364-Day
Facility
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
This FIRST 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 Credit Agreement dated as of June 30,
1993 (as amended by Amendment No. 1 to Credit Agreement
dated as of June 8, 1994, 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 is the
beneficial owner of 5% or more of such corporation's
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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 First 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
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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.
"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 Ratio" means, at any date of determination, the
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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.
"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
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analogous future federal, or present or future state or
local, statutes and the regulations promulgated
pursuant thereunder.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time and all
regulations promulgated thereunder.
"ERISA Event" means, with respect to any Person,
(a) a Reportable Event (other than a Reportable Event not
subject to the provision for 30-day notice to the PBGC
under regulations issued under Section 4043 of ERISA); (b)
the withdrawal of such Person or any member of its
Controlled Group from a Plan during a plan year in which it
was a "substantial employer" as defined in Section
4001(a)(2) of ERISA; (c) the filing of a notice of intent
to terminate a Plan or the treatment of a Plan amendment
as a termination under Section 4041 of ERISA; (d) the
institution of proceedings to terminate a Plan by the PBGC;
(e) the failure to make required contributions which
would result in the imposition of a Lien under Section 412
of the Code or Section 302 of ERISA; and (f) any other
event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to
administer, any Plan or the imposition of any liability
under Title IV of ERISA other than PBGC premiums due but not
delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Federal Reserve Board, as
in effect from time to time.
"Eurodollar 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
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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 24, 1996.
"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 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.
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"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.
"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
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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 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
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(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).
"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
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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.
"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;
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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.
"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).
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"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 nonUnited 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.
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"Permitted Liens" has the meaning specified in Section
7.01.
"Person" means an individual, partnership,
corporation, business trust, joint stock company,
trust, unincorporated association, joint venture or
Governmental Authority.
"Plan" means, with respect to the Borrower or any
member of its Controlled Group, at any time, an employee
pension benefit plan as defined in Section 3(2) of
ERISA (including a Multiemployer Plan) that is covered
by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is maintained
for the employees of such Person or any member of its
Controlled Group.
"Reference Banks" means Bank of America,
NationsBank of Texas, N.A. and Soci,t, G,n,rale.
"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
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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 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.
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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." 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
5 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.
6 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
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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.
(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.
7. 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.
8 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
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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.
(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;
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(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
(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
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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 shall determine LIBOR (as provided in the definition
of LIBOR) and give prompt notice to the Borrower and the
relevant Bank or Banks thereof.
9 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.
10 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
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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.
11 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 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.
12 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.
13 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 .1725%.
(b) 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.
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(c) 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).
14 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.
15 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 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
123
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.
II FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
16 Fees.
(a) (i) The Borrower agrees to pay to the Agent for the
account of each Bank a facility fee at a rate per annum equal to .0625%
times such Bank's Commitment (regardless of utilization):
(i) 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
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.
17 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
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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.
18 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 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
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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%.
19 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 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 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) he 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.
20 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
126
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 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
127
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 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
128
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).
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
129
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 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.
21 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
130
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.
22 Inability to Determine Rates. 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 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.
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23 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.
24 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) 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.
(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.
25 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
132
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.
26 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.
27 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 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
133
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.
28 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.
29 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
134
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:
30 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.
31 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
135
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);
(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.
32 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.
33 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.
34 Financial Matters.
(a) 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
136
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
(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.
35 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.
36 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).
137
37 Liens. There are no Liens of any nature
whatsoever on any properties of the Borrower or any of its
Subsidiaries other than Permitted Liens.
38 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.
(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.
39 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.
40 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.
41 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
138
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.
42 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.
43 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;
(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
139
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.
44 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.
45 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 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)
140
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 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
141
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.
46 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
47 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 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,
142
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;
(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.
48 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 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
143
the Original Agreement by signing this Agreement shall
have become a Bank for all purposes of this Agreement.
49 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.
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:
50 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.
51 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
144
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.
52 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 nonpayments, individually or in the aggregate, have no
reasonable likelihood of having a Material Adverse Effect.
53 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.
54 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.
55 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 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.
56 Keeping of Books. The Borrower shall
maintain, and cause each of its Subsidiaries to maintain, proper books
145
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.
57 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.
58 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 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
146
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.
59 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; and
(e) 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.
60 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
147
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 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.
148
61 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.
62 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
(c) provide such information and certifications which the
Agent may reasonably reque
(d) st from time to time to evidence compliance with this
Section 6.13.
II NEGATIVE COVENANTS
149
The Borrower hereby 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 shall waive compliance in writing:
63 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;
(g) zoning restrictions, easements, licenses,
reservations, restrictions on the use of real property or minor
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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 the aggregate amount of Indebtedness secured by Liens
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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.
64 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);
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(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;
(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.
65 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.
66 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
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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
(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.
67 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
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(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.
68 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:
(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).
69 Assets. The Borrower shall not sell, assign,
transfer or otherwise dispose of any of its assets, or permit any
155
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.
70 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.
71 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
156
such issuance, there shall exist no condition or event
which constitutes an Event of Default.
72 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.
73 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.
74 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.
75 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;
157
(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.
76 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.
77 Debt Ratio. The Borrower shall not permit at
any time the Debt Ratio to be greater than .65 to 1.
78 Events of Default. The term "Event of Default"
shall mean any of the events set forth in this Section 8.01.
(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
158
failure could have a Material Adverse Effect), 6.05, 6.06 or
6.10(b);
(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;
(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-
159
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; 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;
(i) 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 $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;
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(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
(j) 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.
79 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
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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.
80 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
81 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.
82 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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83 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.
84 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
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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.
85 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.
86 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.
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87 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 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.
88 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.
89 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
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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.
MISCELLANEOUS
91 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.
92 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
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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.
93 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.
94 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.
95 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
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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.
(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.
96 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,
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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.
97 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.
98 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, 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
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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(d) 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 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.
99 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
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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.
100 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.
101 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.
102 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK;
(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.
103 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.
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104 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.
105 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.
172
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
173
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
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
174
COOPERATIEVE CENTRALE
RAIFFEISENBOERENLEENBANK
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
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
175
THE BANK OF TOKYO TRUST COMPANY
By: /s/ Sharon Fountain
Title: Vice President
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
RAIFFEISENBOERENLEENBANK
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
176
By: /s/ Elizabeth H. Vaughn
Title: Vice President
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
177
NATIONAL WESTMINSTE
BANK Plc NEW YORK
BRANCH
By: /s/ Steven Parker
Title: Vice President
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
178
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ M. Muto
Title: Deputy General Manager
TRUST COMPANY BANK
By: /s/ Jeffrey A. Howard
Title: Corporate Banking Officer
By: /s/ F. McClellan Deaver, III
Title: Vice President
179
364-Day Facility [CONFORMED COPY]
FIRST 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
180
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 15
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
2.01 Amounts and Terms of Commitments 16
2.02 Procedure for Committed Borrowings 16
2.03 Bid Borrowings 17
2.04 Procedure for Bid Borrowings 17
2.05 Evidence of Indebtedness 21
2.06 Voluntary Termination or Reduction of the
ommitments 21
2.07 Optional Prepayments 22
2.08 Repayment 22
(a) The Committed Loans 22
(b) The Bid Loans 22
2.09 Interest 23
2.10 Default Interest 23
2.11 Continuation and Conversion Elections for
Committed Borrowings 23
ARTICLE III
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
3.01 Fees 26
3.02 Computation of Fees and Interest 26
3.03 Payments by the Borrower 26
3.04 Payments by the Banks to the Agent 28
3.05 Taxes 28
3.06 Sharing of Payments, Etc. 33
3.07 Inability to Determine Rates 34
3.08 Increased Costs 35
3.09 Illegality 35
3.10 Capital Adequacy 36
3.11 Funding Losses 36
3.12 Additional Interest on Eurodollar Loans 37
3.13 Certificates of Banks 37
3.14 Change of Lending Office; Replacement
Bank 37
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
181
4.01 Corporate Existence; Compliance with
Law 39
4.02 Corporate Authorization; No Contravention;
Governmental Authorization 39
4.03 Enforceable Obligations 40
4.04 Taxes 40
4.05 Financial Matters 41
4.06 Litigation 41
4.07 Subsidiaries 41
4.08 Liens 42
4.09 No Burdensome Restrictions; No Defaults 42
4.10 Investment Company Act 42
4.11 Use of Proceeds; Margin Regulations 42
4.12 Assets 43
4.13 Labor Matters 43
4.14 Environmental Matters 43
4.15 Completeness 44
4.16 ERISA 45
4.17 Insurance 47
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions Precedent to Effectiveness 48
(a) Credit Agreement and Notes 48
(b) Board Resolutions;Approvals;
Incumbency Certificates 48
(c)Articles of Incorporation;
By-aws and Good Standing 48
(d) Legal Opinion 49
(e) Certificate 49
(f) Other Documents 49
5.02 Additonal Conditions Preceden to the First
Committed Borrowin after the Restatement Date 49
(a) Fees, Costs and Expenses 49
(b) Original Agreement 49
(c) Original Banks 50
5.03 Conditions Precedent to All Borrowings 50
(a) Notice of Borrowing 50
(b) Continuation of Representations and
Warranties 50
(c) No Existing Default 50
(d) Other Assurances 50
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Compliance with Laws, Etc 51
6.02 Use of Proceeds 51
6.03 Payment of Obligations, Etc. 51
6.04 Insurance 51
6.05 Preservation of Corporate Existence, Etc 51
6.06 Access 52
182
6.07 Keeping of Books 52
6.08 Maintenance of Properties 52
6.09 Financial Statements 52
6.10 Reporting Requirements 53
6.11 Notices Regarding ERISA 54
6.12 Employee Plans 55
6.13 Environmental Compliance; Notice 56
ARTICLE VII
NEGATIVE COVENANTS
7.01 Limitations on Liens 57
7.02 Limitation on Indebtedness 60
7.03 Lease Obligations 61
7.04 Restricted Payments 61
7.05 Mergers, Etc. 62
7.06 Investments in Other Persons 63
7.07 Assets 64
7.08 Change in Nature of Business 64
7.09 Capital Structure 64
7.10 Transactions with Affiliates, Etc 65
7.11 Accounting Changes 65
7.12 Margin Regulations 66
7.13 Compliance with ERISA 66
7.14 Speculative Transactions 66
7.15 Debt Ratio 67
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default 68
(a) Non-Payment 68
(b) Representations and Warranties 68
(c) Specific Defaults 68
(d) Other Defaults 68
(e) Default under Other Agreements 68
(f) Bankruptcy or Insolvency 69
(g) Involuntary Proceedings 69
(h) Monetary Judgments 70
(i) Non-Monetary Judgments 70
(j) ERISA 70
(k) Change in Control 71
8.02 Remedies 72
8.03 Rights Not Exclusive 72
ARTICLE IX
THE AGENT
9.01 Appointment 73
9.02 Delegation of Duties 73
9.03 Liability of Agent 73
9.04 Reliance by Agent 74
183
9.05 Notice of Default 74
9.06 Credit Decision 75
9.07 Indemnification 75
9.08 Agent in Individual Capacity 76
9.09 Successor Agent 76
ARTICLE X
MISCELLANEOUS
10.01 Notices, Etc. 78
10.02 Amendments, Etc. 78
10.03 No Waiver; Remedies 79
10.04 Costs and Expenses 79
10.05 Indemnity 79
10.06 Right of Set-off 81
10.07 Binding Effect 81
10.08 Assignments, Participations Etc 81
10.09 Confidentiality 83
10.10 Survival 84
10.11 Headings 84
10.12 Governing Law and Jurisdiction 84
10.13 Execution in Counterparts 84
10.14 Entire Agreement 84
10.15 Waiver of Jury Trial 84
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
184