<PAGE> 1
THIS REGISTRATION STATEMENT ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1
TO REGISTRATION STATEMENT NO. 33-51995
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY , 1996.
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)
<TABLE>
<S> <C>
NEW JERSEY 04-1923360
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
</TABLE>
250 EAST FIFTH STREET
CINCINNATI, OHIO 45202
(513) 784-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROBERT W. OLSON, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
CHIQUITA BRANDS INTERNATIONAL, INC.
250 EAST FIFTH STREET
CINCINNATI, OHIO 45202
(513) 784-8804
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO:
ANDREW R. KELLER, 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/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
- ------------------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
- ------------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
(Cover continued on next page)
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. 33-51995 (relating to an aggregate of $300,000,000
principal amount of Debt Securities, Preferred Stock, par value $1.00 per share,
and Capital Stock, par value $0.33 per share) previously filed by the registrant
and declared effective on January 28, 1994. This Registration Statement
constitutes Post-Effective Amendment No. 1 to Registration Statement No.
33-51995 with respect to the remaining $81,250,000 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> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
PROPOSED
AGGREGATE PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED(1) REGISTERED(2) PER UNIT(2)(3) PRICE(2)(4) FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities; Non-Voting Cumulative (7) (6) $418,750,000 $144,397
Preferred Stock, par value $1.00 per share;
Cumulative Preference Stock, without par
value; Depositary Shares; Capital Stock, par
value $0.33 per share; Securities
Warrants(5)(6)
=================================================================================================================
</TABLE>
(1) This registration statement also covers such indeterminate amount of
securities as may be issued in exchange for, or upon conversion or exercise
of, as the case may be, the Debt Securities, Non-Voting Preferred Stock,
Preference Stock, Depositary Shares or Securities Warrants registered
hereunder.
(2) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$418,750,000 or, if any Debt Securities are issued with original issue
discount, such greater amount as shall result in an aggregate offering
price of not more than $418,750,000. Any offering of Debt Securities
denominated other than in U.S. dollars will be treated as the equivalent of
U.S. dollars based on the exchange rate applicable to the purchase of such
Debt Securities at the time of the initial offering. Any securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
(3) No separate consideration will be received for any securities registered
hereunder that are issued in exchange for, or upon conversion of, as the
case may be, the Debt Securities, Non-Voting Preferred Stock, Preference
Stock, or Depositary Shares registered hereunder.
(4) 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").
(5) Such indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event that the
Registrant elects to offer to the public fractional interests in shares of
the Non-Voting Preferred Stock or Preference Stock registered hereunder,
Depositary Receipts will be distributed to those persons purchasing such
fractional interests and such shares will be issued to the Depositary under
the Deposit Agreement.
(6) Subject to Note 1 above, there is being registered hereunder an
indeterminate principal amount of Debt Securities and/or shares of
Non-Voting Preferred Stock and/or shares of Preference Stock and/or
Depositary Shares and/or shares of Capital Stock and/or Securities Warrants
as may be sold, from time to time, by the registrant.
(7) Not applicable pursuant to Form S-3 General Instructions II.D.
<PAGE> 3
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1996
PROSPECTUS
[LOGO] $500,000,000
CHIQUITA BRANDS INTERNATIONAL, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
SECURITIES WARRANTS
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 preferred stock (together
"Preferred Stock") which may be either Non-Voting Cumulative Preferred Stock,
par value $1.00 per share ("Non-Voting Preferred Stock") or Cumulative
Preference Stock, without par value ("Preference Stock"), either of which may be
issued in the form of depositary shares evidenced by depositary receipts
("Depositary Shares"), (iii) shares of its Capital Stock, par value $0.33 per
share ("Common Stock") and (iv) securities warrants ("Securities Warrants") to
purchase Debt Securities, Preferred Stock, Depositary Shares or Common Stock
(the Debt Securities, Preferred Stock, Common Stock and Securities Warrants
being collectively referred to as the "Securities"), or any combination of the
foregoing, at an aggregate initial offering price not to exceed $500,000,000, 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, including whether Non-Voting Preferred Stock or Preference Stock,
number of shares, voting rights (for Preference Stock), 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,
(iii) in the case of Common Stock, the number of shares of Common Stock and the
terms of the offering and sale thereof and (iv) in the case of Securities
Warrants, the number and terms thereof, the designation and number or amount of
Securities issuable upon their exercise, the exercise price, the terms of the
offering and sale thereof and, where applicable, the duration and detachability
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 "RISK FACTORS" ON PAGE 3 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 , 1996.
<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., and at the Regional Offices of the
Commission at Suite 1300, 7 World Trade Center, New York, New York, and Suite
1400, Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois.
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, 1994 (which
incorporates by reference certain information contained in the Company's 1994
Annual Report to Shareholders) (the "1994 10-K"), the Quarterly Reports on Form
10-Q for the quarters ended March 31, 1995, June 30, 1995 and September 30, 1995
(the "1995 Third Quarter 10-Q" and, collectively, the "1995 10-Q's") and the
Current Reports on Form 8-K dated April 27, 1995, December 20, 1995 and February
7, 1996 filed by Chiquita with the Commission (Commission file number 1-1550)
are incorporated herein by reference and made a part hereof. The consolidated
financial statements and certain financial data included in the 1994 10-K and
the consolidated nine month financial statements included in the 1995 Third
Quarter 10-Q have been restated in the Current Report on Form 8-K filed on
February 7, 1996 to reflect the deconsolidation of the Company's discontinued
Meat Division operations.
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
2
<PAGE> 5
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.
THE COMPANY
Chiquita Brands International, Inc. is a leading international marketer,
producer and distributor of bananas and other quality fresh and processed food
products sold under the Chiquita and other brand names. In addition to bananas,
these products include other tropical fruit, such as mangos, kiwi and citrus,
and a wide variety of other fresh produce. The Company's operations also include
fruit and vegetable juices and beverages sold primarily in the United States;
processed bananas and other processed fruits and vegetables marketed worldwide;
and fresh cut and ready-to-eat salads.
The Company has recently sold its Meat Division. All financial data in this
prospectus have been restated to deconsolidate the Company's discontinued Meat
Division operations.
American Financial Group, Inc. ("AFG") owns, either directly or through its
subsidiaries, approximately 44% of Chiquita's outstanding shares of Common
Stock. Approximately 44% of the outstanding common stock of AFG is beneficially
owned by Carl H. Lindner, members of his family and trusts for their benefit.
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) 784-8000. Unless the context indicates otherwise, the
term "Chiquita" also includes the subsidiaries of the Company.
RISK FACTORS
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.
EUROPEAN UNION BANANA REGULATION
On July 1, 1993, the European Union ("EU") implemented a new quota
effectively restricting the volume of Latin American bananas imported into the
EU. Implementation of the quota had the effect of decreasing the Company's
volume and market share in Europe. The quota is administered through a licensing
system and grants preferred status to producers and importers within the EU and
its former colonies, while imposing new quotas and tariffs on bananas imported
from other sources, including Latin America, Chiquita's primary source of fruit.
Since imposition of the EU quota regime, prices within the EU have increased to
a higher level than the levels prevailing prior to the quota. Banana prices in
other worldwide markets, however, have been lower than in years prior to the EU
quota, as the displaced EU volume has entered those markets. In two separate
rulings, General Agreement on Tariffs and Trade ("GATT") panels found this
banana policy to be illegal. In March 1994, four of the countries which had
filed GATT actions against the EU banana policy (Costa Rica, Colombia, Nicaragua
and Venezuela) reached a settlement with the EU by signing a "Framework
Agreement." The Framework Agreement authorizes the imposition of additional
restrictive and discriminatory quotas and export licenses on U.S. banana
marketing firms, while leaving EU firms exempt. Costa Rica and Colombia have
implemented this agreement, significantly increasing the Company's cost to
export bananas from these sources. Three additional European countries (Sweden,
Finland and Austria) joined the EU effective January 1, 1995. These countries,
which had substantially unrestricted banana markets in which the Company
supplied a significant portion of the bananas, are in the process of transition
to the restrictive EU quota and licensing environment. The timing and exact
nature of any adjustments in the quota and licensing regulations that will be
made for these new EU members have not yet been determined. Implementation of
the quota regime continues to evolve, and there can be no assurance that the EU
banana regulation will not change further.
3
<PAGE> 6
In September 1994, Chiquita and the Hawaii Banana Industry Association made
a joint filing with the Office of the U.S. Trade Representative ("USTR") under
Section 301 of the U.S. Trade Act of 1974, charging that the EU quota and
licensing regime and the Framework Agreement are unreasonable, discriminatory,
and a burden and restriction on U.S. commerce. In response to this petition, the
U.S. Government initiated formal investigations of the EU banana import policy
and of the Colombian and Costa Rican Framework Agreement export policies. In
January 1995, the U.S. Government announced a preliminary finding against the EU
banana import policy and in September 1995, based on information obtained in the
USTR's investigation under Section 301, the United States, joined by Guatemala,
Honduras and Mexico, commenced a new international trade challenge against the
EU regime using the procedures of the new World Trade Organization ("WTO"). In
January 1996, the USTR announced it had found the banana export policies of
Costa Rica and Colombia, which have implemented the Framework Agreement, to be
unfair. The USTR further announced it was not imposing sanctions at that time,
pending further consultations with those countries to eliminate harm to U.S.
commerce. In early February 1996, Ecuador joined the United States, Guatemala,
Honduras and Mexico in challenging the EU regime under the WTO. Both the WTO and
Section 301 authorize retaliatory measures, such as tariffs or withdrawal of
trade concessions, against the offending countries. However, there can be no
assurance as to the results of the WTO and Section 301 proceedings, the nature
and extent of actions that may be taken by the United States or other adversely
affected countries, or the impact on the EU quota regime or the Framework
Agreement.
RECENT LOSSES
From 1984 to 1991, the Company reported a continuous record of growth in
annual earnings. However, the Company reported net losses for 1992, 1993 and
1994 of $284 million, $51 million and $72 million, respectively. The 1992 net
loss included restructuring and reorganization charges of $61 million and losses
relating to discontinued Meat Division operations of $62 million. The 1993 net
loss was reduced as a result of benefits from the Company's multiyear investment
spending program and its restructuring and cost reduction efforts. The 1994 net
loss included income from discontinued operations of $36 million extraordinary
charges of $23 million from prepayment of debt and charges and losses totaling
$67 million resulting primarily from farm closings and banana cultivation
write-downs in Honduras following an unusually severe strike, the substantial
reduction of the Company's Japanese "green" banana trading operations and a
write-down of ships held for sale.
LEVERAGE
As of September 30, 1995, the Company and its subsidiaries had short-term
notes and loans payable of $114 million and long-term debt (including current
maturities) of approximately $1.4 billion. Required debt maturities for the
fourth quarter of 1995 were $29 million and for the years 1996 through 2000 are
$56 million, $61 million, $88 million, $35 million and $36 million,
respectively. The percentage of total debt to total capitalization for the
Company was 68% at September 30, 1995.
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. 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, some of which are
highly leveraged. As of September 30, 1995, the total debt of the Company's
subsidiaries aggregated $657 million, of which $326 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.
COMPETITION AND PRICING
Approximately 60% of the Company's consolidated net sales comes from the
sale of bananas. Banana marketing is highly competitive. While smaller
companies, including growers' cooperatives, are a competitive factor, the
Company's principal competitors are a limited number of large international
companies. The
4
<PAGE> 7
Company has been able to obtain a premium price for its bananas due to its
reputation for quality and its innovative marketing techniques. In order to
compete successfully, the Company must be able to source bananas of uniformly
high quality and distribute them in worldwide markets on a timely basis. 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 dependent upon the available supplies of bananas and other fruit in
each market, the relative quality, and wholesaler and retailer acceptance of
bananas offered by competing importers. Excess supplies may result in increased
price competition. Competition in the sale of bananas also comes from other
fresh fruit, which 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 stronger period.
ADVERSE WEATHER CONDITIONS AND CROP DISEASE
Bananas are 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. Chiquita has a greater number and geographic
diversity of sources of bananas than any of its competitors. During 1995,
approximately one-third of all bananas sold by Chiquita were sourced from
Panama. Bananas sourced from other countries, including Colombia, Costa Rica,
Ecuador, Guatemala and Honduras, comprised from 3% to 23% (depending on the
country) of bananas sold by Chiquita during 1995.
LABOR RELATIONS
The Company employs a total of approximately 36,000 persons. Approximately
32,000 of the associates are employed in Central and South America, including
28,000 workers covered by approximately 85 labor contracts with terms expiring
from 1996 to 1999. Strikes or other labor-related actions are often encountered
upon expiration of labor contracts and also frequently occur during the term of
the contracts.
OTHER RISKS OF INTERNATIONAL OPERATIONS
The Company's operations are conducted in many areas of the world, and are
subject to risks that are inherent in operating in foreign countries, including
government regulation, currency restrictions and other restraints, risks of
expropriation, burdensome taxes, quotas and tariffs. 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 the
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 products, the Company believes its 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. 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, actions by regulators have in the past
required, and in the future may require, operational modifications or capital
improvements at various locations or the payment of fines and penalties, or
both.
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 Preferred 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 Preferred 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 February 2, 1996, the
Company had outstanding 55,123,774 shares of Common Stock, including 23,996,295
shares held, directly or indirectly, by AFG, and 2,875,000 shares of $2.875
Non-Voting Cumulative Preferred Stock, Series A.
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<PAGE> 8
ABSENCE OF PUBLIC MARKET FOR SECURITIES (OTHER THAN COMMON STOCK)
Since the Debt Securities, the Preferred Stock and the Securities Warrants
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.
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.
6
<PAGE> 9
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges and the ratio of earnings to
combined fixed charges and preferred stock dividends for the Company were as
follows for the nine month periods ended September 30, 1995 and 1994 and for the
years ended December 31, 1990 through 1994:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- ----------------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges....... 1.42 --(1) --(1) --(1) --(1) 1.73 2.13
Ratio of earnings to combined fixed
charges and preferred stock
dividends.............................. 1.34 --(1) --(1) --(1) --(1) 1.73 2.13
</TABLE>
- ---------------
(1) Fixed charges and combined fixed charges and preferred stock dividends both
exceeded earnings by approximately $3 million and $10 million, respectively for
the nine months ended September 30, 1994. Fixed charges exceeded earnings by
approximately $75 million, $45 million and $239 million for the years ended
December 31, 1994, 1993 and 1992, respectively. Combined fixed charges and
preferred stock dividends exceeded earnings by approximately $86 million, $49
million and $239 million for the years ended December 31, 1994, 1993 and 1992,
respectively.
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 of rent considered to represent interest cost.
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<PAGE> 10
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") dated as of February 15, 1994 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 Indenture or form of Indenture 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 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
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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. Unless otherwise indicated in
the applicable Prospectus Supplement, 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 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.
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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 consecutive 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 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 (unless such default has been cured or waived), 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 its 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
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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 to Redemption
Date) 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 50%
in principal amount of the Outstanding Debt Securities of each series issued
under the Indenture affected by the modification or 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 Debt 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.
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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 existing and future unsecured Senior Indebtedness
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 marshaling 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. 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. 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 10 1/2% Subordinated Debentures due August 1, 2004, 11 1/2%
Subordinated Notes due June 1, 2001 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, N.A.,
Cincinnati, Ohio, is a national banking association organized under the laws of
the United States of America.
DESCRIPTION OF EQUITY SECURITIES
Chiquita has 150,000,000 authorized shares of Capital Stock, par value $.33
per share (the "Common Stock"), of which 55,123,774 shares were outstanding on
February 2, 1996. Chiquita has authorized 10,000,000 shares of Non-Voting
Cumulative Preferred Stock, $1.00 par value per share (the "Non-Voting
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Preferred Stock"), of which 2,875,000 shares were outstanding as of February 2,
1996 designated as $2.875 Non-Voting Cumulative Preferred Stock, Series A; and
4,000,000 shares of Cumulative Preference Stock, without par value (the
"Preference Stock"), no shares of which were outstanding as of February 2, 1996.
Each of the Non-Voting Preferred Stock and the 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.
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 Second
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, 1995, these restrictions would have
allowed the payment of approximately $200 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.
DESCRIPTION OF COMMON STOCK
Chiquita has 150,000,000 authorized shares of Common Stock, of which
55,123,774 shares were outstanding on February 2, 1996.
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 PREFERENCE STOCK
The Board of Directors of the Company may provide for the issuance of up to
4,000,000 shares of Preference Stock in one or more series. The rights,
preferences, privileges and restrictions, including dividend rights, voting
rights, conversion rights, terms of redemption and liquidation preferences of
each series may 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 Preference Stock offered
hereby will be fully paid and nonassessable.
The specific terms of a particular series of Preference 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;
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(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 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 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) the voting power, if any, of any series; and
(viii) any other preferences and relative, participating, optional or
other special rights or qualifications, limitations or restrictions
thereof.
DESCRIPTION OF NON-VOTING PREFERRED STOCK
Chiquita has 10,000,000 authorized shares of Non-Voting Preferred Stock, of
which 2,875,000 shares, designated as $2.875 Non-Voting Cumulative Preferred
Stock, Series A, par value $1.00 per share (the "Series A Preferred Stock"),
were outstanding on February 2, 1996. The Non-Voting Preferred Stock may be
issued in one or more series and the rights, preferences, privileges and
restrictions, including dividend rights, conversion rights, terms of redemption
and liquidation preferences of each series may be fixed or designated by the
Board of Directors of the Company without any further vote or action by the
Company's shareholders; provided however, that no series of Preferred Stock
shall have the right to vote unconditionally in the election of directors of the
Company. Upon issuance after full payment of the purchase price therefor, shares
of Non-Voting Preferred Stock offered hereby will be fully paid and
nonassessable.
The specific terms of a particular series of Non-Voting 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 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.
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THE SERIES A PREFERRED STOCK. Dividends on the Series A Preferred Stock
accrue at an annual rate of $2.875 per share, are cumulative from February 15,
1994, and are payable quarterly in arrears, commencing June 7, 1994. The shares
of Series A Preferred Stock have a liquidation preference of $50.00 per share
plus dividends in arrears, if any.
The Series A Preferred Stock is not convertible at the option of the
Company prior to February 15, 1997. On and after February 15, 1997 until
February 15, 2001, the Series A Preferred Stock will be convertible, in whole or
in part, at the option of the Company, for such number of shares of the
Company's Common Stock as are issuable at a conversion rate of 2.6316 shares of
Common Stock for each share of Series A Preferred Stock, subject to adjustment
in certain circumstances. The Company may exercise this option only if for 20
trading days within any period of 30 consecutive trading days, including the
last trading day of such 30 trading day period, the closing price of the Common
Stock on the New York Stock Exchange (the "NYSE") exceeds $24.70, subject to
adjustment in certain circumstances. On and after February 15, 2001, the Series
A Preferred Stock will be convertible, in whole or in part, at the option of the
Company, into that number of shares of Common Stock which shall have a current
market price (calculated by averaging the closing prices of the Common Stock on
the NYSE for the five trading days immediately preceding the conversion date)
equal to $50.00 per share of Series A Preferred Stock. However, in no event
shall the number of shares of Common Stock into which each share of Series A
Preferred Stock is convertible exceed 10, subject to adjustment in certain
circumstances.
Each share of Series A Preferred Stock is convertible at any time at the
holder's option, into 2.6316 shares of Common Stock, subject to adjustment in
certain circumstances.
The Series A Preferred Stock is not redeemable, and there is no redemption
or sinking fund obligation with respect to the Series A Preferred Stock.
DEPOSITARY SHARES
GENERAL. The Company may, at its option, elect to offer fractional shares
of Preferred Stock (either Non-Voting Preferred Stock or Preference Stock)
rather than full shares of Preferred Stock. In the event such option is
exercised, the Company will issue to the public receipts for Depositary Shares,
each of which will represent a fraction (to be set forth in the Prospectus
Supplement relating to a particular series of Preferred Stock) of a share of a
particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and, unless otherwise indicated in the Prospectus
Supplement, a bank or trust company selected by the Company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption and liquidation
rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of the offering. Copies of the
forms of Deposit Agreement and Depositary Receipt are filed as exhibits to the
Registration Statement of which this Prospectus is a part, and the following
summary is qualified in its entirety by reference to such exhibits.
If required by law or applicable securities exchange rules, engraved
Depositary Receipts will be prepared. Pending the preparation of definitive
engraved Depositary Receipts, the Depositary may, upon the written order of the
Company, issue temporary Depositary Receipts substantially identical to (and
entitling the holders thereof to all the rights pertaining to) the definitive
Depositary Receipts but not in definitive form. Definitive Depositary Receipts
will be prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at the
Company's expense.
15
<PAGE> 18
DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute all cash
dividends or other cash distributions received in respect of the Preferred Stock
to the record holders of Depositary Shares relating to such Preferred Stock in
proportion to the number of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
REDEMPTION OF DEPOSITARY SHARES. If a series of Preferred Stock
represented by Depositary Shares is subject to redemption, the Depositary Shares
will be redeemed from the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of Preferred Stock held by the
Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable with respect to
such series of the Preferred Stock. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares representing the shares of
Preferred Stock so redeemed. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata as may be determined by the Depositary.
VOTING THE PREFERRED STOCK. Upon receipt of notice of any meeting at which
the holders of the Preferred Stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such Preferred Stock. Each record holder of
such Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of the
Preferred Stock represented by such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all action that may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares representing
such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT. The form of
Depositary Receipt evidencing the Depositary Shares and any provision of the
Deposit Agreement may at any time be amended by agreement between the Company
and the Depositary. However, any amendment that materially and adversely alters
the rights of the holders of Depositary Shares will not be effective unless such
amendment has been approved by the holders of at least a majority of the
Depositary Shares then outstanding. The Deposit Agreement may be terminated by
the Company or the Depositary only if (i) all outstanding Depositary Shares have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution has been distributed to the holders of
Depositary Receipts.
CHARGES OF DEPOSITARY. The Company will pay all transfer and other taxes
and governmental charges arising solely from the existence of the depositary
arrangements. The Company will pay charges of the Depositary in connection with
the initial deposit of the Preferred Stock and any redemption of the Preferred
Stock. Holders of Depositary Receipts will pay other transfer and other taxes
and governmental charges and such other charges, including a fee for the
withdrawal of shares of Preferred Stock upon surrender of Depositary Receipts,
as are expressly provided in the Deposit Agreement to be for their accounts.
WITHDRAWAL OF PREFERRED STOCK. Upon surrender of Depositary Receipts at
the principal office of the Depositary, subject to the terms of the Deposit
Agreement, the owner of the Depositary Shares evidenced thereby is entitled to
delivery of the number of whole shares of Preferred Stock and all money and
other property, if any, represented by such Depositary Shares. Partial shares of
Preferred Stock will not be issued. If the Depositary Receipts delivered by the
holder evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole shares of Preferred Stock to
be withdrawn, the Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares. Holders
of Preferred Stock thus withdrawn will not thereafter be entitled to
16
<PAGE> 19
deposit such shares under the Deposit Agreement or to receive Depositary
Receipts evidencing Depositary Shares therefor.
MISCELLANEOUS. The Depositary will forward to holders of Depository
Receipts all reports and communications from the Company that are delivered to
the Depositary and that the Company is required to furnish to the holders of the
Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, or upon information provided by persons
presenting Preferred Stock for deposit, holders of Depositary Receipts or other
persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any
time by delivering to the Company notice of its election to do so, and the
Company may at any time remove the Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and its acceptance
of such appointment. Such successor Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and, unless otherwise
indicated in the Prospectus Supplement, must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock, Depositary Shares or Common Stock. Securities
Warrants may be issued independently or together with Debt Securities, Preferred
Stock, Depositary Shares or Common Stock offered by any Prospectus Supplement
and may be attached to or separate from any such Offered Securities. Each series
of Securities Warrants will be issued under a separate warrant agreement (a
"Securities Warrant Agreement") to be entered into between the Company and a
bank or trust company, as warrant agent (the "Securities Warrant Agent"), all as
set forth in the Prospectus Supplement relating to the particular issue of
Securities Warrants. The Securities Warrant Agent will act solely as an agent of
the Company in connection with the Securities Warrants and will not assume any
obligation or relationship of agency or trust for or with any holders of
Securities Warrants or beneficial owners of Securities Warrants. The following
summary of certain provisions of the Securities Warrants does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all provisions of the Securities Warrant Agreements.
Reference is made to the Prospectus Supplement relating to the particular
issue of Securities Warrants offered thereby for the terms of and information
relating to such Securities Warrants, including, where applicable: (i) the
designation, aggregate principal amount, currencies, denominations, and terms of
the series of Debt Securities purchasable upon exercise of Debt Warrants and the
price at which such Debt Securities may be purchased upon such exercise; (ii)
the number of shares of Common Stock purchasable upon the exercise of Common
Stock Warrants and the price at which such number of shares of Common Stock may
be purchased upon such exercise; (iii) the number of shares and series of
Preferred Stock and/or Depositary Shares purchasable upon the exercise of
Preferred Stock Warrants and the price at which such number of shares of such
series of Preferred Stock and/or Depositary Shares may be purchased upon such
exercise; (iv) the date on which the right to exercise such Securities Warrants
shall commence and the date on which such right shall expire (the "Expiration
Date"); (v) United States Federal income tax consequences applicable to such
Securities Warrants; (vi) the amount of warrants outstanding as of the most
recent practicable date; and (vii) any other terms of such Securities Warrants.
Common Stock Warrants will be offered and exercisable for U.S. Dollars only.
Securities Warrants will be issued in registered form only.
17
<PAGE> 20
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or such number of shares of Preferred Stock,
Depositary Shares or Common Stock at such exercise price as shall in each case
be set forth in, or calculable from, the Prospectus Supplement relating to the
Securities Warrants, which exercise price may be subject to adjustment upon the
occurrence of certain events as set forth in such Prospectus Supplement. After
the close of business on the Expiration Date (or such later date to which such
Expiration Date may be extended by the Company), unexercised Securities Warrants
will become void. The place or places where, and the manner in which, Securities
Warrants may be exercised shall be specified in the Prospectus Supplement
relating to such Securities Warrants.
Prior to the exercise of any Securities Warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares or Common Stock, holders of such
Securities Warrants will not have any of the rights of holders of Debt
Securities, Preferred Stock, Depositary Shares or Common Stock, as the case may
be, purchasable upon such exercise, including the right to receive payments of
principal of, premium, if any, or interest, if any, on the Debt Securities
purchasable upon such exercise or to enforce covenants in the applicable
Indenture, or to receive payments of dividends, if any, on the Preferred Stock,
Depositary Shares or Common Stock purchasable upon such exercise, or to exercise
any applicable right to vote.
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
18
<PAGE> 21
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.
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 the Company by Robert W.
Olson, 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. Robert W. Olson presently holds employee stock options to
purchase shares of the Company's Common Stock.
EXPERTS
The consolidated financial statements of Chiquita Brands International,
Inc. for the year ended December 31, 1994 appearing in its Form 8-K dated
February 7, 1996 have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
19
<PAGE> 22
APPENDIX
GRAPHICS AND IMAGE MATERIAL
Front Cover of
Prospectus................. The Company's logo is a vertically aligned solid
blue oval with a yellow inside border and a design
containing the word "Chiquita"(R) in white and a
yellow outline sketch of the upper torso of a woman
bearing a basket of fruit on her head.
<PAGE> 23
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 the
Company in connection with the issuance and distribution of the securities being
registered hereby:
<TABLE>
<S> <C>
SEC registration fee...................................................... $144,397
Accounting fees and expenses.............................................. 40,000
Legal fees and expenses................................................... 90,000
Blue Sky fees and expenses................................................ 20,000
Printing and engraving expenses........................................... 150,000
Trustees' fees and expenses............................................... 20,000
Rating agency fees........................................................ 75,000
Listing fees.............................................................. 15,000
Marketing expenses........................................................ 350,000
Miscellaneous............................................................. 45,603
--------
Total........................................................... $950,000
========
</TABLE>
All the above expenses other than the SEC registration fee are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the Company'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 the Company are indemnified generally against expenses and
liabilities incurred in connection with any proceedings, including proceedings
by or on behalf of the Company, relating to their service to or at the request
of the Company. 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 the Company 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 the Company's Second Restated
Certificate of Incorporation (Restated) also limits the liability of the
Company's directors and officers to the Company or its shareholders, to the
fullest extent permitted by the New Jersey Business Corporation Act, for
monetary damages for breach of any duty, except in the situations set forth in
(a) through (c) above.
II-1
<PAGE> 24
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NO.
- -------
<S> <C>
1 Form of Underwriting Agreement Basic Provisions (with forms of Terms Agreement
attached)
4(a) Second Restated Certificate of Incorporation of the Company
4(b) By-Laws of the Company, as amended
4(c) Indenture dated as of February 15, 1994 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
4(e) Form of Deposit Agreement
4(f) Form of Securities Warrant Agreements
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
</TABLE>
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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
II-2
<PAGE> 25
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.
*(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.
*(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> 26
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 7th day of February, 1996.
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 7th day of February, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- --------------------------------------------
<S> <C>
/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
/s/ FRED J. RUNK Director and Vice President
- --------------------------------------------
Fred J. Runk
/s/ JEAN H. SISCO Director
- --------------------------------------------
Jean H. Sisco
/s/ WILLIAM W. VERITY Director
- --------------------------------------------
William W. Verity
/s/ OLIVER W. WADDELL Director
- --------------------------------------------
Oliver W. Waddell
Director
- --------------------------------------------
Ronald F. Walker
</TABLE>
II-4
<PAGE> 27
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- --------------------------------------------
<S> <C>
/s/ STEVEN G. WARSHAW Executive Vice President, Chief
- -------------------------------------------- Administrative Officer and Chief Financial
Steven G. Warshaw Officer (Chief Financial Officer)
/s/ WILLIAM A. TSACALIS Vice President and Controller (Chief
- -------------------------------------------- Accounting Officer)
William A. Tsacalis
</TABLE>
II-5
<PAGE> 28
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------------------------------------------------------------------------------
<S> <C>
1 Form of Underwriting Agreement Basic Provisions (with forms of Terms Agreement
attached)
*4(a) Second Restated Certificate of Incorporation of the Company, filed as Exhibit 3(a)
to Quarterly Report on Form 10-Q for the quarter ended June 30, 1994
*4(b) By-Laws of the Company, as amended, filed as Exhibit 3-b to Annual Report on Form
10-K for the year ended December 31, 1992
4(c) Indenture dated as of February 15, 1994, 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, filed as Exhibit 4(d) of the
Company's Registration Statement on Form S-3, Registration Statement No. 33-51995
4(e) Form of Deposit Agreement, to be filed by amendment
4(f) Form of Securities Warrant Agreements, to be filed by amendment
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
</TABLE>
- ---------------
* Incorporated by reference.
<PAGE> 29
REGISTRATION STATEMENT NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
------------------------
FORM S-3
------------------------
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
CHIQUITA BRANDS INTERNATIONAL, INC.
EXHIBITS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 1
DRAFT
2/5/96
CHIQUITA BRANDS INTERNATIONAL, INC.
SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
JANUARY, 1996
Chiquita Brands International, Inc., a New Jersey corporation
(the "Company"), proposes to issue and sell from time to time senior debt
securities, subordinated debt securities (collectively, "Debt Securities"),
preferred stock, which may be issued in the form of depositary shares, common
stock, and securities warrants registered under the registration statement
referred to in Paragraph 1(a) ("Underwritten Securities"). If specified in a
Terms Agreement (as defined in Paragraph 2), the Company proposes to grant to
the underwriters an option to purchase up to that amount of Underwritten
Securities specified in such Terms Agreement (the "Option Securities"). The Debt
Securities will be issued under indentures (as they may be amended or
supplemented from time to time, the "Indentures"), more particularly described
in a Terms Agreement, between the Company and the trustees named therein (the
"Trustee(s)"), in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, conversion or exchange provisions,
selling prices and other terms, with all such terms for any particular series of
the Debt Securities being determined at the time of sale. The preferred stock
will be issued in one or more series, which may be either Non-Voting Cumulative
Preferred Stock, par value $1.00 per share ("Non-Voting Preferred Stock"), or
Cumulative Preference Stock, without par value ("Preference Stock"), (together
"Preferred Stock"), either of which may be issued in the form of depositary
shares evidenced by depositary receipts ("Depositary Shares"). Each series of
Preferred Stock may vary as to voting rights, dividends, optional and mandatory
redemption provisions, liquidation preference and conversion or exchange
provisions and other terms, with all such terms for any particular series or
issue of the Preferred Stock being determined at the time of issue. Securities
warrants ("Securities Warrants") may also be offered from time to time to
purchase Debt Securities, Preferred Stock, common stock or Depositary Shares.
The Underwritten Securities will be sold pursuant to one or more Terms
Agreements, for resale in accordance with terms of offering determined at the
time of sale.
The Underwritten Securities (together with the Option
Securities) involved in any such offering are hereinafter referred to as the
"Securities." The firm or firms which agree to purchase all or any portion of
the Securities are hereinafter referred to as the "Underwriters" of such
Securities, and the representative or representatives of the Underwriters, if
any, specified in a Terms Agreement are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives," as
used in this Agreement (other than in Paragraphs 1(b), 7 and 9 and the second
sentence of Paragraph 2) shall mean the Underwriters.
1. Representations, Warranties and Agreements of the
Company. The Company represents and warrants to and agrees with each
Underwriter that:
(a) A registration statement on Form S-3 with respect to the
Securities (i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, (ii)
has been filed by the Company with the Commission under the Act and
(iii) has been declared effective by the Commission. If any post-
effective amendment to such registration statement has been filed with
the Commission prior to the execution and delivery of the Terms
Agreement, the most recent such amendment has been declared effective
by the Commission. Copies of such registration statement (including all
documents incorporated by reference in the latest prospectus contained
therein) as amended as of the date of the Terms Agreement have been
delivered by the Company to the Representatives.
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As used in this Agreement, "Primary Registration Statement"
means such registration statement (including documents incorporated by
reference therein), as it became effective under the Act, "Rule 462(b)
Registration Statement" means a second registration statement, if any,
on Form S-3 with respect to the Securities prepared by the Company and
filed with the Commission under the Act pursuant to Rule 462(b) of the
Rules and Regulations, and "Registration Statements" means both the
Primary Registration Statement and any Rule 462(b) Registration
Statement, in each case including all exhibits (other than Form T-1)
and financial schedules thereto, as amended as of the date of the Terms
Agreement; "Basic Prospectus" means the prospectus (including documents
incorporated by reference therein) included in the Registration
Statement; and "Prospectus" means the Basic Prospectus, together with
any prospectus amendment or supplement specifically relating to the
Underwritten Securities to be purchased by the Underwriters pursuant to
the Terms Agreement, as filed with, or mailed for filing to, the
Commission pursuant to Rule 424(b) of the Rules and Regulations ("Rule
424"). As of the date of the Terms Agreement, the Commission has not
issued any order preventing or suspending the use of any Prospectus.
(b) The Registration Statements and the Prospectus comply,
and, at all times when a prospectus is required to be delivered in
connection with offers or sales of the Underwritten Securities, the
Registration Statements, any amendments thereof, the Prospectus and the
Prospectus as amended or supplemented, including any document filed by
the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after
the dates of such Registration Statements or Prospectus, as the case
may be, and incorporated by reference in such Registration Statements
or Prospectus ("Incorporated Documents"), will comply, as to form in
all material respects with the requirements of the Act, the Exchange
Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), if applicable, and the rules and regulations under
such acts; the Indenture, if any, specified in any Terms Agreement
including any amendments and supplements thereto, will comply as to
form in all material respects with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission
thereunder; and the Registration Statements and the Prospectus
(including any Incorporated Documents) do not contain, and at all times
when a prospectus is required to be delivered in connection with offers
or sales of Underwritten Securities, will not include, any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that the Company makes no
representation or warranty as to information contained in or omitted
from the Registration Statements or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives, if any, specifically for inclusion
therein. The Indenture, if any, described in the Terms Agreement has
been qualified under the Trust Indenture Act.
(c) The documents which are incorporated by reference in the
Registration Statements and the Prospectus have been, and each
Incorporated Document will be, prepared by the Company in conformity
with the requirements of the Act and the Exchange Act and the rules and
regulations thereunder and such documents have been, or in the case of
an Incorporated Document will be, timely filed as required thereby.
Copies of each of the documents incorporated by reference in the
Registration Statements and the Prospectus, together with satisfactory
evidence of the filing thereof, have been delivered by the Company to
the Representatives.
(d) The Company has all necessary corporate power and
authority to execute and deliver the Terms Agreement (including the
provisions of this "Underwriting Agreement Basic Provisions") and
perform its obligations under the Terms Agreement (including the
provisions of this "Underwriting Agreement Basic Provisions") and the
Terms Agreement (including the provisions of this "Underwriting
Agreement Basic Provisions") has been duly authorized, executed and
delivered by the Company, constitutes the valid and binding agreement
of the Company and is enforceable against the Company in accordance
with its terms, subject to the qualification that the enforceability of
the Company's obligations thereunder and hereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights, by general equity
principles and by public policy restrictions on provisions relating to
indemnification.
(e) The execution, delivery and performance of the Terms
Agreement (including the provisions of this "Underwriting Agreement
Basic Provisions") and the consummation of the transactions
contemplated therein and
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<PAGE> 3
herein and compliance by the Company with the provisions of the
Underwritten Securities and the Indenture, if any, described in the
Terms Agreement will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of
the Company or any of its Significant Subsidiaries (as defined in
Paragraph 13) pursuant to the terms of, or constitute a default (or an
event which with the giving of notice or the lapse of time or both will
constitute a default) under, any agreement, indenture or instrument, or
result in a violation of the corporate charter or by-laws of the
Company or any of its Significant Subsidiaries or any law, treaty,
order, rule, regulation or determination of any arbitrator, court or
governmental agency having jurisdiction over the Company, any of its
Significant Subsidiaries or their property. Except as required by the
Act, the Trust Indenture Act, if applicable, the Exchange Act, and
applicable state securities laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of the Terms
Agreement (including the provisions of this "Underwriting Agreement
Basic Provisions") and the Indenture, if any, described in the Terms
Agreement.
(f) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus and prior to
the Delivery Date (as defined in Paragraph 4 hereof), there has not
been, and there will not have been, any material change in the capital
stock of the Company, any material increase in the long-term debt of
the Company or any of its Significant Subsidiaries or any material
adverse change in, or any development which might reasonably be
expected to have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(g) To the best knowledge of the Company, Ernst & Young, whose
reports are included or incorporated by reference in the Registration
Statements and the Prospectus, are independent public accountants as
required by the Act and the Rules and Regulations.
(h) On the Delivery Date (i) the Indenture, if any, described
in the Terms Agreement will have been validly authorized, executed and
delivered by the Company, will have been duly qualified under the Trust
Indenture Act and will constitute the valid and legally binding
obligation of the Company, enforceable in accordance with its terms;
(ii) the Debt Securities, if any, described in the Terms Agreement will
have been validly authorized for issuance, and, upon execution,
authentication, delivery and payment therefor as provided in this
Agreement and such Indenture, will be validly issued and outstanding,
and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms
and entitled to the benefits of such Indenture; (iii) such Indenture
will conform to the descriptions thereof in the Prospectus; (iv) if any
Securities to be issued are convertible or exchangeable, the shares of
capital stock issuable upon conversion or exchange are duly and validly
authorized, have been duly reserved for issuance upon conversion or
exchange of the Securities and, when issued upon the conversion or
exchange of the Securities, will be duly and validly issued, fully paid
and non-assessable; (v) the common stock and preferred stock, if any,
described in the Terms Agreement have been duly and validly authorized
and when issued will be fully paid and non-assessable; (vi) no further
approval or authority of the stockholders or the Board of Directors of
the Company will be required for the issuance and sale of the
Securities as contemplated herein or the issuance of the shares of
capital stock upon conversion or exchange of the Securities; and (vii)
the Securities will conform to the description thereof in the
Prospectus.
(i) The Company and each of its Significant Subsidiaries have
been duly organized, are validly existing and in good standing under
the laws of their respective jurisdictions of incorporation and are
duly qualified to do business and in good standing as foreign
corporations in each jurisdiction in which their respective ownership
of property or lease of property or the conduct of their respective
businesses requires such qualification and in which the failure to
qualify might reasonably be expected to have, singularly or in the
aggregate with all such failures, a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole. Each of
the Company and its Significant Subsidiaries has the corporate power
and authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged. All of the authorized and
outstanding shares of capital stock of the Company are duly authorized,
validly issued and outstanding and are fully paid and non-assessable,
with no personal liability attaching to the ownership thereof. All
outstanding shares of capital stock of the Significant Subsidiaries of
the Company are duly authorized,
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<PAGE> 4
validly issued and outstanding, fully paid and non-assessable and,
except for director's and employee's qualifying shares and other
nominal interests in certain non-U.S. Significant Subsidiaries, are
owned, directly by the Company or a wholly-owned subsidiary of the
Company (except that 356,400 common shares of the 7,302,000 common
shares outstanding of United Brands Japan, Ltd. are held by other
shareholders) free and clear of any lien, claim, encumbrance,
restriction upon voting or transfer, preemptive rights or any other
claim of any third party.
(j) Neither the Company nor any of its Significant
Subsidiaries (i) is in default, and no event has occurred which, with
notice or lapse of time or both, may constitute such a default, under
any lease, license, indenture, mortgage, deed of trust, note, bank loan
or other evidence of indebtedness or any other agreement, understanding
or instrument to which the Company or any such Significant Subsidiary
is a party or by which the Company or any such Significant Subsidiary
or any property of the Company or any such Significant Subsidiary may
be bound or affected, the effect of which default might reasonably be
expected to have, singularly or in the aggregate with all such
defaults, a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole, or (ii) is in violation of the
Company's or any such Significant Subsidiary's corporate charter and
by-laws or any law, ordinance, governmental rule or regulation or court
decree to which it may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of
its business, which violation or failure might reasonably be expected
to have, singularly or in the aggregate with all such violations and
failures, a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(k) The Company and each of its Significant Subsidiaries owns,
or has valid rights to use, all items of real and personal property
which are material to the business of the Company and its subsidiaries
taken as a whole, free and clear of all liens, encumbrances and claims
which might reasonably be expected to materially interfere with the
conduct of the business of the Company and its subsidiaries taken as a
whole. The Company and each of its Significant Subsidiaries (i) carries
or, in the case of a Significant Subsidiary is covered by, insurance in
such amounts and covering such risks as is generally maintained in the
same general area by companies of established repute engaged in the
same or similar business, and (ii) owns or possesses adequate rights to
use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, permits and certificates from
governmental authorities necessary for the conduct of its business and
has no reason to believe that the conduct of its business will conflict
with, and has not received any notice of any claim of conflict with,
the rights of others in respect thereof which conflict might reasonably
be expected to have, singularly or in the aggregate with all such
conflicts, a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(l) Except as disclosed in the Registration Statements and the
Prospectus, there is no litigation or proceeding pending before or by
any court or governmental agency, authority or body, or any arbitrator
or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries which (i) would affect the subject matter of
the Terms Agreement (including the provisions of this "Underwriting
Agreement Basic Provisions") or the transactions contemplated by the
Prospectus or (ii) might be expected to have, singularly or in the
aggregate with all such litigation and proceedings, a material adverse
effect on the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole.
(m) The financial statements (including the related notes and
supporting schedules) filed as part of or incorporated by reference in
the Registration Statements or included or incorporated by reference in
the Prospectus present fairly in accordance with generally accepted
accounting principles the consolidated financial condition and results
of operations of the Company, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved.
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<PAGE> 5
(n) No relationship, direct or indirect, exists between or
among the Company or any of its Significant Subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or suppliers
of the Company or of any of its Significant Subsidiaries, on the other
hand, which is required by the Act or by the Rules and Regulations to
be described in the Registration Statements and the Prospectus which is
not so described or is not adequately described.
(o) Except as disclosed in the Registration Statements and the
Prospectus, no labor disturbance by the employees of the Company or any
of its Significant Subsidiaries exists or, to the knowledge of the
Company, is threatened which might reasonably be expected to have,
singularly or in the aggregate with all such disturbances, a material
adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its subsidiaries
taken as a whole.
(p) Except as described in the Registration Statements and
Prospectus, the Company and each of its Significant Subsidiaries has
fulfilled its obligations, if any, under the minimum funding standards
of the United States Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with
respect to each "plan" (as defined in ERISA and such regulations and
published interpretations) of the Company or any of its Significant
Subsidiaries and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations, and has not incurred any
liability to the Pension Benefit Guaranty Corporation or to any such
plan under Title IV of ERISA.
(q) Except as described in the Registration Statements and
Prospectus, there has been no storage, disposal, generation,
manufacture, refinement, transportation, production or treatment of
toxic wastes, solid wastes, hazardous wastes or hazardous substances by
the Company or any of its Significant Subsidiaries (or, to the best
knowledge of the Company, any of their predecessors in interest) at or
upon any of the property owned or leased by the Company or its
Significant Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation
or remedial action which, singularly or in the aggregate with all such
violations and remedial actions, might reasonably be expected not to
have a material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole. Except as described in the Registration
Statements and Prospectus, there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto
such property or into the environment surrounding such property, of any
toxic wastes, solid wastes, hazardous wastes or hazardous substances
due to or caused by the Company or any of its Significant Subsidiaries
or with respect to which the Company or any of its Significant
Subsidiaries have knowledge. The terms "hazardous wastes" and
"hazardous substances" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
2. Purchases and Offering of Securities. The obligation of the
Underwriters to purchase, and the Company to sell, any Underwritten Securities
will be evidenced by an exchange of a telegram, telex or other written
communication (the "Terms Agreement") delivered at the time the Company
determines to sell the Underwritten Securities. Each Terms Agreement will be
substantially in the form of Annex II(A) or (B) attached hereto and will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be Underwriters,
the names of any Representatives, the amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and certain terms
of the Securities and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below). The Terms
Agreement specifies any details of the terms of the offering which should be
reflected in a post- effective amendment to the Registration Statement or the
supplement to the Prospectus relating to the offering of the Underwritten
Securities. The obligations of the Underwriters to purchase the Underwritten
Securities will be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company grants an option to the
several Underwriters
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<PAGE> 6
to purchase, severally and not jointly, up to that amount of the Option
Securities, as shall be specified in the Terms Agreement, from the Company at
the same price as the Underwriters shall pay for the Underwritten Securities.
Said option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters and may be exercised in whole or in
part at any time (but not more than once) on or before the thirtieth day after
the date of the Terms Agreement upon written or telegraphic notice by the
Representatives to the Company setting forth (i) the amount of the Option
Securities as to which the several Underwriters are exercising the option and
(ii) the date, time and place of delivery of the Option Securities. The amount
of Option Securities to be purchased by each Underwriter shall be the same
percentage of the total amount of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares/units.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contract") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are only to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Delivery Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the amount of
Securities set forth opposite each Underwriter's name in such Terms Agreement,
except to the extent that the Representatives determine that such reduction
shall be otherwise than pro rata and so advise the Company. The Company will
advise the Representatives not later than the business day prior to the Delivery
Date of the amount of Contract Securities.
3. Conditions of Company's Obligations; Defaulting
Underwriters. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Underwritten Securities to be purchased
pursuant to this Agreement as hereinafter provided.
If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Underwritten Securities which the defaulting
Underwriter agreed but failed to purchase in the respective proportions which
the amount of Underwritten Securities set forth in the Terms Agreement to be
purchased by each remaining non-defaulting Underwriter bears to the aggregate
amount of Underwritten Securities set forth in such Terms Agreement for all the
remaining non-defaulting Underwriters; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any Underwritten
Securities if the aggregate amount of Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total amount of Underwritten Securities, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the amount of Underwritten Securities set forth in the Terms Agreement to be
purchased by it. If the foregoing maximums are exceeded, the remaining non-
defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase (in such proportions as may be agreed upon among them) all the
Underwritten Securities. If the foregoing maximums are exceeded and the
remaining Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses to any non-defaulting Underwriter as set forth in Paragraph 6.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
such Underwriter's default. If other underwriters are obligated or agree to
purchase the Underwritten Securities of a defaulting Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that, in the opinion of
counsel for the Company or counsel for the Underwriters, may be necessary in the
Registration Statement, the Prospectus or any other document or arrangement.
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<PAGE> 7
4. Delivery of and Payment for the Underwritten Securities.
Delivery of and payment for the Underwritten Securities shall be made at the
time and place specified in the Terms Agreement, on the third business day
following the date of the Terms Agreement or at such other location, time and
date as shall be determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the "Delivery Date". On
the Delivery Date, the Company shall deliver the Underwritten Securities to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price for the Underwritten Securities
by certified or official bank checks payable in New York Clearing House (next
day) funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. The Securities shall be prepared in such form, names
and denominations as the Representatives shall request in writing not less than
three full business days prior to the Delivery Date. For the purpose of
expediting the checking and packaging of the Underwritten Securities, the
Company shall make the Underwritten Securities available, or cause such
Underwritten Securities to be available, for inspection by the Representatives
in New York City, New York not later than 2:00 P.M., New York City time, on the
business day prior to the Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To furnish promptly to the Representatives and to
counsel for the Underwriters a signed copy of each of the
Registration Statements as originally filed, and each
amendment or supplement thereto filed, with the Commission,
including all consents and exhibits filed therewith;
(b) To deliver promptly to the Representatives and to
each Underwriter such number of conformed copies of the
Registration Statements as originally filed and each amendment
thereto (excluding exhibits other than this "Underwriting
Agreement Basic Provisions", the Indentures and the
computation of the ratio of earnings to fixed charges and the
ratio of earnings to combined fixed charges and preferred
stock dividends) and the Prospectus and any amended or
supplemented Prospectus as the Representatives may reasonably
request during the period referred to in clause (c) of this
Paragraph 5;
(c) To prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the
Representatives and to file timely such Rule 462(b)
Registration Statement with the Commission; to file timely
with the Commission during such period following the date of
each Terms Agreement as a prospectus is required to be
delivered in connection with offers or sales of Underwritten
Securities any amendment or supplement to the Registration
Statement or the Prospectus that may, in the reasonable
judgment of the Company or the Representatives, be required by
the Act or requested by the Commission and approved by the
Representatives;
(d) Prior to filing with the Commission during the
period referred to in clause (c) of this Paragraph 5 (i) any
amendment or supplement to either Registration Statement or
(ii) the Prospectus and any amendment or supplement thereto,
or (iii) any document incorporated by reference in any of the
foregoing, to furnish a copy thereof to the Representatives
and counsel for the Underwriters and obtain the consent of the
lead Representative to the filing, which consent shall not be
unreasonably withheld;
(e) To advise the Representatives promptly (i) when
any post-effective amendment to either Registration Statement
relating to or covering the Underwritten Securities becomes
effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to either
Registration Statement (to the extent that the amendment or
supplement relates to or covers the Underwritten Securities)
or to the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending
the effectiveness of either Registration Statement or any
order directed to the Prospectus or the initiation or threat
of any stop order proceeding, (iv) of receipt by the Company
of any notification with respect to the suspension of the
qualification (or exemption from qualification) of the
Underwritten Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose, and
(v) of the happening of any event prior to the termination of
any offering of Underwritten Securities which makes untrue any
statement of a material fact made in the Registration
Statements or the
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<PAGE> 8
Prospectus, or which requires the making of a change in the
Registration Statements or the Prospectus in order to make any
material statement therein not misleading or which requires
the filing of any document under the Exchange Act;
(f) If, during the period referred to in clause (c)
of this Paragraph 5, the Commission shall issue a stop order
or any order preventing or suspending the effectiveness of
either Registration Statement, to make every reasonable effort
to obtain the lifting of that order at the earliest possible
time;
(g) As soon as practicable, but not later than 16
months after the date of each Terms Agreement, to make
generally available to its security holders and to deliver to
the Representatives an earning statement of the Company and
its subsidiaries, covering a period of at least 12 months
beginning after the later of (i) the effective date of the
Primary Registration Statement, (ii) the effective date of the
most recent post-effective amendment to either Registration
Statement to become effective prior to the date of such Terms
Agreement or (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to
the date of such Terms Agreement, which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the
Act;
(h) To endeavor to qualify the Underwritten
Securities for offer and sale under the securities laws of
such jurisdictions as the Representatives may reasonably
request, except for such jurisdictions where the qualification
of the Underwritten Securities would require the Company to
qualify to do business as a foreign corporation or file a
general consent to service of process;
(i) If the Underwritten Securities are to be listed
on a securities exchange, to use its best efforts to complete
the listing of the Underwritten Securities to be sold by the
Company on such exchange;
(j) Subject to Paragraph 5(d) hereof, until the
termination of any offering of Underwritten Securities, to
file in a timely manner all documents and any amendments of
previously filed documents required to be filed pursuant to
Section 13, 14 or 15(d) of the Exchange Act;
(k) During the period of three years after the date
of any Terms Agreement, the Company will furnish to the
Representatives and, upon request, to each of the other
Underwriters, if any, as soon as practicable after the end of
each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each
Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Current Report on Form 8-K and definitive proxy statement of
the Company filed with the Commission under the Exchange Act
or mailed to stockholders, and (ii) from time to time, such
other information concerning the Company as the
Representatives may reasonably request;
(l) To apply the net proceeds of the sale of the
Underwritten Securities as set forth in the Prospectus; and
(m) To not (i) in the event of an offering of common
stock or convertible preferred stock, offer, sell, contract to
sell or otherwise dispose of any shares of common stock or any
securities convertible into or exchangeable or exercisable for
or any rights to purchase or acquire common stock for that
period specified in the Terms Agreement, other than shares of
common stock or options to purchase common stock granted under
the Company's employee benefit plans; and (ii) for a period
beginning at the time of execution of the Terms Agreement and
ending on the Delivery Date, in the event of an offering of
Debt Securities, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company with maturities
longer than one year, other than (A) the Debt Securities to
the Underwriters or the Contract Securities; (B) borrowings in
the ordinary course of business; and (C) other borrowings in
an aggregate principal amount not to exceed $10 million, in
either case without the prior consent of the Representatives.
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<PAGE> 9
6. Expenses. The Company agrees to pay the costs incident to
the authorization, issuance, sale and delivery of the Underwritten Securities
and any taxes payable in that connection; the costs incident to the preparation,
printing and filing under the Act of the Registration Statements and any
amendments, supplements and exhibits thereto, and the Prospectus and any
amendment or supplement to the Prospectus; the costs of distributing the
Registration Statements as originally filed and each amendment and any
post-effective amendments thereof (including exhibits), the Prospectus and any
amendment or supplement to the Prospectus as provided in this Agreement; the
costs of printing this Agreement and the Indenture; the costs of filings with
the National Association of Securities Dealers, Inc.; fees paid to rating
agencies in connection with the rating of the Underwritten Securities; the costs
incident to the listing of the Underwritten Securities on any securities
exchange; the fees and expenses of qualifying the Underwritten Securities under
the securities laws of the several jurisdictions as provided in this Paragraph
and of preparing and printing a Blue Sky Memorandum, and a memorandum concerning
the legality of the Underwritten Securities as an investment (including
reasonable fees and expenses of counsel to the Underwriters in connection
therewith); the cost of preparing the Underwritten Securities; the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with the Indenture and
the Underwritten Securities; any transfer agent's fees; and all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; provided that except as provided in this Paragraph and in
Paragraphs 3 and 10, the Underwriters shall pay all of their own costs and
expenses, including the fees and expenses of their counsel, any transfer taxes
on the Underwritten Securities which they may sell and the expenses of
advertising any offering of the Underwritten Securities made by the
Underwriters; provided, however, that the Company shall have no obligation to
pay the expenses of a defaulting Underwriter, as set forth in Paragraph 3.
7. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act, from and against any
loss, claim, damage or liability, joint or several, and any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Underwritten Securities), to which
that Underwriter or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any blue sky application, the Registration
Statements, the Prospectus, any Incorporated Document or the Registration
Statements or the Prospectus, in each case as amended or supplemented, or (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
shall reimburse each Underwriter and each such controlling person for any legal
and other out of pocket expenses reasonably incurred by that Underwriter or
controlling person in investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any blue sky
application, the Registration Statements, the Prospectus or any amendment
thereof or supplement thereto, made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives, if any, specifically for inclusion
therein; and provided further that as to any Prospectus this indemnity agreement
shall not inure to the benefit of any Representative, Underwriter or any person
controlling an Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Underwritten Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of the Prospectus
(or the Prospectus as amended or supplemented) to such person within the time
required by the Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Prospectus was remedied or corrected in such Prospectus, unless such failure
resulted from non-compliance by the Company with Paragraph 5(b) hereof. For
purposes of the second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated therein by
reference, and no Underwriter shall be obligated to send or give any supplement
or amendment to any document incorporated by reference in any Prospectus to any
person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or any such controlling person of
that Underwriter.
(b) Each Underwriter severally, and not jointly, shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed either Registration Statement, and each person, if any, who
controls the
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<PAGE> 10
Company within the meaning of the Act, from and against any loss, claim, damage,
expense or liability, joint or several, and any action in respect thereof, to
which the Company or any such director or officer or controlling person may
become subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in any blue sky
application, the Registration Statements, the Prospectus or the Registration
Statements or Prospectus, in each case as amended or supplemented, or arises out
of, or is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of that Underwriter through the Representatives, if any,
specifically for inclusion therein, and shall reimburse the Company or any such
director or officer or controlling person for any legal and other expenses
reasonably incurred by the Company or any such director or officer or
controlling person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Paragraph 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Paragraph 7. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Paragraph 7 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, if the defendants in any
such action include both an indemnified party and an indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the indemnified
party or parties under this Paragraph 7 shall have the right to employ not more
than one counsel to represent them and, in that event, the reasonable fees and
expenses of not more than one such separate counsel shall be paid by the
indemnifying party. No indemnifying party shall be liable for any settlement of
any claim or action effected without its written consent.
(d) If the indemnification provided for in this Paragraph 7
shall be for any reason unavailable or insufficient to hold the indemnified
party harmless, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Underwritten Securities, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other hand with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Underwritten Securities (before deducting expenses) received by the
Company bear to the total underwriting discounts, commissions and fees received
by the Underwriters with respect to such offering, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Paragraph 7(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to
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<PAGE> 11
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Paragraph 7(d) shall be deemed to include, for purposes of this
Paragraph 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Paragraph 7(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Paragraph 7(d) are several in
proportion to their respective underwriting obligations (or proceeds) and not
joint.
(e) The Underwriters severally confirm that the statements
with respect to the offering to the public of the Underwritten Securities set
forth on the cover page of, and under the captions "Plan of Distribution" and
"Underwriting" in, the Registration Statements and the Prospectus are correct
and were furnished in writing to the Company by or on behalf of the Underwriters
severally for inclusion in the Registration Statements and the Prospectus.
(f) The agreements contained in this Paragraph 7 and the
representations, warranties and agreements of the Company in Paragraphs 1 and 5
shall survive the delivery of the Underwritten Securities and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
8. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy on the
date of the Terms Agreement and the Delivery Date, of the representations and
warranties of the Company contained herein, to performance by the Company of its
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Paragraph 5(c) of this Agreement; at or before the
Delivery Date, no stop order suspending the effectiveness of either Registration
Statement shall have been issued, and prior to that time no stop order
proceeding shall have been initiated or threatened by the Commission; any
request of the Commission for inclusion of additional information in the
Registration Statements or the Prospectus or otherwise shall have been complied
with or otherwise satisfied; and the Company shall not have filed with the
Commission the Prospectus or any amendment or supplement to either Registration
Statement or the Prospectus or any Incorporated Document without the consent of
the lead Representative, provided that after the Delivery Date no such consent
shall be unreasonably withheld.
(b) No Underwriter shall have discovered and disclosed to the
Company, on or prior to the Delivery Date, that the Registration Statements or
the Prospectus or any amendment or supplement thereto or any Incorporated
Document contains an untrue statement of a fact which, in the opinion of Simpson
Thacher & Bartlett, counsel to the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the forms of Registration Statements and the
Prospectus, other than financial statements and other financial data, and all
other legal matters relating to this Agreement and the transactions contemplated
hereby shall be satisfactory in all respects to Simpson Thacher & Bartlett,
counsel to the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) The Company shall have furnished to the Representatives
the opinion of Robert W. Olson, Vice President, General Counsel and Secretary of
the Company, addressed to the Underwriters and dated the Delivery Date and, if
Option Securities are purchased, at any date after the Delivery Date as
specified in a Terms Agreement, an additional
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<PAGE> 12
opinion from such counsel, addressed to the Underwriters and dated such later
date, confirming that the statements expressed as of the Delivery Date in such
opinion remain valid as of such later date, to the effect that:
(i) The Company has been duly organized and each of its
Designated Subsidiaries (as defined in Paragraph 13) is duly
incorporated; the Company and its Designated Subsidiaries are validly
existing and in good standing under the laws of their respective
jurisdictions of incorporation and have all requisite corporate power
and authority to own and operate their properties and to conduct the
businesses in which they are engaged;
(ii) All of the issued and outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are
fully paid and non-assessable, with no personal liability attaching to
the ownership thereof; all the outstanding shares of capital stock of
each of the Company's Designated Subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable and, except
for director's or employee's qualifying shares and other nominal
interests in certain non-U.S. Designated Subsidiaries, are owned,
directly by the Company or a wholly-owned subsidiary of the Company
(except that 356,400 common shares of the 7,302,000 common shares
outstanding of United Brands Japan, Ltd. are held by other
shareholders) free and clear of any lien, claim, encumbrance,
restriction upon voting or transfer, preemptive rights or any other
claim of any third party known to such counsel;
(iii) The Indenture, if any, described in the Terms Agreement
has been duly authorized, executed and delivered by the Company and has
been duly qualified under the Trust Indenture Act; the Debt Securities,
if any, described in the Terms Agreement are in a form contemplated by
such Indenture and have been duly authorized by all necessary corporate
action; such Debt Securities other than any Contract Securities have
been duly executed, authenticated, issued and delivered; such Indenture
and such Debt Securities other than any Contract Securities constitute,
and any Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to the qualification that the enforceability of the Company's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights and by general equity principles;
(iv) If any Securities to be issued are convertible or
exchangeable, the shares of capital stock into which the Securities
will be initially convertible or exchangeable are duly and validly
authorized; have been duly reserved for issuance upon conversion or
exchange of the Securities; and when issued upon the conversion or
exchange of the Securities, will be duly and validly issued, fully paid
and non-assessable;
(v) The common stock and preferred stock, if any, described in
the Terms Agreement have been duly and validly authorized and issued
and are fully paid and non-assessable;
(vi) The Securities other than any Contract Securities conform
and the Indenture, if any, described in the Terms Agreement and any
Contract Securities, when so issued and delivered and sold, will
conform, in all material respects to the description thereof contained
in the Prospectus;
(vii) The Registration Statements have become effective under
the Act; any required filing of the Prospectus pursuant to Rule 424(b)
has been made within the time period required by Rule 424(b); and no
stop order suspending its effectiveness has been issued by the
Commission and, to the best of such counsel's knowledge, no proceeding
for that purpose is pending or threatened by the Commission;
(viii) To the best of such counsel's knowledge, no order
directed to any document incorporated by reference in the Prospectus
and the Registration Statements has been issued by the Commission and
to the knowledge of such counsel, no challenge by the Commission has
been made to the accuracy or adequacy of any such document;
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<PAGE> 13
(ix) The Registration Statements and the Prospectus and any
amendment or supplement thereto, as of its date, comply as to form in
all material respects with the requirements of the Act, the Rules and
Regulations thereunder and the Trust Indenture Act, if applicable, and
the documents incorporated by reference in the Registration Statements
and the Prospectus comply as to form in all material respects with the
applicable requirements of the Act or the Exchange Act and the rules
and regulations thereunder;
(x) The Terms Agreement (including the provisions of this
"Underwriting Agreement Basic Provisions") and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company;
(xi) To the best of such counsel's knowledge, the Company is
not in violation of its corporate charter or by-laws or in default
under any material agreement, indenture or instrument, except to the
extent such violations or defaults could not reasonably be expected to
have, singularly or in the aggregate, a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole;
(xii) The Company has all necessary corporate power to execute
and deliver the Terms Agreement (including the provisions of this
"Underwriting Agreement Basic Provisions") and the Indenture, if any,
described in the Terms Agreement and to perform its obligations under
the Terms Agreement (including the provisions of this "Underwriting
Agreement Basic Provisions") and under such Indenture;
(xiii) The execution, delivery and performance of the Terms
Agreement (including the provisions of this "Underwriting Agreement
Basic Provisions"), and the issuance and sale of the Underwritten
Securities and the compliance with the terms and provisions of the
Underwritten Securities and the Indenture, if any, described in the
Terms Agreement will not conflict with, or result in the creation or
imposition of any material lien, claim, encumbrance, restriction upon
any of the assets of the Company or any of its Designated Subsidiaries
pursuant to the terms of, or constitute a default under, any material
agreement, indenture or instrument known to such counsel and to which
the Company or any of its Designated Subsidiaries is a party or bound,
or result in a violation of the corporate charter or by-laws of the
Company or any of its Designated Subsidiaries or any law, treaty,
order, rule or regulation or any determination known to such counsel of
any arbitrator, court or governmental agency having jurisdiction over
the Company, any of the Company's Designated Subsidiaries or any of
their properties. Except as required by the Act, the Exchange Act, the
Trust Indenture Act, if applicable, and applicable state securities
laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency in the United States is required
for the execution, delivery and performance of this Agreement by the
Company;
(xiv) There are no legal or governmental proceedings to which
the Company or any of its Designated Subsidiaries is a party, pending
or, to the best of such counsel's knowledge, threatened against the
Company or any of its Designated Subsidiaries which (A) might
reasonably be expected to have a material adverse effect on the subject
matter of the Terms Agreement or the transactions contemplated by the
Prospectus or (B) other than as described in the Prospectus, might
reasonably be expected to have, singularly or in the aggregate with all
such litigation and proceedings, a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole; and
(xv) No facts have come to such counsel's attention that cause
him to believe that (A) the Registration Statements as of their
respective effective dates contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
(B) the Prospectus as of the Delivery Date contains any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (such counsel need express no opinion or belief as to
the financial statements or other financial or statistical data
included in or incorporated by reference in the Registration Statements
or the Prospectus).
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<PAGE> 14
(e) The Company shall have furnished to the Representatives on
the Delivery Date a certificate dated the Delivery Date, and on any later date
on which Option Securities are purchased if specified in a Terms Agreement, a
certificate dated such date, signed on behalf of the Company by either the
Company's Chief Executive Officer, President or Executive Vice President and by
the Company's Chief Financial Officer or Controller stating that:
(i) The representations, warranties and agreements of the
Company in Paragraph 1 hereof are true and correct as of such date; the
Company has complied with all its agreements contained herein; and the
conditions on its part to be fulfilled prior to such date set forth
herein have been fulfilled; and
(ii) No stop order suspending the effectiveness of either
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and
(iii) They have carefully examined the Registration Statements
and the Prospectus and, in their judgment, (A) neither the Registration
Statements, as of their respective effective dates, nor the Prospectus,
as of the date on which it was filed with the Commission pursuant to
Rule 424 of the Rules and Regulations, included any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (B) since the effective date, no event has occurred
which should have been set forth in the Prospectus or a supplement
thereto or amendment thereof which has not been set forth in such a
supplement or amendment and there has been no document required to be
filed under the Exchange Act and the rules and regulations thereunder
that upon such filing would be deemed to be incorporated by reference
into the Prospectus that has not been so filed.
(f) The Company shall have furnished to the Representatives on
the Delivery Date and any later date on which Option Securities are purchased if
specified in a Terms Agreement, a letter of Ernst & Young, addressed to the
Underwriters and dated such date, confirming that they are independent public
accountants with respect to the Company within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as
of the date of such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given or incorporated by reference in the Prospectus, as of a
date not more than five days prior to the date of such letter), the conclusions
and findings of such firm with respect to the financial information and other
matters covered by its letter delivered to the Representatives concurrently with
the execution of the Terms Agreement and confirming in all material respects the
conclusions and findings set forth in such prior letter.
(g) The NASD, upon review of the terms of the public offering
of the Underwritten Securities, if any, shall not have objected to the
participation by any of the Underwriters in such offering or asserted any
violations of the By-Laws of the NASD.
(j) In the event of an offering of common stock or convertible
preferred stock, the Company shall have furnished to the Representatives a
letter agreement of American Financial Group, Inc. ("AFG"), addressed to the
Underwriters and dated on or before the date of the Terms Agreement relating to
such offering, providing in substance that for that period specified in the
Terms Agreement (i) AFG will not, and will cause its direct and indirect
subsidiaries (other than the Company and subsidiaries of the Company) not to,
sell, offer or contract to sell, sell or grant options, rights or warrants with
respect to or otherwise dispose of, directly or indirectly, except to direct or
indirect subsidiaries of AFG, any common stock or preferred stock of the Company
(or securities convertible into or exchangeable for common stock or preferred
stock of the Company) except with the prior written consent of Lehman Brothers
Inc. and (ii) AFG has not taken, and will not take, directly or indirectly, and
will cause its direct and indirect subsidiaries not to take, directly or
indirectly, any action that might reasonably be expected to cause or result in
stabilization of the price of the common stock or preferred stock of the Company
or manipulation of the price of the common stock or preferred stock of the
Company.
All opinions, letters, certificates and documents mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof if they are exactly in the form set forth above and, if
not, or if no
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<PAGE> 15
particular form is set forth above, only if they are in form and substance
reasonably satisfactory to Simpson Thacher & Bartlett, counsel to the
Underwriters.
9. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representatives, if any, on behalf of the Underwriters
(or, if there are no Representatives, by a majority in interest of the
Underwriters), in their or its absolute discretion, by notice given to and
received by the Company prior to delivery of and payment for the Underwritten
Securities, if on or after the date of this Agreement and prior to that time
there shall have occurred any of the following: (a) any change, or any
development involving a prospective change, in or affecting primarily the
business, properties, condition (financial or other), results of operations or
prospects of the Company and its subsidiaries taken as a whole that materially
impairs the investment quality of the Underwritten Securities, or (b) a general
suspension of or material limitation in trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market or minimum prices shall have been established on one or more of such
exchanges or such market, or (c) a general banking moratorium declared by United
States federal or New York State authorities, or (d) any downgrading accorded
the Company's debt securities or preferred securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading of such rating) or (e)(i) a material adverse change in national or
international political, financial or economic conditions or national or
international equity markets or currency exchange rates or controls, if the
existing effect of any such event, in the reasonable judgment of the
Representatives, makes it inadvisable to proceed with the payment for and
delivery of the Underwritten Securities or (ii) the engagement by the United
States in active military conflict, or an outbreak or significant increase in
hostilities which would likely result in the declaration of a national emergency
or war, if the existing effect of any such event, in the reasonable judgment of
the Representatives, makes it inadvisable to proceed with the payment for and
delivery of the Underwritten Securities.
10. Expenses upon Termination. If the Company shall fail for
any reason to tender the Underwritten Securities on the Delivery Date to the
Underwriters under this Agreement, or if the Underwriters shall decline to
purchase the Underwritten Securities for any reason permitted under this
Agreement, the Company shall reimburse the Underwriters for the reasonable fees
and expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of the Underwritten Securities and upon demand the Company shall pay
the full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Paragraph 3 by reason of the default of one or more Underwriters,
the Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
11. Notices. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made by the
Representatives. Any notice to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Underwriters at the address set forth
for that purpose in the Terms Agreement, and any notice to the Company shall be
sufficient if, given in writing or by telegraph addressed to Chiquita Brands
International, Inc., 250 East Fifth Street, Cincinnati, Ohio 45202, Attention:
Robert W. Olson.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Act and (b) the indemnity agreement of the Underwriters contained in
Paragraph 7 of this Agreement shall be deemed to be for the benefit of directors
of the Company, officers of the Company who have signed either Registration
Statement and any person controlling the Company. Nothing in this Agreement is
intended or shall be construed to give any person other than the persons
mentioned in the preceding two sentences any legal or equitable rights, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
15
<PAGE> 16
13. Certain Definitions. For purposes of this Agreement, (a)
"business day" means any day on which the New York Stock Exchange is open for
trading, (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations, (c) "Significant Subsidiary" shall mean each of the entities set
forth on Schedule 1 attached hereto and made a part hereof, as such list of
entities may be amended pursuant to a Terms Agreement, and (d) "Designated
Subsidiary" shall mean each of the entities set forth on Schedule 2, attached
hereto and made a part hereof, as such list of entities may be amended pursuant
to a Terms Agreement.
14. Governing Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
The Terms Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall together
constitute a single instrument.
15. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
16
<PAGE> 17
<TABLE>
<CAPTION>
SCHEDULE 1
SIGNIFICANT SUBSIDIARIES
SUBSIDIARY JURISDICTION OF INCORPORATION
- ---------- -----------------------------
<S> <C>
Caribbean Enterprises, Inc. Delaware
Chiquita Brands, Inc. Delaware
CRH Shipping, Ltd. Bermuda
Great White Fleet, Ltd. Bermuda
Chiquita Brands Company, Delaware
North America
Chiquita Europe, B.V. Netherlands
Chiquita Banana Company, B.V. Netherlands
Chiquita International Delaware
Trading Company
Chiquita International Bermuda
Limited
Chiquita Tropical Products Company Delaware
Chiriqui Land Company Delaware
Maritrop Trading Corporation Delaware
Tela Railroad Company Delaware
Polymer United, Inc. Delaware
Progressive Produce Corporation Ohio
United Brands Japan, Ltd. Japan
</TABLE>
17
<PAGE> 18
<TABLE>
<CAPTION>
SCHEDULE 2
DESIGNATED SUBSIDIARIES
SUBSIDIARY JURISDICTION OF INCORPORATION
- ---------- -----------------------------
<S> <C>
Caribbean Enterprises, Inc. Delaware
Chiquita Brands, Inc. Delaware
Chiquita Brands Company, Delaware
North America
Chiquita Europe, B.V. Netherlands
Chiquita Banana Company B.V. Netherlands
Chiquita International Delaware
Trading Company
Chiquita International Bermuda
Limited
Chiriqui Land Company Delaware
Maritrop Trading Corporation Delaware
Tela Railroad Company Delaware
Polymer United, Inc. Delaware
United Brands Japan, Ltd. Japan
</TABLE>
18
<PAGE> 19
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on ____________ , 1996.)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
CHIQUITA BRANDS INTERNATIONAL, INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from CHIQUITA BRANDS
INTERNATIONAL, INC. a New Jersey corporation ("Company"), and the Company agrees
to sell to the undersigned, [If one delayed closing, insert---as of the date
hereof, for delivery on ___________, 1996 ("Delivery Date"),]
[$] ---------
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated ___________ , 19__ and a Prospectus
Supplement dated ____________ , 19__ , relating thereto, receipt of copies of
which is hereby acknowledged, at __ % of the principal amount thereof plus
accrued interest from ___________ , 19__, if any, and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
- --------------- [$]---------------
- --------------- [$] --------------
- ---------------
*/ Insert date which is third full business day prior to Delivery Date under the
Terms Agreement.
19
<PAGE> 20
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on---the--each--Delivery Date shall be made to the Company
or its order by certified or official bank check in New York Clearing House
(next day) funds at the office of ______________________________ at ___ .M. on--
the--such--Delivery Date upon delivery to the undersigned of the Securities to
be purchased by the undersigned---for delivery on such Delivery Date--in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to--the---such--Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on--the--each--Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below,
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
----------------------------------
(Name of purchaser)
By
----------------------------------
(Title of Signatory)
----------------------------------
(Address of Purchaser)
Accepted, as of the above date,
CHIQUITA BRANDS INTERNATIONAL, INC.
By _____________________________________
Name:
Title:
20
<PAGE> 21
ANNEX II(A)
CHIQUITA BRANDS INTERNATIONAL, INC. ("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
____________, 1996
CHIQUITA BRANDS INTERNATIONAL, INC.
250 East Fifth Street
Cincinnati, Ohio 45202
Attention: Robert W. Olson
Vice President, General Counsel and Secretary
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement Basic Provisions
relating to the Debt Securities of Chiquita Brands International, Inc. dated
_________ , 1996 ("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Debt Securities
Title:
Rank: [Senior Debt] [Subordinated Debt] Securities
Principal Amount: $
Interest Rate: ___ % from _________, 199_ , payable:
Maturity:
Form and Denomination:
Optional Redemption:
Sinking Fund:
Indenture:
Delayed Delivery Contracts: [authorized][not authorized]
Delivery Date:
Minimum Contract:
21
<PAGE> 22
Maximum aggregate principal amount:
Fee: __%
Purchase Price: ___%, plus accrued interest, or amortized original
issue discount, if any, from 19__.
Expected Reoffering Price:
Names and Addresses of Representatives:
The respective principal amounts of the Debt Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Closing will take place at___ A.M., New York City time, on
___________ , 199__, at the offices of ___________________________________ .
The Securities will be made available for checking and
packaging at the office of not later than 2:00 p.m., New York City time, on the
business day prior to the Delivery Date.
Please signify your acceptance by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
22
<PAGE> 23
<TABLE>
<CAPTION>
SCHEDULE A
DEBT SECURITIES
<S> <C>
UNDERWRITER PRINCIPAL AMOUNT
__________
Total __________
23
</TABLE>
<PAGE> 24
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
__________ , 19__ , relating to shares of our [Insert title of Securities] (the
"Terms Agreement"). We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement Basic Provisions filed as an exhibit to the
undersigned's registration statement on Form S-3 (No. 33-____ ) (together with
the Terms Agreement, the "Underwriting Agreement") are true and correct, no stop
order suspending the effectiveness of the Registration Statement (as defined in
the Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been (or in
the case of a form of prospectus filed pursuant to Rule 424(b)(1) or (4) there
will be, as of the date of such prospectus) no material adverse change in the
financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
CHIQUITA BRANDS INTERNATIONAL, INC.
By ________________________________
Name:
Title:
24
<PAGE> 25
ANNEX II(B)
CHIQUITA BRANDS INTERNATIONAL, INC.
("COMPANY")
EQUITY SECURITIES
TERMS AGREEMENT
CHIQUITA BRANDS INTERNATIONAL, INC.
250 East Fifth Street
Cincinnati, Ohio 45202 ____________, 19__
Attention: Robert W. Olson
Vice President, General Counsel
and Secretary
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement Basic Provisions
relating to the Equity Securities of Chiquita Brands International Inc. dated
_____________ , 1994 ("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Equity Securities
Title: [Capital Stock, par value $.33 per share] [Non-Voting Preferred Stock,
par value $1.00 per share] [Preference Stock without par value]
Number of Shares to be issued: ____ shares
[For Preferred Stock:
Voting Rights:
Preferred Stock Dividends: cash dividends to accrue at an annual rate of $ per
share, cumulative and payable quarterly in arrears on _______, 19__,__________,
19__ and ___________, 19__ .
Optional Redemption:
Mandatory Redemption/Sinking Fund:
Liquidation Preference: $____ per share plus___ .
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market
System] [American Stock Exchange]
Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement:
_____ days.
Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement:
____ days
25
<PAGE> 26
Conversion Provisions:
Other Terms
Price to Public: $______ per share
Underwriting Discounts and Commission:
Proceeds to Company:
Over-Allotment Option:
Delivery Date:___ A.M. on , _____________, 19__ , at ________________ in New
York [Clearing House (next day)] [Federal (same-day)] funds.
Name of Transfer Agent and Registrar:
Names and Addresses of Representatives:
[For Common Stock:
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market
System] [American Stock Exchange]
Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement:
______ days.
Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement:
_____ days.
Other Terms
Price to Public: $_______ per share
Underwriting Discounts and Commission:
Proceeds to Company:
Over-Allotment Option:
Delivery Date: __ A.M. on ____________ , 19__ , at ______________ in New York
[Clearing House (next day)] [Federal (same-day)] funds.
Name of Transfer Agent and Registrar:
Names and Addresses of Representatives:]
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[It is understood that we may, with your consent, amend this
offer to add additional Underwriters and reduce the number of shares to be
purchased by the Underwriters listed in Schedule A hereto by the number of
shares to be purchased by such additional Underwriters.]
26
<PAGE> 27
The provisions of the Underwriting Agreement are incorporated
herein by reference [except that the obligations and agreements set forth in
Paragraph 3 ("Conditions of Company's Obligations; Defaulting Underwriters") of
the Underwriting Agreement shall not apply to the obligations of the
Underwriters to purchase the above Securities].
The Securities will be made available for checking and
packaging at the office of _________________ at least 24 hours prior to the
Delivery Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return
wire not later than __ P.M. _____ today.]
Very truly yours,
27
<PAGE> 28
<TABLE>
<CAPTION>
SCHEDULE A
NUMBER OF
UNDERWRITER SHARES
----------- ------
<S> <C>
Total _______
_______
</TABLE>
28
<PAGE> 29
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
____________ , 19__ , relating to _______ shares of our [Insert title of
Securities] (the "Terms Agreement"). We also confirm that, to the best of our
knowledge after reasonable investigation, the representations and warranties of
the undersigned in the Underwriting Agreement Basic Provisions filed as an
exhibit to the undersigned's registration statement on Form S-3 (No.
33-________) (together with the Terms Agreement, the "Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or, to the knowledge of the undersigned, are contemplated by the Securities and
Exchange Commission and, subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the Underwriting
Agreement), there has been (or in the case of a form of prospectus filed
pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such
prospectus) no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
CHIQUITA BRANDS INTERNATIONAL, INC.
By _______________________________________
Name:
Title:
29
<PAGE> 1
EXHIBIT 4(c)
================================================================================
[CONFORMED COPY]
CHIQUITA BRANDS INTERNATIONAL, INC.
and
THE FIFTH THIRD BANK,
Trustee
_____________
INDENTURE
Dated as of February 15, 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
</TABLE>
- -------------------------------
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>
<CAPTION>
Page
----
<S> <C>
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
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
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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 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
</TABLE>
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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
</TABLE>
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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
</TABLE>
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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>
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<PAGE> 8
This is an INDENTURE dated as of February 15, 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
2
(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
3
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.
<PAGE> 11
4
"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 $.33
per share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by (1) the
Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, or (2) by any two Persons designated in a
Company Order previously delivered to the Trustee for the Debt
Securities of any series by any two of the foregoing officers and
delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office of the Trustee for
Debt Securities of any series at which at any particular time its
corporate trust business shall be principally administered, which
office of The Fifth Third Bank, at the date of the execution of this
Indenture, is located at 38 Fountain Square Plaza, Cincinnati, Ohio
45263.
"corporation" includes corporations, associations, joint-
stock companies and business trusts.
"Debt Securities" means securities evidencing unsecured
indebtedness of the Company authenticated and delivered under this
Indenture.
"Debt Security Register" and "Debt Security Registrar" have
the respective meanings specified in Section 305.
"Defaulted Interest" has the meaning specified in Section
307.
"Discounted Debt Security" means any Debt Security which
provides for an amount (excluding any amounts attributable to accrued
but unpaid interest thereon) less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
<PAGE> 12
5
"Dollars" and the sign "$" 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
6
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
7
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
8
"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
9
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 amended and 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;
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10
(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
11
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
12
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 Trust 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
13
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
14
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
15
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
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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
17
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
18
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
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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
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SECTION 305. 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 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
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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
22
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
23
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
24
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
25
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
26
(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
27
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
28
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
29
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
30
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
31
(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
32
(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
33
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
34
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.
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35
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
36
(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
37
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.
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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
39
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
40
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
41
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
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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
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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.
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(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.
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(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.
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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
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47
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
48
"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
49
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
50
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, sale, assignment,
conveyance, transfer, lease or disposition and, if a supplemental
indenture is required in connection with such transaction, 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
<PAGE> 58
51
the covenants of the Company herein and in the Debt
Securities contained; or
(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
<PAGE> 59
52
or any other series of Debt Securities in any material
respect; or
(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
<PAGE> 60
53
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
(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
54
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
55
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
56
(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
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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
58
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
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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
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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
61
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
62
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
63
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 February 15, 1994 to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the
15TH day of FEBRUARY, 1994.
CHIQUITA BRANDS INTERNATIONAL, INC.
[SEAL]
By/S/ WILLIAM TSACALIS
___________________________________
Title:Vice President and Controller
Attest:[No Signature]
<PAGE> 71
64
THE FIFTH THIRD BANK,
Trustee
[SEAL]
By/S/ KERRY BYRN
____________________________
Title: Senior Trust Officer
Attest:[Signature]
<PAGE> 72
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 11TH day of FEBRUARY, 1994, before me personally came
WILLIAM TSACALIS, to me known, who, being by me duly sworn, did depose and say
that he resides at 8700 HOPEWELL ROAD, CINCINNATI, OH 45243; that he is a VICE
PRESIDENT AND CONTROLLER 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.
BARBARA M. HOWLAND
_____________________
Notary Public
Commission Expires_______
[BARBARA M.HOWLAND
Notary Public, State of Ohio
My Commission Expires July 19, 1996]
[SEAL]
<PAGE> 73
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 11TH day of FEBRUARY, 1994, before me personally came
KERRY BYRNE, to me known, who, being by me duly sworn, did depose and say that
he resides at 239 COURT STREET, CINTI., OHIO, that he is a SENIOR TRUST OFFICER
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.
BRIAN J. GARDNER
______________________________
Notary Public,
Commission Expires____________
[BRIAN J.GARDNER
Notary Public, State of Ohio
My Commission Expires April 12, 1995]
[SEAL]
<PAGE> 1
EXHIBITS 5 AND 23(B)
ROBERT W. OLSON, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
CHIQUITA BRANDS INTERNATIONAL, INC.
250 EAST FIFTH STREET
CINCINNATI, OHIO 45202
February 7, 1996
Chiquita Brands International, Inc.
250 East Fifth Street
Cincinnati, OH 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 February 7, 1996 (the "Registration
Statement"), registering an aggregate of $418,750,000 of Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Securities Warrants
(collectively, "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. 33-51995) previously filed by the
Company and declared effective on January 28, 1994. 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 $81,250,000 of Securities unsold under Registration Statement No.
33-51995.
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. Capitalized terms used herein and not otherwise defined herein are as
defined in the Registration Statement.
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 Subordinated Debt Securities, Depositary Shares or Securities
Warrants, when the indenture, deposit agreement or securities warrant agreement,
as the case may be, relating to such Securities, substantially in the form
attached to or incorporated by reference into the Registration Statement, as
amended or modified at such time, has been duly executed and delivered and, in
the case of any issuance of any Securities, when the terms of each specific
issuance of Securities have been approved and authorized, and when the
Securities of such 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
related to such issuance, (i) the Debt Securities or the Depositary Shares or
the Securities Warrants 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, deposit agreement or securities
warrant agreement, in each case except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
relating to or affecting creditors' rights and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (ii) the Common Stock or the Preferred Stock 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/ ROBERT W. OLSON
<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,
------------------- -----------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
-------- -------- -------- -------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) from continuing
operations before income
taxes........................ $ 71,316 $ (673) $(70,811) $(39,081) $(216,708) $160,009 $153,531
Interest expense................ 123,793 125,558 167,464 169,789 155,036 88,406 55,361
Portion of rentals representing
interest cost................ 34,651 33,223 45,097 58,499 85,810 74,070 66,247
Amortization of capitalized
interest..................... 3,114 3,039 4,043 3,745 3,010 1,900 1,125
Undistributed share of income of
less-than-fifty percent owned
investees.................... (7,830) (1,652) (4,110) (1,429) (3,588) (4,352) (116)
-------- -------- -------- -------- --------- -------- --------
$225,044 $159,495 $141,683 $191,523 $ 23,560 $320,033 $276,148
======== ======== ======== ======== ========= ======== ========
Fixed Charges:
Interest expense................ $123,793 $125,558 $167,464 $169,789 $ 155,036 $ 88,406 $ 55,361
Capitalized interest............ 500 3,200 3,900 8,000 21,400 23,000 8,000
Portion of rentals representing
interest cost................ 34,651 33,223 45,097 58,499 85,810 74,070 66,247
-------- -------- -------- -------- --------- -------- --------
$158,944 $161,981 $216,461 $236,288 $ 262,246 $185,476 $129,608
======== ======== ======== ======== ========= ======== ========
Ratio of earnings to fixed
charges................. 1.42 (a) (a) (a) (a) 1.73 2.13
======== ======== ========
Earnings.......................... $225,044 $159,495 $141,683 $191,523 $ 23,560 $320,033 $276,148
======== ======== ======== ======== ========= ======== ========
Fixed charges................... $158,944 $161,981 $216,461 $236,288 $ 262,246 $185,476 $129,608
Preferred stock dividends....... 9,409 7,824 10,961 4,278 778 -- --
-------- -------- -------- -------- --------- -------- --------
$168,353 $169,805 $227,422 $240,566 $ 263,024 $185,476 $129,608
======== ======== ======== ======== ========= ======== ========
Ratio of earnings to
combined fixed charges
and preferred stock
dividends............... 1.34 (b) (b) (b) (b) 1.73 2.13
======== ======== ========
</TABLE>
- ---------------
(a) Fixed charges exceeded earnings by $2,486 for the nine months ended
September 30, 1994, $74,778 in 1994, $44,765 in 1993 and $238,686 in 1992.
(b) Combined fixed charges and preferred stock dividends exceeded earnings by
$10,310 for the nine months ended September 30, 1994, $85,739 in 1994,
$49,043 in 1993 and $239,464 in 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 $500,000,000 of debt securities,
preferred stock, depositary shares, common stock and securities warrants and to
the incorporation by reference therein of our report dated February 27, 1995,
except for Note 1 as to which the date is December 20, 1995, with respect to the
consolidated financial statements and schedules of Chiquita Brands
International, Inc. for the year ended December 31, 1994 included in its Form
8-K, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Cincinnati, Ohio
February 7, 1996
<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 $418,750,000 in Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Securities Warrants which may be
offered and sold by Chiquita Brands International, Inc. (and any additional
Registration Statement related thereto permitted by Rule 462(b) promulgated
under the Securities Act of 1933, as amended), (ii) to file such Registration
Statements 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 31, 1996 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 $418,750,000 in Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Securities Warrants which may be
offered and sold by Chiquita Brands International, Inc. (and any additional
Registration Statement related thereto permitted by Rule 462(b) promulgated
under the Securities Act of 1933, as amended), (ii) to file such Registration
Statements 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 29, 1996 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 $418,750,000 in Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Securities Warrants which may be
offered and sold by Chiquita Brands International, Inc. (and any additional
Registration Statement related thereto permitted by Rule 462(b) promulgated
under the Securities Act of 1933, as amended), (ii) to file such Registration
Statements 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
February 1, 1996 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 $418,750,000 in Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Securities Warrants which may be
offered and sold by Chiquita Brands International, Inc. (and any additional
Registration Statement related thereto permitted by Rule 462(b) promulgated
under the Securities Act of 1933, as amended), (ii) to file such Registration
Statements 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 29, 1996 at Washington, D.C.
/s/ JEAN H. SISCO
--------------------------------------
Jean H. Sisco
<PAGE> 5
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 $418,750,000 in Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Securities Warrants which may be
offered and sold by Chiquita Brands International, Inc. (and any additional
Registration Statement related thereto permitted by Rule 462(b) promulgated
under the Securities Act of 1933, as amended), (ii) to file such Registration
Statements 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 29, 1996 at Indianapolis, Indiana.
/s/ WILLIAM W. VERITY
--------------------------------------
William W. Verity
<PAGE> 6
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 $418,750,000 in Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Securities Warrants which may be
offered and sold by Chiquita Brands International, Inc. (and any additional
Registration Statement related thereto permitted by Rule 462(b) promulgated
under the Securities Act of 1933, as amended), (ii) to file such Registration
Statements 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 29, 1996 at Cincinnati, Ohio.
/s/ OLIVER W. WADDELL
--------------------------------------
Oliver W. Waddell
<PAGE> 7
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 $418,750,000 in Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Securities Warrants which may be
offered and sold by Chiquita Brands International, Inc. (and any additional
Registration Statement related thereto permitted by Rule 462(b) promulgated
under the Securities Act of 1933, as amended), (ii) to file such Registration
Statements 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
February 6, 1996 at Cincinnati, Ohio.
/s/ STEVEN G. WARSHAW
--------------------------------------
Steven G. Warshaw
<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)
Paul L. Reynolds, 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 December
31, 1995, there were 66,948,664 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, 1995
Col. A. Col. B
Title of Class Amount Outstanding
-------------- ------------------
Capital Stock, par value 32,000
$2,200.00 per share
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.
95/8% Senior Notes due 2004.
91/8% 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 either series of
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 the
95/8% Senior Notes and the 91/8% 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.
3
<PAGE> 4
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 and each director,
partner and executive officer of the obligor.
As of December 31, 1995
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
- ------- -------- ------------ ----------------------
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, 1995
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
- ------- -------- ------------ ----------------------
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.
4
<PAGE> 5
As of December 31, 1995
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
- -------- -------------- ------------------- ----------------
None.
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, 1995
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.
- -------------- ----------- ---------------------- -----------
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.
5
<PAGE> 6
As of December 31, 1995
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.
- -------------- ----------- ---------------------- -----------
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.
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, 1995
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.
- -------------- ----------- ---------------------- -----------
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:
Col. A Col. B
Nature of Amount Col. C
Indebtedness Outstanding Date Due
- ------------ ----------- --------
None.
6
<PAGE> 7
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.
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.
7
<PAGE> 8
(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 From 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
8
<PAGE> 9
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 30th day of January, 1996.
THE FIFTH THIRD BANK
By /s/ Kerry R. Byrne
------------------------------
Kerry R. Byrne,
Vice President and Trust
Officer
9
<PAGE> 10
EXHIBIT 1
CERTIFICATE OF INCORPORATION
OF THE TRUSTEE AS NOW IN EFFECT
[See Attached]
10
<PAGE> 11
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
11
<PAGE> 12
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.
12
<PAGE> 13
EXHIBIT 2
CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
(INCLUDED IN EXHIBIT 1)
13
<PAGE> 14
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE
TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS
[See Attached]
14
<PAGE> 15
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 22nd day of January,
1996.
/s/ Curtis Stitt
-------------------------------
W. CURTIS STITT
Superintendent Division of
Financial Institutions
/s/ Alison M. Meeks
-------------------------------
ALISON M. MEEKS
Superintendent Division of
Banks
15
<PAGE> 16
EXHIBIT 4
A COPY OF THE EXISTING CODE OF
REGULATIONS OF THE TRUSTEE
INCORPORATING AMENDMENTS TO
DATE
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.
16
<PAGE> 17
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.
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
17
<PAGE> 18
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 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.
18
<PAGE> 19
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.
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,
Vice President and 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
THE FIFTH THIRD BANK
CONSOLIDATED BALANCE SHEET FROM REPORT OF CONDITION DATED SEPTEMBER 30, 1995
(unaudited) ($000's)
<TABLE>
<CAPTION>
ASSETS Dollar Amounts in Thousands
<S> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
1. Cash and balances due from depository institutions |
a. Noninterest-bearing balances and currency and coin(1) | 463,047
b. Interest-bearing balances(2) | 99
- --------------------------------------------------------------------------------------------|----------------------------------
2. Securities: |
a. Held-to-maturity securities (from Schedule RC-B, column | 1,051,453
A) |
b. Available-for-sale securities (from Schedule RC-B, column | 619,574
D) |
- --------------------------------------------------------------------------------------------|----------------------------------
3. Federal Funds sold and securities purchased under agreements |
to resell in domestic offices of the bank and of its Edge |
and Agreement subsidiaries, and in IBFs: |
a. Federal funds sold | 747,328
b. Securities purchased under agreements to resell | 0
- --------------------------------------------------------------------------------------------|----------------------------------
4. Loans and lease financing receivables: |
a. Loans and leases net of unearned income (from Schedule | 5,982,117
RC-C) |
b. LESS: Allowance for loan and lease losses | 75,731
c. LESS: Allocated transfer risk reserve | 0
d. Loans and leases, net of unearned income, allowance, and | 5,906,386
reserve (items 4.a minus 4.b and 4.c) |
- --------------------------------------------------------------------------------------------|----------------------------------
5. Trading assets (from Schedule RC-D) | 245
- --------------------------------------------------------------------------------------------|----------------------------------
6. Premises and fixed assets (including capitalized leases) | 95,848
- --------------------------------------------------------------------------------------------|----------------------------------
7. Other real estate owned (from Schedule RC-M) | 1,381
- --------------------------------------------------------------------------------------------|----------------------------------
8. Investments in unconsolidated subsidiaries and associated | 0
companies (from Schedule RC-M) |
- --------------------------------------------------------------------------------------------|----------------------------------
9. Customers' liability to this bank on acceptance outstanding | 36,198
- --------------------------------------------------------------------------------------------|----------------------------------
10. Intangible Assets (from Schedule RC-M) | 43,348
- --------------------------------------------------------------------------------------------|----------------------------------
11. Other assets (from Schedule RC-F) | 140,054
- --------------------------------------------------------------------------------------------|----------------------------------
12. Total assets (sum of items 1 through 11) | 9,104,961
|
- -------------------------------------------------------------------------------------------- ----------
<FN>
__________________________
(1) Includes cash items in process of collection and unposted deposits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
[/FN]
<PAGE> 25
<TABLE>
<CAPTION>
LIABILITIES
- -------------------------------------------------------------------------------------------------------------------------------
<S> | <C> <C>
13. Deposits: |
a. In domestic offices (sum of totals of totals of columns A and C from Schedule | 4,882,227
RC-E, part 1) |
(1) Noninterest bearing(3) | 1,038,915
(2) Interest bearing | 3,843,312
|
b. In foreign offices, Edge and Agreement subsidiaries and IBFx (from Schedule | 471,295
RC-E, part II) |
(1) Noninterest bearing | 0
(2) Interest bearing | 471,295
- --------------------------------------------------------------------------------------------|----------------------------------
14. Federal funds purchased and securities sold under agreements to repurchase in | 63,932
domestic offices of the bank and of its Edge and Agreement subsidiaries, and |
in IBSs: |
a. Federal funds purchased | 977,657
b. Securities sold under agreements to repurchase | 215,093
- --------------------------------------------------------------------------------------------|----------------------------------
15. a. Demand notes issued to the U.S. Treasury | 63,932
b. Trading liabilities (from Schedule RC-D) | 0
- --------------------------------------------------------------------------------------------|----------------------------------
16. Other borrowed money: |
a. With original maturity of one year or less | 1,138,491
b. With original maturity of more than one year | 85,000
- --------------------------------------------------------------------------------------------|----------------------------------
17. Mortgage indebtedness and obligations under capitalized | 0
leases |
- --------------------------------------------------------------------------------------------|----------------------------------
18. Bank's liability on acceptances executed and outstanding | 36,198
- --------------------------------------------------------------------------------------------|----------------------------------
19. Subordinated notes and debentures | 381,628
- --------------------------------------------------------------------------------------------|----------------------------------
20. Other liabilities (from Schedule RC-G) | 211,326
- --------------------------------------------------------------------------------------------|----------------------------------
21. Total liabilities (sum of items 13 through 20) | 8,462,847
- --------------------------------------------------------------------------------------------|----------------------------------
22. Limited life preferred stock and related surplus | 0
- --------------------------------------------------------------------------------------------|----------------------------------
|
EQUITY CAPITAL |
- --------------------------------------------------------------------------------------------|----------------------------------
23. Perpetual preferred stock and related surplus | 0
- --------------------------------------------------------------------------------------------|----------------------------------
24. Common stock | 70,400
- --------------------------------------------------------------------------------------------|----------------------------------
25. Surplus (exclude all surplus related to preferred stock) | 100,702
- --------------------------------------------------------------------------------------------|----------------------------------
26. a. Undivided profits and capital reserves | 464,529
b. Net unrealized holding gains (losses) on available-for- | (3,517)
sale securities |
- --------------------------------------------------------------------------------------------|----------------------------------
27. Cumulative foreign currency translation adjustments | 0
- --------------------------------------------------------------------------------------------|----------------------------------
28. Total equity capital (sum of items 23 through 27) | 642,114
- --------------------------------------------------------------------------------------------|----------------------------------
29. Total liabilities, limited-life preferred stock, and equity | 9,104,961
capital (sum of items 21, 22 and 28) |
<FN>
(3) Includes total demand deposits and noninterest-bearing time and
savings deposits.
</TABLE>
[/FN]
<PAGE> 26
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> 27
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)
_________________________________________________
Keith A. Maurmeier
Senior Trust Officer
Star Bank, National Association
425 Walnut Street
Cincinnati, Ohio 45202
(513) 632-2047
(Name, address, and telephone number of agent for services)
CHIQUITA BRANDS INTERNATIONAL, INC.
(Exact name of obligor as specified in its charter)
New Jersey 04-1923360
(State of Incorporation) (IRS Employer Identification No.)
250 East Fifth Street, Cincinnati, OH 45202
(Address of principal executive offices) (Zip Code)
Debt Securities
(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)
Col A. Col B
(Title of Class) (Amount Outstanding)
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)
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
------------- -------------- ------------ -----------------
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)
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
------------- -------------- ------------ -----------------
<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)
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
-------------- --------------- ------------------ -----------------
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:
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
--------------- ----------- ------------------ -----------------
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
<PAGE> 5
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)
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
--------------- ----------- ------------------ -----------------
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)
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
--------------- ----------- ------------------ -----------------
<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 with 31 days)
Col. A Col. B Col. C
Amount
Nature of Indebtedness Outstanding Due Date
---------------------- ----------- --------
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 26, 1996 (insert date within 31 days)
-NONE-
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
--------------- ----------- ------------------ -----------------
<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 Star Bank,
National Association, 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 ___26th___ day of ______January__________, 1996________.
STAR BANK, NATIONAL ASSOCIATION
By: Keith A. Maurmeier
_____________________________
Keith A. Maurmeier
Senior Trust Officer
<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 authorized and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders.
*Amended June 14, 1991, see attached.
<PAGE> 10
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 such person, his heirs, executors, or
administrators, may be entitled as a matter of law. The
<PAGE> 11
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.
/s/
----------------------------------
F. Kristen Koepke, Secretary
Approved:
/s/
_______________________________________
Oliver W. Waddell
Chairman, Star Banc Corporation,
Shareholder Certified Copy
/s/
----------------------------------
Secretary
<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.
(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
<PAGE> 15
EXHIBIT 2 (b)
Comptroller of the Currency
TREASURY DEPARTMENT OF THE UNITED STATES
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.
In testimony whereof, witness my signature and seal of
SEAL office this 21st day of December, 1913.
/S/
----------------------------------------
<PAGE> 16
EXHIBIT 2 (c)
Comptroller of the Currency
TREASURY DEPARTMENT OF THE UNITED STATES
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.
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
<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.
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
<PAGE> 18
Page 2
Mr. Raymond D. Beck (cont'd)
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
<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.
Federal Reserve Board,
By W. P. G. Harding
Governor.
ATTEST:
W. T. Chapman
Secretary.
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
Philip C. Berg,
Superintendent of Banks.
(SEAL)
<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 amy 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 that 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
<PAGE> 24
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.
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 recommendations 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 Association 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 amy 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.
STAR BANK, NATIONAL ASSOCIATION
1/26/96 BY: Keith A. Maurmeier
- --------------------------- ------------------------------------
Date Keith A. Maurmeier
Senior Trust Officer
<PAGE> 29
Legal Title of Bank: Star Bank, National Association Call Date: 9/30/95
Address: P.O. Box 1038 ST-BK: 39-1240
City, State Zip: Cincinnati, OH 45201 FFIEC 031
FDIC Certificate No. 06548 Page RC-1
Consolidated Report of Conditions for Insured Commercial
and State-Chartered Savings Banks for September 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC -- Balance Sheet
<TABLE>
<CAPTION>
----------
-------------- C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS ///////////////////////
1. Cash and balance due from depository institutions (from Schedule RC-A): ///////////////////////
a. Noninterest-bearing balances and currency and coin(1) ..................................... 0081 452,065 1.a.
b. Interest-bearing balances(2) .............................................................. 0071 0 1.b.
2. Securities: ///////////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) ................................ 1754 1,447,188 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) .............................. 1773 198,643 2.b.
3. Federal funds sold and securities purchased under agreement to resell in domestic offices ///////////////////////
of the bank and of its Edge and Agreement subsidiaries, and in LBFs: ///////////////////////
a. Federal funds sold ........................................................................ 0276 3,924 3.a.
b. Securities purchased under agreements to resell ........................................... 0277 0 3.b.
4. Loans and lease financing receivables: --------------------------- ///////////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 6,019,307 /////////////////////// 4.a.
b. LESS: Allowance for loan and lease losses ................... RCFD 3123 53,552 /////////////////////// 4.b.
c. LESS: Allocated transfer risk reserve ....................... RCFD 3128 0 /////////////////////// 4.c.
----------------------------
d. Loans and leases, net of unearned income, ///////////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c) ....................................... 2125 5,919,785 4.d.
5. Trading assets (from schedule RC-D) .......................................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ..................................... 2145 100,250 6.
7. Other real estate owned (from Schedule RC-M) ................................................. 2150 2,745 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)...... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding ................................. 2195 25,372 9.
10. Intangible assets (from Schedule RC-M) ....................................................... 2143 225,460 10.
11. Other assets (from Schedule RC-F) ............................................................ 2160 173,361 11.
12. Total assets (sum of items 1 through 11) ..................................................... 2170 8,535,762 12.
---------------------------
</TABLE>
- -----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit net held for trading.
<PAGE> 30
Legal Title of Bank: Star Bank, National Association Call Date: 5/30/95
Address: P.O. Box 1038 ST-BK: 39-1240
City, State Zip: Cincinnati, OH 45201 FFIEC 031
FDIC Certificate No. 06548 Page RC-2
SCHEDULE RC -- Continued
<TABLE>
<CAPTION> --------------------------
Dollar Amounts in Thousands /////// Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES ///////////////////////
13. Deposits: ///////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RCE-E, ///////////////////////
part I) ........................................................................... RCON 2200 6,504,080 13.a
(1) Noninterest-bearing(1)................................ RCON 6631 1,197,794 /////////////////////// 13.a.(1)
(2) Interest-bearing ..................................... RCON 6636 4,405,296 /////////////////////// 13.a.(2)
-------------------------- ///////////////////////
b. In foreign offices, Edge and Agreement subsidiaries, and ISFB (from Schedule RC-E, ///////////////////////
part II) ......................................................................... RCFN 2200 41,512 13.b.
(1) Noninterest-bearing .................................. RCPN 6631 0 /////////////////////// 13.b.(1)
(2) Interest-bearing ..................................... RCFN 6836 41,513 /////////////////////// 13.b.(2)
-------------------------- ///////////////////////
14. Federal funds purchased and securities sold under agreements to repurchase in domestic ///////////////////////
office of the bank and of its Edge and Agreement subsidiaries, and in IBPs: ///////////////////////
a. Federal funds purchased ........................................................... RCFD 0278 838,507 14.a.
b. Securities sold under agreements to repurchase .................................... RCFD 0279 5,549 14.b.
15. a. Demand notes issued to the U.S. Treasury .......................................... RCON 2840 117,994 15.a.
b. Trading liabilities (from Schedule RC-D) .......................................... RCFD 3949 0 15.b.
16. Other borrowed money: ///////////////////////
a. With original maturity of one year or less ........................................ RCFD 2332 2,422 16.a.
b. With original maturity of more than one year ...................................... RCFD 2339 0 16.b.
17. Mortgage indebtedness and obligations under capitalized leases ....................... RCFD 2910 11,711 17.
18. Bank's liability on acceptances executed and outstanding ............................. RCFD 2920 25,372 18.
19. Subordinated notes and debentures .................................................... RCFD 3200 148,362 19.
20. Other liabilities (from Schedule RC-G) ............................................... RCFD 2930 35,782 20.
21. Total liabilities (sum of items 13 through 20) ....................................... RCFD 2948 7,891,290 21.
///////////////////////
22. Limited-life preferred stock and related surplus ..................................... RCPD 3282 0 22.
EQUITY CAPITAL ///////////////////////
23. Perpetual preferred stock and related surplus ........................................ RCFD 3838 0 23.
24. Common stock ......................................................................... RCFD 3230 18,200 24.
25. Surplus (exclude all surplus related to preferred stock) ............................. RCFD 3839 197,890 25.
26. a. Undivided profits and capital reserves ............................................ RCFD 3632 437,179 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ............ RCFD 3434 (4,786) 26.b.
27. Cumulative foreign currency translation adjustments .................................. RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27) .................................... RCFD 3210 648,473 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, ///////////////////////
22, and 28) .......................................................................... RCFD 3300 8,539,763 29.
---------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best Number
describes the most comprehensive level of auditing work performed for the bank by ----------------------
independent external auditors as of any date during 1994 ............................. RCFD 6724 N/A M.1.
----------------------
</TABLE>
1 - Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 - Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 - Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 - Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 - Review of the bank's financial statements by external auditors
6 - Compilation of the bank's financial statements by external auditors
7 - Other audit procedures (exlcuding tax preparation work)
8 - No external audit work
- ----------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
12
