Acquisition and Cancellation Agreement - Chiquita Brands International Inc., HMB Holding Co., BNS Global Inc., Trent Co. and REG Holdings Inc.
ACQUISITION AND CANCELLATION AGREEMENT dated as of September 13, 2002
between and among Chiquita Brands International, Inc., a New Jersey corporation
("Chiquita"), HMB Holding Company, a Delaware corporation ("HMB"), BNS Global,
Inc., a Delaware corporation ("BNS"), Trent Company, a Delaware corporation
("Trent"), and REG Holdings, Inc., a Delaware corporation ("REG").
RECITALS
A. HMB owns all of the outstanding stock of Intrepid Investment
Company, a Delaware corporation ("Intrepid").
B. BNS indirectly owns all of the outstanding stock of Hemisphere XII
Investors Ltd., a Cayman Islands private company ("Hemisphere").
C. Trent owns all of the founder's rights of BJS Kisimul
Establishment, a Liechtenstein anstalt ("BJS"). BJS owns 81% of the outstanding
stock of Hameico Fruit Trade GmbH, a German limited liability company
("Hameico"). A Chiquita subsidiary owns 19% of the outstanding stock of Hameico.
D. REG owns all of the founder's rights of SET Fruchthandel, a
Liechtenstein anstalt ("SET"). SET owns all of the outstanding stock of Wessels
GmbH, a German limited liability company ("Wessels").
E. HMB, BNS, Trent and REG are herein referred to as the "Holding
Companies." Intrepid, Hemisphere, BJS and SET are herein referred to as the
"Borrowers." Intrepid, Hemisphere, Hameico and Wessels are herein referred to as
the "Limited Partners."
F. Chiquita subsidiaries (the "Lenders") have made loans (the "Loans")
to the Borrowers. At June 30, 2002, the unpaid principal, interest and fees
under the Loans owed to the Lenders by each Borrower were as follows:
Principal Interest and Fees
----------------- -----------------
Intrepid (euro) 25,001,626 (euro) 5,137,742
Hemisphere (euro) 90,645,969 (euro) 4,104,983
BJS (euro) 11,555,197 (euro) 25,730,301
SET (euro) 20,042,971 (euro) 59,363,785
G. The Limited Partners beneficially own limited partnership interests
(the "Scipio Interests") in Scipio Gmbh & Co., a German limited partnership
("Scipio"). The percentage of the total equity interests in Scipio represented
by the Scipio Interests owned by each Limited Partner is as follows:
<PAGE>
Intrepid 24.38%
Hemisphere 24.09%
Hameico 24.61%
Wessels 23.89%
-----
Total 96.97%
H. Each Loan is secured by a pledge of all of the Scipio limited
partnership interests owned by the Borrower or by all of the shares of the
Borrower's subsidiary that owns Scipio limited partnership interests (the
"Collateral"), as follows:
Borrower Collateral
---------- ------------------------------------
Intrepid Scipio limited partnership interests
Hemisphere Scipio limited partnership interests
BJS Hameico shares
SET Wessels shares
I. As used herein, (a) the term "own" in some cases does not include
legal ownership, but in all cases includes beneficial ownership and (b) a
"subsidiary" means any entity (whether a corporation, company, anstalt or
limited partnerhip) more than 50% of whose equity interests are beneficially
owned.
J. Chiquita is willing to acquire, through one or more subsidiaries by
means of a series of transactions (the "Transactions"), all of the Scipio
Interests owned by the Limited Partners. The Holding Companies are willing to
cause the Limited Partners and their other subsidiaries to effect such
purchases. The parties are also willing, to settle amounts owed under the loans
as provided in this Agreement.
AGREEMENTS
Subject to the terms and conditions of this Agreement, the parties
hereto agree as follows:
1. At a time prior to the first Closing Date (as defined in Paragraph 2)
designated by Chiquita, Chiquita will cause each Lender to cancel all
of the unpaid interest and fees on each Loan (the "Interest
Cancellation"). The agreement effecting the Interest Cancellation
shall provide that interest only is being cancelled and that any
further payments on the Loans will be applied solely against the
outstanding principal of the Loans.
2. On one or more closing dates designated by Chiquita (the "Closing
Dates"), Chiquita will cause one or more of its subsidiaries
(collectively, the "Buyers") to acquire, and each Holding Company will
cause its Limited Partner subsidiary (or the successor in interest of
such Limited Partner, if any, in Transactions specified by Chiquita in
accordance with this Agreement), to transfer to the Buyer specified by
Chiquita, all of such Limited Partner's Scipio Interests (each such
purchase and sale being herein referred to as an "Acquisition"). Such
Acquisitions of
<PAGE>
Scipio Interests may be effected directly or, if and to the extent
designated by Chiquita, through the transfer to a Chiquita subsidiary
of equity interest in an entity directly or indirectly owning Scipio
Interests.
3. The aggregate purchase price for the Scipio Interests (the "Purchase
Price") shall be $47.4 million, which shall be payable, at Chiquita's
option, in cash and/or notes of the Buyers having a market rate of
interest. The Purchase Price shall be allocated among the Limited
Partners (or their successors in interest, as the case may be) in
proportion to their respective percentage ownership interests in
Scipio.
4. Each Holding Company will cause each of its subsidiaries (including
its Borrower and Limited Partner subsidiaries), by means of such
Transactions as Chiquita shall specify, to apply the entire Purchase
Price received by such Holding Company's Limited Partner subsidiary
(or its successor in interest) to make payments of principal on the
Loan owed by such Holding Company's Borrower subsidiary (each such
payment being herein referred to as a "Loan Payment"). Immediately
following the such Loan Payment, Chiquita will cause each Lender to
cancel the unpaid principal of such Loan (a "Loan Cancellation").
5. Each Holding Company will, and will cause each of its subsidiaries to,
execute and deliver such agreements and documents, and take such other
actions (including each Limited Partner's approval of all of the
Acquisitions), as are requested by Chiquita in order to effect each
Interest Cancellation, Acquisition, Loan Payment and Loan Cancellation
in the manner, and through such Transactions, as Chiquita shall
designate. Such Transactions may include intercompany transactions
implemented prior to October 1, 2002 between certain Holding Companies
and certain of their subsidiaries or between certain subsidiaries of
certain Holding Companies. Each Holding Company will also cooperate
with Chiquita and its subsidiaries with respect to obtaining the
Required Governmental Approvals referred to below.
6. Chiquita's obligations under this Agreement to effect any Interest
Cancellation, Acquisition, Loan Payment or Loan Cancellation are all
subject to the satisfaction, on or prior to the first Closing Date, of
each of the following conditions (the "Closing Conditions"):
a. Chiquita shall have received all necessary governmental approvals
for all of the transactions contemplated hereby, including all
necessary approvals of the Acquisitions by the cartel authorities
of Germany and Austria (the "Required Governmental Approvals").
b. Agreements satisfactory to Chiquita for the continuation of
credit to Scipio's subsidiary, Atlanta AG, a German company
("Atlanta") in an aggregate amount not less than that currently
provided by Atlanta's lender banks, shall have been entered into
by (i) Atlanta's current bank lenders or (ii) such other banks as
Chiquita or Atlanta shall arrange to provide such credit.
<PAGE>
c. Chiquita's subsidiary, Chiquita Brands, Inc., a Delaware
corporation ("CBI"), shall have received all necessary consents
for all of the transactions contemplated hereby, as well as the
investment of up to $15 million by CBI or its subsidiaries in
Atlanta following the Acquisitions, under the Amended and
Restated Credit Agreement dated as of March 6, 2002, among CBI,
the Lenders named therein, Wells Fargo Bank, National
Association, as lead arranger and syndication agent, and Foothill
Capital Corporation, as administrative agent.
d. The covenants contained in the Indenture dated as of March 15,
2002 between Chiquita and Wells Fargo Bank Minnesota, National
Association, as Trustee, shall not, in Chiquita's judgment, be
contravened as a result of the consummation of any of the
transactions contemplated hereby.
e. Each of the Holding Companies shall have complied in all material
respects with all obligations and covenants required to be
performed or complied with at or prior to the first Closing Date
under this Agreement, including its obligations under paragraph
5.
7. Each Holding Company's respective obligation to effect an Acquisition
is subject to Chiquita's receipt, on or prior to the first Closing
Date, of all Required Governmental Approvals.
8. This Agreement may be terminated by any of the parties hereto on or
after March 31, 2003 with respect to any Acquisition contemplated by
this Agreement if such Acquisition has not occurred by that date.
9. The obligations of the Holding Companies under this Agreement are
several and not joint.
10. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Ohio.
11. All notices and other communications made in connection with this
Agreement shall be in writing and shall be deemed to have been duly
given if (a) mailed by first class mail, (b) transmitted by hand
delivery, (c) sent by next-day or overnight mail or courier service or
sent by facsimile transmission or email, addressed as follows:
[notice provision omitted]
<PAGE>
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
12. This Agreement may be executed in several counterparts, each of which
shall be deemed an original and all of which shall together constitute
one and the same instrument.
13. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and heirs. This
Agreement shall not be assignable by any of the parties hereto.
Nothing in this Agreement shall confer any rights upon any person or
entity other that the parties hereto and their respective successors
and heirs. No amendment or waiver of this Agreement shall be valid or
binding unless set forth in writing and executed by the party against
whom enforcement of the amendment or waiver is sought.
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
CHIQUITA BRANDS INTERNATIONAL, INC.
BY /s/
---------------------------------
Name:
Title:
HMB HOLDING COMPANY
BY /s/
---------------------------------
Name:
Title:
BNS GLOBAL, INC.
BY /s/
---------------------------------
Name:
Title:
TRENT COMPANY
BY /s/
---------------------------------
Name:
Title:
REG HOLDINGS, INC.
BY /s/
---------------------------------
Name:
Title: