-----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, Sh/mjfQpB9wAr1tnfMTG4LEzBwcE+YJLykPTNrFQArt8LriK/kdL14ClTdgG33Xd ewTLMiLfoe5OJ4sKrPL5VA== 0000950152-96-000355.txt : 19960209 0000950152-96-000355.hdr.sgml : 19960209 ACCESSION NUMBER: 0000950152-96-000355 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19960207 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHIQUITA BRANDS INTERNATIONAL INC CENTRAL INDEX KEY: 0000101063 STANDARD INDUSTRIAL CLASSIFICATION: MEAT PACKING PLANTS [2011] IRS NUMBER: 041923360 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-00789 FILM NUMBER: 96512920 BUSINESS ADDRESS: STREET 1: 250 E FIFTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5137848011 FORMER COMPANY: FORMER CONFORMED NAME: UNITED BRANDS CO DATE OF NAME CHANGE: 19900403 S-3 1 CHIQUITA S-3 1 THIS REGISTRATION STATEMENT ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 33-51995 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY , 1996. REGISTRATION NO. 33- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION ------------------------ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ CHIQUITA BRANDS INTERNATIONAL, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) NEW JERSEY 04-1923360 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.) INCORPORATION OR ORGANIZATION)
250 EAST FIFTH STREET CINCINNATI, OHIO 45202 (513) 784-8000 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ROBERT W. OLSON, ESQ. VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY CHIQUITA BRANDS INTERNATIONAL, INC. 250 EAST FIFTH STREET CINCINNATI, OHIO 45202 (513) 784-8804 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------ WITH COPIES TO: ANDREW R. KELLER, ESQ. SIMPSON THACHER & BARTLETT 425 LEXINGTON AVENUE NEW YORK, NEW YORK 10017 ------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement as determined in light of market conditions and other factors. ------------------------ If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / - ------------------------ If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / - ------------------------ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / (Cover continued on next page) Pursuant to Rule 429 of the Rules under the 1933 Act, this Registration Statement contains a combined prospectus that also relates to a Registration Statement on Form S-3 No. 33-51995 (relating to an aggregate of $300,000,000 principal amount of Debt Securities, Preferred Stock, par value $1.00 per share, and Capital Stock, par value $0.33 per share) previously filed by the registrant and declared effective on January 28, 1994. This Registration Statement constitutes Post-Effective Amendment No. 1 to Registration Statement No. 33-51995 with respect to the remaining $81,250,000 of unsold securities thereunder, and such Post-Effective Amendment shall hereafter become effective concurrently with the effectiveness of this Registration Statement and in accordance with Section 8(c) of the Securities Act of 1933. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 CALCULATION OF REGISTRATION FEE
================================================================================================================= PROPOSED AGGREGATE PROPOSED MAXIMUM TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION TO BE REGISTERED(1) REGISTERED(2) PER UNIT(2)(3) PRICE(2)(4) FEE - ------------------------------------------------------------------------------------------------------------------ Debt Securities; Non-Voting Cumulative (7) (6) $418,750,000 $144,397 Preferred Stock, par value $1.00 per share; Cumulative Preference Stock, without par value; Depositary Shares; Capital Stock, par value $0.33 per share; Securities Warrants(5)(6) =================================================================================================================
(1) This registration statement also covers such indeterminate amount of securities as may be issued in exchange for, or upon conversion or exercise of, as the case may be, the Debt Securities, Non-Voting Preferred Stock, Preference Stock, Depositary Shares or Securities Warrants registered hereunder. (2) In no event will the aggregate initial offering price of all securities issued from time to time pursuant to this Registration Statement exceed $418,750,000 or, if any Debt Securities are issued with original issue discount, such greater amount as shall result in an aggregate offering price of not more than $418,750,000. Any offering of Debt Securities denominated other than in U.S. dollars will be treated as the equivalent of U.S. dollars based on the exchange rate applicable to the purchase of such Debt Securities at the time of the initial offering. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. (3) No separate consideration will be received for any securities registered hereunder that are issued in exchange for, or upon conversion of, as the case may be, the Debt Securities, Non-Voting Preferred Stock, Preference Stock, or Depositary Shares registered hereunder. (4) Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(o) of the rules and regulations (the "Rules") of the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "1933 Act"). (5) Such indeterminate number of Depositary Shares to be evidenced by Depositary Receipts issued pursuant to a Deposit Agreement. In the event that the Registrant elects to offer to the public fractional interests in shares of the Non-Voting Preferred Stock or Preference Stock registered hereunder, Depositary Receipts will be distributed to those persons purchasing such fractional interests and such shares will be issued to the Depositary under the Deposit Agreement. (6) Subject to Note 1 above, there is being registered hereunder an indeterminate principal amount of Debt Securities and/or shares of Non-Voting Preferred Stock and/or shares of Preference Stock and/or Depositary Shares and/or shares of Capital Stock and/or Securities Warrants as may be sold, from time to time, by the registrant. (7) Not applicable pursuant to Form S-3 General Instructions II.D. 3 SUBJECT TO COMPLETION PRELIMINARY PROSPECTUS DATED , 1996 PROSPECTUS [LOGO] $500,000,000 CHIQUITA BRANDS INTERNATIONAL, INC. DEBT SECURITIES PREFERRED STOCK COMMON STOCK SECURITIES WARRANTS Chiquita Brands International, Inc. ("Chiquita" or the "Company") may offer from time to time (i) in one or more series unsecured debt securities which may be either senior or subordinated debt securities (together, the "Debt Securities"), consisting of debentures, notes and/or other evidences of indebtedness; (ii) in one or more series shares of preferred stock (together "Preferred Stock") which may be either Non-Voting Cumulative Preferred Stock, par value $1.00 per share ("Non-Voting Preferred Stock") or Cumulative Preference Stock, without par value ("Preference Stock"), either of which may be issued in the form of depositary shares evidenced by depositary receipts ("Depositary Shares"), (iii) shares of its Capital Stock, par value $0.33 per share ("Common Stock") and (iv) securities warrants ("Securities Warrants") to purchase Debt Securities, Preferred Stock, Depositary Shares or Common Stock (the Debt Securities, Preferred Stock, Common Stock and Securities Warrants being collectively referred to as the "Securities"), or any combination of the foregoing, at an aggregate initial offering price not to exceed $500,000,000, at prices and on terms to be determined at or prior to the time of sale. Specific terms of the Securities in respect of which this Prospectus is being delivered will be set forth in an accompanying Prospectus Supplement ("Prospectus Supplement"), together with the terms of the offering of the Securities and the initial price and the net proceeds to Chiquita from the sale thereof. The Prospectus Supplement will set forth with regard to the particular Securities, without limitation, the following: (i) in the case of Debt Securities, the specific designation, aggregate principal amount, ranking as senior debt or subordinated debt, authorized denominations, maturity, rate (or method of calculation thereof) of interest and dates (or method of determination thereof) for payment thereof, and any exchangeability, conversion, redemption, prepayment or sinking fund provisions, (ii) in the case of Preferred Stock, the designation, including whether Non-Voting Preferred Stock or Preference Stock, number of shares, voting rights (for Preference Stock), liquidation preference per share, initial public offering price, dividend rate (or method of calculation thereof), dates on which dividends shall be payable and dates from which dividends shall accrue, any redemption or sinking fund provisions, any conversion or exchange rights and any special voting or other special rights, (iii) in the case of Common Stock, the number of shares of Common Stock and the terms of the offering and sale thereof and (iv) in the case of Securities Warrants, the number and terms thereof, the designation and number or amount of Securities issuable upon their exercise, the exercise price, the terms of the offering and sale thereof and, where applicable, the duration and detachability thereof. The Prospectus Supplement will also contain information, where applicable, about certain Federal income tax considerations relating to, and any listing on a securities exchange of, the Securities covered by the Prospectus Supplement. The Securities may be offered for sale directly, through agents, to or through underwriters or dealers designated from time to time or through a combination of such methods. If agents of Chiquita or any underwriters or dealers are involved in the sale of the Securities, the names of such agents, underwriters or dealers and any applicable commission or discounts will be set forth in the Prospectus Supplement. See "Plan of Distribution." SEE "RISK FACTORS" ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS WHICH SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE DATE OF THIS PROSPECTUS IS , 1996. 4 NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY AGENT, UNDERWRITER OR DEALER. THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. AVAILABLE INFORMATION Chiquita is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy and information statements and other information with the Securities and Exchange Commission (the "Commission"). Chiquita has filed with the Commission a Registration Statement on Form S-3 (together with all amendments and exhibits, the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the Securities offered hereby. This Prospectus does not contain all the information set forth in the Registration Statement and exhibits thereto, or amendments thereto, to which reference is hereby made. Such reports, proxy and information statements, Registration Statement and exhibits and other information filed by Chiquita may be inspected and, upon payment of the Commission's customary charges, copied at the public reference facilities of the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C., and at the Regional Offices of the Commission at Suite 1300, 7 World Trade Center, New York, New York, and Suite 1400, Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois. Chiquita's Common Stock is listed on the New York, Boston and Pacific Stock Exchanges. Reports, proxy and information statements and other information concerning Chiquita may be inspected and copied at the Library of the New York Stock Exchange at 20 Broad Street, New York, New York; at the Secretary's Office of the Boston Stock Exchange at 1 Boston Place, Boston, Massachusetts; and at the Listing Department of the Pacific Stock Exchange at 301 Pine Street, San Francisco, California. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE Chiquita will furnish, without charge, to any person to whom this Prospectus is delivered, upon such person's written or oral request, a copy of any and all of the information that has been incorporated by reference in the Registration Statement of which this Prospectus is a part (not including exhibits to such information unless such exhibits are specifically incorporated by reference into such information). Any such request should be directed to the Vice President, Corporate Affairs of Chiquita, 250 East Fifth Street, Cincinnati, Ohio 45202; telephone: (513) 784-6366. The Annual Report on Form 10-K for the year ended December 31, 1994 (which incorporates by reference certain information contained in the Company's 1994 Annual Report to Shareholders) (the "1994 10-K"), the Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995, June 30, 1995 and September 30, 1995 (the "1995 Third Quarter 10-Q" and, collectively, the "1995 10-Q's") and the Current Reports on Form 8-K dated April 27, 1995, December 20, 1995 and February 7, 1996 filed by Chiquita with the Commission (Commission file number 1-1550) are incorporated herein by reference and made a part hereof. The consolidated financial statements and certain financial data included in the 1994 10-K and the consolidated nine month financial statements included in the 1995 Third Quarter 10-Q have been restated in the Current Report on Form 8-K filed on February 7, 1996 to reflect the deconsolidation of the Company's discontinued Meat Division operations. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Securities shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the respective dates of filing of such documents. Any statement contained in a document incorporated or deemed to be 2 5 incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. THE COMPANY Chiquita Brands International, Inc. is a leading international marketer, producer and distributor of bananas and other quality fresh and processed food products sold under the Chiquita and other brand names. In addition to bananas, these products include other tropical fruit, such as mangos, kiwi and citrus, and a wide variety of other fresh produce. The Company's operations also include fruit and vegetable juices and beverages sold primarily in the United States; processed bananas and other processed fruits and vegetables marketed worldwide; and fresh cut and ready-to-eat salads. The Company has recently sold its Meat Division. All financial data in this prospectus have been restated to deconsolidate the Company's discontinued Meat Division operations. American Financial Group, Inc. ("AFG") owns, either directly or through its subsidiaries, approximately 44% of Chiquita's outstanding shares of Common Stock. Approximately 44% of the outstanding common stock of AFG is beneficially owned by Carl H. Lindner, members of his family and trusts for their benefit. Chiquita is a New Jersey corporation. The address of its principal executive offices is 250 East Fifth Street, Cincinnati, Ohio 45202 and its telephone number is (513) 784-8000. Unless the context indicates otherwise, the term "Chiquita" also includes the subsidiaries of the Company. RISK FACTORS In addition to the other information set forth in this Prospectus, prospective investors should carefully consider the following before making an investment in the Securities. EUROPEAN UNION BANANA REGULATION On July 1, 1993, the European Union ("EU") implemented a new quota effectively restricting the volume of Latin American bananas imported into the EU. Implementation of the quota had the effect of decreasing the Company's volume and market share in Europe. The quota is administered through a licensing system and grants preferred status to producers and importers within the EU and its former colonies, while imposing new quotas and tariffs on bananas imported from other sources, including Latin America, Chiquita's primary source of fruit. Since imposition of the EU quota regime, prices within the EU have increased to a higher level than the levels prevailing prior to the quota. Banana prices in other worldwide markets, however, have been lower than in years prior to the EU quota, as the displaced EU volume has entered those markets. In two separate rulings, General Agreement on Tariffs and Trade ("GATT") panels found this banana policy to be illegal. In March 1994, four of the countries which had filed GATT actions against the EU banana policy (Costa Rica, Colombia, Nicaragua and Venezuela) reached a settlement with the EU by signing a "Framework Agreement." The Framework Agreement authorizes the imposition of additional restrictive and discriminatory quotas and export licenses on U.S. banana marketing firms, while leaving EU firms exempt. Costa Rica and Colombia have implemented this agreement, significantly increasing the Company's cost to export bananas from these sources. Three additional European countries (Sweden, Finland and Austria) joined the EU effective January 1, 1995. These countries, which had substantially unrestricted banana markets in which the Company supplied a significant portion of the bananas, are in the process of transition to the restrictive EU quota and licensing environment. The timing and exact nature of any adjustments in the quota and licensing regulations that will be made for these new EU members have not yet been determined. Implementation of the quota regime continues to evolve, and there can be no assurance that the EU banana regulation will not change further. 3 6 In September 1994, Chiquita and the Hawaii Banana Industry Association made a joint filing with the Office of the U.S. Trade Representative ("USTR") under Section 301 of the U.S. Trade Act of 1974, charging that the EU quota and licensing regime and the Framework Agreement are unreasonable, discriminatory, and a burden and restriction on U.S. commerce. In response to this petition, the U.S. Government initiated formal investigations of the EU banana import policy and of the Colombian and Costa Rican Framework Agreement export policies. In January 1995, the U.S. Government announced a preliminary finding against the EU banana import policy and in September 1995, based on information obtained in the USTR's investigation under Section 301, the United States, joined by Guatemala, Honduras and Mexico, commenced a new international trade challenge against the EU regime using the procedures of the new World Trade Organization ("WTO"). In January 1996, the USTR announced it had found the banana export policies of Costa Rica and Colombia, which have implemented the Framework Agreement, to be unfair. The USTR further announced it was not imposing sanctions at that time, pending further consultations with those countries to eliminate harm to U.S. commerce. In early February 1996, Ecuador joined the United States, Guatemala, Honduras and Mexico in challenging the EU regime under the WTO. Both the WTO and Section 301 authorize retaliatory measures, such as tariffs or withdrawal of trade concessions, against the offending countries. However, there can be no assurance as to the results of the WTO and Section 301 proceedings, the nature and extent of actions that may be taken by the United States or other adversely affected countries, or the impact on the EU quota regime or the Framework Agreement. RECENT LOSSES From 1984 to 1991, the Company reported a continuous record of growth in annual earnings. However, the Company reported net losses for 1992, 1993 and 1994 of $284 million, $51 million and $72 million, respectively. The 1992 net loss included restructuring and reorganization charges of $61 million and losses relating to discontinued Meat Division operations of $62 million. The 1993 net loss was reduced as a result of benefits from the Company's multiyear investment spending program and its restructuring and cost reduction efforts. The 1994 net loss included income from discontinued operations of $36 million extraordinary charges of $23 million from prepayment of debt and charges and losses totaling $67 million resulting primarily from farm closings and banana cultivation write-downs in Honduras following an unusually severe strike, the substantial reduction of the Company's Japanese "green" banana trading operations and a write-down of ships held for sale. LEVERAGE As of September 30, 1995, the Company and its subsidiaries had short-term notes and loans payable of $114 million and long-term debt (including current maturities) of approximately $1.4 billion. Required debt maturities for the fourth quarter of 1995 were $29 million and for the years 1996 through 2000 are $56 million, $61 million, $88 million, $35 million and $36 million, respectively. The percentage of total debt to total capitalization for the Company was 68% at September 30, 1995. SUBSIDIARIES Substantially all of the operations of the Company are conducted through its subsidiaries and the Company is therefore dependent on the cash flow of its subsidiaries to meet its obligations. The claims of holders of the Securities will be structurally subordinated to any existing and future obligations (whether or not for borrowed money) of such subsidiaries, some of which are highly leveraged. As of September 30, 1995, the total debt of the Company's subsidiaries aggregated $657 million, of which $326 million represented non- recourse long-term debt of the Company's shipping subsidiaries secured by ships and related equipment and $114 million represented short-term notes and loans payable. COMPETITION AND PRICING Approximately 60% of the Company's consolidated net sales comes from the sale of bananas. Banana marketing is highly competitive. While smaller companies, including growers' cooperatives, are a competitive factor, the Company's principal competitors are a limited number of large international companies. The 4 7 Company has been able to obtain a premium price for its bananas due to its reputation for quality and its innovative marketing techniques. In order to compete successfully, the Company must be able to source bananas of uniformly high quality and distribute them in worldwide markets on a timely basis. Bananas are highly perishable and must be brought to market and sold generally within 60 days after harvest. Therefore, selling prices which importers receive for bananas are dependent upon the available supplies of bananas and other fruit in each market, the relative quality, and wholesaler and retailer acceptance of bananas offered by competing importers. Excess supplies may result in increased price competition. Competition in the sale of bananas also comes from other fresh fruit, which may be seasonal in nature. The resulting seasonal variations in demand cause banana pricing to be seasonal, with the first six months of the calendar year being the stronger period. ADVERSE WEATHER CONDITIONS AND CROP DISEASE Bananas are vulnerable to adverse local weather conditions, which are quite common but difficult to predict, and to crop disease, the control of which entails significant expense. These factors may restrict worldwide supplies and result in increased prices for bananas. However, competitors may be affected differently, depending upon their ability to obtain adequate supplies from sources in other geographic areas. Chiquita has a greater number and geographic diversity of sources of bananas than any of its competitors. During 1995, approximately one-third of all bananas sold by Chiquita were sourced from Panama. Bananas sourced from other countries, including Colombia, Costa Rica, Ecuador, Guatemala and Honduras, comprised from 3% to 23% (depending on the country) of bananas sold by Chiquita during 1995. LABOR RELATIONS The Company employs a total of approximately 36,000 persons. Approximately 32,000 of the associates are employed in Central and South America, including 28,000 workers covered by approximately 85 labor contracts with terms expiring from 1996 to 1999. Strikes or other labor-related actions are often encountered upon expiration of labor contracts and also frequently occur during the term of the contracts. OTHER RISKS OF INTERNATIONAL OPERATIONS The Company's operations are conducted in many areas of the world, and are subject to risks that are inherent in operating in foreign countries, including government regulation, currency restrictions and other restraints, risks of expropriation, burdensome taxes, quotas and tariffs. There is also a risk that legal or regulatory requirements will be changed or that administration and enforcement policies will change. Certain of the Company's operations are dependent upon leases and other agreements with the governments of the countries. Although the Company's operations are a significant factor in the economies of many of the countries where the Company produces and purchases bananas and other agricultural products, the Company believes its overall risk from these factors, as well as from political changes, is reduced by the large number and geographic diversity of its sources of bananas. The Company's operations worldwide and the products it sells are subject to numerous governmental regulations and inspections by environmental, food safety and health authorities. Although the Company believes it is substantially in compliance with such regulations, actions by regulators have in the past required, and in the future may require, operational modifications or capital improvements at various locations or the payment of fines and penalties, or both. SHARES AVAILABLE FOR FUTURE SALE No prediction can be made as to the effect, if any, that future sales of shares of Common Stock or Preferred Stock, or the availability of such shares for future sales, will have on the market price of Common Stock or any then outstanding Preferred Stock prevailing from time to time. Sales of substantial amounts of Common Stock or Preferred Stock, or the perception that such sales could occur, could adversely affect prevailing market prices for the Common Stock or, in certain instances, the Preferred Stock. At February 2, 1996, the Company had outstanding 55,123,774 shares of Common Stock, including 23,996,295 shares held, directly or indirectly, by AFG, and 2,875,000 shares of $2.875 Non-Voting Cumulative Preferred Stock, Series A. 5 8 ABSENCE OF PUBLIC MARKET FOR SECURITIES (OTHER THAN COMMON STOCK) Since the Debt Securities, the Preferred Stock and the Securities Warrants will be newly issued, there is no current market for such Securities. The Company may, but has no obligation to, apply for listing of such Securities on the New York Stock Exchange or another stock exchange, and there can be no assurance that the applicable listing requirements of any such exchange will be met. There can be no assurance that there will be an active trading market for such Securities. USE OF PROCEEDS Unless otherwise indicated in the Prospectus Supplement, the net proceeds to be received by the Company from the sale of the Securities will be used to repay outstanding debt of the Company and its subsidiaries and for general corporate purposes. 6 9 RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The ratio of earnings to fixed charges and the ratio of earnings to combined fixed charges and preferred stock dividends for the Company were as follows for the nine month periods ended September 30, 1995 and 1994 and for the years ended December 31, 1990 through 1994:
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, ------------- ---------------------------------------- 1995 1994 1994 1993 1992 1991 1990 ---- ---- ---- ---- ---- ---- ---- Ratio of earnings to fixed charges....... 1.42 --(1) --(1) --(1) --(1) 1.73 2.13 Ratio of earnings to combined fixed charges and preferred stock dividends.............................. 1.34 --(1) --(1) --(1) --(1) 1.73 2.13
- --------------- (1) Fixed charges and combined fixed charges and preferred stock dividends both exceeded earnings by approximately $3 million and $10 million, respectively for the nine months ended September 30, 1994. Fixed charges exceeded earnings by approximately $75 million, $45 million and $239 million for the years ended December 31, 1994, 1993 and 1992, respectively. Combined fixed charges and preferred stock dividends exceeded earnings by approximately $86 million, $49 million and $239 million for the years ended December 31, 1994, 1993 and 1992, respectively. For purposes of calculating the ratios of earnings to fixed charges and of earnings to combined fixed charges and preferred stock dividends, earnings are calculated as the sum of the income (loss) from continuing operations before income taxes, fixed charges (other than capitalized interest) and amortization of capitalized interest, less undistributed earnings of less-than-fifty-percent-owned investees. Fixed charges consist of interest on indebtedness (including amortization of debt discount and capitalized interest) and a portion of rent considered to represent interest cost. 7 10 DESCRIPTION OF THE DEBT SECURITIES The following description of the Debt Securities sets forth certain general terms and provisions of the Debt Securities to which any Prospectus Supplement may relate. The particular terms of the Debt Securities offered by any Prospectus Supplement and the extent, if any, to which such general provisions do not apply to those Debt Securities will be described in the Prospectus Supplement relating to such Debt Securities. The Debt Securities will be general unsecured obligations of the Company and will constitute either senior debt securities or subordinated debt securities. In the case of Debt Securities that will be senior debt securities ("Senior Debt Securities"), the Debt Securities will be issued under an Indenture (the "Senior Indenture") dated as of February 15, 1994 between the Company and The Fifth Third Bank, Cincinnati, Ohio, as trustee (the "Senior Debt Trustee"), under the Senior Indenture. In the case of Debt Securities that will be subordinated debt securities ("Subordinated Debt Securities"), the Debt Securities will be issued under an Indenture (the "Subordinated Indenture") to be executed by the Company and Star Bank, N.A., Cincinnati, Ohio, as trustee (the "Subordinated Debt Trustee"), under the Subordinated Indenture. The Senior Indenture and the Subordinated Indenture are sometimes referred to herein individually as an "Indenture" and collectively as the "Indentures." The Senior Debt Trustee and the Subordinated Debt Trustee are sometimes referred to herein individually as the "Trustee" or collectively as the "Trustees." The statements made under this caption relating to the Debt Securities and the Indentures are summaries only, do not purport to be complete and are qualified in their entirety by reference to the Indenture or form of Indenture filed with the Commission in connection with the issuance of any series of Debt Securities. Such summaries make use of terms defined in the Indentures. Wherever such terms are used herein, such terms are incorporated by reference from the Indentures as part of the statements made herein. Summaries of certain terms used herein will be included in the Prospectus Supplement relating to the issuance of any particular series of Debt Securities. PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES GENERAL. Except as may be set forth in the terms of the Debt Securities and described in the Prospectus Supplement relating to such Debt Securities, neither of the Indentures limits the amount of Debt Securities which can be issued thereunder and each provides that additional Debt Securities may be issued thereunder up to the aggregate principal amount which may be authorized from time to time by the Company's Board of Directors. Reference is made to the Prospectus Supplement for the following terms of the particular series of Debt Securities being offered thereby: (i) the designation, aggregate principal amount and authorized denominations of the series; (ii) the price at which the series will be issued; (iii) the date or dates on which the series will mature (or manner of determining the same); (iv) the rate or rates per annum, if any, at which the series will bear interest (or the manner of calculation thereof) and the date or dates from which such interest will accrue; (v) certain covenants which will be applicable to that series of Debt Securities; (vi) the times at which any interest will be payable (or manner of determining the same) and the Regular Record Dates for Interest Payment Dates; (vii) the place or places where the principal of (and premium, if any) and interest, if any, on the series will be payable and each office or agency, as described below under "Denominations, Registration and Transfer," where the Debt Securities may be presented for transfer or exchange; (viii) any mandatory or optional sinking fund or analogous provisions; (ix) the date, if any, after which, and the price at which, such Debt Securities are payable pursuant to any optional or mandatory redemption provisions; (x) the terms and conditions upon which the Debt Securities of such series may be repayable prior to maturity at the option of the holder thereof and the price at which such Debt Securities are so repayable; (xi) any provisions regarding exchangeability or conversion of the Debt Securities; (xii) information with respect to book-entry procedures, if any; (xiii) any provisions of the Indenture which will not be applicable to that series of Debt Securities; (xiv) whether the Debt Securities are Senior Debt Securities or Subordinated Debt Securities; and (xv) any other additional provisions or specific terms which may be applicable to that series of Debt Securities. Some of the Debt Securities may be issued as Discounted Securities (bearing no interest or interest at a rate which at the time of issuance is below market rates) to be sold at a substantial discount below their stated 8 11 principal amount. Federal income tax consequences and other special considerations applicable to any Discounted Securities will be described in the Prospectus Supplement relating thereto. DENOMINATIONS, REGISTRATION AND TRANSFER. Unless otherwise indicated in the applicable Prospectus Supplement, the Debt Securities of a series will be issuable only in fully registered form. Unless otherwise provided in an applicable Prospectus Supplement with respect to a series of Debt Securities, Debt Securities will be issued only in denominations of $1,000 or any integral multiple thereof. Debt Securities of any series will be exchangeable for other Debt Securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations. Debt Securities may be presented for exchange or for registration of transfer (with the form of transfer duly executed) at the office of a transfer agent designated by the Company for such purpose with respect to any series of Debt Securities. If a Prospectus Supplement refers to any transfer agent initially designated by the Company with respect to any series of Debt Securities, the Company may at any time rescind the designation of any such transfer agent or approve a change in the location through which any such transfer agent acts, except that the Company will be required to maintain a transfer agent in each Place of Payment for such series. The Company is not required to issue, register the transfer of or exchange Debt Securities of any series for the 15-day period prior to the mailing of a notice of redemption and, with respect to any Debt Securities called for redemption in whole or in part (except for the unredeemed portion of any Debt Securities being redeemed in part), following such mailing. PAYMENT AND PAYING AGENTS. Unless otherwise indicated in an applicable Prospectus Supplement, payment of principal of (and premium, if any) and interest, if any, on Debt Securities will be made (i) by check mailed or delivered to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer to an account (with a bank located inside the United States) maintained by the Person entitled thereto. Unless otherwise indicated in an applicable Prospectus Supplement, payment of any installment of interest on any Debt Security will be made to the Person in whose name such Debt Security is registered at the close of business on the Regular Record Date for such interest payment. All moneys paid by the Company to the Trustee or a Paying Agent for the payment of principal of (and premium, if any) and interest, if any, on any Debt Security which remains unclaimed at the end of two years after such principal, premium or interest shall have become due and payable will be repaid to the Company and the holder of such Debt Security will thereafter look only to the Company for payment thereof. CONSOLIDATION, MERGER AND SALE OF ASSETS. Under each of the Indentures, the Company may not consolidate with or merge into any other entity or sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of its properties and assets as an entirety to any entity, unless: (1) either (a) the Company shall be the continuing corporation or (b) the entity (if other than the Company) formed by such consolidation or into which the Company is merged or the entity that acquires, by sale, assignment, conveyance, transfer, lease or disposition, all or substantially all of the properties and assets of the Company as an entirety shall be a corporation, partnership or trust organized and validly existing under the laws of the United States or any State thereof or the District of Columbia, and shall expressly assume by a supplemental indenture, the due and punctual payment of the principal of and premium, if any, and interest on all the Debt Securities and the performance and observance of every covenant of the Indenture on the part of the Company to be performed or observed; (2) immediately thereafter, no Event of Default (and no event that, after notice or lapse of time, or both, would become an Event of Default) shall have occurred and be continuing; and (3) certain other conditions, if any, are met, as are described in the Prospectus Supplement relating to the Debt Securities being offered thereby. In the event of any transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding paragraphs in which the Company is not the continuing corporation, the successor entity formed or remaining would be substituted for the Company and the Company would be discharged from all obligations and covenants under the Indenture and the Debt Securities. 9 12 EVENTS OF DEFAULT. The following events are defined in each of the Indentures as "Events of Default" with respect to a series of Debt Securities: (i) default in the payment of any installment of interest on any Debt Securities in such series for 30 consecutive days after becoming due; (ii) default in the payment of the principal of (or premium, if any, on) any Debt Securities in such series when due; (iii) default in the performance of any other covenant applicable to such series contained in the Debt Securities or the Indenture for a period of 60 days after written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee or to the Company and the Trustee by the holders of 25% in aggregate principal amount of such series of Debt Securities then Outstanding; (iv) default shall have occurred under any other series of Debt Securities or any agreements, indentures or instruments under which the Company then has outstanding Indebtedness in excess of $10 million in the aggregate and, if not already matured in accordance with its terms, such Indebtedness shall have been accelerated and such acceleration shall not have been rescinded or annulled within ten days after notice thereof shall have been given to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of such series of Debt Securities then Outstanding, provided, that if, prior to the entry of judgment in favor of the Trustee, such default under such indenture or instrument shall be remedied or cured by the Company, or waived by the holders of such Indebtedness, then the Event of Default under such Indenture shall be deemed likewise to have been remedied, cured or waived and provided, further, that if such default results from an action of the United States government or a foreign government which prevents the Company from performing its obligations under such agreement, indenture or instrument, the occurrence of such default will not be an Event of Default under such Indenture; (v) one or more judgments, orders or decrees for the payment of money in excess of $10 million, either individually or in the aggregate, shall be entered against the Company and shall not be discharged, there shall have been a period of 60 days during which a stay of enforcement of such judgment or order, by reason of an appeal or otherwise, shall not be in effect and there shall have been given written notice of the default to the Company by the Trustee or to the Company and the Trustee by the holders of 25% in aggregate principal amount of such series of Debt Securities then Outstanding; or (vi) certain events of bankruptcy, insolvency or reorganization with respect to the Company shall have occurred. If an Event of Default shall occur and be continuing with respect to a series of Debt Securities, either the Trustee or the holders of at least 25% in principal amount of the Outstanding Debt Securities of such series may declare the entire principal amount, or, in the case of Discounted Securities, such lesser amount as may be provided for in such Discounted Securities, of all the Debt Securities of such series to be immediately due and payable. Under each of the Indentures, the Company is required to furnish the Trustee annually a statement by certain officers of the Company to the effect that to the best of their knowledge the Company is not in default in the fulfillment of any of its obligations under the Indenture or, if there has been a default in the fulfillment of any such obligation, specifying each such default. Each of the Indentures provides that the Trustee shall, within 90 days after the occurrence of a default with respect to a particular series of Debt Securities (unless such default has been cured or waived), give the holders of the Debt Securities of such series notice of such default known to it (the term default to mean the events specified above without grace periods); provided that, except in the case of a default in the payment of principal of (or premium, if any) or interest, if any, on any of the Debt Securities of such series, the Trustee shall be protected in withholding such notice if it in good faith determines the withholding of such notice is in the interest of the holders of the Debt Securities of such series. The holders of a majority in principal amount of a particular series of Debt Securities Outstanding have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee with respect to such series or exercising any trust or power conferred on the Trustee, and to waive certain defaults. Each of the Indentures provides that in case an Event of Default shall occur and be continuing, the Trustee shall exercise such of its rights and powers under the Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any of the holders of the 10 13 Debt Securities unless they shall have offered to the Debt Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request. SATISFACTION AND DISCHARGE. Except as may otherwise be set forth in the Prospectus Supplement relating to a series of Debt Securities, each of the Indentures provides that the Company shall be discharged from its obligations under the Debt Securities of such series (with certain exceptions) at any time prior to the Stated Maturity or redemption thereof when (a) the Company has deposited with the Trustee, in trust, sufficient funds to pay the principal of (and premium, if any) and interest, if any, to Stated Maturity (or to Redemption Date) on, the Debt Securities of such series, (b) the Company has paid all other sums payable with respect to the Debt Securities of such series and (c) certain other conditions are met. Upon such discharge, the holders of the Debt Securities of such series shall no longer be entitled to the benefits of the Indenture, except for certain rights, including registration of transfer and exchange of the Debt Securities of such series and replacement of mutilated, destroyed, lost or stolen Debt Securities, and shall look only to such deposited funds. Such discharge may be treated as a taxable exchange of the related Debt Securities for an issue of obligations of the trust or a direct interest in the cash and securities held in the trust. In that case, holders of such Debt Securities would recognize gain or loss as if the trust obligations or the cash or securities deposited, as the case may be, had actually been received by them in exchange for their Debt Securities. Such holders thereafter might be required to include in income a different amount than would be includable in the absence of discharge. Prospective investors are urged to consult their own tax advisors as to the specific consequences of discharge. MODIFICATION AND WAIVER. Certain modifications and amendments (which, generally, either benefit or do not affect the holders of Outstanding Debt Securities) of each of the Indentures may be made by the Company and the Trustee without the consent of holders of the Debt Securities. Other modifications and amendments of each Indenture require the consent of the holders of more than 50% in principal amount of the Outstanding Debt Securities of each series issued under the Indenture affected by the modification or amendment; provided, however, that no such modification or amendment may, without the consent of the holder of each Outstanding Debt Security affected thereby, (a) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on any Debt Security, (b) reduce the principal amount of (or premium, if any) or interest, if any, on any Debt Security, (c) reduce the amount of principal of a Discounted Security payable upon acceleration of the Maturity thereof, (d) change the Place of Payment, (e) impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date) or (f) reduce the percentage in principal amount of Outstanding Debt Securities of any series, the consent of the holders of which is required for modification or amendment of such Indenture or for waiver of compliance with certain provisions of such Indenture or for waiver of certain defaults. The holders of not less than a majority in principal amount of the Outstanding Debt Securities of any series may on behalf of the holders of all Debt Securities of that series waive, insofar as that series is concerned, compliance by the Company with certain restrictive provisions of the Indenture. The holders of not less than a majority in principal amount of the Outstanding Debt Securities of any series may on behalf of the holders of all Debt Securities of that series waive any past default under the Indenture with respect to that series, except a default in the payment of the principal of (or premium, if any) and interest, if any, on any Debt Security of that series or in respect of a provision which under the Indenture cannot be modified or amended without the consent of the holder of each Outstanding Debt Security of that series affected. NOTICES. Notices to holders of Debt Securities will be given by mail to the addresses of such holders as they appear in the Debt Security Register. GOVERNING LAW. The Indentures and the Debt Securities are to be governed by and construed in accordance with the laws of the State of New York. 11 14 PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES Senior Debt Securities will be issued under the Senior Indenture and will rank pari passu with all other existing and future unsecured Senior Indebtedness of the Company. PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES GENERAL. Subordinated Debt Securities will be issued under the Subordinated Indenture and will rank pari passu with certain other subordinated debt of the Company that may be outstanding from time to time and will rank junior to all Senior Indebtedness of the Company (including any Senior Debt Securities) that may be outstanding from time to time. SUBORDINATION. The Indebtedness represented by the Subordinated Debt Securities is subordinated in right of payment to the prior payment in full of all Senior Indebtedness. No payment or distribution shall be made on account of the principal of or premium, if any, or interest on, or the purchase, redemption or other acquisition of, the Subordinated Debt Securities in the event and during the continuation of any default in the payment of any Senior Indebtedness beyond any applicable grace period. Payments of principal, premium, if any, and interest on, or redemption or other acquisition by the Company of, the Subordinated Debt Securities may also be blocked in the event of other defaults which allow acceleration of the maturity of any Senior Indebtedness. The Subordinated Indenture will provide that in the event of any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or its assets, or any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, or any assignment for the benefit of creditors or other marshaling of assets or liabilities of the Company, all Senior Indebtedness must be paid in full, or provision made for such payment, before any payment or distribution (excluding certain permitted equity or subordinated securities) is made on account of the principal of or premium, if any, or interest on the Subordinated Debt Securities. By reason of such subordination, in the event of liquidation or insolvency, creditors of the Company who are holders of Senior Indebtedness may recover more, ratably, than the holders of the Subordinated Debt Securities. By reason of such subordination, in the event of liquidation or insolvency, creditors of the Company who are holders of Senior Indebtedness may recover more, ratably, than the holders of the Subordinated Debt Securities. For purposes of the foregoing, Senior Indebtedness will be defined to mean all Indebtedness of the Company and any accrued but unpaid interest on such Indebtedness, unless in each case by the terms of the instrument creating or evidencing such Indebtedness it is provided that such Indebtedness is not senior in right of payment to the Subordinated Debt Securities or that such Indebtedness is pari passu with or subordinate in right of payment to the Subordinated Debt Securities; provided that Senior Indebtedness does not include (i) the Company's 10 1/2% Subordinated Debentures due August 1, 2004, 11 1/2% Subordinated Notes due June 1, 2001 and 7% Convertible Subordinated Debentures due March 28, 2001, (ii) any obligations of the Company to any of its subsidiaries, or (iii) any obligations of the Company arising from redeemable stock. CONCERNING THE TRUSTEES The Senior Debt Trustee, The Fifth Third Bank, Cincinnati, Ohio, is a state banking association organized under the laws of the State of Ohio. The Bank is a regional commercial bank offering a wide range of banking services to individual and business customers. The Subordinated Debt Trustee, Star Bank, N.A., Cincinnati, Ohio, is a national banking association organized under the laws of the United States of America. DESCRIPTION OF EQUITY SECURITIES Chiquita has 150,000,000 authorized shares of Capital Stock, par value $.33 per share (the "Common Stock"), of which 55,123,774 shares were outstanding on February 2, 1996. Chiquita has authorized 10,000,000 shares of Non-Voting Cumulative Preferred Stock, $1.00 par value per share (the "Non-Voting 12 15 Preferred Stock"), of which 2,875,000 shares were outstanding as of February 2, 1996 designated as $2.875 Non-Voting Cumulative Preferred Stock, Series A; and 4,000,000 shares of Cumulative Preference Stock, without par value (the "Preference Stock"), no shares of which were outstanding as of February 2, 1996. Each of the Non-Voting Preferred Stock and the Preference Stock may be issued in one or more series having such designated preferences and rights, qualifications and limitations as the Board of Directors may from time to time determine without requiring any vote of the shareholders. The issuance of preferred or preference stock by the Board of Directors could be utilized, under certain circumstances, as a method of preventing a takeover of Chiquita. There are no other provisions in the Company's Second Restated Certificate of Incorporation or By-Laws that would have an effect of delaying, deferring or preventing a change in control of Chiquita. Various debt instruments of the Company restrict, among other things, dividends and other distributions on, and repurchases or redemptions of, the Company's capital stock. At September 30, 1995, these restrictions would have allowed the payment of approximately $200 million for dividends and other corporate distributions, redemptions or repurchases. The ability of the Company to pay dividends when, as and if declared by the Board of Directors, may be subject to restrictions contained in any future debt agreements and to limitations contained in future series or classes of preferred or preference shares and is subject to the legal availability of funds. DESCRIPTION OF COMMON STOCK Chiquita has 150,000,000 authorized shares of Common Stock, of which 55,123,774 shares were outstanding on February 2, 1996. Holders of Common Stock are entitled to one vote per share on the election of directors and all other matters submitted to a vote of shareholders. Shares of Common Stock do not have cumulative voting rights. Holders of Common Stock are entitled to receive dividends when, as and if declared by the Board of Directors, out of funds legally available therefor; provided, however, that all dividends on any preferred stock and preference stock which may be issued in the future must be fully paid or declared and set apart before any dividends can be paid or declared and set apart with respect to the Common Stock. Upon liquidation, dissolution or winding-up of Chiquita, the holders of the Common Stock are entitled to share ratably in the assets of Chiquita remaining after the payment of its obligations and liabilities and after payment due the holders of Chiquita's preferred stock and preference stock. Holders of Common Stock have no preemptive or other rights to subscribe for or purchase additional securities of Chiquita. All outstanding shares of Common Stock are fully paid and nonassessable. DESCRIPTION OF PREFERENCE STOCK The Board of Directors of the Company may provide for the issuance of up to 4,000,000 shares of Preference Stock in one or more series. The rights, preferences, privileges and restrictions, including dividend rights, voting rights, conversion rights, terms of redemption and liquidation preferences of each series may be fixed or designated by the Board of Directors without any further vote or action by the Company's shareholders. Upon issuance after full payment of the purchase price therefor, shares of Preference Stock offered hereby will be fully paid and nonassessable. The specific terms of a particular series of Preference Stock offered hereby will be described in a Prospectus Supplement relating to such series and will include, without limitation, the following: (i) the maximum number of shares to constitute the series and the distinctive designation thereof; (ii) the annual dividend rate, if any, on shares of the series, whether such rate is fixed or variable or both, the date or dates from which dividends will begin to accrue or accumulate and whether dividends will be cumulative; 13 16 (iii) whether the shares of the series will be redeemable and, if so, the price at and the terms and conditions on which the shares of the series may be redeemed, including the time during which shares of the series may be redeemed and any accumulated dividends thereon that the holders of the series shall be entitled to receive upon the redemption thereof; (iv) the liquidation preference, if any, applicable to shares of the series; (v) whether the shares of the series will be subject to operation of a retirement or sinking fund and, if so, the extent and manner in which any such fund shall be applied to the purchase or redemption of the shares of the series for retirement or for other corporate purposes, and the terms and provisions relating to the operation of such fund; (vi) the terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, any other debt or equity securities; (vii) the voting power, if any, of any series; and (viii) any other preferences and relative, participating, optional or other special rights or qualifications, limitations or restrictions thereof. DESCRIPTION OF NON-VOTING PREFERRED STOCK Chiquita has 10,000,000 authorized shares of Non-Voting Preferred Stock, of which 2,875,000 shares, designated as $2.875 Non-Voting Cumulative Preferred Stock, Series A, par value $1.00 per share (the "Series A Preferred Stock"), were outstanding on February 2, 1996. The Non-Voting Preferred Stock may be issued in one or more series and the rights, preferences, privileges and restrictions, including dividend rights, conversion rights, terms of redemption and liquidation preferences of each series may be fixed or designated by the Board of Directors of the Company without any further vote or action by the Company's shareholders; provided however, that no series of Preferred Stock shall have the right to vote unconditionally in the election of directors of the Company. Upon issuance after full payment of the purchase price therefor, shares of Non-Voting Preferred Stock offered hereby will be fully paid and nonassessable. The specific terms of a particular series of Non-Voting Preferred Stock offered hereby will be described in a Prospectus Supplement relating to such series and will include, without limitation, the following: (i) the maximum number of shares to constitute the series and the distinctive designation thereof; (ii) the annual dividend rate, if any, on shares of the series, whether such rate is fixed or variable or both, the date or dates from which dividends will begin to accrue or accumulate and whether dividends will be cumulative; (iii) whether the shares of the series will be redeemable and, if so, the price at and the terms and conditions on which the shares of the series may be redeemed, including the time during which shares of the series may be redeemed and any accumulated dividends thereon that the holders of shares of the series shall be entitled to receive upon the redemption thereof; (iv) the liquidation preference, if any, applicable to shares of the series; (v) whether the shares of the series will be subject to operation of a retirement or sinking fund and, if so, the extent and manner in which any such fund shall be applied to the purchase or redemption of the shares of the series for retirement or for other corporate purposes, and the terms and provisions relating to the operation of such fund; (vi) the terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, any other debt or equity securities; (vii) special voting rights, if any, of any series; and (viii) any other preferences and relative, participating, optional or other special rights or qualifications, limitations or restrictions thereof. 14 17 THE SERIES A PREFERRED STOCK. Dividends on the Series A Preferred Stock accrue at an annual rate of $2.875 per share, are cumulative from February 15, 1994, and are payable quarterly in arrears, commencing June 7, 1994. The shares of Series A Preferred Stock have a liquidation preference of $50.00 per share plus dividends in arrears, if any. The Series A Preferred Stock is not convertible at the option of the Company prior to February 15, 1997. On and after February 15, 1997 until February 15, 2001, the Series A Preferred Stock will be convertible, in whole or in part, at the option of the Company, for such number of shares of the Company's Common Stock as are issuable at a conversion rate of 2.6316 shares of Common Stock for each share of Series A Preferred Stock, subject to adjustment in certain circumstances. The Company may exercise this option only if for 20 trading days within any period of 30 consecutive trading days, including the last trading day of such 30 trading day period, the closing price of the Common Stock on the New York Stock Exchange (the "NYSE") exceeds $24.70, subject to adjustment in certain circumstances. On and after February 15, 2001, the Series A Preferred Stock will be convertible, in whole or in part, at the option of the Company, into that number of shares of Common Stock which shall have a current market price (calculated by averaging the closing prices of the Common Stock on the NYSE for the five trading days immediately preceding the conversion date) equal to $50.00 per share of Series A Preferred Stock. However, in no event shall the number of shares of Common Stock into which each share of Series A Preferred Stock is convertible exceed 10, subject to adjustment in certain circumstances. Each share of Series A Preferred Stock is convertible at any time at the holder's option, into 2.6316 shares of Common Stock, subject to adjustment in certain circumstances. The Series A Preferred Stock is not redeemable, and there is no redemption or sinking fund obligation with respect to the Series A Preferred Stock. DEPOSITARY SHARES GENERAL. The Company may, at its option, elect to offer fractional shares of Preferred Stock (either Non-Voting Preferred Stock or Preference Stock) rather than full shares of Preferred Stock. In the event such option is exercised, the Company will issue to the public receipts for Depositary Shares, each of which will represent a fraction (to be set forth in the Prospectus Supplement relating to a particular series of Preferred Stock) of a share of a particular series of Preferred Stock as described below. The shares of any series of Preferred Stock represented by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit Agreement") between the Company and, unless otherwise indicated in the Prospectus Supplement, a bank or trust company selected by the Company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption and liquidation rights). The Depositary Shares will be evidenced by depositary receipts issued pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts will be distributed to those persons purchasing the fractional shares of Preferred Stock in accordance with the terms of the offering. Copies of the forms of Deposit Agreement and Depositary Receipt are filed as exhibits to the Registration Statement of which this Prospectus is a part, and the following summary is qualified in its entirety by reference to such exhibits. If required by law or applicable securities exchange rules, engraved Depositary Receipts will be prepared. Pending the preparation of definitive engraved Depositary Receipts, the Depositary may, upon the written order of the Company, issue temporary Depositary Receipts substantially identical to (and entitling the holders thereof to all the rights pertaining to) the definitive Depositary Receipts but not in definitive form. Definitive Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Company's expense. 15 18 DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute all cash dividends or other cash distributions received in respect of the Preferred Stock to the record holders of Depositary Shares relating to such Preferred Stock in proportion to the number of such Depositary Shares owned by such holders. In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record holders of Depositary Shares entitled thereto, unless the Depositary determines that it is not feasible to make such distribution, in which case the Depositary may, with the approval of the Company, sell such property and distribute the net proceeds from such sale to such holders. REDEMPTION OF DEPOSITARY SHARES. If a series of Preferred Stock represented by Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the redemption, in whole or in part, of such series of Preferred Stock held by the Depositary. The redemption price per Depositary Share will be equal to the applicable fraction of the redemption price per share payable with respect to such series of the Preferred Stock. Whenever the Company redeems shares of Preferred Stock held by the Depositary, the Depositary will redeem as of the same redemption date the number of Depositary Shares representing the shares of Preferred Stock so redeemed. If fewer than all the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro rata as may be determined by the Depositary. VOTING THE PREFERRED STOCK. Upon receipt of notice of any meeting at which the holders of the Preferred Stock are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such Preferred Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the Preferred Stock) will be entitled to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of the Preferred Stock represented by such holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the amount of the Preferred Stock represented by such Depositary Shares in accordance with such instructions, and the Company will agree to take all action that may be deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of the Preferred Stock to the extent it does not receive specific instructions from the holders of Depositary Shares representing such Preferred Stock. AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT. The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time be amended by agreement between the Company and the Depositary. However, any amendment that materially and adversely alters the rights of the holders of Depositary Shares will not be effective unless such amendment has been approved by the holders of at least a majority of the Depositary Shares then outstanding. The Deposit Agreement may be terminated by the Company or the Depositary only if (i) all outstanding Depositary Shares have been redeemed or (ii) there has been a final distribution in respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of Depositary Receipts. CHARGES OF DEPOSITARY. The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company will pay charges of the Depositary in connection with the initial deposit of the Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary Receipts will pay other transfer and other taxes and governmental charges and such other charges, including a fee for the withdrawal of shares of Preferred Stock upon surrender of Depositary Receipts, as are expressly provided in the Deposit Agreement to be for their accounts. WITHDRAWAL OF PREFERRED STOCK. Upon surrender of Depositary Receipts at the principal office of the Depositary, subject to the terms of the Deposit Agreement, the owner of the Depositary Shares evidenced thereby is entitled to delivery of the number of whole shares of Preferred Stock and all money and other property, if any, represented by such Depositary Shares. Partial shares of Preferred Stock will not be issued. If the Depositary Receipts delivered by the holder evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole shares of Preferred Stock to be withdrawn, the Depositary will deliver to such holder at the same time a new Depositary Receipt evidencing such excess number of Depositary Shares. Holders of Preferred Stock thus withdrawn will not thereafter be entitled to 16 19 deposit such shares under the Deposit Agreement or to receive Depositary Receipts evidencing Depositary Shares therefor. MISCELLANEOUS. The Depositary will forward to holders of Depository Receipts all reports and communications from the Company that are delivered to the Depositary and that the Company is required to furnish to the holders of the Preferred Stock. Neither the Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstance beyond its control in performing its obligations under the Deposit Agreement. The obligations of the Company and the Depositary under the Deposit Agreement will be limited to performance in good faith of their duties thereunder and they will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished. They may rely upon written advice of counsel or accountants, or upon information provided by persons presenting Preferred Stock for deposit, holders of Depositary Receipts or other persons believed to be competent and on documents believed to be genuine. RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any time by delivering to the Company notice of its election to do so, and the Company may at any time remove the Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Such successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and, unless otherwise indicated in the Prospectus Supplement, must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. DESCRIPTION OF SECURITIES WARRANTS The Company may issue Securities Warrants for the purchase of Debt Securities, Preferred Stock, Depositary Shares or Common Stock. Securities Warrants may be issued independently or together with Debt Securities, Preferred Stock, Depositary Shares or Common Stock offered by any Prospectus Supplement and may be attached to or separate from any such Offered Securities. Each series of Securities Warrants will be issued under a separate warrant agreement (a "Securities Warrant Agreement") to be entered into between the Company and a bank or trust company, as warrant agent (the "Securities Warrant Agent"), all as set forth in the Prospectus Supplement relating to the particular issue of Securities Warrants. The Securities Warrant Agent will act solely as an agent of the Company in connection with the Securities Warrants and will not assume any obligation or relationship of agency or trust for or with any holders of Securities Warrants or beneficial owners of Securities Warrants. The following summary of certain provisions of the Securities Warrants does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all provisions of the Securities Warrant Agreements. Reference is made to the Prospectus Supplement relating to the particular issue of Securities Warrants offered thereby for the terms of and information relating to such Securities Warrants, including, where applicable: (i) the designation, aggregate principal amount, currencies, denominations, and terms of the series of Debt Securities purchasable upon exercise of Debt Warrants and the price at which such Debt Securities may be purchased upon such exercise; (ii) the number of shares of Common Stock purchasable upon the exercise of Common Stock Warrants and the price at which such number of shares of Common Stock may be purchased upon such exercise; (iii) the number of shares and series of Preferred Stock and/or Depositary Shares purchasable upon the exercise of Preferred Stock Warrants and the price at which such number of shares of such series of Preferred Stock and/or Depositary Shares may be purchased upon such exercise; (iv) the date on which the right to exercise such Securities Warrants shall commence and the date on which such right shall expire (the "Expiration Date"); (v) United States Federal income tax consequences applicable to such Securities Warrants; (vi) the amount of warrants outstanding as of the most recent practicable date; and (vii) any other terms of such Securities Warrants. Common Stock Warrants will be offered and exercisable for U.S. Dollars only. Securities Warrants will be issued in registered form only. 17 20 Each Securities Warrant will entitle the holder thereof to purchase such principal amount of Debt Securities or such number of shares of Preferred Stock, Depositary Shares or Common Stock at such exercise price as shall in each case be set forth in, or calculable from, the Prospectus Supplement relating to the Securities Warrants, which exercise price may be subject to adjustment upon the occurrence of certain events as set forth in such Prospectus Supplement. After the close of business on the Expiration Date (or such later date to which such Expiration Date may be extended by the Company), unexercised Securities Warrants will become void. The place or places where, and the manner in which, Securities Warrants may be exercised shall be specified in the Prospectus Supplement relating to such Securities Warrants. Prior to the exercise of any Securities Warrants to purchase Debt Securities, Preferred Stock, Depositary Shares or Common Stock, holders of such Securities Warrants will not have any of the rights of holders of Debt Securities, Preferred Stock, Depositary Shares or Common Stock, as the case may be, purchasable upon such exercise, including the right to receive payments of principal of, premium, if any, or interest, if any, on the Debt Securities purchasable upon such exercise or to enforce covenants in the applicable Indenture, or to receive payments of dividends, if any, on the Preferred Stock, Depositary Shares or Common Stock purchasable upon such exercise, or to exercise any applicable right to vote. PLAN OF DISTRIBUTION The Company may sell the Securities (i) through underwriters or dealers; (ii) through agents; (iii) directly to one or more institutional purchasers; or (iv) through a combination of any such methods of sale. The Prospectus Supplement with respect to the Securities offered thereby will set forth the terms of the offering of such Securities, including the name or names of any underwriters, dealers or agents, the purchase price of such Securities and the proceeds to the Company from such sale, any underwriting discounts and other items constituting compensation to underwriters, dealers or agents, any initial public offering price, any discounts or concessions allowed or reallowed or paid by underwriters or dealers to other dealers and any securities exchanges on which such Securities may be listed. Only underwriters so named in the Prospectus Supplement are deemed to be underwriters in connection with the Securities offered thereby. If underwriters or dealers are used in the sale, the Securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The Securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms. Unless otherwise set forth in the Prospectus Supplement, the obligations of the underwriters to purchase such Securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all of the Securities offered by the Prospectus Supplement if any are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. The Securities may be sold directly by the Company or through agents designated by the Company from time to time. Any agent involved in the offering and sale of the Securities in respect of which this Prospectus is delivered will be named, and any commissions payable by the Company to such agent (or the method by which such commissions can be determined) will be set forth, in the Prospectus Supplement. Unless otherwise indicated in the Prospectus Supplement any such agent will be acting on a best efforts basis for the period of its appointment. If so indicated in the Prospectus Supplement, the Company will authorize underwriters, dealers or other persons acting as the Company's agents to solicit offers by certain specified institutions to purchase Securities from the Company at the public offering price set forth in the Prospectus Supplement pursuant to contracts providing for payment and delivery on a specified date in the future. Institutional investors to which such offers may be made, when authorized, include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and such other institutions as may be approved by the Company. The obligations of any such purchasers pursuant to such delayed delivery and payment arrangements will not be subject to any conditions except that such purchase shall not at the time of delivery be prohibited under the laws of any jurisdiction to which such purchaser is subject. The Prospectus 18 21 Supplement will set forth the commission payable for solicitation of such contracts. The underwriters and other persons soliciting such contracts will have no responsibility for the validity or performance of any such contracts. Underwriters, dealers and agents may be entitled under agreements entered into with the Company to indemnification by the Company against certain civil liabilities, including liabilities under the Securities Act, or to contribution by the Company with respect to payments they may be required to make in respect thereof. Underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for the Company in the ordinary course of business. Securities other than the Company's Common Stock may or may not be listed on a national securities exchange. No assurances can be given that there will be a market for such Securities. LEGAL MATTERS The legality of the Securities and certain other legal matters in connection with the offering will be passed upon for the Company by Robert W. Olson, Vice President, General Counsel and Secretary of the Company. Certain legal matters will be passed upon for any underwriter or agent by Simpson Thacher & Bartlett (a partnership which includes professional corporations), New York, New York. Robert W. Olson presently holds employee stock options to purchase shares of the Company's Common Stock. EXPERTS The consolidated financial statements of Chiquita Brands International, Inc. for the year ended December 31, 1994 appearing in its Form 8-K dated February 7, 1996 have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. 19 22 APPENDIX GRAPHICS AND IMAGE MATERIAL Front Cover of Prospectus................. The Company's logo is a vertically aligned solid blue oval with a yellow inside border and a design containing the word "Chiquita"(R) in white and a yellow outline sketch of the upper torso of a woman bearing a basket of fruit on her head. 23 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth the estimated expenses to be incurred by the Company in connection with the issuance and distribution of the securities being registered hereby: SEC registration fee...................................................... $144,397 Accounting fees and expenses.............................................. 40,000 Legal fees and expenses................................................... 90,000 Blue Sky fees and expenses................................................ 20,000 Printing and engraving expenses........................................... 150,000 Trustees' fees and expenses............................................... 20,000 Rating agency fees........................................................ 75,000 Listing fees.............................................................. 15,000 Marketing expenses........................................................ 350,000 Miscellaneous............................................................. 45,603 -------- Total........................................................... $950,000 ========
All the above expenses other than the SEC registration fee are estimates. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article VI of the Company's By-Laws provides directors and officers with the right to indemnification and advancement of expenses to the fullest extent not prohibited by the New Jersey Business Corporation Act. Directors and officers of the Company are indemnified generally against expenses and liabilities incurred in connection with any proceedings, including proceedings by or on behalf of the Company, relating to their service to or at the request of the Company. However, no indemnification may be made if a final adjudication establishes that a person's acts or omissions (a) breached the person's duty of loyalty to the Company or its shareholders, (b) were not in good faith or involved a knowing violation of law, or (c) resulted in receipt by the person of an improper personal benefit. Section VIII of the Company's Second Restated Certificate of Incorporation (Restated) also limits the liability of the Company's directors and officers to the Company or its shareholders, to the fullest extent permitted by the New Jersey Business Corporation Act, for monetary damages for breach of any duty, except in the situations set forth in (a) through (c) above. II-1 24 ITEM 16. EXHIBITS. The following Exhibits are filed as part of this Registration Statement:
EXHIBIT NO. - ------- 1 Form of Underwriting Agreement Basic Provisions (with forms of Terms Agreement attached) 4(a) Second Restated Certificate of Incorporation of the Company 4(b) By-Laws of the Company, as amended 4(c) Indenture dated as of February 15, 1994 between the Company and The Fifth Third Bank, as Senior Debt Trustee, relating to the Senior Debt Securities 4(d) Form of Indenture between the Company and Star Bank, N.A., as Subordinated Debt Trustee, relating to the Subordinated Debt Securities 4(e) Form of Deposit Agreement 4(f) Form of Securities Warrant Agreements 5 Opinion of counsel 12 Statement of computation of ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends 23(a) Consent of Independent Auditors 23(b) Consent of Counsel (included in Exhibit 5) 24 Powers of Attorney 25(a) Statement of Eligibility on Form T-1 of The Fifth Third Bank, as Senior Debt Trustee, under the Trust Indenture Act of 1939, as amended, relating to the Senior Indenture 25(b) Statement of Eligibility on Form T-1 of Star Bank, N.A., as Subordinated Debt Trustee, under the Trust Indenture Act of 1939, as amended, relating to the Subordinated Indenture
The Company will furnish to the Commission upon request its long-term debt instruments not listed in this Item. ITEM 17. UNDERTAKINGS. The undersigned Registrant hereby undertakes: *(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs II-2 25 is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. *(b) That for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. *(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. *(j) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act ("Act") in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. - --------------- * Paragraph references correspond to those of Item 512 of Regulation S-K. II-3 26 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Cincinnati, Ohio, as of the 7th day of February, 1996. CHIQUITA BRANDS INTERNATIONAL, INC. By: /s/ CARL H. LINDNER -------------------------------------- Carl H. Lindner Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated as of the 7th day of February, 1996.
SIGNATURE TITLE - -------------------------------------------- -------------------------------------------- /s/ CARL H. LINDNER Chairman of the Board and Chief Executive - -------------------------------------------- Officer Carl H. Lindner /s/ KEITH E. LINDNER Director, President and Chief Operating - -------------------------------------------- Officer Keith E. Lindner /s/ S. CRAIG LINDNER Director - -------------------------------------------- S. Craig Lindner /s/ FRED J. RUNK Director and Vice President - -------------------------------------------- Fred J. Runk /s/ JEAN H. SISCO Director - -------------------------------------------- Jean H. Sisco /s/ WILLIAM W. VERITY Director - -------------------------------------------- William W. Verity /s/ OLIVER W. WADDELL Director - -------------------------------------------- Oliver W. Waddell Director - -------------------------------------------- Ronald F. Walker
II-4 27
SIGNATURE TITLE - -------------------------------------------- -------------------------------------------- /s/ STEVEN G. WARSHAW Executive Vice President, Chief - -------------------------------------------- Administrative Officer and Chief Financial Steven G. Warshaw Officer (Chief Financial Officer) /s/ WILLIAM A. TSACALIS Vice President and Controller (Chief - -------------------------------------------- Accounting Officer) William A. Tsacalis
II-5 28 INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION - ------- ----------------------------------------------------------------------------------- 1 Form of Underwriting Agreement Basic Provisions (with forms of Terms Agreement attached) *4(a) Second Restated Certificate of Incorporation of the Company, filed as Exhibit 3(a) to Quarterly Report on Form 10-Q for the quarter ended June 30, 1994 *4(b) By-Laws of the Company, as amended, filed as Exhibit 3-b to Annual Report on Form 10-K for the year ended December 31, 1992 4(c) Indenture dated as of February 15, 1994, between the Company and The Fifth Third Bank, as Senior Debt Trustee, relating to the Senior Debt Securities *4(d) Form of Indenture between the Company and Star Bank, N.A., as Subordinated Debt Trustee, relating to the Subordinated Debt Securities, filed as Exhibit 4(d) of the Company's Registration Statement on Form S-3, Registration Statement No. 33-51995 4(e) Form of Deposit Agreement, to be filed by amendment 4(f) Form of Securities Warrant Agreements, to be filed by amendment 5 Opinion of counsel 12 Statement of computation of ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends 23(a) Consent of Independent Auditors 23(b) Consent of Counsel (included in Exhibit 5) 24 Powers of Attorney 25(a) Statement of Eligibility on Form T-1 of The Fifth Third Bank, as Senior Debt Trustee, under the Trust Indenture Act of 1939, as amended, relating to the Senior Indenture 25(b) Statement of Eligibility on Form T-1 of Star Bank, N.A., as Subordinated Debt Trustee, under the Trust Indenture Act of 1939, as amended, relating to the Subordinated Indenture
- --------------- * Incorporated by reference. 29 REGISTRATION STATEMENT NO. 33- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION ------------------------ FORM S-3 ------------------------ REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ CHIQUITA BRANDS INTERNATIONAL, INC. EXHIBITS - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- EX-1 2 EXHIBIT 1 1 EXHIBIT 1 DRAFT 2/5/96 CHIQUITA BRANDS INTERNATIONAL, INC. SECURITIES UNDERWRITING AGREEMENT BASIC PROVISIONS JANUARY, 1996 Chiquita Brands International, Inc., a New Jersey corporation (the "Company"), proposes to issue and sell from time to time senior debt securities, subordinated debt securities (collectively, "Debt Securities"), preferred stock, which may be issued in the form of depositary shares, common stock, and securities warrants registered under the registration statement referred to in Paragraph 1(a) ("Underwritten Securities"). If specified in a Terms Agreement (as defined in Paragraph 2), the Company proposes to grant to the underwriters an option to purchase up to that amount of Underwritten Securities specified in such Terms Agreement (the "Option Securities"). The Debt Securities will be issued under indentures (as they may be amended or supplemented from time to time, the "Indentures"), more particularly described in a Terms Agreement, between the Company and the trustees named therein (the "Trustee(s)"), in one or more series, which series may vary as to interest rates, maturities, redemption provisions, conversion or exchange provisions, selling prices and other terms, with all such terms for any particular series of the Debt Securities being determined at the time of sale. The preferred stock will be issued in one or more series, which may be either Non-Voting Cumulative Preferred Stock, par value $1.00 per share ("Non-Voting Preferred Stock"), or Cumulative Preference Stock, without par value ("Preference Stock"), (together "Preferred Stock"), either of which may be issued in the form of depositary shares evidenced by depositary receipts ("Depositary Shares"). Each series of Preferred Stock may vary as to voting rights, dividends, optional and mandatory redemption provisions, liquidation preference and conversion or exchange provisions and other terms, with all such terms for any particular series or issue of the Preferred Stock being determined at the time of issue. Securities warrants ("Securities Warrants") may also be offered from time to time to purchase Debt Securities, Preferred Stock, common stock or Depositary Shares. The Underwritten Securities will be sold pursuant to one or more Terms Agreements, for resale in accordance with terms of offering determined at the time of sale. The Underwritten Securities (together with the Option Securities) involved in any such offering are hereinafter referred to as the "Securities." The firm or firms which agree to purchase all or any portion of the Securities are hereinafter referred to as the "Underwriters" of such Securities, and the representative or representatives of the Underwriters, if any, specified in a Terms Agreement are hereinafter referred to as the "Representatives"; provided, however, that if the Terms Agreement does not specify any representative of the Underwriters, the term "Representatives," as used in this Agreement (other than in Paragraphs 1(b), 7 and 9 and the second sentence of Paragraph 2) shall mean the Underwriters. 1. Representations, Warranties and Agreements of the Company. The Company represents and warrants to and agrees with each Underwriter that: (a) A registration statement on Form S-3 with respect to the Securities (i) has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, (ii) has been filed by the Company with the Commission under the Act and (iii) has been declared effective by the Commission. If any post- effective amendment to such registration statement has been filed with the Commission prior to the execution and delivery of the Terms Agreement, the most recent such amendment has been declared effective by the Commission. Copies of such registration statement (including all documents incorporated by reference in the latest prospectus contained therein) as amended as of the date of the Terms Agreement have been delivered by the Company to the Representatives. 1 2 As used in this Agreement, "Primary Registration Statement" means such registration statement (including documents incorporated by reference therein), as it became effective under the Act, "Rule 462(b) Registration Statement" means a second registration statement, if any, on Form S-3 with respect to the Securities prepared by the Company and filed with the Commission under the Act pursuant to Rule 462(b) of the Rules and Regulations, and "Registration Statements" means both the Primary Registration Statement and any Rule 462(b) Registration Statement, in each case including all exhibits (other than Form T-1) and financial schedules thereto, as amended as of the date of the Terms Agreement; "Basic Prospectus" means the prospectus (including documents incorporated by reference therein) included in the Registration Statement; and "Prospectus" means the Basic Prospectus, together with any prospectus amendment or supplement specifically relating to the Underwritten Securities to be purchased by the Underwriters pursuant to the Terms Agreement, as filed with, or mailed for filing to, the Commission pursuant to Rule 424(b) of the Rules and Regulations ("Rule 424"). As of the date of the Terms Agreement, the Commission has not issued any order preventing or suspending the use of any Prospectus. (b) The Registration Statements and the Prospectus comply, and, at all times when a prospectus is required to be delivered in connection with offers or sales of the Underwritten Securities, the Registration Statements, any amendments thereof, the Prospectus and the Prospectus as amended or supplemented, including any document filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the dates of such Registration Statements or Prospectus, as the case may be, and incorporated by reference in such Registration Statements or Prospectus ("Incorporated Documents"), will comply, as to form in all material respects with the requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), if applicable, and the rules and regulations under such acts; the Indenture, if any, specified in any Terms Agreement including any amendments and supplements thereto, will comply as to form in all material respects with the requirements of the Trust Indenture Act and the rules and regulations of the Commission thereunder; and the Registration Statements and the Prospectus (including any Incorporated Documents) do not contain, and at all times when a prospectus is required to be delivered in connection with offers or sales of Underwritten Securities, will not include, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, provided that the Company makes no representation or warranty as to information contained in or omitted from the Registration Statements or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives, if any, specifically for inclusion therein. The Indenture, if any, described in the Terms Agreement has been qualified under the Trust Indenture Act. (c) The documents which are incorporated by reference in the Registration Statements and the Prospectus have been, and each Incorporated Document will be, prepared by the Company in conformity with the requirements of the Act and the Exchange Act and the rules and regulations thereunder and such documents have been, or in the case of an Incorporated Document will be, timely filed as required thereby. Copies of each of the documents incorporated by reference in the Registration Statements and the Prospectus, together with satisfactory evidence of the filing thereof, have been delivered by the Company to the Representatives. (d) The Company has all necessary corporate power and authority to execute and deliver the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") and perform its obligations under the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") and the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") has been duly authorized, executed and delivered by the Company, constitutes the valid and binding agreement of the Company and is enforceable against the Company in accordance with its terms, subject to the qualification that the enforceability of the Company's obligations thereunder and hereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights, by general equity principles and by public policy restrictions on provisions relating to indemnification. (e) The execution, delivery and performance of the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") and the consummation of the transactions contemplated therein and 2 3 herein and compliance by the Company with the provisions of the Underwritten Securities and the Indenture, if any, described in the Terms Agreement will not conflict with, result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of its Significant Subsidiaries (as defined in Paragraph 13) pursuant to the terms of, or constitute a default (or an event which with the giving of notice or the lapse of time or both will constitute a default) under, any agreement, indenture or instrument, or result in a violation of the corporate charter or by-laws of the Company or any of its Significant Subsidiaries or any law, treaty, order, rule, regulation or determination of any arbitrator, court or governmental agency having jurisdiction over the Company, any of its Significant Subsidiaries or their property. Except as required by the Act, the Trust Indenture Act, if applicable, the Exchange Act, and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency is required for the execution, delivery and performance of the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") and the Indenture, if any, described in the Terms Agreement. (f) Since the respective dates as of which information is given in the Registration Statements and the Prospectus and prior to the Delivery Date (as defined in Paragraph 4 hereof), there has not been, and there will not have been, any material change in the capital stock of the Company, any material increase in the long-term debt of the Company or any of its Significant Subsidiaries or any material adverse change in, or any development which might reasonably be expected to have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole. (g) To the best knowledge of the Company, Ernst & Young, whose reports are included or incorporated by reference in the Registration Statements and the Prospectus, are independent public accountants as required by the Act and the Rules and Regulations. (h) On the Delivery Date (i) the Indenture, if any, described in the Terms Agreement will have been validly authorized, executed and delivered by the Company, will have been duly qualified under the Trust Indenture Act and will constitute the valid and legally binding obligation of the Company, enforceable in accordance with its terms; (ii) the Debt Securities, if any, described in the Terms Agreement will have been validly authorized for issuance, and, upon execution, authentication, delivery and payment therefor as provided in this Agreement and such Indenture, will be validly issued and outstanding, and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of such Indenture; (iii) such Indenture will conform to the descriptions thereof in the Prospectus; (iv) if any Securities to be issued are convertible or exchangeable, the shares of capital stock issuable upon conversion or exchange are duly and validly authorized, have been duly reserved for issuance upon conversion or exchange of the Securities and, when issued upon the conversion or exchange of the Securities, will be duly and validly issued, fully paid and non-assessable; (v) the common stock and preferred stock, if any, described in the Terms Agreement have been duly and validly authorized and when issued will be fully paid and non-assessable; (vi) no further approval or authority of the stockholders or the Board of Directors of the Company will be required for the issuance and sale of the Securities as contemplated herein or the issuance of the shares of capital stock upon conversion or exchange of the Securities; and (vii) the Securities will conform to the description thereof in the Prospectus. (i) The Company and each of its Significant Subsidiaries have been duly organized, are validly existing and in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to do business and in good standing as foreign corporations in each jurisdiction in which their respective ownership of property or lease of property or the conduct of their respective businesses requires such qualification and in which the failure to qualify might reasonably be expected to have, singularly or in the aggregate with all such failures, a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole. Each of the Company and its Significant Subsidiaries has the corporate power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. All of the authorized and outstanding shares of capital stock of the Company are duly authorized, validly issued and outstanding and are fully paid and non-assessable, with no personal liability attaching to the ownership thereof. All outstanding shares of capital stock of the Significant Subsidiaries of the Company are duly authorized, 3 4 validly issued and outstanding, fully paid and non-assessable and, except for director's and employee's qualifying shares and other nominal interests in certain non-U.S. Significant Subsidiaries, are owned, directly by the Company or a wholly-owned subsidiary of the Company (except that 356,400 common shares of the 7,302,000 common shares outstanding of United Brands Japan, Ltd. are held by other shareholders) free and clear of any lien, claim, encumbrance, restriction upon voting or transfer, preemptive rights or any other claim of any third party. (j) Neither the Company nor any of its Significant Subsidiaries (i) is in default, and no event has occurred which, with notice or lapse of time or both, may constitute such a default, under any lease, license, indenture, mortgage, deed of trust, note, bank loan or other evidence of indebtedness or any other agreement, understanding or instrument to which the Company or any such Significant Subsidiary is a party or by which the Company or any such Significant Subsidiary or any property of the Company or any such Significant Subsidiary may be bound or affected, the effect of which default might reasonably be expected to have, singularly or in the aggregate with all such defaults, a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole, or (ii) is in violation of the Company's or any such Significant Subsidiary's corporate charter and by-laws or any law, ordinance, governmental rule or regulation or court decree to which it may be subject or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, which violation or failure might reasonably be expected to have, singularly or in the aggregate with all such violations and failures, a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole. (k) The Company and each of its Significant Subsidiaries owns, or has valid rights to use, all items of real and personal property which are material to the business of the Company and its subsidiaries taken as a whole, free and clear of all liens, encumbrances and claims which might reasonably be expected to materially interfere with the conduct of the business of the Company and its subsidiaries taken as a whole. The Company and each of its Significant Subsidiaries (i) carries or, in the case of a Significant Subsidiary is covered by, insurance in such amounts and covering such risks as is generally maintained in the same general area by companies of established repute engaged in the same or similar business, and (ii) owns or possesses adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, permits and certificates from governmental authorities necessary for the conduct of its business and has no reason to believe that the conduct of its business will conflict with, and has not received any notice of any claim of conflict with, the rights of others in respect thereof which conflict might reasonably be expected to have, singularly or in the aggregate with all such conflicts, a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole. (l) Except as disclosed in the Registration Statements and the Prospectus, there is no litigation or proceeding pending before or by any court or governmental agency, authority or body, or any arbitrator or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries which (i) would affect the subject matter of the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") or the transactions contemplated by the Prospectus or (ii) might be expected to have, singularly or in the aggregate with all such litigation and proceedings, a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole. (m) The financial statements (including the related notes and supporting schedules) filed as part of or incorporated by reference in the Registration Statements or included or incorporated by reference in the Prospectus present fairly in accordance with generally accepted accounting principles the consolidated financial condition and results of operations of the Company, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. 4 5 (n) No relationship, direct or indirect, exists between or among the Company or any of its Significant Subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or of any of its Significant Subsidiaries, on the other hand, which is required by the Act or by the Rules and Regulations to be described in the Registration Statements and the Prospectus which is not so described or is not adequately described. (o) Except as disclosed in the Registration Statements and the Prospectus, no labor disturbance by the employees of the Company or any of its Significant Subsidiaries exists or, to the knowledge of the Company, is threatened which might reasonably be expected to have, singularly or in the aggregate with all such disturbances, a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole. (p) Except as described in the Registration Statements and Prospectus, the Company and each of its Significant Subsidiaries has fulfilled its obligations, if any, under the minimum funding standards of the United States Retirement Income Security Act of 1974 ("ERISA") and the regulations and published interpretations thereunder with respect to each "plan" (as defined in ERISA and such regulations and published interpretations) of the Company or any of its Significant Subsidiaries and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and published interpretations, and has not incurred any liability to the Pension Benefit Guaranty Corporation or to any such plan under Title IV of ERISA. (q) Except as described in the Registration Statements and Prospectus, there has been no storage, disposal, generation, manufacture, refinement, transportation, production or treatment of toxic wastes, solid wastes, hazardous wastes or hazardous substances by the Company or any of its Significant Subsidiaries (or, to the best knowledge of the Company, any of their predecessors in interest) at or upon any of the property owned or leased by the Company or its Significant Subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action which, singularly or in the aggregate with all such violations and remedial actions, might reasonably be expected not to have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole. Except as described in the Registration Statements and Prospectus, there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property, of any toxic wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of its Significant Subsidiaries or with respect to which the Company or any of its Significant Subsidiaries have knowledge. The terms "hazardous wastes" and "hazardous substances" shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection. 2. Purchases and Offering of Securities. The obligation of the Underwriters to purchase, and the Company to sell, any Underwritten Securities will be evidenced by an exchange of a telegram, telex or other written communication (the "Terms Agreement") delivered at the time the Company determines to sell the Underwritten Securities. Each Terms Agreement will be substantially in the form of Annex II(A) or (B) attached hereto and will incorporate by reference the provisions of this Agreement, except as otherwise provided therein, and will specify the firm or firms which will be Underwriters, the names of any Representatives, the amount to be purchased by each Underwriter, the purchase price to be paid by the Underwriters and certain terms of the Securities and whether any of the Securities may be sold to institutional investors pursuant to Delayed Delivery Contracts (as defined below). The Terms Agreement specifies any details of the terms of the offering which should be reflected in a post- effective amendment to the Registration Statement or the supplement to the Prospectus relating to the offering of the Underwritten Securities. The obligations of the Underwriters to purchase the Underwritten Securities will be several and not joint. It is understood that the Underwriters propose to offer the Securities for sale as set forth in the Prospectus. If specified in a Terms Agreement, on the basis of the representations, warranties and covenants herein contained, and subject to the terms and conditions herein set forth, the Company grants an option to the several Underwriters 5 6 to purchase, severally and not jointly, up to that amount of the Option Securities, as shall be specified in the Terms Agreement, from the Company at the same price as the Underwriters shall pay for the Underwritten Securities. Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters and may be exercised in whole or in part at any time (but not more than once) on or before the thirtieth day after the date of the Terms Agreement upon written or telegraphic notice by the Representatives to the Company setting forth (i) the amount of the Option Securities as to which the several Underwriters are exercising the option and (ii) the date, time and place of delivery of the Option Securities. The amount of Option Securities to be purchased by each Underwriter shall be the same percentage of the total amount of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, as adjusted by the Representatives in such manner as they deem advisable to avoid fractional shares/units. If the Terms Agreement provides for sales of Securities pursuant to delayed delivery contracts, the Company authorizes the Underwriters to solicit offers to purchase Securities pursuant to delayed delivery contracts substantially in the form of Annex I attached hereto ("Delayed Delivery Contract") with such changes therein as the Company may authorize or approve. Delayed Delivery Contracts are only to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. On the Delivery Date the Company will pay, as compensation, to the Representatives for the accounts of the Underwriters, the fee set forth in such Terms Agreement in respect of the amount of Securities to be sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery Contracts, the Contract Securities will be deducted from the Securities to be purchased by the several Underwriters and the aggregate amount of Securities to be purchased by each Underwriter will be reduced pro rata in proportion to the amount of Securities set forth opposite each Underwriter's name in such Terms Agreement, except to the extent that the Representatives determine that such reduction shall be otherwise than pro rata and so advise the Company. The Company will advise the Representatives not later than the business day prior to the Delivery Date of the amount of Contract Securities. 3. Conditions of Company's Obligations; Defaulting Underwriters. The Company shall not be obligated to deliver any Underwritten Securities except upon payment for all Underwritten Securities to be purchased pursuant to this Agreement as hereinafter provided. If any Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters shall be obligated to purchase the Underwritten Securities which the defaulting Underwriter agreed but failed to purchase in the respective proportions which the amount of Underwritten Securities set forth in the Terms Agreement to be purchased by each remaining non-defaulting Underwriter bears to the aggregate amount of Underwritten Securities set forth in such Terms Agreement for all the remaining non-defaulting Underwriters; provided, however, that the remaining non-defaulting Underwriters shall not be obligated to purchase any Underwritten Securities if the aggregate amount of Underwritten Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds 9.09% of the total amount of Underwritten Securities, and any remaining non-defaulting Underwriter shall not be obligated to purchase more than 110% of the amount of Underwritten Securities set forth in the Terms Agreement to be purchased by it. If the foregoing maximums are exceeded, the remaining non- defaulting Underwriters, or those other underwriters satisfactory to the Representatives who so agree, shall have the right, but shall not be obligated, to purchase (in such proportions as may be agreed upon among them) all the Underwritten Securities. If the foregoing maximums are exceeded and the remaining Underwriters or other underwriters satisfactory to the Representatives do not elect to purchase the Underwritten Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company, except that the Company will continue to be liable for the payment of expenses to any non-defaulting Underwriter as set forth in Paragraph 6. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company for damages caused by such Underwriter's default. If other underwriters are obligated or agree to purchase the Underwritten Securities of a defaulting Underwriter, either the Representatives or the Company may postpone the Delivery Date for up to seven full business days in order to effect any changes that, in the opinion of counsel for the Company or counsel for the Underwriters, may be necessary in the Registration Statement, the Prospectus or any other document or arrangement. 6 7 4. Delivery of and Payment for the Underwritten Securities. Delivery of and payment for the Underwritten Securities shall be made at the time and place specified in the Terms Agreement, on the third business day following the date of the Terms Agreement or at such other location, time and date as shall be determined by agreement between the Representatives and the Company. This date and time are sometimes referred to as the "Delivery Date". On the Delivery Date, the Company shall deliver the Underwritten Securities to the Representatives for the account of each Underwriter against payment to or upon the order of the Company of the purchase price for the Underwritten Securities by certified or official bank checks payable in New York Clearing House (next day) funds. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. The Securities shall be prepared in such form, names and denominations as the Representatives shall request in writing not less than three full business days prior to the Delivery Date. For the purpose of expediting the checking and packaging of the Underwritten Securities, the Company shall make the Underwritten Securities available, or cause such Underwritten Securities to be available, for inspection by the Representatives in New York City, New York not later than 2:00 P.M., New York City time, on the business day prior to the Delivery Date. 5. Further Agreements of the Company. The Company agrees: (a) To furnish promptly to the Representatives and to counsel for the Underwriters a signed copy of each of the Registration Statements as originally filed, and each amendment or supplement thereto filed, with the Commission, including all consents and exhibits filed therewith; (b) To deliver promptly to the Representatives and to each Underwriter such number of conformed copies of the Registration Statements as originally filed and each amendment thereto (excluding exhibits other than this "Underwriting Agreement Basic Provisions", the Indentures and the computation of the ratio of earnings to fixed charges and the ratio of earnings to combined fixed charges and preferred stock dividends) and the Prospectus and any amended or supplemented Prospectus as the Representatives may reasonably request during the period referred to in clause (c) of this Paragraph 5; (c) To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives and to file timely such Rule 462(b) Registration Statement with the Commission; to file timely with the Commission during such period following the date of each Terms Agreement as a prospectus is required to be delivered in connection with offers or sales of Underwritten Securities any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Act or requested by the Commission and approved by the Representatives; (d) Prior to filing with the Commission during the period referred to in clause (c) of this Paragraph 5 (i) any amendment or supplement to either Registration Statement or (ii) the Prospectus and any amendment or supplement thereto, or (iii) any document incorporated by reference in any of the foregoing, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the lead Representative to the filing, which consent shall not be unreasonably withheld; (e) To advise the Representatives promptly (i) when any post-effective amendment to either Registration Statement relating to or covering the Underwritten Securities becomes effective, (ii) of any request or proposed request by the Commission for an amendment or supplement to either Registration Statement (to the extent that the amendment or supplement relates to or covers the Underwritten Securities) or to the Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of either Registration Statement or any order directed to the Prospectus or the initiation or threat of any stop order proceeding, (iv) of receipt by the Company of any notification with respect to the suspension of the qualification (or exemption from qualification) of the Underwritten Securities for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose, and (v) of the happening of any event prior to the termination of any offering of Underwritten Securities which makes untrue any statement of a material fact made in the Registration Statements or the 7 8 Prospectus, or which requires the making of a change in the Registration Statements or the Prospectus in order to make any material statement therein not misleading or which requires the filing of any document under the Exchange Act; (f) If, during the period referred to in clause (c) of this Paragraph 5, the Commission shall issue a stop order or any order preventing or suspending the effectiveness of either Registration Statement, to make every reasonable effort to obtain the lifting of that order at the earliest possible time; (g) As soon as practicable, but not later than 16 months after the date of each Terms Agreement, to make generally available to its security holders and to deliver to the Representatives an earning statement of the Company and its subsidiaries, covering a period of at least 12 months beginning after the later of (i) the effective date of the Primary Registration Statement, (ii) the effective date of the most recent post-effective amendment to either Registration Statement to become effective prior to the date of such Terms Agreement or (iii) the date of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act; (h) To endeavor to qualify the Underwritten Securities for offer and sale under the securities laws of such jurisdictions as the Representatives may reasonably request, except for such jurisdictions where the qualification of the Underwritten Securities would require the Company to qualify to do business as a foreign corporation or file a general consent to service of process; (i) If the Underwritten Securities are to be listed on a securities exchange, to use its best efforts to complete the listing of the Underwritten Securities to be sold by the Company on such exchange; (j) Subject to Paragraph 5(d) hereof, until the termination of any offering of Underwritten Securities, to file in a timely manner all documents and any amendments of previously filed documents required to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act; (k) During the period of three years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K and definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request; (l) To apply the net proceeds of the sale of the Underwritten Securities as set forth in the Prospectus; and (m) To not (i) in the event of an offering of common stock or convertible preferred stock, offer, sell, contract to sell or otherwise dispose of any shares of common stock or any securities convertible into or exchangeable or exercisable for or any rights to purchase or acquire common stock for that period specified in the Terms Agreement, other than shares of common stock or options to purchase common stock granted under the Company's employee benefit plans; and (ii) for a period beginning at the time of execution of the Terms Agreement and ending on the Delivery Date, in the event of an offering of Debt Securities, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company with maturities longer than one year, other than (A) the Debt Securities to the Underwriters or the Contract Securities; (B) borrowings in the ordinary course of business; and (C) other borrowings in an aggregate principal amount not to exceed $10 million, in either case without the prior consent of the Representatives. 8 9 6. Expenses. The Company agrees to pay the costs incident to the authorization, issuance, sale and delivery of the Underwritten Securities and any taxes payable in that connection; the costs incident to the preparation, printing and filing under the Act of the Registration Statements and any amendments, supplements and exhibits thereto, and the Prospectus and any amendment or supplement to the Prospectus; the costs of distributing the Registration Statements as originally filed and each amendment and any post-effective amendments thereof (including exhibits), the Prospectus and any amendment or supplement to the Prospectus as provided in this Agreement; the costs of printing this Agreement and the Indenture; the costs of filings with the National Association of Securities Dealers, Inc.; fees paid to rating agencies in connection with the rating of the Underwritten Securities; the costs incident to the listing of the Underwritten Securities on any securities exchange; the fees and expenses of qualifying the Underwritten Securities under the securities laws of the several jurisdictions as provided in this Paragraph and of preparing and printing a Blue Sky Memorandum, and a memorandum concerning the legality of the Underwritten Securities as an investment (including reasonable fees and expenses of counsel to the Underwriters in connection therewith); the cost of preparing the Underwritten Securities; the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with the Indenture and the Underwritten Securities; any transfer agent's fees; and all other costs and expenses incident to the performance of the obligations of the Company under this Agreement; provided that except as provided in this Paragraph and in Paragraphs 3 and 10, the Underwriters shall pay all of their own costs and expenses, including the fees and expenses of their counsel, any transfer taxes on the Underwritten Securities which they may sell and the expenses of advertising any offering of the Underwritten Securities made by the Underwriters; provided, however, that the Company shall have no obligation to pay the expenses of a defaulting Underwriter, as set forth in Paragraph 3. 7. Indemnification and Contribution. (a) The Company shall indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act, from and against any loss, claim, damage or liability, joint or several, and any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Underwritten Securities), to which that Underwriter or controlling person may become subject, under the Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any blue sky application, the Registration Statements, the Prospectus, any Incorporated Document or the Registration Statements or the Prospectus, in each case as amended or supplemented, or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and shall reimburse each Underwriter and each such controlling person for any legal and other out of pocket expenses reasonably incurred by that Underwriter or controlling person in investigating or defending or preparing to defend against or appearing as a third party witness in connection with any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any blue sky application, the Registration Statements, the Prospectus or any amendment thereof or supplement thereto, made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives, if any, specifically for inclusion therein; and provided further that as to any Prospectus this indemnity agreement shall not inure to the benefit of any Representative, Underwriter or any person controlling an Underwriter on account of any loss, claim, damage, liability or action arising from the sale of Underwritten Securities to any person by that Underwriter if that Underwriter failed to send or give a copy of the Prospectus (or the Prospectus as amended or supplemented) to such person within the time required by the Act, and the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such Prospectus was remedied or corrected in such Prospectus, unless such failure resulted from non-compliance by the Company with Paragraph 5(b) hereof. For purposes of the second proviso to the immediately preceding sentence, the term Prospectus shall not be deemed to include the documents incorporated therein by reference, and no Underwriter shall be obligated to send or give any supplement or amendment to any document incorporated by reference in any Prospectus to any person other than a person to whom such Underwriter had delivered such incorporated document or documents in response to a written request therefor. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Underwriter or any such controlling person of that Underwriter. (b) Each Underwriter severally, and not jointly, shall indemnify and hold harmless the Company, each of its directors, each of its officers who signed either Registration Statement, and each person, if any, who controls the 9 10 Company within the meaning of the Act, from and against any loss, claim, damage, expense or liability, joint or several, and any action in respect thereof, to which the Company or any such director or officer or controlling person may become subject, under the Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon any untrue statement or alleged untrue statement of a material fact contained in any blue sky application, the Registration Statements, the Prospectus or the Registration Statements or Prospectus, in each case as amended or supplemented, or arises out of, or is based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of that Underwriter through the Representatives, if any, specifically for inclusion therein, and shall reimburse the Company or any such director or officer or controlling person for any legal and other expenses reasonably incurred by the Company or any such director or officer or controlling person in investigating or defending or preparing to defend against any such loss, claim, damage, liability or action. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company or any such director, officer or controlling person. (c) Promptly after receipt by an indemnified party under this Paragraph 7 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Paragraph 7, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Paragraph 7. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Paragraph 7 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof; provided, however, if the defendants in any such action include both an indemnified party and an indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties under this Paragraph 7 shall have the right to employ not more than one counsel to represent them and, in that event, the reasonable fees and expenses of not more than one such separate counsel shall be paid by the indemnifying party. No indemnifying party shall be liable for any settlement of any claim or action effected without its written consent. (d) If the indemnification provided for in this Paragraph 7 shall be for any reason unavailable or insufficient to hold the indemnified party harmless, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Underwritten Securities, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other hand with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Underwritten Securities (before deducting expenses) received by the Company bear to the total underwriting discounts, commissions and fees received by the Underwriters with respect to such offering, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Paragraph 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to 10 11 herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Paragraph 7(d) shall be deemed to include, for purposes of this Paragraph 7(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Paragraph 7(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Underwritten Securities underwritten by it and distributed to the public was offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute as provided in this Paragraph 7(d) are several in proportion to their respective underwriting obligations (or proceeds) and not joint. (e) The Underwriters severally confirm that the statements with respect to the offering to the public of the Underwritten Securities set forth on the cover page of, and under the captions "Plan of Distribution" and "Underwriting" in, the Registration Statements and the Prospectus are correct and were furnished in writing to the Company by or on behalf of the Underwriters severally for inclusion in the Registration Statements and the Prospectus. (f) The agreements contained in this Paragraph 7 and the representations, warranties and agreements of the Company in Paragraphs 1 and 5 shall survive the delivery of the Underwritten Securities and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party. 8. Conditions of Underwriters' Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy on the date of the Terms Agreement and the Delivery Date, of the representations and warranties of the Company contained herein, to performance by the Company of its obligations hereunder and to each of the following additional terms and conditions: (a) The Prospectus shall have been timely filed with the Commission in accordance with Paragraph 5(c) of this Agreement; at or before the Delivery Date, no stop order suspending the effectiveness of either Registration Statement shall have been issued, and prior to that time no stop order proceeding shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statements or the Prospectus or otherwise shall have been complied with or otherwise satisfied; and the Company shall not have filed with the Commission the Prospectus or any amendment or supplement to either Registration Statement or the Prospectus or any Incorporated Document without the consent of the lead Representative, provided that after the Delivery Date no such consent shall be unreasonably withheld. (b) No Underwriter shall have discovered and disclosed to the Company, on or prior to the Delivery Date, that the Registration Statements or the Prospectus or any amendment or supplement thereto or any Incorporated Document contains an untrue statement of a fact which, in the opinion of Simpson Thacher & Bartlett, counsel to the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Underwritten Securities and the Indenture and the forms of Registration Statements and the Prospectus, other than financial statements and other financial data, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all respects to Simpson Thacher & Bartlett, counsel to the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) The Company shall have furnished to the Representatives the opinion of Robert W. Olson, Vice President, General Counsel and Secretary of the Company, addressed to the Underwriters and dated the Delivery Date and, if Option Securities are purchased, at any date after the Delivery Date as specified in a Terms Agreement, an additional 11 12 opinion from such counsel, addressed to the Underwriters and dated such later date, confirming that the statements expressed as of the Delivery Date in such opinion remain valid as of such later date, to the effect that: (i) The Company has been duly organized and each of its Designated Subsidiaries (as defined in Paragraph 13) is duly incorporated; the Company and its Designated Subsidiaries are validly existing and in good standing under the laws of their respective jurisdictions of incorporation and have all requisite corporate power and authority to own and operate their properties and to conduct the businesses in which they are engaged; (ii) All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable, with no personal liability attaching to the ownership thereof; all the outstanding shares of capital stock of each of the Company's Designated Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable and, except for director's or employee's qualifying shares and other nominal interests in certain non-U.S. Designated Subsidiaries, are owned, directly by the Company or a wholly-owned subsidiary of the Company (except that 356,400 common shares of the 7,302,000 common shares outstanding of United Brands Japan, Ltd. are held by other shareholders) free and clear of any lien, claim, encumbrance, restriction upon voting or transfer, preemptive rights or any other claim of any third party known to such counsel; (iii) The Indenture, if any, described in the Terms Agreement has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act; the Debt Securities, if any, described in the Terms Agreement are in a form contemplated by such Indenture and have been duly authorized by all necessary corporate action; such Debt Securities other than any Contract Securities have been duly executed, authenticated, issued and delivered; such Indenture and such Debt Securities other than any Contract Securities constitute, and any Contract Securities, when executed, authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts, will constitute, valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights and by general equity principles; (iv) If any Securities to be issued are convertible or exchangeable, the shares of capital stock into which the Securities will be initially convertible or exchangeable are duly and validly authorized; have been duly reserved for issuance upon conversion or exchange of the Securities; and when issued upon the conversion or exchange of the Securities, will be duly and validly issued, fully paid and non-assessable; (v) The common stock and preferred stock, if any, described in the Terms Agreement have been duly and validly authorized and issued and are fully paid and non-assessable; (vi) The Securities other than any Contract Securities conform and the Indenture, if any, described in the Terms Agreement and any Contract Securities, when so issued and delivered and sold, will conform, in all material respects to the description thereof contained in the Prospectus; (vii) The Registration Statements have become effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made within the time period required by Rule 424(b); and no stop order suspending its effectiveness has been issued by the Commission and, to the best of such counsel's knowledge, no proceeding for that purpose is pending or threatened by the Commission; (viii) To the best of such counsel's knowledge, no order directed to any document incorporated by reference in the Prospectus and the Registration Statements has been issued by the Commission and to the knowledge of such counsel, no challenge by the Commission has been made to the accuracy or adequacy of any such document; 12 13 (ix) The Registration Statements and the Prospectus and any amendment or supplement thereto, as of its date, comply as to form in all material respects with the requirements of the Act, the Rules and Regulations thereunder and the Trust Indenture Act, if applicable, and the documents incorporated by reference in the Registration Statements and the Prospectus comply as to form in all material respects with the applicable requirements of the Act or the Exchange Act and the rules and regulations thereunder; (x) The Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; (xi) To the best of such counsel's knowledge, the Company is not in violation of its corporate charter or by-laws or in default under any material agreement, indenture or instrument, except to the extent such violations or defaults could not reasonably be expected to have, singularly or in the aggregate, a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole; (xii) The Company has all necessary corporate power to execute and deliver the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") and the Indenture, if any, described in the Terms Agreement and to perform its obligations under the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions") and under such Indenture; (xiii) The execution, delivery and performance of the Terms Agreement (including the provisions of this "Underwriting Agreement Basic Provisions"), and the issuance and sale of the Underwritten Securities and the compliance with the terms and provisions of the Underwritten Securities and the Indenture, if any, described in the Terms Agreement will not conflict with, or result in the creation or imposition of any material lien, claim, encumbrance, restriction upon any of the assets of the Company or any of its Designated Subsidiaries pursuant to the terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and to which the Company or any of its Designated Subsidiaries is a party or bound, or result in a violation of the corporate charter or by-laws of the Company or any of its Designated Subsidiaries or any law, treaty, order, rule or regulation or any determination known to such counsel of any arbitrator, court or governmental agency having jurisdiction over the Company, any of the Company's Designated Subsidiaries or any of their properties. Except as required by the Act, the Exchange Act, the Trust Indenture Act, if applicable, and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency in the United States is required for the execution, delivery and performance of this Agreement by the Company; (xiv) There are no legal or governmental proceedings to which the Company or any of its Designated Subsidiaries is a party, pending or, to the best of such counsel's knowledge, threatened against the Company or any of its Designated Subsidiaries which (A) might reasonably be expected to have a material adverse effect on the subject matter of the Terms Agreement or the transactions contemplated by the Prospectus or (B) other than as described in the Prospectus, might reasonably be expected to have, singularly or in the aggregate with all such litigation and proceedings, a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole; and (xv) No facts have come to such counsel's attention that cause him to believe that (A) the Registration Statements as of their respective effective dates contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Prospectus as of the Delivery Date contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (such counsel need express no opinion or belief as to the financial statements or other financial or statistical data included in or incorporated by reference in the Registration Statements or the Prospectus). 13 14 (e) The Company shall have furnished to the Representatives on the Delivery Date a certificate dated the Delivery Date, and on any later date on which Option Securities are purchased if specified in a Terms Agreement, a certificate dated such date, signed on behalf of the Company by either the Company's Chief Executive Officer, President or Executive Vice President and by the Company's Chief Financial Officer or Controller stating that: (i) The representations, warranties and agreements of the Company in Paragraph 1 hereof are true and correct as of such date; the Company has complied with all its agreements contained herein; and the conditions on its part to be fulfilled prior to such date set forth herein have been fulfilled; and (ii) No stop order suspending the effectiveness of either Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and (iii) They have carefully examined the Registration Statements and the Prospectus and, in their judgment, (A) neither the Registration Statements, as of their respective effective dates, nor the Prospectus, as of the date on which it was filed with the Commission pursuant to Rule 424 of the Rules and Regulations, included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since the effective date, no event has occurred which should have been set forth in the Prospectus or a supplement thereto or amendment thereof which has not been set forth in such a supplement or amendment and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed. (f) The Company shall have furnished to the Representatives on the Delivery Date and any later date on which Option Securities are purchased if specified in a Terms Agreement, a letter of Ernst & Young, addressed to the Underwriters and dated such date, confirming that they are independent public accountants with respect to the Company within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by its letter delivered to the Representatives concurrently with the execution of the Terms Agreement and confirming in all material respects the conclusions and findings set forth in such prior letter. (g) The NASD, upon review of the terms of the public offering of the Underwritten Securities, if any, shall not have objected to the participation by any of the Underwriters in such offering or asserted any violations of the By-Laws of the NASD. (j) In the event of an offering of common stock or convertible preferred stock, the Company shall have furnished to the Representatives a letter agreement of American Financial Group, Inc. ("AFG"), addressed to the Underwriters and dated on or before the date of the Terms Agreement relating to such offering, providing in substance that for that period specified in the Terms Agreement (i) AFG will not, and will cause its direct and indirect subsidiaries (other than the Company and subsidiaries of the Company) not to, sell, offer or contract to sell, sell or grant options, rights or warrants with respect to or otherwise dispose of, directly or indirectly, except to direct or indirect subsidiaries of AFG, any common stock or preferred stock of the Company (or securities convertible into or exchangeable for common stock or preferred stock of the Company) except with the prior written consent of Lehman Brothers Inc. and (ii) AFG has not taken, and will not take, directly or indirectly, and will cause its direct and indirect subsidiaries not to take, directly or indirectly, any action that might reasonably be expected to cause or result in stabilization of the price of the common stock or preferred stock of the Company or manipulation of the price of the common stock or preferred stock of the Company. All opinions, letters, certificates and documents mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof if they are exactly in the form set forth above and, if not, or if no 14 15 particular form is set forth above, only if they are in form and substance reasonably satisfactory to Simpson Thacher & Bartlett, counsel to the Underwriters. 9. Termination. The obligations of the Underwriters hereunder may be terminated by the Representatives, if any, on behalf of the Underwriters (or, if there are no Representatives, by a majority in interest of the Underwriters), in their or its absolute discretion, by notice given to and received by the Company prior to delivery of and payment for the Underwritten Securities, if on or after the date of this Agreement and prior to that time there shall have occurred any of the following: (a) any change, or any development involving a prospective change, in or affecting primarily the business, properties, condition (financial or other), results of operations or prospects of the Company and its subsidiaries taken as a whole that materially impairs the investment quality of the Underwritten Securities, or (b) a general suspension of or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market or minimum prices shall have been established on one or more of such exchanges or such market, or (c) a general banking moratorium declared by United States federal or New York State authorities, or (d) any downgrading accorded the Company's debt securities or preferred securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating) or (e)(i) a material adverse change in national or international political, financial or economic conditions or national or international equity markets or currency exchange rates or controls, if the existing effect of any such event, in the reasonable judgment of the Representatives, makes it inadvisable to proceed with the payment for and delivery of the Underwritten Securities or (ii) the engagement by the United States in active military conflict, or an outbreak or significant increase in hostilities which would likely result in the declaration of a national emergency or war, if the existing effect of any such event, in the reasonable judgment of the Representatives, makes it inadvisable to proceed with the payment for and delivery of the Underwritten Securities. 10. Expenses upon Termination. If the Company shall fail for any reason to tender the Underwritten Securities on the Delivery Date to the Underwriters under this Agreement, or if the Underwriters shall decline to purchase the Underwritten Securities for any reason permitted under this Agreement, the Company shall reimburse the Underwriters for the reasonable fees and expenses of their counsel and for such other out-of-pocket expenses as shall have been incurred by them in connection with this Agreement and the proposed purchase of the Underwritten Securities and upon demand the Company shall pay the full amount thereof to the Representatives. If this Agreement is terminated pursuant to Paragraph 3 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account of those expenses. 11. Notices. The Company shall be entitled to act and rely upon any request, consent, notice or agreement given or made by the Representatives. Any notice to the Underwriters shall be sufficient if given in writing or by telegraph addressed to the Underwriters at the address set forth for that purpose in the Terms Agreement, and any notice to the Company shall be sufficient if, given in writing or by telegraph addressed to Chiquita Brands International, Inc., 250 East Fifth Street, Cincinnati, Ohio 45202, Attention: Robert W. Olson. 12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Act and (b) the indemnity agreement of the Underwriters contained in Paragraph 7 of this Agreement shall be deemed to be for the benefit of directors of the Company, officers of the Company who have signed either Registration Statement and any person controlling the Company. Nothing in this Agreement is intended or shall be construed to give any person other than the persons mentioned in the preceding two sentences any legal or equitable rights, remedy or claim under or in respect of this Agreement or any provision contained herein. 15 16 13. Certain Definitions. For purposes of this Agreement, (a) "business day" means any day on which the New York Stock Exchange is open for trading, (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations, (c) "Significant Subsidiary" shall mean each of the entities set forth on Schedule 1 attached hereto and made a part hereof, as such list of entities may be amended pursuant to a Terms Agreement, and (d) "Designated Subsidiary" shall mean each of the entities set forth on Schedule 2, attached hereto and made a part hereof, as such list of entities may be amended pursuant to a Terms Agreement. 14. Governing Law; Counterparts. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. The Terms Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall together constitute a single instrument. 15. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. 16 17
SCHEDULE 1 SIGNIFICANT SUBSIDIARIES SUBSIDIARY JURISDICTION OF INCORPORATION - ---------- ----------------------------- Caribbean Enterprises, Inc. Delaware Chiquita Brands, Inc. Delaware CRH Shipping, Ltd. Bermuda Great White Fleet, Ltd. Bermuda Chiquita Brands Company, Delaware North America Chiquita Europe, B.V. Netherlands Chiquita Banana Company, B.V. Netherlands Chiquita International Delaware Trading Company Chiquita International Bermuda Limited Chiquita Tropical Products Company Delaware Chiriqui Land Company Delaware Maritrop Trading Corporation Delaware Tela Railroad Company Delaware Polymer United, Inc. Delaware Progressive Produce Corporation Ohio United Brands Japan, Ltd. Japan
17 18
SCHEDULE 2 DESIGNATED SUBSIDIARIES SUBSIDIARY JURISDICTION OF INCORPORATION - ---------- ----------------------------- Caribbean Enterprises, Inc. Delaware Chiquita Brands, Inc. Delaware Chiquita Brands Company, Delaware North America Chiquita Europe, B.V. Netherlands Chiquita Banana Company B.V. Netherlands Chiquita International Delaware Trading Company Chiquita International Bermuda Limited Chiriqui Land Company Delaware Maritrop Trading Corporation Delaware Tela Railroad Company Delaware Polymer United, Inc. Delaware United Brands Japan, Ltd. Japan
18 19 ANNEX I (Three copies of this Delayed Delivery Contract should be signed and returned to the address shown below so as to arrive not later than 9:00 A.M., New York time, on ____________ , 1996.) DELAYED DELIVERY CONTRACT [Insert date of initial public offering] CHIQUITA BRANDS INTERNATIONAL, INC. c/o [Name and address of Underwriter[s]] Gentlemen: The undersigned hereby agrees to purchase from CHIQUITA BRANDS INTERNATIONAL, INC. a New Jersey corporation ("Company"), and the Company agrees to sell to the undersigned, [If one delayed closing, insert---as of the date hereof, for delivery on ___________, 1996 ("Delivery Date"),] [$] --------- principal amount of the Company's [Insert title of securities] ("Securities"), offered by the Company's Prospectus dated ___________ , 19__ and a Prospectus Supplement dated ____________ , 19__ , relating thereto, receipt of copies of which is hereby acknowledged, at __ % of the principal amount thereof plus accrued interest from ___________ , 19__, if any, and on the further terms and conditions set forth in this Delayed Delivery Contract ("Contract"). [If two or more delayed closings, insert the following: The undersigned will purchase from the Company as of the date hereof, for delivery on the dates set forth below, Securities in the principal amounts set forth below: Delivery Date Principal Amount - --------------- [$]--------------- - --------------- [$] -------------- - --------------- */ Insert date which is third full business day prior to Delivery Date under the Terms Agreement. 19 20 Each of such delivery dates is hereinafter referred to as a Delivery Date.] Payment for the Securities that the undersigned has agreed to purchase for delivery on---the--each--Delivery Date shall be made to the Company or its order by certified or official bank check in New York Clearing House (next day) funds at the office of ______________________________ at ___ .M. on-- the--such--Delivery Date upon delivery to the undersigned of the Securities to be purchased by the undersigned---for delivery on such Delivery Date--in definitive fully registered form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to--the---such--Delivery Date. It is expressly agreed that the provisions for delayed delivery and payment are for the sole convenience of the undersigned; that the purchase hereunder of Securities is to be regarded in all respects as a purchase as of the date of this Contract; that the obligation of the Company to make delivery of and accept payment for, and the obligation of the undersigned to take delivery of and make payment for, Securities on--the--each--Delivery Date shall be subject only to the conditions that (1) investment in the Securities shall not at--the--such--Delivery Date be prohibited under the laws of any jurisdiction in the United States to which the undersigned is subject and (2) the Company shall have sold to the Underwriters the total principal amount of the Securities less the principal amount thereof covered by this and other similar Contracts. The undersigned represents that its investment in the Securities is not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which governs such investment. Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below, notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith. This Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. It is understood that the acceptance of any such Contract is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If this Contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so mailed or delivered. Yours very truly, ---------------------------------- (Name of purchaser) By ---------------------------------- (Title of Signatory) ---------------------------------- (Address of Purchaser) Accepted, as of the above date, CHIQUITA BRANDS INTERNATIONAL, INC. By _____________________________________ Name: Title: 20 21 ANNEX II(A) CHIQUITA BRANDS INTERNATIONAL, INC. ("COMPANY") DEBT SECURITIES TERMS AGREEMENT ____________, 1996 CHIQUITA BRANDS INTERNATIONAL, INC. 250 East Fifth Street Cincinnati, Ohio 45202 Attention: Robert W. Olson Vice President, General Counsel and Secretary Dear Sirs: On behalf of the several Underwriters named in Schedule A hereto and for their respective accounts, we offer to purchase, on and subject to the terms and conditions of the Underwriting Agreement Basic Provisions relating to the Debt Securities of Chiquita Brands International, Inc. dated _________ , 1996 ("Underwriting Agreement"), the following securities ("Securities") on the following terms: Debt Securities Title: Rank: [Senior Debt] [Subordinated Debt] Securities Principal Amount: $ Interest Rate: ___ % from _________, 199_ , payable: Maturity: Form and Denomination: Optional Redemption: Sinking Fund: Indenture: Delayed Delivery Contracts: [authorized][not authorized] Delivery Date: Minimum Contract: 21 22 Maximum aggregate principal amount: Fee: __% Purchase Price: ___%, plus accrued interest, or amortized original issue discount, if any, from 19__. Expected Reoffering Price: Names and Addresses of Representatives: The respective principal amounts of the Debt Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule A hereto. The provisions of the Underwriting Agreement are incorporated herein by reference. The Closing will take place at___ A.M., New York City time, on ___________ , 199__, at the offices of ___________________________________ . The Securities will be made available for checking and packaging at the office of not later than 2:00 p.m., New York City time, on the business day prior to the Delivery Date. Please signify your acceptance by signing the enclosed response to us in the space provided and returning it to us. Very truly yours, 22 23
SCHEDULE A DEBT SECURITIES UNDERWRITER PRINCIPAL AMOUNT __________ Total __________ 23
24 To: [Insert name(s) of Representatives or Underwriters] As [Representative[s] of the Several] Underwriter[s], [c/o [Name of Representative]] We accept the offer contained in your [letter] [wire], dated __________ , 19__ , relating to shares of our [Insert title of Securities] (the "Terms Agreement"). We also confirm that, to the best of our knowledge after reasonable investigation, the representations and warranties of the undersigned in the Underwriting Agreement Basic Provisions filed as an exhibit to the undersigned's registration statement on Form S-3 (No. 33-____ ) (together with the Terms Agreement, the "Underwriting Agreement") are true and correct, no stop order suspending the effectiveness of the Registration Statement (as defined in the Underwriting Agreement) or of any part thereof has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, are contemplated by the Securities and Exchange Commission and, subsequent to the respective dates of the most recent financial statements in the Prospectus (as defined in the Underwriting Agreement), there has been (or in the case of a form of prospectus filed pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such prospectus) no material adverse change in the financial position or results of operations of the undersigned and its subsidiaries except as set forth in or contemplated by the Prospectus. Very truly yours, CHIQUITA BRANDS INTERNATIONAL, INC. By ________________________________ Name: Title: 24 25 ANNEX II(B) CHIQUITA BRANDS INTERNATIONAL, INC. ("COMPANY") EQUITY SECURITIES TERMS AGREEMENT CHIQUITA BRANDS INTERNATIONAL, INC. 250 East Fifth Street Cincinnati, Ohio 45202 ____________, 19__ Attention: Robert W. Olson Vice President, General Counsel and Secretary Dear Sirs: On behalf of the several Underwriters named in Schedule A hereto and for their respective accounts, we offer to purchase, on and subject to the terms and conditions of the Underwriting Agreement Basic Provisions relating to the Equity Securities of Chiquita Brands International Inc. dated _____________ , 1994 ("Underwriting Agreement"), the following securities ("Securities") on the following terms: Equity Securities Title: [Capital Stock, par value $.33 per share] [Non-Voting Preferred Stock, par value $1.00 per share] [Preference Stock without par value] Number of Shares to be issued: ____ shares [For Preferred Stock: Voting Rights: Preferred Stock Dividends: cash dividends to accrue at an annual rate of $ per share, cumulative and payable quarterly in arrears on _______, 19__,__________, 19__ and ___________, 19__ . Optional Redemption: Mandatory Redemption/Sinking Fund: Liquidation Preference: $____ per share plus___ . Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market System] [American Stock Exchange] Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement: _____ days. Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement: ____ days 25 26 Conversion Provisions: Other Terms Price to Public: $______ per share Underwriting Discounts and Commission: Proceeds to Company: Over-Allotment Option: Delivery Date:___ A.M. on , _____________, 19__ , at ________________ in New York [Clearing House (next day)] [Federal (same-day)] funds. Name of Transfer Agent and Registrar: Names and Addresses of Representatives: [For Common Stock: Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market System] [American Stock Exchange] Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement: ______ days. Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement: _____ days. Other Terms Price to Public: $_______ per share Underwriting Discounts and Commission: Proceeds to Company: Over-Allotment Option: Delivery Date: __ A.M. on ____________ , 19__ , at ______________ in New York [Clearing House (next day)] [Federal (same-day)] funds. Name of Transfer Agent and Registrar: Names and Addresses of Representatives:] The respective shares of the Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule A hereto. [It is understood that we may, with your consent, amend this offer to add additional Underwriters and reduce the number of shares to be purchased by the Underwriters listed in Schedule A hereto by the number of shares to be purchased by such additional Underwriters.] 26 27 The provisions of the Underwriting Agreement are incorporated herein by reference [except that the obligations and agreements set forth in Paragraph 3 ("Conditions of Company's Obligations; Defaulting Underwriters") of the Underwriting Agreement shall not apply to the obligations of the Underwriters to purchase the above Securities]. The Securities will be made available for checking and packaging at the office of _________________ at least 24 hours prior to the Delivery Date. [Please signify your acceptance of our offer by signing the enclosed response to us in the space provided and returning it to us.] [Please signify your acceptance of the foregoing by return wire not later than __ P.M. _____ today.] Very truly yours, 27 28
SCHEDULE A NUMBER OF UNDERWRITER SHARES ----------- ------ Total _______ _______
28 29 To: [Insert name(s) of Representatives or Underwriters] As [Representative[s] of the Several] Underwriter[s], [c/o [Name of Representative]] We accept the offer contained in your [letter] [wire], dated ____________ , 19__ , relating to _______ shares of our [Insert title of Securities] (the "Terms Agreement"). We also confirm that, to the best of our knowledge after reasonable investigation, the representations and warranties of the undersigned in the Underwriting Agreement Basic Provisions filed as an exhibit to the undersigned's registration statement on Form S-3 (No. 33-________) (together with the Terms Agreement, the "Underwriting Agreement") are true and correct, no stop order suspending the effectiveness of the Registration Statement (as defined in the Underwriting Agreement) or of any part thereof has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, are contemplated by the Securities and Exchange Commission and, subsequent to the respective dates of the most recent financial statements in the Prospectus (as defined in the Underwriting Agreement), there has been (or in the case of a form of prospectus filed pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such prospectus) no material adverse change in the financial position or results of operations of the undersigned and its subsidiaries except as set forth in or contemplated by the Prospectus. Very truly yours, CHIQUITA BRANDS INTERNATIONAL, INC. By _______________________________________ Name: Title: 29 EX-4.C 3 EXHIBIT 4(C) 1 EXHIBIT 4(c) ================================================================================ [CONFORMED COPY] CHIQUITA BRANDS INTERNATIONAL, INC. and THE FIFTH THIRD BANK, Trustee _____________ INDENTURE Dated as of February 15, 1994 _____________ Senior Debt Securities ================================================================================ 2 CHIQUITA BRANDS INTERNATIONAL, INC. Reconciliation and tie showing the location in the Indenture dated as of ___________, 1994 of the provisions inserted pursuant to Sections 310 to 318(a), inclusive, of the Trust Indenture Act of 1939.
Trust Indenture Act Section Indenture Section - --------------------------- ----------------- 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. 3 TABLE OF CONTENTS
Page ---- ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . 1 SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Certificate of a Firm of Independent Public Accountants . . . . . . . . . . . . . . . . . . . . . 3 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Debt Security Register and Debt Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . 4 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Discounted Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Page ---- Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . 9 United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . 9 SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . 10 SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . 12 SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . 13 SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . 13 SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 113. Non-Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 114. Immunity of Incorporators, Stockholders, Officers and Directors . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE TWO DEBT SECURITY FORM . . . . . . . . . . . . . . . . . . . . . 14 SECTION 201. Form of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE THREE THE DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . 16 SECTION 301. Title; Payment and Terms . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SECTION 304. Temporary Debt Securities and Exchange of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 305. Registration of Transfer and Exchange . . . . . . . . . . . . . . . . 20 SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . 23 SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . 24
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Page ---- ARTICLE FOUR SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . 24 SECTION 401. Satisfaction and Discharge of Debt Securities of any Series . . . . . . . . . . . . . . . . . . . . 24 SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . 26 SECTION 403. Satisfaction and Discharge of Indenture . . . . . . . . . . . . 27 SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . 28 ARTICLE FIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 28 SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . 28 SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 32 SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . 33 SECTION 505. Trustee May Enforce Claims Without Possession of Debt Securities . . . . . . . . . . . . . . . . . 34 SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . 35 SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . 35 SECTION 508. Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any . . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . 36 SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . 36 SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . 37 SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . 37 SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . 37 SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . 38 ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . 38 SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . 38 SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . 39 SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 605. May Hold Debt Securities . . . . . . . . . . . . . . . . . . . . 41 SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . 41 SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . 42 SECTION 609. Corporate Trustee Required, Different Trustees for Different Series; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . 42 SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . 44
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Page ---- SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . 46 SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 SECTION 614. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . 46 ARTICLE SEVEN HOLDERS' REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . 48 SECTION 701. Preservation of Information; Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 SECTION 702. Communications to Holders . . . . . . . . . . . . . . . . . . . 48 SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . 48 SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . 49 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER . . . . . . . . . . . . 49 SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . 49 SECTION 802. Successor Corporation Substituted . . . . . . . . . . . . . . . 50 ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . 50 SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . 50 SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . 53 SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . 53 SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . 54 SECTION 906. Reference in Debt Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 54 ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . . 54 SECTION 1001. Payment of Principal (and Premium, if any) and Interest, if any . . . . . . . . . . . . . . . . . . . 54 SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . 54 SECTION 1003. Money for Debt Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 55 SECTION 1004. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . 57 SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . 57 SECTION 1006. Statements as to Compliance . . . . . . . . . . . . . . . . . . 57 SECTION 1007. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . 58 SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . 58
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Page ---- ARTICLE ELEVEN REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . 59 SECTION 1101. Applicability of This Article . . . . . . . . . . . . . . . . . 59 SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . 59 SECTION 1103. Selection by Trustee of Debt Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 59 SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 60 SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . 61 SECTION 1106. Debt Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 SECTION 1107. Debt Securities Redeemed in Part . . . . . . . . . . . . . . . 61 ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . 62 SECTION 1201. Applicability of This Article . . . . . . . . . . . . . . . . . 62 SECTION 1202. Satisfaction of Sinking Fund Payments With Debt Securities . . . . . . . . . . . . . . . . . . . . . 62 SECTION 1203. Redemption of Debt Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . 63
-v- 8 This is an INDENTURE dated as of February 15, 1994, between Chiquita Brands International, Inc., a corporation duly incorporated and existing under the laws of New Jersey and having its principal office at 250 East Fifth Street, Cincinnati, Ohio (hereinafter called the "Company"), and The Fifth Third Bank, an Ohio banking corporation, as Trustee (hereinafter called the "Trustee"). RECITALS OF THE COMPANY The Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called the "Debt Securities") evidencing its unsecured indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Debt Securities, unlimited as to principal amount, to have such titles, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company proposes to do all things necessary to make the Debt Securities, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Debt Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Debt Securities or any series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions. For all purposes of this Indenture and all Debt Securities issued hereunder, except as otherwise expressly provided or unless the context otherwise requires: 9 2 (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such generally accepted accounting principles as in effect and as implemented by the Company on the date of this Indenture; and (4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally in Article Three and Article Six, are defined in those Articles. "Act", when used with respect to any Holder, has the meaning specified in Section 104. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control", when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized to authenticate and deliver Debt Securities on behalf of the Trustee for the Debt Securities of any series pursuant to Section 614. "Board of Directors" means the board of directors of the Company or any duly authorized committee of that board or any director or directors and/or officer or officers of the Company to whom that board or committee shall have duly delegated its authority. "Board Resolution" means (1) a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such 10 3 certification, or (2) a certificate signed by the director or directors or officer or officers to whom the board of directors of the Company shall have duly delegated its authority, and delivered to the Trustee for the Debt Securities of any series. "Business Day", when used with respect to any particular Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close, and shall otherwise mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions, at the place where any specified act pursuant to this Indenture is to occur, are authorized or obligated by law to close. "Capital Stock" means any and all shares of the capital stock, par value $.33 per share, of the Company and of any class or series of preferred or preference stock of the Company, whether now outstanding or issued after the date of this Indenture. "Capitalized Lease Obligation" means any obligation to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real or personal property that is required to be classified and accounted for as a capital lease obligation under generally accepted accounting principles consistently applied, and, for the purposes of this Indenture, the amount of such obligation at any date shall be the capitalized amount thereof at such date, determined in accordance with such principles. "Certificate of a Firm of Independent Public Accountants" means a certificate signed by any firm of independent public accountants of recognized standing selected by the Company. The term "independent" when used with respect to any specified firm of public accountants means such a firm which (1) is in fact independent, (2) does not have any direct financial interest or any material indirect financial interest in the Company or in any Affiliate of the Company, and (3) is not connected with the Company or any Affiliate of the Company as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions, but such firm may be the regular auditors employed by the Company. Whenever it is herein provided that any Certificate of a Firm of Independent Public Accountants shall be furnished to the Trustee for Debt Securities of any series, such Certificate shall state that the signer has read this definition and that the signer is independent within the meaning hereof. "Code" means the Internal Revenue Code of 1986, as amended from time to time. 11 4 "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date. "Common Stock" means the capital stock, par value $.33 per share, of the Company. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor corporation. "Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by (1) the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, or (2) by any two Persons designated in a Company Order previously delivered to the Trustee for the Debt Securities of any series by any two of the foregoing officers and delivered to the Trustee for the Debt Securities of such series. "Corporate Trust Office" means the office of the Trustee for Debt Securities of any series at which at any particular time its corporate trust business shall be principally administered, which office of The Fifth Third Bank, at the date of the execution of this Indenture, is located at 38 Fountain Square Plaza, Cincinnati, Ohio 45263. "corporation" includes corporations, associations, joint- stock companies and business trusts. "Debt Securities" means securities evidencing unsecured indebtedness of the Company authenticated and delivered under this Indenture. "Debt Security Register" and "Debt Security Registrar" have the respective meanings specified in Section 305. "Defaulted Interest" has the meaning specified in Section 307. "Discounted Debt Security" means any Debt Security which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. 12 5 "Dollars" and the sign "$" mean the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. "Event of Default" has the meaning specified in Section 501. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Holder", when used with respect to any Debt Security, means the Person in whose name a Debt Security is registered in the Debt Security Register. "Indebtedness" means (a) any liability of any Person (1) for borrowed money, or under any reimbursement obligation relating to a letter of credit (other than letters of credit obtained in the ordinary course of business), or (2) evidenced by a bond, note, debenture or similar instrument (including a purchase money obligation) given in connection with the acquisition of any businesses, properties or assets of any kind or with services incurred in connection with capital expenditures (other than accounts payable or other indebtedness to trade creditors arising in the ordinary course of business), or (3) for the payment of money relating to a Capitalized Lease Obligation; (b) any liability of others described in the preceding clause (a) that the Person has guaranteed or that is otherwise its legal liability; and (c) any amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types referred to in clauses (a) and (b) above. "Indenture" means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of a particular series of Debt Securities established as contemplated by Section 301. "interest", when used with respect to a Discounted Debt Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Interest Payment Date", when used with respect to any Debt Security, means the Stated Maturity of an installment of interest on such Debt Security. "Lien" means any mortgage, lien, pledge, security interest, conditional sale or other title retention agreement, charge or other security interest or encumbrance of any kind. "Maturity", when used with respect to any Debt Security, means the date on which the principal of that Debt Security becomes due and payable as therein or herein provided, whether 13 6 at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption or otherwise. "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President (any reference to a Vice President of the Company herein shall be deemed to include any Vice President of the Company whether or not designated by a number or a word or words added before or after the title "Vice President"), and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee for the Debt Securities of any series. "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or counsel to the Company or may be other counsel satisfactory to the Trustee for the Debt Securities of any series. "Outstanding", when used with respect to Debt Securities, means, as of the date of determination, all Debt Securities theretofore authenticated and delivered under this Indenture, except: (1) Debt Securities theretofore canceled by the Trustee for such Debt Securities or delivered to such Trustee for cancellation; (2) Debt Securities or portions thereof for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee for such Debt Securities or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Debt Securities (including Debt Securities with respect to which the Company has effected satisfaction and discharge as provided in Article Four or covenant defeasance as provided in Section 1015, except to the extent provided in such Article or Section); provided, however, that, if such Debt Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture, or provision therefor satisfactory to such Trustee has been made; and (3) Debt Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Debt Securities have been authenticated and delivered pursuant to this Indenture, other than any such Debt Securities in respect of which there shall have been presented proof satisfactory to the Trustee for such Debt Securities that any such Debt Securities are held by bona 14 7 fide purchasers in whose hands the Debt Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (a) Debt Securities owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee for such Debt Securities shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Debt Securities which such Trustee knows to be so owned shall be so disregarded, provided, that Debt Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of such Trustee the pledgee's right so to act with respect to such Debt Securities and that the pledgee is not the Company or any Affiliate of the Company and (b) the principal amount of a Discounted Debt Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 502. "Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Debt Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Debt Securities of any particular series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Debt Securities of that series are payable, as contemplated by Section 301. "Predecessor Debt Security" of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by that particular Debt Security, and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 306 in lieu of a mutilated, destroyed, lost or stolen Debt Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Debt Security. "Redemption Date", when used with respect to any Debt Security to be redeemed in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture. 15 8 "Redemption Price", when used with respect to any Debt Security to be redeemed, means an amount equal to the principal amount thereof (and premium, if any, thereon) together with accrued interest, if any, to the Redemption Date. "Regular Record Date" for the interest payable on any Interest Payment Date on the Debt Securities of any series, means the date, if any, specified for that purpose as contemplated by Section 301. "Responsible Officer", when used with respect to the Trustee for any series of Debt Securities, means the chairman or vice chairman of the board of directors, the chairman or vice chairman of the executive committee of the board of directors, the president, any vice president (whether or not designated by a number or a word or words added before or after the title "vice president"), the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of such Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. A "series" of Debt Securities means all Debt Securities denoted as part of the same series authorized by or pursuant to a particular Board Resolution. "Special Record Date" for the payment of any Defaulted Interest on the Debt Securities of any series means a date fixed by the Trustee for such series pursuant to Section 307. "Stated Maturity", when used with respect to any security or any installment of principal thereof or interest thereon, means the date specified in such security representing such installment of interest as the fixed date on which the principal of such security or such installment of principal or interest is due and payable. "Subsidiary" means any corporation of which at least a majority of all outstanding stock having ordinary voting power in the election of directors of such corporation is at the time, directly or indirectly, owned by the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument and, subject to the provisions of Article Six hereof, shall also include its successors and assigns as Trustee hereunder. If there shall 16 9 be at one time more than one Trustee hereunder, "Trustee" shall mean each such Trustee and shall apply to each such Trustee only with respect to those series of Debt Securities with respect to which it is serving as Trustee. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and in force at the date as of which this Indenture was executed, except as provided in Section 905 hereof and except that any rules and regulations subsequently prescribed by the Commission pursuant to Section 314(a) of that Act shall apply. "U.S. Government Obligations" means securities which are (i) direct obligations of the government of the United States or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government of the United States, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government and are not callable or redeemable at the option of the issuer thereof. "United States" means the United States of America (including the States and the District of Columbia), its territories, possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico). "Yield to Maturity", when used with respect to any Discounted Debt Security, means the yield to maturity, if any, set forth on the face thereof. SECTION 102. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee for any series of Debt Securities to take any action under any provision of this Indenture, the Company shall furnish to such Trustee (i) an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, and (iii) if appropriate, a Certificate of a Firm of Independent Public Accountants; provided, that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto; 17 10 (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. SECTION 103. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 104. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall 18 11 become effective when such instrument or instruments are delivered to the Trustee for the appropriate series of Debt Securities and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Debt Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee for the appropriate series of Debt Securities and the Company and any agent of such Trustee or the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or association or a member of a partnership, or an official of a public or governmental body, on behalf of such corporation, association, partnership or public or governmental body or by a fiduciary, such certificate or affidavit shall also constitute sufficient proof of his authority. (c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee for the appropriate series of Debt Securities deems sufficient. (d) The principal amount and serial numbers of Debt Securities held by any Person, and the date of holding the same, shall be proved by the Debt Security Register. (e) In determining whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, the principal amount of a Discounted Debt Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of the principal thereof that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 at the time the taking of such action by the Holders of such requisite principal amount is evidenced to the Trustee for such Debt Securities. (f) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Debt Security shall bind every future Holder of the same Debt Security and the Holder of every Debt Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the 19 12 Trustee for such Debt Securities, the Debt Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Debt Security. SECTION 105. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee for a series of Debt Securities by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, Attention: Corporate Trust Department, or (2) the Company by such Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in paragraphs (3), (4) and (5) of Section 501) if in writing and mailed, first class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Company. SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders if in writing and mailed, first class postage prepaid, to each Holder affected by such event, at his address as it appears in the Debt Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Debt Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice mailed in the manner prescribed by this Indenture shall be deemed to have been given whether or not received by any particular Holder. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee for such Debt Securities shall constitute a sufficient notification for every purpose hereunder. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee for such Debt 20 13 Securities, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 107. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control. SECTION 108. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 109. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 110. Separability Clause. In any case any provision in this Indenture or in the Debt Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 111. Benefits of Indenture. Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Debt Security Registrar and their successors hereunder and the Holders of Debt Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 112. Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State of New York. SECTION 113. Non-Business Day. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Debt Security of any particular series shall not be a Business Day at any Place of Payment with respect to Debt Securities of that series, then (notwithstanding any other provision of this Indenture or of the Debt Securities) payment of principal of (and premium, if any) and interest, if any, with respect to such Debt Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and 21 14 effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. SECTION 114. Immunity of Incorporators, Stockholders, Officers and Directors. No recourse shall be had for the payment of the principal of (and premium, if any), or the interest, if any, on any Debt Security of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Debt Securities of each series are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities of any series, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Debt Securities of each series. ARTICLE TWO DEBT SECURITY FORM SECTION 201. Form of Debt Securities. The Debt Securities of each series shall be in such fully registered form as shall be established by or pursuant to a Board Resolution, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law, with any rule or regulation made pursuant thereto, with any rules of any securities exchange or to conform to usage, as may, consistent herewith, be determined by the officers executing such Debt Securities, as evidenced by their execution of such Debt Securities. Prior to the delivery of a Debt Security of any series in any such form to the Trustee for the Debt Securities of such series 22 15 for authentication, the Company shall deliver to such Trustee the following: (1) The Board Resolution by or pursuant to which such form of Debt Security has been approved; (2) An Officers' Certificate dated the date such Certificate is delivered to such Trustee stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Debt Securities in such form have been complied with; and (3) An Opinion of Counsel stating that Debt Securities in such form, when (a) completed by appropriate insertions and executed and delivered by the Company to such Trustee for authentication in accordance with this Indenture, (b) authenticated and delivered by such Trustee in accordance with this Indenture within the authorization as to aggregate principal amount established from time to time by the Board of Directors and (c) sold in the manner specified in such Opinion of Counsel, will be the legal, valid and binding obligations of the Company, subject to applicable bankruptcy, reorganization, insolvency and other similar laws generally affecting creditors' rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Debt Securities. The definitive Debt Securities shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Debt Securities, as evidenced by their execution thereof. SECTION 202. Form of Trustee's Certificate of Authentication. The Certificate of Authentication on all Debt Securities shall be in substantially the following form: "This is one of the Debt Securities, of the series designated herein, described in the within-mentioned Indenture. _________________________, as Trustee By______________________________ Authorized Officer" 23 16 ARTICLE THREE THE DEBT SECURITIES SECTION 301. Title; Payment and Terms. The aggregate principal amount of Debt Securities which may be authenticated and delivered and Outstanding under this Indenture is unlimited. The Debt Securities may be issued up to the aggregate principal amount of Debt Securities from time to time authorized by or pursuant to a Board Resolution. The Debt Securities may be issued in one or more series, each of which shall be issued pursuant to a Board Resolution. With respect to any particular series of Debt Securities, the Board Resolution relating thereto shall specify: (1) the title of the Debt Securities of that series (which shall distinguish the Debt Securities of that series from all other series of Debt Securities); (2) any limit upon the aggregate principal amount of the Debt Securities of that series which may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of that series pursuant to Section 304, 305, 306, 906 or 1107 or otherwise pursuant to any covenant permitting the purchase of a portion of the Debt Securities of that series); (3) the date or dates (or manner of determining the same) on which the principal of the Debt Securities of that series is payable (which, if so provided in such Board Resolution, may be determined by the Company from time to time and set forth in the Debt Securities of the series issued from time to time); (4) the rate or rates (or the manner of calculation thereof) at which the Debt Securities of that series shall bear interest (if any), the date or dates from which such interest shall accrue (which, in either case or both, if so provided in such Board Resolution, may be determined by the Company from time to time and set forth in the Debt Securities of the series issued from time to time), the Interest Payment Dates on which such interest shall be payable (or manner of determining the same) and the Regular Record Date for the interest payable on any Debt Securities on any Interest Payment Date; (5) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest, if any, on Debt Securities of that series shall be payable, any Debt Securities of that series may be surrendered for registration of transfer, any Debt Securities of that 24 17 series may be surrendered for exchange, and notices and demands to or upon the Company in respect of the Debt Securities of that series and this Indenture may be served; (6) the period or periods within which, the price or prices at which and the terms and conditions upon which Debt Securities of that series may be redeemed, in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem or purchase Debt Securities of that series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which, Debt Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (8) the denominations in which any Debt Securities of that series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof; (9) if other than the principal amount thereof, the portion of the principal amount of Debt Securities of that series which shall be payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502; (10) any addition to, or modification or deletion of, any Events of Default or covenants of the Company with respect to the Debt Securities of that series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein; (11) if a Person other than The Fifth Third Bank is to act as Trustee for the Debt Securities of that series, the name and location of the Corporate Trust Office of such Trustee; (12) if other than as set forth in Section 401, provisions for the satisfaction and discharge of this Indenture with respect to the Debt Securities of that series; (13) any provision relating to the defeasance of the obligations of the Company in connection with the Debt Securities of that series; (14) any provisions regarding exchangeability or conversion of the Debt Securities of that series; and (15) any other terms of that series (which terms shall not be inconsistent with the provisions of this Indenture). All Debt Securities of any particular series shall be substantially identical except as to denomination, rate of interest, Stated Maturity and the date from which interest, if any, 25 18 shall accrue, and except as may otherwise be provided in or pursuant to such Board Resolution relating thereto. The terms of such Debt Securities, as set forth above, may be determined by the Company from time to time if so provided in or established pursuant to the authority granted in a Board Resolution. All Debt Securities of any one series need not be issued at the same time, and unless otherwise provided, a series may be reopened for issuance of additional Debt Securities of such series. SECTION 302. Denominations. Unless otherwise provided with respect to any series of Debt Securities as contemplated by Section 301, all Debt Securities of a series shall be issuable in denominations of $1,000 and any integral multiple thereof. SECTION 303. Execution, Authentication, Delivery and Dating. The Debt Securities shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, or its President or one of its Vice Presidents. The Debt Securities shall be so executed under the corporate seal of the Company reproduced thereon and attested to by its Secretary or any one of its Assistant Secretaries. The signature of any of these officers on the Debt Securities may be manual or facsimile. Debt Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Debt Securities or did not hold such offices at the date of such Debt Securities. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Debt Securities of any series executed by the Company to the Trustee for the Debt Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Debt Securities, and such Trustee, in accordance with the Company Order, shall authenticate and deliver such Debt Securities. If all the Debt Securities of any one series are not to be issued at one time and if a Board Resolution relating to such Debt Securities shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Debt Securities, including, without limitation, procedures with respect to interest rate, Stated Maturity, date of issuance and date from which interest, if any, shall accrue. Notwithstanding any contrary provision herein, if all Debt Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution, Officers' Certificate and Opinion of Counsel otherwise required pursuant to Sections 102 and 201 at or prior to the time of authentication of each Debt Security of such series if such 26 19 documents are delivered at or prior to the authentication upon original issuance of the first Debt Security of such series to be issued. Each Debt Security shall be dated the date of its authentication. No Debt Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Debt Security a certificate of authentication substantially in the form provided for herein manually executed by the Trustee for such Debt Security or on its behalf pursuant to Section 614, and such certificate upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt Security has been duly authenticated and delivered hereunder. SECTION 304. Temporary Debt Securities and Exchange of Debt Securities. Pending the preparation of definitive Debt Securities of any particular series, the Company may execute, and upon Company Order the Trustee for the Debt Securities of such series shall authenticate and deliver, in the manner specified in Section 303, temporary Debt Securities which are printed, lithographed, typewritten, photocopied or otherwise produced, in any denomination, with like terms and conditions as the definitive Debt Securities of like series in lieu of which they are issued, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Debt Securities may determine, as evidenced by their execution of such Debt Securities. If temporary Debt Securities of any particular series are issued, the Company will cause definitive Debt Securities of that series to be prepared without unreasonable delay. After the preparation of such definitive Debt Securities, the temporary Debt Securities of such series shall be exchangeable for such definitive Debt Securities and of a like Stated Maturity and with like terms and provisions upon surrender of the temporary Debt Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities of any particular series, the Company shall execute and (in accordance with a Company Order delivered at or prior to the authentication of the first definitive Debt Security of such series) the Trustee for the Debt Securities of such series shall authenticate and deliver in exchange therefor a like principal amount of definitive Debt Securities of authorized denominations of the same series and of a like Stated Maturity and with like terms and provisions. Until exchanged as hereinabove provided, the temporary Debt Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of the same series and with like terms and conditions authenticated and delivered hereunder. 27 20 SECTION 305. Registration of Transfer and Exchange. The Company shall keep or cause to be kept for the Debt Securities of each series a register (the register maintained in such office being herein sometimes referred to as the "Debt Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of transfer and exchange of Debt Securities. The Securities Transfer Company is hereby initially appointed "Debt Security Registrar" for such purposes. Upon surrender for registration of transfer of any Debt Security of any particular series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee for the Debt Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Debt Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions. Except as set forth below, at the option of the Holder, Debt Securities of any particular series may be exchanged for other Debt Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions, upon surrender of the Debt Securities to be exchanged at such office or agency. Whenever any Debt Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Debt Securities shall authenticate and deliver, the Debt Securities which the Holder making the exchange is entitled to receive. All Debt Securities issued upon any registration of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange. Every Debt Security presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Trustee for such Debt Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Debt Security Registrar for such series duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Debt Securities, other than exchanges pursuant to Section 304, 906, 1013 or 1107 not involving any transfer. 28 21 The Company shall not be required (i) to issue, register the transfer of or exchange Debt Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Debt Securities of that series selected for redemption under Section 1104 and ending at the close of business on the day of the mailing of the relevant notice of redemption , or (ii) to register the transfer of or exchange any Debt Security so selected for redemption as a whole or in part, except the unredeemed portion of any Debt Security being redeemed in part. SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities. If (i) any mutilated Debt Security is surrendered to the Trustee for such Debt Security, or the Company and the Trustee for a Debt Security receive evidence to their satisfaction of the destruction, loss or theft of any Debt Security, and (ii) there is delivered to the Company and such Trustee such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or such Trustee that such Debt Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request such Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Debt Security or in exchange for such mutilated Debt Security, a new Debt Security of the same series and in a like principal amount and of a like Stated Maturity and with like terms and conditions and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Debt Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Debt Security, pay such Debt Security (without surrender thereof except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish to the Company and the Trustee for such Debt Security such security or indemnity as may be required by them to save each of them harmless, and in case of destruction, loss or theft, evidence satisfactory to the Company and such Trustee and any agent of either of them of the destruction, loss or theft of such Debt Security and the ownership thereof. Upon the issuance of any new Debt Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including all fees and expenses of the Trustee for such Debt Security) connected therewith. Every new Debt Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security or in exchange for any mutilated Debt Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security shall be at any 29 22 time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debt Securities of the same series, duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities. SECTION 307. Payment of Interest; Interest Rights Preserved. Interest on any Debt Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Debt Security, be paid to the Person in whose name that Debt Security (or one or more Predecessor Debt Securities) is registered at the close of business on the Regular Record Date for such interest payment. Unless otherwise provided with respect to the Debt Securities of any series, payment of interest may be made at the option of the Company by check mailed or delivered to the address of the Person entitled thereto as such address shall appear in the Debt Security Register or by transfer to an account maintained by the payee with a bank located inside the United States. Any interest on any Debt Security of any particular series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Debt Securities of that series (or their respective Predecessor Debt Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee for the Debt Securities of such series in writing of the amount of Defaulted Interest proposed to be paid on each Debt Security of that series and the date of the proposed payment, and at the same time the Company shall deposit with such Trustee an amount of money (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to such Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause 30 23 provided. Thereupon such Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Debt Securities of that series at such Holder's address as it appears in the Debt Security Register not less than 10 days prior to such Special Record Date. Such Trustee may, in its discretion, in the name and at the expense of the Company, cause a similar notice to be published at least once in a newspaper published in the English language customarily on each Business Day and of general circulation in New York, New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Debt Securities of that series (or their respective Predecessor Debt Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest on Debt Securities of any particular series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debt Securities may be listed, and upon such notice as may be required by such exchange, if, after notice is given by the Company to the Trustee for the Debt Securities of such series of the proposed manner of payment pursuant to this clause, such manner of payment shall be deemed practicable by such Trustee. Subject to the foregoing provisions of this Section and Section 305, each Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security. SECTION 308. Persons Deemed Owners. Prior to due presentment of a Debt Security for registration of transfer, the Company, the Trustee for such Debt Security and any agent of the Company or such Trustee may treat the Person in whose name any such Debt Security is registered as the owner of such Debt Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Debt Security and for all other purposes whatsoever, whether or not such Debt Security be overdue, and 31 24 neither the Company, such Trustee nor any agent of the Company or such Trustee shall be affected by notice to the contrary. SECTION 309. Cancellation. All Debt Securities surrendered for payment, redemption, registration of transfer or exchange, or delivered in satisfaction of any sinking fund payment, shall, if surrendered to any Person other than the Trustee for such Debt Securities, be delivered to such Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for Debt Securities of a series for cancellation any Debt Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Debt Securities so delivered shall be promptly canceled by such Trustee. Notwithstanding any other provision of this Indenture to the contrary, in the case of a series, all the Debt Securities of which are not to be originally issued at one time, a Debt Security of such series shall not be deemed to have been Outstanding at any time hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Debt Security is delivered to the Trustee for such Debt Security for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Debt Security so delivered to such Trustee shall be promptly canceled by it. No Debt Securities shall be authenticated in lieu of or in exchange for any Debt Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Debt Securities held by the Trustee for such Debt Securities shall be disposed of by such Trustee in accordance with its standard procedures and a certificate of disposition evidencing such disposition of Debt Securities shall be provided to the Company by such Trustee. SECTION 310. Computation of Interest. Except as otherwise specified as contemplated by Section 301 for Debt Securities of any particular series, interest on the Debt Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Debt Securities of any Series. (a) The Company shall be deemed to have satisfied and discharged the entire indebtedness on all the Debt Securities of any particular series and, so long as no Event of Default shall be continuing, the Trustee for the Debt Securities of such series, upon Company Request and at the expense of the Company, shall 32 25 execute proper instruments acknowledging satisfaction and discharge of such indebtedness, when: (1) either (A) all Debt Securities of such series theretofore authenticated and delivered (other than (i) any Debt Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Debt Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in the last paragraph of Section 1003) have been delivered to such Trustee for cancellation; or (B) with respect to all Outstanding Debt Securities of such series described in (A) above not theretofore so delivered to the Trustee for the Debt Securities of such series for cancellation: (i) the Company has deposited or caused to be deposited with such Trustee as trust funds in trust an amount (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series), sufficient to pay and discharge the entire indebtedness on all such Outstanding Debt Securities of such series for principal (and premium, if any) and interest, if any, to the Stated Maturity or any Redemption Date as contemplated by Section 402, as the case may be; or (ii) the Company has deposited or caused to be deposited with such Trustee as obligations in trust such amount of U.S. Government Obligations as will as evidenced by a Certificate of a Firm of Independent Public Accountants delivered to such Trustee, together with the predetermined and certain income to accrue thereon (without consideration of any reinvestment thereof), be sufficient to pay and discharge when due the entire indebtedness on all such Outstanding Debt Securities of such series for unpaid principal (and premium, if any) and interest, if any, to the Stated Maturity or any Redemption Date as contemplated by Section 402, as the case may be; or (iii) the Company has deposited or caused to be deposited with such Trustee in trust an amount equal to the amount referred to in clause (i) or (ii) in any combination; 33 26 (2) the Company has paid or caused to be paid all other sums payable with respect to the Debt Securities of such series; (3) the Company has delivered to such Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Debt Securities of such series have been complied with; and (4) if the Debt Securities of such series are not to become due and payable at their Stated Maturity within one year of the date of such deposit or are not to be called for redemption within one year of the date of such deposit under arrangements satisfactory to such Trustee as of the date of such deposit, then the Company shall have given, not later than the date of such deposit, notice of such deposit to the Holders of such Debt Securities. (b) Upon the satisfaction of the conditions set forth in this Section 401 with respect to all the Debt Securities of any series, the terms and conditions of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or applicable to, the Company, and the Holders of the Debt Securities of such series shall look for payment only to the funds or obligations deposited with the Trustee pursuant to Section 401(a)(1)(B); provided, however, that in no event shall the Company be discharged from (i) any payment obligations in respect of Debt Securities of such series which are deemed not to be Outstanding under clause (3) of the definition thereof if such obligations continue to be valid obligations of the Company under applicable law, (ii) from any obligations under Sections 402(b), 607 and 610 and (iii) from any obligations under Sections 305 and 306 (except that Debt Securities of such series issued upon registration of transfer or exchange or in lieu of mutilated, destroyed, lost or stolen Debt Securities shall not be obligations of the Company) and Sections 701 and 1002; and provided, further, that in the event a petition for relief under the Bankruptcy Act of 1978 or Title 11 of the United States Code or a successor statute is filed and not discharged with respect to the Company within 91 days after the deposit, the entire indebtedness on all Debt Securities of such series shall not be discharged, and in such event the Trustee shall return such deposited funds or obligations as it is then holding to the Company upon Company Request. SECTION 402. Application of Trust Money. (a) All money and obligations deposited with the Trustee for any series of Debt Securities pursuant to Section 401 shall be held irrevocably in trust and shall be made under the terms of an escrow trust agreement in form satisfactory to such Trustee. Such money and obligations shall be applied by such Trustee, in 34 27 accordance with the provisions of the Debt Securities, this Indenture and such escrow trust agreement, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as such Trustee may determine, to the Persons entitled thereto, of the principal of (and premium, if any) and interest, if any, on the Debt Securities for the payment of which such money and obligations have been deposited with such Trustee. If Debt Securities of any series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the Company shall make such arrangements as are satisfactory to the Trustee for such series of Debt Securities for the giving of notice of redemption by such Trustee in the name, and at the expense, of the Company. (b) The Company shall pay and shall indemnify the Trustee for any series of Debt Securities against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 401 or the interest and principal received in respect of such U.S. Government Obligations other than any such tax, fee or other charge which by law is payable by or on behalf of Holders. The obligation of the Company under this Section 402(b) shall be deemed to be an obligation of the Company under Section 607(2). (c) Anything in this Article Four to the contrary notwithstanding, the Trustee for any series of Debt Securities shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 401 which, as expressed in a Certificate of a Firm of Independent Public Accountants delivered to such Trustee, are in excess of the amount thereof which would then have been required to be deposited for the purpose for which such money or U.S. Government Obligations were deposited or received provided such delivery can be made without liquidating any U.S. Government Obligations. SECTION 403. Satisfaction and Discharge of Indenture. Upon compliance by the Company with the provisions of Section 401 as to the satisfaction and discharge of each series of Debt Securities issued hereunder, and if the Company has paid or caused to be paid all other sums payable under this Indenture, this Indenture shall cease to be of any further effect (except as otherwise provided herein). Upon Company Request and receipt of an Opinion of Counsel and an Officers' Certificate complying with the provisions of Section 102, the Trustees for all series of Debt Securities (at the expense of the Company) shall execute proper instruments acknowledging satisfaction and discharge of this Indenture. Notwithstanding the satisfaction and discharge of this Indenture, any obligations of the Company under Sections 304, 305, 306, 402(b), 607, 610, 701 and 1002 and the obligations of the 35 28 Trustee for any series of Debt Securities under Section 402 shall survive. SECTION 404. Reinstatement. If the Trustee for any series of Debt Securities is unable to apply any of the amounts (for purposes of this Section 404, "Amounts") or U.S. Government Obligations, as the case may be, described in Section 401(a)(1)(B)(i) or (ii), respectively, in accordance with the provisions of Section 401 by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture and the Debt Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 401 until such time as the Trustee for such series is permitted to apply all such Amounts or U.S. Government Obligations, as the case may be, in accordance with the provisions of Section 401; provided, however, that if, due to the reinstatement of its rights or obligations hereunder, the Company has made any payment of principal of (or premium, if any) or interest, if any, on such Debt Securities, the Company shall be subrogated to the rights of the Holders of such Debt Securities to receive payment from such Amounts or U.S. Government Obligations, as the case may be, held by the Trustee for such series. ARTICLE FIVE REMEDIES SECTION 501. Events of Default. "Event of Default" wherever used herein with respect to any particular series of Debt Securities, unless otherwise specified in the Debt Security or the Board Resolution with respect to that series of Debt Securities, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) default in the payment of any installment of interest upon any Debt Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Debt Security of that series at its Maturity; or (3) default in the performance of, or breach of, any covenant or warranty of the Company in respect of any Debt 36 29 Security of that series contained in this Indenture or in such Debt Securities (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which expressly has been included in this Indenture solely for the benefit of Debt Securities of a series other than that series) or in the applicable Board Resolution under which such series is issued as contemplated by Section 301 and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee for the Debt Securities of such series or to the Company and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (4) if an event of default with respect to any other series of Debt Securities or as defined in any mortgage, indenture, security agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company for money borrowed in excess of $10 million principal amount, whether such Indebtedness now exists or shall hereafter be created, shall happen and, if such Indebtedness is not already matured in accordance with its terms, shall result in such Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such acceleration shall not have been rescinded or annulled or such Indebtedness shall not have been discharged, in either case, within a period of ten days after there has been given, by registered or certified mail in the manner set forth in Section 105, to the Company by the Trustee for the Debt Securities of that particular series referred to in the first clause of this Section 501 or to the Company and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that particular series referred to in the first clause of this Section 501 a written notice specifying such event of default and requiring the Company to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a "Notice of Default" hereunder; provided, that if prior to the entry of judgment in favor of the Trustee, such default under such indenture or instrument shall be remedied or cured by the Company or waived by the holders of such Indebtedness, then the Event of Default hereunder shall be deemed likewise to have been remedied, cured or waived; and provided, further, that, if such default results from an action of the United States government or a foreign government which prevents the Company from performing its obligations under such agreement, indenture or instrument, the occurrence of such default will not be an Event of Default hereunder; and provided, further, however, that, subject to the provisions of Sections 601 and 602, such Trustee shall not be deemed to have 37 30 knowledge of such default unless either (A) a Responsible Officer of such Trustee assigned to its Corporate Trustee Administration Department shall have actual knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company, from the Holders of 10% or more in principal amount of the Outstanding Debt Securities of such other series, from the holder of any such Indebtedness or from the trustee under any such mortgage, indenture, security agreement or other instrument; or (5) the entry against the Company of one or more judgments, decrees or orders by a court having jurisdiction in the premises from which no appeal may be or is taken for the payment of money, either individually or in the aggregate, in excess of $10 million and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 60 consecutive days without a stay of execution and there has been given, by registered or certified mail in the manner set forth in Section 105, to the Company by the Trustee for the Debt Securities of such series or to the Company and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Debt Securities of such series a written notice specifying such entry and continuance of such judgment, decree or order and stating that such notice is a "Notice of Default" hereunder; provided, however, that subject to the provisions of Sections 601 and 602, such Trustee shall not be deemed to have knowledge of such entry and continuance of such judgment, decree or order unless either (A) a Responsible Officer of such Trustee assigned to its Corporate Trustee Administration Department shall have actual knowledge thereof or (B) the Trustee shall have received written notice thereof from the Company or from the Holders of 10% or more in principal amount of the Outstanding Debt Securities of such series; or (6) the Company shall commence any case or proceeding seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or the Company shall apply for a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Company) of it or for all or a substantial part of its property; or the Company shall make a general assignment for the benefit of creditors; or the Company shall take any corporate action in furtherance of any of the foregoing; or 38 31 (7) any case or proceeding against the Company shall be commenced seeking to have an order for relief entered against it or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Company) of the Company or for all or a substantial part of its property shall be appointed in any such case or proceeding; and such case or proceeding (A) results in the entry of an order for relief or a similar order against it or (B) shall continue unstayed and in effect for a period of 60 consecutive days. SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to any particular series of Debt Securities occurs and is continuing, then and in every such case either the Trustee for the Debt Securities of such series or the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of that series may declare the entire principal amount (or, in the case of Discounted Debt Securities, such lesser amount as may be provided for in the terms of that series) of all the Debt Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration of acceleration such principal or such lesser amount, as the case may be, together with accrued interest and all other amounts owing hereunder, shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived. At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Debt Securities of any series as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Debt Securities of that series, by written notice to the Company and such Trustee, may rescind and annul such declaration and its consequences if: (1) the Company has paid or deposited with such Trustee a sum sufficient to pay (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series) (A) all overdue interest on all Debt Securities of that series; 39 32 (B) the principal of (and premium, if any, on) any Debt Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon from the date such principal became due at a rate per annum equal to the rate borne by the Debt Securities of such series (or, in the case of Discounted Debt Securities, the Debt Securities' Yield to Maturity), to the extent that the payment of such interest shall be legally enforceable; (C) to the extent that payment of such interest is lawful, interest upon overdue interest at a rate per annum equal to the rate borne by the Debt Securities of such series (or, in the case of Discounted Debt Securities, the Debt Securities' Yield to Maturity); and (D) all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607; and (2) all Events of Default with respect to the Debt Securities of such series, other than the nonpayment of the principal of Debt Securities of that series which has become due solely by such acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if: (1) default is made in the payment of any interest upon any Debt Security of any series when such interest becomes due and payable and such default continues for a period of 30 days; or (2) default is made in the payment of the principal of (or premium, if any, on) any Debt Security of any series at its Maturity; the Company will, upon demand of the Trustee for the Debt Securities of such series, pay to it, for the benefit of the Holders of such Debt Securities, the whole amount then due and payable on such Debt Securities for principal (and premium, if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of 40 33 interest at a rate per annum equal to the rate borne by such Debt Securities (or, in the case of Discounted Debt Securities, the Debt Securities' Yield to Maturity); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607. If the Company fails to pay such amounts forthwith upon such demand, such Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, wherever situated. If an Event of Default with respect to Debt Securities of any particular series occurs and is continuing, the Trustee for the Debt Securities of such series may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Debt Securities of that series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or the property of the Company or its creditors, the Trustee for the Debt Securities of any series (irrespective of whether the principal (or lesser amount in the case of Discounted Debt Securities) of any Debt Security of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether such Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise (i) to file and prove a claim for the whole amount of principal (or lesser amount in the case of Discounted Debt Securities) (and premium, if any) and interest, if any, owing and unpaid in respect of the Debt Securities of such series and to file such other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee 41 34 under Section 607) and of the Holders of the Debt Securities of such series allowed in such judicial proceeding; (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and (iii) unless prohibited by law or applicable regulations, to vote on behalf of the Holders of the Debt Securities of such series in any election of a trustee in bankruptcy or other person performing similar functions; and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Debt Securities to make such payments to such Trustee, and in the event that such Trustee shall consent to the making of such payments directly to the Holders of Debt Securities, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607. Nothing herein contained shall be deemed to authorize the Trustee for the Debt Securities of any series to authorize or consent to or accept or adopt on behalf of any Holder of a Debt Security any plan of reorganization, arrangement, adjustment or composition affecting the Debt Securities of such series or the rights of any Holder thereof, or to authorize the Trustee for the Debt Securities of any series to vote in respect of the claim of any Holder in any such proceeding, except as aforesaid, for the election of a trustee in bankruptcy or other person performing similar functions. SECTION 505. Trustee May Enforce Claims Without Possession of Debt Securities. All rights of action and claims under this Indenture or the Debt Securities of any series may be prosecuted and enforced by the Trustee for the Debt Securities of any series without the possession of any of the Debt Securities of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607, be for the ratable benefit of the Holders of the Debt Securities of such series in respect of which such judgment has been recovered. 42 35 SECTION 506. Application of Money Collected. Any money collected by the Trustee for the Debt Securities of any series pursuant to this Article with respect to the Debt Securities of such series shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Debt Securities of such series and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: First: To the payment of all amounts due such Trustee under Section 607; Second: To the payment of the amounts then due and unpaid upon the Debt Securities of such series for principal of (and premium, if any) and interest, if any, on such Debt Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Debt Securities for principal (and premium, if any) and interest, if any, respectively; and Third: The balance, if any, to the Person or Persons entitled thereto. SECTION 507. Limitation on Suits. No Holder of any Debt Security of any particular series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (1) an Event of Default with respect to that series shall have occurred and be continuing and such Holder shall have previously given written notice to the Trustee for the Debt Securities of such series of such default and the continuance thereof; (2) the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of that series shall have made written request to the Trustee for the Debt Securities of such series to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to such Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) such Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and 43 36 (5) no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Debt Securities of that series; it being understood and intended that no Holder or Holders of Debt Securities of that series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Debt Securities of that series, or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of Debt Securities of that series. SECTION 508. Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any. Notwithstanding any other provision in this Indenture, the Holder of any Debt Security shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Debt Security on the respective Stated Maturities expressed in such Debt Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder. SECTION 509. Restoration of Rights and Remedies. If the Trustee for the Debt Securities of any series or any Holder of a Debt Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Trustee or to such Holder, then and in every such case the Company, such Trustee and the Holders of Debt Securities shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Trustee and such Holders shall continue as though no such proceeding had been instituted. SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the Debt Securities of any series or to the Holders of Debt Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy 44 37 hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 511. Delay or Omission Not Waiver. No delay or omission of the Trustee for the Debt Securities of any series or of any Holder of any Debt Security of such series to exercise any right or remedy accruing upon any Event of Default with respect to the Debt Securities of such series shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to such Trustee for the Debt Securities of any series or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by the Holders, as the case may be. SECTION 512. Control by Holders. The Holders of a majority in principal amount of the Outstanding Debt Securities of any particular series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Debt Securities of such series with respect to the Debt Securities of that series or exercising any trust or power conferred on such Trustee with respect to such Debt Securities, provided that: (1) such direction shall not be in conflict with any rule of law or with this Indenture; and (2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Debt Securities of any particular series may on behalf of the Holders of all the Debt Securities of that series waive any past default hereunder with respect to that series and its consequences, except: (1) a default in the payment of the principal of (or premium, if any) or interest, if any, on any Debt Security of that series; or (2) a default with respect to a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Debt Security of that series affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. 45 38 SECTION 514. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law, wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for any series of Debt Securities, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default with respect to the Debt Securities of any series for which the Trustee is serving as such, (1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and (2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to such Trustee, such Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to a series of Debt Securities has occurred and is continuing, the Trustee for the Debt Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee for Debt Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that no provision of 46 39 this Indenture shall require the Trustee for any series of Debt Securities to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Debt Securities shall be subject to the provisions of this Section. SECTION 602. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to Debt Securities of any particular series, the Trustee for the Debt Securities of such series shall give to Holders of Debt Securities of that series, in the manner set forth in Section 106, notice of such default known to such Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Debt Security of that series, or in the deposit of any sinking fund payment with respect to Debt Securities of that series, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Debt Securities of that series; and provided, further, that in the case of any default of the character specified in Section 501(3) with respect to Debt Securities of that series no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Debt Securities of that series. SECTION 603. Certain Rights of Trustee. Except as otherwise provided in Section 601: (a) the Trustee for any series of Debt Securities may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or 47 40 Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) such Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Debt Securities of any series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee security or indemnity reasonably satisfactory to such Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters at it may see fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and (g) such Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and such Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities. The recitals contained herein and in the Debt Securities, except the Trustee's certificates of authentication thereof, shall be taken as the statements of the Company, and neither the Trustee for any series of Debt Securities, nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Debt Securities makes no representations as to the validity or sufficiency of this Indenture or of the Debt Securities 48 41 of any series. Neither the Trustee for any series of Debt Securities nor any Authenticating Agent shall be accountable for the use or application by the Company of Debt Securities or the proceeds thereof. SECTION 605. May Hold Debt Securities. The Trustee for any series of Debt Securities, any Authenticating Agent, Paying Agent, Debt Security Registrar or any other agent of the Company or such Trustee, in its individual or any other capacity, may become the owner or pledgee of Debt Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Debt Security Registrar or other agent. SECTION 606. Money Held in Trust. Money held by the Trustee for any series of Debt Securities in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee for any series of Debt Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company. SECTION 607. Compensation and Reimbursement. The Company agrees: (1) to pay to the Trustee for any series of Debt Securities from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee for any series of Debt Securities upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify such Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. As security for the performance of the obligations of the Company under this Section the Trustee for any series of Debt 49 42 Securities shall have a lien prior to the Debt Securities upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on any particular series Debt Securities. Such lien shall survive satisfaction and discharge of this Indenture. SECTION 608. Disqualification; Conflicting Interests. The Trustee for any series of Debt Securities shall be subject to and comply with the provisions of Section 310(b) of the Trust Indenture Act during the period of time required thereby. Nothing herein shall prevent the Trustee for any series of Debt Securities from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In determining whether the Trustee for any series of Debt Securities has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act, the Debt Securities of any other series of Debt Securities shall be excluded. SECTION 609. Corporate Trustee Required, Different Trustees for Different Series; Eligibility. There shall at all times be a Trustee hereunder for the Debt Securities of each series which satisfies the requirements of Trust Indenture Act Sections 310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by Federal, State or District of Columbia authority. A different Trustee may be appointed by the Company for each series of Debt Securities prior to the issuance of such Debt Securities. If the initial Trustee for any series of Debt Securities is to be other than The Fifth Third Bank, the Company and such Trustee shall, prior to the issuance of such Debt Securities, execute and deliver an indenture supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the Debt Securities of such series and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. If at any time the Trustee for the Debt Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. 50 43 SECTION 610. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee for the Debt Securities of any series and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611. (b) The Trustee for the Debt Securities of any series may resign at any time with respect to the Debt Securities of such series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee for the Debt Securities of such series within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series. (c) The Trustee for the Debt Securities of any series may be removed at any time with respect to the Debt Securities of such series by Act of the Holders of a majority in principal amount of the Outstanding Debt Securities of such series, delivered to such Trustee and to the Company. (d) If at any time: (1) the Trustee for the Debt Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 608 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months unless the Trustee's duty to resign is stayed in accordance with Section 310(b) of the Trust Indenture Act, or (2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) such Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove such Trustee or (ii) any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee. 51 44 (e) If the Trustee for the Debt Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Debt Securities of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Debt Securities of such series and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Debt Securities of such series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Debt Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee for the Debt Securities of such series and supersede the successor Trustee appointed by the Company. If no successor Trustee for the Debt Securities of such series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, and if such Trustee is still incapable of acting, any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series. (f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each appointment of a successor Trustee with respect to the Debt Securities of any series in the manner and to the extent provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Debt Securities of that series and the address of its Corporate Trust Office. SECTION 611. Acceptance of Appointment by Successor. (a) Every such successor Trustee appointed hereunder with respect to the Debt Securities of any series shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject to the lien provided for in Section 607. 52 45 (b) In case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Debt Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and each Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in Subsections (a) or (b) of this Section, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee for the Debt Securities of any series shall be qualified and eligible under this Article. (e) Notwithstanding replacement of the Trustee pursuant to Section 610, the Company's obligations under Section 607 shall continue for the benefit of the retiring Trustee with respect to expenses, losses and liabilities incurred by it prior to such replacement. 53 46 SECTION 612. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee or the Authenticating Agent, as the case may be, for the Debt Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee or such Authenticating Agent, as the case may be, shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of such Trustee or such Authenticating Agent, as the case may be, hereunder, provided such successor corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto or the Trustee, the Authenticating Agent or their respective successor corporations. In case any Debt Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Debt Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Debt Securities. SECTION 613. Preferential Collection of Claims Against Company. The Trustee for any particular series of Debt Securities shall comply with Section 311(a) of the Trust Indenture Act for that particular series of Debt Securities, excluding any creditor relationship listed in Section 311(b) of that Act. If the Trustee for any particular series of Debt Securities shall resign or be removed as Trustee for that particular series of Debt Securities, it shall be subject to Section 311(a) of the Trust Indenture Act to the extent provided therein. SECTION 614. Authenticating Agents. From time to time the Trustee for the Debt Securities of any series may, subject to its sole discretion, appoint one or more Authenticating Agents with respect to the Debt Securities of such series, which may include the Company or any Affiliate of the Company, with power to act on the Trustee's behalf and subject to its discretion in the authentication and delivery of Debt Securities of such series in connection with transfers and exchanges hereunder, including but not limited to those pursuant to Sections 304, 305, 306 and 1107, as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Debt Securities of such series. For all purposes of this Indenture, the authentication and delivery of Debt Securities of such series by an Authenticating Agent for such Debt Securities pursuant to this Section shall be deemed to be authentication and 54 47 delivery of such Debt Securities "by the Trustee" for the Debt Securities of such series. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal, State or District of Columbia authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or the requirements of such supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Debt Securities shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. Any Authenticating Agent for any series of Debt Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Debt Securities may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company in the manner set forth in Section 105. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent for any series of Debt Securities shall cease to be eligible under this Section, the Trustee for such series may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Debt Securities of such series in the manner set forth in Section 106. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Trustee for the Debt Securities of each series agrees to pay to any Authenticating Agent for such series from time to time reasonable compensation for its services, and such Trustee shall be entitled to be reimbursed for such payments, subject to Section 607. If an appointment with respect to one or more series of Debt Securities is made pursuant to this Section, the Debt Securities of such series may have endorsed thereon, in addition to the Trustee's certification of authentication, an alternate certificate of authentication in the following form: 55 48 "This is one of the Debt Securities, of the series designated herein, described in the within-mentioned Indenture. __________________________________ By:_______________________ As Authenticating Agent By:_______________________ Authorized Officer" ARTICLE SEVEN HOLDERS' REPORTS BY TRUSTEE AND COMPANY SECTION 701. Preservation of Information; Company to Furnish Trustee Names and Addresses of Holders. The Trustee for any particular series of Debt Securities shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of the Debt Securities of that series. Neither the Company nor such Trustee shall be under any responsibility with regard to the accuracy of such list. With respect to each series of Debt Securities, the Company, in furnishing information regarding such Holders to such Trustee, and such Trustee, will satisfy the requirements imposed upon each of them by Section 312(a) of the Trust Indenture Act. SECTION 702. Communications to Holders. Holders of any particular series of Debt Securities may communicate with other Holders of Debt Securities of that series with respect to their rights under this Indenture or under such series of Debt Securities pursuant to Section 312(b) of the Trust Indenture Act. The Company and the Trustee for any particular series of Debt Securities and any and all other Persons benefitted by this Indenture shall have the protection afforded by Section 312(c) of the Trust Indenture Act. SECTION 703. Reports by Trustee. Within 60 days after November 15 of each year commencing with the year following the first issuance of Debt Securities, the Trustee for the Debt Securities of each series shall transmit by mail to all Holders of the Debt Securities of such series a brief report dated as of such date that complies with Section 313(a) of the Trust Indenture Act, but only if such report is required in any year under such Section 313(a) of the Trust Indenture Act. With respect to each series of Debt 56 49 Securities, the Trustee shall also comply with Sections 313(b) and 313(c) of the Trust Indenture Act. At any time a report is mailed to the Holders of any particular series of Debt Securities, a copy of such report shall be filed with the Commission and with each securities exchange, if any, on which the Debt Securities of such series are listed. With respect to each series of Debt Securities, the Company will notify the applicable Trustee when such series of Debt Securities is listed on any securities exchange. SECTION 704. Reports by Company. The Company shall file such annual and/or periodic reports and certificates with the Trustees for each series of Debt Securities and/or with the Commission and/or with the Holders of each series of Debt Securities as are required by the provisions of Section 314(a) of the Trust Indenture Act. ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other corporation or sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of its properties and assets as an entirety to any Person unless: (1) either (i) the Company shall be the continuing corporation or (ii) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, conveyance, transfer, lease or disposition all or substantially all of the properties and assets of the Company as an entirety (x) shall be a corporation, partnership or trust organized and validly existing under the laws of the United States or any State thereof or the District of Columbia and (y) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Debt Securities and the performance and observance of every covenant of this Indenture on the part of the Company to be performed or observed; (2) immediately after giving effect to such transaction (and treating any Indebtedness not previously an obligation of the Company or a Subsidiary which becomes the obligation of the Company or any of its Subsidiaries in 57 50 connection with or as a result of such transaction as having been incurred at the time of such transaction), no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; (3) such other conditions, if any, as may be set forth in the Board Resolution establishing the Debt Securities of that particular series are met or complied with; and (4) the Company has delivered to the Trustee for each series of Debt Securities an Officers' Certificate and an Opinion of Counsel each stating that such consolidation, merger, sale, assignment, conveyance, transfer, lease or disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. SECTION 802. Successor Corporation Substituted. Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company herein and thereafter the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Debt Securities and, in the event of any such consolidation, merger, conveyance or transfer, the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up, or liquidated. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders of Debt Securities, the Company, when authorized by a Board Resolution, and the Trustee for the Debt Securities of any or all series, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes: (1) to evidence the succession of another corporation to the Company, and the assumption by any such successor of 58 51 the covenants of the Company herein and in the Debt Securities contained; or (2) to add to the covenants of the Company, for the benefit of the Holders of all or any particular series of Debt Securities (and, if such covenants are to be for the benefit of fewer than all series of Debt Securities, stating that such covenants are being included solely for the benefit of such series), or to surrender any right or power herein conferred upon the Company; or (3) to add any additional Events of Default with respect to any or all series of Debt Securities (and, if any such Event of Default applies to fewer than all series of Debt Securities, stating each series to which such Event of Default applies); or (4) to add to, change or eliminate any of the provisions of this Indenture, provided, however, that any such addition, change or elimination shall become effective only when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision and as to which such supplemental indenture would apply; or (5) to evidence and provide for the acceptance of appointment hereunder of a Trustee other than The Fifth Third Bank as Trustee for a series of Debt Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609; or (6) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or (7) to establish the conditions, limitations and restrictions on the authorized amount, form, terms or purposes of issue, authentication and delivery of Debt Securities, as herein set forth, and other conditions, limitations and restrictions thereafter to be observed; or (8) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the satisfaction and discharge of any series of Debt Securities pursuant to Section 401; provided, however, that any such action shall not adversely affect the interests of the Holders of Debt Securities of such series 59 52 or any other series of Debt Securities in any material respect; or (9) to add to or change or eliminate any provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act; or (10) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, to convey, transfer, assign, mortgage or pledge any property to or with the Trustee for the Debt Securities of any series or to surrender any right or power herein conferred upon the Company, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Debt Securities of any particular series in any material respect. SECTION 902. Supplemental Indentures With Consent of Holders. The Company, when authorized by a Board Resolution, and the Trustee for the Debt Securities of any or all series may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of such Debt Securities under this Indenture, but only with the consent of the Holders of more than 50% in aggregate principal amount of the Outstanding Debt Securities of each series of Debt Securities then Outstanding affected thereby, in each case by Act of said Holders of Debt Securities of each such series delivered to the Company and the Trustee for Debt Securities of each such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Debt Security affected thereby: (1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Debt Security, or reduce the principal amount thereof or the rate of interest thereon, if any, or any premium payable upon the redemption thereof, or reduce the amount of the principal of a Discounted Debt Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change the Place of Payment, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or (2) reduce the percentage in principal amount of the Outstanding Debt Securities of any particular series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is 60 53 required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or (3) modify any of the provisions of this Section or Section 513 or 1008, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Debt Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of a Debt Security with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1008, or the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(6) and 901(7). A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Debt Securities, or which modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of any other series. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Debt Securities shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee for any series of Debt Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee's own rights, liabilities, duties or immunities under this Indenture or otherwise. SECTION 904. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Debt Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. 61 54 SECTION 905. Conformity With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 906. Reference in Debt Securities to Supplemental Indentures. Debt Securities of any particular series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee for the Debt Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Debt Securities of any series so modified as to conform, in the opinion of the Trustee for the Debt Securities of such series and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by such Trustee in exchange for Outstanding Debt Securities of such series. ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal (and Premium, if any) and Interest, if any. The Company agrees, for the benefit of each particular series of Debt Securities, that it will duly and punctually pay (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series) the principal of (and premium, if any) and interest, if any, on that series of Debt Securities in accordance with the terms of the Debt Securities of such series and this Indenture. SECTION 1002. Maintenance of Office or Agency. The Company will maintain in each Place of Payment for a series of Debt Securities an office or agency where Debt Securities of that series may be presented or surrendered for payment, where Debt Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Debt Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee for the Debt Securities of that series of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Debt Securities or shall fail to furnish the Trustee for the Debt Securities of that series with the address thereof, such presentations (to the extent permitted 62 55 by law) and surrenders of Debt Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of such Trustee, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Debt Securities of one or more series may be presented or surrendered for any or all of the purposes specified above in this Section and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purpose. The Company will give prompt written notice to the Trustee for the Debt Securities of each series so affected of any such designation or rescission and of any change in the location of any such office or agency. SECTION 1003. Money for Debt Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any particular series of Debt Securities, it will, on or not more than one Business Day before each due date of the principal of (and premium, if any) or interest, if any, on any of the Debt Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum (except as otherwise specified pursuant to Section 301 for the Debt Securities of such series) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee for the Debt Securities of such series of its action or failure so to act. Whenever the Company shall have one or more Paying Agents for any particular series of Debt Securities, it will, prior to each due date of the principal of (and premium, if any) or interest, if any, on any such Debt Securities, deposit with a Paying Agent for the Debt Securities of such series a sum sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee for the Debt Securities of such series) the Company will promptly notify such Trustee of its action or failure so to act. The Company will cause each Paying Agent for any particular series of Debt Securities other than the Trustee for the Debt Securities of such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will: 63 56 (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Debt Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give such Trustee notice of any default by the Company in the making of any payment of principal (or premium, if any) and interest, if any, on Debt Securities of that series; (3) at any time during the continuation of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent; and (4) acknowledge, accept and agree to comply in all respects with the provisions of this Indenture relating to the duties, rights and disabilities of such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Debt Securities of any series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee for the Debt Securities of any series or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) and interest, if any, on any Debt Security of any particular series and remaining unclaimed for two years after such principal (and premium, if any) and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, abandoned or unclaimed property law, be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trusts; and the Holder of such Debt Security shall, thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that such Trustee or such Paying Agent, before being required to make any such repayment may mail written notice to each such Holder of such Debt Security in the manner set forth in Section 106, or may, in its discretion, in the name and at the expense of the Company, cause to be published at least once in a newspaper published in the English language customarily on each Business Day and of general circulation in the Borough of Manhattan, the City of New York, notice, that such money remains 64 57 unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, abandoned or unclaimed property law, be repaid to the Company. SECTION 1004. Payment of Taxes and Other Claims. The Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon it or upon its income, profits or property, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon its property; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings. SECTION 1005. Maintenance of Properties. The Company shall cause all its properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent the Company from discontinuing the operation and maintenance of any of its properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business and not disadvantageous in any material respect to the Holders. SECTION 1006. Statements as to Compliance. (a) The Company shall deliver to the Trustee for each series of Debt Securities, within 120 days after the end of each fiscal year, a written statement signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President and by the Treasurer, a Deputy Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of the Company, stating, as to each signer thereof, that: (1) a review of the activities of the Company during such year and of performance under this Indenture has been made under his supervision; and (2) to the best of his knowledge, based on such review, the Company is not in default in the fulfillment of any of its obligations under this Indenture with respect to 65 58 the Debt Securities of such series, or specifying each such default known to him and the nature and status thereof. For purposes of this Subsection, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. (b) When any event has occurred and is continuing which is, or after the giving of notice or lapse of time or both would become, an Event of Default, or if the Trustee or any Holder of Debt Securities of any series or the trustee for or the holder of any other evidence of Indebtedness of the Company or any Subsidiary gives any notice or takes any other action with respect to a claimed default (other than with respect to Indebtedness in the principal amount of less than $10,000,000), the Company shall deliver to the Trustee by registered or certified mail or by telegram, telex or facsimile transmission followed by hard copy by registered or certified mail an Officers' Certificate specifying such event, notice or other action within five Business Days of its occurrence. SECTION 1007. Corporate Existence. Subject to Article Eight, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders; and provided, further, however, that the foregoing shall not prohibit a sale, transfer or conveyance of a Subsidiary or any of its assets in compliance with the terms of this Indenture. SECTION 1008. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004 to 1007, inclusive, or set forth in any Board Resolution establishing the Debt Securities of a series, if before or after the time for such compliance the Holders of more than 50% in principal amount of the Outstanding Debt Securities of each series of Debt Securities affected by the omission shall, in each case by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee for the Debt Securities of each series with respect to any such covenant or condition shall remain in full force and effect. 66 59 ARTICLE ELEVEN REDEMPTION OF DEBT SECURITIES SECTION 1101. Applicability of This Article. Redemption of Debt Securities of any series (whether by operation of a sinking fund or otherwise) as permitted or required by any form of Debt Security issued pursuant to this Indenture shall be made in accordance with such form of Debt Security and this Article; provided, however, that if any provision of any such form of Debt Security shall conflict with any provision of this Article, the provision of such form of Debt Security shall govern. SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Debt Securities of any series shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Debt Securities of any particular series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee for the Debt Securities of such series) notify such Trustee by Company Request of such Redemption Date and of the principal amount of Debt Securities of that series to be redeemed and shall deliver to such Trustee such documentation and records as shall enable such Trustee to select the Debt Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Debt Securities of any series prior to the expiration of any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, the Company shall furnish the Trustee for Debt Securities of such series with an Officers' Certificate evidencing compliance with such restriction. SECTION 1103. Selection by Trustee of Debt Securities to Be Redeemed. If less than all the Debt Securities are to be redeemed, the Company may select the series to be redeemed, and if less than all the Debt Securities of any series are to be redeemed, the particular Debt Securities of that series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee for the Debt Securities of such series, from the Outstanding Debt Securities of that series not previously called for redemption, by such method as such Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Debt Securities of that series, or any integral multiple thereof) of the principal amount of Debt Securities of that series of a denomination larger than the 67 60 minimum authorized denomination for Debt Securities of that series pursuant to Section 302. The Trustee for the Debt Securities of any series to be redeemed shall promptly notify the Company in writing of the Debt Securities of such series selected for redemption and, in the case of any Debt Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Debt Securities shall relate, in the case of any Debt Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Debt Securities which has been or is to be redeemed. SECTION 1104. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 106 not later than the thirtieth day and not earlier than the sixtieth day prior to the Redemption Date, to each Holder of Debt Securities to be redeemed. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all Outstanding Debt Securities of a particular series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Debt Securities to be redeemed, (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Debt Security or portion thereof, and that interest thereon, if any, shall cease to accrue on and after said date, (5) the place or places where such Debt Securities, are to be surrendered for payment of the Redemption Price, and (6) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Debt Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee for such Debt Securities in the name and at the expense of the Company. 68 61 SECTION 1105. Deposit of Redemption Price. Prior to the opening of business on any Redemption Date, the Company shall deposit with the Trustee for the Debt Securities to be redeemed or with a Paying Agent for such Debt Securities (or, if the Company is acting as its own Paying Agent for such Debt Securities, segregate and hold in trust as provided in Section 1003) an amount of money (except as otherwise specified pursuant to Section 301 for the Debt Securities of such Series) sufficient to pay the principal amount of (and premium, if any, thereon), and (except if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all the Debt Securities which are to be redeemed on that date. SECTION 1106. Debt Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Debt Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified (except as otherwise provided pursuant to Section 301 for the Debt Securities of such series) and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Debt Securities shall cease to bear interest. Upon surrender of such Debt Security for redemption in accordance with said notice, such Debt Security or specified portions thereof shall be paid by the Company at the Redemption Price; provided, however, that unless otherwise specified as contemplated by Section 301, installments of interest on Debt Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor Debt Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307. If any Debt Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Redemption Date at a rate per annum equal to the rate borne by the Debt Security (or, in the case of Discounted Debt Securities, the Debt Security's Yield to Maturity). SECTION 1107. Debt Securities Redeemed in Part. Any Debt Security which is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee for such Debt Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Debt Security Registrar for such Debt Security duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute and such Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge, a new Debt Security or Debt Securities, of any authorized denomination as 69 62 requested by such Holder, of the same series and having the same terms and provisions and in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered. ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of This Article. Redemption of Debt Securities through operation of a sinking fund as permitted or required by any form of Debt Security issued pursuant to this Indenture shall be made in accordance with such form of Debt Security and this Article; provided, however, that if any provision of any such form of Debt Security shall conflict with any provision of this Article, the provision of such form of Debt Security shall govern. The minimum amount of any sinking fund payment provided for by the terms of Debt Securities of any particular series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Debt Securities of any particular series is herein referred to as an "optional sinking fund payment". If provided for by the terms of Debt Securities of any particular series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Debt Securities of any particular series as provided for by the terms of Debt Securities of that series. SECTION 1202. Satisfaction of Sinking Fund Payments With Debt Securities. The Company (1) may deliver Outstanding Debt Securities of a series (other than any previously called for redemption), and (2) may apply as a credit Debt Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Debt Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Debt Securities of such series required to be made pursuant to the terms of such Debt Securities as provided for by the terms of such series; provided, however, that such Debt Securities have not been previously so credited. Such Debt Securities shall be received and credited for such purpose by the Trustee for such Debt Securities at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly. 70 63 SECTION 1203. Redemption of Debt Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any particular series of Debt Securities, the Company will deliver to the Trustee for the Debt Securities of such series an Officers' Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash (except as otherwise specified pursuant to Section 301 for the Debt Securities of that series) and the portion thereof, if any, which is to be satisfied by delivering and crediting Debt Securities of that series pursuant to Section 1202 and shall state the basis for such credit and that such Debt Securities have not previously been so credited and will also deliver to such Trustee any Debt Securities to be so delivered. Such Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107. * * * This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated as of February 15, 1994 to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the 15TH day of FEBRUARY, 1994. CHIQUITA BRANDS INTERNATIONAL, INC. [SEAL] By/S/ WILLIAM TSACALIS ___________________________________ Title:Vice President and Controller Attest:[No Signature] 71 64 THE FIFTH THIRD BANK, Trustee [SEAL] By/S/ KERRY BYRN ____________________________ Title: Senior Trust Officer Attest:[Signature] 72 STATE OF OHIO ) ) ss.: COUNTY OF HAMILTON ) On the 11TH day of FEBRUARY, 1994, before me personally came WILLIAM TSACALIS, to me known, who, being by me duly sworn, did depose and say that he resides at 8700 HOPEWELL ROAD, CINCINNATI, OH 45243; that he is a VICE PRESIDENT AND CONTROLLER of CHIQUITA BRANDS INTERNATIONAL, INC., one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that one of the seals affixed to the said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. BARBARA M. HOWLAND _____________________ Notary Public Commission Expires_______ [BARBARA M.HOWLAND Notary Public, State of Ohio My Commission Expires July 19, 1996] [SEAL] 73 STATE OF OHIO ) ) ss.: COUNTY OF HAMILTON ) On the 11TH day of FEBRUARY, 1994, before me personally came KERRY BYRNE, to me known, who, being by me duly sworn, did depose and say that he resides at 239 COURT STREET, CINTI., OHIO, that he is a SENIOR TRUST OFFICER of THE FIFTH THIRD BANK, one of the corporations described in and which executed the above instrument, that he knows the corporate seal of said corporation; that one of the seals affixed to the said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. BRIAN J. GARDNER ______________________________ Notary Public, Commission Expires____________ [BRIAN J.GARDNER Notary Public, State of Ohio My Commission Expires April 12, 1995] [SEAL] EX-5 4 EXHIBIT 5 1 EXHIBITS 5 AND 23(B) ROBERT W. OLSON, ESQ. VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY CHIQUITA BRANDS INTERNATIONAL, INC. 250 EAST FIFTH STREET CINCINNATI, OHIO 45202 February 7, 1996 Chiquita Brands International, Inc. 250 East Fifth Street Cincinnati, OH 45202 Dear Sirs: I have acted as counsel to Chiquita Brands International, Inc. ("Chiquita") in connection with a Registration Statement on Form S-3, filed with the Securities and Exchange Commission on February 7, 1996 (the "Registration Statement"), registering an aggregate of $418,750,000 of Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Securities Warrants (collectively, "Securities") which may be issued and sold by Chiquita pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Act"). The Registration Statement also constitutes Post-Effective Amendment No. 1 to a Registration Statement on Form S-3 (No. 33-51995) previously filed by the Company and declared effective on January 28, 1994. Pursuant to Rule 429 of the rules and regulations of the Commission under the Act, the prospectus contained in the Registration Statement is a combined prospectus that also relates to an additional $81,250,000 of Securities unsold under Registration Statement No. 33-51995. In connection with my opinion set forth below, I have examined such records and documents and have made such investigations of law and fact as I have deemed necessary. Capitalized terms used herein and not otherwise defined herein are as defined in the Registration Statement. Based upon the foregoing, it is my opinion that the issuance by the Company of the Securities has been duly authorized by Chiquita and, in the case of an issuance of Subordinated Debt Securities, Depositary Shares or Securities Warrants, when the indenture, deposit agreement or securities warrant agreement, as the case may be, relating to such Securities, substantially in the form attached to or incorporated by reference into the Registration Statement, as amended or modified at such time, has been duly executed and delivered and, in the case of any issuance of any Securities, when the terms of each specific issuance of Securities have been approved and authorized, and when the Securities of such issuance have been duly executed by Chiquita and authenticated as required by the terms of those particular Securities, and duly paid for and delivered pursuant to a sale in the manner described in the Registration Statement, including the prospectus and any prospectus supplement related to such issuance, (i) the Debt Securities or the Depositary Shares or the Securities Warrants will be duly authorized and will be valid and binding obligations of Chiquita enforceable in accordance with, and subject to, their terms and the terms of the applicable indenture, deposit agreement or securities warrant agreement, in each case except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws relating to or affecting creditors' rights and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (ii) the Common Stock or the Preferred Stock will be duly and validly issued, fully paid and non-assessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the caption "Legal Matters" in the prospectus forming a part of the Registration Statement. Very truly yours, /s/ ROBERT W. OLSON EX-12 5 EXHIBIT 12 1 EXHIBIT 12 CHIQUITA BRANDS INTERNATIONAL, INC. STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS (IN THOUSANDS, EXCEPT RATIO AMOUNTS)
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, ------------------- ----------------------------------------------------- 1995 1994 1994 1993 1992 1991 1990 -------- -------- -------- -------- --------- -------- -------- Earnings: Income (loss) from continuing operations before income taxes........................ $ 71,316 $ (673) $(70,811) $(39,081) $(216,708) $160,009 $153,531 Interest expense................ 123,793 125,558 167,464 169,789 155,036 88,406 55,361 Portion of rentals representing interest cost................ 34,651 33,223 45,097 58,499 85,810 74,070 66,247 Amortization of capitalized interest..................... 3,114 3,039 4,043 3,745 3,010 1,900 1,125 Undistributed share of income of less-than-fifty percent owned investees.................... (7,830) (1,652) (4,110) (1,429) (3,588) (4,352) (116) -------- -------- -------- -------- --------- -------- -------- $225,044 $159,495 $141,683 $191,523 $ 23,560 $320,033 $276,148 ======== ======== ======== ======== ========= ======== ======== Fixed Charges: Interest expense................ $123,793 $125,558 $167,464 $169,789 $ 155,036 $ 88,406 $ 55,361 Capitalized interest............ 500 3,200 3,900 8,000 21,400 23,000 8,000 Portion of rentals representing interest cost................ 34,651 33,223 45,097 58,499 85,810 74,070 66,247 -------- -------- -------- -------- --------- -------- -------- $158,944 $161,981 $216,461 $236,288 $ 262,246 $185,476 $129,608 ======== ======== ======== ======== ========= ======== ======== Ratio of earnings to fixed charges................. 1.42 (a) (a) (a) (a) 1.73 2.13 ======== ======== ======== Earnings.......................... $225,044 $159,495 $141,683 $191,523 $ 23,560 $320,033 $276,148 ======== ======== ======== ======== ========= ======== ======== Fixed charges................... $158,944 $161,981 $216,461 $236,288 $ 262,246 $185,476 $129,608 Preferred stock dividends....... 9,409 7,824 10,961 4,278 778 -- -- -------- -------- -------- -------- --------- -------- -------- $168,353 $169,805 $227,422 $240,566 $ 263,024 $185,476 $129,608 ======== ======== ======== ======== ========= ======== ======== Ratio of earnings to combined fixed charges and preferred stock dividends............... 1.34 (b) (b) (b) (b) 1.73 2.13 ======== ======== ========
- --------------- (a) Fixed charges exceeded earnings by $2,486 for the nine months ended September 30, 1994, $74,778 in 1994, $44,765 in 1993 and $238,686 in 1992. (b) Combined fixed charges and preferred stock dividends exceeded earnings by $10,310 for the nine months ended September 30, 1994, $85,739 in 1994, $49,043 in 1993 and $239,464 in 1992. EX-23.A 6 EXHIBIT 23(A) 1 EXHIBIT 23(A) CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement on Form S-3 and related Prospectus of Chiquita Brands International, Inc. for the registration of $500,000,000 of debt securities, preferred stock, depositary shares, common stock and securities warrants and to the incorporation by reference therein of our report dated February 27, 1995, except for Note 1 as to which the date is December 20, 1995, with respect to the consolidated financial statements and schedules of Chiquita Brands International, Inc. for the year ended December 31, 1994 included in its Form 8-K, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Cincinnati, Ohio February 7, 1996 EX-24 7 EXHIBIT 24 1 EXHIBIT 24 POWER OF ATTORNEY I appoint Fred J. Runk and William A. Tsacalis, or either of them, as my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3 Registration Statement registering $418,750,000 in Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Securities Warrants which may be offered and sold by Chiquita Brands International, Inc. (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended), (ii) to file such Registration Statements and amendments (with all exhibits and related documents) with the Securities and Exchange Commission and (iii) to do all other acts which the attorneys-in-fact may deem necessary and advisable to enable the corporation to comply with the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission in connection with that registration. Executed pursuant to the requirements of the Securities Act of 1933 on January 31, 1996 at Cincinnati, Ohio. /s/ CARL H. LINDNER -------------------------------------- Carl H. Lindner 2 POWER OF ATTORNEY I appoint Fred J. Runk and William A. Tsacalis, or either of them, as my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3 Registration Statement registering $418,750,000 in Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Securities Warrants which may be offered and sold by Chiquita Brands International, Inc. (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended), (ii) to file such Registration Statements and amendments (with all exhibits and related documents) with the Securities and Exchange Commission and (iii) to do all other acts which the attorneys-in-fact may deem necessary and advisable to enable the corporation to comply with the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission in connection with that registration. Executed pursuant to the requirements of the Securities Act of 1933 on January 29, 1996 at Cincinnati, Ohio. /s/ KEITH E. LINDNER -------------------------------------- Keith E. Lindner 3 POWER OF ATTORNEY I appoint Fred J. Runk and William A. Tsacalis, or either of them, as my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3 Registration Statement registering $418,750,000 in Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Securities Warrants which may be offered and sold by Chiquita Brands International, Inc. (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended), (ii) to file such Registration Statements and amendments (with all exhibits and related documents) with the Securities and Exchange Commission and (iii) to do all other acts which the attorneys-in-fact may deem necessary and advisable to enable the corporation to comply with the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission in connection with that registration. Executed pursuant to the requirements of the Securities Act of 1933 on February 1, 1996 at Cincinnati, Ohio. /s/ S. CRAIG LINDNER -------------------------------------- S. Craig Lindner 4 POWER OF ATTORNEY I appoint Fred J. Runk and William A. Tsacalis, or either of them, as my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3 Registration Statement registering $418,750,000 in Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Securities Warrants which may be offered and sold by Chiquita Brands International, Inc. (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended), (ii) to file such Registration Statements and amendments (with all exhibits and related documents) with the Securities and Exchange Commission and (iii) to do all other acts which the attorneys-in-fact may deem necessary and advisable to enable the corporation to comply with the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission in connection with that registration. Executed pursuant to the requirements of the Securities Act of 1933 on January 29, 1996 at Washington, D.C. /s/ JEAN H. SISCO -------------------------------------- Jean H. Sisco 5 POWER OF ATTORNEY I appoint Fred J. Runk and William A. Tsacalis, or either of them, as my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3 Registration Statement registering $418,750,000 in Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Securities Warrants which may be offered and sold by Chiquita Brands International, Inc. (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended), (ii) to file such Registration Statements and amendments (with all exhibits and related documents) with the Securities and Exchange Commission and (iii) to do all other acts which the attorneys-in-fact may deem necessary and advisable to enable the corporation to comply with the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission in connection with that registration. Executed pursuant to the requirements of the Securities Act of 1933 on January 29, 1996 at Indianapolis, Indiana. /s/ WILLIAM W. VERITY -------------------------------------- William W. Verity 6 POWER OF ATTORNEY I appoint Fred J. Runk and William A. Tsacalis, or either of them, as my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3 Registration Statement registering $418,750,000 in Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Securities Warrants which may be offered and sold by Chiquita Brands International, Inc. (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended), (ii) to file such Registration Statements and amendments (with all exhibits and related documents) with the Securities and Exchange Commission and (iii) to do all other acts which the attorneys-in-fact may deem necessary and advisable to enable the corporation to comply with the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission in connection with that registration. Executed pursuant to the requirements of the Securities Act of 1933 on January 29, 1996 at Cincinnati, Ohio. /s/ OLIVER W. WADDELL -------------------------------------- Oliver W. Waddell 7 POWER OF ATTORNEY I appoint Fred J. Runk and William A. Tsacalis, or either of them, as my attorneys-in-fact, with full power of substitution, (i) to sign a Form S-3 Registration Statement registering $418,750,000 in Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Securities Warrants which may be offered and sold by Chiquita Brands International, Inc. (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended), (ii) to file such Registration Statements and amendments (with all exhibits and related documents) with the Securities and Exchange Commission and (iii) to do all other acts which the attorneys-in-fact may deem necessary and advisable to enable the corporation to comply with the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission in connection with that registration. Executed pursuant to the requirements of the Securities Act of 1933 on February 6, 1996 at Cincinnati, Ohio. /s/ STEVEN G. WARSHAW -------------------------------------- Steven G. Warshaw EX-25.A 8 EXHIBIT 25(A) 1 Exhibit 25(a) FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____________ THE FIFTH THIRD BANK - ------------------------------------------------------------------------------- (Exact name of trustee as specified in its charter) Ohio - ------------------------------------------------------------------------------- (Jurisdiction of incorporation or organization if not a national bank) 31-0854433 - ------------------------------------------------------------------------------- (I.R.S. Employer Identification No.) 38 Fountain Square Plaza, Cincinnati, Ohio - ------------------------------------------------------------------------------- (Address of principal executive offices) 45263 - ------------------------------------------------------------------------------- (Zip Code) Paul L. Reynolds, 38 Fountain Square Plaza, Cincinnati, Ohio 45263 (513) 579-5300 - ------------------------------------------------------------------------------- (Name, address and telephone number of agent for service) CHIQUITA BRANDS INTERNATIONAL, INC. - ------------------------------------------------------------------------------- (Exact name of obligor as specified in its charter) New Jersey - ------------------------------------------------------------------------------- (State or other jurisdiction of incorporation or organization) 04-1923360 - ------------------------------------------------------------------------------- (I.R.S. Employer Identification No.) 250 East Fifth Street, Cincinnati, Ohio - ------------------------------------------------------------------------------- (Address of principal executive offices) 45202 - ------------------------------------------------------------------------------- (Zip Code) Senior Debt Securities - ------------------------------------------------------------------------------- (Title of the indenture securities) 2 Item 1. General information. Furnish the following information as to the trustee - (a) Name and address of each examining or supervising authority to which it is subject. Ohio Superintendent of Banks State Office Tower 30 E. Broad Street Columbus, Ohio 43215 Federal Reserve Bank of Cleveland East Sixth Street and Superior Avenue Cleveland, Ohio 44101 Federal Deposit Insurance Corporation, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 3. Voting securities of the trustee.(1) Furnish the following information as to each class of voting securities of the trustee: ____________________ (1) All of the outstanding voting securities of the trustee are owned by Fifth Third Bancorp, an Ohio corporation. Answers to the following items herein concerning voting securities of the trustee owned by third parties relate to outstanding voting securities of Fifth Third Bancorp. As of December 31, 1995, there were 66,948,664 shares of no par value common stock of Fifth Third Bancorp outstanding. Answers to all other items of this statement of eligibility on Form T-1 relate to the Trustee only, and do not contain information regarding Fifth Third Bancorp or other subsidiaries of Fifth Third Bancorp. 2 3 As of December 31, 1995 Col. A. Col. B Title of Class Amount Outstanding -------------- ------------------ Capital Stock, par value 32,000 $2,200.00 per share Item 4. Trusteeships under other indentures. If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, furnish the following information: (a) Title of the securities outstanding under each such other indenture. 95/8% Senior Notes due 2004. 91/8% Senior Notes due 2004. (b) A brief statement of the facts relied upon as a basis for the claim that no conflicting interest within the meaning of Section 310(b)(1) of the Act arises as a result of the trusteeship under any such other indenture, including a statement as to how the indenture securities will rank as compared with the securities issued under such other indenture. There is no default under the indenture for either series of Senior Notes of which the Trustee has knowledge; therefore, the Trustee is aware of no facts which could provide a basis for a claim of conflicting interest. The securities will rank pari passu with the 95/8% Senior Notes and the 91/8% Senior Notes. Item 5. Interlocking directorates and similar relationships with the obligor or underwriters. If the trustee or any of the directors or executive officers of the trustee is a director, officer, partner, employee, appointee, or representative of the obligor or of any underwriter for the obligor, identify each such person having any such connection and state the nature of each such connection. None, with respect to the obligor. Because the underwriters have not yet been selected by the obligor, the trustee cannot ascertain whether any interlocking directorates and similar relationships exist with respect to underwriters. 3 4 Item 6. Voting securities of the trustee owned by the obligor or its officials. Furnish the following information as to the voting securities of the trustee owned beneficially by the obligor and each director, partner and executive officer of the obligor. As of December 31, 1995 Col. D Percentage of voting Col. A Col. B Col. C. securities represented Name of Title Amount owned by amount given in Owner of Class beneficially Col. C - ------- -------- ------------ ---------------------- None, so far as is known to the trustee. Item 7. Voting securities of the trustee owned by underwriters or their officials. Furnish the following information as to the voting securities of the trustee owned beneficially by each underwriter for the obligor and each director, partner, and executive officer of each such underwriter. As of December 31, 1995 Col. D Percentage of voting Col. A Col. B Col. C. securities represented Name of Title Amount owned by amount given in Owner of Class beneficially Col. C - ------- -------- ------------ ---------------------- Because the underwriters have not yet been selected by the obligor, the trustee cannot ascertain whether any underwriters own any voting securities of the trustee. Item 8. Securities of the obligor owned or held by the trustee. Furnish the following information as to securities of the obligor owned beneficially or held as collateral security for obligations in default by the trustee. 4 5 As of December 31, 1995 Col. C Col. B Amount owned Whether the beneficially Col. D securities are or held as Percent of Class Col. A voting or collateral security represented by Title of non-voting for obligations amount given in Class securities in default Col. C - -------- -------------- ------------------- ---------------- None. Item 9. Securities of underwriters owned or held by the trustee. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of an underwriter for the obligor, furnish the following information as to which class of securities of such underwriter any of which are so owned or held by the trustee. As of December 31, 1995 Col. D Col. C Percent Amount owned of Class Col. A beneficially or held represented Title of Col. B as collateral security by amount issuer and Amount for obligations in given in title of class outstanding default by trustee Col. C. - -------------- ----------- ---------------------- ----------- Because the underwriters have not yet been selected by the obligor, the trustee cannot ascertain whether it owns any voting securities of the underwriters. Item 10. Ownership or holdings by the trustee of voting securities of certain affiliates or security holders of the obligor. If the trustee owns beneficially or holds as collateral security for obligations in default voting securities of a person who, to the knowledge of the trustee (1) owns 10 percent or more of the voting securities of the obligor or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the following information as to the voting securities of such person. 5 6 As of December 31, 1995 Col. D Col. C Percent Amount owned of Class Col. A beneficially or held represented Title of Col. B as collateral security by amount issuer and Amount for obligations in given in title of class outstanding default by trustee Col. C. - -------------- ----------- ---------------------- ----------- None, so far as is known to the trustee. Item 11. Ownership or holdings by the trustee of any securities of a person owning 50 percent or more of the voting securities of the obligor. If the trustee owns beneficially or holds as collateral security for obligations in default any securities of a person who, to the knowledge of the trustee, owns 50 percent or more of the voting securities of the obligor, furnish the following information as to each class of securities of such person any of which are so owned or held by the trustee. As of December 31, 1995 Col. D Col. C Percent Amount owned of Class Col. A beneficially or held represented Title of Col. B as collateral security by amount issuer and Amount for obligations in given in title of class outstanding default by trustee Col. C. - -------------- ----------- ---------------------- ----------- None, so far as is known to the trustee. Item 12. Indebtedness of the Obligor to the Trustee Except as noted in the instructions, if the obligor is indebted to the Trustee, furnish the following information: Col. A Col. B Nature of Amount Col. C Indebtedness Outstanding Date Due - ------------ ----------- -------- None. 6 7 Item 13. Defaults by the obligor. (a) State whether there is or has been a default with respect to the securities under this indenture. Explain the nature of any such default. None. (b) If the Trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, or is trustee for more than one outstanding series of securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default. None. Item 14. Affiliations with the Underwriters. If any underwriter is an affiliate of the Trustee, describe each such affiliation. Because the underwriters have not yet been selected by the obligor, the trustee cannot ascertain whether it has any affiliation with any underwriter. Item 15. Foreign Trustee. Identify the order or rule pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. Not applicable. Item 16. List of Exhibits. List below all exhibits filed as a part of this statement of eligibility. (Exhibits identified in parentheses, on file with the Commission, are incorporated herein by reference as exhibits hereto.) (1) A copy of the Certificate of Incorporation of the trustee as now in effect. (2) A copy of the certificate of authority of the trustee to commence business. (Included in Exhibit 1) (3) A copy of the authorization of the trustee to exercise corporate trust powers. 7 8 (4) A copy of the existing code of regulations of the trustee incorporating amendments to date. (5) A copy of each indenture referred to in Item 4. (Incorporated by reference from Exhibit 26 to From S-3 Registration Statement No. 33-43946 filed by Chiquita Brands International, Inc.) (6) The consent of the trustee required by Section 321 (b) of the Trust Indenture Act of 1939. (7) A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. (8) A copy of any order pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. (9) Foreign trustees are required to file a consent to service of process of Form F-X 8 9 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee, The Fifth Third Bank, a corporation organized and existing under the laws of the State of Ohio, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Cincinnati and the State of Ohio, on the 30th day of January, 1996. THE FIFTH THIRD BANK By /s/ Kerry R. Byrne ------------------------------ Kerry R. Byrne, Vice President and Trust Officer 9 10 EXHIBIT 1 CERTIFICATE OF INCORPORATION OF THE TRUSTEE AS NOW IN EFFECT [See Attached] 10 11 CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION OF THE FIFTH THIRD BANK George A. Schaefer, Jr., President and Phillip C. Long, Secretary to The Fifth Third Bank, an Ohio banking corporation, with its principal office located at Cincinnati, Hamilton County, Ohio, do hereby certify that a duly called meeting of the Board of Directors held on May 18, 1993, at which a quorum was present and at a special meeting of the shareholder on May 18, 1993, the following resolution to amend the Third Amended Articles of Incorporation which adopted by affirmative vote of all the Directors in attendance and by an unanimous vote of the sole shareholder. RESOLVED, that Article FOURTH of the Third Amendment Articles of Incorporation be and is hereby amended in its entirety to read as follows: FOURTH: The maximum number of shares with the corporation is authorized to have outstanding shall be Thirty-Two Thousand (32,000) shares with a par value of Two Thousand Two Hundred Dollars ($2,200.00) per share. IN WITNESS WHEREOF, said George A. Schaefer, Jr., President and Phillip C. Long, Secretary of The Fifth Third Bank, acting for and on behalf of said corporation have hereunto subscribed their names this 18th day of May , 1993. /s/ George A. Schaefer, Jr. ---------------------------------- George A. Schaefer, Jr., President Approved this 16th day of June, 1993 /s/ Alison M. Meeks - ------------------------------------ Alison M. Meeks, Superintendent /s/ Phillip C. Long ----------------------------------- Phillip C. Long, Secretary 11 12 THIRD AMENDED ARTICLES OF INCORPORATION OF THE FIFTH THIRD BANK FIRST: The name of said Corporation shall be "The Fifth Third Bank". SECOND: The place in Ohio where its principal office is to be located is Cincinnati, Hamilton County, and its principal business there transacted. THIRD: Said Corporation is formed for the purposes of (a) receiving on deposit or in trust, moneys, securities and other valuable property, on such terms as may be agreed, and of doing the business of a savings bank and of a trust company; (b) of disposing of box vaults for safekeeping of valuables by lease or otherwise; (c) of investing and loaning the funds of the company and those received by it on deposit or in trust; (d) of doing a commercial banking business; and, (e) of doing the business of a special plan bank, and in furtherance of said purposes, to exercise all the powers of which may be lawfully exercised by a corporation formed therefore, and to do all things necessary to incident thereto. FOURTH: The maximum number of shares which the corporation is authorized to have outstanding shall be Thirty-Two Thousand (32,000) shares with a par value of One Thousand Nine Hundred Dollars ($1,900.00) per share. FIFTH: These Amended Articles of Incorporation supersede and take the place of the existing Articles of Incorporation. 12 13 EXHIBIT 2 CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS (INCLUDED IN EXHIBIT 1) 13 14 EXHIBIT 3 A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST POWERS [See Attached] 14 15 STATE OF OHIO DIVISION OF BANKS TO WHOM IT MAY CONCERN: This is to certify that The Fifth Third Bank, Cincinnati, Ohio, organized under the laws of the State of Ohio, has complied with the laws relating to trust companies under Sections 1105.02 and 1109.04 of the Ohio Revised Code and is qualified to exercise trust powers in Ohio. Witness my hand and official seal at Columbus, Ohio, this 22nd day of January, 1996. /s/ Curtis Stitt ------------------------------- W. CURTIS STITT Superintendent Division of Financial Institutions /s/ Alison M. Meeks ------------------------------- ALISON M. MEEKS Superintendent Division of Banks 15 16 EXHIBIT 4 A COPY OF THE EXISTING CODE OF REGULATIONS OF THE TRUSTEE INCORPORATING AMENDMENTS TO DATE Code of Regulations of The Fifth Third Bank ARTICLE I STOCKHOLDERS SECTION 1. MEETINGS. The annual meeting of the Stockholders shall be held at the principal office of the Company at such hour, as may be fixed in the notice of such meeting, and on such date, not earlier than the second Tuesday of January or later than the third Tuesday of April of each year, as shall be fixed by the Board of Directors and communicated in writing to the Shareholders not later than twenty (20) days prior to such meeting. SECTION 2. QUORUM. Stockholders, whether in person or by lawful proxies, representing a majority in amount of the outstanding stock of the Company, shall constitute a quorum at any stockholders' meeting. If there be less than a majority in amount of such stock at any meeting, the meeting may be adjourned from time to time. ARTICLE II DIRECTORS SECTION 1. NUMBER. The Board of Directors shall be composed of eighteen (18) persons unless this number is changed by: (1) the Shareholders in accordance with the laws of Ohio or (2) the vote of a majority of the Directors in office. The Directors may increase the number to not more than twenty-four (24) persons and may decrease the number to not less than fifteen (15) persons. Any Director's office created by the Directors by reason of an increase in their number may be filled by action of a majority of the Directors in office. SECTION 2. TERM. Directors shall hold office until the expiration of the term for which they were erected, and shall continue in office until their respective successors shall have been duly elected and qualified. SECTION 3. QUALIFICATIONS AND COMPENSATION. No person shall serve as a Director who is not the owner of record of at least Five Hundred ($500.00) Dollars par value of stock of the Company. Each Director shall be entitled to receive such compensation for attendance at meetings of the Board of Directors of Committees thereof as the Board of Directors may, from time to time, fix. 16 17 SECTION 4. REPLACEMENT OR REMOVAL. Directors may be replaced or removed as provided by Ohio Law, provided that Directors may be removed without cause only by an affirmative vote of not less than two-thirds (2/3) of the outstanding shares of the Company. SECTION 5. VACANCIES. Any vacancy occurring in the Board of Directors may be filled by the Board of Directors until an election to fill such vacancy is had. SECTION 6. QUORUM. A majority of the whole authorized number of Directors, as the same shall be established from time to time in accordance with Section 1 of this Code of Regulations, shall constitute a quorum for a meeting of the Directors, except that a majority of the Directors in office constitute a quorum for the filling of a vacancy or vacancies of the Board. SECTION 7. ELECTION OF OFFICERS. The Board of Directors at the first meeting after the election of Directors may elect one of its own number Chairman of the Board and one of its own number Vice Chairman of the Board; and it shall elect one of its own number President. It may also elect one or more vice presidents (one or more of whom may be designated Executive Vice President and/or Senior Vice President and/or Vice President and Trust Officer), a Cashier, a Secretary, and a Treasurer, and it may appoint such other officers as the Board may deem advisable. Any two of said offices may be held by the same person. Officers so elected shall hold office during the term of the Board by whom they are elected, subject to the power of the Board to remove them at its discretion. They shall be bonded in such amount and with such survey or sureties as the Board of Directors shall require. SECTION 8. MEETINGS OF THE BOARD. Regular meetings of the Board of Directors shall be held on the third Tuesday of each month, or at such other times as may be determined by the Board of Directors. Except as otherwise provided by law, any business may be transacted at any regular meeting of the Board of Directors. Special meetings shall be held upon the call of the Chairman of the Board, if one be elected, or by the President, or in their absence, by a Vice President or any three (3) Directors. SECTION 9. NOTICE OF MEETINGS. The Secretary shall give notice of each meeting of the Board of Directors, whether regular or special, to each member of the Board. SECTION 10. COMMITTEES. SECTION 10.1 EXECUTIVE COMMITTEE. The Board of Directors shall appoint any Executive Committee consisting of at least three (3) members, all of whom may be members of the Board of Directors, or at least one (1) of whom shall be a Director, the remainder to be officers of the Bank. Such Executive Committee shall serve until their successors are appointed. A majority of the members of said Committee shall constitute a quorum. The Executive Committee 17 18 shall conduct the business of the Company and shall have all the powers of the Board of Directors when said Board is not in session, except that of declaring a dividend. The Secretary of the Company shall keep a record of the Committee's proceedings, which, signed by the Chairman of the Committee, shall be presented at the meetings of the Committee and at the meetings of the Board of Directors. SECTION 10.2 OTHER COMMITTEES. The Board of Directors shall appoint a Trust Committee of which the Vice President and Trust Officer and at least three (3) of its members who are not officers of the Company shall be members. The Vice President and Trust Officer shall be Chairman of the Trust Committee. In addition thereto, the Chairman of the Board, Chief Executive Officer, may appoint such additional Committees, by and with the approval of the Board of Directors, as may be deemed desirable or necessary. Each such Committee, so appointed, shall have such powers and perform such duties, not inconsistent with law, as may be delegated to it by the Board of Directors. SECTION 11. INDEMNIFICATION. The Company shall indemnify each Director and each Officer of the Company, and each person employed by the Company who serves at the written request of the President of the Company as a director, trustee, officer, employee or agent of another corporation, domestic or foreign, non-profit or for profit, partnership, joint venture, trust or other enterprise, to the full extent permitted by Ohio law. The term "Officer" as used in this Section shall include the Chairman of the Board and the Vice Chairman of the Board if such offices are filled, the President, each Vice President, the Treasurer, the Secretary, the Cashier, the Controller, the Auditor, the Counsel and any other person who is specifically designated as an "Officer" within the operation of this Section by action of the Board of Directors. The Company may indemnify assistant Officers, employees and others by action of the Board of Directors to the extent permitted by Ohio law. ARTICLE III OFFICERS SECTION 1. POWERS AND DUTIES. The Chairman of the Board if the office be filled, otherwise the Vice Chairman of the Board, if the office be filled, otherwise the President shall preside at all meetings of the Stockholders, the Board of Directors, and the supervision and control over the business of the Company and shall serve at the pleasure of the Board of Directors. In the absence or disability of any of the foregoing officers, their respective duties shall be performed by the Chairman of the Board, the Vice Chairman of the Board, the President, or by a Vice President specifically designated by the Board of Directors, in the order named. 18 19 The Secretary, or in his absence or disability, the Assistant Secretary, shall act, ex officio, as Secretary of all meetings of the Stockholders, the Board of Directors and the Executive Committee. The other officers of the Company shall have such powers and duties as usually and customarily attach to their offices. ARTICLE IV CERTIFICATES OF STOCK SECTION 1. FORM. Certificates for shares of stock shall be signed by the Chairman of the Board, or by the President, or by one of the Vice Presidents, and by the Secretary or Treasurer or by the Cashier or an Assistant Cashier, shall contain such statements as are required by law, and shall otherwise be in such form as the Board of Directors may, from time to time, require. SECTION 2. TRANSFERS. Shares shall be transferable on the books of the Company by the holders thereof in person or by duly authorized attorney upon surrender of the certificates therefor with duly executed assignment endorsed thereon or attached thereto. SECTION 3. CLOSING OF TRANSFER BOOKS. The books for transfer of the stock of the Company shall be closed for at least five (5) days preceding the annual meeting of stockholders, and may be closed by order of the Board of Directors, or Executive Committee, for a like period before any other meeting of the Stockholders. ARTICLE V AMENDMENTS These regulations may be changed, and new regulations adopted by the assent thereto in writing of two-thirds (2/3) of the Stockholders of the Company in number an in amount; or by a majority of such Stockholders in number and in amount, at a meeting held for that purpose, notice of which has been given by the President, the Secretary, or any two (2) Directors personally or by written notice, to each Stockholders, and by publication once a week for four (4) consecutive weeks in some newspaper of general circulation in Hamilton County, Ohio, or in such other manner as may then be authorized by the laws of Ohio. 19 20 EXHIBIT 5 A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4 (NOT APPLICABLE) 20 21 EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (B) OF THE TRUST INDENTURE ACT OF 1939 [See Attached] 21 22 EXHIBIT 6 TO FORM T-1 CONSENT OF TRUSTEE Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939 in connection with the proposed issuance of Senior Debt Securities of Chiquita Brands International, Inc., The Fifth Third Bank hereby consents that reports of examination by Federal, State, Territorial or District Authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. THE FIFTH THIRD BANK By /s/ Kerry R. Byrne ------------------------------ Kerry R. Byrne, Vice President and Trust Officer 23 EXHIBIT 7 A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING AUTHORITY [See Attached] 24 THE FIFTH THIRD BANK CONSOLIDATED BALANCE SHEET FROM REPORT OF CONDITION DATED SEPTEMBER 30, 1995 (unaudited) ($000's)
ASSETS Dollar Amounts in Thousands - ------------------------------------------------------------------------------------------------------------------------------- 1. Cash and balances due from depository institutions | a. Noninterest-bearing balances and currency and coin(1) | 463,047 b. Interest-bearing balances(2) | 99 - --------------------------------------------------------------------------------------------|---------------------------------- 2. Securities: | a. Held-to-maturity securities (from Schedule RC-B, column | 1,051,453 A) | b. Available-for-sale securities (from Schedule RC-B, column | 619,574 D) | - --------------------------------------------------------------------------------------------|---------------------------------- 3. Federal Funds sold and securities purchased under agreements | to resell in domestic offices of the bank and of its Edge | and Agreement subsidiaries, and in IBFs: | a. Federal funds sold | 747,328 b. Securities purchased under agreements to resell | 0 - --------------------------------------------------------------------------------------------|---------------------------------- 4. Loans and lease financing receivables: | a. Loans and leases net of unearned income (from Schedule | 5,982,117 RC-C) | b. LESS: Allowance for loan and lease losses | 75,731 c. LESS: Allocated transfer risk reserve | 0 d. Loans and leases, net of unearned income, allowance, and | 5,906,386 reserve (items 4.a minus 4.b and 4.c) | - --------------------------------------------------------------------------------------------|---------------------------------- 5. Trading assets (from Schedule RC-D) | 245 - --------------------------------------------------------------------------------------------|---------------------------------- 6. Premises and fixed assets (including capitalized leases) | 95,848 - --------------------------------------------------------------------------------------------|---------------------------------- 7. Other real estate owned (from Schedule RC-M) | 1,381 - --------------------------------------------------------------------------------------------|---------------------------------- 8. Investments in unconsolidated subsidiaries and associated | 0 companies (from Schedule RC-M) | - --------------------------------------------------------------------------------------------|---------------------------------- 9. Customers' liability to this bank on acceptance outstanding | 36,198 - --------------------------------------------------------------------------------------------|---------------------------------- 10. Intangible Assets (from Schedule RC-M) | 43,348 - --------------------------------------------------------------------------------------------|---------------------------------- 11. Other assets (from Schedule RC-F) | 140,054 - --------------------------------------------------------------------------------------------|---------------------------------- 12. Total assets (sum of items 1 through 11) | 9,104,961 | - -------------------------------------------------------------------------------------------- ---------- __________________________ (1) Includes cash items in process of collection and unposted deposits. (2) Includes time certificates of deposit not held for trading.
[/FN] 25
LIABILITIES - ------------------------------------------------------------------------------------------------------------------------------- | 13. Deposits: | a. In domestic offices (sum of totals of totals of columns A and C from Schedule | 4,882,227 RC-E, part 1) | (1) Noninterest bearing(3) | 1,038,915 (2) Interest bearing | 3,843,312 | b. In foreign offices, Edge and Agreement subsidiaries and IBFx (from Schedule | 471,295 RC-E, part II) | (1) Noninterest bearing | 0 (2) Interest bearing | 471,295 - --------------------------------------------------------------------------------------------|---------------------------------- 14. Federal funds purchased and securities sold under agreements to repurchase in | 63,932 domestic offices of the bank and of its Edge and Agreement subsidiaries, and | in IBSs: | a. Federal funds purchased | 977,657 b. Securities sold under agreements to repurchase | 215,093 - --------------------------------------------------------------------------------------------|---------------------------------- 15. a. Demand notes issued to the U.S. Treasury | 63,932 b. Trading liabilities (from Schedule RC-D) | 0 - --------------------------------------------------------------------------------------------|---------------------------------- 16. Other borrowed money: | a. With original maturity of one year or less | 1,138,491 b. With original maturity of more than one year | 85,000 - --------------------------------------------------------------------------------------------|---------------------------------- 17. Mortgage indebtedness and obligations under capitalized | 0 leases | - --------------------------------------------------------------------------------------------|---------------------------------- 18. Bank's liability on acceptances executed and outstanding | 36,198 - --------------------------------------------------------------------------------------------|---------------------------------- 19. Subordinated notes and debentures | 381,628 - --------------------------------------------------------------------------------------------|---------------------------------- 20. Other liabilities (from Schedule RC-G) | 211,326 - --------------------------------------------------------------------------------------------|---------------------------------- 21. Total liabilities (sum of items 13 through 20) | 8,462,847 - --------------------------------------------------------------------------------------------|---------------------------------- 22. Limited life preferred stock and related surplus | 0 - --------------------------------------------------------------------------------------------|---------------------------------- | EQUITY CAPITAL | - --------------------------------------------------------------------------------------------|---------------------------------- 23. Perpetual preferred stock and related surplus | 0 - --------------------------------------------------------------------------------------------|---------------------------------- 24. Common stock | 70,400 - --------------------------------------------------------------------------------------------|---------------------------------- 25. Surplus (exclude all surplus related to preferred stock) | 100,702 - --------------------------------------------------------------------------------------------|---------------------------------- 26. a. Undivided profits and capital reserves | 464,529 b. Net unrealized holding gains (losses) on available-for- | (3,517) sale securities | - --------------------------------------------------------------------------------------------|---------------------------------- 27. Cumulative foreign currency translation adjustments | 0 - --------------------------------------------------------------------------------------------|---------------------------------- 28. Total equity capital (sum of items 23 through 27) | 642,114 - --------------------------------------------------------------------------------------------|---------------------------------- 29. Total liabilities, limited-life preferred stock, and equity | 9,104,961 capital (sum of items 21, 22 and 28) | (3) Includes total demand deposits and noninterest-bearing time and savings deposits.
[/FN] 26 EXHIBIT 8 A COPY OF ANY ORDER PURSUANT TO WHICH THE FOREIGN TRUSTEE IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE ACT (NOT APPLICABLE) 27 EXHIBIT 9 FOREIGN TRUSTEES ARE REQUIRED TO FILE A CONSENT TO SERVICE OF PROCESS OF FORM F-X (NOT APPLICABLE) EX-25.B 9 EXHIBIT 25(B) 1 Exhibit 25(b) Securities Act of 1933 File No.___________________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM T-1 __________________________________________________ STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE PURSUANT TO SECTION 305(b) (2) / X / __________________________________________________ STAR BANK, NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) A National Banking Association 31-0841368 (IRS Employer Identification No.) 425 Walnut Street Cincinnati, Ohio 45202 (Address of Principal Executive Offices (Zip Code) _________________________________________________ Keith A. Maurmeier Senior Trust Officer Star Bank, National Association 425 Walnut Street Cincinnati, Ohio 45202 (513) 632-2047 (Name, address, and telephone number of agent for services) CHIQUITA BRANDS INTERNATIONAL, INC. (Exact name of obligor as specified in its charter) New Jersey 04-1923360 (State of Incorporation) (IRS Employer Identification No.) 250 East Fifth Street, Cincinnati, OH 45202 (Address of principal executive offices) (Zip Code) Debt Securities (Title of the Indenture securities) 2 1. General Information. Furnish the following information as Trustee -- (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency, Washington, D.C. Federal Reserve Bank of Cleveland, Ohio Federal Deposit Insurance Corporation, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. The Trustee is authorized to exercise corporate trust powers. 2. Affiliations with obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. The obligor is not an affiliate of the Trustee (including its parent and any affiliates). 3. Voting Securities of the trustee. Furnish the following information as to each class of voting securities of the trustee (and its parent). As of _____________ (insert date within 31 days) Col A. Col B (Title of Class) (Amount Outstanding) 4. Trusteeships under other Indentures. If the trustee is a trustee under another Indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, furnish the following information: (a) Title of the securities outstanding under each such other indenture. (b) A brief statement of the facts relied upon as a basis for the claim that no conflicting interest within the meaning of Section 310(b) (1) of the Act arises as a result of the trusteeship under any such other indenture, including a statement as to how the indenture securities will rank as compared with the securities issued under such other indenture. 3 5. Interlocking directorates and similar relationships with the obligor or underwriters. If the trustee (including its parent and any other affiliates) or any of the directors or executive officers of the trustee is a director, officer, partner, employee, appointee, or representative of the obligor or of any underwriter for the obligor, identify each such person having any such connection and state the nature of each such connection. 6. Voting securities of the trustee (including its parent and any affiliate) owned by the obligor or its officials. Furnish the following information as to the voting securities of the trustee (including its parent and any affiliates) owned beneficially by the obligor and each director, partner and executive officer of the obligor: As of _______________________ (insert date within 31 days) Col. A. Col. B. Col. C Col. D Percentage of Voting Securities Represented by Amount Owned Amount Given Name of Owner Title of Class Beneficially in Col. C ------------- -------------- ------------ ----------------- 7. Voting securities of the trustee (including its parent and any affiliates) owned by underwriters or their officials. Furnish the following information as to the voting securities of the trustee (including its parent and any affiliates) owned beneficially by each underwriter for the obligor and each director, partner, and executive officer of each such underwriter: As of ___________________(insert date within 31 days) Col. A. Col. B. Col. C Col. D Percentage of Voting Securities Represented by Amount Owned Amount Given Name of Owner Title of Class Beneficially in Col. C ------------- -------------- ------------ ----------------- 4 8. Securities of the obligor owned or held by the trustee (including its parent and any affiliates). Furnish the following information as to securities of the obligor owned beneficially or held as collateral security for obligations default by the trustee (including its parent and any affiliates): As of ___________________(insert date within 31 days) Col. A Col. B Col. C Col. D Amount Owned Whether the Beneficially or Securities Are Held as Collateral Percent of Voting or Security for Class Represented Nonvoting obligations in .by Amount Given Title of Class Securities Default in Col. C -------------- --------------- ------------------ ----------------- 9. Securities of underwriters owned or held by the trustee (including its parent and any affiliates). If the trustee (including its parent and any affiliates) owns beneficially or holds as collateral security for obligations in default any securities of an underwriter for the obligor, furnish the following information as to each class of securities of such underwriter any of which are so owned or held by the trustee: Col. A Col. B Col. C Col. D Amount Owned Beneficially or Held as Collateral Percent of Security for Class Represented Title of Issuer Obligations in by Amount and Title of Amount Default by Given in Class Outstanding Trustee Col. C --------------- ----------- ------------------ ----------------- 10. Ownership or holdings by the trustee (including its parent and any affiliates) of voting securities of certain affiliates or security holders of the obligor. If the trustee (including its parent and any affiliates) owns beneficially or holds as collateral security for obligations in default voting securities of a person who, to the knowledge of the trustee (1) owns 10% or more of the voting securities 5 of the obligor or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the following information as to the voting securities of such person: As of _______________________(insert date within 31 days) Col. A Col. B Col. C Col. D Amount Owned Beneficially or Held as Collateral Percent of Security for Class Represented Title of Issuer Obligations in by Amount and Title of Amount Default by Given in Class Outstanding Trustee Col. C --------------- ----------- ------------------ ----------------- 11. Ownership or holdings by the trustee (including its parent and any affiliates) of any securities of a person owning 50 percent or more of the voting securities of the obligor. If the trustee (including its parent and any affiliates) owns beneficially or holds as collateral security for obligations in default any securities of a person who, to the knowledge of the trustee, owns 50 percent or more of the voting securities of the obligor, furnish the following information as to each class of securities of such person any of which are so owned or held by the trustee (including its parent and affiliates): As of ______________________(insert date within 31 days) Col. A Col. B Col. C Col. D Amount Owned Beneficially or Held as Collateral Percent of Security for Class Represented Title of Issuer Obligations in by Amount and Title of Amount Default by Given in Class Outstanding Trustee Col. C --------------- ----------- ------------------ ----------------- 6 12. Indebtedness of the Obligor to the Trustee. Except as noted in the instructions, if the obligor is indebted to the trustee, furnish the following information: As of ____________________(insert date with 31 days) Col. A Col. B Col. C Amount Nature of Indebtedness Outstanding Due Date ---------------------- ----------- -------- 13. Defaults by the Obligor. a) State whether there is or has been a default with respect to the securities under this indenture. Explain the nature of any such default. -NONE- b) If the Trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, or is trustee for more than one outstanding series or securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default. As of January 26, 1996 (insert date within 31 days) -NONE- Col. A Col. B Col. C Col. D Amount Owned Beneficially or Held as Collateral Percent of Security for Class Represented Title of Issuer Obligations in by Amount and Title of Amount Default by Given in Class Outstanding Trustee Col. C --------------- ----------- ------------------ ----------------- 7 14. Affiliations with the Underwriters. If any underwriter is an affiliate of the trustee (including its parent and any affiliates), described each such affiliation. 15. Foreign Trustee. Identify the order or rule pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the Act. 16. List of Exhibits. List below all exhibits filed as part of this statement of eligibility. 1. (a) A copy of the Articles of Association of Star Bank, National Association, Cincinnati (now Star Bank, National Association) as now in effect. (b) A copy of the Amended Articles of Association dated June 14, 1991, changing the name of the association to Star Bank, National Association. 2. (a) A copy of the certificate of authority of The First National Bank of Cincinnati (now Star Bank, National Association) to commence business dated September 1, 1922. (b) A copy of a Certificate of the Comptroller of the Currency dated December 21, 1973, authorizing F N National Bank to commence the business of banking. (c) A copy of a Certificate of the Comptroller of the Currency dated December 28, 1973, approving the merger of The First National Bank of Cincinnati (now Star Bank, National Association) into F N National Bank under the title "The First National Bank of Cincinnati" effective January 2, 1974. (d) A copy of a letter dated June 8, 1988, from the Comptroller of the Currency indicating the change in the name of the association to Star Bank, National Association, Cincinnati, effective July 1, 1988. 8 (e) A copy of a letter dated July 15, 1991, from the Comptroller of the Currency indicating the change in the name of the association to Star Bank, National Association, effective June 14, 1991. 3. A copy of the authorization of The First National Bank of Cincinnati (now Star Bank, National Association) to exercise corporate trust powers. 4. A copy of existing By-Laws to Star Bank, National Association, Cincinnati (now Star Bank, National Association) 5. The consent of the Trustee required by section 321 (b) of the Trust Indenture Act of 1939. 6. A copy of the latest report of condition of Star Bank, National Association, published pursuant to law or the requirements of its supervising or examining authority. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Star Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Cincinnati and State of Ohio on the ___26th___ day of ______January__________, 1996________. STAR BANK, NATIONAL ASSOCIATION By: Keith A. Maurmeier _____________________________ Keith A. Maurmeier Senior Trust Officer 9 EXHIBIT 1 (a) STAR BANK, NATIONAL ASSOCIATION, CINCINNATI CHARTER NO. 24 ARTICLES OF ASSOCIATION FIRST: The title of this Association shall be "Star Bank, National Association, Cincinnati."* SECOND: The main office of the Association shall be in the City of Cincinnati, County of Hamilton, State of Ohio. The general business of the Association shall be conducted at its main office and its branches. THIRD: The Board of Directors of this Association shall consist of not less than five (5) nor more than twenty-five (25) shareholders, the exact number of Directors within such minimum and maximum limits to be fixed and determined from time to time by resolution of a majority of the full Board of Directors or by resolution of the shareholders at any annual or special meeting thereof. Unless otherwise provided by the laws of the United States, any vacancy in the Board of Directors for any reason, including an increase in the number thereof, may be filled by action of the Board of Directors. FOURTH: The annual meeting of the shareholders for the election of Directors and the transaction of whatever other business may be brought before said meeting shall be held at the main office or such other place as the Board of Directors may designate, on the day of each year specified therefor by the Bylaws, but if no election is held on that day, it may be held on any subsequent day according to the provisions of law; and all elections shall be held according to such lawful regulations as may be prescribed by the Board of Directors. FIFTH: The authorized amount of capital stock of this Association shall be 3,640,000 shares of common stock of the par value of five dollars ($5.00) each, but said capital stock may be increased or decreased from time to time, in accordance with the provisions of the laws of the United States. No holder of shares of the capital stock of any class of the Association shall have any pre-emptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association issued or sold, nor any right of subscription to any thereof other than such, if any, as the Board of Directors, in its discretion, may from time to time determine and at such price as the Board of Directors may from time to time fix. The Association, at any time and from time to time, may authorized and issue debt obligations, whether or not subordinated, without the approval of the shareholders. *Amended June 14, 1991, see attached. 10 SIXTH: The Board of Directors shall appoint one of its members President of this Association, who shall be Chairman of the Board, unless the Board appoints another Director to be the Chairman. The Board of Directors shall have the power to appoint one or more Vice Presidents; and to appoint a Cashier and such other officers and employees as may be required to transact the business of this Association. The Board of Directors shall have the power to define the duties of the officers and employees of the Association; to fix the salaries to be paid to them; to dismiss them; to require bonds from them and to fix the penalty thereof; to regulate the manner in which any increase of the capital of the Association shall be made; to manage and administer the business and affairs of the Association; to make all Bylaws that it may be lawful for them to make and generally to do and perform all acts that it may be legal for a Board of Directors to do and perform. The Board of Directors, without need for approval of shareholders, shall have the power to change the location of the main office of this Association, subject to such limitations as from time to time may be provided by law; and shall have the power to establish or change the location of any branch or branches of the Association to any other location, without the approval of the shareholders, but subject to the approval of the Comptroller of the Currency. SEVENTH: The corporate existence of this Association shall continue until terminated in accordance with the laws of the United States. EIGHTH: The Board of Directors of this Association, the Chairman of the Board, the President, or any three or more shareholders owning, in the aggregate, not less twenty-five percent of the stock of this Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his address as shown upon the books of this Association. NINTH: Any person, his heirs, executors, or administrators, may be indemnified or reimbursed by the Association for reasonable expenses actually incurred in connection with any action, suit, or proceeding, civil or criminal, to which he or they shall be made a party by reason of his being or having been a director, officer, or employee of the Association or of any firm, corporation, or organization which he served in any such capacity at the request of the Association. Provided, however, that no person shall be so indemnified or reimbursed in relation to any matter in such action, suit, or proceeding as to which he shall finally be adjudged to have been guilty of or liable for gross negligence, willful misconduct or criminal acts in the performance of his duties to the Association; and, provided further, that no person shall be so indemnified or reimbursed in relation to any matter in such action, suit, or proceeding which has been made the subject of a compromise settlement except with the approval of a court of competent jurisdiction, or the holders of record of a majority of the outstanding shares of the Association, or the Board of Directors, acting by vote of Directors not parties to the same or substantially the same action, suit, or proceeding, constituting a majority of the whole number of Directors. The foregoing right of indemnification shall not be exclusive of other rights to which such person, his heirs, executors, or administrators, may be entitled as a matter of law. The 11 Association may, upon the affirmative vote of a majority of its Board of Directors, purchase insurance for the purpose of indemnifying its directors, officers and other employees to the extent that such indemnification is allowed in the preceding paragraph. Such insurance may, but need not, be for the benefit of all directors, officers, or employees. TENTH: These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this Association, unless the vote of the holders of a greater amount of stock is required by law and in that case by the vote of the holders of such greater amount. August 18, 1988 12 EXHIBIT 1(B) STAR BANC CORPORATION June 14, 1991 Deputy Comptroller Central District Office of the Comptroller of the Currency One Financial Place 440 S. LaSalle, Suite 2700 Chicago, Illinois 60605 Dear Deputy Comptroller: Re: Letter of Notification Star Bank, National Association, Cincinnati, Charter #24 intends to change its corporate title to Star Bank, National Association. The effective date of the change is June 14, 1991. A certified copy of the amendment to the articles of association is enclosed. The amendment conforms to the requirements of 12 USC 21 a. Sincerely, /s/ F. Kristen Koepcke FKK:bjt Enclosure 13 EXHIBIT 1 (b) MINUTES OF SPECIAL MEETING OF THE SHAREHOLDER STAR BANK, NATIONAL ASSOCIATION, CINCINNATI A Special Meeting of the shareholder of Star Bank, National Association, Cincinnati (the "Bank") was held on June 14, 1991. Mr. Oliver W. Waddell called the meeting to order and selected Mr. F. Kristen Koepke to act as Secretary. The Secretary reported that all the outstanding shares of the Bank were represented at this meeting and that the shareholder had waived notice of this special meeting. Therefore, a quorum was present. Mr. Waddell stated that the purpose of the meeting was to consider a proposed name change for the Bank as recommended by the Board of Directors. On motion duly made and carried, the following resolution was adopted: RESOLVED, That Article First of the Articles of Association of the Bank be amended in its entirely to read as follows: FIRST: The title of this Association shall be "Star Bank, National Association." There being no further business to come before the meeting, on motion duly made and carried, the meeting was adjourned. /s/ ---------------------------------- F. Kristen Koepke, Secretary Approved: /s/ _______________________________________ Oliver W. Waddell Chairman, Star Banc Corporation, Shareholder Certified Copy /s/ ---------------------------------- Secretary 14 EXHIBIT 2 (a) COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS: NO. 24 E Pluribus Unum TREASURY DEPARTMENT Office of Comptroller of the Currency Washington, D.C., September 1, 1992 WHEREAS, the Act of Congress of the United States, entitled, "An Act to amend section 5136, Revised Statutes of the United States, relating to corporate powers of associations, so as to provide succession thereof for a period of ninety-nine years or until dissolved, and to apply said section as so amended to all national banking association", approved by the President on July 1, 1922, provided that all national banking associations organized and operating under any law of the United States on July 1, 1992 should have succession until ninety-nine years from that date, unless such association should be sooner dissolved by the act of its shareholders owning two-thirds of its stock, or unless its franchise should become forfeited by reason of violation of law, or unless it should be terminated by an Act of Congress hereinafter enacted; NOW THEREFORE, I, D. R. Crissinger Comptroller of the Currency, do hereby certify that The First National Bank of Cincinnati and State of Ohio , was organized and operating under the laws of the United States on July 1, 1922, and that its corporate existence was extended for the period of ninety-nine years from that date in accordance with and subject to the condition in the Act of Congress hereinbefore recited. (SEAL) IN TESTIMONY WHEREOF, witness my hand and seal of office this first day of September, 1922 (Signed) D. R. Crissinger -------------------------------- Comptroller of the Currency 15 EXHIBIT 2 (b) Comptroller of the Currency TREASURY DEPARTMENT OF THE UNITED STATES Washington, D.C. Whereas, satisfactory evidence has been presented to the Comptroller of the Currency that "FN NATIONAL BANK". located in CINCINNATI, State of OHIO, has complied with all provisions of the Statutes of the United States required to be complied with before being authorized to commence the business of banking as National Banking Association; Now, therefore, I hereby certify that the above-named association is authorized to commence the business of banking as a National Banking Association. In testimony whereof, witness my signature and seal of SEAL office this 21st day of December, 1913. /S/ ---------------------------------------- 16 EXHIBIT 2 (c) Comptroller of the Currency TREASURY DEPARTMENT OF THE UNITED STATES Washington, D.C. WHEREAS, satisfactory evidence has been presented to the Comptroller of the Currency that all requisite legal and corporate action has been taken, in accordance with the statutes of the United States, to merge The First National Bank of Cincinnati, Cincinnati, Ohio, into FN National Bank, Cincinnati, Ohio, under the charter of FN National Bank and under the title "The First National Bank of Cincinnati," with capital stock of $18,200,000; NOW, THEREFORE, it is hereby certified that such merger was approved November 29, 1973, and is effective as of the opening of business January 2, 1974. IN TESTIMONY WHEREOF -- witness my signature and seal of office this 28th day of December, 1973 SEAL /S/ -------------------------------- James E. Smith Comptroller of the Currency 17 EXHIBIT 2(d) - -------------------------------------------------------------------------------- Comptroller of the Currency Administrator of National Banks - -------------------------------------------------------------------------------- Central District One Financial Plaza, Suite 2700 440 South LaSalle Street Chicago, Illinois 60605 June 8, 1988 Mr. Raymond D. Beck Secretary & Counsel First National Cincinnati Corporation First National Bank Center 425 Walnut Street Cincinnati, Ohio 45201-1038 Dear Mr. Beck: The office of the Comptroller of the Currency acknowledges receipt of your letters concerning First National Cincinnati Corporation's banking subsidiarys' title changes and the appropriate amendments to each bank's articles of association. The Office has recorded the following banks' title changes effective July 1, 1988. Old Title New Title - --------- --------- The First National Bank of Ironton Star Bank, National Association Ironton, Ohio Tri-State Charter No. 16607 Farmers and Traders National Bank Star Bank, National Association Hillsboro, Ohio Hillsboro Charter No. 17646 The First National Bank of Cincinnati Star Bank, National Association Cincinnati, Ohio Cincinnati Charter No. 24 The First National Bank & Trust Company Star Bank, National Association Troy, Ohio Troy Charter No. 9336 18 Page 2 Mr. Raymond D. Beck (cont'd) The Second National Bank of Hamilton Star Bank, National Association Hamilton, Ohio Butler County Charter No. 17200 The Second National Bank of Richmond Star Bank, National Association Richmond, Indiana Eastern Indiana Charter No. 1988 The First National Bank of Aurora Star Bank, National Association Aurora, Indiana Aurora Charter No. 699 The Peoples National Bank of Lawrenceburg Star Bank, National Association Lawrenceburg, Indiana Southeastern Indiana Charter No. 2612 Newport National Bank Star Bank, National Association Newport, Kentucky Campbell County Charter No. 4765 The First National Bank Star Bank, National Association Sidney, Ohio Sidney Charter No. 5214 Very truly yours, David J. Rogers National Bank Examiner Analysis Division 19 EXHIBIT 2(e) - -------------------------------------------------------------------------------- Comptroller of the Currency Administrator of National Banks - -------------------------------------------------------------------------------- Central District One Financial Place 440 S. LaSalle, Suite 2700 Chicago, Illinois 60605 July 15, 1991 Mr. F. Kristen Koepcke Vice President, General Counsel and Secretary Star Banc Corporation 425 Walnut Street P.O. Box 1038 Cincinnati, Ohio 45201-1038 Dear Mr. Koepcke: The Office of the Comptroller of the Currency has received your letter concerning the title change and the appropriate amendment to the bank's articles of association. The Office has recorded that as of June 14, 1991, the title of Star Bank, National Association, Cincinnati, Charter No. 24, was changed to Star Bank, National Association. As a result of the Garn-St Germain Depository Institutions Act of 1982, this Office is no longer responsible for the approval of national bank name changes nor does it maintain official records on the use of alternate titles. The use of other titles or the retention of the rights to any previously used title is the responsibility of the bank's board of directors. Legal counsel should be consulted to determine whether or not the new title, or any previously used title, could be challenged by competing institutions under the provisions of federal or state law. Very truly yours, David J. Rogers National Bank Examiner Analysis Division 20 EXHIBIT 3 THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST POWERS: FEDERAL RESERVE BOARD Washington, D.C. October 9, 1919 Pursuant to authority vested in the Federal Reserve Board by the Act of Congress approved December 23, 1913, known as the Federal Reserve Act, as amended by the Act of September 26, 1918, the FIRST NATIONAL BANK OF CINCINNATI has been granted the right to act, when not in contravention of State or local law, as TRUSTEE, EXECUTOR, ADMINISTRATOR, REGISTRAR OF STOCKS AND BONDS, GUARDIAN OF ESTATES, ASSIGNEE, RECEIVER OR IN ANY OTHER FIDUCIARY CAPACITY IN WHICH STATE BANKS, TRUST COMPANIES OR OTHER CORPORATIONS WHICH COME INTO COMPETITION WITH NATIONAL BANKS ARE PERMITTED TO ACT UNDER THE LAWS OF THE STATE OF OHIO. The exercise of such rights shall be subject to regulations prescribed by the Federal Reserve Board. Federal Reserve Board, By W. P. G. Harding Governor. ATTEST: W. T. Chapman Secretary. STATE OF OHIO DEPARTMENT OF BANKS AND BANKING Certificate of Authority No. 17 NATIONAL BANKS I, Philip C. Berg, Superintendent of Banks, do hereby certify that the First National Bank of Cincinnati, Hamilton County, Ohio has complied with all the requirements provided by law and is authorized to transact the business of a trust company and to perform all the functions granted to such companies by the laws of this state. Given under my hand and official Seal at Columbus, Ohio, this twenty-fifth day of November, A.D. 1919 Philip C. Berg, Superintendent of Banks. (SEAL) 21 EXHIBIT 4 BY-LAWS STAR BANK, N.A., CINCINNATI ARTICLE I MEETINGS OF SHAREHOLDERS SECTION 1. ANNUAL MEETING The annual meeting of shareholders shall be held in the main banking house of the Association at 11:00 a.m. on the second Tuesday in February of each year. Notice of such meeting shall be mailed to shareholders not less than ten (10) nor more than sixty (60) days prior to the meeting date. SECTION 2. SPECIAL MEETINGS Special meetings of shareholders may be called and held at such times and upon such notice as is specified in the Articles of Association. SECTION 3. QUORUM A majority of the outstanding capital stock represented in person or by proxy shall constitute a quorum of any meeting of the shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting amy be held as adjourned without further notice. SECTION 4. INSPECTORS The Board of Directors may, and in the event of its failure so to do, the Chairman of the Board shall appoint Inspectors of Election who shall determine the presence of a quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders. SECTION 5. VOTING In deciding on questions at meetings of shareholders, except in the election of directors, each shareholder shall be entitled to one vote for each share of stock held. A majority of votes cast shall decide each matter submitted to the shareholders, except where by law a larger vote is required. In all elections of directors, each shareholder shall have the right to vote the number of shares owned by him for as many persons as there are directors to be elected, or to cumulate such shares and give one candidate as many votes as the number of directors multiplied by the number 22 of his shares equal, or to distribute them on the same principle among as many candidates as he shall think fit. ARTICLE II SECTION 1. TERM OF OFFICE The directors of this Association shall hold office for one year and until their successors are duly elected and qualified. SECTION 2. REGULAR MEETINGS The organization meeting of the Board of Directors shall be held as soon as practical following the annual meeting of shareholders at the main banking house. Other regular meetings of the Board of Directors shall be held without notice at 11:00 a.m. on the second Tuesday of each month except February, at the main banking house, or, provided notice is given by telegram, letter, telephone or in person to every Director, at such time and place as may be designated in the notice of the meeting. When any regular meeting of the Board falls on a holiday, the meeting shall be held on the next banking business day, unless the Board shall designate some other day. SECTION 3. SPECIAL MEETINGS Special meetings of the Board of Directors may be called by the Chairman of the Board of the Association, or at the request of three or more Directors. Notice of the time, place and purposes of such meetings shall be given by telegram, letter, telephone or in person to every Director. SECTION 4. QUORUM A majority of the entire membership of the Board shall constitute a quorum at any meeting of the Board. SECTION 5. NECESSARY VOTE A majority of those Directors present and voting at any meeting of the Board of Directors shall decide each matter considered, except where otherwise required by law or the Articles or By-Laws of this Association. SECTION 6. COMPENSATION Directors, excluding full-time employees of the Bank, shall receive such reasonable compensation as may be fixed from time to time by the Board of Directors. SECTION 7. ELECTION-AGE LIMITATION No person shall be elected or reelected a Director after reaching his seventieth (70th) birthday, provided that any person who is a Director on December 10, 1985, may continue to be reelected a Director until he reaches his seventy-fifth (75th) birthday. 23 SECTION 8 RETIREMENT-AGE LIMITATION Every Director of the Bank shall retire no later than the first month next following his seventieth (70th) birthday, except for any person who was a Director on December 10, 1985, who shall retire not later that the first of the next month following his seventy-fifth (75th) birthday. SECTION 9 DIRECTORS EMERITUS The Board shall have the right from time to time to choose as Directors Emeritus persons who have had prior service as members of the Board and who may receive such compensation as shall be fixed from time to time by the Board of Directors. ARTICLE III OFFICERS SECTION 1 WHO SHALL CONSTITUTE The Officers of the Association shall be a Chairman of the Board, a President, a Secretary, and other officers such as Chairman of the Executive Committee, Vice Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries, Trust Officers, Trust Investment Officers, Trust Real Estate Officers, Assistant Trust Officers, a Controller, Assistant Controller, an Auditor and Assistant Auditors, as the Board may appoint from time to time. Any person may hold two offices. The Chairman of the Board, all Vice Chairmen of the Board and the President shall at all times be members of the Board of Directors. SECTION 2 TERM OF OFFICE All officers shall be elected for and shall hold office for one year and until their successors are elected and qualified, subject to the right in the Board of Directors by a majority vote of the entire membership to discharge any officer at any time. SECTION 3 CHAIRMAN OF THE BOARD (Amended 12/13/88-see attachment) The Chairman of the Board shall be the Chief Executive Officer of the Association and shall have all duties, responsibilities and powers of the Chief Executive Officer. He shall, when present, preside at all meetings of shareholders and directors and shall be ex officio a member of all committees of the Board. He shall name all members of the committees of the Board, subject to the confirmation thereof by the Board. In the event that there is a vacancy in the position of President or in the event of the absence or incapacity of the President, the Chairman may appoint, or in the event of his failure to do so, the Board of Directors or the Executive Committee thereof may designate any Vice Chairman of the 24 Board, any Executive Vice President or any Senior Vice President of the Association temporarily to exercise the powers and perform the duties of the Chairman as Chief Executive Officer when the Chairman is absent or incapacitated. The Board of Directors shall have the power to elect a Chairman of the Executive Committee. Any such Chairman of the Executive Committee shall participate in the formation of the policies of the Association and shall have such other duties as may be assigned to him from time to time by the President or by the Board of Directors. SECTION 4 PRESIDENT (amended 12/13/88-see attachment) The President shall participate in the formation and supervision of the policies and operations of the Association and shall perform such other duties as may be assigned to him from time to time by the Board of Directors or by the Chairman of the Board. In the event that there is a vacancy in the position of the Chairman of the Board, the President shall be the Chief Executive Officer of the Association and shall have all the powers and perform all the duties of the Chairman of the Board, including the same power to name temporarily a Chief Executive Officer to serve in the absence of the President. SECTION 5 CHAIRMAN OF THE EXECUTIVE COMMITTEE The Board of Directors shall have the power to elect a Chairman of the Executive Committee. Any such Chairman of the Executive Committee shall participate in the formation of the policies of the Association and shall have such other duties as may be assigned to him from time to time by the President or by the Board of Directors. SECTION 6 VICE CHAIRMEN OF THE BOARD The Board of Directors shall have the power to elect one or more Vice Chairmen of the Board of Directors. Any such Vice Chairmen of the Board shall participate in the formation of the policies of the Association and shall have such other duties as may be assigned to him from time to time by the Chairman of the Board or by the Board of Directors. SECTION 7 OTHER OFFICERS The Secretary and all other officers appointed by the Board of Directors shall have such duties as defined by law and as may from time to time be assigned to them by the Chief Executive Officer or the Board of Directors. SECTION 8 RETIREMENT Every officer of the Association shall retire not later than the first of the month next following his sixty-fifth (65th) birthday. The Board of Directors may, in its discretion, set the retirement date and terms of retirement of an officer at a date later than provided above. 25 ARTICLE IV COMMITTEES SECTION 1 EXECUTIVE COMMITTEE There shall be a standing committee of Directors in this Association to be known as the Executive Committee. This Committee shall meet at 11:00 a.m. on the first and fourth Tuesday of each month. It shall have all of the powers of the Board of Directors between meetings of the Board, except as the Board only by law is authorized to perform or exercise. All actions of the Executive Committee shall be reported to the Board of Directors. In the event that any member of the Executive Committee is unable to attend a meeting of that committee, the Chairman of the Board or the President may, at his discretion, appoint another Director to attend said meeting of the Executive Committee and for that meeting to serve as a member of the Executive Committee with full power to act in place of the absent regular member of the committee. SECTION 2 COMPENSATION COMMITTEE There shall be a standing committee of directors of this Association to be known as the Compensation Committee who shall review the compensation of all Executive Officers and those officers who participate in the Profit Sharing Pool as well as fees for directors of the Association. They will recommend specific compensation arrangements to the Board of Directors for their confirmation. SECTION 3 COMMITTEE ON AUDIT There shall be a standing committee of Directors of this Association to be known as the Committee on Audit, none of whose members shall be active officers of the Association. This Committee shall make or cause to be made a suitable examination of the affairs of the Association and the Trust Department at least once during each period of twelve months. The results of such examination shall be reported in writing to the Board at the next regular meeting thereafter stating whether the Association and/or Trust Department is in a sound solvent condition, whether adequate internal audit controls and procedures are being maintained and make such recommendations as it deems advisable. SECTION 4 TRUST COMMITTEE There shall be a standing committee of Directors of this Association to be known as the Trust Committee. The Trust Committee shall determine policies of the Department and review actions of the Trust Investment Committee. All actions of the Trust Committee shall be reported to the Board of Directors. SECTION 5 TRUST INVESTMENT COMMITTEE There shall be a standing committee of this Association to be known as the Trust Investment Committee composed of officers of the Association. The Trust Investment Committee or such 26 officers as may be duly designated by the Trust Investment Committee, shall pass upon the acceptance of all trusts, the closing out or relinquishment of all trusts and the making, retention, or disposition of all investments of trust funds in conformity with policies established by the Trust Committee. Actions of the Trust Investment Committee shall be reported to the Trust Committee. SECTION 6 PENSION COMMITTEE There shall be a standing committee of directors or officers of this Association to be known as the Pension Committee, who shall have the powers and duties as set forth in the Association's Employees' Pension Plan. A report of the condition of the pension fund shall be submitted annually to the Board of Directors. SECTION 7 OTHER COMMITTEES The Chairman may appoint, from time to time, other committees for such purposes and with such powers as he or the Board may direct. ARTICLE V SEAL SECTION 1 IMPRESSION The following is an impression of the seal of this Association. August 25, 1988 27 RESOLVED, That Section 3 of Article III of the By-Laws of the Bank shall be amended to read: SECTION 3 CHAIRMAN OF THE BOARD The Chairman of the Board shall have general executive powers and duties and shall perform such other duties as amy be assigned from time to time by the Board of Directors. In addition, unless the Board of Directors shall have designated the President to be the Chief Executive Officer, the Chairman of the Board shall be the Chief Executive Officer and shall have all the powers and duties of the Chief Executive Officer. He shall, when present, preside at all meetings of shareholders and directors and shall be ex officio a member of all committees of the Board. He shall name all members of the committees of the Board, subject to the confirmation thereof by the Board. If he is Chief Executive Officer, in the event that there is a vacancy in the position of President or in the event of the absence or incapacity of the President, the Chairman may appoint, or in the event of his failure to do so, the Board of Directors or the Executive Committee thereof may designate, any Vice Chairman of the Board, any Executive Vice President or any Senior Vice President of the Association temporarily to exercise the powers and perform the duties of the Chairman as Chief Executive Officer when the Chairman is absent or incapacitated. If the President has been designated Chief Executive Officer by the Board of Directors, in the event that there is a vacancy in the position of the President or in the event of the absence or incapacity of the President, the Chairman shall be the Chief Executive Officer of the Association and shall have all the powers and perform all the duties of the President, including the powers to name temporarily a Chief Executive Officer to serve in the absence of the Chairman. FURTHER RESOLVED, That Section 4 of Article III of the By-Laws of the bank shall be amended to read: SECTION 4 PRESIDENT The President shall have general executive powers and duties and shall perform such other duties as may be assigned from time to time by the Board of Directors. In addition, if designated by the Board of Directors, the President shall be the Chief Executive Officer and shall have all the powers and duties of the Chief Executive Officer, including the same power to name temporarily a Chief Executive Officer to serve in the absence of the President if there is a vacancy in the position of the Chairman or in the event of the absence or incapacity of the Chairman. If the Chairman has been designated Chief Executive Officer by the Board of Directors, in the event that there is a vacancy in the position of the Chairman of the Board or in the event of the absence or incapacity of the Chairman of the Board, the President shall be the Chief Executive Officer of the Association and shall have all the powers and perform all the duties of the Chairman of the Board, including the same power to name temporarily a Chief Executive Officer to serve in the absence of the President. 28 EXHIBIT 5 THE CONSENT OF THE TRUSTEE REQUIRED BY 321 (b) OF THE ACT Star Bank, National Association, the Trustee executing the statement of eligibility and qualification to which this Exhibit is attached does hereby consent that reports of examinations of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor in accordance with the provisions of 321 (b) of the Trust Indenture Act of 1939. STAR BANK, NATIONAL ASSOCIATION 1/26/96 BY: Keith A. Maurmeier - --------------------------- ------------------------------------ Date Keith A. Maurmeier Senior Trust Officer 29 Legal Title of Bank: Star Bank, National Association Call Date: 9/30/95 Address: P.O. Box 1038 ST-BK: 39-1240 City, State Zip: Cincinnati, OH 45201 FFIEC 031 FDIC Certificate No. 06548 Page RC-1 Consolidated Report of Conditions for Insured Commercial and State-Chartered Savings Banks for September 30, 1995 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC -- Balance Sheet
---------- -------------- C400 Dollar Amounts in Thousands RCFD Bil Mil Thou - ----------------------------------------------------------------------------------------------------------------------------- ASSETS /////////////////////// 1. Cash and balance due from depository institutions (from Schedule RC-A): /////////////////////// a. Noninterest-bearing balances and currency and coin(1) ..................................... 0081 452,065 1.a. b. Interest-bearing balances(2) .............................................................. 0071 0 1.b. 2. Securities: /////////////////////// a. Held-to-maturity securities (from Schedule RC-B, column A) ................................ 1754 1,447,188 2.a. b. Available-for-sale securities (from Schedule RC-B, column D) .............................. 1773 198,643 2.b. 3. Federal funds sold and securities purchased under agreement to resell in domestic offices /////////////////////// of the bank and of its Edge and Agreement subsidiaries, and in LBFs: /////////////////////// a. Federal funds sold ........................................................................ 0276 3,924 3.a. b. Securities purchased under agreements to resell ........................................... 0277 0 3.b. 4. Loans and lease financing receivables: --------------------------- /////////////////////// a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 6,019,307 /////////////////////// 4.a. b. LESS: Allowance for loan and lease losses ................... RCFD 3123 53,552 /////////////////////// 4.b. c. LESS: Allocated transfer risk reserve ....................... RCFD 3128 0 /////////////////////// 4.c. ---------------------------- d. Loans and leases, net of unearned income, /////////////////////// allowance, and reserve (item 4.a minus 4.b and 4.c) ....................................... 2125 5,919,785 4.d. 5. Trading assets (from schedule RC-D) .......................................................... 3545 0 5. 6. Premises and fixed assets (including capitalized leases) ..................................... 2145 100,250 6. 7. Other real estate owned (from Schedule RC-M) ................................................. 2150 2,745 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)...... 2130 0 8. 9. Customers' liability to this bank on acceptances outstanding ................................. 2195 25,372 9. 10. Intangible assets (from Schedule RC-M) ....................................................... 2143 225,460 10. 11. Other assets (from Schedule RC-F) ............................................................ 2160 173,361 11. 12. Total assets (sum of items 1 through 11) ..................................................... 2170 8,535,762 12. ---------------------------
- ----------------- (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit net held for trading. 30 Legal Title of Bank: Star Bank, National Association Call Date: 5/30/95 Address: P.O. Box 1038 ST-BK: 39-1240 City, State Zip: Cincinnati, OH 45201 FFIEC 031 FDIC Certificate No. 06548 Page RC-2 SCHEDULE RC -- Continued
-------------------------- Dollar Amounts in Thousands /////// Bil Mil Thou - ----------------------------------------------------------------------------------------------------------------------- LIABILITIES /////////////////////// 13. Deposits: /////////////////////// a. In domestic offices (sum of totals of columns A and C from Schedule RCE-E, /////////////////////// part I) ........................................................................... RCON 2200 6,504,080 13.a (1) Noninterest-bearing(1)................................ RCON 6631 1,197,794 /////////////////////// 13.a.(1) (2) Interest-bearing ..................................... RCON 6636 4,405,296 /////////////////////// 13.a.(2) -------------------------- /////////////////////// b. In foreign offices, Edge and Agreement subsidiaries, and ISFB (from Schedule RC-E, /////////////////////// part II) ......................................................................... RCFN 2200 41,512 13.b. (1) Noninterest-bearing .................................. RCPN 6631 0 /////////////////////// 13.b.(1) (2) Interest-bearing ..................................... RCFN 6836 41,513 /////////////////////// 13.b.(2) -------------------------- /////////////////////// 14. Federal funds purchased and securities sold under agreements to repurchase in domestic /////////////////////// office of the bank and of its Edge and Agreement subsidiaries, and in IBPs: /////////////////////// a. Federal funds purchased ........................................................... RCFD 0278 838,507 14.a. b. Securities sold under agreements to repurchase .................................... RCFD 0279 5,549 14.b. 15. a. Demand notes issued to the U.S. Treasury .......................................... RCON 2840 117,994 15.a. b. Trading liabilities (from Schedule RC-D) .......................................... RCFD 3949 0 15.b. 16. Other borrowed money: /////////////////////// a. With original maturity of one year or less ........................................ RCFD 2332 2,422 16.a. b. With original maturity of more than one year ...................................... RCFD 2339 0 16.b. 17. Mortgage indebtedness and obligations under capitalized leases ....................... RCFD 2910 11,711 17. 18. Bank's liability on acceptances executed and outstanding ............................. RCFD 2920 25,372 18. 19. Subordinated notes and debentures .................................................... RCFD 3200 148,362 19. 20. Other liabilities (from Schedule RC-G) ............................................... RCFD 2930 35,782 20. 21. Total liabilities (sum of items 13 through 20) ....................................... RCFD 2948 7,891,290 21. /////////////////////// 22. Limited-life preferred stock and related surplus ..................................... RCPD 3282 0 22. EQUITY CAPITAL /////////////////////// 23. Perpetual preferred stock and related surplus ........................................ RCFD 3838 0 23. 24. Common stock ......................................................................... RCFD 3230 18,200 24. 25. Surplus (exclude all surplus related to preferred stock) ............................. RCFD 3839 197,890 25. 26. a. Undivided profits and capital reserves ............................................ RCFD 3632 437,179 26.a. b. Net unrealized holding gains (losses) on available-for-sale securities ............ RCFD 3434 (4,786) 26.b. 27. Cumulative foreign currency translation adjustments .................................. RCFD 3284 0 27. 28. Total equity capital (sum of items 23 through 27) .................................... RCFD 3210 648,473 28. 29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, /////////////////////// 22, and 28) .......................................................................... RCFD 3300 8,539,763 29. --------------------------- Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best Number describes the most comprehensive level of auditing work performed for the bank by ---------------------- independent external auditors as of any date during 1994 ............................. RCFD 6724 N/A M.1. ----------------------
1 - Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 - Independent audit of the bank's parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 - Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 4 - Directors' examination of the bank performed by other external auditors (may be required by state chartering authority) 5 - Review of the bank's financial statements by external auditors 6 - Compilation of the bank's financial statements by external auditors 7 - Other audit procedures (exlcuding tax preparation work) 8 - No external audit work - ---------------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. 12 -----END PRIVACY-ENHANCED MESSAGE-----