<PAGE>
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
SCHEDULE 14D-1
(AMENDMENT NO. 19)
AND
SCHEDULE 13D
(AMENDMENT NO. 20)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
____________________
WLR FOODS, INC.
(Name of Subject Company)
____________________
WLR ACQUISITION CORP.
(Bidder)
____________________
Common Stock, no par value
(Title of Class of Securities)
____________________
929286 10 2
(CUSIP Number of Class of Securities)
____________________
James B. Blair
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762-6999
Telephone Number (501) 290-4000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidders)
Copies to:
Leslie A. Grandis, Esq. Lawrence Lederman, Esq.
McGuire, Woods, Battle & Boothe Michael W. Goroff, Esq.
One James Center Milbank, Tweed, Hadley & McCloy
901 East Cary Street 1 Chase Manhattan Plaza
Richmond, Virginia 23219 New York, New York 10005
Telephone: (804) 775-4322 Telephone: (212) 530-5000
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CUSIP No. 929286 10 2 14D-1
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
TYSON FOODS, INC.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS) (A) / /
(B) /x/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
WC, BK
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) OR 2(f) / /
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
600,063 COMMON SHARES
- -------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS) / /
- -------------------------------------------------------------------------------
9 % OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
5.37%
- -------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
- -------------------------------------------------------------------------------
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CUSIP No. 929286 10 2 14D-1
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
WLR ACQUISITION CORP.
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS) (A) / /
(B) /X/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) OR 2(f) / /
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
600,000 COMMON SHARES
- -------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS) / /
- -------------------------------------------------------------------------------
9 % OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
5.37%
- -------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
- -------------------------------------------------------------------------------
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CUSIP No. 929286 10 2 14D-1
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
TYSON LIMITED PARTNERSHIP
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS) (A) / /
(B) /X/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
NOT APPLICABLE
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) OR 2(f) / /
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
600,063 COMMON SHARES
- -------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS) / /
- -------------------------------------------------------------------------------
9 % OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
5.37%
- -------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
PN
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CUSIP No. 929286 10 2 14D-1
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
MR. DON TYSON
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS) (A) / /
(B) /X/
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
NOT APPLICABLE
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) OR 2(f) / /
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- -------------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
600,063 COMMON SHARES
- -------------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS) / /
- -------------------------------------------------------------------------------
9 % OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
5.37%
- -------------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
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<PAGE>
This Statement constitutes Amendment No. 19 to the Statement on
Schedule 14D-1, dated March 9, 1994, as amended, filed by WLR Acquisition
Corp., a Delaware corporation (the "Purchaser"), and a wholly-owned subsidiary
of Tyson Foods, Inc., a Delaware corporation ("Tyson"), and Tyson, relating to
the offer by the Purchaser to purchase all outstanding shares of Common Stock,
no par value (the "Shares"), of WLR Foods, Inc., a Virginia corporation (the
"Company"), at a price of $30.00 per share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
March 9, 1994 (the "Offer to Purchase") and in the related Letter of
Transmittal.
This Statement also constitutes Amendment No. 20 to the Statement on
Schedule 13D, dated March 4, 1994, as amended, filed by the Purchaser, Tyson,
Tyson Limited Partnership and Mr. Don Tyson, relating to their beneficial
ownership of Shares.
1. Item 4 is hereby amended so as to read in its entirety as follows:
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The total amount of funds required by the Purchaser to purchase all
outstanding Shares and to pay related costs and expenses is estimated to be
approximately $340 million. The Purchaser will obtain these funds by capital
contributions and/or loans from Tyson. Tyson intends to obtain these funds
through unsecured borrowings under existing credit facilities described below.
On June 8, 1994 (the "Amendment Date"), Tyson amended its existing
financing agreements (the "Credit Agreements") with Bank of America National
Trust and Savings Association ("Bank of America") as agent, to increase the
committed amounts available thereunder from $850 million to $1.5 billion. The
Credit Agreements, syndicated to a group of financial institutions (together
with Bank of America, the "Banks"), are comprised of a $500 million 364-day
facility (the "364-Day Facility"), and a $1 billion 5-year facility (the "Five
Year Facility", and together with the 364-Day Facility, the "Facilities"). As
of the Amendment Date, the amount of loans outstanding under the Credit
Agreements was $55 million and the amount of notes outstanding under Tyson's
commercial paper program, for which the Credit Agreements serve as backup
financing, was $796 million. Tyson intends to use part of the remaining
available funds under the Facilities to provide the total financing for the
Offer and the Proposed Merger (the "Financing").
6
<PAGE>
Under the Credit Agreements, each loan must be in the aggregate principal
amount of not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof. The commitments of the Banks under the 364-Day Facility and
the Five Year Facility expire on May 31, 1995 and May 31, 1999, respectively.
All loans made pursuant to the Credit Agreements are unsecured.
Interest on indebtedness outstanding under the Credit Agreements is
payable at a rate per annum, selected at the option of Tyson, equal to
(i) LIBOR plus the LIBOR Margin (LIBOR and LIBOR Margin are hereinafter
defined); and (ii) the Reference Rate (as hereinafter defined). The LIBOR
Margin on the 364-Day Facility is set at .18%. The LIBOR Margin on the Five
Year Facility, which is currently .15%, varies according to Tyson's credit
rating and ranges from .125% to .355%. As of June 8, 1994, Tyson's debt
rating with Standard & Poor's Corporation ("S&P") was A-. During the
continuation of an event of default, additional interest is payable at a
rate of 2% per annum over the then applicable interest rate. In addition,
under the Credit Agreements, Tyson may from time to time invite bids for
uncommitted advances from the Banks through a competitive auction mechanism
("Bid Loan"). "LIBOR" is defined as the average London interbank offered rate
for Eurodollar deposits of varying maturities, as quoted by Bank of America,
NationsBank of Texas, N.A. and Societe Generale. "Reference Rate" is defined
as the higher of (a) the Federal Funds Rate (as defined in the Credit
Agreements) plus 1/2% and (b) the rate of interest publicly announced by
Bank of America in San Francisco, California, as its reference rate. Interest
payable based upon the Reference Rate will accrue based on a 365 day year.
Under the 364-Day Facility, Tyson has agreed to pay the Banks a commitment
fee of .07% per annum on the total amount of the Banks' commitments thereunder,
regardless of utilization. The commitment fee under the Five Year Facility
ranges from .08% to .27% with such fee rates based on Tyson's debt ratings
with Moody's Investor Service, Inc. and S&P. The commitment fee on the Five
Year Facility is currently .10% on the total amount of the Banks' commitments
thereunder, regardless of utilization.
Subject to the terms and conditions of the Credit Agreements, the
Facilities may be prepaid, in part or in full and without penalty, with
payment of certain breakage costs. Tyson may not voluntarily prepay any Bid
Loan prior to the maturity date thereof.
The Credit Agreements contain certain representations, warranties,
conditions and events of default which are customary for these types of
agreements. The Credit Agreements also provide that it is an event of default
if Mr. Don Tyson, the Tyson Limited Partnership and "members of the same
family" of Mr. Don Tyson cease to have at least 51% of the total combined
voting power of the outstanding capital stock of Tyson.
It is anticipated that the borrowings described above will be repaid from
funds generated internally by Tyson and from other sources which may include
the proceeds of the sale of debt or equity securities or the sale of other
assets. In addition, Tyson anticipates that, after the Merger, if consummated,
the borrowings described above may be repaid from funds generated by the
Company, subject to the terms of indebtedness of the Company outstanding at
such time. No final decisions have been made concerning the repayment of
borrowings described above. Such decisions will be made based on Tyson's
review from time to time of the advisability of particular actions, as well as
on prevailing interest rates and financial and other economic conditions.
7
<PAGE>
The foregoing description of the terms and provisions of the Credit
Agreements is qualified in its entirety by reference to the full texts
thereof, which are filed as exhibits to the Tender Offer Statement on Schedule
14D-1 filed by Purchaser and Tyson with the Commission ("Schedule 14D-1"),
copies of which may be obtained from the offices of the Commission in the
manner set forth in Section 8 with respect to information concerning the
Company (except that such information will not be available at the regional
offices of the Commission).
2. Item 11 is hereby amended to add the following:
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(b)
99.43 -- Third Amended and Restated Credit Agreement, dated June 8, 1994,
among Tyson Foods, Inc., as borrower, Bank of America National Trust and
Savings Association, as agent, and the Banks named therein.
99.44 -- Credit Agreement, dated June 30, 1993, by and among Tyson
Foods, Inc., as Borrower, Banque Nationale De Paris, The Chase Manhattan Bank,
N.A., Chemical Bank, Continental Bank, N.A., Credit Lyonnais, NationsBank of
Texas, N.A., Cooperative Centrale Raiffeisen-Boerenleenbank, B.A., (Rabobank
Nederland), Societe Generale, The Toronto-Dominion Bank as Co-Agents and Bank
of America National Trust and Savings Association, as Agent (previously filed
as Exhibit 10(a) to the Tyson Foods, Inc. Quarterly Report on Form 10-Q for the
period ended July 3, 1993, Commission File No. 0-3400, and incorporated herein
by reference).
99.45 -- Amendment No. 1 to Credit Agreement, dated June 8, 1994, among
Tyson Foods, Inc., as borrower, Bank of America National Trust and Savings
Association, as agent, and the Banks named therein.
8
<PAGE>
SIGNATURE
After due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
WLR ACQUISITION CORP.
By /s/ James B. Blair
--------------------------------
Name: James B. Blair
Title: President
Dated: June 9, 1994
TYSON FOODS, INC.
By /s/ Gerald Johnston
--------------------------------
Name: Gerald Johnston
Title: Executive Vice President,
Finance
Dated: June 9, 1994
<PAGE>
EXHIBIT INDEX
Exhibit Page No.
- ------ --------
99.43 -- Third Amended and Restated Credit Agreement, dated June 8, 1994,
among Tyson Foods, Inc., as borrower, Bank of America National Trust
and Savings Association, as agent, and the Banks named therein.
99.44 -- Credit Agreement, dated June 30, 1993, by and among Tyson Foods,
Inc., as Borrower, Banque Nationale De Paris, The Chase Manhattan
Bank, N.A., Chemical Bank, Continental Bank, N.A., Credit Lyonnais,
NationsBank of Texas, N.A., Coorperative Centrale Raiffeisen-
Boerenleenbank, B.A., (Rabobank Nederland), Societe Generale, The
Toronto-Dominion Bank as Co-Agents and Bank of America National Trust
and Savings Association, as Agent (previously filed as Exhibit 10(a)
to the Tyson Foods, Inc. Quarterly Report on Form 10-Q for the period
ended July 3, 1993, Commission File No. 0-3400, and incorporated
herein by reference).
99.45 -- Amendment No. 1 to Credit Agreement, dated June 8, 1994, among
Tyson Foods, Inc., as borrower, Bank of America National Trust and
Savings Association, as agent, and the Banks named therein.
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
among
TYSON FOODS, INC.,
as Borrower
THE BANKS NAMED HEREIN
THE CHASE MANHATTAN BANK N.A.
CHEMICAL BANK
CONTINENTAL BANK N.A.
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 June 8, 1994
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms.................................... 1
1.02 Computation of Time Periods.............................. 16
1.03 Accounting Matters....................................... 16
1.04 Certain Terms............................................ 16
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
2.01 Amounts and Terms of Commitments......................... 17
2.02 Procedure for Committed Borrowings....................... 17
2.03 Bid Borrowings........................................... 18
2.04 Procedure for Bid Borrowings............................. 18
2.05 Evidence of Indebtedness................................. 21
2.06 Voluntary Termination or Reduction of the Commitments.... 22
2.07 Optional Prepayments..................................... 22
2.08 Repayment................................................ 23
(a) The Committed Loans.................................23
(b) The Bid Loans...................................... 23
2.09 Interest................................................. 23
2.10 Default Interest......................................... 24
2.11 Continuation and Conversion Elections for Committed
Borrowings............................................... 24
ARTICLE III
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
3.01 Fees..................................................... 27
3.02 Computation of Fees and Interest......................... 27
3.03 Payments by the Borrower................................. 28
3.04 Payments by the Banks to the Agent....................... 29
3.05 Taxes.................................................... 30
3.06 Sharing of Payments, Etc................................. 34
3.07 Inability to Determine Rates............................. 35
3.08 Increased Costs.......................................... 35
3.09 Illegality............................................... 36
3.10 Capital Adequacy......................................... 36
3.11 Funding Losses........................................... 37
3.12 Additional Interest on Eurodollar Loans.................. 37
3.13 Certificates of Banks.................................... 38
3.14 Change of Lending Office; Replacement Bank............... 38
<PAGE>
Section Page
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Corporate Existence; Compliance with Law................. 40
4.02 Corporate Authorization; No Contravention;
Governmental Authorization............................... 40
4.03 Enforceable Obligations.................................. 41
4.04 Taxes.................................................... 41
4.05 Financial Matters........................................ 41
4.06 Litigation............................................... 42
4.07 Subsidiaries............................................. 42
4.08 Liens.................................................... 43
4.09 No Burdensome Restrictions; No Defaults.................. 43
4.10 Investment Company Act................................... 43
4.11 Use of Proceeds; Margin Regulations...................... 43
4.12 Assets................................................... 43
4.13 Labor Matters............................................ 44
4.14 Environmental Matters.................................... 44
4.15 Completeness............................................. 45
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-laws and
Good Standing...................................... 48
(d) Legal Opinion...................................... 48
(e) Certificate........................................ 49
(f) Other Documents.................................... 49
5.02 Additional Conditions Precedent to the First
Committed Borrowing after the Restatement
Date..................................................... 49
(a) Fees, Costs and Expenses........................... 49
(b) Original Agreement................................. 49
(c) Original Banks..................................... 49
5.03 Conditions Precedent to All Borrowings................... 49
(a) Notice of Borrowing................................ 50
(b) Continuation of Representations and Warranties..... 50
(c) No Existing Default................................ 50
(d) Other Assurances................................... 50
<PAGE>
Section Page
- ------- ----
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
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............................. 62
7.07 Assets................................................... 63
7.08 Change in Nature of Business............................. 64
7.09 Capital Structure........................................ 64
7.10 Transactions with Affiliates, Etc........................ 64
7.11 Accounting Changes....................................... 65
7.12 Margin Regulations....................................... 65
7.13 Compliance with ERISA.................................... 65
7.14 Speculative Transactions................................. 66
7.15 Financial Covenants...................................... 66
(a) Interest Coverage Ratio............................ 66
(b) Debt Ratio......................................... 66
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default........................................ 67
(a) Non-Payment........................................ 67
(b) Representations and Warranties..................... 67
(c) Specific Defaults.................................. 67
<PAGE>
Section Page
- ------- ----
(d) Other Defaults..................................... 67
(e) Default under Other Agreements..................... 67
(f) Bankruptcy or Insolvency........................... 68
(g) Involuntary Proceedings............................ 68
(h) Monetary Judgments................................. 68
(i) Non-Monetary Judgments............................. 69
(j) ERISA.............................................. 69
(k) Change in Control.................................. 70
8.02 Remedies................................................. 70
8.03 Rights Not Exclusive..................................... 71
ARTICLE IX
THE AGENT
9.01 Appointment.............................................. 72
9.02 Delegation of Duties..................................... 72
9.03 Liability of Agent....................................... 72
9.04 Reliance by Agent........................................ 72
9.05 Notice of Default........................................ 73
9.06 Credit Decision.......................................... 73
9.07 Indemnification.......................................... 74
9.08 Agent in Individual Capacity............................. 75
9.09 Successor Agent.......................................... 75
ARTICLE X
MISCELLANEOUS
10.01 Notices, Etc............................................. 76
10.02 Amendments, Etc.......................................... 76
10.03 No Waiver; Remedies...................................... 77
10.04 Costs and Expenses....................................... 77
10.05 Indemnity................................................ 77
10.06 Right of Set-off......................................... 78
10.07 Binding Effect........................................... 79
10.08 Assignments, Participations Etc.......................... 79
10.09 Confidentiality.......................................... 81
10.10 Survival................................................. 81
10.11 Headings................................................. 81
10.12 Governing Law and Jurisdiction........................... 81
10.13 Execution in Counterparts................................ 82
10.14 Entire Agreement......................................... 82
10.15 Waiver of Jury Trial..................................... 82
<PAGE>
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 2.12 Form of Notice of Conversion/Continuation
Exhibit 5.01(d) Form of Opinion of Corporate Counsel
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
Schedule 4.13 Labor Matters
Schedule 4.14 Environmental Matters
Schedule 4.16 Employee Benefit Plans
Schedule 7.01 Existing Liens
Schedule 7.02 Existing Indebtedness
<PAGE>
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
June 8, 1994, 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, CONTINENTAL BANK
N.A., MORGAN GUARANTY TRUST COMPANY OF NEW YORK, NATIONAL WESTMINSTER BANK,
NATIONSBANK OF TEXAS, N.A., COOPERATIEVE CENTRALE RAFFEISEN-, BOERENLEENBANK,
B.A. (RABOBANK NEDERLAND) 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 Second Amended and Restated
Credit Agreement dated as of November 24, 1992 which amended and restated that
certain Amended and Restated Credit Agreement dated as of June 8, 1990 which
amended and restated that certain Credit Agreement dated as of September 29,
1989, as amended (such Second Amended and Restated Credit Agreement, as from
time to time amended, the "ORIGINAL AGREEMENT"); and
WHEREAS, the Banks, the Co-Agents and the Agent desire to amend and restate
the Original Agreement in its entirety in order to evidence the release of the
Guaranties granted by certain Subsidiaries of the Borrower and to provide for
certain other 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:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 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
<PAGE>
who is the beneficial owner of 5% or more of such corporation's outstanding
common stock. For purposes of this definition, "control" means the possession
of the power to direct or cause the direction of management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"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 Third Amended and Restated Credit Agreement, as from
time to time amended, modified or supplemented.
"AGGREGATE COMMITMENTS" means the aggregate amount of the Commitments of
all the Banks as in effect from time to time.
"ASSIGNEE" has the meaning specified in SECTION 10.08(a).
"BANK" has the meaning specified in the preamble and includes each Bank
listed on the signature pages hereof and each Person which becomes a Bank
pursuant to SECTION 10.08.
"BANK AFFILIATE" means a Person engaged primarily in the business of
commercial banking and that is a Subsidiary of a Bank or of a Person of which a
Bank is a Subsidiary.
"BANK OF AMERICA" means Bank of America National Trust and Savings
Association, a national banking association.
"BANK OF AMERICA RATE" has the meaning specified in the definition of
Reference Rate.
"BID BORROWING" means an extension of credit hereunder consisting of one or
more Bid Loans made to the Borrower on the same day by one or more Banks.
"BID LOAN" means a Loan made by a Bank to the Borrower pursuant to
SECTION 2.03 and may be a LIBOR Bid Loan or an Absolute Rate Bid Loan and
includes any Existing Bid Loan.
"BORROWER" has the meaning specified in the preamble.
"BORROWING" means a Committed Borrowing or a Bid Borrowing.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York City or San Francisco are authorized or
required by law to close and, if the applicable Business Day relates to any
Eurodollar Loan, means such
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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 RATING" means the actual or implied rating as most recently assigned
to the Borrower's long-term senior unsecured debt by Moody's or S&P, as the case
may be.
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"DEBT RATIO" means, at any date of determination, the ratio of (a)
Indebtedness for Borrowed Money to (b) Total Capitalization as of the last day
of the most recent fiscal quarter or fiscal year, as the case may be, of the
Borrower for which financial statements have been delivered pursuant to
PARAGRAPH (a) or (b) of SECTION 6.09.
"DEFAULT" means any event or condition which, with the giving of notice or
the lapse of time, or both, would become an Event of Default.
"DOMESTIC LENDING OFFICE" has the meaning specified in the definition of
Lending Office.
"EBIT" means, with respect to any Person, for any Measurement Period,
(a) the sum of:
(i) Net Income of such Person for such period;
PLUS
(ii) the provision for income taxes deducted in determining Net
Income for such period;
PLUS
(iii) Interest Expense deducted in determining Net Income for such
period;
PLUS
(iv) any amortization of fees and expenses incurred in connection
with the Tender Offer and the Merger and in connection with the
closing of this Agreement to the extent reflected in the determination
of Net Income for such period;
MINUS
(b) any items of gain (or PLUS any items of loss) which are extraordinary
items as defined by GAAP to the extent reflected in the determination of
Net Income for such period.
"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
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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. Section 9601 ET SEQ.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. Section 1801 ET SEQ.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 ET SEQ.), the Clean
Air Act (42 U.S.C. Section 7401 ET SEQ.), the Toxic Substances Control Act (15
U.S.C. Section 2601 ET SEQ.) and the Occupational Safety and Health Act (29
U.S.C. Section 651 ET SEQ.) ("OSHA"), as such laws have been or hereafter may be
amended, modified or supplemented, and any and all analogous future federal, or
present or future state or local, statutes and the regulations promulgated
pursuant thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and all regulations promulgated thereunder.
"ERISA EVENT" means, with respect to any Person, (a) a Reportable Event
(other than a Reportable Event not subject to the provision for 30-day notice to
the PBGC under regulations issued under Section 4043 of ERISA); (b) the
withdrawal of such Person or any member of its Controlled Group from a Plan
during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA; (c) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA; (d) the institution of proceedings to terminate a Plan by the PBGC; (e)
the failure to make required contributions which would result in the imposition
of a Lien under Section 412 of the Code or Section 302 of ERISA; and (f) any
other event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan or the imposition of any liability under
Title IV of ERISA
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<PAGE>
other than PBGC premiums due but not delinquent under Section 4007 of ERISA.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"EURODOLLAR LENDING OFFICE" has the meaning specified in the definition of
Lending Office.
"EURODOLLAR LOAN" means any Committed Loan that bears interest at a rate
determined with reference to LIBOR.
"EURODOLLAR RESERVE PERCENTAGE" means, with respect to any Interest Period
for any Eurodollar Loan made by any Bank, the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for such Bank with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning specified in SECTION 8.01.
"EXISTING BID LOAN" means any bid loan of any Bank outstanding under the
Original Agreement on the Restatement Date.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal Reserve
System.
"FEE LETTER" means the letter agreement dated as of the Restatement Date
between the Borrower and the Agent regarding the payment of certain fees.
"FINAL MATURITY DATE" means May 31, 1999.
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"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.
"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
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<PAGE>
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 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 EXPENSE" means, with respect to any Person, for any period, the
aggregate interest expense for such period (including interest expense
attributed to capital leases) determined in accordance with GAAP (other than
interest on tax assessments to the extent included in deferred taxes).
"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
8
<PAGE>
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
(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).
9
<PAGE>
"LEVEL I STATUS" exists at any date if, at such date, the Debt Rating is A
(or the equivalent) or higher by S&P or A2 (or the equivalent) or higher by
Moody's.
"LEVEL II STATUS" exists at any date if, at such date (a) the Debt Rating
is A- (or the equivalent) or higher by S&P or A3 (or the equivalent) or higher
by Moody's and (b) Level I Status does not exist.
"LEVEL III STATUS" exists at any date if, at such date (a) the Debt Rating
is BBB+ (or the equivalent) or higher by S&P or Baa1 (or the equivalent) or
higher by Moody's and (b) neither Level I Status nor Level II Status exists.
"LEVEL IV STATUS" exists at any date if, at such date (a) the Debt Rating
is BBB (or the equivalent) or higher by S&P or Baa2 (or the equivalent) or
higher by Moody's and (b) neither Level I Status nor Level II Status nor Level
III Status exists.
"LEVEL V STATUS" exists at any date if, at such date (a) the Debt Rating is
BBB- (or the equivalent) or higher by S&P or Baa3 (or the equivalent) or higher
by Moody's and neither Level I Status nor Level II Status nor Level III Status
nor Level IV Status exists.
"LEVEL VI STATUS" exists at any date if, at such date (a) the Debt Rating
is lower than BBB- (or the equivalent) by S&P and lower than Baa3 (or the
equivalent) by Moody's or (b) neither Moody's nor S&P has assigned a Debt
Rating.
"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
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<PAGE>
(including liens or retained security titles of conditional vendors and
capitalized leases but excluding any right of set-off).
"LOAN" means an extension of credit by a Bank pursuant to ARTICLE II and
may be a Committed Loan or a Bid Loan.
"LOAN DOCUMENTS" means this Agreement, any promissory notes delivered
pursuant to this Agreement, the Notices of Borrowing, the Notices of
Conversion/Continuation and the Competitive Bid Requests.
"MAJORITY BANKS" means at any time Banks holding at least 51% of the
Commitments and, if the Commitments have been terminated, Banks holding at least
51% of the then aggregate unpaid principal amount of the Loans made by the
Banks.
"MATERIAL ADVERSE EFFECT" means a material adverse change in, or a material
adverse effect upon, any of (a) the financial condition, business, prospects or
properties of any of (i) the Borrower or (ii) the Borrower and its Subsidiaries
taken as a whole; (b) the ability of the Borrower to perform its obligations
under any of the Loan Documents; or (c) the legality, validity or enforceability
of any Loan Document.
"MEASUREMENT PERIOD" means a period of four consecutive fiscal quarters of
the Borrower ending on the last day of the then most recently completed fiscal
quarter of the Borrower.
"MERGER" means the merger of Holly Farms Corporation with Holly Acquisition
Corp. on August 9, 1989 pursuant to which Holly Farms Corporation was the
surviving entity.
"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 INCOME" means, with respect to any Person, for any period, the net
income (or loss) of such Person for such period (taken as a single accounting
period) determined in conformity with GAAP, excluding (to the extent otherwise
included therein) any gains or losses, together with any related provision for
taxes, realized upon any sale of assets other than in the ordinary course of
business; PROVIDED, HOWEVER, that there shall be excluded therefrom the net
income (or loss) of any Person accrued prior to the date such Person becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower
or any of its Subsidiaries or such Person's assets are acquired by the Borrower
or any of its Subsidiaries.
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<PAGE>
"NET PROCEEDS" means, with respect to any sale, lease, transfer,
condemnation or other voluntary or involuntary disposition of assets, including
a Permitted Disposition,
(a) the aggregate amount of cash proceeds received by the Borrower or any
of its Subsidiaries from such disposition;
MINUS
(b) the sum of
(i) all fees and expenses, including customary brokerage commissions,
appraisal fees, survey charges, legal and investment banking fees and
other similar commissions, charges or fees incurred in connection with
such disposition;
PLUS
(ii) all taxes, including filing, recording or registration fees,
recording taxes and transfer taxes paid (or payable) and income tax
paid in connection with such disposition;
PLUS
(iii) the amount of Indebtedness required to be paid in connection
with such disposition to satisfy any Lien existing on the property
included in such disposition.
"NET WORTH" means, with respect to any Person, at any date of
determination, shareholders' equity as determined in accordance with GAAP.
"NOTICE OF ASSIGNMENT" has the meaning specified in SECTION 10.08(b).
"NOTICE OF BORROWING" has the meaning specified in SECTION 2.02(a).
"NOTICE OF CONVERSION/CONTINUATION" has the meaning specified in
SECTION 2.11(b).
"OBLIGATIONS" means all Loans, other Indebtedness, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrower to any
Bank, the Agent, any Affiliate of any of the foregoing or any Indemnified Party,
of any kind or nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, arising under this Agreement or under any other
Loan Document, whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, guaranty, indemnification, or in any
other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however
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<PAGE>
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).
"PARTICIPANT" has the meaning specified in SECTION 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERCENTAGE SHARE" means, as to any Bank, at any time, such Bank's
percentage share of the Aggregate Commitments, as set forth opposite such Bank's
name in SCHEDULE 1.01(a) under the heading "PERCENTAGE SHARE" or set forth in
any Notice of Assignment delivered pursuant to SECTION 10.08, as such percentage
may be modified from time to time in connection with any assignment of the
Commitment of such Bank in accordance with the terms hereof.
"PERMITTED DISPOSITION" means, any disposition (except as otherwise
permitted under SECTION 7.07) made by the Borrower or any of its Subsidiaries of
any of its assets if the Net Proceeds of such disposition together with all
other dispositions made in the same fiscal year does not exceed $100,000,000 in
such fiscal year.
"PERMITTED INVESTMENTS" means:
(a) securities issued or fully guaranteed or insured by the United States
Government or any agency thereof and backed by the full faith and credit of
the United States of America having maturities of not more than one year
from the date of acquisition;
(b) certificates of deposit, time deposits, Eurodollar time deposits,
overnight bank deposits, repurchase agreements, reverse repurchase
agreements or bankers' acceptances, having in each case a tenor of not more
than one year issued by any Bank, or by any United States commercial bank
or any branch or agency of a non-United States bank licensed to conduct
business in the United States of America having a combined capital and
surplus of not less than $100,000,000 whose short terms securities are
rated at least A-1 by S&P and P-1 by Moody's;
(c) commercial paper of an issuer rated at least A-1 by S&P Corporation or
P-1 by Moody's and in either case having a tenor of not more than 270 days;
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<PAGE>
(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 $100,000,000.
"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 Societe Generale.
"REFERENCE RATE" means the higher of (a) the Federal Funds Rate plus
1/2% and (b) the rate of interest (the "BANK OF AMERICA RATE") publicly
announced from time to time by Bank of America in San Francisco, California,
as its reference rate. The Bank of America Rate is a rate set by Bank of
America based upon various factors including Bank of America's cost and
desired return, general economic conditions, and other factors, and is used as
a reference point for pricing some loans, which may be priced at, above, or
below the Bank of America Rate. Any change in the Bank of America Rate shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"REFERENCE RATE LOAN" means any Committed Loan that bears interest at
a rate determined with reference to the Reference Rate.
"REPORTABLE EVENT" means any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"REPLACEMENT BANK" has the meaning specified in SECTION 3.14(b).
"REQUIREMENT OF LAW" means, with respect to any Person, the charter
and by-laws or other organizational or governing documents of such Person, and
any law, rule or regulation (including Environmental Laws and ERISA) or order,
decree or other determination of an arbitrator or a court or other
Governmental Authority applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
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<PAGE>
"RESPONSIBLE OFFICER" means, with respect to any Person, the Chief
Executive Officer, the President, the Chief Financial Officer, the Treasurer,
the Assistant Treasurer or the Secretary of such Person.
"RESTATEMENT DATE" means the date on which all conditions precedent
set forth in SECTIONS 5.01 and 5.02 have been satisfied or waived by all
the Banks.
"S&P" means Standard & Poor's Ratings Group or any successor to the
rating agency business thereof.
"SOLVENT" means, with respect to any Person, that the fair value of
the assets of such Person (both at fair valuation and at present fair saleable
value) is, on the date of determination, greater than 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).
"TENDER OFFER" means the cash tender offer pursuant to which Holly
Acquisition Corp. purchased shares of Stock of Holly Farms Corporation.
"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.
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"TYSON LIMITED PARTNERSHIP" means that certain Delaware limited
partnership of the same name of which Mr. Don Tyson is the Managing General
Partner.
1.02 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".
1.03 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.
1.04 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.
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ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
2.01 AMOUNTS AND TERMS OF COMMITMENTS.
THE COMMITTED LOANS. Each Bank severally agrees, on the terms and subject
to the conditions hereinafter set forth, to make Committed Loans to the
Borrower (each such Loan, a "COMMITTED LOAN") from time to time on any
Business Day during the period from the Restatement Date to the Final Maturity
Date, in an aggregate principal amount not to exceed at any time outstanding
such Bank's Commitment; PROVIDED, HOWEVER, that after giving effect to any
Borrowing of Committed Loans, (a) the aggregate principal amount of all
outstanding Committed Loans PLUS (b) the aggregate principal amount of all
outstanding Bid Loans shall not exceed the Aggregate Commitments. Within the
limits of each Bank's Commitment, the Borrower may borrow under this SECTION
2.01, prepay pursuant to SECTION 2.07 and reborrow pursuant to this
SECTION 2.01.
2.02 PROCEDURE FOR COMMITTED BORROWINGS.
(a) Each Committed Borrowing shall be made upon the irrevocable
notice of the Borrower, received by the Agent not later than 12:00 noon
(New York City time) (i) three Business Days prior to the date of the
proposed Borrowing, in the case of Eurodollar Loans; and (ii) one
Business Day prior to the date of the proposed Borrowing, in the case of
Reference Rate Loans; PROVIDED, HOWEVER, that in case of a Committed
Borrowing of Reference Rate Loans after the cancellation of a Bid
Borrowing pursuant to SECTION 2.04(c)(i), the Borrower may give such
notice to the Agent not later than 11:00 a.m. (New York City time) on
the date of such Committed Borrowing. Each such notice of a Committed
Borrowing (a "NOTICE OF BORROWING") shall be in writing (including by
facsimile confirmed immediately by telephone), in substantially the form
of EXHIBIT 2.02 specifying:
(i) the requested borrowing date, which shall be a Business
Day;
(ii) the aggregate amount of the Borrowing, which (A) shall not
exceed the unused portion of the Aggregate Commitments and (B)
shall be a minimum amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof;
(iii) whether the Borrowing is to be comprised of Eurodollar
Loans or Reference Rate Loans; and
(iv) if the Borrowing is to be comprised of Eurodollar Loans,
the duration of the initial Interest Period applicable to such
Loans. If the Notice of Borrowing shall fail to specify the
duration of the initial
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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.
2.03 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.
2.04 PROCEDURE FOR BID BORROWINGS.
(a) The Borrower may request a Bid Borrowing hereunder by delivering
to the Agent and each Bank by facsimile not later than 12:00 noon (New
York City time) (i) three Business Days prior to the date of the
proposed Borrowing, in the case of LIBOR Bid Loans; and (ii) one
Business Day prior to the date of the proposed Borrowing, in the case of
Absolute Rate Bid Loans, a solicitation for Bid Loans (a "COMPETITIVE
BID REQUEST"), in substantially the form of EXHIBIT 2.04(a),
specifying:
(i) the requested borrowing date, which shall be a Business
Day;
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(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.
(ii) 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.
(iii) Any Competitive Bid shall be disregarded if it:
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(A) is not substantially in conformity with EXHIBIT
2.04(b) or does not specify all of the information
required by CLAUSE (ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Competitive Bid Request; or
(D) arrives after the time set forth in CLAUSE (i)
above.
(c) Not later than 11:00 a.m. (New York City time) (i) two Business
Days prior to the proposed date of Borrowing, in the case of LIBOR Bid
Loans and (ii) on the date of such Bid Borrowing, in the case of
Absolute Rate Loans, the Borrower shall either
(i) cancel such Borrowing by giving the Agent and the Banks
notice thereof (which notice may be given by telephone, confirmed
by facsimile); or
(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
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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.
(ii) Not later than 5:00 p.m. (New York City time) on the date
of each Bid Borrowing,
(A) the Borrower shall notify the Agent of (1) the
aggregate amount of Bid Loans made in connection with such
Bid Borrowing (which amount may not exceed the amount
requested pursuant to SECTION 2.04(a)(ii)), (2) each date
on which any Bid Loan shall mature, (3) the principal amount
of Bid Loans which shall mature on each such date, (4) the
highest and the lowest Competitive Bid submitted by the
Banks in connection with each Competitive Bid Request, and
(5) the highest and the lowest Competitive Bid accepted by
the Borrower; and
(B) the Agent will in turn promptly give to each Bank the
information received from the Borrower in connection with
such Bid Borrowing.
(e) Upon being notified by the Borrower of the amount of, and the
applicable Interest Period for, any LIBOR Bid Loan, the Agent shall
determine LIBOR (as provided in the definition of LIBOR) and give prompt
notice to the Borrower and the relevant Bank or Banks thereof.
2.05 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
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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.
2.06 VOLUNTARY TERMINATION OR REDUCTION OF THE COMMITMENTS. The
Borrower may, at any time and from time to time, upon not less than three
Business Days' prior notice to the Agent, terminate the Aggregate Commitments
or permanently reduce the Aggregate Commitments by an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof;
PROVIDED, HOWEVER, that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayment of Loans made
on the effective date thereof, the then outstanding principal amount of
Committed Loans and Bid Loans would exceed the Aggregate Commitments then in
effect and, PROVIDED, FURTHER, that once reduced in accordance with this
SECTION 2.06, the Aggregate Commitments may not be increased. Any reduction
of the Aggregate Commitments shall be applied to each Bank's Commitment in
accordance with such Bank's Percentage Share.
2.07 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
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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.
2.08 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.
2.09 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 the
Reference Rate; and
(ii) if such Committed Loan is a Eurodollar Loan, at a rate per
annum equal to the sum of LIBOR PLUS the applicable margin set
forth below:
DEBT RATING APPLICABLE MARGIN
----------- -----------------
Level I Status .125%
Level II Status .15%
Level III Status .20%
Level IV Status .275%
Level V Status .325%
Level VI Status .355%.
(b) Any change in the Debt Rating shall be effective as of the date
on which such change is first publicly announced by S&P or notified to
the Borrower by Moody's. Any change in the applicable margin due to a
change in the applicable Debt Rating shall be effective on the effective
date of such change in the Debt Rating and shall apply to all Eurodollar
Loans that are outstanding at any time during the period commencing on
the effective date of such change in the Debt Rating and
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ending on the date immediately preceding the effective date of the next
such change in the Debt Rating which results in a change in the
applicable margin.
(c) Accrued and unpaid interest in respect of each Committed Loan
shall be paid on each Interest Payment Date, on the date of any
prepayment or repayment of Committed Loans and, in the case of any
Reference Rate Loan, on each date such Loan is converted into a
Eurodollar Loan.
(d) The Borrower shall pay to each Bank which had made a Bid Loan
interest on the unpaid principal amount of such Bid Loan from the date
when made until paid in full, on each Interest Payment Date, a rate per
annum equal to LIBOR plus (or minus) the LIBOR Bid Margin, or the
Absolute Rate, as the case may be, as specified by such Bank in its
Competitive Bid pursuant to SECTION 2.04(b)(ii).
2.10 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.
2.11 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
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(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 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
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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.
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ARTICLE III
FEES; PAYMENTS; TAXES; CHANGES IN CIRCUMSTANCES
3.01 FEES.
(a) (i) The Borrower agrees to pay to the Agent for the account of
each Bank a facility fee equal to the percentage per annum set
forth below times such Bank's Commitment (regardless of
utilization):
DEBT RATING FACILITY FEE
----------- ------------
Level I Status .08%
Level II Status .10%
Level III Status .135%
Level IV Status .17%
Level V Status .20%
Level VI Status .27%
(ii) Any change in the Debt Rating shall be effective as of
the date on which such change is first publicly announced by S&P
or notified to the Borrower by Moody's. Any change in the
facility fee due to a change in the applicable Debt Rating shall
be effective on the effective date of such change in the Debt
Rating and shall apply at any time during the period commencing
on the effective date of such change in the Debt Rating and
ending on the date immediately preceding the effective date of
the next such change in the Debt Rating which results in a change
in the facility fee.
(iii) 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 on the calendar quarter ending on June 30, 1994 and on
the Final Maturity Date.
(b) The Borrower agrees to pay to the Agent, for the Agent's own
account, an agency fee in the amount and at the times set forth in the
Fee Letter.
3.02 COMPUTATION OF FEES AND INTEREST.
(a) All computations of interest payable in respect of Reference Rate
Loans shall be made on the basis of a year of 365 days or 366 days, as
the case may be, and actual days elapsed. All other computations of
fees and interest under this Agreement shall be made on the basis of a
year of 360 days and actual days elapsed. Interest and fees shall
accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
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(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.
3.03 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
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to the extent the Borrower shall not have so made such payment in full
to the Agent, each Bank shall repay to the Agent, on demand, the excess
of the amount distributed to such Bank over the amount, if any, paid by
the Borrower, together with interest thereon at the Federal Funds Rate,
for each day from the date such amount is distributed to such Bank to
the date such Bank repays such amount to the Agent; PROVIDED,
HOWEVER, that if any Bank shall fail to repay such amount within three
Business Days after demand therefor, such Bank shall, from and after
such third Business Day until payment is made to the Agent, pay interest
thereon at a rate per annum equal to the sum of the Reference Rate PLUS
1%.
3.04 PAYMENTS BY THE BANKS TO THE AGENT.
(a) Unless the Agent shall have received notice from a Bank on the
Restatement Date, or, with respect to each Committed Borrowing after the
Restatement Date, at least one Business Day prior to the date of such
Borrowing that such Bank will not make available to the Agent for the
account of the Borrower the amount of such Bank's Percentage Share of
such Borrowing, the Agent may assume that such Bank has made such amount
available to the Agent on the date of such Borrowing and the Agent may
(but shall not be so required), in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and
to the extent such Bank shall not have so made such full amount
available to the Agent and the Agent in such circumstances makes
available to the Borrower such amount, such Bank shall, within two
Business Days following the date of such Borrowing, make such amount
available to the Agent, together with interest at the Federal Funds Rate
for and determined as of each day during such period. If such amount is
so made available, such payment to the Agent shall constitute such
Bank's Committed Loan on the date of the Borrowing for all purposes of
this Agreement. If such amount is not made available to the Agent
within two Business Days following the date of such Borrowing, the Agent
shall notify the Borrower of such failure to fund and, on the third
Business Day following the date of such Borrowing, the Borrower shall
pay such amount to the Agent for the Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing,
at a rate per annum equal to the interest rate applicable at the time to
the Loans comprising such Borrowing. Nothing contained in this SECTION
3.04(a) shall relieve any Bank which has failed to make available its
Percentage Share of any Committed Borrowing hereunder from its
obligation to do so in accordance with the terms hereof.
(b) The failure of any Bank to make any Committed Loan on the date of
any Committed Borrowing shall not relieve any other Bank of its
obligation hereunder to make a Loan on the date of such Borrowing
pursuant to the provisions contained herein, but no Bank shall be
responsible for the failure of
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any other Bank to make the Loan to be made by such other Bank on the
date of any Committed Borrowing.
3.05 TAXES.
(a) Subject to SECTION 3.05(g), any and all payments by the
Borrower to each Bank or the Agent under this Agreement shall be made
free and clear of, and without deduction or withholding for, any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto incurred in
connection with any Borrowing pursuant to this Agreement, excluding, in
the case of each Bank and the Agent, such taxes (including income taxes,
franchise taxes or branch profit taxes) as are imposed on or measured by
such Bank's or the Agent's, as the case may be, net income by the
jurisdiction under the laws of which such Bank or the Agent, as the case
may be, is organized or maintains a Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter
referred to as "TAXES").
(b) In addition, the Borrower shall pay any present or future stamp
or documentary taxes, intangible taxes, mortgage recording taxes or any
other sales, excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any
other Loan Document (hereinafter referred to as "OTHER TAXES").
(c) Subject to SECTION 3.05(g), the Borrower shall indemnify and
hold harmless each Bank and the Agent for the full amount of Taxes or
Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this SECTION 3.05) paid by such
Bank or the Agent, as the case may be, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were
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;
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(ii) the Borrower shall make such deductions; and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the Borrower of
Taxes or Other Taxes, the Borrower shall furnish to the Agent the
original or a certified copy of a receipt evidencing such payment, or
other evidence of such payment satisfactory to the Agent.
(f) Each Bank which is a foreign Person (I.E., a Person other than
a United States Person for United States Federal income tax purposes)
hereby agrees that:
(i) it shall, unless already delivered pursuant to the Original
Agreement, no later than on the Restatement Date (or, in the case
of a Bank which becomes a party hereto pursuant to SECTION 10.08
after the Restatement Date, the date upon which such Bank becomes
a party hereto) deliver to the Agent (two originals) and to the
Borrower (one original):
(A) if any Lending Office is located in the United States
of America, accurate and complete signed copies of IRS Form
4224 or any successor thereto ("FORM 4224"), and/or
(B) if any Lending Office is located outside the United
States of America, accurate and complete signed copies of
IRS Form 1001 or any successor thereto ("FORM 1001"),
in each case indicating that such Bank is on the date of delivery
thereof entitled to receive payments of principal, interest and
fees for the account of such Lending Office or Lending Offices
under this Agreement free from withholding of United States
Federal income tax;
(ii) if at any time such Bank changes its Lending Office or
Lending Offices or selects an additional Lending Office it shall,
at the same time, but only to the extent the forms previously
delivered by it hereunder are no longer effective, deliver to the
Agent (two 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
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(B) otherwise, accurate and complete signed originals of
Form 1001,
in each case indicating that such Bank is on the date of delivery
thereof entitled to receive payments of principal, interest and
fees for the account of such changed or additional Lending Office
under this Agreement free from withholding of United States
Federal income tax;
(iii) it shall, upon the occurrence of any event (including the
passing of time but excluding any event mentioned in CLAUSE (ii)
above) requiring a change in the most recent Form 4224 or Form
1001 previously delivered by such Bank, deliver to the Agent (two
originals) and to the Borrower (one original) accurate and
complete signed copies of Form 4224 or Form 1001 in replacement
for the forms previously delivered by such Bank;
(iv) it shall, promptly upon the request of the Agent or the
Borrower, deliver to the Agent and the Borrower, such other forms
or similar documentation as may be required from time to time by
any applicable law, treaty, rule or regulation in order to
establish such Bank's tax status for withholding purposes;
(v) if such Bank claims exemption from withholding tax under a
United States tax treaty by providing a Form 1001 and such Bank
sells or grants a participation of all or part of its rights
under this Agreement, it shall notify the Agent of the percentage
amount in which it is no longer the beneficial owner under this
Agreement. To the extent of this percentage amount, the Agent
shall treat such Bank's Form 1001 as no longer in compliance with
this SECTION 3.05(f). In the event a Bank claiming exemption
from United States withholding tax by filing Form 4224 with the
Agent, sells or grants a participation in its rights under this
Agreement, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code; and
(vi) if the IRS or any authority of the United States of America
or other jurisdiction asserts a claim that the Agent or the
Borrower did not properly withhold tax from amounts paid to or
for the account of any Bank (because the appropriate form was not
delivered, was not properly executed, or because such Bank failed
to notify the Agent of a change in circumstances which rendered
the exemption from withholding tax ineffective), such Bank shall
indemnify the Agent and/or the Borrower, as applicable, fully for
all amounts paid, directly or indirectly, by the Agent and/or the
Borrower, as tax or
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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 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
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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.
3.06 SHARING OF PAYMENTS, ETC. If other than as provided in
SECTION 3.05, 3.08, 3.09, 3.10, 3.11 or 3.12, any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of any Committed Loan made by it and, after
acceleration of all Obligations pursuant to SECTION 8.02(b), in respect of
any Obligation owing to it (including with respect to any Bid Loan), in the
case of the Committed Loan, in excess of its Percentage Share of payments on
account of the Committed Loans obtained by all the Banks and, after
acceleration, in excess of its PRO RATA share of all Obligations, such
Bank shall forthwith (a) notify the Agent of such fact and (b) purchase from
the other Banks such participations in the Committed Loans made by them or,
after acceleration, in all Obligations owing to them, as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
the other Banks according to their respective Percentage Shares or, after
acceleration, their PRO RATA shares of all Obligations then
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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.
3.07 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.
3.08 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
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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.
3.09 ILLEGALITY.
(a) If any Bank shall determine that the introduction of any
Requirement of Law, or any change in or in the interpretation thereof
has made it unlawful, or any central bank or other Governmental
Authority shall assert that it is unlawful, for such Bank or its Lending
Office to make or continue to fund Loans as Eurodollar Loans or to
convert Loans into Eurodollar Loans, then, on notice thereof by such
Bank to the Borrower through the Agent, the obligation of such Bank to
make or to continue to fund Loans as Eurodollar Loans or to convert any
Loans into Eurodollar Loans shall be suspended until such Bank shall
have notified the Agent and the Borrower that the circumstances giving
rise to such determination no longer exist.
(b) If a Bank shall determine that it is unlawful to maintain any
Eurodollar Loan made by such Bank, the Borrower shall prepay in full all
Eurodollar Loans of such Bank then outstanding, together with interest
accrued thereon, either on the last day of the then current Interest
Period applicable to each such Eurodollar Loan if such Bank may lawfully
continue to maintain such Eurodollar Loan to such day, or immediately,
together with any amounts required to be paid pursuant to SECTION
3.11, if such Bank may not lawfully continue to maintain such
Eurodollar Loan to such day, unless the Borrower, on or prior to the
date on which it would otherwise be required to prepay such Eurodollar
Loan, converts all Eurodollar Loans of such Bank then outstanding into
Reference Rate Loans.
(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.
3.10 CAPITAL ADEQUACY. If any Bank shall have determined that the
compliance with any Requirement of Law regarding capital adequacy, or any
change therein or in the interpretation or application thereof or compliance
by such Bank (or its Lending Office) or any corporation controlling such Bank
with any request or directive regarding capital adequacy (whether or not
having the force of law) from any central bank or other Governmental
Authority, affects or would affect the amount of capital required or expected
to be maintained by such Bank or any corporation controlling such Bank and
such Bank (taking into consideration such Bank's or such corporation's
policies with respect to capital
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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.
3.11 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.
3.12 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 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
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is required to maintain reserves with respect to Eurocurrency Liabilities.
3.13 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.
3.14 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 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
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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.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each Bank that:
4.01 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.
4.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION; GOVERNMENTAL
AUTHORIZATION. The execution, delivery and performance by the Borrower of
the Loan Documents:
(a) are within the respective corporate powers of the Borrower;
(b) have been duly authorized by all necessary corporate action,
including the consent of shareholders where required;
(c) do not and will not:
(i) contravene the certificate of incorporation or by-laws of
the Borrower;
(ii) violate any other Requirement of Law (including the
Securities Exchange Act of 1934, Regulations G, T, U and X of the
Federal Reserve Board or any order or decree of any court or
other Governmental Authority);
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(iii) conflict with or result in the breach of, or constitute a
default under, any Contractual Obligation binding on or affecting
the Borrower or any of its properties, if such breach or default
has any reasonable likelihood of having a Material Adverse
Effect, or any order, injunction, writ or decree of any
Governmental Authority to which the Borrower or any of its
properties is subject; or
(iv) result in the creation or imposition of any Lien upon any
of the property of the Borrower; and
(d) do not require the consent, authorization by or approval of or
notice to or filing or registration with any Governmental Authority or
any other Person other than those which have been duly obtained, made or
given.
4.03 ENFORCEABLE OBLIGATIONS. This Agreement and the other Loan
Documents and each amendment to such Loan Documents executed on or prior to
the Restatement Date 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.
4.04 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.
4.05 FINANCIAL MATTERS.
(a) The consolidated balance sheets of the Borrower and its
Subsidiaries as of the last day of the fiscal year of the Borrower ended
on October 2, 1993 and as of the last day of the fiscal quarter of the
Borrower ended on April 2, 1994 and the related consolidated statements
of income, shareholders'
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equity and cash flows of the Borrower and its Subsidiaries for such
fiscal year and quarter, with, in the case of said fiscal year, reports
thereon by Ernst & Young:
(i) are complete, accurate and fairly present the financial
condition of the Borrower and its Subsidiaries as of the
respective dates thereof and for the respective periods covered
thereby;
(ii) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as set forth in
the notes thereto; and
(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 2, 1993, 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.
4.06 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.
4.07 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.
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(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).
4.08 LIENS. There are no Liens of any nature whatsoever on any
properties of the Borrower or any of its Subsidiaries other than Permitted
Liens.
4.09 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.
4.10 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.
4.11 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.
4.12 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
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names, copyrights, franchises, authorizations and other intellectual
property rights that are necessary for the operation of its business,
without infringement of or conflict with the rights of any other Person
with respect thereto, except for such infringements or conflicts as have
no reasonable likelihood of having a Material Adverse Effect. No
material slogan or other advertising device, product, process, method or
other material now employed, or now contemplated to be employed, by the
Borrower or any of its Subsidiaries infringes upon or conflicts with any
rights owned by any other Person except for such infringements or
conflicts as have no reasonable likelihood, individually or in the
aggregate, of having a Material Adverse Effect.
4.13 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.
4.14 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
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any reasonable likelihood of having a Material Adverse Effect; and
(e) there are no conditions or circumstances which may give rise to
any Environmental Claim arising from the operations of the Borrower or
its Subsidiaries, including Environmental Claims associated with any
operations of the Borrower or its Subsidiaries, which have any
reasonable likelihood of having a Material Adverse Effect. In addition,
(i) neither the Borrower nor any of its Subsidiaries has any underground
storage tanks (A) that are not properly permitted under applicable
Environmental Laws or (B) that to the best of the Borrower's knowledge,
are leaking or dispose of Hazardous Materials off-site and (ii) the
Borrower and each of its Subsidiaries has notified all of its employees
of the existence, if any, of any health hazard arising from the
conditions of their employment and have met all notification
requirements under Title III of CERCLA and under OSHA and all other
Environmental Laws.
4.15 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.
4.16 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)
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nor has any funding waiver from the IRS been received or requested.
(d) Neither the Borrower nor any member of its Controlled Group has
failed to make any contribution or pay any amount due or owing as
required by Section 412 of the Code or Section 302 of ERISA or the terms
of any such Plan prior to the due date (including permissible extensions
thereof) under Section 412 of the Code and Section 302 of ERISA.
(e) There has been no ERISA Event or any event requiring disclosure
under Section 4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA with
respect to any Plan or trust of the Borrower or any member of its
Controlled Group.
(f) Except as set forth in SCHEDULE 4.16, the value of the assets
of each Plan (other than a Multiemployer Plan) equalled or exceeded the
present value of the benefit liabilities, as defined in Title IV of
ERISA, of each such Plan as of the most recent valuation date using Plan
actuarial assumptions at such date.
(g) There are no pending claims, lawsuits or actions (other than
routine claims for benefits in the ordinary course) asserted or
instituted against, and neither the Borrower nor any member of its
Controlled Group has knowledge of any threatened litigation or claims
against, (i) the assets of any Plan or trust or against any fiduciary of
a Plan with respect to the operation of such Plan which has any
reasonable likelihood of having a Material Adverse Effect or (ii) the
assets of any employee welfare benefit plan maintained by the Borrower
or any member of its Controlled Group within the meaning of Section 3(1)
of ERISA or against any fiduciary thereof with respect to the operation
of any such Plan which has any reasonable likelihood of having a
Material Adverse Effect.
(h) Neither the Borrower nor any member of its Controlled Group has
engaged in any prohibited transaction, within the meaning of Section 406
of ERISA or Section 4975 of the Code, in connection with any Plan.
(i) Neither the Borrower nor any member of its Controlled Group (i)
has incurred or reasonably expects to incur (A) any liability under
Title IV of ERISA (other than premiums due under Section 4007 of ERISA
to the PBGC) or (B) any withdrawal liability (and no event has occurred
which with the giving of notice under Section 4219 of ERISA would result
in such liability) under Section 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.
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(j) Neither the Borrower nor any member of its Controlled Group nor
any organization to which the Borrower or any member of its Controlled
Group is a successor or parent corporation within the meaning of Section
4069(b) of ERISA has engaged in a transaction within the meaning of
Section 4069 of ERISA.
(k) Except as set forth in SCHEDULE 4.16, neither the Borrower nor
any member of its Controlled Group maintains or has established any
welfare benefit plan within the meaning of Section 3(1) of ERISA which
provides for (i) continuing benefits or coverage for any participant or
any beneficiary of any participant after such participant's termination
of employment except as may be required by the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA") and the
regulations thereunder, and at the expense of the participant or the
beneficiary of the participant, or (ii) retiree medical liabilities.
The Borrower and each member of its Controlled Group which maintains a
welfare benefit plan within the meaning of Section 3(1) of ERISA has
complied with any applicable notice and continuation requirements of
COBRA and the regulations thereunder, except where the failure to so
comply could not result in the loss of a tax deduction or imposition of
a tax or other penalty on the Borrower or any member of its Controlled
Group.
4.17 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.
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ARTICLE V
CONDITIONS PRECEDENT
5.01 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 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, as applicable,
this Agreement, and all other Loan Documents to be delivered
hereunder;
(c) ARTICLES OF INCORPORATION; BY-LAWS AND GOOD STANDING.
Each of the following documents:
(i) the articles or certificate of incorporation of the
Borrower as in effect on the Restatement Date, certified by the
Secretary of State of Delaware as of a recent date and by the
Secretary or Assistant Secretary of the Borrower as of the
Restatement Date and the by-laws of the Borrower as in effect on
the Restatement Date, certified by the Secretary or Assistant
Secretary of the Borrower as of the Restatement Date; and
(ii) good standing certificates as of a recent date for the
Borrower from the Secretaries of State of Arkansas, Delaware,
North Carolina, Texas and Virginia;
(d) LEGAL OPINION. A favorable opinion, dated the Restatement Date
and addressed to the Agent and the Banks of Corporate Counsel of the
Borrower and its Subsidiaries, in substantially the form of EXHIBIT
5.01(d) and as to such other
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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 Committed Borrowing; and
(iii) there has occurred since October 2, 1993, no Material
Adverse Effect; and
(f) OTHER DOCUMENTS. Such other approvals, opinions or documents
as the Agent or any Bank may request.
5.02 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 confirmed that it will not be a party to this Agreement and
each Bank not a party to the Original Agreement by signing this
Agreement shall have become a Bank for all purposes of this Agreement.
5.03 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) after the Restatement Date shall be subject to the further conditions
precedent that:
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(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.
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ARTICLE VI
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:
6.01 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.
6.02 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 other outstanding Indebtedness
and for working capital and other general corporate purposes (including
capital expenditures and acquisitions and to support the issuance of
commercial paper) not in contravention of any Requirement of Law and
consistent with the representations and warranties contained herein;
PROVIDED, HOWEVER, that other than in connection with the acquisition of WLR
Foods, Inc. 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
acquistion is opposed by the board of directors of such Person.
6.03 PAYMENT OF OBLIGATIONS, ETC. The Borrower shall pay and
discharge, and cause each of its Subsidiaries to pay and discharge, before the
same shall become delinquent, all lawful claims and all taxes, assessments and
governmental charges or levies unless the same are being contested in good
faith by appropriate proceedings and adequate reserves therefor have been
established on the books of the Borrower or one of its Subsidiaries in
accordance with GAAP, PROVIDED all such non-payments, individually or in the
aggregate, have no reasonable likelihood of having a Material Adverse Effect.
6.04 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.
6.05 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.
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6.06 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.
6.07 KEEPING OF BOOKS. The Borrower shall maintain, and cause each
of its Subsidiaries to maintain, proper books of record and account, in which
full and correct entries shall be made of all financial transactions and
matters involving the assets and business of the Borrower and each of its
Subsidiaries in accordance with GAAP.
6.08 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.
6.09 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
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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 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 covenants set forth in SECTION 7.17,
in each case reconciling any differences between the numbers used in
such calculations and those used in the preparation of such financial
statements.
6.10 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
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(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;
(e) promptly, but not later than five Business Days after the
Borrower becomes aware of any change by Moody's or S&P in its Debt
Rating, notice by telephone or facsimile of such change; and
(f) such other information respecting the business, prospects,
properties, operations or the condition, financial or otherwise, of the
Borrower or any of its Subsidiaries as any Bank through the Agent may
from time to time reasonably request.
6.11 NOTICES REGARDING ERISA. Without limiting the generality of
the notice provisions contained in SECTION 6.10, the Borrower shall furnish
to the Agent:
(a) promptly and in any event (i) within 30 days after the Borrower
or any member of its Controlled Group knows or has reason to know that
any ERISA Event described in CLAUSE (A) of the definition of ERISA
Event or any event described in Section 4063(a) of ERISA with respect to
any Plan, and (ii) within ten days after the Borrower or any member of
its Controlled Group knows or has reason to know that any other ERISA
Event with respect to any Plan has occurred or a request for a minimum
funding waiver under Section 412 of the Code with respect to any Plan
has been made, a statement of the Chief Financial Officer of the
Borrower describing such ERISA Event and the action, if any, which the
Borrower or such member of its Controlled Group proposes to take with
respect thereto together with a copy of the notice of such ERISA Event
or other event, if required by the applicable regulations under ERISA,
given to the PBGC;
(b) promptly and in any event within five Business Days after receipt
thereof by the Borrower or any member of its
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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.
6.12 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;
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(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.
6.13 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 request from time to time to evidence compliance with this
SECTION 6.13.
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ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so as long as any Bank
shall have any Commitment hereunder or any Loan or other Obligation shall
remain unpaid or unsatisfied, unless the Majority Banks shall waive compliance
in writing:
7.01 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
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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 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;
(ii) 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
(iii) 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;
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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 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) the amount of Indebtedness secured by Liens under this PARAGRAPH
(i) which is in excess of the Permitted Lien Basket 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
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(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.
7.02 LIMITATION ON INDEBTEDNESS. The Borrower shall not create,
incur, assume or suffer to exist, or permit any of its Subsidiaries to create,
incur, assume or suffer to exist, any Indebtedness except:
(a) the Loans and any other Indebtedness under this Agreement or any
other Loan Document;
(b) Indebtedness existing on the Restatement Date and set forth in
SCHEDULE 7.02, and any extension, renewal, refunding and refinancing
thereof, PROVIDED that after giving effect to such extension, renewal,
refunding or refinancing, (A) the principal amount thereof is not
increased, (B) neither the tenor nor the remaining average life thereof
is reduced and (C) the interest rate thereon is not increased;
PROVIDED, HOWEVER, that the industrial revenue bonds identified by
an asterisk in SCHEDULE 7.02 may be refinanced at an interest rate
higher than the rate in effect immediately prior to such refinancing if
such rate is not in excess of any rate of interest then payable in
respect of the Loans (without taking into account any interest payable
pursuant to SECTION 2.10);
(c) Indebtedness of the Borrower to any of its wholly-owned
Subsidiaries, of any Subsidiary of the Borrower to the Borrower or of
any Subsidiary of the Borrower to another Subsidiary of the Borrower;
(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
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incurrence of such Indebtedness, no condition or event shall exist which
constitutes an Event of Default.
7.03 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 (A) 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 (B) no Event of Default exists or would occur as a
result of such sale and subsequent lease.
7.04 RESTRICTED PAYMENTS. The Borrower shall not:
(a) declare or make, or permit any of its Subsidiaries to declare or
make, any dividend payment or other distribution of assets, properties,
cash, rights, obligations or securities on account of its Stock other
than (i) dividends paid by any wholly-owned Subsidiary of the Borrower
to the Borrower or any other wholly-owned Subsidiary of the Borrower;
(ii) distributions of shares of common stock of the Borrower to its
management as executive compensation and in connection with management
incentive plans; (iii) dividends or distributions payable solely in
additional common Stock of the Borrower; and (iv) other dividends to the
shareholders of the Borrower, PROVIDED at the time of, and immediately
after giving effect to, the payment of such dividends pursuant to this
PARAGRAPH (a)(iv), no condition or event shall exist which constitutes
an Event of Default; or
(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,
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redemption or other acquisition pursuant to this PARAGRAPH (b)(iii),
no condition or event shall exist which constitutes an Event of Default.
7.05 MERGERS, ETC. The Borrower shall not merge or consolidate with
or into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person, or, except as
permitted pursuant to SECTION 7.06 or SECTION 7.09, acquire all or
substantially all of the Stock of any Person, or acquire all or substantially
all of the assets of any Person (other than live inventory) or enter into any
joint venture or partnership with, any Person, or permit any of its
Subsidiaries to do so; PROVIDED, HOWEVER, that:
(a) the Borrower may merge with a wholly-owned Subsidiary of the
Borrower so long as (i) the Borrower is the surviving corporation and
(ii) at the time of, and immediately after giving effect to, such
merger, no condition or event shall exist which constitutes an Event of
Default;
(b) any wholly-owned direct or indirect Subsidiary of the Borrower
may merge with or into any other wholly-owned direct or indirect
Subsidiary of the Borrower or acquire Stock of any other wholly-owned
direct or indirect Subsidiary of the Borrower;
(c) the Borrower or any Subsidiary of the Borrower may acquire all or
substantially all of the Stock or all or substantially all of the assets
of any Person, PROVIDED at the time of, and immediately after giving
effect to such acquisition, no condition or event shall exist which
constitutes an Event of Default; and
(d) any Subsidiary of the Borrower may merge with any other
corporation permitted to be acquired pursuant to PARAGRAPH (c) above,
PROVIDED (i) at the time of, and immediately after giving effect to,
such merger, no condition or event shall exist which constitutes an
Event of Default and (ii) and after such merger, the surviving
corporation is a Subsidiary of the Borrower.
7.06 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;
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(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 Persons with whom the Borrower or such
Subsidiary has entered into agreements for the supply of products or
services for its businesses permitted under SECTION 7.08; PROVIDED
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).
7.07 ASSETS. The Borrower shall not sell, assign, transfer or
otherwise dispose of any of its assets, or permit any of its Subsidiaries to
sell, assign, transfer or otherwise dispose of any of its assets, except:
(a) the sale or disposition of inventory and farm products in the
ordinary course of business;
(b) the sale or disposition in the ordinary course of business of any
assets which have become obsolete or surplus to the business of the
Borrower or any of its Subsidiaries, or has no remaining useful life, in
each case as reasonably determined in good faith by the Borrower or such
Subsidiary, as the case may be;
(c) the periodic sales to third parties of live inventory and related
products and services under grow out contracts;
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(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.
7.08 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.
7.09 CAPITAL STRUCTURE. The Borrower shall not:
(a) make, or, except as permitted by SECTION 7.05, permit any of
its Subsidiaries to make, any changes in its capital structure
(including in the terms of its outstanding Stock), amend their
certificate of incorporation or by-laws, or make any changes in any of
its business objectives, purposes or operations if such change has a
reasonable likelihood of having a Material Adverse Effect; or
(b) permit any of its Subsidiaries to issue any Stock (other than
directors' qualifying shares) other than to the Borrower or any
wholly-owned Subsidiary of the Borrower, except if (i) after giving
effect to such issuance, such Subsidiary is still a Subsidiary of the
Borrower; (ii) such issuance has no reasonable likelihood of having a
Material Adverse Effect; and (iii) at the time of, and immediately after
giving effect to such issuance, there shall exist no condition or event
which constitutes an Event of Default.
7.10 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
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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.
7.11 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.
7.12 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.
7.13 COMPLIANCE WITH ERISA. The Borrower shall not, directly or
indirectly, permit any member of the Controlled Group of the Borrower to,
directly or indirectly:
(a) terminate any Plan so as to result in any material liability (in
the opinion of the Majority Banks exercised reasonably) to the Borrower
or any member of its Controlled Group;
(b) permit to exist any ERISA Event, or any other event or condition
which presents the risk of a material liability (in the opinion of the
Majority Banks exercised reasonably) of the Borrower or any member of
its Controlled Group;
(c) make a complete or partial withdrawal (within the meaning of
Section 4201 of ERISA) from any Multiemployer Plan so as to result in
any material liability (in the opinion of the Majority Banks exercised
reasonably) to the Borrower or any member of its Controlled Group;
(d) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder except in the ordinary course of
business consistent with past practice which has any reasonable
likelihood of resulting in material
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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.
7.14 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.
7.15 FINANCIAL COVENANTS.
(a) INTEREST COVERAGE RATIO. The Borrower shall not permit, at any
time during any Measurement Period, the ratio of (i) EBIT of the
Borrower and its consolidated Subsidiaries to (ii) Interest Expense of
the Borrower and its consolidated Subsidiaries to be less than 2.00 to
1.
(b) DEBT RATIO. The Borrower shall not permit at any time the Debt
Ratio to be greater than .65 to 1.
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ARTICLE VIII
EVENTS OF DEFAULT
8.01 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 failure could have a
Material Adverse Effect), 6.05, 6.06, 6.10(b) OR 6.10(e);
(d) OTHER DEFAULTS. The Borrower shall fail to perform or observe
any other term or covenant contained in this Agreement (including
SECTION 6.04 to the extent not covered by PARAGRAPH (c) above) or
any other Loan Document, and such Default shall continue unremedied for
a period of 15 days after the date upon which written notice thereof
shall have been given to the Borrower by the Agent;
(e) DEFAULT UNDER OTHER AGREEMENTS. Any default shall occur under
any Indebtedness of the Borrower or any of its Subsidiaries (other than
under this Agreement) 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
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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-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;
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(i) NON-MONETARY JUDGMENTS. Any non-monetary judgment, order or
decree shall be rendered against the Borrower or any of its Subsidiaries
which does or has a reasonable likelihood of having a Material Adverse
Effect and either (A) enforcement proceedings shall have been initiated
by any Person upon such judgment or order or (B) there shall be any
period of ten consecutive days during which a stay of enforcement of
such judgment, order or decree, by reason of a pending appeal or
otherwise, shall not be in effect;
(j) ERISA. With respect to any Plan:
(i) the Borrower, any member of its Controlled Group or any
other party-in-interest or disqualified Person shall engage in
transactions which in the aggregate have a reasonable likelihood
of resulting in a direct or indirect liability to the Borrower or
any member of its Controlled Group in excess of $3,000,000 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 $3,000,000, or
request a funding waiver from the IRS for contributions in the
aggregate in excess of $3,000,000;
(iii) the Borrower or any member of its Controlled Group shall
incur any withdrawal liability in the aggregate in excess of
$3,000,000 as a result of a complete or partial withdrawal from a
Multiemployer Plan within the meaning of Section 4203 or 4205 of
ERISA;
(iv) the Borrower or any member of its Controlled Group shall
fail to make a required contribution by the due date (including
any permissible extensions) under Section 412 of the Code or
Section 302 of ERISA which would result in the imposition of a
Lien under Section 412 of the Code or Section 302 of ERISA;
(v) the Borrower, any member of its Controlled Group or any
Plan sponsor shall notify the PBGC of an intent to terminate in a
distressed termination, or the PBGC shall institute proceedings
to terminate, a Plan;
(vi) a Reportable Event shall occur with respect to a Plan, and
within 15 days after the reporting of such Reportable Event to
the Majority Banks, the Majority Banks shall have notified the
Borrower in writing that (A) they have made a determination that,
on the basis of such Reportable Event, there are reasonable
grounds for the termination of such Plan by the PBGC or for the
appointment by the appropriate United States District Court of a
trustee to administer such Plan and (B) as a
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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 $6,000,000; or
(k) CHANGE IN CONTROL. Mr. Don Tyson, the Tyson Limited
Partnership and "members of the same family" of Mr. Don Tyson as defined
in Section 447(e) of the Code shall cease to have at least 51% of the
total combined voting power of the outstanding Stock of the Borrower.
8.02 REMEDIES. If any Event of Default shall have occurred and be
continuing, the Agent shall at the request of, or may with the consent of, the
Majority Banks:
(a) declare the Commitment of each Bank to be terminated, whereupon
such Commitment shall forthwith be terminated; and/or
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon and all other Obligations payable
hereunder or under any other Loan Document to be immediately due and
payable, whereupon the Loans, all such interest and all such Obligations
shall become and be forthwith due and payable without presentment,
demand, protest
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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.
8.03 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.
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ARTICLE IX
THE AGENT
9.01 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.
9.02 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.
9.03 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.
9.04 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
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believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons and upon any advice and
statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Agent
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance
with a request from or the consent of the Majority Banks and such
request or consent and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks and all future holders of
the Loans or any portion thereof.
(b) For purposes of determining compliance with the conditions
specified in SECTIONS 5.01 and 5.02, each Bank shall be deemed to
have consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Banks unless an officer
of the Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Bank prior to the initial
Borrowing after the Restatement Date specifying its objection thereto
and either such objection shall not have been withdrawn by notice to the
Agent to that effect or such Bank shall not have made available to the
Agent such Bank's Percentage Share of such Borrowing.
9.05 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to payment defaults, unless the Agent shall have received
notice from a Bank or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
give prompt notice thereof to the Banks. The Agent shall take such action
with respect to such Default or Event of Default as shall be requested by the
Majority Banks in accordance with ARTICLE VIII; PROVIDED HOWEVER, that
unless and until the Agent shall have received any such request from the
Majority Banks, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Banks.
9.06 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
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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.
9.07 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
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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.
9.08 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.
9.09 SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Banks and the Borrower and may be removed at any
time with or without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a successor Agent
which shall be a commercial bank organized or chartered under the laws of the
United States of America or of any State thereof and having combined capital
and surplus of at least $500,000,000. If no successor Agent shall have been
so appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the notice of resignation or the removal of the retiring
Agent, then the retiring Agent may, on behalf of the Banks, with the consent
of the Borrower, which shall not be unreasonably withheld, appoint a successor
Agent which shall be a commercial bank organized or chartered under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement and the other
Loan Documents. After any retiring Agent's resignation or removal hereunder
as Agent, the provisions of this ARTICLE IX shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement and the other Loan Documents.
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ARTICLE X
MISCELLANEOUS
10.01 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.
10.02 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or of any other Loan Document, and no consent to any departure
by the Borrower herefrom or therefrom, shall in any event be effective unless
the same shall be in writing, acknowledged by the Agent and signed or
consented to by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED, HOWEVER, that no amendment, waiver or consent shall,
unless in writing and signed by all the Banks, do any of the following:
(a) increase the Commitments of the Banks (other than by assignment)
or subject the Banks to any additional monetary obligation;
(b) reduce the principal of, or interest (other than any default
interest payable pursuant to SECTION 2.10) on, the Committed Loans
or any fees payable hereunder;
(c) extend the Final Maturity Date or any date fixed for any payment
of interest on, the Committed Loans or any fees payable hereunder;
(d) change the percentage of the Commitments or the percentage of the
aggregate unpaid principal amount of the Loans which shall be required
for the Banks or any of them to take any action hereunder;
(e) amend this SECTION 10.02; or
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(f) amend or waive the provisions of SECTION 5.01 or 5.02.
10.03 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.
10.04 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.
10.05 INDEMNITY.
(a) The Borrower agrees to indemnify, defend, reimburse and hold
harmless the Agent, each Bank and each of their Affiliates, and each of
their respective directors, officers, employees, agents and advisors
(each, an "INDEMNIFIED PARTY") from and against all claims, actions,
proceedings, suits, damages, losses, liabilities, costs and expenses,
including the reasonable fees and out-of-pocket expenses of counsel
(including the allocated cost of in-house counsel) which may be incurred
by or asserted against any Indemnified Party in connection with, or
arising out of, or relating to (i) any transaction or proposed
transaction (whether or not
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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.
10.06 RIGHT OF SET-OFF. Upon the occurrence and during the
continuation of any Event of Default, each Bank is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by such Bank to or for the credit or the account of the Borrower against
any and all of the Obligations, whether or not such Bank shall have made any
demand under this Agreement. Each Bank agrees promptly to notify the Borrower
after any such set-off and application made by such Bank; PROVIDED,
HOWEVER, that the failure to give such notice
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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.
10.07 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.
10.08 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
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the assignor Bank, shall have the rights and obligations of a Bank
hereunder and under each other Loan Document, and (ii) the assignor
Bank, to the extent that rights and obligations hereunder have been
assigned by it to the Assignee, shall be released from its obligations
hereunder and under the each other Loan Document.
(d) Any Bank may at any time sell to one or more banks or other
Persons (each of such Persons being herein called a "PARTICIPANT")
participating interests in any of the Loans, its Commitment or any other
interest of such Bank hereunder; PROVIDED, HOWEVER, that
(i) no participation contemplated in this SECTION 10.08(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;
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PROVIDED, HOWEVER, that no such pledge or assignment shall release
any Bank from its obligations hereunder.
10.09 CONFIDENTIALITY. Each Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality
of all non-public information provided to it by the Borrower or by the Agent
on the Borrower's behalf in connection with this Agreement or any other Loan
Document and agrees and undertakes that neither it nor any of its Affiliates
shall use any such information for any purpose or in any manner other than
pursuant to the terms contemplated by this Agreement. Any Bank may disclose
such information (a) at the request of any bank regulatory authority or in
connection with an examination of such Bank by any such authority; (b)
pursuant to subpoena or other court process; (c) when required to do so in
accordance with the provisions of any applicable law; (d) at the express
direction of any agency of any State of the United States of America or of any
other jurisdiction in which such Bank conducts its business; and (e) to such
Bank's affiliates, independent auditors, counsel and other professional
advisors. Notwithstanding the foregoing, the Borrower authorizes each Bank to
disclose to any Participant or Assignee and any prospective Participant and
Assignee such financial and other information in such Bank's possession
concerning the Borrower or its Subsidiaries which has been delivered to the
Banks pursuant to this Agreement or any other Loan Document or which has been
delivered to the Banks by the Borrower in connection with the Banks' credit
evaluation of the Borrower prior to entering into this Agreement; PROVIDED,
HOWEVER, that such Participant or Assignee or prospective Participant or
Assignee agrees in writing to such Bank to keep such information confidential
to the same extent required of the Banks hereunder.
10.10 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.
10.11 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.
10.12 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK; AND
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
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<PAGE>
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.
10.13 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.
10.14 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.
10.15 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.
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<PAGE>
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: _______________________
Title: ____________________
Address for notices:
2210 West Oaklawn Drive
Springdale, Arkansas 72764
Attention: Gerald Johnston
Facsimile No.: (501) 756-4061
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: _______________________
Title: ____________________
Address for notices:
Global Agency #5596
1455 Market Street
12th Floor
San Francisco, California 94103
Attention: Ann E. Mead
Telex No.: 372-6050
Answerback: BAGASFO
Facsimile No.: (415) 622-4894
Address for payments:
ABA #121-000-3585F
Attention: Global Agency #5596
1850 Gateway Boulevard
Concord, California 94520
Credit to Account number:
1233-6-15172
Reference: Tyson
THE CHASE MANHATTAN BANK N.A.,
as Co-Agent
By: _______________________
Title: ____________________
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<PAGE>
CHEMICAL BANK, as Co-Agent
By: _______________________
Title: ____________________
CONTINENTAL BANK N.A., as Co-Agent
By: _______________________
Title: ____________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
(RABOBANK NEDERLAND),
NEW YORK BRANCH, as Co-Agent
By: _______________________
Title: ____________________
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
By: _______________________
Title: ____________________
NATIONAL WESTMINSTER BANK Plc,
as Co-Agent
By: _______________________
Title: ____________________
NATIONSBANK OF TEXAS, N.A.,
as Co-Agent
By: _______________________
Title: ____________________
SOCIETE GENERALE,
SOUTHWEST AGENCY, as Co-Agent
By: _______________________
Title: ____________________
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<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: _______________________
Title: ____________________
THE BANK OF NOVA SCOTIA
By: _______________________
Title: ____________________
THE BANK OF TOKYO TRUST COMPANY
By: _______________________
Title: ____________________
THE CHASE MANHATTAN BANK N.A.
By: _______________________
Title: ____________________
CHEMICAL BANK
By: _______________________
Title: ____________________
CONTINENTAL BANK N.A.
By: _______________________
Title: ____________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
(RABOBANK NEDERLAND),
NEW YORK BRANCH
By: _______________________
Title: ____________________
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<PAGE>
CREDIT LYONNAIS
NEW YORK BRANCH
By: _______________________
Title: ____________________
CREDIT SUISSE
By: _______________________
Title: ____________________
THE DAI-ICHI KANGYO BANK LTD
NEW YORK BRANCH
By: _______________________
Title: ____________________
FIRST AMERICAN NATIONAL BANK
By: _______________________
Title: ____________________
THE FIRST NATIONAL BANK
OF CHICAGO
By: _______________________
Title: ____________________
THE FUJI BANK, LTD., HOUSTON AGENCY
By: _______________________
Title: ____________________
LTCB TRUST COMPANY
By: _______________________
Title: ____________________
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<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: _______________________
Title: ____________________
NATIONAL WESTMINSTER BANK Plc
By: _______________________
Title: ____________________
NATIONSBANK OF TEXAS, N.A.
By: _______________________
Title: ____________________
PNC BANK, NATIONAL ASSOCIATION
By: _______________________
Title: ____________________
THE SANWA BANK LTD,
DALLAS AGENCY
By: _______________________
Title: ____________________
SOCIETE GENERALE,
SOUTHWEST AGENCY
By: _______________________
Title: ____________________
THE SUMITOMO BANK, LTD.,
HOUSTON AGENCY
By: _______________________
Title: ____________________
87
<PAGE>
TORONTO DOMINION (TEXAS), INC.
By: _______________________
Title: ____________________
TRUST COMPANY BANK
By: _______________________
Title: ____________________
88
<PAGE>
AMENDMENT NO. 1
TO CREDIT AGREEMENT
This Amendment No. 1 to Credit Agreement (this "AMENDMENT") is entered
into as of June 8, 1994 among TYSON FOODS, INC., a Delaware corporation (the
"BORROWER"), the banks named on the signature pages hereof (the "BANKS"),
the Co-Agents named herein and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION as Agent for the Banks.
WHEREAS, the Borrower, the Banks, the Co-Agents named therein and the
Agent are parties to that certain Credit Agreement dated as of June 30, 1993
(the "CREDIT AGREEMENT"); and
WHEREAS, the Borrower, the Banks, the Co-Agents named herein and the
Agent desire to amend the Credit Agreement to provide for the release of the
Subsidiary Guaranties delivered pursuant thereto, to eliminate the Term Option
provided therein, to extend the date of availability of revolving Loans
thereunder and to change the rates of interest and fees payable thereunder;
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
Unless otherwise defined in this Amendment, defined terms used herein
shall have the meanings assigned to such terms in the Credit Agreement.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
SECTION 1. ELIMINATION OF SUBSIDIARY GUARANTIES.
(a) Other than for purposes of SECTION 5.01 of the Credit
Agreement the definition of "LOAN DOCUMENTS" contained in SECTION
1.01 of the Credit Agreement is hereby amended to read as follows:
"'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."
(b) (i) Other than for purposes of SECTION 5.01 of the
Credit Agreement, the definition of "LOAN PARTIES"
<PAGE>
contained in SECTION 1.01 of the Credit Agreement is hereby
deleted.
(ii) All references to "Loan Parties" contained in the
Credit Agreement (other than in SECTION 5.01 thereof) are hereby
replaced with references to "the Borrower" and all appropriate
conforming grammatical changes are hereby made.
(c) (i) Other than for purposes of SECTION 5.01 of the
Credit Agreement, the definition of "SUBSIDIARY GUARANTY"
contained in SECTION 1.01 of the Credit Agreement is hereby
deleted.
(ii) SECTION 6.14 of the Credit Agreement is hereby
deleted.
(iii) PARAGRAPH (j) of SECTION 8.01 of the Credit
Agreement is hereby deleted and present PARAGRAPHS (k) and (l)
of SECTION 8.01 of the Credit Agreement are hereby relettered as
PARAGRAPHS (j) and (k), respectively.
SECTION 2. EXTENSION OF COMMITMENT AVAILABILITY.
The definition of "COMMITMENT TERMINATION DATE" contained in SECTION
1.01 of the Credit Agreement is hereby amended to read as follows:
"'COMMITMENT TERMINATION DATE' means May 31, 1995."
SECTION 3. CHANGE IN RATES OF INTEREST AND FEES.
(a) (i) The definition of "DEBT RATING" contained in
SECTION 1.01 of the Credit Agreement is hereby deleted.
(ii) SECTION 6.10 of the Credit Agreement is hereby
amended by (A) adding the word "and" at the end of PARAGRAPH (d)
thereof, (B) deleting PARAGRAPH (e) thereof and (C) relettering
PARAGRAPH (f) thereof as PARAGRAPH (e).
(b) The definitions of "LEVEL I STATUS", "LEVEL II STATUS",
"LEVEL III STATUS", and "LEVEL IV STATUS", contained in SECTION
1.01 of the Credit Agreement are hereby deleted.
(c) SECTION 2.09 of the Credit Agreement is hereby amended to
read as follows:
"2.09 INTEREST.
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<PAGE>
(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 .18%.
(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.
(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)."
(d) SECTION 3.01 of the Credit Agreement is hereby amended to
read as follows:
"3.01 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 .07% times such Bank's
Commitment (regardless of utilization).
(ii) The facility fee shall accrue from
the Closing Date to the Commitment Termination Date
and be payable quarterly in arrears on the last
Business Day of each calendar quarter commencing
with the first calendar quarter ending after the
Closing Date and on the Commitment Termination 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."
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<PAGE>
SECTION 4. AMENDMENTS TO COVENANTS.
(a) SECTION 6.02 of the Credit Agreement is hereby amended by
adding at the end thereof a proviso reading as follows:
"; PROVIDED, HOWEVER, that, other than in connection with
the acquisition of WLR Foods, Inc., no proceeds of any Loan
hereunder may 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."
(b) PARAGRAPH (c) of SECTION 7.05 of the Credit Agreement is
hereby amended to read as follows:
"(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"
(c) SECTION 7.15 of the Credit Agreement is hereby amended to
read as follows:
"7.15 FINANCIAL COVENANTS.
(a) INTEREST COVERAGE RATIO. The Borrower
shall not permit, at any time during any Measurement Period,
the ratio of (i) EBIT of the Borrower and its consolidated
Subsidiaries to (ii) Interest Expense of the Borrower and
its consolidated Subsidiaries to be less than 2.00 to 1.
(b) DEBT RATIO. The Borrower shall not
permit at any time the Debt Ratio to be greater than .65 to
1."
(d) SCHEDULE 6.09 to the Credit Agreement is hereby amended to
read as set forth in SCHEDULE 6.09 to this Amendment.
ARTICLE III
RELEASE OF SUBSIDIARY GUARANTIES
The Agent and the Banks hereby unconditionally release all guaranties
heretofore delivered by the Subsidiaries of the Borrower pursuant to SECTION
5.01(g) and SECTION 6.14 of the Credit Agreement prior to the effectiveness
of this Amendment.
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<PAGE>
ARTICLE IV
TERMINATION OF TERM OPTION
The Borrower hereby permanently terminates its right to exercise the
Term Option in accordance with CLAUSE (ii) of SECTION 2.01(b).
ARTICLE V
SUBSTITUTION OF BANKS
(a) Immediately prior to the effectiveness of this Amendment,
certain Banks will deliver a letter addressed to the Agent and the
Borrower confirming that as of the date of this Amendment they will no
longer be parties to the Credit Agreement. Certain other banks, by
executing and delivering a counterpart of this Amendment, each agrees to
become a party to the Credit Agreement as a Bank with a Commitment in
the amount set forth in SCHEDULE 1.01(a) to this Amendment and to
perform all of the obligations as a Bank under the Credit Agreement as
if an original signatory thereto.
(b) All Banks signatories to this Amendment which are parties to
the Credit Agreement prior to the effectiveness of this Amendment
hereby agree to the changes in the identities of the Banks and further
agree that their Commitments after the effective date of this Amendment
will be as set forth in SCHEDULE 1.01(a) to this Amendment.
(c) To reflect the changes in the identities and Commitments of
the Banks, SCHEDULE 1.01(a) of the Credit Agreement is hereby amended
to read as set forth in SCHEDULE 1.01(a) to this Amendment.
(d) After giving effect to this Amendment, "CO-AGENTS" shall
mean the Banks listed under the heading "Co-Agents" on the signature
pages of this Amendment.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
(a) (i) the execution and delivery of this Amendment have been
duly authorized by all necessary corporate action; and (ii) do not
violate any Requirement of Law nor conflict with or result in the breach
of any Contractual Obligation binding on the Borrower; and
-5-
<PAGE>
(b) after giving effect to this Amendment, the representations
and warranties of the Borrower contained in ARTICLE IV of the Credit
Agreement (except for representations and warranties relating to a
particular point in time) and in each other Loan Document are true and
correct in all material respects as if made on and as of the date of
this Amendment and no Default or Event of Default has occurred and is
continuing.
ARTICLE VII
EFFECTIVENESS
(a) This Amendment shall become effective (and the facility fee
shall commence accruing at the rate specified in SECTION 3.01 of the
Credit Agreement as amended by SECTION 3(d) of this Amendment) as of
the date first above written when the Agent has received (i)
counterparts hereof executed by the Borrower, all the Banks, and the
Agent and (ii) copies of the resolutions of the Board of Directors of
the Borrower authorizing the execution and delivery of this Amendment
and the performance of the transactions contemplated hereby, certified
by the Secretary or an Assistant Secretary of the Borrower.
(b) Upon the effectiveness of this Amendment (i) each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to the
Credit Agreement as amended hereby and (ii) each reference in each other
Loan Document to the Credit Agreement shall mean and be a reference to
the Credit Agreement as amended hereby.
(c) Except as specifically amended above, the Credit Agreement
and each other Loan Document shall remain in full force and effect.
(d) The execution, delivery, and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of
any right, power, or remedy of any Bank or the Agent under the Credit
Agreement or any of the other Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents.
ARTICLE VIII
MISCELLANEOUS
(a) This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which
when executed and delivered shall
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<PAGE>
be deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
(b) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the date first
above written.
TYSON FOODS, INC.
By: _______________________
Title: ____________________
Address for notices:
2210 West Oaklawn Drive
Springdale, Arkansas 72764
Attention: Gerald Johnston
Facsimile No.: (501) 756-4061
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: _______________________
Title: ____________________
Address for notices:
Global Agency #5596
1455 Market Street
12th Floor
San Francisco, California 94103
Attention: Ann E. Mead
Telex No.: 372-6050
Answerback: BAGASFO
Facsimile No.: (415) 622-4894
Address for payments:
ABA #121-000-3585F
Attention: Global Agency #5596
1850 Gateway Boulevard
Concord, California 94520
Credit to Account number:
1233-6-15172
Reference: Tyson
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<PAGE>
THE CHASE MANHATTAN BANK N.A.,
as Co-Agent
By: _______________________
Title: ____________________
CHEMICAL BANK, as Co-Agent
By: _______________________
Title: ____________________
CONTINENTAL BANK N.A., as Co-Agent
By: _______________________
Title: ____________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
(RABOBANK NEDERLAND),
NEW YORK BRANCH, as Co-Agent
By: _______________________
Title: ____________________
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
By: _______________________
Title: ____________________
NATIONAL WESTMINSTER BANK Plc,
as Co-Agent
By: _______________________
Title: ____________________
-8-
<PAGE>
NATIONSBANK OF TEXAS, N.A.,
as Co-Agent
By: _______________________
Title: ____________________
SOCIETE GENERALE,
SOUTHWEST AGENCY, as Co-Agent
By: _______________________
Title: ____________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: _______________________
Title: ____________________
THE BANK OF NOVA SCOTIA
By: _______________________
Title: ____________________
THE BANK OF TOKYO TRUST COMPANY
By: _______________________
Title: ____________________
THE CHASE MANHATTAN BANK N.A.
By: _______________________
Title: ____________________
CHEMICAL BANK
By: _______________________
Title: ____________________
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<PAGE>
CONTINENTAL BANK N.A.
By: _______________________
Title: ____________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
(RABOBANK NEDERLAND),
NEW YORK BRANCH
By: _______________________
Title: ____________________
CREDIT LYONNAIS
NEW YORK BRANCH
By: _______________________
Title: ____________________
CREDIT SUISSE
By: _______________________
Title: ____________________
THE DAI-ICHI KANGYO BANK LTD
NEW YORK BRANCH
By: _______________________
Title: ____________________
FIRST AMERICAN NATIONAL BANK
By: _______________________
Title: ____________________
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<PAGE>
THE FIRST NATIONAL BANK
OF CHICAGO
By: _______________________
Title: ____________________
THE FUJI BANK, LTD., HOUSTON AGENCY
By: _______________________
Title: ____________________
LTCB TRUST COMPANY
By: _______________________
Title: ____________________
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: _______________________
Title: ____________________
NATIONAL WESTMINSTER BANK Plc
By: _______________________
Title: ____________________
NATIONSBANK OF TEXAS, N.A.
By: _______________________
Title: ____________________
PNC BANK, NATIONAL ASSOCIATION
By: _______________________
Title: ____________________
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<PAGE>
THE SANWA BANK LTD,
DALLAS AGENCY
By: _______________________
Title: ____________________
SOCIETE GENERALE,
SOUTHWEST AGENCY
By: _______________________
Title: ____________________
THE SUMITOMO BANK, LTD.,
HOUSTON AGENCY
By: _______________________
Title: ____________________
TORONTO DOMINION (TEXAS), INC.
By: _______________________
Title: ____________________
TRUST COMPANY BANK
By: _______________________
Title: ____________________
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