SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
(AMENDMENT NO. 1)
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
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CHIQUITA BRANDS INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
New Jersey 04-1923360
________________________________________ ___________________________________
(State of incorporation or organization) (I.R.S. Employer Identification No.)
250 East Fifth Street, Cincinnati, Ohio 45202
_____________________________________________________________________________
(Address of principal executive offices)(Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
___________________ ______________________________
10% Senior Notes due 2009 New York Stock Exchange
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant
to General Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant
to General Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: 333-00789
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Securities to be registered pursuant to Section 12(g) of the Act:
None
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
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The description of Chiquita's 10% Senior Notes due 2009 is set forth
under the caption "Description of Notes" in Chiquita's Prospectus Supplement
dated June 15, 1999 (filed June 16, 1999 by Chiquita pursuant to Rule 424(b)5
under the Securities Act of 1933) to Prospectus dated May 1, 1996, forming
a part of Chiquita's Registration Statement on Form S-3, Registration
Statement No. 333-00789, and such description is deemed to be incorporated
by reference herein.
Item 2. Exhibits
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EX-4.1 Indenture dated as of February 15, 1994, between Chiquita Brands
International, Inc. and The Fifth Third Bank, Trustee, with respect
to Senior Debt Securities (incorporated by reference to Exhibit 4(c)
of Registration Statement 333-00789), as supplemented by (1) 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 (2) 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).
EX-4.2 Third Supplemental Indenture dated as of June 15, 1999 to Indenture
dated as of February 15, 1994 between Chiquita Brands International,
Inc. and Fifth Third Bank, Trustee.
EX-4.3 Terms of the 10% Senior Notes due 2009.
_______________
* Incorporated herein by reference.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to
be signed on its behalf by the undersigned, thereto duly authorized.
CHIQUITA BRANDS INTERNATIONAL, INC.
By: /s/ Robert W. Olson
--------------------------------
Robert W. Olson
Senior Vice President,
General Counsel and Secretary
Dated: June 22, 1999
EXHIBIT 4.2
CHIQUITA BRANDS INTERNATIONAL, INC.
and
FIFTH THIRD BANK, Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of
June 15, 1999
To
INDENTURE
Dated as of February 15, 1994
-----------------------------
Amending the Indenture, dated as of February 15, 1994, as
previously supplemented (a) with respect to the 9-1/8% Senior
Notes due 2004 issued thereunder by a Board Resolution dated
February 8, 1994 and by the First Supplemental Indenture dated
as of June 15, 1994, (b) by the Second Supplemental Indenture
dated as of July 15, 1996 and (c) with respect to the 10-1/4%
Senior Notes due 2006 issued thereunder by a Board Resolution
dated July 23, 1996.
<PAGE>
THIRD SUPPLEMENTAL INDENTURE (the "Third
Supplemental Indenture"), dated as of June 15, 1999, between
CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation
(the "Company"), and FIFTH THIRD BANK, an Ohio banking
corporation (f/k/a The Fifth Third Bank), as Trustee (the
"Trustee").
RECITALS
The Company and the Trustee are parties to an
Indenture, dated as of February 15, 1994 (the "Original
Indenture") relating to the issuance from time to time by the
Company of its Senior Debt Securities on terms to be specified
at the time of issuance. The Indenture has been previously
supplemented by (a) a Board Resolution dated February 8, 1994
(the "1994 Board Resolution") pursuant to which the Company
issued its 9-1/8% Senior Notes due 2004 in the aggregate
principal amount of $175,000,000 (the "9-1/8% Senior Notes"),
(b) the First Supplemental Indenture dated as of June 15, 1994
(the "First Supplemental Indenture") relating to the 9-1/8%
Senior Notes, (c) the Second Supplemental Indenture dated as
of July 15, 1996 (the "Second Supplemental Indenture") and (d)
a Board Resolution dated July 23, 1996 (the "1996 Board
Resolution") pursuant to which the Company issued its 10-1/4%
Senior Notes due 2006 in the aggregate principal amount of
$150,000,000 (the "10-1/4% Senior Notes"). The Original
Indenture, as so supplemented by the 1994 Board Resolution,
the First Supplemental Indenture, the Second Supplemental
Indenture and the 1996 Board Resolution, is herein referred to
as the "Indenture". The 9-1/8% Senior Notes and the 10-1/4% Senior
Notes are the only series of Debt Securities outstanding under
the Indenture. Capitalized terms used herein, not otherwise
defined herein, shall have the meanings assigned to them in
the Indenture.
The Company has duly authorized the execution and
delivery of this Third Supplemental Indenture in order to
(i) provide for the issuance of securities in foreign
currencies and (ii) make certain other amendments to the
Indenture in connection with future series of Debt Securities,
which may be issued under the Indenture, but not the 9-1/8% Senior
Notes or the 10-1/4% Senior Notes.
The 9-1/8 Senior Notes are governed solely by the
Original Indenture, as supplemented by the First Supplemental
Indenture and the 1994 Board Resolution. The 10-1/4% Senior
Notes are governed solely by the Original Indenture, as
supplemented solely by the First Supplemental Indenture, the
Second Supplemental Indenture and the 1996 Board Resolution.
The Company has requested the Trustee and the
Trustee has agreed to join with it in the execution and
delivery of this Third Supplemental Indenture.
Section 901(4) of the Indenture provides that the
Company, acting pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into an
indenture supplemental to the Indenture to add to, change or
eliminate any of the provisions of the Indenture; provided,
however, that any such additions, changes or eliminations
shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision and as to which such supplemental indenture
would apply.
The Company has determined that this Third
Supplemental Indenture complies with Section 901(4) and does
not require the consent of any Holders of Debt Securities. On
the basis of the foregoing, the Trustee has determined that
this Third Supplemental Indenture is in form satisfactory to
it.
The Company has furnished the Trustee with an
Opinion of Counsel complying with the requirements of
Section 903 of the Indenture, stating that the execution of
this Third Supplemental Indenture is authorized or permitted
by the Indenture, and has delivered to the Trustee a Board
Resolution authorizing the execution and delivery of this
Third Supplemental Indenture, together with such other
documents as may have been required by Section 102 of the
Indenture.
All things necessary to make this Third Supplemental
Indenture a valid agreement of the Company and the Trustee and
a valid amendment of and supplement to the Indenture have been
done.
NOW, THEREFORE, it is agreed that the Indenture is
amended for the equal and proportionate benefit of all Holders
of Debt Securities issued under the Indenture after the date
hereof.
ARTICLE I
AMENDMENTS TO THE INDENTURE
Section 1.1. Section 101 of the Indenture is hereby
amended by amending and adding the following definitions:
The following definition is added after the
definition of "Act":
"Additional Amounts" means any Additional Amounts
which are required hereby or by the terms of any Security,
under circumstances specified herein or therein, to be paid by
the Company in respect of certain taxes imposed on Holders
specified therein and which are owing to such Holders.
The following definition is added after the
definition of "Authenticating Agent":
"Authorized Newspaper" means a newspaper, in an
official language of the place of publication or in the
English language, customarily published on each day that is a
Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in
connection with which the term is used or in the financial
community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing
requirements and in each case on any day that is a Business
Day in the place of publication.
The following definition is added after the
definition of "corporation":
"currency" or "money", with respect to any payment,
deposit or other transfer in respect of the principal of or
any premium or interest on any Security, means the unit or
units of legal tender for the payment of public and private
debts (or any composite thereof) in which such payment,
deposit or other transfer is required to be made by or
pursuant to the terms hereof and, with respect to any other
payment, deposit or transfer pursuant to or contemplated by
the terms hereof, means Dollars.
The following definition is added after the
definition of "Exchange Act":
"Government Obligations", with respect to any
Security, means (i) direct obligations of the government or
governments which issued the currency in which the principal
of or any premium or interest on such Security shall be
payable, in each case where the payment or payments thereunder
are supported by the full faith and credit of such government
or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of
such government or governments, in each case where the payment
or payments thereunder are unconditionally guaranteed as a
full faith and credit obligation by such government or
governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers
thereof, and shall also include a Depository receipt issued by
a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or
principal of or other amount with respect to any such
Government Obligation held by such custodian for the account
of the holder of a Depository receipt, provided that (except
as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such
Depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific
payment of interest on or principal of or other amount with
respect to the Government Obligation evidenced by such
Depository receipt.
The following definitions are added after the
definition of "Interest Payment Date":
"Judgment Currency" has the meaning specified in
Section 115.
"Legal Holiday", with respect to any Place of
Payment or other location, means a Saturday, a Sunday or a day
on which banking institutions or trust companies in such Place
of Payment or other location are not authorized or obligated
to be open.
The following definition is added after the
definition of "Regular Record Date":
"Required Currency" has the meaning specified in
Section 115.
The definition of "U.S. Depositary" is amended to
read in its entirety as follows:
"U.S. Depositary" or "Depositary" means, with
respect to any Security issuable or issued in the form of one
or more Global Securities, the Person designated as U.S.
Depositary or Depositary by the Company in or pursuant to this
Indenture which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered
under the Exchange Act, or any successor thereto, which shall
in either case be designated by the Company pursuant to
Section 301, until a successor U.S. Depositary or Depositary
shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "U.S. Depositary" or
"Depositary" shall mean or include each Person who is then a
U.S. Depositary or Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" or
"Depository" as used with respect to the Debt Securities of
any series shall mean the U.S. Depository or Depository with
respect to the Debt Securities of that series.
Section 1.2. Section 106 of the Indenture is
amended by adding the following to the end of the first
paragraph thereof:
If a series of Debt Securities is listed on any
stock exchange outside the United States and such stock
exchange so requires, such notice shall also be given by
publication in an Authorized Newspaper in such city and on
such days or by such other means as the Company shall advise
the Trustee that such stock exchange so requires.
Section 106 of the Indenture is further amended by
adding the following to the end of the second paragraph
thereof:
Neither the failure to give notice by publication in
an Authorized Newspaper or as otherwise required by a stock
exchange outside the United States, nor any defect in such
notice as published or otherwise given, shall affect the
sufficiency of any notice mailed to Holders of Debt Securities
as provided above.
Section 1.3. Article One of the Indenture is
amended by adding Section 115 as follows:
Section 115. Judgment Currency. The Company
agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due
in respect of the principal of, or premium or interest, if
any, on the Debt Securities of any series (the "Required
Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used
shall be the spot rate of exchange into the Judgment Currency
for the Required Currency and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full
amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by
which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment being obtained for any
other sum due under this Indenture.
Section 1.4. Section 301(4) of the Indenture is
amended by adding "whether and under what circumstances
Additional Amounts on Debt Securities of that series shall be
payable" to the end thereof.
Section 301 of the Indenture is hereby amended by
renumbering Sections 301(8), 301(9), 301(10), 301(11),
301(12), 301(13), 301(14) and 301(15) and by adding new
Sections 301(8), 301(9) and 301(10) as follows:
(8) if other than U.S. Dollars, the currency or
currencies or units based on or related to currencies in which
the Debt Securities of such series shall be denominated and in
which payments of principal of (and premium, if any) and
interest, if any, on such Debt Securities shall or may be
payable;
(9) if the principal of (and premium, if any) or
interest, if any, on the Debt Securities of a series are to be
payable, at the election of the Company or a Holder thereof,
in a currency or currencies or units based on or related to
currencies other than that in which the Debt Securities are
stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be
made;
(10) if the amount of payments of principal of (and
premium, if any) and interest, if any, on the Debt Securities
of a series may be determined with reference to an index based
on (i) a currency or currencies or units based on or related
to currencies other than that in which the Debt Securities are
stated to be payable, (ii) changes in the price of one or more
other securities or groups or indexes of securities or (iii)
changes in the prices of one or more commodities or groups or
indexes of commodities, or any combination of the foregoing,
the manner in which such amounts shall be determined;
Section 1.5. Section 401(a)(1)(B)(ii) of the
Indenture is amended by deleting "U.S. Government Obligations"
and replacing it with "Government Obligations."
Section 401(a) is amended by adding the paragraphs
(5) and (6) to the end thereof as follows:
(5) the Company delivers to the Trustee an Opinion
of Counsel to the effect that the trust resulting from
the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company
Act of 1940;
(6) the Company delivers to the Trustee an Opinion
of Counsel stating that (i) the Company has received
from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall
confirm that, the Holders will not recognize income, gain
or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had
not occurred.
Section 401(b) is amended to read in its entirety as
follows:
(b) Upon the satisfaction of the conditions set forth in
this Section 401 with respect to all the Debt Securities of
any series, the terms and conditions of such series, including
the terms and conditions with respect thereto set forth in
this Indenture, shall no longer be binding upon, or applicable
to, the Company, and the Holders of the Debt Securities of
such series shall look for payment only to the funds or
obligations deposited with the Trustee pursuant to
Section 401(a)(1)(B); provided, however, that in no event
shall the Company be discharged from (i) any payment
obligations (including Additional Amounts) in respect of Debt
Securities of such series which are deemed not to be
Outstanding under clause (3) of the definition thereof if such
obligations continue to be valid obligations of the Company
under applicable law, (ii) from any obligations under
Sections 402(b), 607 and 610 and (iii) from any obligations
under Sections 305 and 306 (except that Debt Securities of
such series issued upon registration of transfer or exchange
or in lieu of mutilated, destroyed, lost or stolen Debt
Securities shall not be obligations of the Company) and
Sections 701, 1002 and Article Thirteen; and provided,
further, that in the event a petition for relief under the
Bankruptcy Act of 1978 or Title 11 of the United States Code
or a successor statute is filed and not discharged with
respect to the Company within 91 days after the deposit, the
entire indebtedness on all Debt Securities of such series
shall not be discharged, and in such event the Trustee shall
return such deposited funds or obligations as it is then
holding to the Company upon Company Request.
Section 402(b)of the Indenture is amended by
deleting both instances of "U.S. Government Obligations" and
replacing it in each case with "Government Obligations."
Section 402(c)of the Indenture is amended by
deleting each instance of "U.S. Government Obligations" and
replacing it in each case with "Government Obligations."
Section 404 of the Indenture is amended by deleting
each instance of "U.S. Government Obligations" and replacing
it in each case with "Government Obligations."
Section 1.6. Section 501(1) of the Indenture is
amended to read in its entirety as follows:
(1) default in the payment of any installment of
interest upon or any Additional Amount with respect to
any Debt Security of that series when it becomes due and
payable, and continuance of such default for a period of
30 days; or
Section 501(5) is amended by adding "(or its
equivalent in any other currency or currencies)" after the
words "$10 million."
Section 1.7. Section 602 of the Indenture is
amended to read in its entirety as follows:
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to Debt Securities of any particular
series, the Trustee for the Debt Securities of such series
shall give to Holders of Debt Securities of that series, in
the manner set forth in Section 106, notice of such default
known to such Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case
of a default in the payment of the principal of (or premium,
if any) or interest or Additional Amounts, if any, on any Debt
Security of that series, or in the deposit of any sinking fund
payment with respect to Debt Securities of that series, such
Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of
such Trustee in good faith determines that the withholding of
such notice is in the interest of the Holders of Debt
Securities of that series; and provided, further, that in the
case of any default of the character specified in
Section 501(3) with respect to Debt Securities of that series
no such notice to Holders shall be given until at least
60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of
Default with respect to Debt Securities of that series.
Section 1.8. Section 801(1) of the Indenture is
hereby amended to read in its entirety as follows:
(1)(a) either (i) the Company shall be the
continuing corporation or (ii) the Person (if other than the
Company) formed by such consolidation or into which the
Company is merged or the Person which acquired by sale,
assignment, conveyance, transfer, lease or disposition of all
or substantially all of the properties and assets of the
Company as an entirety (the "Surviving Entity") (x) shall be
a Person organized under the laws of the United States of
America or any State thereof or the District of Columbia, or
the Bahamas, Barbados, Bermuda, the British Virgin Islands,
the Cayman Islands, any of the Channel Islands, the
Netherlands Antilles or such other jurisdiction, if any, as
may be set forth in the Board Resolution establishing the Debt
Securities of a particular series and (y) shall expressly
assume by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium
and Additional Amounts, if any) and interest on all the Notes
and the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or
observed and (b) in the event that the Company or the
Surviving Entity is organized in a jurisdiction other than the
United States of America or any State thereof or the District
of Columbia that is different from the jurisdiction in which
the obligor on the Notes was organized immediately before
giving effect to the transaction:
(i) the Company or the Surviving Entity shall
deliver to the Trustee under the Indenture an Opinion of
Counsel stating that (x) the obligations of the Company
or the Surviving Entity under the Indenture are
enforceable under the laws of the new jurisdiction of its
formation, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from
time to time in effect and to general principles of
equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in
equity or at law and (y) the Holders of Notes will not
recognize any income, gain or loss for U. S. federal
income tax purposes as a result of the transaction and
will be subject to U.S. federal income tax on the same
amount and in the same manner and at the same times as
would have been the case if such transaction had not
occurred;
(ii) the Company or the Surviving Entity shall agree
in writing to (x) (1) submit to the jurisdiction of any
court of the State of New York or any United States
Federal court sitting, in each case, in the Borough of
Manhattan, the City of New York, New York, United States
of America and any appellate court from any thereof, (2)
waive any immunity from the jurisdiction of such courts
over any suit, action or proceeding that may be brought
in connection with the Indenture or the Debt Securities
and (3) agree that final judgment in any such suit,
action or proceeding brought in such court shall be
conclusive and binding upon the Company or the Surviving
Entity and may be enforced in any court the jurisdiction
of which the Company or the Surviving Entity is subject
to by a suit upon such judgment; provided that service of
process is effected in the manner provided in clause (y)
below; and (y) shall (1) irrevocably appoint an agent for the
service of process in the Borough of Manhattan, the City of
New York, New York, United States of America, for so long as
any of the Debt Securities are outstanding or the Company or
the Surviving Entity irrevocably appoints a successor, (2)
represent and warrant to the Trustee the acceptance of
such appointment by such agent, (3) take any and all
action, including the filing of any and all documents and
instruments, that may be necessary to continue such
appointment in full force and effect and (4) agree that
service of process upon such agent and written notice of
such service to the Company or the Surviving Entity shall
be deemed, in every respect, effective service of process
upon the Company;
(iii) the Company or the Surviving Entity shall
agree in writing to pay Additional Amounts with respect
to the Company, except that such Additional Amounts shall
relate to any withholding tax whatsoever regardless of
any change of law, subject to exceptions substantially
similar to those contained in the Indenture; and
(iv) the Board of Directors of the Company or the
Surviving Entity shall determine, which determination
shall be conclusive and evidenced by a Board Resolution
delivered to the Trustee, in good faith that such
transaction will have no material adverse effect on any
Holder of Notes.
Section 1.9. Section 902(1) is amended by adding
"or change the currency in which, the principal of or any
premium or interest (including Additional Amounts) on, any
Debt Security is payable" to the end thereof.
Section 1.10. The Indenture is hereby amended by
adding Article Thirteen as follows:
ARTICLE THIRTEEN
ADDITIONAL AMOUNTS
SECTION 1301. Applicability of this Article. If
any series of Debt Securities provides for the payment of
Additional Amounts, the Company agrees to pay to the Holder of
any such Debt Security Additional Amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of or any premium or interest on,
or in respect of, any Debt Security of any series or the net
proceeds received on the sale or exchange of any Debt Security
of any series, such mention shall be deemed to include mention
of the payment of Additional Amounts provided by the terms of
such series established hereby or pursuant hereto to the
extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms,
and express mention of the payment of Additional Amounts (if
applicable) in any provision hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this
Indenture, if the Debt Securities of a series provide for the
payment of Additional Amounts, at least 10 days prior to the
first Interest Payment Date with respect to such series of
Debt Securities (or if the Debt Securities of such series
shall not bear interest prior to Maturity, the first day on
which a payment of principal is made), and at least 10 days
prior to each date of payment of principal or interest if
there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the
Company shall furnish to the Trustee and the principal Paying
Agent or Paying Agents, if other than the Trustee, an
Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of or
interest on the Debt Securities of such series shall be made
to Holders of Debt Securities of such series who are United
States Aliens without withholding for or on account of any
tax, assessment or other governmental charge described in the
Debt Securities of such series. If any such withholding shall
be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such
payments to such Holders of Debt Securities, and the Company
agrees to pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Debt
Securities. The Company covenants to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against,
any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to
this Section.
Section 1.11. The Indenture is hereby amended by
adding Article Fourteen as follows:
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article. If any
series of Debt Securities is denominated in a currency other
than that of the United States and unless otherwise provided
in the terms of such series of Debt Securities, whenever this
Indenture provides for any action by, the determination of the
rights of, or any distribution to, Holders of Debt Securities
of such series, the amount of such Debt Securities shall be
deemed to be that amount of United States Dollars that could
be obtained for such amount of Debt Securities on the basis of
the spot rate of exchange into United States Dollars for the
currency in which such Debt Securities are denominated (as
evidenced to the Trustee by an Officer's Certificate) as of
the date of such action, determination of rights or
distribution (as evidenced to the Trustee by an Officer's
Certificate).
ARTICLE II
MISCELLANEOUS
Section 2.1. This Third Supplemental Indenture may
be executed in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts
together shall constitute but one and the same instrument.
Section 2.2. All provisions of this Third
Supplemental Indenture shall be deemed to be incorporated in,
and made part of, the Indenture; and the Indenture, as
supplemented by this Third Supplemental Indenture, shall be
read, taken and construed as one and the same instrument.
Section 2.3. In case any provision in this Third
Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.4. Nothing in this Third Supplemental
Indenture, express or implied, shall give to any Person (other
than the parties hereto, any Debt Security Registrar, any
Paying Agent, and Authenticating Agent and their successors
under the Indenture, and the Holders of the Debt Securities),
any benefit or any legal or equitable right, remedy or claim
under the Indenture.
Section 2.5. This Third Supplemental Indenture
shall be governed by and construed in accordance with the laws
of the State of New York.
IN WITNESS WHEREOF, the parties have caused this
Third Supplemental Indenture to be signed and acknowledged by
their respective officers thereunto duly authorized as of the
day and year first above written.
CHIQUITA BRANDS INTERNATIONAL, INC.,
[Seal]
by
/s/ Gerald R. Kondritzer
----------------------------------
Name: Gerald R. Kondritzer
Title: Vice President & Treasurer
[Attest] Donna K. Leonard
FIFTH THIRD BANK, Trustee,
[Seal]
by
/s/ Kerry Byrne
----------------------------------
Name: Kerry Byrne
Title: Vice President
[Attest] Thomas P. Huelsman
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 22nd day of June, 1999, before me personally came
Kerry Byrne to me known, who being by me duly sworn, did depose and
say that he resides at 2341 Eastmill Avenue, that he is a Vice
President of FIFTH THIRD BANK, one of the corporations described
in and which executed the above instrument; that he knows the
corporate seal of said corporation; that one of the seals affixed
to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation;
and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate
first above written.
/s/ Amy L. Hartung
---------------------------
Notary Public
Commission Expires:4-7-2003
[Seal]
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 22nd day of June, 1999, before me personally
came Gerald R. Kondritzer to me known, who being by me duly
sworn, did depose and say that he resides at 2324 Madison
Rd., Cincinnati Ohio, that he is a Vice President & Treasurer
of CHIQUITA BRANDS INTERNATIONAL, INC., one of the corporations
described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that one of the
seals affixed to the said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors
of said corporation; and that he signed his name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate first
above written.
/s/ Barbara Howland
-----------------------------
Notary Public
Commission Expires: 7-27-2003
[Seal]
EXHIBIT 4.3
Certificate of Actions Taken by
Steven G. Warshaw, President
Pursuant to Authority Delegated by the
Executive Committee of the Board of Directors
and by the Board of Directors of
Chiquita Brands International, Inc.,
in Approving the
Terms of 10% Senior Notes due 2009
Steven G. Warshaw, President of Chiquita Brands International, Inc.,
pursuant to authority delegated by the Executive Committee of the Board of
Directors and by the Board of Directors, hereby approves the terms of the
Company's 10% Senior Notes due 2009. This Certificate, referred to herein
as a Certificate of Terms, shall constitute a "Board Resolution" as
defined in the Indenture.
The Company is authorized to issue, pursuant to its Registration
Statement No. 333-00789 (the "Registration Statement") under the
Securities Act of 1933 and in accordance with the Indenture dated as of
February 15, 1994 (the "Indenture") between the Company and The Fifth
Third Bank, as Trustee (the "Trustee"), as supplemented to date, a series
of senior debt securities with the following terms:
(1) The title of the series of senior debt securities shall be 10% Senior
Notes due 2009 (the "Notes").
(2) The aggregate principal amount of Notes which may be authenticated
and delivered under the Indenture shall be $275,000,000; the aggregate
principal amount of Notes being issued under the Registration Statement
and which may be initially authenticated and delivered under the Indenture
pursuant to this Certificate of Terms shall be $200,000,000 (the "Issued
Notes").
(3) The Notes shall mature on June 15, 2009.
(4) Interest in respect of the Notes shall accrue at the rate of 10% per
annum. Interest in respect of the Issued Notes shall accrue from June 22,
1999. Interest in respect of the Notes shall be payable on Interest
Payment Dates of June 15 and December 15 of each year, commencing, in the
case of the Issued Notes, December 15, 1999. The Regular Record Dates for
interest payable on Interest Payment Dates shall be June 1 and December 1,
respectively.
(5) In addition to payment by means provided in the Indenture, and
subject to the provisions of Section (12) below, payments in respect of
the principal of, premium, if any, Additional Amounts, if any, and
interest on any Notes shall be payable at, and the Notes may be
surrendered for registration of transfer or for exchange at, the office or
agency of the Company maintained for such purposes, which initially shall
be American Security Transfer Company, Limited Partnership d/b/a
Securities Transfer Company, Cincinnati, Ohio.
(6) Notices and demands to or upon the Company in respect of the Notes
and the Indenture may be addressed to the Company at its principal
executive offices, 250 East Fifth Street, Cincinnati, Ohio 45202, Attn:
General Counsel.
(7) Each of the definitions set forth in Exhibit A attached to this
resolution shall apply to the Notes and shall be deemed to be incorporated
by reference into and made a part of this Certificate of Terms and, with
respect to the Notes, of the Indenture.
(8) The Notes are subject to redemption on the terms set forth in Exhibit
B attached to this Certificate of Terms, which shall be deemed to be
incorporated by reference into and made a part of this Certificate of
Terms and, with respect to the Notes, of the Indenture. The Notes may
also be subject to purchase by the Company prior to maturity, at the
option of Holders, pursuant to Section 1014 of Exhibit C attached to this
Certificate of Terms.
(9) The Company shall have no sinking fund or analogous obligations in
respect of the Notes.
(10) Each of the covenants set forth in Exhibit C attached to this
Certificate of Terms shall apply to the Notes and shall be deemed to be
incorporated by reference into and made a part of this Certificate of
Terms and, with respect to the Notes, of the Indenture.
(11) The Notes shall rank pari passu with other existing and future
unsecured senior indebtedness of the Company.
(12) The Notes initially shall be issued in the form of one Global Note
held in book-entry form; however, beneficial ownership interests in the
Notes may be held by purchasers ("Beneficial Owners") in amounts of $1,000
and integral multiples thereof. The Global Note shall be issued in
permanent form and shall be deposited with the Depository Trust Company or
its nominee ("DTC"), as U.S. Depositary. For so long as DTC serves as
U.S. Depositary, the provisions of the Letter of Representations, entered
into between the Company and DTC, shall be applicable to the Notes.
Beneficial Owners of Notes evidenced by the Global Note will not be
considered Holders thereof under the Indenture for any purpose, including
with respect to the giving of any directions, instructions or approvals to
the Trustee thereunder.
(13) The Global Note representing the Notes shall be substantially in
the form attached hereto as Exhibit D, with such changes as the officer
executing the Global Note may approve, such approval to be conclusively
evidenced by the execution thereof by manual or facsimile signature.
All capitalized terms used but not defined in this Certificate of
Terms, including Exhibits A, B, C and D to this Certificate of Terms,
shall have the meanings set forth in the Indenture.
/s/ Steven G. Warshaw
---------------------------
Name: Steven G. Warshaw
Title: President
<PAGE>
Exhibit A
Definitions
"Acquired Indebtedness" means Indebtedness of a Person (i) existing
at the time such Person becomes a Subsidiary or (ii) assumed in connection
with the acquisition of assets of such Person.
"Adjusted Consolidated Assets" on any date means the amount of (i)
all assets of the Company and the Subsidiaries on a consolidated basis
less (ii) all Indebtedness of Subsidiaries on a consolidated basis, in
each case as determined as of the last day of the immediately preceding
fiscal quarter in accordance with GAAP.
"Calculation Date" has the meaning specified in the definition
"Change of Control."
"Change of Control" means an event or series of events by which (i)
any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) other than Permitted Lindner Holders is or becomes 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 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 50% of the total voting power of all
Voting Shares of the Company 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 Company; (ii) the
Company consolidates with or merges into another Person or conveys,
transfers or leases all or substantially all of its assets to any Person,
or any corporation consolidates with or merges into the Company, in either
event pursuant to a transaction in which or as a result of which the
outstanding Voting Shares of the Company are changed into or exchanged for
cash, securities or other property, other than any such transaction (x)
between the Company and a wholly-owned Subsidiary; (y) in which the
holders of the outstanding Voting Shares of the Company immediately prior
to the transaction, own, directly or indirectly, not less than a majority
of the outstanding Voting Shares of the Surviving Entity immediately after
the transaction in substantially the same proportion as before the
transaction or (z) in connection with which the Permitted Lindner Holders
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
Surviving Entity; (iii) the Company or any Subsidiary purchases or
otherwise acquires, directly or indirectly, beneficial ownership of 40% or
more of the Company's capital stock within any 12-month period; (iv) on
any date, the individuals who at the beginning of the two-year period
immediately preceding such date constituted the Company's Board of
Directors (together with any new directors whose election by the Company's
Board of Directors, or whose nomination for election by the Company's
shareholders, was approved by a vote of at least 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; or (v) on any day (a "Calculation Date") the Company makes
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 Company or purchases or otherwise
acquires Capital Stock (other than upon the conversion of a security
convertible into Capital Stock) of the Company and the sum of the Fair
Market Value of such distribution or purchase, plus the Fair Market Value
of all other such distributions and purchases which have occurred during
the preceding 12-month period, exceeds 40% of the Fair Market Value of the
Company's outstanding Capital Stock. This percentage is calculated on
each Calculation Date by determining the percentage of the Fair Market
Value of the Company's outstanding Capital 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 preceding 12-month
period.
"Change of Control Triggering Event" means the occurrence of both
a Change of Control and a Rating Decline.
"Comparable Treasury Issue" means the United States treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the earliest optional redemption of the Notes that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the earliest optional redemption of such Notes.
The Trustee, after consultation with the Company, shall select the
Independent Investment Banker that will select the Comparable Treasury
Issue.
"Comparable Treasury Price" means, with respect to any Redemption
Date for a redemption under Paragraph 2 of Exhibit B of this Certificate
of Terms, (a) the yield for the Comparable Treasury Issue (expressed in
each case as a yield to maturity) on the third business day preceding such
Redemption Date, as set forth in the most recently published statistical
release designated "H.15(519)" (or any successor release) published by the
Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States treasury securities adjusted to
constant maturity under the caption "Treasury Constant Maturities" or
(b) if such release (or any successor release) is not published or does
not contain such prices on such business day, the average of the Reference
Quotations for such Redemption Date.
"Consolidated Interest Expense" means for any period the sum of (i)
the aggregate of the interest expense on Indebtedness of the Company and
its Subsidiaries for such period, on a consolidated basis, plus (ii),
without duplication, that portion of capital lease rentals of the Company
and its Subsidiaries representative of the interest factor for such
period, in each case as determined in accordance with GAAP.
"Consolidated Net Income" means for any period the net income or
loss of the Company and its Subsidiaries for such period on a consolidated
basis as determined in accordance with GAAP adjusted by excluding the
after-tax effect of (i) net gains or losses in respect of dispositions of
assets other than in the ordinary course of business, (ii) any gains or
losses from currency exchange transactions not in the ordinary course of
business consistent with past practice, (iii) the net income of any
Subsidiary to the extent that dividends or distributions by such
Subsidiary in the amount of such net income are restricted or prohibited
and (iv) any gains or losses attributable to write-ups or write-downs of
assets or liabilities other than in the ordinary course of business.
"Consolidated Tax Expense" means for any period the aggregate of the
federal, state, local and foreign income tax expense of the Company and
its consolidated Subsidiaries for such period, determined in accordance
with GAAP.
"Disqualified Stock" has the meaning specified in Section 1012.
"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. Fair Market Value shall be determined by the Board of
Directors acting in good faith and shall be evidenced by a Board
Resolution delivered to the Trustee.
"Fixed Charge Coverage Ratio" means for any period the ratio of (i)
the sum of Consolidated Net Income, Consolidated Interest Expense and
Consolidated Tax Expense, plus all depreciation and, without duplication,
all amortization, in each case, for such period, of the Company and its
Subsidiaries on a consolidated basis, all as determined in accordance with
GAAP, to (ii) Consolidated Interest Expense for such period; provided,
however, that in making such computation, the Consolidated Interest
Expense attributable to interest on any Indebtedness computed on a pro
forma basis and bearing a floating interest rate shall be computed as if
the rate in effect on the date of computation had been the applicable rate
for the entire period.
"Food-Related Businesses" means businesses or operations involving
food or food products, including, without limitation, sourcing,
processing, transportation, shipping and distribution, and related assets
and infrastructure.
"GAAP" or "generally accepted accounting principles" means generally
accepted accounting principles as in effect and as implemented by the
Company on the issue date of the Issued Notes.
"Independent Investment Banker" means Lehman Brothers Inc., Salomon
Smith Barney Inc. and their respective successors; provided, however, that
if any of the foregoing shall cease to be a primary U.S. government
securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Intercompany Debt Obligations" means any Indebtedness of the
Company or any Subsidiary which, in the case of the Company, is owing to
any Subsidiary and which, in the case of any Subsidiary, is owing to the
Company or any other Subsidiary.
"Investment Grade" means BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such ratings by S&P or Moody's or any other
Rating Agency permitted to be used.
"Issued Notes" means $200,000,000 aggregate principal amount of
Notes initially authenticated and delivered under the Indenture pursuant
to this Certificate of Terms.
"Makewhole Rate" means, with respect to any Redemption Date for a
redemption under Paragraph 2 of Exhibit B of this Certificate of Terms,
the rate per annum equal to the yield to maturity of the Comparable
Treasury Issue, compounded semi-annually, assuming a price for such
Comparable Treasury Issue (expressed as a yield to maturity) equal to the
Comparable Treasury Price for such Redemption Date.
"Moody's" means Moody's Investors Services, Inc.
"Notes" means the Company's 10% Senior Notes due 2009 issued under
the Indenture.
"Permitted Indebtedness" means (i) Indebtedness of the Company or
any Subsidiary outstanding on the date of issuance of the Issued Notes;
(ii) the Issued Notes; (iii) Indebtedness of the Company not in excess of
$250 million in principal amount outstanding at any time under revolving
credit, term loan or bank facilities and any refinancings, replacements,
renewals, extensions, substitutions, refundings, deferrals,
restructurings, amendments, supplements or modifications of such
Indebtedness; provided, however, that the proceeds of such Indebtedness
referred to in this clause (iii) shall be invested in, or used in
connection with, Food-Related Businesses; (iv) Indebtedness of a
Subsidiary (including Acquired Indebtedness), which is non-recourse to the
Company, the proceeds of which are or have been used for working capital
purposes or for capital expenditures in Food-Related Businesses; (v)
Acquired Indebtedness of a Subsidiary incurred in the acquisition of a
Food-Related Business; provided, however, that (A) such Acquired
Indebtedness is non-recourse to the Company and not incurred in
contemplation of such acquisition and (B) the Company's Fixed Charge
Coverage Ratio for the four full fiscal quarters immediately preceding
such acquisition, on a pro forma basis after giving effect to such
acquisition, exceeds the Company's Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding such acquisition; (vi)
Indebtedness of (A) the Company or any Subsidiary denominated in or
measured by the currency of any country other than the United States,
which Indebtedness is incurred for hedging purposes in the ordinary course
of business consistent with past practice or (B) the Company or any other
Subsidiary (in either case, other than for borrowed money) incurred in
connection with Indebtedness of a Subsidiary referred to in clause (A)
above which is (y) a guarantee of such Subsidiary Indebtedness, or (z) a
reimbursement obligation relating to a letter of credit supporting such
Subsidiary Indebtedness; (vii) Intercompany Debt Obligations; provided,
however, that the obligations of the Company with respect to such
Indebtedness shall be evidenced by an intercompany note and shall be
subordinated in right of payment from and after such time as all Notes
issued and outstanding shall become due and payable (whether at Stated
Maturity, by acceleration or otherwise) to the payment and performance of
the Company's obligations under the Notes; (viii) guarantees by a
Subsidiary, which are non-recourse to the Company, of Indebtedness of a
Person that is not the Company, another Subsidiary nor a Related Person;
provided, however, that the aggregate amount of Indebtedness so guaranteed
at any time shall not exceed $15 million principal amount outstanding; and
provided, further, that the proceeds of such Indebtedness are or have been
used by such Person in Food-Related Businesses; and (ix) additional
Indebtedness of the Company (including Acquired Indebtedness) the
aggregate principal amount of which outstanding at any time does not
exceed 5% of Adjusted Consolidated Assets.
"Permitted Liens" means (i) Liens existing on the date of the
issuance of the Issued Notes on assets of the Company or any Subsidiary;
(ii) Liens on assets acquired after the date of the issuance of Issued
Notes or Liens to secure the purchase price of assets to be acquired;
(iii) Liens on properties of any Subsidiary securing Indebtedness the
proceeds of which are or have been used for working capital purposes or
capital expenditures relating to Food-Related Businesses; (iv) Liens
securing Indebtedness of (A) the Company or any Subsidiary denominated in
or measured by the currency of any country other than the United States,
which Indebtedness is incurred for hedging purposes in the ordinary course
of business consistent with past practice and (B) the Company or any other
Subsidiary, to the extent permitted under clause (vi)(B) of Permitted
Indebtedness; (v) Liens of a Person existing at the time such Person
becomes a Subsidiary or assumed in connection with the acquisition of
assets of such Person; (vi) Liens on working capital assets; (vii) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of the foregoing; (viii) carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts not
overdue for a period of more than 90 days or being contested in good faith
by appropriate proceedings; (ix) judgment Liens and other similar Liens
arising in the ordinary course of business; provided, however, that the
execution or other enforcement thereof is being effectively stayed, the
claims secured thereby are being actively contested in good faith and by
appropriate proceedings and the judgment would not otherwise constitute an
Event of Default or an event which, after notice or lapse of time, or
both, would become an Event or Default under the Indenture; (x) Liens
securing Intercompany Debt Obligations; (xi) Liens for taxes not yet due
or payable under law or being contested in good faith; (xii)
Liens upon property of a foreign Subsidiary to secure Indebtedness of that
foreign Subsidiary; (xiii) Liens in accordance with customary banking
practice to secure Indebtedness in connection with foreign trade; (xiv)
easements, rights-of-way, restrictions and other similar encumbrances to
the extent incurred in the ordinary course of business; (xv) pledges or
deposits in connection with workers' compensation, unemployment insurance
and other social security legislation; and (xvi) deposits to secure the
performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds,
interest rate, foreign exchange and commodity hedging transactions and
other obligations of a like nature incurred in the ordinary course of
business.
"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.
"Primary Treasury Dealer" has the meaning specified in the
definition of Independent Investment Banker.
"Public Equity Offering" means an underwritten public offering of
the Company's common stock, par value $.01 per share, pursuant to an
effective registration statement under the Securities Act of 1933, as
amended, or any comparable registration procedure under a successor act.
"Purchase Date" means a date fixed by the Company that is no earlier
than 30 days and no later than 60 days after the mailing of notice to
Holders of Notes of the occurrence of a Change of Control Triggering
Event.
"Rating Agencies" means S&P and Moody's or, if S&P or Moody's or
both shall not make a rating of the Notes publicly available, a nationally
recognized securities rating agency or agencies, as the case may be,
selected by the Company, which shall be substituted for S&P or Moody's or
both, as the case may be.
"Rating Category" means (i) with respect to S&P, any of the
following categories: BB, B, CCC, CC, C and D (or equivalent successor
categories); (ii) with respect to Moody's, any of the following
categories: Ba, B, Caa, Ca, C and D (or equivalent successor categories);
and (iii) the equivalent of any such category of S&P or Moody's used by
another Rating Agency. In determining whether the rating of the Notes has
decreased by one or more gradations, gradations within Rating Categories
(+ and - for S&P, 1, 2 and 3 for Moody's or the equivalent gradations for
another Rating Agency) shall be taken into account (e.g., with respect to
S&P, a decline in a rating from BB+ to BB, as well as from BB- to B+, will
constitute a decrease of one gradation).
"Rating Date" means the date which is 90 days prior to the earlier
of (i) a Change of Control and (ii) public notice of the occurrence of a
Change of Control or of the intention by the Company to effect a Change of
Control.
"Rating Decline" means the occurrence of the following on, or within
30 days after, the earlier of (i) the occurrence of a Change of Control
and (ii) the date of public notice of the occurrence of a Change of
Control or of the public notice of the intention of the Company to effect
a Change of Control (which 30 day period shall be extended so long as the
rating of the Notes is under publicly announced consideration for possible
downgrading by any of the Rating Agencies): (a) in the event the Notes are
rated by either Rating Agency on the Rating Date as Investment Grade, the
rating of the Notes shall be reduced below Investment Grade by both Rating
Agencies; or (b) in the event the Notes are rated below Investment Grade
by both Rating Agencies on the Rating Date, the rating of the Notes by
either Rating Agency shall be decreased by one or more gradations
(including gradations within Rating Categories as well as between Rating
Categories).
"Reference Quotations" means, with respect to each Independent
Investment Banker and any Redemption Date for a redemption under Paragraph
2 of Exhibit B to this Certificate of Terms, the average, as determined by
the Trustee, of the yields for the Comparable Treasury Issue (expressed in
each case as a yield to maturity) quoted in writing to the Trustee by such
Independent Investment Banker at 5:00 p.m. on the third business day
preceding such Redemption Date.
"Refinancing" has the meaning specified in the definition
"Refinancing Indebtedness."
"Refinancing Indebtedness" means any renewals, extensions,
substitutions, refundings, refinancings, replacements, deferrals,
restructurings, amendments, supplements or modifications of any
Indebtedness (each, a "Refinancing") of the Company or any of its
Subsidiaries outstanding on the date of the issuance of Issued Notes or
other Indebtedness permitted to be incurred by the Company or any of its
Subsidiaries pursuant to the terms of the Indenture (other than
Indebtedness referred to in clauses (i), (iii), (iv), (v), (vi), (vii),
(viii) or (ix) of the definition of Permitted Indebtedness), but only to
the extent that (i) the aggregate amount of Indebtedness represented
thereby is not increased by such Refinancing, (ii) the Indebtedness
incurred in such Refinancing is not incurred by a Subsidiary if the
Company initially incurred the Indebtedness being renewed, extended,
substituted, refunded, refinanced, replaced, deferred, restructured,
amended, supplemented or modified and (iii) the Indebtedness incurred in
such Refinancing is not incurred by the Company if a Subsidiary initially
incurred the Indebtedness being renewed, extended, substituted, refunded,
refinanced, replaced, deferred, restructured, amended, supplemented or
modified, and such Indebtedness was non-recourse to the Company.
"Related Person" means (i) any Affiliate of the Company, (ii) any
Person who directly or indirectly holds 10% or more of any class of
Capital Stock of the Company, (iii) with respect to any such Person who is
a natural Person, any other natural Person having a relationship with such
Person by blood, marriage or adoption not more remote than first cousin
and (iv) any officer or director of the Company.
"Restricted Payments" has the meaning specified in Section 1012.
"S&P" means Standard and Poor's Rating Services, a division of
McGraw Hill, Inc.
"Subordinated Indebtedness" means the Company's 7% Convertible
Subordinated Debentures due March 28, 2001 which are outstanding on the
date of this Certificate of Terms.
"Surviving Entity" means in connection with a consolidation, merger,
conveyance or transfer described in Article VIII or in the definition of
Change of Control, the Person (if other than the Company) referred to in
clause (a) (ii) of Section 801(1).
"United States Alien" means any person who is, for United States
federal income tax purposes, as to the United States: (1) a foreign
corporation; (2) a nonresident alien individual; (3) a nonresident alien
fiduciary of a foreign estate or trust; or (4) a foreign partnership any
member of which is, as to the United States, a foreign corporation, a
nonresident alien individual or a nonresident alien fiduciary of a foreign
estate or trust.
"Voting Shares" means 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 stock of any other class or classes shall
have or might have voting power by reason of the happening of any
contingency).
<PAGE>
Exhibit B
Redemption Provisions
The Notes are subject to redemption at the option of the Company, in
whole (except as provided in Paragraph 4, below) or in part, upon not less
than 30 nor more than 60 days' notice, as set forth below. The provisions
of Article XI of the Indenture shall apply to any redemption described in
Paragraphs 1, 2, 3 or 4 below.
1. Redemption after June 15, 2004.
On or after June 15, 2004 the Notes will be subject to redemption at
the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest thereon to but not including
the applicable Redemption Date, if redeemed during the twelve-month period
beginning on June 15 of the years indicated below:
Year Percentage
---- ----------
2004. . . . . . . . . . . . . 105.000%
2005. . . . . . . . . . . . . 103.333%
2006. . . . . . . . . . . . . 101.667%
2007 and thereafter . . . . . 100.000%
;provided, however, that if the notice of redemption is mailed prior to
an Interest Payment Date but the Redemption Date falls after the same
Interest Payment Date, then the applicable interest shall be paid on the
Interest Payment Date and the accrued and unpaid interest to the
Redemption Date shall be that interest accruing from the Interest Payment
Date to the Redemption Date.
2. Makewhole Redemption.
The Company may choose to redeem the Notes at any time prior to June
15, 2004 upon the terms and subject to the conditions set forth in this
paragraph. The Company may redeem all or any portion of the Notes, at
once or from time to time, after giving the required notice under the
Indenture. To redeem the Notes prior to June 15, 2004, the Company must
pay a Redemption Price equal to the greater of:
(a) 100% of the principal amount of the Notes to be redeemed, and
(b) the sum of the present values of (i) the Redemption Price of
the Notes at June 15, 2004 (such Redemption Price being 105%, as set forth
in Paragraph 1 of this Exhibit B to the Certificate of Terms) and (ii) any
interest due on the Notes through June 15, 2004, in each case discounted
to the date of redemption on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Makewhole Rate plus 50 basis
points, plus, in either case, accrued and unpaid interest, if any, to the
Redemption Date; provided, however, that if the notice of redemption is
mailed prior to an Interest Payment Date but the Redemption Date falls
after the same Interest Payment Date, then the applicable interest shall
be paid on the Interest Payment Date and the accrued and unpaid interest
to the Redemption Date shall be that interest accruing from the Interest
Payment Date to the Redemption Date.
Any notice to Holders of Notes of such a redemption needs to include
the appropriate calculation of the Redemption Price, but does not need to
include the Redemption Price itself. The actual Redemption Price,
calculated as described above, must be set forth in an Officers'
Certificate delivered to the Trustee no later than two business days prior
to the Redemption Date.
3. Equity Clawback.
At any time and from time to time, prior to June 15, 2002, the
Company may redeem up to a maximum of 35% of the original aggregate
principal amount of the Notes with the proceeds of one or more Public
Equity Offerings, at a Redemption Price equal to 110% of the principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the
Redemption Date; provided, however, that after giving effect to any such
redemption, at least 65% of the original aggregate principal amount of the
Notes remains outstanding; provided, however, that if the notice of
redemption is mailed prior to an Interest Payment Date but the Redemption
Date falls after the same Interest Payment Date, then the applicable
interest shall be paid on the Interest Payment Date and the accrued and
unpaid interest to the Redemption Date shall be that interest accruing
from the Interest Payment Date to the Redemption Date. Any such
redemption shall be made within 75 days of such Public Equity Offering
upon not less than 30 nor more than 60 days' prior notice.
4. Tax Redemption
(a) The Company may redeem the Notes at its option as a whole at any
time, upon provision of notice in compliance with Sections 106 and 1104,
at a redemption price equal to 100% of the outstanding principal amount
thereof, plus accrued interest to the Redemption Date and Additional
Amounts, if any, if the Company determines that:
(1) as a result of any change in or amendment to the laws
affecting taxation (or any regulations or rulings promulgated thereunder)
of the United States, or any of its political subdivisions, or any change
in the official application or interpretation of such laws, regulations or
rulings, the Company has or will become obligated to pay Additional
Amounts with respect to the Notes or
(2) any action (including any of those specified in (1) above) has
been taken by any taxing authority of, or any action has been brought in
a court of competent jurisdiction in, the United States, whether or not
such action was taken or brought with respect to the Company, or any
change, amendment, application or interpretation shall be officially
proposed on or after the initial issue date of the Notes, which in any
such case, in the written opinion of independent legal counsel of
recognized standing, results in a substantial probability that the Company
will be required to pay Additional Amounts with respect to the Notes
and, in the case of (1) and (2) above, such obligation cannot be avoided
by the Company taking reasonable measures available to it which do not
require undue effort or expense.
(b) All payments of principal of, premium, if any, and interest on the
Notes will be made without deduction or withholding for or on account of
any present or future tax, assessment or other governmental charge, of
whatever nature, imposed or levied by or within the United States or by or
within any political subdivision or taxing authority thereof or therein,
except as required by law. The Company will pay such additional amounts
("Additional Amounts") as may be necessary so that every net payment on
the Notes to a Holder thereof who is a United States Alien, after
deduction or withholding for or on account of any present or future tax,
assessment or other governmental charge imposed upon such Holder, or by
reason of the making of any such payment, by or within the United States,
or any political subdivision or taxing authority thereof or therein, will
not be less than the amount provided for in such Note to be due and
payable; provided that the Company shall not be required to make any
payment of Additional Amounts for or on account of:
(1) any tax, assessment or other governmental charge which
would not have been imposed but for (A) the existence of any present or
former connection between such Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over, such
Holder, if such Holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been present therein, being or having been a
citizen or resident thereof, being or having been engaged in a trade or
business therein, or having or having had a permanent establishment
therein, (B) the failure of such Holder to comply with any certification,
identification or information reporting requirements under the income tax
laws and regulations of the United States, without regard to a tax treaty,
or of any political subdivision or taxing authority thereof or therein, to
establish entitlement to an exemption from withholding as a United States
alien or (C) in cases where presentation is required for payment, the
presentation of such Note or interest coupon for payment on a date more
than 15 days after the date on which such payment became due and payable
or the date on which such payment is duly provided for, whichever occurs
later;
(2) any estate, inheritance, gift, sales, transfer, personal
property or any similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is
payable other than by withholding from payments of principal of, premium,
if any, or interest on the Notes;
(4) any tax, assessment or other governmental charge imposed
by reason of such Holder's past or present status as a personal holding
company, foreign personal holding company, passive foreign investment
company, controlled foreign corporation or foreign tax exempt organization
with respect to the United States or as a corporation that accumulates
earnings to avoid United States federal income tax, as each of these is
defined for United States Federal income tax purposes;
(5) any tax, assessment or other governmental charge which is
required to be withheld by any paying agent from payments of principal of,
premium, if any, or interest on the Notes if such payment can be made
without such withholding by at least one other paying agent;
(6) any tax, assessment or other governmental charge imposed
by reason of such Holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of
all classes of Capital Stock or by reason of such Holder being a
controlled foreign corporation with respect to the Company; or
(7) any combination of items (1), (2), (3), (4), (5) or (6);
nor shall Additional Amounts be paid to any Holder who is not the
beneficial owner of such Note to the extent that the beneficial owner
thereof would not have been entitled to payment of such Additional Amounts
had such beneficial owner been the Holder of such Note.
(c) Notwithstanding anything in this Certificate of Terms or the
Indenture to the contrary, the Company's obligation to pay Additional
Amounts under the circumstances described in, and pursuant to the terms
and limitations of, Article XIII of the Indenture and this Section 4 of
Exhibit B in this Certificate of Terms is not subject to defeasance of any
kind under Article Four or Section 1015.
<PAGE>
Exhibit C
Covenants
SECTION 803. Additional Provisions.
In addition to the provisions set forth in Section 801:
(a) The Company shall not consolidate with or merge into any other
corporation or sell, convey, assign, transfer, lease or otherwise dispose
of all or substantially all of its properties and assets as an entirety to
any Person unless immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company or
a Subsidiary which becomes the obligation of the Company or any of its
Subsidiaries in connection with or as a result of such transaction as
having been incurred at the time of such transaction), the Company (in the
case of clause (i) of Section 801(1) of the Indenture) or the Surviving
Entity (in the case of clause (ii) thereof) could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness or Refinancing
Indebtedness) pursuant to Section 1011.
(b) Notwithstanding the foregoing, if the Company effects a
consolidation, merger or sale, conveyance, assignment, transfer, lease or
other disposition of assets, the condition set forth in clause (a) above
shall not apply to a transaction involving a Surviving Entity which is
otherwise subject to the foregoing provisions if (i) the Surviving Entity
(1) was formed for the purpose of effecting such transaction, (2) did not
engage in any business prior to such transaction, (3) immediately prior to
such transaction had no Indebtedness or liabilities, contingent or
otherwise, of any kind whatsoever, (4) immediately after such transaction
had no additional "Indebtedness" or "liabilities", contingent or
otherwise, of any kind whatsoever and (5) immediately after such
transaction was engaged in the same business as the Company was engaged in
immediately prior to such transaction and (ii) the holders of the
outstanding Voting Shares of the Company immediately prior to the
transaction own, directly or indirectly, the outstanding Voting Shares of
the Surviving Entity immediately after the transaction in substantially
the same proportion as before the transaction.
SECTION 1009. Limitations on Liens.
(a) The Company will not, and will not permit any Subsidiary to, create,
assume, incur or suffer to be created, assumed or incurred any Lien upon
any of their respective assets without making effective provision whereby
all the Notes shall be directly secured equally and ratably with the
Indebtedness or other obligations secured by such Lien, so long as any
such Indebtedness or other obligations shall be so secured, except for (i)
Permitted Liens and (ii) Liens securing an aggregate amount of
Indebtedness, which together with the aggregate value of Sale and
Leaseback Transactions permitted by the provisions of Subsection (b) of
Section 1010 hereof (other than such transactions in which debt has been
retired in accordance with the provisions of Subsection (b) of Section
1010 hereof), does not at the time exceed 5% of Adjusted Consolidated
Assets.
(b) The Certificate of a Firm of Independent Public Accountants shall be
conclusive evidence as to the amount, at the date specified in such
Certificate, of Adjusted Consolidated Assets.
SECTION 1010. Limitation on Sale and Leaseback Transactions.
(a) The Company will not sell or transfer, in any transaction or series
of related transactions, any assets with an aggregate fair market value of
$10 million or more relating to Food-Related Business, to any Person
(other than a Subsidiary) with the intention of taking back a lease of
such assets (any transaction or series of transactions subject to the
provisions of this Section 1010 being herein referred to as a "Sale and
Leaseback Transaction"), except a Sale and Leaseback Transaction for a
period of less than three years with the intent that the use of the assets
by the Company will be discontinued on or before the expiration of such
period.
(b) The Company may enter into a Sale and Leaseback Transaction which
would otherwise be prohibited by Subsection (a) of this Section 1010,
provided, that (i) the Company shall apply an amount equal to the value of
the assets subject to the Sale and Leaseback Transaction (A) to build or
purchase capital assets used in the Company's business or (B) to retire
long-term Indebtedness for money borrowed (including the Notes) of the
Company or (ii) the value thereof plus the aggregate Indebtedness
permitted to be secured under the provisions of clause (ii) of Subsection
(a) of Section 1009 does not at the time exceed 5% of Adjusted
Consolidated Assets.
(c) The term "value" shall, for the purpose of this Section 1010 and
Section 1009(a), mean, with respect to a Sale and Leaseback Transaction,
as of any particular time, the amount equal to the greater of (i) the net
proceeds of the sale of the property leased pursuant to such Sale and
Leaseback Transaction or (ii) the Fair Market Value of such property at
the time of entering into such Sale and Leaseback Transaction, in each
such case divided first by the number of full years of the term of the
lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
(d) The Certificate of a Firm of Independent Public Accountants shall be
conclusive evidence as to the amount, at the date specified in such
Certificate, of Adjusted Consolidated Assets.
SECTION 1011. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any Subsidiary to,
create, incur, assume, or guarantee the payment of any Indebtedness
(including Acquired Indebtedness) other than Permitted Indebtedness or
Refinancing Indebtedness, unless after giving effect to such event on a
pro forma basis the Company's Fixed Charge Coverage Ratio for the four
full fiscal quarters immediately preceding such event, taken as one
period, is not less than 2.0 to 1. For the purposes of determining any
particular amount of Indebtedness, there shall not be included the amount
of any guarantees of (or obligations with respect to letters of credit
supporting, or joint or joint and several obligations in respect of)
Indebtedness, the amount of which is otherwise included.
(b) For purposes of determining compliance with this Section 1011, (i) in
the event that an item of Indebtedness meets the criteria of more than one
of the clauses of the definition of Permitted Indebtedness or Refinancing
Indebtedness, the Company, in its sole discretion, shall classify such
item of Indebtedness and shall be required to include the amount and type
of such Indebtedness in only one of such clauses and (ii) the amount of
Indebtedness issued at a price which is less than the principal amount
thereof shall be equal to the amount of the liability in respect thereof
determined in accordance with GAAP.
SECTION 1012. Limitation on Restricted Payments.
(a) The Company shall not, directly or indirectly, (i) declare or pay any
dividend on, or make any distribution in respect of, or purchase, redeem
or retire for value, or permit any of its Subsidiaries, directly or
indirectly, to so purchase, redeem or retire for value, any Capital Stock
of the Company, other than through the issuance solely of the Company's
own Capital Stock or rights thereto, (ii) make any principal payment on,
or redeem, repurchase, defease or otherwise acquire or retire for value,
prior to scheduled principal payment or maturity, Indebtedness of the
Company (excluding Indebtedness of Subsidiaries) which is expressly
subordinate in right of payment to the Notes or permit any of its
Subsidiaries, directly or indirectly, to do so or (iii) make any loan to,
incur, create, assume or suffer to exist any guarantee of Indebtedness of,
or make advancement to, or other investment in, or permit any of its
Subsidiaries to make any loan, incur, create, assume or suffer to exist
any guarantee of Indebtedness of, or make advancement to, or other
investment in, any Related Person of the Company (other than a Subsidiary
of the Company) except for any transaction with an officer or director of
the Company entered into in the ordinary course of business of the Company
(including compensation or employee benefit arrangements with any officer
or director of the Company) (such payments or any other actions described
in (i), (ii) and (iii), collectively, "Restricted Payments") provided,
that the term "Restricted Payment" shall not include the making of any
principal payment on, or redemption, repurchase, defeasance or other
acquisition or retirement for value, prior to scheduled principal payment
or maturity, of (A) any of the Company's Subordinated Indebtedness
existing at the date of the Indenture, February 15, 1994, as long as no
such acquisition or retirement is made with the proceeds of Indebtedness
which has a maturity date earlier than the existing Subordinated
Indebtedness being acquired or retired or (B) Indebtedness of the Company
which is incurred after the date of the Indenture, February 15, 1994, and
expressly subordinated in right of payment to the Notes if such
acquisition or retirement is made with the proceeds of Indebtedness which
is subordinate in right of payment to the Notes and has a maturity date no
earlier than that of the latest maturity date of any Outstanding Notes.
(b) The Company may make a Restricted Payment which would otherwise be
prohibited by Subsection (a) of this Section 1012, provided, that (1) at
the time of and after giving effect to the proposed Restricted Payment no
Event of Default (and no event that, after notice or lapse of time, or
both, would become an Event of Default) shall have occurred and be
continuing, and (2) at the time of and after giving effect to the proposed
Restricted Payment (the value of any such payment, if other than cash, as
determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution), the aggregate amount of
all Restricted Payments declared or made on or after January 1, 1994 shall
not exceed the sum of (A) 50% of the aggregate cumulative Consolidated Net
Income of the Company accrued on a cumulative basis during the period
beginning on January 1, 1994 and ending on the last day of the Company's
last fiscal quarter ending prior to the date of such proposed Restricted
Payment (or, if such aggregate cumulative Consolidated Net Income shall be
a loss, minus 100% of such loss) plus (B) the aggregate proceeds received
by the Company as capital contributions to the Company on or after January
1, 1994, or from the issuance and sale (other than to a Subsidiary) on or
after January 1, 1994 of Capital Stock (excluding the issuance or sale of
preferred stock that is mandatorily redeemable, or redeemable at the
option of the holder of such preferred stock, in either case, prior to the
Stated Maturity of the Notes (collectively, the "Disqualified Stock")) and
any Indebtedness or other securities of the Company convertible into or
exercisable for Capital Stock (other than Disqualified Stock) of the
Company which has been so converted or exercised, as the case may be, plus
(C) $70 million; provided, however, that the foregoing provisions of this
Subsection and Subsection (a) will not prevent the payment of any dividend
within 60 days after the date of its declaration if at the date of
declaration such payment would be permitted by such provisions.
SECTION 1013. Transactions with Related Persons.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Related Person (other than a Subsidiary) unless (i)
such transaction or series of transactions is on terms that are no less
favorable to the Company or such Subsidiary, as the case may be, than
would be available in a comparable transaction with an unrelated third
party and (ii) (A) with respect to a transaction or series of related
transactions involving aggregate payments in excess of $10 million but
less than $20 million, the Company delivers an Officer's Certificate to
the Trustee certifying that such transaction complies with clause (i)
above and (B) with respect to a transaction or series of related
transactions involving aggregate payments equal to or greater than $20
million, such transaction or series of related transactions is approved by
a majority of the Board of Directors of the Company including the approval
of at least two disinterested directors; provided that in the event that
the Company has only one disinterested director a transaction or series of
related transactions involving aggregate payments equal to or exceeding
$20 million shall be approved by a majority of the Board of Directors of
the Company including the approval of the disinterested director.
Notwithstanding the foregoing, the restrictions set forth in the preceding
sentence shall not apply to (y) any transaction with an officer or
director of the Company entered into in the ordinary course of business
(including compensation or employee benefit arrangements with any officer
or director of the Company) and (z) any transaction entered into in the
ordinary course of business with a Subsidiary.
SECTION 1014. Purchase of Notes upon a Change of Control Triggering Event.
(a) In the event that there occurs at any time a Change of Control
Triggering Event, each Holder of Notes shall have the right, at such
Holder's option, to require the Company to purchase all or any part (in
integral multiples of $1,000) of such Holder's Notes on the Purchase Date
at a purchase price (the "Purchase Price") payable in cash of 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
Purchase Date, in accordance with the procedures set forth in Subsections
(b) and (c) of this Section.
(b) Within thirty days following any Change of Control Triggering Event,
the Company shall send by first-class mail, postage prepaid, to the
Trustee and to each Holder of Notes, at his address appearing in the Debt
Security Register, a notice stating:
(1) that a Change of Control Triggering Event has occurred and that
such Holder has the right to require the Company to purchase such Holder's
Notes at the Purchase Price, together with such information as the Company
deems relevant or as may be required to be disclosed pursuant to
applicable securities or other laws regarding such Change of Control
Triggering Event;
(2) the Purchase Date;
(3) the Purchase Price;
(4) the place at which Notes are to be presented and surrendered for
purchase; and
(5) that interest accrued to the Purchase Date will be paid as
specified in such notice and that, unless the Company shall default in
payment of the Purchase Price, after the Purchase Date interest thereon
will cease to accrue with respect to any Notes presented and surrendered
for purchase.
(c) Holders of Notes electing to have such Notes purchased will be
required to surrender such Notes to the Company at the address specified
in the notice by the close of business on the fifteenth day prior to the
Purchase Date. Any such surrender of Notes for purchase by the Company
shall be irrevocable. No Notes shall be deemed to have been presented and
surrendered until such Notes are actually received by the Company or its
designated agent. Holders of Notes whose Notes are purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
(d) Notwithstanding anything to the contrary herein or in the Debt
Securities of any series, the Company shall not be obligated to give
notice to Holders of Debt Securities of any series or to purchase Debt
Securities with respect to more than one Change of Control Triggering
Event.
SECTION 1015. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition
set forth in Sections 803(a), 1009, 1010, 1011, 1012, 1013 and 1014 of
this Certificate of Terms and any such omission with respect to such
Sections shall not be an Event of Default, in each case with respect to
the Notes, provided, that the following conditions have been satisfied:
(1) with respect to all Outstanding Notes not theretofore delivered to
the Trustee for cancellation, the Company shall have deposited or caused
to be deposited with the Trustee for the Notes as trust funds or
obligations in trust an amount of cash, Government Obligations or a
combination of cash and Government Obligations, in each case in an amount
which, together with, as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, the
predetermined and certain income to accrue on any Government Obligations
when due (without the consideration of any reinvestment thereof) is
sufficient to pay and discharge when due the entire indebtedness on all
such Outstanding Notes of such series for unpaid principal (and premium,
if any) and interest to the Stated Maturity or any Redemption Date, as the
case may be;
(2) such deposit will not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) no Event of Default or event which with the giving of notice or lapse
of time, or both, would become an Event of Default with respect to the
Notes shall have occurred and be continuing on the date of such deposit
and no Event of Default under Section 501(6) or Section 501(7) of the
Indenture or event which with the giving of notice or lapse of time, or
both, would become an Event of Default under Section 501(6) or Section
501(7) of the Indenture shall have occurred and be continuing on the 91st
day after such date;
(4) the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(5) the Company has delivered to the Trustee an Opinion of Counsel
stating that the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred; and
(6) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the defeasance contemplated in this Section have
been complied with.
All the obligations of the Company under the Indenture with respect to the
Notes, other than with respect to Section 803(a) and Sections 1009 through
1014 hereof, shall remain in full force and effect. Anything in this
Section 1015 to the contrary notwithstanding, the Trustee for the Notes
shall deliver or pay to the Company, from time to time upon Company
Request, any money or Government Obligations held by it as provided in
this Section 1015 which, as expressed in a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, are in excess of
the amount thereof which would then have been required to be deposited for
the purpose for which such money or Government Obligations were deposited
or received, provided such delivery can be made without liquidating any
Government Obligations.
<PAGE>
EXHIBIT D
Form of Global Note
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Company or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
This Debt Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form.
Note No. _____ $200,000,000
CHIQUITA BRANDS INTERNATIONAL, INC.
10% SENIOR NOTE DUE 2009
CUSIP 170032AM8
CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation
(herein called the "Company") which term includes any successor
corporation under an Indenture hereinafter referred to, for value
received, hereby promises to pay to Cede & Co. or registered assigns upon
presentation and surrender of this Senior Note the principal sum of TWO
HUNDRED MILLION DOLLARS (U.S. $200,000,000) on June 15, 2009, and to pay
interest thereon on December 15, 1999 and thereafter on June 15 and
December 15 in each year, accruing from June 22, 1999 or from the most
recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of 10% per annum, until the principal hereof is
paid or duly provided for. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Senior Note (or
one or more Predecessor Debt Securities) is registered at the close of
business on a Regular Record Date for such interest which shall be the
June 1 or December 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for, and interest on such Defaulted
Interest at the then applicable interest rate borne by the Senior Notes,
to the extent lawful, shall forthwith cease to be payable to the Holder on
such Regular Record Date, and may be paid to the Person in whose name this
Senior Note (or one or more Predecessor Debt Securities) is registered at
the close of business on a Special Record Date to be fixed by the Trustee
for the payment of such Defaulted Interest, notice whereof shall be given
to Holders of Senior Notes not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Senior Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture. Payment of
the principal of (and premium, if any) and interest on this Senior Note
will be made at the office or agency of the Company maintained for that
purpose in Cincinnati, Ohio, or at such other office or agency of the
Company as may be maintained for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. Interest shall be computed on the
basis of a 360-day year of four 90-day quarters or twelve 30-day months.
This Senior Note (as defined herein) is one of a duly authorized
issue of Senior Debt Securities of the Company (herein called the "Debt
Securities") of the series hereinafter specified, which series is limited
(except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $275,000,000, all such Debt Securities
issued and to be issued under the Indenture dated as of February 15, 1994,
between the Company and Fifth Third Bank (f/k/a The Fifth Third Bank), as
trustee (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), as supplemented by a First Supplemental
Indenture dated as of June 15, 1994, a Second Supplemental Indenture dated
as of July 15, 1996, a Third Supplemental Indenture dated as of June 15,
1999 and by Board Resolutions dated February 8, 1994, July 23, 1996 and
June 22, 1999 (herein called the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement
of the rights and limitations of rights thereunder of the Holders of the
Debt Securities and of the rights, duties, obligations and immunities and
the Company and the Trustee for each series of Debt Securities, and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Debt Securities may be
issued in one or more series, which different series may be issued in
various aggregate principal amounts, in various authorized denominations,
may mature at different times, may bear interest, if any, at different
rates, may be subject to different redemption provisions, if any, may be
subject to different sinking funds, if any, may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This Senior Note is one of a series of Debt
Securities designated in the Indenture as 10% Senior Notes due 2009 (the
"Senior Notes"). This Senior Note represents the $200,000,000 aggregate
principal amount of Senior Notes initially issued on June 22, 1999.
The Indenture contains provisions for defeasance at any time of (a)
the entire principal amount of all of the Debt Securities and (b) certain
restrictive covenants and certain Events of Default, in each case upon
compliance with certain conditions set forth therein.
The Senior Notes are subject to redemption at the option of the
Company, in whole (except as provided in paragraph (c), below) or in part,
upon not less than 30 nor more than 60 days' notice, as set forth below
and as further described in the Indenture.
(a) On or after June 15, 2004 the Senior Notes are subject to
redemption at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest thereon to but
not including the applicable redemption date (subject to the right of
Holders of record on relevant record dates to receive interest due on an
Interest Payment Date), if redeemed during the twelve-month period
beginning on June 15 of the years indicated below:
Year Percentage
---- ----------
2004 105.000%
2005 103.333%
2006 101.667%
2007 and thereafter 100.000%
(b) Prior to June 15, 2004, the Senior Notes are subject to
redemption at a redemption price equal to the greater of: (i) 100% of the
principal amount of the Senior Notes to be redeemed, or (ii) a discounted
present value, calculated as specified in the Indenture, of the sum of the
principal that would have been payable upon redemption on June 15, 2004,
as set forth in the preceding paragraph, and any interest that would have
accrued from the redemption date through June 15, 2004, together with
accrued interest to the redemption date (subject to the right of Holders
of record on relevant record dates to receive interest due on an Interest
Payment Date).
(c) Prior to June 15, 2002, up to a maximum of 35% of the original
aggregate principal amount of the Senior Notes is subject to redemption
with the proceeds of one or more underwritten public equity offerings by
the Company of its common stock, as provided in the Indenture, at a
redemption price equal to 110% of the principal amount of the Senior Notes
together with accrued interest to the redemption date (subject to the
right of Holders of record on relevant record dates to receive interest
due on an Interest Payment Date), provided that after giving effect to the
redemption, at least 65% of the original aggregate principal amount of
Senior Notes remains outstanding.
(d) The Senior Notes may be redeemed, as a whole but not in part, at
any time if, as a result of a change in tax laws, tax treaties or tax
regulations, the Company would be required to pay Additional Amounts, as
described in the Indenture.
If less than all of the Senior Notes are to be redeemed, the Trustee
shall select the Notes or portions thereof to be redeemed by lot.
If a Change of Control Triggering Event occurs at any time, each
Holder of the Senior Notes shall have the right to require that the
Company purchase such Holder's Senior Notes in whole or in part in
integral multiples of $1,000 at a purchase price in cash in an amount
equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Purchase Date.
In the case of a purchase of Senior Notes in connection with a
Change of Control Triggering Event, interest accrued to the Purchase Date
will be paid as specified in a notice from the Company and, unless the
Company shall default in payment of the Purchase Price, after the Purchase
Date interest will cease to accrue with respect to any Senior Notes
presented and surrendered for purchase.
If an Event of Default with respect to the Senior Notes shall occur
and be continuing, there may be declared due and payable in the manner and
with the effect provided in the Indenture the principal of this Senior
Note, plus all accrued and unpaid interest to and including the date the
Senior Notes become due and payable.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of any series of Debt
Securities under the Indenture at any time by the Company and the Trustee
of any series of Debt Securities with the consent of the Holders of more
than 50% in the aggregate principal amount of the Outstanding Debt
Securities of each series of Debt Securities to be affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Debt Securities of any
series at the time Outstanding, on behalf of the Holders of all the Debt
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences with respect to such series. Any such consent or
waiver by or on behalf of the Holder of this Senior Note shall be
conclusive and binding upon such Holder and upon all future Holders of
this Senior Note and of any Senior Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Senior Note.
No reference herein to the Indenture and no provision of this Senior
Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Senior Note at the times, place and
rate herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Senior Note is registrable on the
Debt Security Register of the Company, upon surrender of this Senior Note
for registration of transfer at the office or agency of the Company
maintained for such purpose in Cincinnati, Ohio or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed
by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debt Security Registrar duly executed
by, the Holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Senior Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Senior Notes are issuable only in registered form without
coupons; beneficial owners may hold denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Senior Notes are exchangeable
for a like aggregate principal amount of Senior Notes of a like tenor and
of a different authorized denomination, as requested by the Holder or
beneficial owner surrendering the same.
No service charge shall be made to the Holders for any registration
of transfer or exchange or redemption of Senior Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to and at the time of due presentment of this Senior Note for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Senior Note
is registered as the owner hereof for all purposes, whether or not this
Senior Note be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
All terms used in this Senior Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Senior Note shall be governed by and construed in accordance
with the laws of the State of New York.
Unless the certificate of authentication hereon has been duly
executed by the Trustee by manual signature, this Senior Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: June 22, 1999
CHIQUITA BRANDS INTERNATIONAL, INC.
[Corporate Seal] ____________________________________
Gerald R. Kondritzer
Vice President and Treasurer
Attest:
__________________________
Barbara M. Howland
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated herein
described in the within mentioned Indenture.
FIFTH THIRD BANK, as Trustee
By:____________________________
Authorized Officer
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_____________________________________________________________________________
the within Senior Note of Chiquita Brands International, Inc. and does
hereby irrevocably constitute and appoint____________________________________
to transfer the said Senior Note on the books of the Company, will full
power of substitution in the premises.
Dated:_________________________________
____________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of the within instrument
in every particular, without
alteration or enlargement or
any change whatever.
