SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Fiscal Year Ended Commission File
December 31, 1996 Number 1-1550
CHIQUITA BRANDS INTERNATIONAL, INC.
Incorporated under the I.R.S. Employer I.D.
Laws of New Jersey No. 04-1923360
250 East Fifth Street, Cincinnati, Ohio 45202
(513) 784-8000
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of Each Class On Which Registered
---------------------- --------------------------
Capital Stock ($.33 par value) New York, Pacific, Boston
$2.875 Non-Voting Cumulative
Preferred Stock, Series A New York
$3.75 Convertible Preferred Stock,
Series B New York
Securities registered pursuant to Section 12(g) of the Act: None
Other securities for which reports are submitted pursuant to
Section 15(d) of the Act:
9-1/8% Senior Notes due March 1, 2004
9-5/8% Senior Notes due January 15, 2004
10-1/4% Senior Notes due November 1, 2006
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months,
and (2) has been subject to such filing requirements for the past
90 days. Yes X No _____
<PAGE>
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of registrant's knowledge,
in definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of February 28, 1997, there were 56,132,371 shares of
Common Stock outstanding. The aggregate market value of Common
Stock held by non-affiliates at February 28, 1997 was
approximately $434 million.
Documents Incorporated by Reference
Portions of the Chiquita Brands International, Inc. 1996
Annual Report to Shareholders are incorporated by reference in
Parts I and II. Portions of the Chiquita Brands International,
Inc. Proxy Statement for the 1997 Annual Meeting of Shareholders
are incorporated by reference in Part III.
<PAGE>
CHIQUITA BRANDS INTERNATIONAL, INC.
TABLE OF CONTENTS
Page
Part I
Item 1. Business . . . . . . . . . . . . . . . 1
Item 2. Properties . . . . . . . . . . . . . . 7
Item 3. Legal Proceedings . . . . . . . . . . . 8
Item 4. Submission of Matters to a Vote of
Security Holders . . . . . . . . . . 9
Executive Officers of the Registrant . . . . . . 10
Part II
Item 5. Market for Registrant's Common Equity
and Related Stockholder Matters . . . 11
Item 6. Selected Financial Data . . . . . . . . 11
Item 7. Management's Discussion and Analysis of
Financial Condition and Results of
Operations . . . . . . . . . . . . . 11
Item 8. Financial Statements and Supplementary
Data . . . . . . . . . . . . . . . . 11
Item 9. Changes in and Disagreements with
Accountants on Accounting and Financial
Disclosure . . . . . . . . . . . . . 11
Part III
Item10. Directors and Executive Officers of the
Registrant . . . . . . . . . . . . . 12
Item11. Executive Compensation . . . . . . . . 12
Item12. Security Ownership of Certain Beneficial
Owners and Management . . . . . . . . 12
Item13. Certain Relationships and Related
Transactions . . . . . . . . . . . . 12
Part IV
Item14. Exhibits, Financial Statement Schedules,
and Reports on Form 8-K . . . . . . . 12
Signatures 14
<PAGE>
PART I
ITEM 1 - BUSINESS
- -----------------
GENERAL
Chiquita Brands International, Inc. ("Chiquita" or the
"Company") 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 mangoes, kiwi and citrus, and a wide variety of other
fresh produce. The Company's operations also include fruit and
vegetable juices and beverages; processed bananas and other
processed fruits and vegetables; fresh cut and ready-to-eat
salads; and edible oil-based consumer products.
In recent years, the Company has capitalized on its "Chiquita"
and other premium brand names by building on its worldwide
leadership position in the marketing, distribution and sourcing
of bananas and by expanding its quality fruit and vegetable
operations. Chiquita has benefited from its multi-year
investment spending program and its restructuring and cost
reduction efforts to significantly reduce production,
distribution and overhead costs. (See "Distribution and
Logistics," "Sourcing" and ITEM 2 - PROPERTIES.) Its
restructuring and cost reduction efforts also included measures
to reorganize the Company's European banana operations to adjust
to a quota which effectively restricts the volume of Latin
American bananas imported into the European Union ("EU"), as well
as to the banana Framework Agreement which authorizes the
imposition of additional restrictive and discriminatory quotas
and export licenses on non-European banana marketing firms. (See
RISKS OF INTERNATIONAL OPERATIONS.)
Since the announcement of the EU banana quota, Chiquita s
primary objectives have been to focus on core businesses, to
lower operating costs and to reduce debt and the Company s cost
of capital in an effort to maximize shareholder value by
strengthening the balance sheet and increasing free cash flow.
Steps completed in the Company s efforts to maximize shareholder
value include:
- in 1996, certain strategic undertakings designed to achieve
further long-term reductions in the delivered product cost
of bananas through the modification of distribution
logistics and the wind-down of particular production
facilities;
- in 1995, the sale of its meat business, older ships and the
Costa Rican operations of its Numar edible oils group, the
shut-down of a portion of its juice operations and the
reconfiguration of banana production assets; and
<PAGE>
- beginning in 1994, the prepayment of higher rate
subordinated public debt and high cost subsidiary debt
using proceeds from public offerings of preferred shares
and senior notes and from available cash.
See "Management's Analysis of Operations and Financial Condition"
and Note 2 to the Consolidated Financial Statements included in
the Company's 1996 Annual Report to Shareholders for a discussion
of factors affecting results of the Company's operations for
1996, 1995 and 1994. Factors which may cause fluctuations in the
results of operations are also discussed in the description of
the Company's
-1-
operations below. No individual customer accounted for more than
10% of the Company's consolidated net sales during any of the
last three years.
Fresh Food Products
- -------------------
The Company markets an extensive line of fresh fruits and
vegetables sold under the "Chiquita" and other brand names. The
core of Chiquita's fresh foods operations is the marketing,
distribution and sourcing of bananas. Sales of bananas accounted
for approximately 60% of consolidated net sales in each of the
last three years.
Chiquita believes it derives competitive benefits in the
marketing, distribution and sourcing of fresh foods through its:
- Recognized brand names and reputation for quality;
- Strong market positions in Europe and North America, its
principal markets;
- Modern, cost-efficient fresh fruit transportation system;
and
- Industry leading position in terms of number and geographic
diversity of its sources of bananas, which enhances its
ability to provide customers with premium quality products
on a consistent basis.
Marketing. Chiquita markets bananas under brand names
including "Chiquita," "Chiquita Jr.," "Consul" and "Amigo." In
1996, Chiquita sold approximately 50% of its banana volume in
North America and approximately 45% of its banana volume in
Europe.
Chiquita sells bananas through its regional sales
organizations and commissioned agents throughout the world
directly to wholesalers and retail chains, which in turn ripen
and resell or distribute the fruit. The Company also sells
<PAGE>
bananas ripened in its own facilities or under contractual
ripening arrangements. Chiquita has been able to obtain a
premium price for its bananas due to its reputation for quality
and its innovative marketing techniques, which include providing
retail marketing support services to its customers.
Bananas are highly perishable and must be brought to market
and sold generally within 60 days after harvest. Therefore, the
selling price which an importer receives for bananas depends on
several factors, including: the availability of bananas and
other fruit in each market; the relative quality of competing
fruit; and wholesaler and retailer acceptance of bananas offered
by competing importers. Excess supplies may result in increased
price competition. Profit margins on sales may also be
significantly affected by fluctuations in currency exchange
rates. (See RISKS OF INTERNATIONAL OPERATIONS.)
Adverse weather such as major windstorms or floods in banana
growing areas may restrict worldwide supplies and result in
increased prices for bananas. However, competing importers may
be affected differently, depending upon their ability and the
cost to obtain alternate supplies from sources in other
geographic areas.
-2-
Banana marketing in international trade is highly competitive.
While smaller companies, including growers cooperatives, are a
competitive factor, Chiquita s primary competitors are a limited
number of other international banana importers and exporters. In
order to compete successfully, Chiquita must be able to source
bananas of uniformly high quality and, on a timely basis,
transport and distribute them to worldwide markets. The Company
believes it sells more bananas than any of its competitors,
accounting for approximately one-fourth of all bananas imported
into its principal markets.
Although production of bananas tends to be relatively stable
throughout the year, competition in the sale of bananas comes not
only from bananas sold by others, but also 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.
Through a network of fresh fruit and vegetable operations in
Europe, North America and the Pacific Rim, Chiquita sells and
distributes a variety of quality fruit and vegetable products.
These products include quality fresh fruit such as apples,
apricots, cherries, grapes, peaches, pears, plums, strawberries
and tomatoes sold under the "Chiquita," "Frupac" and other brand
names; and a wide variety of fresh vegetables including
asparagus, beans, broccoli, carrots, celery, lettuce, onions and
potatoes sold under the "Premium" and various other brand names.
<PAGE>
Some of these operations involve both the production and
marketing of fresh fruits and vegetables while others involve
only marketing. These businesses compete against numerous other
regional fresh fruit and vegetable producers and distributors.
No single competitor has a dominant market share in this industry
due to the regionalized nature of these businesses.
Distribution and Logistics. Transportation expenses comprise
approximately one-fourth of the total costs incurred by Chiquita
in its sale of tropical fruit. Chiquita ships its tropical fruit
in vessels owned or chartered by the Company. All of Chiquita's
tropical fruit shipments into the North American market are
delivered using pallets or containers that minimize damage to the
product by eliminating the need to handle individual boxes.
Chiquita owns or controls under long-term lease approximately 70%
of its aggregate shipping capacity. The remaining capacity is
operated under contractual arrangements having terms of
approximately one year. (See also ITEM 2 - PROPERTIES and Notes
4 and 5 to the Consolidated Financial Statements.) Chiquita also
operates loading and unloading facilities which it owns or leases
in Central and South America and various ports of destination.
Sourcing. Chiquita has a greater number and geographic
diversity of sources of bananas than any of its competitors.
During 1996 approximately 30% of all bananas sold by Chiquita
were sourced from Panama. Bananas are sourced from numerous
other countries, including Colombia, Costa Rica, Ecuador,
Guatemala and Honduras which comprised 5% to 21% (depending on
the country) of bananas sold by Chiquita during 1996.
In 1996 approximately two-thirds of the bananas sourced by
Chiquita were produced by subsidiaries and the remainder were
purchased under fruit supply arrangements from other growers.
Generally, these arrangements require less initial capital
investment by the Company than owned production facilities.
Under some of these fruit supply arrangements, Chiquita furnishes
financial and technical assistance to its suppliers to support
the production and preparation of bananas for shipment. No
single supplier provided a significant portion of the bananas
sold by Chiquita in 1996.
-3-
Bananas are vulnerable to adverse local weather conditions,
which are quite common but difficult to predict, and to crop
disease. These factors may result in lower sales volume and
increased costs, but may also restrict worldwide supplies and
lead to increased prices for bananas. In addition, banana
production may be affected by political changes in countries
where bananas are grown. However, competitors may be affected
differently depending upon their ability to obtain adequate
supplies from sources in other geographic areas. Chiquita's
overall risk from these factors is reduced by the low
concentration of its banana production in individual producing
locations.
<PAGE>
Labor cost, which is a significant portion of the cost of
producing bananas, varies depending on the country of origin.
Since bananas are shipped in cardboard boxes, paper cost is also
significant.
The geographically diverse sources of other fresh fruits and
vegetables primarily involve formal and informal purchase
arrangements with numerous unrelated producers and importers.
None of these arrangements is individually significant to the
Company's operations.
Processed Food Products
- -----------------------
Chiquita's processed food products include fruit and vegetable
juices sold in the United States and Europe; processed fruit and
vegetables, including processed bananas, sold worldwide under the
"Chiquita," "Friday" and other brands; fresh cut and ready-to-eat
salads sold in the United States under the "Club Chef" brand; and
other consumer products (primarily edible oils) sold in Honduras
under the "Numar" and other brand names.
Chiquita branded fruit juices sold in the United States
include a full line of tropical blends which are manufactured by
others to Chiquita's specifications and sold in shelf-stable,
refrigerated and frozen varieties. Shelf-stable individual
servings come in three blends-- "Wild Berry Splash," "Tropical
Paradise" and "Calypso Breeze"-- and are sold through club stores
and mass merchandisers throughout most of the United States. The
Company licenses its refrigerated and frozen juice product lines
to a national fruit juice producer. In addition to the three
tropical blends above, the refrigerated and frozen lines include
"Raspberry Passion," "Pineapple Guava Mango Cocktail," "Orange
Strawberry Banana Cocktail," "Kiwi Strawberry Cocktail" and
"Pineapple Orange Banana Cocktail." Chiquita branded fruit
juices are sold in Europe in shelf-stable and refrigerated
varieties through a 50%-owned joint venture. In the western
United States, the Company also produces and markets natural
fresh fruit and vegetable juices sold under the "Ferraro's Earth
Juice" and "Naked Juice" brand names. The Company's juice
products compete with a wide variety of beverages in the highly
competitive commercial beverages industry, which includes other
regional and national producers of juice and juice drink
products.
Chiquita's processed banana products include banana puree,
sliced bananas and other specialty products which are sold to
producers of baby food, fruit beverages, baked goods and
fruit-based products, to wholesalers of bakery and dairy food
products, and to selected licensees including Beech-Nut and
General Mills. These products are primarily produced in
Chiquita s processing facilities in Honduras and Costa Rica.
Although Chiquita enjoys the largest share of the worldwide
processed banana market, this industry remains highly competitive
due to the existence of numerous other producers with available
<PAGE>
processing capacity, including other banana growers, fruit
ingredients companies and large, international food companies.
-4-
Friday Canning Corporation ("Friday") is one of the largest
private-label vegetable processors in the United States. Friday
markets a full line of over twenty-five types of processed
vegetables to retail and food service customers throughout the
U.S. and other countries. Friday competes directly with a few
major producers of both branded and private-label canned
vegetables, as well as indirectly with numerous marketers of
frozen and fresh vegetable products. The vegetable processing
industry is affected by the availability of produce, which can
vary due to local weather conditions.
The Company's consumer products operations in Honduras are
conducted through a 50%-owned joint venture. The joint venture
produces and sells its edible oil and other products under the
"Numar," "Clover" and other brand names and competes principally
against a number of small local firms and subsidiaries of
multinational corporations.
RISKS OF INTERNATIONAL OPERATIONS
----------------------------------
Information about the Company's operations by geographic area
is in Note 12 to the Consolidated Financial Statements included
in the Company's 1996 Annual Report to Shareholders and is
incorporated herein by reference.
On July 1, 1993, the European Union ("EU") implemented a new
quota regulation effectively restricting the volume of Latin
American bananas imported into the EU, which had the effect of
decreasing the Company's volume and market share in Europe. The
quota regulation is administered through a licensing system which
grants preferred status to producers and importers within the EU
and its former colonies. The regulation also imposes 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 the EU 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 implemented this
<PAGE>
agreement in 1995, significantly increasing the Company s cost to
export bananas from these countries.
In July 1996, the EU adopted an interim measure that increased
its annual banana quota to adjust for the entry of Sweden,
Finland and Austria into the EU and made its preferential
licensing system applicable to the increase. Prior to their
entry into the EU, these countries had unregulated banana markets
in which the Company supplied a significant portion of the
bananas. Implementation of the quota and licensing regime
continues to evolve, and there can be no assurance that the EU
banana regulation will not change further.
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
-5-
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. In September 1995,
based on information obtained in the USTR's investigation under
Section 301, the United States, joined by Guatemala, Honduras and
<PAGE>
Mexico, commenced a new international trade challenge against the
EU regime using the procedures of the World Trade Organization
("WTO"). In January 1996, the USTR announced that it had found
the banana Framework Agreement export policies of Costa Rica and
Colombia to be unfair. In February 1996, Ecuador, the world's
largest exporter of bananas, joined the United States, Guatemala,
Honduras and Mexico in challenging the EU regime under the WTO.
During the fourth quarter of 1996, a WTO arbitration panel heard
the case against the EU quota and licensing regime and Framework
Agreement. It has been widely reported that in March 1997, the
panel issued a preliminary report finding that the licensing and
quota systems under the EU regime and the Framework Agreement
violate numerous international trade agreements to the detriment
of Latin American supplying countries and U.S. marketing firms
such as Chiquita. Reportedly, the preliminary report recommends
that the WTO request the EU to bring its import regime for
bananas into conformity with these agreements. The panel is
expected to issue a final report during the second quarter of
1997. The final report is expected to be subject to appeal
procedures that could extend by a few months the time before any
ruling is final. Thereafter, the parties have a "reasonable"
period of time (not to exceed 15 months) to implement the ruling.
Both the WTO and Section 301 authorize retaliatory measures,
such as tariffs or withdrawal of trade concessions, against
offending countries. However, there can be no assurance as to
the results of the WTO and Section 301 proceedings (including the
WTO panel s final report and any appeal of the final report), the
nature and extent of actions that may be taken by the affected
countries or the impact on the EU quota regime or the Framework
Agreement.
Certain of the Company's operations are heavily dependent upon
products grown and purchased in Central and South American
countries; at the same time, Chiquita s operations are a
significant factor in the economies of many of these countries.
These activities are subject to risks that are inherent in
operating in these countries, including government regulation,
currency restrictions and other restraints, risks of
expropriation and burdensome taxes. There is also a risk that
legal or regulatory requirements will be changed or that
administrative policies will change. Certain of these activities
are substantially dependent upon leases and other agreements with
the governments of these countries.
Chiquita leases all the agricultural land it uses in Panama
from the Republic of Panama under lease and operating agreements
which automatically renew each year unless canceled by either
party on four years' prior notice. In the event of termination
of the agreements, the government of Panama, which previously
purchased such agricultural lands from the Company, has the right
to purchase other Panamanian assets of Chiquita at specified
values which approximate carrying value but may be less than
market value.
<PAGE>
Certain facilities in Honduras previously owned by Chiquita
were transferred in prior years to the government of Honduras
with provision for their subsequent use by the Company. Such
facilities include a railroad which the Company operates under a
lease with the government of Honduras which expires on December
31, 1998.
-6-
The Company's worldwide operations and products are subject to
numerous governmental regulations and inspections by
environmental, food safety and health authorities. These
regulations directly affect day-to-day operations. 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.
The Company's operations are conducted in many areas of the
world and involve transactions in a variety of currencies.
Results of its operations may be significantly affected by
fluctuations of currency exchange rates. Such fluctuations
affect Chiquita s banana operations because many of its costs are
incurred in currencies different from those that are received
from the sale of bananas in non-U.S. markets, and there is
normally a time lag between the incurrence of such costs and
collection of the related sales proceeds. The Company's policy
is to exchange local currencies for dollars immediately upon
receipt, thus reducing exchange risk. The Company also engages
from time to time in various hedging activities to further reduce
potential losses on cash flows originating in currencies other
than the U.S. dollar. See Notes 1 and 7 to the Consolidated
Financial Statements and "Management's Analysis of Operations and
Financial Condition" included in the Company's 1996 Annual Report
to Shareholders for information with respect to currency
exchange.
LABOR RELATIONS
---------------
The Company employs approximately 36,000 associates.
Approximately 32,000 of these associates are employed in Central
and South America, including 23,000 workers covered by 76 labor
contracts. Contracts covering approximately 11,000 employees
expire in 1997, including two contracts which expire in June
covering 4,700 employees at the Company s banana operations in
Honduras and 4,500 employees at one of the Company s banana
producing divisions in Panama. Strikes or other labor-related
actions are sometimes encountered upon expiration of labor
contracts or during the term of the contracts.
<PAGE>
ITEM 2 - PROPERTIES
- -------------------
The Company owns approximately 90,000 acres and leases
approximately 40,000 acres of improved land, principally in Costa
Rica, Panama and Honduras. Nearly all of this land is used for
the cultivation of bananas and support activities, including the
maintenance of floodways. The Company also owns power plants,
packing stations, warehouses, irrigation systems and loading and
unloading facilities used in connection with its operations.
The Company owns or controls under long-term bareboat charters
16 ocean-going refrigerated vessels and has 9 additional such
vessels under time charters, primarily for transporting tropical
fruit sold by Chiquita. From time to time, excess capacity may
be chartered or subchartered to other shippers. In addition, the
Company enters into spot charters and contracts of affreightment
as necessary to supplement its transportation resources.
Chiquita also owns or leases other related equipment, including
refrigerated container units, used to transport fresh food. The
owned ships are pledged as collateral for related financings.
-7-
Properties used by the Company's processed foods operations
include processing facilities in Costa Rica and Honduras, and
vegetable canning facilities in Wisconsin. Other operating units
of the Company own, lease and operate properties, principally in
the United States, Europe, and Central and South America. The
Company leases the space for its headquarters in Cincinnati,
Ohio.
For further information with respect to the Company's physical
properties, see the descriptions under ITEM 1 - BUSINESS -
GENERAL above, and Notes 4 and 5 to the Consolidated Financial
Statements included in the Company's 1996 Annual Report to
Shareholders.
ITEM 3 - LEGAL PROCEEDINGS
- --------------------------
A number of legal actions are pending against the Company,
including those described below. Although some of these cases,
including the DBCP cases described below, are in very preliminary
stages, based on information currently available to it and advice
of counsel, management does not believe such litigation will,
individually or in the aggregate, have a material adverse effect
on the financial statements of the Company.
Several suits are pending in different jurisdictions against
the manufacturers of an agricultural chemical called DBCP and
against the Company and other banana producing companies which
used DBCP primarily in the 1970's. Most of the plaintiffs are
foreign citizens who claim to have been employees of banana
companies and allege sterility and other injuries as a result of
<PAGE>
exposure to DBCP. Plaintiffs' alleged damage claims have yet to
be quantified.
Several of these lawsuits were filed in Texas state court in
1993. These cases originally represented claims on behalf of
approximately 25,000 individuals, of whom approximately 4,000
purported to have claims against the Company. In 1995, all but
one of the cases involving Chiquita were removed to the U.S.
District Court for the Southern District of Texas and dismissed
on the grounds that courts in the plaintiffs' home countries
(limited to Costa Rica, Panama and the Philippines in the case of
suits involving the Company) were more appropriate forums for
pursuing their claims. The plaintiffs, which include
approximately 3,650 alleging claims against Chiquita, have
appealed these dismissals to the U.S. Court of Appeals for the
Fifth Circuit. In February 1997, the other case involving
Chiquita was removed to the U.S. District Court in the Southern
District of Texas where the defendants have moved to dismiss on
the same grounds. This case, Narciso Borja, et al. v. Dow
Chemical Company, et al. (District Court of Dallas County),
involves approximately 2,000 plaintiffs, including approximately
350 who claim that the Company has liability for their alleged
injuries.
A similar suit was filed in 1995 in Louisiana state court by
approximately 4,000 plaintiffs. The Company does not have
information concerning how many of these plaintiffs allege that
Chiquita has liability for their injuries, but the same
manufacturer and banana producer defendants have been named in
this suit. This case, Lucas Pastor Canales Martinez, et al. v.
Dow Chemical Company, et al., was removed to U.S. District Court
for the Eastern District of Louisiana and then remanded to
Louisiana state court, where various procedural issues are being
addressed.
Five additional lawsuits, each involving one plaintiff, were
filed in 1996 in Mississippi state court against the same
manufacturer and banana producer defendants. Each case was
removed to the United States District Court for the Southern
District of Mississippi, Southern Division, where the defendants
-8-
motions to dismiss on grounds of lack of personal jurisdiction
and plaintiffs motions to remand the cases to state court are
pending.
As a result of the dismissals of the Texas suits described
above, similar suits against the Company and its subsidiaries
have been filed in Costa Rica, Panama and the Philippines (in
addition to previously filed actions in Costa Rica and Panama).
Cases involving approximately 4,000 plaintiffs who purport to
have claims against the Company are currently pending in those
countries.
<PAGE>
The Company believes it has a number of meritorious defenses
in all of the foregoing DBCP cases, including that at all times
when it used DBCP commercially, the product was registered for
use by the United States Environmental Protection Agency. In
addition, the Company ceased using the product on a commercial
basis in 1977, promptly after learning that health hazards might
exist.
In 1993, Great White Fleet Ltd., the Company's shipping
subsidiary ("GWF"), redelivered three cargo ships to RSG Reefer
Services GmbH ("RSG") in reliance on the force majeure provisions
of the applicable contract of affreightment with RSG due to the
imposition of the EU banana quota and licensing regime. In 1994,
RSG commenced an arbitration proceeding in London, England
disputing the occurrence of a force majeure event and seeking
damages from GWF of approximately $20 million. In December 1996,
the arbitrators awarded RSG $9.75 million, which was provided for
in the Company s 1996 results.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- -------------------------------------------------------------
Not applicable.
-9-
EXECUTIVE OFFICERS OF THE REGISTRANT
- ------------------------------------
Carl H. Lindner (age 77) - Mr. Lindner has been Chairman of
the Board of Directors and Chief Executive Officer of the Company
since 1984. He is also Chairman of the Board and Chief Executive
Officer of American Financial Group, Inc. ("AFG"), a holding
company formed in April 1995 which, through its subsidiaries, is
engaged primarily in specialty and multi-line property and
casualty insurance businesses and in the sale of tax-deferred
annuities. For over 35 years, Mr. Lindner has been Chairman of
the Board and Chief Executive Officer of American Financial
Corporation, which became an AFG subsidiary in 1995.
Keith E. Lindner (age 37) - Mr. Lindner was named Vice
Chairman of the Board of Directors in March 1997. From 1989 to
March 1997, he was President and Chief Operating Officer of the
Company and has served the Company in various executive
capacities since 1984. Mr. Lindner is also a Co-President and a
Director of AFG.
Steven G. Warshaw (age 43) - In March 1997, Mr. Warshaw was
appointed President and Chief Operating Officer of the Company
and retained his position as Chief Financial Officer. From 1990
to March 1997, he was the Company's Executive Vice President and
Chief Administrative Officer and has been the Chief Financial
Officer of the Company since 1994. Mr. Warshaw has served the
Company in various capacities since 1986.
<PAGE>
Robert F. Kistinger (age 44) - Mr. Kistinger was named
President of the Company's Chiquita Banana Group in March 1997
and assumed the responsibilities of President of Chiquita Banana
Group - North America in August 1996. From 1994 to March 1997,
he was Senior Executive Vice President of the Chiquita Banana
Group. He was Executive Vice President, Operations for the
Company's Chiquita Tropical Products Division from 1989 to 1994
and has served the Company in various capacities since 1980.
Robert W. Olson (age 51) - Mr. Olson was named Senior Vice
President, General Counsel and Secretary of the Company in
September 1996. From 1995 to September 1996, he was the
Company s Vice President, General Counsel and Secretary. From
1987 to 1995, he served as Senior Vice President, General Counsel
and Secretary of American Premier Underwriters, Inc. (formerly
named The Penn Central Corporation), an affiliate of AFG. He was
Senior Vice President and Secretary of AFG from April 1995 until
he joined the Company.
Jos P. Stalenhoef (age 55) - Mr. Stalenhoef was named Chief
Transformation Officer - North America of the Company s Chiquita
Banana Group in August 1996. From 1994 to August 1996, he served
as President of the Company s Chiquita Banana-North America
Division. He was Senior Vice President, North America, Chiquita
Tropical Products Division from 1989 to 1994 and has served the
Company in various capacities since 1988.
William A. Tsacalis (age 53) - Mr. Tsacalis has been Vice
President and Controller of the Company since 1987. He was
Controller from 1984 to 1987 and has served the Company in
various capacities since 1980.
-10-
PART II
--------
ITEM 5 -MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
- -----------------------------------------------------------
The number of shareholders at February 28, 1997 and the
markets for the Company's capital stock are included on page 52
of the Company's 1996 Annual Report to Shareholders under
"Investor Information." Price ranges of the Company's capital
stock and dividends declared thereon are included in Note 14 to
the Consolidated Financial Statements included in the 1996 Annual
Report to Shareholders. Restrictions on the Company's ability to
declare and pay dividends are described in Note 6 to the
Consolidated Financial Statements included in the 1996 Annual
Report to Shareholders. All such information is incorporated
herein by reference.
<PAGE>
ITEM 6 -SELECTED FINANCIAL DATA
- ---------------------------------
This information is included in the table entitled "Selected
Financial Data" on page 26 of the Company's 1996 Annual Report to
Shareholders and is incorporated herein by reference.
ITEM 7 -MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
- -----------------------------------------------------------
This information is included under the caption "Management's
Analysis of Operations and Financial Condition" included on pages
27 through 30 of the Company's 1996 Annual Report to Shareholders
and is incorporated herein by reference.
ITEM 8 -FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
- -----------------------------------------------------
The Consolidated Financial Statements of Chiquita Brands
International, Inc. and its subsidiaries included on pages 31
through 50 of the Company's 1996 Annual Report to Shareholders,
and "Quarterly Financial Data" which is included in Note 14 to
such Consolidated Financial Statements, are incorporated herein
by reference.
ITEM 9 -CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
- ----------------------------------------------------------
None.
-11-
PART III
---------
Except for information relating to the Company's executive
officers included in Part I of this report, the information
required by the following Items will be included in Chiquita's
definitive Proxy Statement which will be filed with the
Securities and Exchange Commission in connection with the 1997
Annual Meeting of Shareholders and is incorporated herein by
reference.
ITEM 10 -DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
- --------------------------------------------------------------
ITEM 11 -EXECUTIVE COMPENSATION
- ----------------------------------
ITEM 12 -SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
- -----------------------------------------------------------
ITEM 13 -CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- ----------------------------------------------------------
<PAGE>
PART IV
-------
ITEM 14 -EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND
REPORTS ON FORM 8-K
- --------------------------------------------------------
(a) 1.Financial Statements. The following consolidated
financial statements of the Company and the Report of
Independent Auditors are included in the Company's 1996
Annual Report to Shareholders and are incorporated by
reference in Part II, Item 8:
Page of
Annual Report
Report of Independent Auditors 25
Consolidated Statement of Income for 1996,
1995 and 1994 31
Consolidated Balance Sheet at December 31,
1996 and 1995 32
Consolidated Statement of Shareholders' Equity
for 1996, 1995 and 1994 33
Consolidated Statement of Cash Flow for 1996,
1995 and 1994 34
Notes to Consolidated Financial Statements 35
2. Financial Statement Schedule. Financial Statement
Schedule II - Allowance for Doubtful Accounts Receivable is
included on page 16 of this Annual Report on Form 10-K. All
other schedules are not required under the related
instructions or are inapplicable.
-12-
<PAGE>
3. Exhibits. See Index of Exhibits (page 18) for a
listing of all exhibits filed with this Annual Report
on Form 10-K.
(b) There were no reports on Form 8-K filed by the Company
during the quarter ended December 31, 1996.
-13-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized on March 28, 1997.
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 Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the Registrant and in the capacities indicated below
on March 28, 1997:
/s/ Carl H. Lindner Chairman of the Board and
Carl H. Lindner Chief Executive Officer
/s/ Keith E. Lindner Vice Chairman of the Board
Keith E. Lindner
/s/ Steven G. Warshaw Director, President,
Steven G. Warshaw Chief Operating Officer and
Chief Financial Officer
/s/ Fred J. Runk Director
Fred J. Runk
Jean H. Sisco* Director
Jean H. Sisco
William W. Verity* Director
William W. Verity
-14-
Oliver W. Waddell* Director
Oliver W. Waddell
/s/ Ronald F. Walker Director
Ronald F. Walker
/s/ William A. Tsacalis Vice President and Controller
William A. Tsacalis (Chief Accounting Officer)
* By /s/ William A. Tsacalis
Attorney-in-Fact**
- --------------------------------
** By authority of powers of attorney filed with this Annual
Report on Form 10-K.
-15-
<PAGE>
<TABLE>
<CAPTION>
CHIQUITA BRANDS INTERNATIONAL, INC. AND SUBSIDIARY COMPANIES
SCHEDULE II - ALLOWANCE FOR DOUBTFUL ACCOUNTS RECEIVABLE
(In thousands)
Year Ended December 31,
1996 1995 1994
-------- -------- --------
<S> <C> <C> <C>
Balance at beginning of period $11,310 $13,060 $12,393
-------- -------- --------
Additions:
Charged to costs and expenses 3,685 4,303 6,966
-------- -------- --------
Deductions:
Write-offs 4,268 5,703 6,330
Other, net 895 350 (31)
-------- -------- --------
5,163 6,053 6,299
-------- -------- --------
Balance at end of period $9,832 $11,310 $13,060
======== ======== ========
</TABLE>
-16-
<PAGE>
(This page left blank intentionally.)
-17-
<PAGE>
CHIQUITA BRANDS INTERNATIONAL, INC.
Index of Exhibits
Exhibit
Number Description
- -------- --------------------------
*3-a Second Restated Certificate of Incorporation, filed as
Exhibit 3(a) to Quarterly Report on Form 10-Q for the
quarter ended June 30, 1994, as amended by the
Certificate of Amendment establishing the terms of the
Series B Preferred Stock, filed as Exhibit 3(a) to
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996
*3-b By-Laws, filed as Exhibit 3-b to Annual Report on Form
10-K for the year ended December 31, 1992
*4 Indenture dated as of February 15, 1994 between the
Company and The Fifth Third Bank, Trustee, with respect
to Senior Debt Securities, under which the Company s 9
1/8% Senior Notes due 2004 and the Company s 10 1/4%
Senior Notes due 2006 have been issued (incorporated by
reference to Exhibit 4(c) of Registration Statement
333-00789), as supplemented by the First Supplemental
Indenture dated as of June 15, 1994 (incorporated by
reference to Exhibit 6(a)99(c) to Quarterly Report on
Form 10-Q for the quarter ended June 30, 1994) and by
the Second Supplemental Indenture dated as of July 15,
1996 (incorporated by reference to Exhibit 4 to
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996); and as further supplemented by the
Certificate of the Vice President and Controller of the
Company establishing the terms of the 9 1/8% Senior
Notes (incorporated by reference to Exhibit 7(c)(3) to
Current Report on Form 8-K dated February 8, 1994) and
by the Terms of 10 1/4% Senior Notes approved by the
Executive Committee of the Board of Directors of the
Company (incorporated by reference to Exhibit 7(c)99.6
to Current Report on Form 8-K dated July 22, 1996)
*10-a Lease of Lands and Operating Contract between United
Brands Company, Chiriqui Land Company, Compania
Procesadora de Frutas and the Republic of Panama, dated
January 8, 1976, effective January 1, 1976, filed as
Exhibit 10-a to Annual Report on Form 10-K for the year
ended December 31, 1993
*10-b Agreement dated January 11, 1996 effective January 1,
1996 between Tela Railroad Company and the Honduran
National Railroad, filed as Exhibit 10-b to Annual
Report on Form 10-K for the year ended December 31,
1995
*10-c Stock Purchase Agreement dated December 20, 1995
between Smithfield Foods, Inc. ("Smithfield") and the Company
filed as Exhibit 7.1 to Schedule 13D dated December 20,
1995 filed by the Company and certain other persons
with respect to Smithfield common stock
<PAGE>
10-d Credit Agreement dated December 31, 1996 among Chiquita
Brands International, Inc., The First National Bank of
Boston, as administrative agent, and the financial
institutions which are lenders thereunder relating to
the Company s $125 million revolving credit facility
Executive Compensation Plans
----------------------------
10-e 1986 Stock Option and Incentive Plan, as amended
*10-f Individual Stock Option Plan and Agreement, filed as
Exhibit 4 to Registration Statement on Form S-8 No.
33-25950 dated December 7, 1988
*10-g Amended and Restated Deferred Compensation Plan, filed
as Exhibit 10-f to Annual Report on Form 10-K for the
year ended December 31, 1995
-18-
10-h Deferred Compensation Plan for Board of Directors of
Chiquita Brands International, Inc. dated January 1,
1997
11 Computation of Earnings Per Common Share
12 Computation of Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred Stock
Dividends
13 Chiquita Brands International, Inc. 1996 Annual Report
to Shareholders (pages 25 through 50 and page 52)
21 Subsidiaries of Registrant
23 Consent of Independent Auditors
24 Powers of Attorney
27 Financial Data Schedule
99 Annual Report on Form 11-K for the Chiquita Savings and
Investment Plan for 1996 will be filed by amendment on
or before June 29, 1997.
- -----------------------------------
* Incorporated by reference.
-19-
<PAGE>
EXHIBIT 10-D
CREDIT AGREEMENT
dated as of December 31, 1996
Among
CHIQUITA BRANDS INTERNATIONAL, INC.
as the Borrower
VARIOUS FINANCIAL INSTITUTIONS
NOW OR HEREAFTER PARTIES HERETO,
as the Lenders
THE FIRST NATIONAL BANK OF BOSTON,
as the Administrative Agent
and
THE FIRST NATIONAL BANK OF BOSTON
ING BANK N.V., GRONINGEN BRANCH
and
PNC BANK, OHIO, NATIONAL ASSOCIATION,
as Co-agents
<PAGE>
TABLE OF CONTENTS
I. DEFINITIONS
1.1. Defined Terms
1.2. Use of Defined Terms
1.3. Cross-References
1.4. Accounting and Financial Determinations
1.5. General Provisions Relating to Definitions
II. COMMITMENTS
2.1. Commitments
2.2. Commitment Amount
2.3. Commitments Several
III. REVOLVING LOANS AND NOTES
3.1. Borrowing Procedure
3.1.1. Requests for Borrowing
3.1.2. Funding Reliance for Revolving Loans
3.2. Notes
3.3. Principal Payments
3.3.1. Repayments
3.3.2. Revolving Loan Prepayments
3.4. Interest Payments
3.4.1. Interest Rates
3.4.2. Interest on Overdue Amounts
3.4.3. Payment Dates
3.5. Fees
3.5.1. Closing Fees
3.5.2. Commitment Fees
3.5.3. Agents' Fees
3.6. Making and Proration of Payments; Computations;
etc.
3.6.1. Making of Payments
3.6.2. Setoff
3.6.3. Proration of Payments
3.6.4. Due Date Extension
3.6.5. Notice of Changes in Alternate Base Rate;
Notice of Eurodollar Rates
3.6.6. Computations
3.6.7. Record keeping
3.7. Taxes
3.8. Use of Proceeds
IV. FUNDING OPTIONS
4.1. Pricing Tranches of Each Revolving Loan
4.2. Conversion Procedures
4.3. Continuation Procedures
4.4. Limitations on Interest Periods and Continuation
and Conversion Elections
<PAGE>
4.4.1. Interest Periods
4.4.2. No Defaults
4.4.3. Other Limitations
4.5. Increased Costs
4.6. Interest Rate Unavailable
4.7. Changes in Law Rendering Eurodollar Tranches
Unlawful
4.8. Funding Losses
4.9. Right of Lenders to Fund Through Other Offices
4.10. Discretion of Lenders as to Manner of Funding
4.11. Conclusiveness of Statements; Survival of
Provisions
V. LETTERS OF CREDIT
5.1. Requests for Letters of Credit
5.2. Issuances and Extensions
5.3. Fees and Expenses
5.4. Other Lenders' Participations
5.5. Disbursements
5.6. Reimbursement
5.7. Deemed Disbursements
5.8. Nature of Reimbursement Obligations
5.9. Indemnity
VI. GUARANTY
6.1. Guaranty of Payment
6.2. Guaranty Absolute
6.3. Reinstatement, etc.
6.4. Waiver
VII. CONDITIONS TO CREDIT EXTENSIONS
7.1. Conditions to Making First Credit Extensions
7.1.1. Execution and Delivery of this Agreement and
Notes.
7.1.2. Loan Documents
7.1.3. First Credit Extension Date Certificate
7.1.4. Resolutions, etc.
7.1.5. Certificates of Good Standing
7.1.6. Opinions of Counsel
7.1.7. Financial Statements, etc.
7.1.8. Fees and Expenses
7.2. All Credit Extensions
7.2.1. Compliance with Warranties; No Default; etc.
7.2.2. Credit Request
7.2.3. Legality of Transactions
7.2.4. Satisfactory Legal Form, etc.
VIII. WARRANTIES, ETC.
8.1. Organization, etc.
8.2. Power, Authority
8.3. Validity, etc.
<PAGE>
8.4. Financial Information
8.5. Certain Indebtedness for Borrowed Money;
Absence of Defaults
8.6. Litigation, etc.
8.7. Regulations G, U and X
8.8. Government Regulation
8.9. Taxes
8.10. Compliance with ERISA
8.11. Ownership of Properties; Liens
8.12. Environmental Matters
8.13. Compliance with Applicable Laws
8.14. Ownership of CBI, etc.
8.15. Change of Control Triggering Events
IX. COVENANTS
9.1. Certain Affirmative Covenants
9.1.1. Financial Information, etc.
9.1.2. Maintenance of Corporate Existence, etc.
9.1.3. Foreign Qualification
9.1.4. Payment of Taxes, etc.
9.1.5. Notice of Default, etc.
9.1.6. Books and Records
9.1.7. Indebtedness to Subsidiaries; Compliance
with Applicable Laws, etc.
9.2. Certain Negative Covenants
9.2.1. Indebtedness for Borrowed Money
9.2.2. Liens
9.2.3. Financial Covenants
9.2.4. Restricted Payments
9.2.5. Mergers; Sales of Property
9.2.6. Acquisitions
9.2.7. Consolidated Capital Expenditures
9.2.8. Transactions with Affiliates
9.2.9. Change of Control Triggering Event
X. EVENTS OF DEFAULT
10.1. Events of Default
10.1.1. Non-Payment of Obligations
10.1.2. Non-Performance of Certain Obligations
10.1.3. Non-Performance of Other Obligations
10.1.4. Breach of Warranty
10.1.5. Default Under Other Instruments
10.1.6. Bankruptcy, Insolvency, etc.
10.1.7. Judgments
10.1.8. Impairment of Loan Document, etc.
10.1.9. Change of Control Triggering Event
10.2. Action if Bankruptcy
10.3. Action if Other Event of Default
XI. THE AGENTS
11.1. Actions
<PAGE>
11.2. Exculpation
11.3. Successor
11.4. Loan Documents, etc.
11.5. Revolving Loans by Agents
11.6. Credit Decisions
11.7. Notices, etc., to the Administrative Agent
XII. ADDITIONAL LENDERS AND PARTICIPANTS
12.1. Participations by Lenders
12.1.1. Participations
12.1.2. Participant's Rights of Set-off in Certain
Cases
12.1.3. Rights of Participants
12.2. Assignments by Lenders
12.2.1. Assignments
12.2.2. Effect of Assignment and Acceptance Agreement
12.2.3. Delivery of New Notes By Borrower Following
Assignments
12.2.4. Administrative Agent's Maintenance of Register
12.2.5. Actions of Administrative Agent; Fees
12.2.6. Assigning Lender, Purchasing Lender and Other
Parties; Confirmations and Agreements
12.3. Disclosure of Information
12.4. Assistance
12.5. Federal Reserve Bank
XIII. MISCELLANEOUS
13.1. Waivers, Amendments, etc.
13.2. Notices
13.3. Costs and Expenses
13.4. Indemnification
13.5. Survival
13.6. Severability
13.7. Headings
13.8. Counterparts; Entire Agreement
13.9. Choice of Law
13.10. Service of Process
13.11. Successors and Assigns
13.12. Other Transactions; Consent to Relationships
13.13. Further Assurances
13.14. Confidentiality
13.15. Waiver of Jury Trial
LIST OF SCHEDULES
SCHEDULE I - AGENTS AND LENDERS
SCHEDULE II - DISCLOSURE SCHEDULE
<PAGE>
LIST OF EXHIBITS
EXHIBIT A - FORM OF NOTE
EXHIBIT B - FORM OF LOAN REQUEST
EXHIBIT C - FORM OF ISSUANCE REQUEST
EXHIBIT D - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT E - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT F - FORM OF INTERCOMPANY SUBORDINATION AGREEMENT
EXHIBIT G - FORM OF FIRST CREDIT EXTENSION DATE CERTIFICATE
EXHIBIT H - FORM OF LEGAL OPINION OF BORROWER'S GENERAL
COUNSEL
EXHIBIT I - FORM OF LEGAL OPINION OF BINGHAM DANA & GOULD
LLP
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of December 31, 1996, among (i)
CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation
("Borrower"), (ii) the financial institutions which are now,
or in accordance with Section 12.2 hereafter become, parties
hereto (collectively, "Lenders"), (iii) THE FIRST NATIONAL
BANK OF BOSTON ("Bank of Boston"), as Administrative Agent for
the Lenders, and (iv) BANK OF BOSTON, ING BANK N.V., GRONINGEN
BRANCH, and PNC BANK, OHIO, NATIONAL ASSOCIATION, as Co-agents
for the Lenders.
RECITALS
The Borrower has requested the Lenders to make a revolving
credit facility available to the Borrower and, upon the terms
of the facility, to make revolving loans to the Borrower and
to issue letters of credit for the account of the Borrower and
its Subsidiaries. The proceeds of the revolving loans are to
be used by the Borrower for general corporate purposes and for
the other purposes described in and permitted by Section 3.8,
and the letters of credit are to be issued from time to time
to support obligations incurred by the Borrower, its
Subsidiaries and Affiliates. The Lenders are willing to make
the revolving credit facility available to the Borrower and to
make revolving loans to the Borrower and to issue letters of
credit for the account of the Borrower and its Subsidiaries
thereunder, all upon the terms and subject to the conditions
contained herein. Accordingly, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. The following terms, when used
in this Agreement, including the introductory paragraph and
Recitals above, shall, except where the context otherwise
requires, have the following meanings:
"Acquisition" means any transaction, or any series of related
transactions, in which the Borrower or any of its Subsidiaries
(a) acquires any business or all or substantially all of the
Property of any Person or any division or business unit
thereof, whether through purchase of assets, merger or
otherwise, or (b) directly or indirectly acquires control of
at least a majority (in number of votes) of the Securities of
any corporation, partnership or other Person having ordinary
voting power for the election of directors or managers of such
corporation, partnership or other Person. For purposes of
this Agreement, the term "Acquisition" shall not in any event
include any purchase by the Borrower or any of its
Subsidiaries of any Property the value or cost of which, in
accordance with GAAP, is required to be (or is permitted to
be, and such Person so elects) treated as a capital
expenditure.
<PAGE>
"Administrative Agent" means:(a)Bank of Boston, acting in its
capacity as administrative agent for the Lenders hereunder and
under the other Loan Documents; or(b)such other Lender or
financial institution as shall have subsequently been
appointed as the successor Administrative Agent under the Loan
Documents pursuant to Section 11.3.
"Affected Tranche" is defined in Section 4.7.
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls or is controlled by or is
under common control with such Person. For purposes of this
definition, (a) control of a Person shall mean the power,
whether direct or indirect, to direct or cause the direction
of the management and policies of such Person, whether by
contract or otherwise, and (b) for purposes of determining
whether any Person is an Affiliate of the Borrower or any of
its Subsidiaries, the determination of control shall be made
by the Borrower on a reasonable basis. For purposes of this
Agreement and the other Loan Documents, (a) none of the
Subsidiaries of the Borrower shall be or be deemed to be
Affiliates of the Borrower or of any other Subsidiaries of the
Borrower, and (b) none of the Lenders or the Agents shall be
or be deemed to be Affiliates of the Borrower or of its
Subsidiaries.
"Affiliate Transaction" means any of the following
transactions or arrangements:
(a) the making by the Borrower or by any of its Subsidiaries
of any payment or prepayment (whether of principal, premium,
interest or any other sum) of or on account of, or any payment
or other distribution by the Borrower or by any of its
Subsidiaries on account of the redemption, repurchase,
defeasance or other acquisition for value of, any Indebtedness
of any kind whatsoever(i) of any Affiliate of the Borrower, or
(ii) of the Borrower or any of its Subsidiaries to any
Affiliate of the Borrower;(b) the making of any loans,
advances or other Investments of any kind whatsoever by the
Borrower or by any of its Subsidiaries to or in any Affiliate
of the Borrower or to or in any holder of Indebtedness
described in clause (a) of this definition; (c) the Sale by
the Borrower or by any of its Subsidiaries of all or any part
of its Property to, or for the direct or indirect benefit of,
any Affiliate, of the Borrower; (d) the incurrence by the
Borrower or by any of its Subsidiaries of any Indebtedness of
the Borrower or any of its Subsidiaries to any Affiliate of
the Borrower; (e) the declaration or payment by the Borrower
or by any of its Subsidiaries of any dividends or other
distributions on account of, or the making by the Borrower or
by any of its Subsidiaries of any payment or other
distribution on account of the purchase, repurchase,
redemption or other acquisition for value of, any shares of
Capital Stock of any Affiliate of the Borrower; or (f) any
other transaction or Contractual Obligation between any
<PAGE>
Affiliate of the Borrower and the Borrower or between any
Affiliate of the Borrower and any Subsidiary of the Borrower.
"Agents" means, collectively, the Administrative Agent and the
Co-agents.
"Agents' Fees" is defined in Section 3.5.3.
"Agents' Fee Letter" means the Fee Letter, dated as of October
30, 1996, between the Borrower and the Administrative Agent.
"Agreement" means this Credit Agreement.
"Alternate Base Rate" means, at any time, the greater of (a)
the Federal Funds Rate, plus one-half of one percent (.5%),
and (b) the Bank of Boston Base Rate.
"Alternate Base Rate Margin" means, for any Base Rate Tranche
at any date, the rate per annum determined in accordance with
the table set forth below based upon the Status on such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
0.0000% 0.0000% 0.0000% 05000% 1.0000%
"Applicable Commitment Fee Rate" means, for any Unused
Commitment Amount at any date, the rate per annum determined
in accordance with the table set forth below based upon the
Status on such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
0.2500% 0.2500% 0.3750% 0.5000% 0.50000%
"Applicable Law" means and includes statutes and rules and
regulations thereunder, and orders, directives, instructions
and notices of any Governmental Authority.
"Approval" means, relative to the Borrower, each approval,
consent, filing or registration by or with any Governmental
Authority or any creditor or shareholder of the Borrower
necessary to authorize or permit the execution, delivery or
performance by the Borrower of this Agreement or any of the
other Loan Documents to which it is a party or the validity or
enforceability of any of such Loan Documents against the
Borrower.
"Assigning Lender" is defined in Section 12.2.1.
"Assignment" is defined in Section 12.2.1.
"Assignment and Acceptance Agreement" is defined in Section
12.2.1.
<PAGE>
"Authorized Officers" is defined in Section 7.1.4(a).
"Bank of Boston" is defined in the introductory paragraph
hereto.
"Bank of Boston Base Rate" means the rate of interest
announced from time to time by Bank of Boston at its Domestic
Office as its "base rate".
"Bankruptcy Code" means Title 11 of the United States Code.
"Bankruptcy or Insolvency Proceeding" means, with respect to
any Person, any insolvency or bankruptcy proceeding, or any
receivership, liquidation, reorganization or other similar
proceeding in connection therewith, relative to such Person or
its creditors, as such, or to its Property.
"Base Rate Tranche" means any Tranche bearing interest at a
fluctuating rate determined by reference to the Alternate Base
Rate. "Board of Directors" means the board of directors of
the Borrower or any duly authorized committee of that board or
any director or directors and/or officer or officers of the
Borrower to whom that board or committee shall have duly
delegated its authority with respect to a particular matter.
"Board Resolution" means (a) a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Borrower to
have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, or
(b) a certificate signed by the director or directors or
officer or officers to whom the board of directors of the
Borrower shall have duly delegated its authority, and
delivered to the Administrative Agent.
"Borrower" is defined in the introductory paragraph hereto.
"Borrowing" means any Credit Extension under Section 3.1
consisting of simultaneous Revolving Loans made by Lenders to
the Borrower on a single Drawdown Date.
"Business Day" means a day on which banks are open for
business in Boston, Massachusetts, New York City, New York,
and Cincinnati, Ohio.
"Capitalized Lease Obligations" means, with respect to any
Person, all monetary obligations of such Person under any
leasing or other similar arrangement which in accordance with
GAAP is required to be classified on the balance sheet of such
Person as a capitalized lease.
"Capital Stock" means any shares, interests, participations or
other equivalents (howsoever designated) of corporate capital
stock or any options, warrants or other rights to subscribe
for, or to purchase, or to convert any Property into, or to
<PAGE>
exchange any Property for, any such corporate capital stock,
options, warrants or other rights. For purposes of this
Agreement, the term "Capital Stock" shall not in any event
include any bonds, debentures, notes or other evidences of
Indebtedness for Borrowed Money that are convertible into any
such corporate capital stock.
"CBI" means Chiquita Brands, Inc., a Delaware corporation and
a wholly-owned Subsidiary of the Borrower.
"Change of Control Triggering Event" means any event or series
of events by which (a) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than the
Permitted Lindner Holders shall become the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial
ownership" of all shares that any such Person has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more
than 30% of the total voting power of all Voting Shares of the
Borrower then outstanding provided that the Permitted Lindner
Holders "beneficially own" (as so defined) a lesser percentage
of the Voting Shares than such other Person and do not have
the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of
Directors of the Borrower; (b) the Borrower consolidates with
or merges into another corporation or conveys, transfers or
leases all or substantially all of its assets to any Person,
or any corporation consolidates with or merges into the
Borrower, in either event, pursuant to a transaction in which
or as a result of which the outstanding Voting Shares of the
Borrower are changed into or exchanged for cash, Securities or
other Property, other than any such transaction between the
Borrower and a wholly-owned Subsidiary of the Borrower; (c)
the Borrower or any Subsidiary of the Borrower purchases or
otherwise acquires, directly or indirectly, beneficial
ownership of 30% or more of the Borrower's Capital Stock
within any 12-month period; (d) during any period of two
consecutive years, individuals who at the beginning of such
period constituted the Borrower's Board of Directors (together
with any new directors whose election by the Borrower's Board
of Directors or whose nomination for election by the
Borrower's shareholders was approved by a vote of 66-2/3% of
the directors then still in office who were either directors
at the beginning of such period or whose election or
nomination for election was previously so approved) cease for
any reason to constitute a majority of the directors then in
office; (e) on any day (a "Calculation Date") the Borrower
shall make any distribution or distributions of cash, Property
or Securities (other than regular quarterly dividends, Common
Stock, preferred stock which is substantially equivalent to
Common Stock or rights to acquire such stock) to holders of
Capital Stock of the Borrower or purchases or otherwise
acquires Capital Stock of the Borrower and the sum of the Fair
<PAGE>
Market Value of such distribution or purchase, plus the Fair
Market Value of all other such distributions and purchases
which have occurred during the prior year, exceeds 30% of the
Fair Market Value of the Borrower's outstanding Common Stock;
or (f) the Borrower shall cease to own and control, both
legally and beneficially, and whether directly or indirectly,
with full power to vote, one hundred percent (100%) of the
issued and outstanding shares of CBI of every class. The
percentage referred in clause (e) above is calculated on each
Calculation Date by determining the percentage of the Fair
Market Value of the Borrower's outstanding Common Stock as of
such Calculation Date which is represented by the Fair Market
Value of the distributions and purchases which have occurred
on such date and adding to that percentage all of the
percentages which have been similarly calculated on the dates
of all such distributions and purchases during the prior year.
"Closing Fees" is defined in Section 3.5.1.
"Co-agents" means, collectively, Bank of Boston, ING Bank,
N.V., Groningen Branch, and PNC Bank, Ohio, National
Association, acting as co-agents for the Lenders under this
Agreement and the other Loan
Documents.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, collectively, with respect to each Lender,
such Lender's obligation pursuant to clause (a) of Section 2.1
to make Revolving Loans, and such Lender's obligation pursuant
to clause (b) of Section 2.1 to participate in the issuance of
Letters of Credit.
"Commitment Amount" is defined in Section 2.2.
"Commitment Fees" is defined in Section 3.5.2.
"Commitment Termination Date" means the earliest to occur of:
(a) January 15, 2001; (b) the fifth day after written notice
is given by the Borrower to the Administrative Agent for
purposes of designating a Commitment Termination Date pursuant
to this clause (b), provided that such written notice may only
be given at any time when no Revolving Loans and no Letters of
Credit are outstanding and if no Revolving Loans and no
Letters of Credit have been requested within such five-day
period; and (c) automatically, immediately and without any
further notice or action, the occurrence of any Commitment
Termination Event.
"Commitment Termination Event" means: (a) automatically and
without any notice or further action, as provided by Section
10.2, the occurrence of any Default under Section 10.1.6; or
(b) the occurrence and continuation of any other Event of
<PAGE>
Default and the declaration of all or any portion of the
outstanding principal amount of any Revolving Loans to be due
and payable pursuant to clause (b) of Section 10.3 or, in the
absence of such declaration, a direction from the Required
Lenders to the Administrative Agent to give notice of
termination of all of the Commitments pursuant to clause(a) of
Section 10.3.
"Common Stock" means the common capital stock, par value $.33
per share, of the Borrower.
"Compliance Certificate" means a certificate duly executed by
an Authorized Officer of the Borrower, substantially in the
form of Exhibit D attached hereto (with such changes thereto
as may be agreed upon from time to time by the Administrative
Agent and the Borrower), for purposes of monitoring the
compliance of the Borrower and its Subsidiaries with the Loan
Documents.
"Consolidated Capital Expenditures" means, in relation to any
Person and its Subsidiaries for any fiscal year or fiscal
quarter, all expenditures by such Person and its Subsidiaries
paid or accrued for the lease, purchase, construction or use
of any Property the value or cost of which, in accordance with
GAAP, is required to be capitalized on the consolidated
balance sheet of such Person and its Subsidiaries as of the
end of such fiscal period, including, without limitation, all
amounts paid or accrued by such Person and its Subsidiaries
for such fiscal period with respect to Capitalized Lease
Obligations (excluding the interest component thereof).
"Consolidated EBITDA" means, in relation to the Borrower and
its Subsidiaries for any fiscal year or fiscal quarter, the
sum of (a) the Consolidated Operating Income of the Borrower
and its Subsidiaries for such fiscal period, plus (b) the
amount (if any) set forth opposite the line item "Other
Income, net" on the consolidated statement of income of the
Borrower and its Subsidiaries for such fiscal period, plus (c)
the aggregate amount of all depreciation and amortization
expense of the Borrower and its Subsidiaries for such fiscal
period to the extent, but only to the extent, that such
aggregate amount was deducted in determining Consolidated
Operating Income of the Borrower and its Subsidiaries for such
fiscal period, minus (d) the amount (if any) set forth
opposite the line item "Other Expense, net" on the
consolidated statement of income of the Borrower and its
Subsidiaries for such fiscal period, all as determined and
consolidated in accordance with GAAP. For all purposes of
this Agreement, the "operating income" and related
"depreciation" and "amortization" expense attributable to any
Person or attributable to any Property for any fiscal period
shall be determined in a manner consistent in all relevant
respects with the method used to determine Consolidated
Operating Income and Consolidated EBITDA, but on a
<PAGE>
non-consolidated basis.
"Consolidated Net Interest Expense" means, in relation to the
Borrower and its Subsidiaries for any fiscal year or fiscal
quarter, the sum of (a) the aggregate of the interest expense
on Indebtedness for Borrowed Money of the Borrower and its
Subsidiaries for such fiscal period, plus (b) without
duplication, that portion of capital lease rentals of the
Borrower and its Subsidiaries representative of the interest
factor for such fiscal period, less the aggregate of the
interest income of the Borrower and its Subsidiaries for such
fiscal period, in each case, as determined and consolidated in
accordance with GAAP.
"Consolidated Net Worth" means, in relation to any Person and
its Subsidiaries as at any date, the consolidated
shareholders' equity of such Person and its Subsidiaries as at
such date, as determined and consolidated in accordance with
GAAP.
"Consolidated Operating Income" means, in relation to any
Person and its Subsidiaries for any fiscal year or fiscal
quarter, the amount set forth opposite the line item
"Operating Income" on the consolidated statement of income of
such Person and its Subsidiaries for such fiscal period, all
as determined and consolidated in accordance with GAAP.
"Consolidated Total Indebtedness" means, in relation to any
Person and its Subsidiaries as at any date, all of the
Indebtedness for Borrowed Money of such Person and its
Subsidiaries as at such date, all as determined and
consolidated in accordance with GAAP.
"Contingent Obligation" means, in relation to any Person, any
direct or indirect liability, contingent or otherwise, of that
Person with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation of another if the primary
purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee
of such obligation that such obligation will be paid or
discharged, or that any agreements relating thereto will be
complied with, or that the holders of such obligation will be
protected (in whole or in part) against loss in respect
thereof. Contingent Obligations shall in any event include:
(a) any direct or indirect guaranty, endorsement (otherwise
than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or Sale with
recourse by such Person of the obligation of another; and (b)
any Indebtedness of such Person of the type described in
clause (a) of the definition of the term "Indebtedness". The
amount of any Contingent Obligation shall be equal to the
amount of the obligation so guaranteed or otherwise supported.
"Contractual Obligation" means, in relation to any Person, any
<PAGE>
agreement or obligation under any Security issued by such
Person or under any Instrument or undertaking to which such
Person is a party or by which it or any of its Property is
bound.
"Corporation" means any corporation, limited liability
company, association, joint stock company, business trust or
other similar organization or business enterprise.
"Credit Extension" means and includes (a) the advancing of
Revolving Loans by Lenders pursuant to Article II, and (b) the
issuance or extension by the Issuer of Letters of Credit.
"Credit Request" means any Loan Request or Issuance Request.
"Default" means any Event of Default or any condition or event
which, after notice or lapse of any applicable grace period,
or both, would become an Event of Default.
"Disbursement" means any payment made under any Letter of
Credit by the Issuer thereof to the beneficiary thereunder.
"Disbursement Date" is defined in Section 5.5.
"Disclosure Schedule" means the schedule attached hereto as
Schedule II.
"Disposition Period EBITDA" means, in relation to any Sale of
Property by the Borrower or any of its Subsidiaries, that part
of the Consolidated EBITDA of the Borrower and its
Subsidiaries for the Reference Period ending on or immediately
prior to the date of completion of such Sale that is
attributable to such Property. "Dollars" and the sign "$"
mean lawful money of the United States.
"Domestic Office" means, in relation to any of the Agents or
Lenders, the office thereof designated as such in Schedule I
attached hereto (or designated as such pursuant to an
Assignment and Acceptance Agreement), or such other office of
such Agent or Lender within the United States as may be
designated from time to time by notice from such Agent or
Lender to the Borrower and the Administrative Agent.
"Drawdown Date" means any date (which must be a Business Day)
on which any Credit Extension is made or to be made to the
Borrower pursuant to Section 3.1 or Section 5.2.
"Effective Date" means December 31, 1996, the date as of which
this Agreement was executed and delivered by the Borrower and
(among others) by Bank of Boston, both in its capacity as the
Administrative Agent and also in its capacity as one of the
<PAGE>
Lenders.
"Environmental Laws" means all Applicable Laws relating to
health and safety matters or protection of the environment or
relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance,
material or pollutant, in each case as in effect from time to
time.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. "Eurodollar Office" means, in
relation to any Lender, the office thereof designated as such
by such Lender to the Administrative Agent (or designated as
such pursuant to an Assignment and Acceptance Agreement), or
such other office, whether or not outside the United States,
of such Lender as may be designated from time to time by
notice from such Lender to the Borrower and the Administrative
Agent as the office from which such Lender shall be making or
maintaining Eurodollar Tranches of such Lender hereunder and
through which such Lender, if it is a Reference Lender, shall
determine the Eurodollar Rate.
"Eurodollar Rate" means, in relation to each Interest Period
applicable to any Eurodollar Tranche, the rate of interest
determined by the Administrative Agent to be the arithmetic
average (rounded upwards, if necessary, to the nearest 1/100th
of 1% of the rates per annum notified to the Administrative
Agent by the Reference Lenders as the rates per annum at which
Dollar deposits in immediately available funds are offered to
the Eurodollar Offices of the Reference Lenders two (2)
Business Days prior to the beginning of such Interest Period
by prime banks in the interbank Eurodollar market as at or
about 10:00 a.m., Boston time, for delivery on the first day
of such Interest Period, for the number of days comprised
therein and in an amount equal to the amount of the Eurodollar
Tranche of such Reference Lender for such Interest Period.
"Eurodollar Rate Margin" means, for any Eurodollar Tranche at
any date, the rate per annum determined in accordance with the
table set forth below based upon the Status on such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
0.7500% 1.0000% 1.5000% 2.0000% 2.5000%
"Eurodollar Rate (Reserve Adjusted)" means, with respect to
any Eurodollar Tranche for any Interest Period, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100th
of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) 1 - Eurodollar Reserve Percentage
<PAGE>
"Eurodollar Reserve Percentage" means, with respect to any
Eurodollar Tranche for any Interest Period, a percentage
(expressed as a decimal) equal to the daily average during
such Interest Period of the maximum percentages in effect on
each day of such Interest Period, as prescribed by the F.R.S.
Board, for determining the maximum reserve requirements
applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other applicable regulation of the F.R.S.
Board that prescribes reserve requirements applicable to
"Eurocurrency Liabilities" as currently defined in Regulation
D.
"Eurodollar Tranche" means any Tranche which bears interest at
a rate determined by reference to the Eurodollar Rate (Reserve
Adjusted). "Event of Default" is defined in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended. "Fair Market Value" means, with respect to any asset
or Property, the price which could be negotiated in an arm's
length free market transaction, for cash, between a willing
seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.
"Federal Funds Rate" means, for any day, the rate set forth in
the daily statistical release designated as the Composite 3:30
p.m. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank
of New York (including any such successor publication, the
"Composite 3:30 p.m. Quotations") for such day under the
caption "Federal Funds Effective Rate". If such rate is not
published in the Composite 3:30 p.m. Quotations for any
Business Day, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight
federal funds arranged prior to 9:00 a.m., Boston time, on
such day by each of three leading brokers of federal funds
transactions in New York City, selected by the Administrative
Agent. The Federal Funds Rate for any day which is not a
Business Day shall be the rate for the immediately preceding
Business Day.
<PAGE>
"Fees" means collectively, the Closing Fees, Commitment Fees
and Agents' Fees.
"First Credit Extension Date" means the date on which the
first Credit Extensions are made or to be made by the Lenders
to the Borrower hereunder.
"First Credit Extension Date Certificate" means a certificate,
in or substantially in the form of Exhibit G attached hereto,
to be executed and delivered to the Administrative Agent and
the Lenders by an Authorized Officer of the Borrower on the
First Credit Extension Date.
"Food-Related Businesses" means businesses or operations
involving, including corporations the principal business or
operations of which involve, food or food-related products,
including, without limitation, sourcing, processing,
transportation, shipping and distribution, and related assets
and infrastructure.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System.
"GAAP" is defined in Section 1.4.
"Governing Documents" means, relative to any Person, its
certificate or articles of incorporation, its by-laws and all
shareholder agreements, voting trusts or other similar
arrangements applicable to any shares of its Capital Stock.
"Governmental Authority" means any foreign, federal, state,
regional, local, municipal or other government, or any
department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or
arbitrator.
"GWF" means Great White Fleet, Ltd., an indirect Bermudian
Subsidiary of the Borrower, and includes its successors and
assigns. "Great White Fleet Subsidiaries" means, collectively,
GWF, and all of the corporations and other Persons that are
from time to time Subsidiaries of GWF.
"Group" is defined in Section 4.1.
"Guarantor" is defined in Section 6.1.
"Guaranty" means the guaranty of the Borrower to the Agents
and the Lenders contained in Article VI, as such Guaranty is
originally given, or, if varied or supplemented from time to
time, as so varied or supplemented.
"Hazardous Material" means any hazardous substance, any
hazardous waste, any petroleum product, or any pollutant or
contaminant or hazardous, dangerous or toxic chemical,
<PAGE>
material or substance within the meaning of any applicable
Environmental Laws.
"Historical Financials" is defined in Section 8.4.
"Impermissible Qualification" means, relative to the opinion
of the Independent Public Accountant as to any financial
statement of the Borrower and its consolidated Subsidiaries,
any qualification or exception to, or explanatory paragraph
in, such opinion: (a) which is of a "going concern" nature; or
(b)which states that the audits conducted by the Independent
Public Accountant in connection with such opinion (i) were, in
any material respect, limited in scope, (ii) were not, in any
material respect, conducted in accordance with generally
accepted auditing standards, or (iii) do not, in any material
respect, provide a reasonable basis for such opinion.
"Incur" means, with respect to any Indebtedness of any Person,
to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in
respect of such Indebtedness or the recording, as required
pursuant to GAAP or otherwise, of any such Indebtedness on the
balance sheet of such Person (and "incurrence," "incurred,"
and "incurring" shall have meanings correlative to the
foregoing). For purposes of this Agreement, (a) Indebtedness
(including Indebtedness for Borrowed Money) of any Person
acquired by the Borrower or any of its Subsidiaries in any
Acquisition (whether by purchase, merger, consolidation, other
business combination or otherwise) shall be deemed to be
incurred upon completion of the Acquisition of such Person,
(b) with respect to any line of credit, loan or credit
agreement or other credit extension obtained or otherwise
entered into by any Person, in each case as a borrower or
obligor thereunder (each such credit extension being
hereinafter called an "Other Credit Extension"), for purposes
of determining compliance with the provisions of subclause
(iii) of Section 9.2.1(d): (i) such Person shall be deemed to
incur Indebtedness for Borrowed Money under any such Other
Credit Extension on the date on which the commitments of the
lenders under or with respect to such Other Credit Extension
become effective; (ii) any individual borrowings, reborrowings
or other credit extensions obtained by such Person under such
Other Credit Extension shall not be deemed to be an incurrence
of Indebtedness for Borrowed Money by such Person, for
purposes only of determining compliance with the provisions of
subclause (iii) of Section 9.2.1(d); and (iii) such Person
shall be deemed to incur Indebtedness for Borrowed Money under
any such Other Credit Extension on each date on which the
aggregate amount of the commitments of lenders under or with
respect to such Other Credit Extension shall be increased,
extended or renewed and (c) with respect to any Other Credit
Extension obtained or otherwise entered into by any Person, in
each case as a borrower or obligor thereunder, for purposes
only of determining compliance with the provisions of
<PAGE>
subclause (ii) of Section 9.2.1(d), each individual borrowing,
reborrowing or other credit extension obtained by such Person
under such Other Credit Extension shall be deemed to be an
incurrence of Indebtedness for Borrowed Money by such Person.
"Indebtedness" means, in relation to any Person at any time,
all of the obligations of such Person which, in accordance
with GAAP, would be included as liabilities on the liability
side of the balance sheet of such Person prepared as at such
time, and in any event shall include: (a) all indebtedness of
such Person arising or incurred under or in respect of any
agreement, contingent or otherwise, made by such Person (i) to
purchase any indebtedness of any other Person or to advance or
supply funds for the payment or purchase of any indebtedness
of any other Person, or(ii) to purchase, sell or lease (as
lessee or lessor) any Property, or to purchase or sell
transportation or services, primarily for the purpose of
enabling any other Person to make payment of any indebtedness
of such other Person or to assure the owner of such other
Person's indebtedness against loss, regardless of the delivery
or non-delivery of the Property or the furnishing or
non-furnishing of the transportation or services, or (iii) to
make any Investment in any other Person for the purpose of
assuring a minimum equity, asset base, working capital or
other balance sheet condition for or as at any date or to
provide funds for the payment of any liability, dividend or
stock liquidation payment or otherwise to supply funds to or
in any manner invest in any other Person; (b) all indebtedness
created or arising under any conditional sale or other title
retention agreement with respect to Property acquired by such
Person, even though recourse with respect to such indebtedness
is limited to such Property; (c) all obligations, contingent
or otherwise, relative to the face amount of all letters of
credit, whether or not drawn, and bankers' acceptances issued
for the account of such Person; and (d) all indebtedness of
such Person arising or incurred under or in respect of any
Contingent Obligations.
"Indebtedness for Borrowed Money" means, in relation to any
Person at any time, (a) all Indebtedness of such Person for
borrowed money (including all notes payable and drafts
accepted representing extensions of credit and all obligations
evidenced by bonds, debentures, notes or other similar
Instruments on which interest charges are customarily paid),
all Indebtedness of such Person relative to the face amount of
all letters of credit, whether or not drawn, all Indebtedness
of such Person constituting Capitalized Lease Obligations, and
all Indebtedness of such Person of the type described in
clause (b) of the definition of the term "Indebtedness" and
all other obligations of such Person for the deferred purchase
price of Property or services, and (b) all Contingent
Obligations of such Person in respect of any Indebtedness of
any other Persons of the kind described in clause (a) of this
definition. Anything in the foregoing sentence of this
<PAGE>
definition to the contrary notwithstanding, for purposes of
this Agreement and the other Loan Documents, the term
"Indebtedness for Borrowed Money", when used in relation to
any Person, shall in no event include any Indebtedness or
Contingent Obligations of such Person in respect of any
accounts payable, accrued liabilities or other Indebtedness to
trade creditors, employees, former employees or consultants,
including, but not limited to, accrued liabilities for or in
respect of employee payroll, payroll taxes, deferred
compensation or severance arrangements, in each case, if and
to the extent such accounts payable, accrued liabilities or
other such Indebtedness arise in the ordinary course of
business.
"Indemnified Costs" is defined in Section 11.1.
"Indemnified Liabilities" is defined in Section 13.4.
"Indemnified Party" is defined in Section 13.4.
"Independent Public Accountant" means Ernst & Young LLP or any
other firm of certified public accountants of recognized
national standing selected by the Borrower.
"Instrument" means any contract, agreement, indenture,
mortgage or other document or writing (whether a formal
agreement, letter or otherwise) under which any obligation is
evidenced, assumed or undertaken, or any right to any Lien is
granted or perfected.
"Intercompany Subordination Agreement" means an agreement, in
or substantially in the form of Exhibit F attached hereto, to
be executed and delivered to the Administrative Agent by the
Borrower and certain of its Subsidiaries in order to
subordinate to the Obligations all of the Indebtedness,
including all of the Indebtedness for Borrowed Money, of the
Borrower to such Subsidiaries.
"Interest Coverage Ratio" means, in relation to the Borrower
for any Reference Period, the ratio of (a) the Consolidated
EBITDA of the Borrower and its Subsidiaries for such Reference
Period, to (b) the Consolidated Net Interest Expense of the
Borrower and its Subsidiaries for such Reference Period.
<PAGE>
"Interest Period" means, relative to any Eurodollar Tranche,
the period, selected in accordance with Section 4.4.1, for
which such Tranche bears interest at a rate determined with
reference to the Eurodollar Rate (Reserve Adjusted).
"Investment" means, in relation to any Person, (a) any loan,
advance or other extension of credit made by such Person to
any other Person; (b) the creation of any Contingent
Obligation of such Person to support any of the Indebtedness
of any other Person; or (c) any capital contribution by such
Person to, or purchase of Capital Stock or other Securities or
partnership interests by such Person in, any other Person, or
any other investment evidencing an ownership or similar
interest of such Person in any other Person.
In determining the amount of any Investment outstanding at any
particular time: (i) the amount of any Investment
constituting a Contingent Obligation shall be not less than
the amount of such Contingent Obligation; (ii) there shall be
deducted from the outstanding amount of any Investment any
cash received (A) upon any repurchase, sale, redemption,
retirement or liquidating distribution in respect of any
Investment constituting any capital contribution or purchase
of Capital Stock or other Securities, or (B) upon any
repayment, prepayment, repurchase, sale, redemption or
retirement of any Investment constituting a loan, advance or
other extension of credit; and (iii) there shall not be
deducted from the outstanding amount of any Investment any
write down or write off of the amount of such Investment or
any decrease in the value of such Investment.
"Issuance Request" means a request and certificate duly
executed by the chief financial, accounting or executive
Authorized Officer of the Borrower, in or substantially in the
form of Exhibit C attached hereto (with such changes thereto
as may be agreed upon from time to time by the Administrative
Agent and the Borrower).
"Issuer" means Bank of Boston, in its capacity as issuer of
one or more Letters of Credit, or any affiliate, unit or
agency of Bank of Boston which has agreed to issue one or more
Letters of Credit at the request of the Administrative Agent.
"Lenders" is defined in the introductory paragraph hereto.
"Letter of Credit" is defined in Section 5.1.
"Letter of Credit Availability" means, at any time, the
lesser of (a) $50,000,000 less the then aggregate amount of Letter of
Credit Outstandings, and (b) the then Total Revolving Credit
Commitment Availability.
<PAGE>
"Letter of Credit Outstandings" means, at any time, an amount
equal to the sum of (a) the aggregate of the Total Undrawn
Amounts at such time of all Letters of Credit then
outstanding, plus (b) the then aggregate amount of all unpaid
and outstanding Reimbursement Obligations.
"Level I Status": exists at any date if, at such date, the
Borrower has senior unsecured debt outstanding which is rated
(a) better than or equal to BB+ by S&P, or (b) better than or
equal to Ba1 by Moody's.
"Level II Status": exists at any date if, at such date, Level
I Status does not exist, and the Borrower has senior unsecured
debt outstanding which is rated (a) BB by S&P, or (b) Ba2 by
Moody's.
"Level III Status": exists at any date if, at such date,
neither Level I Status nor Level II Status exists, and the
Borrower has senior unsecured debt outstanding which is rated
(a) BB- by S&P, or (b) Ba3 by Moody's.
"Level IV Status": exists at any date if, at such date, none
of Level I Status, Level II Status or Level III Status exists,
and the Borrower has senior unsecured debt outstanding which
is rated (a) B+ by S&P, or (b) B1 by Moody's.
"Level V Status": exists at any date if, at such date, none of
Level I Status, Level II Status, Level III Status or Level IV
Status exists.
"Leverage Ratio" means, in relation to the Borrower as at any
date, the ratio of (a) the Total Senior Debt of the Borrower
as at such date, to (b) the Total Capitalization of the
Borrower and its Subsidiaries as at such date.
"Lien" means any mortgage, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory, judgment or otherwise), preference, priority
or other security agreement or preferential arrangement of any
kind or nature whatsoever (including any conditional sale or
other title retention agreement, any financing lease involving
substantially the same economic effect as any of the foregoing
and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction).
"Loan Documents" means, collectively, this Agreement, the
Notes, the Agents' Fee Letter, each Assignment and Acceptance
Agreement, each Intercompany Subordination Agreement, and each
other Instrument executed and delivered pursuant to or in
connection with any thereof.
"Loan Request" means a loan request and certificate duly
executed and delivered to the Administrative Agent by the
Treasurer or other Authorized Officer of the Borrower, in or
substantially in the form of Exhibit B attached hereto, with
<PAGE>
such changes thereto as may be agreed upon by the Borrower and
the Administrative Agent.
"Material Group" means, in relation to the Material
Subsidiaries, any one or more of the Material Subsidiaries
that, at the time of determination, shall together have (a)
assets greater than twenty-five percent (25%) of all of the
assets of the Borrower and its Subsidiaries, all as determined
and consolidated in accordance with GAAP, (b) shareholders'
equity greater than twenty-five percent (25%) of the
shareholders' equity of the Borrower and its Subsidiaries, all
as determined and consolidated in accordance with GAAP, (c)
contributed more than twenty-five (25%) of the consolidated
gross revenues of the Borrower and its Subsidiaries during the
most recently completed Reference Period, or (d) contributed
more than twenty-five percent (25%) of Consolidated EBITDA of
the Borrower and its Subsidiaries during the most recently
completed Reference Period.
"Materially Adverse Effect" means, in relation to any event,
occurrence or development of whatsoever nature (including any
adverse determination in any litigation, arbitration or
governmental investigation or proceeding), (a) a materially
adverse effect on the business, Property, operations or
financial condition of (i) the Borrower and its Subsidiaries,
taken as a whole, or (ii) the Material Subsidiaries and their
Subsidiaries, taken as a whole;(b) a materially adverse effect
on the business or operations of the Borrower, CBI, GWF or any
one or more Material Subsidiaries comprising a Material Group;
(c) a materially adverse effect on the ability of the Borrower
to perform any of its payment or other material Obligations
under any Loan Document to which it is a party; or (d) a
material impairment of the validity or enforceability of any
Loan Document or any material impairment of the rights,
remedies or benefits available to any of the Agents or the
Lenders under any Loan Document.
"Material Subsidiaries" means, collectively, (a) each
Subsidiary of the Borrower that, at the time of determination,
has (i) assets greater than ten percent (10%) of all of the
assets of the Borrower and its Subsidiaries, all as determined
and consolidated in accordance with GAAP, (ii) shareholders'
equity greater than ten percent (10%) of the shareholders'
equity of the Borrower and its Subsidiaries, all as determined
and consolidated in accordance with GAAP, (iii) contributed
more than five percent (5%) of the consolidated gross revenues
of the Borrower and its Subsidiaries during the most recently
completed Reference Period, or (iv) contributed more than five
percent (5%) of Consolidated EBITDA of the Borrower and its
Subsidiaries during the most recently completed Reference
Period, and (b) in addition to each Subsidiary that is, at the
time of determination, a "Material Subsidiary" under clause
(a) of this definition, each Subsidiary of the Borrower
identified by the Borrower as a "Material Subsidiary" in a
<PAGE>
written notice to the Administrative Agent; provided, however,
that, with the prior written consent of the Required Lenders,
which consent will not be unreasonably withheld, the Borrower
may remove Subsidiaries from the list of Subsidiaries of the
Borrower identified as "Material Subsidiaries" pursuant to
clause (b) of this definition.
"Maturity" means, relative to any Revolving Loan, the date on
which such Revolving Loan is stated to be due and payable in
whole or in part (in accordance with the Note evidencing such
Revolving Loan, this Agreement or otherwise) or such earlier
date when such Revolving Loan (or any portion thereof) shall
be or become due and payable in whole or in part in accordance
with the terms of this Agreement, whether by required
prepayment, declaration, acceleration or otherwise.
"Minimum Business Conditions" means, in relation to the
Borrower and the Material Subsidiaries at or as of any date of
determination, each of the following conditions: (a) on or as
of the last day of the Reference Period most recently
completed on or prior to such date of determination for which
financial statements have been delivered to the Lenders (such
Reference Period being in this definition called the "Latest
Reference Period"), the Borrower and the Material Subsidiaries
shall together have assets greater than seventy-five percent
(75%) of all of the assets of the Borrower and its
Subsidiaries, all as determined for the Material Subsidiaries
on a consolidated basis in accordance with GAAP; (b) on or as
of the last day of the Latest Reference Period, the Borrower
and the Material Subsidiaries shall together have
shareholders' equity greater than seventy-five (75%) of the
shareholders' equity of the Borrower and its Subsidiaries, all
as determined on a consolidated basis in accordance with GAAP;
(c) during the Latest Reference Period, the Borrower and the
Material Subsidiaries shall together have contributed more
than seventy-five percent (75%) of the consolidated gross
revenues of the Borrower and its Subsidiaries; and (d) during
the Latest Reference Period, the Borrower and the Material
Subsidiaries shall together have contributed more than
seventy-five (75%) of the Consolidated EBITDA of the Borrower
and its Subsidiaries.
"Moody's" means Moody's Investors Services, Inc. and its
successors.
"Net Disposition Proceeds" means, with respect to any Sale of
any Property by the Borrower or any of its Subsidiaries, the
gross amount of cash consideration payable to or receivable by
the Borrower or any of its Subsidiaries from such Sale, less
(to the extent applicable and without duplication) (a) the
amount, if any, of all estimated taxes payable as a result of
gain realized from such Sale, (b) reasonable expenses that are
incurred in connection with such Sale and that are payable by
the seller or the transferor of the Property to which such
<PAGE>
Sale relates, and (c) the amount of any Indebtedness for
Borrowed Money that is required to be repaid or prepaid at the
time of such Sale with such cash consideration and that is in
fact repaid or prepaid with such cash consideration
substantially contemporaneously with such Sale. If the
Borrower or any of its Subsidiaries receives any Property
(other than cash) as part of the consideration for any Sale,
Net Disposition Proceeds from such Sale shall be deemed to
include any cash payments in respect of such Property when and
to the extent received by such Person.
"Note" is defined in Section 3.2 and shall also mean and refer
to all other promissory notes accepted from time to time in
substitution therefor, replacement or renewal thereof or
refunding thereof, including any such notes issued pursuant to
Section 12.2.3 or clause (b) of Section 12.4.
"Obligations" means, collectively, all of the indebtedness,
obligations and liabilities existing on the date of this
Agreement or arising from time to time thereafter, whether
direct or indirect, joint or several, actual, absolute or
contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or
otherwise, of the Borrower to any of the Agents or the Lenders
(a) in respect of any of the Revolving Loans made to the
Borrower by the Lenders pursuant to this Agreement, (b) in
respect of any of the Letters of Credit issued for the account
of the Borrower or any of its Subsidiaries pursuant to this
Agreement, (c) under or with respect to the Guaranty by the
Borrower of Subsidiary Reimbursement Obligations upon the
terms contained in Article VI, or (d) under or in respect of
this Agreement, the Notes or any of the other Loan Documents.
For all purposes of this Agreement and the other Loan
Documents, the term "Obligations" shall include all
Reimbursement Obligations of the Borrower.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President (any
reference to a Vice President of the Borrower herein shall be
deemed to include any Vice President of the Borrower 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 Borrower, and
delivered to the Administrative Agent.
"paid (or payment) in full" means paid (or payment) in full in
cash.
"Participants" is defined in Section 12.1.1.
"Percentage" of any Lender means, at any time, the percentage
set forth opposite such Lender's name on Schedule I hereto
(or, if such Lender has executed an Assignment and Acceptance
<PAGE>
Agreement, opposite such Lender's signature on the most recent
Assignment and Acceptance Agreement then executed by it).
"Permitted Disposition" means: (a)any Sale by the Borrower or
any of its Subsidiaries of its inventory in the ordinary
course of its business; (b) any Sale by the Borrower or any of
its Subsidiaries in the ordinary course of its business of its
equipment or other tangible personal Property that is obsolete
or no longer useful, desirable or necessary to its business;
(c) any Sale by the Borrower or any of its Subsidiaries,
whether through a Sale of Capital Stock, a merger or
otherwise, of any Subsidiary of the Borrower that, at the time
of such Sale, is not engaged in the conduct of business in the
ordinary course and has no Property except Property that has
no material value; (d) any Sale by the Borrower or any of its
Subsidiaries in the ordinary course of its business, and in a
manner consistent with its customary and usual cash management
practices, of its Investments; (e) the creation or incurrence
by the Borrower or any of its Subsidiaries of any Liens
permitted by Section 9.2.2; (f) any Sale by the Borrower or
any of its Subsidiaries of any assets relating to (including,
as the case may be, Capital Stock of) Food-Related Businesses;
provided, however, that (i) any Net Disposition Proceeds from
any such Sale of assets shall be applied, within eighteen (18)
months after the receipt of such Net Disposition Proceeds, by
the Borrower or its Subsidiaries (A) to repay or otherwise
retire Indebtedness for Borrowed Money of the Borrower or any
of its Subsidiaries, or (B) to the Investment in businesses
reasonably related to businesses conducted by the Borrower or
any of its Subsidiaries on September 30, 1996; and (ii) such
Sale shall not involve or otherwise be a part of a sale and
leaseback transaction; (g) any Sale by the Borrower or any of
its Subsidiaries, whether through a Sale of Capital Stock, a
merger or otherwise, of any Great White Fleet Subsidiary to
the Borrower or to any of its Subsidiaries (other than to any
Great White Fleet Subsidiaries); provided, however, that, at
the time of such Sale of such Great White Fleet Subsidiary,
such Great White Fleet Subsidiary (i) has no Indebtedness or
Contingent Obligations of any kind, (ii) is not engaged in the
conduct of any business, (iii) has no Property except Property
that has no material value, and (iv) is not subject to or
bound by any Liens upon any of its Property, whether then
owned or thereafter acquired; and (h) the Sale by the Borrower
or any of its Subsidiaries of its interests in the notes
receivable from the Sale of the Numar Group and the Sale of
the option to purchase shares of the Numar Group, the
aggregate outstanding amount as of the Effective Date of such
notes receivable not exceeding $40,000,000.
"Permitted Indebtedness" means any of the following
Indebtedness:
(a) Indebtedness of the Borrower or any of its Subsidiaries in
respect of taxes, assessments, levies or other governmental
charges, and Indebtedness of any such Person in respect of
<PAGE>
accounts payable or other Indebtedness to trade creditors
incurred in the ordinary course of business or in respect of
claims against it for labor, materials or supplies, to the
extent that (in each case) the payment thereof shall not at
the time be required to be made in accordance with the
provisions of Section 9.1.4; (b) Indebtedness of the Borrower
or any of its Subsidiaries secured by Liens of carriers,
warehousemen, mechanics, landlords or materialmen that
constitute Permitted Liens under clause (c) or (e) of the
definition thereof; (c) Indebtedness of the Borrower or any of
its Subsidiaries in respect of judgments or awards which have
been in force for less than the applicable appeal period so
long as (i) (in each case) such Person shall at the time in
good faith be prosecuting an appeal or proceedings for review
and execution thereof shall have been stayed pending such
appeal or review, or (ii) the aggregate amount of all such
Indebtedness of the Borrower or any of its Subsidiaries
outstanding at any time (determined on a consolidated basis in
accordance with GAAP) does not exceed $10,000,000; (d)
Indebtedness incurred by the Borrower in connection with the
acquisition, construction or improvement by the Borrower of
Property used or to be used in the ordinary course of business
of the Borrower; provided, however, that any Liens on such
Property securing any such Indebtedness of the Borrower shall
constitute Permitted Liens under clause (g) of the definition
thereof; (e) Indebtedness incurred by any of the Subsidiaries
of the Borrower that are not Great White Fleet Subsidiaries in
connection with the acquisition, construction or improvement
by any of the Subsidiaries of the Borrower that are not Great
White Fleet Subsidiaries of Property used or to be used in the
ordinary course of business of any of such Subsidiaries that
are not Great White Fleet Subsidiaries; provided, however,
that the aggregate amount of all such Indebtedness of any of
such Subsidiaries outstanding at any time (determined on a
consolidated basis in accordance with GAAP) shall not exceed
the maximum aggregate amount permitted by Section 9.2.2(e);
(f) Indebtedness incurred by any of the Great White Fleet
Subsidiaries in connection with the acquisition, construction
or improvement by any of the Great White Fleet Subsidiaries of
Property used or to be used in the ordinary course of business
of any of the Great White Fleet Subsidiaries; provided,
however, that all such Indebtedness of any of the Great White
Fleet Subsidiaries outstanding at any time shall be
Indebtedness of the kind that is permitted by Section
9.2.2(d); (g) Contractual Obligations of the Borrower or any
of its Subsidiaries (other than Contractual Obligations
constituting Indebtedness for Borrowed Money) under
Instruments (including operating leases or subleases of real
or personal Property, but in any event excluding any
Instruments creating, governing or securing Indebtedness for
Borrowed Money) entered into in the ordinary course of
business of such Person, and Contingent Obligations of the
Borrower or any of its Subsidiaries incurred in the ordinary
course of business of such Person in respect of any of such
<PAGE>
Contractual Obligations; (h) Indebtedness under or in respect
of Contingent Obligations of the Borrower or any of its
Subsidiaries in respect of letters of credit or surety or
other bonds issued in the ordinary course of business of such
Person in connection with Liens that constitute Permitted
Liens under clause (c) of the definition thereof; (i)
Indebtedness under or in respect of Contingent Obligations of
any of the Subsidiaries of the Borrower incurred in the
ordinary course of the business of such Subsidiaries in
respect of loans or advances made or other financial
accommodation extended by other Persons to growers or
suppliers at the request of any of such Subsidiaries; (j)
Indebtedness for Borrowed Money of the Borrower that (i) is
existing on the Effective Date and is not otherwise expressly
permitted by this Agreement, and (ii) is identified in Section
8.5 of the Disclosure Schedule; (k) Indebtedness of any
Subsidiary of the Borrower that is at any time or from time to
time owing to the Borrower or to any other Subsidiary of the
Borrower; (l) Indebtedness of any Subsidiary of the Borrower
that is existing on the Effective Date and is not otherwise
referred to in or otherwise expressly permitted by any of
paragraphs (a) through (k) of this definition; (m) any
extension, refunding, replacement or renewal of any
Indebtedness referred to in paragraph (d) or (j), so long as
such Indebtedness is not increased or secured by additional
Property; and (n) any extension, refunding, replacement or
renewal of any Indebtedness referred to in paragraph (e), (f),
(g), (I), (k) or (l).
"Permitted Investments" means any of the following Investments
by the Borrower or any of its Subsidiaries: (a) Investments in
cash and cash equivalents (as determined by the Borrower in
accordance with GAAP); (b) Investments made in the ordinary
course of business and in a manner consistent with its
customary and usual cash management practices; (c) Investments
(other than Investments permitted by clause (a) or clause (b)
in marketable Securities issued by any other Person other than
an Affiliate; provided, however, that the aggregate amount of
all such Investments by the Borrower and its Subsidiaries in
existence as at any date (as determined in accordance with
GAAP) shall not at any time exceed $20,000,000; (d)
Investments in the form of accounts receivable or notes
receivable arising from Sales of goods or services in the
ordinary course of business; (e) Investments made by any of
the Subsidiaries of the Borrower in the ordinary course of
business in the form of loans, advances or other financial
accommodation extended to or prepayments to growers or
suppliers, and Contingent Obligations of any of the
Subsidiaries of the Borrower incurred in the ordinary course
of business of such Person in respect of any loans, advances
or other financial accommodation extended to growers or
suppliers by any other Person; (f) Investments in the form of
Contingent Obligations of the Borrower or any of its
Subsidiaries (other than Contingent Obligations constituting
<PAGE>
Indebtedness for Borrowed Money) under Instruments (excluding
any Instruments creating, governing or securing Indebtedness
for Borrowed Money) entered into in the ordinary course of
business of the Borrower or any of its Subsidiaries; (g)
Investments by the Borrower or any of its Subsidiaries in the
form of Securities received in connection with any Sale
permitted under Section 9.2.5(e) or Section 9.2.5(f); (h)
Investments in the form of loans or advances to employees or
consultants in the ordinary course of business for travel
expenses, drawing accounts or other similar business-related
expenses; (i) Investments by the Borrower or any of its
Subsidiaries, all or substantially all of which are made with
Capital Stock of the Borrower; and (j) Investments by the
Borrower or any of its Subsidiaries, all or substantially all
of which are made with net cash proceeds from the issue or
sale by the Borrower of Capital Stock of the Borrower.
"Permitted Liens" means any of the following Liens: (a) Liens
that (i) are in existence on the Effective Date, and (ii)
secure Indebtedness of the Borrower constituting Permitted
Indebtedness; (b) Liens to secure taxes, assessments, levies
or other governmental charges imposed upon the Borrower or any
of its Subsidiaries, and Liens to secure claims against the
Borrower or any of its Subsidiaries for labor, materials or
supplies, to the extent (in each case) that the payment
thereof shall not at the time be required to be made in
accordance with the provisions of Section 9.l.4; (c) deposits
or pledges made by the Borrower or any of its Subsidiaries in
the ordinary course of its business (i) in connection with, or
to secure payment of, workers' compensation, unemployment
insurance or other forms of governmental insurance or
benefits, (ii) to secure the performance of bids, tenders,
statutory obligations, leases or contracts (other than
contracts relating to borrowed money), or (iii) to secure
surety, appeal, indemnity or performance bonds, in each case
in the ordinary course of the business of such Person, and in
each case only to the extent that payment thereof shall not at
the time be required to be made in accordance with the
provisions of Section 9.1.4; (d) Liens in respect of judgments
or awards against the Borrower or any of its Subsidiaries to
the extent that such judgments or awards have been in force
for less than the applicable appeal period so long as (i) (in
each case) such Person shall at the time in good faith be
prosecuting an appeal or proceedings for review and execution
thereof shall have been stayed pending such appeal or review,
or (ii) the aggregate amount of all Indebtedness of the
Borrower or any of its Subsidiaries in respect of such
judgments or awards outstanding at any time (determined on a
consolidated basis in accordance with GAAP) does not exceed
$10,000,000; (e) Liens of carriers, warehousemen, mechanics,
landlords or materialmen incurred in the ordinary course of
the business of the Borrower or any of its Subsidiaries, in
each case, for sums not overdue or being contested in good
faith by appropriate proceedings, and for which appropriate
<PAGE>
reserves with respect thereto have been established and
maintained on the consolidated books of the Borrower and its
Subsidiaries in accordance with GAAP to the extent required
under such principles; (f) easements, rights-of-way, zoning
and other similar restrictions and other similar encumbrances
or title defects which do not materially detract from the
value of the Property of the Borrower or any of its
Subsidiaries subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of its
Subsidiaries; (g) Liens created by the Borrower to secure the
payment of the cost of Property acquired, constructed or
improved by the Borrower after the date of this Agreement and
which Liens are created substantially contemporaneously with
or within 360 days after the acquisition, construction or
improvement of the Property subject thereto (all Liens of the
type described in this clause (g) being hereinafter called
"Purchase Money Liens"); provided, however, that: (i) any
Property subject to any such Purchase Money Lien created by
the Borrower is used or to be used in the ordinary course of
business of the Borrower; and (ii) no such Purchase Money Lien
on any such Property shall extend to or cover any other
Property of the Borrower; and (h) extensions, renewals and
replacements of Liens described in clauses (a) and (g) of this
definition, provided that each such extension, renewal or
replacement Lien is limited to the Property covered by the
Lien so extended, renewed or replaced and does not secure
Indebtedness that is materially different in kind than or in
excess of that secured immediately prior to such extension,
renewal or replacement.
"Permitted Lindner Holders" means, collectively, Carl H.
Lindner, Robert D. Lindner, Carl H. Lindner III, S. Craig
Lindner and Keith E. Lindner, the respective estates, spouses,
heirs, ancestors, lineal descendants, legatees and legal
representatives of any of the foregoing and the trustee or
other representative of any bona fide trust or other entity
formed for estate or tax-planning purposes of which one or
more of the foregoing are the sole beneficiaries or the
grantors thereof or contributors thereto, American Financial
Group, Inc., an Ohio corporation, or any entity of which any
of the foregoing, individually or collectively, beneficially
own more than 50% of the Voting Shares.
<PAGE>
"Person" means any natural person, corporation, partnership,
joint venture, association, Governmental Authority or any
other entity, whether acting in an individual, fiduciary or
other capacity.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible
or intangible.
"Purchasing Lender" is defined in Section 12.2.1.
"Quarterly Payment Date" means the last day of each March,
June, September and December of each year or, if any such day
is not a Business Day, the next succeeding Business Day.
"Ratable" or "Ratably" means, with respect to any Lender
vis-a-vis all other Lenders, such Lender's Percentage of the
amount in question.
"Reference Lenders" means, collectively, for purposes of
determining the Eurodollar Rate and in connection with other
matters pertaining to Eurodollar Rate Tranches, Bank of Boston
and not more than three (3) other Lenders designated in a
notice to the Borrower and to all Lenders by the
Administrative Agent (after consultation with the Borrower and
with the prior approval of the Borrower and the Required
Lenders) to be Reference Lenders.
"Reference Period" means each period of four (4) consecutive
fiscal quarters of the Borrower.
"Register" is defined in Section 12.2.4.
"Reimbursement Obligations" is defined in Section 5.6.
"Related Parties" is defined in Section 11.2.
"Release" means a "release," as such term is defined in the
Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended.
"Required Lenders" means, at the time any determination
thereof is to be made, (a) until all of the Commitments have
terminated, Lenders then having in the aggregate at least 51%
of the aggregate Commitments then in effect, and (b) after all
of the Commitments have terminated, Lenders then holding in
the aggregate at least 51% of the aggregate outstanding
principal amount of all of the Revolving Loans; provided,
however, that, for purposes of this definition, (i) so long as
there are four (4) or more Lenders, in no event shall less
than three (3) Lenders constitute the
<PAGE>
"Required Lenders", and (ii) after all of the Commitments have
terminated, each of the Lenders shall, for purposes only of
clause (b) of this definition, be deemed to hold from time to
time Revolving Loans in an aggregate principal amount equal to
such Lender's applicable Percentage of all undrawn Letters of
Credit from time to time outstanding.
"Restricted Payments" means, in relation to the Borrower and
its Subsidiaries: (a) any payment, prepayment, distribution,
loan, advance, Investment or Sale by the Borrower or by any
Subsidiary of the Borrower which constitutes an Affiliate
Transaction described in clause (a), (b), (c),(d), (e) or (f)
of the definition "Affiliate Transaction"; (b) any declaration
or payment by the Borrower or by any of its Subsidiaries of
any dividends or other distributions on account of, or any
payment or other distribution by the Borrower or by any of its
Subsidiaries on account of the purchase, repurchase,
redemption, retirement or other acquisition for value of, any
shares of Capital Stock of the Borrower or any of its
Subsidiaries; provided, however, that any declaration or
payment of any dividends or other distributions on account of
the Capital Stock of any Person that is made in the form of
Capital Stock of such Person shall not constitute a Restricted
Payment; (c) any payment or prepayment by the Borrower or by
any of its Subsidiaries (whether of principal, premium,
interest or any other sum) of or on account of, or any payment
or other distribution on account of the redemption,
repurchase, defeasance or other acquisition for value of, any
Subordinated Indebtedness of the Borrower; and (d) any loan or
advance by the Borrower to, or any other Investment by
Borrower in, any Subsidiary of the Borrower. For the purposes
of this Agreement and the other Loan Documents, the term
"Restricted Payments" shall not include any salaries, bonuses
or advances to directors, officers or employees of the
Borrower or any of its Subsidiaries made by the Borrower or
any of its Subsidiaries in the ordinary course of its
business.
"Restricted Transaction" is defined in the definition "Special
Covenant Conditions".
"Revolving Loans" is defined in clause (a) of Section 2.1.
"SEC" means the Securities and Exchange Commission.
"Sale and Leaseback Transaction" is defined in Section
9.2.5(f).
"Sale" means any sale, lease, conveyance, exchange, swap,
trade, transfer or other disposition of any Property.
"Securities" means any Capital Stock, partnership interests,
voting trust certificates, bonds, debentures, notes or other
evidences of Indebtedness for Borrowed Money, secured or
<PAGE>
unsecured, convertible, subordinated or otherwise, or in
general any Instruments commonly known as "securities" or any
certificates of interest, shares or participations in
temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
"Special Covenant Conditions" means, in relation to any date
on which any Indebtedness for Borrowed Money is to be
incurred, any Restricted Payment is to be made or declared,
any Affiliate Transaction is to be entered into or completed,
any consolidation, merger or Acquisition is to be made or
completed (each such event, arrangement or transaction of the
kind referred to in this definition being herein referred to
as a "Restricted Transaction"), in each case by the Borrower
or any of its Subsidiaries, each of the following conditions:
(a) no Default shall have occurred and be continuing on or as
of such date; (b) no Default shall occur or shall be
continuing immediately after giving effect to such Restricted
Transaction; (c) no breach of the financial covenants set
forth in Section 9.2.3(a) or 9.2.3(c) shall occur immediately
after giving effect to such Restricted Transaction; (d) no
breach of the financial covenant set forth in Section 9.2.3(b)
would have occurred as at the end of the Reference Period
ending immediately prior to the date of completion of such
Restricted Transaction had such financial covenant been
calculated for such Reference Period (i) as if such Restricted
Transaction were completed immediately prior to the beginning
of such Reference Period, (ii) as if any Indebtedness for
Borrowed Money incurred in connection with such Restricted
Transaction had been incurred on the first day of such
Reference Period, and (iii) as if interest had accrued on such
Indebtedness for Borrowed Money during such Reference Period
at an annual interest rate equal to the annual interest rate
payable on such Indebtedness for Borrowed Money on the date it
is first incurred; and (e) upon or prior to completion of each
Restricted Transaction which involves or relates to (i) the
incurrence of Indebtedness for Borrowed Money in an aggregate
principal amount exceeding $20,000,000, (ii) the declaration
or making of a Restricted Payment involving cash or other
Property having a Fair Market Value exceeding $20,000,000, or
(iii) the completion of an Affiliate Transaction involving
cash or other Property having a Fair Market Value exceeding
$20,000,000 in the aggregate, or (iv) the completion of a
consolidation, merger or Acquisition involving cash or other
Property having a Fair Market Value exceeding $50,000,000 or
involving the incurrence of Indebtedness exceeding $50,000,000
in the aggregate, then, in each such case, the Borrower shall
furnish to the Administrative Agent upon or prior to
completion of the Restricted Transaction a Compliance
Certificate calculated as at the completion of and after
giving effect to such Restricted Transaction.
"S&P" means Standard & Poor's Rating Services, a division of
<PAGE>
McGraw Hill, Inc.
"Stated Amount" of each Letter of Credit means the "Stated
Amount" as defined therein or, if not defined therein, the
face amount thereof.
"Stated Expiry Date" is defined in clause (b) of Section 5.1.
"Status" means, as to the Borrower, the existence of Level I
Status, Level II Status, Level III Status, Level IV Status, or
Level V Status, as the case may be.
"Subordinated Indebtedness" means Indebtedness for Borrowed
Money of the Borrower that is expressly subordinated and made
junior in right of payment to the prior payment in full of all
of the Obligations, such subordination to be in writing and on
terms and conditions that shall be reasonably satisfactory to
the Administrative Agent and the Required Lenders. For
purposes of this Agreement and the other Loan Documents, the
Indebtedness for Borrowed Money of the Borrower under or in
respect of the Borrower's 7% Convertible Subordinated
Debentures due 2001 shall constitute "Subordinated
Indebtedness", such Indebtedness for Borrowed Money being
subordinated to the prior payment in full of all of the
Obligations on terms and conditions that have been determined
by the Administrative Agent and the Lenders to be reasonably
satisfactory to the Administrative Agent and the Lenders with
respect to and for the purposes of such 7% Convertible
Debentures only.
"Subsidiary" means, in relation to any Person (in this
definition called the "parent") at any time, any corporation,
partnership or other Person (a) of which shares of Capital
Stock, partnership interests or other ownership interests
having ordinary voting power to elect a majority of the board
of directors or other managers of such corporation,
partnership or other Person, or representing a majority of the
equity interests in such corporation, partnership or other
Person, are at the time owned or controlled, directly or
indirectly, by the parent, or (b) the management of which is
otherwise controlled, directly or indirectly, by the parent.
Anything in the foregoing sentence of this definition to the
contrary notwithstanding, for purposes of this Agreement and
the other Loan Documents, the determination of whether any
Person is a Subsidiary of the Borrower or of any other
Subsidiary of the Borrower shall be made by the Borrower in
accordance with GAAP.
"Subsidiary Reimbursement Obligations" means Reimbursement
Obligations of any Subsidiary or Affiliate of the Borrower
with respect to any Letters of Credit issued for the account
of such Subsidiary or Affiliate.
<PAGE>
"Taxes" is defined in Section 3.7.
"Total Capitalization" means, in relation to the Borrower and
its Subsidiaries as at any date, the sum of the Consolidated
Total Indebtedness and the Consolidated Net Worth of the
Borrower and its Subsidiaries as at such date.
"Total Revolving Credit Commitment Availability" means, at any
time, the excess of (a) the then Commitment Amount, over (b)
the sum of (i) the then aggregate outstanding principal amount
of all Revolving Loans,plus (ii) the then aggregate amount of
Letter of Credit Outstandings.
"Total Senior Debt" means, in relation to the Borrower as at
any date, (a) all of the Indebtedness for Borrowed Money of
the Borrower as at such date under this Agreement or any of
the other Loan Documents, (b) all of the other Indebtedness
for Borrowed Money of the Borrower as at such date the payment
or performance of which is then secured by any Lien or Liens
on any Property of the Borrower, and (c) without duplication,
all of the other Indebtedness for Borrowed Money of the
Borrower as at such date the payment or performance of which
is not then subordinated and made junior in right of payment,
on terms and conditions reasonably satisfactory to the
Administrative Agent and the Required Lenders, to the payment
and performance of all of the Obligations, in each case under
clause (a), (b) or (c) of this definition, all as determined,
without duplication, on a non-consolidated basis and in
accordance with GAAP.
"Total Undrawn Amount" means, in relation to any Letters of
Credit at any time, the aggregate amount which remains undrawn
under such Letters of Credit at such time and which remains
available at such time or which may, upon the happening of any
one or more contingencies or otherwise, become available under
such Letters of Credit at any time or from time to time
thereafter.
"Tranche" is defined in Section 4.1.
"Transfer Effective Date" is defined in Section 12.2.1.
"Transferee" is defined in Section 12.3.
"type" means, relative to the outstanding principal amount of
all or any portion of any Revolving Loan, the portions
thereof, if any, being maintained as a Base Rate Tranche or a
Eurodollar Tranche, as the case may be.
"Unused Commitment Amount" means, for any period (of one or
more days), the average daily amount for such period by which
(a) the Commitment Amount on each day during such period
exceeds (b) the sum of (i) the aggregate principal amount of
all Revolving Loans outstanding on each such day, and (ii) the
<PAGE>
aggregate amount of Letter of Credit Outstandings on each such
day.
"Voting Shares" means Capital Stock of the class or classes
having general voting power under ordinary circumstances to
elect the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time
Capital Stock of any other class or classes shall have or
might have voting power by reason of the happening of any
contingency).
SECTION 1.2. Use of Defined Terms. Terms for which meanings
are provided in this Agreement shall, unless otherwise defined
or the context otherwise requires, have such meanings when
used in the Notes, the Disclosure Schedule, each of the other
Loan Documents and each notice or other communication
delivered from time to time in connection with this Agreement
or any Instrument executed pursuant hereto.
SECTION 1.3. Cross-References. Unless otherwise specified,
references in this Agreement or in any of the other Loan
Documents to any Article or Section are references to such
Article or Section of this Agreement or such other Loan
Document, as the case may be, and unless otherwise specified,
references in any Article, Section or definition to any
paragraph or clause are references to such paragraph or clause
of such Section, Article or definition.
SECTION 1.4. Accounting and Financial Determinations. Where
the character or amount of any asset or liability or item of
income or expense is required to be determined, or any
accounting computation is required to be made, for the
purposes of this Agreement and the other Loan Documents, such
determination or calculation shall, to the extent applicable,
be made in accordance with generally accepted accounting
principles ("GAAP") from time to time in effect; provided,
however, that, for all purposes of determining compliance with
the financial covenants contained in Section 9.2.3, each such
determination or calculation shall be made in accordance with
GAAP as in effect on the Effective Date and consistently
applied for all periods involved.
SECTION 1.5. General Provisions Relating to Definitions.
Terms for which meanings are defined in this Agreement shall
apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter
forms. The term "including" means including, without limiting
the generality of any description preceding such term. Each
reference herein to any Person shall include a reference to
such Person's successors and assigns. References to any
Instrument defined in this Agreement refer to such Instrument
as originally executed, or, if subsequently amended or
supplemented from time to time, as so amended or supplemented
<PAGE>
and in effect at the relevant time of reference thereto.
ARTICLE II
COMMITMENTS
SECTION 2.1. Commitments. Subject to the terms and
conditions of this Agreement (including Article VII): (a) each
Lender severally and for itself alone agrees that it will,
from time to time on any Business Day occurring during the
period commencing on the Effective Date and continuing to (but
not including) the Commitment Termination Date, make revolving
loans (relative to each Lender, its "Revolving Loans") to the
Borrower equal to such Lender's Percentage of the aggregate
principal amount of the Revolving Loans requested by the
Borrower pursuant to Section 3.1; provided, however, that no
Lender shall be permitted or required to make any Revolving
Loan if, after giving effect to the making of such Revolving
Loan and to the use of the proceeds thereof, the aggregate
principal amount of all Revolving Loans outstanding from (i)
all Lenders would exceed the difference between (A) the
Commitment Amount then in effect, and (B) the then aggregate
amount of Letter of Credit Outstandings, or
(ii) such Lender would exceed the difference between (A) its
Percentage of the Commitment Amount then in effect, and (B)
its Percentage of the then aggregate amount of Letter of
Credit Outstandings; and (b) the Issuer agrees that it will,
from time to time on any Business Day occurring during the
period commencing on the Effective Date and continuing to (but
not including) the Commitment Termination Date, issue for the
account of the Borrower or any of its Subsidiaries, and each
Lender severally and for itself alone agrees to participate in
the issuance of, Letters of Credit, all in accordance with the
provisions of Article V; provided, however, that neither the
Issuer nor any Lender shall be permitted or required to issue
or extend, in the case of the Issuer, or participate in the
issuance or extension of, in the case of such Lender, a Letter
of Credit if, after giving effect to such issuance or
extension, the aggregate amount of Letter of Credit
Outstandings at such time would exceed the lesser of (i)
$50,000,000, or (ii) the difference between (A) the Commitment
Amount then in effect, and (B) the aggregate principal amount
of all Revolving Loans then outstanding. Subject always to
the terms and conditions hereof, the Borrower may from time to
time borrow, prepay and reborrow Revolving Loans pursuant to
the Commitments.
SECTION 2.2. Commitment Amount. The maximum aggregate
principal amount ("Commitment Amount") of all Commitments for
all Lenders shall be $125,000,000. The Commitments shall in
any event terminate in full, and the Commitment Amount shall
in any event be reduced to zero, on the Commitment Termination
Date. The Commitment Amount from time to time in effect shall
<PAGE>
be subject to permanent reduction, automatically and without
further action, by the aggregate principal amount of each
voluntary permanent reduction of the Commitment Amount made by
the Borrower from time to time after the Closing Date;
provided, however, that (a) each such permanent reduction of
the Commitment Amount shall require at least three Business
Days' prior notice to the Administrative Agent and shall be
permanent, and any partial reduction of such amount shall be
in a minimum amount of $5,000,000 or in an integral multiple
of $1,000,000 in excess thereof, and (b) no such permanent
reduction of the Commitment Amount may be made by the Borrower
if, after giving effect to such reduction, the Commitment
Amount would be reduced to an amount which is less than the
sum of the aggregate principal amount of all Revolving Loans
then outstanding and the aggregate amount of Letter of Credit
Outstandings at such time.
SECTION 2.3. Commitments Several. The failure of any Lender
to make any Revolving Loan or any other Credit Extension
hereunder shall not relieve any other Lender of its obligation
(if any) to make a Revolving Loan or any other Credit
Extension, but no Lender shall be responsible for the failure
of any other Lender to make a Revolving Loan or other Credit
Extension required to be made by such other Lender.
ARTICLE III
REVOLVING LOANS AND NOTES
SECTION 3.1. Borrowing Procedure. Revolving Loans shall be
made by the Lenders in accordance with the following
provisions of this Section 3.1.
SECTION 3.1.1. Requests for Borrowing. By delivering to the
Administrative Agent a Loan Request on or before 10:00 a.m.,
Boston time, the Borrower may from time to time request, on
not less than one nor more than five Business Days' notice for
Base Rate Tranches (or not less than three nor more than five
Business Days' notice for Eurodollar Tranches), that Revolving
Loans be made by the Lenders in a minimum aggregate original
principal amount of $1,000,000, or any integral multiple of
$100,000 in excess thereof, on the Drawdown Date (which must
be a Business Day) specified in such Loan Request. The
Administrative Agent shall promptly notify the Lenders of the
receipt of any such Loan Request. Subject to the terms and
conditions of this Agreement, on or before 12:00 p.m., Boston
time, on the Drawdown Date specified in the Loan Request, each
Lender shall provide the Administrative Agent with funds in an
amount equal to such Lender's Percentage of the requested
Revolving Loans, by transferring immediately available funds
to such account as the Administrative Agent shall specify from
time to time by notice to the Lenders. The proceeds of each
Borrowing shall be made available by the Administrative Agent
to the Borrower on the Drawdown Date specified in the Loan
<PAGE>
Request by wire transferring such funds in such amount or
causing such funds in such amount to be wire transferred to
such account of the Borrower, or to such designees of the
Borrower, as shall be designated by the Borrower to the
Administrative Agent in the Loan Request therefor. Each
request for Revolving Loans made pursuant to this Section
3.1.1 shall constitute the representation and warranty of the
Borrower made to the Agents and the Lenders that all of the
applicable conditions contained in Article VII will, after
giving effect to such Revolving Loans, be satisfied, and the
making available of such Revolving Loans to the
Borrower shall be subject to the satisfaction of the
applicable conditions of Article VII.
SECTION 3.1.2. Funding Reliance for Revolving Loans. With
respect to any Revolving Loans, unless the Administrative
Agent shall have been notified in writing by any Lender prior
to the date of such Revolving Loan at the Administrative
Agent's address specified pursuant to Section 13.2 that such
Lender does not intend to make available to the Administrative
Agent all or any portion of such Lender's Percentage of the
Revolving Loans to be made by such Lender on such date, the
Administrative Agent may (but shall not be obligated to)
assume that such Lender has made such amount available to the
Administrative Agent on that date, and, in reliance on such
assumption, the Administrative Agent may make available to the
Borrower a corresponding amount. If any such amount referred
to in the preceding sentence of this Section 3.1.2 is made
available by such Lender to the Administrative Agent on a date
after the date of such Revolving Loan, such Lender shall pay
to the Administrative Agent (for its account) on demand
interest on such amount at a rate of interest equal to, for
the first three Business Days following the date on which the
Administrative Agent made such amounts available to the
Borrower, the daily average Federal Funds Rate and,
thereafter, at the Alternate Base Rate. A statement of the
Administrative Agent submitted to any Lender with respect to
any amounts owing under this Section 3.1.2 shall be conclusive
in the absence of manifest error. Nothing in this Section
3.1.2 shall be deemed to relieve any Lender from its
obligation to fulfill its Commitments hereunder or to
prejudice any rights which the Borrower or the Administrative
Agent may have against any Lender as a result of any default
by that Lender hereunder.
SECTION 3.2. Notes. All Revolving Loans made by each Lender
shall be evidenced by a promissory note of the Borrower, dated
as of the Effective Date, and in or substantially in the form
of Exhibit A attached hereto (as amended, endorsed, replaced
or otherwise modified from time to time, such Lender's
"Note"), payable to the order of such Lender in a face amount
equal to such Lender's Percentage of the Commitment Amount in
effect on the Effective Date. The Borrower hereby irrevocably
authorizes each Lender to make (or cause to be made)
<PAGE>
appropriate notations on the grid attached to such Lender's
Notes (or on a continuation of such grid attached to any such
Note and made a part thereof), which notations, if made, shall
evidence, among other things, the date of, the outstanding
principal of, payments on and the interest rate (including any
conversions thereof pursuant to Section 4.2.) and Interest
Period, if any, applicable from time to time to, the Revolving
Loans evidenced thereby. Any such notations on any such grid
(and on any such continuation) indicating the outstanding
principal amount of such Lender's Revolving Loans shall be
rebuttable presumptive evidence of the principal amount
thereof owing and unpaid, but the failure to record any such
information on such grid (or on such continuation) shall not,
however, limit or otherwise affect the obligations of the
Borrower hereunder or under such Note to make payments of
principal of or interest on such Revolving Loans when due.
SECTION 3.3. Principal Payments. Repayments and prepayments
of principal of the Revolving Loans shall be made in
accordance with the following provisions of this Section 3.3.
SECTION 3.3.1. Repayments. The Borrower promises to make
payment in full of all of the unpaid principal of each
Revolving Loan at the final Maturity thereof. All of the
Obligations evidenced by the Notes and all of the Obligations
under this Agreement shall, if not sooner paid, be in any
event due and payable in full on the Commitment Termination
Date.
SECTION 3.3.2. Revolving Loan Prepayments. The Borrower may,
from time to time on any Business Day (without premium or
penalty, except as may be required by Section 4.8), make a
voluntary prepayment, in whole or in part, of the then
aggregate outstanding principal amount of all Revolving Loans;
provided, however, that (a) all such voluntary prepayments
shall require at least one (and no more than five) Business
Days' prior notice as to prepayments of Base Rate Tranches,
and at least three (and no more than five) Business Days'
prior notice as to prepayments of Eurodollar Tranches, in each
case to the Administrative Agent (which will promptly notify
the Lenders thereof); and (b) all such voluntary prepayments
in part shall be in a minimum aggregate principal amount of
$1,000,000 or in an integral multiple of $100,000 in excess
thereof; Each prepayment of any Revolving Loans made pursuant
to this Section 3.3.2 shall be without premium or penalty,
except as may be required by Section 4.8. Voluntary
prepayments of any Eurodollar Tranches shall only be made at
the end of the Interest Periods applicable thereto, unless all
losses and expenses referred to in Section 4.8 shall be paid
by the Borrower to the Administrative Agent concurrently with
such prepayments.
SECTION 3.4. Interest Payments. The Borrower shall make
payments of interest in accordance with the following
<PAGE>
provisions of this Section 3.4:
SECTION 3.4.1. Interest Rates. The Borrower hereby
absolutely and unconditionally promises to pay interest on the
unpaid principal amount of each Revolving Loan for the period
commencing on the date of such Revolving Loan until such
Revolving Loan is paid in full, as follows: (a) on any portion
of such Revolving Loan that constitutes a Base Rate Tranche,
at a rate per annum equal to the Alternate Base Rate from time
to time in effect plus the Alternate Base Rate Margin in
effect at such time; and (b) on any portion of such Revolving
Loan that constitutes a Eurodollar Tranche, at a rate per
annum equal to the Eurodollar Rate (Reserved Adjusted)
applicable to each Interest Period for such Tranche plus the
Eurodollar Rate Margin in effect from time to time; provided,
that in no event shall the rate of interest on any Tranche
exceed the maximum rate permitted by Applicable Law.
SECTION 3.4.2. Interest on Overdue Amounts. The Borrower
will, on
demand, pay interest on any overdue principal of any of the
Revolving Loans, and, to the maximum extent permitted by
Applicable Law, on any overdue interest, fees or other sums
owing to any Agent or any Lender at a rate per annum that is
at all times equal to the sum of (a) the highest rate per
annum then applicable to any Tranche determined in accordance
with Section 3.4.1, plus (b) two percent (2%).
SECTION 3.4.3. Payment Dates. Interest accrued on each
Revolving Loan shall be payable, without duplication, on: (a)
the Maturity of such Loan; (b) with respect to the outstanding
principal amount of all Base Rate Tranches, on each Quarterly
Payment Date; (c) with respect to the outstanding principal
amount of all Eurodollar Tranches, the last day of each
applicable Interest Period (and, if such Interest Period shall
exceed three months, on the last day of each three-month
period occurring during such Interest Period); (d)with respect
to that portion of the outstanding principal amount of
Revolving Loans converted into Base Rate Tranches or
Eurodollar Tranches on a day when interest would not otherwise
have been payable pursuant to clause (b) or (c), the date of
such conversion; and (e) with respect to any portion of any
Revolving Loans prepaid pursuant to Section 3.3.2, the date of
such prepayment. Interest accrued pursuant to Section 3.4.2
on any overdue principal of any of the Revolving Loans, and,
to the extent permitted by Applicable Law, on any overdue
interest, fees or other sums, shall be payable upon demand
and, in any event, on the last Business Day of each month.
SECTION 3.5. Fees.
SECTION 3.5.l. Closing Fees. The Borrower shall pay to the
Administrative Agent on the Effective Date, for the account of
each Lender, closing fees (the "Closing Fees") in accordance
<PAGE>
with the agreements among the Borrower, the Agents and the
Lenders entered into prior to the date hereof.
SECTION 3.5.2. Commitment Fees. The Borrower shall pay to
the Administrative Agent, for the account of each Lender, fees
("Commitment Fees") on the amount of such Lender's unused
Commitment during the period commencing on the Effective Date
and ending on the Commitment Termination Date. The Commitment
Fees shall be payable by the Borrower to each Lender for each
calendar quarter ending after the Effective Date and (a) shall
be computed on such Lender's Percentage of the Unused
Commitment Amount for such calendar quarter at the annual rate
in each case equal to the Applicable Commitment Fee Rate in
effect from time to time during such calendar quarter, and (b)
shall be payable in arrears on each Quarterly Payment Date,
and on the Commitment Termination Date.
SECTION 3.5.3. Agents' Fees. The Borrower shall pay to the
Administrative Agent on the Effective Date, for the account of
the Agents, agents' fees ("Agents' Fees") in accordance with
the terms of the Agents' Fee Letter. Each payment of the
Agents' Fees, Commitment Fees and Closing Fees shall be
non-refundable.
SECTION 3.6. Making and Proration of Payments; Computations;
etc.
SECTION 3.6.1. Making of Payments. All payments of principal
of and interest on the Notes, and all payments of Fees and
other sums payable under the Loan Documents, shall be made by
the Borrower to the Administrative Agent in immediately
available funds at its Domestic Office not later than noon,
Boston time, on the date due, and funds received after that
hour shall be deemed to have been received by the
Administrative Agent on the next following Business Day. The
Administrative Agent shall promptly remit to each Lender or
Agent its share (if any) of all such payments received in
collected funds by the Administrative Agent. All payments
under Sections 4.5, 4.8, 13.3 and 13.4 shall be made by the
Borrower directly to the Agents or Lenders entitled thereto.
Each payment of principal shall be applied to such Tranches as
the Borrower shall direct by notice to be received by the
Administrative Agent on or before the date of payment, or, in
the absence of such notice, first, towards the payment of
principal of Eurodollar Tranches then due and payable, and,
then, to the extent of the balance, if any, remaining, as the
Administrative Agent shall determine in its discretion.
Concurrently with its remittance to any Lender of its share of
any such payment, the Administrative Agent shall advise such
Lender as to the application of such payment.
SECTION 3.6.2. Setoff. The Borrower agrees that each Agent
and each Lender shall have all rights of set-off and bankers'
liens provided by Applicable Law, and in addition thereto, the
<PAGE>
Borrower agrees that if at any time any payment or other
amount owing by the Borrower under this Agreement is then due
and payable to any Agent or any Lender and remains unpaid,
such Agent or Lender may apply to the payment of such payment
or other amount any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter
deposited or held by such Person.
SECTION 3.6.3. Proration of Payments. If any Lender or other
holder of a Note shall obtain by payment or other recovery
(whether voluntary, involuntary, by application of setoff or
otherwise) of principal of or interest on any Note in excess
of its Ratable share of payments and other recoveries obtained
by all Lenders or other holders of Notes, such Lender or other
holder shall purchase promptly from the other Lenders or
holders such participations in the Notes held by them as shall
be necessary to cause such purchasing Lender or other holder
to share the excess payment or other recovery Ratably with
each of them; provided, however, that if all or any portion of
the excess payment or other recovery is thereafter recovered
from such purchasing Lender or holder, the purchase of such
participation shall be rescinded and the purchase price
restored to the extent of such recovery. The Borrower agrees
that any Lender or other holder of a Note so purchasing a
participation from another Lender or holder pursuant to this
Section 3.6.3 shall be entitled to all rights of set-off and
bankers' liens with respect to such participation as fully as
if such Lender were a direct holder of Revolving Loans and
other Credit Extensions in the amount of such participation.
SECTION 3.6.4. Due Date Extension. If any payment of
principal of or interest on any of the Notes, or any payment
of any Fees or other sums payable under the Loan Documents,
falls due on a day which is not a Business Day, then such due
date shall be extended to the next following Business Day
(unless, in the case of interest due on the principal amount
of any Eurodollar Tranche, such next following Business Day is
the first day of a calendar month, in which case such due date
shall be the immediately preceding Business Day), and
additional interest and Commitment Fees shall accrue and be
payable for the period of such extension.
SECTION 3.6.5. Notice of Changes in Alternate Base Rate;
Notice of Eurodollar Rates. Changes in the rate of interest
on any Base Rate Tranches shall take effect simultaneously
with each change in the Alternate Base Rate. The
Administrative Agent shall give notice promptly to the
Borrower and the Lenders of changes in the Alternate Base
Rate. The applicable Eurodollar Rate for each Interest Period
shall be determined by the Administrative Agent, and notice
thereof shall be given by the Administrative Agent promptly to
the Borrower and each Lender. Each determination of the
Alternate Base Rate and the applicable Eurodollar Rate by the
Administrative Agent shall be conclusive and binding upon the
<PAGE>
parties hereto, in the absence of manifest error. The
Administrative Agent shall, upon written request of the
Borrower or any Lender, deliver to the Borrower or such Lender
a statement showing the computations used by the
Administrative Agent in determining any applicable Eurodollar
Rate hereunder. Each Reference Lender agrees to furnish to
the Administrative Agent timely information for determining
the applicable Eurodollar Rate. If any one or more of the
Reference Lenders shall fail to timely furnish such
information to the Administrative Agent for any such interest
rate, the Administrative Agent shall determine such interest
rate on the basis of the information furnished by the
remaining Reference Lenders.
SECTION 3.6.6. Computations. Interest based on the Alternate
Base Rate shall be computed on the basis of a year of 365 or
366 days, as applicable, and for the actual number of days
(including the first day, but excluding the last day)
occurring in the period for which such interest is payable.
Interest based on the Eurodollar Rate (Reserve Adjusted) and
Commitment Fees shall be computed on the basis of a year of
360 days, and for the actual number of days (including the
first day, but excluding the last day) occurring in the period
for which such interest or fees are payable.
SECTION 3.6.7. Record keeping. Each Lender shall record in
its records, or at its option on the grid attached to each of
its Notes, the date and amount of each of the Revolving Loans
and other Credit Extensions made by such Lender, each
repayment and prepayment thereof and, in the case of each
Eurodollar Tranche, the principal amount thereof and the dates
on which each Interest Period for such Tranche shall begin and
end. The aggregate unpaid principal amount so recorded shall
be rebuttable presumptive evidence of the principal amount
owing and unpaid on such Note. The failure to so record any
such amount or any error in so recording any such amount shall
not, however, limit or otherwise affect the obligations of the
Borrower or the Guarantor hereunder or under any Note to repay
the principal amount of the Revolving Loans or other Credit
Extensions evidenced by such Note together with all interest
accruing thereon.
SECTION 3.7. Taxes. All payments of principal of and
interest on the Notes and of all Fees and other sums payable
hereunder or under any of the other Loan Documents shall be
made free and clear of and without deduction for any present
or future income, excise, stamp or franchise taxes or other
taxes, fees, duties, withholdings or charges of any nature
whatsoever imposed by any Governmental Authority, but
excluding franchise taxes imposed on any Lender and taxes
imposed on any Lender measured by such Lender's net income or
receipts (all non-excluded items being called "Taxes"). If
any withholding or deduction from any such payment to be made
hereunder or under any of the other Loan Documents is required
<PAGE>
in respect of any Taxes pursuant to any Applicable Law, then
the Borrower will: (a) pay directly to the relevant
Governmental Authority the full amount required to be so
withheld or deducted; (b) promptly forward to the
Administrative Agent and each affected Agent or Lender an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing that the Borrower has made
such payment to such Governmental Authority; and (c) pay to
the Administrative Agent such additional amounts as are
necessary to ensure that the net amount actually received by
each affected Agent or Lender will equal the full amount such
Agent or Lender would have received had no such withholding or
deduction been required. Moreover, if any Taxes are directly
asserted against any Agent or Lender with respect to any
payment received by such Agent or Lender hereunder or under
any of the other Loan Documents, such Agent or Lender may pay
such Taxes and the Borrower will promptly pay such additional
amounts (including any interest) as are necessary in order
that the net amount received by such Agent or Lender after the
payment of such Taxes (including any Taxes on such additional
amount) shall equal the amount such Agent or Lender would have
received had such Taxes not been asserted. If the Borrower
fails to pay any Taxes when due to the appropriate
Governmental Authority or fails to remit to the Administrative
Agent when due any payments required by this Section 3.7 or
any required receipts or other required documentary evidence,
the Borrower shall indemnify each of the Agents and Lenders
for any incremental Taxes, interest or penalties that may
become payable by any of the Agents or Lenders as a result of
any such failure on the part of the Borrower and shall
promptly pay to the Administrative Agent any amounts not paid
when due to the Administrative Agent as required by this
Section 3.7. Each Agent or Lender which is organized under
the laws of any jurisdiction other than the United States or
any State thereof shall deliver to the Administrative Agent
and the Borrower, on or prior to the first date on which any
payments to such Agent or Lender shall be due hereunder (in
the case of each Agent or Lender listed on the signature pages
hereof) or prior to the effective date of transfer of any
interest in this Agreement or the Notes (in the case of any
Purchasing Lender or successor Agent)either U.S. Internal
Revenue Service Form 4224, U.S. Internal Revenue Service Form
1001 or U.S. Internal Revenue Service Form W-8 (wherein such
Agent or Lender claims entitlement to complete exemption from
U.S. federal withholding tax on all payments of principal,
interest, fees or other amounts payable hereunder or under any
of the Loan Documents), and deliver to the Administrative
Agent and the Borrower a new Form 4224 or Form 1001 upon the
expiration or obsolescence of any previously delivered form
and comparable statements in accordance with Applicable Laws
of the United States duly executed and completed by such Agent
or Lender, and will comply from time to time with Applicable
Law with regard to such withholding tax exemption. The
Borrower shall not be required to pay any additional amount to
<PAGE>
any Agent or Lender under this Section 3.7 if such Agent or
Lender shall have failed to satisfy its obligations under this
paragraph; provided that if such Agent or Lender shall have
satisfied such
obligations on the first date on which any payments to such
Agent or Lender shall be due hereunder (in the case of each
Agent or Lender listed on the signature pages hereof) or on
the effective date of the transfer of interests in this
Agreement or the Notes (in the case of each Purchasing Lender
or successor Agent), nothing in this paragraph shall relieve
the Borrower of its obligation to pay any additional amounts
pursuant to this Section 3.7 in the event that, as a result of
the adoption of or any change in any Applicable Law, such
Agent or Lender is no longer properly entitled to an exemption
from withholding as described above in this paragraph.
If any Lender or Agent shall become aware that it is entitled
to receive a refund in respect of taxes as to which it has
been indemnified by the Borrower pursuant to this Section 3.7,
it shall promptly notify the Borrower of the availability of
such refund and shall, within sixty (60)days after receipt of
a request by the Borrower, apply for such refund at the
Borrower's expense. If any Lender or Agent, as applicable,
actually receives a refund in cash in respect of any taxes to
which it has been indemnified by the Borrower pursuant to this
Section 3.7, it shall promptly repay such refund to the
Borrower (to the extent of amounts that have actually been
paid by the Borrower in cash under this Section 3.7 with
respect to such refund), net of all reasonable out-of-pocket
expenses of such Lender or Agent, as applicable; provided,
however, that the Borrower, upon the request of such Lender or
Agent, as applicable, agrees to return such refund to such
Lender or Agent in the event such Lender or Agent is required
to repay such refund.
SECTION 3.8. Use of Proceeds. The Borrower covenants and
agrees that the proceeds of all Revolving Loans and other
Credit Extensions made pursuant hereto will be used to repay
Indebtedness for Borrowed Money of the Borrower or any of its
Subsidiaries and for working capital and other general
corporate purposes.
ARTICLE IV
FUNDING OPTIONS
SECTION 4.1. Pricing Tranches of Each Revolving Loan. The
outstanding principal amount of each Revolving Loan made by
each Lender may be allocated among pricing tranches
(individually, a "Tranche" and collectively, "Tranches")
selected by the Borrower from time to time in accordance with
Sections 3.1, 4.2 and 4.3. Each Tranche shall be either a
Base Rate Tranche or a Eurodollar Tranche (each a "type" of
Tranche), as the Borrower shall specify in the initial notice
<PAGE>
of borrowing pursuant to Section 3.1, or any written notice
pursuant to Section 4.2 or 4.3. All Base Rate Tranches, and
all Eurodollar Tranches having the same Interest Period, may
sometimes be referred to as a "Group" of Tranches.
SECTION 4.2. Conversion Procedures. Subject to the
provisions of Section 4.4, the Borrower may convert all or any
part of any outstanding Group of Tranches into a Group of
Tranches of a different type by delivering a written notice to
the Administrative Agent not later than (a) in the case of
conversion into a Base Rate Tranche, 10:00 a.m., Boston time,
on the proposed date of such conversion, and (b) in the case
of a conversion into a Eurodollar Tranche, 10:00 a.m., Boston
time, at least three (3) Business Days prior to the proposed
date of such conversion. Each such notice shall be
irrevocable upon receipt by the Administrative Agent and shall
specify the date and amount of such conversion, the Group of
Tranches (or portion thereof) to be so converted, the type of
Tranche to be converted into and, in the case of a conversion
into a Eurodollar Tranche, the initial Interest Period
therefor; provided, however, that no Eurodollar Tranche shall
be converted on any day other than the last day of its
Interest Period. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof. Subject
to the provisions of this Section 4.2 and Section 4.4, each
Tranche shall be so converted on the requested date of
conversion.
SECTION 4.3. Continuation Procedures. Subject to the
provisions of Section 4.4, the Borrower may continue all or
any part of any outstanding Group of Eurodollar Tranches for
an additional Interest Period commencing upon the conclusion
of the Interest Period then in effect for such Group of
Eurodollar Tranches, by delivering a written notice to the
Administrative Agent not later than 10:00 a.m., Boston time,
at least three (3) Business Days prior to the end of such
then-current Interest Period. Each such notice shall be
irrevocable upon receipt by the Administrative Agent and shall
specify the amount to be so continued, the date of such
continuation and the Interest Period therefor that is to
commence upon the termination of the then-current Interest
Period. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof.
SECTION 4.4. Limitations on Interest Periods and Continuation
and Conversion Elections. The Borrower's rights under
Sections 3.1, 4.2 and 4.3 shall be subject to the following
limitations.
<PAGE>
SECTION 4.4.1. Interest Periods. Each Interest Period for a
Eurodollar Tranche shall commence on the date the Revolving
Loan is made, if applicable, or on the date such Tranche is
converted from a Base Rate Tranche, or, in the case of a
continuation, on the expiration of the immediately preceding
Interest Period for such Eurodollar Tranche, and shall end on
the date which is one, two, three or six months thereafter, as
the Borrower may specify in the related notice of borrowing
pursuant to Section 3.1, or written notice pursuant to Section
4.2 or 4.3; provided, however, that: (a)each Interest Period
for a Eurodollar Tranche that would otherwise end on a day
which is not a Business Day shall end on the immediately
succeeding Business Day (unless such immediately succeeding
Business Day is the first Business Day of a calendar month, in
which case such Interest Period shall end on the immediately
preceding Business Day); (b) the Borrower may not select any
Interest Period for any principal of any Revolving Loan which
would end after the Maturity of such principal; and (c) absent
the timely selection of a new Interest Period for a then
outstanding Eurodollar Tranche, or any part thereof, such
Eurodollar Tranche or such part, as the case may be, shall,
immediately upon the expiration of such Interest Period,
automatically and without further action, be converted into a
Base Rate Tranche.
SECTION 4.4.2. No Defaults. No portion of the outstanding
principal amount of any Revolving Loan may be continued as, or
converted into, one or more Eurodollar Tranches unless, on and
as of the requested date of continuation or conversion, no
Default shall have occurred and then be continuing
SECTION 4.4.3. Other Limitations. At all times: (a) the
aggregate principal amount of all Tranches of each Lender's
Revolving Loans shall equal the aggregate outstanding
principal amount of such Lender's Revolving Loans; (b) the
aggregate principal amount of each Group of Eurodollar
Tranches shall be in a minimum amount of $1,000,000 or in an
integral multiple of $500,000 in excess thereof; (c) the total
number of Eurodollar Tranches in effect at any time shall not
exceed eighteen (18); and (d) each Lender shall at all times
have a Ratable share of each Group of Tranches, except for any
Group of Base Rate Tranches that includes an Affected Tranche.
SECTION 4.5. Increased Costs.
(a) If (i) Regulation D of the F.R.S. Board, or (ii) after the
date hereof, the adoption of any Applicable Law, or any change
therein or in any existing Applicable Law, or any change in
the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof, or compliance by the Issuer or any
Lender (or any Eurodollar Office of such Lender) with any
request or directive (whether or not having the force of law)
of any such Governmental Authority: (A) shall subject the
<PAGE>
Issuer or any Lender (or any Eurodollar Office of such Lender)
to any tax, duty or other charge with respect to any Letter of
Credit or its Eurodollar Tranches, its Notes or its
obligation to make Eurodollar Tranches available, or shall
change the basis of taxation of payments to the Issuer or to
any Lender of the principal of or interest on its Eurodollar
Tranches or any other amounts due under this Agreement with
respect to any Letter of Credit or in respect of its
Eurodollar Tranches or its obligation to make Eurodollar
Tranches available (except, in any case, for franchise taxes
imposed on the Issuer or such Lender and taxes imposed on the
Issuer or such Lender measured by the Issuer's or such
Lender's net income or receipts); or (B) shall impose, modify
or deem applicable any reserve (including, without limitation,
any reserve imposed by the F.R.S. Board), special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, the Issuer or any
Lender (or any Eurodollar Office of such Lender); or (c) shall
impose on the Issuer or any Lender (or its Eurodollar Office)
any other condition (excluding any condition imposed on the
Issuer or any such Lender as a consequence of its violation of
Applicable Law) affecting any Letter of Credit or its
Eurodollar Tranches, its Notes or its obligation to make
Eurodollar Tranches available; and the result of any of the
foregoing is to increase the cost to (or in the case of
Regulation D referred to above, to impose a cost on) the
Issuer or such Lender (or any Eurodollar Office of such
Lender) of issuing, making or maintaining any Letter of
Credit, purchasing or maintaining any participation therein,
or making or maintaining any Eurodollar Tranche, or to reduce
the amount of any sum received or receivable by the Issuer or
such Lender (or its Eurodollar Office) under this Agreement or
under its Notes with respect thereto or with respect to any
Letter of Credit, then upon demand by the Issuer or such
Lender, the Borrower shall pay directly to the Issuer or such
Lender, as the case may be, such additional amount as will
compensate the Issuer or such Lender for such increased cost
or such reduction.
(b) If, at any time after the Effective Date, the Issuer or
any Lender shall reasonably determine that the adoption or
phase-in of any Applicable Law regarding capital adequacy, or
any change therein or in any existing Applicable Law, or any
change in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof, or compliance by the Issuer or any
Lender (or its Eurodollar Office) or any Person controlling
the Issuer or such Lender with any request or directive
regarding capital adequacy (whether or not having the force of
law) of any such Governmental Authority, has or would have the
effect of reducing the rate of return on the Issuer's or such
Lender's or such controlling Person's capital as a consequence
of the obligations of the Issuer or such Lender hereunder
(including, without limitation, such Lender's Commitments) to
a level below that which the Issuer, such Lender or such
<PAGE>
controlling Person could have achieved but for such adoption,
phase-in, change or compliance (taking into consideration the
Issuer's, such Lender's or such controlling Person's policies
with respect to capital adequacy) by an amount deemed by the
Issuer, such Lender or such controlling Person to be material,
then from time to time, upon demand by the Issuer or such
Lender, the Borrower shall pay to the Issuer or such Lender
such additional amount or amounts as will compensate the
Issuer or such Lender or such controlling Person for such
reduction.
SECTION 4.6. Interest Rate Unavailable. If, with respect to
any Interest Period, deposits in Dollars (in the applicable
amounts) are not being offered to one or more Lenders in the
relevant market for such Interest Period, or the
Administrative Agent otherwise determines (which determination
shall be binding and conclusive on the Borrower) that by
reason of circumstances affecting the interbank Eurodollar
market, adequate and reasonable means do not exist for
ascertaining the applicable Eurodollar Rate, then the
Administrative Agent shall promptly notify the Borrower and
the Lenders thereof and, so long as such circumstances shall
continue, (a) no Lender shall thereafter have any obligation
to fund or make available Eurodollar Tranches, and (b) on the
last day of the current Interest Period for any Eurodollar
Tranche, such Tranche shall, unless then repaid in full,
automatically convert to a Base Rate Tranche.
SECTION 4.7. Changes in Law Rendering Eurodollar Tranches
Unlawful. In the event that the adoption or phase-in of any
Applicable Law, or any change therein or in any existing
Applicable Law or any change in the interpretation thereof by
any Governmental Authority charged with the interpretation or
administration thereof, shall make it unlawful for any Lender
to maintain or fund Eurodollar Tranches, then such Lender
shall promptly notify the Borrower, the other Lenders and the
Administrative Agent and, so long as such circumstances shall
continue, (a) such Lender shall thereafter have no obligation
to fund or make available Eurodollar Tranches (but shall fund
Base Rate Tranches concurrently with the making of the
Revolving Loans, or the continuation or conversion into
Eurodollar Tranches by the Lenders which are not so affected,
in each case in an amount equal to such Lender's Ratable share
of all Eurodollar Tranches that would be funded at such time
in the absence of such circumstances), and (b) on the last day
of the current Interest Period for any Eurodollar Tranche of
such Lender (or, in any event, if such Lender so requests, on
such earlier date as may be required by the relevant
Applicable Law), such Eurodollar Tranche shall, unless then
repaid in full, automatically convert to a Base Rate Tranche.
Each Base Rate Tranche funded by a Lender which, but for the
circumstances described in the foregoing sentence, would have
been a Eurodollar Tranche (an "Affected Tranche") shall,
notwithstanding any other provision of this Agreement, remain
<PAGE>
outstanding for the same period as the Group of Eurodollar
Tranches of which such Affected Tranche would have been part
absent such circumstances.
SECTION 4.8. Funding Losses. The Borrower hereby agrees
that, upon demand by the Issuer or any Lender, the Borrower
will indemnify the Issuer or such Lender, as the case may be,
against any net loss or expense which the Issuer or such
Lender may sustain or incur (including, without limitation,
any net loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by the
Issuer or such Lender to maintain or fund any Eurodollar
Tranche, but excluding, in any event, any loss of any margin
above the Eurodollar Rate (Reserve Adjusted)), as reasonably
determined by the Issuer or such Lender, as a result of (a)
any payment, repayment, prepayment or conversion of any
Eurodollar Tranche of the Issuer or such Lender on a date
other than the last day of an Interest Period for such Tranche
(including any conversion
pursuant to Section 4.7) or (b) any failure of the Borrower to
borrow, continue or convert any Tranche on a date specified
therefor in a notice of borrowing pursuant to Section 3.1 or
in any written notice pursuant to Section 4.2 or 4.3.
SECTION 4.9. Right of Lenders to Fund Through Other Offices.
Each Lender may, if it so elects, fulfill its commitment as to
any Eurodollar Tranche by causing the Eurodollar Office of
such Lender to fund such Eurodollar Tranche, provided that in
such event for the purposes of this Agreement such Tranche
shall be deemed to have been funded by such Lender and the
Obligation of the Borrower to repay such Tranche shall
nevertheless be to such Lender and shall be deemed held by it,
to the extent of such Tranche, for the account of such
Eurodollar Office.
SECTION 4.10. Discretion of Lenders as to Manner of Funding.
Notwithstanding any provision of this Agreement to the
contrary, each Lender shall be entitled to maintain and fund
all or any part of any of its Revolving Loans in any manner it
sees fit, it being understood, however, that for purposes of
this Agreement all determinations hereunder (including
determinations of any net loss or expense under Section 4.8)
shall be made as if such Lender had actually funded and
maintained each Eurodollar Tranche during each Interest Period
for such Tranche actually funded or requested by the Borrower
to be funded through the purchase of a deposit on the first
day of such Interest Period having a principal amount equal to
the principal amount of such Tranche, having a maturity
corresponding to such Interest Period and bearing an interest
rate equal to the Eurodollar Rate for such Interest Period.
SECTION 4.11. Conclusiveness of Statements; Survival of
Provisions. (a) Demands made by the Issuer or any Lender
to the Borrower under Section 3.7, 4.5 or 4.8 shall be
<PAGE>
accompanied by a statement setting forth the basis for the
calculations of the amounts being claimed, and a copy of such
statement shall be furnished to the Administrative Agent.
Such statements, and all other determinations and statements
of the Issuer or any Lender pursuant to Section 3.7, 4.5, 4.6,
4.7 or 4.8, shall be conclusive absent manifest error. The
Issuer and each of the Lenders shall use reasonable averaging
and attribution methods in determining compensation under
Sections 4.5 and 4.8, and the provisions of such Sections
shall survive the termination or expiration of any Letters of
Credit, repayment or prepayment of any of the Revolving Loans,
cancellation of the Notes and any termination of this
Agreement.
(b) If any Lender claims any additional amounts pursuant to
Section 3.7, 4.5 or 4.8, it shall use its reasonable efforts
(consistent with legal and regulatory restrictions) to avoid
the need for paying such additional amounts (including payment
of any interest or penalties to any tax or other Governmental
Authority), including changing the jurisdiction of its
applicable lending office; provided that the taking of any
such action would not, in the reasonable judgment of such
Lender, be disadvantageous to such Lender.
(c) In the event that any Lender delivers to the Borrower a
statement in accordance with paragraph (a) (other than a
statement as to amounts payable pursuant to Section 4.8), or
the Borrower is required to pay any additional amounts or
other payments in accordance with Section 3.7 or 4.5, the
Borrower may, at its own expense and in its sole discretion,
(i) require such Lender to transfer or assign, in whole and
without recourse (in accordance with Section 12.2), all of
such Lender's rights and obligations under this Agreement and
its Notes to a Purchasing Lender identified by the Borrower,
such assignment and transfer to be subject to all of the
provisions contained in Section 12.2, or (ii) so long as no
Defaults or Events of Default shall be continuing, terminate
all of the Commitments of such Lender, prepay all outstanding
Revolving Loans of such Lender, pay in full all other
Obligations of the Borrower to such Lender, including all
Obligations of the Borrower to such Lender under Sections 3.7,
4.5 and 4.8, and make arrangements completely satisfactory to
the Administrative Agent and to such Lender to relieve such
Lender of its obligations under Sections 2.1(b) and 5.4.
ARTICLE V
LETTERS OF CREDIT
SECTION 5.1. Requests for Letters of Credit. The Borrower
may request, by delivering to the Administrative Agent an
Issuance Request on or before 10:00 a.m., Boston time, at any
time and from time to time prior to the Commitment Termination
Date and on not less than two (2) Business Days' prior notice,
that the Issuer issue, for the account of the Borrower or for
the account of any Subsidiary of the Borrower (but guaranteed
<PAGE>
by the Borrower), (A) an irrevocable standby letter of credit
in such form as may be requested by the Borrower and approved
by the Issuer, or (B) a documentary letter of credit in such
form as may be requested by the
Borrower and approved by the Issuer (each letter of credit
described in the foregoing clauses (a) and (b), a "Letter of
Credit"), in support of financial obligations of the Borrower
or of any of its Subsidiaries or Affiliates which are
described in such Issuance Request. Upon receipt of an
Issuance Request, the Administrative Agent shall promptly
notify the Lenders thereof. Each Letter of Credit shall by
its terms: (a) be issued in a Stated Amount which (i) is at
least $100,000, and (ii) immediately before giving effect to
the issuance of such Letter of Credit, does not exceed (or
would not exceed) the Letter of Credit Availability then in
effect; (b)be stated to expire on a date (its "Stated Expiry
Date") that is no later than the earlier of one year from its
date of issuance (or two years from its date of issuance as
long as the Total Undrawn Amount of all such Letters of Credit
does not at any time exceed $25,000,000) or the Commitment
Termination Date , provided that any Letter of Credit may
contain a provision pursuant to which it is deemed to be
extended on an annual basis unless notice of termination is
given by the Issuer, and, provided, further, that no Letter of
Credit shall be so extendible beyond the Commitment
Termination Date; and (c) on or prior to its Stated Expiry
Date
(i) terminate immediately upon notice to the Issuer thereof
from the beneficiary thereunder that all obligations covered
thereby have been terminated, paid or otherwise satisfied in
full, (ii) reduce in part immediately and to the extent the
beneficiary thereunder has notified the Issuer thereof that
the obligations covered thereby have been paid or otherwise
satisfied in part, or (iii) terminate thirty (30) days after
notice to the beneficiary thereunder from the Issuer thereof
that an Event of Default has occurred and is continuing.
By delivery to the Issuer and the Administrative Agent of an
Issuance Request not less than two (2) Business Days prior to
the Stated Expiry Date of any Letter of Credit, the Borrower
may request the Issuer to extend the Stated Expiry Date of
such Letter of Credit for an additional period not to exceed
the earlier of one year from its date of extension or the
Commitment Termination Date.
SECTION 5.2. Issuances and Extensions. Subject to the terms
and
conditions of this Agreement (including Article VII), the
Issuer shall issue Letters of Credit and extend the Stated
Expiry Dates of outstanding Letters of Credit for additional
periods of the shorter of (a) one year, or (b) the Commitment
Termination Date, in accordance with the Issuance Requests
made therefor. If any Letter of Credit contains a provision
pursuant to which it is deemed to be extended unless notice of
<PAGE>
termination is given by the Issuer, the Issuer (i) shall not
be required to give such notice of termination unless the
Borrower has timely requested such termination, and (ii) may
timely give such notice of termination unless the Issuer has
theretofore timely received an Issuance Request and the other
conditions to issuance of a Letter of Credit have also
theretofore been met with respect to such extension. The
Issuer will make available the original of each Letter of
Credit which it issues in accordance with the Issuance Request
therefor to the beneficiary thereof (and will promptly provide
each of the Lenders with a copy of such Letter of Credit) and
will notify the beneficiary under any Letter of Credit issued
by it of any extension of the Stated Expiry Date thereof.
SECTION 5.3. Fees and Expenses. The Borrower agrees to pay
to the Administrative Agent:
(a) for the account of the Issuer, with respect to each
Letter of Credit, a fronting fee of 0.125% per annum (calculated from
and including the date of issuance (or date of renewal or
extension, if any) thereof to the Stated Expiry Date thereof)
on the Total Undrawn Amount from time to time of such Letter
of Credit; and
(b) for the account of the Lenders ratably in accordance with
their respective Percentages, an issuing fee equal to the
Eurodollar Rate Margin in effect from time to time from the
date of issuance, or (as the case may be) the date of renewal
or extension (calculated from and including the date of
issuance (or date of renewal or extension, if any) thereof to
the Stated Expiry Date thereof) on the Total Undrawn Amount
from time to time of each Letter of Credit; payable in each
case (i) quarterly in arrears on each Quarterly Payment Date,
commencing with the first Quarterly Payment Date occurring
after the date of issuance of such Letter of Credit, and (ii)
on the Stated Expiry Date of such Letter of Credit. The
Borrower further agrees to pay to the Administrative Agent for
the account of the Issuer administrative expenses of the
Issuer in connection with the issuance, maintenance,
modification (if any) and administration of each applicable
Letter of Credit upon demand by the Issuer from time to time
and in accordance with the Issuer's applicable fee schedules
from time to time in effect.
SECTION 5.4. Other Lenders' Participations. Each Letter of
Credit pursuant to Section 5.2 shall, effective upon its
issuance and without further action, be issued on behalf of
all Lenders (including the Issuer) pro rata according to their
respective Percentages. Each Lender shall, to the extent of
its Percentage, be deemed to have irrevocably participated in
the issuance of such Letter of Credit and shall be responsible
to reimburse promptly the Issuer for Reimbursement Obligations
which have not been reimbursed by the Borrower or any of its
Subsidiaries in accordance with Section 5.5, or which have
<PAGE>
been reimbursed by the Borrower or any of its Subsidiaries but
must be returned, restored or disgorged
by the Issuer for any reason, and each Lender shall, to the
extent of its Percentage, be entitled to receive from the
Issuer a ratable portion of the letter of credit fees received
by the Issuer pursuant to clause (b) of Section 5.3, with
respect to each Letter of Credit. In the event that the
Borrower or any of its Subsidiaries shall fail to reimburse
the Issuer, or if for any reason Revolving Loans shall not be
made to fund any Reimbursement Obligation, all as provided in
Section 5.5 in an amount equal to the amount of any drawing
honored by the Issuer under a Letter of Credit issued by it,
or in the event the Issuer must for any reason return or
disgorge such reimbursement, the Issuer shall promptly notify
each Lender of the unreimbursed amount of such drawing and of
such Lender's respective participation therein. Each Lender
shall make available to the Issuer, whether or not any Default
or Event of Default shall have occurred and be continuing, an
amount equal to its respective participation in immediately
available funds at the office of the Issuer specified in such
notice not later than 11:00 a.m. (Boston time) on the Business
Day after the date notified by the Issuer. In the event that
any Lender fails to make available to such Issuer the amount
of such Lender's participation in such Letter of Credit as
provided herein, the Issuer shall be entitled to recover such
amount on demand from such Lender together with interest at
the daily average Federal Funds Rate. Nothing in this Section
5.4 shall be deemed to prejudice the right of any Lender to
recover from the Issuer any amounts made available by such
Lender to the Issuer pursuant to this Section 5.4 in the event
that it is determined by a court of competent jurisdiction
that the payment with respect to a Letter of Credit by the
Issuer in respect of which payment was made by such Lender
constituted gross negligence or willful misconduct on the part
of the Issuer. The Issuer shall distribute to each other
Lender which has paid all amounts payable by it under this
Section 5.4 with respect to any Letter of Credit issued by the
Issuer such other Lender's Percentage of all payments received
by the Issuer from the Borrower or any of its Subsidiaries in
reimbursement of drawings honored by the Issuer under such
Letter of Credit when such payments are received.
SECTION 5.5. Disbursements. The Issuer will notify the
Borrower and the Administrative Agent promptly of the
presentment for payment of any Letter of Credit issued by it,
together with notice of the date (the "Disbursement Date")
such payment shall be made. Subject to the terms and
provisions of such Letter of Credit, the Issuer shall make
such payment to the beneficiary (or its designee) of such
Letter of Credit. Prior to 11:00 a.m., Boston time, on the
Disbursement Date, the Borrower will, or will cause the
Subsidiary for whose account the Letter of Credit was issued
to, reimburse the Issuer for all amounts which the Issuer has
disbursed under such Letter of Credit issued by it. To the
<PAGE>
extent the Issuer is not reimbursed in full in accordance with
the third sentence of this Section 5.5, the Reimbursement
Obligations in respect of a Letter of Credit shall accrue
interest at a fluctuating rate determined by reference to the
Alternate Base Rate, plus the Alternate Base Rate Margin,
payable on demand. In the event the Issuer is not reimbursed
by the Borrower or any of its Subsidiaries on the Disbursement
Date, or if the Issuer must for any reason return or disgorge
such reimbursement, the Lenders (including the Issuer) shall
fund the Reimbursement Obligations therefor by making
Revolving Loans which are Base Rate Tranches as provided in
Section 3.1 (the Borrower being deemed to have given a timely
Loan Request therefor for such amount); provided, however,
that for the purpose of determining the availability of the
Commitments immediately prior to giving effect to the
application of the proceeds of such Revolving Loans, such
Reimbursement Obligations shall be deemed not to be
outstanding at such time.
SECTION 5.6. Reimbursement. The Borrower's Obligations under
Section 5.5, and the obligations of any Subsidiary of the
Borrower for the account of which any Letters of Credit shall
have been issued, to reimburse the Issuer with respect to each
Disbursement (including interest thereon) in respect of
Letters of Credit (the "Reimbursement Obligations"), and each
Lender's obligations to make participation payments in each
drawing under Letters of Credit which have not been reimbursed
by the Borrower or any of its Subsidiaries, shall be absolute
and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment
which the Borrower or any of its Subsidiaries may have or have
had against the Issuer, any Lender or any beneficiary of any
Letter of Credit, including any defense based upon the
occurrence of any Default or Event of Default, any draft,
demand or certificate or other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient, the failure of any Disbursement to conform to
the terms of the applicable Letter of Credit (if, in the
Issuer's good faith opinion in respect of Letters of Credit,
such Disbursement is determined to be appropriate), or any
nonapplication or misapplication by the beneficiary of the
proceeds of such Disbursement, or the legality, validity,
form, regularity or enforceability of such Letter of Credit;
and provided, however, that nothing herein shall adversely
affect the right of the Borrower to commence any proceeding
against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit issued by it as a result of
acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuer.
SECTION 5.7. Deemed Disbursements. Upon the occurrence and
during the continuation of any Event of Default, an amount
equal to that portion of Letter of Credit Outstandings
<PAGE>
attributable to outstanding and undrawn Letters of Credit
shall, at the direction of the Required Lenders, and without
demand upon or notice to the Borrower or any of its
Subsidiaries, be deemed to have been paid or disbursed by the
Issuer thereof under such Letters of Credit (notwithstanding
that such amount may not in fact have been so paid or
disbursed), and, upon notification by the Administrative Agent
to the Borrower of its Obligations under this Section 5.7, the
Borrower shall be immediately obligated to reimburse the
Administrative Agent, on behalf of the Issuer and the Lenders,
the amount deemed to have
been so paid or disbursed by the Issuer. Any amounts so
received by the Issuer from the Borrower pursuant to this
Section 5.7 shall be held as collateral security for the
repayment of the Borrower's Obligations, including Obligations
under the Guaranty, in connection with the Letters of Credit
issued by the Issuer. At any time when such Letters of Credit
shall terminate and all obligations of the Issuer are either
terminated or paid or reimbursed to the Issuer in full, the
Obligations of the Borrower under this Section 5.7 shall be
reduced accordingly (subject, however, to reinstatement in the
event any payment in respect of such Letters of Credit is
recovered in any manner from the Issuer), and the Issuer will,
if no other monetary Obligations are then owed to the Issuer
or the Lenders hereunder, return to the Borrower the excess,
if any, of (a) the aggregate amount deposited by the Borrower
with the Issuer and not theretofore applied by the Issuer to
any Reimbursement Obligations owed to the Issuer, over (b) the
aggregate amount of all Reimbursement Obligations owed to the
Issuer pursuant to this Section, as so adjusted. If any other
monetary Obligations shall be owed by the Borrower or any of
its Subsidiaries to the Issuer or any Lender hereunder, then
the Issuer shall turn over such excess amount to the
Administrative Agent for application to such Obligations until
the same shall be paid in full. At such time when all Events
of Default shall have been cured or waived and all of the
Borrower's monetary Obligations hereunder shall have been paid
in full, the Issuer or the Administrative Agent, as the case
may be, shall return to the Borrower all amounts then on
deposit with the Issuer pursuant to this Section 5.7. All
amounts on deposit pursuant to this Section shall, until their
application to any Reimbursement Obligations or their return
to the Borrower, as the case may be, bear interest at the
daily average Federal Funds Rate from time to time in effect
(net of the costs of any reserve requirements, in respect of
amounts on deposit pursuant to this Section, pursuant to
F.R.S. Board Regulation D), which interest shall be held by
the Issuer or the Administrative Agent, as the case may be, as
additional collateral security for the repayment of the
Borrower's Obligations in connection with the Letters of
Credit issued by the Issuer and the Borrower's other monetary
Obligations hereunder or under any Loan Document.
SECTION 5.8. Nature of Reimbursement Obligations. The
<PAGE>
Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof.
Neither the Issuer nor any Lender (except to the extent of its
own gross negligence or willful misconduct) shall be
responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted
by any party in connection with the application for and
issuance of a Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any
reason;
(c) the failure of the beneficiary to comply fully with
conditions required in order to demand payment under a Letter
of Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement
under a Letter of Credit or of the proceeds thereof.
None of the foregoing shall affect, impair or prevent the
vesting of any of the rights or powers granted to the Issuer
or any Lender hereunder. In furtherance and extension, and
not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good
faith shall be binding upon the Borrower and its Subsidiaries
and shall not put the Issuer under any resulting liability to
the Borrower or any of its Subsidiaries.
SECTION 5.9. Indemnity. In addition to amounts payable as
elsewhere provided in this Article V or in Article VI, the
Borrower hereby agrees to protect, indemnify, pay and save the
Issuer and each Lender participating in any Letter of Credit
harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) which the Issuer or
such Lender participating in such Letter of Credit may incur
or be subject to as a consequence, direct or indirect, of (a)
the issuance of any Letter of Credit, whether for the account
of the Borrower or any of its Subsidiaries, other than as a
result of the gross negligence or willful misconduct of the
Issuer or such Lender participating in such Letter of Credit
as determined by a court of competent jurisdiction, or (b) the
failure of the Issuer or such Lender participating in such
Letter of Credit to honor a drawing under any Letter of Credit
issued by it as a result of any act or omission, whether
rightful or wrongful, of any
<PAGE>
present or future de jure or de facto Governmental Authority.
ARTICLE VI
GUARANTY
SECTION 6.1. Guaranty of Payment. The Borrower (in its
capacity as the guarantor under this Article VI, the
"Guarantor") hereby absolutely, unconditionally and
irrevocably guaranties to the Issuer, the Agents and the
Lenders the full and punctual payment when due, whether at
stated maturity, by scheduled repayment, required prepayment,
declaration, acceleration, demand or otherwise (including,
without limitation, all amounts which would have become due
but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. 362(a)), of each of
the Subsidiary Reimbursement Obligations, in accordance with
its terms, whether such Subsidiary Reimbursement Obligations
are outstanding on the date of this Agreement or arise or are
incurred at any time or times thereafter. The Guaranty hereby
made constitutes a guaranty of payment of each Subsidiary
Reimbursement Obligation when due and not of collection, and
the Guarantor agrees that it shall not be necessary or
required that the Issuer, any Lender or any holder of any Note
exercise any rights, assert any claim or demand or enforce any
remedy whatsoever against any of the Subsidiaries of the
Borrower before or as a condition to the Obligations of the
Guarantor hereunder. The liabilities and Obligations of the
Guarantor to the Issuer, the Agents and the Lenders under its
Guaranty shall be unlimited.
SECTION 6.2. Guaranty Absolute. The Obligations of the
Guarantor under Section 6.1 are and shall be construed as
continuing, absolute, irrevocable and unconditional guaranties
of payment of each Subsidiary Reimbursement Obligation, and
shall remain in full force and effect, until all of the
Subsidiary Reimbursement Obligations shall have been paid in
full. The Guarantor guarantees that each of the Subsidiary
Reimbursement Obligations will be paid strictly in accordance
with the terms of this Agreement and the other Loan Documents,
regardless of any Applicable Law now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of
the Issuer or any of the Lenders or the Agents with respect
thereto.
SECTION 6.3. Reinstatement, etc. The Guarantor agrees that
the Guaranty hereby made shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in
whole or in part) of any of the Subsidiary Reimbursement
Obligations is rescinded or must otherwise be restored by the
Issuer, any of the Lenders or the Agents upon the insolvency,
bankruptcy or reorganization of any of the Subsidiaries of the
Borrower or otherwise, all as though such payment had not been
made.
<PAGE>
SECTION 6.4. Waiver. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with
respect to any of the Subsidiary Reimbursement Obligations or
its Guaranty and any requirement that the Issuer, any of the
Lenders or the Agents protect, secure, perfect or insure any
Lien or any Property subject thereto or exhaust any right or
take any action against any Subsidiary of the Borrower or any
other Person or entity or any collateral. The Guarantor
irrevocably waives all suretyship or other defenses which may
be or become available to the Guarantor.
ARTICLE VII
CONDITIONS TO CREDIT EXTENSIONS
SECTION 7.1. Conditions to Making First Credit Extensions.
The obligations of each Lender or the Issuer to make its first
Credit Extensions hereunder on the First Credit Extension Date
are subject to the fulfillment of the following conditions
precedent prior to or simultaneously with the making of the
first Credit Extensions on the First Credit Extension Date.
SECTION 7.1.1. Execution and Delivery of this Agreement and
Notes. The Administrative Agent shall have received (a)
counterparts of this Agreement duly executed and delivered by
the Borrower, the Agents and the Lenders, and (b) for the
account of each Lender, such Lender's Note, dated as of the
Effective Date, duly executed and delivered by the Borrower
and containing appropriate insertions and conforming to the
requirements of Section 3.2. Each Lender's Note shall have
been so executed and delivered to each Lender on the Effective
Date.
SECTION 7.1.2. Loan Documents.
(a) Each of the Loan Documents shall have been duly and
properly
authorized, executed and delivered by the respective party or
parties thereto and shall be in full force and effect.
(b) Each of the Subsidiaries of the Borrower to which any
Indebtedness for Borrowed Money of the Borrower is owing on
the First Credit Extension Date shall have duly and properly
authorized, executed and delivered to the Administrative Agent
an Intercompany Subordination Agreement.
(c) The Administrative Agent shall have received counterparts
of each Loan Document (other than the Notes) in sufficient
number for distribution to each Lender. Each Loan Document
shall, where applicable, be substantially in the form of an
Exhibit attached hereto, and all other Loan Documents shall be
in form and substance reasonably satisfactory to the Required
Lenders and the Administrative Agent. All exhibits, schedules
or other attachments to any of the Loan Documents shall be in
form and substance reasonably satisfactory to the Required
Lenders and the Administrative Agent.
<PAGE>
SECTION 7.1.3. First Credit Extension Date Certificate. The
Administrative Agent shall have received a duly executed and
completed First Credit Extension Date Certificate, dated as of
the First Credit Extension Date, in or substantially in the
form of Exhibit G attached hereto, duly executed by an
Authorized Officer of the Borrower.
SECTION 7.1.4. Resolutions, etc. The Administrative Agent
shall have received: (a) from the Borrower, a certificate,
dated as of the First Credit Extension Date, of its Secretary
or any Assistant Secretary as to (i) resolutions of its Board
of Directors then in full force and effect authorizing the
execution, delivery and performance of, in each case, to the
extent that the Borrower is a party thereto, this Agreement
and each of the other Loan Documents;
(ii) the incumbency and signatures of the officers of the
Borrower (the "Authorized Officers") authorized to act with
respect to (in each case, to the extent the Borrower is a
party thereto) this Agreement and each of the other Loan
Documents (upon which certificate the Agents and the Lenders
may conclusively rely until the Administrative Agent shall
have received a further certificate of the Borrower canceling
or amending such prior certificate, which further certificate
shall be reasonably satisfactory to the Administrative Agent);
and (iii) each of the Governing Documents of the Borrower; and
(b) such other documents (certified as of the First Credit
Extension Date) as the Administrative Agent may reasonably
request with respect to any matter relevant to this Agreement,
the other Loan Documents or the transactions contemplated
hereby or thereby. Each of such documents shall be in form and
substance reasonably satisfactory to the Administrative Agent
and the Required Lenders.
SECTION 7.1.5. Certificates of Good Standing. The
Administrative Agent shall have received a certificate signed
by the Secretary of State of the State of New Jersey, dated a
date reasonably near (but prior to) the First Credit Extension
Date, stating that the Borrower is a corporation duly
organized, validly existing and in good standing under the
laws of such State.
SECTION 7.1.6. Opinions of Counsel. The Administrative Agent
shall have received legal opinions, dated the First Credit
Extension Date (a) addressed to each of the Agents and
Lenders, from Robert W. Olson, the Borrower's Senior Vice
President, General Counsel and Secretary, in or substantially
in the form of Exhibit H attached hereto, and otherwise in
form and substance reasonably satisfactory to the
Administrative Agent, and (b) addressed to each of the
Lenders, from Bingham, Dana & Gould LLP, special counsel to
the Administrative Agent, in or substantially in the form of
Exhibit I attached hereto.
SECTION 7.1.7. Financial Statements, etc. The Borrower shall
<PAGE>
have furnished to each of the Agents and the Lenders the
Historical Financials and a written statement identifying all
Material Subsidiaries of the Borrower as of September 30,
1996.
SECTION 7.1.8. Fees and Expenses. The Administrative Agent
shall have received from the Borrower payment in full of all
of the Fees required to be paid on or prior to the First
Credit Extension Date in accordance with Section 3.5, and the
Administrative Agent shall have received from the Borrower
payment in full of all of its reasonable out-of-pocket costs
and expenses (including reasonable counsel fees and
disbursements) payable in accordance with Section 13.3 for
which invoices have been submitted on or prior to the First
Credit Extension Date.
SECTION 7.2. All Credit Extensions. The obligations of the
Issuer and each Lender to make each Credit Extension hereunder
(including its first Credit Extension to be made on the First
Credit Extension Date) shall also be subject to the
satisfaction of each of the following conditions precedent set
forth in this Section 7.2:
SECTION 7.2.1. Compliance with Warranties; No Default; etc.
The representations and warranties set forth in Article VIII and
in the other Loan Documents shall have been true and correct
in all material respects as of the date made; and, both
immediately before and immediately after giving effect to such
Credit Extension, (a)such representations and warranties shall
be true and correct in all material respects with the same
effect as if then made (except for any such representation or
warranty that relates solely to a prior date); and (b) no
Default shall have occurred and then be continuing.
SECTION 7.2.2. Credit Request. The Administrative Agent
shall have
received a Loan Request or Issuance Request, as the case may
be, for such Credit Extension. The delivery of such Credit
Request shall constitute a representation and warranty by the
Borrower that on and as of the requested date of such Credit
Extension, and before and after giving effect to such Credit
Extension, all representations and warranties required by
Section 7.2.1 are true and correct.
SECTION 7.2.3. Legality of Transactions. It shall not be
unlawful (a) for the Issuer or any Agent or Lender to perform
any of its obligations under any of the Loan Documents, or (b)
for the Borrower to perform any of its obligations under any
of the Loan Documents.
SECTION 7.2.4. Satisfactory Legal Form, etc. All documents
executed and delivered or submitted pursuant hereto by or on
behalf of the Borrower shall be reasonably satisfactory in
<PAGE>
form and substance to the Administrative Agent and its special
counsel; the Administrative Agent and its special counsel
shall have received all such information, and such counterpart
originals or such certified or other copies of such materials,
as the Administrative Agent or its special counsel or any
Lender may reasonably request; and all legal matters incident
to the transactions contemplated by this Agreement shall be
reasonably satisfactory to special counsel to the
Administrative Agent.
ARTICLE VIII
WARRANTIES, ETC.
In order to induce the Agents and the Lenders to enter into
this Agreement and in order to induce the Lenders to make
Revolving Loans and other Credit Extensions hereunder, the
Borrower represents and warrants to each Agent and Lender as
set forth in this Article VIII as follows:
SECTION 8.1. Organization, etc. Each of the Borrower and its
Material Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to do
business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its business makes such
qualification necessary and where the failure to so qualify
has had or will, in the reasonable judgment of the Borrower,
be likely to have a Materially Adverse Effect, and has full
power and authority to own or hold under lease its material
Property and to conduct its business substantially as
currently conducted by it and as proposed to be conducted by
it, and, in the case of the Borrower, to execute, deliver and
perform the Loan Documents to be executed by it.
SECTION 8.2. Power, Authority. The Borrower has taken all
necessary action, corporate or otherwise, to authorize the
execution, delivery and performance of the Loan Documents
executed or to be executed by it. The execution, delivery and
performance of each of the Loan Documents to which the
Borrower is or is to become a party do not and will not
(except for Approvals which will have been already given or
obtained) require any Approval, will not conflict with, result
in any violation of, or constitute any default under, (a) any
provision of any Governing Document of the Borrower, (b) any
Contractual Obligation of the Borrower, or (c) any Applicable
Law, and do not and will not result in or require the creation
or imposition of any Lien on any of the material Property of
the Borrower pursuant to the provisions of any agreement or
other Instrument binding upon or applicable to the Borrower or
any of its Property.
SECTION 8.3. Validity, etc. This Agreement has been duly
executed and delivered by the Borrower and constitutes the
<PAGE>
legal, valid, and binding obligation of the Borrower,
enforceable in accordance with its terms. Each of the other
Loan Documents to which the Borrower is or is to become a
party does or will constitute the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its
terms. The enforceability of this Agreement and the other Loan
Documents against the Borrower shall be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
at the time in effect affecting the enforceability of the
rights of creditors generally and to general equitable
principles.
SECTION 8.4. Financial Information. All balance sheets, all
statements of income and of cash flows, and all other
financial statements which have been furnished by the Borrower
to any of the Agents or the Lenders for the purposes of or in
connection with this Agreement, including: (a) the audited
consolidated balance sheet at December 31, 1995 and the
related audited consolidated statements of income, of
shareholders' equity and of cash flows, for the fiscal year
then ended, of the Borrower and its Subsidiaries, certified by
the Independent Public Accountant; (b) the unaudited
consolidated balance sheet at September 30, 1996 and the
related unaudited consolidated statements of income and of
cash flows, for the nine-month period then ended of the
Borrower and its Subsidiaries; (c) the unaudited consolidated
balance sheet at December 31, 1995 and the related unaudited
consolidated statements of income for the fiscal year then
ended of each of (i) CBI and its Subsidiaries, and (ii) GWF
and its Subsidiaries; and (d) the unaudited consolidated
balance sheet at September 30, 1996 and the related unaudited
consolidated statements of income for the nine-month period
then ended of each of (i) CBI and its Subsidiaries, and (ii)
GWF and its Subsidiaries (the financial statements referred to
in clauses (a), (b), (c) and (d) being herein referred to,
collectively, as the "Historical Financials"); have (except in
the case of financial statements presenting only the financial
condition and results of operation of the Borrower on a
non-consolidated basis and except in the case of forecasts)
been prepared in accordance with GAAP consistently applied
throughout the periods involved (except that the financial
statements referred to in clauses (c) and (d) do not include
footnotes) and present fairly (subject to normal recurring
adjustments in the case of the financial statements referred
to in clauses (b) and (d)) the consolidated financial
condition of the corporations and other Persons covered
thereby as at the dates thereof and the results of their
operations for the periods then ended. There are no
contractual restrictions on the making of Restricted Payments
by Subsidiaries of the Borrower to the Borrower or to any
other Subsidiaries of the Borrower which materially impair or
which will be reasonably likely to materially impair the
ability of the Borrower to perform any of its payment
Obligations under this Agreement or the Notes.
<PAGE>
The Borrower and its Material Subsidiaries, taken as a whole,
(A) own Property which has a "present fair saleable value"
that is greater on a going concern basis than their probable
liabilities as they become due, (B) do not have unreasonably
small capital and are not engaged in any business for which
they have unreasonably small capital, and (c) have not
incurred Indebtedness beyond their ability to pay such
Indebtedness as such Indebtedness becomes due.
SECTION 8.5. Certain Indebtedness for Borrowed Money; Absence
of Defaults. The Indebtedness for Borrowed Money of the
Borrower in existence on the Effective Date is identified in
Section 8.5 of the Disclosure Schedule. The Indebtedness for
Borrowed Money of each Material Subsidiary in an aggregate
principal amount exceeding $1,000,000 on or as of the
Effective Date is also identified in Section 8.5 of the
Disclosure Schedule. With respect to each item of
Indebtedness for Borrowed Money of the Borrower in an
aggregate principal amount exceeding $10,000,000 identified in
Section 8.5 of the Disclosure Schedule, the Borrower delivered
to the Administrative Agent a true and complete copy of each
Instrument, as amended and in effect on the Effective Date,
evidencing such Indebtedness for Borrowed Money. No Default
of the kind described in Section 10.1.5 is continuing. There
is no Indebtedness for Borrowed Money of the Borrower to any
of its Subsidiaries as at the Effective Date. Both before and
after giving effect to any Borrowing, all of the outstanding
Obligations will constitute "Senior Debt" or "Senior
Indebtedness" for all purposes of each Instrument governing or
evidencing Subordinated Indebtedness.
SECTION 8.6. Litigation, etc. Except as to matters
identified in Section 8.6 of the Disclosure Schedule, there is
no pending or, to the best knowledge of the Borrower,
threatened litigation, arbitration or governmental
investigation or proceeding against the Borrower or any of its
Subsidiaries or to which any of the material Property of any
thereof is subject which (a) either has had or will be
reasonably likely to have a Materially Adverse Effect; or (b)
relates to this Agreement or any of the other Loan Documents.
SECTION 8.7. Regulations G, U and X. The Borrower is not
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing
or carrying margin stock. None of the proceeds of any of the
Revolving Loans or other Credit Extensions will be used for
the purpose of directly or indirectly purchasing or carrying
margin stock. Terms for which meanings are provided in F.R.S.
Board Regulation G, U or X or any regulations substituted
therefor, as from time to time in effect, are used in this
Section 8.7 with such meanings.
SECTION 8.8. Government Regulation. Neither the Borrower nor
any of its Subsidiaries is an "investment company" or a
<PAGE>
"company controlled by an investment company" within the
meaning of the Investment Company Act of 1940, as amended, or
a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935, as
amended.
SECTION 8.9. Taxes. Each of the Borrower and its Material
Subsidiaries has filed all material tax returns and material
reports required by Applicable Law to have been filed by it
and has paid all taxes and governmental charges thereby shown
to be owing, except any such taxes or charges which are being
contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP have been set
aside on its books. No tax Liens (other than tax Liens that
constitute Permitted Liens under paragraph (b) of the
definition thereof) have been filed with respect to the
Borrower or any of its Material Subsidiaries and, to the best
knowledge of the Borrower, no claims are being asserted with
respect to any such taxes or charges (and no basis exists for
any such claims), which Liens and claims, individually or in
the aggregate, have had or will be reasonably likely to have a
Materially Adverse Effect.
SECTION 8.10. Compliance with ERISA. Each of the Borrower
and its Material Subsidiaries is in substantial compliance
with all material provisions of ERISA, except to the extent
that any failure so to be in compliance with any provisions of
ERISA has not had and will not be reasonably likely to have a
Materially Adverse Effect.
SECTION 8.11. Ownership of Properties; Liens.
(a) Each of the Borrower and its Material Subsidiaries has
valid fee or leasehold interests in all of its material real
Property and good and marketable title to all of its material
personal Property, and none of such Property is or will be
subject to any Liens, except such Liens as are permitted by
Section 9.2.2. Section 8.11 of the Disclosure Schedule
identifies the material Liens that are in existence upon
material Property of the Borrower on the Effective Date and
that secure Indebtedness for Borrowed Money of the Borrower.
(b) Each of the Material Subsidiaries as of the Effective
Date is, based on the reasonable good faith determination of
the Borrower, identified in Section 8.11 of the Disclosure
Schedule. As of the Effective Date, based on the reasonable
good faith determination of the Borrower, each of the Minimum
Business Conditions has been satisfied with respect to the
Borrower and such Material Subsidiaries.
SECTION 8.12. Environmental Matters. Except as identified in
Section 8.12 of the Disclosure Schedule: (a) all Property
(including underlying groundwater) owned or leased by the
Borrower or any of its Subsidiaries has been, and continues to
<PAGE>
be, owned or leased by such Person in substantial compliance
with all Environmental Laws, except to the extent that any
failure so to be in compliance with Environmental Laws has not
had and will not be reasonably likely to have a Materially
Adverse Effect; (b) there have been no Releases of Hazardous
Materials at, on or under Property owned or leased by the
Borrower or any of its Subsidiaries, the costs to address
which, individually or in the aggregate, have had or will be
reasonably likely to have a Materially Adverse Effect; (c)
each of the Borrower and its Subsidiaries has been issued and
is in material compliance with all permits, certificates,
approvals, licenses and other authorizations relating to
environmental matters and required under Environmental Laws
for its businesses, except to the extent that any failure so
to be in compliance has not had and will not be reasonably
likely to have a Materially Adverse Effect; and (d) no
conditions exist at, on or under any Property owned or leased
by the Borrower or any of its Subsidiaries which have given
rise to liability under any Environmental Laws, which
liability has had or is reasonably likely to have a Materially
Adverse Effect.
SECTION 8.13. Compliance with Applicable Laws. Each of the
Borrower and its Material Subsidiaries is in substantial
compliance with all Applicable Laws, except to the extent that
any failure so to be in compliance has not had and will not be
reasonably likely to have a Materially Adverse Effect.
SECTION 8.14. Ownership of CBI, etc. The Borrower owns and
controls, both legally and beneficially, and whether directly
or indirectly, with full power to vote, one hundred percent
(100%) of the issued and outstanding shares of every class of
CBI. None of the rights, title or interests of the Borrower
or of any of its Subsidiaries in and to such shares of Capital
Stock of CBI are subject to or otherwise encumbered by any
Liens.
SECTION 8.15. Change of Control Triggering Events. No Change
of Control Triggering Event has occurred at any time after
January 1, 1996.
<PAGE>
ARTICLE IX
COVENANTS
SECTION 9.1. Certain Affirmative Covenants. The Borrower
agrees with the Agents and the Lenders and warrants that, from
and after the Effective Date and until all of the Commitments
have terminated, all of the Letters of Credit have been fully
drawn, terminated or expired, and all of the Obligations in
respect of principal, interest, fees and Reimbursement
Obligations have been paid in full, except as otherwise
expressly consented to, in each instance, by the Required
Lenders in writing, the Borrower will, and will, if and to the
extent required by any of Sections 9.1.1 through 9.1.7, cause
each of its Subsidiaries to:
SECTION 9.1.1. Financial Information, etc. Furnish to each
Agent and to each Lender copies of the following financial
statements, reports and information: (a) promptly when
available and in any event within 120 days after the close of
each fiscal year of the Borrower,(I) a consolidated balance
sheet as at the close of such fiscal year, and related
consolidated statements of income, shareholders' equity and
cash flows for such fiscal year, of the Borrower and its
Subsidiaries (with comparable information as at the close of
and for the prior fiscal year), such statements for such
fiscal year to be audited and accompanied by an audit report
issued without Impermissible Qualification by the Independent
Public Accountant, (ii) an unaudited consolidated balance
sheet as at the close of such fiscal year, and related
unaudited consolidated statements of income for such fiscal
year, of each of (A) CBI and its Subsidiaries, and (b) GWF and
its Subsidiaries (with comparable information, in each case,
as at the close of and for the prior fiscal year), certified
as to fairness of presentation by the principal accounting or
financial officer of CBI with respect to the CBI financial
statements and of GWF with respect to the GWF financial
statements, (iii) a Compliance Certificate calculated as at
the close of such fiscal year and setting forth or (as the
case may be) identifying (A) in reasonable detail the
calculations made to determine compliance with Section 9.2.3,
and the information necessary for the Administrative Agent to
determine compliance with Sections 9.2.1, 9.2.2 and 9.2.4
through 9.2.8, (B) the Indebtedness for Borrowed Money of the
Borrower as of the close of such fiscal year, (c) the
Indebtedness for Borrowed Money of each Material Subsidiary in
an aggregate principal amount that exceeds $1,000,000 as of
the close of such fiscal year, (D) each Material Subsidiary of
the Borrower as of the close of such fiscal year, (E) the
statement that, as of the close of such fiscal year, each of
the Minimum Business Conditions has been satisfied with
respect to the Borrower and the Material Subsidiaries, and (F)
the statement that there are, except as disclosed in such
Compliance Certificate, no other Material Subsidiaries as of
<PAGE>
the close of such fiscal year; and (iv) a written statement of
the Independent Public Accountant stating that in making the
examination necessary to issue its opinion on the financial
statements delivered pursuant to clause (I), they obtained no
knowledge of any default by the Borrower or any of its
Material Subsidiaries in the performance or observance of any
of the covenants contained in Article IX, or, if the
Independent Public Accountant shall have obtained knowledge of
any such default, specifying all such defaults and the nature
and status thereof; (b)promptly when available and in any
event within ninety (90) days after the close of each of the
first three fiscal quarters of each fiscal year of the
Borrower, (i) a consolidated balance sheet as at the close of
each such fiscal quarter, a related consolidated statement of
income for such fiscal quarter and for the portion of the
fiscal year then ended, and a related consolidated statement
of cash flows for the portion of the fiscal year then ended,
of the Borrower and its Subsidiaries (with comparable
information as at the close of and for the corresponding
fiscal quarter of the prior fiscal year and for the
corresponding portion of such prior fiscal year), certified as
to fairness of presentation by the principal accounting or
financial Authorized Officer of the Borrower, (ii) an
unaudited consolidated balance sheet as at the close of each
such fiscal quarter, and related unaudited consolidated
statements of income for the portion of the fiscal year then
ended, of each of (A) CBI and its Subsidiaries, and (B) GWF
and its Subsidiaries (with comparable information, in each
case, as at the close of and for the corresponding portion of
such prior fiscal year), certified as to fairness of
presentation by the principal accounting or financial officer
of CBI with respect to the CBI financial statements and of GWF
with respect to the GWF financial statements, and (iii) a
Compliance Certificate calculated as at the close of such
fiscal quarter and setting forth in reasonable detail the
calculations made to determine compliance with Section 9.2.3
and setting forth the information necessary for the
Administrative Agent to determine compliance with Sections
9.2.1, 9.2.2 and 9.2.4 through 9.2.8; (c) promptly upon any
filing thereof by the Borrower or any of its Material
Subsidiaries with the SEC, any annual or quarterly reports or
registration statements relating to the public offering of
Securities of the Borrower or of any of its Material
Subsidiaries which the Borrower or any of its Material
Subsidiaries may file with the SEC; and (d) promptly, such
additional financial and other information with respect to the
Borrower or any of its Material Subsidiaries as any Lender
(through the Administrative Agent) may from time to time
reasonably request.
SECTION 9.1.2. Maintenance of Corporate Existence, etc. In
the case of the Borrower and its Material Subsidiaries,
maintain and preserve its corporate existence, rights and
franchises, and take all reasonable steps to maintain its
<PAGE>
identity as a separate legal entity, except (in each case) as
and to the extent otherwise permitted by Section 9.2.5.
SECTION 9.1.3. Foreign Qualification. In the case of the
Borrower and its Material Subsidiaries, cause to be done at
all times all things necessary to be duly qualified to do
business and be in good standing as a foreign corporation in
each jurisdiction where the nature of its business makes such
qualification necessary and where the failure so to qualify
will have or will, in the reasonable judgment of the Borrower,
be likely to have a Materially Adverse Effect.
SECTION 9.1.4. Payment of Taxes, etc. In the case of the
Borrower and its Material Subsidiaries, pay and discharge, as
the same become due and payable, all material federal, state
and local taxes, assessments and other governmental charges or
levies against or on any of its income, profits or Property,
as well as all claims of any kind, including all claims for
labor, materials and supplies, which, if unpaid, might become
a Lien upon any of its Property, and pay before they become
delinquent all other material obligations and liabilities;
provided, however, that the foregoing shall not require the
Borrower or any of its Material Subsidiaries to pay or
discharge any such tax, assessment, charge, levy, claim,
obligation or liability (a) which is not yet due and payable,
or (b) so long as it shall contest the validity thereof in
good faith by appropriate proceedings and shall have set aside
on its books adequate reserves in accordance with GAAP with
respect thereto. Nothing in this Section 9.1.4 shall impair
the absolute and unconditional obligations of the Borrower to
pay all of the Obligations as and when the same shall become
due and payable.
SECTION 9.1.5. Notice of Default, etc. Upon obtaining
knowledge thereof, give written notice to the Administrative
Agent (accompanied by a reasonably detailed explanation with
respect thereto) promptly, and in any event within five (5)
Business Days after obtaining knowledge of any event described
in any of clauses (a), (b) or (c) below, or within thirty (30)
days after obtaining knowledge of any event described in
clause (d) below, of: (a) the occurrence of any Defaults or of
any Events of Default under this Agreement; (b) the occurrence
of any Change of Control Triggering Event; (c) any litigation,
arbitration or governmental investigation or proceeding not
previously disclosed by the Borrower to the Administrative
Agent which has been instituted against the Borrower or any of
its Material Subsidiaries or to which any of their respective
material Property is subject which (i) has had or will be
reasonably likely to have a Materially Adverse Effect, or (ii)
relates to this Agreement or any other Loan Document; and (d)
any development in the business, operations, Property,
financial condition or prospects of the Borrower or any of its
Material Subsidiaries which has had or will, in the reasonable
judgment of the Borrower, be likely to have a Materially
<PAGE>
Adverse Effect.
SECTION 9.1.6. Books and Records. Keep proper books and
records reflecting all of its business affairs and
transactions and permit any Agent or any Lender, upon
reasonable prior notice and at reasonable times and intervals
during ordinary business hours, to visit any of its offices
and Properties, to discuss financial matters relating to the
Borrower or any of its Material Subsidiaries with the
executive officers of the Borrower or of any of its Material
Subsidiaries who are primarily responsible for its financial
affairs, and, for reasonable purposes relating to the
financing arrangements governed by this Agreement, and after
consultation with the Borrower's Vice President and Treasurer
or Chief Financial Officer, to examine any of the books or other
corporate records of the Borrower or any of its Material
Subsidiaries.
SECTION 9.1.7. Indebtedness to Subsidiaries; Compliance with
Applicable Laws, etc.
(a) In the case of the Borrower, ensure that, at all times
from and after the Effective Date, all Indebtedness for
Borrowed Money of the Borrower to each of its Subsidiaries
shall at all times be subordinated and junior in right of
payment to the prior payment in full of all of the
Obligations, all upon the terms of an Intercompany
Subordination Agreement executed and delivered to the
Administrative Agent by the Borrower and each such Subsidiary.
(b) In the case of the Borrower, obtain all such Approvals
and take all such other action with respect to any
Governmental Authority as may be required for the execution,
delivery or performance of this Agreement or any of the other
Loan Documents and duly perform and comply with all of the
terms and conditions of all Approvals so obtained.
(c) In the case of the Borrower and its Material
Subsidiaries, comply in all material respects with all
Applicable Laws, including all Environmental Laws and all
provisions of ERISA, except to the extent that any failure so
to comply does not have and will not be reasonably likely to
have a Materially Adverse Effect.
SECTION 9.2. Certain Negative Covenants. The Borrower agrees
with the Agents and the Lenders and warrants that, from and
after the Closing Date and until all of the Commitments have
terminated, all of the Letters of Credit have been fully
drawn, terminated or expired, and all of the Obligations in
respect of principal, interest, fees and Reimbursement
Obligations have been paid in full, except as otherwise
expressly consented to, in each instance, by the Required
Lenders in writing, the Borrower will not, and will not cause
or permit any of its Subsidiaries to:
SECTION 9.2.1. Indebtedness for Borrowed Money. Incur any
<PAGE>
Indebtedness for Borrowed Money, except:
(a) Indebtedness for Borrowed Money of the Borrower under any
of the Loan Documents or in respect of any of the Revolving
Loans or any of the other Obligations;
(b) Permitted Indebtedness of the Borrower or any of its
Subsidiaries;
(c) Indebtedness for Borrowed Money of the Borrower to any of
its Subsidiaries; provided, however, that (i) all Indebtedness for
Borrowed Money of the Borrower to any Subsidiary of the
Borrower shall, at all times from and after the incurrence
thereof by the Borrower, be expressly subordinated in right of
payment and exercise of remedies to the prior payment in full
of all of the Obligations on terms contained in an
Intercompany Subordination Agreement which shall have been
duly and properly executed and delivered to the Administrative
Agent by the Borrower and by such Subsidiary; and (ii) none of
such Indebtedness for Borrowed Money of the Borrower to any of
its Subsidiaries shall at any time be secured by any Liens on
any Property of the Borrower; and
(d) Indebtedness for Borrowed Money of the Borrower or any of
its Subsidiaries, not otherwise permitted by any of the other
clauses of this Section 9.2.1, incurred from time to time
after the date hereof; provided, however, that (i) none of
such Indebtedness for Borrowed Money shall be secured by any
Liens on any Property of the Borrower or any of its
Subsidiaries other than Liens permitted by Section 9.2.2, (ii)
immediately prior to, and immediately after giving effect, to
the incurrence of such Indebtedness for Borrowed Money, the
aggregate amount of all of the Indebtedness for Borrowed Money
of all Subsidiaries of the Borrower (other than Indebtedness
for Borrowed Money of any of the Great White Fleet
Subsidiaries) shall not at any time exceed $375,000,000, and
(iii) immediately prior, and immediately after giving effect,
to the incurrence
of such Indebtedness for Borrowed Money, each of the Special
Covenant Conditions (other than the conditions and
requirements specified by subclause (ii) of this Section
9.2.1(d)) shall be satisfied.
SECTION 9.2.2. Liens. Create, incur, assume, or permit or
suffer to exist, any Liens upon any of its Property (including
Capital Stock of any of its Subsidiaries), whether now owned
or hereafter acquired, except:
(a) Liens in favor of the Administrative Agent securing the
payment or performance of any of the Revolving Loans or any of
the other Obligations;
(b) Permitted Liens;
(c) Liens on Property of the Borrower, not otherwise
permitted by any of the other clauses of this Section 9.2.2,
securing the payment of Indebtedness for Borrowed Money of the
Borrower in an aggregate principal amount not at any time
exceeding $10,000,000;
(d) Liens on Property of any Subsidiary of the Borrower that
<PAGE>
is a Great White Fleet Subsidiary; provided, however, that the
Indebtedness secured by any such Liens is (i) not Indebtedness
or a Contingent Obligation of the Borrower or of any of its
Subsidiaries other than Great White Fleet Subsidiaries, and
(ii) not secured by Liens on Property of the Borrower or of
any of its Subsidiaries other than Great White Fleet
Subsidiaries; and
(e) Liens on Property of any of the Subsidiaries of the
Borrower, not otherwise permitted by any of the other clauses
of this Section 9.2.2; provided, however, that the aggregate
amount of all of the Indebtedness of all Subsidiaries of the
Borrower secured by all Liens permitted by this clause (e)
shall not at any time exceed $250,000,000. Anything herein
express or implied to the contrary notwithstanding, the
Borrower shall not, and shall not permit any of its
Subsidiaries to, create, incur or assume at any time, or
permit or suffer to exist at any time, any Liens upon any
Capital Stock of CBI or upon any Capital Stock of any
Subsidiary of the Borrower that owns or controls (whether
legally or beneficially) any Capital Stock of CBI.
SECTION 9.2.3. Financial Covenants.
(a) Leverage Ratio. Permit the Leverage Ratio as at any date
to be greater than the ratio of 0.40:1.0.
(b) Interest Coverage Ratio. Permit the Interest Coverage
Ratio for any Reference Period ending on or after the date
hereof to be less than 1.75:1.00.
(c) Consolidated Net Worth. Permit the Consolidated Net
Worth of the Borrower and its Subsidiaries as at any date to
be less than $650,000,000.
SECTION 9.2.4. Restricted Payments. Make or extend or enter
into any agreement to make any Restricted Payments, except:
(a) the making by any Subsidiary of the Borrower to the
Borrower or to any other Subsidiary of the Borrower of any
Restricted Payments of the kind described in clause (b) or (c)
of the definition "Restricted Payments";
(b) the making by the Borrower of any Restricted Payments of
the kind described in clause (b), (c) or (d) of the definition
"Restricted Payments"; provided, however, that no such
Restricted Payments by the Borrower that would otherwise be
permitted by this clause (b) shall in any event be permitted
unless: (i) in the case of the declaration of cash dividends
by the Borrower and the payment of such cash dividends within
sixty (60) days after the declaration thereof, at the time of
the declaration of such cash dividends, each of the Special
Covenant Conditions shall be satisfied, it being expressly
understood and agreed that the Borrower shall in any event be
permitted to pay cash dividends within sixty (60) days after
the declaration thereof if at the time of the declaration of
such cash dividends, each of the Special Covenant Conditions
(determined after giving pro forma effect to the payment of
such cash dividends) shall be satisfied; and (ii) in the case
of all other such Restricted Payments by the Borrower, each of
<PAGE>
the Special Covenant Conditions shall be satisfied both at the
time of the making of such Restricted Payments by the Borrower
and also after giving effect thereto; and
(c) Restricted Payments, not otherwise permitted by any of the
other clauses of this Section 9.2.4, by the Borrower to any of
its Affiliates, in each case only if (i) at the time of the
making by the Borrower of any such Restricted Payments, and
after giving effect thereto, each of the Special Covenant
Conditions shall be satisfied, and (ii) such Restricted
Payments shall not otherwise be prohibited by Section 9.2.7.
The Borrower shall not, and shall not cause or permit any of
its Subsidiaries to, create or permit to exist any contractual
restrictions on the making of Restricted Payments by
Subsidiaries of the Borrower to the Borrower or to any other
Subsidiaries of the Borrower which materially impair or which
will be reasonably likely to materially impair the ability of
the Borrower to perform any of its payment Obligations under
this Agreement or the Notes.
SECTION 9.2.5. Mergers; Sales of Property. Consolidate or
merge with any Person, engage in any Sale of all or any
substantial part of its other Property (either in a single
transaction or a series of related transactions), sell and
thereafter lease back all or any part of its Property, or
enter into any agreement to do so, except
(a) any Permitted Dispositions;
(b) any consolidation or merger of the Borrower with any
Person; provided, however, that (i) the Borrower shall be the
corporation that survives such consolidation or merger, and
(ii) at the time of the completion of such transaction, and
after giving effect to such transaction, each of the Special
Covenant Conditions shall be satisfied;
(c) any consolidation or merger of any Subsidiary of the
Borrower (other than a Great White Fleet Subsidiary) with the
Borrower or any other Subsidiary of the Borrower (other than a
Great White Fleet Subsidiary), or any Sale by any such
Subsidiary of the Borrower of all or any substantial part of
its Property to the Borrower or to any such other Subsidiary
of the Borrower;
(d) any consolidation or merger of any Great White Fleet
Subsidiary of the Borrower with any other Great White Fleet
Subsidiary of the Borrower, or any Sale by any such Subsidiary
of all or any substantial part of its Property to any such
other Subsidiary;
(e) the Sale by the Borrower or any of its Subsidiaries from
time to time after September 30, 1996 of any Property;
provided, however, that (i) the aggregate of the applicable
Disposition Period EBITDA attributable to all Property
disposed of in connection with all of such Sales (determined
after taking account of the Disposition Period EBITDA of the
Property to be disposed of in connection with such proposed
Sale) shall not exceed $28,000,000, and (ii) for purposes of
<PAGE>
this clause (e), there shall be excluded all Sales that are
permitted by clause (a), (b), (c), (d) or (f); and
(f) any Sale and leaseback transaction, or series of related
such transactions, involving Property of the Borrower or any
of its Subsidiaries relating to Food-Related Businesses (a
"Sale and Leaseback Transaction"); provided, however, that if
the aggregate Fair Market Value of the Property involved in
any Sale and Leaseback Transaction shall be equal to or
greater than $10,000,000 then: (i)such Sale and Leaseback
Transaction shall be for a term of not more than three (3)
years and shall be part of a plan to cease the use of the
Property relating thereto by the end of such term; or (ii) Net
Disposition Proceeds from such Sale and Leaseback Transaction
shall be applied by the Borrower or its Subsidiaries, (A) to
repay or otherwise retire Indebtedness for Borrowed Money of
the Borrower or any of its Subsidiaries within eighteen (18)
months after the receipt of such Net Disposition Proceeds, or
(B) to Investments in capital assets that are acquired within
the period commencing three (3) months prior to and ending
eighteen (18) months after the receipt of such Net Disposition
Proceeds and that are used in Food-Related Businesses; or
(iii) the aggregate Fair Market Value of all Property involved
in Sale and Leaseback Transactions completed after September
30, 1996 shall not exceed $131,000,000.
SECTION 9.2.6. Acquisitions. Engage in or enter into any
agreement to engage in any Acquisition or any Investment in
any Person (other than the Borrower or any of its
Subsidiaries), except
(a) Permitted Investments;
(b) any Investment made by the Borrower or any of its
Subsidiaries at any time after the Effective Date in any
Person that is not, and does not by reason of such Investment
become, a Subsidiary of the Borrower; provided, however, that
the aggregate outstanding amount of all such Investments (as
determined in accordance with the last sentence of the defined
term "Investments" and, to the extent not inconsistent with
such sentence, in accordance with GAAP) shall not at any time
exceed the sum of (i) $50,000,000, plus (ii) the aggregate
amount of all interest, income, dividends and other gains on
or other similar distributions from such Investments actually
paid to the Borrower or any of its Subsidiaries in cash from
time to time after September 30, 1996. For purposes of the
foregoing calculations, there shall be excluded (A) the
aggregate amount of all Permitted Investments made from time
to time after September 30, 1996 by the Borrower or any of its
Subsidiaries, and (B) the aggregate amount of all interest,
income, dividends and other gains on or other similar
distributions from the Investments described in subclause (A);
and
(c) any Acquisition by the Borrower or any of its
Subsidiaries from time to time after the date hereof;
provided, however, that: (i) if the Acquisition involves the
acquisition of the Securities or equity interests of a
<PAGE>
corporation, partnership or other business enterprise, such
Person shall become a Subsidiary of the Borrower upon
completion of the Acquisition; (ii) the Property, businesses
or Persons acquired shall relate in material respects to
businesses conducted by the Borrower or any of its
Subsidiaries on September 30, 1996; and (iii) at the time any
agreement to engage in such Acquisition is entered into, and
after giving effect to such Acquisition, each of the Special
Covenant Conditions shall be satisfied.
SECTION 9.2.7. Consolidated Capital Expenditures. Cause or
permit the Consolidated Capital Expenditures of the Borrower
and its Subsidiaries for any calendar year ending after
December 31, 1996 and prior to January 1, 2002, to exceed
$75,000,000 per calendar year ("Base Capex Amount"); provided,
however, that (a) the Consolidated Capital Expenditures of the
Borrower and its Subsidiaries for any such calendar year may
exceed the Base Capex Amount for such calendar year (such
excess amount for any such calendar year being herein called
the "Excess Capex Amount") so long as the aggregate of all
Excess Capex Amounts from and after the date hereof shall not
exceed $100,000,000, and (b) for the purposes of the foregoing
calculations, there shall be excluded the aggregate amount of
all capital expenditures made by the Borrower or any of its
Subsidiaries (i) with Capital Stock of the Borrower, or (ii)
with the net cash proceeds (A) from the issue or Sale of
Capital Stock of the Borrower, (B) from Sales and from Sale
and Leaseback Transactions that are not Permitted Dispositions
but are otherwise permitted under Section 9.2.5, (C) from
property and casualty insurance claims, whether the capital
expenditures are made before or after the receipt of net cash
proceeds from such property and casualty insurance claims, or
(D) from Indebtedness for Borrowed Money incurred by any of
the Great White Fleet Subsidiaries, provided that none of such
Indebtedness for Borrowed Money is (1) Indebtedness of the
Borrower or of any of its Subsidiaries other than Great White
Fleet Subsidiaries, and (2) secured by any Liens on any
Property of the Borrower or of any of its Subsidiaries other
than Great White Fleet Subsidiaries.
SECTION 9.2.8. Transactions with Affiliates. Enter into,
engage in or perform any Affiliate Transaction, or enter into
any agreement to do so, except:
(a) Restricted Payments by the Borrower to the extent
permitted by Section 9.2.4;
(b) loans or advances to any director, officer or employee of
the Borrower or of any of its Subsidiaries made in the
ordinary course of business;
(c) the Acquisition of any Affiliate of the Borrower by the
Borrower or any of its Subsidiaries, if and to the extent that
such Acquisition is permitted by Section 9.2.6;
(d) any other Affiliate Transaction with any Affiliate of the
Borrower not otherwise permitted by any of the other
provisions of this Section 9.2.8; provided, that (i) the terms
<PAGE>
of such Affiliate Transaction, taken as a whole, are no less
favorable to the Borrower or any of its Subsidiaries than
would be the case if such Affiliate Transaction had been
entered into under comparable circumstances with a Person that
is not an Affiliate or a Subsidiary of the Borrower, and (ii)
(A) with respect to any Affiliate Transaction involving
aggregate payments in excess of $10,000,000 but less than
$20,000,000, the Borrower shall deliver an Officer's
Certificate to the Administrative Agent certifying that such
transaction complies with clause (i), and (B) with respect to
any Affiliate Transaction involving aggregate payments equal
to or greater than $20,000,000, such transaction shall be
approved by a majority of the Board of Directors of the
Borrower including the approval of a majority of the
disinterested directors.
SECTION 9.2.9. Change of Control Triggering Event. Enter
into or undertake any transaction, arrangement or agreement
(whether a consolidation, merger, issue or Sale of Capital
Stock or other Securities, reorganization, voting agreement or
otherwise) that will, or that will be reasonably likely to,
result in a Default under Section 10.1.9.
ARTICLE X
EVENTS OF DEFAULT
SECTION 10.1. Events of Default. The term "Event of Default"
shall mean any of the following events set forth in this
Section 10.1 occurring or existing at any time on or after the
date of this Agreement:
SECTION 10.1.1. Non-Payment of Obligations. The Borrower
shall default:
(a) in the payment or prepayment when due under this
Agreement or any Note of any principal of any of the Revolving
Loans;
(b) in the payment or prepayment when due under this
Agreement or any Note of any interest on any of the Revolving
Loans or other Obligations or any Fees payable under Section
3.5, and such default shall continue unremedied for a period
of more than three (3) Business Days; or
(c) in the payment when due under this Agreement or any of
the other Loan Documents of any other sum (other than any sum
referred to in clause (a) or (b)), and such default shall
continue unremedied for a period of more than five (5)
Business Days.
SECTION 10.1.2. Non-Performance of Certain Obligations. The
Borrower shall default in the due performance or observance of
any of its Obligations under any of Section 9.1.5 or Sections
9.2.1 through 9.2.9, inclusive.
SECTION 10.1.3. Non-Performance of Other Obligations. The
<PAGE>
Borrower shall default in the due performance or observance of
any of its Obligations in any of the Loan Documents (other
than the Obligations specified in Section 10.1.1 or 10.1.2),
and such default shall continue unremedied for more than
thirty (30) days after notice thereof shall have been given to
the Borrower by the Administrative Agent.
SECTION 10.1.4. Breach of Warranty. Any representation or
warranty of the Borrower under any of the Loan Documents shall
be untrue or incorrect in any material respect when made or
deemed made.
SECTION 10.1.5. Default Under Other Instruments. The
Borrower or any of its Material Subsidiaries:
(a) shall fail to make any payments, when due, of any
Indebtedness for Borrowed Money of the Borrower or any of its
Material Subsidiaries (other than the Obligations), such
payments shall exceed $10,000,000 in the aggregate, and such
failures shall continue beyond the periods of grace, if any,
provided in the Instruments under or by which such
Indebtedness for Borrowed Money is governed or evidenced; or
(b) shall fail to perform or observe the terms of any
Instruments governing or evidencing any Indebtedness for
Borrowed Money of the Borrower or any of its Material
Subsidiaries, and such failures of the kind described in this
clause (b) shall permit any one or more holders of such
Indebtedness for Borrowed Money to declare immediately due and
payable or otherwise to accelerate Indebtedness for Borrowed
Money of the Borrower or of any of its Material Subsidiaries
in an aggregate amount exceeding $10,000,000; or
(c) any Lien on any Property of the Borrower or of any of its
Material Subsidiaries securing any Indebtedness for Borrowed
Money of the Borrower or any of its Material Subsidiaries in
an aggregate amount exceeding $10,000,000 shall be foreclosed
or otherwise enforced.
SECTION 10.1.6. Bankruptcy, Insolvency, etc. The Borrower or
any Material Subsidiary of the Borrower shall:
(a) generally fail to pay its debts as they become due, or
admit in writing its inability to pay its debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator, or other custodian for
the Borrower or any such Material Subsidiary or any
substantial part of the Property of any thereof, or make a
general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the involuntary
appointment of a trustee, receiver, sequestrator or other
custodian for the Borrower or any such Material Subsidiary or
for a substantial part of the Property of any thereof, and
such trustee, receiver, sequestrator or other custodian shall
not be discharged within sixty (60) days;
(d) permit or suffer to exist the involuntary commencement
<PAGE>
of, or voluntarily commence, any bankruptcy, reorganization,
debt arrangement, or other case or proceeding under any
bankruptcy or insolvency laws, or permit or suffer to exist
the involuntary commencement of, or voluntarily commence, any
dissolution, winding up or liquidation proceeding (except for
the voluntary dissolution, not under bankruptcy or insolvency
law, of any such Person other than the Borrower or CBI), in
each case, by or against the Borrower or any such Material
Subsidiary, provided that if not commenced by the Borrower or
any such Material Subsidiary, such proceeding shall be
consented to or acquiesced in by the Borrower or any such
Material Subsidiary, or shall result in the entry of an order
for relief or shall remain undismissed for more than sixty
(60) days;
(e) with respect to the Borrower or any of its Material
Subsidiaries, permit the commencement of any case, proceeding
or other action seeking the issuance of a warrant of
attachment, execution, distraint or similar process against
all or any material part of its Property (except for any such
attachment or similar process that would constitute a
Permitted Lien); or
(f) take any corporate action authorizing, or in furtherance
of, any of the foregoing.
SECTION 10.1.7. Judgments. A final judgment which, with all
other such outstanding final judgments against the Borrower or
any of its Material Subsidiaries, exceeds an aggregate of
$10,000,000, shall be rendered against the Borrower or any of
its Material Subsidiaries, and, within thirty (30) days after
entry thereof, such judgment shall not have been discharged or
execution thereof stayed pending appeal, or within thirty (30)
days after the expiration of any such stay, such judgment
shall not have been discharged.
SECTION 10.1.8. Impairment of Loan Document, etc. Any Loan
Document shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective, or cease to be
the legally valid, binding and enforceable obligation of the
Borrower; or the Borrower shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding
nature or enforceability.
SECTION 10.1.9. Change of Control Triggering Event. At any
time after the date of this Agreement, any Change of Control
Triggering Event shall occur.
SECTION 10.2. Action if Bankruptcy. If any Default or Event
of Default described in Section 10.1.6 shall occur, all of the
Commitments and all obligations to issue Letters of Credit
shall automatically be terminated and the outstanding
principal amount of all Revolving Loans and the outstanding
amount of all other Obligations shall automatically be and
become immediately due and payable, and the Borrower shall
automatically become obligated to provide cash collateral to
the Administrative Agent in an amount equal to the undrawn
<PAGE>
amount under all Letters of Credit, all without notice,
demand, presentment or other action of any kind.
SECTION 10.3. Action if Other Event of Default. If any Event
of Default (other than an Event of Default described in
Section 10.1.6) shall occur for any reason, whether voluntary
or involuntary, and be continuing, the Administrative Agent,
upon the direction of the Required Lenders, shall, upon notice
or demand, declare (a) all of the Commitments and all
obligations to issue Letters of Credit to be terminated,
whereupon the Commitments and all such obligations to issue
Letters of Credit shall be immediately terminated, and/or (b)
all or any portion of the outstanding principal amount of the
Revolving Loans or the outstanding amount of any other
Obligations to be immediately due and payable, whereupon all
of the Commitments and all obligations to issue Letters of
Credit shall terminate forthwith and such Revolving Loans and
other Obligations shall be and become immediately due and
payable, and the Borrower shall automatically become obligated
to provide cash collateral to the Administrative Agent in an
amount equal to the undrawn amount under all Letters of
Credit, in each case under clause (a) or (b), without further
notice, demand, presentment or other action of any kind.
ARTICLE XI
THE AGENTS
SECTION 11.1. Actions. Each Lender or other holder of any
Note hereby authorizes the Administrative Agent to act on
behalf of such Lender or holder under this Agreement and the
other Loan Documents and, in the absence of other written
instructions from the Required Lenders (or, if required by the
terms of Section 13.1, from all the Lenders) received from
time to time by the Administrative Agent (with respect to
which the Administrative Agent agrees that it will, subject to
the next three sentences of this Section 11.1, comply in good
faith except to the extent that it is advised by counsel that
such compliance would be contrary to any Applicable Law), to
exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender
agrees (which agreement shall survive any termination of this
Agreement) to indemnify each Agent, promptly upon demand,
Ratably at the time such demand is transmitted, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (collectively,
"Indemnified Costs") which may at any time be imposed on,
incurred by, or asserted against such Agent, in any way
relating to or arising out of this Agreement or any of the
other Loan Documents (except the Agents' Fee Letter),
including the reimbursement of any Agent for all reasonable
<PAGE>
out-of-pocket expenses (including reasonable fees and
disbursements of counsel, amounts paid in settlement and court
costs) incurred by such Agent hereunder or in connection
herewith or in enforcing the Obligations of the Borrower under
this Agreement or any of the other Loan Documents (except the
Agents' Fee Letter), in all cases as to which such Agent is
not reimbursed by the Borrower; except for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements which (a)
has resulted by reason of such Agent's gross negligence or
willful misconduct, or (b) have been reimbursed by the
Borrower pursuant to Section 13.3 or 13.4. No Agent shall be
required to take any action hereunder or under any other Loan
Document, or to prosecute or defend any suit in respect of
this Agreement or any other Loan Document, unless indemnified
to its satisfaction by the Lenders against any Indemnified
Costs, except for Indemnified Costs resulting directly and
primarily by reason of such Agent's gross negligence or
willful misconduct. If any indemnity required by this Section
11.1 in favor of any Agent shall become impaired, such Agent
may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given.
Any Agent may delegate its duties hereunder to any of its
Affiliates, agents or attorneys-in-fact selected in good faith
by the delegating Agent.
SECTION 11.2. Exculpation. Notwithstanding any provision to
the contrary elsewhere in this Agreement or any of the other
Loan Documents, none of the Agents shall have any duties or
responsibilities, except those expressly set forth herein, or
any trust or fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement
or any other Loan Document or otherwise exist against any
Agent. None of the Agents or any of their respective
directors, officers, employees or agents (collectively, the
"Related Parties") shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement
or any other Loan Document, or in connection herewith or
therewith, except for its own willful misconduct or gross
negligence, nor shall any Agent or any of the Related Parties
be responsible for any recitals or representations or
warranties herein or therein, or for the effectiveness,
enforceability, validity or due execution of this Agreement or
any other Loan Document, nor shall any Agent or any of the
Related Parties be obligated to make any inquiry respecting
the performance by the Borrower of any of its Obligations
hereunder or thereunder, or to inspect the Properties, books
or records of the Borrower. Each of the Agents shall be
entitled to rely upon advice of counsel concerning legal
matters and upon any notice, consent, certificate, statement,
or writing which it believes to be genuine and to have been
presented by a proper Person. The Agents shall in all cases
be fully protected in acting, or in refraining from acting,
<PAGE>
under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, to the
extent this Agreement requires a higher percentage, such
higher percentage), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Obligations. Each of
the Agents shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or
concurrence of the Required Lenders (or, to the extent this
Agreement requires a higher percentage, such higher
percentage) as it deems appropriate.
SECTION 11.3. Successor. Subject to the appointment and
acceptance of a successor as provided below, the
Administrative Agent may resign as such at any time upon at
least thirty (30) days' prior notice to the Borrower and all
Lenders, and the Administrative Agent may be removed at any
time with reasonable cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders may, upon
consultation with the Borrower and, so long as no Default is
continuing, with the prior approval of the Borrower (which
approval will not be unreasonably withheld or delayed),
appoint another Lender which is a commercial banking
institution or trust institution having a combined capital and
surplus of at least $500,000,000 as a successor Administrative
Agent. Upon the acceptance of any appointment as
Administrative Agent, such successor Administrative Agent
shall thereupon become the Administrative Agent hereunder and
under the other Loan Documents and shall be entitled to
receive from the prior Administrative Agent such documents of
transfer and assignment as it may reasonably request, and the
resigning or removed Administrative Agent shall be discharged
from its duties and obligations under this Agreement and the
other Loan Documents.
SECTION 11.4. Loan Documents, etc. Each Lender hereby
authorizes the Administrative Agent to enter into any other
Loan Documents and to take all action contemplated thereby.
Each Lender agrees that no Lender shall have any right
individually to seek to realize upon any security granted by
or guaranty provided by any Loan Document, it being understood
and agreed that such rights and remedies may be exercised by
the Administrative Agent for the benefit of the Lenders and
the Agents upon the terms of the Loan Documents.
SECTION 11.5. Revolving Loans by Agents. Any Lender which
may at any time be acting as an Agent and as a Lender
hereunder shall have the same rights and powers with respect
to any Revolving Loans or other Credit Extensions made by it
and any Notes held by it as any Lender and may exercise the
same as if it were not an Agent hereunder, and the term
"Lender" and, when appropriate, "holder", shall include any
Lender who is then an Agent.
<PAGE>
SECTION 11.6. Credit Decisions. Each Lender acknowledges
that it has, independently of any of the Agents or other
Lenders, and based on the financial information referred to in
Section 8.4 and such other documents, information and
investigations as it has deemed appropriate, made its own
credit decision to make its Commitments and to participate in
the Credit Extensions. Each Lender also acknowledges that it
will, independently of any of the Agents or other Lenders, and
based on such documents, information and investigations as it
shall deem appropriate at any time, continue to make its own
credit decisions as to exercising or not exercising from time
to time any rights and privileges available to it under this
Agreement, the Notes or the other Loan Documents.
SECTION 11.7. Notices, etc., to the Administrative Agent.
The Administrative Agent will distribute to each Lender each
Instrument and copies of all other written communications
received by the Administrative Agent from the Borrower in
accordance with the terms of this Agreement or any of the
other Loan Documents.
ARTICLE XII
ADDITIONAL LENDERS AND PARTICIPANTS
SECTION 12.1. Participations by Lenders.
SECTION 12.1.1. Participations. From and after the date of
this Agreement, any Lender may, in the ordinary course of its
business and in accordance with Applicable Law, sell to one or
more banks or other entities ("Participants") participating
interests in any Revolving Loans owing to such Lender, any
Notes held by such Lender, any Commitments of such Lender or
any other interests of such Lender under this Agreement and
under the other Loan Documents (which Sales shall be, as
nearly as practicable, and permitting customary rounding of
such Sales and resulting retained interests, on a pro rata
basis as to all of the Revolving Loans, Notes, Commitments and
other interests of such Lender under the Loan Documents);
provided, however, that (a) the aggregate principal amount of
all Revolving Loans, other Credit Extensions and Commitments
being sold pursuant to any such Sale shall in no event be less
than $5,000,000 and shall be in an integral multiple of
$1,000,000 in excess thereof, and (b) after giving effect to
any such Sale by any Lender to any Person that is not an
Affiliate of such Lender, and also after giving effect to all
Assignments by such Lender pursuant to Section 12.2.1 and all
prior Sales by such Lender of any participating interests
pursuant to Section 12.1.1, the aggregate amount of the
Commitments hereunder of such Lender and its Affiliates
(determined after excluding all participating interests that
shall have been sold by such Lender or any of its Affiliates
to any Participants that are not Affiliates of such Lender),
shall not be less than $10,000,000. In the event of any such
<PAGE>
Sale by any Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of
each of its Notes for all purposes under this Agreement and
the other Loan Documents, the Borrower and the Agents shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents, and such Lender
shall retain the sole right to enforce the Obligations of the
Borrower relating to the Revolving Loans and to approve any
amendment, modification or waiver of any provision of this
Agreement or any of the other Loan Documents. It is
understood that nothing in the prior sentence or elsewhere in
this Section 12.1.1 shall prohibit a Lender from agreeing with
any Participant that such Lender will not, without the consent
of such Participant, take any action that would in any event
require approval of all of the Lenders under Section 13.1.
Each Lender hereby agrees that it will not agree with any
Participant that such Lender will not take any action without
such Participant's consent unless such action would in any
event require approval of all Lenders under Section 13.1.
SECTION 12.1.2. Participant's Rights of Set-off in Certain
Cases. The Borrower agrees that each Participant shall be
deemed to have all rights of set-off and bankers' liens
provided by Applicable Law in respect of its participating
interests in amounts owing under this Agreement, any Notes or
any of the other Loan Documents to the same extent as if the
amount of its participating interests were owing directly to
such Participant as a Lender under this Agreement, any Notes
or any of the other Loan Documents, provided that such
Participant shall only be entitled to such right of set-off if
it shall have agreed, for the benefit of the Lenders and
holders of Notes, in the agreement pursuant to which it shall
have acquired its participating interests, to purchase from
the Lenders and holders of Notes such participations in the
Notes held by them as shall be necessary to cause such
Participant to share the amount recovered in exercising such
right of set-off or bankers' liens pro rata in accordance with
the aggregate unpaid principal and interest on the Revolving
Loans or other Credit Extensions held by each of them.
SECTION 12.1.3. Rights of Participants. The Borrower also
agrees that each Participant shall be entitled to the benefits
of Sections 3.7, 4.5, 4.8, 5.3, 13.3 and 13.4 with respect to
its participation in the Revolving Loans or other Credit
Extensions outstanding from time to time, and all amounts to
which any Participant is entitled thereunder shall be paid by
the Borrower directly to the Participant; provided, that
(a) no Participant shall be entitled to receive any greater
amount pursuant to such Sections than the transferor Lender
would have been entitled to receive in respect of the amount
<PAGE>
of the participation transferred by such transferor Lender to
such Participant had no such transfer occurred, and
(b) the Borrower shall, notwithstanding the Sale of
participating interests to any such Participant, remain at all
times entitled to all of its rights under Section 4.11(c) with
respect to all of the transferor Lender's rights and
obligations under this Agreement and its Notes.
SECTION 12.2. Assignments by Lenders.
SECTION 12.2.1. Assignments. From and after the date of this
Agreement, any Lender (any such Lender being referred to
herein as an "Assigning Lender") may, in the ordinary course
of its business and in accordance with Applicable Law, assign
and transfer to any other Lender or to any Affiliate of such
Assigning Lender and, with the consent of each of the
Administrative Agent and, so long as no Default shall be
continuing, the Borrower (such consents not to be unreasonably
withheld), to any one or more additional banks or financial
institutions ("Purchasing Lender") any part of such Assigning
Lender's rights and obligations (including Commitments) under
this Agreement, its Notes and the other Loan Documents (which
assignments and transfers shall be, as nearly as practicable,
and permitting customary rounding of such assignments and
transfers and resulting retained interests, on a pro rata
basis as to all of the Revolving Loans, other Credit
Extensions, Notes and Commitments of such Assigning Lender and
as to all of the other rights and obligations of such
Assigning Lender). Any such assignment and transfer
("Assignment") shall be made pursuant to an Assignment and
Acceptance Agreement, substantially in the form of Exhibit E
attached hereto (an "Assignment and Acceptance Agreement"),
executed by such Purchasing Lender and such Assigning Lender
(and, in the case of a Purchasing Lender that is not then a
Lender or an Affiliate thereof, by the Administrative Agent
and, so long as no Default is continuing, the Borrower) and
delivered to the Administrative Agent for its acceptance and
recording in the Register (as hereinafter defined); provided,
however, that (a) the aggregate principal amount of all
Revolving Loans, other Credit Extensions and Commitments of
the Assigning Lender being assigned pursuant to any such
Assignment shall in no event be less than $5,000,000 and shall
be in an integral multiple of $1,000,000 in excess thereof,
(b) each such Assignment shall be of a constant, and not a
varying, percentage of all of the Assigning Lender's interests
in all of its Commitments, Revolving Loans, other Credit
Extensions and Notes and all of its other rights and
obligations under this Agreement, the Notes and the other Loan
Documents, and (c) after giving effect to any such Assignment
by an Assigning Lender, and also after giving effect to all
Sales by such Assigning Lender of any participating interests
to Participants pursuant to Section 12.1.1, the aggregate
amount of the Commitments hereunder of such Assigning Lender
and its Affiliates (determined after excluding all
<PAGE>
participating interests that shall have been sold by such
Assigning Lender and its Affiliates to any Participants that
are not Affiliates of such Assigning Lender) shall not be less
than $5,000,000. From and after the effective date specified
in each Assignment and Acceptance Agreement, which effective
date must be at least five (5) Business Days after the
execution and delivery of such Assignment and Acceptance
Agreement and (if required) the acceptance of such Assignment
and Acceptance Agreement by the Administrative Agent (the
"Transfer Effective Date"): (i) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance Agreement, have the rights
and obligations of a Lender hereunder with respect to the
Revolving Loans, other Credit Extensions, Commitments and
Notes as set forth therein, and (ii) the Assigning Lender
thereunder shall, to the extent provided in such Assignment
and Acceptance Agreement, be released from its obligations
under this Agreement.
SECTION 12.2.2. Effect of Assignment and Acceptance
Agreement. Each Assignment and Acceptance Agreement duly
executed and delivered in compliance with the foregoing
provisions of Section 12.2.1 shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender as a Lender
hereunder and the resulting adjustment of Percentages.
SECTION 12.2.3. Delivery of New Notes By Borrower Following
Assignments. In the case of any Assignment under Section
12.2.1 after the Effective Date, within five (5) Business Days
after the Transfer Effective Date determined pursuant to the
applicable Assignment and Acceptance Agreement and Section
12.2.1, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent, against surrender of the
Notes of the Assigning Lender to the Administrative Agent, new
Notes to the order of the Purchasing Lender in an amount equal
to the Commitments assigned to it pursuant to such Assignment
and Acceptance Agreement and new Notes to the order of the
Assigning Lender in a principal amount equal to the
Commitments retained by it hereunder. Such new Notes shall be
dated the Transfer Effective Date (or such other date as may
be agreed to by the Administrative Agent, the Assigning
Lender, the Purchasing Lender, and, so long as no Default is
continuing, the Borrower) and shall otherwise be in the form
of the Notes replaced thereby. The Notes surrendered by the
Assigning Lender shall be returned by the Administrative Agent
to the Borrower marked "canceled."
SECTION 12.2.4. Administrative Agent's Maintenance of
Register. The Administrative Agent shall maintain at its
address a copy of each Assignment and Acceptance Agreement
delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, the
Commitments of each Lender in effect from time to time, and
<PAGE>
the principal amount of the Revolving Loans and other Credit
Extensions owing to each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agents and the Lenders
may treat each Person whose name is recorded in the Register
as the maker of the Commitments and as the owner of the
Revolving Loans and other Credit Extensions recorded therein
for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower, any Agent or any
Lender at any reasonable time and from time to time upon
reasonable prior notice.
SECTION 12.2.5. Actions of Administrative Agent; Fees. Upon
its receipt of an Assignment and Acceptance Agreement executed
by an Assigning Lender and a Purchasing Lender (and, in the
case of a Purchasing Lender that is not then a Lender or an
Affiliate thereof, by the Administrative Agent and, so long as
no Default is continuing, the Borrower), together with (in the
case of a Purchasing Lender that is not then a Lender or an
Affiliate thereof) payment by the Purchasing Lender to the
Administrative Agent for the account of the Administrative
Agent of a registration and processing fee of $2,500, the
Administrative Agent shall (a) promptly accept such Assignment
and Acceptance Agreement, (b) on the Transfer Effective Date
determined pursuant thereto and Section 12.2.1, record the
information contained therein in the Register, and (c) give
notice of such acceptance and recordation to each of the
Lenders and the Borrower.
SECTION 12.2.6. Assigning Lender, Purchasing Lender and Other
Parties; Confirmations and Agreements. By executing and
delivering an Assignment and Acceptance Agreement, the
Assigning Lender thereunder and the Purchasing Lender
thereunder shall confirm to and agree with each other and the
other parties hereto as follows: (a) other than as provided in
such Assignment and Acceptance Agreement, such Assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement,
any of the other Loan Documents or any other Instrument
furnished pursuant hereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement, any of the other Loan Documents or any other
Instrument furnished pursuant hereto; (b) such Assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or any of its Subsidiaries or the performance or
observance by the Borrower of any of its Obligations under
this Agreement, any of the other Loan Documents or any other
Instrument furnished pursuant hereto; (c) such Purchasing
Lender confirms that it has received a copy of this Agreement,
together with copies of such financial statements and such
other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into
<PAGE>
such Assignment and Acceptance Agreement; (d) such Purchasing
Lender will, independently and without reliance upon any of
the Agents, such Assigning Lender or any other Lenders and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement;
(e) such Purchasing Lender appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise
such powers under this Agreement or any of the other Loan
Documents as are delegated to such Agent by the terms hereof
and thereof, together with such powers as are reasonably
incidental thereto; (f) such Purchasing Lender agrees that it
will perform in accordance with their terms all of the
obligations which by the terms of this Agreement or any of the
other Loan Documents are required to be performed by it as a
Lender; and (g) such Purchasing Lender (i) consents in all
respects to the provisions of the Loan Documents, (ii) agrees
to be bound by the terms of the Loan Documents, and (iii)
authorizes the Administrative Agent as Administrative Agent to
act on its behalf under the Loan Documents and to exercise
such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto.
SECTION 12.3. Disclosure of Information. The Borrower
authorizes each Lender to disclose to any Participant or
Purchasing Lender (each, a "Transferee"), to any prospective
Transferee that is another Lender or an Affiliate of such
Lender, and, so long as no Default shall be continuing, with
the prior consent of the Borrower (which consent will not be
unreasonably withheld or delayed), to any other prospective
Transferee, any and all information in such Lender's
possession concerning the Borrower or any of its Subsidiaries
which has been delivered to such Lender by or on behalf of the
Borrower or any Agent pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower
or any Agent in connection with such Lender's credit
evaluation of the Borrower or any of its Subsidiaries prior to
becoming a party to this Agreement; provided, that, prior to
any such disclosure, the Transferee or prospective Transferee
shall agree to be bound by the provisions of Section 13.14.
SECTION 12.4. Assistance. In order to facilitate the
addition of Purchasing Lenders and Participants hereto, the
Borrower agrees to cooperate fully and promptly with each
Assigning Lender, each Purchasing Lender and the
Administrative Agent in connection therewith and to provide
all reasonable assistance requested by each Assigning Lender,
each Purchasing Lender or the Administrative Agent relating
thereto, including, without limitation:
(a) the furnishing promptly of such written materials and
financial information regarding the Borrower and its
Subsidiaries as each such Assigning Lender, Purchasing Lender
or the Administrative Agent may reasonably request;
<PAGE>
(b) the prompt execution of such documents as each such
Assigning Lender, Purchasing Lender or the Administrative
Agent may reasonably request with respect thereto; and
(c) the participation by officers of the Borrower in a
meeting or teleconference call with prospective Purchasing
Lenders or prospective Participants, upon the request of each
such Assigning Lender, Purchasing Lender or the Administrative
Agent.
SECTION 12.5. Federal Reserve Bank. Nothing herein shall
prohibit any Lender from pledging or assigning any of its
Revolving Loans, other Credit Extensions or Notes to any
Federal Reserve Bank in accordance with Applicable law.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Waivers, Amendments, etc. The provisions of
this Agreement and the other Loan Documents may from time to
time be amended, modified or waived, if such amendment,
modification, waiver or release is consented to in writing by
the Required Lenders and, in the case of any amendment or
modification, the Borrower; provided, however, that no such
amendment, modification, waiver or release:
(a) which would modify any requirement under any of the Loan
Documents that any particular action be taken by all the
Lenders shall be effective unless consented to by all of the
Lenders;
(b) which would modify this Section 13.1, change the
definition of "Required Lenders" or "Commitment Termination
Event" or "Commitment Termination Date", release the Guaranty,
or increase the aggregate amount of all of the Commitments,
shall be effective unless consented to by all of the Lenders;
(c) which would increase the Commitments or the Percentage of
any Lender, reduce (other than by application of payments) the
amount of any principal, interest, Fees or other sums payable
under the Loan Documents to such Lender or reduce the rate of
interest on any Obligations to such Lender, shall be made
without the consent of such Lender;
(d) which would modify Section 3.3.1 shall be effective
unless consented to by all of the Lenders;
(e) which would extend the payment dates for any principal,
interest or Fees payable under this Agreement shall be
effective unless consented to by all the Lenders; or
(f) which would adversely affect the interests, rights or
obligations of the Administrative Agent in its capacity as the
Administrative Agent or would amend the provisions of Section
3.1 or 3.6 relating to the transfer of funds between the
Administrative Agent and the Lenders (including the types of
funds or the method of such transfer), shall be made without
the consent of the Administrative Agent. No failure or delay
on the part of any Agent, Lender or holder of any Note in
exercising any power or right under this Agreement, the Notes
<PAGE>
or any other Loan Documents shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand
on the Borrower in any case shall entitle it to any notice or
demand in similar or other circumstances, unless otherwise
required by the Loan Documents. The remedies herein provided
are cumulative and not exclusive of any other remedies
provided in any of the other Loan Documents or at law or in
equity. No waiver or approval by any Agent, Lender or holder
of any Note under this Agreement, the Notes or any other Loan
Documents shall, except as may be otherwise stated in such
waiver or approval, be applicable to subsequent transactions.
No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 13.2. Notices. All notices and other communications
provided to any party hereto under this Agreement, the Notes
or any other Loan Documents shall (except as otherwise
specifically provided herein or therein) be in writing or by
facsimile transmission and addressed or delivered to it at its
address designated for notices set forth below its signature
hereto in the case of the Borrower, and in the case of each
Agent and each Lender at the address specified on Schedule I
or at such other address as may be designated by such party in
a notice to the other parties. Any notice, if mailed and
properly addressed with postage prepaid, and any notice, if
transmitted by facsimile transmission, shall be deemed given
when received.
SECTION 13.3. Costs and Expenses. The Borrower agrees to pay
all reasonable out-of-pocket costs and expenses incurred by
the Administrative Agent in connection with the structuring,
preparation, negotiation, review, execution or delivery of
this Agreement or any of the other Loan Documents, including
schedules and exhibits, or any amendments, consents or waivers
to this Agreement, any of the other Loan Documents or any
related documents as may from time to time hereafter be
required or requested (whether or not any of the same become
effective), including all reasonable (a) costs and expenses of
syndication, and (b) fees and expenses of counsel (including
all special counsel) for the Administrative Agent from time to
time incurred in connection therewith, whether or not
any of the transactions contemplated hereby or thereby are
consummated, and to pay all reasonable costs and expenses of
the Administrative Agent (including reasonable fees and
expenses of counsel to the Administrative Agent) incurred in
connection with the preparation, negotiation, review,
execution or delivery of the form of any Instrument relevant
to this Agreement or any of the other Loan Documents, the
consideration of legal questions relevant hereto and thereto,
and the consideration and/or conduct of any proposed or actual
restructuring or "workout" of any of the Obligations. The
<PAGE>
Borrower also agrees to reimburse each Agent and each Lender
upon demand for all stamp or other taxes payable in connection
with the execution, delivery or enforcement of this Agreement
or any Instrument related hereto and for all reasonable
out-of-pocket costs and expenses (including reasonable
attorneys' fees and legal expenses) incurred by such Agent or
such Lender in enforcing any of the Obligations of the
Borrower under this Agreement or any other Loan Documents and
the consideration and/or conduct of any proposed or actual
restructuring or "workout" of any Obligations.
SECTION 13.4. Indemnification. In consideration of the
execution and delivery of this Agreement by each Agent and
Lender and the extension of the Commitments by each Lender,
the Borrower hereby indemnifies, exonerates and holds free and
harmless each of the Agents and Lenders and each of their
respective shareholders, officers, directors, employees,
agents, subsidiaries and Affiliates (collectively, the
"Indemnified Parties" and, individually, an "Indemnified
Party") from and against any and all actions, causes of
action, suits, losses, costs, liabilities, damages, and
expenses actually incurred in connection with any of the Loan
Documents or any of the transactions contemplated thereby
(irrespective of whether such Indemnified Party is a party to
the action for which indemnification hereunder is sought),
including all reasonable fees and disbursements of counsel,
all amounts paid in settlement and all court costs (the
"Indemnified Liabilities"), incurred from time to time by the
Indemnified Parties or any of them as a result of, or arising
out of, or relating to, or as a direct or indirect result of:
(a) any transaction financed or to be financed in whole or in
part or directly or indirectly with the proceeds of any of the
Revolving Loans or other Credit Extensions; or
(b) the entering into or performance of this Agreement or any
of the other Loan Documents by any of the Indemnified Parties
or the Borrower; or
(c) the enforcement by any of the Indemnified Parties of any
of its rights or remedies under any of the Loan Documents; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or release
from, any real Property owned or operated by the Borrower or
any of its Subsidiaries of any Hazardous Material (including,
without limitation, any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under
Environmental Law), regardless of whether or not caused by, or
within the control of, the Borrower or any of its
Subsidiaries; except to the extent of any such Indemnified
Liabilities which a court of competent jurisdiction has found,
in a final, nonappealable order, resulted by reason of such
Indemnified Party's gross negligence or willful misconduct or
breach by such Indemnified Party of its obligations under the
Loan Documents. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment
<PAGE>
and satisfaction of each of the Indemnified Liabilities which
is permissible under Applicable Law, except as aforesaid to
the extent not payable by reason of the Indemnified Party's
gross negligence or willful misconduct or breach of such
obligations.
SECTION 13.5. Survival. The Obligations of the Borrower
under Sections 3.7, 4.5, 4.8, 5.3, 13.3, and 13.4 and the
obligations of the Lenders under Section 11.1 shall in each
case survive any termination of this Agreement and the payment
of any of the Obligations. The representations and warranties
made by the Borrower in this Agreement or in any of the other
Loan Documents, or in any document, certificate or statement
delivered pursuant hereto or thereto or in connection herewith
or therewith, shall survive the execution and delivery of this
Agreement and each of the other Loan Documents and the making
of each of the Revolving Loans and other Credit Extensions.
SECTION 13.6. Severability. Any provision of this Agreement,
the Notes or any of the other Loan Documents which is
prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent only of such
prohibition or unenforceability without invalidating any of
the remaining provisions of this Agreement, the Notes or any
of the other Loan Documents or the enforceability of any such
provision in any other jurisdiction.
SECTION 13.7. Headings. The various headings of this
Agreement and of each of the other Loan Documents are inserted
for convenience only and shall not affect the meaning or
interpretation of this Agreement or any of such other Loan
Documents or any provisions hereof or thereof.
SECTION 13.8. Counterparts; Entire Agreement. This Agreement
may be executed by the parties hereto in several counterparts,
each of which shall be deemed to be an original and all of
which shall constitute together but one and the same
agreement. This Agreement, the Notes, the other Loan
Documents and each Assignment and Acceptance Agreement
constitute the entire understanding among the parties hereto
with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 13.9. CHOICE OF LAW. THIS AGREEMENT SHALL IN ALL
RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND, IN THE
CASE OF PROVISIONS RELATING TO INTEREST RATES, ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
SECTION 13.10. SERVICE OF PROCESS. THE BORROWER BY ITS
EXECUTION HEREOF (A) HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ALL FEDERAL AND STATE COURTS
LOCATED IN THE STATE OF NEW YORK FOR THE PURPOSE OF ANY SUIT,
<PAGE>
ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE SUBJECT MATTER
HEREOF OR THEREOF, AND (B) HEREBY WAIVES, TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY
OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH PROCEEDING,
ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE
JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS
EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY SUCH
PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS IS
IMPROPER, OR THAT THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE ENFORCED IN OR
BY SUCH COURT. THE BORROWER HEREBY CONSENTS TO SERVICE OF
PROCESS IN ANY SUCH PROCEEDING IN ANY MANNER PERMITTED BY OF
THE LAWS OF THE STATE OF NEW YORK AND AGREES THAT SERVICE OF
PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, AT ITS ADDRESS SPECIFIED IN OR PURSUANT TO SECTION
13.2 IS REASONABLY CALCULATED TO GIVE ACTUAL NOTICE.
SECTION 13.11. Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided,
however, that:
(a) the Borrower may not assign or transfer any of its rights
or obligations hereunder or under any Loan Document without
the prior written consent of all Lenders; and
(b) the rights of sale, assignment, participation and
transfer by the Lenders are subject to Article XII.
SECTION 13.12. Other Transactions; Consent to Relationships.
Nothing contained herein shall preclude any Agent or Lender
from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates or Subsidiaries in
which Borrower or such Affiliate or such Subsidiary is not
restricted hereby from engaging with any other Person.
SECTION 13.13. Further Assurances. The Borrower hereby
agrees that it will, from time to time at its own expense,
promptly execute and deliver all further Instruments, and take
all further action, that may be necessary or appropriate, or
that the Administrative Agent or the Required Lenders may
reasonably request, in order to perfect, preserve or protect
any right or remedy granted or purported to be granted under
the Loan Documents, to enable the Lenders, or the
Administrative Agent to exercise and enforce any of their
rights or remedies under this Agreement or any of the other
Loan Documents or otherwise to carry out the intent of this
Agreement or any of the other Loan Documents.
SECTION 13.14. Confidentiality. Each Lender shall, for a
period of two (2) years after its receipt thereof, hold all
non-public information obtained pursuant to the requirements
of this Agreement in accordance with such Lender's customary
procedures for handling confidential information of this
<PAGE>
nature and in accordance with safe and sound banking
practices, provided that in any event it is understood and
agreed that each Lender may make disclosure of such
information (a) to its examiners, Affiliates, outside
auditors, counsel and other professional advisors in
connection with this Agreement, (b) as reasonably required by
any bona fide prospective Participant or Purchasing Lender
that is a Lender or an Affiliate of a Lender, or, so long as
no Default shall then be continuing, with the prior consent of
the Borrower (which consent will not be unreasonably withheld
or delayed), to any other prospective Participant or
Purchasing Lender, or actual Participant or Purchasing Lender
in connection with the contemplated transfer of any
Commitments, Revolving Loans, other Credit Extensions or Notes
or any participations therein, (c) as required or requested by
any Applicable Law or any Governmental Authority or pursuant
to legal process, (d) which, at the time of disclosure, is
publicly available, (e) as reasonably required in connection
with any action taken by the Agents or Lenders in connection
with the preservation, protection or enforcement of any of the
rights or remedies of the Agents or the Lenders during the
continuation of any Defaults or Events of Default, or (f) in
connection with any litigation to which any Lender is a party;
provided, further, that, (i) unless prohibited by any
Applicable Law, each Lender shall notify the Borrower promptly
of any request by any Governmental Authority (other than any
such request in connection with an examination of the
financial condition of such Lender by such Governmental
Authority) for disclosure of any such non-public information
and shall exercise its reasonable efforts to permit the
Borrower, if practical, to respond to such notice prior to
disclosure of such information; and (ii) in no event shall any
Lender be obligated or required to return any materials
furnished by the Borrower. Each of the Agents and Lenders
agrees that, upon any breach or threatened breach of this
Section 13.14, the Borrower will have the right to obtain
preliminary and permanent injunctive relief.
SECTION 13.15. WAIVER OF JURY TRIAL. TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF
THE AGENTS, LENDERS AND THE BORROWER HEREBY WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY
FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR
ANY OBLIGATION OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF ANY OF THE AGENTS, LENDERS OR
THE BORROWER IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN
CONTRACT OR TORT OR OTHERWISE. THE BORROWER ACKNOWLEDGES THAT
THE PROVISIONS OF THIS SECTION 13.15 CONSTITUTE A MATERIAL
INDUCEMENT UPON WHICH THE AGENTS AND LENDERS ARE RELYING AND
WILL RELY IN ENTERING INTO THIS AGREEMENT AND ANY OTHER LOAN
<PAGE>
DOCUMENT. ANY OF THE AGENTS, LENDERS OR THE BORROWER MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 13.15 WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THE
AGENTS, LENDERS AND THE BORROWER TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this CREDIT
AGREEMENT to be executed by their respective officers hereunto
duly authorized as of the day and in the year first above
written.
CHIQUITA BRANDS INTERNATIONAL, INC.
By: /s/Gerald R. Kondritzer
-----------------------------------------
Gerald R. Kondritzer
Its: Vice President and Treasurer
Address: Chiquita Center
250 Fifth Street
Cincinnati, Ohio 45202
Fax: (513) 784-6690
Attention: Gerald R. Kondritzer
THE FIRST NATIONAL BANK OF
BOSTON, as Administrative
Agent, as one of the Co-agents
and as one of the Lenders
By: /s/Robert F. Milordi
-----------------------------------------
Robert F. Milordi
Its: Managing Director
ING BANK N.V., GRONINGEN BRANCH,
as one of the Co-agents and as one of the Lenders
By: /s/R. van de Kamp
-----------------------------------------
Its: Senior Legal Counsel
By: /s/ Th. van Bon
-----------------------------------------
Its: Legal Counsel
PNC BANK, OHIO, NATIONAL
ASSOCIATION, as one of the Co-agents
and as one of the Lenders
By: /s/Bruce A. Kintner
-----------------------------------------
Its: Vice President
BANK OF AMERICA ILLINOIS,
as one of the Lenders
<PAGE>
By: /s/Bob Balmos
-----------------------------------------
Its: Managing Director
CHRISTIANIA BANK OG KREDITKASSE, NEW YORK BRANCH,
as one of the Lenders
By: /s/Martin Lunder
-----------------------------------------
Its: First Vice President
By: /s/Justin F. McCarty, III
-----------------------------------------
Its: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as one of the Lenders
By: /s/Masaaki Yamagishi
-----------------------------------------
Its: Chief Manager
STAR BANK, N.A., as one of the Lenders
By: /s/William J. Goodwin
-----------------------------------------
William J. Goodwin
Its: Senior Vice President
SUNTRUST BANK, N.A., as one of the Lenders
By: /s/Elsa Pelaez-Lopez
-----------------------------------------
Its: Vice President
<PAGE>
EXHIBIT 10-E
CHIQUITA BRANDS INTERNATIONAL, INC.
1986 STOCK OPTION AND INCENTIVE PLAN
(as Amended and Restated effective November 1, 1996)
CHIQUITA BRANDS INTERNATIONAL, INC.
1986 STOCK OPTION AND INCENTIVE PLAN
(as Amended and Restated effective November 1, 1996)
T A B L E O F C O N T E N T S
I. OBJECTIVES . . . . . . . . . . . . . . . . . . . . . . 1
II. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 1
III. ADMINISTRATION . . . . . . . . . . . . . . . . . 3
3.1 The Committee . . . . . . . . . . . . . . . . . . 3
3.2 Awards . . . . . . . . . . . . . . . . . . . . . 3
3.3 Guidelines . . . . . . . . . . . . . . . . . . . 4
3.4 Delegation of Authority . . . . . . . . . . . . . 4
3.5 Decisions Final . . . . . . . . . . . . . . . . . 4
IV. SHARES SUBJECT TO PLAN . . . . . . . . . . . . . . . . 4
4.1 Shares . . . . . . . . . . . . . . . . . . . . . 4
4.2 Adjustment Provisions . . . . . . . . . . . . . . 4
4.3 Dissolution or Liquidation . . . . . . . . . . . 5
V. DURATION OF PLAN . . . . . . . . . . . . . . . . . . . 5
VI. STOCK OPTIONS . . . . . . . . . . . . . . . . . . . . 5
6.1 Grants . . . . . . . . . . . . . . . . . . . . . 5
6.2 Incentive Stock Options . . . . . . . . . . . . . 5
6.3 Replacement Options . . . . . . . . . . . . . . . 6
6.4 Terms of Options . . . . . . . . . . . . . . . . 6
6.5 Award of Options to Non-Employee Directors . . . 7
VII. STOCK APPRECIATION RIGHTS . . . . . . . . . . . . 8
7.1 Grant . . . . . . . . . . . . . . . . . . . . . . 8
7.2 Term . . . . . . . . . . . . . . . . . . . . . . 8
7.3 Exercise . . . . . . . . . . . . . . . . . . . . 8
7.4 Payment . . . . . . . . . . . . . . . . . . . . . 8
7.5 Non-Transferability and Termination . . . . . . . 8
VIII. RESTRICTED AND UNRESTRICTED STOCK AWARDS . . . . 9
8.1 Grants of Restricted Stock Awards . . . . . . . . 9
8.2 Terms and Conditions of Restricted Awards . . . . 9
8.3 Unrestricted Stock Awards . . . . . . . . . . . . 9
IX. PERFORMANCE AWARDS . . . . . . . . . . . . . . . . . . 9
9.1 Performance Awards . . . . . . . . . . . . . . . 9
9.2 Terms and Conditions of Performance Awards . . . 10
X. NON-TRANSFERABILITY OF AWARDS . . . . . . . . . . . . 10
XI. TERMINATION OF AWARDS . . . . . . . . . . . . . . . . 10
11.1 Termination of Awards . . . . . . . . . . . . . . 10
11.2 Acceleration of Vesting and Extension of Exercise
Period Upon Termination . . . . . . . . . . . . . 11
XII. TERMINATION OR AMENDMENT OF THIS PLAN . . .. . . . . . 11
12.1 Termination or Amendment . . . . . . . . . . . . 11
XIII. GENERAL PROVISIONS . . . . . . . . . . . . . . . 12
13.1 No Right to Continued Employment or Business
Relationship . . . . . . . . . . . . . . . . . . 12
13.2 Other Plans . . . . . . . . . . . . . . . . . . . 12
13.3 Withholding of Taxes . . . . . . . . . . . . . . 12
13.4 Reimbursement of Taxes . . . . . . . . . . . . . 12
13.5 Governing Law . . . . . . . . . . . . . . . . . . 12
13.6 Liability . . . . . . . . . . . . . . . . . . . . 12
CHIQUITA BRANDS INTERNATIONAL, INC.
1986 STOCK OPTION AND INCENTIVE PLAN
(as Amended and Restated Effective November 1, 1996)
SECTION I.
OBJECTIVES
The objectives of this 1986 Stock Option and Incentive Plan
(the "Plan"), as amended and restated, are to enable Chiquita
Brands International, Inc. (the "Company") to compete
successfully in retaining and attracting key employees of
outstanding ability, to stimulate the efforts of such employees
toward the Company's objectives and to encourage the
identification of their interests with those of the Company's
shareholders.
SECTION II.
DEFINITIONS
For purposes of this Plan, the following terms shall have
the following meanings:
2.1 "Advisor" means any person who provides bona fide
advisory or consultation services to the Company other than
services in connection with the offer or sale of securities in a
capital-raising transaction.
2.2 "Award" means any form of Stock Option, Stock
Appreciation Right, Restricted Stock Award, Unrestricted Stock
Award or Performance Award granted under this Plan.
2.3 "Award Agreement" means a written agreement setting
forth the terms of an Award.
2.4 "Award Date" or "Grant Date" means the date designated
by the Committee as the date upon which an Award is granted.
2.5 "Award Period" or "Term" means the period beginning on
an Award Date and ending on the expiration date of such Award.
2.6 "Board" means the Board of Directors of the Company.
2.7 "Code" means the Internal Revenue Code of 1986, as
amended, or any successor legislation. Reference to any
particular section of the Code includes any successor amendments
or replacements of such section.
2.8 "Committee" means the committee appointed by the Board
and consisting of two or more Directors, none of whom shall be
eligible to receive any Award pursuant to this Plan except as
provided in Subsection 6.5. Members of the Committee must
qualify as Non-Employee Directors as defined by Rule 16b-3. To
the extent that it is desired that compensation resulting from an
Award be excluded from the deduction limitation of Section 162(m)
of the Code, all members of the Committee granting such Award
also shall be "outside directors" within the meaning of Code
Section 162(m).
2.9 "Common Stock" means the Company's Capital Stock, $.33
par value.
2.10 "Disability" means a "permanent and total disability"
within the meaning of Section 22(e)(3) of the Code.
2.11 "Eligible Employee" means any person (other than one
who receives retirement benefits, consulting fees, honorariums,
and the like from the Company) (i) who performs services for the
Company or a
Subsidiary, including any individual who is an officer or
director of the Company or a Subsidiary; and (ii) is compensated
on a regular basis by the Company or a Subsidiary. Directors who
are not full-time employees of the Company or a Subsidiary are
not eligible to receive Awards under this Plan, except as set
forth in Subsection 6.5. Eligibility under this Plan shall be
determined by the Committee.
2.12 "Fair Market Value" means, as of any date, the
average of the highest
and lowest quoted selling prices of a Share as reported on the
New York Stock Exchange Composite Transactions list (or such
other consolidated transaction reporting system on which the
Shares are primarily traded), or if the Shares were not traded on
such day, then the next preceding day on which the Shares were
traded, all as reported by such source as the Committee may
select. If the Shares are not traded on a national securities
exchange or other market system, Fair Market Value shall be set
under procedures established by the Committee.
2.13 "Incentive Stock Option" means any Stock Option
awarded under Section VI of this Plan intended to be and
designated as an
"Incentive Stock Option" within the meaning of Section 422 of the
Code or any successor provision.
2.14 "Non-Qualified Stock Option" means any Stock Option awarded
under Section VI of this Plan that is not an Incentive Stock Option.
2.15 "Officer" means a person who is considered to be an
officer of the Company under Rule 16a-1(f).
2.16 "Option Price" or "Exercise Price" means the price per
share at which Common Stock may be purchased upon the exercise
of an Option or an Award.
2.17 "Participant" means an Eligible Employee or Advisor to
whom an Award has been made pursuant to this Plan.
2.18
"Replacement Option" means a Non-Qualified Stock Option granted
pursuant to Subsection 6.3, upon the exercise of a Stock Option
granted pursuant to this Plan where the Option Price is paid with
previously owned shares of Common Stock.
2.19
"Restricted Stock" means those shares of Common Stock issued
pursuant to a Restricted Stock Award which are subject to the
restrictions set forth in the related Award Agreement.
2.20
"Restricted Stock Award" means an award of a fixed number of
Shares to a Participant which is subject to forfeiture provisions
and other conditions set forth in the Award Agreement.
2.21
"Retirement" means any termination of employment or service on
the Board (other than by death or Disability) by an employee or a
director who is at least 65 years of age or 55 years of age with
at least 10 years of employment with or service on the Board of
the Company or a Subsidiary.
2.22 "Rule 16b-3" and "Rule 16a-1(f)" mean Securities
and Exchange Commission Regulations Sect. 240.16b-3 and
Sect. 240.16a-1(f) or any corresponding successor regulations.
2.23 "Share" means one share of the Company's Common Stock.
2.24
"Stock Appreciation Right" or "SAR" means the right to receive,
for each unit of the SAR, cash and/or shares of Common Stock
equal in value to the excess of the Fair Market Value of one
Share on the date of exercise of the SAR over the reference price
per share of Common Stock established on the date the SAR was
granted.
2.25
"Stock Option" or "Option" means the right to purchase shares of
Common Stock (including a Replacement Option) granted pursuant to
Section VI of this Plan.
2.26
"Subsidiary" means any corporation, partnership, joint venture,
or other entity (i) of which the Company owns or controls,
directly or indirectly, 25% or more of the outstanding voting
stock (or comparable equity participation and voting power) or
(ii) which the Company otherwise controls (by contract or any
other means); except that when the term "Subsidiary" is used in
the context of an award of an Incentive Stock Option, the term
shall have the same meaning given to it in the Code. "Control"
means the power to direct or cause the direction of the
management and policies of a corporation or other entity.
2.27
"Transfer" means alienation, attachment, sale, assignment,
pledge, encumbrance, charge or other disposition; and the terms
"Transferred" or "Transferable" have corresponding meanings.
SECTION III.
ADMINISTRATION
3.1 The Committee. This Plan shall be administered and
interpreted by the Committee, except that any function of the
Committee may also be performed by the Board.
3.2 Awards. The Committee shall have full authority to
grant, pursuant to the terms of this Plan, to Eligible Employees
and Advisors: (i) Stock Options, (ii) Stock Appreciation Rights,
(iii) Restricted Stock, (iv) Unrestricted Stock and (v)
Performance Awards. In particular, the Committee shall have the
authority:
(a) to select the Eligible Employees and Advisors to whom
Awards may be granted;
(b) to determine the types and combinations of Awards to be
granted to Eligible Employees and Advisors;
(c) to determine the number of Shares or monetary units
which may be subject to each Award;
(d) to determine the terms and conditions, not inconsistent
with the terms of this Plan, of any Award (including, but not
limited to, the term, price, exercisability, method of exercise,
any restriction or limitation on transfer, any vesting schedule
or acceleration, or any forfeiture provisions or waiver,
regarding any Award) and the related Shares, based on such
factors as the Committee shall determine; and
(e) to modify or waive any restrictions or limitations
contained in, and grant extensions to the terms of or accelerate
the vestings of, any outstanding Awards as long as such
modifications, waivers, extensions or accelerations are not
inconsistent with the terms of this Plan, but no such changes
shall impair the rights of any Participant without his or her
consent.
3.3 Guidelines. The Committee shall have the authority to
adopt, alter and repeal administrative rules, guidelines and
practices governing this Plan and perform all acts, including the
delegation of its administrative responsibilities, as it deems
advisable; to construe and interpret the terms and provisions of
this Plan and any Award issued under this Plan; and to otherwise
supervise the administration of this Plan. The Committee may
correct any defect, supply any omission or reconcile any
inconsistency in this Plan or in any related Award Agreement in
the manner and to the extent it deems necessary to carry this
Plan into effect.
3.4 Delegation of Authority. The Committee may delegate to
one or more Officers of the Company the authority of the
Committee under Section 3.2 (except in respect of Awards to
Officers) and may delegate its administrative duties to one or
more individuals who are Officers or employees of the Company.
3.5 Decisions Final. Any action, decision, interpretation
or determination by or at the direction of the Committee
concerning the application or administration of this Plan shall
be final and binding upon all persons and need not be uniform
with respect to its determination of recipients, amount, timing,
form, terms or provisions of Awards.
SECTION IV.
SHARES SUBJECT TO PLAN
4.1 Shares. Subject to adjustment as provided in
Subsection 4.2, the aggregate number of Shares which may be
issued under this Plan shall not exceed fifteen million
(15,000,000) Shares. If any Award granted under this Plan shall
expire, terminate or be canceled for any reason without having
been exercised in full, the number of unacquired Shares subject
to such Award shall again be available for future grants. The
Committee may make such other determinations regarding the
counting of Shares issued pursuant to this Plan as it deems
necessary or advisable, provided that such determinations shall
be permitted by law.
4.2 Adjustment Provisions.
(a) If the Company shall at any time change the number of
issued Shares without new consideration to the Company (such as
by stock dividend, stock split, recapitalization, reorganization,
exchange of shares, liquidation, combination or other change in
corporate structure affecting the Shares) or make a distribution
of cash or property which has a substantial impact on the value
of issued Shares, the total number of Shares reserved for
issuance under the Plan shall be appropriately adjusted and the
number of Shares covered by each outstanding Award and the
reference price or Fair Market Value for each outstanding Award
shall be adjusted so that the aggregate consideration payable to
the Company and the value of each such Award shall not be
changed.
(b) Notwithstanding any other provision of the Plan, and
without affecting the number of Shares reserved or available
hereunder, the Committee may authorize the issuance, continuation
or assumption of Awards or provide for other equitable
adjustments after changes in the Shares resulting from any
merger, consolidation, sale of assets, acquisition of property or
stock, recapitalization, reorganization or similar occurrence in
which the Company is the continuing or surviving corporation,
upon such terms and conditions as it may deem equitable and
appropriate.
4.3 Dissolution or Liquidation. In the event of the
dissolution or liquidation of the Company or any merger,
consolidation or combination in which the Company is not the
surviving corporation or in which the outstanding Shares of the
Company are converted into cash, other securities or other
property, each outstanding Award shall terminate as of a date
fixed by the Committee, provided that not less than 20 days'
written notice of the date of expiration shall be given to each
holder of an Award and each such holder shall have the right
during such period following notice to exercise the Award as to
all or any part of the Shares for which it is exercisable at the
time of such notice.
SECTION V.
DURATION OF PLAN
This Plan shall continue in effect until December 31, 2015
unless terminated sooner by the Board pursuant to Section XII.
SECTION VI.
STOCK OPTIONS
6.1 Grants. Stock options may be granted alone or in
addition to other Awards granted under this Plan. Each Option
granted shall be designated as either a Non-Qualified Stock
Option or an Incentive Stock Option and in each case such Option
may or may not include Stock Appreciation Rights. One or more
Stock Options and/or Stock Appreciation Rights may be granted to
any Eligible Employee or Advisor, except that no person shall
receive during any twelve month period Stock Options and Stock
Appreciation Rights covering more than 300,000 shares of Common
Stock and except that only Non-Qualified Stock Options may be
granted to Advisors.
6.2 Incentive Stock Options.
(a) Award Agreement. Any Award Agreement relating to an
Incentive Stock Option shall contain such terms and conditions as
are required for the Option to be an "incentive stock option" as
that term is defined in Section 422 of the Code.
(b) Ten Percent Shareholder. An Incentive Stock Option
shall not be awarded to any person who, at the time of the Award,
owns Shares possessing more than 10% of the total combined voting
power of all classes of stock of the Company or its Subsidiaries.
(c) Qualification under the Code. Notwithstanding
anything in this Plan to the contrary, no term of this Plan
relating to Incentive Stock Options shall be interpreted, amended
or altered, nor shall any discretion or authority granted under
this Plan be exercised, so as to disqualify this Plan under
Section 422 of the Code, or, without the consent of the
Participants affected, to disqualify any Incentive Stock Option
under Section 422 of the Code.
6.3 Replacement Options. The Committee may provide
either at the time of grant or subsequently that an Option shall
include the right to acquire a Replacement Option upon the
exercise of such Option (in whole or in part) prior to an
Eligible Employee s termination of employment if the payment of
the Option Price is paid in Shares. In addition to any other
terms and conditions the Committee deems appropriate, the
Replacement Option shall be subject to the following terms:
(i) the number of Shares subject to the Replacement
Option shall not exceed the number of whole Shares used to
satisfy the Option Price of the original Option and the
number of whole Shares, if any, withheld by the Company as
payment for withholding taxes in accordance with
Subsection 13.3;
(ii) the Replacement Option Grant Date will be the
date of the exercise of the original Option;
(iii) the Option Price per share shall be the Fair
Market Value of a Share on the Replacement Option Grant
Date;
(iv) the Replacement Option shall be exercisable no
earlier than one year after the Replacement Option Grant
Date;
(v) the Term of the Replacement Option will not
extend beyond the Term of the original Option; and
(vi) the Replacement Option shall be a Non-Qualified
Stock Option and shall otherwise meet all conditions of this
Subsection 6.3.
The Committee may without the consent of the Eligible
Employee rescind the right to receive a Replacement Option at any
time prior to an Option being exercised.
6.4 Terms of Options. Except as otherwise required by
Subsections 6.2, 6.3 and 6.5, Options granted under this Plan
shall be subject to the following terms and conditions and shall
be in such form and contain such additional terms and conditions,
not inconsistent with the terms of this Plan, as the Committee
shall deem desirable:
(a) Option Price. The Option Price per share of Common
Stock purchasable under a Stock Option shall be determined by the
Committee at the time of grant, except that no Incentive Stock
Option may be granted for an Option Price less than 100% of Fair
Market Value on the Grant Date.
(b) Option Term. The Term of each Stock Option shall be
fixed by the Committee, but no Incentive Stock Option shall be
exercisable more than ten years after its Award Date, and no
Non-Qualified Stock Option shall be exercisable more than 20
years after its Award Date.
(c) Exercisability. A Stock Option shall be exercisable at
such time or times and subject to such terms and conditions as
shall be specified in the Award Agreement; provided, however,
that an Option may not be exercised as to less than 100 Shares at
any time unless the number exercised is the total number
available for exercise at that time under the terms of the
Option.
(d) Method of Exercise. Stock Options may be exercised in
whole or in part at any time during the Option Term by giving
written notice of exercise to the Company specifying the number
of Shares to be purchased. Such notice shall be accompanied by
payment in full of the Option Price in cash unless some other
form of consideration is approved by the Committee at or after
the grant. If and to the extent determined by the Committee at
or after grant, payment in full or in part may also be made in
the form of Common Stock owned by the Participant for at least
six months prior to exercise or by reduction in the number of
Shares issuable upon exercise based, in each case, on the Fair
Market Value of the Common Stock on the payment date.
(e) Non-Transferability of Options. Stock Options shall be
Transferable only to the extent provided in Section X of this
Plan.
(f) Termination. Stock Options shall terminate in
accordance with Section XI of this Plan.
(g) Buyout and Settlement Provisions. The Committee may at
any time offer to buy out an Option previously granted, based on
such terms and conditions as the Committee shall establish. The
Committee may also substitute new Stock Options for previously
granted Stock Options having higher Option Prices than the new
Stock Options being substituted therefor.
6.5 Award of Options to Non-Employee Directors.
(a) Grants. The Company shall make the following grants of
Stock Options to non-employee directors under this Plan:
(i) On the date on which a person who is not a full-
time employee of the Company or a Subsidiary first becomes a
director of the Company (a "non-employee director"), whether
by election or appointment, that non-employee director shall
automatically be granted Non-Qualified Stock Options for
10,000 Shares.
(ii) Each non-employee director who has served on the
Board at least six months shall automatically receive an
annual grant of Non-Qualified Stock Options for 10,000
Shares. The award shall be made on the same date on which
the Committee decides the total number of stock options to
be granted to employees in connection with the Company's
annual total compensation review.
(b) Terms and Conditions of Options Granted to Non-Employee
Directors.
(i) Term. The Term of all Options shall be 20 years
from the Award Date of the Option.
(ii) Option Price. The Option Price of all Options
shall be the Fair Market Value of a Share on the Award Date.
(iii) Vesting. All Options shall vest over a ten year
period with 9% of the Option Shares immediately exercisable
on the Award Date and an additional 9% exercisable on each
anniversary of the Award Date thereafter until the tenth
anniversary when the remaining 10% of the Option Shares
shall be exercisable.
(iv) Method of Exercise. All Options shall be
exercisable in the manner provided in Subsection 6.4(d)
except that, without further action by the Committee,
non-employee directors may make payment of the Option Price
by the delivery of Shares owned by the director for at least
six months prior to exercise or by a reduction in the number
of Shares issuable upon such exercise, and such directors
may also use the provisions of Subsection 13.3.
(v) Non-transferability and Termination. All
Options shall be Transferable only to the extent provided in
Section X of this Plan and shall terminate in accordance
with Section XI of this Plan, except that the timing
provisions of Subsections 11.1(b) and 11.1(c) may not be
varied by Committee determination.
SECTION VII.
STOCK APPRECIATION RIGHTS
7.1 Grant. A Stock Appreciation Right may be granted
either with or without reference to all or any part of a Stock
Option. A "Tandem SAR" means an SAR granted with reference to a
Stock Option (the "Reference Option"). A "Non-Tandem SAR" means
an SAR granted without reference to a Stock Option. If the
Reference Option is a Non-Qualified Stock Option, a Tandem SAR
may be granted at or after the date of the Reference Option; if
the Reference Option is an Incentive Stock Option, the Grant Date
of a Tandem SAR must be the same as the Grant Date of the
Reference Option. Any SAR shall have such terms and conditions,
not inconsistent with this Plan, as are established by the
Committee in connection with the Award.
7.2 Term. A Tandem SAR shall terminate and no longer be
exercisable upon the termination of its Reference Option. A Non-
Tandem SAR may have a term no longer than 20 years from its Grant
Date.
7.3 Exercise. A Tandem SAR may only be exercisable at the
times and, in whole or in part, to the extent that its Reference
Option is exercisable. The exercise of a Tandem SAR shall
automatically result in the surrender of the applicable portion
of its Reference Option. A Non-Tandem SAR shall be exercisable
in whole or in part as provided in its Award Agreement. Written
notice of any exercise must be given in the form prescribed by
the Committee.
7.4 Payment. For purposes of payment of an SAR, the
reference price per Share shall be the Option Price of the
Reference Option in the case of a Tandem SAR and shall be the
Fair Market Value of a Share on the Grant Date in the case of a
Non-Tandem SAR. The Committee shall determine the form of
payment.
7.5 Non-Transferability and Termination. Stock
Appreciation Rights shall be Transferable only to the extent
provided in Section X of this Plan and shall terminate in
accordance with Section XI of this Plan.
SECTION VIII.
RESTRICTED AND UNRESTRICTED STOCK AWARDS
8.1 Grants of Restricted Stock Awards. The Committee may,
in its discretion, grant one or more Restricted Stock Awards to
any Eligible Employee or Advisor. Each Restricted Stock Award
shall specify the number of Shares to be issued to the
Participant, the date of such issuance, the price, if any, to be
paid for such Shares by the Participant and the restrictions
imposed on such Shares. The Committee may grant Awards of
Restricted Stock subject to the attainment of specified
performance goals, continued employment or such other limitations
or restrictions as the Committee may determine.
8.2 Terms and Conditions of Restricted Awards. Restricted
Stock Awards shall be subject to the following provisions:
(a) Issuance of Shares. Shares of Restricted Stock may be
issued immediately upon grant or upon vesting as determined by
the Committee.
(b) Stock Powers and Custody. If shares of Restricted
Stock are issued immediately upon grant, the Committee may
require the Participant to deliver a duly signed stock power,
endorsed in blank, relating to the Restricted Stock covered by
such an Award. The Committee may also require that the stock
certificates evidencing such shares be held in custody by the
Company until the restrictions on them shall have lapsed.
(c) Shareholder Rights. Unless otherwise determined by the
Committee at the time of grant, Participants receiving Restricted
Stock Awards shall not be entitled to dividend or voting rights
for the Restricted Shares until they are fully vested.
8.3 Unrestricted Stock Awards. The Committee may make
awards of unrestricted Common Stock to key Eligible Employees and
Advisors in recognition of outstanding achievements or
contributions by such employees and advisors. Unrestricted
Shares issued on a bonus basis under this Subsection 8.3 may be
issued for no cash consideration. Each certificate for
unrestricted Common Stock shall be registered in the name of the
Participant and delivered immediately to the Participant.
SECTION IX.
PERFORMANCE AWARDS
9.1 Performance Awards
(a) Grant. The Committee may, in its discretion, grant
Performance Awards to Eligible Employees and Advisors. A
Performance Award shall consist of the right to receive either
(i) Common Stock or cash of an equivalent value, or a combination
of both, at the end of a specified Performance Period (defined
below) or (ii) a fixed dollar amount payable in cash or Shares,
or a combination of both, at the end of a specified Performance
Period. The Committee shall determine the Eligible Employees and
Advisors to whom and the time or times at which Performance
Awards shall be granted, the number of Shares or the amount of
cash to be awarded to any person, the duration of the period (the
"Performance Period") during which, and the conditions under
which, a Participant's Performance Award will vest, and the other
terms and conditions of the Performance Award in addition to
those set forth in Subsection 9.2.
(b) Criteria for Award. The Committee may condition the
grant or vesting of a Performance Award upon the attainment of
specified performance goals; the appreciation in the Fair Market
Value, book value or other measure of value of the Common Stock;
the performance of the Company based on earnings or cash flow; or
such other factors or criteria as the Committee shall determine.
9.2 Terms and Conditions of Performance Awards.
Performance Awards granted pursuant to this Section IX shall be
subject to the following terms and conditions:
(a) Dividends. Unless otherwise determined by the
Committee at the time of the grant of the Award, amounts equal to
any dividends declared during the Performance Period with respect
to any Shares covered by a Performance Award will not be paid to
the Participant.
(b) Payment. Subject to the provisions of the Award
Agreement and this Plan, at the expiration of the Performance
Period, share certificates, cash or both (as the Committee may
determine) shall be delivered to the Participant, or his or her
legal representative or guardian, in a number or an amount equal
to the vested portion of the Performance Award.
(c) Non-Transferability. Performance Awards shall not be
Transferable except in accordance with the provisions of
Section X of this Plan.
(d) Termination of Employment or Advisory Relationship.
Subject to the applicable provisions of the Award Agreement and
this Plan, upon termination of a Participant's employment or
advisory relationship with the Company or a Subsidiary for any
reason during the Performance Period for a given Award, the
Performance Award in question will vest or be forfeited in
accordance with the terms and conditions established by the
Committee.
SECTION X.
NON-TRANSFERABILITY OF AWARDS
No Award or benefit payable under this Plan shall be
Transferable by the Participant during his or her lifetime and
may not be assigned, exchanged, pledged, transferred or otherwise
encumbered or disposed of except by a domestic relations order
pursuant to Section 414(p)(1)(B) of the Code, or by will or the
laws of descent and distribution. Awards shall be exercisable
during a Participant's lifetime only by the Participant or by the
Participant's guardian or legal representative.
SECTION XI.
TERMINATION OF AWARDS
11.1 All Awards issued under this Plan shall
terminate as follows:
(a) Termination at Expiration of Term. During any period
of continuous employment or business relationship with the
Company or a Subsidiary, an Award will be terminated only if it
is fully exercised or if it has expired by its terms. For
purposes of this Plan, any leave of absence approved by the
Company shall not be deemed to be a termination of employment.
(b) Termination by Death, Disability or Retirement. If a
Participant's employment by the Company or a Subsidiary
terminates by reason of death, Disability or Retirement, or in
the case of an advisory relationship, if such business
relationship terminates by reason of death or Disability, any
Award held by such Participant, unless otherwise determined by
the Committee at grant, shall be fully vested and may thereafter
be exercised by the Participant or by the Participant's
beneficiary or legal representative, for a period of one year (or
such longer period as the Committee may specify at or after
grant) from the date of such death, Disability or Retirement or
until the expiration of the stated term of such Award, whichever
period is shorter.
(c) Other Termination. Unless otherwise determined by the
Committee at or after grant, if a Participant's employment by, or
business relationship with, the Company or a Subsidiary
terminates for any reason other than death, Disability or
Retirement, the Award will terminate on the earlier to occur of
the stated expiration date or 90 calendar days after termination
of the employment or business relationship. If a Participant
dies during the 90 day period following the termination of the
employment or business relationship, any unexercised Award held
by the Participant shall be exercisable, to the full extent that
such Award was exercisable at the time of death, for a period of
90 calendar days from the date of death or until the expiration
of the stated term of the Award, whichever occurs first.
11.2 Acceleration of Vesting and Extension of
Exercise Period Upon Termination.
(a) Notwithstanding anything contained in this Section XI,
upon the termination of employment of a Participant who is not an
Officer or Director of the Company, for reasons other than death,
Disability or Retirement, either the Committee or the President
of the Company may, in its or his sole discretion, accelerate the
vesting of all or part of any Awards held by such terminated
Participant so that such Awards are fully or partially
exercisable as of the date of termination, and may also extend
the permitted exercise period of such Awards for up to five years
from the date of termination, but in no event longer than the
original expiration date of such Award. In the case of a
terminated Participant who is an Officer, such discretion shall
be exercised, if at all, only by the Committee.
(b) Except as provided in Subsection 4.2, in no event will
the continuation of the exercisability of an Award beyond the
date of termination of employment allow the Eligible Employee, or
his or her beneficiaries or heirs, to accrue additional rights
under the Plan, or to purchase more Shares through the exercise
of an Award than could have been purchased on the date that
employment was terminated.
SECTION XII.
TERMINATION OR AMENDMENT OF THIS PLAN
12.1 Termination or Amendment. The Board may at any
time, amend, in whole or in part, any or all of the provisions of
this Plan, or suspend or terminate it entirely; provided,
however, that, unless otherwise required by law, the rights of a
Participant with respect to any Awards granted prior to such
amendment, suspension or termination may not be impaired without
the consent of such Participant; and, provided further, no
amendment may be made without shareholder approval which would
increase the number of shares available under this Plan.
SECTION XIII.
GENERAL PROVISIONS
13.1 No Right to Continued Employment or Business
Relationship. Neither the establishment of the Plan nor the
granting of any Award hereunder shall confer upon any Participant
any right to continue in the employ of, or in any business
relationship with, the Company or any Subsidiary, or interfere in
any way with the right of the Company or any Subsidiary to
terminate such employment or business relationship at any time.
13.2 Other Plans. In no event shall the value of, or
income arising from, any Awards issued under this Plan be treated
as compensation for purposes of any pension, profit sharing, life
insurance, disability or other retirement or welfare benefit plan
now maintained or hereafter adopted by the Company or any
Subsidiary, unless such plan specifically provides to the
contrary.
13.3 Withholding of Taxes. The Company shall have
the right to deduct from any payment to be made pursuant to this
Plan, or to otherwise require, prior to the issuance or delivery
of any Shares or the payment of any cash to a Participant,
payment by the Participant of any Federal, state, local or
foreign taxes required by law to be withheld. The Committee may
permit any such withholding obligation to be satisfied by
reducing the number of Shares otherwise deliverable or by
accepting the delivery of previously owned Shares. Any fraction
of a Share required to satisfy such tax obligations shall be
disregarded and the amount due shall be paid instead in cash by
the Participant.
13.4 Reimbursement of Taxes. The Committee may
provide in its discretion that the Company may reimburse a
Participant for federal, state, local and foreign tax obligations
incurred as a result of the grant or exercise of an Award issued
under this Plan.
13.5 Governing Law. This Plan and actions taken in
connection with it shall be governed by the laws of the State of
New Jersey, without regard to the principles of conflict of laws.
13.6 Liability. No employee of the Company nor
member of the Committee or the Board shall be liable for any
action or determination taken or made in good faith with respect
to the Plan or any Award granted hereunder and, to the fullest
extent permitted by law, all employees and members shall be
indemnified by the Company for any liability and expenses which
may occur through any claim or cause of action arising under or
in connection with this Plan or any Awards granted under this
Plan.
EXHIBIT 10h
DEFERRED COMPENSATION PLAN
FOR
BOARD OF DIRECTORS
OF
CHIQUITA BRANDS INTERNATIONAL, INC.
Effective as of January 1, 1997
<PAGE>
Deferred Compensation Plan
for
Board of Directors
of
Chiquita Brands International, Inc.
TABLE OF CONTENTS
Section Page
1. Establishment and Purpose . . . . . . . . . . . . . 1
2. Plan Objectives . . . . . . . . . . . . . . . . . . 1
3. Definitions . . . . . . . . . . . . . . . . . . . . 1
4. Eligibility . . . . . . . . . . . . . . . . . . . . 2
5. Participation . . . . . . . . . . . . . . . . . . . 2
6. Deferred Compensation Account . . . . . . . . . . . 2
7. Deferral . . . . . . . . . . . . . . . . . . . . . 2
8. Deferral Term . . . . . . . . . . . . . . . . . . . 3
9. Interest Indices . . . . . . . . . . . . . . . . . 3
10. Payment Form and Method . . . . . . . . . . . . . . 3
11. Account Statement . . . . . . . . . . . . . . . . . 3
12. Account Distribution . . . . . . . . . . . . . . . 4
13. Hardship Distributions . . . . . . . . . . . . . . 4
14. Beneficiary Designation . . . . . . . . . . . . . . 4
15. General Provisions . . . . . . . . . . . . . . . . 4
<PAGE>
Deferred Compensation Plan
for
Board of Directors
of
Chiquita Brands International, Inc.
1. Establishment and Purpose
1.1 Effective January 1, 1997, Chiquita Brands
International, Inc., a New Jersey corporation, adopts
this Chiquita Brands International, Inc. Deferred
Compensation Plan to enable eligible members of the
Board of Directors of the Company to elect deferral of
payment of their Compensation.
2. Plan Objectives
2.1 The purpose of this Plan is to allow participants to
achieve the following objectives:
(a) Accumulate income for retirement; and
(b) Provide opportunity for financial growth.
3. Definitions
When used in this Plan, the following words and phrases shall
have the following meanings:
3.1 Account means the record maintained for each Participant
to which all deferrals, investment indices and
distributions are credited and debited for each Plan
Year.
3.2 Administrator means the Employee Benefits Committee
appointed by the Company's Board of Directors.
3.3 Company means Chiquita Brands International, Inc.
3.4 Compensation means fees earned for services rendered as
a member of the Board of Directors during a given Plan
Year.
3.5 Director means a member of the Board of Directors of the
Company.
3.6 Disabled and Disability mean that a Participant, as a
result of accident or illness, is physically, mentally
or emotionally unable to perform the duties as a member
of the Board of Directors, and in the Administrator's
<PAGE>
opinion is likely to remain so Disabled for at least one
year. The Administrator shall make all determinations
as to whether a Director is Disabled and shall use such
evidence, including independent medical reports and
data, as the Administrator deems necessary and
desirable.
3.7 Expiration Date means, with respect to each annual
deferral under Section 7.1, the earlier of (i) the last
day of the year to which a Participant elects to defer
Compensation pursuant to Section 8.1, or (ii) the date
on which a Director dies, becomes Disabled or retires or
is otherwise no longer a member of the Board of
Directors of the Company.
3.8 Participant means a member of the Board of Directors who
is entitled to participate and participates in the Plan
for a designated Plan Year.
3.9 Plan means this Deferred Compensation Plan for the Board
of Directors of Chiquita Brands International, Inc.
3.10 Plan Year means the calendar year, January 1 through
December 31.
4. Eligibility
4.1 Members of the Board of Directors of the Company who are
not also employees of the Company are eligible to
participate in the Plan.
5. Participation
5.1 A Participant elects to participate in the Plan by
delivering to the Administrator, before the beginning of
each Plan Year, a properly completed enrollment form.
5.2 The enrollment form shall conform to the terms and
conditions of the Plan.
6. Deferred Compensation Account
6.1 Each Plan Year a deferred compensation Account will be
established for each Participant.
6.2 All Compensation deferred by the Participant, all
increases in the value of the Account resulting from the
application of the appropriate Interest Index, all other
amounts credited to the Account pursuant to this Plan
and all distributions from the Account to the
<PAGE>
Participant or the Participant's beneficiary(ies) or
estate shall be reflected in the Account.
6.3 All Accounts shall be maintained by the Administrator.
7. Deferral
7.1 At the time of enrollment, a Participant must elect to
defer at least 10% of such Participant's Compensation
for services rendered in the next Plan Year.
7.2 Compensation deferred under this Plan shall be credited
to the Participant's Account on the date such amounts
would have otherwise been paid.
7.3 The deferral sources and amounts elected for a given
Plan Year are irrevocable.
8. Deferral Term
8.1 At the time a Participant elects to defer Compensation,
the Participant must also elect the term for which such
deferral is made (the "Deferral Term"). The Deferral
Term must be either a fixed number of years or the date
on which the Participant dies, becomes Disabled, or
retires or is otherwise no longer a member of the Board
of Directors of the Company.
8.2 A Deferral Term that is for a fixed number of years must
be in full year increments.
8.3 A Deferral Term, once elected, is irrevocable.
8.4 If a Participant should die, or become Disabled, or if
the Participant retires or otherwise is no longer a
member of the Board of Directors of the Company before
the Expiration Date of a Deferral Term that is for a
fixed number of years, the Participant's Account will be
distributed as if the Participant had elected the death,
Disability or retirement Deferral Term.
9. Interest Indices
9.1 Amounts deferred under this Plan shall accrue interest
from the date which is the midpoint of the calendar
quarter in which the deferrals are credited to the
Participant's Account until the Expiration Date. Such
interest shall be credited to the Account quarterly, at
the interest rate specified in the Interest Rate
<PAGE>
Schedule for the respective Plan Year and Deferral Term
elected by the Participant.
10. Payment Form and Method
10.1 All payments from the Plan shall be made only in a lump-
sum in the form of cash.
11. Account Statement
11.1 Account statements will be sent periodically (at least
annually) to each Participant until the Participant's
Account has been completely distributed.
11.2 The appropriate Interest Rate Schedules will be used for
crediting the deferrals accrued pursuant to Section 9.
12. Account Distribution
12.1 Payment will be made on the first day of the month which
first follows a 30-day processing period beginning on
the Expiration Date. No interest or credits will accrue
during the period.
13. Hardship Distributions
13.1 Distribution of payments from a Participant's Account
prior to the Expiration Date shall be made only if the
Administrator, after consideration of a written
application by the Participant, determines that the
Participant has sustained financial hardship.
13.2 Any hardship distribution shall be withdrawn from the
Participant's Account starting with the most current
Plan Year, continuing in reverse chronological order.
14. Beneficiary Designation
14.1 A Participant shall have the right to designate one or
more beneficiaries and to change any beneficiary
previously designated.
14.2 A Participant shall submit his or her beneficiary
designation in writing using the beneficiary designation
form. The Participant shall deliver the completed form
to the Administrator.
<PAGE>
14.3 The most recently dated and filed beneficiary
designation shall cancel all prior designations.
14.4 In the event of the Participant's death before payment
from the Account, the amount otherwise payable to the
Participant shall be paid to the designated
beneficiary(ies) or, if no beneficiary, to the estate,
according to the provisions of Section 12, as
applicable.
15. General Provisions
15.1 Participant's Rights Unsecured. The right of any
Participant to receive payments under the provisions of
this Plan shall be an unsecured claim against the
general assets of the Company. It is not required or
intended that the amounts credited to the Participant's
Account be segregated on the books of the Company or be
held by the Company in trust for a Participant and a
Participant shall not have any claim to or against a
specific asset or assets of the Company. All credits to
an Account are for bookkeeping purposes only.
15.2 Non-assignability. The right to receive payments
shall not be transferrable or assignable by a
Participant. Any attempted assignment or alienation of
payments shall be void and of no force or effect.
15.3 Administration. The Administrator shall have the
authority to adopt rules, regulations and procedures for
carrying out this Plan, and shall interpret, construe
and implement the provisions of the Plan according to
the laws of the State of Ohio. Any such interpretation
by the Administrator shall be final, binding and
conclusive.
15.4 Amendment and Termination. The Company expressly
reserves the sole and exclusive right to amend, modify,
or terminate this Plan at any time by action of the
Board of Directors of the Company or, to the extent it
has delegated such authority, by action of the Employee
Benefits Committee. Any amendment, modification, or
termination shall be in writing authorized by the Board
of Directors or the Employee Benefits Committee, as the
case may be, and signed by an officer of the Company.
However, no amendment, modification, or termination of
this Plan shall adversely affect any Participant's
accrued rights arising from any election to defer
Compensation made prior to such amendment, modification
or termination of the Plan.
<PAGE>
15.5 Construction. The singular shall also include the
plural where appropriate.
15.6 Contract Rights. This Plan does not give any
Participant the right to be retained as a member of the
Board of Directors of the Company.
<PAGE>
<TABLE>
<CAPTION>
CHIQUITA BRANDS INTERNATIONAL, INC. EXHIBIT 11
COMPUTATION OF EARNINGS PER COMMON SHARE
(In thousands, except per share amounts)
Year Ended December 31,
1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
A. Primary earnings (loss)
per common share:
- --------------------------
Income (loss) from
continuing operations $(27,728) $27,969 $(84,311) $(51,081) $(221,708)
Dividends on preferred
stock (11,955) (8,266) (7,232) -- --
--------- ---------- ---------- --------- ----------
Income (loss) from
continuing operations
attributable to
common shares (39,683) 19,703 (91,543) (51,081) (221,708)
Discontinued operations -- (11,197) 35,611 -- (62,332)
--------- ---------- ---------- --------- ----------
Income (loss) attributable
to common shares before
extraordinary item (39,683) 8,506 (55,932) (51,081) (284,040)
Extraordinary loss from
debt refinancing (22,838) (7,560) (22,840) -- --
--------- ---------- ---------- --------- ----------
Net income (loss)
attributable to
common shares $(62,521) $946 $(78,772) $(51,081) $(284,040)
========== ========== ========== ========== ==========
Shares used in
calculation of per
share data:
Weighted average common
and equivalent Series C
preference shares
outstanding 55,450 53,647 52,033 51,427 51,804
Less restricted common
shares (283) (387) -- -- --
Dilutive effect of
assumed exercise of
stock options and
warrants -- 410 -- -- --
--------- ---------- ---------- --------- ----------
55,167 53,670 52,033 51,427 51,804
========== ========== ========== ========== ==========
Primary earnings (loss)
per common share:
- Continuing operations $(.72) $.37 $(1.76) $(.99) $(4.28)
- Discontinued operations -- (.21) .69 -- (1.20)
- Extraordinary item (.41) (.14) (.44) -- --
<PAGE>
--------- ---------- ---------- --------- ----------
- Net income (loss) $(1.13) $.02 $(1.51) $(.99) $(5.48)
========== ========== ========== ========== ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 11 (cont.)
CHIQUITA BRANDS INTERNATIONAL, INC.
COMPUTATION OF EARNINGS PER COMMON SHARE
(In thousands, except per share amounts)
Year Ended December 31,
1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
B. Fully diluted earnings
(loss) per common share:
- ----------------------------
Income (loss) from
continuing operations $(27,728) $27,969 $(84,311) $(51,081) $(221,708)
Dividends on preferred
stock (11,955) (8,266) (7,232) -- --
--------- ---------- ---------- --------- ----------
Income (loss) from
continuing operations
attributable to common
shares (39,683) 19,703 (91,543) (51,081) (221,708)
Discontinued operations -- (11,197) 35,611 -- (62,332)
--------- ---------- ---------- --------- ----------
Income (loss) attributable
to common shares before
extraordinary item (39,683) 8,506 (55,932) (51,081) (284,040)
Extraordinary loss from
debt refinancing (22,838) (7,560) (22,840) -- --
--------- ---------- ---------- --------- ----------
Net income (loss)
attributable to common
shares $(62,521) $946 $(78,772) $(51,081) $(284,040)
========== ========== ========== ========== ==========
Shares used in calculation
of per share data:
Weighted average common
and equivalent Series
C preference shares
outstanding 55,450 53,647 52,033 51,427 51,804
Less restricted common
shares (283) (355) -- -- --
Dilutive effect of
assumed exercise of
options and warrants -- 469 -- -- --
--------- ---------- ---------- --------- ----------
55,167 53,761 52,033 51,427 51,804
========== ========== ========== ========== ==========
Fully diluted earnings
(loss) per common share:
- Continuing operations $(.72) $.37 $(1.76) $(.99) $(4.28)
- Discontinued operations -- (.21) .69 -- (1.20)
- Extraordinary item (.41) (.14) (.44) -- --
<PAGE>
--------- ---------- ---------- --------- ----------
- Net income (loss) $(1.13) $.02 $(1.51) $(.99) $(5.48)
========== ========== ========== ========== ==========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 12
CHIQUITA BRANDS INTERNATIONAL, INC.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
(In thousands, except ratio amounts)
Year Ended December 31,
1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
Earnings
Income (loss) from
continuing operations
before income taxes $(16,728) $41,869 $(70,811 ) $(39,081) $(216,708)
Interest expense 130,232 163,513 167,464 169,789 155,036
Portion of rentals
representing interest cost 32,268 43,464 45,097 58,499 85,810
Amortization of capitalized
interest 3,930 4,158 4,043 3,745 3,010
Undistributed share of income
of less-than-fifty percent
owned investees (274) (2,963) (4,110 ) (1,429) (3,588)
--------- --------- --------- --------- ---------
$149,428 $250,041 $141,683 $191,523 $23,560
========= ========= ========= ========= =========
Fixed Charges:
Interest expense $130,232 $163,513 $167,464 $169,789 $155,036
Capitalized interest 1,000 700 3,900 8,000 21,400
Portion of rentals
representing interest cost 32,268 43,464 45,097 58,499 85,810
--------- --------- --------- --------- ---------
$163,500 $207,677 $216,461 $236,288 $262,246
========= ========= ========= ========= =========
Ratio of earnings to
fixed charges (a) 1.20 (a) (a) (a)
========
Earnings $149,428 $250,041 $141,683 $191,523 $23,560
========= ========= ========= ========= =========
Fixed charges $163,500 $207,677 $216,461 $236,288 $262,246
Preferred stock dividends 11,405 8,266 10,961 4,278 778
--------- --------- --------- --------- ---------
$174,905 $215,943 $227,422 $240,566 $263,024
========= ========= ========= ========= =========
Ratio of earnings to
combined fixed charges
and preferred stock
dividends (b) 1.16 (b) (b) (b)
========
<PAGE>
- ------------------------
(a) Fixed charges exceeded earnings by $14,072 in 1996, $74,778 in 1994, $44,765
in 1993 and $238,686 in 1992.
(b) Combined fixed charges and preferred stock dividends exceeded earnings by
$25,477 in 1996, $85,739 in 1994, $49,043 in 1993 and $239,464 in 1992.
</TABLE>
<PAGE>
EXHIBIT 13
Report of Ernst & Young LLP, Independent Auditors
The Board of Directors and Shareholders of
Chiquita Brands International, Inc.
We have audited the accompanying consolidated balance sheets
of Chiquita Brands International, Inc. and subsidiary companies
as of December 31, 1996 and 1995, and the related consolidated
statements of income, shareholders' equity and cash flow for each
of the three years in the period ended December 31, 1996. These
financial statements, appearing on pages 31 through 50, are the
responsibility of the Company's management. Our responsibility
is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally
accepted auditing standards. Those standards require that we
plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as
well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of Chiquita Brands International, Inc. and
subsidiary companies at December 31, 1996 and 1995 and the
consolidated results of their operations and their cash flow for
each of the three years in the period ended December 31, 1996 in
conformity with generally accepted accounting principles.
/s/Ernst & Young LLP
Cincinnati, Ohio
February 19, 1997
-25-
<PAGE>
<TABLE>
<CAPTION>
SELECTED FINANCIAL DATA
Chiquita Brands International, Inc. and Subsidiary Companies
- --------------------------------------------------------------------------------------------------------
(In thousands, except
per share amounts) 1996 1995 1994 1993 1992
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
FINANCIAL CONDITION
Working capital $379,977 $366,893 $230,434 $266,793 $482,338
Capital expenditures 74,641 64,640 136,981 196,554 472,273
Total assets 2,466,934 2,623,533 2,774,239 2,722,824 2,873,699
Capitalization
Short-term debt 135,089 172,333 221,051 192,207 229,286
Long-term debt 1,079,251 1,242,046 1,364,836 1,438,378 1,411,319
Shareholders' equity 724,253 672,207 644,809 584,069 667,962
==========================================================================================================
OPERATIONS
Net sales $2,435,248 $2,565,992 $2,505,826 $2,532,925 $2,723,250
Operating income (loss)* 84,336 175,770 71,185 103,848 (96,588)
Income (loss) from
continuing operations (27,728) 27,969 (84,311) (51,081) (221,708)
Discontinued operations -- (11,197) 35,611 -- (62,332)
Extraordinary loss from
debt refinancing (22,838) (7,560) (22,840) -- --
Net income (loss)* (50,566) 9,212 (71,540) (51,081) (284,040)
==========================================================================================================
SHARE DATA
Shares used to calculate earnings
(loss) per common share 55,167 53,761 52,033 51,427 51,804
Primary and fully diluted
earnings (loss) per common share:
- Continuing operations $(.72) $.37 $(1.76) $(.99) $(4.28)
- Discontinued operations -- (.21) .69 -- (1.20)
- Extraordinary item (.41) (.14) (.44) -- --
- Net income (loss) (1.13) .02 (1.51) (.99) (5.48)
Dividends per common share .20 .20 .20 .44 .66
Market price per common share:
High 16.38 18.00 19.25 17.50 40.13
Low 11.50 12.25 11.25 10.13 15.75
End of year 12.75 13.75 13.63 11.50 17.25
==============================================================================================================
*See "Management's Analysis of Operations and Financial Condition" and Notes to Consolidated Financial
Statements for a discussion of significant items included in operating income in 1996, 1995 and 1994.
</TABLE>
-26-
<PAGE>
Management's Analysis of Operations and Financial Condition
Chiquita Brands International, Inc. and Subsidiary Companies
Operations
- ----------------------------
Sales of approximately $2.4 billion in 1996 were $131 million
lower than the prior year primarily as a result of the December
1995 sale of the Costa Rican operations of Chiquita's Numar
edible oils group ("Numar Costa Rica").
Operating income for the year was $84 million compared to $176
million in 1995 and $71 million in 1994. Operating income
includes:
- in 1996, write-downs and costs of $70 million resulting from
industry-wide flooding in Costa Rica, Guatemala and
Honduras; certain strategic undertakings designed to achieve
further long-term reductions in the delivered product cost
of Chiquita bananas through the modification of distribution
logistics and the wind-down of particular production
facilities; and certain claims relating to prior European
Union ("EU") quota restructuring actions.
- in 1995, a net gain of $19 million primarily resulting from
divestitures of operations and other actions taken as part
of the Company's ongoing program to improve shareholder
value. These divestitures and other actions included sales
of older ships, the sale of Numar Costa Rica, the shut-down
of a portion of the Company's juice operations and the
reconfiguration of banana production assets.
- in 1994, charges and losses of $67 million resulting
primarily from farm closings and write-downs of banana
cultivations following a strike in Honduras, and the
substantial reduction of the Company's Japanese "green"
banana trading operations.
Excluding the effect of the items described above, operating
income from remaining core operations improved in 1996 primarily
as a result of lower delivered product costs for bananas. This
improvement in core operating results substantially offset the
elimination of earnings from the divested Numar Costa Rica
operations. The benefit of increased North American banana
volume was offset by lower European volume and a lower average
worldwide price.
In early 1997, average prices and costs for bananas have
exceeded early 1996 levels, primarily as a result of supply
reductions caused by late 1996 industry-wide flooding in
Guatemala and Honduras.
Operating income for 1995 increased over 1994 primarily due to
the items described above as well as higher banana prices outside
the EU, the favorable effect of changes in foreign exchange rates
on European sales and earnings improvements from other food
products. These favorable effects were partially offset by
higher banana operating costs resulting from the implementation
of the banana Framework Agreement between the EU, Colombia and
Costa Rica, higher paper costs, and lower EU banana prices late
in 1995. These lower EU prices were brought about by the over
issuance of special import licenses to European-based banana
<PAGE>
companies as relief for hurricane damage sustained in the
Caribbean.
Net interest expense decreased by $33 million in 1996 and $9
million in 1995 primarily as a result of refinancing and debt
reduction activities. Net income (loss) includes extraordinary
charges of $23 million in 1996, $8 million in 1995 and $23
million in 1994 resulting from these activities.
Income taxes consist principally of foreign income taxes
currently paid or payable. No tax benefit was recorded for
unrealized U.S. net operating loss carryforwards or other
available tax credits.
-27-
International Operations
- ----------------------------
Chiquita's products are distributed in more than 40 countries.
Its international sales are made primarily in U.S. dollars and
major European currencies. The Company manages currency exchange
risks from sales originating in currencies other than the dollar
generally by exchanging local currencies for dollars immediately
upon receipt, and by engaging from time to time in various
hedging activities. Debt denominated in currencies of countries
other than the U.S. serves as a hedge of the net investments in
those countries. In addition, various hedging activities are
used to offset currency exchange movements on firm commitments
and other transactions where the potential for loss exists. At
December 31, 1996, the Company had foreign currency option
contracts to ensure conversion of approximately $350 million of
foreign sales in 1997 at a rate not higher than 1.51 Deutsche
marks per U.S. dollar or lower than 1.40 Deutsche marks per U.S.
dollar. (See Note 7 of the Consolidated Financial Statements for
additional discussion of the Company's hedging activities.)
On July 1, 1993, the EU implemented a new quota effectively
restricting the volume of Latin American bananas imported into
the EU, which 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
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 entered those markets.
In two separate rulings, General Agreement on Tariffs and
Trade ("GATT") panels found the EU 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
<PAGE>
EU firms exempt. Costa Rica and Colombia implemented this
agreement in 1995, significantly increasing the Company's cost to
export bananas from these countries.
In July 1996, the EU adopted an interim measure that increased
its banana quota to adjust for the entry of Sweden, Finland and
Austria into the EU and made its preferential licensing system
applicable to the increase. Prior to their entry into the EU,
these countries had unregulated banana markets in which the
Company supplied a significant portion of the bananas.
Implementation of the quota and licensing regime continues to
evolve, and there can be no assurance that the EU banana
regulation will not change further.
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
-28-
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 World
Trade Organization ("WTO"). In January 1996, the USTR announced
that it had found the banana Framework Agreement export policies
of Costa Rica and Colombia to be unfair. In February 1996,
Ecuador, the world's largest exporter of bananas, joined the
United States, Guatemala, Honduras and Mexico in challenging the
EU regime under the WTO.
During the fourth quarter of 1996, a WTO arbitration panel
heard the case against the EU quota and licensing regime and
Framework Agreement, and the panel is expected to issue its
ruling in the second quarter of 1997. Following any ruling by
the WTO panel, certain appeal procedures are available that could
extend by a few months the time before the ruling is final.
Thereafter, the parties have a "reasonable" period of time (not
to exceed 15 months) to implement the ruling.
Both the WTO and Section 301 authorize retaliatory measures,
such as tariffs or withdrawal of trade concessions, against
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 affected countries
or the impact on the EU quota regime or the Framework Agreement.
<PAGE>
Discontinued Meat Operations
- ------------------------------
As described in Note 2 to the Consolidated Financial
Statements, the Company completed the sale of its meat operations
in December 1995 and has accounted for it as a discontinued
operation.
Financial Condition
- ------------------------------
Cash flow from operations was $123 million in 1996, $90
million in 1995 and $73 million in 1994. At December 31, 1996,
Chiquita had $286 million of cash and equivalents.
Capital expenditures were $75 million in 1996, $65 million in
1995 and $137 million in 1994. The 1996 capital expenditures
include $15 million to rehabilitate banana farms damaged by
flooding; the 1994 total includes $72 million for the final stage
of the Company's multi-year investment spending program for
transportation system improvements and fresh fruit production
capacity. As a result of this program, the Company's free cash
flow (the excess of earnings before depreciation and amortization
over capital expenditures) is greater than its results of
operations.
-29-
In accordance with its strategic program to improve
shareholder value by strengthening its balance sheet, enhancing
short-term liquidity, reducing overall borrowing costs and
positioning the Company for future cost reduction and
deleveraging opportunities, Chiquita has achieved the following
over the past three years:
- Raised a total of $565 million from public offerings of
preferred shares and senior notes and used the proceeds to
prepay subordinated public debt, which carried effective
interest rates of 11.5% to 13.7%, and high cost subsidiary
debt.
- Entered into a $125 million senior unsecured revolving
credit facility in December 1996. This facility, which is
available through January 2001, provides flexibility in
funding seasonal working capital, allows the Company to
maintain lower cash balances and enhances Chiquita's ability
to further reduce debt and interest costs.
- Sold its specialty meat operations in 1994 for $53 million
in cash, using the proceeds primarily to reduce short-term
debt of the Meat Division. In December 1995, Chiquita sold
itsremaining meat operations to Smithfield Foods, Inc. for
approximately $60 million, consisting of $25 million in cash
and approximately 1.1 million shares of Smithfield common
stock which were sold for cash in 1996.
- Sold Numar Costa Rica in December 1995 for approximately $50
million in cash and $50 million in secured notes receivable.
The notes were converted to cash in 1996.
- Sold older ships in 1995 for $90 million in cash and used
approximately $50 million of the proceeds to prepay the
<PAGE>
related debt. In addition, the Company sold and leased back
shipping containers in 1995 and 1994 generating proceeds of
$72 million and retiring approximately $47 million of
related 9.8% debt.
- Replaced $153 million of ship loans in 1995 with loans
having longer maturities totaling $187 million and
negotiated the extension of the maturities on another $23
million ship loan.
- Used $36 million of restricted cash to prepay related
subsidiary debt in December 1995 and, in 1996, obtained the
right to use $40 million of previously restricted cash for
general corporate purposes.
-30-
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF INCOME
Chiquita Brands International, Inc. and Subsidiary Companies
- ---------------------------------------------------------------------------------------------------------
(In thousands, except per share amounts) 1996 1995 1994
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net sales $2,435,248 $2,565,992 $2,505,826
- ---------------------------------------------------------------------------------------------------------
Operating expenses
Cost of sales 1,947,888 1,958,063 1,996,179
Selling, general and administrative expenses 313,490 333,537 331,498
Depreciation 89,534 98,622 106,964
- ---------------------------------------------------------------------------------------------------------
2,350,912 2,390,222 2,434,641
- ---------------------------------------------------------------------------------------------------------
Operating income 84,336 175,770 71,185
Interest income 28,276 28,157 22,902
Interest expense (130,232) (163,513) (167,464)
Other income, net 892 1,455 2,566
- ---------------------------------------------------------------------------------------------------------
Income (loss) from continuing operations
before income taxes (16,728) 41,869 (70,811)
Income taxes (11,000) (13,900) (13,500)
- ---------------------------------------------------------------------------------------------------------
Income (loss) from continuing operations (27,728) 27,969 (84,311)
Discontinued operations -- (11,197) 35,611
- ---------------------------------------------------------------------------------------------------------
Income (loss) before extraordinary item (27,728) 16,772 (48,700)
Extraordinary loss from debt refinancing (22,838) (7,560) (22,840)
- ---------------------------------------------------------------------------------------------------------
Net income (loss) $(50,566) $9,212 $(71,540)
Less dividends on Series A and B preferred stock (11,955) (8,266) (7,232)
- ---------------------------------------------------------------------------------------------------------
Net income (loss) attributable to common shares $(62,521) $946 $(78,772)
Per common share - primary and fully diluted
- Continuing operations $(.72) $.37 $(1.76)
- Discontinued operations -- (.21) .69
- Extraordinary items (.41) (.14) (.44)
- ---------------------------------------------------------------------------------------------------------
- Net income (loss) $(1.13) $.02 $(1.51)
- ---------------------------------------------------------------------------------------------------------
Shares used to calculate
earnings (loss) per common share 55,167 53,761 52,033
=========================================================================================================
See Notes to Consolidated Financial Statements.
</TABLE>
-31-
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED BALANCE SHEET
Chiquita Brands International, Inc. and Subsidiary Companies
- --------------------------------------------------------------------------------------------------------
December 31,
(In thousands) 1996 1995
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current assets
Cash and equivalents $285,558 $236,675
Marketable securities -- 34,743
Trade receivables, less allowances of $9,832
and $11,310, respectively 162,566 184,364
Other receivables, net 91,126 89,848
Inventories 275,177 293,379
Other current assets 29,884 37,827
- --------------------------------------------------------------------------------------------------------
Total current assets 844,311 876,836
Restricted cash -- 39,520
Property, plant and equipment, net 1,139,677 1,182,144
Investments and other assets 319,149 356,805
Intangibles, net 163,797 168,228
- --------------------------------------------------------------------------------------------------------
Total assets $2,466,934 $2,623,533
========================================================================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Notes and loans payable $78,107 $119,456
Long-term debt due within one year 56,982 52,877
Accounts payable 193,875 206,717
Accrued liabilities 135,370 130,893
- --------------------------------------------------------------------------------------------------------
Total current liabilities 464,334 509,943
Long-term debt of parent company 704,763 840,925
Long-term debt of subsidiaries 374,488 401,121
Accrued pension and other employee benefits 83,797 85,514
Other liabilities 115,299 113,823
- --------------------------------------------------------------------------------------------------------
Total liabilities 1,742,681 1,951,326
- --------------------------------------------------------------------------------------------------------
Shareholders' equity
Preferred stock 249,256 138,369
Capital stock, $.33 par value (55,841 and
54,769 shares outstanding, respectively) 18,614 18,256
Capital surplus 594,885 581,019
Accumulated deficit (138,502) (65,437)
- --------------------------------------------------------------------------------------------------------
Total shareholders' equity 724,253 672,207
- --------------------------------------------------------------------------------------------------------
Total liabilities and shareholders' equity $2,466,934 $2,623,533
========================================================================================================
See Notes to Consolidated Financial Statements.
<PAGE>
</TABLE>
-32-
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
Chiquita Brands International, Inc. and Subsidiary Companies
- --------------------------------------------------------------------------------------------------------
Preferred Total
and Retained share-
preference Capital Capital earnings holders'
(In thousands) stock stock surplus (deficit) equity
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1993 $52,270 $16,170 $494,240 $21,389 $584,069
Share issuances
Option exercises -- 40 1,325 -- 1,365
Preferred stock 138,369 -- -- -- 138,369
Other -- 119 6,075 -- 6,194
Minimum pension liability adjustment -- -- -- 2,805 2,805
Net loss -- -- -- (71,540) (71,540)
Dividends
Capital stock -- -- -- (9,757) (9,757)
Preferred and preference stock -- 105 4,160 (10,961) (6,696)
- --------------------------------------------------------------------------------------------------------
Balance at December 31, 1994 $190,639 $16,434 $505,800 $(68,064) $644,809
Share issuances
Option exercises -- 110 3,249 -- 3,359
Exchange of capital shares
for preference stock (52,270) 1,081 51,189 -- --
Other -- 553 17,659 -- 18,212
Minimum pension liability adjustment -- -- -- 15,124 15,124
Net income -- -- -- 9,212 9,212
Dividends
Capital stock -- -- -- (10,236) (10,236)
Preferred and preference stock -- 78 3,122 (11,473) (8,273)
- --------------------------------------------------------------------------------------------------------
Balance at December 31, 1995 $138,369 $18,256 $581,019 $(65,437) $672,207
Share issuances
Option exercises -- 182 5,097 -- 5,279
Preferred stock 110,887 -- -- -- 110,887
Other -- 176 8,769 -- 8,945
Net loss -- -- -- (50,566) (50,566)
Dividends
Capital stock -- -- -- (11,094) (11,094)
Preferred stock -- -- -- (11,405) (11,405)
- --------------------------------------------------------------------------------------------------------
Balance at December 31, 1996 $249,256 $18,614 $594,885 $(138,502) $724,253
========================================================================================================
See Notes to Consolidated Financial Statements.
</TABLE>
-33-
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF CASH FLOW
Chiquita Brands International, Inc. and Subsidiary Companies
- ---------------------------------------------------------------------------------------------------------
(In thousands) 1996 1995 1994
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash provided (used) by:
Operations
Income (loss) from continuing operations $(27,728) $27,969 $(84,311)
Depreciation and amortization 96,455 104,581 113,080
Gain on sales of non-core assets -- (32,100) --
Write-downs of farms and cultivations 28,300 -- 24,600
Changes in current assets and liabilities
Receivables 10,644 16,194 (19,418)
Inventories 12,402 10,054 (14,275)
Accounts payable (12,360) (29,838) 26,083
Other current assets and liabilities 13,928 (3,643) 19,454
Other 1,694 (2,906) 7,600
- ---------------------------------------------------------------------------------------------
Cash flow from operations 123,335 90,311 72,813
- ---------------------------------------------------------------------------------------------
Investing
Capital expenditures (74,641) (64,640) (136,981)
Restricted cash deposits 39,520 35,510 (24,010)
Long-term investments (1,831) (814) (7,717)
Proceeds from sales of non-core assets 81,504 166,835 41,705
Other 10,321 (4,188) (6,518)
- ---------------------------------------------------------------------------------------------
Cash flow from investing 54,873 132,703 (133,521)
- ---------------------------------------------------------------------------------------------
Financing
Debt transactions
Issuances of long-term debt 191,174 214,171 278,388
Repayments of long-term debt (377,349) (361,906) (369,666)
Increase (decrease) in notes and loans payable (36,817) (10,236) 21,911
Stock transactions
Issuances of preferred stock 110,887 -- 138,369
Issuances of capital stock 5,279 3,413 5,006
Dividends (22,499) (18,509) (16,453)
- ---------------------------------------------------------------------------------------------------------
Cash flow from financing (129,325) (173,067) 57,555
- ---------------------------------------------------------------------------------------------------------
Discontinued operations -- 21,205 17,450
- ---------------------------------------------------------------------------------------------------------
Increase in cash and equivalents 48,883 71,152 14,297
Balance at beginning of year 236,675 165,523 151,226
- ---------------------------------------------------------------------------------------------------------
Balance at end of year $285,558 $236,675 $165,523
=========================================================================================================
See Notes to Consolidated Financial Statements.
</TABLE>
-34-
<PAGE>
Notes to Consolidated Financial Statements
Note 1 -- Summary of Significant Accounting Policies
- ----------------------------------------------------
American Financial Group, Inc. and its subsidiaries ("AFG")
owned approximately 43% of the outstanding capital stock of
Chiquita Brands International, Inc. ("Chiquita" or the "Company")
as of December 31, 1996.
Consolidation
The consolidated financial statements include the accounts of
the Company and its majority-owned subsidiaries, other than the
Meat Division which was sold in December 1995 and is accounted
for as a discontinued operation (see Note 2). The accompanying
notes present amounts related only to continuing operations,
unless otherwise indicated. Intercompany balances and
transactions have been eliminated.
Investments representing minority interests are accounted for
by the equity method when Chiquita has the ability to exercise
significant influence in the investees' operations; otherwise,
they are accounted for at cost. At December 31, 1996 and 1995,
investments in food-related companies of $72 million and $79
million, respectively, were accounted for using the equity
method. The excess of the carrying value over Chiquita's share
of the fair value of the investees' net assets at the date of
acquisition is being amortized over periods ranging from 10 to 40
years ($15 million, net of accumulated amortization, at December
31, 1996).
Use of Estimates
The financial statements have been prepared in conformity with
generally accepted accounting principles, which require
management to make estimates and assumptions that affect the
amounts and disclosures reported in the financial statements and
accompanying notes.
Cash and Equivalents
Cash and equivalents include all unrestricted cash and highly
liquid investments with a maturity when purchased of three months
or less.
Marketable Securities
Marketable securities consist of common stock categorized as
available-for-sale (see Note 2).
<PAGE>
Inventories
Inventories are valued at the lower of cost or market. Cost
for growing crops and certain banana inventories is determined
principally on the "last-in, first-out" (LIFO) basis. Cost for
other inventory categories is determined principally on the
"first-in, first-out" (FIFO) or average cost basis.
Property, Plant and Equipment
Property, plant and equipment are stated at cost and, except
for land, are depreciated on a straight-line basis over their
estimated useful lives.
Intangibles
Intangibles consist primarily of goodwill and trademarks which
are amortized over not more than 40 years. Accumulated
amortization was $45 million and $39 million at December 31, 1996
and 1995, respectively. The carrying value of intangibles is
evaluated periodically in relation to the operating performance
and future undiscounted cash flows of the underlying businesses.
Income Taxes
Deferred income taxes are recognized at currently enacted tax
rates for temporary differences between the financial reporting
and income tax bases of assets and liabilities. Deferred taxes
are not provided on the undistributed earnings of subsidiaries
operating outside the U.S. that have been or are intended to be
permanently reinvested.
-35-
Foreign Exchange
Chiquita utilizes the U.S. dollar as its functional currency.
Net foreign exchange gains of $1 million in 1996, $7 million in
1995 and $11 million in 1994 are included in income.
The Company has a long-standing policy of periodically
entering into foreign exchange forward contracts and purchasing
foreign currency options to hedge transactions denominated in
foreign currencies in order to protect the Company from the risk
that the eventual dollar cash flows of the transactions will be
adversely affected by changes in exchange rates. Gains and
losses on forward contracts used to hedge firm commitments and on
purchased options are deferred and included in the measurement of
the underlying transactions. Gains and losses on forward
contracts used to hedge other transactions are included in income
on a current basis.
Earnings Per Share
Primary earnings per share is calculated on the basis of the
weighted average number of shares of common stock outstanding
during the year, reduced by restricted shares related to unearned
compensation and increased by the dilutive effect, if any, of
assumed conversion of stock options. Fully diluted earnings per
share also includes the dilutive effect, if any, of assumed
conversion of preferred stock and convertible debentures.
<PAGE>
Additionally, the equivalent number of Series C preference
shares, which converted to common shares in 1995, is included in
the number of shares used to calculate earnings per share for
1995 and 1994.
Note 2 -- Divestitures
- -----------------------
During 1994, the Company's specialty meat operations were sold
for approximately $53 million in cash. In December 1995, the
remaining Meat Division operations were sold to Smithfield Foods,
Inc. for approximately $60 million, consisting of $25 million in
cash and 1.1 million shares of Smithfield common stock which were
sold for cash in 1996. Smithfield assumed all Meat Division
liabilities, including those related to pension obligations.
Meat Division operating results included in Chiquita's
Consolidated Statement of Income as "Discontinued operations" are
as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
(In thousands) 1995 1994
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
Net sales $1,460,608 $1,455,894
- --------------------------------------------------------------------------------------------------------
Income from operations 3,351 25,455
Gain on sale 576 10,156
Minimum pension liability adjustment (15,124) --
- --------------------------------------------------------------------------------------------------------
Discontinued operations $ (11,197) $35,611
========================================================================================================
</TABLE>
The $15 million minimum pension liability adjustment
recognized in 1995 was previously charged directly to
shareholders' equity.
-36-
During 1995, the Company completed certain other divestitures
and took other actions as part of its ongoing program to improve
shareholder value. These actions, which included sales of older
ships, the sale of the Costa Rican operations of the Numar edible
oils group, the shut-down of a portion of the Company's juice
operations and the reconfiguration of banana production assets,
resulted in a net gain of $19 million. Proceeds consisted of
$167 million in cash and $50 million of secured notes. The notes
were converted to cash in 1996.
<PAGE>
Note 3-- Inventories
- --------------------
Inventories consist of the following:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
December 31,
(In thousands) 1996 1995
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
Bananas and other fresh produce $34,557 $39,920
Other food products 66,929 64,528
Growing crops 114,425 120,178
Materials and supplies 49,699 56,925
Other 9,567 11,828
- --------------------------------------------------------------------------------------------------------
$275,177 $293,379
========================================================================================================
</TABLE>
The carrying value of inventories valued by the LIFO method
was $119 million at December 31, 1996 and $128 million at
December 31, 1995. If inventories were stated at current costs,
total inventory values would have been approximately $33 million
and $28 million higher than reported at December 31, 1996 and
1995, respectively.
Note 4 -- Property, Plant and Equipment
- ------------------------------------------
Property, plant and equipment consist of the following:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
December 31, Weighted Average
(In thousands) 1996 1995 Depreciable Lives
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Land $ 89,780 $ 88,963
Buildings and improvements 204,023 190,980 25 years
Machinery and equipment 398,972 387,376 12 years
Ships and containers 667,530 662,967 19 years
Cultivations 282,528 291,326 29 years
Other 72,700 71,517 20 years
- ---------------------------------------------------------------------------------------------
1,715,533 1,693,129
Accumulated depreciation (575,856 ) (510,985)
- ---------------------------------------------------------------------------------------------
$1,139,677 $1,182,144
=============================================================================================
</TABLE>
-37-
<PAGE>
Note 5 -- Leases
- ----------------
Total rental expense consists of the following:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
(In thousands) 1996 1995 1994
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Gross rentals - ships and containers $60,911 $94,829 $101,207
- other 35,893 35,562 34,084
- ---------------------------------------------------------------------------------------------------------
96,804 130,391 135,291
Less sublease rentals (11,094) (17,310) (4,740)
- ---------------------------------------------------------------------------------------------------------
$85,710 $113,081 $130,551
=========================================================================================================
</TABLE>
Future minimum rental payments required under operating leases
having initial or remaining non-cancelable lease terms in excess
of one year at December 31, 1996 are as follows:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Ships and
(In thousands) containers Other Total
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1997 $22,314 $19,898 $42,212
1998 26,018 17,161 43,179
1999 29,292 14,829 44,121
2000 24,755 10,696 35,451
2001 11,162 3,732 14,894
Later years 38,552 14,652 53,204
=============================================================================================
</TABLE>
Portions of the minimum rental payments for ships constitute
reimbursement for ship operating costs paid by the lessor.
Aggregate future minimum rental payments to be received from non-
cancelable subleases at December 31, 1996, principally for office
space total $20 million.
-38-
<PAGE>
Note 6 -- Debt
- --------------
Long-term debt consists of the following:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
(In thousands) December 31,
Parent Company 1996 1995
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
9 1/8% senior notes, due 2004 $175,000 $175,000
9 5/8% senior notes, due 2004, less unamortized discount
of $2,230 and $2,439 247,770 247,561
10 1/4% senior notes, due 2006, less unamortized discount
of $1,212 148,788 --
7% subordinated debentures, due 2001, convertible
into capital stock at $43 per share 133,205 138,000
10 1/2% subordinated debentures, due 2004, less unamortized
discount of $5,464 -- 60,355
11 1/2% subordinated notes, due 2001 -- 220,000
Other notes and loans 9 28
Less current maturities (9) (19)
- ---------------------------------------------------------------------------------------------------------
Long-term debt of parent company $704,763 $840,925
=========================================================================================================
Subsidiaries
- ---------------------------------------------------------------------------------------------
Loans payable secured by ships and containers, due in
installments from 1997 to 2009, bearing interest at
effective rates averaging 8.6% $269,522 $295,074
Caribbean Basin Projects Financing Authority (CBI Industrial
Revenue Bonds 1993 Series A) loan, due 1998, bearing
interest at a variable rate of 4.5% (4.8% at December 31, 1995) 38,000 38,000
Overseas Private Investment Corporation loan, due in installments
through 2002, bearing interest at a variable rate of 8.3%
(8.5% at December 31, 1995) 13,406 15,621
Loans and notes payable in foreign currencies maturing through 2008,
bearing interest at rates averaging 14% (19% at December 31, 1995) 19,969 34,076
Other loans and notes payable maturing through 2012,
bearing interest at rates averaging 9% 90,564 71,208
Less current maturities (56,973) (52,858)
- ---------------------------------------------------------------------------------------------------------
Long-term debt of subsidiaries $374,488 $401,121
=========================================================================================================
</TABLE>
The 7% subordinated debentures are callable at face value.
The 10 1/4% senior notes are callable beginning in 2001 at a
price of 105 1/8% of face value declining to face value in 2004.
Certain of the covenants under the Company's senior note
agreements contain restrictions on the payment of dividends. At
December 31, 1996, approximately $275 million was available for
dividend payments under the most restrictive covenants.
-39-
<PAGE>
In June 1996, the Company called its $66 million outstanding
10 1/2% subordinated debentures for redemption at par, resulting
in an extraordinary loss of $6 million consisting primarily of a
non-cash write-off of unamortized discount. In July 1996, the
Company issued $150 million principal amount of 10 1/4% senior
notes due 2006. The unsecured notes rank equally with existing
and future senior unsecured indebtedness of the Company. The
proceeds from this issuance, together with a portion of the
proceeds from the sale of Series B preferred stock (see Note 10),
were used to redeem the $220 million outstanding 11 1/2%
subordinated notes at a redemption premium of 5.7% of the
principal amount. This prepayment resulted in an extraordinary
loss of $17 million.
During the second quarter of 1995, the Company replaced $153
million of ship loans with loans having longer maturities
totaling $187 million resulting in an extraordinary loss of $5
million. In December 1995, the Company sold and leased back $40
million of container equipment and used $27 million of the sale
proceeds to prepay related debt, resulting in an extraordinary
loss of $3 million.
In 1994, the Company issued $175 million principal amount of 9
1/8% senior notes due 2004. The proceeds from this issuance,
together with the proceeds from the sale of Series A preferred
stock (see Note 10), were used to repay higher rate subordinated
and subsidiary debt. These prepayments resulted in an
extraordinary loss of $23 million consisting principally of
write-offs of unamortized discounts and $5 million in call
premiums.
At December 31, 1996, $66 million of loans secured by ships
had interest rates fixed at an average of 8.0% by the terms of
the loans or by the operation of interest rate swap agreements.
An additional $106 million of ship loans have interest rates
capped at an average of 7.3% through 1997 by operation of
interest rate cap agreements (see Note 7). The overall effective
interest rate on ship and container loans includes the
amortization of deferred hedging losses from interest rate
futures contracts. No such contracts were outstanding at
December 31, 1996 or 1995.
Maturities on long-term debt during the next five years are:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Parent
(In thousands) Company Subsidiaries Total
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1997 $9 $56,973 $56,982
1998 -- 100,960 100,960
1999 -- 52,693 52,693
2000 -- 45,006 45,006
2001 133,205 49,803 183,008
==========================================================================================================
</TABLE>
<PAGE>
In December 1996, the Company entered into a $125 million
senior unsecured revolving credit facility available through
January 2001. Interest on borrowings under the facility is based
on, at the Company's option, the bank corporate base rate, the
federal funds effective rate or prevailing interbank Eurodollar
offering rates. The credit facility contains covenants which,
among other matters, require the Company to satisfy certain
ratios related to net worth, debt-to-equity and interest
coverage. An annual fee of up to 1/2% is payable on the unused
portion of the facility. At December 31, 1996, no amounts were
outstanding under the facility.
-40-
The Company maintains various other lines of credit with
domestic and foreign banks for borrowing funds on a short-term
basis. The weighted average interest rate for all short-term
notes and loans payable outstanding at December 31, 1996 was 9.2%
(10.6% at December 31, 1995).
Cash payments relating to interest expense were $126 million
in 1996, $156 million in 1995 and $159 million in 1994.
Note 7 -- Hedging Transactions
- -------------------------------
Chiquita has interest rate swap agreements maturing between
1998 and 2001 to fix the rate of interest on approximately $45
million of its variable rate ship loans. The Company has
currency and interest rate swap agreements maturing between 2004
and 2005 which have the effect of converting $50 million of ship
loans denominated in pounds sterling into U.S. dollar loans with
variable interest rates that become fixed at 7.7% beginning in
1997. The interest rate on an additional $106 million of ship
loans is limited to 7.3% during 1997 by interest rate cap
agreements.
At December 31, 1996, the Company had option contracts to
ensure conversion of approximately $350 million of foreign sales
in 1997 at a rate not higher than 1.51 Deutsche marks per U.S.
dollar or lower than 1.40 Deutsche marks per U.S. dollar.
<PAGE>
The carrying values and estimated fair values of the Company's
debt, associated swap and cap agreements and foreign currency
option contracts are summarized below:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
December 31,
1996 1995
- ------------------------------------------------------------------------------------------------------------------
Carrying Estimated Carrying Estimated
(In thousands) value fair value value fair value
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt $1,214,628 $1,237,300 $1,414,379 $1,442,900
Interest rate swap and cap agreements (288) 1,200 -- 3,100
Foreign currency swap agreements -- (7,900) -- (3,000)
Foreign currency option contracts (4,544) (9,500) (3,434) (3,800)
- ----------------------------------------------------------------------------------------------------------
</TABLE>
Fair values for the Company's publicly traded debt and foreign
currency option contracts are based on quoted market prices.
Fair value for other debt is estimated based on the current rates
offered to the Company for debt of similar maturities. The fair
values of interest rate and foreign currency swap agreements and
interest rate cap agreements are estimated based on the cost to
terminate the agreements.
The Company is exposed to credit loss in the event of
nonperformance by counterparties on interest rate and foreign
currency swap agreements. However, because the Company's hedging
activities are transacted only with highly rated institutions,
Chiquita does not anticipate nonperformance by any of these
counterparties. The amount of any credit exposure is limited to
unrealized gains on all such contracts.
-41-
Note 8 -- Pension and Severance Benefits
- -----------------------------------------
The Company and its subsidiaries have several defined benefit
and contribution pension plans covering approximately 4,900
domestic and foreign employees. Approximately 30,000 employees
are covered by Central and South American severance plans.
Pension plans covering eligible salaried employees and Central
and South American severance plans for all employees call for
benefits to be based upon years of service and compensation
rates.
<PAGE>
Pension and severance expense consists of the following:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
(In thousands) 1996 1995 1994
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Defined benefit and severance plans:
Service cost -- benefits earned
during the period $5,650 $5,664 $5,383
Interest cost on projected benefit obligation 8,015 8,622 8,412
Actual return on plan assets (2,320) (2,505) (623)
Net amortization and deferral 1,802 1,441 (1,181)
- -----------------------------------------------------------------------------------------------------------
13,147 13,222 11,991
Defined contribution plans 3,424 3,458 3,648
- -----------------------------------------------------------------------------------------------------------
Total pension and severance expense $16,571 $16,680 $15,639
===========================================================================================================
</TABLE>
In accordance with local government regulations, the Company's
severance and pension benefits in Central and South America are
generally not funded until benefits are paid. The projected
benefit obligations of these benefits in 1996 and 1995 were
determined using discounted rates of approximately 9 1/4%. The
assumed long-term rate of compensation increase was 6% for both
years.
The projected benefit obligations of the Company's domestic
pension plan were determined using assumed discount rates of
approximately 7 3/4% in 1996 and 1995. The assumed long-term
rate of compensation increase was between 5% and 6% in 1996 and
1995 and the assumed long-term rate of return on plan assets was
approximately 9% in both years. These pension plans are funded
in accordance with the requirements of the Employee Retirement
Income Security Act. Plan assets consist primarily of corporate
debt securities, U.S. government and agency obligations and
collective trust funds.
-42-
<PAGE>
The funded status of the Company's domestic and foreign
defined benefit pension and severance plans is as follows:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Plans for which Plans for which
Assets Exceed Accumulated Benefits
Accumulated Benefits Exceed Assets
at December 31, at December 31,
- ----------------------------------------------------------------------------------------------------------
(In thousands) 1996 1995 1996 1995
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Plan assets at fair market value $7,488 $6,723 $19,970 $16,836
- ---------------------------------------------------------------------------------------------------------
Present value of benefit obligations:
Vested 5,228 4,933 74,421 74,720
Nonvested 30 56 1,003 965
- ---------------------------------------------------------------------------------------------------------
Accumulated benefit obligation 5,258 4,989 75,424 75,685
Additional amounts related to
projected pay increases 2,485 2,094 17,327 19,286
- ---------------------------------------------------------------------------------------------------------
Projected benefit obligation 7,743 7,083 92,751 94,971
- ---------------------------------------------------------------------------------------------------------
Projected benefit obligation
in excess of plan assets (255) (360) (72,781) (78,135)
Projected benefit obligation not yet
recognized in the balance sheet:
Net actuarial loss 962 690 17,401 18,661
Prior service cost 94 224 3,062 3,262
Obligation (asset) at transition,
net of amortization (33) (39) 4,570 5,109
Adjustment required to recognize
minimum liability -- -- (7,706) (7,746)
- ---------------------------------------------------------------------------------------------------------
Net balance sheet asset (liability) $768 $515 $(55,454)* $(58,849)*
==========================================================================================================
* Includes $51 million in 1996 and $56 million in 1995 relating to foreign pension and severance plans
that are generally not required to be funded until benefits are paid.
</TABLE>
The adjustment required to recognize the minimum pension
liability is based on the excess of the accumulated benefit
obligation over the fair market value of assets of Central and
South American defined benefit pension and severance plans. This
adjustment is offset by recording an intangible asset.
-43-
Note 9 -- Stock Options
- ------------------------
Under its non-qualified 1986 Stock Option and Incentive Plan,
the Company may grant up to an aggregate of 15,000,000 shares of
<PAGE>
capital stock in the form of stock options, stock appreciation
rights and stock awards. Under this plan, options have been
granted to directors, officers and other key employees to
purchase shares of the Company's capital stock at the fair market
value at the date of grant. The options vest over ten years and
may be exercised over a period not in excess of 20 years.
A summary of the Company's stock option activity and related
information follows:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
(In thousands, except 1996 1995 1994
per share amounts) ----------------- ---------------- --------------
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Under option at beginning of year 5,993 $12.71 5,214 $12.53 5,452 $12.61
Options granted 1,953 13.40 1,765 13.45 287 12.07
Options exercised (546) 9.68 (332) 10.13 (118) 11.57
Options canceled or expired (507) 13.41 (654) 14.55 (407) 14.10
- -----------------------------------------------------------------------------------------------------------
Under option at end of year 6,893 $13.09 5,993 $12.71 5,214 $12.53
- -----------------------------------------------------------------------------------------------------------
Options exercisable at end of year 2,381 $13.20 2,439 $12.51 2,235 $12.93
- -----------------------------------------------------------------------------------------------------------
Shares available for future grant 4,811 -- 6,365 -- 7,969 --
- -----------------------------------------------------------------------------------------------------------
</TABLE>
Options outstanding as of December 31, 1996 have exercise
prices ranging from $10.18 to $34.44 and a weighted average
remaining contractual life of 16 years. More than 95% of these
options have exercise prices in the range of $10.18 to $16.38.
The Company follows Accounting Principles Board Opinion No. 25
"Accounting for Stock Issued to Employees" ("APB No. 25") in
accounting for its employee stock options. Under APB No. 25,
because the exercise price of the Company's employee stock
options equals the market price of the underlying stock on the
date of grant, no compensation expense is recognized.
Statement of Financial Accounting Standards No. 123
"Accounting for Stock-Based Compensation" ("SFAS No. 123")
requires disclosure of the estimated fair value of employee stock
options granted after 1994 and pro forma financial information
assuming compensation expense was recorded using these fair
values. The estimated weighted average fair value per option
share granted would be $5.93 for 1996 and $6.33 for 1995 using a
Black-Scholes option pricing model with the following
assumptions: weighted average risk-free interest rates of 5.8%
for 1996 and 7.3% for 1995; dividend yield of 1.5%; volatility
factor for the Company's common stock price of 37%; and a
weighted average expected life of eight years for options not
forfeited. The estimated pro forma compensation expense based on
<PAGE>
these option fair values would be approximately $2 million ($.04
per share) in 1996 and $1 million ($.03 per share) in 1995.
Because SFAS No. 123 applies only to options granted subsequent
to 1994, the effect of applying this standard to current year pro
forma information is not necessarily indicative of the effect in
future years.
-44-
Note 10 -- Shareholders' Equity
- --------------------------------
At December 31, 1996, there were 150 million authorized shares
of capital stock. Of the shares authorized but unissued at
December 31, 1996, 14 million shares were reserved for issuance
under stock option and employee benefit plans, 3 million shares
were reserved for conversion of subordinated debentures, and 15
million shares were reserved for conversion of preferred stock at
the holders' option. In addition, Chiquita has reserved 21
million shares for the maximum additional number of shares
potentially issuable upon conversion of Series A preferred stock
at the Company's option after February 2001, and 16 million
shares for the maximum additional number of shares potentially
issuable upon conversion of Series B preferred stock at the
Company's option after September 1999.
In August 1996, Chiquita sold 2,300,000 shares of $3.75
Convertible Preferred Stock, Series B, par value $1.00 per share
(the "Series B Shares") for aggregate net proceeds of $111
million. Each Series B Share has a liquidation preference of
$50.00 per share and is entitled to an annual cash dividend of
$3.75 per share. Each Series B Share is convertible at the
holder's option into 3.3333 shares of capital stock or, at the
Company's option beginning in September 1999, into a number of
capital shares (not exceeding 10 shares) having a total market
value of $51.50 (decreasing thereafter to $50.00 if converted in
or after September 2001). In February 1994, the Company sold
2,875,000 shares of $2.875 Non-Voting Cumulative Preferred Stock,
Series A, par value $1.00 per share (the "Series A Shares") for
aggregate net proceeds of $138 million. Each Series A Share has
a liquidation preference of $50.00 per share and is entitled to
an annual cash dividend of $2.875 per share. Each Series A Share
is convertible into 2.6316 shares of capital stock at the
holder's option or at the Company's option (provided the market
value of Chiquita capital stock exceeds $24.70 per share) through
February 2001. Beginning February 2001, the Company may convert
each Series A Share into a number of capital shares (not
exceeding 10 shares) having a total market value of $50.00.
Holders of Series A and B preferred stock have the right to
elect directors in addition to the directors ordinarily elected
by holders of capital stock where the Company fails to pay
quarterly dividends on the preferred stock for six quarters. The
Board of Directors has the authority to fix the terms of
4,825,000 additional shares of Non-Voting Cumulative Preferred
Stock.
During the first quarter of 1996 and the fourth quarter of
1995, Chiquita issued approximately 296,000 and 725,000 shares of
<PAGE>
capital stock in repayment of $4 million and $11 million of
subsidiary debt, respectively.
The Company has four million authorized shares of Cumulative
Preference Stock, one million of which had been designated as
Series C Shares. In 1995, all outstanding shares of Mandatorily
Exchangeable Cumulative Preference Stock, Series C were converted
into capital stock.
-45-
<PAGE>
Note 11 - Income Taxes
- -----------------------
Income taxes consist of the following:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
(In thousands) U.S. Federal U.S. State Foreign Total
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1996
Current tax expense $181 $1,210 $9,026 $10,417
Deferred tax expense -- -- 583 583
- ---------------------------------------------------------------------------------------------------------
$181 $1,210 $9,609 $11,000
- ---------------------------------------------------------------------------------------------------------
1995
Current tax expense $1,218 $1,011 $12,657 $14,886
Deferred tax benefit -- -- (986) (986)
- ---------------------------------------------------------------------------------------------------------
$1,218 $1,011 $11,671 $13,900
- ----------------------------------------------------------------------------------------------------------
1994
Current tax expense $-- $1,024 $11,566 $12,590
Deferred tax expense -- -- 910 910
- ----------------------------------------------------------------------------------------------------------
$-- $1,024 $12,476 $13,500
===========================================================================================================
</TABLE>
Income (loss) from continuing operations before income taxes
consists of the following:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
(In thousands)
Subject to tax in: 1996 1995 1994
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
United States $(69,404) $(17,735) $(111,776)
Foreign jurisdictions 52,676 59,604 40,965
- ---------------------------------------------------------------------------------------------------------
$(16,728) $ 41,869 $ (70,811)
=========================================================================================================
</TABLE>
<PAGE>
Income tax expense differs from income taxes computed at the
U.S. federal statutory rate for the following reasons:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
(In thousands) 1996 1995 1994
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Income tax expense (benefit) computed at U.S.
federal statutory rate $(5,855) $14,654 $(24,784)
U.S. alternative minimum tax, net of credit -- 821 --
State income taxes, net of federal benefit 787 657 666
U.S. losses for which no tax benefit has
been recognized 8,457 -- 34,012
Foreign tax differential 5,408 10,595 (508)
Use of U.S. net operating loss carryforwards -- (11,959) --
Other 2,203 (868) 4,114
- ---------------------------------------------------------------------------------------------------------
Income tax expense $11,000 $13,900 $ 13,500
=========================================================================================================
</TABLE>
-46-
The components of deferred income taxes included on the
balance sheet are as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
December 31,
(In thousands) 1996 1995
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Deferred tax benefits
Employee benefits $28,223 $30,070
Accrued expenses 21,999 21,224
Other 15,846 16,932
- ---------------------------------------------------------------------------------------------------------
66,068 68,226
Valuation allowance (6,513) (2,600)
- ---------------------------------------------------------------------------------------------------------
59,555 65,626
- ---------------------------------------------------------------------------------------------------------
Deferred tax liabilities
Depreciation and amortization (21,084) (22,837)
Growing crops (20,968) (20,968)
Long-term debt (9,976) (11,583)
Other (9,390) (11,344)
- ---------------------------------------------------------------------------------------------------------
(61,418) (66,732)
- ---------------------------------------------------------------------------------------------------------
Net deferred tax liability $ (1,863) $ (1,106)
=========================================================================================================
</TABLE>
<PAGE>
Net deferred taxes do not reflect the benefit that would be
available to the Company from the use of its U.S. operating loss
carryforwards of $227 million, capital loss carryforwards of $38
million, alternative minimum tax credits of $6 million and
foreign tax credit carryforwards of $13 million. The operating
loss carryforwards expire in 2007 through 2011, the capital loss
carryforwards expire in 2000 and the foreign tax credit
carryforwards expire between now and 2001. Undistributed
earnings of foreign subsidiaries which have been, or are intended
to be, permanently reinvested in operating assets, if remitted,
are expected to result in little or no tax by operation of
relevant statutes and the carryforward attributes described
above.
Cash payments for income taxes, net of refunds, were $10
million in 1996, $14 million in 1995, and $12 million in 1994.
-47-
Note 12 -- Geographic Area Information
- ---------------------------------------
The Company is a leading international marketer, producer and
distributor of bananas and other quality fresh and processed food
products. The Company's products are sold throughout the world
and its principal production and processing operations are
conducted in Central, South and North America. With the sale of
its remaining Meat Division operations in December 1995, the
Company's continuing operations constitute a single business
segment.
Chiquita's earnings are heavily dependent upon products grown
and purchased in Central and South America. These activities, a
significant factor in the economies of the countries where
Chiquita produces bananas and related products, are subject to
the risks that are inherent in operating in such foreign
countries, including government regulation, currency restrictions
and other restraints, risk of expropriation and burdensome taxes.
Certain of these operations are substantially dependent upon
leases and other agreements with these governments.
The Company is also subject to a variety of governmental
regulations in certain countries where it markets bananas,
including import quotas and tariffs, currency exchange controls
and taxes.
<PAGE>
Financial information by geographic area follows:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
(In thousands) 1996 1995 1994
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net sales to unaffiliated customers
North America $1,286,096 $1,261,422 $1,224,114
Central and South America 67,228 177,419 179,726
Europe and other international 1,081,924 1,127,151 1,101,986
- ---------------------------------------------------------------------------------------------------------
Consolidated net sales $2,435,248 $2,565,992 $2,505,826
- ---------------------------------------------------------------------------------------------------------
Operating income
North America $10,864 $31,203 $(8,370)
Central and South America 2,063 64,891 19,071
Europe and other international 84,519 93,102 73,746
Unallocated expenses (13,110) (13,426) (13,262)
- ----------------------------------------------------------------------------------------------------------
Consolidated operating income $84,336 $175,770 $71,185
- ----------------------------------------------------------------------------------------------------------
Identifiable assets
North America $445,105 $439,385 $493,079
Central and South America 742,415 835,851 864,232
Europe and other international 395,793 409,677 385,241
Shipping operations 545,267 575,761 671,756
Corporate assets 338,354 362,859 359,931
- ----------------------------------------------------------------------------------------------------------
Consolidated assets $2,466,934 $2,623,533 $2,774,239
- ----------------------------------------------------------------------------------------------------------
</TABLE>
-48-
Net sales in the preceding table excludes intercompany sales
of bananas from Central and South America to different geographic
areas. These sales, which are eliminated in consolidation and
are measured at cost under the method used for internal
management financial reporting purposes, were approximately $500
million in each of the last three years. Banana sales to
unaffiliated customers in Central and South America and other
intergeographic sales are not significant.
Operating income for 1996 includes write-offs and costs
totaling $70 million primarily resulting from flooding in Central
America; certain strategic undertakings designed to achieve
further long-term reductions in the delivered product cost of
bananas; and certain claims relating to prior EU quota
restructuring actions. These write-offs and costs reduced
operating income by geographic area as follows: North America,
$27 million; Central and South America, $1 million; and Europe
and other international, $42 million. In 1995, divestitures of
certain operations and other actions had the effect of increasing
(decreasing) operating income by geographic area as follows:
North America, $(9) million; Central and South America, $37
<PAGE>
million; Europe and other international, $(9) million. Operating
income for 1994 includes charges and losses totaling $67 million
primarily resulting from farm closings and write-downs of banana
cultivations in Honduras and the substantial reduction of the
Company's Japanese "green" banana trading operations as follows:
North America, $27 million; Europe and other international, $40
million.
For purposes of reporting identifiable assets by geographic
area, cash and equivalents, marketable securities, restricted
cash and trademarks are included in corporate assets. Minority
equity investments are included in the geographic area where
their operations are located.
Note 13 -- Litigation
- -----------------------
A number of legal actions are pending against the Company.
Based on information currently available to the Company and
advice of counsel, management does not believe such litigation
will, individually or in the aggregate, have a material adverse
effect on the financial statements of the Company.
-49-
Note 14 -- Quarterly Financial Data (Unaudited)
- ------------------------------------------------
The following quarterly financial data are unaudited, but in
the opinion of management include all necessary adjustments for a
fair presentation of the interim results, which are subject to
significant seasonal variations.
<PAGE>
<TABLE>
<CAPTION>
1996
- -----------------------------------------------------------------------------------------------------------
(In thousands, except per
share amounts) March 31 June 30 Sept. 30 Dec. 31
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $624,806 $713,698 $541,581 $555,163
Cost of sales (471,999) (534,591) (431,385) (509,913)
Operating income (loss) 57,861 75,120 15,861 (64,506)
Income (loss) from continuing operations 24,228 43,089 (7,585) (87,460)
Extraordinary loss from debt refinancing -- (5,556) (17,282) --
Net income (loss) 24,228 37,533 (24,867) (87,460)
Fully diluted earnings (loss) per share
- Continuing operations .38 .68 (.20) (1.65)
- Extraordinary items -- (.09) (.31) --
- Net income (loss) .38 .59 (.51) (1.65)
Dividends per common share .05 .05 .05 .05
Capital stock market price
High 16.38 15.50 13.50 13.88
Low 12.63 13.00 11.50 11.50
==========================================================================================================
1995
- ----------------------------------------------------------------------------------------------------------
(In thousands, except per
share amounts) March 31 June 30 Sept. 30 Dec. 31
- -----------------------------------------------------------------------------------------------------------
Net sales $674,269 $727,519 $569,005 $595,199
Cost of sales (495,995) (547,336) (437,884) (476,848)
Operating income 76,220 70,164 25,341 4,045
Income (loss) from continuing operations 33,599 32,095 (8,278) (29,447)
Discontinued operations 4,029 2,035 (2,713) (14,548)
Extraordinary loss from debt refinancing -- (4,713) -- (2,847)
Net income (loss) 37,628 29,417 (10,991) (46,842)
Fully diluted earnings (loss) per share
- Continuing operations .55 .52 (.19) (.58)
- Discontinued operations .07 .03 (.05) (.27)
- Extraordinary items -- (.07) -- (.06)
- Net income (loss) .62 .48 (.24) (.91)
Dividends per common share .05 .05 .05 .05
Capital stock market price
High 14.50 14.00 17.25 18.00
Low 12.25 12.63 13.63 13.38
============================================================================================================
</TABLE>
Operating income for the quarter ended March 31, 1996 includes
write-downs and costs of $12 million resulting from industry-wide
flooding in Costa Rica. Operating income for the quarter ended
December 31, 1996 includes write-downs and costs of $58 million
resulting from industry-wide flooding in Guatemala and Honduras,
certain strategic undertakings designed to achieve further long-
term reductions in the delivered product cost of bananas, and
certain claims relating to prior EU quota restructuring actions.
<PAGE>
Operating income for the quarter ended September 30, 1995
includes a net gain of $6 million resulting primarily from the
sale of older ships. For the quarter ended December 31, 1995,
results include net gains of $13 million primarily resulting from
divestitures of operations and other actions taken as part of the
Company's ongoing program to improve shareholder value.
A separate computation of earnings per share is made for each
quarter presented. The dilutive effect on earnings per share
resulting from the assumed conversions of preferred stock and
convertible debt and exercise of stock options is included in
each quarter in which dilution occurs. The earnings per share
computation for the year is a separate annual calculation.
Accordingly, the sum of the quarterly earnings per share amounts
will not necessarily equal the earnings per share for the year.
-50-
<PAGE>
<TABLE>
<CAPTION>
Investor Information
Chiquita Brands International, Inc. and Subsidiary Companies
- ---------------------------------------------------------------------------------------------------------------
<C> <C>
Stock Exchange Listings Investor Inquiries
New York, Boston & Pacific For other questions concerning your
investment in Chiquita, contact
Stock Symbol Corporate Affairs at (513) 784-6366.
CQB
Trustees and Transfer Agents -
Shareholders of Record Debentures/Notes
At February 28, 1997, there were 6,007 7% Convertible Subordinated Debentures due
common shareholders of record. March 28, 2001
Trustee -
Transfer Agent and Registrar - The Chase Manhattan Bank
Preferred and Capital Stock 450 West 33rd Street
Chiquita Brands International, Inc. New York, New York 10001
c/o Securities Transfer Company
One East Fourth Street Transfer, Paying and Conversion Agents -
Cincinnati, Ohio 45202 The Chase Manhattan Bank-London, England
(513) 579-2414 Banque Paribas Luxembourg S.A.-Luxembourg
(800) 368-3417 Banque Bruxelles Lambert S.A.-Brussels, Belgium
Bank Leu, Ltd.-Zurich, Switzerland
Dividend Reinvestment
Shareholders who hold at least 100 9 1/8% Senior Notes due March 1, 2004*
common shares may increase their 9 5/8% Senior Notes due January 15, 2004*
investment in Chiquita shares through 10 1/4% Senior Notes due November 1, 2006*
the Dividend Reinvestment Plan without Trustee -
payment of any brokerage commission or The Fifth Third Bank
service charge. Full details concerning 38 Fountain Square Plaza
the Plan may be obtained from Corporate Cincinnati, OH 45263
Affairs or the Transfer Agent.
*Chiquita Brands International, Inc., c/o
Annual Meeting Securities Transfer Company, is transfer agent
May 14, 1997 for these Notes.
10 a.m. Eastern Daylight Time
Omni Netherland Plaza Hotel
35 West Fifth Street
Cincinnati, Ohio 45202
</TABLE>
-52-
<PAGE>
EXHIBIT 21
CHIQUITA BRANDS INTERNATIONAL, INC.
SUBSIDIARIES
As of March 27, 1997, the major subsidiaries of the Company,
the jurisdiction in which organized and the percent of voting
securities owned by the immediate parent corporation were as
follows:
<TABLE>
<CAPTION>
Percent of
Voting Securities
Organized Owned by
Under Laws of Immediate Parent
--------------- ------------------
<S> <C> <C>
Chiquita Brands, Inc. Delaware 100%
American Produce Company Delaware 100%
Banana Supply Co., Inc. Florida 100%
California Day-Fresh Foods, Inc. California 100%
Caribbean Enterprises, Inc. Delaware 100%
Great White Fleet Ltd. Bermuda 100%
BVS Ltd. Bermuda 100%
CDV Ltd. Bermuda 100%
CDY Ltd. Bermuda 100%
CRH Shipping Ltd. Bermuda 100%
Danfund Ltd. Bermuda 100%
Danop Ltd. Bermuda 100%
DSF Ltd. Bermuda 100%
GPH Ltd. Bermuda 100%
NCV Ltd. Bermuda 100%
Norvel Ltd. Bermuda 100%
Chiquita Brands Company, North America Delaware 100%
CB Containers, Inc. Delaware 100%
OV Containers, Inc. Delaware 100%
Chiquita Citrus Packers, Inc. Delaware 80%
Chiquita Banana Company B.V. Netherlands 100%
Chiquita Italia, S.p.A. Italy 100%
Chiquita Finland Oy Finland 100%
Chiquita Norge AS Norway 100%
Chiquita Tropical Fruit Company B.V. Netherlands 100%
Chiquita Frupac Inc. Delaware 100%
Chiquita Gulf Citrus, Inc. Delaware 100%
Chiquita International Trading Company Delaware 100%
Chiquita Brands South Pacific Limited Australia 100%
Chiquita International Limited Bermuda 100%
Exportadora Chiquita Limitada Chile 100%
M.M. Holding Ltd. Bermuda 100%
Chiquita Tropical Products Company Delaware 100%
Chiriqui Land Company Delaware 100%
Compania Agricola del Guayas Delaware 100%
Compania Agricola de Rio Tinto Delaware 100%
Compania Bananera Atlantica Limitada Costa Rica 100%
Compania Frutera de Sevilla Delaware 100%
<PAGE>
CHIQUITA BRANDS INTERNATIONAL, INC. EXHIBIT 21 (cont.)
SUBSIDIARIES
Corpofinanzas, S.A. Costa Rica 100%
Dunand et Compagnie des Bananes, S.A. France 94%
Friday Canning Corporation Wisconsin 100%
Maritrop Trading Corporation Delaware 100%
Polymer United, Inc. Delaware 100%
Progressive Produce Corporation Ohio 100%
Theodoredis and Sons Banana Company Delaware 100%
Tela Railroad Company Delaware 100%
United Brands Japan, Ltd. Japan 95%
Compania Mundimar, S.A. Costa Rica 100%
Solar Aquafarms, Inc. Delaware 100%
</TABLE>
The names of approximately 300 wholly-owned subsidiaries have
been omitted. In the aggregate these subsidiaries, after
excluding approximately 100 foreign subsidiaries whose immediate
parents are listed above and which are involved in fresh foods
operations, do not constitute a significant subsidiary. The
consolidated financial statements include the accounts of the
Company and all majority-owned subsidiaries.
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Annual
Report on Form 10-K of Chiquita Brands International, Inc. of our
report dated February 19, 1997, included in the 1996 Annual
Report to Shareholders of Chiquita Brands International, Inc.
Our audits also included the financial statement schedule of
Chiquita Brands International, Inc. and subsidiary companies
listed in Item 14(a). This schedule is the responsibility of the
Company's management. Our responsibility is to express an
opinion based on our audits. In our opinion, the financial
statement schedule referred to above, when considered in relation
to the basic financial statements taken as a whole, presents
fairly in all material respects the information set forth
therein.
We also consent to the incorporation by reference in the
following Registration Statements and related prospectuses of
Chiquita Brands International, Inc. of our report dated
February 19, 1997, with respect to the consolidated financial
statements and schedule of Chiquita Brands International, Inc.
and subsidiary companies incorporated by reference in the Annual
Report on Form 10-K for the year ended December 31, 1996.
<TABLE>
<CAPTION>
Registration
Form No. Description
<S> <C> <C>
S-3 33-58424 Dividend Reinvestment Plan
S-3 33-41057 Common Stock issuable upon
conversion of Convertible
Subordinated Debentures
S-3 333-00789 Debt Securities, Preferred Stock,
Preference Stock, Depositary
Shares, Common Stock and
Securities Warrants
S-8 33-2241 Chiquita Savings and Investment Plan
33-16801
33-42733
33-56572
S-8 33-14254 1986 Stock Option and Incentive Plan
33-38284
33-41069
33-53993
S-8 33-25950 Individual Stock Option Plan
S-8 33-38147 Associate Stock Purchase Plan
</TABLE>
Cincinnati, Ohio ERNST & YOUNG LLP
March 26, 1997
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned officers and directors of Chiquita
Brands International, Inc. (the Company) hereby severally
constitute and appoint William A. Tsacalis and Robert W. Olson,
and each of them singly, our true and lawful attorneys and agents
with full power to them and each of them to do any and all acts
and things in connection with the preparation and filing of the
Company's Annual Report on Form 10-K for the year ended December
31, 1996 (the Report) pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, and any rules,
regulations and requirements of the Securities and Exchange
Commission thereunder including specifically, but without
limiting the generality of the foregoing, the power and authority
to sign the name of the Company and the names of the undersigned
directors and officers in the capacities indicated below to the
Report, and any and all amendments and supplements thereto and
any and all other instruments and documents which said attorneys
and agents or any of them may deem necessary or advisable in
connection therewith.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
- --------------------- Director, Chairman of the March 28, 1997
(Carl H. Lindner) Board of Directors, Chief
Executive Officer and Chairman
of the Executive Committee
(Principal Executive Officer)
- ---------------------- Director, Vice Chairman of March 28, 1997
(Keith E. Lindner) the Board
- ---------------------- Director, President, March 28, 1997
(Steven G. Warshaw) Chief Operating Officer
and Chief Financial Officer
- ---------------------- Director March 28, 1997
(Fred J. Runk)
/s/Jean H. Sisco
- ---------------------- Director March 28, 1997
(Jean H. Sisco)
/s/William W. Verity
- ---------------------- Director March 28, 1997
William W. Verity)
/S/Oliver W. Waddell
- ----------------------- Director March 28, 1997
(Oliver W. Waddell)
- ------------------- Director March 28, 1997
<PAGE>
(Ronald F. Walker)
- -------------------
<PAGE>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from
the Chiquita Brands International, Inc. Form 10-K for the year ended
December 31, 1996 and is qualified in its entirety by reference to
such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 285,558
<SECURITIES> 0
<RECEIVABLES> 172,398
<ALLOWANCES> 9,832
<INVENTORY> 275,177
<CURRENT-ASSETS> 844,311
<PP&E> 1,715,533
<DEPRECIATION> 575,856
<TOTAL-ASSETS> 2,466,934
<CURRENT-LIABILITIES> 464,334
<BONDS> 1,079,251
0
249,256
<COMMON> 18,614
<OTHER-SE> 456,383
<TOTAL-LIABILITY-AND-EQUITY> 2,466,934
<SALES> 2,435,248
<TOTAL-REVENUES> 2,435,248
<CGS> 1,947,888
<TOTAL-COSTS> 1,947,888
<OTHER-EXPENSES> 89,534
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 130,232
<INCOME-PRETAX> (16,728)
<INCOME-TAX> 11,000
<INCOME-CONTINUING> (27,728)
<DISCONTINUED> 0
<EXTRAORDINARY> (22,838)
<CHANGES> 0
<NET-INCOME> (50,566)
<EPS-PRIMARY> (1.13)<F1>
<EPS-DILUTED> (1.13)<F1>
<FN>
<F1>Amounts include an extraordinary loss of $.41 per share from debt
refinancings in the second and third quarters.
</FN>
</TABLE>
