-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G9oyLkP35Dv7rF+Ni7HK5R/xlBgr4RH9CnfbZnW9+mKaOKvrpdG3e1sbGeLXV4cl uptMNjqnOQti7CBHhskPsw== 0000927016-02-001395.txt : 20020415 0000927016-02-001395.hdr.sgml : 20020415 ACCESSION NUMBER: 0000927016-02-001395 CONFORMED SUBMISSION TYPE: 8-A12B PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020312 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHIQUITA BRANDS INTERNATIONAL INC CENTRAL INDEX KEY: 0000101063 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 041923360 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B SEC ACT: 1934 Act SEC FILE NUMBER: 001-01550 FILM NUMBER: 02573393 BUSINESS ADDRESS: STREET 1: 250 E FIFTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5137848880 MAIL ADDRESS: STREET 1: CHIQUITA BRANDS INTERNATIONAL, INC. STREET 2: 250 EAST FIFTH STREET CITY: CINCINNATI STATE: OH ZIP: 45202 FORMER COMPANY: FORMER CONFORMED NAME: UNITED BRANDS CO DATE OF NAME CHANGE: 19900403 8-A12B 1 d8a12b.txt FORM 8-A UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 CHIQUITA BRANDS INTERNATIONAL, INC. - ------------------------------------------------------------------------------- (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 - -------------------------------------- ------------------------------------ Common Stock, par value $.01 per share New York Stock Exchange Warrants to subscribe for Common Stock New York Stock Exchange ____% Senior Notes due 2009 New York Stock Exchange Securities to be registered pursuant to Section 12(g) of the Act: None Page 1 of 107 pages. Exhibit list appears page 15. INFORMATION REQUIRED IN REGISTRATION STATEMENT This registration statement registers under Section 12(b) of the Securities Exchange Act of 1934 (the "Act") the following securities of Chiquita Brands International, Inc. (the "Company") being issued pursuant to the Company's Amended and Restated Plan of Reorganization (the "Plan") and upon the filing with the State of New Jersey of the Company's Third Restated Certificate of Incorporation (the "Certificate"): . common stock, par value $.01 per share ("Common Stock") which replaces the Company's prior common stock registered under Section 12(b) of the Act (which prior common stock is cancelled concurrently with the issuance of the Common Stock), . warrants to purchase shares of Common Stock ("Warrants"), and . ____% Senior Notes due 2009 ("Notes"). ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED. The descriptions which follow are qualified in their entirety by the full terms of each security, as set forth in the Exhibits to this registration statement which are incorporated by reference in this Item 1. DESCRIPTION OF COMMON STOCK Voting. Except as otherwise provided by the New Jersey Business Corporation Act (the "NJBCA") or the Certificate, and subject to the rights of holders of any outstanding shares of preferred stock, each holder of Common Stock has one vote for each share held on all matters submitted to a vote of the Company's shareholders. The Common Stock does not have cumulative voting rights. Generally, a majority of the votes cast at a meeting of shareholders by holders of shares entitled to vote on the proposal is required for shareholder action. However, the Certificate provides that the vote of at least two-thirds of the combined voting power of all outstanding shares of the Company eligible to vote in the election of directors is required to amend the provisions of the Certificate relating to limitations on liability and indemnification (ARTICLE NINE) in any manner adverse to those indemnified or to amend ARTICLE ELEVEN which imposes this vote requirement. Dividends. Except as otherwise provided by the NJBCA or the Certificate, and subject to all rights and preferences of holders of any outstanding shares of preferred stock, holders of Common Stock share ratably in all dividends and distributions, whether upon liquidation or dissolution or otherwise. 2 Other. The Common Stock is not convertible into, or exchangeable for, any other class or series of the Company's capital stock. Holders of Common Stock have no preemptive or other rights to subscribe for or purchase additional securities of the Company. As of the date of this registration statement, the Certificate contains no provisions modifying the voting or dividend rights of holders of Common Stock described above. There is no preferred stock outstanding. The Board of Directors of the Company is authorized to determine the relative rights, preferences and limitations of any class or series of preferred stock that may be issued. Shares of Common Stock are not subject to calls or assessments. No personal liability will attach to holders under the laws of the State of New Jersey (the Company's state of incorporation) or of the State of Ohio (the state in which the Company's principal place of business is located). DESCRIPTION OF WARRANTS General. Each Warrant entitles its holder to purchase one share of Common Stock at a price of $_______ per share. The Warrants are exercisable for an aggregate of 13,333,333 shares of Common Stock. The Warrants expire seven years from the effective date of the Plan. Antidilution provisions. If, at any time before the expiration date of the Warrants, the Company (1) declares or pays a dividend, or makes a distribution, on its Common Stock in shares of Common Stock, (2) subdivides or combines its outstanding shares of Common Stock or (3) reclassifies its Common Stock into other securities, the number of shares issuable on exercise of each Warrant and each Warrant's exercise price will be adjusted so that the holders of Warrants are entitled to receive the number and kind of shares of Common Stock or other securities which they would have received if their Warrants had been exercised immediately before the event (or, if applicable, the event's record date). If before the Warrants' expiration date the Company distributes to holders of Common Stock evidence of indebtedness, shares of another class of capital stock, assets (other than periodic cash dividends) or rights to subscribe to Common Stock, then, unless the Company reserves a proportionate amount of the distribution for holders of Warrants, the Warrants' exercise price will be decreased to reflect the value of the distribution. No adjustment in the exercise price of the Warrants is required if the adjustment, together with any prior adjustments not made, is less than 1% of the Warrants' exercise price. Reorganization, Consolidation, Merger or Sale. Prior to the consummation of any recapitalization, reorganization, consolidation, merger, sale of all or substantially all of the Company's assets or other transaction in which holders of Common Stock will receive stock, securities or assets in exchange for their Common Stock, the Company will make appropriate 3 provision to ensure that holders of Warrants have the right to receive, on exercise of their Warrants, the same stock, securities or assets as they would have been issued or paid in the transaction had their Warrants been exercised immediately before the event. Black Scholes Event. Additional provisions apply to the Warrants in the event of (a) the acquisition of 80% or more of the Common Stock in a tender offer or series of tender offers, (b) the acquisition of Common Stock in a tender offer or offers followed by a merger within three years of any such tender offer of the Company with the entity that consummated the tender offer(s), (c) a consolidation, merger or combination of the Company or (d) a sale of all or substantially all of the Company's assets, if in each case any part of the consideration paid or exchanged for the Common Stock consists of cash or property other than the regular common stock of the surviving entity or its parent (a "Black Scholes Event"). Within 30 days after the occurrence of a Black Scholes Event, the Company is required to offer to purchase all outstanding Warrants at a price per Warrant equal to the "Black Scholes Payment Amount." Any Warrants not tendered will remain outstanding. The Black Scholes Payment Amount will be determined by multiplying the Black Scholes value of a Warrant by a fractional amount calculated based upon both the value of the property received in the transaction other than the regular common stock of the surviving entity and the value of that regular common stock. If holders of Common Stock have the right to select a form of consideration, holders of Warrants will be deemed to have selected consideration in the same proportions as the holders of Common Stock. See Exhibit 3 for further information on the calculation of the Black Scholes Payment Amount. Other. If the Company is voluntarily or involuntarily dissolved or liquidated prior to the expiration date of the Warrants, each holder of Warrants is entitled to receive the cash or other property which the holder would have received had all of the holder's Warrants been exercised immediately prior to the event. DESCRIPTION OF NOTES General. The Notes are a series of senior debt securities issued under an Indenture dated as of March 15, 2002 (the "Indenture") between the Company and Wells Fargo Bank Minnesota, National Association, as trustee (the "Trustee"). The Notes are limited in aggregate principal amount to $300 million, of which $250 million is being issued initially; bear interest at the rate of ____% per annum (the "Senior Note Interest Rate"); and mature on March 15, 2009. Interest accrues from March __, 2002 and is payable on March 15 and September 15 of each year, commencing September 15, 2002, to each registered holder at the close of business on the first day of the month in which the payment will be made. Interest is computed based on a 360-day year of twelve 30-day months. The Notes are issuable only in fully registered form in denominations of $1,000 and integral multiples of $1,000 and initially are issued in the form of one Global Note. The Notes are general unsecured obligations of the Company and will rank equally with the Company's future senior unsecured indebtedness. 4 Capitalized terms used without definition in this description of the Notes are defined in Exhibits 4 and 5. Optional Redemption. The Notes are redeemable at the option of the Company, in whole or in part, at one time or from time to time, on not less than 30 or more than 60 days' notice at the prices described below. Redemption Beginning in 2005. If the Company chooses to redeem the Notes on or after March 15, 2005, the amount that the Company will pay upon redemption will equal the percentage of the principal amount set forth below plus accrued and unpaid interest to, but not including, the redemption date. All Notes redeemed during the 12-month period beginning on March 15 of the years indicated below will be redeemed at the corresponding redemption amount: Year Percentage - ---- ---------- 2005 100.000% plus 1/2 of the Senior Note Interest Rate 2006 100.000% plus (3)/8 of the Senior Note Interest Rate 2007 100.000% plus 1/4 of the Senior Note Interest Rate 2008 100.000% Makewhole Redemption. In the case of redemption before March 15, 2005, the Company must pay a redemption price equal to the greater of (a) 100% of the principal amount of the Notes to be redeemed, or (b) the sum of the present value of (i) the redemption price of the Notes at March 15, 2005 (set forth in the table above under the caption "Redemption Beginning in 2005") and (ii) interest payments from the date of redemption through March 15, 2005, in each case discounted to the redemption date at a rate equal to the yield to maturity for comparable maturity U.S. Treasury securities plus 0.25 percent; plus, in the case of either clause (a) or (b) above, any accrued and unpaid interest to the redemption date. Redemption with the Proceeds of Public Equity Offerings. Before March 15, 2005, the Company may redeem, in the aggregate, 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 100% plus the Senior Note Interest Rate of the principal amount of Notes redeemed, plus accrued and unpaid interest, if any, to the redemption date. Any redemption must be made within 75 days of the applicable public equity offering. Notice of Redemption. The Company must provide each affected holder of Notes with notice of any redemption at least 30 but not more than 60 days before the date set for redemption. The notice must specify the date fixed for redemption and the redemption price, except in a Makewhole Redemption, in which case the Company must certify to the Trustee the 5 actual redemption price, calculated as described in the notice, at least two business days before the redemption date. Sinking Fund. The Notes will not be subject to any sinking fund payment obligations. Consolidation, Merger and Sale of Assets. The Company may not consolidate or merge with or into any other entity, or sell, lease or convey all or substantially all of its assets to any other entity unless the following principal conditions are met: (1) the surviving entity is organized under the laws of the United States of America or any state or the District of Columbia, the Bahamas, Barbados, Bermuda, the British Virgin Islands, the Cayman Islands, any of the Channel Islands or the Netherlands Antilles and expressly assumes all of the Company's obligations under the Notes and the Indenture; (2) immediately after the transaction, no Default or Event of Default under the Indenture has occurred and is continuing; (3) immediately after the transaction, either (a) the surviving entity would be able to incur at least $1.00 of additional Indebtedness under the Company's Fixed Charge Coverage Ratio, determined on a pro forma basis as if the transaction had occurred at the beginning of the immediately preceding four-quarter period, or (b) the Fixed Charge Coverage Ratio for the surviving entity, determined on a pro forma basis as if the transaction had occurred at the beginning of the immediately preceding four-quarter period, would be greater than the actual Fixed Charge Coverage Ratio for the Company for the most recently completed four-quarter period prior to the transaction; (4) if the surviving entity is organized in a jurisdiction other than the United States or any state or the jurisdiction in which the predecessor obligor on the Notes was organized immediately before the transaction, then (a) the obligations of the surviving entity relating to the Notes and under the Indenture must be enforceable under the laws of the new jurisdiction, subject to customary exceptions, (b) the U.S. federal income tax status of the holders of the Notes must not be adversely affected, (c) the surviving entity must agree in writing to submit to the jurisdiction of the courts of New York and appoint an agent for service of process there and (d) the board of directors of the surviving entity must determine in good faith that the transaction will not have a material adverse effect on the holders of Notes. Notwithstanding the foregoing, if the Company effects a consolidation, merger or sale, conveyance, assignment, transfer, lease or other disposition of substantially all of its assets, the condition set forth in clause (3) of the paragraph above will 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 the transaction, (2) did not engage in any business prior to the transaction, (3) immediately prior to the transaction had no indebtedness or liabilities, contingent or otherwise, (4) immediately after the transaction had no additional "indebtedness" or "liabilities," contingent or otherwise, in excess of that which the Company had immediately prior to the transaction and (5) immediately after the transaction was engaged in the same business as the Company was engaged in immediately prior to the 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. Certain Covenants Relating to the Notes. The Indenture contains the covenants summarized below, among others, relating to the Notes. 6 Limitation on Indebtedness. The Company will not, and will 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 and the Company will not issue any Disqualified Stock and will not permit any of its Subsidiaries to issue any shares of Disqualified Stock to any Person other than the Company or its Subsidiaries unless, after giving effect to the transaction, the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding the transaction for which internal financial statements are available immediately preceding the date of the transaction, taken as a single period, is (a) if at the Calculation Date the most recent fiscal quarter for which internal financial statements are available ended on or prior to December 31, 2002, 2.0 to 1 or greater, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) as if the additional Indebtedness had been incurred or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (b) if at the Calculation Date the most recent fiscal quarter for which internal financial statements are available ended on or after March 31, 2003, 2.5 to 1 or greater, determined on the same pro forma basis. Limitation on Liens. The Company will not, and will not permit any Subsidiary to, create, assume, incur or permit any Lien upon any of their assets without providing for the Notes to be secured equally and ratably with the Indebtedness or other obligations being secured by the Lien, except for (1) Permitted Liens and (2) Liens, not including Permitted Liens, which at any time secure Indebtedness in an amount up to $50 million; provided that the amount available for these Liens must be reduced by the aggregate "value" of Sale and Leaseback Transactions entered into and permitted by the covenant "Limitations on Sale and Leaseback Transactions," described below. In no case will the amount set forth in clause (2) be reduced below zero. Limitation on Asset Sales. The Company will not, and will not permit any of its Subsidiaries to, consummate an Asset Sale unless (1) the Company (or the Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; (2) if the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of is greater than $25 million, the Asset Sale is approved by the Company's board of directors; and (3) at least 75% of the consideration received by the Company or the Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash: (a) any liabilities of the Company or any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of the assets, and (b) any securities, notes or other obligations received by the Company or the Subsidiary from the transferee that are converted by the Company or the Subsidiary into cash within 90 days thereafter (to the extent of the cash received in that conversion). Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any of its Subsidiaries may apply the Net Proceeds at their option (1) to permanently repay indebtedness under any credit facility of the Company or any of its Subsidiaries; (2) to purchase, or commit to purchase, the assets of, or a majority of the voting Equity Interests of, a Food-Related Business; (3) to make, or commit to make, a capital expenditure; or (4) to acquire, 7 or commit to acquire, other assets that are used or useful in, or ancillary to, a Food-Related Business that is owned by the Company or any of its Subsidiaries; provided that if a commitment terminates for any reason, the Company will, within 45 days, apply the Net Proceeds in accordance with the provisions of this or the following paragraph. Pending the final application of the Net Proceeds, the Company or any of its Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by the terms of the Notes. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph, other than Net Proceeds held by a Subsidiary of the Company to the extent that the Subsidiary is restricted from transferring those Net Proceeds to the Company or any of its Subsidiaries, will constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $25 million, the Company will make an offer (an "Asset Sale Offer") to all holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this covenant "Limitation on Sale of Assets," to purchase the maximum principal amount of Notes and that other pari passu Indebtedness as may be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the aggregate principal amount outstanding plus accrued and unpaid interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the terms of the Notes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Limitation on Sale and Leaseback Transactions. The Company will not, and will not permit any of its Subsidiaries to, enter into any Sale and Leaseback Transaction; except that the Company or any of its Subsidiaries may enter into a Sale and Leaseback Transaction if (1) the Company or Subsidiary, as applicable, could have (a) incurred Indebtedness under the Fixed Charge Coverage Ratio test in the covenant "Limitation on Indebtedness" in an amount equal to the Indebtedness required to be recorded under GAAP relating to the Sale and Leaseback Transaction and (b) incurred a Lien to secure the Indebtedness pursuant to the covenant "Limitation on Liens"; and (2) the gross cash proceeds of that Sale and Leaseback Transaction are at least equal to the fair market value of the property that is the subject of the Sale and Leaseback Transaction. Limitation on Restricted Payments. The Company will not, and will not permit any Subsidiary to, make any Restricted Payment unless, at the time and after giving effect to the Restricted Payment, the following conditions are met: (1) no Default or Event of Default under the Indenture will have occurred and be continuing (or would result), (2) at the time of and after giving effect to the Restricted Payment, the Company would be able to incur at least $1.00 of Indebtedness under the Fixed Charge Coverage Ratio test in the covenant "Limitation on Indebtedness," (3) the payment, along with the aggregate amount of all Restricted Payments declared or made on or after the Effective Date may not exceed the sum of (a) 50% of the 8 Company's total Consolidated Net Income accrued on a cumulative basis during the period beginning on the first day of the fiscal quarter in which the Effective Date occurs and ending on the last day of its last fiscal quarter ending prior to the date of the proposed Restricted Payment for which internal financial statements are available (or if that aggregate cumulative Consolidated Net Income is a loss, minus 100% of the loss); plus (b) the aggregate net cash proceeds received by the Company on or after the Effective Date (i) as capital contributions or (ii) from the issuance and sale of (x) Equity Interests of the Company to any Person or entity other than a Subsidiary, excluding the issuance or sale of Disqualified Stock or (y) any other securities of the Company which (A) are convertible into or exchangeable or exercisable for Equity Interests of the Company, other than Disqualified Stock and (B) have been converted, exchanged or exercised; plus (c) to the extent that any Restricted Investment that was made after the Effective Date is sold or redeemed for, or repaid in, cash, the lesser of (i) the cash return of (and on) capital with respect to the Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount of the Restricted Investment; plus (d) the initial amount of any Restricted Investment(s) made after the Effective Date in an entity that subsequently becomes a Subsidiary. The provisions of the preceding paragraph do not prohibit the following (the "Excluded Payments"): (a) so long as no Default or Event of Default has occurred and is continuing (or would result), any Restricted Payment which, together with all other Restricted Payments made pursuant to this subsection (a) on or after the Effective Date, does not exceed $25 million; (b) the payment of any dividend, within 60 days after it was declared, if at the date it was declared, the payment would have been permitted; (c) the making of any Investment or the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests of the Company (or subordinated Indebtedness of the Company or its Subsidiaries) in exchange for, or out of the proceeds of the sale (other than to a Subsidiary of the Company) of, any Equity Interests of the Company (other than any Disqualified Stock); except that, in each case, the amount of any net cash proceeds that are so utilized will be excluded from clause (3)(b) of the preceding paragraph; (d) the payment of any dividend by a Subsidiary of the Company to the holders of its common Equity Interests, or a redemption of its Equity Interests, on a pro rata basis; (e) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any current or former director, officer, employee or agent of the Company (or any of its Subsidiaries) pursuant to any management equity subscription agreement, stock option agreement or other employee benefit plan or arrangement in effect on the Effective Date or adopted or approved thereafter by the Company's board of directors, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $5 million in any twelve-month period; (f) the periodic purchase of Equity Interests of the Company for contribution to employee benefit plans not to exceed $5 million in any twelve-month period; (g) the purchase of Equity Interests of the Company deemed to occur upon the exercise of stock options or warrants if those Equity Interests represent all or a portion of the exercise price of (or taxes in respect of the exercise of) the options or warrants; (h) the payment of the Black Scholes Payment Amount (as defined in the Warrant Agreement); (i) the payment of the Subclass 4B Supplemental Distribution (as defined in the Plan); or (j) a Subsidiary of the Company declaring or making payment of a dividend on, or making a distribution in respect of or repurchasing or redeeming, its Equity Interests on a basis that is not 9 pro rata to all holders of its Equity Interests, provided that the dividend, distribution, repurchase or redemption is consistent with the priority and proportionate to the amount of the corresponding investment in the Subsidiary's Equity Interests. Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company will not, and will not permit any of its Subsidiaries to, create or agree to any encumbrance or restriction on the ability of any Subsidiary to (1) pay dividends or make any other distributions on its capital stock to the Company or any of its Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or (2) pay any Indebtedness owed to the Company or any of its Subsidiaries which own, directly or indirectly, any of the Subsidiary's Equity Interests, or (3) make loans or advances to the Company or any of its Subsidiaries. However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of (1) existing Indebtedness as in effect on the Effective Date; (2) the Indenture and the Notes; (3) applicable law; (4) any agreement or instrument applicable to or binding on a Person acquired by the Company or any of its Subsidiaries as in effect at the time of the acquisition (except to the extent the agreement or instrument was entered into in connection with or in contemplation of the acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, provided that, in the case of the acquired Person's Indebtedness, the Indebtedness was permitted to be incurred by the terms of the Notes; (5) any agreement for the sale or other disposition of a Subsidiary that restricts distributions by the Subsidiary pending its sale or other disposition; (6) Refinancing Indebtedness if (A) the encumbrances or restrictions, taken as a whole, are not materially more restrictive than is customary in comparable financings, (B) any such encumbrances or restrictions will not materially adversely affect the Company's ability to make principal or interest payments on the Notes and (C) the Company delivers an Officer's Certificate to the Trustee stating that incurring such Refinancing Indebtedness complies with this clause; (7) provisions with respect to the disposition or distribution of assets or property in joint venture agreements and other similar agreements entered into in the ordinary course of business; and (8) restrictions on cash or other deposits or net worth under contracts entered into in the ordinary course of business. Business Activities. The Company will not, and will not permit any Subsidiary to, engage in any business other than Food-Related Businesses. Payments for Consent. The Company will not, and will not permit any of its Subsidiaries to, pay or cause to be paid any consideration to or for the benefit of any holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the Notes unless that consideration is offered and paid to all holders of the Notes that consent, waive or agree to amend those terms and provisions in the time frame set forth in the solicitation documents relating to the consent, waiver or agreement. Reports. Whether or not required by the Commission, so long as any Notes are outstanding, the Company will file with the Commission (or if the Commission will not accept such filings, furnish to the Trustee) within the time periods specified in the Commission's rules and regulations all quarterly and annual financial information that would be required to be 10 contained in filings with the Commission on Forms 10-Q and 10-K, and all current reports that would be required to be filed on Form 8-K, if the Company were required to file such reports. Transactions With Related Persons. The Company will not, and will not permit any Subsidiary to, enter into any transaction or series of related transactions with any Related Person unless: (1) the transaction or series of transactions are on terms as favorable to the Company or the Subsidiary as would be available in a comparable transaction with an unrelated third party; (2) if the transaction or series of transactions involves aggregate payments of $5 million or more, the Company, within 20 days, delivers an Officer's Certificate to the Trustee certifying that the transaction complies with clause (1) above; (3) if the transaction or series of transactions involves aggregate payments of $10 million or more, the transaction or series of transactions is approved by the Company's board of directors, including the approval of a majority of directors who are not Related Persons in connection with the transaction or transactions being approved; and (4) if the transaction or series of transactions involves aggregate payments of $25 million or more, the Company delivers to the Trustee an opinion as to the fairness from a financial point of view to the Company and its Subsidiaries, taken as a whole, of the transaction or series of transactions issued by an accounting, appraisal or investment banking firm of national standing. However, these provisions do not prohibit (1) any employment arrangement or transactions relating to benefit plans with any employee, consultant or director of the Company or any Subsidiary that is entered into by the Company or any Subsidiary in the ordinary course of business and consistent with past practices of the Company or the Subsidiary; (2) payment of reasonable directors' fees; (3) loans and advances to employees of the Company or any Subsidiary in the ordinary course of business otherwise permitted pursuant to the terms of the Notes; (4) Restricted Payments that are permitted by the terms of the Notes described under the caption "Limitation on Restricted Payments"; (5) issuances of Equity Interests by the Company; and (6) any transaction between or among the Company and one or more Subsidiaries of the Company or among one or more Subsidiaries of the Company entered into in the ordinary course of business. Purchase of Notes upon a Change of Control. If a Change of Control occurs, each holder of Notes will have the right, at the holder's option, to require the Company to purchase all or any part of the holder's Notes (in integral multiples of $1,000) at a Purchase Price of 101% of their principal amount, plus accrued and unpaid interest, if any, to the Purchase Date. A "Change of Control" means an event or series of events by which any of the following occurs: (1) any "Person" is or becomes the "beneficial owner" of more than 50% of the total voting power of all outstanding classes of voting capital stock of the Company; (2) the Company consolidates with or merges into another entity or conveys, transfers or leases all or substantially all of its assets in one or a series of transactions to any entity, or any entity consolidates with or merges into the Company and, in connection with the transaction, the outstanding voting shares of the Company are changed into or exchanged for cash, securities or other property, other than a transaction (a) between the Company and a Subsidiary or (b) in which the holders of the outstanding voting shares of the Company immediately prior to the transaction own 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; 11 (3) the Company or any Subsidiary purchases or otherwise acquires beneficial ownership of 40% or more of the Company's capital stock within any 12-month period; (4) the adoption of a plan relating to the liquidation or dissolution of the Company or (5) on any date, a majority of the Company's Board of Directors does not consist of Persons (a) who were directors at the Effective Date ("Continuing Directors") or (b) whose election or nomination as directors was approved by at least 2/3 of the directors then in office who are Continuing Directors or whose election or nomination was previously so approved. "Person" has the same meaning given to it in Sections 13(d) and 14(d) of the Exchange Act, and "beneficial owner" or "beneficially owned" have the same meaning given to these terms in Rules l3d-3 and l3d-5 under the Exchange Act, except that a Person is deemed to have "beneficial ownership" of all shares that Person has the right to acquire, whether the right is exercisable immediately or only after the passage of time. The Company is obligated to give notice to holders of Notes and the Trustee within 30 days following a Change of Control. The notice must specify (1) that a Change of Control has occurred and that the holder has the right to require the Company to purchase the holder's Notes at the Purchase Price, together with such information that the Company deems relevant or as may be required to be disclosed pursuant to applicable securities or other laws, (2) the place at which the Notes are to be presented and surrendered for purchase, (3) that interest accrued to the Purchase Date will be paid upon presentation and surrender, and (4) that interest will cease to accrue as of the Purchase Date on all Notes timely surrendered for purchase. Rating. If the Company fails to obtain a rating for the Notes from either Moody's Investor Services, Inc. or Standard & Poor's Corporation within one year of the Effective Date, the Senior Note Interest Rate will increase by 0.50% from the first anniversary of the Effective Date until the day a rating is obtained, at which time the interest rate will revert to the original annual rate. Events of Default. The following are "Events of Default" with respect to the Notes: (i) default in the payment of any installment of interest on the Notes for 30 days after becoming due; (ii) default in the payment of the principal of (or premium, if any, on) the Notes when due; (iii) default in the performance of any other covenant contained in the terms of the Notes or the Indenture for a period of 60 days after written notice of the failure, requiring the Company to remedy the same, has been given to the Company by the Trustee or to the Company and the Trustee by the holders of 25% in aggregate principal amount of then outstanding Notes; (iv) default under any agreements, indentures or instruments under which the Company or any of its Material Subsidiaries has outstanding Indebtedness in excess of $10 million in the aggregate and, if not already matured in accordance with its terms, the Indebtedness has been accelerated and the acceleration has not have rescinded or annulled or the Indebtedness discharged within ten days after notice to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of then outstanding Notes, provided, that if, prior to the entry of judgment in favor of the Trustee, the default under such indenture or instrument is remedied or cured by the Company or the Material Subsidiary, or waived by the holders of the Indebtedness, then the Event of Default under the Indenture likewise will be deemed to have been remedied, cured or waived; and provided, further, that if 12 the default results from an action of the United States government or a foreign government which prevents the Company or the Material Subsidiary from performing its obligations under the agreement, indenture or instrument, the default will not be an Event of Default under the Indenture; (v) entry against the Company or any Material Subsidiary of one or more judgments, orders or decrees for the payment of money in excess of $10 million, either individually or in the aggregate, which is not discharged, and the continuance of the judgment, order or decree for 60 days during which a stay of enforcement, by reason of an appeal or otherwise, is not in effect, and written notice of the default has been given to the Company by the Trustee or to the Company and the Trustee by the holders of 25% in aggregate principal amount of then outstanding Notes; (vi) certain events of bankruptcy, insolvency or reorganization with respect to the Company or any of its Material Subsidiaries occur; or (vii) failure by the Company to comply with its obligations under "Consolidation, Merger and Sale of Assets," "Purchase of Notes upon a Change of Control" or "Limitation on Sale of Assets." If an Event of Default occurs and is continuing, either the Trustee or the holders of at least 25% in principal amount of outstanding Notes may declare the entire principal amount of the Notes immediately due and payable. If an Event of Default specified in clause (vi) above occurs with respect to the Company, the entire principal amount of the Notes will ipso facto become due and payable. The Company is required to furnish the Trustee annually with a statement by certain officers of the Company to the effect that, to the best of their knowledge, the Company is not in default in the fulfillment of any of its obligations under the Indenture or, if there has been a default, specifying each known default. The holders of a majority in principal amount of outstanding Notes have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, and to waive certain defaults. If an Event of Default occurs, the Trustee must exercise such of its rights and powers under the Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to these provisions, the Trustee is under no obligation to exercise any of its rights or powers under the Indenture at the request of any of the holders of Notes unless they have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities it might incur in compliance with the request. Satisfaction and Discharge. The Indenture provides that the Company will be discharged from its obligations on the Notes (with certain exceptions) at any time prior to their stated maturity or redemption when (a) the Company has deposited with the Trustee, in trust, sufficient funds to pay the principal of (and premium, if any) and interest, if any, to stated maturity (or redemption) on the Notes, (b) the Company has paid all other sums payable with respect to the Notes and (c) certain other conditions are met. Upon such discharge, the holders of Notes no longer are entitled to the benefits of the Indenture, except for certain rights including registration of transfer and exchange, and may look only to the deposited funds. Modification and Waiver. Certain modifications and amendments (which, generally, either benefit or do not adversely affect the holders of outstanding Notes) of the Indenture may be made by the Company and the Trustee without the consent of holders of the Notes. Other 13 modifications and amendments of the Indenture or of the terms of the Notes require the consent of the holders of more than 50% in outstanding principal amount of the Notes. Further, no modification or amendment may, without the consent of the holder of each outstanding Note affected, (a) reduce the principal of or change the stated maturity of the Note, (b) reduce the rate of, or change the time for payment of interest on, the Note, (c) reduce the principal amount or any premium payable on redemption of the Note or change the time at which the Note may be redeemed, (d) change the place of payment, (e) impair the right of a holder to receive payment of principal of and interest on the Note on or after their due dates, (f) change the currency in which the principal of or any premium or interest on the Note is payable, (g) reduce the percentage in principal amount of the outstanding Notes, the consent of whose holders is required for any supplemental indenture or any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture, (h) modify or change any provision of the Indenture or the related definitions affecting the ranking of any Note in a manner which adversely affects the holders in any material respect, or (i) make any change in the foregoing amendment and waiver provisions. The holders of not less than a majority in principal amount of the outstanding Notes may on behalf of the holders of all Notes waive compliance by the Company with certain restrictive provisions of the Indenture or the terms of the Notes. The holders of not less than a majority in principal amount of the outstanding Notes may on behalf of the holders of all Notes waive any past default under the Indenture, except a default in the payment of the principal of (or premium, if any) and interest, if any, on any Note or in respect of a provision which under the Indenture cannot be modified or amended without the consent of the holder of each outstanding Note affected. Defeasance of Certain Obligations. The terms of the Notes provide that the Company does not have to comply with the restrictive covenants described above under the headings Limitation on Indebtedness, Limitation on Liens, Limitation on Asset Sales, Limitation on Sale and Leaseback Transactions, Limitation on Restricted Payments, Dividend and Other Payment Restrictions Affecting Subsidiaries, Business Activities, Reports, Transactions with Related Persons, Purchase of Notes Upon a Change of Control, Rating and clause (3) of Consolidation, Merger and Sale of Assets if, among other conditions, the Company (1) deposits with the Trustee an amount of cash and U.S. government securities, in any combination, sufficient to pay all amounts owing on the Notes for unpaid principal, premium, if any, and interest to maturity or any applicable redemption date and (2) provides an opinion of independent tax counsel that holders of Notes will not be adversely affected for U.S. federal income tax purposes by the defeasance. If the Company does this, its obligations under the Indenture and the Notes other than in connection with the above covenants will remain in full force and effect. Compliance. The Indenture provides that the Trustee shall, within 90 days after the occurrence of a default (including, in most cases, an event which, after notice or lapse of time, would become an Event of Default), give the holders of the Notes notice of the default; however, except in the case of a default in the payment of principal of (or premium, if any) or interest, if any, on the Notes, the Trustee may withhold notice if it in good faith determines that the withholding of notice is in the interest of the holders of the Notes. In addition the Company 14 must furnish other annual and periodic reports and certificates to the Trustee and/or the holders of the Notes, as required by Section 314(a) of the Trust Indenture Act, the Indenture and, in connection with certain covenants and other matters, the terms of the Notes. Paying Agent. The registrar, paying and transfer agent for the Notes is American Security Transfer Company Limited Partnership d/b/a Securities Transfer Company, Cincinnati, Ohio. Securities Transfer Company is an affiliate of the Company. ITEM 2. EXHIBITS. The following exhibits are filed as part of this registration statement: Exhibit 1-- Third Restated Certificate of Incorporation of Chiquita Brands International, Inc. Exhibit 2-- Restated By-laws of Chiquita Brands International, Inc. *Exhibit 3-- Warrant Agreement dated as of March ____, 2002 between Chiquita Brands International, Inc. and American Security Transfer Company Limited Partnership, as Warrant Agent *Exhibit 4-- Certificate of Actions Taken by Steven G. Warshaw, President, Pursuant to Authority Delegated by the Board of Directors of Chiquita Brands International, Inc. and approved by the Court pursuant to the Plan in Approving the Terms of ____% Senior Notes due 2009, including the following exhibits: Exhibit A - Definitions Exhibit B - Redemption Provisions Exhibit C - Covenants Exhibit D - Form of Global Note Exhibit 5-- Indenture dated as of March 15, 2002 between Chiquita Brands International, Inc. and Wells Fargo Bank Minnesota, National Association, Trustee * To be filed by amendment. 15 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. /s/ William A. Tsacalis ----------------------------------- William A. Tsacalis Vice President and Controller March 12, 2002 16 EX-1 3 dex1.txt THIRD RESTATED CERTIFICATE OF INCORPORATION THIRD RESTATED CERTIFICATE OF INCORPORATION OF CHIQUITA BRANDS INTERNATIONAL, INC. CHIQUITA BRANDS INTERNATIONAL, INC., a corporation organized and existing under the laws of the State of New Jersey (the "Corporation"), hereby amends ----------- and restates its Certificate of Incorporation to read in full as herein set forth. ARTICLE ONE The name of the Corporation is CHIQUITA BRANDS INTERNATIONAL, INC. ARTICLE TWO The address of the Corporation's registered office in the State of New Jersey is 820 Bear Tavern Road, West Trenton, County of Mercer, New Jersey 08628, and the name of its registered agent therein and in charge thereof upon whom process against the Corporation may be served is The Corporation Trust Company. The Corporation may also have offices at such other places, both within and without the State of New Jersey as the board of directors of the Corporation (the "Board of Directors") may from time to time determine or the ------------------ business of the Corporation may require. ARTICLE THREE The purposes for which the Corporation is organized are to engage in any activity within the purposes for which corporations now or at any time hereafter may be organized under the New Jersey Business Corporation Act and under all amendments and supplements thereto, or any act enacted to take the place thereof. ARTICLE FOUR Section 1. Authorized Shares. The total number of shares of capital stock ----------------- which the Corporation has authority to issue is 170,000,000 shares, consisting of: (a) 20,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred Stock"); and --------------- (b) 150,000,000 shares of Common Stock, par value $.01 per share ("Common Stock"). ------------ The Preferred Stock and the Common Stock shall have the rights, preferences and limitations set forth below. Section 2. Preferred Stock. The Preferred Stock may be issued from time to --------------- time and in one or more class or classes and series within any class or classes. The Board of Directors of the Corporation is authorized to determine or alter the designation and the number of shares of any class or series of Preferred Stock, and the relative rights, preferences and limitations of the shares of any class or series of Preferred Stock and to increase or decrease (but not below the number of shares of any such class or series of Preferred Stock then outstanding) the number of shares of any such class or series of Preferred Stock. In the event that the number of shares of any class or series of Preferred Stock shall be so decreased, the shares constituting such decrease shall resume the status which such shares had prior to the adoption of the resolution originally fixing the number of shares of such series of Preferred Stock subject to the requirements of applicable law. All shares of Preferred Stock of any class or series shall have the right to vote with the Common Stock as a single class on all matters upon which holders of Common Stock are entitled to vote, but the number of votes per share of Preferred Stock of any class or series shall be as stated in the resolution or resolutions of the Board of Directors determining the relative rights, preferences and limitations of such class or series of Preferred Stock. No holder of Preferred Stock shall have any preemptive, subscription, redemption, conversion or sinking fund rights with respect to the Preferred Stock, or to any securities, rights or obligations convertible (directly or indirectly) into any class or series of stock of the Corporation whether now or hereafter authorized, except as otherwise determined by the Board of Directors. Section 3. Common Stock. ------------ (a) Dividends. Except as otherwise provided by the New Jersey Business --------- Corporation Act or this Third Restated Certificate of Incorporation (the "Certificate of Incorporation"), the holders of Common Stock: (i) subject to ---------------------------- the rights of holders of any class or series of Preferred Stock, shall share ratably in all dividends payable in cash, stock or otherwise and other distributions, whether in respect of liquidation or dissolution (voluntary or involuntary) or otherwise and (ii) are subject to all the powers, rights, privileges, preferences and priorities of any class or series of Preferred Stock. (b) Conversion Rights. The Common Stock shall not be convertible into, or ----------------- exchangeable for, shares of any other class or classes or of any other series of the same class of the Corporation's capital stock. (c) Preemptive Rights. No holder of Common Stock shall have any ----------------- preemptive or subscription rights with respect to the Common Stock, Preferred Stock, or to any securities, rights or obligations convertible (directly or indirectly) into, or exchangeable (directly or indirectly) for, stock of the Corporation whether now or hereafter authorized. (d) Voting Rights. Except as otherwise provided by the New Jersey ------------- Business Corporation Act or this Certificate of Incorporation and subject to the rights of holders of any class or series of Preferred Stock, all of the voting power of the shareholders of the Corporation shall be vested in the holders of the Common Stock, and each holder of Common Stock shall have one vote for each share held by such holder on all matters voted upon by the shareholders of the Corporation. -2- ARTICLE FIVE The number of directors constituting the Corporation's current Board of Directors is seven (7). The names and addresses of the persons currently serving as said directors are set forth below: Name Address - ---- ------- Morten Arntzen 250 East Fifth Street Cincinnati, Ohio Jeffrey D. Benjamin 250 East Fifth Street Cincinnati, Ohio Robert W. Fisher 250 East Fifth Street Cincinnati, Ohio Cyrus F. Freidheim, Jr. 250 East Fifth Street Cincinnati, Ohio Roderick M. Hills 250 East Fifth Street Cincinnati, Ohio Carl H. Lindner 250 East Fifth Street Cincinnati, Ohio Steven G. Warshaw 250 East Fifth Street Cincinnati, Ohio ARTICLE SIX Section 1. The Board of Directors of the Corporation shall consist of not less than three (3) nor more than twenty (20) persons who shall hold office until the next annual meeting of shareholders and until their successors have been duly elected and qualified. Subject to any rights of the holders of any class or series of Preferred Stock of the Corporation to elect additional directors under specified circumstances, the actual number of directors shall be determined from time to time by resolution of the Board of Directors. Section 2. The number of directors may at any time be increased or decreased only by the vote of the Board of Directors and in case of any such increase the Board of Directors shall have power to elect such additional directors to hold office until the next annual meeting of shareholders and until their successors have been duly elected and qualified, but in no event may the Board of Directors decrease the number of directors unless the directorships to be eliminated are vacant. Section 3. Any directorship not filled at the annual meeting, vacancies occurring on the Board of Directors for any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled only by vote of a majority of the remaining members of the Board of Directors, even though less than a quorum, at any meeting of the Board of Directors. A person so elected by the Board of Directors to fill a vacancy shall hold office until the next succeeding annual meeting of shareholders of the Corporation and until his or her successor shall have been duly elected and qualified. -3- Section 4. A director may be removed from office only for cause, upon the affirmative vote of the holders of a majority of the voting power of the then outstanding shares of capital stock entitled to vote generally in the election of directors voting together as a single class; provided that if the holders of -------- ---- any class or series of capital stock are entitled by the provisions of this Certificate of Incorporation to elect one or more directors, each director or directors so elected may be removed only for cause and only by the vote of the holders of a majority of the outstanding shares of that class or series entitled to vote. ARTICLE SEVEN Section 1. Meetings of Shareholders. Subject to any rights of holders of ------------------------ any class or series of Preferred Stock and except as otherwise required by New Jersey law, (a) any action required or permitted to be taken by the shareholders of the Corporation must be effected at an annual or special meeting of shareholders of the Corporation and may not be effected in lieu thereof by any consent in writing by less than all of the shareholders and (b) a special meeting of shareholders of the Corporation may be called only by either (i) the Board of Directors pursuant to a resolution adopted by the affirmative vote of the majority of the total number of Directors then in office or (ii) the president or chief executive officer of the Corporation. Section 2. Business Brought Before a Meeting. At any meeting of the --------------------------------- shareholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before a meeting, business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) brought before the meeting by or at the direction of the Board of Directors or (c) otherwise properly brought before the meeting by any shareholder of the Corporation who was an Eligible Shareholder at the time of giving of notice as provided below, who is entitled to vote on business of the type which such Eligible Shareholder proposes to bring before the meeting and who shall have complied with the notice procedures set forth below. For business to be properly brought before a meeting by a shareholder, the shareholder must have given timely notice thereof in writing and in accordance with the procedures set forth in this Section 2 to the secretary of the Corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation (a) in the case of an annual meeting, not less than 60 days prior to the first anniversary of the preceding year's annual meeting; provided that -------- ---- in the event that the date of the annual meeting is changed by more than 30 days from such anniversary date or if no such annual meeting was held during the immediately preceding calendar year, notice by the shareholder to be timely must be so received not later than the close of business on the 15th day following the earlier of the day on which notice of the date of the meeting was mailed or public announcement of the date set for the meeting was made, and (b) in the case of a special meeting, not later than the close of business on the 15th day following the earlier of the day on which notice of the date of the meeting was mailed or public announcement of the date set for the meeting was made. A shareholder's notice to the secretary shall set forth (a) written statements and information necessary to demonstrate that the shareholder qualifies as an Eligible Shareholder as of the date of such notice, and (b) as to each matter the shareholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting and any material interest of the shareholder in such business. The Board of Directors, the president of the Corporation, or any other officer to whom authority has been delegated by either the Board of Directors or the president of the Corporation shall determine if the subject -4- matter of any timely shareholder notice given in accordance with the procedures set forth in this Section 2 is an appropriate subject to be brought before the meeting. The person presiding at the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting, whether as a result of a failure by the shareholder to comply with the procedures set forth in this Section, a determination that the subject matter is not an appropriate subject to be brought before the meeting, or otherwise; if the presiding person should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Notwithstanding anything to the contrary contained in this Certificate of Incorporation, no business proposed by a shareholder shall be conducted at a meeting except in accordance with the procedures set forth in this Section 2. Nothing in this Section 2 shall be deemed to affect any rights of shareholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or any ------------ successor provision thereto. Section 3. Nominations. ----------- (a) Only persons who are nominated in accordance with the procedures set forth in this Section 3 shall be eligible to serve as directors. Nominations of persons for election to the Board of Directors of the Corporation may be made at a meeting of shareholders (1) by or at the direction of the Board of Directors or (2) by any shareholder of the Corporation who was an Eligible Shareholder at the time of giving of notice provided for in Section 3(b) below, who is entitled to vote generally in the election of directors at the meeting and who shall have complied with the notice procedures set forth in Section 3(b) below. (b) In order for a shareholder to nominate a person for election to the Board of Directors of the Corporation at a meeting of shareholders, such shareholder shall have delivered timely notice of such shareholder's intent to make such nomination in writing and in accordance with the procedures set forth in this Section 3 to the secretary of the Corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation (a) in the case of an annual meeting, not less than 60 days prior to the first anniversary of the preceding year's annual meeting; provided that in the event that the date of the annual -------- ---- meeting is changed by more than 30 days from such anniversary date or if no such annual meeting was held during the immediately preceding calendar year, notice by the shareholder to be timely must be so delivered to or mailed and received not later than the close of business on the 15th day following the earlier of the day on which notice of the date of the meeting was mailed or public announcement of the date set for the meeting was made, and (b) in the case of a special meeting at which directors are to be elected, not later than the close of business on the 15th day following the earlier of the day on which notice of the date of the meeting was mailed or public announcement of the date set for the meeting was made. A shareholder's notice to the secretary of the Corporation shall set forth (a) written statements and information necessary to demonstrate that the shareholder qualifies as an Eligible Shareholder as of the date of such notice, and (b) as to each person whom the shareholder proposes to nominate for election as a director at such meeting, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required (including such person's written consent to serving as a director if elected) pursuant to Regulation 14A under the Exchange Act or any successor provision thereto. -5- No person shall be eligible to serve as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 3. The person presiding at the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures set forth in by this Section 3, and if the presiding person should so determine, he or she shall so declare to the meeting and the nomination shall be disregarded. A shareholder seeking to nominate a person to serve as a director must also comply with all other applicable legal requirements. Section 4. Definitions. For purposes of this Article Seven, the following ----------- definitions shall apply: (a) Eligible Shareholder. A person (the "Proposing Person") who proposes -------------------- ---------------- to bring business before, or to nominate persons for election to the Board of Directors of the Corporation at, a meeting of shareholders of the Corporation (the "Meeting of Shareholders") shall be deemed to be an Eligible Shareholder ----------------------- with respect to shares of the Corporation as of the date of giving notice to the Corporation pursuant to Section 2 or Section 3, as the case may be, of this Article Seven of such proposed business or nomination(s) (the "Notice Date") if: ----------- (i) in the case where the Proposing Person holds shares of record, (A) the Proposing Person has provided the Corporation with a written statement setting forth (x) the name and address of the Proposing Person, as they appear on the Corporation's official record of shareholders, and the number of shares of the Corporation of a class entitled to vote at the Meeting of Shareholders on the business or nomination(s), as the case may be, proposed by the Proposing Person to be brought before, or to be made at, such Meeting which were held of record by the Proposing Person as of the Notice Date, and (y) that the Proposing Person intends to hold such shares continuously through the date of the Meeting of Shareholders, and (B) the Corporation verifies to its reasonable satisfaction that the Proposing Person was in fact reflected in the Corporation's official record of shareholders as the holder of record of such shares as of the Notice Date. (ii) in the case where the Proposing Person holds shares beneficially but not of record, (A) the Proposing Person has provided the Corporation with (1) the name and address of the Proposing Person, (2) either (x) a written statement from the holder of record of the shares beneficially owned by the Proposing Person setting forth the name and address of such holder of record, as they appear on the Corporation's official record of shareholders, and the number of shares of the Corporation of a class entitled to vote at the Meeting of Shareholders on the business or nomination(s), as the case may be, proposed by the Proposing Person to be brought before, or to be made at, such Meeting of Shareholders which were held of record by such holder of record for the benefit of the Proposing Person as of the Notice Date, or (y) a Schedule 13D, Schedule 13G, Form 3, Form 4 and/or Form 5 (as filed pursuant to Section 13 or Section 16, as of the case may be, of the Exchange Act or any successors to such Schedules or Forms filed pursuant to such Sections or pursuant to any successor provisions thereto), and all subsequent amendments to and updates of such Schedules and/or Forms, reflecting the Proposing Person's ownership of shares of the Corporation of a class entitled to vote at the Meeting of Shareholders on the business or nomination(s), as the case may be, proposed by the Proposing Person to be brought before, or to be made at, such Meeting, together with a written statement that the Proposing Person has continuously held the shares reflected as being owned by the Proposing -6- Person in such Schedules and/or Forms (as most recently amended or updated) through the Notice Date, and (3) a written statement that the Proposing Person intends to hold such shares continuously through the date of the Meeting of Shareholders, and (B) the Corporation verifies to its reasonable satisfaction that, in the case of clause (2) (x) above, such holder of record was in fact reflected in the Corporation's official record of shareholders as the holder of record of such shares as of the Notice Date, or, in the case of clause (2) (y) above, the information provided by the Proposing Person accurately reflects the information in the applicable Schedules or Forms on file with the Securities and Exchange Commission. ARTICLE EIGHT In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter, amend or repeal the By-Laws of the Corporation. ARTICLE NINE Section 1. Limitation of Liability. ----------------------- (a) For purposes of this ARTICLE NINE, the following definitions shall apply: (1) "Expenses" shall mean all reasonable costs, disbursements, fees -------- of attorneys, accountants and other professionals, expert fees, investigative fees and all other similar expenses. (2) "Indemnitee" shall mean a director, officer or employee, or ---------- trustee or other fiduciary of the Corporation or any employee benefit plan adopted or sponsored by the Corporation, or a director, officer, employee, trustee or other fiduciary, member, partner of, or persons serving in a similar capacity with any other corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan, or other enterprise which such person is serving at the request of the Corporation. Any person serving simultaneously as a director, officer or employee of the Corporation and as a director, officer, employee, trustee or other fiduciary, member, partner of, or in a similar capacity with (i) any enterprise in which the Corporation owns at least 20% of the equity interests of such enterprise or (ii) any employee benefit plan adopted or sponsored by such an enterprise, shall be conclusively presumed to be serving in such capacity at the request of the Corporation. (3) "Liabilities" shall mean all Expenses and any and all amounts ----------- paid or incurred in satisfaction of settlements, judgments, fines, and penalties (including, without limitation, any excise taxes imposed in connection with service as a fiduciary of an employee benefit plan). (4) "Proceeding" shall mean any civil, criminal, administrative, ---------- investigative or arbitration action (or other form of alternative dispute resolution), suit, or proceeding, including, without limitation, any proceeding by or in the right of the Corporation, or any appeal thereof, or any inquiry or investigation which could lead to such action, suit, or proceeding. (b) To the fullest extent permitted by the New Jersey Business Corporation Act as the same exists or may hereafter be amended, an officer or director of the Corporation shall not be liable to the Corporation or its shareholders for damages for breach of any duty, except that -7- nothing contained herein shall relieve an officer or a director from liability for breach of a duty based upon an act or omission (a) in breach of such person's duty of loyalty to the Corporation or its shareholders, (b) not in good faith or involving a knowing violation of law, or (c) resulting in receipt by such person of an improper personal benefit. Any amendment or modification of the foregoing provision or the applicable provisions of the New Jersey Business Corporation Act shall not adversely affect any right or protection of an officer or a director of the Corporation existing at the time of such amendment or modification, and such right or protection shall continue as to a person who has ceased to be an officer or a director and shall inure to the benefit of the heirs, executor and administrators of such a person. (c) Each person who was or is made a party, or is threatened to be made a party to, or is otherwise involved (including as a witness) in any pending, threatened, or completed (by judgment, settlement or otherwise) Proceeding by reason of his or her being or having been an Indemnitee shall be indemnified and held harmless by the Corporation to the fullest extent not prohibited by the New Jersey Business Corporation Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said Act permitted prior to such amendment), from and against any and all Liabilities incurred or suffered in connection with any such Proceeding, and such indemnification shall continue as to a person who has ceased to be an Indemnitee and shall inure to the benefit of his or her heirs, executors, administrators, and assigns. Notwithstanding the foregoing and except as set forth in Section 2 of this ARTICLE NINE, the Corporation shall indemnify any person seeking indemnification in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof) was specifically authorized by the Board of Directors of the Corporation. (d) The right to indemnification conferred in this ARTICLE NINE (1) shall be a contract right (and any subsequent repeal of, or amendment to, this ARTICLE NINE shall not affect the right to indemnification based upon any act or omission while this ARTICLE NINE is in effect), (2) is intended to be retroactive to events occurring prior to the adoption of this ARTICLE NINE to the fullest extent permitted by applicable law, and (3) shall include the right to be paid by the Corporation the Expenses incurred in connection with any Proceeding in advance of the final disposition of such Proceeding; provided -------- that if the New Jersey Business Corporation Act or the Board of Directors so - ---- requires, the payment of such Expenses in advance of the final disposition of a Proceeding shall be made only upon receipt by the Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this ARTICLE NINE or otherwise. Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 of ------------------------------- this ARTICLE NINE is not paid in full by the Corporation within thirty (30) days after a written request has been received by the Corporation, the claimant may, at any time thereafter, apply to a court for an award of indemnification by the Corporation for the unpaid amount of the claim, and, if successful on the merits or otherwise in connection with any such Proceeding, or in the defense of any claim, issue, or matter therein, the claimant shall be entitled also to be paid by the Corporation any and all Expenses incurred or suffered in connection with such Proceeding. It shall be a defense to any such action (other than an action brought to enforce a claim for the advancement of Expenses incurred in connection with any Proceeding where the required -8- undertaking, if any, has been tendered to the Corporation) that the claimant has not met the standard of conduct which makes it permissible under the New Jersey Business Corporation Act for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such Proceeding that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the New Jersey Business Corporation Act, nor an actual determination by the Corporation (including its Board of Directors, its independent legal counsel, or its shareholders) that the claimant has not met such applicable standard of conduct, nor the termination of any Proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 3. Non-Exclusivity of Rights. The right to indemnification and ------------------------- advancement of Expenses provided by or granted pursuant to this ARTICLE NINE shall not exclude or be exclusive of any other rights to which any person (including agents) may be entitled under this Certificate of Incorporation, the By-Laws of the Corporation, agreement, vote of shareholders, statute or otherwise; provided that no indemnification shall be made to or on behalf of -------- ---- such person if a final, non-appealable judgment or adjudication adverse to such person establishes that such person's acts or omissions (a) were in breach of his duty of loyalty to the Corporation or its shareholders, (b) were not in good faith or involved a knowing violation of law, or (c) resulted in such person's receipt of an improper personal benefit. Section 4. Insurance. The Corporation may purchase and maintain insurance --------- on behalf of any Indemnitee against any Liabilities incurred or asserted against him in any Proceeding by reason of such person's being or having been such an Indemnitee, whether or not the Corporation would have the power to indemnify such person against such Expenses and Liabilities under the provisions of this ARTICLE NINE or otherwise. Section 5. Reliance. Persons who after the date of the adoption of this -------- provision become or remain Indemnitees or who, while an Indemnitee, become or remain a director, officer, employee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of Expenses and other rights contained in this ARTICLE NINE in entering into or continuing such service. The rights to indemnification and to the advance of Expenses conferred in this ARTICLE NINE shall apply to claims made against an Indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof. Section 6. Merger or Consolidation. For purposes of this ARTICLE NINE, ----------------------- references to the "Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees, so that any person who is or was a director, officer or employee of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, trustee, member, partner or persons serving in a similar capacity of another corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, shall stand in the same position -9- under this ARTICLE NINE with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued. ARTICLE TEN The books of the Corporation may be kept (subject to any provision contained in the statutes) outside of the State of New Jersey at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation. The Board of Directors shall have power from time to time to determine to what extent and at what times and places and under what conditions and regulation the accounts and books of the Corporation, or any of them, shall be open to the inspection of shareholders; and no shareholder shall have any right to inspect any account or book or document of the Corporation, except as conferred by the laws of the State of New Jersey. ARTICLE ELEVEN Notwithstanding any other provisions of this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of the capital stock required by law or this Certificate of Incorporation, the affirmative vote of the holders of at least two-thirds (2/3) of the combined voting power of all of the then outstanding shares of the Corporation eligible to be cast in the election of directors shall be required to alter, amend or repeal ARTICLE NINE hereof in any manner adverse to the Indemnitees, or this ARTICLE ELEVEN, or any provision thereof or hereof. ARTICLE TWELVE The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon shareholders herein are granted subject to this reservation. ARTICLE THIRTEEN Unless otherwise provided by this Certificate of Incorporation or by law, and subject to the rights of holders of any class or series of Preferred Stock, whenever any action, other than the election of directors, is to be taken by vote of the shareholders, it shall be authorized by a majority of the votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon. Without limiting the generality of the foregoing, the provisions of this Article Thirteen shall be applicable to all actions taken by vote of the shareholders that would otherwise require the affirmative vote of greater than the majority of the votes cast as the result of provisions of the New Jersey Business Corporation Act applicable to corporations organized prior to January 1, 1969. -10- IN WITNESS WHEREOF, CHIQUITA BRANDS INTERNATIONAL, INC. has made this Certificate under the signature of its President and Chief Executive Officer this _____ day of March, 2002. CHIQUITA BRANDS INTERNATIONAL, INC. ______________________________________________ By: Steven G. Warshaw Title: President and Chief Executive Officer -11- EX-2 4 dex2.txt RESTATED BY-LAWS OF CHIQUITA BRANDS RESTATED BY-LAWS of CHIQUITA BRANDS INTERNATIONAL, INC. A New Jersey Corporation (Adopted as of March ___, 2002) ----------------------------------- ARTICLE I SHAREHOLDERS Section 1.1 Annual Meeting. The annual meeting of shareholders, for the -------------- election of directors and the transaction of such other business as may properly come before the meeting, shall be held on such date, at such hour and at such place, within or without the State of New Jersey, as may be designated each year by the board of directors and stated in the notice of meeting. Failure to hold an annual meeting at the designated time and place shall not, however, invalidate the corporate existence or affect otherwise valid corporate acts. Section 1.2 Special Meetings. Special meetings of the shareholders may ---------------- only be called in the manner provided in the Third Restated Certificate of Incorporation (as amended from time to time, the "Certificate of -------------- Incorporation"). - ------------- Section 1.3 Notice of Meeting. Written notice of each meeting of ----------------- shareholders, stating the time, place and, in the case of a special meeting, the purpose or purposes thereof, shall be given, personally or by mail, to each shareholder entitled to vote at the meeting not less than ten (10) nor more than sixty (60) days before the meeting, except as otherwise required by the New Jersey Business Corporation Act or the Certificate of Incorporation. Section 1.4 Determination of Shareholders of Record. For the purposes of --------------------------------------- determining the shareholders entitled (a) to notice of or to vote at any meeting of shareholders or any adjournment thereof, or (b) to receive payment of any dividend or other disbursement or allotment of any right, or for the purpose of any other action, the board of directors may fix, in advance, a record date which shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting nor more than sixty (60) days prior to any other action. Section 1.5 Quorum and Adjournments. At any meeting of the shareholders ----------------------- the presence in person or by proxy of the holders of a majority of the shares of the corporation entitled to vote at the meeting shall constitute a quorum for the transaction of business, except as otherwise provided by law or the Certificate of Incorporation. If a quorum is not present at any meeting of the shareholders, the chairman of the meeting may adjourn the meeting from time to time without notice, other than announcement at the meeting, until a quorum is present; provided that if after adjournment the board of directors fixes a new -------- ---- record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to vote. Less than a quorum may adjourn the meeting. Section 1.6 Vote Required. When a quorum is present, a majority of the ------------- votes cast at the meeting by the holders of shares entitled to vote on the subject matter shall be the act of the shareholders, unless (a) by express provisions of an applicable law or of the Certificate of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question, or (b) the subject matter is the election of directors, in which case Section 2.2 of Article II hereof shall govern and control the approval of such subject matter. Section 1.7 Voting Rights. Except as otherwise provided by the New Jersey ------------- Business Corporation Act, the Certificate of Incorporation or these by-laws, every shareholder shall at every meeting of the shareholders be entitled to one vote in person or by proxy for each share of common stock held by such shareholder. Section 1.8 Proxies. Each shareholder entitled to vote at a meeting of ------- shareholders may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after eleven months from its date, unless the proxy expressly provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. A proxy is revoked when the person executing the proxy is present at a meeting of shareholders and (a) files a written notice of revocation with the secretary of the meeting prior to the voting of the proxy or (b) votes the shares subject to the proxy by written ballot, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the shareholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular. ARTICLE II DIRECTORS AND COMMITTEES OF DIRECTORS Section 2.1 General Powers. The business and affairs of the corporation -------------- shall be managed by or under the direction of the board of directors. In addition to such powers as are herein and in the Certificate of Incorporation expressly conferred upon it, the board of directors shall have and may exercise all the powers of the corporation, subject to the provisions of the laws of New Jersey, the Certificate of Incorporation and these by-laws. Section 2.2 Number, Election and Term of Office. The number of directors ----------------------------------- constituting the corporation's board of directors shall be determined in the manner provided in the Certificate of Incorporation. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meetings and entitled to vote in the election of directors; provided that whenever the holders of any class or series of capital -------- ---- stock of the corporation are entitled to elect one or more directors pursuant to the provisions of the Certificate of Incorporation, such directors shall be elected by a plurality of the votes of such class or series present in person or represented by proxy at the meeting and entitled to vote in the -2- election of such directors. The directors shall be elected in this manner at the annual meeting of shareholders, except as otherwise provided in the Certificate of Incorporation. Section 2.3 Chairman of the Board. The chairman of the board (or such --------------------- other person designated by the board of directors) shall preside at all meetings of the shareholders, and the chairman of the board (or the president and chief executive officer, in the case of the absence or disability of the chairman of the board) shall preside at all meetings of the board of directors and shall have such other powers and perform such other duties as may be prescribed to him or her by the board of directors or provided in these by-laws. Section 2.4 Meetings of the Board of Directors. Regular meetings of the ---------------------------------- board of directors may be held without notice at such time, date, and place as may be fixed from time to time by resolution of the board of directors. At any regular meeting of the board of directors any business that comes before such meeting may be transacted except where special notice is required by these by-laws. Special meetings of the board of directors may be called by the chairman of the board or the president and chief executive officer and shall be called by the secretary upon the written request of a majority of the directors, and shall be held at such time and place as shall be specified in the call of the meeting. Notice of each special meeting shall be given to each member of the board of directors, personally or by mail, e-mail, facsimile or telephone, at least three (3) days before the meeting. Section 2.5 Committees of the Board of Directors. ------------------------------------ (a) Appointment and Authority. The board of directors, by resolution ------------------------- adopted by a majority of the entire board ("entire board" means the total number of directors which the corporation would have if there were no vacancies), may appoint from among its members an executive committee and one or more other committees, each of which shall have one or more members. To the extent provided in such resolution (and unless otherwise provided in the resolution designating the members of the executive committee), each such committee shall have and may exercise all the authority of the board of directors, except that no such committee shall: (1) make, alter, or repeal any by-law of the corporation; (2) elect or appoint any director, or remove any officer or director; (3) submit to the shareholders any action that requires the shareholders' approval; or (4) amend or repeal any resolution theretofore adopted by the board of directors which by its terms is amendable or repealable only by the board of directors. (b) Control of Committee by Board of Directors. The board of directors, by ------------------------------------------ resolution adopted by a majority of the entire board of directors, may: (1) fill any vacancy in any such committee; (2) appoint one or more directors to serve as additional members of any such committee; (3) appoint one or more directors to serve as alternate members of any such committee, to act in the absence or disability of members of any such committee with all the powers of such absent or disabled members; (4) abolish any such committee at its pleasure; and (5) remove any director from membership on such committee at any time, with or without cause. (c) Report to Board of Directors. Action taken at a meeting of any ---------------------------- committee shall be reported to the board of directors at its next meeting following such committee meeting, except that, when the meeting of the board of directors is held within two (2) days after the -3- committee meeting, such report shall, if not made at its first meeting, be made to the board of directors at its second meeting following such committee meeting. Section 2.6 Quorum of Board of Directors and Committees. A majority of the ------------------------------------------- entire board of directors ("entire board" means the total number of directors which the corporation would have if there were no vacancies) or a majority of any committee of the board of directors, but in either case not less than two (2) persons, shall constitute a quorum for the transaction of business. Directors having a personal or conflicting interest in any matter to be acted upon may be counted in determining the presence of a quorum. The act of the majority present at a meeting at which a quorum is present shall be the act of the board of directors or of the committee unless a greater number is required by law, the Certificate of Incorporation, or these by-laws. Section 2.7 Vacancies in Board of Directors. Vacancies in the board of ------------------------------- directors shall be filled in accordance with the Certificate of Incorporation. Section 2.8 Participation in Meetings by Means of Conference Telephone or ------------------------------------------------------------- Similar Instrument. Members of the board of directors or any committee thereof - ------------------ may participate in and act at any meeting of such board of directors or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear and speak with each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting. Section 2.9 Action of Board of Directors and Committee Without A Meeting. ------------------------------------------------------------ Any action required or permitted to be taken pursuant to authorization voted at a meeting of the board of directors or any committee of the board of directors may be taken without a meeting if, prior or subsequent to such action, all members of the board of directors or of such committee, as the case may be, consent thereto in writing and such written consents are filed with the minutes of the proceedings of the board of directors or committee. Section 2.10 Resignation of Directors. Any director or directors may ------------------------ resign and the resulting vacancy shall be filled in accordance with the Certificate of Incorporation. Any such resignation shall take effect at the time specified therein or, if no such time is specified, upon receipt thereof. The acceptance of any such resignation shall not be necessary to make it effective. Section 2.11 Compensation. Directors and members of committees shall be ------------ reimbursed for their expenses incurred in attending meetings of the board of directors or such committees and may be paid a fixed sum for attendance at any meeting of the board of directors or a stated salary as a director, as the board of directors may from time to time determine. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. ARTICLE III OFFICERS Section 3.1 Officers. The officers of the corporation shall be elected by -------- the board of directors and shall consist of a president and chief executive officer, a secretary, a treasurer and -4- such other officers and assistant officers as may be deemed necessary or desirable by the Board of Directors. Any two or more offices of the corporation may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law or these by-laws to be executed, acknowledged or verified by two or more officers. Section 3.2 Term and Removal of Officers of the Corporation. Unless ----------------------------------------------- otherwise provided by resolution of the board of directors, at the time of his election or appointment, the term of all officers shall be until the first meeting of the board of directors following the next annual meeting of shareholders and until their respective successors are elected and qualify, but any officer may be removed from office, either with or without cause, at any time, by the affirmative vote of a majority of the members of the board of directors then in office; provided that such removal shall be without prejudice -------- ---- to the contract rights, if any, of the person so removed. Any vacancy occurring in the offices of the corporation may be filled by the board of directors. Section 3.3 President and Chief Executive Officer. The president and chief ------------------------------------- executive officer shall have the powers and perform the duties incident to that position. Subject to the powers of the board of directors, the president and chief executive officer shall be in the general and active charge of the entire business, affairs and property of the corporation. The president and chief executive officer shall have such other powers and perform such other duties as may be prescribed by the board of directors or provided in these by-laws. Section 3.4 The Secretary. The secretary shall attend all meetings of the ------------- board of directors, all meetings of the committees thereof and all meetings of the shareholders and record all the proceedings of the meetings in a book or books to be kept for that purpose or shall ensure that his or her designee attends each such meeting to act in such capacity. Under the president and chief executive officer's supervision, the secretary shall give, or cause to be given, all notices required to be given by these by-laws or by law; and shall have such powers and perform such duties as the board of directors, the president and chief executive officer or these by-laws may, from time to time, prescribe. Section 3.5 Other Officers. The other officers of the corporation shall -------------- have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be prescribed from time to time by the board of directors or the president and chief executive officer. Section 3.6 Absence or Disability of Officers. In the case of the absence --------------------------------- or disability of any officer of the corporation and of any person hereby authorized to act in such officer's place during such officer's absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person selected by it. ARTICLE IV SHARES OF STOCK OF THE CORPORATION -5- Section 4.1 Certificates. The certificates representing shares of stock of ------------ the corporation shall be in such form as shall be approved from time to time by the board of directors. The certificates shall be signed by, or in the name of the corporation by, the chairman of the board of directors, or the president and chief executive officer, or a vice president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation and may be sealed with the seal of the corporation or a facsimile thereof. If the certificate is countersigned by a transfer agent or registrar, who is not an officer or employee of the corporation, any and all other signatures may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of its issue. Without limiting the generality of the foregoing, the board of directors may provide that some or all of the shares of any class or series of stock of the corporation shall be represented by uncertificated shares. Section 4.2 Registered Shareholders. Prior to the surrender to the ----------------------- corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, or a request to transfer uncertificated shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner. The corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof. Section 4.3 Lost, Stolen or Destroyed Certificates. The board of -------------------------------------- directors may authorize the issuance of a new certificate in place of any certificate theretofore issued by the corporation, alleged to have been lost, stolen or destroyed, upon the making of an affidavit of such loss, theft or destruction by the owner thereof or his legal representative, and the board of directors may, in its discretion, require such owner or legal representative to give the corporation a bond indemnifying the corporation and the transfer agents and registrars against all loss, cost and damage which may arise from the issuance of a new certificate in place of the original certificate. ARTICLE V MISCELLANEOUS Section 5.1 Fiscal Year. The fiscal year of the corporation shall begin on ----------- the first day of January in each year. Section 5.2 Corporate Seal. The seal of the corporation shall bear the -------------- name of the corporation and such other legend as the board of directors may from time to time determine and may be an impression upon paper or wax or a printed or facsimile reproduction thereof. Section 5.3 Waiver of Notice. Whenever any notice is required by the New ---------------- Jersey Business Corporation Act, the Certificate of Incorporation or these by-laws to be given, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent thereto. The attendance of any director at a meeting of the board of directors or any committee thereof without protesting prior to the -6- conclusion of the meeting the lack of notice of such meeting shall constitute a waiver of notice by him. Neither the business to be transacted at, or the purposes thereof of any meeting or committee thereof of the board of directors need be specified in the waiver of notice of such meeting. Section 5.4 Notices. In computing the period of time for the giving of any ------- notice required or permitted for any purpose, the day on which the notice is given shall be excluded and the day on which the matter noticed is to occur shall be included. If notice is given by mail or telegraph, the notice shall be deemed to be given when deposited in the mail or telegraph office, addressed to the person to whom it is directed at his last address as it appears on the records of the corporation, with postage or charges prepaid thereon, provided, however, that notice must be given by telephone, e-mail, facsimile transmission, personal service or by personally advising the person orally when, as authorized in these by-laws, less than three (3) days notice is given. Notice to a shareholder shall be addressed to the address of such shareholder as it appears on the stock transfer records of the corporation. Section 5.5 Amendments. The board of directors shall have power to make, ---------- alter and repeal by-laws, but by-laws made by the board of directors may be altered or repealed and new by-laws made by the shareholders, and the shareholders may prescribe in the by-laws that any by-law made by them shall not be altered or repealed by the board of directors. A copy of any proposed by-law to be submitted for adoption by shareholders must be included with the notice of the meeting so that all shareholders entitled to vote thereon will have received a copy thereof. Section 5.6 Loans. The corporation may lend money to, or guarantee any ----- obligation of, or otherwise assist any director, officer or other employee of the corporation or of its subsidiaries, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute. Section 5.7 Section Headings. Section headings in these by-laws are for ---------------- convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein. Section 5.8 Inconsistent Provisions. In the event that any provision of ----------------------- these by-laws is or becomes inconsistent with any provision of the Certificate of Incorporation, the New Jersey Business Corporation Act or any other applicable law, the provision of these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect. -7- EX-5 5 dex5.txt INDENTURE DATED AS OF MARCH 15, 2002 =============================================================================== CHIQUITA BRANDS INTERNATIONAL, INC. and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, Trustee ------------- INDENTURE Dated as of March 15, 2002 ----------------- Senior Debt Securities =============================================================================== CHIQUITA BRANDS INTERNATIONAL, INC. Reconciliation and tie showing the location in the Indenture dated as of March 15, 2002 of the provisions inserted pursuant to Sections 310 to 318(a), inclusive, of the Trust Indenture Act of 1939. Trust Indenture Act Section Indenture - ------- --------- Section 310 (a)(1) ..................................................609 (a)(2) ..................................................609 (a)(3) .......................................Not Applicable (a)(4) .......................................Not Applicable (b) ..................................................608 ...............................................610(d) (c) .......................................Not Applicable Section 311 (a) ..................................................613 (b) ..................................................613 (c) .......................................Not Applicable Section 312 (a) ..................................................701 (b) ..................................................702 (c) ..................................................702 Section 313 (a) ..................................................703 (b) ..................................................703 (c) ..................................................703 (d) ..................................................703 Section 314 (a) ..................................................704 (b) .......................................Not Applicable (c) ..................................................102 (c)(1) ..................................................102 (c)(2) ..................................................102 (c)(3) ..................................................102 (d) .......................................Not Applicable (e) ..................................................102 (f) .......................................Not Applicable Section 315 (a) ...............................................601(a) (b) ..................................................602 (c) ...............................................601(b) (d) ...............................................601(c) Section 316 (a)(1)(A) ..........................................502 and 512 (a)(1)(B) ..................................................513 (a)(2) .......................................Not Applicable (b) ..................................................508 (c) .......................................Not Applicable Section 317 (a)(1) ..................................................503 (a)(2) ..................................................504 (b) .................................................1003 Section 318 (a) ..................................................107 - ----------------------------- NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. TABLE OF CONTENTS Page ---- ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS GENERAL APPLICATION......................................1 SECTION 101. Definitions..............................................1 SECTION 102. Compliance Certificates and Opinions....................10 SECTION 103. Form of Documents Delivered to Trustee..................11 SECTION 104. Acts of Holders.........................................11 SECTION 105. Notices, Etc., to Trustee and Company...................12 SECTION 106. Notice to Holders; Waiver...............................13 SECTION 107. Conflict with Trust Indenture Act.......................13 SECTION 108. Effect of Headings and Table of Contents................14 SECTION 109. Successors and Assigns..................................14 SECTION 110. Separability Clause.....................................14 SECTION 111. Benefits of Indenture...................................14 SECTION 112. Governing Law...........................................14 SECTION 113. Non-Business Day........................................14 SECTION 114. Immunity of Incorporators, Stockholders, Officers and Directors...............................................15 SECTION 115. Judgment Currency.......................................15 ARTICLE TWO DEBT SECURITY FORM......................................16 SECTION 201. Form of Debt Securities.................................16 SECTION 202. Form of Trustee's Certificate of Authentication.........17 SECTION 203. Debt Securities in Global Form..........................17 ARTICLE THREE THE DEBT SECURITIES.....................................17 SECTION 301. Title; Payment and Terms................................17 SECTION 302. Denominations...........................................20 SECTION 303. Execution, Authentication, Delivery and Dating..........20 SECTION 304. Temporary Debt Securities and Exchange of Debt Securities..............................................21 SECTION 305. Registration of Transfer and Exchange...................22 SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities...25 SECTION 307. Payment of Interest; Interest Rights Preserved..........26 SECTION 308. Persons Deemed Owners...................................27 SECTION 309. Cancellation............................................27 SECTION 310. Computation of Interest.................................28 ARTICLE FOUR SATISFACTION AND DISCHARGE..............................28 SECTION 401. Satisfaction and Discharge of Debt Securities of any Series..................................................28 SECTION 402. Application of Trust Money..............................29 SECTION 403. Satisfaction and Discharge of Indenture.................30 SECTION 404. Reinstatement...........................................30 Page ---- ARTICLE FIVE REMEDIES................................................31 SECTION 501. Events of Default.......................................31 SECTION 502. Acceleration of Maturity; Rescission and Annulment.....33 SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..............................................35 SECTION 504. Trustee May File Proofs of Claim........................36 SECTION 505. Trustee May Enforce Claims Without Possession of Debt Securities.........................................37 SECTION 506. Application of Money Collected..........................37 SECTION 507. Limitation on Suits.....................................37 SECTION 508. Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any..............38 SECTION 509. Restoration of Rights and Remedies......................38 SECTION 510. Rights and Remedies Cumulative..........................38 SECTION 511. Delay or Omission Not Waiver............................39 SECTION 512. Control by Holders......................................39 SECTION 513. Waiver of Past Defaults.................................39 SECTION 514. Waiver of Stay or Extension Laws........................40 ARTICLE SIX THE TRUSTEE.............................................40 SECTION 601. Certain Duties and Responsibilities.....................40 SECTION 602. Notice of Defaults......................................41 SECTION 603. Certain Rights of Trustee...............................41 SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities..............................................42 SECTION 605. May Hold Debt Securities................................42 SECTION 606. Money Held in Trust.....................................43 SECTION 607. Compensation and Reimbursement..........................43 SECTION 608. Disqualification; Conflicting Interests.................44 SECTION 609. Corporate Trustee Required, Different Trustees for Different Series; Eligibility..........................44 SECTION 610. Resignation and Removal; Appointment of Successor.......44 SECTION 611. Acceptance of Appointment by Successor..................46 SECTION 612. Merger, Conversion, Consolidation or Succession to Business................................................47 SECTION 613. Preferential Collection of Claims Against Company.......47 SECTION 614. Authenticating Agents...................................48 ARTICLE SEVEN HOLDERS' REPORTS BY TRUSTEE AND COMPANY.................................................50 SECTION 701. Preservation of Information; Company to Furnish Trustee Names and Addresses of Holders..................50 SECTION 702. Communications to Holders...............................50 SECTION 703. Reports by Trustee......................................50 SECTION 704. Reports by Company......................................51 ii Page ---- ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER...........51 SECTION 801. Company May Consolidate, Etc., Only on Certain Terms....51 SECTION 802. Successor Corporation Substituted.......................53 ARTICLE NINE SUPPLEMENTAL INDENTURES.................................53 SECTION 901. Supplemental Indentures Without Consent of Holders......53 SECTION 902. Supplemental Indentures With Consent of Holders.........55 SECTION 903. Execution of Supplemental Indentures....................56 SECTION 904. Effect of Supplemental Indentures.......................56 SECTION 905. Conformity With Trust Indenture Act.....................56 SECTION 906. Reference in Debt Securities to Supplemental Indentures.57 SECTION 907. Revocation and Effect of Consents.......................57 ARTICLE TEN COVENANTS...............................................57 SECTION 1001. Payment of Principal (and Premium, if any) and Interest, if any........................................57 SECTION 1002. Maintenance of Office or Agency.........................57 SECTION 1003. Money for Debt Securities Payments to Be Held in Trust..58 SECTION 1004. Payment of Taxes and Other Claims.......................60 SECTION 1005. Maintenance of Properties...............................60 SECTION 1006. Statements as to Compliance.............................60 SECTION 1007. Corporate Existence.....................................61 SECTION 1008. Waiver of Certain Covenants.............................61 ARTICLE ELEVEN REDEMPTION OF DEBT SECURITIES...........................61 SECTION 1101. Applicability of This Article...........................61 SECTION 1102. Election to Redeem; Notice to Trustee...................62 SECTION 1103. Selection by Trustee of Debt Securities to Be Redeemed................................................62 SECTION 1104. Notice of Redemption....................................63 SECTION 1105. Deposit of Redemption Price.............................63 SECTION 1106. Debt Securities Payable on Redemption Date..............63 SECTION 1107. Debt Securities Redeemed in Part........................64 ARTICLE TWELVE SINKING FUNDS...........................................64 SECTION 1201. Applicability of This Article...........................64 SECTION 1202. Satisfaction of Sinking Fund Payments With Debt Securities..............................................65 SECTION 1203. Redemption of Debt Securities for Sinking Fund..........65 ARTICLE THIRTEEN ADDITIONAL AMOUNTS......................................65 SECTION 1301. Applicability of this Article...........................65 iii Page ---- ARTICLE FOURTEEN SECURITIES IN FOREIGN CURRENCIES........................66 SECTION 1401. Applicability of Article................................66 iv This is an INDENTURE dated as of March 15, 2002, between Chiquita Brands International, Inc., a corporation duly incorporated and existing under the laws of New Jersey and having its principal office at 250 East Fifth Street, Cincinnati, Ohio (hereinafter called the "Company"), and Wells Fargo Bank Minnesota, National Association, a national banking association, as Trustee (hereinafter called the "Trustee"). RECITALS OF THE COMPANY The Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called the "Debt Securities") evidencing its unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Debt Securities, unlimited as to principal amount, to have such titles, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company proposes to do all things necessary to make the Debt Securities, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Debt Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Debt Securities or any series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS GENERAL APPLICATION SECTION 101. Definitions. ----------- For all purposes of this Indenture and all Debt Securities issued hereunder, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such generally accepted accounting principles as in effect and as implemented by the Company on the date of this Indenture; and (4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally in Article Three and Article Six, are defined in those Articles. "Act", when used with respect to any Holder, has the meaning specified in Section 104. "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. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control", when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized to authenticate and deliver Debt Securities on behalf of the Trustee for the Debt Securities of any series pursuant to Section 614. "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. "Board of Directors" means the board of directors of the Company or any duly authorized committee of that board or any director or directors and/or officer or officers of the Company to whom that board or committee shall have duly delegated its authority. "Board Resolution" means (1) a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, (2) a 2 certificate signed by the director or directors or officer or officers to whom the Board of Directors of the Company shall have duly delegated its authority, and delivered to the Trustee for the Debt Securities of any series or (3) a certificate of terms approved by the Court pursuant to the Plan. "Business Day", when used with respect to any particular Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close, and shall otherwise mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions, at the place where any specified act pursuant to this Indenture is to occur, are authorized or obligated by law to close. "Capital Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP. "Certificate of a Firm of Independent Public Accountants" means a certificate signed by any firm of independent public accountants of recognized standing selected by the Company. The term "independent" when used with respect to any specified firm of public accountants means such a firm which (1) is in fact independent, (2) does not have any direct financial interest or any material indirect financial interest in the Company or in any Affiliate of the Company, and (3) is not connected with the Company or any Affiliate of the Company as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions, but such firm may be the regular auditors employed by the Company. Whenever it is herein provided that any Certificate of a Firm of Independent Public Accountants shall be furnished to the Trustee for Debt Securities of any series, such Certificate shall state that the signer has read this definition and that the signer is independent within the meaning hereof. "Code" means the Internal Revenue Code of 1986, as amended from time to time. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor corporation. "Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by (1) the Chairman of the Board, a 3 Vice Chairman of the Board, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, or (2) by any two Persons designated in a Company Order previously delivered to the Trustee for the Debt Securities of any series by any two of the foregoing officers and delivered to the Trustee for the Debt Securities of such series. "Corporate Trust Office" means the office of the Trustee for Debt Securities of any series at which at any particular time its corporate trust business shall be principally administered, which office of the Trustee, at the date of the execution of this Indenture, is located at Sixth Street and Marquette Avenue, Minneapolis, MN 55479; Mail Station N930-3-120. "corporation" includes corporations, associations, joint stock companies and business trusts. "Court" means the United States Bankruptcy Court for the Southern District of Ohio. "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. "Debt Securities" means securities, including Global Securities (unless the context indicates otherwise), evidencing unsecured indebtedness of the Company authenticated and delivered under this Indenture. "Debt Security Register" and "Debt Security Registrar" have the respective meanings specified in Section 305. "Default" means an event or circumstance which, upon notice or the passage of time, would constitute an Event of Default. "Defaulted Interest" has the meaning specified in Section 307. "Discounted Debt Security" means any Debt Security which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Dollars" and the sign "$" mean the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. "Event of Default" has the meaning specified in Section 501. 4 "Exchange Act" means the Securities Exchange Act of 1934, as amended. "GAAP", when used with respect to any Debt Security, means generally accepted accounting principles as in effect in the United States on the date of issuance of such Debt Securities. "Global Security" means a Debt Security in global form established pursuant to Section 203. "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. "Hedging Obligations" means, with respect to any Person, the obligations of such Person under (1) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; and (2) other agreements or arrangements designed to protect against fluctuations in interest rates, currency exchange rates or specific financial and other similar risks (including commodity risks). "Holder", when used with respect to any Debt Security, means the Person in whose name a Debt Security is registered in the Debt Security Register. "Indebtedness" means, with respect to any specified Person, any indebtedness of such Person, contingent or otherwise, in respect of: (1) borrowed money; (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (3) banker's acceptances; (4) representing Capital Lease Obligations; (5) the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or (6) representing any Hedging Obligations; if and to the extent any of the preceding (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term "Indebtedness", with respect to any Person, includes (a) all 5 Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) (the amount of such Indebtedness as of any date being deemed to be the lesser of the value of such property or assets as of such date or the principal amount of such Indebtedness of such other Person) and, (b) to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person. The amount of any Indebtedness outstanding as of any date shall be: (1) the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and (2) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness. "Indenture" means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of a particular series of Debt Securities established as contemplated by Section 301. "Interest", when used with respect to a Discounted Debt Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Interest Payment Date", when used with respect to any Debt Security, means the Stated Maturity of an installment of interest on such Debt Security. "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. "Lien" means any mortgage, lien, pledge, security interest, conditional sale or other title retention agreement, charge or other security interest or encumbrance of any kind, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement or any lease in the nature thereof; any option or other agreement to sell or give a security interest therein and any filing of, or agreement to file, any financing statement under the Uniform Commercial Code (or equivalent statutes of any jurisdiction). "Material Subsidiary", when used with respect to any Debt Security, has the meaning set forth in the Board Resolution relating to such Debt Security. "Maturity", when used with respect to any Debt Security, means the date on which the principal of that Debt Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption or otherwise. "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President (any reference to 6 a Vice President of the Company herein shall be deemed to include any Vice President of the Company whether or not designated by a number or a word or words added before or after the title "Vice President"), and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee for the Debt Securities of any series. "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or counsel to the Company or may be other counsel satisfactory to the Trustee for the Debt Securities of any series. "Outstanding", when used with respect to Debt Securities, means, as of the date of determination, all Debt Securities theretofore authenticated and delivered under this Indenture, except: (1) Debt Securities theretofore canceled by the Trustee for such Debt Securities or delivered to such Trustee for cancellation; (2) Debt Securities or portions thereof for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee for such Debt Securities or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Debt Securities (including Debt Securities with respect to which the Company has effected satisfaction and discharge as provided in Article Four, except to the extent provided in such Article); provided, however, that, if such Debt Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture, or provision therefor satisfactory to such Trustee has been made; and (3) Debt Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Debt Securities have been authenticated and delivered pursuant to this Indenture, other than any such Debt Securities in respect of which there shall have been presented proof satisfactory to the Trustee for such Debt Securities that any such Debt Securities are held by bona fide purchasers in whose hands the Debt Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (a) Debt Securities owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee for such Debt Securities shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Debt Securities which such Trustee knows to be so owned shall be so disregarded, provided, that Debt Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of such Trustee the pledgee's right so to act with respect to such Debt Securities and that the pledgee is not the Company or any Affiliate of the Company and (b) the principal amount of a Discounted Debt Security that shall be deemed to be 7 Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 502. "Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Debt Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Debt Securities of any particular series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Debt Securities of that series are payable, as contemplated by Section 301. "Plan" means the Company's Second Amended Plan of Reorganization, dated March 8, 2002, under Chapter 11 of the United States Bankruptcy Code. "Predecessor Debt Security" of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by that particular Debt Security, and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 306 in lieu of a mutilated, destroyed, lost or stolen Debt Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Debt Security. "Redemption Date", when used with respect to any Debt Security to be redeemed or purchased in whole or in part, means the date fixed for such redemption or purchase by or pursuant to this Indenture and such Debt Security. "Redemption Price", when used with respect to any Debt Security to be redeemed or purchased, means the price at which it is to be redeemed or purchased pursuant to the terms of this Indenture and such Debt Security. "Regular Record Date" for the interest payable on any Interest Payment Date on the Debt Securities of any series, means the date, if any, specified for that purpose as contemplated by Section 301. "Required Currency" has the meaning specified in Section 115. "Responsible Officer", when used with respect to the Trustee for any series of Debt Securities, means the chairman or vice chairman of the board of directors, the chairman or vice chairman of the executive committee of the board of directors, the president, any vice president (whether or not designated by a number or a word or words added before or after the title "vice president"), the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or 8 assistant trust officer, the controller or any assistant controller or any other officer of such Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. A "series" of Debt Securities means all Debt Securities denoted as part of the same series authorized by or pursuant to a particular Board Resolution. "Special Record Date" for the payment of any Defaulted Interest on the Debt Securities of any series means a date fixed by the Trustee for such series pursuant to Section 307. "Stated Maturity", when used with respect to any security or any installment of principal thereof or interest thereon, means the date specified in such security representing such installment of interest as the fixed date on which the principal of such security or such installment of principal or interest is due and payable. "Subsidiary" shall mean, as to any Person, any corporation or other entity more than fifty percent (50%) of whose Equity Interests having by the terms thereof, at that time, ordinary voting power to elect a majority of the directors (or comparable positions) of such entity is at the time owned by such Person directly or indirectly through Subsidiaries (it being understood that, in the case of the Company, unless the context otherwise indicates, "Subsidiary" shall mean any direct or indirect Subsidiary of the Company). "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument and, subject to the provisions of Article Six hereof, shall also include its successors and assigns as Trustee hereunder. If there shall be at one time more than one Trustee hereunder, "Trustee" shall mean each such Trustee and shall apply to each such Trustee only with respect to those series of Debt Securities with respect to which it is serving as Trustee. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and in force at the date as of which this Indenture was executed, except as provided in Section 905 hereof and except that any rules and regulations subsequently prescribed by the Commission pursuant to Section 314(a) of that Act shall apply. "U.S. 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 9 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. "U.S. Government Obligations" means securities which are (i) direct obligations of the government of the United States or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government of the United States, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government and are not callable or redeemable at the option of the issuer thereof. "United States" means the United States of America (including the States and the District of Columbia), its territories, possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico). "Yield to Maturity", when used with respect to any Discounted Debt Security, means the yield to maturity, if any, set forth on the face thereof. SECTION 102. Compliance Certificates and Opinions. ------------------------------------ Upon any application or request by the Company to the Trustee for any series of Debt Securities to take any action under any provision of this Indenture, the Company shall furnish to such Trustee (i) an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, and (iii) if appropriate, a Certificate of a Firm of Independent Public Accountants; provided, that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and 10 (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. SECTION 103. Form of Documents Delivered to Trustee. -------------------------------------- In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 104. Acts of Holders. --------------- (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee for the appropriate series of Debt Securities and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Debt Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee for the appropriate series of Debt Securities and the Company and any agent of such Trustee or the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by 11 the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or association or a member of a partnership, or an official of a public or governmental body, on behalf of such corporation, association, partnership or public or governmental body or by a fiduciary, such certificate or affidavit shall also constitute sufficient proof of his authority. (c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee for the appropriate series of Debt Securities deems sufficient. (d) The principal amount and serial numbers of Debt Securities held by any Person, and the date of holding the same, shall be proved by the Debt Security Register. (e) In determining whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, the principal amount of a Discounted Debt Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of the principal thereof that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 at the time the taking of such action by the Holders of such requisite principal amount is evidenced to the Trustee for such Debt Securities. (f) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Debt Security shall bind every future Holder of the same Debt Security and the Holder of every Debt Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee for such Debt Securities, the Debt Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Debt Security. SECTION 105. Notices, Etc., to Trustee and Company. ------------------------------------- Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee for a series of Debt Securities by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, Attention: Corporate Trust Department, or 12 (2) the Company by such Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in paragraphs (3), (4) and (5) of Section 501) if in writing and mailed, first class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Company. SECTION 106. Notice to Holders; Waiver. ------------------------- Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders if in writing and mailed, first class postage prepaid, to each Holder affected by such event, at his address as it appears in the Debt Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. 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. In any case where notice to Holders of Debt Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice mailed in the manner prescribed by this Indenture shall be deemed to have been given whether or not received by any particular Holder. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee for such Debt Securities shall constitute a sufficient notification for every purpose hereunder. 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. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee for such Debt Securities, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 107. Conflict with Trust Indenture Act. --------------------------------- If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control. 13 SECTION 108. Effect of Headings and Table of Contents. ---------------------------------------- The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 109. Successors and Assigns. ---------------------- All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 110. Separability Clause. ------------------- In any case any provision in this Indenture or in the Debt Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 111. Benefits of Indenture. --------------------- Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Debt Security Registrar and their successors hereunder and the Holders of Debt Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 112. Governing Law. ------------- THIS INDENTURE AND THE DEBT SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE TRUSTEE, THE COMPANY, ANY OTHER OBLIGORS IN RESPECT OF THE DEBT SECURITIES AND (BY THEIR ACCEPTANCE OF THE DEBT SECURITIES) THE HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE DEBT SECURITIES. SECTION 113. Non-Business Day. ---------------- In any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Debt Security of any particular series shall not be a Business Day at any Place of Payment with respect to Debt Securities of that series, then (notwithstanding any other provision of this Indenture or of the Debt Securities) payment of principal of (and premium, if any) and interest, if any, with respect to such Debt Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest 14 Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. SECTION 114. Immunity of Incorporators, Stockholders, Officers and Directors. --------------------------------------------------------------- No recourse shall be had for the payment of the principal of (and premium, if any), or the interest, if any, on any Debt Security of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Debt Securities of each series are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities of any series, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Debt Securities of each series. 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. 15 ARTICLE TWO DEBT SECURITY FORM SECTION 201. Form of Debt Securities. ----------------------- The Debt Securities of each series shall be in such fully registered form as shall be established by or pursuant to a Board Resolution, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law, with any rule or regulation made pursuant thereto, with any rules of any securities exchange or to conform to usage, as may, consistent herewith, be determined by the officers executing such Debt Securities, as evidenced by their execution of such Debt Securities. Prior to the delivery of a Debt Security of any series in any such form to the Trustee for the Debt Securities of such series for authentication, the Company shall deliver to such Trustee the following: (1) The Board Resolution by or pursuant to which such form of Debt Security has been approved; (2) An Officers' Certificate dated the date such Certificate is delivered to such Trustee stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Debt Securities in such form have been complied with; and (3) Other than in connection with the delivery of Debt Securities pursuant to the Plan, an Opinion of Counsel stating that Debt Securities in such form, when (a) completed by appropriate insertions and executed and delivered by the Company to such Trustee for authentication in accordance with this Indenture, (b) authenticated and delivered by such Trustee in accordance with this Indenture within the authorization as to aggregate principal amount established from time to time by the Board of Directors and (c) sold in the manner specified in such Opinion of Counsel, will be the legal, valid and binding obligations of the Company, subject to applicable bankruptcy, reorganization, insolvency and other similar laws generally affecting creditors' rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Debt Securities. The definitive Debt Securities shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Debt Securities, as evidenced by their execution thereof. 16 SECTION 202. Form of Trustee's Certificate of Authentication. ----------------------------------------------- The Certificate of Authentication on all Debt Securities shall be in substantially the following form: "This is one of the Debt Securities, of the series designated herein, described in the within-mentioned Indenture. ______________________________ as Trustee By:___________________________ Authorized Officer" SECTION 203. Debt Securities in Global Form. ------------------------------ If any Debt Security of a series is issuable in global form, such Debt Security may provide that it shall represent the aggregate amount of Outstanding Debt Securities from time to time endorsed thereon and may also provide that the aggregate amount of outstanding Debt Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Debt Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Global Security. Any instructions by the Company with respect to a Global Security, after its initial issuance, shall be in writing but need not comply with Section 102. Global Securities may be issued in either temporary or permanent form. None of the Company, the Trustee, any Paying Agent or the Debt Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. ARTICLE THREE THE DEBT SECURITIES SECTION 301. Title; Payment and Terms. ------------------------ The aggregate principal amount of Debt Securities which may be authenticated and delivered and outstanding under this Indenture is unlimited. The Debt Securities may be issued up to the aggregate principal amount of Debt Securities from time to time authorized by or pursuant to a Board Resolution. 17 The Debt Securities may be issued in one or more series, each of which shall be issued pursuant to a Board Resolution. With respect to any particular series of Debt Securities, the Board Resolution relating thereto shall specify: (1) the title of the Debt Securities of that series (which shall distinguish the Debt Securities of that series from all other series of Debt Securities); (2) any limit upon the aggregate principal amount of the Debt Securities of that series which may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of that series pursuant to Section 304, 305, 306, 906 or 1107 or otherwise pursuant to any covenant permitting the purchase of a portion of the Debt Securities of that series); (3) the date or dates (or manner of determining the same) on which the principal of the Debt Securities of that series is payable (which, if so provided in such Board Resolution, may be determined by the Company from time to time and set forth in the Debt Securities of the series issued from time to time); (4) the rate or rates (or the manner of calculation thereof) at which the Debt Securities of that series shall bear interest (if any), the date or dates from which such interest shall accrue (which, in either case or both, if so provided in such Board Resolution, may be determined by the Company from time to time and set forth in the Debt Securities of the series issued from time to time), the Interest Payment Dates on which such interest shall be payable (or manner of determining the same) and the Regular Record Date for the interest payable on any Debt Securities on any Interest Payment Date whether and under what circumstances Additional Amounts on Debt Securities of that series shall be payable; (5) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest, if any, on Debt Securities of that series shall be payable, any Debt Securities of that series may be surrendered for registration of transfer, any Debt Securities of that series may be surrendered for exchange, and notices and demands to or upon the Company in respect of the Debt Securities of that series and this Indenture may be served; (6) the period or periods within which, the price or prices at which and the terms and conditions upon which Debt Securities of that series may be redeemed, in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem or purchase Debt Securities of that series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which, Debt Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; 18 (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; (11) the denominations in which any Debt Securities of that series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof; (12) if other than the principal amount thereof, the portion of the principal amount of Debt Securities of that series which shall be payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502; (13) any addition to, or modification or deletion of, any Events of Default or covenants of the Company with respect to the Debt Securities of that series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein; (14) if a Person other than Wells Fargo Bank Minnesota, N.A. is to act as Trustee for the Debt Securities of that series, the name and location of the Corporate Trust Office of such Trustee; (15) if other than as set forth in Section 401, provisions for the satisfaction and discharge of this Indenture with respect to the Debt Securities of that series; (16) any provision relating to the defeasance of the obligations of the Company in connection with the Debt Securities of that series; (17) any provisions regarding exchangeability or conversion of the Debt Securities of that series; (18) whether the Debt Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the U.S. Depositary for such Global Security or Securities; whether such global form shall be 19 permanent or temporary; the manner in which and the circumstances under which Global Securities representing Debt Securities of the series may be exchanged for Debt Securities in definitive form, if other than, or in addition to, the manner and circumstances specified in Section 305 hereof; the extent to which, or the manner in which, any interest payable on any Global Security on an Interest Payment Date will be paid, if other than in the manner provided in Section 307; the manner in which the principal of, or premium, if any, on, any Global Security will be paid, if other than as set forth elsewhere herein; and (19) any other terms of that series (which terms shall not be inconsistent with the provisions of this Indenture). All Debt Securities of any particular series shall be substantially identical except as to denomination, rate of interest, Stated Maturity and the date from which interest, if any, shall accrue, and except as may otherwise be provided in or pursuant to such Board Resolution relating thereto. The terms of such Debt Securities, as set forth above, may be determined by the Company from time to time if so provided in or established pursuant to the authority granted in a Board Resolution. All Debt Securities of any one series need not be issued at the same time, and unless otherwise provided, a series may be reopened for issuance of additional Debt Securities of such series. SECTION 302. Denominations. ------------- Unless otherwise provided with respect to any series of Debt Securities as contemplated by Section 301, all Debt Securities of a series shall be issuable in denominations of $1,000 and any integral multiple thereof. SECTION 303. Execution, Authentication, Delivery and Dating. ---------------------------------------------- The Debt Securities shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, or its President or one of its Vice Presidents. The signature of any of these officers on the Debt Securities may be manual or facsimile. Debt Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Debt Securities or did not hold such offices at the date of such Debt Securities. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Debt Securities of any series executed by the Company to the Trustee for the Debt Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Debt Securities, and such Trustee, in accordance with the Company Order, shall authenticate and deliver such Debt Securities. If all the Debt Securities of any one series are not to be issued at one time and if a Board Resolution relating to such Debt Securities shall so permit, such 20 Company Order may set forth procedures acceptable to the Trustee for the issuance of such Debt Securities, including, without limitation, procedures with respect to interest rate, Stated Maturity, date of issuance and date from which interest, if any, shall accrue. Notwithstanding any contrary provision herein, if all Debt Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution, Officers' Certificate and Opinion of Counsel otherwise required pursuant to Sections 102 and 201 at or prior to the time of authentication of each Debt Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Debt Security of such series to be issued. Each Debt Security shall be dated the date of its authentication. No Debt Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Debt Security a certificate of authentication substantially in the form provided for herein manually executed by the Trustee for such Debt Security or on its behalf pursuant to Section 614, and such certificate upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt Security has been duly authenticated and delivered hereunder. If the Company shall establish pursuant to Section 301 that the Debt Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 303 and the Company Order with respect to such series, authenticate and deliver one or more Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Debt Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the U.S. Depositary for such Global Security or Securities or the nominee of such depositary, and (iii) shall bear a legend substantially to the following effect: "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" and such other legend as may be required by the U.S. Depositary. SECTION 304. Temporary Debt Securities and Exchange of Debt Securities. --------------------------------------------------------- Pending the preparation of definitive Debt Securities of any particular series, the Company may execute, and upon Company Order the Trustee for the Debt Securities of such series shall authenticate and deliver, in the manner specified in Section 303, temporary Debt Securities which are printed, lithographed, typewritten, photocopied or otherwise produced, in any denomination, with like terms and conditions as the definitive Debt Securities of like series in lieu of which they are issued, and with such appropriate insertions, omissions, substitutions and other variations as the officers 21 executing such Debt Securities may determine, as evidenced by their execution of such Debt Securities. If temporary Debt Securities of any particular series are issued, the Company will cause definitive Debt Securities of that series to be prepared without unreasonable delay. After the preparation of such definitive Debt Securities, the temporary Debt Securities of such series shall be exchangeable for such definitive Debt Securities and of a like Stated Maturity and with like terms and provisions upon surrender of the temporary Debt Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities of any particular series, the Company shall execute and (in accordance with a Company Order delivered at or prior to the authentication of the first definitive Debt Security of such series) the Trustee for the Debt Securities of such series shall authenticate and deliver in exchange therefor a like principal amount of definitive Debt Securities of authorized denominations of the same series and of a like Stated Maturity and with like terms and provisions. Until exchanged as hereinabove provided, the temporary Debt Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of the same series and with like terms and conditions authenticated and delivered hereunder. SECTION 305. Registration of Transfer and Exchange. ------------------------------------- The Company shall keep or cause to be kept for the Debt Securities of each series a register (the register maintained in such office being herein sometimes referred to as the "Debt Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of transfer and exchange of Debt Securities. American Security Transfer Company Limited Partnership, d/b/a Securities Transfer Company is hereby initially appointed "Debt Security Registrar" for such purposes. Upon surrender for registration of transfer of any Debt Security of any particular series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee for the Debt Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Debt Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions. Except as set forth below, at the option of the Holder, Debt Securities of any particular series may be exchanged for other Debt Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions, upon surrender of the Debt Securities to be exchanged at such office or agency. Whenever any Debt Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Debt Securities shall authenticate and deliver, the Debt Securities which the Holder making the exchange is entitled to receive. 22 All Debt Securities issued upon any registration of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange. Every Debt Security presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Trustee for such Debt Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Debt Security Registrar for such series duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Debt Securities, other than exchanges pursuant to Section 304, 906, 1013 or 1107 not involving any transfer. The Company shall not be required (i) to issue, register the transfer of or exchange Debt Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Debt Securities of that series selected for redemption under Section 1104 and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Debt Security so selected for redemption as a whole or in part, except the unredeemed portion of any Debt Security being redeemed in part. Each Global Security representing a Debt Security shall be registered in the name of the U.S. Depositary designated for such series of Debt Security or a nominee thereof and delivered to such Depositary or nominee thereof or custodian therefor, and each such Global Security shall constitute a single Debt Security for all purposes of this Indenture. Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Debt Securities in definitive form, a Global Security representing all or a portion of the Debt Securities of a series may not be transferred except as a whole by the U.S. Depositary for such series to a nominee of such U.S. Depositary or by a nominee of such U.S. Depositary to such depositary or another nominee of such U.S. Depositary or by such U.S. Depositary or any other such nominee to a successor U.S. Depositary for such series or a nominee of such successor U.S. Depositary. If at any time the U.S. Depositary for the Debt Securities of a series notifies the Company that it is unwilling or unable to continue as U.S. Depositary or clearing agent for the Debt Securities of such series or if at any time the U.S. Depositary for Debt Securities of such series shall no longer be a clearing agency registered and in good standing under the Exchange Act or other applicable statute or regulation, the Company shall appoint a successor U.S. Depositary with respect to the Debt Securities of 23 such series. If a successor U.S. Depositary for the Debt Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. The Company may at any time and in its sole discretion determine that the Debt Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. If the Debt Securities of any series shall have been issued in the form of one or more Global Securities and if an Event of Default with respect to the Debt Securities of such series shall have occurred and be continuing and the U.S. Depositary or The Trustee requests the Company to issue one or more definitive Debt Securities, the Company will promptly execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver Debt Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. If specified by the Company pursuant to Section 301 with respect to the Debt Securities of a series, the U.S. Depositary for such series of Debt Securities may surrender a Global Security for such series of Debt Securities in exchange in whole or in part for Debt Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such U.S. Depositary. Thereupon, the Company shall execute and the Trustee shall authenticate and deliver, without charge: (i) to each Person specified by the U.S. Depositary a new Debt Security or Securities of the same series, of like tenor and terms and of any authorized denomination as requested by such Person in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (ii) to the U.S. Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of the Debt Securities delivered to Holders thereof. Upon the exchange of a Global Security for Debt Securities in definitive form, such Global Security shall be canceled by the Trustee. Definitive Debt Securities 24 issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the U.S. Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such definitive Debt Securities to the Persons in whose names such Debt Securities are so registered. SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities. ----------------------------------------------------- If (i) any mutilated Debt Security is surrendered to the Trustee for such Debt Security, or the Company and the Trustee for a Debt Security receive evidence to their satisfaction of the destruction, loss or theft of any Debt Security, and (ii) there is delivered to the Company and such Trustee such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or such Trustee that such Debt Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request such Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Debt Security or in exchange for such mutilated Debt Security, a new Debt Security of the same series and in a like principal amount and of a like Stated Maturity and with like terms and conditions and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Debt Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Debt Security, pay such Debt Security (without surrender thereof except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish to the Company and the Trustee for such Debt Security such security or indemnity as may be required by them to save each of them harmless, and in case of destruction, loss or theft, evidence satisfactory to the Company and such Trustee and any agent of either of them of the destruction, loss or theft of such Debt Security and the ownership thereof. Upon the issuance of any new Debt Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including all fees and expenses of the Trustee for such Debt Security) connected therewith. Every new Debt Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security or in exchange for any mutilated Debt Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debt Securities of the same series, duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities. 25 SECTION 307. Payment of Interest; Interest Rights Preserved. ---------------------------------------------- Interest on any Debt Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Debt Security, be paid to the Person in whose name that Debt Security (or one or more Predecessor Debt Securities) is registered at the close of business on the Regular Record Date for such interest payment. Unless otherwise provided with respect to the Debt Securities of any series, payment of interest may be made at the option of the Company by check mailed or delivered to the address of the Person entitled thereto as such address shall appear in the Debt Security Register or by transfer to an account maintained by the payee with a bank located inside the United States. Any interest on any Debt Security of any particular series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Debt Securities of that series (or their respective Predecessor Debt Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee for the Debt Securities of such series in writing of the amount of Defaulted Interest proposed to be paid on each Debt Security of that series and the date of the proposed payment, and at the same time the Company shall deposit with such Trustee an amount of money (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to such Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon such Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Debt Securities of that series at such Holder's address as it appears in the Debt Security Register not less than 10 days prior to such Special Record Date. Such Trustee may, in its discretion, in the name and at the expense of the Company, cause a similar notice to be published at least once in a newspaper published in the English language customarily on each Business Day and of general circulation in New York, New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed 26 payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Debt Securities of that series (or their respective Predecessor Debt Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest on Debt Securities of any particular series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debt Securities may be listed, and upon such notice as may be required by such exchange, if, after notice is given by the Company to the Trustee for the Debt Securities of such series of the proposed manner of payment pursuant to this clause, such manner of payment shall be deemed practicable by such Trustee. Subject to the foregoing provisions of this Section and Section 305, each Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security. SECTION 308. Persons Deemed Owners. --------------------- Prior to due presentment of a Debt Security for registration of transfer, the Company, the Trustee for such Debt Security and any agent of the Company or such Trustee may treat the Person in whose name any such Debt Security is registered as the owner of such Debt Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Debt Security and for all other purposes whatsoever, whether or not such Debt Security be overdue, and neither the Company, such Trustee nor any agent of the Company or such Trustee shall be affected by notice to the contrary. SECTION 309. Cancellation. ------------ All Debt Securities surrendered for payment, redemption, registration of transfer or exchange, or delivered in satisfaction of any sinking fund payment, shall, if surrendered to any Person other than the Trustee for such Debt Securities, be delivered to such Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for Debt Securities of a series for cancellation any Debt Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Debt Securities so delivered shall be promptly canceled by such Trustee. Notwithstanding any other provision of this Indenture to the contrary, in the case of a series, all the Debt Securities of which are not to be originally issued at one time, a Debt Security of such series shall not be deemed to have been Outstanding at any time hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Debt Security is delivered to the Trustee for such Debt Security for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Debt Security so delivered to such Trustee shall be promptly canceled by it. No Debt 27 Securities shall be authenticated in lieu of or in exchange for any Debt Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Debt Securities held by the Trustee for such Debt Securities shall be disposed of by such Trustee in accordance with its standard procedures and a certificate of disposition evidencing such disposition of Debt Securities shall be provided to the Company by such Trustee. SECTION 310. Computation of Interest. ----------------------- Except as otherwise specified as contemplated by Section 301 for Debt Securities of any particular series, interest on the Debt Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Debt Securities of any Series. ----------------------------------------------------------- (a) The Company shall be deemed to have satisfied and discharged the entire indebtedness on all the Debt Securities of any particular series and, so long as no Event of Default shall be continuing, the Trustee for the Debt Securities of such series, upon Company Request and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of such indebtedness, when: (1) either: (A) all Debt Securities of such series theretofore authenticated and delivered (other than (i) any Debt Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Debt Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in the last paragraph of Section 1003) have been delivered to such Trustee for cancellation; or (B) all Outstanding Debt Securities of such series described in (A) above not theretofore so delivered to the Trustee for the Debt Securities of such series for cancellation: (i) have become due and payable; or (ii) will become due and payable at their Stated Maturity within one year; or (iii) are to be called for redemption within one year under arrangements satisfactory to the 28 Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense of the Company; and the Company has deposited or caused to be deposited with such Trustee as obligations in trust such amount of United States dollars, U.S. Government Obligations or a combination thereof as will as evidenced by a Certificate of a Firm of Independent Public Accountants delivered to such Trustee, together with the predetermined and certain income to accrue thereon (without consideration of any reinvestment thereof), be sufficient to pay and discharge when due the entire indebtedness on all such Outstanding Debt Securities of such series for unpaid principal (and premium, if any) and interest, if any, to the Stated Maturity or any Redemption Date as contemplated by Section 402, as the case may be; or (2) the Company has paid or caused to be paid all other sums payable with respect to the Debt Securities of such series; and (3) the Company has delivered to such Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Debt Securities of such series have been complied with. (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. Application of Trust Money. -------------------------- (a) Subject to the provisions of the last paragraph of Section 1003, all money and obligations deposited with the Trustee for any series of Debt Securities 29 pursuant to Section 401 shall be held irrevocably in trust and applied by such Trustee, in accordance with the provisions of the Debt Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as such Trustee may determine, to the Persons entitled thereto, of the principal of (and premium, if any) and interest, if any, on the Debt Securities for the payment of which such money and obligations have been deposited with such Trustee. (b) The Company shall pay and shall indemnify the Trustee for any series of Debt Securities against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 401 or the interest and principal received in respect of such U.S. Government Obligations other than any such tax, fee or other charge which by law is payable by or on behalf of Holders. The obligation of the Company under this Section 402(b) shall be deemed to be an obligation of the Company under Section 607(2). (c) Anything in this Article Four to the contrary notwithstanding, the Trustee for any series of Debt Securities shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 401 which, as expressed in a Certificate of a Firm of Independent Public Accountants delivered to such Trustee, are in excess of the amount thereof which would then have been required to be deposited for the purpose for which such money or U.S. Government Obligations were deposited or received provided such delivery can be made without liquidating any U.S. Government Obligations. SECTION 403. Satisfaction and Discharge of Indenture. --------------------------------------- Upon compliance by the Company with the provisions of Section 401 as to the satisfaction and discharge of each series of Debt Securities issued hereunder, and if the Company has paid or caused to be paid all other sums payable under this Indenture, this Indenture shall cease to be of any further effect (except as otherwise provided herein). Upon Company Request and receipt of an Opinion of Counsel and an Officers' Certificate complying with the provisions of Section 102, the Trustees for all series of Debt Securities (at the expense of the Company) shall execute proper instruments acknowledging satisfaction and discharge of this Indenture. Notwithstanding the satisfaction and discharge of this Indenture, any obligations of the Company under Sections 304, 305, 306, 402(b), 607, 610, 701 and 1002 and the obligations of the Trustee for any series of Debt Securities under Section 402 shall survive. SECTION 404. Reinstatement. ------------- If the Trustee for any series of Debt Securities is unable to apply any of the amounts (for purposes of this Section 404, "Amounts") or U.S. Government Obligations, as the case may be, described in Section 401(a)(1)(B)(i) or (ii), respectively, in accordance with the provisions of Section 401 by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or 30 otherwise prohibiting such application, the Company's obligations under this Indenture and the Debt Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 401 until such time as the Trustee for such series is permitted to apply all such Amounts or U.S. Government Obligations, as the case may be, in accordance with the provisions of Section 401; provided, however, that if, due to the reinstatement of its rights or obligations hereunder, the Company has made any payment of principal of (or premium, if any) or interest, if any, on such Debt Securities, the Company shall be subrogated to the rights of the Holders of such Debt Securities to receive payment from such Amounts or U.S. Government Obligations, as the case may be, held by the Trustee for such series. ARTICLE FIVE REMEDIES SECTION 501. Events of Default. ----------------- "Event of Default" wherever used herein with respect to any particular series of Debt Securities, unless otherwise specified in the Debt Security or the Board Resolution with respect to that series of Debt Securities, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) default in the payment of any installment of interest, or any Additional Amounts 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 (2) default in the payment of the principal of (or premium, if any, on) any Debt Security of that series at its Maturity; or (3) default in the performance of, or breach of, any covenant or warranty of the Company in respect of any Debt Security of that series contained in this Indenture or in such Debt Securities (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which expressly has been included in this Indenture solely for the benefit of Debt Securities of a series other than that series) or in the applicable Board Resolution under which such series is issued as contemplated by Section 301 and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee for the Debt Securities of such series or to the Company and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or 31 (4) if an event of default or events of default with respect to any other series of Debt Securities or as defined in any mortgage, indenture, security agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company or any of its Material Subsidiaries for money borrowed in excess of $10 million principal amount, either individually or in the aggregate, whether such Indebtedness now exists or shall hereafter be created, shall happen and, if such Indebtedness is not already matured in accordance with its terms, shall result in such Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such acceleration shall not have been rescinded or annulled or such Indebtedness shall not have been discharged, in either case, within a period of ten days after there has been given, by registered or certified mail in the manner set forth in Section 105, to the Company by the Trustee for the Debt Securities of that particular series referred to in the first clause of this Section 501 or to the Company and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that particular series referred to in the first clause of this Section 501 a written notice specifying such event of default and requiring the Company or such Material Subsidiary to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a "Notice of Default" hereunder; provided, that if prior to the entry of judgment in favor of the Trustee, such default under such indenture or instrument shall be remedied or cured by the Company or such Material Subsidiary or waived by the holders of such Indebtedness, then the Event of Default hereunder shall be deemed likewise to have been remedied, cured or waived; and provided, further, that, if such default results from an action of the United States government or a foreign government which prevents the Company or such Material Subsidiary from performing their obligations under such agreement, indenture or instrument, the occurrence of such default will not be an Event of Default hereunder; and provided, further, however, that, subject to the provisions of Sections 601 and 602, such Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of such Trustee assigned to its Corporate Trust Administration Department shall have actual knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company, from the Holders of 10% or more in principal amount of the Outstanding Debt Securities of such other series, from the holder of any such Indebtedness or from the trustee under any such mortgage, indenture, security agreement or other instrument; or (5) the entry against the Company or any of its Material Subsidiaries of one or more judgments, decrees or orders by a court having jurisdiction in the premises from which no appeal may be or is taken for the payment of money, either individually or in the aggregate, in excess of $10 million (or its equivalent in any currency or currencies) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 60 consecutive days without a stay of execution and there has been given, by registered or certified mail in the manner set forth in Section 105, to the Company by the Trustee for the Debt Securities of such series or to the Company and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Debt Securities of such series a written notice specifying such entry and continuance of such judgment, decree or order and stating that such notice is a "Notice of Default" hereunder; provided, however, that subject to the provisions of Sections 601 and 602, such Trustee shall not be deemed 32 to have knowledge of such entry and continuance of such judgment, decree or order unless either (A) a Responsible Officer of such Trustee assigned to its Corporate Trust Administration Department shall have actual knowledge thereof or (B) the Trustee shall have received written notice thereof from the Company or from the Holders of 10% or more in principal amount of the Outstanding Debt Securities of such series; or (6) the Company or a Material Subsidiary of the Company shall (A) commence any case or proceeding seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; (B) shall apply for a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Company or such Subsidiary) of it or for all or a substantial part of its property; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any corporate action in furtherance of any of the foregoing; or (7) any case or proceeding against the Company or a Material Subsidiary of the Company shall be commenced seeking to have an order for relief entered against it or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Company or such Subsidiary) of the Company or such Subsidiary or for all or a substantial part of its property shall be appointed in any such case or proceeding; and such case or proceeding (A) results in the entry of an order for relief or a similar order against it or (B) shall continue unstayed and in effect for a period of 60 consecutive days; or (8) failure by the Company to comply with its obligations under Article 8; or (9) any other Event of Default provided with respect to the Debt Securities of that series. SECTION 502. Acceleration of Maturity; Rescission and Annulment. -------------------------------------------------- If an Event of Default (other than an Event of Default specified in clause (6) or (7) of Section 501) with respect to any particular series of Debt Securities occurs and is continuing, then and in every such case either the Trustee for the Debt Securities of such series or the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of that series may declare the entire principal amount (or, in the case of Discounted Debt Securities, such lesser amount as may be provided for in the 33 terms of that series) of all the Debt Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration of acceleration such principal or such lesser amount, as the case may be, together with accrued interest and all other amounts owing hereunder, shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived. If an Event of Default specified in clause (6) or (7) of Section 501 occurs, the principal on such lesser amount, as the case may be, together with accrued interest and all amounts outstanding hereunder, shall ipso facto become and be immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived. At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Debt Securities of any series as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Debt Securities of that series, by written notice to the Company and such Trustee, may rescind and annul such declaration and its consequences if: (1) the Company has paid or deposited with such Trustee a sum sufficient to pay (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series) (A) all overdue interest on all Debt Securities of that series; (B) the principal of (and premium, if any, on) any Debt Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon from the date such principal became due at a rate per annum equal to the rate borne by the Debt Securities of such series (or, in the case of Discounted Debt Securities, the Debt Securities' Yield to Maturity), to the extent that the payment of such interest shall be legally enforceable; (C) to the extent that payment of such interest is lawful, interest upon overdue interest at a rate per annum equal to the rate borne by the Debt Securities of such series (or, in the case of Discounted Debt Securities, the Debt Securities' Yield to Maturity); and (D) all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607; and 34 (2) all Events of Default with respect to the Debt Securities of such series, other than the nonpayment of the principal of Debt Securities of that series which has become due solely by such acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. --------------------------------------------------------------- The Company covenants that if: (1) default is made in the payment of any interest upon any Debt Security of any series when such interest becomes due and payable and such default continues for a period of 30 days; or (2) default is made in the payment of the principal of (or premium, if any, on) any Debt Security of any series at its Maturity; the Company will, upon demand of the Trustee for the Debt Securities of such series, pay to it, for the benefit of the Holders of such Debt Securities, the whole amount then due and payable on such Debt Securities for principal (and premium, if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest at a rate per annum equal to the rate borne by such Debt Securities (or, in the case of Discounted Debt Securities, the Debt Securities' Yield to Maturity); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607. If the Company fails to pay such amounts forthwith upon such demand, such Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, wherever situated. If an Event of Default with respect to Debt Securities of any particular series occurs and is continuing, the Trustee for the Debt Securities of such series may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Debt Securities of that series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. 35 SECTION 504. Trustee May File Proofs of Claim. -------------------------------- In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or the property of the Company or its creditors, the Trustee for the Debt Securities of any series (irrespective of whether the principal (or lesser amount in the case of Discounted Debt Securities) of any Debt Security of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether such Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise (i) to file and prove a claim for the whole amount of principal (or lesser amount in the case of Discounted Debt Securities) (and premium, if any) and interest, if any, owing and unpaid in respect of the Debt Securities of such series and to file such other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607) and of the Holders of the Debt Securities of such series allowed in such judicial proceeding; (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and (iii) unless prohibited by law or applicable regulations, to vote on behalf of the Holders of the Debt Securities of such series in any election of a trustee in bankruptcy or other person performing similar functions; and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Debt Securities to make such payments to such Trustee, and in the event that such Trustee shall consent to the making of such payments directly to the Holders of Debt Securities, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607. Nothing herein contained shall be deemed to authorize the Trustee for the Debt Securities of any series to authorize or consent to or accept or adopt on behalf of any Holder of a Debt Security any plan of reorganization, arrangement, adjustment or composition affecting the Debt Securities of such series or the rights of any Holder thereof, or to authorize the Trustee for the Debt Securities of any series to vote in respect of the claim of any Holder in any such proceeding, except as aforesaid, for the election of a trustee in bankruptcy or other person performing similar functions. 36 SECTION 505. Trustee May Enforce Claims Without Possession --------------------------------------------- of Debt Securities. ------------------ All rights of action and claims under this Indenture or the Debt Securities of any series may be prosecuted and enforced by the Trustee for the Debt Securities of any series without the possession of any of the Debt Securities of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607, be for the ratable benefit of the Holders of the Debt Securities of such series in respect of which such judgment has been recovered. SECTION 506. Application of Money Collected. ------------------------------ Any money collected by the Trustee for the Debt Securities of any series pursuant to this Article with respect to the Debt Securities of such series shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Debt Securities of such series and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: First: To the payment of all amounts due such Trustee under Section 607; Second: To the payment of the amounts then due and unpaid upon the Debt Securities of such series for principal of (and premium, if any) and interest, if any, on such Debt Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Debt Securities for principal (and premium, if any) and interest, if any, respectively; and Third: The balance, if any, to the Person or Persons entitled thereto. SECTION 507. Limitation on Suits. ------------------- No Holder of any Debt Security of any particular series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (1) an Event of Default with respect to that series shall have occurred and be continuing and such Holder shall have previously given written notice to the Trustee for the Debt Securities of such series of such default and the continuance thereof; (2) the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of that series shall have made written request to the Trustee 37 for the Debt Securities of such series to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to such Trustee reasonable security or indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) such Trustee for 60 days after its receipt of such notice, request and offer of security or indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Debt Securities of that series; it being understood and intended that no Holder or Holders of Debt Securities of that series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Debt Securities of that series, or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of Debt Securities of that series. SECTION 508. Unconditional Right of Holders to Receive Principal (and -------------------------------------------------------- Premium, if any) and Interest, if any. ------------------------------------- Notwithstanding any other provision in this Indenture, the Holder of any Debt Security shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Debt Security on the respective Stated Maturities expressed in such Debt Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder. SECTION 509. Restoration of Rights and Remedies. ---------------------------------- If the Trustee for the Debt Securities of any series or any Holder of a Debt Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Trustee or to such Holder, then and in every such case the Company, such Trustee and the Holders of Debt Securities shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Trustee and such Holders shall continue as though no such proceeding had been instituted. SECTION 510. Rights and Remedies Cumulative. ------------------------------ Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the 38 Debt Securities of any series or to the Holders of Debt Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 511. Delay or Omission Not Waiver. ---------------------------- No delay or omission of the Trustee for the Debt Securities of any series or of any Holder of any Debt Security of such series to exercise any right or remedy accruing upon any Event of Default with respect to the Debt Securities of such series shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to such Trustee for the Debt Securities of any series or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by the Holders, as the case may be. SECTION 512. Control by Holders. ------------------ The Holders of a majority in principal amount of the Outstanding Debt Securities of any particular series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Debt Securities of such series with respect to the Debt Securities of that series or exercising any trust or power conferred on such Trustee with respect to such Debt Securities, provided that: (1) such direction shall not be in conflict with any rule of law or with this Indenture; and (2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. ----------------------- The Holders of not less than a majority in principal amount of the Outstanding Debt Securities of any particular series may on behalf of the Holders of all the Debt Securities of that series waive any past default hereunder with respect to that series and its consequences, except: (1) a default in the payment of the principal of (or premium, if any) or interest, if any, on any Debt Security of that series; or (2) a default with respect to a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Debt Security of that series affected. 39 Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 514. Waiver of Stay, Extension or Usury Laws. --------------------------------------- The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or similar law, wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for any series of Debt Securities, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. ----------------------------------- (a) Except during the continuance of an Event of Default with respect to the Debt Securities of any series for which the Trustee is serving as such, (1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and (2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to such Trustee, such Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to a series of Debt Securities has occurred and is continuing, the Trustee for the Debt Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee for Debt Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that no provision of 40 this Indenture shall require the Trustee for any series of Debt Securities to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Debt Securities shall be subject to the provisions of this Section. SECTION 602. Notice of Defaults. ------------------ Within 90 days after the occurrence of any default hereunder with respect to Debt Securities of any particular series, of which a Responsible Officer of such Trustee assigned to its Corporate Trust Administration Department shall have actual knowledge, 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 603. Certain Rights of Trustee. ------------------------- Except as otherwise provided in Section 601: (a) the Trustee for any series of Debt Securities may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; 41 (c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) such Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Debt Securities of any series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee security or indemnity reasonably satisfactory to such Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters at it may see fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and (g) such Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and such Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities. ----------------------------------------------------------- The recitals contained herein and in the Debt Securities, except the Trustee's certificates of authentication thereof, shall be taken as the statements of the Company, and neither the Trustee for any series of Debt Securities, nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Debt Securities makes no representations as to the validity or sufficiency of this Indenture or of the Debt Securities of any series. Neither the Trustee for any series of Debt Securities nor any Authenticating Agent shall be accountable for the use or application by the Company of Debt Securities or the proceeds thereof. SECTION 605. May Hold Debt Securities. ------------------------ The Trustee for any series of Debt Securities, any Authenticating Agent, Paying Agent, Debt Security Registrar or any other agent of the Company or such Trustee, in its individual or any other capacity, may become the owner or pledgee of Debt Securities and, subject to Sections 608 and 613, may otherwise deal with the Company 42 with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Debt Security Registrar or other agent. SECTION 606. Money Held in Trust. ------------------- Money held by the Trustee for any series of Debt Securities in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee for any series of Debt Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company. SECTION 607. Compensation and Reimbursement. ------------------------------ The Company agrees: (1) to pay to the Trustee for any series of Debt Securities from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee for any series of Debt Securities upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify such Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. As security for the performance of the obligations of the Company under this Section the Trustee for any series of Debt Securities shall have a lien prior to the Debt Securities upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on any particular series Debt Securities. Such lien shall survive satisfaction and discharge of this Indenture. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501 (6) or (7), the expenses and the compensation for the services shall be preferred over the status of Holders in any proceeding under any Bankruptcy Law and are intended to constitute expenses of administration under any Bankruptcy Law. 43 SECTION 608. Disqualification; Conflicting Interests. --------------------------------------- The Trustee for any series of Debt Securities shall be subject to and comply with the provisions of Section 310(b) of the Trust Indenture Act during the period of time required thereby. Nothing herein shall prevent the Trustee for any series of Debt Securities from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In determining whether the Trustee for any series of Debt Securities has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act, the Debt Securities of any other series of Debt Securities shall be excluded. SECTION 609. Corporate Trustee Required, Different Trustees for Different ------------------------------------------------------------ Series; Eligibility. ------------------- There shall at all times be a Trustee hereunder for the Debt Securities of each series which satisfies the requirements of Trust Indenture Act Sections 310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by Federal, State or District of Columbia authority. A different Trustee may be appointed by the Company for each series of Debt Securities prior to the issuance of such Debt Securities. If the initial Trustee for any series of Debt Securities is to be other than Wells Fargo Bank Minnesota, N.A., the Company and such Trustee shall, prior to the issuance of such Debt Securities, execute and deliver an indenture supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the Debt Securities of such series and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. If at any time the Trustee for the Debt Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. SECTION 610. Resignation and Removal; Appointment of Successor. ------------------------------------------------- (a) No resignation or removal of the Trustee for the Debt Securities of any series and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611. (b) The Trustee for the Debt Securities of any series may resign at any time with respect to the Debt Securities of such series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee for the Debt Securities of such series within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series. 44 (c) The Trustee for the Debt Securities of any series may be removed at any time with respect to the Debt Securities of such series by Act of the Holders of a majority in principal amount of the Outstanding Debt Securities of such series, delivered to such Trustee and to the Company. (d) If at any time: (1) the Trustee for the Debt Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 608 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months unless the Trustee's duty to resign is stayed in accordance with Section 310(b) of the Trust Indenture Act, or (2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) such Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove such Trustee or (ii) any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee. (e) If the Trustee for the Debt Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Debt Securities of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Debt Securities of such series and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Debt Securities of such series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Debt Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee for the Debt Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee for the Debt Securities of such series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, and if such Trustee is still incapable of acting, any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series. 45 (f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each appointment of a successor Trustee with respect to the Debt Securities of any series to all Holders of such series of Debt Securities in the manner and to the extent provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Debt Securities of that series and the address of its Corporate Trust Office. SECTION 611. Acceptance of Appointment by Successor. -------------------------------------- (a) Every such successor Trustee appointed hereunder with respect to the Debt Securities of any series shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject to the lien provided for in Section 607. (b) In case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Debt Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and each Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with 46 respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in Subsections (a) or (b) of this Section, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee for the Debt Securities of any series shall be qualified and eligible under this Article. (e) Notwithstanding replacement of the Trustee pursuant to Section 610, the Company's obligations under Section 607 shall continue for the benefit of the retiring Trustee with respect to expenses, losses and liabilities incurred by it prior to such replacement. SECTION 612. Merger, Conversion, Consolidation or Succession to Business. ----------------------------------------------------------- Any corporation into which the Trustee or the Authenticating Agent, as the case may be, for the Debt Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee or such Authenticating Agent, as the case may be, shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of such Trustee or such Authenticating Agent, as the case may be, hereunder, provided such successor corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto or the Trustee, the Authenticating Agent or their respective successor corporations. In case any Debt Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Debt Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Debt Securities. SECTION 613. Preferential Collection of Claims Against Company. ------------------------------------------------- The Trustee for any particular series of Debt Securities shall comply with Section 311(a) of the Trust Indenture Act for that particular series of Debt Securities, excluding any creditor relationship listed in Section 311(b) of that Act. If the Trustee for any particular series of Debt Securities shall resign or be removed as Trustee for that particular series of Debt Securities, it shall be subject to Section 311(a) of the Trust Indenture Act to the extent provided therein. 47 SECTION 614. Authenticating Agents. --------------------- From time to time the Trustee for the Debt Securities of any series may, subject to its sole discretion, appoint one or more Authenticating Agents with respect to the Debt Securities of such series, which may include the Company or any Affiliate of the Company, with power to act on the Trustee's behalf and subject to its discretion in the authentication and delivery of Debt Securities of such series in connection with transfers and exchanges hereunder, including but not limited to those pursuant to Sections 304, 305, 306 and 1107, as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Debt Securities of such series. For all purposes of this Indenture, the authentication and delivery of Debt Securities of such series by an Authenticating Agent for such Debt Securities pursuant to this Section shall be deemed to be authentication and delivery of such Debt Securities "by the Trustee" for the Debt Securities of such series. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal, State or District of Columbia authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or the requirements of such supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Debt Securities shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. Any Authenticating Agent for any series of Debt Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Debt Securities may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company in the manner set forth in Section 105. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent for any series of Debt Securities shall cease to be eligible under this Section, the Trustee for such series may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Debt Securities of such series in the manner set forth in Section 106. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Trustee for the Debt Securities of each series agrees to pay to any Authenticating Agent for such series from time to time reasonable compensation for its 48 services, and such Trustee shall be entitled to be reimbursed for such payments, subject to Section 607. If an appointment with respect to one or more series of Debt Securities is made pursuant to this Section, the Debt Securities of such series may have endorsed thereon, in addition to the Trustee's certification of authentication, an alternate certificate of authentication in the following form: "This is one of the Debt Securities, of the series designated herein, described in the within-mentioned Indenture. _______________________________ By:____________________________ As Authenticating Agent By:___________________________ Authorized Officer" 49 ARTICLE SEVEN HOLDERS' REPORTS BY TRUSTEE AND COMPANY SECTION 701. Preservation of Information; Company to Furnish Trustee Names ------------------------------------------------------------- and Addresses of Holders. ------------------------ The Company shall furnish or cause to be furnished to the Trustee: (a) semiannually, not more than fifteen (15) days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date; and (b) at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request, a list of similar form and content as of a date not more than fifteen (15) days prior to the time such list is furnished; provided, however, that if and so long as the Trustee shall be the Debt - ----------------- Security Registrar, no such list need be furnished. The Trustee for any particular series of Debt Securities shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of the Debt Securities of that series. Neither the Company nor such Trustee shall be under any responsibility with regard to the accuracy of such list. With respect to each series of Debt Securities, the Company, in furnishing information regarding such Holders to such Trustee, and such Trustee, will satisfy the requirements imposed upon each of them by Section 312(a) of the Trust Indenture Act. SECTION 702. Communications to Holders. ------------------------- Holders of any particular series of Debt Securities may communicate with other Holders of Debt Securities of that series with respect to their rights under this Indenture or under such series of Debt Securities pursuant to Section 312(b) of the Trust Indenture Act. The Company and the Trustee for any particular series of Debt Securities and any and all other Persons benefited by this Indenture shall have the protection afforded by Section 312(c) of the Trust Indenture Act. SECTION 703. Reports by Trustee. ------------------ Within 60 days after November 15 of each year commencing with the year following the first issuance of Debt Securities, the Trustee for the Debt Securities of each series shall transmit by mail to all Holders of the Debt Securities of such series a brief report dated as of such date that complies with Section 313(a) of the Trust Indenture Act, but only if such report is required in any year under such Section 313(a) of the Trust Indenture Act. With respect to each series of Debt Securities, the Trustee shall also comply with Sections 313(b) and 313(c) of the Trust Indenture Act. At any time a report 50 is mailed to the Holders of any particular series of Debt Securities, a copy of such report shall be filed with the Commission and with each securities exchange, if any, on which the Debt Securities of such series are listed. With respect to each series of Debt Securities, the Company will notify the applicable Trustee when such series of Debt Securities is listed on any securities exchange. SECTION 704. Reports by Company. ------------------ The Company shall file such annual and/or periodic reports and certificates with the Trustees for each series of Debt Securities and/or with the Commission and/or with the Holders of each series of Debt Securities as are required by the provisions of Section 314(a) of the Trust Indenture Act. ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. ---------------------------------------------------- The Company shall not consolidate with or merge into any other corporation or sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of its properties and assets as an entirety to any Person unless: (1) (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 Debt Securities 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' 51 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 Debt Securities 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. (2) immediately after giving effect to such transaction (and treating any Indebtedness not previously an obligation of the Company or a Subsidiary which becomes the obligation of the Company or any of its Subsidiaries in connection with or as a result of such transaction as having been incurred at the time of such transaction), no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; 52 (3) such other conditions, if any, as may be set forth in the Board Resolution establishing the Debt Securities of that particular series are met or complied with; and (4) the Company has delivered to the Trustee for each series of Debt Securities an Officers' Certificate and an Opinion of Counsel each stating that such consolidation, merger, sale, assignment, conveyance, transfer, lease or disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent provided for relating to such transaction herein or in the Board Resolution relating to such series of Debt Securities have been complied with. SECTION 802. Successor Corporation Substituted. --------------------------------- Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company herein and thereafter the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Debt Securities and, in the event of any such consolidation, merger, conveyance or transfer, the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up, or liquidated. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures Without Consent of Holders. -------------------------------------------------- Without the consent of any Holders of Debt Securities, the Company, when authorized by a Board Resolution, and the Trustee for the Debt Securities of any or all series, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes: (1) to evidence the succession of another corporation to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Debt Securities contained; or (2) to add to the covenants of the Company, for the benefit of the Holders of all or any particular series of Debt Securities (and, if such covenants are to be for the benefit of fewer than all series of Debt Securities, stating that such covenants are being included solely for the benefit of such series), or to surrender any right or power herein conferred upon the Company; or 53 (3) to add any additional Events of Default with respect to any or all series of Debt Securities (and, if any such Event of Default applies to fewer than all series of Debt Securities, stating each series to which such Event of Default applies); or (4) to add to, change or eliminate any of the provisions of this Indenture, provided, however, that any such addition, change or elimination shall become effective only when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision and as to which such supplemental indenture would apply; or (5) to evidence and provide for the acceptance of appointment hereunder of a Trustee other than Wells Fargo Bank Minnesota, N.A., as Trustee for a series of Debt Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609; or (6) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or (7) to establish the conditions, limitations and restrictions on the authorized amount, form, terms or purposes of issue, authentication and delivery of Debt Securities, as herein set forth, and other conditions, limitations and restrictions thereafter to be observed; or (8) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the satisfaction and discharge of any series of Debt Securities pursuant to Section 401; provided, however, that any such action shall not adversely affect the interests of the Holders of Debt Securities of such series or any other series of Debt Securities in any material respect; or (9) to add to or change or eliminate any provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act; or (10) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, to convey, transfer, assign, mortgage or pledge any property to or with the Trustee for the Debt Securities of any series or to surrender any right or power herein conferred upon the Company, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Debt Securities of any particular series in any material respect. 54 SECTION 902. Supplemental Indentures With Consent of Holders. ----------------------------------------------- The Company, when authorized by a Board Resolution, and the Trustee for the Debt Securities of any or all series may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of such Debt Securities under this Indenture, but only with the consent of the Holders of more than 50% in aggregate principal amount of the Outstanding Debt Securities of each series of Debt Securities then Outstanding affected thereby, in each case by Act of said Holders of Debt Securities of each such series delivered to the Company and the Trustee for Debt Securities of each such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Debt Security affected thereby: (1) reduce the principal of or change the Stated Maturity of any Debt Security; (2) reduce the rate of or change the time for payment of interest on any Debt Security; (3) reduce the principal amount or any premium payable upon the redemption of any Debt Security or change the time at which a Debt Security may be redeemed; (4) reduce the amount of the principal of a Discounted Debt Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502; (5) change the Place of Payment; (6) impair the right of a Holder to receive payment of principal of and interest on such Holder's Debt Securities on or after the due dates thereof; (7) change the currency in which the principal of or any premium or interest (including Additional Amounts) on any Debt Security is payable; (8) reduce the percentage in principal amount of the Outstanding Debt Securities of any particular series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; (9) modify any of the provisions of this Section or Section 513 or 1008, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Debt Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of a Debt Security with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1008, or 55 the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(6) and 901(7); (10) modify or change any provision of the Indenture or the related definitions affecting the ranking of any Debt Security in a manner which adversely affects the Holders in any material respect; or (11) make any change in the foregoing amendment and waiver provisions. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Debt Securities, or which modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of any other series. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 903. Execution of Supplemental Indentures. ------------------------------------ In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Debt Securities shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith and that such supplemental indenture has been duly authorized, executed and delivered by the Company and that, subject to standard exceptions, it will be valid and binding upon the Company and enforceable against the Company in accordance with its terms. The Trustee for any series of Debt Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee's own rights, liabilities, duties or immunities under this Indenture or otherwise. SECTION 904. Effect of Supplemental Indentures. --------------------------------- Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Debt Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. SECTION 905. Conformity With Trust Indenture Act. ----------------------------------- Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. 56 SECTION 906. Reference in Debt Securities to Supplemental Indentures. ------------------------------------------------------- Debt Securities of any particular series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee for the Debt Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Debt Securities of any series so modified as to conform, in the opinion of the Trustee for the Debt Securities of such series and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by such Trustee in exchange for Outstanding Debt Securities of such series. SECTION 907. Revocation and Effect of Consents. --------------------------------- Until an amendment or waiver becomes effective, a consent to it by a Holder of a Debt Security is a continuing consent by the Holder and every subsequent Holder of such Debt Security or portion of such Debt Security that evidences the same debt as the consenting Holder's Debt Security, even if notation of the consent is not made on any Debt Security. However, any such Holder or subsequent Holder may revoke the consent as to his or her Debt Security if the Trustee receives written notice of revocation before the date the waiver or amendment becomes effective. An amendment or waiver becomes effective in accordance with its terms and thereafter binds every Holder of the series of such Debt Security. The Company may fix a record date for determining which Holders must consent to such amendment or waiver. If the Company fixes a record date, the record date shall be fixed at (i) the later of (x) 30 days prior to the first solicitation of such consent or (y) the date of the most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to Section 701, or (ii) such other date as the Company shall designate. ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal (and Premium, if any) and Interest, if any. --------------------------------------------------------------- The Company agrees, for the benefit of each particular series of Debt Securities, that it will duly and punctually pay (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series) the principal of (and premium, if any) and interest, if any, on that series of Debt Securities in accordance with the terms of the Debt Securities of such series and this Indenture. SECTION 1002. Maintenance of Office or Agency. ------------------------------- The Company will maintain in each Place of Payment for a series of Debt Securities an office or agency where Debt Securities of that series may be presented or 57 surrendered for payment, where Debt Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Debt Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee for the Debt Securities of that series of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Debt Securities or shall fail to furnish the Trustee for the Debt Securities of that series with the address thereof, such presentations (to the extent permitted by law) and surrenders of Debt Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of such Trustee, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Debt Securities of one or more series may be presented or surrendered for any or all of the purposes specified above in this Section and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purpose. The Company will give prompt written notice to the Trustee for the Debt Securities of each series so affected of any such designation or rescission and of any change in the location of any such office or agency. SECTION 1003. Money for Debt Securities Payments to Be Held in Trust. ------------------------------------------------------ If the Company shall at any time act as its own Paying Agent with respect to any particular series of Debt Securities, it will, on or not more than one Business Day before each due date of the principal of (and premium, if any) or interest, if any, on any of the Debt Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee for the Debt Securities of such series of its action or failure so to act. Whenever the Company shall have one or more Paying Agents for any particular series of Debt Securities, it will, prior to each due date of the principal of (and premium, if any) or interest, if any, on any such Debt Securities, deposit with a Paying Agent for the Debt Securities of such series a sum sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee for the Debt Securities of such series) the Company will promptly notify such Trustee of its action or failure so to act. The Company will cause each Paying Agent for any particular series of Debt Securities other than the Trustee for the Debt Securities of such series to execute 58 and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will: (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Debt Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give such Trustee notice of any default by the Company in the making of any payment of principal (or premium, if any) and interest, if any, on Debt Securities of that series; (3) at any time during the continuation of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent; and (4) acknowledge, accept and agree to comply in all respects with the provisions of this Indenture relating to the duties, rights and disabilities of such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Debt Securities of any series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee for the Debt Securities of any series or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) and interest, if any, on any Debt Security of any particular series and remaining unclaimed for two years after such principal (and premium, if any) and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, abandoned or unclaimed property law, be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trusts; and the Holder of such Debt Security shall, thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that such Trustee or such Paying Agent, before being required to make any such repayment may mail written notice to each such Holder of such Debt Security in the manner set forth in Section 106, or may, in its discretion, in the name and at the expense of the Company, cause to be published at least once in a newspaper published in the English language customarily on each Business Day and of general circulation in the Borough of Manhattan, the City of New York, notice, that such money remains unclaimed and that, after a date specified therein, which shall not be less than 59 30 days from the date of such mailing or publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, abandoned or unclaimed property law, be repaid to the Company. SECTION 1004. Payment of Taxes and Other Claims. --------------------------------- The Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon it or upon its income, profits or property, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon its property; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings. SECTION 1005. Maintenance of Properties. ------------------------- The Company shall cause all its properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent the Company from discontinuing the operation and maintenance of any of its properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business and not disadvantageous in any material respect to the Holders. SECTION 1006. Statements as to Compliance. --------------------------- (a) The Company shall deliver to the Trustee for each series of Debt Securities, within 120 days after the end of each fiscal year, a written statement signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President and by the Treasurer, a Deputy Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of the Company, stating, as to each signer thereof, that: (1) a review of the activities of the Company during such year and of performance under this Indenture has been made under his supervision; and (2) to the best of his knowledge, based on such review, the Company is not in default in the fulfillment of any of its obligations under this Indenture with respect to the Debt Securities of such series, or specifying each such default known to him and the nature and status thereof. For purposes of this Subsection, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. 60 (b) When any event has occurred and is continuing which is, or after the giving of notice or lapse of time or both would become, an Event of Default, or if the Trustee or any Holder of Debt Securities of any series or the trustee for or the holder of any other evidence of Indebtedness of the Company or any Subsidiary gives any notice or takes any other action with respect to a claimed default (other than with respect to Indebtedness in the principal amount of less than $10,000,000), the Company shall deliver to the Trustee by registered or certified mail or by telegram, telex or facsimile transmission followed by hard copy by registered or certified mail an Officers' Certificate specifying such event, notice or other action within five Business Days of its occurrence. SECTION 1007. Corporate Existence. ------------------- Subject to Article Eight, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders; and provided, further, however, that the foregoing shall not prohibit a sale, transfer or conveyance of a Subsidiary or any of its assets in compliance with the terms of this Indenture. SECTION 1008. Waiver of Certain Covenants. --------------------------- The Company may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004 to 1007, inclusive, or set forth in any Board Resolution establishing the Debt Securities of a series, if before or after the time for such compliance the Holders of more than 50% in principal amount of the Outstanding Debt Securities of each series of Debt Securities affected by the omission shall, in each case by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee for the Debt Securities of each series with respect to any such covenant or condition shall remain in full force and effect. ARTICLE ELEVEN REDEMPTION OF DEBT SECURITIES SECTION 1101. Applicability of This Article. ----------------------------- Redemption of Debt Securities of any series (whether by operation of a sinking fund or otherwise) as permitted or required by any form of Debt Security issued pursuant to this Indenture shall be made in accordance with such form of Debt Security and this Article; provided, however, that if any provision of any such form of Debt 61 Security shall conflict with any provision of this Article, the provision of such form of Debt Security shall govern. SECTION 1102. Election to Redeem; Notice to Trustee. ------------------------------------- The election of the Company to redeem any Debt Securities of any series shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Debt Securities of any particular series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee for the Debt Securities of such series) notify such Trustee by Company Request of such Redemption Date and of the principal amount of Debt Securities of that series to be redeemed and shall deliver to such Trustee such documentation and records as shall enable such Trustee to select the Debt Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Debt Securities of any series prior to the expiration of any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, the Company shall furnish the Trustee for Debt Securities of such series with an Officers' Certificate evidencing compliance with such restriction. SECTION 1103. Selection by Trustee of Debt Securities to Be Redeemed. ------------------------------------------------------ If less than all the Debt Securities are to be redeemed, the Company may select the series to be redeemed, and if less than all the Debt Securities of any series are to be redeemed, the particular Debt Securities of that series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee for the Debt Securities of such series, from the Outstanding Debt Securities of that series not previously called for redemption, by such method as such Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Debt Securities of that series, or any integral multiple thereof) of the principal amount of Debt Securities of that series of a denomination larger than the minimum authorized denomination for Debt Securities of that series pursuant to Section 302. The Trustee for the Debt Securities of any series to be redeemed shall promptly notify the Company in writing of the Debt Securities of such series selected for redemption and, in the case of any Debt Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Debt Securities shall relate, in the case of any Debt Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt Securities which has been or is to be redeemed. 62 SECTION 1104. Notice of Redemption. -------------------- Notice of redemption shall be given in the manner provided in Section 106 not later than the thirtieth day and not earlier than the sixtieth day prior to the Redemption Date, to each Holder of Debt Securities to be redeemed. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all Outstanding Debt Securities of a particular series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Debt Securities to be redeemed, (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Debt Security or portion thereof, and that, unless the Company defaults in making such payment pursuant to the terms of this Indenture or the terms of such Debt Security, interest thereon, if any, shall cease to accrue on and after said date, (5) the place or places where such Debt Securities, are to be surrendered for payment of the Redemption Price, and the name and address of the Paying Agent or Paying Agents, and (6) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Debt Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee for such Debt Securities in the name and at the expense of the Company. SECTION 1105. Deposit of Redemption Price. --------------------------- Prior to the opening of business on any Redemption Date, the Company shall deposit with the Trustee for the Debt Securities to be redeemed or with a Paying Agent for such Debt Securities (or, if the Company is acting as its own Paying Agent for such Debt Securities, segregate and hold in trust as provided in Section 1003) an amount of money (except as otherwise specified pursuant to Section 301 for the Debt Securities of such Series) sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all the Debt Securities which are to be redeemed on that date. SECTION 1106. Debt Securities Payable on Redemption Date. ------------------------------------------ Notice of redemption having been given as aforesaid, the Debt Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified (except as otherwise provided pursuant to 63 Section 301 for the Debt Securities of such series) and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Debt Securities shall cease to bear interest. Upon surrender of such Debt Security for redemption in accordance with said notice, such Debt Security or specified portions thereof shall be paid by the Company at the Redemption Price; provided, however, that unless otherwise specified as contemplated by Section 301, installments of interest on Debt Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor Debt Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307. If any Debt Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Redemption Date at a rate per annum equal to the rate borne by the Debt Security (or, in the case of Discounted Debt Securities, the Debt Security's Yield to Maturity). SECTION 1107. Debt Securities Redeemed in Part. -------------------------------- Any Debt Security which is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee for such Debt Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Debt Security Registrar for such Debt Security duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute and such Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge, a new Debt Security or Debt Securities, of any authorized denomination as requested by such Holder, of the same series and having the same terms and provisions and in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered. ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of This Article. ----------------------------- Redemption of Debt Securities through operation of a sinking fund as permitted or required by any form of Debt Security issued pursuant to this Indenture shall be made in accordance with such form of Debt Security and this Article; provided, however, that if any provision of any such form of Debt Security shall conflict with any provision of this Article, the provision of such form of Debt Security shall govern. The minimum amount of any sinking fund payment provided for by the terms of Debt Securities of any particular series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Debt Securities of any particular series is herein referred to as an "optional sinking fund payment". If provided for by the terms of Debt Securities of any 64 particular series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Debt Securities of any particular series as provided for by the terms of Debt Securities of that series. SECTION 1202. Satisfaction of Sinking Fund Payments With Debt Securities. ---------------------------------------------------------- The Company (1) may deliver Outstanding Debt Securities of a series (other than any previously called for redemption), and (2) may apply as a credit Debt Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Debt Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Debt Securities of such series required to be made pursuant to the terms of such Debt Securities as provided for by the terms of such series; provided, however, that such Debt Securities have not been previously so credited. Such Debt Securities shall be received and credited for such purpose by the Trustee for such Debt Securities at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly. SECTION 1203. Redemption of Debt Securities for Sinking Fund. ---------------------------------------------- Not less than 60 days prior to each sinking fund payment date for any particular series of Debt Securities, the Company will deliver to the Trustee for the Debt Securities of such series an Officers' Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash (except as otherwise specified pursuant to Section 301 for the Debt Securities of that series) and the portion thereof, if any, which is to be satisfied by delivering and crediting Debt Securities of that series pursuant to Section 1202 and shall state the basis for such credit and that such Debt Securities have not previously been so credited and will also deliver to such Trustee any Debt Securities to be so delivered. Such Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107. ARTICLE THIRTEEN 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 65 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. 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 66 such action, determination of rights or distribution (as evidenced to the Trustee by an Officer's Certificate). This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the 15th day of March, 2002. CHIQUITA BRANDS INTERNATIONAL, INC. By:___________________________ Name: Title: WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee By:_____________________________ Name: Title: 67 -----END PRIVACY-ENHANCED MESSAGE-----