XXXXXXXX BRANDS INTERNATIONAL, INC.
and
THE FIFTH THIRD BANK, as Trustee
--------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 26, 1998
To
INDENTURE
Dated as of November 30, 1991
--------------------------------------------
Amending the Indenture, dated as of November 30, 1991,
between Xxxxxxxx Brands International, Inc. and The Fifth
Third Bank, as trustee, with respect to the 9-5/8% Senior
Notes due 2004 issued by Xxxxxxxx Brands International, Inc.
FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental
Indenture" ) dated as of June 26 , 1998, by and between
C h i q u ita Brands International, Inc., a New Jersey
corporation (the "Company"), and The Fifth Third Bank, an
Ohio banking corporation, as trustee (the "Trustee"), with
respect to the 9-5/8% Senior Notes due 2004 issued by the
Company (the "Senior Notes" ).
RECITALS
T h e Company and the Trustee are parties to an
Indenture, dated as of November 30, 1991 (the "Indenture"),
pursuant to which the Company has issued the Senior Notes in
the aggregate principal amount of $250,000,000, all of which
Senior Notes are Outstanding as of the date hereof. A Board
Resolution sets forth the terms of the Senior Notes,
i n c luding certain definitions and covenants relating
thereto. Capitalized terms used herein without definition
shall have the respective meanings given such terms in the
Indenture.
The Company has duly authorized the execution and
delivery of this First Supplemental Indenture in order to
provide for the amendment of the definition of "Permitted
Indebtedness" and to add a definition of "Food-Related
Businesses" (collectively, the "Amendment").
Section 902 of the Indenture provides that the Company
may, when authorized by a Board Resolution and with the
consent of Holders of more than 50% in aggregate principal
amount of Outstanding Debt Securities of any series of Debt
Securities then Outstanding affected thereby, effect an
amendment to the Indenture. The Senior Notes are the sole
series of Debt Securities affected by the Amendment. All of
the Senior Notes were Outstanding as of the record date for
determining Holders entitled to consent to the Amendment.
Consents to the Amendment have been received by the Trustee
f r om Holders of more than $164,969,000 in aggregate
p r i ncipal amount of Outstanding Senior Notes, which
represents an amount in excess of 50% in aggregate principal
amount of Outstanding Senior Notes.
The Company has requested the Trustee and the Trustee
has agreed to join with it in the execution and delivery of
this First Supplemental Indenture.
The purpose of this First Supplemental Indenture is to
effect the Amendment with respect to the Senior Notes. All
conditions and requirements necessary to make this First
Supplemental Indenture, when duly executed and delivered, a
valid and binding agreement in accordance with its terms and
for the purposes herein expressed have been performed and
fulfilled.
All things necessary to make this First Supplemental
Indenture a valid agreement of the Company and the Trustee
and a valid amendment of and supplement to the Indenture
have been done.
NOW, THEREFORE, it is agreed that the Indenture is
amended with respect to the Senior Notes as follows from and
after the date hereof:
ARTICLE 1
AMENDMENT TO INDENTURE
Section 1. The definition of "Food-Related
Businesses" is hereby added as follows:
"F o o d-Related Businesses" means businesses or
operations involving food or food products, including,
without limitation, sourcing, processing, transportation,
x x x x x ing and distribution, and related assets and
infrastructure.
Section 2. T h e previous definition of "Permitted
Indebtedness" is hereby deleted in its entirety and replaced
with the following:
"Permitted Indebtedness" means (1) Indebtedness of the
Company or any Subsidiary outstanding on the date of this
Indenture; (2) Debt Securities having aggregate gross
proceeds not in excess of $350,000,000; (3) Indebtedness of
the Company under its existing unsecured revolving credit
facility as in effect on the date of this Indenture, whether
or not such Indebtedness is outstanding on the date of this
Indenture; PROVIDED, HOWEVER, that the proceeds of such
Indebtedness shall be invested in, or used in connection
with, Food-Related Businesses; (4) Indebtedness of the
Company not in excess of $150 million under revolving credit
f a c i l ities or other loan facilities or agreements
established after the date of this Indenture; PROVIDED,
HOWEVER, that the proceeds of such Indebtedness shall be
invested in, or used in connection with, Food-Related
Businesses; (5) Indebtedness of a Subsidiary of the Company
(including Acquired Indebtedness), which is non-recourse to
the Company, the proceeds of which are or have been used for
w o rking capital purposes or for capital expenditures
relating to Food-Related Businesses; (6) Indebtedness of a
Subsidiary borrowed from a lender located in any country
producing tropical fruit and denominated in the currency of
such country other than U.S. dollars, which Indebtedness is
incurred for hedging purposes in the ordinary course of
business consistent with past practice; (7) Intercompany
Debt Obligations of the Company and each of its wholly-owned
Subsidiaries; PROVIDED, HOWEVER, that the obligations of the
Company with respect to such Indebtedness shall be evidenced
by an intercompany note and shall be subordinated in right
of payment from and after such time as all Debt Securities
issued and outstanding under this Indenture shall become due
and payable (whether at Stated Maturity, by acceleration or
otherwise) to the payment and performance of the Company's
obligations under this Indenture or the Debt Securities; (8)
a d ditional Indebtedness of the Company the aggregate
principal amount of which outstanding at any time does not
exceed 5% of Consolidated Assets; and (9) any renewals,
e x tensions, substitutions, refundings, refinancings or
replacements of any Indebtedness described in clauses (1),
(2), (3), (4) or (8) above (including the replacement or
s u b s t itution of any unused commitment relating to
I n d e btedness), so long as the aggregate amount of
Indebtedness represented thereby is not increased by such
renewal, extension, substitution, refunding, refinancing or
replacement.
ARTICLE 2
MISCELLANEOUS
Section 2.1 This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts
together shall constitute but one and the same instrument.
Section 2.2. All provisions of this First
Supplemental Indenture shall be deemed to be incorporated
in, and made part of, the Indenture; and the Indenture, as
supplemented by the First Supplemental Indenture, shall be
read, taken and construed as one and the same instrument.
Section 2.3. In case any provision in this First
S u p plemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.4. N o thing in this First Supplemental
Indenture, express or implied, shall give to any Person
(other than the parties hereto, any Senior Notes Registrar,
any Paying Agent, and Authenticating Agent and their
successors under the Indenture, and the Holders of the
Senior Notes), any benefit or any legal or equitable right,
remedy or claim under the Indenture.
Section 2.5 This First Supplemental Indenture shall
be governed by and construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be signed and acknowledged by
their respective officers thereunto duly authorized as of
the day and year first above written.
XXXXXXXX BRANDS INTERNATIONAL,
INC.
[Seal]
/s/Xxxxxx X. Xxxxxxxxxx
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Attest: Xxxxxx X. Xxxxxxxxxx
Vice President and Treasurer
/s/Xxxxx X. Xxxxxxx
-------------------------
Assistant General Counsel
and Assistant Secretary
THE FIFTH THIRD BANK, Trustee
[Seal] /s/Xxxxxxx X. Xxxx
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Attest: Xxxxxxx X. Xxxx
Trust Officer
/s/Xxxxxx X. Xxxxxxxx
-------------------------
Assistant Vice President
STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX)
O n the 26th day of June, 1998, before me
personally came Xxxxxxx X. Xxxx, to me known, who being by
me duly sworn, did depose and say that he resides at 000
Xxxxxxx Xx., Xxxxxxxxxx, XX 00000, that he is a 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
a f fixed my official seal the day and year in this
certificate first above written.
/s/Xxxxxxx X. Xxxxxxx\
------------------------------
Notary Public, State of Ohio
Commission expires: July 19, 1998
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[Seal]
STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX)
O n the 26th day of June, 1998, before me
personally came Xxxxxx X. Xxxxxxxxxx, to me known, who being
by me duly sworn, did depose and say that he resides at 0000
Xxxxxxx Xxxx, #0000, Xxxxxxxxxx, XX 00000, that he is Vice
President and Treasurer of XXXXXXXX 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
a f fixed my official seal the day and year in this
certificate first above written.
/s/Xxxxxxx X. Xxxxxxx
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Notary Public, State of Ohio
Commission expires: July 19, 1998
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[Seal]
