Five Year Facility
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is entered into
as of May 26, 1995, among TYSON FOODS, INC., a Delaware corporation
(the "Borrower"), the banks which are or may, from time to time
hereafter, become parties hereto (the "Banks"), THE CHASE MANHATTAN
BANK, N.A., CHEMICAL BANK, COOPERATIEVE CENTRALE
RAFFEISEN-BOERENLEENBANK, B.A. (RABOBANK NEDERLAND), MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, NATIONAL WESTMINSTER BANK, NATIONSBANK OF
TEXAS, N.A., and SOCIETE GENERALE, as Co-Agents (the "Co-Agents"), and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent for
the Banks.
WHEREAS, the Borrower, certain of the Banks and certain other
banks, certain Co-Agents and the Agent are parties to a Third Amended
and Restated Credit Agreement dated as of June 8, 1994 which amended
and restated that certain Second Amended and Restated Credit Agreement
dated as of November 24, 1992 which amended and restated that certain
Amended and Restated Credit Agreement dated as of June 8, 1990 which
amended and restated that certain Credit Agreement dated as of
September 29, 1989, as amended (such Third Amended and Restated Credit
Agreement, as from time to time amended, the "Original Agreement");
and
WHEREAS, the Banks, the Co-Agents and the Agent desire to amend
and restate the Original Agreement in its entirety to provide for
certain changes in circumstances and new agreements between the
parties hereto;
NOW, THEREFORE, the parties hereto agree that, from and after the
Restatement Date, the Original Agreement shall be amended and restated
in its entirety to read as follows:
DEFINITIONS AND ACCOUNTING TERMS
1 Certain Defined Terms. As used in this Agreement and in
any Schedules and Exhibits to this Agreement, the following terms have
the following meanings (such meanings to be equally applicable to both
the singular and plural forms of the terms defined):
"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.
"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
25
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.
"Agent" means Bank of America in its capacity as agent for the
Banks, together with any successor thereto in such capacity.
"Agent's Payment Office" means the address for payments set forth
on the signature pages hereof in relation to the Agent or such other
address as the Agent may from time to time specify in accordance with
Section 10.01.
"Agreement" means this Fourth Amended and Restated Credit
Agreement, as from time to time amended, modified or supplemented.
"Aggregate Commitments" means the aggregate amount of the
Commitments of all the Banks as in effect from time to time.
"Assignee" has the meaning specified in Section 10.08(a).
"Bank" has the meaning specified in the preamble and includes
each Bank listed on the signature pages hereof and each Person which
becomes a Bank pursuant to Section 10.08.
"Bank Affiliate" means a Person engaged primarily in the business
of commercial banking and that is a Subsidiary of a Bank or of a
Person of which a Bank is a Subsidiary.
"Bank of America" means Bank of America National Trust and
Savings Association, a national banking association.
"Bank of America Rate" has the meaning specified in the
definition of Reference Rate.
"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 Banks.
"Bid Loan" means a Loan made by a Bank to the Borrower pursuant
to Section 2.03 and may be a LIBOR Bid Loan or an Absolute Rate Bid
Loan and includes any Existing Bid Loan.
"Borrower" has the meaning specified in the preamble.
"Borrowing" means a Committed Borrowing or a Bid Borrowing.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco
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.
"Co-Agents" has the meaning specified in the preamble.
26
"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 Bank, as the context may require (a)
the amount in dollars set forth in Schedule 1.01(a) opposite the name
of such Bank under the heading "Commitment" or as otherwise set forth
in any Notice of Assignment, 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 Bank to extend credit to
the Borrower hereunder in the amount specified in the immediately
preceding clause (a).
"Committed Borrowing" means an extension of credit hereunder
consisting of Committed Loans made, continued or converted on the same
day by the Banks 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 Bank 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 Bank to make a Bid Loan in
accordance with Section 2.04(b).
"Competitive Bid Request" has the meaning specified in Section
2.04(a).
"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 Borrower's long-term senior unsecured debt by Moody's
or S&P, as the case may be.
"Debt Ratio" means, at any date of determination, the ratio of
(a) Indebtedness for Borrowed Money to (b) Total Capitalization as of
the last day of the most recent fiscal quarter or fiscal year, as the
case may be, of the Borrower for which financial statements have been
delivered pursuant to paragraph (a) or (b) of Section 6.09.
"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.
"Domestic Lending Office" has the meaning specified in the
definition of Lending Office.
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"Eligible Assignee" means (a) a commercial bank organized under
the laws of the United States of America, or any state thereof, and
having a combined capital and surplus of at least $100,000,000; (b) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development,
or a political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided such bank is
acting through a branch or agency located in the United States of
America; and (c) any Bank Affiliate.
"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 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
28
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 Lending Office" has the meaning specified in the
definition of Lending Office.
"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 Bank, 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 Bank 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.
"Existing Bid Loan" means any bid loan of any Bank outstanding
under the Original Agreement on the Restatement Date.
"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 Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fee Letter" means the letter agreement dated as of the
Restatement Date between the Borrower and the Agent regarding the
payment of certain fees.
"Final Maturity Date" means May 31, 2000.
"Form 1001" has the meaning specified in Section 3.05(f)(i)(B).
"Form 4224" has the meaning specified in Section 3.05(f)(i)(A).
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and
29
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.
"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.
"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 Interest
Rate Contracts; (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; and
provided, further, that for the purposes of this definition,
Indebtedness shall not include any obligation of the Borrower to make
payments to or in respect of the Hogty Limited Partnership or similar
programs in connection with live inventory, consistent with past
practices, or to make payments to MetLife Leasing or a similar entity
under and in respect of a lease guaranty program or any similar live
inventory program with Arkansas-California Livestock Company, Inc. or
another entity, consistent with past practices.
30
"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.
"Indemnified Party" has the meaning specified in Section
10.05(a).
"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.
"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 Bank 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 one, two, three or six months
thereafter, as selected by the Borrower 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
31
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 Final Maturity Date.
"Interest Rate Contracts" means interest rate protection, cap or
collar agreements, interest rate insurance, and other agreements or
arrangements designed to provide protection against fluctuations in
interest rates.
"IRS" means the Internal Revenue Service of the United States of
America.
"Lending Office" means, with respect to any Bank, (a) in the case
of a Committed Loan, the office or offices of such Bank specified as
its "Domestic Lending Office" or "Eurodollar Lending Office", as the
case may be, opposite its name in Schedule 1.01(b) or in the
applicable Notice of Assignment or such other office or offices of
such Bank as such Bank may from time to time specify in writing to the
Borrower and the Agent and (b) in the case of a Bid Loan, the office
of such Bank notified by such Bank to the Borrower as its Lending
Office with respect to such Bid Loan or, if such Bank fails to so
notify the Borrower, such Bank's Domestic Lending Office listed in
Schedule 1.01(b).
"Level I Status" exists at any date if, at such date, the Debt
Rating is A (or the equivalent) or higher by S&P or A2 (or the
equivalent) or higher by Moody's.
"Level II Status" exists at any date if, at such date (a) the
Debt Rating is A- (or the equivalent) by S&P or A3 (or the equivalent)
by Moody's and (b) Level I Status does not exist.
"Level III Status" exists at any date if, at such date (a) the
Debt Rating is BBB+ (or the equivalent) by S&P or Baa1 (or the
equivalent) by Moody's and (b) neither Level I Status nor Level II
Status exists.
"Level IV Status" exists at any date if, at such date (a) the
Debt Rating is BBB (or the equivalent) by S&P or Baa2 (or the
equivalent) by Moody's and (b) neither Level I Status nor Level II
Status nor Level III Status exists.
"Level V Status" exists at any date if, at such date (a) the Debt
Rating is BBB- (or the equivalent) by S&P or Baa3 (or the equivalent)
by Moody's and (b) neither Level I Status nor Level II Status nor
Level III nor Level IV Status exists.
"Level VI Status" exists at any date if, at such date (a) the
Debt Rating is lower than BBB- (or the equivalent) by S&P and lower
than Baa3 (or the equivalent) by Moody's or (b) neither Moody's nor
S&P has assigned a Debt Rating.
32
"LIBOR" means, for any Interest Period, the rate of interest
determined by the Agent to be the arithmetic mean (rounded upward to
the nearest 1/100%) of the rates of interest per annum notified to the
Agent by each Reference Bank as the rate of interest at which dollar
deposits in an amount (a) in the case of a Committed Borrowing,
approximately equal to the amount of the Loan to be made or continued
as, or converted into, a Eurodollar Loan by such Reference Bank or (b)
in the case of a Bid Borrowing, approximately equal to the amount of
each LIBOR Bid Loan accepted by the Borrower pursuant to Section
2.04(c)(ii), and, in each case, having a maturity equal to such
Interest Period, would be offered to major banks in the London
interbank market at their request at or about 11:00 a.m. (London time)
on the second Business Day before 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 Bank pursuant to Article
II and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, any promissory notes
delivered pursuant to this Agreement, the Notices of Borrowing, the
Notices of Conversion/Continuation and the Competitive Bid Requests.
"Majority Banks" means at any time Banks holding at least 51% of
the Commitments and, if the Commitments have been terminated, Banks
holding at least 51% of the then aggregate unpaid principal amount of
the Loans made by the Banks.
"Material Adverse Effect" means (a) an adverse change in, or an
adverse effect upon, the financial condition, business, prospects or
properties of any of (i) the Borrower or (ii) the Borrower and its
Subsidiaries taken as a whole resulting from a single event or a
series of events within any 12-month period causing the consolidated
Net Worth of the Borrower to be reduced by 30% or more; (b) any
material adverse change in the rights or remedies of the Banks 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.
"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.
33
"Net Proceeds" means, with respect to any sale, lease, transfer,
condemnation or other voluntary or involuntary disposition of assets,
including a Permitted Disposition,
(a) the aggregate amount of cash proceeds received by the
Borrower or any of its Subsidiaries from such disposition;
minus
(b) the sum of
(i) all fees and expenses, including
customary brokerage commissions, appraisal fees, survey
charges, legal and investment banking fees and other
similar commissions, charges or fees incurred in
connection with such disposition;
plus
(ii) all taxes, including filing, recording or
registration fees, recording taxes and transfer taxes paid
(or payable) and income tax paid in connection with such
disposition;
plus
(iii) the amount of Indebtedness required to
be paid in connection with such disposition to satisfy any
Lien existing on the property included in such
disposition.
"Net Worth" means, with respect to any Person, at any date of
determination, shareholders' equity as determined in accordance with
GAAP.
"Notice of Assignment" has the meaning specified in Section
10.08(b).
"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 Bank, the 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.
34
"Original Agreement" has the meaning specified in the first
recital to this Agreement.
"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(d).
"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 Bank, at any time, such
Bank's percentage share of the Aggregate Commitments, as set forth
opposite such Bank's name in Schedule 1.01(a) under the heading
"Percentage Share" or set forth in any Notice of Assignment 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 Bank in accordance with the terms hereof.
"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 Proceeds of such
disposition together with all other dispositions made in the same
fiscal year does not exceed $100,000,000 in such fiscal year.
"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 Bank,
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 $100,000,000 whose short terms 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;
(d) money-market funds invested in short-term securities
rated at least as provided in clause (b) above; and
(e) deposits with financial institutions listed in
Schedule 1.01(c).
"Permitted Lien Basket" means 10% of consolidated Net Worth.
"Permitted Liens" has the meaning specified in Section 7.01.
35
"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.
"Reference Banks" means Bank of America, NationsBank of Texas,
N.A. and Societe Generale.
"Reference Rate" means the higher of (a) the Federal Funds Rate
plus 1/2% and (b) the rate of interest (the "Bank of America Rate")
publicly announced from time to time by Bank of America in San
Francisco, California, as its reference rate. The Bank of America
Rate is a rate set by Bank of America based upon various factors
including Bank of America's cost and desired return, general economic
conditions, and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below the Bank
of America Rate. Any change in the Bank of America 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.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Replacement Bank" has the meaning specified in Section 3.14(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.
"Restatement Date" means the date on which all conditions
precedent set forth in Sections 5.01 and 5.02 have been satisfied or
waived by all the Banks.
"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
36
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; provided, however, that, other than for
purposes of Section 7.05 and Section 7.15, 801444 Ontario Ltd., T&T
Trading Company, Tyson Export Sales, Inc., Tyson de Mexico, S.A. de
C.V. and Tyson Marketing Ltd. and their Subsidiaries shall not be
deemed to be Subsidiaries of the Borrower.
"Taxes" has the meaning specified in Section 3.05(a).
"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.
"Tyson Limited Partnership" means that certain Delaware limited
partnership of the same name of which Mr. Don Tyson is the Managing
General Partner.
2 Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding".
3 Accounting Matters. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP; provided,
however, all computations determining compliance with Section 7.15
shall use accounting principles consistent with those applied in the
preparation of the financial statements of the Borrower referred to in
Section 4.05.
4 Certain Terms. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement
as a whole, including the Exhibits and Schedules hereto, as the same
may from time to time be amended, supplemented, amended and restated
or otherwise modified and not to any particular Article, Section,
paragraph or clause in this Agreement. The word "includes" and
"including" when used herein is not intended to be exclusive and means
"includes, without limitation" and "including, without limitation."
37
References herein to an Article, Section, paragraph or clause shall
refer to the appropriate Article, Section, paragraph or clause in this
Agreement.
II AMOUNTS AND TERMS OF THE LOANS
1 Amounts and Terms of Commitments. Each Bank severally
agrees, on the terms and subject to the conditions hereinafter set
forth, to make Committed Loans to the Borrower (each such Loan, a
"Committed Loan") from time to time on any Business Day during the
period from the Restatement Date to the Final Maturity Date, in an
aggregate principal amount not to exceed at any time outstanding such
Bank's Commitment; provided, however, that after giving effect to any
Borrowing of Committed Loans, (a) the aggregate principal amount of
all outstanding Committed Loans plus (b) the aggregate principal
amount of all outstanding Bid Loans shall not exceed the Aggregate
Commitments. Within the limits of each Bank's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.07 and reborrow pursuant to this Section 2.01.
2 Procedure for Committed Borrowings.
(a) Each Committed Borrowing shall be made upon the
irrevocable notice of the Borrower, received by the Agent not later
than 12:00 noon (New York City time) (i) three Business Days prior to
the date of the proposed Borrowing, in the case of Eurodollar Loans;
and (ii) one Business Day prior to the date of the proposed Borrowing,
in the case of Reference Rate Loans; provided, however, that in case
of a Committed Borrowing of Reference Rate Loans after the
cancellation of a Bid Borrowing pursuant to Section 2.04(c)(i), the
Borrower may give such notice to the Agent not later than 11:00 a.m.
(New York City time) on the date of such Committed Borrowing. Each
such notice of a Committed Borrowing (a "Notice of Borrowing") shall
be in writing (including by facsimile confirmed immediately by
telephone), in substantially the form of Exhibit 2.02 specifying:
(i) the requested borrowing date, which shall be a Business
Day;
(ii) the aggregate amount of the Borrowing, which (A) shall not
exceed the unused portion of the Aggregate Commitments and (B)
shall be a minimum amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof;
(iii) whether the Borrowing is to be comprised of Eurodollar
Loans or Reference Rate Loans; and
(iv) if the Borrowing is to be comprised of Eurodollar Loans,
the duration of the initial Interest Period applicable to such
Loans. If the Notice of Borrowing shall fail to specify the
duration of the initial Interest Period for any Borrowing
comprised of Eurodollar Loans, such Interest Period shall be
three months.
38
(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank thereof and of the amount of such Bank's
Percentage Share of such Borrowing.
(c) Each Bank shall make the amount of its Percentage Share of
the Committed Borrowing available to the Agent for the account of the
Borrower at the Agent's Payment Office by 12:00 noon (New York City
time) on the borrowing date requested by the Borrower in funds
immediately available to the Agent. Unless any applicable condition
specified in Article V has not been satisfied, the Agent will make the
funds so received from the Banks promptly available to the Borrower by
crediting the account of the Borrower on the books of Bank of America
(or such other account as shall have been specified by the Borrower)
with the aggregate amount made available to the Agent by the Banks and
in like funds as received by the Agent.
(d) After giving effect to any Committed Borrowing, there
shall not be more than six different Interest Periods in effect in
respect of all Committed Loans together.
3 Bid Borrowings. In addition to Committed Borrowings
pursuant to Section 2.01, each Bank severally agrees that the Borrower
may, as set forth in Section 2.04, from time to time on any Business
Day during the period from the Restatement Date to the Final Maturity
Date, request the Banks to submit offers to make Bid Loans to the
Borrower; provided, however, that the Banks may, but shall have no
obligation to, submit such offers and the Borrower may, but shall have
no obligation to, accept any such offers; and provided, further, that
at no time shall the sum of (a) the aggregate principal amount of all
outstanding Bid Loans made by all Banks plus (b) the aggregate
principal amount of all outstanding Committed Loans exceed the
Aggregate Commitments.
4 Procedure for Bid Borrowings.
(a) The Borrower may request a Bid Borrowing hereunder by
delivering to the Agent and each Bank by facsimile not later than
12:00 noon (New York City time) (i) three Business Days prior to the
date of the proposed Borrowing, in the case of LIBOR Bid Loans; and
(ii) one Business Day prior to the date of the proposed Borrowing, in
the case of Absolute Rate Bid Loans, a solicitation for Bid Loans (a
"Competitive Bid Request"), in substantially the form of Exhibit
2.04(a), specifying:
(i) the requested borrowing date, which shall be a Business
Day;
(ii) the aggregate amount of the Borrowing, which shall be a
minimum amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof;
(iii) whether the Bid Loans requested are LIBOR Bid Loans or
Absolute Rate Bid Loans;
(iv) the duration of the Interest Period applicable to such Bid
Loans, which shall be not less than five days and not more than 183
days; and
(v) any other terms to be applicable to such Bid Loans.
39
(b) (i) Each Bank may, in response to a Competitive Bid
Request, in its discretion, irrevocably submit to the Borrower a
Competitive Bid containing an offer or offers to make one or more Bid
Loans. Each Competitive Bid must be submitted to the Borrower by
facsimile before 10:00 a.m. (New York City time) (i) two Business
Days prior to the proposed date of Borrowing, in the case of a
request for LIBOR Bid Loans and (ii) on the proposed date of
Borrowing, in the case of a request for Absolute Rate Bid Loans.
(i) Each Competitive Bid shall be in substantially the form
of Exhibit 2.04(b), specifying:
(A) the minimum amount of each Bid Loan for which such
competitive Bid is being made, which shall be $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, and the maximum
amount thereof, which may not exceed the principal amount of Bid Loans
for which Competitive Bids were requested (but which may exceed such
Bank's Commitment);
(B) the rate or rates of interest per annum offered for
each Bid Loan, which, in the case of a LIBOR Bid Loan, shall be
expressed as a percentage (rounded to the nearest 1/100%) to be added
to or subtracted from the applicable LIBOR (the "LIBOR Bid Margin");)
(C) the applicable Interest Period for each Bid Loan
offered by it; and
(D) the identity and the applicable Lending Office of the
quoting Bank.
A Competitive Bid may contain up to six separate offers by the
quoting Bank with respect to each Interest Period specified in
the related Competitive Bid Request.
(ii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit
2.04(b) or does not specify all of the information required by clause
(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Competitive Bid Request; or
(D) arrives after the time set forth in clause (i) above.
(c) Not later than 11:00 a.m. (New York City time) (i) two
Business Days prior to the proposed date of Borrowing, in the case of
LIBOR Bid Loans and (ii) on the date of such Bid Borrowing, in the
case of Absolute Rate Loans, the Borrower shall either
(i) cancel such Borrowing by giving the Agent and the Banks
notice thereof (which notice may be given by telephone, confirmed by
facsimile); or
40
(ii) accept one or more of the offers made by any Bank or Banks
pursuant to paragraph (b) above, in its sole discretion, by giving
notice (which notice may be given by telephone, confirmed by
facsimile) (A) to such Bank or Banks of the amount of each Bid Loan
(which amount shall be equal to or greater than the minimum amount,
and equal to or less than the maximum amount, notified to the Borrower
by such Bank for such Bid Loan pursuant to paragraph (b) above) to be
made by each such Bank as part of such Bid Borrowing, and reject any
remaining offers made by the Banks and give notice to that effect, and
(B) to the Agent of the date of such Borrowing and the aggregate
amount thereof (which may not exceed the applicable amount set forth
in the related Competitive Bid Request); provided, however, that
acceptance by the Borrower of offers may only be made on the basis of
ascending LIBOR Bid Margins or Absolute Rates within each Interest
Period; and, provided, further, that if offers are made by two or more
Banks with the same LIBOR Bid Margins or Absolute Rates for a greater
aggregate principal amount than the amount for which such offers are
accepted for the related Interest Rate Period, the principal amount of
Bid Loans accepted shall be allocated by the Borrower among such Banks
as nearly as possible (in multiples not less than $1,000,000) in
proportion to the aggregate principal amount of such offers;
provided, however, that in the event the Borrower does not,
before the time stated above, either cancel the proposed Bid
Borrowing pursuant to clause (i) above or accept one or more of
the offers pursuant to clause (ii) above, such Bid Borrowing
shall be deemed cancelled and provided further, that in the event
the Borrower accepts one or more of the offers pursuant to clause
(ii) above but does not expressly reject or accept the remaining
offers, such remaining offers shall be deemed rejected.
(d) (i) If the Borrower accepts one or more of the offers to
make Bid Loans made by any Bank or Banks pursuant to paragraph (c)(ii)
above, each such Bank shall, subject to the satisfaction of the
conditions precedent specified in Section 5.03, before 12:00 noon (New
York City time) on the date of the Bid Borrowing, make available to
the Borrower at such Bank's Lending Office such Bank's portion of such
Bid Borrowing in same day funds.
(i) Not later than 5:00 p.m. (New York City time) on the date
of each Bid Borrowing,
(A) the Borrower shall notify the Agent of (1) the
aggregate amount of Bid Loans made in connection with such Bid
Borrowing (which amount may not exceed the amount requested pursuant
to Section 2.04(a)(ii)), (2) each date on which any Bid Loan shall
mature, (3) the principal amount of Bid Loans which shall mature on
each such date, (4) the highest and the lowest Competitive Bid
submitted by the Banks in connection with each Competitive Bid
Request, and (5) the highest and the lowest Competitive Bid accepted
by the Borrower; and
(B) the Agent will in turn promptly give to each Bank the
information received from the Borrower in connection with such Bid
Borrowing.
(e) Upon being notified by the Borrower of the amount of, and
the applicable Interest Period for, any LIBOR Bid Loan, the Agent
41
shall determine LIBOR (as provided in the definition of LIBOR) and
give prompt notice to the Borrower and the relevant Bank or Banks
thereof.
5 Evidence of Indebtedness.
(a) Each Bank, with respect to amounts payable to it
hereunder, and the Agent, with respect to all amounts payable
hereunder, shall maintain on its books in accordance with its usual
practice, loan accounts, setting forth each Committed Loan, and, in
the case of each Bank having made a Bid Loan, each such Bid Loan, the
applicable interest rate and the amounts of principal, interest and
other sums paid and payable by the Borrower from time to time
hereunder with respect thereto; provided, however, that the failure by
any Bank to record any such amount on its books shall not affect the
obligations of the Borrower with respect thereto. In the case of any
dispute, action or proceeding relating to any amount payable
hereunder, the entries in each such account shall be conclusive
evidence of such amount absent manifest error. In case of any
discrepancy between the entries in the Agent's books and any Bank's
books, such Bank's books shall be considered correct in the absence of
manifest error.
(b) Notwithstanding the foregoing, if any Bank shall so
request for purposes of Section 10.08(e), the obligation to repay the
Committed Loans shall also be evidenced by a promissory note in the
form of Exhibit 2.05(b).
(c) The obligation to repay any Bid Loan shall also, if so
requested by the Bank making such Bid Loan, be evidenced by a
promissory note in the form of Exhibit 2.05(c).
(d) The Banks hereby agree to return to the Borrower on the
Restatement Date any promissory notes issued by the Borrower under the
Original Agreement.
6 Voluntary Termination or Reduction of the Commitments.
The Borrower may, at any time and from time to time, upon not less
than three Business Days' prior notice to the Agent, terminate the
Aggregate Commitments or permanently reduce the Aggregate Commitments
by an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof; provided, however, that no such
termination or reduction shall be permitted if, after giving effect
thereto and to any prepayment of Loans made on the effective date
thereof, the then outstanding principal amount of Committed Loans and
Bid Loans would exceed the Aggregate Commitments then in effect and,
provided, further, that once reduced in accordance with this Section
2.06, the Aggregate Commitments may not be increased. Any reduction
of the Aggregate Commitments shall be applied to each Bank's
Commitment in accordance with such Bank's Percentage Share.
7 Optional Prepayments.
(a) Subject to Section 3.11, the Borrower may upon notice to
the Agent, stating the proposed date and aggregate principal amount of
the prepayment, received by the Agent (i) not less than three Business
Days prior to the proposed date of prepayment, in the case of a
42
prepayment of Eurodollar Loans and (ii) not less than one Business Day
prior to the proposed date of prepayment, in the case of a prepayment
of Reference Rate Loans, prepay ratably among the Banks, the
outstanding principal amount of any Committed Loans in whole or in
part, together with accrued interest to the date of such prepayment on
the principal amount prepaid. Each such partial prepayment shall be
in an aggregate principal amount of not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof; provided, however,
that if the aggregate amount of Eurodollar Loans comprised in the same
Borrowing shall be reduced as a result of any optional prepayment to
an amount less than $5,000,000, the Eurodollar Loans comprised in such
Borrowing shall automatically convert into Reference Rate Loans at the
end of the then current Interest Period. If any notice of prepayment
is given, the principal amount stated therein, together with accrued
interest to the date of prepayment, shall be due and payable on the
date specified in such notice.
(b) The Borrower may not voluntarily prepay any Bid Loan prior
to the maturity date thereof.
8 Repayment.
(a) The Committed Loans. The outstanding principal amount of
all Committed Loans shall be repaid on the Final Maturity Date.
(b) The Bid Loans. Each Bid Loan shall mature, and the
principal amount thereof shall be due and payable, on the last day of
the Interest Period applicable thereto; provided, however, that the
outstanding principal amount of all Bid Loans shall be repaid on the
Final Maturity Date.
9 Interest.
(a) Subject to Section 2.10, each Committed Loan shall bear
interest, at the option of the Borrower as follows,
(i) if such Committed Loan is a Reference Rate Loan, at a rate
per annum equal to the Reference Rate; and
(ii) if such Committed Loan is a Eurodollar Loan, at a rate per
annum equal to the sum of LIBOR plus the applicable margin set
forth below:
Debt Rating Applicable Margin
Level I Status .12%
Level II Status .15%
Level III Status .20%
Level IV Status .25%
Level V Status .30%
Level VI Status .35%
(b) Any change in the Debt Rating shall be effective as of the
date on which such change is first publicly announced by S&P or
notified to the Borrower by Moody's. Any change in the applicable
margin due to a change in the applicable Debt Rating shall be
effective on the effective date of such change in the Debt Rating and
43
shall apply to all Eurodollar Loans that are outstanding at any time
during the period commencing on the effective date of such change in
the Debt Rating and ending on the date immediately preceding the
effective date of the next such change in the Debt Rating which
results in a change in the applicable margin.
(c) Accrued and unpaid interest in respect of each Committed
Loan shall be paid on each Interest Payment Date, on the date of any
prepayment or repayment of Committed Loans and, in the case of any
Reference Rate Loan, on each date such Loan is converted into a
Eurodollar Loan.
(d) The Borrower shall pay to each Bank which had made a Bid
Loan interest on the unpaid principal amount of such Bid Loan from the
date when made until paid in full, on each Interest Payment Date, a
rate per annum equal to LIBOR plus (or minus) the LIBOR Bid Margin, or
the Absolute Rate, as the case may be, as specified by such Bank in
its Competitive Bid pursuant to Section 2.04(b)(ii).
.2 Default Interest. During the continuation of any Event of
Default pursuant to Section 8.01(a), or after acceleration, the
Borrower shall pay, on demand, interest (after as well as before
judgment) on the principal amount of all Loans then outstanding, at a
rate per annum which is determined by increasing the rate of interest
then in effect pursuant to Section 2.09 by 2% per annum; provided,
however, that, on and after the expiration of the Interest Period
applicable to any Eurodollar Loan on the date of occurrence of such
Event of Default or acceleration, the principal amount of such Loan
shall, during the continuation of such Event of Default or
acceleration, bear interest at a rate per annum equal to the Reference
Rate plus 2%; and, provided, further, that if so requested by the
Borrower, the Majority Banks may, in their sole discretion, waive the
provisions of this Section 2.10.
.3 Continuation and Conversion Elections for Committed Borrowings
(a) The Borrower may upon irrevocable written notice to the
Agent in accordance with paragraph (b) below:
(i) elect to convert, on any Business Day, any Reference Rate
Loans (or any part thereof in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof)
into Eurodollar Loans;
(ii) elect to convert, on the expiration date of any Interest
Period, any Eurodollar Loans maturing on such Interest Payment Date
(or any part thereof in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof) into Reference Rate Loans; or
(iii) elect to continue, on the expiration date of any Interest
Period, any Eurodollar Loans maturing on such Interest Payment
Date; provided, however, that if on the expiration date of any
Interest Period the aggregate amount of outstanding
Eurodollar Loans comprised in the same Committed Borrowing
shall have been reduced as a result of the conversion of part
thereof to an amount less
44
than $5,000,000, the remaining Eurodollar Loans comprised in such
Borrowing shall automatically convert into Reference Rate Loans
on such date and on and after such date the right of the Borrower
to continue such Loans as Eurodollar Loans shall terminate.
(b) The Borrower shall deliver a notice of conversion or
continuation (a "Notice of Conversion/Continuation"), in substantially
the form of Exhibit 2.11, to the Agent not later than 12:00 noon (New
York City time) (i) three Business Days prior to the proposed date of
conversion or continuation, if the Committed Loans or any portion
thereof are to be converted into or continued as Eurodollar Loans; and
(ii) one Business Day prior to the proposed date of conversion, if the
Committed Loans or any portion thereof are to be converted into
Reference Rate Loans.
Each such Notice of Conversion/Continuation shall be by facsimile
confirmed immediately by telephone specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Committed Loans to be converted or
continued;
(iii) the nature of the proposed conversion or continuation; and
(iv) the duration of the requested Interest Period.
(c) If, upon the expiration of any Interest Period applicable
to Eurodollar Loans, the Borrower shall have failed to select a new
Interest Period to be applicable to such Eurodollar Loans, or if an
Event of Default shall then have occurred and be continuing, the
Borrower shall be deemed to have elected to convert such Eurodollar
Loans into Reference Rate Loans effective as of the expiration date of
such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Agent shall promptly notify each Bank thereof or, if no timely notice
is provided, the Agent shall promptly notify each Bank of the details
of any automatic conversion. All conversions and continuations shall
be made pro rata among the Banks based on the respective outstanding
principal amounts of the Loans with respect to which such notice was
given held by each Bank.
(e) After giving effect to any conversion or continuation of
any Committed Loans, there shall not be more than six different
Interest Periods in effect in respect of all Committed Loans together.
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
2 Fees.
(a) (i) The Borrower agrees to pay to the Agent for the
account of each Bank a facility fee equal to the percentage per
annum set forth below times such Bank's Commitment (regardless of
utilization):
45
Debt Rating Facility Fee
Level I Status .075%
Level II Status .085%
Level III Status .10%
Level IV Status .125%
Level V Status .15%
Level VI Status .20%
(i) Any change in the Debt Rating shall be effective as of the
date on which such change is first publicly announced by S&P or
notified to the Borrower by Moody's. Any change in the facility fee
due to a change in the applicable Debt Rating shall be effective on
the effective date of such change in the Debt Rating and shall apply
at any time during the period commencing on the effective date of such
change in the Debt Rating and ending on the date immediately preceding
the effective date of the next such change in the Debt Rating which
results in a change in the facility fee.
(ii) The facility fee shall accrue from the Restatement Date to
the Final Maturity Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing
in the calendar quarter ending on June 30, 1995 and on the Final
Maturity Date.
(b) The Borrower agrees to pay to the Agent, for the Agent's
own account, an agency fee in the amount and at the times set forth in
the Fee Letter.
3 Computation of Fees and Interest
(a) All computations of interest payable in respect of
Reference Rate Loans shall be made on the basis of a year of 365 days
or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest under this Agreement shall be made
on the basis of a year of 360 days and actual days elapsed. Interest
and fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Banks in the absence of manifest
error.
(c) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby for the
purposes of determining LIBOR for any Eurodollar Loan or LIBOR Bid
Loan. If any of the Reference Banks is unable or otherwise fails to
supply such rates to the Agent upon its request, LIBOR shall be
determined on the basis of the quotations of the remaining two
Reference Banks.
4 Payments by the Borrower.
(a) All payments (including prepayments) to be made by the
Borrower hereunder shall be made without set-off or counterclaim and
shall, except as expressly provided herein, be made to the Agent for
46
the ratable account of the Banks at the Agent's Payment Office, in
dollars and in immediately available funds, not later than 12:00 noon
New York City time on the date specified herein; provided, however,
that unless otherwise specified herein, each payment in respect of a
Bid Loan shall be made directly to the relevant Bank to the Lending
Office of such Bank. The Agent will promptly after receiving any
payment of principal, interest, fees and other amounts from the
Borrower distribute to each Bank its Percentage Share (or other
applicable share as expressly provided herein) of such payment for the
account of its respective Lending Office. Any payment which is
received by the Agent after 12:00 noon (New York City time) shall be
deemed to have been received on the immediately succeeding Business
Day.
(b) Whenever any payment of a Committed Loan (and unless
otherwise stated in the relevant Competitive Bid Request, a Bid Loan)
shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of
interest and fees, as the case may be; provided, however, that if such
extension would cause any payment of principal of or interest on
Eurodollar Loans to be made in the next calendar month, such payment
shall be made on the immediately preceding Business Day.
(c) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Agent may assume that the Borrower has made such payment in full to
the Agent on such date and the Agent may (but shall not be so
required), in reliance upon such assumption, cause to be distributed
to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, each Bank shall repay to the Agent,
on demand, the excess of the amount distributed to such Bank over the
amount, if any, paid by the Borrower, together with interest thereon
at the Federal Funds Rate, for each day from the date such amount is
distributed to such Bank to the date such Bank repays such amount to
the Agent; provided, however, that if any Bank shall fail to repay
such amount within three Business Days after demand therefor, such
Bank shall, from and after such third Business Day until payment is
made to the Agent, pay interest thereon at a rate per annum equal to
the sum of the Reference Rate plus 1%.
5 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice from a Bank on
the Restatement Date, or, with respect to each Committed Borrowing
after the Restatement Date, at least one Business Day prior to the
date of such Borrowing that such Bank will not make available to the
Agent for the account of the Borrower the amount of such Bank's
Percentage Share of such Borrowing, the Agent may assume that such
Bank has made such amount available to the Agent on the date of such
Borrowing and the Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent such Bank shall not
have so made such full amount available to the Agent and the Agent in
such circumstances makes available to the Borrower such amount, such
47
Bank shall, within two Business Days following the date of such
Borrowing, make such amount available to the Agent, together with
interest at the Federal Funds Rate for and determined as of each day
during such period. If such amount is so made available, such payment
to the Agent shall constitute such Bank's Committed Loan on the date
of the Borrowing for all purposes of this Agreement. If such amount
is not made available to the Agent within two Business Days following
the date of such Borrowing, the Agent shall notify the Borrower of
such failure to fund and, on the third Business Day following the date
of such Borrowing, the Borrower shall pay such amount to the Agent for
the Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such
Borrowing. Nothing contained in this Section 3.04(a) shall relieve
any Bank which has failed to make available its Percentage Share of
any Committed Borrowing hereunder from its obligation to do so in
accordance with the terms hereof.
(b) The failure of any Bank to make any Committed Loan on the
date of any Committed Borrowing shall not relieve any other Bank of
its obligation hereunder to make a Loan on the date of such Borrowing
pursuant to the provisions contained herein, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be
made by such other Bank on the date of any Committed Borrowing.
6 Taxes.
(a) Subject to Section 3.05(g), any and all payments by the
Borrower to each Bank or the Agent under this Agreement shall be made
free and clear of, and without deduction or withholding for, any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto incurred in
connection with any Borrowing pursuant to this Agreement, excluding,
in the case of each Bank and the Agent, such taxes (including income
taxes, franchise taxes or branch profit taxes) as are imposed on or
measured by such Bank's or the Agent's, as the case may be, net income
by the jurisdiction under the laws of which such Bank or the Agent, as
the case may be, is organized or maintains a Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes, intangible taxes, mortgage recording taxes
or any other sales, excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to,
this Agreement or any other Loan Document (hereinafter referred to as
"Other Taxes").
(c) Subject to Section 3.05(g), the Borrower shall indemnify
and hold harmless each Bank and the Agent for the full amount of Taxes
or Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.05) paid by such
Bank or the Agent, as the case may be, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
48
correctly or legally asserted. Payment under this indemnification
shall be made within 30 days from the date such Bank or the Agent, as
the case may be, makes written demand therefor.
(d) If the Borrower shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Bank or the Agent, then, subject to Section
3.05(g),
(i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.05) such
Bank or the Agent, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made;
(ii) the Borrower shall make such deductions; and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish to the
Agent the original or a certified copy of a receipt evidencing such
payment, or other evidence of such payment satisfactory to the Agent.
(f) Each Bank which is a foreign Person (i.e., a Person other
than a United States Person for United States Federal income tax
purposes) hereby agrees that:
i) it shall, unless already delivered pursuant to the
Original Agreement, no later than on the Restatement Date (or, in the
case of a Bank which becomes a party hereto pursuant to Section 10.08
after the Restatement Date, the date upon which such Bank becomes a
party hereto) deliver to the Agent (two originals) and to the Borrower
(one original):
(A) if any Lending Office is located
in the United States of America, accurate and
complete signed copies of IRS Form 4224 or any
successor thereto ("Form 4224"), and/or
(B) if any Lending Office is located
outside the United States of America, accurate and
complete signed copies of IRS Form 1001 or any
successor thereto ("Form 1001"),
in each case indicating that such Bank is on the date
of delivery thereof entitled to receive payments of
principal, interest and fees for the account of such
Lending Office or Lending Offices under this Agreement
free from withholding of United States Federal income tax;
(ii) if at any time such Bank changes its Lending Office or
Lending Offices or selects an additional Lending Office it shall, at
the same time, but only to the extent the forms previously delivered
by it hereunder are no longer effective, deliver to the Agent (two
49
originals) and to the Borrower (one original), in replacement for the
forms previously delivered by it hereunder:
(A) if such changed or additional
Lending Office is located in the United States of
America, accurate and complete signed originals of
Form 4224; or
(B) otherwise, accurate and complete
signed originals of Form 1001,
in each case indicating that such Bank is on the date
of delivery thereof entitled to receive payments of
principal, interest and fees for the account of such
changed or additional Lending Office under this Agreement
free from withholding of United States Federal income tax;
(iii) it shall, upon the occurrence of any event (including the
passing of time but excluding any event mentioned in clause (ii)
above) requiring a change in the most recent Form 4224 or Form 1001
previously delivered by such Bank, deliver to the Agent (two
originals) and to the Borrower (one original) accurate and complete
signed copies of Form 4224 or Form 1001 in replacement for the forms
previously delivered by such Bank;
(iv) it shall, promptly upon the request of the Agent or the
Borrower, deliver to the Agent and the Borrower, such other forms or
similar documentation as may be required from time to time by any
applicable law, treaty, rule or regulation in order to establish such
Bank's tax status for withholding purposes;
(v) if such Bank claims exemption from withholding tax under a
United States tax treaty by providing a Form 1001 and such Bank sells
or grants a participation of all or part of its rights under this
Agreement, it shall notify the Agent of the percentage amount in which
it is no longer the beneficial owner under this Agreement. To the
extent of this percentage amount, the Agent shall treat such Bank's
Form 1001 as no longer in compliance with this Section 3.05(f). In
the event a Bank claiming exemption from United States withholding tax
by filing Form 4224 with the Agent, sells or grants a participation in
its rights under this Agreement, such Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements
imposed by Sections 1441 and 1442 of the Code; and
(vi) if the IRS or any authority of the United States of
America or other jurisdiction asserts a claim that the Agent or the
Borrower did not properly withhold tax from amounts paid to or for the
account of any Bank (because the appropriate form was not delivered,
was not properly executed, or because such Bank failed to notify the
Agent of a change in circumstances which rendered the exemption from
withholding tax ineffective), such Bank shall indemnify the Agent
and/or the Borrower, as applicable, fully for all amounts paid,
directly or indirectly, by the Agent and/or the Borrower, as tax or
otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Agent or the
Borrower under this Section 3.05(f), together with all costs, expenses
and attorneys' fees (including the allocated cost of in-house
counsel).
50
Without limiting or restricting any Bank's right to increased amounts
under Section 3.05(d) from the Borrower upon satisfaction of such
Bank's obligations under the provisions of this Section 3.05(f), if
such Bank is a foreign Person and is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest
to such Bank an amount equivalent to the applicable withholding tax
after taking into account such reduction. If the forms or other
documentation required by clause (i) above are not delivered to the
Agent, then the Agent may withhold from any interest payment to the
Bank not providing such forms or other documentation, an amount
equivalent to the applicable withholding tax. In addition, the Agent
may also withhold against periodic payments other than interest
payments to the extent United States withholding tax is not eliminated
by obtaining Form 4224 or Form 1001.
(g) The Borrower shall not be required to pay any additional
amounts in respect of United States Federal income tax pursuant to
Section 3.05(d) to any Bank for the account of any Lending Office of
such Bank:
(i) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Bank to comply with its
obligations under Section 3.05(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Agent and the
Borrower a Form 4224 in respect of such Lending Office pursuant to
Sections 3.05(f)(i)(A), 3.05(f)(ii)(A) or 3.05(f)(iii) and such Bank
shall not at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in respect of payments
by the Borrower hereunder for the account of such Lending Office for
any reason other than a change in United States law or regulations or
in the official interpretation of such law or regulations by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 4224; or
(iii) if such Bank shall have delivered to the Agent and the
Borrower a Form 1001 in respect of such Lending Office pursuant to
Sections 3.05(f)(i)(B), 3.05(f)(ii)(B) or 3.05(f)(iii) and such Bank
shall not at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in respect of payments
by the Borrower hereunder for the account of such Lending Office for
any reason other than a change in United States law or regulations or
any applicable tax treaty or regulations or in the official
interpretation of any such law, treaty or regulations by any
Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 1001.
(h) Any and all present or future Taxes, Other Taxes and
related liabilities (including penalties, interest, additions to tax
and expenses) which are not paid by the Borrower pursuant to and as
required by this Section 3.05 shall be paid by the Bank which received
the principal, interest or fees in respect of which such Taxes, Other
Taxes or related liabilities are payable. Any and all present or
future Taxes or Other Taxes which are required by law to be deducted
or withheld from or in respect of any sum payable hereunder to any
51
Bank and which are not paid by the Borrower pursuant to and as
required by this Section 3.05 will be deducted or withheld by the
Agent without any increase in the sum payable as provided in Section
3.05(d). Each Bank agrees to indemnify the Agent and hold the Agent
harmless for the full amount of any and all present or future Taxes,
Other Taxes and related liabilities (including penalties, interest,
additions to tax and expenses, and any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable to the Agent under this Section
3.05(h)) which are imposed on or with respect to principal, interest
or fees payable to such Bank hereunder and which are not paid by the
Borrower pursuant to this Section 3.05, whether or not such Taxes,
Other Taxes or related liabilities were correctly or legally asserted.
This indemnification shall be made within 30 days from the date the
Agent makes written demand therefor.
7 Sharing of Payments, Etc. If other than as provided in
Section 3.05, 3.08, 3.09, 3.10, 3.11 or 3.12, any Bank shall obtain
any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of any Committed Loan
made by it and, after acceleration of all Obligations pursuant to
Section 8.02(b), in respect of any Obligation owing to it (including
with respect to any Bid Loan), in the case of the Committed Loan, in
excess of its Percentage Share of payments on account of the Committed
Loans obtained by all the Banks and, after acceleration, in excess of
its pro rata share of all Obligations, such Bank shall forthwith (a)
notify the Agent of such fact and (b) purchase from the other Banks
such participations in the Committed Loans made by them or, after
acceleration, in all Obligations owing to them, as shall be necessary
to cause such purchasing Bank to share the excess payment ratably with
each of the other Banks according to their respective Percentage
Shares or, after acceleration, their pro rata shares of all
Obligations then owing to them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase shall to the extent of such recovery be
rescinded and each other Bank shall repay to the purchasing Bank the
purchase price thereto together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of
such paying Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount
so recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to the provisions of this
Section 3.06 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to
such participation as fully as if such Bank were the direct creditor
of the Borrower in the amount of such participation. The Agent will
keep records (which shall be conclusive and binding in the absence of
manifest error), of participations purchased pursuant to this Section
3.06 and will in each case notify the Banks following any such
purchases.
8 Inability to Determine. If with respect to any Interest
Period for Eurodollar Loans, either (a) any two Reference Banks shall
fail to notify the Agent of the rate of interest on the basis of which
LIBOR is to be determined as set forth in the definition of LIBOR or
(b) the Majority Banks shall notify the Agent that LIBOR for such
Interest Period will not adequately and fairly reflect the cost to
52
such Majority Banks of making, funding or maintaining their Eurodollar
Loans for such Interest Period (after giving effect to any event
giving rise to additional interest on such Loans pursuant to Section
3.12), the Agent shall forthwith so notify the Borrower and the Banks,
whereupon the obligations of the Banks to make or continue Committed
Loans as Eurodollar Loans or to convert Committed Loans into
Eurodollar Loans at the end of the then current Interest Period shall
be suspended until the Agent upon the instruction of the Majority
Banks revokes such notice. Upon receipt of such notice, the Borrower
may revoke its Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Borrower does
not revoke such notice, the Banks shall make, convert or continue the
Committed Loans, as proposed by the Borrower, in the amount specified
in the applicable notice submitted by the Borrower, but such Loans
shall be made, converted or continued as Reference Rate Loans instead
of Eurodollar Loans.
9 Increased Costs. If any Bank shall determine that, due to
either (a) the introduction of any Requirement of Law or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the Eurodollar Reserve Percentage) in or in
the interpretation thereof or (b) the compliance with any guideline or
request from any central bank or other Governmental Authority (whether
or not having the force of law), there shall be any increase in the
cost to such Bank of agreeing to make or making, funding or
maintaining any Committed Loan, the Borrower shall be liable for, and
shall from time to time, upon demand by such Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of such Bank,
additional amounts sufficient to compensate such Bank for such
increased costs.
10 Illegality.
(a) If any Bank shall determine that the introduction of any
Requirement of Law, or any change in or in the interpretation thereof
has made it unlawful, or any central bank or other Governmental
Authority shall assert that it is unlawful, for such Bank or its
Lending Office to make or continue to fund Loans as Eurodollar Loans
or to convert Loans into Eurodollar Loans, then, on notice thereof by
such Bank to the Borrower through the Agent, the obligation of such
Bank to make or to continue to fund Loans as Eurodollar Loans or to
convert any Loans into Eurodollar Loans shall be suspended until such
Bank shall have notified the Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank shall determine that it is unlawful to maintain
any Eurodollar Loan made by such Bank, the Borrower shall prepay in
full all Eurodollar Loans of such Bank then outstanding, together with
interest accrued thereon, either on the last day of the then current
Interest Period applicable to each such Eurodollar Loan if such Bank
may lawfully continue to maintain such Eurodollar Loan to such day, or
immediately, together with any amounts required to be paid pursuant to
Section 3.11, if such Bank may not lawfully continue to maintain such
Eurodollar Loan to such day, unless the Borrower, on or prior to the
date on which it would otherwise be required to prepay such Eurodollar
Loan, converts all Eurodollar Loans of such Bank then outstanding into
Reference Rate Loans.
53
(c) Notwithstanding the foregoing, if the obligation of any
Bank to make or maintain Eurodollar Loans has been suspended, the
Borrower may elect by giving notice to such Bank through the Agent
that all Loans which would otherwise be made or maintained by such
Bank as Eurodollar Loans shall be instead Reference Rate Loans.
.4 Capital Adequacy. If any Bank shall have determined that
the compliance with any Requirement of Law regarding capital adequacy,
or any change therein or in the interpretation or application thereof
or compliance by such Bank (or its Lending Office) or any corporation
controlling such Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) from any central
bank or other Governmental Authority, affects or would affect the
amount of capital required or expected to be maintained by such Bank
or any corporation controlling such Bank and such Bank (taking into
consideration such Bank's or such corporation's policies with respect
to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a
consequence of such Bank's Commitment, loans or obligations under this
Agreement with respect to any Committed Borrowing then from time to
time, upon demand of such Bank (with a copy of such demand to the
Agent), the Borrower shall be liable for, and shall pay to the Agent
for the account of such Bank, as specified by such Bank, additional
amounts sufficient to compensate such Bank for such increase.
.5 Funding Losses. The Borrower agrees to reimburse each
Bank and to hold each Bank harmless from any loss, cost or expense
which such Bank may sustain or incur as a consequence of:
(a) any failure of the Borrower to borrow, continue or convert
a Eurodollar Loan after the Borrower has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/Continuation;
(b) any prepayment or payment of a Eurodollar Loan on a day
which is not the last day of the Interest Period with respect thereto;
(c) any failure of the Borrower to make any prepayment after
the Borrower has given a notice in accordance with Section 2.07; or
(d) the conversion of any Eurodollar Loan to a Reference Rate
Loan on a day that is not the last day of the respective Interest
Period pursuant to Section 2.11;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Eurodollar Loans
hereunder or from fees payable to terminate the deposits from which
such funds were obtained.
.6 Additional Interest on Eurodollar Loans. The Borrower
shall pay to each Bank, at the request of such Bank (but not more
frequently than once in each calendar quarter), as long as such Bank
shall be required under regulations of the Federal Reserve Board to
maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the
unpaid principal amount of each Eurodollar Loan of such Bank from the
date such Eurodollar Loan is made until such principal amount is paid
in full, at a rate per annum equal at all times to the remainder
54
obtained by subtracting (a) LIBOR for the Interest Period for such
Eurodollar Loan from (b) the rate obtained by dividing such LIBOR by a
percentage equal to 100% minus the Eurodollar Reserve Percentage of
such Bank for such Interest Period, payable on each date interest in
respect of such Eurodollar Loan is payable. Notwithstanding the
provisions of the previous sentence, the Borrower shall not be
obligated to pay to any Bank any additional interest in respect of
Eurodollar Loans made by such Bank for any period commencing more than
three months prior to the date on which such Bank notifies the
Borrower by delivering a certificate from a financial officer of such
Bank, that such Bank is required to maintain reserves with respect to
Eurocurrency Liabilities.
.7 Certificates of Banks. Any Bank claiming reimbursement or
compensation pursuant to Section 3.05, 3.08, 3.10, 3.11 and/or 3.12
shall deliver to the Borrower (with a copy to the Agent) a certificate
setting forth in reasonable detail the basis for computing the amount
payable to such Bank hereunder and such certificate shall be
conclusive and binding on the Borrower in the absence of manifest
error. Unless otherwise specifically provided herein, the Borrower
shall pay to any Bank claiming compensation or reimbursement from the
Borrower pursuant to Section 3.08, 3.10, 3.11 or 3.12, the amount
requested by such Bank no later than five Business Days after such
demand.
.8 Change of Lending Office; Replacement Bank.
(a) Each Bank agrees that upon the occurrence of any event
giving rise to the operation of Section 3.05(c) or (d) or Section 3.08
or 3.09 with respect to such Bank, it will if so requested by the
Borrower, use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different
Lending Office for any Loans affected by such event with the object of
avoiding the consequence of the event giving rise to the operation of
such Section; provided, however, that such designation would not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank.
Nothing in this Section 3.14 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in
Section 3.05(c) or (d) or Section 3.08 or 3.09.
(b) In the event the Borrower becomes obligated to pay
additional amounts to any Bank pursuant to Sections 3.05(c) or (d) or
3.08, or if it becomes illegal for any Bank to continue to fund or to
make Eurodollar Loans pursuant to Section 3.09, as a result of any
condition described in any such Section, then, unless such Bank has
theretofore taken steps to remove or cure, and has removed or cured,
the conditions creating the cause for such obligation to pay such
additional amounts or for such illegality, the Borrower may designate
another Bank which is reasonably acceptable to the Agent and the
Majority Banks (such Bank being herein called a "Replacement Bank") to
purchase the Committed Loans of such Bank and such Bank's rights
hereunder, without recourse to or warranty by, or expense to, such
Bank for a purchase price equal to the outstanding principal amount of
the Committed Loans payable to such Bank plus any accrued but unpaid
interest on such Loans and accrued but unpaid fees in respect of such
Bank's Commitment and any other amounts payable to such Bank under
this Agreement, and to assume all the obligations of such Bank
55
hereunder (except for such rights as survive repayment of the Loans),
and, upon such purchase, such Bank shall no longer be a party hereto
or have any rights hereunder (except those related to any Bid Loans of
such Bank which remain outstanding and those that survive full payment
hereunder) and shall be relieved from all obligations to the Borrower
hereunder, and the Replacement Bank shall succeed to the rights and
obligations of such Bank hereunder.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each Bank
that:
2 Corporate Existence; Compliance with Law. The Borrower
and each of its Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires
such qualification except where the failure to so qualify has no
reasonable likelihood of having a Material Adverse Effect;
(c) has all requisite corporate power and authority to own,
pledge, mortgage, hold under lease and operate its properties, and to
conduct its business as now or currently proposed to be conducted;
(d) is in compliance with its certificate of incorporation and
by-laws; and
(e) is in compliance with all other Requirements of Law except
such non-compliance as has no reasonable likelihood of having a
Material Adverse Effect.
3 Corporate Authorization; No Contravention; Governmental
Authorization. The execution, delivery and performance by the
Borrower of the Loan Documents:
(a) are within the respective corporate powers of the Borrower;
(b) have been duly authorized by all necessary corporate
action, including the consent of shareholders where required;
(c) do not and will not:
(i) contravene the certificate of incorporation or by-laws of
the Borrower;
(ii) violate any other Requirement of Law (including the
Securities Exchange Act of 1934, Regulations G, T, U and X of the
Federal Reserve Board or any order or decree of any court or other
Governmental Authority);
56
(iii) conflict with or result in the breach of, or constitute a
default under, any Contractual Obligation binding on or affecting
the Borrower or any of its properties, if such breach or default
has any reasonable likelihood of having a Material Adverse
Effect, or any order, injunction, writ or decree of any
Governmental Authority to which the Borrower or any of its
properties is subject; or
(iv) result in the creation or imposition of any Lien upon any
of the property of the Borrower; and
(d) do not require the consent, authorization by or approval
of or notice to or filing or registration with any Governmental
Authority or any other Person other than those which have been duly
obtained, made or given.
4 Enforceable Obligations. This Agreement and the other
Loan Documents have been duly executed and delivered by the Borrower.
This Agreement and each other Loan Document are legal, valid and
binding obligations of the Borrower, enforceable against the Borrower
in accordance with their respective terms except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws or equitable principles relating to or limiting
creditors' rights generally.
5 Taxes. The Borrower and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other material taxes and
assessments payable by them, to the extent the same have become due
and payable and before they have become delinquent, except those which
are currently being contested in good faith by appropriate proceedings
and for which adequate reserves have been provided in accordance with
GAAP, provided the non-payment thereof has no reasonable likelihood of
having a Material Adverse Effect. The Borrower does not know of any
proposed material tax assessment against the Borrower or any of its
Subsidiaries and in the opinion of the Borrower, all potential tax
liabilities are adequately provided for on the books of the Borrower
and its Subsidiaries. The statute of limitations for assessment or
collection of Federal income tax has expired for all federal income
tax returns filed by the Borrower for all tax years up to and
including the tax year ended in March, 1987 and filed by Holly Farms
Corporation up to and including the tax year ended on May 31, 1987.
(a) Financial Matters The consolidated balance sheet of the
Borrower and its Subsidiaries as of the last day of the fiscal year of
the Borrower ended on October 1, 1994 and as of the last day of the
fiscal quarter of the Borrower ended on April 1, 1995 and the related
consolidated statements of income, shareholders' equity and cash flows
of the Borrower and its Subsidiaries for such fiscal year and quarter,
with, in the case of said fiscal year, reports thereon by Ernst &
Young:
(i) are complete, accurate and fairly present the financial
condition of the Borrower and its Subsidiaries as of the respective
dates thereof and for the respective periods covered thereby;
(ii) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as set forth in the
notes thereto; and
57
(iii) except as specifically disclosed in Schedule 4.05, show
all material indebtedness and other liabilities, direct or contingent,
of the Borrower and its consolidated Subsidiaries as of the dates
thereof, including liabilities for taxes, material commitments and
long-term leases.
(b) Since October 1, 1994, there has been no Material Adverse
Effect and no development which has any reasonable likelihood of
having a Material Adverse Effect.
(c) The Borrower is, and the Borrower and its Subsidiaries
are, on a consolidated basis, Solvent.
6 Litigation. There are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of the Borrower,
threatened, against the Borrower or any of its Subsidiaries before any
court or other Governmental Authority or any arbitrator that have a
reasonable likelihood of having a Material Adverse Effect. All
pending actions or proceedings affecting the Borrower or any of its
Subsidiaries as of the date hereof and involving claims in excess of
$10,000,000 are described in Schedule 4.06.
7 Subsidiaries.
(a) A complete and correct list of all Subsidiaries of the
Borrower as of the Restatement Date, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its incorporation and
the percentage of shares of each class outstanding owned by the
Borrower and each other Subsidiary of the Borrower is set forth in
Schedule 4.07(a).
(b) All of the outstanding shares of each of the Subsidiaries
listed on Schedule 4.07(a) have been validly issued, are fully paid
and non-assessable and are owned by the Borrower or another Subsidiary
of the Borrower, free and clear of any Lien.
(c) The Borrower has no obligation to capitalize any of its
Subsidiaries.
(d) A complete and correct list of all joint ventures in which
the Borrower or any of its Subsidiaries, is a partner is set forth in
Schedule 4.07(d).
8 Liens. There are no Liens of any nature whatsoever on any
properties of the Borrower or any of its Subsidiaries other than
Permitted Liens.
9 No Burdensome Restrictions; No Defaults.
(a) Neither the Borrower nor any of its Subsidiaries is a
party to or bound by any Contractual Obligation, or subject to any
charter or corporate restriction or any Requirement of Law, which has
any reasonable likelihood of having a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation in any
respect which, individually or together with all such defaults, has a
reasonable likelihood of having a Material Adverse Effect.
58
(c) No Default or Event of Default exists or would result from
the incurring of any Obligations by the Borrower or any of its
Subsidiaries.
.9 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended. The making of the Loans by the Banks and the
application of the proceeds and repayment thereof by the Borrower and
the consummation of the transactions contemplated by the Loan
Documents will not violate any provision of such Act or any rule,
regulation or order issued by the Securities and Exchange Commission
thereunder.
.10 Use of Proceeds; Margin Regulations. No part of the
proceeds of any Loan will be used, and no Loan will otherwise be, in
violation of Regulation G, T, U or X of the Federal Reserve Board.
.11 Assets.
(a) The Borrower and each of its Subsidiaries has good record
and marketable title to all real property necessary or used in the
ordinary conduct of its business, except for Permitted Liens and such
defects in title as have no reasonable likelihood, individually or in
the aggregate, of having a Material Adverse Effect.
(b) The Borrower and each of its Subsidiaries owns or licenses
or otherwise has the right to use all material licenses, permits,
patents, trademarks, service marks, trade names, copyrights,
franchises, authorizations and other intellectual property rights that
are necessary for the operation of its business, without infringement
of or conflict with the rights of any other Person with respect
thereto, except for such infringements or conflicts as have no
reasonable likelihood of having a Material Adverse Effect. No
material slogan or other advertising device, product, process, method
or other material now employed, or now contemplated to be employed, by
the Borrower or any of its Subsidiaries infringes upon or conflicts
with any rights owned by any other Person except for such
infringements or conflicts as have no reasonable likelihood,
individually or in the aggregate, of having a Material Adverse Effect.
.12 Labor Matters. Except as disclosed in Schedule 4.13,
there are no strikes or other labor disputes pending or, to the
knowledge of the Borrower, threatened against the Borrower or any of
its Subsidiaries which have any reasonable likelihood of having a
Material Adverse Effect. No significant unfair labor practice
complaint is pending or, to the knowledge of the Borrower, threatened,
against the Borrower or any of its Subsidiaries before any
Governmental Authority.
.13 Environmental Matters. Except as disclosed in Schedule
4.14:
(a) the on-going operations of the Borrower and each of its
Subsidiaries comply in all respects with all Environmental Laws except
such non-compliance as has no reasonable likelihood of having a
Material Adverse Effect;
59
(b) the Borrower and each of its Subsidiaries have obtained
all environmental, health and safety permits necessary or required for
its operations, all such permits are in good standing, and the
Borrower and each of its Subsidiaries is in compliance with all
material terms and conditions of such permits;
(c) none of the Borrower, any of its Subsidiaries or any of
their present property or operations (or past property or operations)
is subject to any outstanding written order from or agreement with any
Governmental Authority nor subject to any judicial or docketed
administrative proceeding, respecting any Environmental Claim or
Hazardous Material which, in each case, has any reasonable likelihood
of having a Material Adverse Effect;
(d) there are no conditions or circumstances associated with
any property of the Borrower or any of its Subsidiaries formerly owned
and operated by the Borrower or any of its Subsidiaries or any of
their predecessors or with the former operations, including off-site
disposal practices, of the Borrower or its Subsidiaries or their
predecessors which may give rise to Environmental Claims which in the
aggregate have any reasonable likelihood of having a Material Adverse
Effect; and
(e) there are no conditions or circumstances which may give
rise to any Environmental Claim arising from the operations of the
Borrower or its Subsidiaries, including Environmental Claims
associated with any operations of the Borrower or its Subsidiaries,
which have any reasonable likelihood of having a Material Adverse
Effect. In addition, (i) neither the Borrower nor any of its
Subsidiaries has any underground storage tanks (A) that are not
properly permitted under applicable Environmental Laws or (B) that to
the best of the Borrower's knowledge, are leaking or dispose of
Hazardous Materials off-site and (ii) the Borrower and each of its
Subsidiaries has notified all of its employees of the existence, if
any, of any health hazard arising from the conditions of their
employment and have met all notification requirements under Title III
of CERCLA and under OSHA and all other Environmental Laws.
.14 Completeness. None of the representations or warranties
of the Borrower contained herein or in any other Loan Document or in
any certificate or written statement furnished by or on behalf of the
Borrower pursuant to the provisions of this Agreement or any other
Loan Document contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained
herein or therein, in light of the circumstances under which they are
made, not misleading. There is no fact known to the Borrower which
the Borrower has not disclosed to the Banks which may have a Material
Adverse Effect.
.15 ERISA.
(a) Neither the Borrower nor any member of its Controlled
Group contributes to any Plan other than those set forth in Schedule
4.16.
(b) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and any other applicable
60
Federal or state law and rules and regulations promulgated thereunder.
With respect to each Plan (other than a Multiemployer Plan) all
material reports required under ERISA or any other applicable law or
regulation to be filed with the relevant Governmental Authority, the
failure of which to file could reasonably result in liability of the
Borrower or any member of its Controlled Group in excess of $500,000
have been duly filed and all such reports are true and correct in all
material respects as of the date given.
(c) Except as set forth in Schedule 4.16, no Plan has been
terminated nor has any accumulated funding deficiency (as defined in
Section 412(a) of the Code) been incurred (without regard to any
waiver granted under Section 412 of the Code) nor has any funding
waiver from the IRS been received or requested.
(d) Neither the Borrower nor any member of its Controlled
Group has failed to make any contribution or pay any amount due or
owing as required by Section 412 of the Code or Section 302 of ERISA
or the terms of any such Plan prior to the due date (including
permissible extensions thereof) under Section 412 of the Code and
Section 302 of ERISA.
(e) There has been no ERISA Event or any event requiring
disclosure under Section 4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of
ERISA with respect to any Plan or trust of the Borrower or any member
of its Controlled Group.
(f) Except as set forth in Schedule 4.16, the value of the
assets of each Plan (other than a Multiemployer Plan) equalled or
exceeded the present value of the benefit liabilities, as defined in
Title IV of ERISA, of each such Plan as of the most recent valuation
date using Plan actuarial assumptions at such date.
(g) There are no pending claims, lawsuits or actions (other
than routine claims for benefits in the ordinary course) asserted or
instituted against, and neither the Borrower nor any member of its
Controlled Group has knowledge of any threatened litigation or claims
against, (i) the assets of any Plan or trust or against any fiduciary
of a Plan with respect to the operation of such Plan which has any
reasonable likelihood of having a Material Adverse Effect or (ii) the
assets of any employee welfare benefit plan maintained by the Borrower
or any member of its Controlled Group within the meaning of Section
3(1) of ERISA or against any fiduciary thereof with respect to the
operation of any such Plan which has any reasonable likelihood of
having a Material Adverse Effect.
(h) Neither the Borrower nor any member of its Controlled
Group has engaged in any prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, in connection with
any Plan.
(i) Neither the Borrower nor any member of its Controlled
Group (i) has incurred or reasonably expects to incur (A) any
liability under Title IV of ERISA (other than premiums due under
Section 4007 of ERISA to the PBGC) or (B) any withdrawal liability
(and no event has occurred which with the giving of notice under
Section 4219 of ERISA would result in such liability) under Section
61
4201 of ERISA as a result of a complete or partial withdrawal (within
the meaning of Section 4203 or 4205 of ERISA) from a Multiemployer
Plan or (C) any liability under Section 4062 of ERISA to the PBGC or
to a trustee appointed under Section 4042 of ERISA, or (ii) has
withdrawn from any Multiemployer Plan.
(j) Neither the Borrower nor any member of its Controlled
Group nor any organization to which the Borrower or any member of its
Controlled Group is a successor or parent corporation within the
meaning of Section 4069(b) of ERISA has engaged in a transaction
within the meaning of Section 4069 of ERISA.
(k) Except as set forth in Schedule 4.16, neither the Borrower
nor any member of its Controlled Group maintains or has established
any welfare benefit plan within the meaning of Section 3(1) of ERISA
which provides for (i) continuing benefits or coverage for any
participant or any beneficiary of any participant after such
participant's termination of employment except as may be required by
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA") and the regulations thereunder, and at the expense of the
participant or the beneficiary of the participant, or (ii) retiree
medical liabilities. The Borrower and each member of its Controlled
Group which maintains a welfare benefit plan within the meaning of
Section 3(1) of ERISA has complied with any applicable notice and
continuation requirements of COBRA and the regulations thereunder,
except where the failure to so comply could not result in the loss of
a tax deduction or imposition of a tax or other penalty on the
Borrower or any member of its Controlled Group.
.16 Insurance. The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable
insurance companies, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in
similar business and owning similar properties in localities where the
Borrower and its Subsidiaries operate.
CONDITIONS PRECEDENT
1 Conditions Precedent to Effectiveness. The effectiveness
of this Agreement and the obligation of each Bank to make its first
Committed Loan after the Restatement Date is subject to the condition
that the Agent shall have received the following, each, unless
specified below, dated the Restatement Date, in form and substance
satisfactory to the Agent, each Bank and their respective counsel and
(other than the promissory notes, if any) in sufficient copies for
each Bank:
(a) Credit Agreement and Notes. This Agreement executed by
the Borrower, each Co-Agent, the Agent and each of the Banks and any
promissory notes requested by the Banks pursuant to Section 2.05;
(b) Board Resolutions; Approvals; Incumbency Certificates.
(i) Copies of the resolutions of the Executive Committee of
the Board of Directors of the Borrower approving and authorizing the
execution, delivery and performance by the Borrower of this Agreement
and the other Loan Documents to be delivered hereunder, and
authorizing the borrowing of the Loans, certified as of the
62
Restatement Date by the Secretary or an Assistant Secretary of the
Borrower; and
(ii) A certificate of the Secretary or Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to execute and deliver this Agreement and
all other Loan Documents to be delivered hereunder;
(c) Articles of Incorporation; By-laws and Good Standing.
Each of the following documents:
(i) the articles or certificate of incorporation of the
Borrower as in effect on the Restatement Date, certified by the
Secretary of State of Delaware as of a recent date and by the
Secretary or Assistant Secretary of the Borrower as of the Restatement
Date and the by-laws of the Borrower as in effect on the Restatement
Date, certified by the Secretary or Assistant Secretary of the
Borrower as of the Restatement Date; and
(ii) good standing certificates as of a recent date for the
Borrower from the Secretaries of State of Arkansas, Delaware, North
Carolina, Texas and Virginia;
(d) Legal Opinion. A favorable opinion, dated the Restatement
Date and addressed to the Agent and the Banks of Corporate Counsel of
the Borrower and its Subsidiaries, in substantially the form of
Exhibit 5.01 and as to such other matters as any Bank through the
Agent may reasonably request (and the Borrower hereby instructs such
counsel to deliver such opinion);
(e) Certificate. A certificate signed by a Responsible
Officer of the Borrower, dated as of the Restatement Date, stating
that:
(i) the representations and warranties contained in Article IV
are true and correct on and as of such date, as though made on and as
of such date;
(ii) no Default or Event of Default exists or would result from
the initial Borrowing hereunder; and
(iii) there has occurred since October 1, 1994, no Material
Adverse Effect; and
(f) Other Documents. Such other approvals, opinions or
documents as the Agent or any Bank may request.
2 Additional Conditions Precedent to the First Committed
Borrowing after the Restatement Date. The obligation of each Bank to
make its first Committed Loan after the Restatement Date is subject to
the further conditions precedent that:
(a) Fees, Costs and Expenses. The Borrower shall have paid
all accrued and unpaid fees payable under the Original Agreement to
the extent due and payable on or before the Restatement Date and shall
also have paid all costs and expenses referred to in Section 10.04
(including legal fees and expenses and the allocated cost of in-house
63
counsel) to the extent such costs and expenses are invoiced at least
two Business Days prior to the Restatement Date.
(b) Original Agreement. All loans outstanding under the
Original Agreement shall be simultaneously repaid, prepaid or
refinanced hereunder; provided, however, that any Existing Bid Loans
outstanding under the Original Agreement on the Restatement Date shall
remain outstanding under this Agreement as if the Existing Bid Loans
were Bid Loans made hereunder.
(c) Original Banks. Each bank which is a party to the
Original Agreement but whose name does not appear on the signature
pages hereof shall have consented to the amendment and restatement of
the Original Agreement and confirmed that it will not be a party to
this Agreement by executing and delivering a letter in the form of
Exhibit 5.02 and each Bank not a party to the Original Agreement by
signing this Agreement shall have become a Bank for all purposes of
this Agreement.
3 Conditions Precedent to All Borrowings. The obligation of
each Bank to make any Loan (including its first Committed Loan and any
Bid Loan as to which there has been an offer and acceptance of terms
pursuant to Section 2.04) on or after the Restatement Date shall be
subject to the further conditions precedent that:
(a) Notice of Borrowing. In the case of a Committed
Borrowing, the Agent shall have received a Notice of Borrowing as
required by Section 2.02.
(b) Continuation of Representations and Warranties. The
representations and warranties contained in Article IV and in each
other Loan Document shall be true and correct on and as of the date of
borrowing with the same effect as if made on and as of such date
(except for representations and warranties expressly relating to an
earlier date, in which case they shall be true and correct as of such
earlier date).
(c) No Existing Default. No Default or Event of Default shall
exist and be continuing or shall result from the Loan being made on
such date.
(d) Other Assurances. The Agent shall have received such
other approvals, opinions or documents as any Bank through the Agent
may reasonably request related to the transactions contemplated
hereby.
Each Notice of Borrowing and Competitive Bid Request submitted by
the Borrower hereunder shall constitute a representation and warranty
by the Borrower hereunder, as of the date of each such notice,
application or request and as of the date of each Borrowing relating
thereto, that the conditions in this Section 5.03 are satisfied.
64
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that as long as any Bank shall
have any Commitment hereunder or any Loan or other Obligation shall
remain unpaid or unsatisfied, unless the Majority Banks waive
compliance in writing:
4 Compliance with Laws, Etc. The Borrower shall comply, and
cause each of its Subsidiaries to comply, with all applicable
Requirements of Law, except such as may be contested in good faith by
appropriate proceedings and which has no reasonable likelihood of
having a Material Adverse Effect.
5 Use of Proceeds. The Borrower shall use the proceeds of
any Loan hereunder made on or after the Restatement Date to refinance
Indebtedness outstanding under the Original Agreement and for working
capital and other general corporate purposes (including capital
expenditures and acquisitions and to support the issuance of
commercial paper) not in contravention of any Requirement of Law and
consistent with the representations and warranties contained herein;
provided, however, that the proceeds of any Loan hereunder may not be
used to finance the purchase or other acquisition of Stock in any
Person if such purchase or acquisition is opposed by the board of
directors of such Person.
6 Payment of Obligations, Etc. The Borrower shall pay and
discharge, and cause each of its Subsidiaries to pay and discharge,
before the same shall become delinquent, all lawful claims and all
taxes, assessments and governmental charges or levies unless the same
are being contested in good faith by appropriate proceedings and
adequate reserves therefor have been established on the books of the
Borrower or one of its Subsidiaries in accordance with GAAP, provided
all such non-payments, individually or in the aggregate, have no
reasonable likelihood of having a Material Adverse Effect.
7 Insurance. The Borrower shall maintain, and cause each of
its Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
8 Preservation of Corporate Existence, Etc. The Borrower
shall preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises, except as permitted under Sections 7.05 and
7.07.
9 Access. The Borrower shall permit, and cause each of its
Subsidiaries to permit, representatives of the Agent or any Bank to
examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any of its Subsidiaries with any of their directors,
officers and independent public accountants and authorize those
accountants to disclose to such Person any and all financial
65
statements and other information of any kind, including copies of any
management letter or the substance of any oral information that such
accountants may have with respect to the business, financial and other
affairs of the Borrower or any of its Subsidiaries, all at the expense
of the Borrower and at such times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to
the Borrower; provided, however, that when an Event of Default exists,
the Agent or any Bank may visit and inspect, at the expense of the
Borrower, its records and properties at any time during business hours
and without advance notice.
10 Keeping of Books. The Borrower shall maintain, and cause
each of its Subsidiaries to maintain, proper books of record and
account, in which full and correct entries shall be made of all
financial transactions and matters involving the assets and business
of the Borrower and each of its Subsidiaries in accordance with GAAP.
11 Maintenance of Properties. The Borrower shall maintain
and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties in good repair, working order and
condition, and from time to time make or cause to be made all
necessary and proper repairs, renewals, replacements and improvements
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 6.08 shall prevent the Borrower or any of
its Subsidiaries from discontinuing the operation and the maintenance
of any of its properties if such discontinuance is, in the opinion of
the Borrower, desirable in the conduct of its business and has no
reasonable likelihood of having a Material Adverse Effect.
12 Financial Statements. The Borrower shall deliver to each
Bank with a copy to the Agent, in form and details satisfactory to the
Banks and the Agent:
(a) as soon as available, but not later than 45 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, a copy of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter and the
related consolidated statements of income, shareholders' equity and
cash flows for such quarter and for the period commencing at the end
of the previous fiscal year and ending on the last day of such
quarter, which statements shall be certified by the Chief Financial
Officer of the Borrower as being complete and correct and fairly
presenting, in accordance with GAAP, the financial position and
results of operation of the Borrower and its Subsidiaries;
(b) as soon as available, but not later than 90 days after the
end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such year and the related consolidated statements of
income, shareholders' equity and cash flows for the period commencing
at the end of the previous fiscal year and ending with the end of such
fiscal year, which statements shall be certified without qualification
as to the scope of the audit by a nationally recognized independent
public accounting firm and be accompanied by (i) a certificate of such
accounting firm stating that such accounting firm has obtained no
knowledge that a Default or an Event of Default has occurred and is
66
continuing, or if such accounting firm has obtained such knowledge
that a Default or an Event of Default has occurred and is continuing,
a statement as to the nature thereof and (ii) copies of any letters to
the management of the Borrower from such accounting firm; and
(c) at the same time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of
the Chief Financial Officer of the Borrower (i) to the effect that no
Default or Event of Default has occurred and is continuing (or, if any
Default or Event of Default has occurred and is continuing, describing
the same in reasonable detail and the action which the Borrower
proposes to take with respect thereto) and (ii) a compliance
certificate, in substantially the form of Exhibit 6.09, setting forth
in reasonable detail the computations necessary to determine whether
the Borrower was in compliance with the financial covenant set forth
in Section 7.15, in each case reconciling any differences between the
numbers used in such calculations and those used in the preparation of
such financial statements.
.17 Reporting Requirements. The Borrower shall furnish to the
Agent (and the Agent shall promptly furnish to the Banks):
(a) promptly after the commencement thereof, notice of all
actions, suits and proceedings before any court or other Governmental
Authority affecting the Borrower or any of its Subsidiaries which,
individually or in the aggregate, has any reasonable likelihood of
having a Material Adverse Effect;
(b) promptly but not later than three Business Days after the
Borrower becomes aware of the existence of (i) any Default or Event of
Default, (ii) any breach or non-performance of, or any default under,
any Contractual Obligation to which the Borrower or any of its
Subsidiaries is a party which has any reasonable likelihood of having
a Material Adverse Effect, or (iii) any Material Adverse Effect or any
event or other development which has a reasonable likelihood of having
a Material Adverse Effect, notice by telephone or facsimile specifying
the nature of such Default, Event of Default, breach, non-performance,
default, Material Adverse Effect, event or development, including the
anticipated effect thereof;
(c) promptly after the sending or filing thereof, copies of
all reports which the Borrower or any of its Subsidiaries sends to its
security holders generally, and copies of all reports and registration
statements which the Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission or any national securities
exchange;
(d) promptly after the creation or acquisition thereof, the
name and jurisdiction of incorporation of each new Subsidiary of the
Borrower;
67
(e) promptly, but not later than five Business Days after the
Borrower becomes aware of any change by Moody's or S&P in its Debt
Rating, notice by telephone or facsimile of such change; and
(f) such other information respecting the business, prospects,
properties, operations or the condition, financial or otherwise, of
the Borrower or any of its Subsidiaries as any Bank through the Agent
may from time to time reasonably request.
.18 Notices Regarding ERISA. Without limiting the generality
of the notice provisions contained in Section 6.10, the Borrower shall
furnish to the Agent:
(a) promptly and in any event (i) within 30 days after the
Borrower or any member of its Controlled Group knows or has reason to
know that any ERISA Event described in clause (a) of the definition of
ERISA Event or any event described in Section 4063(a) of ERISA with
respect to any Plan, and (ii) within ten days after the Borrower or
any member of its Controlled Group knows or has reason to know that
any other ERISA Event with respect to any Plan has occurred or a
request for a minimum funding waiver under Section 412 of the Code
with respect to any Plan has been made, a statement of the Chief
Financial Officer of the Borrower describing such ERISA Event and the
action, if any, which the Borrower or such member of its Controlled
Group proposes to take with respect thereto together with a copy of
the notice of such ERISA Event or other event, if required by the
applicable regulations under ERISA, given to the PBGC;
(b) promptly and in any event within five Business Days after
receipt thereof by the Borrower or any member of its Controlled Group
from the PBGC, copies of each notice received by the Borrower or any
such member of its Controlled Group of the PBGC's intention to
terminate any Plan or to have a trustee appointed to administer any
Plan;
(c) promptly and in any event within ten Business Days after
receipt thereof, a copy of any correspondence the Borrower or any
member of its Controlled Group receives from the Plan Sponsor (as
defined by Section 4001(a)(10) of ERISA) of any Multiemployer Plan
concerning potential withdrawal liability of the Borrower or any
member of its Controlled Group pursuant to Section 4219 or 4202 of
ERISA, and a statement from the Chief Financial Officer of the
Borrower or such member of its Controlled Group setting forth details
as to the events giving rise to such potential withdrawal liability
and the action which the Borrower or such member of its Controlled
Group proposes to take with respect thereto;
(d) notification within 30 days of any material increase in
the benefits under any existing Plan which is not a Multiemployer
Plan, or the establishment of any new Plans, or the commencement of
contributions to any Plan to which the Borrower or any member of its
Controlled Group was not previously contributing;
(e) notification within five Business Days after the Borrower
or any member of its Controlled Group knows or has reason to know that
the Borrower or any such member of its Controlled Group has or intends
68
to file a notice of intent to terminate any Plan under a distress
termination within the meaning of Section 4041(c) of ERISA and a copy
of such notice; and
(f) promptly after receipt of written notice of commencement
thereof, notice of any action, suit and proceeding before any
Governmental Authority affecting the Borrower or any member of its
Controlled Group with respect to any Plan, except those which, in the
aggregate, if adversely determined, could not have a Material Adverse
Effect.
.19 Employee Plans.
(a) With respect to Plans other than a Multiemployer Plan, for
each Plan intended to be qualified under Section 401(a) of the Code
which is hereafter adopted or maintained by the Borrower or by any
member of its Controlled Group, the Borrower shall or shall cause any
such member of its Controlled Group to (i) seek and receive
determination letters from the IRS to the effect that such Plan is
qualified within the meaning of Section 401(a) of the Code; (ii) from
and after the adoption of any such Plan, cause such Plan to be
qualified within the meaning of Section 401(a) of the Code and to be
administered in all material respects in accordance with the
requirements of ERISA and Section 401(a) of the Code; (iii) make all
required contributions by the due date (including permissible
extensions) under Section 412 of the Code and Section 302 of ERISA;
and (iv) not take any action which could reasonably be expected to
cause such Plan not to be qualified within the meaning of Section
401(a) of the Code or not to be administered in all material respects
in accordance with the requirements of ERISA and Section 401(a) of the
Code.
(b) With respect to each Multiemployer Plan, the Borrower and
each member of its Controlled Group will make any contributions
required by such Multiemployer Plan.
.20 Environmental Compliance; Notice. The Borrower shall, and
cause each of its Subsidiaries to:
(a) use and operate all of its facilities and properties in
substantial compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, license and other authorizations
relating to environmental matters in effect and remain in substantial
compliance therewith, and handle all Hazardous Materials in
substantial compliance with all applicable Environmental Laws;
(b) promptly upon receipt of all written claims, complaints,
notices or inquiries relating to the condition of its facilities and
properties or compliance with Environmental Laws, evaluate such
claims, complaints, notices and inquiries and forward copies of (i)
all such claims, complaints, notices and inquiries which individually
have any reasonable likelihood of having a Material Adverse Effect and
(ii) all such claims, complaints, notices and inquiries, arising from
a single occurrence which together have any reasonable likelihood of
having a Material Adverse Effect, and endeavor to promptly resolve all
such actions and proceedings relating to compliance with Environmental
Laws; and
69
(c) provide such information and certifications which the
Agent may reasonably request from time to time to evidence compliance
with this Section 6.13.
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so as long as any
Bank shall have any Commitment hereunder or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the Majority
Banks shall waive compliance in writing:
2 Limitations on Liens. The Borrower shall not create,
incur, assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any Lien upon or with
respect to any of its properties, whether now owned or hereafter
acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on the property of the Borrower or any
of its Subsidiaries on the Restatement Date and set forth in Schedule
7.01 and any extension, renewal and replacement of any such Lien;
provided any such extension, renewal or replacement Lien is limited to
the property or assets covered by the Lien extended, renewed or
replaced and does not secure any Indebtedness in addition to that
secured immediately prior to such extension, renewal and replacement;
(b) any Lien created pursuant to any Loan Document;
(c) Liens imposed by law, such as materialmen's, mechanics',
warehousemen's, carriers', lessors' or vendors' Liens incurred by the
Borrower or any of its Subsidiaries in the ordinary course of business
which secure its payment obligations to any Person, provided (i)
neither the Borrower nor any of its Subsidiaries is in default with
respect to any payment obligation to such Person or is in good faith
and by appropriate proceedings diligently contesting such obligation
for which adequate reserves shall have been set aside on its books and
(ii) such Liens have no reasonable likelihood of having, individually
or in the aggregate, a Material Adverse Effect;
(d) Liens for taxes, assessments or governmental charges or
levies either not yet due and payable or to the extent that
non-payment thereof shall be permitted by Section 6.03;
(e) Liens on the property of the Borrower or any of its
Subsidiaries incurred, or pledges and deposits made, in the ordinary
course of business in connection with worker's compensation,
unemployment insurance, old-age pensions and other social security
benefits, other than in respect of employee plans subject to ERISA;
(f) Liens on the property of the Borrower or any of its
Subsidiaries securing (i) the performance of bids, tenders, statutory
obligations, leases and contracts (other than for the repayment of
borrowed money), (ii) obligations on surety and appeal bonds not
exceeding in the aggregate $5,000,000 and (iii) other obligations of
like nature incurred as an incident to and in the ordinary course of
business, provided all such Liens in the aggregate have no reasonable
likelihood (even if enforced) of having a Material Adverse Effect;
70
(g) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities
incident thereto which do not impair the value of any parcel of
property material to the operation of the business of the Borrower and
its Subsidiaries taken as a whole or the value of such property for
the purpose of such business;
(h) (i) purchase money liens or purchase money security
interests (including in connection with capital leases) upon or in any
property acquired or held by the Borrower or any of its Subsidiaries
in the ordinary course of business to secure the purchase price of
such property or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such property and Liens
existing on such property at the time of its acquisition (other than
any such Lien created in contemplation of such acquisition) which
Liens do not extend to any other property and do not secure
Indebtedness exceeding the purchase price of such property;
(i) Liens (including in connection with capital leases)
securing Indebtedness of the Borrower or any of its Subsidiaries
incurred to finance all or some of the cost of construction of
property (or to refinance Indebtedness so incurred upon completion of
such construction) which Liens do not extend to any other property
except to the unimproved real property upon which such construction
will occur; provided the Indebtedness secured by such Liens is not
incurred more than 90 days after the later of the completion of
construction or the commencement of full operation of such property;
and
(ii) Liens on property in favor of any Governmental Authority
to secure partial, progress, advance or other payments, or performance
of any other obligations, pursuant to any contract or statute or to
secure any Indebtedness of the Borrower or any of its Subsidiaries
incurred for the purpose of financing all or any part of the purchase
price or the cost of construction of property subject to Liens
(including in connection with capital leases) securing Indebtedness of
the pollution control or industrial or other revenue bond type and
which Liens do not extend to any other property;
provided, however, that the aggregate amount of Indebtedness
secured by all Liens referred to in clauses (i), (ii) and (iii)
of this paragraph (h) at any time outstanding, together with the
Indebtedness secured by Liens permitted pursuant to paragraphs
(i) and (l) below (and any extensions, renewals and refinancings
of such Indebtedness) shall not, subject to the second proviso of
paragraph (i) below, at any time exceed the Permitted Lien
Basket;
(i) Liens on assets of any corporation existing at the time
such corporation becomes a Subsidiary of the Borrower or merges into
or consolidates with the Borrower or any of its Subsidiaries, if such
Liens (A) do not extend to any other property, (B) do not secure
Indebtedness exceeding the fair market value of such property at the
time such corporation becomes a Subsidiary of the Borrower or at the
time of such merger or consolidation, and (C) were not created in
contemplation of such corporation becoming a Subsidiary of the
Borrower or of such merger or consolidation; provided, however, that
71
the aggregate amount of Indebtedness secured by Liens referred to in
this paragraph (i), together with the Indebtedness secured by Liens
permitted pursuant to paragraph (h) above and paragraph (l) below (and
any extensions, renewals and refinancings of such Indebtedness) shall
not at any time exceed the Permitted Lien Basket; provided, further,
however, that notwithstanding the foregoing limitation, the Borrower
may incur, and permit its Subsidiaries to incur, Indebtedness secured
by Liens referred to in this paragraph (i) which, when aggregated with
the Indebtedness secured by Liens permitted pursuant to paragraph (h)
above and paragraph (l) below, exceed the Permitted Lien Basket if,
and only if, (x) such Indebtedness remains outstanding for a period of
less than six months from the date on which such Indebtedness first
exceeded the Permitted Lien Basket or (y) such Liens are released
within six months;
(j) the filing of financing statements in respect of accounts
sold by the Borrower and its Subsidiaries pursuant to a receivables
purchase transaction by the purchaser or purchasers from the Borrower
and its Subsidiaries of such accounts;
(k) judgment Liens created by or resulting from any litigation
or legal proceeding if released or bonded within 60 days of the date
of creation thereof (or such earlier date as may be required by
Section 8.01(h)), unless such litigation shall have had a Material
Adverse Effect; and
(l) Liens securing other Indebtedness of the Borrower or any
of its Subsidiaries not expressly permitted by paragraphs (a) through
(k); provided, however, that the aggregate amount of Indebtedness
secured by Liens permitted pursuant to paragraphs (h) and (i) above
and pursuant to this paragraph (l) (and any extensions, renewals and
refinancings of such Indebtedness) shall not, subject to the second
proviso of paragraph (i) above, at any time exceed the Permitted Lien
Basket.
3 Limitation on Indebtedness. The Borrower shall not create,
incur, assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any Indebtedness except:
(a) the Loans and any other Indebtedness under this Agreement
or any other Loan Document;
(b) Indebtedness existing on the Restatement Date and set
forth in Schedule 7.02, and any extension, renewal, refunding and
refinancing thereof, provided that after giving effect to such
extension, renewal, refunding or refinancing, (A) the principal amount
thereof is not increased, (B) neither the tenor nor the remaining
average life thereof is reduced and (C) the interest rate thereon is
not increased; provided, however, that the industrial revenue bonds
identified by an asterisk in Schedule 7.02 may be refinanced at an
interest rate higher than the rate in effect immediately prior to such
refinancing if such rate is not in excess of any rate of interest then
payable in respect of the Loans (without taking into account any
interest payable pursuant to Section 2.10);
(c) Indebtedness of the Borrower to any of its wholly-owned
Subsidiaries, of any Subsidiary of the Borrower to the Borrower or of
any Subsidiary of the Borrower to another Subsidiary of the Borrower;
72
(d) surety bonds and appeal bonds required in the ordinary
course of business or in connection with the enforcement of rights or
claims of the Borrower or its Subsidiaries or in connection with
judgments that do not result in a Default or an Event of Default;
(e) trade debt (including Indebtedness for the purchase of
farm products from contract growers and other similar suppliers but
excluding Indebtedness for Borrowed Money) incurred by the Borrower or
any of its Subsidiaries in the ordinary course of business in a manner
and to an extent consistent with their past practices and necessary or
desirable for the prudent operation of its businesses;
(f) Indebtedness secured by Liens permitted pursuant to
Section 7.01 subject to the limitations contained therein;
(g) Indebtedness incurred in connection with the issuance of
commercial paper; and
(h) other present and future unsecured Indebtedness provided
at the time of, and immediately after giving effect to, the incurrence
of such Indebtedness, no condition or event shall exist which
constitutes an Event of Default.
4 Lease Obligations. The Borrower shall not create, incur,
assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any obligation for the
payment of rent for any property under lease or agreement to lease
having a term of one year or more, except
(a) leases of the Borrower and its Subsidiaries in existence
on the Restatement Date and any renewal or extension thereof;
(b) operating leases in the ordinary course of business; and
(c) subject to the limitations set forth in Section 7.01(h)
capital leases entered into by the Borrower or any of its Subsidiaries
after the Restatement Date in connection with sale-leaseback
transactions; provided (i) immediately prior to giving effect to such
lease, the property subject to such lease was sold by the Borrower or
any such Subsidiary to the lessor pursuant to a transaction permitted
under Section 7.07 and (ii) no Event of Default exists or would occur
as a result of such sale and subsequent lease.
5 Restricted Payments. The Borrower shall not:
(a) declare or make, or permit any of its Subsidiaries to
declare or make, any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of its
Stock other than (i) dividends paid by any wholly-owned Subsidiary of
the Borrower to the Borrower or any other wholly-owned Subsidiary of
the Borrower; (ii) distributions of shares of common stock of the
Borrower to its management as executive compensation and in connection
with management incentive plans; (iii) dividends or distributions
payable solely in additional common Stock of the Borrower; and (iv)
other dividends to the shareholders of the Borrower, provided at the
time of, and immediately after giving effect to, the payment of such
dividends pursuant to this paragraph (a)(iv), no condition or event
shall exist which constitutes an Event of Default; or
73
(b) purchase, redeem, or otherwise acquire for value or make
any payment in respect of any of its Stock now or hereafter
outstanding (or permit any of its Subsidiaries to do so) except (i)
purchases in the open market to fund the Borrower's stock option
plans, employee stock purchase plans, 401(k) plans and other similar
plans consistent with the past practices of the Borrower; (ii) the
redemption or purchase by any wholly-owned Subsidiary of the Borrower
of any of its Stock owned by another wholly-owned Subsidiary of the
Borrower and (iii) the purchase, redemption and other acquisition of
any of its or such Subsidiary's Stock, provided at the time of, and
immediately after giving effect to, such purchase, redemption or other
acquisition pursuant to this paragraph (b)(iii), no condition or event
shall exist which constitutes an Event of Default.
6 Mergers, Etc. The Borrower shall not merge or consolidate
with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter
acquired) to any Person, or, except as permitted pursuant to Section
7.06 or Section 7.09, acquire all or substantially all of the Stock of
any Person, or acquire all or substantially all of the assets of any
Person (other than live inventory) or enter into any joint venture or
partnership with, any Person, or permit any of its Subsidiaries to do
so; provided, however, that:
(a) the Borrower may merge with a wholly-owned Subsidiary of
the Borrower so long as (i) the Borrower is the surviving corporation
and (ii) at the time of, and immediately after giving effect to, such
merger, no condition or event shall exist which constitutes an Event
of Default;
(b) any wholly-owned direct or indirect Subsidiary of the
Borrower may merge with or into any other wholly-owned direct or
indirect Subsidiary of the Borrower or acquire Stock of any other
wholly-owned direct or indirect Subsidiary of the Borrower;
(c) the Borrower or any Subsidiary of the Borrower may acquire
all or substantially all of the Stock or all or substantially all of
the assets of any Person, provided at the time of, and immediately
after giving effect to such acquisition, no condition or event shall
exist which constitutes an Event of Default; and
(d) any Subsidiary of the Borrower may merge with any other
corporation permitted to be acquired pursuant to paragraph (c) above,
provided (i) at the time of, and immediately after giving effect to,
such merger, no condition or event shall exist which constitutes an
Event of Default and (ii) and after such merger, the surviving
corporation is a Subsidiary of the Borrower.
7 Investments in Other Persons. The Borrower shall not make, or
permit any of its Subsidiaries to make, any loan or advance to any
Person (other than accounts receivable created in the ordinary course
of business); or, except as permitted under Section 7.04 or 7.05,
purchase or otherwise acquire, or permit any of its Subsidiaries to
purchase or otherwise acquire, any Stock or other equity interest or
Indebtedness of any Person, or make, or permit any of its Subsidiaries
to make, any capital contribution to, or otherwise invest in, any
Person, except:
74
(a) Permitted Investments;
(b) loans or advances made by the Borrower or any of its
Subsidiaries to (i) employees of the Borrower or any of such
Subsidiaries in the ordinary course of business in a manner consistent
with past practices and (ii) joint ventures and partnerships in which
the Borrower is a partner, provided at the time of, and immediately
after giving effect to, such loans or advances, no condition or event
shall exist which constitutes an Event of Default;
(c) loans or advances or other credit support, including the
procurement of letters of credit for its account, made by the Borrower
or any of its Subsidiaries (in addition to those permitted under
paragraph (b) above) to any Person; provided, however, that the
aggregate amount of all investments pursuant to this paragraph (c)
shall not at any time exceed 15% of the consolidated Net Worth of the
Borrower;
(d) investments in Stock or other joint ventures and
partnerships (including through mergers and consolidations), provided
at the time of, and immediately after giving effect to, such
investments, no condition or event shall exist which constitutes an
Event of Default;
(e) the organization or acquisition by the Borrower or any of
its wholly-owned Subsidiaries of one or more wholly-owned
Subsidiaries;
(f) the acquisition by the Borrower or any of its wholly-owned
Subsidiaries of Stock permitted to be issued pursuant to Section 7.09;
and
(g) intercompany Indebtedness permitted pursuant to Section
7.02(d).
8 Assets. The Borrower shall not sell, assign, transfer or
otherwise dispose of any of its assets, or permit any of its
Subsidiaries to sell, assign, transfer or otherwise dispose of any of
its assets, except:
(a) the sale or disposition of inventory and farm products in
the ordinary course of business;
(b) the sale or disposition in the ordinary course of business
of any assets which have become obsolete or surplus to the business of
the Borrower or any of its Subsidiaries, or has no remaining useful
life, in each case as reasonably determined in good faith by the
Borrower or such Subsidiary, as the case may be;
(c) the periodic sales to third parties of live inventory and
related products and services under grow out contracts;
(d) Permitted Dispositions;
(e) the sale or disposition of Permitted Investments; and
(f) the sale of accounts or other receivables for not less
than the fair value thereof by the Borrower and its Subsidiaries,
without recourse, in connection with a receivables purchase
transaction.
75
9 Change in Nature of Business. The Borrower shall not:
(a) engage in any business other than the production,
marketing and distribution of food products and any related food or
agricultural products, processes or business; or
(b) permit any of its Subsidiaries to make any material change
in the nature of its business as carried on at the date hereof except
as permitted under Section 7.05 or enter into any new business.
10 Capital Structure. The Borrower shall not:
(a) make, or, except as permitted by Section 7.05, permit any
of its Subsidiaries to make, any changes in its capital structure
(including in the terms of its outstanding Stock), amend their
certificate of incorporation or by-laws, or make any changes in any of
its business objectives, purposes or operations if such change has a
reasonable likelihood of having a Material Adverse Effect; or
(b) permit any of its Subsidiaries to issue any Stock (other
than directors' qualifying shares) other than to the Borrower or any
wholly-owned Subsidiary of the Borrower, except if (i) after giving
effect to such issuance, such Subsidiary is still a Subsidiary of the
Borrower; (ii) such issuance has no reasonable likelihood of having a
Material Adverse Effect; and (iii) at the time of, and immediately
after giving effect to such issuance, there shall exist no condition
or event which constitutes an Event of Default.
.21 Transactions with Affiliates, Etc. The Borrower shall not:
(a) enter into or be a party to, or permit any of its
Subsidiaries to enter into or be a party to, any transaction with any
Affiliate of the Borrower or any such Subsidiary except (i) as
otherwise expressly permitted herein or (ii) in the ordinary course of
business, to the extent consistent with past practices, so long as any
such transaction individually and in the aggregate with other such
transactions has no reasonable likelihood of having a Material Adverse
Effect;
(b) enter into, or permit any of its Subsidiaries to enter
into, any contract or other agreement or arrangement for employment of
an executive officer other than in the ordinary course of business, or
enter into, or permit any of its Subsidiaries to enter into, any
contract or other obligation for the payment of management fees by the
Borrower or any of its Subsidiaries, except for the intercompany
allocation of general administrative costs and other expenses
consistent with past practices; or
(c) enter into, or permit any of its Subsidiaries to enter
into, any agreement that prohibits, limits or restricts any repayment
of loans or advances or other distributions to the Borrower by any of
its respective Subsidiaries, or that restricts any such Subsidiary's
ability to declare or make any dividend payment or other distribution
on account of any shares of any class of its capital stock or on its
ability to acquire or make a payment in respect thereof.
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.22 Accounting Changes. The Borrower shall not make, or
permit any of its Subsidiaries to make, any significant change in
accounting treatment and reporting practices except as required by
GAAP, the IRS or the Securities and Exchange Commission; provided,
however, that if any such changes are so required to be made within a
certain period of time only, such changes may, in the discretion of
the Borrower, be made at any time during such period.
.23 Margin Regulations. The Borrower shall not use the
proceeds of any Loan in violation of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
.24 Compliance with ERISA. The Borrower shall not, directly
or indirectly, permit any member of the Controlled Group of the
Borrower to, directly or indirectly:
(a) terminate any Plan so as to result in any material
liability (in the opinion of the Majority Banks exercised reasonably)
to the Borrower or any member of its Controlled Group;
(b) permit to exist any ERISA Event, or any other event or
condition which presents the risk of a material liability (in the
opinion of the Majority Banks exercised reasonably) of the Borrower or
any member of its Controlled Group;
(c) make a complete or partial withdrawal (within the meaning
of Section 4201 of ERISA) from any Multiemployer Plan so as to result
in any material liability (in the opinion of the Majority Banks
exercised reasonably) to the Borrower or any member of its Controlled
Group;
(d) enter into any new Plan or modify any existing Plan so as
to increase its obligations thereunder except in the ordinary course
of business consistent with past practice which has any reasonable
likelihood of resulting in material liability to the Borrower or any
member of its Controlled Group; or
(e) permit the present value of all benefit liabilities, as
defined in Title IV of ERISA, under each Plan of the Borrower or any
member of its Controlled Group (using each Plan's actuarial
assumptions upon termination of such Plan) to materially (in the
opinion of the Majority Banks exercised reasonably) exceed the fair
market value of Plan assets allocable to such benefits all determined
as of the most recent valuation date for each such Plan.
.25 Speculative Transactions The Borrower shall not engage or
permit any of its Subsidiaries to engage in any transaction involving
commodity options or futures contracts other than in the ordinary
course of business consistent with past transactions.
.26 Debt Ratio. The Borrower shall not permit at any time the
Debt Ratio to be greater than .65 to 1.
EVENTS OF DEFAULT
1 Events of Default. The term "Event of Default" shall mean
any of the events set forth in this Section 8.01.
77
(a) Non-Payment. The Borrower shall (i) fail to pay when and
as required to be paid herein, any amount of principal of any Loan or
any amount of interest on any Bid Loan; or (ii) fail to pay within
three Business Days after the same shall become due and payable, any
other interest or any fee or other amount payable hereunder or under
any other Loan Document or any other Obligation;
(b) Representations and Warranties. Any representation or
warranty made by the Borrower in this Agreement or in any other Loan
Document, or which is contained in any certificate, document or
financial or other statement delivered at any time under or in
connection with this Agreement or any other Loan Document shall prove
to have been incorrect or untrue in any material respect when made or
deemed made;
(c) Specific Defaults. The Borrower shall fail to perform or
observe any term, covenant or agreement contained in Article VII or
Section 6.02, 6.04 (but only to the extent such failure could have a
Material Adverse Effect), 6.05, 6.06, 6.10(b) or 6.10(e);
(d) Other Defaults. The Borrower shall fail to perform or
observe any other term or covenant contained in this Agreement
(including Section 6.04 to the extent not covered by paragraph (c)
above) or any other Loan Document, and such Default shall continue
unremedied for a period of 15 days after the date upon which written
notice thereof shall have been given to the Borrower by the Agent;
(e) Default under Other Agreements. Any default shall occur
under any Indebtedness of the Borrower (other than under this
Agreement) or any of its Subsidiaries (other than Trasgo, S.A. de
C.V., a Mexican Subsidiary of the Borrower) having an aggregate
outstanding principal amount of $10,000,000 or more or under one or
more Interest Rate Contracts of the Borrower or any of its
Subsidiaries resulting in aggregate net obligations of $10,000,000 or
more and such default shall:
(i) consist of the failure to pay any Indebtedness when due
(whether at scheduled maturity, by required prepayment, acceleration,
demand or otherwise) after giving effect to any applicable grace or
notice period; or
(ii) result in, or continue unremedied for a period of time
sufficient to permit, the acceleration of such Indebtedness or the
early termination of such Interest Rate Contract;
(f) Bankruptcy or Insolvency. The Borrower or any of its
Subsidiaries shall:
(i) cease to be Solvent or generally fail to pay, or admit in
writing its inability to pay, its debts as they become due;
(ii) commence an Insolvency Proceeding;
(iii) voluntarily cease to conduct its business in the ordinary
course; or
(iv) take any action to effectuate or authorize any of the
foregoing;
78
(g) Involuntary Proceedings.
(i) An involuntary Insolvency Proceeding shall be commenced
against the Borrower or any of its Subsidiaries or any writ, judgment,
warrant of attachment, execution or similar process shall be issued or
levied against a substantial part of the Borrower's, or any of its
Subsidiaries' properties, and any such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully
bonded within 60 days after commencement, filing or levy;
(ii) the Borrower or any of its Subsidiaries shall admit
in writing the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under
non-United States law) against the Borrower or such Subsidiary is
ordered in any Insolvency Proceeding; or
(iii) the Borrower or any of its Subsidiaries shall acquiesce in
the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor) or other
similar Person for itself or a substantial portion of its property or
business;
(h) Monetary Judgments. One or more judgments, orders or
decrees for the payment of money exceeding in the aggregate
$10,000,000 (not fully covered by insurance) shall be rendered against
the Borrower or any of its Subsidiaries and either (i) enforcement
proceedings shall have been initiated by any creditor upon such
judgment or order or (ii) such judgment or order shall continue
unsatisfied, unvacated or unstayed for a period of 20 days;
(i) Non-Monetary Judgments. Any non-monetary judgment, order
or decree shall be rendered against the Borrower or any of its
Subsidiaries which does or has a reasonable likelihood of having a
Material Adverse Effect and either (A) enforcement proceedings shall
have been initiated by any Person upon such judgment or order or (B)
there shall be any period of ten consecutive days during which a stay
of enforcement of such judgment, order or decree, by reason of a
pending appeal or otherwise, shall not be in effect;
(j) ERISA. With respect to any Plan:
(i) the Borrower, any member of its Controlled Group or any
other party-in-interest or disqualified Person shall engage in
transactions which in the aggregate have a reasonable likelihood of
resulting in a direct or indirect liability to the Borrower or any
member of its Controlled Group in excess of $10,000,000 under Section
409 or 502 of ERISA or Section 4975 of the Code;
(ii) the Borrower or any member of its Controlled Group shall
incur any accumulated funding deficiency, as defined in Section 412 of
the Code, in the aggregate in excess of $10,000,000, or request
a funding waiver from the IRS for contributions in the aggregate in
excess of $10,000,000;
(iii) the Borrower or any member of its Controlled Group shall
incur any withdrawal liability in the aggregate in excess of
79
$10,000,000 as a result of a complete or partial withdrawal from a
Multiemployer Plan within the meaning of Section 4203 or 4205 of
ERISA;
(iv) the Borrower or any member of its Controlled Group shall
fail to make a required contribution by the due date (including any
permissible extensions) under Section 412 of the Code or Section 302
of ERISA which would result in the imposition of a Lien under Section
412 of the Code or Section 302 of ERISA;
(v) the Borrower, any member of its Controlled Group or any
Plan sponsor shall notify the PBGC of an intent to terminate in a
distressed termination, or the PBGC shall institute proceedings to
terminate, a Plan;
(vi) a Reportable Event shall occur with respect to a Plan, and
within 15 days after the reporting of such Reportable Event to the
Majority Banks, the Majority Banks shall have notified the Borrower in
writing that (A) they have made a determination that, on the basis of
such Reportable Event, there are reasonable grounds for the
termination of such Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer
such Plan and (B) as a result thereof a Default or an Event of Default
shall occur hereunder;
(vii) a trustee shall be appointed by a court of competent
jurisdiction to administer any Plan or the assets thereof;
(viii) the benefits of any Plan shall be increased (other than in
the ordinary course of business consistent with past practice), or the
Borrower or any member of its Controlled Group shall begin to
maintain, or begin to contribute to, any Plan, without the prior
written consent of the Majority Banks; or
(ix) any ERISA Event with respect to a Plan shall have
occurred, and 30 days thereafter (A) such ERISA Event shall not have
been corrected and (B) the then present value of such Plan's benefit
liabilities, as defined in Title IV of ERISA, shall exceed the then
current value of assets accumulated in such Plan;
provided, however, that the events listed in clauses (v)-(ix) of
this paragraph (j) shall constitute Events of Default only if, as
of the date thereof or any subsequent date, the maximum amount of
liability the Borrower or any member of its Controlled Group
could incur in the aggregate under Section 4062, 4063, 4064, 4219
or 4243 of ERISA or any other provision of law with respect to
all such Plans, computed by the actuary of the Plan taking into
account any applicable rules and regulations of the PBGC at such
time, and based on the actuarial assumptions used by the Plan,
resulting from or otherwise associated with such event exceeds
$10,000,000; or
(k) Change in Control. Mr. Don Tyson, the Tyson Limited
Partnership and "members of the same family" of Mr. Don Tyson as
defined in Section 447(e) of the Code shall cease to have at least 51%
of the total combined voting power of the outstanding Stock of the
Borrower.
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2 Remedies. If any Event of Default shall have occurred and
be continuing, the Agent shall at the request of, or may with the
consent of, the Majority Banks:
(a) declare the Commitment of each Bank to be terminated,
whereupon such Commitment shall forthwith be terminated; and/or
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon and all other
Obligations payable hereunder or under any other Loan Document to be
immediately due and payable, whereupon the Loans, all such interest
and all such Obligations shall become and be forthwith due and payable
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower;
provided, however, that upon the occurrence of any event specified in
Section 8.01(f) or (g) with respect to the Borrower, the Commitment of
each Bank to make Loans shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all interest accrued
thereon and all other Obligations shall automatically become due and
payable without further action of the Agent or any Bank. If any Event
of Default shall occur and be continuing under Section 8.01(a) due to
the Borrower's failure to pay any amount of principal on or interest
of any Bid Loan, the Bank having made such Bid Loan may send a written
request to the Agent to obtain approval of the Majority Banks to
terminate the Commitments and, if such approval is not obtained within
ten Business Days after the date such request is received, the
affected Bank (or assignee) may commence enforcement of such default
by any and all legal means.
3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided
by law or in equity, or under any other instrument, document or
agreement now existing or hereafter arising.
THE AGENT
4 Appointment. Each Bank hereby irrevocably appoints,
designates and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement or any other Loan Document and
to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or in any other Loan Document, the Agent shall not have
any duties or responsibilities except those expressly set forth herein
or any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise
exist against the Agent.
5 Delegation of Duties. The Agent may execute any of its
duties under this Agreement and any other Loan Document by or through
employees, agents or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The
Agent shall not be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects with reasonable care.
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6 Liability of Agent. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any
other Loan Document (except for its own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Banks for
any recital, statement, representation or warranty made by the
Borrower or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan Document
or for the value of any collateral or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any
other Loan Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agent shall not be under any
obligation to any Bank to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any of its
Subsidiaries.
7 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, facsimile or telex message, statement,
order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person
or Persons and upon any advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or
concurrence of the Majority Banks as it deems appropriate or it shall
first be indemnified to its satisfaction by the Banks against any and
all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a
request from or the consent of the Majority Banks and such request or
consent and any action taken or failure to act pursuant thereto shall
be binding upon all the Banks and all future holders of the Loans or
any portion thereof.
(b) For purposes of determining compliance with the conditions
specified in Sections 5.01 and 5.02, each Bank shall be deemed to have
consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Banks unless an
officer of the Agent responsible for the transactions contemplated by
the Loan Documents shall have received notice from such Bank prior to
the initial Borrowing after the Restatement Date specifying its
objection thereto and either such objection shall not have been
withdrawn by notice to the Agent to that effect or such Bank shall not
have made available to the Agent such Bank's Percentage Share of such
Borrowing.
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8 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to payment defaults, unless the Agent
shall have received notice from a Bank or the Borrower referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give prompt notice
thereof to the Banks. The Agent shall take such action with respect
to such Default or Event of Default as shall be requested by the
Majority Banks in accordance with Article VIII; provided however, that
unless and until the Agent shall have received any such request from
the Majority Banks, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best
interests of the Banks.
9 Credit Decision. Each Bank expressly acknowledges that
neither the Agent nor any of its Affiliates nor any officer, director,
employee, agent, attorney-in-fact of any of them has made any
representation or warranty to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Borrower
and its Subsidiaries, shall be deemed to constitute any representation
or warranty by the Agent to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon the Agent
or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation
into the business, prospects, properties, operations or condition,
financial or otherwise, and creditworthiness of the Borrower and made
its own decision to enter into this Agreement and extend credit to the
Borrower hereunder. Each Bank also represents that it will,
independently and without reliance upon the Agent or any other Bank,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this
Agreement, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, properties, operations or
condition, financial or otherwise, and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly
required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank
with any credit or other information concerning the business,
prospects, properties, operations or condition, financial or
otherwise, and creditworthiness of the Borrower which may come into
the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10 Indemnification. The Banks agree to indemnify the Agent
(to the extent not reimbursed by or on behalf of the Borrower and
without limiting the obligation of the Borrower to do so), ratably
according to their respective Percentage Shares, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including at any time after the
repayment of the Loans and all other Obligations) be imposed on,
incurred by or asserted against the Agent in any way relating to or
arising out of this Agreement or any other Loan Document or any
documents contemplated by or referred to herein or therein or the
83
transactions contemplated hereby or thereby or any action taken or
omitted by the Agent under or in connection with any of the foregoing;
provided however, that no Bank shall be liable for the payment to the
Agent of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank
agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including fees and expenses of
counsel and the allocated cost of in-house counsel) incurred by the
Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiation, legal proceedings or otherwise) of, or legal
advice in respect of its or the Banks' rights or responsibilities
under, this Agreement, any other Loan Document or any document
contemplated by or referred to herein or therein to the extent that
the Agent is not reimbursed for such expenses by or on behalf of the
Borrower.
11 Agent in Individual Capacity. Bank of America and its
Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower and its Subsidiaries
as though Bank of America were not the Agent hereunder. With respect
to its Loans, Bank of America shall have the same rights and powers
under this Agreement as any Bank and may exercise the same as though
it were not the Agent, and the terms "Bank" and "Banks" shall include
Bank of America in its individual capacity.
12 Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and may be
removed at any time with or without cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the
right to appoint a successor Agent which shall be a commercial bank
organized or chartered under the laws of the United States of America
or of any State thereof and having combined capital and surplus of at
least $500,000,000. If no successor Agent shall have been so
appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the notice of resignation or the
removal of the retiring Agent, then the retiring Agent may, on behalf
of the Banks, with the consent of the Borrower, which shall not be
unreasonably withheld, appoint a successor Agent which shall be a
commercial bank organized or chartered under the laws of the United
States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
under this Agreement and the other Loan Documents. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of
this Article IX and Sections 10.04 and 10.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it
was Agent under this Agreement and the other Loan Documents.
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MISCELLANEOUS
13 Notices, Etc. All notices, requests and other
communications provided to any party under this Agreement shall,
unless otherwise expressly specified herein, be in writing (including
by telex or by facsimile) and mailed by overnight delivery, telexed,
transmitted by facsimile or delivered: if to the Borrower, to its
address specified on the signature pages hereof; if to any Bank, to
its Domestic Lending Office; and if to the Agent, to its address
specified on the signature pages hereof; or, as to the Borrower or the
Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written
notice to the Borrower and the Agent. All such notices and
communications shall be effective, if telexed, when confirmed by telex
answerback, if transmitted by facsimile, when transmitted by facsimile
and confirmed by telephone or facsimile, or, if mailed by overnight
delivery or delivered, upon delivery, except that notices and
communications to the Agent pursuant to Article II or IX shall not be
effective until received by the Agent.
14 Amendments, Etc. No amendment or waiver of any provision
of this Agreement or of any other Loan Document, and no consent to any
departure by the Borrower herefrom or therefrom, shall in any event be
effective unless the same shall be in writing, acknowledged by the
Agent and signed or consented to by the Majority Banks, and then such
waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by
all the Banks, do any of the following:
(a) increase the Commitments of the Banks (other than by
assignment) or subject the Banks to any additional monetary
obligation;
(b) reduce the principal of, or interest (other than any
default interest payable pursuant to Section 2.10) on, the Committed
Loans or any fees payable hereunder;
(c) extend the Final Maturity Date or any date fixed for any
payment of interest on, the Committed Loans or any fees payable
hereunder;
(d) change the percentage of the Commitments or the percentage
of the aggregate unpaid principal amount of the Loans which shall be
required for the Banks or any of them to take any action hereunder;
(e) amend this Section 10.02; or
(f) amend or waive the provisions of Section 5.01 or 5.02.
15 No Waiver; Remedies. No failure on the part of any Bank
or the Agent to exercise, and no delay in exercising, any right,
remedy, power or privilege hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
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16 Costs and Expenses. The Borrower agrees to pay on demand:
(a) all costs and expenses incurred by the Agent in connection
with the preparation, execution, delivery, administration,
modification and amendment of this Agreement or any other Loan
Document or any other document to be delivered hereunder or thereunder
or in connection with the transactions contemplated hereby or thereby,
or with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents, including the reasonable
fees and out-of-pocket expenses of counsel for the Agent (including
the allocated cost of in-house counsel);
(b) all costs and expenses incurred by the Agent or any Bank
in connection with the enforcement or preservation of any rights under
this Agreement or any other Loan Document or in connection with any
restructuring or "work-out" (whether through negotiations, legal
proceedings or otherwise), including the reasonable fees and
out-of-pocket expenses of counsel for the Agent or such Bank
(including the allocated cost of in-house counsel); and
(c) all costs and expenses of the Agent incurred in connection
with due diligence, transportation, use of computers, duplication,
appraisals, surveys, audits, insurance, consultants and search reports
and all filing and recording fees and title insurance premiums.
17 Indemnity.
(a) The Borrower agrees to indemnify, defend, reimburse and
hold harmless the Agent, each Bank and each of their Affiliates, and
each of their respective directors, officers, employees, agents and
advisors (each, an "Indemnified Party") from and against all claims,
actions, proceedings, suits, damages, losses, liabilities, costs and
expenses, including the reasonable fees and out-of-pocket expenses of
counsel (including the allocated cost of in-house counsel) which may
be incurred by or asserted against any Indemnified Party in connection
with, or arising out of, or relating to (i) any transaction or
proposed transaction (whether or not consummated) financed or to be
financed, in whole or in part, directly or indirectly, with the
proceeds of any Borrowing or otherwise contemplated in this Agreement;
(ii) the entering into and performance of this Agreement and any other
Loan Document by the Agent or any Bank or any action or omission of
the Borrower in connection therewith; or (iii) any investigation,
litigation, suit, action or proceeding (regardless of whether an
Indemnified Party is a party thereto) which relates to any of the
foregoing or to any Environmental Claim, unless and to the extent such
claim, action, proceeding, suit, damage, loss, liability, cost or
expense was solely attributable to such Indemnified Party's gross
negligence or willful misconduct as determined by a final judgment of
a court of competent jurisdiction.
(b) The Agent and each Bank agree that in the event that any
investigation, litigation, suit, action or proceeding is asserted or
threatened in writing or instituted against it or any other
Indemnified Party, or any remedial, removal or response action is
requested of it or any other Indemnified Party, for which the Agent or
any Bank may desire indemnity or defense hereunder, the Agent or such
Bank shall promptly notify the Borrower in writing.
86
(c) The Borrower at the request of the Agent or any Bank shall
have the obligation to defend against such investigation, litigation,
suit, action or proceeding or requested remedial, removal or response
action, and the Agent, in any event, may participate in the defense
thereof with legal counsel of the Agent's choice. In the event that
the Agent or any Bank requests the Borrower to defend against such
investigation, litigation, suit, action or proceeding or requested
remedial, removal or response action, the Borrower shall promptly do
so and the Agent or the affected Bank shall have the right to have
legal counsel of its choice participate in such defense. No action
taken by legal counsel chosen by the Agent or any Bank in defending
against any such investigation, litigation, suit, action or proceeding
or requested remedial, removal or response action shall vitiate or any
way impair the Borrower's obligations and duties hereunder to
indemnify and hold harmless any Indemnified Party.
18 Right of Set-off. Upon the occurrence and during the
continuation of any Event of Default, each Bank is hereby authorized
at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or
the account of the Borrower against any and all of the Obligations,
whether or not such Bank shall have made any demand under this
Agreement. Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank; provided, however,
that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this
Section 10.06 are in addition to any other rights and remedies
(including other rights of set-off) which such Bank may have.
19 Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Borrower, the Agent and
each Bank and their respective successors and assigns, except that the
Borrower shall not have the right to assign or transfer its rights or
obligations hereunder or any interest herein without the prior written
consent of all the Banks.
20 Assignments, Participations Etc.
(a) (i) Each Bank may, with the prior written approval of the
Borrower and the Agent, assign to one or more Eligible Assignees,
which approvals will not be unreasonably withheld, and (ii) each Bank
may, without the consent of the Borrower or the Agent, assign to any
of its wholly-owned Subsidiaries which is an Eligible Assignee or to
any other Bank, other than a Bank replaced pursuant to Section
3.14(b), (each such Person, an "Assignee"), all or any fraction of its
Committed Loans, if any, owed to it and its Commitment in a minimum
amount of $10,000,000; provided, however, that the Borrower shall not,
as a result of an assignment by any Bank to any of its wholly-owned
Subsidiaries incur any increased liability for Taxes and Other Taxes
pursuant to Section 3.05.
(b) No assignment shall become effective, and the Borrower and
the Agent shall be entitled to continue to deal solely and directly
with each Bank in connection with the interests so assigned by such
Bank to an Assignee, until (i) written notice of such assignment,
87
together with an agreement to be bound, payment instructions,
addresses and related information with respect to such Assignee, shall
have been given to the Borrower and the Agent by such Bank and such
Assignee, in substantially the form of Exhibit 10.08 (a "Notice of
Assignment"), and such Bank and such Assignee shall have executed in
connection therewith an Assignment and Assumption Agreement in
substantially the form of Attachment A to such Notice of Assignment,
(ii) a processing fee in the amount of $1,000 shall have been paid to
the Agent by the assignor Bank or the Assignee, and (iii) either (A)
five Business Days shall have elapsed after receipt by the Agent of
the items referred to in clauses (i) and (ii) or (B) if earlier, the
Agent shall have notified the assignor Bank and the Assignee of its
receipt of the items mentioned in clauses (i) and (ii) and that it has
acknowledged the assignment by countersigning the Notice of
Assignment.
(c) From and after the effective date of any assignment, (i)
the Assignee thereunder shall be deemed automatically to have become a
party hereto and, to the extent that rights and obligations hereunder
have been assigned to such Assignee by the assignor Bank, shall have
the rights and obligations of a Bank hereunder and under each other
Loan Document, and (ii) the assignor Bank, to the extent that rights
and obligations hereunder have been assigned by it to the Assignee,
shall be released from its obligations hereunder and under the each
other Loan Document.
(d) Any Bank may at any time sell to one or more banks or
other Persons (each of such Persons being herein called a
"Participant") participating interests in any of the Loans, its
Commitment or any other interest of such Bank hereunder; provided,
however, that
(i) no participation contemplated in this Section 10.08
shall relieve such Bank from its Commitment or its other obligations
hereunder or under any other Loan Document;
(ii) such Bank shall remain solely responsible for the
performance of its Commitment and such other obligations;
(iii) the Borrower and the Agent shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement; and
(iv) no Participant, unless such Participant is itself a Bank,
shall be entitled to require such Bank to take or refrain from taking
any action hereunder or under any other Loan Document, except that
such Bank may agree with any Participant that such Bank will not,
without such Participant's consent, approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Loan
Document, to the extent such amendment, consent or waiver would
require unanimous consent of the Banks as described in the proviso to
Section 10.02.
The Borrower acknowledges and agrees that each Participant, for
purposes of Sections 3.05, 3.06, 3.08, 3.10, 3.11 or 10.06 shall
be considered a Bank; provided, however, that, for purposes of
Sections 3.05, 3.08, 3.10 and 3.11, no Participant shall be
88
entitled to receive any payment or compensation in excess of that
to which such Participant's selling Bank would be entitled with
respect to the amount of such Participant's participation
interests if such Bank had not sold such participation interests.
(e) Notwithstanding any other provision of this Agreement,
nothing contained in this Agreement shall prevent any Bank from
pledging or assigning its interest in the Loans to a Federal Reserve
Bank in the Federal Reserve System of the United States of America in
accordance with applicable law; provided, however, that no such pledge
or assignment shall release any Bank from its obligations hereunder.
21 Confidentiality. Each Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the
confidentiality of all non-public information provided to it by the
Borrower or by the Agent on the Borrower's behalf in connection with
this Agreement or any other Loan Document and agrees and undertakes
that neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to
the terms contemplated by this Agreement. Any Bank may disclose such
information (a) at the request of any bank regulatory authority or in
connection with an examination of such Bank by any such authority; (b)
pursuant to subpoena or other court process; (c) when required to do
so in accordance with the provisions of any applicable law; (d) at the
express direction of any agency of any State of the United States of
America or of any other jurisdiction in which such Bank conducts its
business; and (e) to such Bank's affiliates, independent auditors,
counsel and other professional advisors. Notwithstanding the
foregoing, the Borrower authorizes each Bank to disclose to any
Participant or Assignee and any prospective Participant and Assignee
such financial and other information in such Bank's possession
concerning the Borrower or its Subsidiaries which has been delivered
to the Banks pursuant to this Agreement or any other Loan Document or
which has been delivered to the Banks by the Borrower in connection
with the Banks' credit evaluation of the Borrower prior to entering
into this Agreement; provided, however, that such Participant or
Assignee or prospective Participant or Assignee agrees in writing to
such Bank to keep such information confidential to the same extent
required of the Banks hereunder.
.27 Survival. The obligations of the Borrower under Sections
3.05, 3.08, 3.10, 3.11, 3.12, 10.04 and 10.05, and the obligations of
the Banks under Sections 3.05(h) and 9.07, shall in each case survive
repayment or purchase of the Loans or any termination of this
Agreement and the Commitments. The representations and warranties
made by the Borrower in this Agreement and in each other Loan Document
shall survive the execution and delivery of this Agreement and each
other Loan Document.
.28 Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provisions hereof or thereof.
.29 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; and
89
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER
HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO.
.30 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on
separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one
and the same agreement.
.31 Entire Agreement. THIS AGREEMENT EMBODIES THE ENTIRE
AGREEMENT AND UNDERSTANDING AMONG THE BORROWER, THE BANKS AND THE
AGENT, AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS OF SUCH
PERSONS RELATING TO THE SUBJECT MATTER HEREOF EXCEPT FOR THE FEE
LETTER AND ANY PRIOR ARRANGEMENTS MADE WITH RESPECT TO THE PAYMENT BY
THE BORROWER OF (OR ANY INDEMNIFICATION FOR) ANY FEES, COSTS OR
EXPENSES PAYABLE TO OR INCURRED (OR TO BE INCURRED) BY OR ON BEHALF OF
THE AGENT OR THE BANKS.
.32 Waiver of Jury Trial. THE AGENT, THE BANKS AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
AGENT, THE BANKS OR THE BORROWER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE BANKS TO ENTER INTO THIS AGREEMENT.
90
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
TYSON FOODS, INC.
By: /s/ Gerald Johnston
Title: Executive Vice President,
Finance
Address for notices:
2210 West Oaklawn Drive
Springdale, Arkansas 72764
Attention: Gerald Johnston
Facsimile No.: (501) 290-4028
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ Frank H. Woo
Title: Assistant Vice President
91
Address for notices:
Agency Management Services #5596
1455 Market Street
12th Floor
San Francisco, California 94103
Attention: Frank H. Woo
Telex No.: 372-6050
Answerback: BAGASFO
Facsimile No.: (415) 622-4894
Address for payments:
ABA #121-000-3585F
Attention: Agency Management
Services #5596
1850 Gateway Boulevard
Concord, California 94520
Credit to Account number:
1233-6-15172
Reference: Tyson
With copy to:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
333 Clay Street, Suite 4550
Houston, Texas 77002-4103
Attention: Michael J. Dillon
Telex No.: 170-513
Answerback: BOAH
Facsimile No.: (713) 651-4841
THE CHASE MANHATTAN BANK N.A.,
as Co-Agent
By: /s/ Thomas T. Daniels
Title: Vice President
CHEMICAL BANK, as Co-Agent
By: /s/ Beth F. Herman
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
(RABOBANK NEDERLAND),
NEW YORK BRANCH, as Co-Agent
By: /s/ Jess E. Jarratt
Title: Vice President
By: /s/ August Braaksma
Title: Vice President
92
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
By: /s/ Stephen B. King
Title: Vice President
NATIONAL WESTMINSTER BANK Plc,
as Co-Agent
By: /s/ Steven Parker
Title: Vice President
NATIONSBANK OF TEXAS, N.A.,
as Co-Agent
By: /s/ Steven A. Deily
Title: Senior Vice President
SOCIETE GENERALE
SOUTHWEST AGENCY, as Co-Agent
By: /s/ Louis P. Laville
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Michael J. Dillon
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
Title: Senior Manager Loan Operations
THE BANK OF TOKYO TRUST COMPANY
By: /s/ Sharon Fountain
Title: Vice President
93
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ W. Leroy Startz
Title: First Vice President
THE CHASE MANHATTAN BANK N.A.
By: /s/ Thomas T. Daniels
Title: Vice President
CHEMICAL BANK
By: /s/ Beth F. Herman
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
(RABOBANK NEDERLAND),
NEW YORK BRANCH
By: /s/ Jess E. Jarratt
Title: Vice President
By: /s/ August Braaksma
Title: Vice President
CREDIT LYONNAIS
NEW YORK BRANCH
By: /s/ Robert Ivosevich
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK LTD
NEW YORK BRANCH
By: /s/ Andreas Panteli
Title: Vice President
FIRST AMERICAN NATIONAL BANK
By: /s/ Elizabeth H. Vaughn
Title: Vice President
94
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Joan D. Winstein
Title: Vice President
THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By: /s/ David Kelley
Title: Vice President & Senior
Manager
ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA
By: /s/ Robert S. Wurster
Title: First Vice President
By: /s/ William J. DeAngelo
Title: First Vice President
THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.,
NEW YORK BRANCH
By: /s/ John J. Sullivan
Title: Joint General Manager
THE MITSUBISHI BANK, LTD.
HOUSTON AGENCY
By: /s/ Shoji Honda
Title: General Manager
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Stephen B. King
Title: Vice President
NATIONAL WESTMINSTER BANK Plc
NEW YORK BRANCH
By: /s/ Steven Parker
Title: Vice President
95
NATIONAL WESTMINSTER BANK Plc
NASSAU BRANCH
By: /s/ Steven Parker
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Steven A. Deily
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Stephen V. Prostor
Title: Assistant Vice President
ROYAL BANK OF CANADA
By: /s/ J.D. Frost
Title: Senior Manager
THE SANWA BANK, LIMITED,
DALLAS AGENCY
By: /s/ Robert S. Smith
Title: Assistant Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Louis P. Laville
Title: Vice President
THE SUMITOMO BANK, LTD.,
HOUSTON AGENCY
By: /s/ Tatsuo Ueda
Title: General Manager
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ M. Muto
Title: Deputy General Manager
96
TRUST COMPANY BANK
By: /s/ Jeffrey A. Howard
Title: Corporate Banking Officer
By: /s/ F. McClellan Deaver, III
Title: Vice President
97
Five-Year Facility [CONFORMED COPY]
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
among
TYSON FOODS, INC.,
as Borrower
THE BANKS NAMED HEREIN
THE CHASE MANHATTAN BANK N.A.
CHEMICAL BANK
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A.
(RABOBANK NEDERLAND), NEW YORK BRANCH
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
NATIONAL WESTMINSTER BANK Plc
NATIONSBANK OF TEXAS, N.A.
SOCIETE GENERALE
as Co-Agents
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent
Dated as of May 26, 1995
98
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms 1
1.02 Computation of Time Periods 15
1.03 Accounting Matters 15
1.04 Certain Terms 16
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
2.01 Amounts and Terms of Commitments 17
2.02 Procedure for Committed Borrowings 17
2.03 Bid Borrowings 18
2.04 Procedure for Bid Borrowings 18
2.05 Evidence of Indebtedness 22
2.06 Voluntary Termination or Reduction of the Commitments 22
2.07 Optional Prepayments 23
2.08 Repayment 23
(a) The Committed Loans 23
(b) The Bid Loans 23
2.09 Interest 24
2.10 Default Interest 24
2.11 Continuation and Conversion Elections for Committed Borrowings 25
ARTICLE III
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
3.01 Fees 27
3.02 Computation of Fees and Interest 27
3.03 Payments by the Borrower 28
3.04 Payments by the Banks to the Agent 29
3.05 Taxes 30
3.06 Sharing of Payments, Etc. 35
3.07 Inability to Determine Rates 36
3.08 Increased Costs 36
3.09 Illegality 36
3.10 Capital Adequacy 37
3.11 Funding Losses 37
3.12 Additional Interest on Eurodollar Loans 38
3.13 Certificates of Banks 38
3.14 Change of Lending Office; Replacement Bank 39
99
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Corporate Existence; Compliance with Law 40
4.02 Corporate Authorization; No Contravention;
Governmental Authorization 40
4.03 Enforceable Obligations 41
4.04 Taxes 41
4.05 Financial Matters 42
4.06 Litigation 42
4.07 Subsidiaries 42
4.08 Liens 43
4.09 No Burdensome Restrictions; No Defaults 43
4.10 Investment Company Act 43
4.11 Use of Proceeds; Margin Regulations 43
4.12 Assets 44
4.13 Labor Matters 44
4.14 Environmental Matters 44
4.15 Completeness 45
4.16 ERISA 46
4.17 Insurance 48
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions Precedent to Effectiveness 49
(a) Credit Agreement and Notes 49
(b) Board Resolutions; Approvals; Incumbency Certificates 49
(c) Articles of Incorporation; By-laws and Good Standing 49
(d) Legal Opinion 50
(e) Certificate 50
(f) Other Documents 50
5.02 Additional Conditions Precedent to the First
Committed Borrowing after the Restatement Date 50
(a) Fees, Costs and Expenses 50
(b) Original Agreement 50
(c) Original Banks 51
5.03 Conditions Precedent to All Borrowings 51
(a) Notice of Borrowing 51
(b) Continuation of Representations and Warranties 51
(c) No Existing Default 51
(d) Other Assurances 51
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Compliance with Laws, Etc. 52
6.02 Use of Proceeds 52
6.03 Payment of Obligations, Etc. 52
6.04 Insurance 52
6.05 Preservation of Corporate Existence, Etc. 52
6.06 Access 53
6.07 Keeping of Books 53
6.08 Maintenance of Properties 53
6.09 Financial Statements 53
6.10 Reporting Requirements 54
6.11 Notices Regarding ERISA 55
6.12 Employee Plans 57
6.13 Environmental Compliance; Notice 57
100
ARTICLE VII
NEGATIVE COVENANTS
7.01 Limitations on Liens 59
7.02 Limitation on Indebtedness 62
7.03 Lease Obligations 63
7.04 Restricted Payments 63
7.05 Mergers, Etc. 64
7.06 Investments in Other Persons 65
7.07 Assets 66
7.08 Change in Nature of Business 66
7.09 Capital Structure 66
7.10 Transactions with Affiliates, Etc. 67
7.11 Accounting Changes 67
7.12 Margin Regulations 68
7.13 Compliance with ERISA 68
7.14 Speculative Transactions 68
7.15 Debt Ratio 69
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default 70
(a) Non-Payment 70
(b) Representations and Warranties 70
(c) Specific Defaults 70
(e) Default under Other Agreements 70
(f) Bankruptcy or Insolvency 71
(g) Involuntary Proceedings 71
(h) Monetary Judgements 72
(i) Non-Monetary Judgments 72
(j) ERISA 72
(k) Change in Control 73
8.02 Remedies 74
8.03 Rights Not Exclusive 74
ARTICLE IX
THE AGENT
9.01 Appointment 75
9.02 Delegation of Duties 75
9.03 Liability of Agent 75
9.04 Reliance by Agent 76
9.05 Notice of Default 76
9.06 Credit Decision 77
9.07 Indemnification 77
9.08 Agent in Individual Capacity 78
9.09 Successor Agent 78
101
ARTICLE X
MISCELLANEOUS
10.01 Notices, Etc. 80
10.02 Amendments, Etc. 80
10.03 No Waiver; Remedies 81
10.04 Costs and Expenses 81
10.05 Indemnity 81
10.06 Right of Set-off 83
10.07 Binding Effect 83
10.08 Assignments, Participations Etc. 83
10.09 Confidentiality 85
10.10 Survival 86
10.11 Headings 86
10.12 Governing Law and Jurisdiction 86
10.13 Execution in Counterparts 86
10.14 Entire Agreement 86
10.15 Waiver of Jury Trial 86
Exhibits
Exhibit 2.02 Form of Notice of Borrowing
Exhibit 2.04(a) Form of Competitive Bid Request
Exhibit 2.04(b) Form of Competitive Bid
Exhibit 2.05(b) Form of Committed Loan Note
Exhibit 2.05(c) Form of Bid Note
Exhibit 2.11 Form of Notice of Conversion/Continuation
Exhibit 5.01 Form of Opinion of Corporate Counsel
Exhibit 5.02 Form of Confirmation of Non-Participation
Exhibit 6.09 Form of Compliance Certificate
Exhibit 10.08 Form of Notice of Assignment
Attachment A to Form of Assignment and Assumption
Exhibit 10.08 Agreement
Schedules
Schedule 1.01(a) Commitments; Percentage Shares
Schedule 1.01(b) Lending Offices
Schedule 1.01(c) Existing Depositories
Schedule 4.05 Material Liabilities
Schedule 4.06 Pending Litigation
Schedule 4.07(a) Subsidiaries
Schedule 4.07(d) Joint Ventures/Partnerships
Schedule 4.13 Labor Matters
Schedule 4.14 Environmental Matters
Schedule 4.16 Employee Benefit Plans
Schedule 7.01/7.02 Existing Liens and Existing Indebtedness
102