COMMERCIAL PAPER DEALER AGREEMENT
Agreement dated September 1, 1994 between Tyson Foods, Inc. (the
"Issuer") and Chase Securities, Inc. ("CSI") in connection with the offer
and sale of the Commercial Paper Notes referred to in this Agreement and
issued pursuant to an Issuing and Paying Agency Agreement dated July 1,
1993 between the Issuer and Morgan Guaranty Trust Company of New York (the
"Issuing and Paying Agency Agreement").
1. Appointment of CSI. The Issuer hereby requests CSI to act, on the
terms and conditions specified herein, as the Issuer's dealer for the offer
and sale from time to time of short-term promissory notes (the "Commercial
Paper Notes") to be issued by the Issuer and offered and sold in the U. S.
commercial paper market. The Issuer is not obligated to sell and CSI is
not obligated to purchase the Commercial Paper Notes.
2. Sale of Notes. The Commercial Paper Notes will be issued by the
Issuer either (a) as book-entry obligations represented by one or more
master notes and recorded in the electronic book-entry system maintained by
The Depository Trust Company ("DTC") or any other clearing corporation
(each a "Clearing Corporation") within the meaning of Section 8-102(3) of
the New York Uniform Commercial Code in accordance with the terms of the
letter of representations between the Issuer and the Clearing Corporation
(the "Clearing Corporation Letter of Representations") a copy of which is
attached hereto as Exhibit I, or (b) as physical certificated notes
delivered to the purchaser thereof or a person designated by such
purchaser. CSI agrees to offer and sell the Commercial Paper Notes, as the
Issuer's dealer, to institutional investors and other entities and
individuals who normally purchase commercial paper in the U. S. commercial
paper market. It is understood and agreed that the Issuer may appoint one
or more other persons in addition to CSI to act as dealers for the
Commercial Paper Notes. The Commercial Paper Notes will (i) be sold in
minimum denominations of $100,000; (ii) mature not more than 270 days from
the date of issuance; (iii) have no extension, renewal or automatic roll-
over provisions, and (iv) be rated as "prime" quality commercial paper by
at least two nationally recognized statistical rating organizations.
3. Representations and Warranties. The Issuer represents and
warrants to CSI that: (i) the Issuer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to conduct its business
as now being conducted and to own its properties; (ii) the Issuer has all
requisite power and authority to execute and deliver the Commercial Paper
Notes and to execute, deliver and perform this Agreement, the Clearing
Corporation Letter of Representations and the Issuing and Paying Agency
Agreement, a copy of which is attached hereto as Exhibit II; (iii) this
Agreement, the Issuing and Paying Agency Agreement and the Clearing
Corporation Letter of Representations have been duly authorized, executed
and delivered by the Issuer and are valid and binding agreements of the
Issuer enforceable in accordance with their respective terms; (iv) the
issuance of the Commercial Paper Notes has been duly authorized by the
Issuer and, when issued and delivered and authenticated by the Issuing and
Paying Agent in accordance with the terms of the Issuing and Paying Agency
Agreement, will be duly and validly issued and delivered and will
constitute valid and binding obligations of the Issuer enforceable in
accordance with their terms; (v) the execution and delivery of the
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Agreement, the Issuing and Paying Agency Agreement and the Clearing
Corporation Letter of Representations will not violate in any material
respect any law, rule, regulation, order, judgment or decree applicable to
the Issuer or conflict with or result in a breach of or constitute a
default under any material agreement or material instrument to which the
Issuer is a party or by which it or any of its property is bound or violate
its certificate of incorporation or by-laws; (vi) no governmental,
administrative or official consent, approval, authorization, notice or
filing is required for the execution and delivery of the Commercial Paper
Notes or the execution, delivery and performance by the Issuer of this
Agreement, the Issuing and Paying Agency Agreement and the Clearing
Corporation Letter of Representations; (vii) the Issuer is not an
"investment company" or a company "controlled by" an investment company for
purposes of the Investment Company Act of 1940, as amended; and (viii) the
offer and sale of the Commercial Paper Notes will be exempt from the
registration provisions of the Securities Act of 1933, as amended (the
"Securities Act") pursuant to Section 3(a) (3) thereto.
4. Covenants. The Issuer agrees with CSI that:
(a) Prior to the issuance of Commercial Paper Notes, the Issuer
will furnish to CSI opinions of counsel (i) to the effect that the
Commercial Paper Notes are exempt form registration under Section 3(a) (3)
of the Securities Act, (ii) as to each of the other matters set forth in
Section 3 hereof and (iii) as to such other matters as CSI may reasonably
request;
(b) Each issuance of Commercial Paper Notes by the Issuer shall
be deemed a representation and warranty by the Issuer to CSI, as of the
date thereof, that the representations and warranties of the Issuer set
forth in Sections 3 and 5(c) hereof are true and correct as if made on and
as of such date; and
(c) The Issuer shall furnish to CSI such publicly available
information as CSI may reasonably request regarding (i) the Issuer's
operations and financial condition, (ii) the due authorization and
execution of the Commercial Paper Notes and (iii) the Issuer's ability to
pay the Commercial Paper Notes as they mature.
5. Placement Memorandum.
(a) CSI will prepare and distribute to investors and potential
investors in the Commercial Paper Notes a placement memorandum
("Memorandum") containing financial and other information about the Issuer.
Such Memorandum will be updated periodically to reflect material changes in
the Issuer's business or financial condition as to which the Issuer shall
have advised CSI.
(b) The Issuer agrees to furnish CSI with sufficient information
to enable CSI to prepare the original Memorandum and updates thereof,
including (i) not later than the 45 days after the end of each of the first
three quarters in the Issuer's fiscal year, the financial statements of the
Issuer as of the end of such fiscal quarter, (ii) not later than the 90
days after the end of each fiscal year of the Issuer, the annual audited
financial statements of the Issuer and (iii) as soon as practicable, any
information concerning the financial condition or results of operations of
the Issuer that has been generally communicated to the public or that makes
any statement in the Memorandum materially false or misleading or by its
omission would cause the Memorandum to be materially false or misleading.
The Issuer agrees that all financial statements delivered to CSI hereunder
will fairly present the financial condition of the Issuer as of the date
set forth therein and the results of operations for the periods set forth
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therein, all in conformity with generally accepted accounting principles,
it being understood that interim financial statements are subject to fiscal
year-end adjustment.
(c) Before distribution of the Memorandum, or any update
thereof, CSI will provide a copy thereof to the Issuer, and will not
distribute the same without the Issuer's prior written approval. Such
approval shall be deemed to be a representation and warranty by the Issuer
that the Memorandum, or any update thereof being distributed, does not
contain an untrue statement of a material fact.
(d) The issuer will cooperate with CSI in taking all reasonable
action necessary to ensure that each offer and each sale of Commercial
Paper Notes by the Issuer will comply with any applicable state securities
or "Blue Sky" laws.
6. Indemnification.
(a) The Issuer assumes liability for, and will indemnify and
hold CSI or its affiliates harmless from and against, liabilities, claims,
damages, costs and expenses (including reasonable legal fees and expenses)
("Liabilities") arising out of or in connection with the issue and sale of
the Commercial Paper Notes, including without limitation, Liabilities
arising out of or related to an actual or alleged untrue statement of a
material fact contained in the Memorandum or otherwise made in connection
with the issuance and sale of the Commercial Paper Notes or an actual or
alleged omission of a material fact necessary in order to make any
statement contained in the Memorandum or otherwise made in connection with
the issuance and sale of the Commercial Paper Notes, in light of the
circumstances in which such statement was made, not misleading; provided,
however, that the foregoing indemnity shall not extend to any Liabilities
to the extent they arise from (i) an untrue statement by CSI of a material
fact made in connection with CSI's sale of the Commercial Paper Notes or an
omission by CSI of a material fact made in connection with CSI's sale of
the Commercial Paper Notes necessary in order to make any statement, in
light of the circumstances in which such statement was made, not misleading
or (ii) the negligence or willful misconduct of CSI in the performance or
failure to perform its obligations hereunder. This indemnity shall survive
termination of this Agreement.
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a)
of this Section 6 is for any reason (other than those set forth in the
proviso clause of subparagraph (a) of this Section 6) held to be
unavailable to CSI, the Issuer and CSI shall contribute to the aggregate
Liabilities to which the Issuer and CSI may be subject, in such proportion
that CSI shall be responsible for that percentage of such Liabilities equal
to the percentage that any fees and commissions payable to CSI bears to the
aggregate of the Commercial Paper Notes sold and the balance of such
Liabilities shall be the responsibility of the Issuer; provided that no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
7. Notices, Addresses. All communications and notices shall be in
writing or confirmed in writing and shall be effective when received at the
address specified below:
(i) if to CSI, to it at 1 Chase Manhattan Plaza, New York, New York
10081, Attention: Mr. Eugene Pickens, Telephone: 212/552-5349;
Telecopy 212/552-4657, or at such other address as may from time to
time be designated by notice to the Issuer in writing; and
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(ii) if to the Issuer, to it at 2210 W. Oaklawn Drive, Springdale,
Arkansas 72765-2020, Attention: Rocky Parsons; Telephone: (501) 290-
4440; Telecopy: (501) 290-4061 or at such other address as may from
time to time be designated by notice to CSI in writing.
8. Assignment. CSI may assign its rights and obligations under this
Agreement to any wholly-owned subsidiary of Chase Securities, Inc.
9. Termination. This Agreement may be terminated at any time by
either party by written notice to the other.
10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed on
their behalf by officers duly authorized thereunto, all as of the day and
year first above written.
CHASE SECURITIES, INC.
By:__________________________________
Name:
Title:
TYSON FOODS, INC.
By:__________________________________
Name:
Title:
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