"Absolute Rate" means a fixed annual rate, expressed as a percentage.
"Absolute Rate Bid Loan" means any Bid Loan that bears interest determined with reference to an Absolute Rate.
"Acquisition" means the acquisition of IBP for an aggregate purchase price, together with the assumption and refinancing of Indebtedness, of approximately $4,441,000,000, subject to adjustment based on the market price of the Borrower's common stock, of which $1,608,380,640 was paid in cash (the balance of the purchase price to be paid with shares of the Borrower's Class A common stock) and $983,332,724.32 was the cash amount required to refinance the IBP Credit Agreement and certain other Indebtedness of IBP.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity as administrative agent for the Lenders, together with any successor thereto in such capacity.
"Administrative Agent's Fee Letter" means the fee letter dated July 27, 2001, between the Borrower and the Administrative Agent.
"Administrative Agent's Payment Office" means the address for payments set forth on the signature pages hereof in relation to the Administrative Agent or such other address as the Administrative Agent may from time to time specify in accordance with Section 10.01.
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"Administrative Questionnaire" means an Administrative Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, any Subsidiary of such Person and any other Person which, directly or indirectly, controls, is controlled by, or is under common control with, such Person, and includes, if such Person is a corporation, each Person who is the beneficial owner of 5% or more of such corporation's outstanding common stock. For purposes of this definition, "control" means the possession of the power to direct or cause the direction of management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit Agreement, as from time to time amended, modified or supplemented.
"Aggregate Commitments" means the aggregate amount of the Commitments of all the Lenders as in effect from time to time.
"Assignee" has the meaning specified in Section 10.08(b).
"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.08), and accepted by the Administrative Agent, in the form of Exhibit 10.08 or any other form approved by the Administrative Agent and the Borrower.
"Bid Borrowing" means an extension of credit hereunder consisting of one or more Bid Loans made to the Borrower on the same day by one or more Lenders.
"Bid Loan" means a Loan made by a Lender to the Borrower pursuant to Section 2.03 and may be a LIBOR Bid Loan or an Absolute Rate Bid Loan.
"Borrower" has the meaning specified in the preamble.
"Borrowing" means a Committed Borrowing or a Bid Borrowing.
"Bridge Facility" means the senior unsecured bridge credit facility of the Borrower in an aggregate principal amount of $2,500,000,000, established under the credit agreement dated as of August 3, 2001, among the Borrower, the lenders party thereto, The Chase Manhattan Bank, as administrative agent, Merrill Lynch Capital Corporation, as syndication agent, and SunTrust Bank, as documentation agent.
"Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close and, if the applicable Business Day relates to any Eurodollar Loan, means such a day on which dealings are carried on in the London interbank market.
"CERCLA" has the meaning specified in the definition of Environmental Law.
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"COBRA" has the meaning specified in Section 4.16(k).
"Code" means the Internal Revenue Code of 1986 (or any successor(s) thereto), as amended from time to time.
"Commitment" means, for each Lender, as the context may require (a) the amount in dollars set forth in Schedule 1.01(a) opposite the name of such Lender under the heading "Commitment" or as otherwise set forth in any Assignment and Acceptance, as such amount may be reduced pursuant to Section 2.06 or as a result of one or more assignments pursuant to Section 10.08 or (b) the obligation of such Lender to extend credit to the Borrower hereunder in the amount specified in the immediately preceding clause (a). The initial aggregate amount of the Lenders' Commitments is $500,000,000.
"Committed Borrowing" means an extension of credit hereunder consisting of Committed Loans made, continued or converted on the same day by the Lenders ratably according to their Percentage Shares and, in the case of Eurodollar Loans, having the same Interest Periods.
"Committed Loan" means an extension of credit by a Lender to the Borrower pursuant to Section 2.01 and may be a Eurodollar Loan or a Reference Rate Loan.
"Competitive Bid" means an offer by a Lender to make a Bid Loan in accordance with Section 2.04(b).
"Competitive Bid Request" has the meaning specified in Section 2.04(a).
"Consolidated EBITDA" means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) extraordinary losses for such period, (v) nonrecurring merger-related charges incurred by IBP during the fiscal quarter ending September 30, 2001 not to exceed $45,000,000 and (vi) noncash charges to the extent solely attributable to unrealized losses under SFAS 133 (provided that any cash payment made with respect to any such noncash charge shall be subtracted in computing Consolidated EBITDA during the period in which such cash payment is made) and minus (b) without duplication and to the extent included in determining such Net Income, the sum of (i) any extraordinary gains for such period and (ii) noncash gains to the extent solely attributable to unrealized gains under SFAS 133 (provided that any cash received with respect to any such noncash gain shall be added in computing Consolidated EBITDA during the period in which such cash is received), all determined on a consolidated basis in accordance with GAAP; provided that for the purposes of determining the ratios set forth in Sections 7.13 and 7.14, Consolidated EBITDA in respect of any period of time prior to the date that IBP becomes a Subsidiary of the Borrower shall be deemed to equal the combined historical Consolidated EBITDA of the Borrower and IBP for such period; provided further that for the purposes of determining the ratio set forth in Section 7.13, if the Borrower or any of its consolidated Subsidiaries has made any Material Acquisition or Material Disposition during the period of four consecutive fiscal quarters ended on the date on which the most recent
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fiscal quarter ended, Consolidated EBITDA for the relevant period for testing compliance shall be calculated after giving pro forma effect thereto as if such Material Acquisition or Material Disposition had occurred on the first day of the relevant period for testing compliance. As used in this definition, "Material Acquisition" means any acquisition or series of related acquisitions of property that (a) constitutes all or substantially all of the Stock or all or substantially all of the assets of any Person or comprises all or substantially all of any operating unit of a business and (b) involves consideration in excess of $100,000,000; and "Material Disposition" means any sale, transfer, lease or other disposition or series of related sales, transfers, leases or other dispositions of property that (x) constitutes all or substantially all of the Stock or all or substantially all of the assets of any Subsidiary of the Borrower or involves assets comprising all or substantially all of any operating unit of a business of the Borrower or any of its Subsidiaries and (y) yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $100,000,000.
"Consolidated Interest Expense" means, for any period, the interest expense (including imputed interest expense in respect of capital lease obligations) of the Borrower and its consolidated Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that, until such time as IBP shall have been a Subsidiary of the Borrower for 365 days, for the purposes of determining the ratios set forth in Sections 7.13 and 7.14, Consolidated Interest Expense at any date (the "Calculation Date") shall be calculated on an annualized basis, and shall be equal to (A) the amount of interest expense (including imputed interest expense in respect of capital lease obligations) of the Borrower and its consolidated Subsidiaries for the period from the date that IBP becomes a Subsidiary of the Borrower to the Calculation Date, multiplied by (B) a fraction, the numerator of which is equal to 365 and the denominator of which is equal to the number of days in such period.
"Consolidated Net Income" means, for any period, the consolidated net income (or loss) of the Borrower and its consolidated Subsidiaries for such period (taken as a single accounting period) determined in conformity with GAAP, excluding (to the extent otherwise included therein) any gains or losses, together with any related provision for taxes, realized upon any sale of assets other than in the ordinary course of business; provided, however, that there shall be excluded therefrom the net income (or loss) of any Person accrued prior to the earlier of the date such Person becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries or such Person's assets are acquired by the Borrower or any of its Subsidiaries; provided further however that for purposes of the definition of Consolidated Net Income Available for Restricted Payments, Consolidated Net Income shall be calculated as if IBP and its consolidated Subsidiaries were consolidated Subsidiaries of the Borrower on and after January 1, 2001.
"Consolidated Net Income Available for Restricted Payments" means an amount equal to (i) the sum of $100,000,000 plus 80% (or minus 100% in case of consolidated net loss) of Consolidated Net Income for the period (taken as one accounting period) commencing January 1, 2001 and terminating on the fiscal quarter of the Borrower immediately preceding the date of any proposed Restricted Payment, less (ii) the sum of (A) the aggregate amount of all dividends (other than dividends payable solely in Stock of the Borrower) and other distributions paid or declared by the Borrower (for all periods on or after January 1, 2001) or IBP (for the period from January 1, 2001 through the effective date of the Merger and excluding dividends or other distributions made to the Borrower) on any class of its Stock and (B) the excess (if any) of the aggregate amount expended, directly or indirectly, by the Borrower (for all periods on or after January 1, 2001) or by IBP (for the period from January 1, 2001 through the effective date of the Merger) for the redemption, purchase or other acquisition of any shares of its Stock, over the aggregate net amount of any cash or cash equivalents received by the Borrower (for all periods on or after January 1, 2001) or IBP (for the period from January 1, 2001 through the effective date of the Merger) as consideration for the sale of any shares of its Stock.
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"Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its property is bound.
"Controlled Group" means, with respect to any Person, all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) which are under common control with such Person and which, together with such Person, are treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
"Debt Rating" means the actual or implied rating as most recently assigned to the Index Debt or the Short-Term Index Debt by Moody's or S&P, as the case may be.
"Default" means any event or condition which, with the giving of notice or the lapse of time, or both, would become an Event of Default.
"Effective Date" means the date on which all conditions precedent set forth in Section 5.01 are satisfied (or waived in accordance with Section 10.02).
"Environmental Claim" means any claim, however asserted, by any Governmental Authority or other Person alleging potential liability for violation of any Environmental Law or for release or injury to the environment or threat to public health, personal injury (including sickness, disease or death), property damage, natural resources damage, or otherwise alleging liability for damages, punitive damages, cleanup costs, removal costs, remedial costs, response costs, restitution, civil or criminal penalties, injunctive relief, or other type of relief, resulting from or based upon (a) the presence, placement, discharge, emission or release (including intentional and unintentional, negligent and non-negligent, sudden or non-sudden, accidental or non-accidental placement, spill, leaks, discharges, emissions or releases) of any Hazardous Material at, in or from property, whether or not owned by the Borrower or any of its Subsidiaries, or (b) any other circumstances forming the basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Law" means the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. ' 9601 et seq.) ("CERCLA"), the Hazardous Material Transportation Act (49 U.S.C. ' 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. ' 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. ' 1251 et seq.), the Clean Air Act (42 U.S.C. ' 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ' 2601 et seq.) and the Occupational Safety and Health Act (29 U.S.C. ' 651 et seq.) ("OSHA"), as
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such laws have been or hereafter may be amended, modified or supplemented, and any and all analogous future federal, or present or future state or local, statutes and the regulations promulgated pursuant thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time and all regulations promulgated thereunder.
"ERISA Event" means, with respect to any Person, (a) a Reportable Event (other than a Reportable Event not subject to the provision for 30-day notice to the PBGC under regulations issued under Section 4043 of ERISA); (b) the withdrawal of such Person or any member of its Controlled Group from a Plan during a plan year in which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA; (c) the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under Section 4041 of ERISA; (d) the institution of proceedings to terminate a Plan by the PBGC; (e) the failure to make required contributions which would result in the imposition of a Lien under Section 412 of the Code or Section 302 of ERISA; and (f) any other event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or the imposition of any liability under Title IV of ERISA other than PBGC premiums due but not delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Loan" means any Committed Loan that bears interest at a rate determined with reference to LIBOR.
"Eurodollar Reserve Percentage" means, with respect to any Interest Period for any Eurodollar Loan made by any Lender, the reserve percentage applicable during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01.
"Excess Margin Stock" means that portion, if any, of the Margin Stock owned by the Borrower and its Subsidiaries that must be excluded from the restrictions imposed by Section 7.01 and Section 7.07 in order for the value (determined in accordance with Regulation U) of the Margin Stock subject to such Sections to account for less than 25% of the aggregate value (as so determined) of all assets subject to such Sections.
"Existing Credit Agreement" means the Fourth Amended and Restated Credit Agreement dated as of May 26, 1995, as amended, among the Borrower and the banks and agents party thereto.
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"Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve System.
"Five-Year Credit Agreement" means the Five-Year Credit Agreement dated as of September 24, 2001, among the Borrower, the banks from time to time party thereto, The Chase Manhattan Bank, as administrative agent, Merrill Lynch Capital Corporation, as syndication agent, and SunTrust Bank, as documentation agent and Mizuho Financial Group and Rabobank International, as co-documentation agents.
"Form W-8BEN" has the meaning specified in Section 3.05(f)(i)(B).
"Form W-8ECI" has the meaning specified in Section 3.05(f)(i)(A).
"GAAP" means accounting principles generally accepted in the United States of America as set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be in general use by significant segments of the accounting profession, which are applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state or other political subdivision thereof and any central bank (or similar monetary or regulatory authority) thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Agreement" means the Guarantee Agreement, substantially in the form of Exhibit 1.01, made by IBP for the benefit of the Administrative Agent and the Lenders.
"Hazardous Materials" means all those substances which are regulated by, or which may form the basis of liability under, any Environmental Law, including all substances identified under any Environmental Law as a pollutant, contaminant, waste, solid waste, hazardous waste, hazardous constituent, special waste, hazardous substance, hazardous material, or toxic substance, or petroleum or petroleum derived substance or waste.
"Hedging Agreement" means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
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"IBP" means IBP, inc., a Delaware corporation.
"IBP Credit Agreement" means the $950,000,000 Nine-Month Credit Agreement dated as of December 20, 2000, among IBP, the banks party thereto, Bank of America, N.A., as Syndication Agent, and U.S. Bank National Association, as Administrative Agent, as amended.
"Indebtedness" of any Person means, without duplication, (a) all indebtedness for borrowed money or for the deferred purchase price of property or services (including reimbursement and all other obligations with respect to surety bonds, letters of credit and bankers' acceptances, whether or not matured); (b) all obligations evidenced by notes, bonds, debentures or similar instruments; (c) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property); (d) all obligations under leases which have been or should be, in accordance with GAAP, recorded as capital leases; (e) all net obligations with respect to Hedging Agreements; (f) all direct or indirect guaranties in respect of any obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (a), (b), (c), (d) or (e) above; and (g) all Indebtedness referred to in clause (a), (b), (c), (d) or (e) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; provided, however, that if any Indebtedness of any type referred to above is supported by another type of Indebtedness referred to above, such Indebtedness shall not be considered more than once for the purposes of this definition.
"Indebtedness for Borrowed Money" means the sum of all Indebtedness of the Borrower and its consolidated Subsidiaries of the type referred to in paragraphs (a), (b) and (d) of the definition of Indebtedness plus all obligations of the Borrower and its consolidated Subsidiaries under the Receivables Facility.
"Indemnified Party" has the meaning specified in Section 10.05(a).
"Indentures" means the indentures, including supplements and/or board resolutions establishing series of debt thereunder, and note agreements of the Borrower and IBP and their Subsidiaries listed on Schedule 1.01(b).
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed money of the Borrower that is not guaranteed by any other Person or subject to any other credit enhancement.
"Insolvency Proceeding" means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors or other similar arrangement in respect of the creditors of any Person generally or any substantial portion of the creditors of such Person; in each case undertaken under United States Federal or State law or foreign law.
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"Interest Payment Date" means (a) with respect to any Eurodollar Loan or Bid Loan, the last day of each Interest Period applicable to such Eurodollar Loan or Bid Loan and (i) with respect to any Interest Period of six months duration for any Eurodollar Loan, the date which falls three months after the beginning of such Interest Period, and (ii) with respect to any Bid Loan, such intervening date prior to the maturity thereof as may be agreed between the Borrower and the applicable Lender and (b) with respect to any Reference Rate Loan, the last day of each calendar quarter.
"Interest Period" means,
(a) with respect to any Eurodollar Loan, the period commencing on the Business Day such Eurodollar Loan is disbursed or on the date on which a Reference Rate Loan is converted into a Eurodollar Loan and ending on the date 14 days or one, two, three or six months thereafter, in its Notice of Borrowing or Notice of Conversion/Continuation; and
(b) with respect to any Bid Loan, the period specified by the Borrower in the relevant Competitive Bid Request;
provided, however, that:
(i) in the case of the continuation of a Eurodollar Loan pursuant to Section 2.11(b), the Interest Period applicable after the continuation of such Loan shall commence on the last day of the preceding Interest Period;
(ii) if any Interest Period applicable to a Eurodollar Loan would otherwise end on a day which is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(iii) any Interest Period applicable to a Eurodollar Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(iv) no Interest Period for any Loan shall extend beyond the Maturity Date.
"IRS" means the Internal Revenue Service of the United States of America.
"Lender" has the meaning specified in the preamble and includes each Lender listed on the signature pages hereof and each Person which becomes a Lender pursuant to Section 10.08.
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"Lender Affiliate" means, (a) with respect to any Lender, (i) an Affiliate of such Lender or (ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by a Lender or an Affiliate of such Lender and (b) with respect to any Lender that is a fund which invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
"Lending Office" means, with respect to any Lender, the office or offices of such Lender as specified in such Lender's Administrative Questionnaire delivered to the Administrative Agent.
"Level I Status" exists at any date if, at such date (a) the Debt Rating for the Index Debt is BBB+ (or the equivalent) or higher by S&P and Baa1 (or the equivalent) or higher by Moody's and (b) the Debt Rating for the Short-Term Index Debt is rated A2 or higher by Moody's and P2 or higher by S&P.
"Level II Status" exists at any date if, at such date (a) the Debt Rating for the Index Debt is BBB (or the equivalent) by S&P and Baa2 (or the equivalent) by Moody's and (b) the Debt Rating for the Short-Term Index Debt is rated A2 or higher by Moody's and P2 or higher by S&P.
"Level III Status" exists at any date if, at such date (a) the Debt Rating for the Index Debt is BBB- (or the equivalent) by S&P and Baa3 (or the equivalent) by Moody's or (b) (i) the Debt Rating for the Short-Term Index Debt is rated lower than A2 by Moody's or lower than P2 by S&P and (ii) neither Level IV Status nor Level V Status exists.
"Level IV Status" exists at any date if, at such date the Debt Rating for the Index Debt is BB+ (or the equivalent) by S&P and Ba1 (or the equivalent) by Moody's.
"Level V Status" exists at any date if, at such date the Debt Rating for the Index Debt is BB (or the equivalent) or lower by S&P or Ba2 (or the equivalent) or lower by Moody's.
"Leverage Ratio" means, at any date of determination, the ratio of (a) Indebtedness for Borrowed Money at such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters for which financial statements have most recently been delivered under Section 6.09(a) or (b).
"LIBOR" means, with respect to any Eurodollar Loan or LIBOR Bid Loan for any Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity
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comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the "LIBOR" with respect to such Eurodollar Loan or LIBOR Bid Loan for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a rate determined with reference to LIBOR.
"LIBOR Bid Margin" has the meaning specified in Section 2.04(b)(ii)(B).
"Lien" means any lien, charge, security interest or encumbrance or any other type of preferential arrangement (including liens or retained security titles of conditional vendors and capitalized leases but excluding any right of set-off).
"Loan" means an extension of credit by a Lender pursuant to Article II and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, the Guarantee Agreement, any promissory notes delivered pursuant to this Agreement, the Notices of Borrowing, the Notices of Conversion/Continuation and the Competitive Bid Requests.
"Majority Lenders" means at any time (i) Lenders holding more than 50% of the Commitments or (ii) after the Commitments expire or terminate or the Loans become due and payable pursuant to Article VIII or for purposes of declaring the Loans to be due and payable pursuant to Article VIII, Lenders holding more than 50% of the outstanding Loans, including outstanding Bid Loans.
"Margin Stock" shall have the meaning given such term under Regulation U.
"Material Adverse Effect" means (a) an adverse change in, or an adverse effect upon, the financial condition, business, prospects or properties of the Borrower or the Borrower and its Subsidiaries taken as a whole; (b) any material adverse change in the rights or remedies of the Lenders under the Loan Documents or the ability of the Borrower to perform its obligations under any of the Loan Documents; or (c) any material adverse change in the legality, validity or enforceability of any Loan Document.
"Maturity Date" means the first anniversary of the Termination Date.
"Merger" means the merger of IBP with and into Merger Co. in accordance with the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger dated as of January 1, 2001, among IBP, the Borrower and Merger Co., as modified by the Stipulation and Order dated June 27, 2001, with no changes therefrom adverse to the Lenders.
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"Merger Co." means Lasso Acquisition Corporation, a Delaware corporation and a wholly-owned Subsidiary of the Borrower.
"Moody's" means Moody's Investors Service, Inc. or any successor to the rating agency business thereof.
"Multiemployer Plan" means, with respect to any Person, at any time, a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to which such Person or any member of its Controlled Group is making, or is obligated to make contributions or has made, or been obligated to make, contributions.
"Net Worth" means, with respect to any Person, at any date of determination, shareholders' equity as determined in accordance with GAAP.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Conversion/Continuation" has the meaning specified in Section 2.11(b).
"Obligations" means all Loans, other Indebtedness, advances, debts, liabilities, obligations, covenants and duties owing by the Borrower to any Lender, the Administrative Agent, any Affiliate of any of the foregoing or any Indemnified Party, of any kind or nature, present or future, whether or not evidenced by any note, guaranty or other instrument, arising under this Agreement or under any other Loan Document, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, guaranty, indemnification, or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired. The term "Obligations" includes all interest, charges, expenses, fees, attorneys' fees and disbursements (including the allocated cost of in-house counsel) and any other sum chargeable to the Borrower under this Agreement or any other Loan Document.
"OSHA" has the meaning specified in the definition of Environmental Laws.
"Other Taxes" has the meaning specified in Section 3.05(b).
"Participant" has the meaning specified in Section 10.08(e).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
"Percentage Share" means, as to any Lender, at any time, such Lender's percentage share of the Aggregate Commitments, as set forth opposite such Lender's name in Schedule 1.01(a) under the heading "Percentage Share" or set forth in any Assignment and Acceptance delivered pursuant to Section 10.08, as such percentage may be modified from time to time in connection with any assignment of the Commitment of such Lender in accordance with the terms hereof.
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"Permitted Disposition" means, any disposition (except as otherwise permitted under Section 7.07) made by the Borrower or any of its Subsidiaries of any of its assets if the net income for the most recently completed four fiscal quarter period for which financial statements have been delivered pursuant to Section 6.09(a) or (b) derived from the assets subject to such disposition together with the net income for such period derived from all other assets sold or otherwise disposed of during or after such period does not exceed 10% of Consolidated Net Income (calculated as if the Merger had occurred as of the Effective Date) for such period.
"Permitted Investments" means:
(a) securities issued or fully guaranteed or insured by the United States Government or any agency thereof and backed by the full faith and credit of the United States of America having maturities of not more than one year from the date of acquisition;
(b) certificates of deposit, time deposits, Eurodollar time deposits, overnight bank deposits, repurchase agreements, reverse repurchase agreements or bankers' acceptances, having in each case a tenor of not more than one year issued by any Lender, or by any United States commercial bank or any branch or agency of a non-United States bank licensed to conduct business in the United States of America having a combined capital and surplus of not less than $500,000,000 whose short term securities are rated at least A-1 by S&P and P-1 by Moody's;
(c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody's and in either case having a tenor of not more than 270 days; and
(d) money-market funds invested in short-term securities rated at least as provided in clause (b) above.
"Permitted Lien Basket" means 10% of Total Capitalization.
"Permitted Liens" has the meaning specified in Section 7.01.
"Person" means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.
"Plan" means, with respect to the Borrower or any member of its Controlled Group, at any time, an employee pension benefit plan as defined in Section 3(2) of ERISA (including a Multiemployer Plan) that is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and is maintained for the employees of such Person or any member of its Controlled Group.
"Priority Debt" means (a) any Indebtedness secured by a Lien (including in connection with capital leases or other financing leases) encumbering any asset of the Borrower or any of its Subsidiaries, (b) any Indebtedness of any Subsidiary of the Borrower (other than Indebtedness of IBP under the Guarantee Agreement, Indebtedness of IBP owed to the Borrower and Indebtedness (in an amount not to
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exceed the amount of the guarantee of the Obligations under the Guarantee Agreement) of IBP), (c) any receivables purchase transaction involving receivables of the Borrower or any of its Subsidiaries or any other securitization of assets of the Borrower or any of its Subsidiaries and (d) any sale-leaseback transaction involving assets of the Borrower or any of its Subsidiaries.
"Receivables Bridge Facility" means the senior unsecured bridge credit facility of the Borrower in an aggregate principal amount of $350,000,000, established under the credit agreement dated as of August 3, 2001, among the Borrower, the lenders party thereto and The Chase Manhattan Bank, as administrative agent.
"Receivables Facility" means an accounts receivable securitization established by the Borrower in an aggregate principal amount of up to $750,000,000.
"Reference Rate" means the higher of (a) the Federal Funds Rate plus 1/2% and (b) the rate of interest (the "Prime Rate") publicly announced from time to time by the Administrative Agent, as its prime rate in effect at its principal office in New York City. Any change in the Prime Rate shall take effect at the opening of business on the day specified in the public announcement of such change.
"Reference Rate Loan" means any Committed Loan that bears interest at a rate determined with reference to the Reference Rate.
"Register" has the meaning specified in Section 10.08(c).
"Regulation U" shall mean Regulation U of the Board of Governors of the Federal Reserve System of the United States of America as from time to time in effect and all official rulings and interpretations thereunder or thereof.
"Reportable Event" means any of the events set forth in Section 4043(b) of ERISA or the regulations thereunder.
"Replacement Lender" has the meaning specified in Section 3.13(b).
"Requirement of Law" means, with respect to any Person, the charter and by-laws or other organizational or governing documents of such Person, and any law, rule or regulation (including Environmental Laws and ERISA) or order, decree or other determination of an arbitrator or a court or other Governmental Authority applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
"Responsible Officer" means, with respect to any Person, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, the Assistant Treasurer or the Secretary of such Person.
"Restricted Payment" means any dividend (other than dividends payable solely in Stock of the Borrower and dividends paid by any wholly-owned Subsidiary of the Borrower to the Borrower or any other wholly-owned Subsidiary of the Borrower) or any other distribution with respect to any Stock of the Borrower or any of its Subsidiaries, whether now or hereafter outstanding, or any payment on account of the
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purchase, acquisition, redemption or other retirement, directly or indirectly, of any shares of such Stock (other than the purchase of Stock in the ordinary course in connection with employee benefit plans of the Borrower or its Subsidiaries, including employee stock purchase plans and stock option plans).
"Short-Term Index Debt" means senior, unsecured short-term Indebtedness for borrowed money of the Borrower that is not guaranteed by any other Person or subject to any other credit enhancement.
"S&P" means Standard & Poor's Ratings Group or any successor to the rating agency business thereof.
"Solvent" means, with respect to any Person, that the fair value of the assets of such Person (both at fair valuation and at present fair saleable value) is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date and that, as of such date, such Person is able to pay all liabilities of such Person as such liabilities mature and such Person does not have unreasonably small capital with which to carry on its business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
"Stock" means all shares, options, interests, participations or other equivalents (regardless of how designated) of or in a corporation or other entity, whether voting or non-voting, of any class and includes, common stock, preferred stock or warrants or options for any of the foregoing.
"Subsidiary" means, with respect to any Person, any corporation more than 50% of whose stock having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation is at the time owned by such Person, directly or indirectly through one or more Subsidiaries. At all times on and after the date of the Acquisition, IBP and its Subsidiaries will constitute Subsidiaries of the Borrower.
"Taxes" has the meaning specified in Section 3.05(a).
"Tender Offer" means the Offer (as defined in the Merger Agreement) of the Borrower and Merger Co. to acquire 50.1% of the issued and outstanding shares of IBP common stock.
"Termination Date" means September 23, 2002.
"Total Capitalization" means, at any date, the sum of (a) the aggregate amount of Indebtedness for Borrowed Money and (b) Net Worth of the Borrower and its consolidated Subsidiaries.
"Transactions" means the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents, the borrowing of Loans and the use of the proceeds thereof, the Acquisition, the Merger and the assumption and refinancing of Indebtedness and the other transactions contemplated by the Borrower to be effected in connection therewith.
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"Tyson Limited Partnership" means that certain Delaware limited partnership of the same name of which Mr. Don Tyson is the Managing General Partner.
