This Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1202. Satisfaction of Sinking Fund Payments
With Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1203. Redemption of Debt Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
- v -
<PAGE> 8
This is an INDENTURE dated as of ___________, 1994, between
Chiquita Brands International, Inc., a corporation duly incorporated and
existing under the laws of New Jersey and having its principal office at 250
East Fifth Street, Cincinnati, Ohio (hereinafter called the "Company"), and The
Fifth Third Bank, an Ohio banking corporation, as Trustee (hereinafter called
the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes securities (hereinafter called the "Debt Securities")
evidencing its unsecured indebtedness and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Debt Securities, unlimited as to principal amount, to have such titles, to bear
such rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done, and the Company
proposes to do all things necessary to make the Debt Securities, when executed
by the Company and authenticated and delivered by the Trustee hereunder and
duly issued by the Company, the valid obligations of the Company as hereinafter
provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Debt Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Debt
Securities or any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and all Debt Securities
issued hereunder, except as otherwise expressly provided or unless the context
otherwise requires:
<PAGE> 9
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such generally accepted
accounting principles as in effect and as implemented by the Company
on the date of this Indenture; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three and Article
Six, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control", when used with respect to any specified
Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to
authenticate and deliver Debt Securities on behalf of the Trustee for
the Debt Securities of any series pursuant to Section 614.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of that board or any director
or directors and/or officer or officers of the Company to whom that
board or committee shall have duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such
<PAGE> 10
certification, or (2) a certificate signed by the director or
directors or officer or officers to whom the board of directors of the
Company shall have duly delegated its authority, and delivered to the
Trustee for the Debt Securities of any series.
"Business Day", when used with respect to any particular Place
of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law to close, and shall
otherwise mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions, at the place where
any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"Capital Stock" means any and all shares of the capital stock,
par value $.33 per share, of the Company and of any class or series of
preferred or preference stock of the Company, whether now outstanding
or issued after the date of this Indenture.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying
the right to use) real or personal property that is required to be
classified and accounted for as a capital lease obligation under
generally accepted accounting principles consistently applied, and,
for the purposes of this Indenture, the amount of such obligation at
any date shall be the capitalized amount thereof at such date,
determined in accordance with such principles.
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by any firm of independent public
accountants of recognized standing selected by the Company. The term
"independent" when used with respect to any specified firm of public
accountants means such a firm which (1) is in fact independent, (2)
does not have any direct financial interest or any material indirect
financial interest in the Company or in any Affiliate of the Company,
and (3) is not connected with the Company or any Affiliate of the
Company as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions, but such
firm may be the regular auditors employed by the Company. Whenever it
is herein provided that any Certificate of a Firm of Independent
Public Accountants shall be furnished to the Trustee for Debt
Securities of any series, such Certificate shall state that the signer
has read this definition and that the signer is independent within the
meaning hereof.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations thereunder.
<PAGE> 11
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if
at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such
date.
"Common Stock" means the capital stock, par value $.33 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by (1) the
Chairman of the Board, a Vice Chairman of the Board, the President or
a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, or (2) by any two Persons designated in a
Company Order previously delivered to the Trustee for the Debt
Securities of any series by any two of the foregoing officers and
delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office of the Trustee for
Debt Securities of any series at which at any particular time its
corporate trust business shall be principally administered, which
office of The Fifth Third Bank, at the date of the execution of this
Indenture, is located at 38 Fountain Square Plaza, Cincinnati, Ohio
45263.
"corporation" includes corporations, associations, joint-stock
companies and business trusts.
"Debt Securities" means securities evidencing unsecured
indebtedness of the Company authenticated and delivered under this
Indenture.
"Debt Security Register" and "Debt Security Registrar" have
the respective meanings specified in Section 305.
"Defaulted Interest" has the meaning specified in Section 307.
"Discounted Debt Security" means any Debt Security which
provides for an amount (excluding any amounts attributable to accrued
but unpaid interest thereon) less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
<PAGE> 12
"Dollars" and the sign "$" mean the currency of the United
States of America as at the time of payment is legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder", when used with respect to any Debt Security, means
the Person in whose name a Debt Security is registered in the Debt
Security Register.
"Indebtedness" means (a) any liability of any Person (1) for
borrowed money, or under any reimbursement obligation relating to a
letter of credit (other than letters of credit obtained in the
ordinary course of business), or (2) evidenced by a bond, note,
debenture or similar instrument (including a purchase money
obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services incurred
in connection with capital expenditures (other than accounts payable
or other indebtedness to trade creditors arising in the ordinary
course of business), or (3) for the payment of money relating to a
Capitalized Lease Obligation; (b) any liability of others described in
the preceding clause (a) that the Person has guaranteed or that is
otherwise its legal liability; and (c) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above.
"Indenture" means this instrument as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and
shall include the terms of a particular series of Debt Securities
established as contemplated by Section 301.
"interest", when used with respect to a Discounted Debt
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Debt
Security, means the Stated Maturity of an installment of interest on
such Debt Security.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement, charge or other
security interest or encumbrance of any kind.
"Maturity", when used with respect to any Debt Security, means
the date on which the principal of that Debt Security becomes due and
payable as therein or herein provided, whether
<PAGE> 13
at the Stated Maturity or by declaration of acceleration, call for
redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or
a Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or a word or words added before
or after the title "Vice President"), and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee for the Debt Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company or may be other
counsel satisfactory to the Trustee for the Debt Securities of any
series.
"Outstanding", when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities
theretofore authenticated and delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the
Trustee for such Debt Securities or delivered to such Trustee
for cancellation;
(2) Debt Securities or portions thereof for whose
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee for such Debt
Securities or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders
of such Debt Securities (including Debt Securities with
respect to which the Company has effected satisfaction and
discharge as provided in Article Four or covenant defeasance
as provided in Section 1015, except to the extent provided in
such Article or Section); provided, however, that, if such
Debt Securities or portions thereof are to be redeemed, notice
of such redemption has been duly given pursuant to this
Indenture, or provision therefor satisfactory to such Trustee
has been made; and
(3) Debt Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Debt Securities in respect
of which there shall have been presented proof satisfactory to
the Trustee for such Debt Securities that any such Debt
Securities are held by bona
<PAGE> 14
fide purchasers in whose hands the Debt Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (a) Debt Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee for such
Debt Securities shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Debt
Securities which such Trustee knows to be so owned shall be so
disregarded, provided, that Debt Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of such Trustee the pledgee's right so
to act with respect to such Debt Securities and that the pledgee is
not the Company or any Affiliate of the Company and (b) the principal
amount of a Discounted Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration pursuant to Section
502.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest, if any, on any
Debt Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Debt
Securities of any particular series, means the place or places where
the principal of (and premium, if any) and interest, if any, on the
Debt Securities of that series are payable, as contemplated by Section
301.
"Predecessor Debt Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the
same debt as that evidenced by that particular Debt Security, and, for
the purposes of this definition, any Debt Security authenticated and
delivered under Section 306 in lieu of a mutilated, destroyed, lost or
stolen Debt Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Debt Security.
"Redemption Date", when used with respect to any Debt Security
to be redeemed in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
<PAGE> 15
"Redemption Price", when used with respect to any Debt
Security to be redeemed, means an amount equal to the principal
amount thereof (and premium, if any, thereon) together with accrued
interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Debt Securities of any series, means the date, if
any, specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee
for any series of Debt Securities, means the chairman or vice chairman
of the board of directors, the chairman or vice chairman of the
executive committee of the board of directors, the president, any vice
president (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other
officer of such Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
A "series" of Debt Securities means all Debt Securities
denoted as part of the same series authorized by or pursuant to a
particular Board Resolution.
"Special Record Date" for the payment of any Defaulted
Interest on the Debt Securities of any series means a date fixed by
the Trustee for such series pursuant to Section 307.
"Stated Maturity", when used with respect to any security or
any installment of principal thereof or interest thereon, means the
date specified in such security representing such installment of
interest as the fixed date on which the principal of such security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a
majority of all outstanding stock having ordinary voting power in the
election of directors of such corporation is at the time, directly or
indirectly, owned by the Company or by one or more Subsidiaries or by
the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article
Six hereof, shall also include its successors and assigns as Trustee
hereunder. If there shall
<PAGE> 16
be at one time more than one Trustee hereunder, "Trustee" shall mean
each such Trustee and shall apply to each such Trustee only with
respect to those series of Debt Securities with respect to which it is
serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was executed, except
as provided in Section 905 hereof and except that any rules and
regulations subsequently prescribed by the Commission pursuant to
Section 314(a) of that Act shall apply.
"U.S. Government Obligations" means securities which are (i)
direct obligations of the government of the United States or (ii)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government of the United States, the
payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such
government and are not callable or redeemable at the option of the
issuer thereof.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, possessions
and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted
Debt Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
for any series of Debt Securities to take any action under any provision of
this Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if
appropriate, a Certificate of a Firm of Independent Public Accountants;
provided, that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
<PAGE> 17
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to matters upon which
his certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided, such
action shall
<PAGE> 18
become effective when such instrument or instruments are delivered to the
Trustee for the appropriate series of Debt Securities and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee for the appropriate series of Debt Securities and the Company and
any agent of such Trustee or the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or association
or a member of a partnership, or an official of a public or governmental body,
on behalf of such corporation, association, partnership or public or
governmental body or by a fiduciary, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee for the appropriate
series of Debt Securities deems sufficient.
(d) The principal amount and serial numbers of Debt
Securities held by any Person, and the date of holding the same, shall be
proved by the Debt Security Register.
(e) In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture, the
principal amount of a Discounted Debt Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of the principal thereof that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 at the time the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee for such Debt
Securities.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Debt Security shall bind
every future Holder of the same Debt Security and the Holder of every Debt
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the
<PAGE> 19
Trustee for such Debt Securities, the Debt Security Registrar, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Debt Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Debt Securities by any Holder
or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with such Trustee at
its Corporate Trust Office, Attention: Corporate Trustee
Administration Department, or
(2) the Company by such Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as provided in
paragraphs (3), (4) and (5) of Section 501) if in writing and mailed,
first class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in
writing to such Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders if in writing and mailed, first class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Debt Security Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed in the manner
prescribed by this Indenture shall be deemed to have been given whether or not
received by any particular Holder. In case by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as shall be made
with the approval of the Trustee for such Debt Securities shall constitute a
sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee for
such Debt
<PAGE> 20
Securities, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
the duties imposed by any of Sections 310 through 317, inclusive, of the Trust
Indenture Act through the operation of Section 318(c) thereof, such imposed
duties shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In any case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, expressed
or implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Debt Security Registrar and their successors hereunder and the
Holders of Debt Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Non-Business Day.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of a Debt Security of any particular series shall not be a
Business Day at any Place of Payment with respect to Debt Securities of that
series, then (notwithstanding any other provision of this Indenture or of the
Debt Securities) payment of principal of (and premium, if any) and interest, if
any, with respect to such Debt Security need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and
<PAGE> 21
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
SECTION 114. Immunity of Incorporators, Stockholders,
Officers and Directors.
No recourse shall be had for the payment of the principal of
(and premium, if any), or the interest, if any, on any Debt Security of any
series, or for any claim based thereon, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment of penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the Debt Securities
of each series are solely corporate obligations, and that no personal liability
whatever shall attach to, or is incurred by, any incorporator, stockholder,
officer or director, past, present or future, of the Company or of any
successor corporation, either directly or indirectly through the Company or any
successor corporation, because of the incurring of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Debt Securities of any
series, or to be implied herefrom or therefrom; and that all such personal
liability is hereby expressly released and waived as a condition of, and as
part of the consideration for, the execution of this Indenture and the issuance
of the Debt Securities of each series.
ARTICLE TWO
DEBT SECURITY FORM
SECTION 201. Form of Debt Securities.
The Debt Securities of each series shall be in such fully
registered form as shall be established by or pursuant to a Board Resolution,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture or any indenture supplemental
hereto and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
any law, with any rule or regulation made pursuant thereto, with any rules of
any securities exchange or to conform to usage, as may, consistent herewith, be
determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
Prior to the delivery of a Debt Security of any series in any
such form to the Trustee for the Debt Securities of such series
<PAGE> 22
for authentication, the Company shall deliver to such Trustee the following:
(1) The Board Resolution by or pursuant to which such form of
Debt Security has been approved;
(2) An Officers' Certificate dated the date such Certificate
is delivered to such Trustee stating that all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of Debt Securities in such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in
such form, when (a) completed by appropriate insertions and executed
and delivered by the Company to such Trustee for authentication in
accordance with this Indenture, (b) authenticated and delivered by
such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time
to time by the Board of Directors and (c) sold in the manner specified
in such Opinion of Counsel, will be the legal, valid and binding
obligations of the Company, subject to applicable bankruptcy,
reorganization, insolvency and other similar laws generally affecting
creditors' rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect
the rights of Holders of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as evidenced by
their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Debt Securities shall
be in substantially the following form:
"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
---------------,
as Trustee
By
----------------------------
Authorized Officer"
<PAGE> 23
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Title; Payment and Terms.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
The Debt Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series, each
of which shall be issued pursuant to a Board Resolution. With respect to any
particular series of Debt Securities, the Board Resolution relating thereto
shall specify:
(1) the title of the Debt Securities of that series (which
shall distinguish the Debt Securities of that series from all other
series of Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of that series pursuant to Section 304,
305, 306, 906 or 1107 or otherwise pursuant to any covenant permitting
the purchase of a portion of the Debt Securities of that series);
(3) the date or dates (or manner of determining the same) on
which the principal of the Debt Securities of that series is payable
(which, if so provided in such Board Resolution, may be determined by
the Company from time to time and set forth in the Debt Securities of
the series issued from time to time);
(4) the rate or rates (or the manner of calculation thereof)
at which the Debt Securities of that series shall bear interest (if
any), the date or dates from which such interest shall accrue (which,
in either case or both, if so provided in such Board Resolution, may
be determined by the Company from time to time and set forth in the
Debt Securities of the series issued from time to time), the Interest
Payment Dates on which such interest shall be payable (or manner of
determining the same) and the Regular Record Date for the interest
payable on any Debt Securities on any Interest Payment Date;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest, if
any, on Debt Securities of that series shall be payable, any Debt
Securities of that series may be surrendered for registration of
transfer, any Debt Securities of that
<PAGE> 24
series may be surrendered for exchange, and notices and demands to or
upon the Company in respect of the Debt Securities of that series and
this Indenture may be served;
(6) the period or periods within which, the price or prices
at which and the terms and conditions upon which Debt Securities of
that series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Debt Securities of that series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Debt Securities of that series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) the denominations in which any Debt Securities of that
series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof;
(9) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of that series which shall
be payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(10) any addition to, or modification or deletion of, any
Events of Default or covenants of the Company with respect to the Debt
Securities of that series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(11) if a Person other than The Fifth Third Bank is to act as
Trustee for the Debt Securities of that series, the name and location
of the Corporate Trust Office of such Trustee;
(12) if other than as set forth in Section 401, provisions
for the satisfaction and discharge of this Indenture with respect to
the Debt Securities of that series;
(13) any provision relating to the defeasance of the
obligations of the Company in connection with the Debt Securities of
that series;
(14) any provisions regarding exchangeability or conversion
of the Debt Securities of that series; and
(15) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any particular series shall be
substantially identical except as to denomination, rate of interest, Stated
Maturity and the date from which interest, if any,
<PAGE> 25
shall accrue, and except as may otherwise be provided in or pursuant to such
Board Resolution relating thereto. The terms of such Debt Securities, as set
forth above, may be determined by the Company from time to time if so provided
in or established pursuant to the authority granted in a Board Resolution. All
Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.
SECTION 302. Denominations.
Unless otherwise provided with respect to any series of Debt
Securities as contemplated by Section 301, all Debt Securities of a series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Debt Securities shall be executed on behalf of the Company
by its Chairman of the Board, a Vice Chairman of the Board, or its President or
one of its Vice Presidents. The Debt Securities shall be so executed under the
corporate seal of the Company reproduced thereon and attested to by its
Secretary or any one of its Assistant Secretaries. The signature of any of
these officers on the Debt Securities may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities of any
series executed by the Company to the Trustee for the Debt Securities of such
series for authentication, together with a Company Order for the authentication
and delivery of such Debt Securities, and such Trustee, in accordance with the
Company Order, shall authenticate and deliver such Debt Securities. If all the
Debt Securities of any one series are not to be issued at one time and if a
Board Resolution relating to such Debt Securities shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities, including, without limitation, procedures with respect to
interest rate, Stated Maturity, date of issuance and date from which interest,
if any, shall accrue.
Notwithstanding any contrary provision herein, if all Debt
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Board Resolution, Officers' Certificate and
Opinion of Counsel otherwise required pursuant to Sections 102 and 201 at or
prior to the time of authentication of each Debt Security of such series if
such
<PAGE> 26
documents are delivered at or prior to the authentication upon original
issuance of the first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its
authentication.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debt Security a certificate of authentication substantially in the form
provided for herein manually executed by the Trustee for such Debt Security or
on its behalf pursuant to Section 614, and such certificate upon any Debt
Security shall be conclusive evidence, and the only evidence, that such Debt
Security has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Debt Securities and Exchange of
Debt Securities.
Pending the preparation of definitive Debt Securities of any
particular series, the Company may execute, and upon Company Order the Trustee
for the Debt Securities of such series shall authenticate and deliver, in the
manner specified in Section 303, temporary Debt Securities which are printed,
lithographed, typewritten, photocopied or otherwise produced, in any
denomination, with like terms and conditions as the definitive Debt Securities
of like series in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Debt Securities may determine, as evidenced by their execution
of such Debt Securities.
If temporary Debt Securities of any particular series are
issued, the Company will cause definitive Debt Securities of that series to be
prepared without unreasonable delay. After the preparation of such definitive
Debt Securities, the temporary Debt Securities of such series shall be
exchangeable for such definitive Debt Securities and of a like Stated Maturity
and with like terms and provisions upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt Securities of any particular
series, the Company shall execute and (in accordance with a Company Order
delivered at or prior to the authentication of the first definitive Debt
Security of such series) the Trustee for the Debt Securities of such series
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of authorized denominations of the same series and
of a like Stated Maturity and with like terms and provisions. Until exchanged
as hereinabove provided, the temporary Debt Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of the same series and with like terms and
conditions authenticated and delivered hereunder.
<PAGE> 27
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall keep or cause to be kept for the Debt
Securities of each series a register (the register maintained in such office
being herein sometimes referred to as the "Debt Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration, registration of transfer and exchange of Debt
Securities. The Securities Transfer Company is hereby initially appointed
"Debt Security Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt
Security of any particular series at the office or agency of the Company in a
Place of Payment for that series, the Company shall execute, and the Trustee
for the Debt Securities of each series shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Debt
Securities of any authorized denominations, and of a like Stated Maturity and
of a like series and aggregate principal amount and with like terms and
conditions.
Except as set forth below, at the option of the Holder, Debt
Securities of any particular series may be exchanged for other Debt Securities
of any authorized denominations, and of a like Stated Maturity and of a like
series and aggregate principal amount and with like terms and conditions, upon
surrender of the Debt Securities to be exchanged at such office or agency.
Whenever any Debt Securities are so surrendered for exchange, the Company shall
execute, and the Trustee for such Debt Securities shall authenticate and
deliver, the Debt Securities which the Holder making the exchange is entitled
to receive.
All Debt Securities issued upon any registration of transfer
or exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of
transfer or exchange.
Every Debt Security presented or surrendered for registration
of transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Debt
Securities, other than exchanges pursuant to Section 304, 906, 1013 or 1107 not
involving any transfer.
<PAGE> 28
The Company shall not be required (i) to issue, register the
transfer of or exchange Debt Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 1104 and ending at the close of business on the day of the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities.
If (i) any mutilated Debt Security is surrendered to the
Trustee for such Debt Security, or the Company and the Trustee for a Debt
Security receive evidence to their satisfaction of the destruction, loss or
theft of any Debt Security, and (ii) there is delivered to the Company and such
Trustee such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company or such Trustee that such Debt Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request such
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Debt Security or in exchange for such mutilated Debt Security, a new
Debt Security of the same series and in a like principal amount and of a like
Stated Maturity and with like terms and conditions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
(without surrender thereof except in the case of a mutilated Debt Security) if
the applicant for such payment shall furnish to the Company and the Trustee for
such Debt Security such security or indemnity as may be required by them to
save each of them harmless, and in case of destruction, loss or theft, evidence
satisfactory to the Company and such Trustee and any agent of either of them of
the destruction, loss or theft of such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee for such Debt
Security) connected therewith.
Every new Debt Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Debt Security or in exchange
for any mutilated Debt Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debt Security shall be at any
<PAGE> 29
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities of
the same series, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Interest on any Debt Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall, if so
provided in such Debt Security, be paid to the Person in whose name that Debt
Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Debt Securities
of any series, payment of interest may be made at the option of the Company by
check mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or by transfer to an account
maintained by the payee with a bank located inside the United States.
Any interest on any Debt Security of any particular series
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered Holder on the relevant Regular Record
Date by virtue of having been such Holder; and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debt Securities of that
series (or their respective Predecessor Debt Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee for the Debt
Securities of such series in writing of the amount of Defaulted
Interest proposed to be paid on each Debt Security of that series and
the date of the proposed payment, and at the same time the Company
shall deposit with such Trustee an amount of money (except as
otherwise specified pursuant to Section 301 for the Debt Securities of
such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to such Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause
<PAGE> 30
provided. Thereupon such Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall not be more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by such Trustee of
the notice of the proposed payment. Such Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Debt Securities
of that series at such Holder's address as it appears in the Debt
Security Register not less than 10 days prior to such Special Record
Date. Such Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at
least once in a newspaper published in the English language
customarily on each Business Day and of general circulation in New
York, New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Debt Securities of
that series (or their respective Predecessor Debt Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Debt Securities of any particular series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which the Debt Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice is given by the Company
to the Trustee for the Debt Securities of such series of the proposed
manner of payment pursuant to this clause, such manner of payment
shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Debt Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Debt
Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Debt Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Debt Security for registration
of transfer, the Company, the Trustee for such Debt Security and any agent of
the Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
307) interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and
<PAGE> 31
neither the Company, such Trustee nor any agent of the Company or such Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Debt Securities surrendered for payment, redemption,
registration of transfer or exchange, or delivered in satisfaction of any
sinking fund payment, shall, if surrendered to any Person other than the
Trustee for such Debt Securities, be delivered to such Trustee and shall be
promptly canceled by it. The Company may at any time deliver to the Trustee
for Debt Securities of a series for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by such Trustee. Notwithstanding any other provision of this
Indenture to the contrary, in the case of a series, all the Debt Securities of
which are not to be originally issued at one time, a Debt Security of such
series shall not be deemed to have been Outstanding at any time hereunder if
and to the extent that, subsequent to the authentication and delivery thereof,
such Debt Security is delivered to the Trustee for such Debt Security for
cancellation by the Company or any agent thereof upon the failure of the
original purchaser thereof to make payment therefor against delivery thereof,
and any Debt Security so delivered to such Trustee shall be promptly canceled
by it. No Debt Securities shall be authenticated in lieu of or in exchange for
any Debt Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Debt Securities held by the Trustee
for such Debt Securities shall be disposed of by such Trustee in accordance
with its standard procedures and a certificate of disposition evidencing such
disposition of Debt Securities shall be provided to the Company by such
Trustee.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Debt Securities of any particular series, interest on the Debt Securities
of each series shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Debt Securities of
any Series.
(a) The Company shall be deemed to have satisfied and
discharged the entire indebtedness on all the Debt Securities of any particular
series and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Company Request and at the expense of
the Company, shall
<PAGE> 32
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt
Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Debt Securities of such series for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in the last paragraph of Section 1003) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Debt Securities
of such series described in (A) above not theretofore so
delivered to the Trustee for the Debt Securities of such
series for cancellation:
(i) the Company has deposited or caused
to be deposited with such Trustee as trust funds in
trust an amount (except as otherwise specified
pursuant to Section 301 for the Debt Securities of
such series), sufficient to pay and discharge the
entire indebtedness on all such Outstanding Debt
Securities of such series for principal (and premium,
if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by Section
402, as the case may be; or
(ii) the Company has deposited or caused
to be deposited with such Trustee as obligations in
trust such amount of U.S. Government Obligations as
will as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain
income to accrue thereon (without consideration of
any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all
such Outstanding Debt Securities of such series for
unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date
as contemplated by Section 402, as the case may be;
or
(iii) the Company has deposited or caused
to be deposited with such Trustee in trust an amount
equal to the amount referred to in clause (i) or (ii)
in any combination;
<PAGE> 33
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Debt Securities of such series;
(3) the Company has delivered to such Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of the entire indebtedness on all Debt Securities of
such series have been complied with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date
of such deposit or are not to be called for redemption within one year
of the date of such deposit under arrangements satisfactory to such
Trustee as of the date of such deposit, then the Company shall have
given, not later than the date of such deposit, notice of such deposit
to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in this
Section 401 with respect to all the Debt Securities of any series, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 401(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be
Outstanding under clause (3) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law, (ii) from
any obligations under Sections 402(b), 607 and 610 and (iii) from any
obligations under Sections 305 and 306 (except that Debt Securities of such
series issued upon registration of transfer or exchange or in lieu of
mutilated, destroyed, lost or stolen Debt Securities shall not be obligations
of the Company) and Sections 701 and 1002; and provided, further, that in the
event a petition for relief under the Bankruptcy Act of 1978 or Title 11 of the
United States Code or a successor statute is filed and not discharged with
respect to the Company within 91 days after the deposit, the entire
indebtedness on all Debt Securities of such series shall not be discharged, and
in such event the Trustee shall return such deposited funds or obligations as
it is then holding to the Company upon Company Request.
SECTION 402. Application of Trust Money.
(a) All money and obligations deposited with the Trustee for
any series of Debt Securities pursuant to Section 401 shall be held irrevocably
in trust and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in
<PAGE> 34
accordance with the provisions of the Debt Securities, this Indenture and such
escrow trust agreement, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as such Trustee
may determine, to the Persons entitled thereto, of the principal of (and
premium, if any) and interest, if any, on the Debt Securities for the payment
of which such money and obligations have been deposited with such Trustee. If
Debt Securities of any series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for such series of Debt
Securities for the giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for
any series of Debt Securities against any tax, fee or other charge imposed on
or assessed against U.S. Government Obligations deposited pursuant to Section
401 or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is
payable by or on behalf of Holders. The obligation of the Company under this
Section 402(b) shall be deemed to be an obligation of the Company under Section
607(2).
(c) Anything in this Article Four to the contrary
notwithstanding, the Trustee for any series of Debt Securities shall deliver or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 401 which, as
expressed in a Certificate of a Firm of Independent Public Accountants
delivered to such Trustee, are in excess of the amount thereof which would then
have been required to be deposited for the purpose for which such money or U.S.
Government Obligations were deposited or received provided such delivery can be
made without liquidating any U.S. Government Obligations.
SECTION 403. Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section
401 as to the satisfaction and discharge of each series of Debt Securities
issued hereunder, and if the Company has paid or caused to be paid all other
sums payable under this Indenture, this Indenture shall cease to be of any
further effect (except as otherwise provided herein). Upon Company Request and
receipt of an Opinion of Counsel and an Officers' Certificate complying with
the provisions of Section 102, the Trustees for all series of Debt Securities
(at the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, any obligations of the Company under Sections 304, 305, 306, 402(b),
607, 610, 701 and 1002 and the obligations of the
<PAGE> 35
Trustee for any series of Debt Securities under Section 402 shall survive.
SECTION 404. Reinstatement.
If the Trustee for any series of Debt Securities is unable to
apply any of the amounts (for purposes of this Section 404, "Amounts") or U.S.
Government Obligations, as the case may be, described in Section
401(a)(1)(B)(i) or (ii), respectively, in accordance with the provisions of
Section 401 by reason of any legal proceeding or any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Debt
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee for such
series is permitted to apply all such Amounts or U.S. Government Obligations,
as the case may be, in accordance with the provisions of Section 401; provided,
however, that if, due to the reinstatement of its rights or obligations
hereunder, the Company has made any payment of principal of (or premium, if
any) or interest, if any, on such Debt Securities, the Company shall be
subrogated to the rights of the Holders of such Debt Securities to receive
payment from such Amounts or U.S. Government Obligations, as the case may be,
held by the Trustee for such series.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to any
particular series of Debt Securities, unless otherwise specified in the Debt
Security or the Board Resolution with respect to that series of Debt
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any installment of interest
upon any Debt Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Debt Security of that series at its Maturity; or
(3) default in the performance of, or breach of, any covenant
or warranty of the Company in respect of any Debt
<PAGE> 36
Security of that series contained in this Indenture or in such Debt
Securities (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which expressly has been included in this Indenture
solely for the benefit of Debt Securities of a series other than that
series) or in the applicable Board Resolution under which such series
is issued as contemplated by Section 301 and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee for the
Debt Securities of such series or to the Company and such Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(4) if an event of default with respect to any other series
of Debt Securities or as defined in any mortgage, indenture, security
agreement or other instrument under which there may be issued, or by
which there may be secured or evidenced, any Indebtedness of the
Company for money borrowed in excess of $10 million principal amount,
whether such Indebtedness now exists or shall hereafter be created,
shall happen and, if such Indebtedness is not already matured in
accordance with its terms, shall result in such Indebtedness becoming
or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not have
been rescinded or annulled or such Indebtedness shall not have been
discharged, in either case, within a period of ten days after there
has been given, by registered or certified mail in the manner set
forth in Section 105, to the Company by the Trustee for the Debt
Securities of that particular series referred to in the first clause
of this Section 501 or to the Company and such Trustee by the Holders
of at least 25% in principal amount of the Outstanding Debt Securities
of that particular series referred to in the first clause of this
Section 501 a written notice specifying such event of default and
requiring the Company to cause such acceleration to be rescinded or
annulled or to cause such Indebtedness to be discharged and stating
that such notice is a "Notice of Default" hereunder; provided, that if
prior to the entry of judgment in favor of the Trustee, such default
under such indenture or instrument shall be remedied or cured by the
Company or waived by the holders of such Indebtedness, then the Event
of Default hereunder shall be deemed likewise to have been remedied,
cured or waived; and provided, further, that, if such default results
from an action of the United States government or a foreign government
which prevents the Company from performing its obligations under such
agreement, indenture or instrument, the occurrence of such default
will not be an Event of Default hereunder; and provided, further,
however, that, subject to the provisions of Sections 601 and 602, such
Trustee shall not be deemed to have
<PAGE> 37
knowledge of such default unless either (A) a Responsible Officer of
such Trustee assigned to its Corporate Trustee Administration
Department shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the Company,
from the Holders of 10% or more in principal amount of the Outstanding
Debt Securities of such other series, from the holder of any such
Indebtedness or from the trustee under any such mortgage, indenture,
security agreement or other instrument; or
(5) the entry against the Company of one or more judgments,
decrees or orders by a court having jurisdiction in the premises from
which no appeal may be or is taken for the payment of money, either
individually or in the aggregate, in excess of $10 million and the
continuance of such judgment, decree or order unsatisfied and in
effect for any period of 60 consecutive days without a stay of
execution and there has been given, by registered or certified mail in
the manner set forth in Section 105, to the Company by the Trustee for
the Debt Securities of such series or to the Company and such Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of such series a written notice specifying such entry
and continuance of such judgment, decree or order and stating that
such notice is a "Notice of Default" hereunder; provided, however,
that subject to the provisions of Sections 601 and 602, such Trustee
shall not be deemed to have knowledge of such entry and continuance of
such judgment, decree or order unless either (A) a Responsible
Officer of such Trustee assigned to its Corporate Trustee
Administration Department shall have actual knowledge thereof or (B)
the Trustee shall have received written notice thereof from the
Company or from the Holders of 10% or more in principal amount of the
Outstanding Debt Securities of such series; or
(6) the Company shall commence any case or proceeding seeking
to have an order for relief entered on its behalf as debtor or to
adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or the
Company shall apply for a receiver, custodian or trustee (other than
any trustee appointed as a mortgagee or secured party in connection
with the issuance of indebtedness for borrowed money of the Company)
of it or for all or a substantial part of its property; or the Company
shall make a general assignment for the benefit of creditors; or the
Company shall take any corporate action in furtherance of any of the
foregoing; or
<PAGE> 38
(7) any case or proceeding against the Company shall be
commenced seeking to have an order for relief entered against it or to
adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee (other than any trustee appointed as a
mortgagee or secured party in connection with the issuance of
indebtedness for borrowed money of the Company) of the Company or for
all or a substantial part of its property shall be appointed in any
such case or proceeding; and such case or proceeding (A) results in
the entry of an order for relief or a similar order against it or (B)
shall continue unstayed and in effect for a period of 60 consecutive
days.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to any particular series
of Debt Securities occurs and is continuing, then and in every such case either
the Trustee for the Debt Securities of such series or the Holders of not less
than 25% in principal amount of the Outstanding Debt Securities of that series
may declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if
given by Holders), and upon any such declaration of acceleration such principal
or such lesser amount, as the case may be, together with accrued interest and
all other amounts owing hereunder, shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee for the Debt Securities of any series as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series, by written notice to the Company
and such Trustee, may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay (except as otherwise specified pursuant to Section
301 for the Debt Securities of such series)
(A) all overdue interest on all Debt Securities of
that series;
<PAGE> 39
(B) the principal of (and premium, if any, on) any
Debt Securities of that series which have become due otherwise
than by such declaration of acceleration and interest thereon
from the date such principal became due at a rate per annum
equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt
Securities' Yield to Maturity), to the extent that the payment
of such interest shall be legally enforceable;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at a rate per annum
equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt
Securities' Yield to Maturity); and
(D) all sums paid or advanced by such Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and
counsel and all other amounts due to such Trustee under
Section 607;
and
(2) all Events of Default with respect to the Debt Securities
of such series, other than the nonpayment of the principal of Debt
Securities of that series which has become due solely by such
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any
Debt Security of any series when such interest becomes due and payable
and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security of any series at its Maturity;
the Company will, upon demand of the Trustee for the Debt Securities of such
series, pay to it, for the benefit of the Holders of such Debt Securities, the
whole amount then due and payable on such Debt Securities for principal (and
premium, if any) and interest, if any, with interest upon the overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of
<PAGE> 40
interest at a rate per annum equal to the rate borne by such Debt Securities
(or, in the case of Discounted Debt Securities, the Debt Securities' Yield to
Maturity); and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents
and counsel and all other amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such
demand, such Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceedings to judgment or final decree, and may
enforce the same against the Company and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company,
wherever situated.
If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relating to the Company or the property of the
Company or its creditors, the Trustee for the Debt Securities of any series
(irrespective of whether the principal (or lesser amount in the case of
Discounted Debt Securities) of any Debt Security of such series shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether such Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Discounted Debt Securities)
(and premium, if any) and interest, if any, owing and unpaid in
respect of the Debt Securities of such series and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of such Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee
<PAGE> 41
under Section 607) and of the Holders of the Debt Securities of such
series allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and
(iii) unless prohibited by law or applicable regulations,
to vote on behalf of the Holders of the Debt Securities of such series
in any election of a trustee in bankruptcy or other person performing
similar functions;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder
of Debt Securities to make such payments to such Trustee, and in the event that
such Trustee shall consent to the making of such payments directly to the
Holders of Debt Securities, to pay to such Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel, and any other amounts due such Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the
Trustee for the Debt Securities of any series to authorize or consent to or
accept or adopt on behalf of any Holder of a Debt Security any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities of such series or the rights of any Holder thereof, or to authorize
the Trustee for the Debt Securities of any series to vote in respect of the
claim of any Holder in any such proceeding, except as aforesaid, for the
election of a trustee in bankruptcy or other person performing similar
functions.
SECTION 505. Trustee May Enforce Claims Without
Possession of Debt Securities.
All rights of action and claims under this Indenture or the
Debt Securities of any series may be prosecuted and enforced by the Trustee for
the Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and counsel
and all other amounts due to such Trustee under Section 607, be for the ratable
benefit of the Holders of the Debt Securities of such series in respect of
which such judgment has been recovered.
<PAGE> 42
SECTION 506. Application of Money Collected.
Any money collected by the Trustee for the Debt Securities of
any series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid
upon the Debt Securities of such series for principal of (and premium,
if any) and interest, if any, on such Debt Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Debt Securities for principal (and
premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Security of any particular series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall
have occurred and be continuing and such Holder shall have previously
given written notice to the Trustee for the Debt Securities of such
series of such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
<PAGE> 43
(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
that series;
it being understood and intended that no Holder or Holders of Debt Securities
of that series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Debt Securities of that series, or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders of Debt Securities of
that series.
SECTION 508. Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest, if any, on such Debt Security on the
respective Stated Maturities expressed in such Debt Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee for the Debt Securities of any series or any
Holder of a Debt Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Trustee or
to such Holder, then and in every such case the Company, such Trustee and the
Holders of Debt Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of such Trustee and such
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee for the Debt Securities of any series or to the Holders of Debt
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy
<PAGE> 44
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Debt Securities of
any series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to such Trustee for the Debt
Securities of any series or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by such Trustee or by the Holders, as
the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any particular series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee for the Debt Securities of such series with respect to
the Debt Securities of that series or exercising any trust or power conferred
on such Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(2) such Trustee may take any other action deemed proper by
such Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any particular series may on behalf of the
Holders of all the Debt Securities of that series waive any past default
hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Debt Security of that series; or
(2) a default with respect to a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of that series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
<PAGE> 45
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law, wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee for any series
of Debt Securities, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series for which the Trustee is serving
as such,
(1) such Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to such Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to such Trustee, such Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Debt Securities has occurred and is continuing, the Trustee for the Debt
Securities of such series shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee for Debt Securities of any series from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that no provision of
<PAGE> 46
this Indenture shall require the Trustee for any series of Debt Securities to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee for any series of Debt Securities shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Debt Securities of any particular series, the Trustee for the
Debt Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 106, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of such Trustee in
good faith determines that the withholding of such notice is in the interest of
the Holders of Debt Securities of that series; and provided, further, that in
the case of any default of the character specified in Section 501(3) with
respect to Debt Securities of that series no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to Debt
Securities of that series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Debt Securities may rely
and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
<PAGE> 47
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, such
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) such Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Debt Securities of any series
pursuant to this Indenture for which it is acting as Trustee, unless
such Holders shall have offered to such Trustee security or indemnity
reasonably satisfactory to such Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) such Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but such
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters at it may see fit, and, if
such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) such Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and such Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of
Debt Securities.
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication thereof, shall be taken as
the statements of the Company, and neither the Trustee for any series of Debt
Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Debt Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities
<PAGE> 48
of any series. Neither the Trustee for any series of Debt Securities nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Debt Securities or the proceeds thereof.
SECTION 605. May Hold Debt Securities.
The Trustee for any series of Debt Securities, any
Authenticating Agent, Paying Agent, Debt Security Registrar or any other agent
of the Company or such Trustee, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if
it were not such Trustee, Authenticating Agent, Paying Agent, Debt Security
Registrar or other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee for any series of Debt Securities in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee for any series of Debt Securities shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee for any series of Debt
<PAGE> 49
Securities shall have a lien prior to the Debt Securities upon all property and
funds held or collected by such Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) or interest, if any, on any
particular series Debt Securities. Such lien shall survive satisfaction and
discharge of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for any series of Debt Securities shall be subject
to and comply with the provisions of Section 310(b) of the Trust Indenture Act
during the period of time required thereby. Nothing herein shall prevent the
Trustee for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 609. Corporate Trustee Required, Different Trustees for
Different Series; Eligibility.
There shall at all times be a Trustee hereunder for the Debt
Securities of each series which satisfies the requirements of Trust Indenture
Act Sections 310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
Federal, State or District of Columbia authority. A different Trustee may be
appointed by the Company for each series of Debt Securities prior to the
issuance of such Debt Securities. If the initial Trustee for any series of
Debt Securities is to be other than The Fifth Third Bank, the Company and such
Trustee shall, prior to the issuance of such Debt Securities, execute and
deliver an indenture supplemental hereto, which shall provide for the
appointment of such Trustee as Trustee for the Debt Securities of such series
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee. If at any time the Trustee for the Debt Securities of
any series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
<PAGE> 50
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
611.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act
of the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Debt Securities of any
series shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608 after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Debt Security of such series for at least six
months unless the Trustee's duty to resign is stayed in
accordance with Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) such Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
such Trustee or of its property shall be appointed or any
public officer shall take charge or control of such Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove such
Trustee or (ii) any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of such Trustee and the appointment of a successor Trustee.
<PAGE> 51
(e) If the Trustee for the Debt Securities of any series
shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for the Debt Securities of any series for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee with respect to the Debt Securities of such series and shall comply
with the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee for the Debt Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee for the Debt Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 611, and if such Trustee is still incapable of
acting, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Debt Securities of any series
and each appointment of a successor Trustee with respect to the Debt Securities
of any series in the manner and to the extent provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the Debt
Securities of that series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with
respect to the Debt Securities of any series shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject to the lien provided for in Section
607.
<PAGE> 52
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Debt Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and each Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities
of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee for the Debt Securities
of any series shall be qualified and eligible under this Article.
(e) Notwithstanding replacement of the Trustee pursuant to
Section 610, the Company's obligations under Section 607 shall continue for the
benefit of the retiring Trustee with respect to expenses, losses and
liabilities incurred by it prior to such replacement.
<PAGE> 53
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee or the Authenticating
Agent, as the case may be, for the Debt Securities of any series may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee or such
Authenticating Agent, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of such
Trustee, shall be the successor of such Trustee or such Authenticating Agent,
as the case may be, hereunder, provided such successor corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto
or the Trustee, the Authenticating Agent or their respective successor
corporations. In case any Debt Securities shall have been authenticated, but
not delivered, by the Trustee or the Authenticating Agent for such series then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Debt Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee for any particular series of Debt Securities shall
comply with Section 311(a) of the Trust Indenture Act for that particular
series of Debt Securities, excluding any creditor relationship listed in
Section 311(b) of that Act. If the Trustee for any particular series of Debt
Securities shall resign or be removed as Trustee for that particular series of
Debt Securities, it shall be subject to Section 311(a) of the Trust Indenture
Act to the extent provided therein.
SECTION 614. Authenticating Agents.
From time to time the Trustee for the Debt Securities of any
series may, subject to its sole discretion, appoint one or more Authenticating
Agents with respect to the Debt Securities of such series, which may include
the Company or any Affiliate of the Company, with power to act on the Trustee's
behalf and subject to its discretion in the authentication and delivery of Debt
Securities of such series in connection with transfers and exchanges hereunder,
including but not limited to those pursuant to Sections 304, 305, 306 and 1107,
as fully to all intents and purposes as though such Authenticating Agent had
been expressly authorized by those Sections of this Indenture to authenticate
and deliver Debt Securities of such series. For all purposes of this
Indenture, the authentication and delivery of Debt Securities of such series by
an Authenticating Agent for such Debt Securities pursuant to this Section shall
be deemed to be authentication and
<PAGE> 54
delivery of such Debt Securities "by the Trustee" for the Debt Securities of
such series. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal, State or District of Columbia authority. If such
Authenticating Agent publishes reports of condition at least annually pursuant
to law or the requirements of such supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent for any series of Debt Securities shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Authenticating Agent for any series of Debt Securities may
resign at any time by giving written notice of resignation to the Trustee for
such series and to the Company. The Trustee for any series of Debt Securities
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the Company
in the manner set forth in Section 105. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent for any series of Debt Securities shall cease to be
eligible under this Section, the Trustee for such series may appoint a
successor Authenticating Agent, shall give written notice of such appointment
to the Company and shall give written notice of such appointment to all Holders
of Debt Securities of such series in the manner set forth in Section 106. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee for the Debt Securities of each series agrees to
pay to any Authenticating Agent for such series from time to time reasonable
compensation for its services, and such Trustee shall be entitled to be
reimbursed for such payments, subject to Section 607.
If an appointment with respect to one or more series of Debt
Securities is made pursuant to this Section, the Debt Securities of such series
may have endorsed thereon, in addition to the Trustee's certification of
authentication, an alternate certificate of authentication in the following
form:
<PAGE> 55
"This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
-------------------------------
By:
------------------------
As Authenticating Agent
By:
------------------------
Authorized Officer"
ARTICLE SEVEN
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders.
The Trustee for any particular series of Debt Securities shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of the Debt Securities of
that series. Neither the Company nor such Trustee shall be under any
responsibility with regard to the accuracy of such list. With respect to each
series of Debt Securities, the Company, in furnishing information regarding
such Holders to such Trustee, and such Trustee, will satisfy the requirements
imposed upon each of them by Section 312(a) of the Trust Indenture Act.
SECTION 702. Communications to Holders.
Holders of any particular series of Debt Securities may
communicate with other Holders of Debt Securities of that series with respect
to their rights under this Indenture or under such series of Debt Securities
pursuant to Section 312(b) of the Trust Indenture Act. The Company and the
Trustee for any particular series of Debt Securities and any and all other
Persons benefitted by this Indenture shall have the protection afforded by
Section 312(c) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
Within 60 days after November 15 of each year commencing with
the year following the first issuance of Debt Securities, the Trustee for the
Debt Securities of each series shall transmit by mail to all Holders of the
Debt Securities of such series a brief report dated as of such date that
complies with Section 313(a) of the Trust Indenture Act, but only if such
report is required in any year under such Section 313(a) of the Trust Indenture
Act. With respect to each series of Debt
<PAGE> 56
Securities, the Trustee shall also comply with Sections 313(b) and 313(c) of
the Trust Indenture Act. At any time a report is mailed to the Holders of any
particular series of Debt Securities, a copy of such report shall be filed with
the Commission and with each securities exchange, if any, on which the Debt
Securities of such series are listed. With respect to each series of Debt
Securities, the Company will notify the applicable Trustee when such series of
Debt Securities is listed on any securities exchange.
SECTION 704. Reports by Company.
The Company shall file such annual and/or periodic reports and
certificates with the Trustees for each series of Debt Securities and/or with
the Commission and/or with the Holders of each series of Debt Securities as are
required by the provisions of Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
corporation or sell, convey, assign, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety to any
Person unless:
(1) either (i) the Company shall be the continuing
corporation or (ii) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Debt Securities and the performance and observance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company
or a Subsidiary which becomes the obligation of the Company or any of
its Subsidiaries in
<PAGE> 57
connection with or as a result of such transaction as having been
incurred at the time of such transaction), no Event of Default, and no
event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing;
(3) such other conditions, if any, as may be set forth in the
Board Resolution establishing the Debt Securities of that particular
series are met or complied with; and
(4) the Company has delivered to the Trustee for each series
of Debt Securities an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor corporation formed by
such consolidation or into which the Company is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named as the Company
herein and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Debt Securities and, in
the event of any such consolidation, merger, conveyance or transfer, the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up, or liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Debt Securities, the
Company, when authorized by a Board Resolution, and the Trustee for the Debt
Securities of any or all series, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to such
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Debt Securities contained; or
<PAGE> 58
(2) to add to the covenants of the Company, for the benefit
of the Holders of all or any particular series of Debt Securities
(and, if such covenants are to be for the benefit of fewer than all
series of Debt Securities, stating that such covenants are being
included solely for the benefit of such series), or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of
Default applies to fewer than all series of Debt Securities, stating
each series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than The Fifth Third Bank as Trustee for
a series of Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 609; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities
of one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant
to Section 401; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
<PAGE> 59
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Debt Securities of any particular
series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
The Company, when authorized by a Board Resolution, and the
Trustee for the Debt Securities of any or all series may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of such
Debt Securities under this Indenture, but only with the consent of the Holders
of more than 50% in aggregate principal amount of the Outstanding Debt
Securities of each series of Debt Securities then Outstanding affected thereby,
in each case by Act of said Holders of Debt Securities of each such series
delivered to the Company and the Trustee for Debt Securities of each such
series; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security, or
reduce the principal amount thereof or the rate of interest thereon,
if any, or any premium payable upon the redemption thereof, or reduce
the amount of the principal of a Discounted Debt Security that would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change the Place of Payment, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any particular series, the consent of
whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture; or
<PAGE> 60
(3) modify any of the provisions of this Section or Section
513 or 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Debt Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Debt Security with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1008, or the deletion of this
proviso, in accordance with the requirements of Sections 609, 611(b),
901(6) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or which modifies
the rights of the Holders of Debt Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee for any series of
Debt Securities shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Debt Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, liabilities, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Debt Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
<PAGE> 61
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities of any particular series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee for the Debt Securities of
such series, bear a notation in form approved by such Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Debt Securities of any series so modified as to conform, in the
opinion of the Trustee for the Debt Securities of such series and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by such Trustee in exchange for
Outstanding Debt Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal (and Premium, if any) and
Interest, if any.
The Company agrees, for the benefit of each particular series
of Debt Securities, that it will duly and punctually pay (except as otherwise
specified pursuant to Section 301 for the Debt Securities of such series) the
principal of (and premium, if any) and interest, if any, on that series of Debt
Securities in accordance with the terms of the Debt Securities of such series
and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for a
series of Debt Securities an office or agency where Debt Securities of that
series may be presented or surrendered for payment, where Debt Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company with respect to the Debt
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee for the Debt Securities of that
series of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Debt Securities or shall fail to
furnish the Trustee for the Debt Securities of that series with the address
thereof, such presentations (to the extent permitted
<PAGE> 62
by law) and surrenders of Debt Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of such
Trustee, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for such purpose. The
Company will give prompt written notice to the Trustee for the Debt Securities
of each series so affected of any such designation or rescission and of any
change in the location of any such office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any particular series of Debt Securities, it will, on or not
more than one Business Day before each due date of the principal of (and
premium, if any) or interest, if any, on any of the Debt Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum (except as otherwise specified pursuant to Section 301 for the
Debt Securities of such series) sufficient to pay the principal (and premium,
if any) and interest, if any, so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee for the Debt Securities of such series of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any particular series of Debt Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest, if any, on any such Debt
Securities, deposit with a Paying Agent for the Debt Securities of such series
a sum sufficient to pay the principal (and premium, if any) and interest, if
any, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless such Paying Agent is the Trustee for the
Debt Securities of such series) the Company will promptly notify such Trustee
of its action or failure so to act.
The Company will cause each Paying Agent for any particular
series of Debt Securities other than the Trustee for the Debt Securities of
such series to execute and deliver to such Trustee an instrument in which such
Paying Agent shall agree with such Trustee, subject to the provisions of this
Section, that such Paying Agent will:
<PAGE> 63
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Debt Securities of
that series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give such Trustee notice of any default by the Company in
the making of any payment of principal (or premium, if any) and
interest, if any, on Debt Securities of that series;
(3) at any time during the continuation of any such default,
upon the written request of such Trustee, forthwith pay to such
Trustee all sums so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the duties, rights
and disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee for the Debt Securities
of any series or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) and interest, if any, on
any Debt Security of any particular series and remaining unclaimed for two
years after such principal (and premium, if any) and interest, if any, has
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat, abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trusts; and the Holder of such Debt Security shall,
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of such Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that such Trustee or such
Paying Agent, before being required to make any such repayment may mail written
notice to each such Holder of such Debt Security in the manner set forth in
Section 106, or may, in its discretion, in the name and at the expense of the
Company, cause to be published at least once in a newspaper published in the
English language customarily on each Business Day and of general circulation in
the Borough of Manhattan, the City of New York, notice, that such money remains
<PAGE> 64
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such mailing or publication, any unclaimed
balance of such money then remaining will, unless otherwise required by
mandatory provisions of applicable escheat, abandoned or unclaimed property
law, be repaid to the Company.
SECTION 1004. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon it or upon its income, profits
or property, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon its property; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1005. Maintenance of Properties.
The Company shall cause all its properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation and
maintenance of any of its properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Statements as to Compliance.
(a) The Company shall deliver to the Trustee for each series
of Debt Securities, within 120 days after the end of each fiscal year, a
written statement signed by the Chairman of the Board, a Vice Chairman of the
Board, the President or a Vice President and by the Treasurer, a Deputy
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of
the Company, stating, as to each signer thereof, that:
(1) a review of the activities of the Company during such
year and of performance under this Indenture has been made under his
supervision; and
(2) to the best of his knowledge, based on such review, the
Company is not in default in the fulfillment of any of its obligations
under this Indenture with respect to
<PAGE> 65
the Debt Securities of such series, or specifying each such default
known to him and the nature and status thereof.
For purposes of this Subsection, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) When any event has occurred and is continuing which is,
or after the giving of notice or lapse of time or both would become, an Event
of Default, or if the Trustee or any Holder of Debt Securities of any series or
the trustee for or the holder of any other evidence of Indebtedness of the
Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed default (other than with respect to Indebtedness in the
principal amount of less than $10,000,000), the Company shall deliver to the
Trustee by registered or certified mail or by telegram, telex or facsimile
transmission followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action within five Business
Days of its occurrence.
SECTION 1007. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material respect to the
Holders; and provided, further, however, that the foregoing shall not prohibit
a sale, transfer or conveyance of a Subsidiary or any of its assets in
compliance with the terms of this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1004 to 1007, inclusive, or set
forth in any Board Resolution establishing the Debt Securities of a series, if
before or after the time for such compliance the Holders of more than 50% in
principal amount of the Outstanding Debt Securities of each series of Debt
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee for the Debt Securities of each series with respect to
any such covenant or condition shall remain in full force and effect.
<PAGE> 66
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of This Article.
Redemption of Debt Securities of any series (whether by
operation of a sinking fund or otherwise) as permitted or required by any form
of Debt Security issued pursuant to this Indenture shall be made in accordance
with such form of Debt Security and this Article; provided, however, that if
any provision of any such form of Debt Security shall conflict with any
provision of this Article, the provision of such form of Debt Security shall
govern.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities of
any series shall be evidenced by or pursuant to a Board Resolution. In case of
any redemption at the election of the Company of less than all of the Debt
Securities of any particular series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for the Debt Securities of such series) notify such
Trustee by Company Request of such Redemption Date and of the principal amount
of Debt Securities of that series to be redeemed and shall deliver to such
Trustee such documentation and records as shall enable such Trustee to select
the Debt Securities to be redeemed pursuant to Section 1103. In the case of
any redemption of Debt Securities of any series prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee for Debt
Securities of such series with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to
Be Redeemed.
If less than all the Debt Securities are to be redeemed, the
Company may select the series to be redeemed, and if less than all the Debt
Securities of any series are to be redeemed, the particular Debt Securities of
that series to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee for the Debt Securities of such series, from the
Outstanding Debt Securities of that series not previously called for
redemption, by such method as such Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Debt Securities of that series, or any
integral multiple thereof) of the principal amount of Debt Securities of that
series of a denomination larger than the
<PAGE> 67
minimum authorized denomination for Debt Securities of that series pursuant to
Section 302.
The Trustee for the Debt Securities of any series to be
redeemed shall promptly notify the Company in writing of the Debt Securities of
such series selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt
Securities shall relate, in the case of any Debt Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Debt
Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 not later than the thirtieth day and not earlier than the sixtieth
day prior to the Redemption Date, to each Holder of Debt Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of a
particular series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular Debt
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security or portion thereof, and
that interest thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Debt Securities, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Debt Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee for such Debt Securities in the name and at the expense
of the Company.
<PAGE> 68
SECTION 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the
Company shall deposit with the Trustee for the Debt Securities to be redeemed
or with a Paying Agent for such Debt Securities (or, if the Company is acting
as its own Paying Agent for such Debt Securities, segregate and hold in trust
as provided in Section 1003) an amount of money (except as otherwise specified
pursuant to Section 301 for the Debt Securities of such Series) sufficient to
pay the principal amount of (and premium, if any, thereon), and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Debt Securities which are to be redeemed on that date.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (except as otherwise provided
pursuant to Section 301 for the Debt Securities of such series) and from and
after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of such Debt Security for redemption in accordance with said notice,
such Debt Security or specified portions thereof shall be paid by the Company
at the Redemption Price; provided, however, that unless otherwise specified as
contemplated by Section 301, installments of interest on Debt Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Debt Securities, or one or more Predecessor Debt Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal thereof (and premium,
if any, thereon) shall, until paid, bear interest from the Redemption Date at a
rate per annum equal to the rate borne by the Debt Security (or, in the case of
Discounted Debt Securities, the Debt Security's Yield to Maturity).
SECTION 1107. Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall
be surrendered at the Place of Payment (with, if the Company or the Trustee for
such Debt Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar
for such Debt Security duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute and such Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Debt Security or Debt Securities, of any authorized
denomination as
<PAGE> 69
requested by such Holder, of the same series and having the same terms and
provisions and in an aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of This Article.
Redemption of Debt Securities through operation of a sinking
fund as permitted or required by any form of Debt Security issued pursuant to
this Indenture shall be made in accordance with such form of Debt Security and
this Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any particular series is herein referred to as
a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by
the terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Debt Securities
of any particular series as provided for by the terms of Debt Securities of
that series.
SECTION 1202. Satisfaction of Sinking Fund Payments With
Debt Securities.
The Company (1) may deliver Outstanding Debt Securities of a
series (other than any previously called for redemption), and (2) may apply as
a credit Debt Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Debt Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Debt Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Debt Securities of such
series required to be made pursuant to the terms of such Debt Securities as
provided for by the terms of such series; provided, however, that such Debt
Securities have not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee for such Debt Securities
at the principal amount thereof and the amount of such sinking fund payment
shall be reduced accordingly.
<PAGE> 70
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any particular series of Debt Securities, the Company will deliver to the
Trustee for the Debt Securities of such series an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash (except as otherwise specified
pursuant to Section 301 for the Debt Securities of that series) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to Section 1202 and shall state the basis
for such credit and that such Debt Securities have not previously been so
credited and will also deliver to such Trustee any Debt Securities to be so
delivered. Such Trustee shall select the Debt Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Debt Securities shall be made
upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture dated as of ___________, 199_ to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the
____ day of ________, 199_.
CHIQUITA BRANDS INTERNATIONAL, INC.
[SEAL]
By
-------------------------------
Title:
Attest:
<PAGE> 71
THE FIFTH THIRD BANK,
Trustee
[SEAL]
By
-------------------------------
Title:
Attest:
<PAGE> 72
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the ___ day of ________, 199_, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he resides at _________________, _________________; that he is an
________________________ of CHIQUITA BRANDS INTERNATIONAL, INC., one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that one of the seals affixed to
the said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------
Notary Public
Commission Expires
-------------
[SEAL]
<PAGE> 73
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the ___ day of ________, 199_, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he resides at ______________, __________, ____, that he is a
____________________ of THE FIFTH THIRD BANK, one of the corporations described
in and which executed the above instrument, that he knows the corporate seal of
said corporation; that one of the seals affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------
Notary Public,
Commission Expires
-------------
[SEAL]
<PAGE> 1
Exhibit 4(d)
=================================================================
CHIQUITA BRANDS INTERNATIONAL, INC.
and
STAR BANK, NATIONAL ASSOCIATION,
Trustee
-------------
INDENTURE
Dated as of ___________, 1994
-------------
Subordinated Debt Securities
=================================================================
<PAGE> 2
CHIQUITA BRANDS INTERNATIONAL, INC.
Reconciliation and tie showing the location in the Indenture
dated as of ___________, 1994 of the provisions inserted pursuant to Sections
310 to 318(a), inclusive, of the Trust Indenture Act of 1939.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610(d)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
Section 316 (a)(1)(A) 502 and 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
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NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
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ARTICLE ONE
<S> <C> <C>
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certificate of a Firm of Independent Public Accountants . . . . . . . . . . . 3
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Security Register and Debt Security Registrar . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Discounted Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Non-payment Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redeemable Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
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<TABLE>
<CAPTION>
Page
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<S> <C>
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subordinated Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . 14
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 113. Non-Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 114. Immunity of Incorporators, Stockholders,
Officers and Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
DEBT SECURITY FORM . . . . . . . . . . . . . 15
SECTION 201. Form of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . 16
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . . . . . 17
SECTION 301. Title; Payment and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 304. Temporary Debt Securities and Exchange of
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE FOUR
Page
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SATISFACTION AND DISCHARGE . . . . . . . . 25
SECTION 401. Satisfaction and Discharge of Debt
Securities of any Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 403. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . 28
SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . 29
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 505. Trustee May Enforce Claims Without
Possession of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 508. Unconditional Right of Holders to Receive
Principal (and Premium, if any) and
Interest, if any . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . 39
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 604. Not Responsible for Recitals or Issuance
of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 605. May Hold Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . 43
SECTION 609. Corporate Trustee Required, Different
Trustees for Different Series;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
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<TABLE>
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<S> <C>
SECTION 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 614. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE SEVEN
HOLDERS' REPORTS BY TRUSTEE AND COMPANY . . . . . . . . 49
SECTION 701. Preservation of Information; Company to
Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 702. Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER . . . . . . . 50
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 802. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 51
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 902. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 906. Reference in Debt Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . 55
SECTION 1001. Payment of Principal (and Premium, if
any) and Interest, if any . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1003. Money for Debt Securities Payments to Be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1004. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1006. Statements as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1007. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 59
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE ELEVEN
Page
----
<S> <C> <C>
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . 60
SECTION 1101. Applicability of This Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1103. Selection by Trustee of Debt Securities
to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1106. Debt Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1107. Debt Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . 63
SECTION 1201. Applicability of This Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1202. Satisfaction of Sinking Fund Payments
With Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1203. Redemption of Debt Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . 64
SECTION 1301. Securities Subordinate to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1302. Payment Over of Proceeds Upon
Dissolution, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1303. Suspension of Payment when Senior
Indebtedness in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1304. Subrogation to Rights of Holders of
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1305. Provisions Solely to Define Relative
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1306. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1307. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1308. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1309. Reliance on Judicial Order or
Certificate of Liquidation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1310. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1311. Article Applicable to Paving Agents . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1312. No Suspension of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1313. Trustee's Relation to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
</TABLE>
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<PAGE> 8
This is an INDENTURE dated as of ___________, 1994, between
Chiquita Brands International, Inc., a corporation duly incorporated and
existing under the laws of New Jersey and having its principal office at 250
East Fifth Street, Cincinnati, Ohio (hereinafter called the "Company"), and
Star Bank, National Association, a national banking association, as Trustee
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes securities (hereinafter called the "Debt Securities")
evidencing its unsecured indebtedness and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Debt Securities, unlimited as to principal amount, to have such titles, to bear
such rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done, and the Company
proposes to do all things necessary to make the Debt Securities, when executed
by the Company and authenticated and delivered by the Trustee hereunder and
duly issued by the Company, the valid obligations of the Company as hereinafter
provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Debt Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Debt
Securities or any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and all Debt Securities
issued hereunder, except as otherwise expressly provided or unless the context
otherwise requires:
<PAGE> 9
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such generally accepted
accounting principles as in effect and as implemented by the Company
on the date of this Indenture; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three and Article
Six, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control", when used with respect to any specified
Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to
authenticate and deliver Debt Securities on behalf of the Trustee for
the Debt Securities of any series pursuant to Section 614.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of that board or any director
or directors and/or officer or officers of the Company to whom that
board or committee shall have duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such
<PAGE> 10
certification, or (2) a certificate signed by the director or
directors or officer or officers to whom the board of directors of the
Company shall have duly delegated its authority, and delivered to the
Trustee for the Debt Securities of any series.
"Business Day", when used with respect to any particular Place
of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law to close, and shall
otherwise mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions, at the place where
any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"Capital Stock" means any and all shares of the capital stock,
par value $.33 per share, of the Company and of any class or series of
preferred or preference stock of the Company, whether now outstanding
or issued after the date of this Indenture.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying
the right to use) real or personal property that is required to be
classified and accounted for as a capital lease obligation under
generally accepted accounting principles consistently applied, and,
for the purposes of this Indenture, the amount of such obligation at
any date shall be the capitalized amount thereof at such date,
determined in accordance with such principles.
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by any firm of independent public
accountants of recognized standing selected by the Company. The term
"independent" when used with respect to any specified firm of public
accountants means such a firm which (1) is in fact independent, (2)
does not have any direct financial interest or any material indirect
financial interest in the Company or in any Affiliate of the Company,
and (3) is not connected with the Company or any Affiliate of the
Company as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions, but such
firm may be the regular auditors employed by the Company. Whenever it
is herein provided that any Certificate of a Firm of Independent
Public Accountants shall be furnished to the Trustee for Debt
Securities of any series, such Certificate shall state that the signer
has read this definition and that the signer is independent within the
meaning hereof.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations thereunder.
<PAGE> 11
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if
at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such
date.
"Common Stock" means the capital stock, par value $.33 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by (1) the
Chairman of the Board, a Vice Chairman of the Board, the President or
a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, or (2) by any two Persons designated in a
Company Order previously delivered to the Trustee for the Debt
Securities of any series by any two of the foregoing officers and
delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office of the Trustee for
Debt Securities of any series at which at any particular time its
corporate trust business shall be principally administered, which
office of Star Bank, National Association, at the date of the
execution of this Indenture, is located at 425 Walnut Street,
Cincinnati, Ohio 45202.
"corporation" includes corporations, associations, joint-stock
companies and business trusts.
"Debt Securities" means securities evidencing unsecured
indebtedness of the Company authenticated and delivered under this
Indenture.
"Debt Security Register" and "Debt Security Registrar" have
the respective meanings specified in Section 305.
"Defaulted Interest" has the meaning specified in Section 307.
"Discounted Debt Security" means any Debt Security which
provides for an amount (excluding any amounts attributable to accrued
but unpaid interest thereon) less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
<PAGE> 12
"Dollars" and the sign "$" mean the currency of the United
States of America as at the time of payment is legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder", when used with respect to any Debt Security, means
the Person in whose name a Debt Security is registered in the Debt
Security Register.
"Indebtedness" means (a) any liability of any Person (1) for
borrowed money, or under any reimbursement obligation relating to a
letter of credit (other than letters of credit obtained in the
ordinary course of business), or (2) evidenced by a bond, note,
debenture or similar instrument (including a purchase money
obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services incurred
in connection with capital expenditures (other than accounts payable
or other indebtedness to trade creditors arising in the ordinary
course of business), or (3) for the payment of money relating to a
Capitalized Lease Obligation; (b) any liability of others described in
the preceding clause (a) that the Person has guaranteed or that is
otherwise its legal liability; and (c) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above.
"Indenture" means this instrument as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and
shall include the terms of a particular series of Debt Securities
established as contemplated by Section 301.
"interest", when used with respect to a Discounted Debt
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Debt
Security, means the Stated Maturity of an installment of interest on
such Debt Security.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement, charge or other
security interest or encumbrance of any kind.
"Maturity", when used with respect to any Debt Security, means
the date on which the principal of that Debt Security becomes due and
payable as therein or herein provided, whether
<PAGE> 13
at the Stated Maturity or by declaration of acceleration, call for
redemption, request for redemption or otherwise.
"Non-payment Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Senior Indebtedness.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or
a Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or a word or words added before
or after the title "Vice President"), and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee for the Debt Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company or may be other
counsel satisfactory to the Trustee for the Debt Securities of any
series.
"Outstanding", when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities
theretofore authenticated and delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the Trustee
for such Debt Securities or delivered to such Trustee for
cancellation;
(2) Debt Securities or portions thereof for whose payment
or redemption money in the necessary amount has been
theretofore deposited with the Trustee for such Debt
Securities or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders
of such Debt Securities (including Debt Securities with
respect to which the Company has effected satisfaction and
discharge as provided in Article Four or covenant defeasance
as provided in Section 1015, except to the extent provided in
such Article or Section); provided, however, that, if such
Debt Securities or portions thereof are to be redeemed, notice
of such redemption has been duly given pursuant to this
Indenture, or provision therefor satisfactory to such Trustee
has been made; and
(3) Debt Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such
<PAGE> 14
Debt Securities in respect of which there shall have been
presented proof satisfactory to the Trustee for such Debt
Securities that any such Debt Securities are held by bona fide
purchasers in whose hands the Debt Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (a) Debt Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee for such
Debt Securities shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Debt
Securities which such Trustee knows to be so owned shall be so
disregarded, provided, that Debt Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of such Trustee the pledgee's right so
to act with respect to such Debt Securities and that the pledgee is
not the Company or any Affiliate of the Company and (b) the principal
amount of a Discounted Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration pursuant to Section
502.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest, if any, on any
Debt Securities on behalf of the Company.
"Payment Default" means any default in the payment of
principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Debt
Securities of any particular series, means the place or places where
the principal of (and premium, if any) and interest, if any, on the
Debt Securities of that series are payable, as contemplated by Section
301.
"Predecessor Debt Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the
same debt as that evidenced by that particular Debt Security, and, for
the purposes of this definition, any Debt Security authenticated and
delivered under Section 306 in lieu of a mutilated, destroyed, lost or
<PAGE> 15
stolen Debt Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Debt Security.
"Redeemable Stock" means any class or series of preferred or
preference stock of the Company that by its terms or otherwise is
required to be redeemed prior to the final Stated Maturity of such
stock, or is redeemable at the option of the Company or of the holder
thereof at any time prior to the final Stated Maturity of such stock.
"Redemption Date", when used with respect to any Debt Security
to be redeemed in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt
Security to be redeemed, means an amount equal to the principal
amount thereof (and premium, if any, thereon) together with accrued
interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Debt Securities of any series, means the date, if
any, specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee
for any series of Debt Securities, means the chairman or vice chairman
of the board of directors, the chairman or vice chairman of the
executive committee of the board of directors, the president, any vice
president (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other
officer of such Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Senior Indebtedness" means all Indebtedness of the Company
and any accrued but unpaid interest on such Indebtedness, unless in
each case by the terms of the instrument creating or evidencing such
Indebtedness it is provided that such Indebtedness is not senior in
right of payment to the Debt Securities or that such Indebtedness is
pari passu with or subordinate in right of payment to the Debt
Securities; provided that Senior Indebtedness shall not include (a)
the Company's 9-1/8% Subordinated Debentures due February 1, 1998,
10-1/4% Subordinated Debentures due August 1, 2005, 10-1/2%
Subordinated Debentures due August 1, 2004, 11-1/2% Subordinated Notes
due 2001, 11-7/8% Subordinated
<PAGE> 16
Debentures due May 1, 2003 and 7% Convertible Subordinated Debentures
due 2001, (b) any obligations of the Company to any of its
Subsidiaries or (c) any obligations of the Company arising from
Redeemable Stock.
A "series" of Debt Securities means all Debt Securities
denoted as part of the same series authorized by or pursuant to a
particular Board Resolution.
"Special Record Date" for the payment of any Defaulted
Interest on the Debt Securities of any series means a date fixed by
the Trustee for such series pursuant to Section 307.
"Stated Maturity", when used with respect to any security or
any installment of principal thereof or interest thereon, means the
date specified in such security representing such installment of
interest as the fixed date on which the principal of such security or
such installment of principal or interest is due and payable.
"Subordinated Debentures" means the Company's 9-1/8%
Subordinated Debentures due February 1, 1998, 10-1/4% Subordinated
Debentures due August 1, 2005, 10-1/2% Subordinated Debentures due
August 1, 2004, 11-1/2% Subordinated Notes due 2001, 11-7/8%
Subordinated Debentures due May 1, 2003 and 7% Convertible
Subordinated Debentures due 2001 which are outstanding on the date of
this Indenture.
"Subsidiary" means any corporation of which at least a
majority of all outstanding stock having ordinary voting power in the
election of directors of such corporation is at the time, directly or
indirectly, owned by the Company or by one or more Subsidiaries or by
the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article
Six hereof, shall also include its successors and assigns as Trustee
hereunder. If there shall be at one time more than one Trustee
hereunder, "Trustee" shall mean each such Trustee and shall apply to
each such Trustee only with respect to those series of Debt Securities
with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was executed, except
as provided in Section 905 hereof and except that any rules and
regulations subsequently prescribed by the Commission pursuant to
Section 314(a) of that Act shall apply.
"U.S. Government Obligations" means securities which are (i)
direct obligations of the government of the United States or (ii)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government
<PAGE> 17
of the United States, the payment of which is unconditionally
guaranteed by such government, which, in either case, are full faith
and credit obligations of such government and are not callable or
redeemable at the option of the issuer thereof.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, possessions
and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted
Debt Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
for any series of Debt Securities to take any action under any provision of
this Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if
appropriate, a Certificate of a Firm of Independent Public Accountants;
provided, that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
<PAGE> 18
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to matters upon which
his certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee for the appropriate series of Debt Securities and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Debt Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee for the appropriate series of Debt Securities and the
Company and any agent of such Trustee or the Company, if made in the manner
provided in this Section.
<PAGE> 19
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or association
or a member of a partnership, or an official of a public or governmental body,
on behalf of such corporation, association, partnership or public or
governmental body or by a fiduciary, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee for the appropriate
series of Debt Securities deems sufficient.
(d) The principal amount and serial numbers of Debt
Securities held by any Person, and the date of holding the same, shall be
proved by the Debt Security Register.
(e) In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture, the
principal amount of a Discounted Debt Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of the principal thereof that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 at the time the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee for such Debt
Securities.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Debt Security shall bind
every future Holder of the same Debt Security and the Holder of every Debt
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee for such Debt Securities, the Debt Security Registrar,
any Paying Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Debt Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Debt Securities by any Holder
or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or
<PAGE> 20
with such Trustee at its Corporate Trust Office, Attention: Corporate
Trustee Administration Department, or
(2) the Company by such Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as provided in
paragraphs (3), (4) and (5) of Section 501) if in writing and mailed,
first class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in
writing to such Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders if in writing and mailed, first class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Debt Security Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed in the manner
prescribed by this Indenture shall be deemed to have been given whether or not
received by any particular Holder. In case by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as shall be made
with the approval of the Trustee for such Debt Securities shall constitute a
sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee for
such Debt Securities, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
the duties imposed by any of Sections 310 through 317, inclusive, of the Trust
Indenture Act through the operation of Section 318(c) thereof, such imposed
duties shall control.
<PAGE> 21
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In any case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, expressed
or implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Debt Security Registrar and their successors hereunder and the
Holders of Debt Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Non-Business Day.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of a Debt Security of any particular series shall not be a
Business Day at any Place of Payment with respect to Debt Securities of that
series, then (notwithstanding any other provision of this Indenture or of the
Debt Securities) payment of principal of (and premium, if any) and interest, if
any, with respect to such Debt Security need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
<PAGE> 22
SECTION 114. Immunity of Incorporators, Stockholders,
Officers and Directors.
No recourse shall be had for the payment of the principal of
(and premium, if any), or the interest, if any, on any Debt Security of any
series, or for any claim based thereon, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment of penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the Debt Securities
of each series are solely corporate obligations, and that no personal liability
whatever shall attach to, or is incurred by, any incorporator, stockholder,
officer or director, past, present or future, of the Company or of any
successor corporation, either directly or indirectly through the Company or any
successor corporation, because of the incurring of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Debt Securities of any
series, or to be implied herefrom or therefrom; and that all such personal
liability is hereby expressly released and waived as a condition of, and as
part of the consideration for, the execution of this Indenture and the issuance
of the Debt Securities of each series.
ARTICLE TWO
DEBT SECURITY FORM
SECTION 201. Form of Debt Securities.
The Debt Securities of each series shall be in such fully
registered form as shall be established by or pursuant to a Board Resolution,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture or any indenture supplemental
hereto and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
any law, with any rule or regulation made pursuant thereto, with any rules of
any securities exchange or to conform to usage, as may, consistent herewith, be
determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
Prior to the delivery of a Debt Security of any series in any
such form to the Trustee for the Debt Securities of such series for
authentication, the Company shall deliver to such Trustee the following:
(1) The Board Resolution by or pursuant to which such form of
Debt Security has been approved;
<PAGE> 23
(2) An Officers' Certificate dated the date such Certificate
is delivered to such Trustee stating that all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of Debt Securities in such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in
such form, when (a) completed by appropriate insertions and executed
and delivered by the Company to such Trustee for authentication in
accordance with this Indenture, (b) authenticated and delivered by
such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time
to time by the Board of Directors and (c) sold in the manner specified
in such Opinion of Counsel, will be the legal, valid and binding
obligations of the Company, subject to applicable bankruptcy,
reorganization, insolvency and other similar laws generally affecting
creditors' rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect
the rights of Holders of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as evidenced by
their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Debt Securities shall
be in substantially the following form:
"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
--------------,
as Trustee
By
------------------------------
Authorized Officer"
<PAGE> 24
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Title; Payment and Terms.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
The Debt Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series, each
of which shall be issued pursuant to a Board Resolution. With respect to any
particular series of Debt Securities, the Board Resolution relating thereto
shall specify:
(1) the title of the Debt Securities of that series (which
shall distinguish the Debt Securities of that series from all other
series of Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of that series pursuant to Section 304,
305, 306, 906 or 1107 or otherwise pursuant to any covenant permitting
the purchase of a portion of the Debt Securities of that series);
(3) the date or dates (or manner of determining the same) on
which the principal of the Debt Securities of that series is payable
(which, if so provided in such Board Resolution, may be determined by
the Company from time to time and set forth in the Debt Securities of
the series issued from time to time);
(4) the rate or rates (or the manner of calculation thereof)
at which the Debt Securities of that series shall bear interest (if
any), the date or dates from which such interest shall accrue (which,
in either case or both, if so provided in such Board Resolution, may
be determined by the Company from time to time and set forth in the
Debt Securities of the series issued from time to time), the Interest
Payment Dates on which such interest shall be payable (or manner of
determining the same) and the Regular Record Date for the interest
payable on any Debt Securities on any Interest Payment Date;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest, if
any, on Debt Securities of that series shall be payable, any Debt
Securities of that series may be surrendered for registration of
transfer, any Debt Securities of that
<PAGE> 25
series may be surrendered for exchange, and notices and demands to or
upon the Company in respect of the Debt Securities of that series and
this Indenture may be served;
(6) the period or periods within which, the price or prices
at which and the terms and conditions upon which Debt Securities of
that series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Debt Securities of that series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Debt Securities of that series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) the denominations in which any Debt Securities of that
series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof;
(9) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of that series which shall
be payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(10) any addition to, or modification or deletion of, any
Events of Default or covenants of the Company with respect to the Debt
Securities of that series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(11) if a Person other than Star Bank, National Association
is to act as Trustee for the Debt Securities of that series, the name
and location of the Corporate Trust Office of such Trustee;
(12) if other than as set forth in Section 401, provisions
for the satisfaction and discharge of this Indenture with respect to
the Debt Securities of that series;
(13) any provision relating to the defeasance of the
obligations of the Company in connection with the Debt Securities of
that series;
(14) any provisions regarding exchangeability or
conversion of the Debt Securities of that series; and
(15) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any particular series shall be
substantially identical except as to denomination, rate of interest, Stated
Maturity and the date from which interest, if any,
<PAGE> 26
shall accrue, and except as may otherwise be provided in or pursuant to such
Board Resolution relating thereto. The terms of such Debt Securities, as set
forth above, may be determined by the Company from time to time if so provided
in or established pursuant to the authority granted in a Board Resolution. All
Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.
SECTION 302. Denominations.
Unless otherwise provided with respect to any series of Debt
Securities as contemplated by Section 301, all Debt Securities of a series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Debt Securities shall be executed on behalf of the Company
by its Chairman of the Board, a Vice Chairman of the Board, or its President or
one of its Vice Presidents. The Debt Securities shall be so executed under the
corporate seal of the Company reproduced thereon and attested to by its
Secretary or any one of its Assistant Secretaries. The signature of any of
these officers on the Debt Securities may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities of any
series executed by the Company to the Trustee for the Debt Securities of such
series for authentication, together with a Company Order for the authentication
and delivery of such Debt Securities, and such Trustee, in accordance with the
Company Order, shall authenticate and deliver such Debt Securities. If all the
Debt Securities of any one series are not to be issued at one time and if a
Board Resolution relating to such Debt Securities shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities, including, without limitation, procedures with respect to
interest rate, Stated Maturity, date of issuance and date from which interest,
if any, shall accrue.
Notwithstanding any contrary provision herein, if all Debt
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Board Resolution, Officers' Certificate and
Opinion of Counsel otherwise required pursuant to Sections 102 and 201 at or
prior to the time of authentication of each Debt Security of such series if
such
<PAGE> 27
documents are delivered at or prior to the authentication upon original
issuance of the first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its
authentication.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debt Security a certificate of authentication substantially in the form
provided for herein manually executed by the Trustee for such Debt Security or
on its behalf pursuant to Section 614, and such certificate upon any Debt
Security shall be conclusive evidence, and the only evidence, that such Debt
Security has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Debt Securities and Exchange of
Debt Securities.
Pending the preparation of definitive Debt Securities of any
particular series, the Company may execute, and upon Company Order the Trustee
for the Debt Securities of such series shall authenticate and deliver, in the
manner specified in Section 303, temporary Debt Securities which are printed,
lithographed, typewritten, photocopied or otherwise produced, in any
denomination, with like terms and conditions as the definitive Debt Securities
of like series in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Debt Securities may determine, as evidenced by their execution
of such Debt Securities.
If temporary Debt Securities of any particular series are
issued, the Company will cause definitive Debt Securities of that series to be
prepared without unreasonable delay. After the preparation of such definitive
Debt Securities, the temporary Debt Securities of such series shall be
exchangeable for such definitive Debt Securities and of a like Stated Maturity
and with like terms and provisions upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt Securities of any particular
series, the Company shall execute and (in accordance with a Company Order
delivered at or prior to the authentication of the first definitive Debt
Security of such series) the Trustee for the Debt Securities of such series
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of authorized denominations of the same series and
of a like Stated Maturity and with like terms and provisions. Until exchanged
as hereinabove provided, the temporary Debt Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of the same series and with like terms and
conditions authenticated and delivered hereunder.
<PAGE> 28
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall keep or cause to be kept for the Debt
Securities of each series a register (the register maintained in such office
being herein sometimes referred to as the "Debt Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration, registration of transfer and exchange of Debt
Securities. The Securities Transfer Company is hereby initially appointed
"Debt Security Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt
Security of any particular series at the office or agency of the Company in a
Place of Payment for that series, the Company shall execute, and the Trustee
for the Debt Securities of each series shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Debt
Securities of any authorized denominations, and of a like Stated Maturity and
of a like series and aggregate principal amount and with like terms and
conditions.
Except as set forth below, at the option of the Holder, Debt
Securities of any particular series may be exchanged for other Debt Securities
of any authorized denominations, and of a like Stated Maturity and of a like
series and aggregate principal amount and with like terms and conditions, upon
surrender of the Debt Securities to be exchanged at such office or agency.
Whenever any Debt Securities are so surrendered for exchange, the Company shall
execute, and the Trustee for such Debt Securities shall authenticate and
deliver, the Debt Securities which the Holder making the exchange is entitled
to receive.
All Debt Securities issued upon any registration of transfer
or exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of
transfer or exchange.
Every Debt Security presented or surrendered for registration
of transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Debt
Securities, other than exchanges pursuant to Section 304, 906, 1013 or 1107 not
involving any transfer.
<PAGE> 29
The Company shall not be required (i) to issue, register the
transfer of or exchange Debt Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 1104 and ending at the close of business on the day of the mailing of
the relevant notice of redemption , or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities.
If (i) any mutilated Debt Security is surrendered to the
Trustee for such Debt Security, or the Company and the Trustee for a Debt
Security receive evidence to their satisfaction of the destruction, loss or
theft of any Debt Security, and (ii) there is delivered to the Company and such
Trustee such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company or such Trustee that such Debt Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request such
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Debt Security or in exchange for such mutilated Debt Security, a new
Debt Security of the same series and in a like principal amount and of a like
Stated Maturity and with like terms and conditions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
(without surrender thereof except in the case of a mutilated Debt Security) if
the applicant for such payment shall furnish to the Company and the Trustee for
such Debt Security such security or indemnity as may be required by them to
save each of them harmless, and in case of destruction, loss or theft, evidence
satisfactory to the Company and such Trustee and any agent of either of them of
the destruction, loss or theft of such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee for such Debt
Security) connected therewith.
Every new Debt Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Debt Security or in exchange
for any mutilated Debt Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debt Security shall be at any
<PAGE> 30
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities of
the same series, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Interest on any Debt Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall, if so
provided in such Debt Security, be paid to the Person in whose name that Debt
Security (or one or more Predecessor Debt Securities) is registered at the
close of business on the Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Debt Securities
of any series, payment of interest may be made at the option of the Company by
check mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or by transfer to an account
maintained by the payee with a bank located inside the United States.
Any interest on any Debt Security of any particular series
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered Holder on the relevant Regular Record
Date by virtue of having been such Holder; and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debt Securities of that
series (or their respective Predecessor Debt Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee for the Debt
Securities of such series in writing of the amount of Defaulted
Interest proposed to be paid on each Debt Security of that series and
the date of the proposed payment, and at the same time the Company
shall deposit with such Trustee an amount of money (except as
otherwise specified pursuant to Section 301 for the Debt Securities of
such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to such Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause
<PAGE> 31
provided. Thereupon such Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall not be more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by such Trustee of
the notice of the proposed payment. Such Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Debt Securities
of that series at such Holder's address as it appears in the Debt
Security Register not less than 10 days prior to such Special Record
Date. Such Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at
least once in a newspaper published in the English language
customarily on each Business Day and of general circulation in New
York, New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Debt Securities of
that series (or their respective Predecessor Debt Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Debt Securities of any particular series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which the Debt Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice is given by the Company
to the Trustee for the Debt Securities of such series of the proposed
manner of payment pursuant to this clause, such manner of payment
shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Debt Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Debt
Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Debt Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Debt Security for registration
of transfer, the Company, the Trustee for such Debt Security and any agent of
the Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
307) interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and
<PAGE> 32
neither the Company, such Trustee nor any agent of the Company or such Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Debt Securities surrendered for payment, redemption,
registration of transfer or exchange, or delivered in satisfaction of any
sinking fund payment, shall, if surrendered to any Person other than the
Trustee for such Debt Securities, be delivered to such Trustee and shall be
promptly canceled by it. The Company may at any time deliver to the Trustee
for Debt Securities of a series for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by such Trustee. Notwithstanding any other provision of this
Indenture to the contrary, in the case of a series, all the Debt Securities of
which are not to be originally issued at one time, a Debt Security of such
series shall not be deemed to have been Outstanding at any time hereunder if
and to the extent that, subsequent to the authentication and delivery thereof,
such Debt Security is delivered to the Trustee for such Debt Security for
cancellation by the Company or any agent thereof upon the failure of the
original purchaser thereof to make payment therefor against delivery thereof,
and any Debt Security so delivered to such Trustee shall be promptly canceled
by it. No Debt Securities shall be authenticated in lieu of or in exchange for
any Debt Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Debt Securities held by the Trustee
for such Debt Securities shall be disposed of by such Trustee in accordance
with its standard procedures and a certificate of disposition evidencing such
disposition of Debt Securities shall be provided to the Company by such
Trustee.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Debt Securities of any particular series, interest on the Debt Securities
of each series shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Debt Securities of
any Series.
(a) The Company shall be deemed to have satisfied and
discharged the entire indebtedness on all the Debt Securities of any particular
series and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Company Request and at the expense of
the Company, shall
<PAGE> 33
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt
Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Debt Securities of such series for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in the last paragraph of Section 1003) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Debt Securities of
such series described in (A) above not theretofore so
delivered to the Trustee for the Debt Securities of such
series for cancellation:
(i) the Company has deposited or caused to be
deposited with such Trustee as trust funds in trust an
amount (except as otherwise specified pursuant to Section
301 for the Debt Securities of such series), sufficient to
pay and discharge the entire indebtedness on all such
Outstanding Debt Securities of such series for principal
(and premium, if any) and interest, if any, to the Stated
Maturity or any Redemption Date as contemplated by Section
402, as the case may be; or
(ii) the Company has deposited or caused to be
deposited with such Trustee as obligations in trust such
amount of U.S. Government Obligations as will as evidenced
by a Certificate of a Firm of Independent Public
Accountants delivered to such Trustee, together with the
predetermined and certain income to accrue thereon (without
consideration of any reinvestment thereof), be sufficient
to pay and discharge when due the entire indebtedness on
all such Outstanding Debt Securities of such series for
unpaid principal (and premium, if any) and interest, if
any, to the Stated Maturity or any Redemption Date as
contemplated by Section 402, as the case may be; or
(iii) the Company has deposited or caused to be
deposited with such Trustee in trust an amount equal to the
amount referred to in clause (i) or (ii) in any
combination;
<PAGE> 34
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Debt Securities of such series;
(3) the Company has delivered to such Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of the entire indebtedness on all Debt Securities of
such series have been complied with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date
of such deposit or are not to be called for redemption within one year
of the date of such deposit under arrangements satisfactory to such
Trustee as of the date of such deposit, then the Company shall have
given, not later than the date of such deposit, notice of such deposit
to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in
this Section 401 with respect to all the Debt Securities of any series, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon,
or applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 401(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be
Outstanding under clause (3) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law, (ii) from
any obligations under Sections 402(b), 607 and 610 and (iii) from any
obligations under Sections 305 and 306 (except that Debt Securities of such
series issued upon registration of transfer or exchange or in lieu of
mutilated, destroyed, lost or stolen Debt Securities shall not be obligations
of the Company) and Sections 701 and 1002; and provided, further, that in the
event a petition for relief under the Bankruptcy Act of 1978 or Title 11 of the
United States Code or a successor statute is filed and not discharged with
respect to the Company within 91 days after the deposit, the entire
indebtedness on all Debt Securities of such series shall not be discharged, and
in such event the Trustee shall return such deposited funds or obligations as
it is then holding to the Company upon Company Request.
SECTION 402. Application of Trust Money.
(a) All money and obligations deposited with the Trustee for
any series of Debt Securities pursuant to Section 401 shall be held irrevocably
in trust and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in
<PAGE> 35
accordance with the provisions of the Debt Securities, this Indenture and such
escrow trust agreement, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as such Trustee
may determine, to the Persons entitled thereto, of the principal of (and
premium, if any) and interest, if any, on the Debt Securities for the payment
of which such money and obligations have been deposited with such Trustee. If
Debt Securities of any series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for such series of Debt
Securities for the giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for
any series of Debt Securities against any tax, fee or other charge imposed on
or assessed against U.S. Government Obligations deposited pursuant to Section
401 or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is
payable by or on behalf of Holders. The obligation of the Company under this
Section 402(b) shall be deemed to be an obligation of the Company under Section
607(2).
(c) Anything in this Article Four to the contrary
notwithstanding, the Trustee for any series of Debt Securities shall deliver or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 401 which, as
expressed in a Certificate of a Firm of Independent Public Accountants
delivered to such Trustee, are in excess of the amount thereof which would then
have been required to be deposited for the purpose for which such money or U.S.
Government Obligations were deposited or received provided such delivery can be
made without liquidating any U.S. Government Obligations.
SECTION 403. Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section
401 as to the satisfaction and discharge of each series of Debt Securities
issued hereunder, and if the Company has paid or caused to be paid all other
sums payable under this Indenture, this Indenture shall cease to be of any
further effect (except as otherwise provided herein). Upon Company Request and
receipt of an Opinion of Counsel and an Officers' Certificate complying with
the provisions of Section 102, the Trustees for all series of Debt Securities
(at the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, any obligations of the Company under Sections 304, 305, 306, 402(b),
607, 610, 701 and 1002 and the obligations of the
<PAGE> 36
Trustee for any series of Debt Securities under Section 402 shall survive.
SECTION 404. Reinstatement.
If the Trustee for any series of Debt Securities is unable to
apply any of the amounts (for purposes of this Section 404, "Amounts") or U.S.
Government Obligations, as the case may be, described in Section
401(a)(1)(B)(i) or (ii), respectively, in accordance with the provisions of
Section 401 by reason of any legal proceeding or any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Debt
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee for such
series is permitted to apply all such Amounts or U.S. Government Obligations,
as the case may be, in accordance with the provisions of Section 401; provided,
however, that if, due to the reinstatement of its rights or obligations
hereunder, the Company has made any payment of principal of (or premium, if
any) or interest, if any, on such Debt Securities, the Company shall be
subrogated to the rights of the Holders of such Debt Securities to receive
payment from such Amounts or U.S. Government Obligations, as the case may be,
held by the Trustee for such series.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to any
particular series of Debt Securities, unless otherwise specified in the Debt
Security or the Board Resolution with respect to that series of Debt
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any installment of interest
upon any Debt Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Debt Security of that series at its Maturity; or
(3) default in the performance of, or breach of, any covenant
or warranty of the Company in respect of any Debt
<PAGE> 37
Security of that series contained in this Indenture or in such Debt
Securities (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which expressly has been included in this Indenture
solely for the benefit of Debt Securities of a series other than that
series) or in the applicable Board Resolution under which such series
is issued as contemplated by Section 301 and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee for the
Debt Securities of such series or to the Company and such Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(4) if an event of default with respect to any other series
of Debt Securities or as defined in any mortgage, indenture, security
agreement or other instrument under which there may be issued, or by
which there may be secured or evidenced, any Indebtedness of the
Company for money borrowed in excess of $10 million principal amount,
whether such Indebtedness now exists or shall hereafter be created,
shall happen and, if such Indebtedness is not already matured in
accordance with its terms, shall result in such Indebtedness becoming
or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not have
been rescinded or annulled or such Indebtedness shall not have been
discharged, in either case, within a period of ten days after there
has been given, by registered or certified mail in the manner set
forth in Section 105, to the Company by the Trustee for the Debt
Securities of that particular series referred to in the first clause
of this Section 501 or to the Company and such Trustee by the Holders
of at least 25% in principal amount of the Outstanding Debt Securities
of that particular series referred to in the first clause of this
Section 501 a written notice specifying such event of default and
requiring the Company to cause such acceleration to be rescinded or
annulled or to cause such Indebtedness to be discharged and stating
that such notice is a "Notice of Default" hereunder; provided, that if
prior to the entry of judgment in favor of the Trustee, such default
under such indenture or instrument shall be remedied or cured by the
Company or waived by the holders of such Indebtedness, then the Event
of Default hereunder shall be deemed likewise to have been remedied,
cured or waived; and provided, further, that, if such default results
from an action of the United States government or a foreign government
which prevents the Company from performing its obligations under such
agreement, indenture or instrument, the occurrence of such default
will not be an Event of Default hereunder; and provided, further,
however, that, subject to the provisions of Sections 601 and 602, such
Trustee shall not be deemed to have
<PAGE> 38
knowledge of such default unless either (A) a Responsible Officer of
such Trustee assigned to its Corporate Trustee Administration
Department shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the Company,
from the Holders of 10% or more in principal amount of the Outstanding
Debt Securities of such other series, from the holder of any such
Indebtedness or from the trustee under any such mortgage, indenture,
security agreement or other instrument; or
(5) the entry against the Company of one or more judgments,
decrees or orders by a court having jurisdiction in the premises from
which no appeal may be or is taken for the payment of money, either
individually or in the aggregate, in excess of $10 million and the
continuance of such judgment, decree or order unsatisfied and in
effect for any period of 60 consecutive days without a stay of
execution and there has been given, by registered or certified mail in
the manner set forth in Section 105, to the Company by the Trustee for
the Debt Securities of such series or to the Company and such Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Debt Securities of such series a written notice specifying such entry
and continuance of such judgment, decree or order and stating that
such notice is a "Notice of Default" hereunder; provided, however,
that subject to the provisions of Sections 601 and 602, such Trustee
shall not be deemed to have knowledge of such entry and continuance of
such judgment, decree or order unless either (A) a Responsible
Officer of such Trustee assigned to its Corporate Trustee
Administration Department shall have actual knowledge thereof or (B)
the Trustee shall have received written notice thereof from the
Company or from the Holders of 10% or more in principal amount of the
Outstanding Debt Securities of such series; or
(6) the Company shall commence any case or proceeding seeking
to have an order for relief entered on its behalf as debtor or to
adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or the
Company shall apply for a receiver, custodian or trustee (other than
any trustee appointed as a mortgagee or secured party in connection
with the issuance of indebtedness for borrowed money of the Company)
of it or for all or a substantial part of its property; or the Company
shall make a general assignment for the benefit of creditors; or the
Company shall take any corporate action in furtherance of any of the
foregoing; or
<PAGE> 39
(7) any case or proceeding against the Company shall be
commenced seeking to have an order for relief entered against it or to
adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee (other than any trustee appointed as a
mortgagee or secured party in connection with the issuance of
indebtedness for borrowed money of the Company) of the Company or for
all or a substantial part of its property shall be appointed in any
such case or proceeding; and such case or proceeding (A) results in
the entry of an order for relief or a similar order against it or (B)
shall continue unstayed and in effect for a period of 60 consecutive
days.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to any particular series
of Debt Securities occurs and is continuing, then and in every such case either
the Trustee for the Debt Securities of such series or the Holders of not less
than 25% in principal amount of the Outstanding Debt Securities of that series
may declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if
given by Holders), and upon any such declaration of acceleration such principal
or such lesser amount, as the case may be, together with accrued interest and
all other amounts owing hereunder, shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee for the Debt Securities of any series as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series, by written notice to the Company
and such Trustee, may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay (except as otherwise specified pursuant to Section
301 for the Debt Securities of such series)
(A) all overdue interest on all Debt Securities of that
series;
<PAGE> 40
(B) the principal of (and premium, if any, on) any Debt
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon from
the date such principal became due at a rate per annum equal
to the rate borne by the Debt Securities of such series (or,
in the case of Discounted Debt Securities, the Debt
Securities' Yield to Maturity), to the extent that the payment
of such interest shall be legally enforceable;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at a rate per annum
equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt
Securities' Yield to Maturity); and
(D) all sums paid or advanced by such Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 607;
and
(2) all Events of Default with respect to the Debt
Securities of such series, other than the nonpayment of the principal
of Debt Securities of that series which has become due solely by such
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon
any Debt Security of any series when such interest becomes due and
payable and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Debt Security of any series at its
Maturity;
the Company will, upon demand of the Trustee for the Debt Securities of such
series, pay to it, for the benefit of the Holders of such Debt Securities, the
whole amount then due and payable on such Debt Securities for principal (and
premium, if any) and interest, if any, with interest upon the overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of
<PAGE> 41
interest at a rate per annum equal to the rate borne by such Debt Securities
(or, in the case of Discounted Debt Securities, the Debt Securities' Yield to
Maturity); and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents
and counsel and all other amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such
demand, such Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceedings to judgment or final decree, and may
enforce the same against the Company and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company,
wherever situated.
If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relating to the Company or the property of the
Company or its creditors, the Trustee for the Debt Securities of any series
(irrespective of whether the principal (or lesser amount in the case of
Discounted Debt Securities) of any Debt Security of such series shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether such Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal
(or lesser amount in the case of Discounted Debt Securities) (and
premium, if any) and interest, if any, owing and unpaid in respect of
the Debt Securities of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of such Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and
counsel and all other amounts due to such Trustee
<PAGE> 42
under Section 607) and of the Holders of the Debt Securities of such
series allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and
(iii) unless prohibited by law or applicable regulations, to vote
on behalf of the Holders of the Debt Securities of such series in any
election of a trustee in bankruptcy or other person performing similar
functions;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder
of Debt Securities to make such payments to such Trustee, and in the event that
such Trustee shall consent to the making of such payments directly to the
Holders of Debt Securities, to pay to such Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel, and any other amounts due such Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the
Trustee for the Debt Securities of any series to authorize or consent to or
accept or adopt on behalf of any Holder of a Debt Security any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities of such series or the rights of any Holder thereof, or to authorize
the Trustee for the Debt Securities of any series to vote in respect of the
claim of any Holder in any such proceeding, except as aforesaid, for the
election of a trustee in bankruptcy or other person performing similar
functions.
SECTION 505. Trustee May Enforce Claims Without
Possession of Debt Securities.
All rights of action and claims under this Indenture or the
Debt Securities of any series may be prosecuted and enforced by the Trustee for
the Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and counsel
and all other amounts due to such Trustee under Section 607, be for the ratable
benefit of the Holders of the Debt Securities of such series in respect of
which such judgment has been recovered.
<PAGE> 43
SECTION 506. Application of Money Collected.
Any money collected by the Trustee for the Debt Securities of
any series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid
upon the Debt Securities of such series for principal of (and premium,
if any) and interest, if any, on such Debt Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Debt Securities for principal (and
premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Security of any particular series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall
have occurred and be continuing and such Holder shall have previously
given written notice to the Trustee for the Debt Securities of such
series of such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
<PAGE> 44
(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
that series;
it being understood and intended that no Holder or Holders of Debt Securities
of that series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Debt Securities of that series, or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders of Debt Securities of
that series.
SECTION 508. Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest, if any, on such Debt Security on the
respective Stated Maturities expressed in such Debt Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee for the Debt Securities of any series or any
Holder of a Debt Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Trustee or
to such Holder, then and in every such case the Company, such Trustee and the
Holders of Debt Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of such Trustee and such
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee for the Debt Securities of any series or to the Holders of Debt
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy
<PAGE> 45
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Debt Securities of
any series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to such Trustee for the Debt
Securities of any series or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by such Trustee or by the Holders, as
the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any particular series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee for the Debt Securities of such series with respect to
the Debt Securities of that series or exercising any trust or power conferred
on such Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(2) such Trustee may take any other action deemed proper by
such Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any particular series may on behalf of the
Holders of all the Debt Securities of that series waive any past default
hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Debt Security of that series; or
(2) a default with respect to a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of that series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
<PAGE> 46
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law, wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee for any series
of Debt Securities, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series for which the Trustee is serving
as such,
(1) such Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to such Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to such Trustee, such Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Debt Securities has occurred and is continuing, the Trustee for the Debt
Securities of such series shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee for Debt Securities of any series from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that no provision of
<PAGE> 47
this Indenture shall require the Trustee for any series of Debt Securities to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee for any series of Debt Securities shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Debt Securities of any particular series, the Trustee for the
Debt Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 106, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of such Trustee in
good faith determines that the withholding of such notice is in the interest of
the Holders of Debt Securities of that series; and provided, further, that in
the case of any default of the character specified in Section 501(3) with
respect to Debt Securities of that series no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to Debt
Securities of that series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Debt Securities may rely
and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
<PAGE> 48
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, such
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) such Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Debt Securities of any series
pursuant to this Indenture for which it is acting as Trustee, unless
such Holders shall have offered to such Trustee security or indemnity
reasonably satisfactory to such Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) such Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but such
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters at it may see fit, and, if
such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) such Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and such Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of
Debt Securities.
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication thereof, shall be taken as
the statements of the Company, and neither the Trustee for any series of Debt
Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Debt Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities
<PAGE> 49
of any series. Neither the Trustee for any series of Debt Securities nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Debt Securities or the proceeds thereof.
SECTION 605. May Hold Debt Securities.
The Trustee for any series of Debt Securities, any
Authenticating Agent, Paying Agent, Debt Security Registrar or any other agent
of the Company or such Trustee, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if
it were not such Trustee, Authenticating Agent, Paying Agent, Debt Security
Registrar or other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee for any series of Debt Securities in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee for any series of Debt Securities shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee for any series of Debt
<PAGE> 50
Securities shall have a lien prior to the Debt Securities upon all property and
funds held or collected by such Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) or interest, if any, on any
particular series Debt Securities. Such lien shall survive satisfaction and
discharge of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for any series of Debt Securities shall be subject
to and comply with the provisions of Section 310(b) of the Trust Indenture Act
during the period of time required thereby. Nothing herein shall prevent the
Trustee for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 609. Corporate Trustee Required, Different Trustees for
Different Series; Eligibility.
There shall at all times be a Trustee hereunder for the Debt
Securities of each series which satisfies the requirements of Trust Indenture
Act Sections 310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
Federal, State or District of Columbia authority. A different Trustee may be
appointed by the Company for each series of Debt Securities prior to the
issuance of such Debt Securities. If the initial Trustee for any series of
Debt Securities is to be other than Star Bank, National Association, the
Company and such Trustee shall, prior to the issuance of such Debt Securities,
execute and deliver an indenture supplemental hereto, which shall provide for
the appointment of such Trustee as Trustee for the Debt Securities of such
series and shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee. If at any time the Trustee for the
Debt Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
<PAGE> 51
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
611.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act
of the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Debt Securities of any series
shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608 after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Debt Security of such series for at least six
months unless the Trustee's duty to resign is stayed in
accordance with Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) such Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
such Trustee or of its property shall be appointed or any
public officer shall take charge or control of such Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove such
Trustee or (ii) any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of such Trustee and the appointment of a successor Trustee.
<PAGE> 52
(e) If the Trustee for the Debt Securities of any series
shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for the Debt Securities of any series for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee with respect to the Debt Securities of such series and shall comply
with the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee for the Debt Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee for the Debt Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 611, and if such Trustee is still incapable of
acting, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Debt Securities of any series
and each appointment of a successor Trustee with respect to the Debt Securities
of any series in the manner and to the extent provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the Debt
Securities of that series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with
respect to the Debt Securities of any series shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject to the lien provided for in Section
607.
<PAGE> 53
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Debt Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and each Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities
of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee for the Debt Securities
of any series shall be qualified and eligible under this Article.
(e) Notwithstanding replacement of the Trustee pursuant to
Section 610, the Company's obligations under Section 607 shall continue for the
benefit of the retiring Trustee with respect to expenses, losses and
liabilities incurred by it prior to such replacement.
<PAGE> 54
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee or the Authenticating
Agent, as the case may be, for the Debt Securities of any series may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee or such
Authenticating Agent, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of such
Trustee, shall be the successor of such Trustee or such Authenticating Agent,
as the case may be, hereunder, provided such successor corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto
or the Trustee, the Authenticating Agent or their respective successor
corporations. In case any Debt Securities shall have been authenticated, but
not delivered, by the Trustee or the Authenticating Agent for such series then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Debt Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee for any particular series of Debt Securities shall
comply with Section 311(a) of the Trust Indenture Act for that particular
series of Debt Securities, excluding any creditor relationship listed in
Section 311(b) of that Act. If the Trustee for any particular series of Debt
Securities shall resign or be removed as Trustee for that particular series of
Debt Securities, it shall be subject to Section 311(a) of the Trust Indenture
Act to the extent provided therein.
SECTION 614. Authenticating Agents.
From time to time the Trustee for the Debt Securities of any
series may, subject to its sole discretion, appoint one or more Authenticating
Agents with respect to the Debt Securities of such series, which may include
the Company or any Affiliate of the Company, with power to act on the Trustee's
behalf and subject to its discretion in the authentication and delivery of Debt
Securities of such series in connection with transfers and exchanges hereunder,
including but not limited to those pursuant to Sections 304, 305, 306 and 1107,
as fully to all intents and purposes as though such Authenticating Agent had
been expressly authorized by those Sections of this Indenture to authenticate
and deliver Debt Securities of such series. For all purposes of this
Indenture, the authentication and delivery of Debt Securities of such series by
an Authenticating Agent for such Debt Securities pursuant to this Section shall
be deemed to be authentication and
<PAGE> 55
delivery of such Debt Securities "by the Trustee" for the Debt Securities of
such series. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal, State or District of Columbia authority. If such
Authenticating Agent publishes reports of condition at least annually pursuant
to law or the requirements of such supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent for any series of Debt Securities shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Authenticating Agent for any series of Debt Securities may
resign at any time by giving written notice of resignation to the Trustee for
such series and to the Company. The Trustee for any series of Debt Securities
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the Company
in the manner set forth in Section 105. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent for any series of Debt Securities shall cease to be
eligible under this Section, the Trustee for such series may appoint a
successor Authenticating Agent, shall give written notice of such appointment
to the Company and shall give written notice of such appointment to all Holders
of Debt Securities of such series in the manner set forth in Section 106. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee for the Debt Securities of each series agrees to
pay to any Authenticating Agent for such series from time to time reasonable
compensation for its services, and such Trustee shall be entitled to be
reimbursed for such payments, subject to Section 607.
If an appointment with respect to one or more series of Debt
Securities is made pursuant to this Section, the Debt Securities of such series
may have endorsed thereon, in addition to the Trustee's certification of
authentication, an alternate certificate of authentication in the following
form:
<PAGE> 56
"This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
-------------------------------
By:
-----------------------
As Authenticating Agent
By:
-----------------------
Authorized Officer"
ARTICLE SEVEN
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders.
The Trustee for any particular series of Debt Securities shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of the Debt Securities of
that series. Neither the Company nor such Trustee shall be under any
responsibility with regard to the accuracy of such list. With respect to each
series of Debt Securities, the Company, in furnishing information regarding
such Holders to such Trustee, and such Trustee, will satisfy the requirements
imposed upon each of them by Section 312(a) of the Trust Indenture Act.
SECTION 702. Communications to Holders.
Holders of any particular series of Debt Securities may
communicate with other Holders of Debt Securities of that series with respect
to their rights under this Indenture or under such series of Debt Securities
pursuant to Section 312(b) of the Trust Indenture Act. The Company and the
Trustee for any particular series of Debt Securities and any and all other
Persons benefitted by this Indenture shall have the protection afforded by
Section 312(c) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
Within 60 days after November 15 of each year commencing with
the year following the first issuance of Debt Securities, the Trustee for the
Debt Securities of each series shall transmit by mail to all Holders of the
Debt Securities of such series a brief report dated as of such date that
complies with Section 313(a) of the Trust Indenture Act, but only if such
report is required in any year under such Section 313(a) of the Trust Indenture
Act. With respect to each series of Debt
<PAGE> 57
Securities, the Trustee shall also comply with Sections 313(b) and 313(c) of
the Trust Indenture Act. At any time a report is mailed to the Holders of any
particular series of Debt Securities, a copy of such report shall be filed with
the Commission and with each securities exchange, if any, on which the Debt
Securities of such series are listed. With respect to each series of Debt
Securities, the Company will notify the applicable Trustee when such series of
Debt Securities is listed on any securities exchange.
SECTION 704. Reports by Company.
The Company shall file such annual and/or periodic reports and
certificates with the Trustees for each series of Debt Securities and/or with
the Commission and/or with the Holders of each series of Debt Securities as are
required by the provisions of Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
corporation or sell, convey, assign, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety to any
Person unless:
(1) either (i) the Company shall be the continuing
corporation or (ii) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Debt Securities and the performance and observance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction
(and treating any Indebtedness not previously an obligation of the
Company or a Subsidiary which becomes the obligation of the Company or
any of its Subsidiaries in
<PAGE> 58
connection with or as a result of such transaction as having been
incurred at the time of such transaction), no Event of Default, and no
event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing;
(3) such other conditions, if any, as may be set forth in
the Board Resolution establishing the Debt Securities of that
particular series are met or complied with; and
(4) the Company has delivered to the Trustee for each
series of Debt Securities an Officers' Certificate and an Opinion
of Counsel each stating that such consolidation, merger, conveyance
or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor corporation formed by
such consolidation or into which the Company is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named as the Company
herein and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Debt Securities and, in
the event of any such consolidation, merger, conveyance or transfer, the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up, or liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Debt Securities, the
Company, when authorized by a Board Resolution, and the Trustee for the Debt
Securities of any or all series, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to such
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Debt Securities contained; or
<PAGE> 59
(2) to add to the covenants of the Company, for the benefit
of the Holders of all or any particular series of Debt Securities
(and, if such covenants are to be for the benefit of fewer than all
series of Debt Securities, stating that such covenants are being
included solely for the benefit of such series), or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of
Default applies to fewer than all series of Debt Securities, stating
each series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than Star Bank, National Association as
Trustee for a series of Debt Securities and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 609; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities
of one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant
to Section 401; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
<PAGE> 60
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Debt Securities of any particular
series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
The Company, when authorized by a Board Resolution, and the
Trustee for the Debt Securities of any or all series may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of such
Debt Securities under this Indenture, but only with the consent of the Holders
of more than 50% in aggregate principal amount of the Outstanding Debt
Securities of each series of Debt Securities then Outstanding affected thereby,
in each case by Act of said Holders of Debt Securities of each such series
delivered to the Company and the Trustee for Debt Securities of each such
series; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security, or
reduce the principal amount thereof or the rate of interest thereon,
if any, or any premium payable upon the redemption thereof, or reduce
the amount of the principal of a Discounted Debt Security that would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change the Place of Payment, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any particular series, the consent of
whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture; or
<PAGE> 61
(3) modify any of the provisions of this Section or Section
513 or 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Debt Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Debt Security with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1008, or the deletion of this
proviso, in accordance with the requirements of Sections 609, 611(b),
901(6) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or which modifies
the rights of the Holders of Debt Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee for any series of
Debt Securities shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Debt Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, liabilities, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Debt Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
<PAGE> 62
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities of any particular series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee for the Debt Securities of
such series, bear a notation in form approved by such Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Debt Securities of any series so modified as to conform, in the
opinion of the Trustee for the Debt Securities of such series and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by such Trustee in exchange for
Outstanding Debt Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal (and Premium, if any) and
Interest, if any.
The Company agrees, for the benefit of each particular series
of Debt Securities, that it will duly and punctually pay (except as otherwise
specified pursuant to Section 301 for the Debt Securities of such series) the
principal of (and premium, if any) and interest, if any, on that series of Debt
Securities in accordance with the terms of the Debt Securities of such series
and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for a
series of Debt Securities an office or agency where Debt Securities of that
series may be presented or surrendered for payment, where Debt Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company with respect to the Debt
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee for the Debt Securities of that
series of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Debt Securities or shall fail to
furnish the Trustee for the Debt Securities of that series with the address
thereof, such presentations (to the extent permitted
<PAGE> 63
by law) and surrenders of Debt Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of such
Trustee, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for such purpose. The
Company will give prompt written notice to the Trustee for the Debt Securities
of each series so affected of any such designation or rescission and of any
change in the location of any such office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any particular series of Debt Securities, it will, on or not
more than one Business Day before each due date of the principal of (and
premium, if any) or interest, if any, on any of the Debt Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum (except as otherwise specified pursuant to Section 301 for the
Debt Securities of such series) sufficient to pay the principal (and premium,
if any) and interest, if any, so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee for the Debt Securities of such series of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any particular series of Debt Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest, if any, on any such Debt
Securities, deposit with a Paying Agent for the Debt Securities of such series
a sum sufficient to pay the principal (and premium, if any) and interest, if
any, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless such Paying Agent is the Trustee for the
Debt Securities of such series) the Company will promptly notify such Trustee
of its action or failure so to act.
The Company will cause each Paying Agent for any particular
series of Debt Securities other than the Trustee for the Debt Securities of
such series to execute and deliver to such Trustee an instrument in which such
Paying Agent shall agree with such Trustee, subject to the provisions of this
Section, that such Paying Agent will:
<PAGE> 64
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Debt Securities of
that series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give such Trustee notice of any default by the Company in
the making of any payment of principal (or premium, if any) and
interest, if any, on Debt Securities of that series;
(3) at any time during the continuation of any such default,
upon the written request of such Trustee, forthwith pay to such
Trustee all sums so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all
respects with the provisions of this Indenture relating to the duties,
rights and disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee for the Debt Securities
of any series or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) and interest, if any, on
any Debt Security of any particular series and remaining unclaimed for two
years after such principal (and premium, if any) and interest, if any, has
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat, abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trusts; and the Holder of such Debt Security shall,
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of such Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that such Trustee or such
Paying Agent, before being required to make any such repayment may mail written
notice to each such Holder of such Debt Security in the manner set forth in
Section 106, or may, in its discretion, in the name and at the expense of the
Company, cause to be published at least once in a newspaper published in the
English language customarily on each Business Day and of general circulation in
the Borough of Manhattan, the City of New York, notice, that such money remains
<PAGE> 65
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such mailing or publication, any unclaimed
balance of such money then remaining will, unless otherwise required by
mandatory provisions of applicable escheat, abandoned or unclaimed property
law, be repaid to the Company.
SECTION 1004. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon it or upon its income, profits
or property, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon its property; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1005. Maintenance of Properties.
The Company shall cause all its properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation and
maintenance of any of its properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Statements as to Compliance.
(a) The Company shall deliver to the Trustee for each series
of Debt Securities, within 120 days after the end of each fiscal year, a
written statement signed by the Chairman of the Board, a Vice Chairman of the
Board, the President or a Vice President and by the Treasurer, a Deputy
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of
the Company, stating, as to each signer thereof, that:
(1) a review of the activities of the Company during such
year and of performance under this Indenture has been made under his
supervision; and
(2) to the best of his knowledge, based on such review, the
Company is not in default in the fulfillment of any of its obligations
under this Indenture with respect to
<PAGE> 66
the Debt Securities of such series, or specifying each such default
known to him and the nature and status thereof.
For purposes of this Subsection, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) When any event has occurred and is continuing which is,
or after the giving of notice or lapse of time or both would become, an Event
of Default, or if the Trustee or any Holder of Debt Securities of any series or
the trustee for or the holder of any other evidence of Indebtedness of the
Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed default (other than with respect to Indebtedness in the
principal amount of less than $10,000,000), the Company shall deliver to the
Trustee by registered or certified mail or by telegram, telex or facsimile
transmission followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action within five Business
Days of its occurrence.
SECTION 1007. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material respect to the
Holders; and provided, further, however, that the foregoing shall not prohibit
a sale, transfer or conveyance of a Subsidiary or any of its assets in
compliance with the terms of this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1004 to 1007, inclusive, or set
forth in any Board Resolution establishing the Debt Securities of a series, if
before or after the time for such compliance the Holders of more than 50% in
principal amount of the Outstanding Debt Securities of each series of Debt
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee for the Debt Securities of each series with respect to
any such covenant or condition shall remain in full force and effect.
<PAGE> 67
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of This Article.
Redemption of Debt Securities of any series (whether by
operation of a sinking fund or otherwise) as permitted or required by any form
of Debt Security issued pursuant to this Indenture shall be made in accordance
with such form of Debt Security and this Article; provided, however, that if
any provision of any such form of Debt Security shall conflict with any
provision of this Article, the provision of such form of Debt Security shall
govern.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities of
any series shall be evidenced by or pursuant to a Board Resolution. In case of
any redemption at the election of the Company of less than all of the Debt
Securities of any particular series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for the Debt Securities of such series) notify such
Trustee by Company Request of such Redemption Date and of the principal amount
of Debt Securities of that series to be redeemed and shall deliver to such
Trustee such documentation and records as shall enable such Trustee to select
the Debt Securities to be redeemed pursuant to Section 1103. In the case of
any redemption of Debt Securities of any series prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee for Debt
Securities of such series with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to
Be Redeemed.
If less than all the Debt Securities are to be redeemed, the
Company may select the series to be redeemed, and if less than all the Debt
Securities of any series are to be redeemed, the particular Debt Securities of
that series to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee for the Debt Securities of such series, from the
Outstanding Debt Securities of that series not previously called for
redemption, by such method as such Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Debt Securities of that series, or any
integral multiple thereof) of the principal amount of Debt Securities of that
series of a denomination larger than the
<PAGE> 68
minimum authorized denomination for Debt Securities of that series pursuant to
Section 302.
The Trustee for the Debt Securities of any series to be
redeemed shall promptly notify the Company in writing of the Debt Securities of
such series selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt
Securities shall relate, in the case of any Debt Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Debt
Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 not later than the thirtieth day and not earlier than the sixtieth
day prior to the Redemption Date, to each Holder of Debt Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of a
particular series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular Debt
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security or portion thereof, and
that interest thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Debt Securities, are to
be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Debt Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee for such Debt Securities in the name and at the expense
of the Company.
<PAGE> 69
SECTION 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the
Company shall deposit with the Trustee for the Debt Securities to be redeemed
or with a Paying Agent for such Debt Securities (or, if the Company is acting
as its own Paying Agent for such Debt Securities, segregate and hold in trust
as provided in Section 1003) an amount of money (except as otherwise specified
pursuant to Section 301 for the Debt Securities of such Series) sufficient to
pay the principal amount of (and premium, if any, thereon), and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Debt Securities which are to be redeemed on that date.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (except as otherwise provided
pursuant to Section 301 for the Debt Securities of such series) and from and
after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of such Debt Security for redemption in accordance with said notice,
such Debt Security or specified portions thereof shall be paid by the Company
at the Redemption Price; provided, however, that unless otherwise specified as
contemplated by Section 301, installments of interest on Debt Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Debt Securities, or one or more Predecessor Debt Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal thereof (and premium,
if any, thereon) shall, until paid, bear interest from the Redemption Date at a
rate per annum equal to the rate borne by the Debt Security (or, in the case of
Discounted Debt Securities, the Debt Security's Yield to Maturity).
SECTION 1107. Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall
be surrendered at the Place of Payment (with, if the Company or the Trustee for
such Debt Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar
for such Debt Security duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute and such Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Debt Security or Debt Securities, of any authorized
denomination as
<PAGE> 70
requested by such Holder, of the same series and having the same terms and
provisions and in an aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of This Article.
Redemption of Debt Securities through operation of a sinking
fund as permitted or required by any form of Debt Security issued pursuant to
this Indenture shall be made in accordance with such form of Debt Security and
this Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any particular series is herein referred to as
a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by
the terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Debt Securities
of any particular series as provided for by the terms of Debt Securities of
that series.
SECTION 1202. Satisfaction of Sinking Fund Payments With
Debt Securities.
The Company (1) may deliver Outstanding Debt Securities of a
series (other than any previously called for redemption), and (2) may apply as
a credit Debt Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Debt Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Debt Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Debt Securities of such
series required to be made pursuant to the terms of such Debt Securities as
provided for by the terms of such series; provided, however, that such Debt
Securities have not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee for such Debt Securities
at the principal amount thereof and the amount of such sinking fund payment
shall be reduced accordingly.
<PAGE> 71
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any particular series of Debt Securities, the Company will deliver to the
Trustee for the Debt Securities of such series an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash (except as otherwise specified
pursuant to Section 301 for the Debt Securities of that series) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to Section 1202 and shall state the basis
for such credit and that such Debt Securities have not previously been so
credited and will also deliver to such Trustee any Debt Securities to be so
delivered. Such Trustee shall select the Debt Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Debt Securities shall be made
upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
(a) The Company covenants and agrees, and each Holder of a
Debt Security, by his acceptance thereof, likewise covenants and agrees, that,
to the extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Debt Securities and the payment of the
principal of (and premium, if any) and interest on each and all of the Debt
Securities are hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full of all Senior
Indebtedness.
(b) The Debt Securities are not senior in right of
payment to the Subordinated Debentures.
SECTION 1302. Payment Over of Proceeds Upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or
<PAGE> 72
any other marshalling of assets or liabilities of the Company, then and in any
such event:
(1) the holders of Senior Indebtedness shall be
entitled to receive payment in full of all amounts due on or
in respect of all Senior Indebtedness, or provision shall be
made for such payment satisfactory to the Holders of Senior
Indebtedness, before the Holders of the Debt Securities are
entitled to receive any payment or distribution of any kind or
character (excluding securities of the Company or any other
corporation provided for by a plan of reorganization or
readjustment that are subordinated in right of payment to all
Senior Indebtedness that may at the time be outstanding to
substantially the same extent as, or to a greater extent than,
the Debt Securities are so subordinated as provided in this
Article; such securities are hereinafter collectively referred
to as "Permitted Junior Securities") on account of principal
of (or premium, if any) or interest on the Debt Securities;
and
(2) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities (excluding Permitted Junior Securities), by set-off
or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article shall be paid
by the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy,
a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instrument evidencing any of such
Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of Senior
Indebtedness held or represented by each, to the extent
necessary to make payments in full cash equivalents
satisfactory to the Holders of Senior Indebtedness or in cash,
of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the
foregoing provisions of this Section, the Trustee or the
Holder of any Debt Security shall have received any
<PAGE> 73
payment or distribution (excluding Permitted Junior
Securities) of assets of the Company of any kind or character,
whether in cash, property or securities, in respect of
principal (and premium, if any) and interest on the Debt
Securities before all Senior Indebtedness is paid in full or
payment thereof provided for, then and in such event such
payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full after giving effect to any concurrent
payment or distribution to or for the Holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in Article Eight.
SECTION 1303. Suspension of Payment when Senior Indebtedness in
Default.
(a) Unless Section 1302 shall be applicable, upon (1) the
occurrence of a Payment Default and (2) receipt by the Trustee of written
notice of such occurrence, then no payment or distribution of any assets of the
Company of any kind or character (excluding Permitted Junior Securities) shall
be made by the Company on account of principal of (or premium, if any) or
interest on the Debt Securities or on account of the purchase or redemption or
other acquisition of Debt Securities unless and until such Payment Default
shall have been cured or waived in writing or shall have ceased to exist or
such Senior Indebtedness shall have been discharged, after which the Company
shall resume
<PAGE> 74
making any and all required payments in respect of the Debt Securities,
including any missed payments.
(b) Unless Section 1302 shall be applicable, upon (1) the
occurrence of a Non-payment Default and (2) receipt by the Trustee of written
notice of such occurrence, then no payment or distribution of any assets of the
Company of any kind or character (excluding Permitted Junior Securities) shall
be made by the Company on account of any principal of (or premium, if any) or
interest on the Debt Securities or on account of the purchase or redemption or
other acquisition of Debt Securities for a period ("Payment Blockage Period")
commencing on the earlier of the date of receipt by the Company or the Trustee
of such notice from the holders of Senior Indebtedness, or any other
representative of a holder of Senior Indebtedness unless and until (subject to
any blockage of payment that may then be in effect under subsection (a) of this
Section) the earlier of (x) more than 120 days shall have elapsed since receipt
of such written notice by the Company or the Trustee, whichever was earlier,
(y) such Non-payment Default shall have been cured or waived in writing or
shall have ceased to exist or such Senior Indebtedness shall have been
discharged or (z) such Payment Blockage Period shall have been terminated by
written notice to the Company or the Trustee from the holders of the Senior
Indebtedness or any representative of the holders of the Senior Indebtedness
initiating such Payment Blockage Period, after which, in the case of clause
(x), (y) or (z), the Company shall promptly resume making any and all required
payments in respect of the Debt Securities, including any missed payments.
Notwithstanding any other provision of this Agreement, in no event shall a
Payment Blockage Period extend beyond 120 days from the date of the receipt by
the Trustee of the notice referred to in clause (ii) hereof (the "Initial
Period"). Any number of additional Payment Blockage Periods may be commenced
during the Initial Period; provided, however, that no such additional period
shall extend beyond the Initial Period. After the expiration of the Initial
Period, no Payment Blockage Period may be commenced until at least 270
consecutive days have elapsed from the last day of the Initial Period. No
Non-payment Default with respect to Senior Indebtedness which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Senior Indebtedness initiating such Payment Blockage Period
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period whether or not within a period of 270 consecutive days unless
such event of default shall have been cured or waived for a period of not less
than 90 consecutive days.
<PAGE> 75
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Debt
Security prohibited by the foregoing provisions of this Section, then and in
such event such payment shall be paid over and delivered forthwith to the
Company.
SECTION 1304. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Debt Securities shall be subrogated to the rights of the holders
of such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debt Securities shall be
paid in full. For purposes of such subrogation, no payments or distributions
to the holders of Senior Indebtedness of any cash, property or securities to
which the Holders of the Debt Securities or the Trustee would be entitled
except for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of
the Debt Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Indebtedness, and the Holders of the Debt
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 1305. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Debt
Securities on the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in
the Debt Securities is intended to or shall (a) impair, as among the Company,
its creditors other than holders of Senior Indebtedness and the Holders of the
Debt Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Debt Securities the principal of
(and premium, if any) and interest on the Debt Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Debt Securities and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Debt Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness (1) in any case, proceeding, dissolution,
<PAGE> 76
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Company referred to in
Section 1302, to receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliverable to the Trustee
or such Holder, or (2) under the conditions specified in Section 1303, to
prevent any payment prohibited by such Section or enforce their rights pursuant
to Section 1303(c).
SECTION 1306. Trustee to Effectuate Subordination.
Each Holder of a Debt Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation
or reorganization of the Company whether in bankruptcy, insolvency,
receivership proceedings, or otherwise, the timely filing of a claim for the
unpaid balance of the indebtedness of Company owing to such Holder in the form
required in such proceedings and the causing of such claim to be approved.
SECTION 1307. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at anytime in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and
covenants or this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this
Section, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Debt Securities, without incurring responsibility to the Holders of the Debt
Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Debt Securities
to the holders of Senior Indebtedness, do any one or more of the following: (1)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness or any instrument evidencing the same or
any agreement under which Senior Indebtedness is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (3)
<PAGE> 77
release any Person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 1308. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Debt Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Debt Securities, unless and until the Trustee shall have
received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least three Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Debt Security), then, anything herein
contained to the contrary notwithstanding but without limiting the rights and
remedies of the holders of Senior Indebtedness or any trustee, fiduciary or
agent thereof, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received
and shall not be affected by any notice to the contrary which may be received
by it within three Business Days prior to such date; nor shall the Trustee be
charged with knowledge of the curing of any such default or the elimination of
the act or condition preventing any such payment unless and until the Trustee
shall have received an Officers' Certificate to such effect.
(b) Subject to the provisions of Section 601, the Trustee
shall be entitled to rely on the delivery to it of a written notice to the
Trustee and the Company by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee, fiduciary or agent therefor) to establish
that such notice has been given by a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor), provided, however, that failure to give
such notice to tie Company shall not affect in any way the ability of the
Trustee to rely on such notice. In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a
<PAGE> 78
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 1309. Reliance on Judicial Order or Certificate of Liquidation
Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Debt Securities shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Debt Securities,
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable therein, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article, provided that the foregoing shall apply only if such court has
been fully apprised of the provisions of this Article Thirteen.
SECTION 1310. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 607.
<PAGE> 79
SECTION 1311. Article Applicable to Paving Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that this Section 1311 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 1312. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Debt Securities to take any action to accelerate the
maturity of the Debt Securities pursuant to Article Five or to pursue any
rights or remedies hereunder or under applicable law, subject to the rights, if
any, under this Article Thirteen of the holders, from time to time, of Senior
Indebtedness.
SECTION 1313. Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
the Trustee shall not be liable to any holder of Senior Indebtedness if it
shall mistakenly pay over or deliver to Holders, the Company or any other
Person moneys or assets to which any holder of Senior Indebtedness shall be
entitled by virtue of this Article or otherwise.
* * *
<PAGE> 80
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture dated as of ___________, 199_ to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the
____ day of ________, 199_.
CHIQUITA BRANDS INTERNATIONAL, INC.
[SEAL]
By
--------------------------------
Title:
Attest:
STAR BANK, NATIONAL ASSOCIATION
Trustee
[SEAL]
By
--------------------------------
Title:
Attest:
<PAGE> 81
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the ___ day of ________, 199_, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he resides at _________________, _________________; that he is an
________________________ of CHIQUITA BRANDS INTERNATIONAL, INC., one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that one of the seals affixed to
the said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------
Notary Public
Commission Expires _____________
[SEAL]
<PAGE> 82
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the ___ day of ________, 199_, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he resides at ______________, __________, ____, that he is a
____________________ of STAR BANK, NATIONAL ASSOCIATION, one of the
corporations described in and which executed the above instrument, that he
knows the corporate seal of said corporation; that one of the seals affixed to
the said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------
Notary Public,
Commission Expires _____________
[SEAL]
<PAGE> 1
Exhibits 5 and 23(b)
Charles R. Morgan, Esq.
Vice President, General Counsel and Secretary
Chiquita Brands International, Inc.
250 East Fifth Street
Cincinnati, Ohio 45202
January 21, 1994
Chiquita Brands International, Inc.
250 East Fifth Street
Cincinnati, Ohio 45202
Dear Sirs:
I have acted as counsel to Chiquita Brands International, Inc.
("Chiquita") in connection with a Registration Statement on Form S-3, filed
with the Securities and Exchange Commission on January 21, 1994 (the
"Registration Statement"), registering an aggregate of $300,000,000 of Debt
Securities, Preferred Stock and Common Stock (collectively, the "Securities")
which may be issued and sold by Chiquita pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
also constitutes Post-Effective Amendment No. 1 to a Registration Statement on
Form S-3 (No. 33-43946) previously filed by the Company and declared effective
on November 22, 1991. Pursuant to Rule 429 of the rules and regulations of the
Commission under the Act, the prospectus contained in the Registration
Statement is a combined prospectus that also relates to an additional
$100,000,000 of Securities unsold under such Registration Statement (No.
33-43946).
In connection with my opinion set forth below, I have examined such
records and documents and have made such investigations of law and fact as I
have deemed necessary.
Based upon the foregoing, it is my opinion that the issuance by the
Company of the Securities has been duly authorized by Chiquita and, in the case
of an issuance of Debt Securities, when the Indenture relating to the Senior
Debt Securities or the Subordinated Debt Securities, as the case may be,
substantially in the form attached to the Registration Statement, as amended or
modified at such time, has been duly executed and delivered and, in the case of
any issuance of Securities, when the terms of each specific issuance of
Securities have been approved and authorized, and when the Securities of each
issuance have been duly executed by Chiquita and authenticated as required by
the terms of those particular Securities, and duly paid for and delivered
pursuant to a sale in the manner described in the Registration Statement,
including the prospectus and any prospectus supplement relating to such
issuance, (i) the Debt Securities will be duly authorized and will be valid and
binding obligations of Chiquita enforceable in accordance with, and subject to,
their terms and the terms of the applicable Indenture and (ii) the equity
Securities will be duly and validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ Charles R. Morgan
<PAGE> 1
Exhibit 12
CHIQUITA BRANDS INTERNATIONAL, INC.
STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(In thousands, except ratio amounts)
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
------------- -----------------------
1993 1992 1992 1991 1990 1989 1988
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) from continuing
operations before income taxes $ 20,335 $(59,268) $(216,708) $ 160,009 $153,531 $135,040 $104,416
Interest expense 126,612 111,829 155,036 88,406 55,361 53,952 38,923
Portion of rentals representing
interest cost 45,270 67,398 85,810 74,070 66,247 53,324 40,240
Amortization of capitalized interest 2,792 2,196 3,010 1,900 1,125 870 793
Undistributed earnings of less-than-
fifty-percent-owned investees (1,657) (4,571) (3,588) (4,352) (116) (2,866) (9,895)
-------- -------- -------- --------- -------- -------- --------
$193,352 $117,584 $ 23,560 $ 320,033 $276,148 $240,320 $174,477
======== ======== ======== ========= ======== ======== ========
Fixed charges:
Interest expense $126,612 $111,829 $155,036 $ 88,406 $ 55,361 $ 53,952 $ 38,923
Capitalized interest 7,100 18,100 21,400 23,000 8,000 2,200 900
Portion of rentals representing
interest cost 45,270 67,398 85,810 74,070 66,247 53,324 40,240
-------- -------- -------- --------- -------- -------- --------
$178,982 $197,327 $262,246 $ 185,476 $129,608 $109,476 $ 80,063
======== ======== ======== ========= ======== ======== ========
Ratio of earnings to fixed charges 1.08 (a) (a) 1.73 2.13 2.20 2.18
======== ======== ======== ========= ======== ======== ========
Earnings $193,352 $117,584 $ 23,560 $ 320,033 $276,148 $240,320 $174,477
======== ======== ======== ========= ======== ======== ========
Fixed charges $178,982 $197,327 $262,246 $ 185,476 $129,608 $109,476 $ 80,063
Preferred stock dividends 3,209 -- 778 -- -- -- --
-------- -------- -------- --------- -------- -------- --------
$182,191 $197,327 $263,024 $ 185,476 $129,608 $109,476 $ 80,063
======== ======== ======== ========= ======== ======== ========
Ratio of earnings to combined
fixed charges and preferred
stock dividends 1.06 (b) (b) 1.73 2.13 2.20 2.18
======== ======== ======== ========= ======== ======== ========
</TABLE>
(a) Fixed charges exceeded earnings by $79,743 for the nine months ended
September 30, 1992 and $238,686 for the year ended December 31, 1992.
(b) Combined fixed charges and preferred stock dividends exceeded earnings by
$79,743 for the nine months ended September 30, 1992 and $239,464 for the
year ended December 31, 1992.
<PAGE> 1
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 and related Prospectus of Chiquita
Brands International, Inc. for the registration of $400,000,000 of debt
securities, preferred stock and common stock and to the incorporation by
reference therein of our report dated March 4, 1993, with respect to the
consolidated financial statements and schedules of Chiquita Brands
International, Inc. included or incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1992, filed with the Securities and
Exchange Commission.
Cincinnati, Ohio /s/ Ernst & Young
January 21, 1994
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
I appoint Fred J. Runk and William A. Tsacalis, or either of them, as
my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3
Registration Statement registering $300,000,000 in Debt Securities, Preferred
Stock and Common Stock which may be offered and sold by Chiquita Brands
International, Inc. and any and all amendments (including post-effective
amendments) to such Registration Statement, (ii) to file such Registration
Statement and amendments (with all exhibits and related documents) with the
Securities and Exchange Commission and (iii) to do all other acts which the
attorneys-in-fact may deem necessary and advisable to enable the corporation to
comply with the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission in connection with that
registration.
Executed pursuant to the requirements of the Securities Act of 1933 on
January 21, 1994 at Cincinnati, Ohio.
/s/ Carl H. Lindner
-------------------
Carl H. Lindner
<PAGE> 2
POWER OF ATTORNEY
I appoint Fred J. Runk and William A. Tsacalis, or either of them, as
my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3
Registration Statement registering $300,000,000 in Debt Securities, Preferred
Stock and Common Stock which may be offered and sold by Chiquita Brands
International, Inc. and any and all amendments (including post-effective
amendments) to such Registration Statement, (ii) to file such Registration
Statement and amendments (with all exhibits and related documents) with the
Securities and Exchange Commission and (iii) to do all other acts which the
attorneys-in-fact may deem necessary and advisable to enable the corporation to
comply with the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission in connection with that
registration.
Executed pursuant to the requirements of the Securities Act of 1933 on
January 21, 1994 at Cincinnati, Ohio.
/s/ Keith E. Lindner
--------------------
Keith E. Lindner
<PAGE> 3
POWER OF ATTORNEY
I appoint Fred J. Runk and William A. Tsacalis, or either of them, as
my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3
Registration Statement registering $300,000,000 in Debt Securities, Preferred
Stock and Common Stock which may be offered and sold by Chiquita Brands
International, Inc. and any and all amendments (including post-effective
amendments) to such Registration Statement, (ii) to file such Registration
Statement and amendments (with all exhibits and related documents) with the
Securities and Exchange Commission and (iii) to do all other acts which the
attorneys-in-fact may deem necessary and advisable to enable the corporation to
comply with the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission in connection with that
registration.
Executed pursuant to the requirements of the Securities Act of 1933 on
January 21, 1994 at Cincinnati, Ohio.
/s/ S. Craig Lindner
--------------------
S. Craig Lindner
<PAGE> 4
POWER OF ATTORNEY
I appoint Fred J. Runk and William A. Tsacalis, or either of them, as
my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3
Registration Statement registering $300,000,000 in Debt Securities, Preferred
Stock and Common Stock which may be offered and sold by Chiquita Brands
International, Inc. and any and all amendments (including post-effective
amendments) to such Registration Statement, (ii) to file such Registration
Statement and amendments (with all exhibits and related documents) with the
Securities and Exchange Commission and (iii) to do all other acts which the
attorneys-in-fact may deem necessary and advisable to enable the corporation to
comply with the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission in connection with that
registration.
Executed pursuant to the requirements of the Securities Act of 1933 on
January 21, 1994 at Cincinnati, Ohio.
/s/ Ronald F. Walker
---------------------
Ronald F. Walker
<PAGE> 1
Exhibit 25(a)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(B)(2) ____
THE FIFTH THIRD BANK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
Ohio
(JURISDICTION OF INCORPORATION OR ORGANIZATION IF NOT A
NATIONAL BANK)
31-0854433
(I.R.S. EMPLOYER IDENTIFICATION NO.)
38 Fountain Square Plaza, Cincinnati, Ohio
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
45263
(ZIP CODE)
Clement L. Buenger, 38 Fountain Square Plaza,
Cincinnati, Ohio, 45263 (513) 579-5300
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
CHIQUITA BRANDS INTERNATIONAL, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
New Jersey
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
04-1923360
(I.R.S. EMPLOYER IDENTIFICATION NO.)
250 East Fifth Street, Cincinnati, Ohio
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
45202
(ZIP CODE)
Senior Debt Securities
(TITLE OF THE INDENTURE SECURITIES)
<PAGE> 2
Item 1. General Information.
Furnish the following information as to the trustee -
(a) Name and address of each examining or supervising authority to which
it is subject.
Ohio Superintendent of Banks
State Office Tower
30 E. Broad Street
Columbus, Ohio 43215
Federal Reserve Bank of Cleveland
East Sixth Street and Superior Avenue
Cleveland, Ohio 44101
Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting securities of the trustee.1
Furnish the following information as to each class of voting
securities of the trustee:
- --------------------
1 All of the outstanding voting securities of the trustee are owned
by Fifth Third Bancorp, an Ohio corporation. Answers to the following items
herein concerning voting securities of the trustee owned by third parties
relate to outstanding voting securities of Fifth Third Bancorp. As of November
30, 1993, there were 60,002,809 shares of no par value common stock of Fifth
Third Bancorp outstanding. Answers to all other items of this statement of
eligibility on Form T-1 relate to the Trustee only, and do not contain
information regarding Fifth Third Bancorp or other subsidiaries of Fifth Third
Bancorp.
2
<PAGE> 3
AS OF DECEMBER 31, 1993
<TABLE>
<CAPTION>
COL. A. COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
Capital Stock, par value 32,000
$2,200.00 per share
</TABLE>
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
9-5/8% Senior Notes due 2004.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1)
OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH
OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE
SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER
SUCH OTHER INDENTURE.
There is no default under the indenture for the 9-5/8% Senior
Notes of which the Trustee has knowledge; therefore, the Trustee is
aware of no facts which could provide a basis for a claim of
conflicting interest. The securities will rank pari passu with
those issued under the indenture for the 9-5/8% Senior Notes.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION.
None, with respect to the obligor. Because the underwriters have not yet
been selected by the obligor, the trustee cannot ascertain whether any
interlocking directorates and similar relationships exist with respect to
underwriters.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR
3
<PAGE> 4
AND EACH DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF THE OBLIGOR.
AS OF DECEMBER 31, 1993
<TABLE>
<S> <C> <C> <C>
COL. D
PERCENTAGE OF VOTING
COL. A COL. B COL. C. SECURITIES REPRESENTED
NAME OF TITLE AMOUNT OWNED BY AMOUNT GIVEN IN
OWNER OF CLASS BENEFICIALLY COL. C
------- -------- ------------ ----------------------
</TABLE>
None, so far as is known to the trustee.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF DECEMBER 31, 1993
<TABLE>
<S> <C> <C> <C>
COL. D
PERCENTAGE OF VOTING
COL. A COL. B COL. C. SECURITIES REPRESENTED
NAME OF TITLE AMOUNT OWNED BY AMOUNT GIVEN IN
OWNER OF CLASS BENEFICIALLY COL. C
------- -------- ------------ ----------------------
</TABLE>
Because the underwriters have not yet been selected by the obligor, the trustee
cannot ascertain whether any underwriters own any voting securities of the
trustee.
Item 8. Securities of the obligor owned or held by the trustee.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE.
AS OF DECEMBER 31, 1993
<TABLE>
<S> <C> <C> <C>
COL. C
COL. B AMOUNT OWNED
WHETHER THE BENEFICIALLY COL. D
SECURITIES ARE OR HELD AS PERCENT OF CLASS
COL. A VOTING OR COLLATERAL SECURITY REPRESENTED BY
TITLE OF NON-VOTING FOR OBLIGATIONS AMOUNT GIVEN IN
CLASS SECURITIES IN DEFAULT COL. C
-------- -------------- ------------------- ----------------
</TABLE>
None.
4
<PAGE> 5
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO WHICH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 31, 1993
<TABLE>
<S> <C> <C> <C>
COL. D
COL. C PERCENT
AMOUNT OWNED OF CLASS
COL. A BENEFICIALLY OR HELD REPRESENTED
TITLE OF COL. B AS COLLATERAL SECURITY BY AMOUNT
ISSUER AND AMOUNT FOR OBLIGATIONS IN GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C.
- -------------- ----------- ---------------------- -----------
</TABLE>
Because the underwriters have not yet been selected by the obligor, the trustee
cannot ascertain whether it owns any voting securities of the underwriters.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH
PERSON.
AS OF DECEMBER 31, 1993
<TABLE>
<S> <C> <C> <C>
COL. D
COL. C PERCENT
AMOUNT OWNED OF CLASS
COL. A BENEFICIALLY OR HELD REPRESENTED
TITLE OF COL. B AS COLLATERAL SECURITY BY AMOUNT
ISSUER AND AMOUNT FOR OBLIGATIONS IN GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C.
- -------------- ----------- ---------------------- -----------
</TABLE>
None, so far as is known to the trustee.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
5
<PAGE> 6
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 31, 1993
<TABLE>
<S> <C> <C> <C>
COL. D
COL. C PERCENT
AMOUNT OWNED OF CLASS
COL. A BENEFICIALLY OR HELD REPRESENTED
TITLE OF COL. B AS COLLATERAL SECURITY BY AMOUNT
ISSUER AND AMOUNT FOR OBLIGATIONS IN GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C.
- -------------- ----------- ---------------------- -----------
</TABLE>
None, so far as is known to the trustee.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
<TABLE>
<S> <C> <C>
COL. A COL. B
NATURE OF AMOUNT COL. C
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
</TABLE>
None.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None.
6
<PAGE> 7
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Because the underwriters have not yet been selected by the obligor, the trustee
cannot ascertain whether it has any affiliation with any underwriter.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY. (EXHIBITS IDENTIFIED IN PARENTHESES, ON FILE WITH THE
COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS EXHIBITS HERETO.)
(1) A copy of the Certificate of Incorporation of the trustee as now in
effect.
(2) A copy of the certificate of authority of the trustee to commence
business. (Included in Exhibit 1)
(3) A copy of the authorization of the trustee to exercise corporate
trust powers.
(4) A copy of the existing code of regulations of the trustee
incorporating amendments to date.
(5) A copy of each indenture referred to in Item 4. (Incorporated by
reference from Exhibit 26 to Form S-3 Registration
Statement No. 33-43946 filed by Chiquita Brands International, Inc.
(6) The consent of the trustee required by Section 321 (b) of the Trust
Indenture Act of 1939.
(7) A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(8) A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to
be qualified under the Act.
(9) Foreign trustees are required to file a consent to service of
process of Form F-X
7
<PAGE> 8
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Fifth Third Bank, a corporation organized and existing under the
laws of the State of Ohio, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Cincinnati and the State of Ohio, on the 21st
day of January, 1994.
THE FIFTH THIRD BANK
By /s/ Kerry R. Byrne
----------------------------
Kerry R. Byrne,
Senior Trust Officer
8
<PAGE> 9
EXHIBIT 1
CERTIFICATE OF INCORPORATION
OF THE TRUSTEE AS NOW IN EFFECT
[See Attached]
9
<PAGE> 10
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
George A. Schaefer, Jr., President and Phillip C. Long, Secretary to The
Fifth Third Bank, an Ohio banking corporation, with its principal office
located at Cincinnati, Hamilton County, Ohio, do hereby certify that a duly
called meeting of the Board of Directors held on May 18, 1993, at which a
quorum was present and at a special meeting of the shareholder on May 18, 1993,
the following resolution to amend the Third Amended Articles of Incorporation
which adopted by affirmative vote of all the Directors in attendance and by an
unanimous vote of the sole shareholder.
RESOLVED, that Article FOURTH of the Third Amendment Articles of
Incorporation be and is hereby amended in its entirety to read as follows:
FOURTH: The maximum number of shares with the corporation is authorized
to have outstanding shall be Thirty-Two Thousand (32,000) shares with a
par value of Two Thousand Two Hundred Dollars ($2,200.00) per share.
IN WITNESS WHEREOF, said George A. Schaefer, Jr., President and Phillip C.
Long, Secretary of The Fifth Third Bank, acting for and on behalf of said
corporation have hereunto subscribed their names this 18th day of May, 1993.
/s/ George A. Schaefer, Jr.
----------------------------------
George A. Schaefer, Jr., President
Approved this 16th day of June, 1993
/s/ Alison M. Meeks
- -------------------------------
Alison M. Meeks, Superintendent
/s/ Phillip C. Long
----------------------------------
Phillip C. Long, Secretary
10
<PAGE> 11
THIRD AMENDED ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
FIRST: The name of said Corporation shall be "The Fifth Third Bank".
SECOND: The place in Ohio where its principal office is to be located is
Cincinnati, Hamilton County, and its principal business there transacted.
THIRD: Said Corporation is formed for the purposes of (a) receiving on
deposit or in trust, moneys, securities and other valuable property, on such
terms as may be agreed, and of doing the business of a savings bank and of a
trust company; (b) of disposing of box vaults for safekeeping of valuables by
lease or otherwise; (c) of investing and loaning the funds of the company and
those received by it on deposit or in trust; (d) of doing a commercial banking
business; and, (e) of doing the business of a special plan bank, and in
furtherance of said purposes, to exercise all the powers of which may be
lawfully exercised by a corporation formed therefore, and to do all things
necessary to incident thereto.
FOURTH: The maximum number of shares which the corporation is authorized
to have outstanding shall be Thirty-Two Thousand (32,000) shares with a par
value of One Thousand Nine Hundred Dollars ($1,900.00) per share.
FIFTH: These Amended Articles of Incorporation supersede and take the
place of the existing Articles of Incorporation.
11
<PAGE> 12
EXHIBIT 2
CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
(INCLUDED IN EXHIBIT 1)
12
<PAGE> 13
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
[See Attached]
13
<PAGE> 14
STATE OF OHIO
DIVISION OF BANKS
TO WHOM IT MAY CONCERN:
This is to certify that The Fifth Third Bank, Cincinnati, Ohio, organized under
the laws of the State of Ohio, has complied with the laws relating to trust
companies under Sections 1105.02 and 1109.04 of the Ohio Revised Code and is
qualified to exercise trust powers in Ohio.
Witness my hand and official seal at Columbus, Ohio, this 15th day of October,
1993.
/s/ Alison M. Meeks
----------------------------
[Seal] ALISON M. MEEKS
Superintendent
Division of Banks
14
<PAGE> 15
EXHIBIT 4
A COPY OF THE EXISTING CODE OF REGULATIONS OF THE TRUSTEE
INCORPORATING AMENDMENTS TO DATE
[See Attached]
15
<PAGE> 16
CODE OF REGULATIONS OF THE FIFTH THIRD BANK
ARTICLE I
STOCKHOLDERS
SECTION 1. MEETINGS. The annual meeting of the Stockholders shall be
held at the principal office of the Company at such hour, as may be fixed in
the notice of such meeting, and on such date, not earlier than the second
Tuesday of January or later than the third Tuesday of April of each year, as
shall be fixed by the Board of Directors and communicated in writing to the
Shareholders not later than twenty (20) days prior to such meeting.
SECTION 2. QUORUM. Stockholders, whether in person or by lawful
proxies, representing a majority in amount of the outstanding stock of the
Company, shall constitute a quorum at any stockholders' meeting. If there be
less than a majority in amount of such stock at any meeting, the meeting may be
adjourned from time to time.
ARTICLE II
DIRECTORS
SECTION 1. NUMBER. The Board of Directors shall be composed of
eighteen (18) persons unless this number is changed by: (1) the Shareholders in
accordance with the laws of Ohio or (2) the vote of a majority of the Directors
in office. The Directors may increase the number to not more than twenty-four
(24) persons and may decrease the number to not less than fifteen (15) persons.
Any Director's office created by the Directors by reason of an increase in
their number may be filled by action of a majority of the Directors in office.
SECTION 2. TERM. Directors shall hold office until the expiration of
the term for which they were erected, and shall continue in office until their
respective successors shall have been duly elected and qualified.
SECTION 3. QUALIFICATIONS AND COMPENSATION. No person shall serve as
a Director who is not the owner of record of at least Five Hundred ($500.00)
Dollars par value of stock of the Company. Each Director shall be entitled to
receive such compensation for attendance at meetings of the Board of Directors
of Committees thereof as the Board of Directors may, from time to time, fix.
SECTION 4. REPLACEMENT OR REMOVAL. Directors may be replaced or
removed as provided by Ohio Law, provided that Directors may be removed without
cause only by an affirmative vote of not less than two-thirds (2/3) of the
outstanding shares of the Company.
16
<PAGE> 17
SECTION 5. VACANCIES. Any vacancy occurring in the Board of Directors
may be filled by the Board of Directors until an election to fill such vacancy
is had.
SECTION 6. QUORUM. A majority of the whole authorized number of
Directors, as the same shall be established from time to time in accordance
with Section 1 of this Code of Regulations, shall constitute a quorum for a
meeting of the Directors, except that a majority of the Directors in office
constitute a quorum for the filling of a vacancy or vacancies of the Board.
SECTION 7. ELECTION OF OFFICERS. The Board of Directors at the first
meeting after the election of Directors may elect one of its own number
Chairman of the Board and one of its own number Vice Chairman of the Board; and
it shall elect one of its own number President. It may also elect one or more
vice presidents (one or more of whom may be designated Executive Vice President
and/or Senior Vice President and/or Vice President and Trust Officer), a
Cashier, a Secretary, and a Treasurer, and it may appoint such other officers
as the Board may deem advisable. Any two of said offices may be held by the
same person. Officers so elected shall hold office during the term of the
Board by whom they are elected, subject to the power of the Board to remove
them at its discretion. They shall be bonded in such amount and with such
survey or sureties as the Board of Directors shall require.
SECTION 8. MEETINGS OF THE BOARD. Regular meetings of the Board of
Directors shall be held on the third Tuesday of each month, or at such other
times as may be determined by the Board of Directors. Except as otherwise
provided by law, any business may be transacted at any regular meeting of the
Board of Directors. Special meetings shall be held upon the call of the
Chairman of the Board, if one be elected, or by the President, or in their
absence, by a Vice President or any three (3) Directors.
SECTION 9. NOTICE OF MEETINGS. The Secretary shall give notice of
each meeting of the Board of Directors, whether regular or special, to each
member of the Board.
SECTION 10. COMMITTEES.
SECTION 10.1 EXECUTIVE COMMITTEE. The Board of Directors shall appoint
any Executive Committee consisting of at least three (3) members, all of whom
may be members of the Board of Directors, or at least one (1) of whom shall be
a Director, the remainder to be officers of the Bank. Such Executive Committee
shall serve until their successors are appointed. A majority of the members of
said Committee shall constitute a quorum. The Executive Committee shall
conduct the business of the Company and shall have all the powers of the Board
of Directors when said Board is not in session, except that of declaring a
dividend. The Secretary of the Company shall keep a record of the Committee's
proceedings, which, signed by the Chairman of the Committee, shall be presented
at the
17
<PAGE> 18
meetings of the Committee and at the meetings of the Board of Directors.
SECTION 10.2 OTHER COMMITTEES. The Board of Directors shall appoint a
Trust Committee of which the Vice President and Trust Officer and at least
three (3) of its members who are not officers of the Company shall be members.
The Vice President and Trust Officer shall be Chairman of the Trust Committee.
In addition thereto, the Chairman of the Board, Chief Executive Officer, may
appoint such additional Committees, by and with the approval of the Board of
Directors, as may be deemed desirable or necessary.
Each such Committee, so appointed, shall have such powers and perform such
duties, not inconsistent with law, as may be delegated to it by the Board of
Directors.
SECTION 11. INDEMNIFICATION. The Company shall indemnify each Director
and each Officer of the Company, and each person employed by the Company who
serves at the written request of the President of the Company as a director,
trustee, officer, employee or agent of another corporation, domestic or
foreign, non-profit or for profit, partnership, joint venture, trust or other
enterprise, to the full extent permitted by Ohio law. The term "Officer" as
used in this Section shall include the Chairman of the Board and the Vice
Chairman of the Board if such offices are filled, the President, each Vice
President, the Treasurer, the Secretary, the Cashier, the Controller, the
Auditor, the Counsel and any other person who is specifically designated as an
"Officer" within the operation of this Section by action of the Board of
Directors. The Company may indemnify assistant Officers, employees and others
by action of the Board of Directors to the extent permitted by Ohio law.
ARTICLE III
OFFICERS
SECTION 1. POWERS AND DUTIES. The Chairman of the Board if the office
be filled, otherwise the Vice Chairman of the Board, if the office be filled,
otherwise the President shall preside at all meetings of the Stockholders, the
Board of Directors, and the supervision and control over the business of the
Company and shall serve at the pleasure of the Board of Directors. In the
absence or disability of any of the foregoing officers, their respective duties
shall be performed by the Chairman of the Board, the Vice Chairman of the
Board, the President, or by a Vice President specifically designated by the
Board of Directors, in the order named.
The Secretary, or in his absence or disability, the Assistant Secretary,
shall act, ex officio, as Secretary of all meetings of the Stockholders, the
Board of Directors and the Executive Committee. The other officers of the
Company shall have such powers and duties as usually and customarily attach to
their offices.
18
<PAGE> 19
ARTICLE IV
CERTIFICATES OF STOCK
SECTION 1. FORM. Certificates for shares of stock shall be signed by
the Chairman of the Board, or by the President, or by one of the Vice
Presidents, and by the Secretary or Treasurer or by the Cashier or an Assistant
Cashier, shall contain such statements as are required by law, and shall
otherwise be in such form as the Board of Directors may, from time to time,
require.
SECTION 2. TRANSFERS. Shares shall be transferable on the books of
the Company by the holders thereof in person or by duly authorized attorney
upon surrender of the certificates therefor with duly executed assignment
endorsed thereon or attached thereto.
SECTION 3. CLOSING OF TRANSFER BOOKS. The books for transfer of the
stock of the Company shall be closed for at least five (5) days preceding the
annual meeting of stockholders, and may be closed by order of the Board of
Directors, or Executive Committee, for a like period before any other meeting
of the Stockholders.
ARTICLE V
AMENDMENTS
These regulations may be changed, and new regulations adopted by the
assent thereto in writing of two-thirds (2/3) of the Stockholders of the
Company in number an in amount; or by a majority of such Stockholders in number
and in amount, at a meeting held for that purpose, notice of which has been
given by the President, the Secretary, or any two (2) Directors personally or
by written notice, to each Stockholders, and by publication once a week for
four (4) consecutive weeks in some newspaper of general circulation in Hamilton
County, Ohio, or in such other manner as may then be authorized by the laws of
Ohio.
19
<PAGE> 20
EXHIBIT 5
A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4
(NOT APPLICABLE)
20
<PAGE> 21
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (B)
OF THE TRUST INDENTURE ACT OF 1939
[See Attached]
21
<PAGE> 22
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939 in connection with the proposed issuance of Senior Debt Securities of
Chiquita Brands International, Inc., The Fifth Third Bank hereby consents that
reports of examination by Federal, State, Territorial or District Authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
THE FIFTH THIRD BANK
By /s/ Kerry R. Byrne
----------------------------
Kerry R. Byrne,
Senior Trust Officer
<PAGE> 23
EXHIBIT 7
A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS
OF ITS SUPERVISING OR EXAMINING AUTHORITY
[See Attached]
<PAGE> 24
FIFTH THIRD BANCORP AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
($000'S)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1993 1992 1993 1992
---- ---- ---- ----
<S> <C> <C> <C> <C>
Interest Income
Interest and Fees on Loans
and Leases $155,767 141,749 $453,074 411,776
-------- ------- -------- -------
Interest on Securities
Taxable 23,168 29,777 79,518 93,729
Exempt from Income Taxes 3,409 2,646 8,966 8,263
-------- ------- -------- -------
Total Interest on Securities 26,577 32,423 88,484 101,992
-------- ------- -------- -------
Interest on Other Short-Term
Investments 58 834 204 3,502
-------- ------- -------- -------
Total Interest Income 184,402 175,006 541,762 517,270
-------- ------- -------- -------
Interest Expense
Interest on Deposits
Interest Checking 6,772 6,150 20,586 19,940
Savings 3,440 3,369 10,521 10,395
Money Market 8,771 10,069 27,302 33,407
Other Time 34,842 36,744 104,655 113,710
Certificates - $100,00 and
Over 3,780 5,801 11,718 18,626
Foreign Office 2,283 375 5,306 937
-------- ------- -------- -------
Total Interest on Deposits 59,888 62,508 180,888 197,015
Interest on Federal Funds
Borrowed 5,516 5,077 12,433 12,689
Interest on Other Short-Term
Borrowings 4,638 5,500 15,435 18,117
Interest on Long-Term Debt
and Notes 2,867 501 9,273 1,264
-------- ------- -------- -------
Total Interest Expense 72,911 73,586 217,229 229,085
-------- ------- -------- -------
Net Interest Income 109,491 101,420 324,533 288,185
Provision for Credit Losses 10,244 14,025 37,569 46,582
-------- ------- -------- -------
</TABLE>
<PAGE> 25
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1993 1992 1993 1992
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Interest Income After
Provision for Credit Losses 99,247 87,394 286,964 241,603
-------- ------ -------- -------
Other Operating Income
Trust Income 12,602 11,661 38,040 34,573
Service Charges on Deposits 14,110 12,480 40,897 36,752
Data Processing Income 13,465 11,575 38,124 32,941
Other Service Charges and
Fees 14,626 13,202 45,435 40,214
Securities Gains 4,292 113 6,236 1,395
-------- ------ -------- -------
Total Other Operating Income 59,095 49,031 168,732 145,875
-------- ------ -------- -------
Operating Expenses
Salaries and Wages 30,259 27,546 87,683 79,591
Employee Benefits 8,123 7,923 25,421 21,533
Equipment Expenses 3,662 3,275 10,754 9,894
Net Occupancy Expenses 6,350 5,016 17,264 15,595
Other Operating Expenses 32,174 28,881 97,846 86,066
-------- ------ -------- -------
Total Operating Expenses 80,568 72,641 238,968 212,699
-------- ------ -------- -------
Income Before Income Taxes 77,774 63,785 216,728 174,779
Applicable Income Taxes 26,194 20,568 72,604 54,945
Net Income $ 51,580 43,217 $144,124 119,834
======== ====== ======== =======
Net Income Per Share $ .86 .72 $ 2.41 2.01
Average Shares Outstanding
(000's) 59,979 59,717 59,918 59,680
Cash Dividends Declared Per
Share $ .27 .22 $ .75 .66
======== ====== ======== =======
</TABLE>
<PAGE> 26
FIFTH THIRD BANCORP AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
($000'S)
<TABLE>
<CAPTION>
September 30, December 31, September 30,
1993 1992 1992
---- ---- ----
<S> <C> <C> <C>
Assets
Cash and Due from Banks $ 499,217 565,948 459,463
----------- ---------- ---------
Securities Available for Sale
(Market Value $711,000) 695,218 ------ ------
-----------
Securities Held for
Investment (a) 1,234,656 1,993,008 2,064,347
----------- ---------- ---------
Other Short-Term Investments 66,925 790 81,492
----------- ---------- ---------
Loans and Leases
Commercial Loans 2,688,593 2,485,310 2,450,688
Construction Loans 316,311 308,781 298,449
Commercial Mortgage Loans 574,247 495,818 485,028
Residential Mortgage Loans 2,180,677 1,935,254 1,647,378
Consumer Loans 1,929,987 1,631,496 1,584,523
Commercial Lease Financing 328,625 282,579 272,012
Consumer Lease Financing 757,367 454,607 383,022
Unearned Income ( 147,929) ( 118,986) ( 112,644)
Reserve for Credit Losses ( 132,609) ( 114,751) ( 108,785)
----------- ---------- ---------
Total Loans and Leases 8,495,269 7,360,108 6,899,671
----------- ---------- ---------
Bank Premises and Equipment 144,424 120,650 120,639
----------- ---------- ---------
Accrued Income Receivable 78,181 76,000 74,155
----------- ---------- ---------
Other Assets 148,685 156,816 189,284
----------- ---------- ---------
Total Assets $11,362,575 10,213,320 9,889,051
=========== ========== =========
Liabilities
Deposits
Demand $ 1,298,678 1,306,766 1,166,722
</TABLE>
<PAGE> 27
<TABLE>
<CAPTION>
September 30, December 31, September 30,
1993 1992 1992
---- ---- ----
<S> <C> <C> <C>
Interest Checking 1,232,541 1,185,660 1,033,354
Savings 564,152 491,764 465,258
Money Market 1,412,013 1,405,469 1,360,855
Other Time 2,921,352 2,672,344 2,702,474
Certificates - $100,000
and Over 330,824 399,210 507,030
Foreign Office 354,628 70,733 47,916
----------- ---------- ---------
Total Deposits 8,114,188 7,531,946 7,283,609
Federal Funds Borrowed 977,385 466,889 560,535
Other Short-Term Borrowings 626,400 762,902 738,211
Accrued Taxes, Interest and
Expenses 156,039 106,728 132,115
Other Liabilities 78,236 85,629 88,500
Long Term Debt 140,014 111,768 111,711
Convertible Subordinated 142,601 142,293 ------
Notes
----------- ---------- ---------
Total Liabilities 102,254,863 9,208,155 8,914,681
Stockholders' Equity
Common Stock (b) 133,196 132,826 132,707
Capital Surplus 204,536 201,516 200,738
Retained Earnings 769,980 670,823 640,925
----------- ---------- ---------
Total Stockholders' Equity 1,107,712 1,005,165 974,370
----------- ---------- ---------
Total Liabilities and $11,362,575 10,213,320 9,889,051
Stockholder's Equity
</TABLE>
(a) Securities Held for Investment market values: September 30, 1993 -
$1,254,300,000, December 31, 1992 - $1,960,300,000 and September 30,
1992 - $2,105,500,000
(b) Stated value $2.22 per share authorized 100,000,000, outstanding
September 30, 1993 - 59,998,181, December 31, 1992 - 59,846,303 and
September 30, 1992 - 59,792,733 (including 14,763 treasury shares at
December 31 and September 30, 1992).
See Notes to Consolidated Financial Statements
<PAGE> 28
FIFTH THIRD BANCORP AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
($000'S)
<TABLE>
<CAPTION>
Reserve for Credit Losses
- -------------------------
1993 1992
---- ----
<S> <C> <C>
Balance at January 1 $114,751 90,324
Provision for Credit Losses 37,569 46,582
Losses Charged-Off ( 27,146) ( 38,368)
Recoveries of Losses Previously Charged-Off 7,435 6,449
Reserve of Acquired Banks ---- 3,798
-------- --------
Balance at September 30 $132,609 108,785
======== ========
Reserve as a Percent of Loans and Leases
Outstanding 1.54% 1.55
Net Credit Losses as a Percent of Average
Loans and Leases Outstanding .33% .66
======== ========
Under Performing Assets
September 30 1993 1992
Non-Accrual Loans and Leases $ 12,518 40,615
Renegotiated Loans and Leases 460 685
Other Real Estate Owned 12,048 24,496
-------- --------
Total Nonperforming Assets 25,026 67,796
Ninety Days Past Due Loans and Leases 8,876 21,678
-------- --------
Total Under-Performing Assets $ 33,902 89,474
======== ========
Nonperforming Assets as a Percent of Total
Loans, Leases and Other Real Estate Owned .29% .96
Under-Performing Assets as a Percent of
Total Loans, Leases and Other Real Estate
Owned .39% 1.27
======== ========
</TABLE>
Notes to Consolidated Financial Statements
1. Certain prior year's data has been reclassified to conform to current year
presentation.
2. On January 22, 1993, the Bancorp purchased the deposits of
three Savings of America branches in Oxford, Chillicothe and Fremont,
Ohio. On February 26, 1993, the Bancorp purchased the deposits of six First
National Bank of Dayton branches in Cincinnati, Ohio.
<PAGE> 29
REQUESTS FOR ADDITIONAL COPIES OF BANCORP REPORTS OR
FINANCIAL INFORMATION SHOULD BE MADE IN WRITING TO:
Investor Relations
Fifth Third Bancorp
Fifth Third Center, Tenth Floor
Cincinnati, Ohio 45263
QUESTIONS REGARDING:
* Investor Relations: Neal Arnold (513) 579-5606
* Shareholder Account Information: Yvonne Gray (513) 579-5320
Fifth Third provides an automatic dividend reinvestment plan that allows
shareholders to increase their holdings. For more information, call
Shareholder Account Information at the telephone number shown above.
The common stock of Fifth Third Bancorp is listed under the symbol "FITB" on
the NASDAQ.
<PAGE> 30
EXHIBIT 8
A COPY OF ANY ORDER PURSUANT TO WHICH THE FOREIGN TRUSTEE IS AUTHORIZED TO ACT
AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE ACT
(NOT APPLICABLE)
<PAGE> 31
EXHIBIT 9
FOREIGN TRUSTEES ARE REQUIRED TO FILE A CONSENT TO SERVICE OF
PROCESS OF FORM F-X
(NOT APPLICABLE)
<PAGE> 1
Exhibit 25(b)
Securities Act of 1933 File No.___________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
-------------------------------------------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
PURSUANT TO SECTION 305(b) (2) / X /
-------------------------------------------------------
STAR BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0841368
--------------------------------------
(IRS Employer Identification No.)
425 Walnut Street
Cincinnati, Ohio 45202
- ---------------------------------------------- ------------------
(Address of Principal Executive Offices) (Zip Code)
-------------------------------------------------------
Nancy V. Kelly
Vice President and Trust Officer
Star Bank, National Association
425 Walnut Street
Cincinnati, Ohio 45202
(513) 632-4390
-------------------------------------------------------
(Name, address, and telephone number of agent for services)
CHIQUITA BRANDS INTERNATIONAL, INC.
-------------------------------------------------------
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
New Jersey 04-1923360
-------------------------------------- -----------------------------------------------
(State of Incorporation) (IRS Employer Identification No.)
250 E. Fifth Street, Cincinnati, OH 45202
---------------------------------------------- ----------------
(Address of principal executive offices) (Zip Code)
</TABLE>
Subordinated Debentures
-------------------------------------------------------
(Title of the Indenture securities)
<PAGE> 2
1. General Information. Furnish the following information as
Trustee --
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Cleveland, Ohio
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust
powers.
2. Affiliations with obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation. The obligor
is not an affiliate of the Trustee (including its
parent and any affiliates).
3. Voting Securities of the trustee. Furnish the following
information as to each class of voting securities of
the trustee (and its parent). As of _____________
(insert date within 31 days)
<TABLE>
<S> <C>
Col A. Col B
----------------------------- --------------------------------
(Title of Class) (Amount Outstanding)
</TABLE>
4. Trusteeships under other Indentures. If the trustee is a trustee
under another Indenture under which any other securities, or
certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such
other indenture.
(b) A brief statement of the facts relied upon as a basis
for the claim that no conflicting interest within the
meaning of Section 310(b) (1) of the Act arises as a
result of the trusteeship under any such other
indenture, including a statement as to how the
indenture securities will rank as compared with the
securities issued under such other indenture.
<PAGE> 3
5. Interlocking directorates and similar relationships with the obligor or
underwriters. If the trustee (including its parent and any
other affiliates) or any of the directors or executive officers
of the trustee is a director, officer, partner, employee,
appointee, or representative of the obligor or of any
underwriter for the obligor, identify each such person having
any such connection and state the nature of each such
connection.
6. Voting securities of the trustee (including its parent and any
affiliate) owned by the obligor or its officials. Furnish the
following information as to the voting securities of the trustee
(including its parent and any affiliates) owned beneficially by the
obligor and each director, partner and executive officer of the obligor:
As of _______________________ (insert date within 31 days)
<TABLE>
<S> <C> <C> <C>
Col. A. Col. B. Col. C Col. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given
Name of Owner Title of Class Beneficially in Col. C
------------- -------------- ------------ -----------------
</TABLE>
7. Voting securities of the trustee (including its parent and any
affiliates) owned by underwriters or their officials. Furnish
the following information as to the voting securities of the
trustee (including its parent and any affiliates) owned
beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such
underwriter:
As of ___________________(insert date within 31 days)
<TABLE>
<S> <C> <C> <C>
Col. A. Col B. Col. C Col. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given
Name of Owner Title of Class Beneficially in Col. C
------------- -------------- ------------ -----------------
</TABLE>
<PAGE> 4
8. Securities of the obligor owned or held by the trustee (including its
parent and any affiliates). Furnish the following
information as to securities of the obligor owned beneficially or held
as collateral security for obligations default by the trustee (including
its parent and any affiliates):
As of ___________________(insert date within 31 days)
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Amount Owned
Whether the Beneficially or
Securities Are Held as Collateral Percent of
Voting or Security for Class Represented
Nonvoting obligations in by Amount Given
Title of Class Securities Default in Col. C
-------------- ---------- ------- -----------------------
</TABLE>
9. Securities of underwriters owned or held by the trustee (including its
parent and any affiliates). If the trustee (including
its parent and any affiliates) owns beneficially or holds as collateral
security for obligations in default any securities of an underwriter for
the obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held by the
trustee:
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
----- ----------- --------------- ---------------------
</TABLE>
<PAGE> 5
10. Ownership or holdings by the trustee (including its parent and any
affiliates) of voting securities of certain affiliates or security
holders of the obligor. If the trustee (including its parent and any
affiliates) owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the trustee (1) owns 10% or more of the voting securities
of the obligor or (2) is an affiliate, other than a subsidiary, of the
obligor, furnish the following information as to the voting securities
of such person:
As of _______________________(insert date within 31 days)
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
----- ----------- --------------- ---------------------
</TABLE>
11. Ownership or holdings by the trustee (including its parent and any
affiliates) of any securities of a person owning 50 percent or more of
the voting securities of the obligor. If the trustee (including
its parent and any affiliates) owns beneficially or holds as collateral
security for obligations in default any securities of a person who, to
the knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to each
class of securities of such person any of which are so owned or held by
the trustee (including its parent and affiliates):
As of ______________________(insert date within 31 days)
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
----- ----------- --------------- ---------------------
</TABLE>
<PAGE> 6
12. Indebtedness of the Obligor to the Trustee. Except as noted in
the instructions, if the obligor is indebted to the trustee, furnish the
following information:
As of ____________________(insert date within 31 days)
<TABLE>
<S> <C> <C>
Col. A Col. B Col. C
Amount
Nature of Indebtedness Outstanding Due Date
---------------------- ----------- --------
</TABLE>
13. Defaults by the Obligor.
a) State whether there is or has been a default with
respect to the securities under this indenture.
Explain the nature of any such default.
-NONE-
b) If the Trustee is a trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities, of
the obligor are outstanding, or is trustee for more
than one outstanding series or securities under the
indenture, state whether there has been a default under
any such indenture or series, identify the indenture or
series affected, and explain the nature of any such
default.
As of January 17, 1994 (insert date within 31 days)
-NONE-
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
----- ----------- --------------- ---------------------
</TABLE>
<PAGE> 7
14. Affiliations with the Underwriters. If any underwriter is an
affiliate of the trustee (including its parent and any affiliates),
described each such affiliation.
15. Foreign Trustee. Identify the order or rule pursuant to which
the foreign trustee is authorized to act as sole trustee under
indentures qualified or to be qualified under the Act.
16. List of Exhibits. List below all exhibits filed as part of this
statement of eligibility.
1. (a) A copy of the Articles of Association of The First
National Bank of Cincinnati (now Star Bank, National
Association) as now in effect.
(b) A copy of the Amended Articles of Association dated
June 14, 1991, changing the name of the association to
Star Bank, National Association.
2. (a) A copy of the certificate of authority of The First
National Bank of Cincinnati (now Star Bank, National
Association) to commence business dated September 1,
1922.
(b) A copy of a Certificate of the Comptroller of the
Currency dated December 21, 1973, authorizing F N
National Bank to commence the business of banking.
(c) A copy of a Certificate of the Comptroller of the
Currency dated December 28, 1973, approving the merger
of The First National Bank of Cincinnati (now Star
Bank, National Association) into F N National Bank
under the title "The First National Bank of Cincinnati"
effective January 2, 1974.
(d) A copy of a letter dated June 8, 1988, from the
Comptroller of the Currency indicating the change in
the name of the association to Star Bank, National
Association, Cincinnati, effective July 1, 1988.
<PAGE> 8
(e) A copy of a letter dated July 15, 1991, from the
Comptroller of the Currency indicating the change in
the name of the association to Star Bank, National
Association, effective June 14, 1991.
3. A copy of the authorization of The First National Bank of
Cincinnati (now Star Bank, National Association) to exercise
corporate trust powers.
4. A copy of existing By-Laws to Star Bank, National Association,
Cincinnati (now Star Bank, National Association)
5. The consent of the Trustee required by section 321 (b) of the
Trust Indenture Act of 1939.
6. A copy of the latest report of condition of Star Bank, National
Association, published pursuant to law or the requirements of
its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, Star Bank, National Association, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this statement of eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Cincinnati and State of Ohio on the __________ day of
_______________________, 19__________.
<TABLE>
<S> <C>
STAR BANK, NATIONAL ASSOCIATION
By: /s/ Stephen J. Blackstone
---------------------------
Stephen J. Blackstone
Trust Officer
</TABLE>
<PAGE> 9
EXHIBIT 1 (a)
STAR BANK, NATIONAL ASSOCIATION, CINCINNATI
CHARTER NO. 24
ARTICLES OF ASSOCIATION
FIRST: The title of this Association shall be "Star Bank, National
Association, Cincinnati."*
SECOND: The main office of the Association shall be in the City of
Cincinnati, County of Hamilton, State of Ohio. The general business of the
Association shall be conducted at its main office and its branches.
THIRD: The Board of Directors of this Association shall consist of not less
than five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined
from time to time by resolution of a majority of the full Board of Directors or
by resolution of the shareholders at any annual or special meeting thereof.
Unless otherwise provided by the laws of the United States, any vacancy in the
Board of Directors for any reason, including an increase in the number thereof,
may be filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of
Directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified therefor by the
Bylaws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all elections shall be
held according to such lawful regulations as may be prescribed by the Board of
Directors.
FIFTH: The authorized amount of capital stock of this Association shall be
3,640,000 shares of common stock of the par value of five dollars ($5.00) each,
but said capital stock may be increased or decreased from time to time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders.
<PAGE> 10
*Amended June 14, 1991, see attached.
SIXTH: The Board of Directors shall appoint one of its members President of
this Association, who shall be Chairman of the Board, unless the Board appoints
another Director to be the Chairman. The Board of Directors shall have the
power to appoint one or more Vice Presidents; and to appoint a Cashier and such
other officers and employees as may be required to transact the business of
this Association. The Board of Directors shall have the power to define the
duties of the officers and employees of the Association; to fix the salaries
to be paid to them; to dismiss them; to require bonds from them and to fix the
penalty thereof; to regulate the manner in which any increase of the capital of
the Association shall be made; to manage and administer the business and
affairs of the Association; to make all Bylaws that it may be lawful for them
to make and generally to do and perform all acts that it may be legal for a
Board of Directors to do and perform.
The Board of Directors, without need for approval of shareholders, shall have
the power to change the location of the main office of this Association,
subject to such limitations as from time to time may be provided by law; and
shall have the power to establish or change the location of any branch or
branches of the Association to any other location, without the approval of the
shareholders, but subject to the approval of the Comptroller of the Currency.
SEVENTH: The corporate existence of this Association shall continue
until terminated in accordance with the laws of the United States.
EIGHTH: The Board of Directors of this Association, the Chairman of the
Board, the President, or any three or more shareholders owning, in the
aggregate, not less twenty-five percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided
by the laws of the United States, a notice of the time, place, and purpose of
every annual and special meeting of the shareholders shall be given by
first-class mail, postage prepaid, mailed at least ten days prior to the date
of such meeting to each shareholder of record at his address as shown upon the
books of this Association.
NINTH: Any person, his heirs, executors, or administrators, may be
indemnified or reimbursed by the Association for reasonable expenses actually
incurred in connection with any action, suit, or proceeding, civil or criminal,
to which he or they shall be made a party by reason of his being or having been
a director, officer, or employee of the Association or of any firm, corporation,
or organization which he served in any such capacity at the request of the
Association. Provided, however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit, or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the Association; and, provided further, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction, or the holders of record
of a majority of the outstanding shares of the Association, or the Board of
Directors, acting by vote of Directors not parties to the same or substantially
the same action, suit, or proceeding, constituting a majority of the whole
number of Directors. The foregoing right of indemnification shall not be
exclusive of other rights to which
<PAGE> 11
such person, his heirs, executors, or administrators, may be entitled as a
matter of law. The Association may, upon the affirmative vote of a majority of
its Board of Directors, purchase insurance for the purpose of indemnifying its
directors, officers and other employees to the extent that such indemnification
is allowed in the preceding paragraph. Such insurance may, but need not, be
for the benefit of all directors, officers, or employees.
TENTH: These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law and in that case by the vote of the
holders of such greater amount.
August 18, 1988
<PAGE> 12
EXHIBIT 1(B)
STAR BANC
CORPORATION
June 14, 1991
Deputy Comptroller
Central District
Office of the Comptroller of the Currency
One Financial Place
440 S. LaSalle, Suite 2700
Chicago, Illinois 60605
Dear Deputy Comptroller:
Re: Letter of Notification
Star Bank, National Association, Cincinnati, Charter #24 intends to
change its corporate title to Star Bank, National Association. The effective
date of the change is June 14, 1991.
A certified copy of the amendment to the articles of association is
enclosed. The amendment conforms to the requirements of 12 USC 21 a.
Sincerely,
/s/_______________________
F. Kristen Koepcke
FKK:bjt
Enclosure
<PAGE> 13
EXHIBIT 1 (b)
MINUTES OF SPECIAL MEETING OF THE SHAREHOLDER
STAR BANK, NATIONAL ASSOCIATION, CINCINNATI
A Special Meeting of the shareholder of Star Bank, National Association,
Cincinnati (the "Bank") was held on June 14, 1991.
Mr. Oliver W. Waddell called the meeting to order and selected Mr. F. Kristen
Koepke to act as Secretary.
The Secretary reported that all the outstanding shares of the Bank were
represented at this meeting and that the shareholder had waived notice of this
special meeting. Therefore, a quorum was present.
Mr. Waddell stated that the purpose of the meeting was to consider a proposed
name change for the Bank as recommended by the Board of Directors. On motion
duly made and carried, the following resolution was adopted:
RESOLVED, That Article First of the Articles of Association of
the Bank be amended in its entirely to read as follows:
FIRST: The title of this Association shall be "Star Bank,
National Association."
There being no further business to come before the meeting, on motion duly made
and carried, the meeting was adjourned.
<TABLE>
<S> <C>
/s/
-----------------------------
F. Kristen Koepke, Secretary
Approved:
/s/
- ----------------------------------
Oliver W. Waddell
Chairman, Star Banc Corporation,
Shareholder Certified Copy
/s/
-----------------------------
Secretary
</TABLE>
<PAGE> 14
EXHIBIT 2 (a)
COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS:
NO. 24
E Pluribus Unum
TREASURY DEPARTMENT
Office of Comptroller of the Currency
Washington, D.C., September 1, 1992
WHEREAS, the Act of Congress of the United States, entitled, "An Act to
amend section 5136, Revised Statutes of the United States, relating to
corporate powers of associations, so as to provide succession thereof for a
period of ninety-nine years or until dissolved, and to apply said section as so
amended to all national banking association", approved by the President on July
1, 1922, provided that all national banking associations organized and
operating under any law of the United States on July 1, 1992 should have
succession until ninety-nine years from that date, unless such association
should be sooner dissolved by the act of its shareholders owning two-thirds of
its stock, or unless its franchise should become forfeited by reason of
violation of law, or unless it should be terminated by an Act of Congress
hereinafter enacted;
NOW THEREFORE, I, D. R. Crissinger
--------------------------------
Comptroller of the Currency, do hereby certify that _
The First National Bank of Cincinnati and State of Ohio
- ---------------------------------------------- ---------------
, was organized and operating under the laws of the United States on July 1,
1922, and that its corporate existence was extended for the period of
ninety-nine years from that date in accordance with and subject to the
condition in the Act of Congress hereinbefore recited.
<TABLE>
<S> <C>
(SEAL) IN TESTIMONY WHEREOF, witness my hand
and seal of office this first day of September,
------------ -----------
1922
------
(Signed) D. R. Crissinger
------------------------------------------------
Comptroller of the Currency
</TABLE>
<PAGE> 15
EXHIBIT 2 (b)
Comptroller of the Currency
<TABLE>
<S> <C>
TREASURY DEPARTMENT OF THE UNITED STATES
</TABLE>
Washington, D.C.
Whereas, satisfactory evidence has been presented to
the Comptroller of the Currency that
"FN NATIONAL BANK". located in CINCINNATI, State of OHIO, has
complied with all provisions of the Statutes of the United States required to
be complied with before being authorized to commence the business of banking as
National Banking Association;
Now, therefore, I hereby certify that the above-named
association is authorized to commence the business of banking as a National
Banking Association.
<TABLE>
<S> <C>
In testimony whereof, witness my signature and seal of
SEAL
office this 21st day of December, 1913.
/S/
----------------------------------------------------------
</TABLE>
<PAGE> 16
EXHIBIT 2 (c)
Comptroller of the Currency
<TABLE>
<S> <C>
TREASURY DEPARTMENT OF THE UNITED STATES
</TABLE>
Washington, D.C.
WHEREAS, satisfactory evidence has been presented to
the Comptroller of the Currency that all requisite legal and corporate action
has been taken, in accordance with the statutes of the United States, to merge
The First National Bank of Cincinnati, Cincinnati, Ohio, into FN National Bank,
Cincinnati, Ohio, under the charter of FN National Bank and under the title
"The First National Bank of Cincinnati," with capital stock of $18,200,000;
NOW, THEREFORE, it is hereby certified that such merger
was approved November 29, 1973, and is effective as of the opening of business
January 2, 1974.
<TABLE>
<S> <C>
IN TESTIMONY WHEREOF, witness my signature and seal
of office this 28th day of December, 1973
SEAL /S/
------------------------------------------------------------------
James E. Smith
Comptroller of the Currency
</TABLE>
<PAGE> 17
EXHIBIT 2(d)
______________________________________________________________________________
Comptroller of the Currency
Administrator of National Banks
______________________________________________________________________________
Central District
One Financial Plaza, Suite 2700
440 South LaSalle Street
Chicago, Illinois 60605
June 8, 1988
Mr. Raymond D. Beck
Secretary & Counsel
First National Cincinnati Corporation
First National Bank Center
425 Walnut Street
Cincinnati, Ohio 45201-1038
Dear Mr. Beck:
The office of the Comptroller of the Currency acknowledges receipt of your
letters concerning First National Cincinnati Corporation's banking subsidiarys'
title changes and the appropriate amendments to each bank's articles of
association. The Office has recorded the following banks' title changes
effective July 1, 1988.
<TABLE>
<S> <C>
Old Title New Title
- --------- ---------
The First National Bank of Ironton Star Bank, National Association,
Ironton, Ohio Tri-State
Charter No. 16607
Farmers and Traders National Bank Star Bank, National Association
Hillsboro, Ohio Hillsboro
Charter No. 17646
The First National Bank of Cincinnati Star Bank, National Association
Cincinnati, Ohio Cincinnati
Charter No. 24
The First National Bank & Trust Company Star Bank, National Association
Troy, Ohio Troy
Charter No. 9336
</TABLE>
<PAGE> 18
Page 2
Mr. Raymond D. Beck (cont'd)
<TABLE>
<S> <C>
The Second National Bank of Hamilton Star Bank, National Association
Hamilton, Ohio Butler County
Charter No. 17200
The Second National Bank of Richmond Star Bank, National Association
Richmond, Indiana Eastern Indiana
Charter No. 1988
The First National Bank of Aurora Star Bank, National Association
Aurora, Indiana Aurora
Charter No. 699
The Peoples National Bank of Lawrenceburg Star Bank, National Association
Lawrenceburg, Indiana Southeastern Indiana
Charter No. 2612
Newport National Bank Star Bank, National Association
Newport, Kentucky Campbell County
Charter No. 4765
The First National Bank Star Bank, National Association
Sidney, Ohio Sidney
Charter No. 5214
Very truly yours,
David J. Rogers
National Bank Examiner
Analysis Division
</TABLE>
<PAGE> 19
EXHIBIT 2(e)
______________________________________________________________________________
Comptroller of the Currency
Administrator of National Banks
______________________________________________________________________________
Central District
One Financial Place
440 S. LaSalle, Suite 2700
Chicago, Illinois 60605
July 15, 1991
Mr. F. Kristen Koepcke
Vice President, General Counsel and Secretary
Star Banc Corporation
425 Walnut Street
P.O. Box 1038
Cincinnati, Ohio 45201-1038
Dear Mr. Koepcke:
The Office of the Comptroller of the Currency has received your letter
concerning the title change and the appropriate amendment to the bank's
articles of association. The Office has recorded that as of June 14, 1991, the
title of Star Bank, National Association, Cincinnati, Charter No. 24, was
changed to Star Bank, National Association.
As a result of the Garn-St Germain Depository Institutions Act of 1982, this
Office is no longer responsible for the approval of national bank name changes
nor does it maintain official records on the use of alternate titles. The use
of other titles or the retention of the rights to any previously used title is
the responsibility of the bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal or state law.
Very truly yours,
David J. Rogers
National Bank Examiner
Analysis Division
<PAGE> 20
EXHIBIT 3
THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST POWERS:
FEDERAL RESERVE BOARD
Washington, D.C.
October 9, 1919
Pursuant to authority vested in the Federal Reserve Board by the Act of
Congress approved December 23, 1913, known as the Federal Reserve Act, as
amended by the Act of September 26, 1918, the
FIRST NATIONAL BANK OF CINCINNATI
has been granted the right to act, when not in contravention of State or local
law, as TRUSTEE, EXECUTOR, ADMINISTRATOR, REGISTRAR OF STOCKS AND BONDS,
GUARDIAN OF ESTATES, ASSIGNEE, RECEIVER OR IN ANY OTHER FIDUCIARY CAPACITY IN
WHICH STATE BANKS, TRUST COMPANIES OR OTHER CORPORATIONS WHICH COME INTO
COMPETITION WITH NATIONAL BANKS ARE PERMITTED TO ACT UNDER THE LAWS OF THE
STATE OF OHIO. The exercise of such rights shall be subject to regulations
prescribed by the Federal Reserve Board.
<TABLE>
<S> <C>
Federal Reserve Board,
By W. P. G. Harding
Governor.
ATTEST:
W. T. Chapman
Secretary.
</TABLE>
STATE OF OHIO
DEPARTMENT OF BANKS AND BANKING
Certificate of Authority No. 17
NATIONAL BANKS
I, Philip C. Berg, Superintendent of Banks, do hereby certify that the
First National Bank of Cincinnati, Hamilton County, Ohio has complied with all
the requirements provided by law and is authorized to transact the business of
a trust company and to perform all the functions granted to such companies by
the laws of this state.
Given under my hand and official Seal
at Columbus, Ohio, this twenty-fifth
day of November, A.D. 1919
<TABLE>
<S> <C>
Philip C. Berg,
Superintendent of Banks.
(SEAL)
</TABLE>
<PAGE> 21
EXHIBIT 4
BY-LAWS
STAR BANK, N.A., CINCINNATI
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING
The annual meeting of shareholders shall be held in the main banking house of
the Association at 11:00 a.m. on the second Tuesday in February of each year.
Notice of such meeting shall be mailed to shareholders not less than ten (10)
nor more than sixty (60) days prior to the meeting date.
SECTION 2. SPECIAL MEETINGS
Special meetings of shareholders may be called and held at such times and upon
such notice as is specified in the Articles of Association.
SECTION 3. QUORUM
A majority of the outstanding capital stock represented in person or by proxy
shall constitute a quorum of any meeting of the shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held as adjourned without further notice.
SECTION 4. INSPECTORS
The Board of Directors may, and in the event of its failure so to do, the
Chairman of the Board shall appoint Inspectors of Election who shall determine
the presence of a quorum, the validity of proxies, and the results of all
elections and all other matters voted upon by shareholders at all annual and
special meetings of shareholders.
SECTION 5. VOTING
In deciding on questions at meetings of shareholders, except in the election of
directors, each shareholder shall be entitled to one vote for each share of
stock held. A majority of votes cast shall decide each matter submitted to the
shareholders, except where by law a larger vote is required. In all elections
of directors, each shareholder shall have the right to vote the number of
shares owned by him for as many persons as there are directors to be elected,
or to cumulate such shares and give one candidate as many votes as the number
of directors multiplied by the number
<PAGE> 22
of his shares equal, or to distribute them on the same principle among as many
candidates as he shall think fit.
ARTICLE II
SECTION 1. TERM OF OFFICE
The directors of this Association shall hold office for one year and until
their successors are duly elected and qualified.
SECTION 2. REGULAR MEETINGS
The organization meeting of the Board of Directors shall be held as soon as
practical following the annual meeting of shareholders at the main banking
house. Other regular meetings of the Board of Directors shall be held without
notice at 11:00 a.m. on the second Tuesday of each month except February, at
the main banking house, or, provided notice is given by telegram, letter,
telephone or in person to every Director, at such time and place as may be
designated in the notice of the meeting. When any regular meeting of the Board
falls on a holiday, the meeting shall be held on the next banking business day,
unless the Board shall designate some other day.
SECTION 3. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by the Chairman of the
Board of the Association, or at the request of three or more Directors. Notice
of the time, place and purposes of such meetings shall be given by telegram,
letter, telephone or in person to every Director.
SECTION 4. QUORUM
A majority of the entire membership of the Board shall constitute a quorum at
any meeting of the Board.
SECTION 5. NECESSARY VOTE
A majority of those Directors present and voting at any meeting of the Board of
Directors shall decide each matter considered, except where otherwise required
by law or the Articles or By-Laws of this Association.
SECTION 6. COMPENSATION
Directors, excluding full-time employees of the Bank, shall receive such
reasonable compensation as may be fixed from time to time by the Board of
Directors.
SECTION 7. ELECTION-AGE LIMITATION
No person shall be elected or reelected a Director after reaching his
seventieth (70th) birthday, provided that any person who is a Director on
December 10, 1985, may continue to be reelected a Director until he reaches his
seventy-fifth (75th) birthday.
<PAGE> 23
SECTION 8 RETIREMENT-AGE LIMITATION
Every Director of the Bank shall retire no later than the first month next
following his seventieth (70th) birthday, except for any person who was a
Director on December 10, 1985, who shall retire not later than the first of the
next month following his seventy-fifth (75th) birthday.
SECTION 9 DIRECTORS EMERITUS
The Board shall have the right from time to time to choose as Directors
Emeritus persons who have had prior service as members of the Board and who may
receive such compensation as shall be fixed from time to time by the Board of
Directors.
ARTICLE III
OFFICERS
SECTION 1 WHO SHALL CONSTITUTE
The Officers of the Association shall be a Chairman of the Board, a President,
a Secretary, and other officers such as Chairman of the Executive Committee,
Vice Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents,
Vice Presidents, Assistant Secretaries, Trust Officers, Trust Investment
Officers, Trust Real Estate Officers, Assistant Trust Officers, a Controller,
Assistant Controller, an Auditor and Assistant Auditors, as the Board may
appoint from time to time. Any person may hold two offices. The Chairman of
the Board, all Vice Chairmen of the Board and the President shall at all times
be members of the Board of Directors.
SECTION 2 TERM OF OFFICE
All officers shall be elected for and shall hold office for one year and until
their successors are elected and qualified, subject to the right in the Board
of Directors by a majority vote of the entire membership to discharge any
officer at any time.
SECTION 3 CHAIRMAN OF THE BOARD (Amended 12/13/88-see attachment)
The Chairman of the Board shall be the Chief Executive Officer of the
Association and shall have all duties, responsibilities and powers of the Chief
Executive Officer. He shall, when present, preside at all meetings of
shareholders and directors and shall be ex officio a member of all committees
of the Board. He shall name all members of the committees of the Board,
subject to the confirmation thereof by the Board.
In the event that there is a vacancy in the position of President or in the
event of the absence or incapacity of the President, the Chairman may appoint,
or in the event of his failure to do so, the Board of Directors or the
Executive Committee thereof may designate any Vice Chairman of the Board, any
Executive Vice President or any Senior Vice President of the Association
temporarily to exercise the powers and perform the duties of the Chairman as
Chief Executive Officer when the Chairman is absent or incapacitated.
<PAGE> 24
The Board of Directors shall have the power to elect a Chairman of the
Executive Committee. Any such Chairman of the Executive Committee shall
participate in the formation of the policies of the Association and shall have
such other duties as may be assigned to him from time to time by the President
or by the Board of Directors.
SECTION 4 PRESIDENT (amended 12/13/88-see attachment)
The President shall participate in the formation and supervision of the
policies and operations of the Association and shall perform such other duties
as may be assigned to him from time to time by the Board of Directors or by the
Chairman of the Board. In the event that there is a vacancy in the position of
the Chairman of the Board, the President shall be the Chief Executive Officer
of the Association and shall have all the powers and perform all the duties of
the Chairman of the Board, including the same power to name temporarily a Chief
Executive Officer to serve in the absence of the President.
SECTION 5 CHAIRMAN OF THE EXECUTIVE COMMITTEE
The Board of Directors shall have the power to elect a Chairman of the
Executive Committee. Any such Chairman of the Executive Committee shall
participate in the formation of the policies of the Association and shall have
such other duties as may be assigned to him from time to time by the President
or by the Board of Directors.
SECTION 6 VICE CHAIRMEN OF THE BOARD
The Board of Directors shall have the power to elect one or more Vice Chairmen
of the Board of Directors. Any such Vice Chairmen of the Board shall
participate in the formation of the policies of the Association and shall have
such other duties as may be assigned to him from time to time by the Chairman
of the Board or by the Board of Directors.
SECTION 7 OTHER OFFICERS
The Secretary and all other officers appointed by the Board of Directors shall
have such duties as defined by law and as may from time to time be assigned to
them by the Chief Executive Officer or the Board of Directors.
SECTION 8 RETIREMENT
Every officer of the Association shall retire not later than the first of the
month next following his sixty-fifth (65th) birthday. The Board of Directors
may, in its discretion, set the retirement date and terms of retirement of an
officer at a date later than provided above.
<PAGE> 25
ARTICLE IV
COMMITTEES
SECTION 1 EXECUTIVE COMMITTEE
There shall be a standing committee of Directors in this Association to be
known as the Executive Committee. This Committee shall meet at 11:00 a.m. on
the first and fourth Tuesday of each month. It shall have all of the powers of
the Board of Directors between meetings of the Board, except as the Board only
by law is authorized to perform or exercise. All actions of the Executive
Committee shall be reported to the Board of Directors. In the event that any
member of the Executive Committee is unable to attend a meeting of that
committee, the Chairman of the Board or the President may, at his discretion,
appoint another Director to attend said meeting of the Executive Committee and
for that meeting to serve as a member of the Executive Committee with full
power to act in place of the absent regular member of the committee.
SECTION 2 COMPENSATION COMMITTEE
There shall be a standing committee of directors of this Association to be
known as the Compensation Committee who shall review the compensation of all
Executive Officers and those officers who participate in the Profit Sharing
Pool as well as fees for directors of the Association. They will recommend
specific compensation arrangements to the Board of Directors for their
confirmation.
SECTION 3 COMMITTEE ON AUDIT
There shall be a standing committee of Directors of this Association to be
known as the Committee on Audit, none of whose members shall be active officers
of the Association. This Committee shall make or cause to be made a suitable
examination of the affairs of the Association and the Trust Department at least
once during each period of twelve months. The results of such examination
shall be reported in writing to the Board at the next regular meeting
thereafter stating whether the Association and/or Trust Department is in a
sound solvent condition, whether adequate internal audit controls and
procedures are being maintained and make such reommendations as it deems
advisable.
SECTION 4 TRUST COMMITTEE
There shall be a standing committee of Directors of this Association to be
known as the Trust Committee. The Trust Committee shall determine policies of
the Department and review actions of the Trust Investment Committee. All
actions of the Trust Committee shall be reported to the Board of Directors.
SECTION 5 TRUST INVESTMENT COMMITTEE
There shall be a standing committee of this Associaiton to be known as the
Trust Investment Committee composed of officers of the Association. The Trust
Investment Committee or such
<PAGE> 26
officers as may be duly designated by the Trust Investment Committee, shall
pass upon the acceptance of all trusts, the closing out or relinquishment of
all trusts and the making, retention, or disposition of all investments of
trust funds in conformity with policies established by the Trust Committee.
Actions of the Trust Investment Committee shall be reported to the Trust
Committee.
SECTION 6 PENSION COMMITTEE
There shall be a standing committee of directors or officers of this
Association to be known as the Pension Committee, who shall have the powers and
duties as set forth in the Association's Employees' Pension Plan. A report of
the condition of the pension fund shall be submitted annually to the Board of
Directors.
SECTION 7 OTHER COMMITTEES
The Chairman may appoint, from time to time, other committees for such purposes
and with such powers as he or the Board may direct.
ARTICLE V
SEAL
SECTION 1 IMPRESSION
The following is an impression of the seal of this Association.
August 25, 1988
<PAGE> 27
RESOLVED, That Section 3 of Article III of the By-Laws of the Bank shall be
amended to read:
SECTION 3 CHAIRMAN OF THE BOARD
The Chairman of the Board shall have general executive powers and duties and
shall perform such other duties as may be assigned from time to time by the
Board of Directors. In addition, unless the Board of Directors shall have
designated the President to be the Chief Executive Officer, the Chairman of the
Board shall be the Chief Executive Officer and shall have all the powers and
duties of the Chief Executive Officer. He shall, when present, preside at all
meetings of shareholders and directors and shall be ex officio a member of all
committees of the Board. He shall name all members of the committees of the
Board, subject to the confirmation thereof by the Board.
If he is Chief Executive Officer, in the event that there is a vacancy in the
position of President or in the event of the absence or incapacity of the
President, the Chairman may appoint, or in the event of his failure to do so,
the Board of Directors or the Executive Committee thereof may designate, any
Vice Chairman of the Board, any Executive Vice President or any Senior Vice
President of the Association temporarily to exercise the powers and perform the
duties of the Chairman as Chief Executive Officer when the Chairman is absent
or incapacitated.
If the President has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the
President or in the event of the absence or incapacity of the President, the
Chairman shall be the Chief Executive Officer of the Association and shall have
all the powers and perform all the duties of the President, including the
powers to name temporarily a Chief Executive Officer to serve in the absence of
the Chairman.
FURTHER RESOLVED, That Section 4 of Article III of the By-Laws of the bank
shall be amended to read:
SECTION 4 PRESIDENT
The President shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of
Directors. In addition, if designated by the Board of Directors, the
President shall be the Chief Executive Officer and shall have all the powers
and duties of the Chief Executive Officer, including the same power to
name temporarily a Chief Executive Officer to serve in the absence of the
President if there is a vacancy in the position of the Chairman or in the
event of the absence or incapacity of the Chairman.
If the Chairman has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the Chairman
of the Board or in the event of the absence or incapacity of the Chairman of
the Board, the President shall be the Chief Executive Officer of the
Association and shall have all the powers and perform all the duties of the
Chairman of the Board, including the same power to name temporarily a Chief
Executive Officer to serve in the absence of the President.
<PAGE> 28
EXHIBIT 5
THE CONSENT OF THE TRUSTEE
REQUIRED BY 321 (B) OF THE ACT
Star Bank, National Association, the Trustee executing the statement of
eligibility and qualification to which this Exhibit is attached does hereby
consent that reports of examinations of the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor in accordance with the
provisions of 321 (b) of the Trust Indenture Act of 1939.
<TABLE>
<S> <C>
STAR BANK, NATIONAL ASSOCIATION
January 21, 1994 /s/ Stephen J. Blackstone
____________________________ BY:___________________________________
Date Stephen J. Blackstone
Trust Officer
</TABLE>
<PAGE> 29
STAR BANK, N.A. EXHIBIT 6
STATEMENTS OF CONDITION
(In Thousands)
<TABLE>
<CAPTION>
September
1993
-------------
<S> <C>
ASSETS:
Cash and Due from Banks............................ $ 294,807
Interest Bearing Deposits.......................... -
Federal Funds Sold and Securities Purchased
Under Agreements to Resell....................... 55,945
Investment Securities.............................. 1,539,142
Loans:
Commercial Loans................................. 1,605,311
Real Estate Loans................................ 1,606,570
Retail Loans..................................... 1,172,496
-------------
Total Loans.................................... 4,384,377
Less: Unearned Interest....................... 36,658
-------------
4,347,719
Allowance for Loan Losses............... 68,142
-------------
Net Loans...................................... 4,279,577
Premises and Equipment............................. 64,533
Acceptances - Customers' Liability................. 7,905
Other Assets....................................... 124,306
-------------
Total Assets................................. $ 6,366,215
=============
LIABILITIES:
Deposits:
Non-Interest Bearing Deposits.................... $ 982,815
Interest Bearing Deposits:
Savings/NOW and MFP............................ 1,972,685
Time Deposits $100,000 and Over................ 356,822
All Other Time Deposits........................ 1,496,751
-------------
Total Deposits............................... 4,809,073
Borrowed Funds..................................... 961,850
Capitalized Leases................................. 11,848
Acceptances Outstanding............................ 7,905
Other Liabilities.................................. 52,261
-------------
Total Liabilities.............................. 5,842,937
-------------
SHAREHOLDER'S EQUITY:
Common Stock....................................... 18,200
Surplus............................................ 155,414
Retained Earnings.................................. 349,664
-------------
Total Shareholder's Equity..................... 523,278
-------------
Total Liabilities and Shareholder's Equity... $ 6,366,215
=============
</TABLE>
