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As filed with the Securities and Exchange Commission on March 22, 1995
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
TYSON FOODS, INC.
(Exact name of registrant as specified in its charter)
Delaware 71-0225165
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
2210 West Oaklawn Drive Gerald Johnston
Springdale, Arkansas 72762-6999 2210 West Oaklawn Drive
(501) 290-4000 Springdale, Arkansas 72762-6999
(Address, including zip code, and (501) 290-4000
telephone number, (Name, address, including zip code,
including area code, of and telephone
registrant's principal executive number, including area code, of
offices) agent for service)
Copies of communications to:
Les R. Baledge, Esq. Richard D. Truesdell, Jr., Esq.
Jeffrey J. Gearhart, Esq. Davis Polk & Wardwell
Rose Law Firm, a Professional 450 Lexington Avenue
Association New York, New York 10017
120 East Fourth Street (212) 450-4000
Little Rock, Arkansas 72201
(501) 375-9131
Approximate date of commencement of proposed sale to public: From
time to time after the effective date of the Registration Statement, as
determined in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.[ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.[x]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Unit(1) Price(1) Registration Fee
<S> <C> <C> <C> <C>
Debt Securities $500,000,000(2)(3) 100% $500,000,000 $172,415
<FN>
(1) Estimated solely for the purpose of calculating the
registration fee.
(2) Or, if any Debt Securities are issued at original discount,
such greater principal amount as shall result in aggregate
proceeds of $500,000,000.
(3) Or, if any Debt Securities are issued with a principal
amount denominated in a foreign currency or composite
currencies, such principal amount as shall result in an
aggregate initial offering price which is the equivalent of
$500,000,000 at the time of initial offering.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until
the Registration Statement shall become effective on such date as the
Commission, acting pursuant to Section 8(a), may determine.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE
ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY
SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 22, 1995
PROSPECTUS
$500,000,000
TYSON FOODS, INC.
Debt Securities
Tyson Foods, Inc. (the "Company") intends to issue from time
to time debt securities (the "Debt Securities"), which will be
direct, unsecured obligations of the Company and offered to the
public on terms determined by market conditions at the time of
sale. The Company may sell Debt Securities for proceeds of up to
$500,000,000, or the equivalent thereof in one or more foreign
currencies or composite currencies, (i) directly to purchasers,
(ii) through agents designated from time to time, (iii) to
dealers, or (iv) through underwriters or a group of underwriters.
The Debt Securities may be issued in one or more series with
the same or various maturities at or above par or with an
original issue discount. The specific designation, aggregate
principal amount, authorized denominations, purchase price,
maturity, rate (or method of calculation) and time of payment of
any interest, any terms for redemption or repurchase or
conversion, the currency or composite currency in which the Debt
Securities shall be denominated or payable, any listing on a
securities exchange, whether the Debt Securities will be issued
in the form of a global security or securities, or other specific
terms of the Debt Securities in respect of which this Prospectus
is being delivered ("Offered Securities") are set forth in the
accompanying supplement to the Prospectus (the "Prospectus
Supplement"), together with the terms of offering of the Offered
Securities. Unless otherwise indicated in the Prospectus
Supplement, the Company does not intend to list any of the Debt
Securities on a national securities exchange. See "Plan of
Distribution."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March __, 1995.
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No person has been authorized to give any information or to
make any representations not contained or incorporated by
reference in this Prospectus or the accompanying Prospectus
Supplement and, if given or made, such information or
representation must not be relied upon as having been authorized
by the Company or any agent, dealer or underwriter. Neither the
delivery of this Prospectus or the accompanying Prospectus
Supplement nor any sale made hereunder or thereunder shall, under
any circumstances, create any implication that the information
contained herein or in the accompanying Prospectus Supplement is
correct as of any date subsequent to the date hereof or thereof
or that there has been no change in the affairs of the Company
since the date hereof or thereof. Neither this Prospectus nor
the accompanying Prospectus Supplement constitutes an offer to
sell or solicitation of an offer to buy Debt Securities in any
jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or
solicitation is not qualified to do so or to any person to whom
it is unlawful to make such offer or solicitation.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549 and at the following
regional offices of the Commission: Seven World Trade Center,
Suite 1300, New York, New York 10048, and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such material can be obtained by mail at prescribed rates from
the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549.
This Prospectus constitutes a part of a Registration
Statement on Form S-3 (the "Registration Statement") filed by the
Company with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus and the
accompanying Prospectus Supplement omit certain of the
information contained in the Registration Statement in accordance
with the rules and regulations of the Commission. Reference is
hereby made to the Registration Statement and related exhibits
for further information with respect to the Company and the Debt
Securities. Statements contained herein concerning the
provisions of any document are not necessarily complete and, in
each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in
its entirety by such reference.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with
the Commission are incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended October 1, 1994; and
2. The Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1994.
All documents filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the
offering hereunder shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the
date of the filing of such documents.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of the Registration
Statement and this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or
this Prospectus.
The Company will provide, without charge, to each person to
whom this Prospectus is delivered, on the written or oral request
of any such person, a copy of any or all of the documents which
have been incorporated herein by reference, other than exhibits
to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests should
be directed to Corporate Secretary, Tyson Foods, Inc., 2210 West
Oaklawn Drive, Springdale, Arkansas 72762-6999, telephone: (501)
290-4000.
THE COMPANY
Tyson Foods, Inc. and its various subsidiaries produce,
market and distribute a variety of food products consisting of
value-enhanced poultry; fresh and frozen poultry; value-enhanced
beef and pork products; fresh and frozen pork products; value-
enhanced seafood products; fresh and frozen seafood products; and
flour and corn tortillas, chips and other Mexican food-based
products. The Company also has live swine, animal feed and pet
food operations. The Company's integrated operations consist of
breeding and rearing chickens and hogs, harvesting seafood, as
well as the processing, further processing and marketing of these
food products. Additionally, the Company processes and markets
beef products.
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The Company's products are marketed and sold to national and
regional grocery chains, regional grocery wholesalers, clubs and
warehouse stores, military commissaries, industrial food
processing companies, national and regional chain restaurants or
their distributors, international export companies and domestic
distributors who service restaurants, foodservice operations such
as plant and school cafeterias, convenience stores, hospitals and
other vendors. Sales are made by the Company's sales staffs
located in Springdale, Arkansas, in regions throughout the United
States and in several foreign countries. Additionally, sales to
the United States military and a portion of sales to
international markets are made through independent brokers and
trading companies.
The Company commenced business in 1935, was incorporated in
Arkansas in 1947, and was reincorporated in Delaware in 1986.
The Company's executive offices are located at 2210 West Oaklawn
Drive, Springdale, Arkansas 72762-6999 and its telephone number
is (501) 290-4000.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to
fixed charges for the Company for each of the last five fiscal
years ended October 1, 1994 and for the three months ended
December 31, 1994. For the purposes of calculating the ratio of
earnings to fixed charges, "earnings" consist of income from
continuing operations before income taxes and fixed charges
(excluding capitalized interest). "Fixed charges" consist of (i)
interest on indebtedness, whether expensed or capitalized, but
excluding interest to fifty-percent-owned subsidiaries (ii) the
Company's proportionate share of interest of fifty-percent-owned
subsidiaries, (iii) that portion of rental expense the Company
believes to be representative of interest (one-third of rental
expense) and (iv) amortization of debt discount and expense.
Three Months Ended Fiscal Year Ended
December 31, 1994 1994 1993 1992 1991 1990
3.82 2.13 4.47 3.76 3.14 2.40
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of
the Debt Securities to refinance existing indebtedness, to
finance acquisitions, as opportunities may arise, and for other
general corporate purposes. Further details relating to the uses
of the net proceeds of any such offering will be set forth in the
applicable Prospectus Supplement. The Company expects to engage
in additional financing as needs arise.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated
as of ______________, 1995 (hereinafter referred to as the
"Indenture"), between the Company and The Chase Manhattan Bank,
N.A., as Trustee (hereinafter referred to as the "Trustee"). The
following statements are subject to the detailed provisions of
the Indenture, a copy of which is filed as an exhibit to the
Registration Statement and which is also available for inspection
at the office of the Trustee. Section references are to the
Indenture. The following summaries of certain provisions of the
Indenture do not purport to be complete, and wherever particular
provisions of the Indenture are referred to, such provisions,
including definitions of certain terms, are incorporated by
reference as part of such summaries or terms, which are qualified
in their entirety by such reference to the provisions of the
Indenture.
General
The Indenture does not limit the aggregate principal amount
of Debt Securities which may be issued thereunder and provides
that the Debt Securities may be issued from time to time in one
or more series. The Debt Securities will be direct, unsecured
and unsubordinated obligations of the Company and will rank
equally with any other unsecured and unsubordinated obligations
of the Company for borrowed money. Except as described under
"Certain Covenants," the Indenture does not limit other
indebtedness or securities which may be incurred or issued by the
Company or any of its subsidiaries or contain financial or
similar restrictions on the Company or any of its subsidiaries.
The Company's rights and the rights of its creditors, including
holders of Debt Securities, to participate in any distribution of
assets of any subsidiary upon the latter's liquidation or
reorganization or otherwise are effectively subordinated to the
claims of the subsidiary's creditors, except to the extent that
the Company or any of its creditors may itself be a creditor of
that subsidiary.
The Prospectus Supplement which accompanies this Prospectus
sets forth where applicable the following terms of and
information relating to the Offered Securities offered thereby:
(i) the designation of the Offered Securities; (ii) the aggregate
principal amount of the Offered Securities; (iii) the date or
dates on which principal of, and premium, if any, on the Offered
Securities is payable; (iv) the rate or rates at which the
Offered Securities shall bear interest, if any, or the method by
which such rate shall be determined, and the basis on which
interest shall be calculated if other than a 360-day year
consisting of twelve 30-day months, the date or dates from which
such interest will accrue and on which such interest will be
payable and the related record dates; (v) if other than the
offices of the Trustee, the place where the principal of and any
premium or interest on the Offered Securities will be payable;
(vi) any redemption, repayment or sinking fund provisions; (vii)
if other than denominations of $1,000 or multiples thereof, the
denominations in which the Offered Securities will be issuable;
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(viii) if other than the principal amount thereof, the portion of
the principal amount due upon acceleration; (ix) if other than
U.S. dollars, the currency or currencies (including composite
currencies) in which the Offered Securities are denominated or
payable; (x) whether the Offered Securities shall be issued in
the form of a global security or securities; (xi) any other
specific terms of the Offered Securities; and (xii) the identity
of any trustees, depositories, authenticating or paying agents,
transfer agents or registrars with respect to the Offered
Securities. (Section 2.3)
The Debt Securities will be issued either in certificated,
fully registered form, without coupons, or as global securities
under a book-entry system, as specified in the accompanying
Prospectus Supplement. See "--Book-Entry System."
Unless otherwise specified in the accompanying Prospectus
Supplement, principal and premium, if any, will be payable, and
the Debt Securities will be transferable and exchangeable without
any service charge, at the office of the Trustee. However, the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection with any such
transfer or exchange. (Sections 2.7, 4.1 and 4.2)
Unless otherwise specified in the accompanying Prospectus
Supplement, interest on any series of Debt Securities will be
payable on the interest payment dates set forth in the
accompanying Prospectus Supplement to the persons in whose names
the Debt Securities are registered at the close of business on
the related record date and will be paid, at the option of the
Company, by wire transfer or by checks mailed to such persons.
(Sections 2.7, 4.1 and 4.2)
If the Debt Securities are issued as Original Issue Discount
Securities (bearing no interest or interest at a rate which at
the time of issuance is below market rates) to be sold at a
substantial discount below their stated principal amount, the
federal income tax consequences and other special considerations
applicable to such Original Issue Discount Securities will be
generally described in the Prospectus Supplement.
Unless otherwise described in the accompanying Prospectus
Supplement, there are no covenants or provisions contained in the
Indenture which afford the holders of the Debt Securities
protection in the event of a highly leveraged transaction
involving the Company.
Book-Entry System
If so specified in the accompanying Prospectus Supplement,
Debt Securities of any series may be issued under a book-entry
system in the form of one or more global securities. Each global
security will be deposited with, or on behalf of, a depositary,
which, unless otherwise specified in the accompanying Prospectus
Supplement, will be The Depository Trust Company, New York, New
York (the "Depositary"). The global securities will be
registered in the name of the Depositary or its nominee.
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The Depositary has advised the Company that the Depositary
is a limited purpose trust company organized under the laws of
the State of New York, a "banking organization" within the
meaning of the New York banking law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of section 17A of the
Exchange Act. The Depositary was created to hold securities of
its participants and to facilitate the clearance and settlement
of securities transactions among its participants through
electronic book-entry changes in accounts of the participants,
thereby eliminating the need for physical movement of securities
certificates. The Depositary's participants include securities
brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations, some of whom
(and/or their representatives) own the Depositary. Access to the
Depositary's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a participant, either
directly or indirectly.
Upon the issuance of a global security in registered form,
the Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt
Securities represented by such global security to the accounts of
participants. The accounts to be credited will be designated by
the underwriters, dealers or agents, if any, or by the Company,
if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in the global
security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial
interests by participants in the global security will be shown
on, and the transfer of that ownership interest will be effected
only through, records maintained by such participants. The laws
of some jurisdictions may require that certain purchasers of
securities take physical delivery of such securities in
definitive form. Such laws may impair the ability to transfer
beneficial interest in a global security.
So long as the Depositary or its nominee is the registered
owner of a global security, it will be considered the sole owner
or holder of the Debt Securities represented by such global
security for all purposes under the Indenture. Except as set
forth below, owners of beneficial interests in such global
security will not be entitled to have the Debt Securities
represented thereby registered in their names, will not receive
or be entitled to receive physical delivery of certificates
representing the Debt Securities and will not be considered the
owners or holders thereof under the Indenture. Accordingly, each
person owning a beneficial interest in such global security must
rely on the procedures of the Depositary and, if such person is
not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a
holder under the Indenture. The Company understands that under
existing practice, in the event that the Company requests any
action of the holders or a beneficial owner desires to take any
action a holder is entitled to take, the Depositary would act
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upon the instructions of, or authorize, the participant to take
such action.
Payment of principal of, premium, if any, and interest on
Debt Securities represented by a global security will be made to
the Depositary or its nominee, as the case may be, as the
registered owner and holder of the global security representing
such Debt Securities. None of the Company, the Trustee, any
paying agent or registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in the global security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership
interests.
The Company has been advised by the Depositary that the
Depositary will credit participants' accounts with payments of
principal, premium, if any, or interest on the payment date
thereof in amounts proportionate to their respective beneficial
interests in the principal amount of the global security as shown
on the records of the Depositary. The Company expects that
payments by participants to owners of beneficial interests in the
global security held through such participants will be governed
by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers
registered in "street name," and will be the responsibility of
such participants.
A global security may not be transferred except as a whole
by the Depositary to a nominee or successor of the Depositary or
by a nominee of the Depositary to another nominee of the
Depositary. A global security representing all but not part of
the Debt Securities being offered hereby is exchangeable for Debt
Securities in definitive form of like tenor and terms if (i) the
Depositary notifies the Company that it is unwilling or unable to
continue as depositary for such global security or if at any time
the Depositary is no longer eligible to be or in good standing as
a clearing agency registered under the Exchange Act, and in
either case, a successor depositary is not appointed by the
Company within 90 days of receipt by the Company of such notice
or of the Company becoming aware of such ineligibility, or (ii)
the Company in its sole discretion at any time determines not to
have all of the Debt Securities represented by a global security
and notifies the Trustee thereof. A global security exchangeable
pursuant to the preceding sentence shall be exchangeable for Debt
Securities registered in such names and in such authorized
denominations as the Depositary for such global security shall
direct. (Section 2.7)
Certain Covenants
Restrictions on Liens. The Indenture provides that the
Company will not, and will not permit any Restricted Subsidiary
(as hereinafter defined) to, create, incur or suffer to exist any
mortgage or pledge, as security for any indebtedness, on or of
any shares of stock, indebtedness or other obligations of a
Subsidiary (as hereinafter defined) or any Principal Property (as
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hereinafter defined) of the Company or a Restricted Subsidiary,
whether such shares of stock, indebtedness or other obligations
of a Subsidiary or Principal Property is owned at the date of the
Indenture or thereafter acquired, unless the Company secures or
causes such Restricted Subsidiary to secure the outstanding Debt
Securities equally and ratably with all indebtedness secured by
such mortgage or pledge, so long as such indebtedness shall be so
secured. This covenant will not apply in the case of: (i) the
creation of any mortgage, pledge or other lien on any shares of
stock, indebtedness or other obligations of a Subsidiary or any
Principal Property acquired after the date of the Indenture
(including acquisitions by way of merger or consolidation) by the
Company or a Restricted Subsidiary contemporaneously with such
acquisition, or within 180 days thereafter, to secure or provide
for the payment or financing of any part of the purchase price
thereof, or the assumption of any mortgage, pledge or other lien
upon any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property acquired after the date of
the Indenture existing at the time of such acquisition, or the
acquisition of any shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property subject to
any mortgage, pledge or other lien without the assumption
thereof, provided that every such mortgage, pledge or lien
referred to in this clause (i) will attach only to the shares of
stock, indebtedness or other obligations of a Subsidiary or any
Principal Property so acquired and fixed improvements thereon;
(ii) any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any
Principal Property existing at the date of this Indenture; (iii)
any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any
Principal Property in favor of the Company or any Restricted
Subsidiary; (iv) any mortgage, pledge or other lien on Principal
Property being constructed or improved securing loans to finance
such construction or improvements; (v) any mortgage, pledge or
other lien on shares of stock, indebtedness or other obligations
of a Subsidiary or any Principal Property incurred in connection
with the issuance of tax-exempt governmental obligations; and
(vi) any renewal of or substitution for any mortgage, pledge or
other lien permitted by any of the preceding clauses (i) through
(v), provided, in the case of a mortgage, pledge or other lien
permitted under clause (i), (ii) or (iv), the indebtedness
secured is not increased nor the lien extended to any additional
shares of stock, indebtedness or other obligations of a
Subsidiary or any additional Principal Property. Notwithstanding
the foregoing, the Company or any Restricted Subsidiary may
create or assume liens in addition to those permitted by this
paragraph, and renew, extend or replace such liens, provided that
at the time of such creation, assumption, renewal, extension or
replacement, and after giving effect thereto, Exempted Debt (as
hereinafter defined) does not exceed 10% of Consolidated Net
Tangible Assets (as hereinafter defined). (Section 4.3)
Restrictions on Sale and Lease-Back Transactions. The
Indenture provides that the Company will not, and will not permit
any Restricted Subsidiary to, sell or transfer, directly or
indirectly, except to the Company or a Restricted Subsidiary, any
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Principal Property as an entirety, or any substantial portion
thereof, with the intention of taking back a lease of such
property, except a lease for a period of three years or less at
the end of which it is intended that the use of such property by
the lessee will be discontinued; provided that, notwithstanding
the foregoing, the Company or any Restricted Subsidiary may sell
any such Principal Property and lease it back for a longer period
(i) if the Company or such Restricted Subsidiary would be
entitled, pursuant to the provisions described above under "--
Restrictions on Liens," to create a mortgage on the property to
be leased securing Funded Debt (as hereinafter defined) in an
amount equal to the Attributable Debt (as hereinafter defined)
with respect to such sale and lease-back transaction without
equally and ratably securing the outstanding Debt Securities or
(ii) if (A) the Company promptly informs the Trustee of such
transaction, (B) the net proceeds of such transaction are at
least equal to the fair value (as determined by board resolution
of the Company) of such property and (C) the Company causes an
amount equal to the net proceeds of the sale to be applied to the
retirement, within 180 days after receipt of such proceeds, of
Funded Debt incurred or assumed by the Company or a Restricted
Subsidiary (including the Debt Securities); provided further
that, in lieu of applying all of or any part of such net proceeds
to such retirement, the Company may, within 75 days after such
sale, deliver or cause to be delivered to the applicable trustee
for cancellation either debentures or notes evidencing Funded
Debt of the Company (which may include the outstanding Debt
Securities) or of a Restricted Subsidiary previously
authenticated and delivered by the applicable trustee, and not
theretofore tendered for sinking fund purposes or called for a
sinking fund or otherwise applied as a credit against an
obligation to redeem or retire such notes or debentures, and an
officers' certificate (which will be delivered to the Trustee and
each paying agent and which need not contain the statements
prescribed by the second paragraph of Section 10.4 of the
Indenture) stating that the Company elects to deliver or cause to
be delivered such debentures or notes in lieu of retiring Funded
Debt as hereinabove provided. If the Company shall so deliver
debentures or notes to the applicable trustee and the Company
shall duly deliver such officers' certificate, the amount of cash
which the Company will be required to apply to the retirement of
Funded Debt under this provision of the Indenture shall be
reduced by an amount equal to the aggregate of the then
applicable optional redemption prices (not including any optional
sinking fund redemption prices) of such debentures or notes or,
if there are no such redemption prices, the principal amount of
such debentures or notes; provided, that in the case of
debentures or notes which provide for an amount less than the
principal amount thereof to be due and payable upon a declaration
of the maturity thereof, such amount of cash shall be reduced by
the amount of principal of such debentures or notes that would be
due and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant to
the terms of the indenture pursuant to which such debentures or
notes were issued. Notwithstanding the foregoing, the Company or
any Restricted Subsidiary may enter into sale and lease-back
transactions in addition to those permitted by this paragraph and
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without any obligation to retire any outstanding Debt Securities
or other Funded Debt, provided that at the time of entering into
such sale and lease-back transactions and after giving effect
thereto, Exempted Debt does not exceed 10% of Consolidated Net
Tangible Assets. (Section 4.4)
Certain Definitions
The term "Attributable Debt" as defined in the Indenture
means, as to any particular lease under which any Person is at
the time liable, other than a capital lease, and at any date as
of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such
lease during the initial term thereof as determined in accordance
with generally accepted accounting principles, discounted from
the last date of such initial term to the date of determination
at a rate per annum equal to the discount rate which would be
applicable to a capital lease with like term in accordance with
generally accepted accounting principles. The net amount of rent
required to be paid under any such lease for any such period
shall be the aggregate amount of rent payable by the lessee with
respect to such period after excluding amounts required to be
paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of
any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may
be so terminated. "Attributable Debt" means, as to a capital
lease under which any Person is at the time liable and at any
date as of which the amount thereof is to be determined, the
capitalized amount thereof that would appear on the face of a
balance sheet of such Person in accordance with generally
accepted accounting principles.
The term "Consolidated Net Tangible Assets" as defined in
the Indenture means the excess over the current liabilities of
the Company of all of its assets as determined by the Company and
as would be set forth in a consolidated balance sheet of the
Company and its Subsidiaries, on a consolidated basis, in
accordance with generally accepted accounting principles as of a
date within 90 days of the date of such determination, after
deducting goodwill, trademarks, patents, other like intangibles
and minority interests of others.
The term "Exempted Debt" as defined in the Indenture means
the sum, without duplication, of the following items outstanding
as of the date Exempted Debt is being determined:
(i) indebtedness of the Company and its Restricted Subsidiaries
incurred after the date of the Indenture and secured by liens
created, assumed or otherwise incurred or permitted to exist
pursuant to the provision described in the last sentence under "-
- -Certain Covenants--Restrictions on Liens" and (ii) Attributable
Debt of the Company and its Restricted Subsidiaries in respect of
all sale and lease-back transactions with regard to any Principal
Property entered into pursuant to the provision described in the
last sentence under "--Certain Covenants--Restrictions on Sale
and Lease-Back Transactions."
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The term "Funded Debt" as defined in the Indenture means all
indebtedness for money borrowed, including purchase money
indebtedness, having a maturity of more than one year from the
date of its creation or having a maturity of less than one year
but by its terms being renewable or extendible, at the option of
the obligor in respect thereof, beyond one year from its
creation.
The term "Principal Property" as defined in the Indenture
means (i) land, land improvements, buildings and associated
factory and laboratory equipment owned or leased pursuant to a
capital lease and used by the Company or a Restricted Subsidiary
primarily for processing, producing, packaging or storing its
products, raw materials, inventories or other materials and
supplies and located within the United States of America and
having an acquisition cost plus capitalized improvements in
excess of 1% of Consolidated Net Tangible Assets as of the date
of such determination, (ii) certain property referred to in the
Indenture and (iii) any asset held by Tyson Holding Company,
Inc., but shall not include any such property or assets described
in clauses (i), (ii) or (iii) that is financed through the
issuance of tax exempt governmental obligations, or any such
property or assets that has been determined by board resolution
of the Company not to be of material importance to the respective
businesses conducted by the Company or such Restricted
Subsidiary, effective as of the date such resolution is adopted.
The term "Restricted Subsidiary" as defined in the Indenture
means any Subsidiary organized and existing under the laws of the
United States of America and the principal business of which is
carried on within the United States of America which owns or is a
lessee pursuant to a capital lease of any Principal Property or
owns shares of capital stock or indebtedness of another
Restricted Subsidiary other than: (i) each Subsidiary the major
part of whose business consists of finance, banking, credit,
leasing, insurance, financial services or other similar
operations, or any combination thereof; and (ii) each Subsidiary
formed or acquired after the date of the Indenture for the
purpose of acquiring the business or assets of another person and
which does not acquire all or any substantial part of the
business or assets of the Company or any Restricted Subsidiary;
provided, however, the Board of Directors of the Company may
declare any such Subsidiary to be a Restricted Subsidiary
effective as of the date such resolution is adopted.
The term "Subsidiary" as defined in the Indenture means,
with respect to any Person, any corporation, association or other
business entity of which more than 50% of the outstanding Voting
Stock (as defined in the Indenture) is owned directly or
indirectly, by such Person and one or more other Subsidiaries of
such Person.
Restrictions on Consolidations, Mergers and Sales of Assets
The Indenture provides that the Company will not consolidate
with, merge with or into, or sell, convey, transfer, lease or
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otherwise dispose of all or substantially all of its property and
assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person
(other than a consolidation with or merger with or into a
Subsidiary) or permit any Person to merge with or into the
Company unless: (a) either (i) the Company will be the continuing
Person or (ii) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or that
acquired or leased such property and assets of the Company shall
be a corporation organized and validly existing under the laws of
the United States of America or any jurisdiction thereof and
shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company
on all of the Debt Securities and the Company shall have
delivered to the Trustee an opinion of counsel stating that such
consolidation, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent
provided for herein relating to such transaction have been
complied with; and (b) immediately after giving effect to such
transaction, no Default (as defined in the Indenture) shall have
occurred and be continuing. (Section 5.1)
Events of Default
An Event of Default, as defined in the Indenture and
applicable to Debt Securities, will occur with respect to the
Debt Securities of any series if: (a) the Company defaults in
the payment of the principal of any Debt Security of such series
when the same becomes due and payable at maturity, upon
acceleration, redemption, mandatory repurchase or otherwise; (b)
the Company defaults in the payment of interest on any Debt
Security of such series when the same becomes due and payable,
and such default continues for a period of 30 days; (c) the
Company defaults in the performance of or breaches any other
covenant or agreement of the Company in the Indenture with
respect to the Debt Securities of such series and such default or
breach continues for a period of 30 consecutive days after
written notice to the Company by the Trustee or to the Company
and the Trustee by the Holders (as defined in the Indenture) of
25% or more in aggregate principal amount of the Debt Securities
of such series; (d) an involuntary case or other proceeding
shall be commenced against the Company with respect to it or its
debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered
against the Company under the federal bankruptcy laws as now or
hereafter in effect; (e) the Company (i) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (ii)
consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Company or for all or substantially
all of the property and assets of the Company or (iii) effects
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<PAGE>
any general assignment for the benefit of creditors; or (f) any
other Events of Default set forth in the applicable Prospectus
Supplement occurs. (Section 6.1)
The Indenture provides that if an Event of Default described
in clauses (a), (b), (c) or (f) above (if such Event of Default
under clause (c) or (f) is with respect to one or more but not
all series of Debt Securities then outstanding) occurs and is
continuing, then, and in each and every such case, except for any
series of Debt Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Debt
Securities of each such series then outstanding under the
Indenture (each such series voting as a separate class) by notice
in writing to the Company (and to the Trustee if given by Hol
ders), may declare the entire principal (or, if the Debt
Securities of any such series are Original Issue Discount
Securities (as defined in the Indenture), such portion of the
principal amount as may be specified in the terms of such series
and set forth in the applicable Prospectus Supplement) of all
Debt Securities of all such series, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable. If an Event of Default described in clause (c) or (f)
occurs and is continuing with respect to all series of Debt
Securities then outstanding, then and in each and every such
case, unless the principal of all the Debt Securities shall have
already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of all the
Debt Securities then outstanding under the Indenture (treated as
one class), by notice in writing to the Company (and to the
Trustee if given by Holders), may declare the entire principal
(or, if any Debt Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in
the terms thereof and set forth in the applicable Prospectus
Supplement) of all the Debt Securities then outstanding and
interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in
clause (d) or (e) occurs and is continuing, then the principal
amount (or, if any Debt Securities are original Issue Discount
Securities, such portion of the principal as may be specified in
the terms thereof and set forth in the applicable Prospectus
Supplement) of all the Debt Securities then outstanding and
interest accrued thereon, if any shall be and become immediately
due and payable, without any notice or other action by any Holder
or the Trustee, to the full extent permitted by applicable law.
The provisions described in the paragraph above, however,
are subject to the condition that if, at any time after the
principal (or, if the Debt Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in
the terms thereof and set forth in the applicable Prospectus
Supplement) of the Debt Securities of any series (or of all the
Debt Securities, as the case may be) shall have been so declared
due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as
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<PAGE>
hereinafter provided, the Company will pay or will deposit with
the Trustee a sum sufficient to pay all matured installments of
interest upon all the Debt Securities of each such series (or of
all the Debt Securities, as the case may be) and the principal of
any and all Debt Securities of each such series (or of all the
Debt Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or yield to maturity (in the
case of Original Issue Discount Securities) specified in the Debt
Securities of each such series and set forth in the applicable
Prospectus Supplement to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or
bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Debt
Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided in the
Indenture, then and in every such case the Holders of a majority
in aggregate principal amount of all the Debt Securities of each
such series, or of all the Debt Securities, in each case voting
as a single class, then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect
to each such series (or with respect to all the Debt Securities,
as the case may be) and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment
will extend to or shall affect any subsequent default or shall
impair any right consequent thereon. For all purposes under the
Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions described above, then,
from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original
Issue Discount Securities will be deemed, for all purposes under
the Indenture, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due
and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount
Securities. (Section 6.2)
The Indenture contains a provision under which, subject to
the duty of the trustee during a default to act with the standard
of care required by law, (i) the Trustee may rely and will be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented
by the proper person, and the Trustee need not investigate any
fact or matter stated in the document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
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<PAGE>
such facts or matters as it may see fit; (ii) before the Trustee
acts or refrains from acting, it may require an officers'
certificate or an opinion of counsel, and the Trustee shall not
be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion; (iii) the Trustee may
act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care; (iv) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by the Indenture at the
request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits
to take in accordance with the direction of the Holders of a
majority in principal amount of the outstanding Debt Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under the
Indenture; and (vi) the Trustee may consult with counsel and the
written advice of such counsel or any opinion of counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon. (Section 7.2)
Subject to such provisions in the Indenture for the
indemnification of the Trustee and certain other limitations, the
Holders of at least a majority in aggregate principal amount of
the outstanding Debt Securities of each series affected (each
such series voting as a separate class) may direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on the Trustee; provided, that the Trustee may refuse
to follow any direction that conflicts with law or the Indenture,
that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the
rights of Holders not joining in the giving of such direction;
and provided further, that the Trustee may take any other action
it deems proper that is not inconsistent with any directions
received from Holders of Debt Securities pursuant to this
paragraph. (Section 6.5)
The Indenture provides that no Holder of any Debt Security
of any series may institute any proceeding, judicial or
otherwise, with respect to the Indenture or the Debt Securities
of such series, or for the appointment of a receiver or trustee,
or for any other remedy under the Indenture, unless: (i) such
Holder has previously given to the Trustee written notice of a
continuing Event of Default with respect to the Debt Securities
of such series; (ii) the Holders of at least 25% in aggregate
principal amount of outstanding Securities of such series shall
have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee
under the Indenture; (iii) such Holder or Holders have offered to
the Trustee indemnity reasonably satisfactory to the Trustee
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<PAGE>
against any costs, liabilities or expenses to be incurred in
compliance with such request; (iv) the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and (v) during such 60-
day period, the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities of such series have not
given the Trustee a direction that is inconsistent with such
written request. A Holder may not use the Indenture to prejudice
the rights of another Holder or to obtain a preference or
priority over such other Holder. (Section 6.6)
The Indenture contains a covenant that the Company will file
annually, not more than 90 days after the end of its fiscal year,
with the Trustee a certification from the principal executive
officer, principal financial officer or principal accounting
officer that a review has been conducted of the activities of the
Company and its Subsidiaries and the Company's and its
Subsidiaries' performance under the Indenture and that the
Company has complied with all conditions and covenants under the
Indenture. (Section 4.6)
Discharge, Defeasance and Covenant Defeasance
The Indenture provides that, except as provided below, the
Company may terminate its obligations under the Debt Securities
of any series and the Indenture with respect to Debt Securities
of such series if: (i) all Debt Securities of such series
previously authenticated and delivered (other than destroyed,
lost or stolen Debt Securities of such series that have been
replaced or Debt Securities of such series that are fully repaid
or Debt Securities of such series for whose payment money or
securities have theretofore been held in trust and thereafter
repaid to the Company, as provided in the Indenture) have been
delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder; or (ii) (A) the Debt
Securities of such series mature within one year or all of them
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with
the Trustee, as trust funds solely for the benefit of the Holders
of such Securities for that purpose, money or U.S. Government
Obligations or a combination thereof sufficient (in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment, to pay
principal of and interest on the Debt Securities of such series
to maturity or redemption, as the case may be, and to pay all
other sums payable by it under the Indenture, (C) no Default with
respect to the Debt Securities of such series has occurred and is
continuing on the date of such deposit, (D) such deposit does not
result in a breach or violation of, or constitute a default
under, the Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound and (E) the
Company delivers to the Trustee an officers' certificate and an
opinion of counsel, in each case stating that all conditions
precedent provided for in the Indenture relating to the
satisfaction and discharge of the Indenture have been complied
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with. With respect to the foregoing clause (i), only the
Company's obligations under Section 7.7 of the Indenture in
respect of the Debt Securities of such series shall survive.
With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 4.2,
7.7, 7.8, 8.5 and 8.6 of the Indenture in respect of the Debt
Securities of such series shall survive until the Debt Securities
are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7, 8.5 and 8.6 of the Indenture in
respect of the Debt Securities of such series shall survive.
After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's
obligations under the Debt Securities of such series and this
Indenture with respect to the Debt Securities of such series
except for those surviving obligations specified above. (Section
8.1)
The Indenture provides that, except as provided below, the
Company will be deemed to have paid and will be discharged from
any and all obligations in respect of the Debt Securities of any
series after the period specified in clause (D)(2)(z) of this
paragraph, and the provisions of the Indenture will no longer be
in effect with respect to the Debt Securities of such series, and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same; provided that the following
conditions shall have been satisfied: (A) the Company has
irrevocably deposited in trust with the Trustee as trust funds
solely for the benefit of the Holders for payment of the
principal of and interest on the Debt Securities of such series,
money or U.S. Government Obligations or a combination thereof
sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all
federal, state and local taxes or other charges and assessments
in respect thereof payable by the Trustee, to pay and discharge
the principal of and accrued interest on the outstanding Debt
Securities of such series to maturity or earlier redemption
(irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be; (B) such deposit will not result in
a breach or violation of, or constitute a default under, the
Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound; (C) no Default with
respect to the Debt Securities of such series shall have occurred
and be continuing on the date of such deposit or at any time
during the period specified in clause (D)(2)(z) below; (D) the
Company shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such
series will not recognize income, gain or loss for federal income
tax purposes as a result of the Company's exercise of its option
under this provision of the Indenture and will be subject to
federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had
not been exercised or (y) an opinion of counsel to the same
effect as the ruling described in clause (x) above and based on a
change in law and (2) an opinion of counsel to the effect that
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(x) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, as amended, (y) the Holders of
the Securities of such series have a valid first priority
security interest in the trust funds, and (z) after the passage
of 123 days following the deposit (except after one year
following the deposit, with respect to any trust funds for the
account of any Holder of the Securities of such series who may be
deemed to be an "insider" as to an obligor on the Securities of
such series for purposes of the United States Bankruptcy Code),
the trust funds will not be subject to the effect of Section 547
of the United States Bankruptcy Code or Section 15 of the New
York Debtor and Creditor Law in a case commenced by or against
the Company under either such statute, and either (I) the trust
funds will no longer remain the property of the Company (and
therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally) or (II) if a court were to rule
under any such law in any case or proceeding that the trust funds
remained in the possession of the Company, to the extent not paid
to such Holders, the Trustee will hold, for the benefit of such
Holders, a valid and perfected first priority security interest
in such trust funds that is not avoidable in bankruptcy or
otherwise (except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing
after the commencement of a case under such statute and the
Holders of the Securities of such series will be entitled to
receive adequate protection of their interests in such trust
funds if such trust funds are used in such case or proceeding;
(E) if the Debt Securities of such series are then listed on a
national securities exchange, the Company shall have delivered to
the Trustee an opinion of counsel to the effect that the
defeasance contemplated by this provision of the Indenture of the
Debt Securities of such series will not cause the Debt Securities
of such series to be delisted; and (F) the Company has delivered
to the Trustee an officers' certificate and an opinion of
counsel, in each case stating that all conditions precedent
provided for in the Indenture relating to the defeasance
contemplated by this provision of the Indenture of the Debt
Securities of such series have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day
(or one year) period referred to in clause (D)(2)(z) of this
paragraph, none of the Company's obligations under the Indenture
with respect to such series shall be discharged. Subsequent to
the end of such 123-day (or one year) period, the Company's
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 4.1,
4.2, 7.7, 7.8, 8.5 and 8.6 of the Indenture with respect to the
Debt Securities of such series shall survive until such Debt
Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.7, 8.5 and 8.6 of the
Indenture with respect to the Debt Securities of such series
shall survive. If and when a ruling from the Internal Revenue
Service or an opinion of counsel referred to in clause (D)(1) of
this paragraph is able to be provided specifically without regard
to, and not in reliance upon, the continuance of the Company's
obligations under Section 4.1 of the Indenture, then the
Company's obligations under such Section 4.1 of the Indenture
shall cease upon delivery to the Trustee of such ruling or
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opinion of counsel and compliance with the other conditions
precedent provided for in this provision of the Indenture
relating to the defeasance contemplated by this provision of the
Indenture. (Section 8.2)
The Indenture provides that the Company may omit to comply
with any term, provision or condition described under "--Certain
Covenants," and such omission shall be deemed not to be an Event
of Default, with respect to the outstanding Debt Securities of
any series if: (i) the Company has irrevocably deposited in trust
with the Trustee as trust funds solely for the benefit of the
Holders of the Securities of such series for payment of the
principal of and interest, if any, on the Debt Securities of such
series money or U.S. Government Obligations or a combination
thereof in an amount sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all
federal, state and local taxes or other charges and assessments
in respect thereof payable by the Trustee, to pay and discharge
the principal of and interest on the outstanding Debt Securities
of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as
the case may be; (ii) such deposit will not result in a breach or
violation of, or constitute a default under, the Indenture or any
other agreement or instrument to which the Company is a party or
by which it is bound; (iii) no Default with respect to the Debt
Securities of such series shall have occurred and be continuing
on the date of such deposit; (iv) the Company has delivered to
the Trustee an opinion of counsel to the effect that (A) the
creation of the defeasance trust does not violate the Investment
Company Act of 1940, as amended (B) the Holders of the Debt
Securities of such series have a valid first-priority security
interest in the trust funds, (C) such Holders will not recognize
income, gain or loss for federal income tax purposes as a result
of such deposit and covenant defeasance and will be subject to
federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit and
defeasance had not occurred and (D) after the passage of 123 days
following the deposit (except, with respect to any trust funds
for the account of any Holder of the Debt Securities of such
series who may be deemed to be an "insider" as to an obligor on
the Debt Securities of such series for purposes of the United
States Bankruptcy Code, the trust funds will not be subject to
the effect of Section 547 of the United States Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute,
and either (1) the trust funds will no longer remain the property
of the Company (and therefore will not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (2) if a
court were to rule under any such law in any case or proceeding
that the trust funds remained property of the Company, to the
extent not paid to such Holders, the Trustee will hold, for the
benefit of such Holders, a valid and perfected first priority
security interest in such trust funds that is not avoidable in
bankruptcy or otherwise (except for the effect of Section 552(b)
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<PAGE>
of the United States Bankruptcy Code on interest on the trust
funds accruing after the commencement of a case under such
statute), and the Holders of the Debt Securities of such series
will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in
such case or proceeding; (v) if the Debt Securities of such
series are then listed on a national securities exchange, the
Company shall have delivered to the Trustee an opinion of counsel
to the effect that the covenant defeasance contemplated by this
provision of the Indenture of the Debt Securities of such series
will not cause the Debt Securities of such series to be delisted;
and (vi) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel, in each case stating that
all conditions precedent provided for in the Indenture relating
to the covenant defeasance contemplated by this provision of the
Indenture of the Debt Securities of such series have been
complied with. (Section 8.3)
Modification of the Indenture
The Indenture provides that the Company and the Trustee may
amend or supplement the Indenture or the Debt Securities of any
series without notice to or the consent of any Holder: (1) to
cure any ambiguity, defect or inconsistency in the Indenture;
provided that such amendments or supplements shall not adversely
affect the interests of the Holders in any material respect;
(2) to comply with Article 5 of the Indenture; (3) to comply with
any requirements of the Commission in connection with the
qualification of the Indenture under the Trust Indenture Act of
1939, as amended; (4) to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee; (5) to establish
the form or forms or terms of Debt Securities of any series or of
the coupons appertaining to such Debt Securities as permitted by
the Indenture; (6) to provide for uncertificated Debt Securities
and to make all appropriate changes for such purpose; and (7) to
make any change that does not materially and adversely affect the
rights of any Holder. (Section 9.1)
The Indenture also provides that, without prior notice to
any Holders, the Company and the Trustee may amend the Indenture
and the Debt Securities of any series outstanding thereunder with
the written consent of the Holders of a majority in principal
amount of the outstanding Debt Securities of all series affected
by such supplemental indenture (all such series voting as one
class), and the Holders of a majority in principal amount of the
outstanding Debt Securities of all series affected thereby (all
such series voting as one class) by written notice to the Trustee
may waive future compliance by the Company with any provision of
the Indenture or the Debt Securities of such series.
Notwithstanding the foregoing provision, without the consent of
each Holder of the Debt Securities of each series affected
thereby, an amendment or waiver, including a waiver pursuant to
Section 6.4 of the Indenture, may not: (i) extend the stated
maturity of the principal of, or any installment of interest on,
such Holder's Debt Security, or reduce the principal amount
thereof or the rate of interest thereon (including any amount in
respect of original issue discount), or any premium payable with
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<PAGE>
respect thereto, or adversely affect the rights of such Holder
under any mandatory repurchase provision or any right of
repurchase at the option of such Holder, or reduce the amount of
the principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity thereof
pursuant to the Indenture or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency
in which, any Debt Security of such series or any premium or the
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
stated maturity thereof (or, in the case of redemption, on or
after the redemption date or, in the case of mandatory
repurchase, the date therefor); (ii) reduce the percentage in
principal amount of outstanding Debt Security of such series the
consent of whose Holders is required for any such supplemental
indenture, for any waiver of compliance with certain provisions
of the Indenture or certain Defaults and their consequences
provided for in the Indenture; (iii) waive a Default in the
payment of principal of or interest on, any Debt Security of such
series; (iv) cause any Debt Security of such series to be
subordinated in right of payment to any obligation of the
Company; (v) modify any of the provisions of this section of the
Indenture, except to increase any such percentage or to provide
that certain other provisions of the Indenture cannot be modified
or waived without the consent of the Holder of each outstanding
Debt Security of any series affected thereby. A supplemental
indenture which changes or eliminates any covenant or other
provision of the Indenture which has expressly been included
solely for the benefit of one or more particular series of Debt
Securities, or which modifies the rights of Holders of Debt
Security of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under the
Indenture of the Holders of Debt Securities of any other series
or of the coupons appertaining to such Debt Securities. It shall
not be necessary for the consent of the Holders under this
section of the Indenture to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof. After
an amendment, supplement or waiver under this section of the
Indenture becomes effective, the Company shall give to the
Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of
the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any
such supplemental indenture or waiver. (Section 9.2)
Governing Law
The Indenture and the Debt Securities will be governed by
the laws of the State of New York.
Concerning the Trustee
The Company and its subsidiaries maintain ordinary banking
relationships with The Chase Manhattan Bank, N.A. and its
affiliates and a number of other banks. The Chase Manhattan
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<PAGE>
Bank, N.A., and its affiliates along with a number of other banks
have extended credit facilities to the Company and its
subsidiaries.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through one or
more underwriters and also may sell Debt Securities directly to
other purchasers or through agents or dealers, or the Company may
sell Debt Securities through a combination of any such methods.
The distribution of the Debt Securities may be effected from
time to time in one or more transactions at a fixed price or
prices, which may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices
or at negotiated prices. Underwriters may sell Debt Securities
to or through dealers.
In connection with the sales of Debt Securities,
underwriters may receive compensation from the Company in the
form of discounts, concessions or commissions. Underwriters,
dealers and agents that participate in the distribution of Debt
Securities may be deemed to be underwriters, and any discounts or
commissions received by them and any profit on the resale of Debt
Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or
agent will be identified, and any such compensation will be
described, in the Prospectus Supplement.
Pursuant to agreements into which the Company may enter,
underwriters, dealers and agents who participate in the
distribution of Debt Securities may be entitled to
indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
Unless otherwise indicated in the Prospectus Supplement, the
Company does not intend to list any of the Debt Securities on a
national securities exchange. In the event the Debt Securities
are not listed on a national securities exchange, certain broker-
dealers may make a market in the Debt Securities, but will not be
obligated to do so and may discontinue any market making at any
time without notice. No assurance can be given that any broker-
dealer will make a market in the Debt Securities or as to the
liquidity of the trading market for the Debt Securities, whether
or not the Debt Securities are listed on a national securities
exchange. The Prospectus Supplement with respect to the Debt
Securities will state, if known, whether or not any broker-dealer
intends to make a market in the Debt Securities. If no such
determination has been made, the Prospectus Supplement will so
state.
The place and time of delivery for the Offered Securities in
respect of which this Prospectus is delivered will be set forth
in the Prospectus Supplement.
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<PAGE>
LEGAL MATTERS
The validity of the issuance of the Debt Securities offered
hereby will be passed upon for the Company by Rose Law Firm,
Little Rock, Arkansas, and for any underwriters or agents by
Davis Polk & Wardwell, New York, New York. Certain members of
the Rose Law Firm beneficially own shares of the Company's Class
A Common Stock, par value $.10 per share, having a market value
on March 15, 1995 of approximately $200,000.
EXPERTS
The consolidated financial statements of Tyson Foods, Inc.
incorporated by reference in the Company's Annual Report (Form 10-
K) for the year ended October 1, 1994, have been audited by Ernst
& Young LLP, independent auditors, as set forth in their reports
thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by
reference in reliance upon such reports given upon the authority
of such firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution*
Securities and Exchange Commission registration fee $172,415
Legal fees and expenses 90,000
Printing and engraving 20,000
Fees and expenses of Trustee 7,500
Accountant's fees and expenses 25,000
Rating Agencies' fees 135,000
Blue Sky qualification fees and expenses 10,000
Miscellaneous 15,000
Total $474,915
*All amounts except the Securities and Exchange Commission
registration fee and the Rating Agencies' fees are estimated.
Item 15. Indemnification of Directors and Officers
The Company's By-laws provide that the Company shall
indemnify and hold harmless its directors and officers to the
fullest extent legally permissible under and pursuant to any
procedure specified in the Delaware General Corporation Law
("DGCL") against all expenses, liabilities, and losses incurred
in connection with their service or status as directors and
officers. Such indemnification would also extend to liabilities
arising from actions taken by directors or officers when serving
at the request of the Company as a director or officer of another
corporation, or as its representative in a partnership, joint
venture or other enterprise.
25
<PAGE>
Section 145 of the DGCL, as currently in effect, sets forth
the indemnification rights of directors and officers of Delaware
corporations. Under such provision, a director or officer of a
corporation (i) shall be indemnified by the corporation for all
expenses of litigation or other legal proceedings when he is
successful on the merits or otherwise, (ii) may be indemnified by
the corporation for the expenses, judgments, fines and amounts
paid in settlement of such litigation (other than a derivative
suit) even if he is not successful on the merits if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation (and, in the
case of a criminal proceeding, had no reason to believe his
conduct was unlawful), and (iii) may be indemnified by the
corporation for expenses of a derivative suit (a suit by a
stockholder alleging a breach by a director or officer of a duty
owed to the corporation), even if he is not successful on the
merits, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, provided that no such indemnification may be made in
accordance with this clause (iii) if the director or officer is
adjudged liable to the corporation, unless and only to the extent
that a court determines that, despite such adjudication but in
view of all of the circumstances, he is fairly and reasonably
entitled to indemnification of such expenses. The
indemnification described in clauses (ii) and (iii) above shall
be made only upon a determination by (i) a majority of a quorum
of disinterested directors, (ii) independent legal counsel in a
written opinion or (iii) the stockholders, that indemnification
is proper because the applicable standard of conduct is met.
The effect of the indemnification provisions contained in
the Company's By-laws is to require the Company to indemnify its
directors and officers under circumstances where such
indemnification would otherwise be discretionary and to extend to
the Company's directors and officers the benefits of Delaware law
dealing with director and officer indemnification, as well as any
future changes which might occur under Delaware law in this area.
The Company's By-laws specify that the indemnification
rights granted thereunder are enforceable contract rights which
are not exclusive of any other indemnification rights that the
director or officer may have under an agreement, provision of
law, vote of stockholders or otherwise. As permitted by Section
145(g) of the DGCL, the Company's By-laws also authorize the
Company to purchase directors' and officers' insurance for the
benefit of its past and present directors and officers,
irrespective of whether the Company has the power to indemnify
such persons under Delaware law. The Company currently maintains
such insurance as allowed by these provisions.
The Company's By-laws also provide that expenses incurred by
a director or officer in defending a civil or criminal lawsuit or
proceeding arising out of actions taken in his official capacity,
or in certain other capacities, will be paid by the Company in
advance of the final disposition of the matter upon receipt of an
undertaking from the director or officer to repay the sum
advanced if it is ultimately determined that he is not entitled
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<PAGE>
to be indemnified by the Company pursuant to applicable
provisions of the DGCL.
As noted above, the Company's directors and officers have
certain indemnity rights under the Company's By-laws and the DGCL
and are protected from certain other liabilities by the Company's
existing directors' and officers' insurance. The Company has
also entered into supplemental indemnification agreements with
its directors and with certain officers designated by the Board
of Directors (collectively the "Indemnitees"), which broaden the
scope of indemnity that has traditionally been provided by the
Company to such persons under the terms of its By-laws and the
DGCL.
The indemnification agreements with the Indemnitees provide
that, subject to certain important exceptions, the Indemnitees
shall be indemnified to the fullest possible extent permitted by
law against any amount which they become legally obligated to pay
because of any act or omission or neglect or breach of duty.
Such amount includes all expenses (including attorneys' fees),
damages, judgments, costs and settlement amounts, actually and
reasonably incurred or paid by them in any action or proceeding,
including any action by or in the right of the Company, on
account of their service as a director or officer of the Company
or any subsidiary of the Company. The indemnification agreements
further provide that expenses incurred by the Indemnitees in
defending such actions, in accordance with the terms of the
agreements, shall be paid in advance, subject to the Indemnitees'
obligation to reimburse the Company in the event it is ultimately
determined that they are not entitled to be indemnified for such
expenses under any of the provisions of the indemnification
agreements.
No indemnification is provided under the indemnification
agreements on account of conduct which is adjudged to be
deliberately dishonest and material to establishing the liability
for which indemnification is sought. In addition, no
indemnification is provided if a final court adjudication shall
determine that such indemnification is not lawful, or in respect
of any suit in which judgment is rendered for an accounting of
profits made from a purchase or sale of securities of the Company
in violation of Section 16(b) of the Exchange Act, or of any
similar statutory provision, or on account of any remuneration,
personal profit or advantage which is adjudged to have been
obtained in violation of law. The indemnification agreements
also contain provisions designed to protect the Company from
unreasonable settlements or redundant legal expenditures.
The indemnification agreements also provide for contribution
by the Company, with certain exceptions, to amounts paid by the
Indemnitees in any situation in which the Company and such
individuals are jointly liable (or would be if the Company were
joined in the litigation) if for any reason indemnification is
not available. Such contribution would be based on the relative
benefits to the Company and the individuals of the transaction
from which liability arose, and on the relative fault in the
transaction of the Company and the individuals. This provision
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<PAGE>
could be applicable in the event a court found that
indemnification under the federal securities laws is against
public policy and thus not enforceable, as well as under state
laws.
The indemnification agreements provide for substantially
broader indemnity rights than those currently granted to the
directors and officers of the Company under the Company's By-
laws, which afforded directors and officers only those express
indemnification rights set forth in Section 145 of the DGCL.
They are not intended to deny or otherwise limit third party or
derivative suits against the Company or its directors or
officers. However, to the extent a director or officer were
entitled to indemnification or contribution thereunder, the
financial burden of a third party suit would be borne by the
Company, and the Company would not benefit from derivative
recoveries since the amount of such recoveries would be repaid to
the director or officer pursuant to the agreements.
Item 16. Exhibits
The following exhibits are filed as part of the Registration
Statement:
Exhibit No. Description
1 Form of Underwriting Agreement
4 Form of Indenture between the Company and
The Chase Manhattan Bank, N.A., as Trustee
5 Opinion of Rose Law Firm
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Rose Law Firm is contained in the
opinion included as Exhibit 5
24 Powers of Attorney
25 Statement of Eligibility of Trustee
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made of the securities registered hereby, a post-
effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this
registration statement;
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<PAGE>
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby further undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Springdale, State of Arkansas, on the 22nd day of
March, 1995.
TYSON FOODS, INC.
(Registrant)
By: /s/ Gerald Johnston
Gerald Johnston, Executive Vice President, Finance
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Don Tyson* Senior Chairman and March 22, 1995
- ------------- Chairman of the Board
Don Tyson
/s/ Leland E. Tollett President, March 22, 1995
- --------------------- Chief Executive Officer and
Leland E. Tollett Director
/s/ Donald E. Wray Chief Operating Officer March 22, 1995
- ------------------ and Director
Donald E. Wray
/s/ John H. Tyson President, March 22, 1995
- ----------------- Beef and Pork Division and Director
John H. Tyson
/s/ Shelby D. Massey* Director March 22, 1995
- --------------------
Shelby D. Massey
/s/ Joe F. Starr* Director March 22, 1995
- ----------------
Joe F. Starr
/s/ Neely Cassady* Director March 22, 1995
- -----------------
Neely Cassady
/s/ Fred S. Vorsanger* Director March 22, 1995
- ---------------------
Fred S. Vorsanger
/s/ Barbara Tyson* Director March 22, 1995
- -----------------
Barbara Tyson
/s/ Lloyd V. Hackley* Director March 22, 1995
- --------------------
Lloyd V. Hackley
/s/ Gerald Johnston Executive Vice President, March 22, 1995
- ------------------- Finance
Gerald Johnston (Principal Financial Officer)
/s/ Gary Johnson Corporate Controller March 22, 1995
- ---------------- (Chief Accounting Officer)
Gary Johnson
*By: /s/ Gerald Johnston
- -------------------------
Gerald Johnston, Attorney-in-Fact
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Tyson Foods, Inc.
Debt Securities
Underwriting Agreement
________ __, 199_
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Tyson Foods, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters
named in Schedule II hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives"),
the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the
indenture specified in Schedule I hereto (the "Indenture")
between the Company and the Trustee identified in such
Schedule (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein shall each be deemed to
refer to such firm or firms.
The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"),
a registration statement (the file number of which is set
forth in Schedule I hereto) on Form S-3, relating to certain
debt securities (the "Shelf Securities") to be issued from
time to time by the Company. The Company also has filed
with, or proposes to file with, the Commission pursuant to
Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration
statement as amended to the date of this Agreement is
hereinafter referred to as the "Registration Statement" and
the related prospectus covering the Shelf Securities in the
form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The
Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the
form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". Any reference
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<PAGE>
in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the
Commission pursuant to Rule 424 or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
"Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus
or the Prospectus, as the case may be; and any reference to
"amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to
refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the
Basic Prospectus, any preliminary prospectus or the
Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as
follows:
1. The Company agrees to issue and sell the
Securities to the several Underwriters as hereinafter
provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject
to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective
principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto.
2. The Company understands that the several
Underwriters intend (i) to make a public offering of their
respective portions of the Securities and (ii) initially to
offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made in
immediately available funds to an account specified by the
Company at the time and place set forth in Schedule I hereto
(or at such other time and place on the same or such other
date, not later than the fifth or, if so indicated in
Schedule I hereto, third Business Day thereafter, as the
Representatives and the Company may agree in writing). The
time and date of such payment and delivery with respect to
the Securities are referred to herein as the Closing Date.
As used herein, the term "Business Day" means any day other
than a day on which banks are permitted or required to be
closed in New York City.
Payment for the Securities will be made against
delivery to, or to the Representatives for the respective
accounts of, such Underwriters of the Securities registered
in such names and in such denominations as the
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<PAGE>
Representatives shall request not later than two full
Business Days prior to the Closing Date with any transfer
taxes payable in connection with transfer to the
Underwriters duly paid by the Company. The Securities [will
be represented by one or more global certificates, which]
will be made available for inspection by the Representatives
by 1:00 P.M. on the Business Day prior to the Closing Date
at such place in New York City as the Representatives and
the Company shall agree.
4. The Company represents and warrants to each
Underwriter that:
(a) the Registration Statement has been declared
effective by the Commission under the Securities Act;
no stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to
the knowledge of the Company, threatened by the
Commission; and the Registration Statement and
Prospectus comply and, as amended or supplemented, if
applicable, will comply, in all material respects with
the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust
Indenture Act"); each part of the Registration
Statement filed with the Commission pursuant to the
Securities Act, when such part became effective, did
not contain, and each such part, as amended or
supplemented, if applicable, will not contain, any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; and the Prospectus did not, as of the date
of the Prospectus and any amendment or supplement
thereto, contain any untrue statement of a material
fact or omit to state any material fact required to be
stated therein or necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, and the Prospectus, as
amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; except that the foregoing representations
and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement
of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee, and (ii) statements
or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the
Representatives expressly for use therein;
(b) the documents incorporated by reference in
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<PAGE>
the Prospectus, when they were filed with the
Commission, conformed in all material respects to the
requirements of the Exchange Act, and none of such
documents, when they were filed with the Commission,
contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they are made, not misleading; and any
further documents so filed and incorporated by
reference in the Prospectus, when such documents are
filed with the Commission will conform in all material
respects to the requirements of the Exchange Act, as
applicable, and will not contain an untrue statement of
a material fact or omit to state a material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading;
(c) the financial statements, and the related
notes thereto, included or incorporated by reference in
the Registration Statement and the Prospectus present
fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and
the changes in their consolidated cash flows for the
periods specified; said financial statements have been
prepared in conformity with generally accepted
accounting principles applied on a consistent basis,
and the supporting schedules included or incorporated
by reference in the Registration Statement present
fairly the information required to be stated therein;
[and the pro forma financial information, and the
related notes thereto, included or incorporated by
reference in the Registration Statement and the
Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the
Exchange Act, as applicable;]
(d) since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, there has not been any material adverse
change, or any development known by the Company (after
diligent inquiry) involving a prospective material
adverse change, in or affecting the business, financial
position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth, incorporated by reference
or contemplated in the Prospectus; and except as set
forth, incorporated by reference or contemplated in the
Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries
taken as a whole;
(e) the Company has been duly incorporated and is
validly existing as a corporation in good standing
34
<PAGE>
under the laws of the state of its incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any
business, so as to require such qualification, other
than where the failure to be so qualified or in good
standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole;
(f) each of the Company's subsidiaries that
constitutes a "significant subsidiary" within the
meaning of Rule 1-02 of Regulation S-X of the
Commission (the "Material Subsidiaries") has been duly
incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation,
with power and authority (corporate and other) to own
its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of each jurisdiction
in which it owns or leases properties or conducts any
business so as to require such qualification, other
than where the failure to be so qualified or in good
standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole; and
all the outstanding shares of capital stock of each
Material Subsidiary of the Company have been duly
authorized and validly issued, are fully-paid and
non-assessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares) are
owned by the Company, directly or indirectly, free and
clear of all liens, encumbrances, security interests
and claims;
(g) this Agreement has been duly authorized,
executed and delivered by the Company;
(h) the Securities have been duly authorized, and
when issued and delivered pursuant to this Agreement,
will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding
obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly
authorized and upon effectiveness of the Registration
Statement will have been duly qualified under the Trust
Indenture Act and, when executed and delivered by the
Company and the Trustee, the Indenture will constitute
a valid and binding instrument of the Company; and the
Securities and the Indenture will conform to the
descriptions thereof in the Prospectus;
(i) neither the Company nor any of its Material
Subsidiaries is, or with the giving of notice or lapse
of time or both would be, in violation of or in default
35
<PAGE>
under, its Certificate of Incorporation or By-Laws or
any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company
or any of its Material Subsidiaries is a party or by
which it or any of them or any of their respective
properties is bound, except for violations and defaults
which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a
whole or to the holders of the Securities; the issue
and sale of the Securities and the performance by the
Company of all of its obligations under the Securities,
the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to
which the Company or any of its Material Subsidiaries
is a party or by which the Company or any of its
Material Subsidiaries is bound or to which any of the
property or assets of the Company or any of its
Material Subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the
Company or any applicable law or statute or any order,
rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, its
Material Subsidiaries or any of their respective
properties; and no consent, approval, authorization,
order, registration or qualification of or with any
such court or governmental agency or body is required
for the issue and sale of the Securities or the
consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except
such consents, approvals, authorizations, registrations
or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be
required under state securities or Blue Sky Laws in
connection with the purchase and distribution of the
Securities by the Underwriters;
(j) other than as set forth, incorporated by
reference or contemplated in the Prospectus, there are
no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the
Company or any of its Material Subsidiaries is or may
be a party or to which any property of the Company or
any of its Material Subsidiaries is or may be the
subject which, if determined adversely to the Company,
could individually or in the aggregate reasonably be
expected to have a material adverse effect on the
business, financial position, stockholders' equity or
results of operations of the Company and its
subsidiaries taken as a whole and, to the best of the
Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or
threatened by others; and there are no contracts or
36
<PAGE>
other documents of a character required to be filed as
an exhibit to the Registration Statement or required to
be described in the Registration Statement or the
Prospectus which are not filed or described as
required;
(k) each of the Company and its Material
Subsidiaries is in compliance with any and all
applicable foreign, federal, state and local laws and
regulations relating to the protection of human health
or the environment or imposing liability or standards
of conduct concerning any Hazardous Material
(collectively, "Environmental Laws"), except where such
non-compliance with Environmental Laws could not,
singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its
subsidiaries, taken as a whole. The term "Hazardous
Material" means (i) any "hazardous substance" as
defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended,
(ii) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (iii) any
petroleum or petroleum product, (iv) any
polychlorinated biphenyl, and (v) any pollutant or
contaminant or hazardous, dangerous, or toxic chemical,
material, waste or substance regulated under or within
the meaning of any other Environmental Law;
(l) each of the Company and its Material
Subsidiaries owns or possesses the right to use the
patents, patent licenses, trademarks, service marks,
trade names, copyrights and know-how (including trade
secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or
procedures) (collectively, the "Intellectual Property")
reasonably necessary to carry on the business conducted
by each as conducted on the date hereof, except to the
extent that the failure to own or possess the right to
use such Intellectual Property could not, singly or in
the aggregate, reasonably be expected to have a
material adverse effect on the Company and its
subsidiaries, taken as a whole, and, except as set
forth or incorporated by reference in the Registration
Statement and the Prospectus, neither the Company nor
any Material Subsidiary has received any notice of
infringement of or conflict with asserted rights of
others with respect to any Intellectual Property,
except for notices the content of which if accurate
could not, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(m) no labor disputes exist with employees of the
Company or of its Material Subsidiaries that could,
singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
37
<PAGE>
(n) Ernst & Young LLP, who have certified certain
financial statements of the Company and its
subsidiaries, are independent public accountants as
required by the Securities Act;
(o) the Company is not an "investment company" or
an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of
1940, as amended;
(p) the Company and each of its Material
Subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders of and from all
governmental and regulatory officials and bodies that
are necessary to own or lease and operate their
properties and conduct their businesses as described in
the Prospectus and that are material in relation to the
business of the Company and its subsidiaries taken as a
whole; and
(q) the Company has complied with all provisions
of Section 517.075, Florida Statutes (Chapter 92-198,
Laws of Florida).
5. The Company covenants and agrees with the
several Underwriters as follows:
(a) to file the Prospectus in a form approved by
the Representatives pursuant to Rule 424 under the
Securities Act not later than the Commission's close of
business on the second Business Day following the date
of determination of the offering price of the
Securities;
(b) to deliver to each Representative and counsel
for the Underwriters, at the expense of the Company, a
conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each
case including exhibits and documents incorporated by
reference therein and, during the period mentioned in
paragraph (f) below, to each of the Underwriters as
many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by
reference therein as the Representatives may reasonably
request;
(c) during the period mentioned in paragraph (f)
below, before filing any amendment or supplement to the
Registration Statement or Prospectus, to furnish to the
Representatives a copy of any proposed amendment or
supplement to the Registration Statement or the
Prospectus, for review;
(d) to file promptly, subject to the provisions
of paragraph (c) above, all reports and any definitive
proxy or information statements required to be filed by
38
<PAGE>
the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during
the period mentioned in paragraph (f) below;
(e) during the period mentioned in paragraph (f)
below, to advise the Representatives promptly, and to
confirm such advice in writing, (i) when any amendment
to the Registration Statement shall have become
effective, (ii) of any request by the Commission for
any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any
additional information, (iii) of the issuance by the
Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that
purpose, and (iv) of the receipt by the Company of any
notification with respect to any suspension of the
qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order
or notification and, if issued, to obtain as soon as
possible the withdrawal thereof;
(f) if, during such period after the first date
of the public offering of the Securities as in the
opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be
delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose
names and addresses the Representatives will furnish to
the Company) to which Securities may have been sold by
the Representatives on behalf of the Underwriters and
to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or
supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will
comply with law;
(g) to endeavor to qualify the Securities for
offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representatives shall
reasonably request and to continue such qualification
in effect so long as reasonably required for
distribution of the Securities and to pay all fees and
expenses (including fees and disbursements of counsel
to the Underwriters) reasonably incurred in connection
with such qualification and in connection with the
39
<PAGE>
determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as the
Representatives may designate; provided that the
Company shall not be required to file a general consent
to service of process in any jurisdiction or to qualify
as a foreign corporation in any jurisdiction in which
it is not so qualified;
(h) to make generally available to its security
holders and to the Representatives as soon as
practicable an earnings statement covering a period of
at least twelve months beginning with the first fiscal
quarter of the Company occurring after the effective
date of the Registration Statement, which shall satisfy
the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder;
(i) so long as the Securities are outstanding, to
furnish to the Representatives upon request copies of
all reports or other communications (financial or
other) furnished to holders of Securities, and copies
of any reports and financial statements furnished to or
filed with the Commission or any national securities
exchange;
(j) during the period beginning on the date
hereof and continuing to and including the Business Day
following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt
securities of or guaranteed by the Company which are
substantially similar to the Securities without prior
written consent of the Representatives; and
(k) to pay all costs and expenses incident to the
performance of its obligations hereunder, including
without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in
each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the
registration or qualification and determination of
eligibility for investment of the Securities under the
laws of such jurisdictions as the Underwriters may
designate (including fees of counsel for the
Underwriters and their disbursements), (iv) in
connection with the listing of the Securities on any
stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing
and duplication costs) and delivery of this Agreement,
the Indenture, the Preliminary and Supplemental Blue
Sky Memoranda and any Legal Investment Survey and the
furnishing to underwriters and dealers of copies of the
40
<PAGE>
Registration Statement and the Prospectus, including
mailing and shipping, as herein provided and (vii)
payable to rating agencies in connection with the
rating of the Securities (it being understood that,
except as expressly set forth in this Section 6(k) and
elsewhere in this Agreement, the Company shall have no
obligation to pay any costs and expenses of the
Underwriters).
6. The several obligations of the Underwriters
hereunder shall be subject to the following conditions:
(a) the representations and warranties of the
Company contained herein are true and correct on and as
of the Closing Date as if made on and as of the Closing
Date and the Company shall have complied with all
agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the
Closing Date;
(b) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable
time period prescribed for such filing by the rules and
regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by
the Commission; and all requests for additional
information on the part of the Commission shall have
been complied with to the satisfaction of the
Representatives;
(c) subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there
shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company
by any "nationally recognized statistical rating
organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which
information is given in the Prospectus there shall not
have been any material adverse change or any
development involving a prospective material adverse
change, in or affecting the business, financial
position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth, incorporated by reference
or contemplated in the Prospectus, the effect of which
in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus;
41
<PAGE>
(e) the Representatives shall have received on
and as of the Closing Date a certificate of an
executive officer of the Company satisfactory to the
Representatives to the effect set forth in subsections
(a) through (c) of this Section and to the further
effect that there has not occurred any material adverse
change, or any development involving a prospective
material adverse change, in or affecting the business,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as
a whole from that set forth or contemplated in the
Registration Statement;
(f)(1) Rose Law Firm, special counsel for the
Company, shall have furnished to the Representatives
their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representatives, to
the effect that:
(i) the Company has been duly
incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, with power and
authority (corporate and other) to own its
properties and conduct its business as described
in the Prospectus;
(ii) the Company has been duly qualified
as a foreign corporation for the transaction of
business and is in good standing under the laws of
each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to
require such qualification, other than where the
failure to be so qualified or in good standing
would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(iii) this Agreement has been duly
authorized, executed and delivered by the Company;
(iv) the Securities have been duly autho
rized, executed and delivered by the Company and,
when duly authenticated in accordance with the
terms of the Indenture and delivered to and paid
for by the Underwriters in accordance with the
terms of this Agreement, will constitute valid and
binding obligations of the Company entitled to the
benefits provided by the Indenture;
(v) the Indenture has been duly
authorized, executed and delivered by the Company
and constitutes a valid and binding instrument of
the Company; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vi) no consent, approval,
authorization, order, registration or
42
<PAGE>
qualification of or with any court or governmental
agency or body is required for the issue and sale
of the Securities or the consummation of the other
transactions contemplated by this Agreement or the
Indenture, except such consents, approvals,
authorizations, registrations or qualifications as
have been obtained under the Securities Act and
the Trust Indenture Act and as may be required
under state securities or Blue Sky laws in
connection with the purchase and distribution of
the Securities by the Underwriter;
(vii) the statements in the Prospectus
under "__________", "_________", "Description of
[Notes/Debentures]", "Description of Securities",
"Plan of Distribution" and "Underwriting", in the
Prospectus incorporated by reference from Item 3
of Part I of the Company's Annual Report on Form
10-K for the year ended ________ __, 199_, in the
Prospectus incorporated by reference from Item 1
of Part II of the Company's Quarterly Reports on
Form 10-Q, if any, filed since such Annual Report,
in the Prospectus incorporated by reference from
Item 5 of the Company's Current Reports on Form
8-K, if any, filed since such Annual Report, and
in the Registration Statement in Item 15, insofar
as such statements constitute a summary of the
legal matters, documents or proceedings referred
to therein, fairly present the information called
for with respect to such legal matters, documents
or proceedings; and
(viii) such counsel (A) is of the opinion
that each document incorporated by reference in
the Registration Statement and the Prospectus
(except for the financial statements included
therein as to which such counsel need express no
opinion) complied as to form when filed with the
Commission in all material respects with the
Exchange Act, (B) believes that (except for the
financial statements included therein as to which
such counsel need express no belief and except for
that part of the Registration Statement that
constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee and except
with respect to information contained in the
Registration Statement or the Prospectus relating
to any Underwriter furnished to the Company in
writing by such Underwriter through the
Representatives expressly for use therein) each
part of the registration statement filed with the
Commission pursuant to the Securities Act relating
to the Securities, when such part became
effective, did not contain an untrue statement of
a material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, (C) is of
43
<PAGE>
the opinion that the Registration Statement and
the Prospectus and any amendments and supplements
thereto (except for the financial statements
included therein as to which such counsel need
express no opinion) comply as to form in all
material respects with the requirements of the
Securities Act and (D) believes that (except for
the financial statements included therein as to
which such counsel need express no belief and
except for that part of the Registration Statement
that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee and except
with respect to information contained in the
Registration Statement or the Prospectus relating
to any Underwriter furnished to the Company in
writing by such Underwriter through the
Representatives expressly for use therein) the
Registration Statement, as amended on the date of
this Agreement, did not contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and that the Prospectus as amended or
supplemented, if applicable, does not contain any
untrue statement of a material fact or omit to
state a material fact necessary in order to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading.
In rendering such opinions, such counsel may
rely (A) as to matters involving the application of
laws other than the laws of the United States and the
States of Delaware and Arkansas, to the extent such
counsel deems proper and to the extent specified in
such opinion, if at all, upon an opinion or opinions
(reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable
laws; and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible
officers of the Company and certificates or other
written statements of officials of jurisdictions having
custody of documents respecting the corporate existence
or good standing of the Company. The opinion of such
counsel for the Company shall state that the opinion of
any such other counsel is in form satisfactory to such
counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon.
With respect to the matters to be covered in
subparagraph (xi) above, counsel may state their
opinion and belief is based upon their participation in
the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto but
is without independent check or verification except as
specified.
44
<PAGE>
(2) ______________, [General Counsel] of the
Company, shall have furnished to the Representatives
his written opinion, dated the Closing Date, in form
and substance satisfactory to the Representatives, to
the effect that:
(i) each of the Company's Material
Subsidiaries has been duly incorporated and is
validly existing as a corporation under the laws
of its jurisdiction of incorporation with power
and authority (corporate and other) to own its
properties and conduct its business as described
in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of
business and is in good standing under the laws of
each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to
require such qualification, other than where the
failure to be so qualified and in good standing
would not have a material adverse effect on the
Company and its subsidiaries taken as a whole; and
all of the outstanding shares of capital stock of
each Material Subsidiary have been duly and
validly authorized and issued, are fully paid and
non-assessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares)
are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances,
equities or claims;
(ii) to the best of such counsel's
knowledge after diligent inquiry, other than as
set forth, incorporated by reference or
contemplated in the Prospectus, there are no legal
or governmental proceedings pending or threatened
to which the Company or any of its Material
Subsidiaries is or may be a party or to which any
property of the Company or its Material
Subsidiaries is or may be the subject which, if
determined adversely to the Company or such
Material Subsidiaries, could individually or in
the aggregate reasonably be expected to have a
material adverse effect on the business, financial
position, stockholders' equity or results of
operations of the Company and its subsidiaries
taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or
threatened by others; and such counsel does not
know of any contracts or other documents of a
character required to be filed as an exhibit to
the Registration Statement or required to be
described in the Registration Statement or the
Prospectus which are not filed or described as
required;
(iii) neither the Company nor any of its
45
<PAGE>
Material Subsidiaries is, or with the giving of
notice or lapse of time or both would be, in
violation of or in default under, its Certificate
of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to
which the Company or any of its Material
Subsidiaries is a party or by which it or any of
them or any of their respective properties is
bound, except for violations and defaults which
individually and in the aggregate are not material
to the Company and its subsidiaries taken as a
whole or to the holders of the Securities; the
issue and sale of the Securities and the
performance by the Company of its obligations
under the Securities, the Indenture and this
Agreement and the consummation of the transactions
herein and therein contemplated will not conflict
with or result in a breach of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument known to
such counsel to which the Company or any of its
Material Subsidiaries is a party or by which the
Company or any of its Material Subsidiaries is
bound or to which any of the property or assets of
the Company or any of its Material Subsidiaries is
subject, nor will any such action result in any
violation of the provisions of the Certificate of
Incorporation, or the By-Laws of the Company or
any applicable law or statute or any order, rule
or regulation of any court or governmental agency
or body having jurisdiction over the Company, its
Material Subsidiaries or any of their respective
properties;
In rendering such opinions, such counsel may
rely (A) as to matters involving the application of
laws other than the laws of the United States and the
States of Delaware and Arkansas, to the extent such
counsel deems proper and to the extent specified in
such opinion, if at all, upon an opinion or opinions
(reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable
laws; and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible
officers of the Company and certificates or other
written statements of officials of jurisdictions having
custody of documents respecting the corporate existence
or good standing of the Company. The opinion of such
counsel for the Company shall state that the opinion of
any such other counsel is in form satisfactory to such
counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon.
(g) on the Closing Date, Ernst & Young LLP shall
46
<PAGE>
have furnished to the Representatives letters, dated
such date, in form and substance satisfactory to the
Representatives, containing statements and information
of the type customarily included in accountants
"comfort letters" to underwriters with respect to the
financial statements and certain financial information
contained in the Registration Statement and the
Prospectus;
(h) the Representatives shall have received on
and as of the Closing Date an opinion of Davis Polk &
Wardwell, counsel to the Underwriters, with respect to
the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably
request, and such counsel shall have received such
papers and information as they may reasonably request
to enable them to pass upon such matters; and
(i) on or prior to the Closing Date, the Company
shall have furnished to the Representatives such
further certificates and documents as the Represen
tatives shall reasonably request.
7. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the
legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted) caused
by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use
therein; provided that the foregoing indemnity with respect
to any preliminary prospectus shall not inure to the benefit
of any Underwriter (or to the benefit of any person control
ling such Underwriter) from whom the person asserting any
such losses, claims, damages or liabilities purchased
Securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) and, if required by
law, a copy of the Prospectus (as so amended or supple
mented) shall not have been furnished to such person at or
47
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prior to the written confirmation of the sale of such
Securities to such person.
Each Underwriter agrees, severally and not jointly
to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and each
person who controls the Company within the meaning of
Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with
reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in the
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect
of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such
indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person
may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemni
fying Person and the Indemnified Person and representation
of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees
and expenses shall be reimbursed as they are incurred. Any
such separate firm for the Underwriters and such control
persons of Underwriters shall be designated in writing by
the first of the named Representatives on Schedule I hereto
and any such separate firm for the Company, its directors,
its officers who sign the Registration Statement and such
control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected
without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff,
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<PAGE>
the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemni
fied Person for fees and expenses of counsel as contemplated
by the third sentence of this paragraph, the Indemnifying
Person agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request
and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior
to the date of such settlement. No Indemnifying Person
shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first
and second paragraphs of this Section 7 is unavailable to an
Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the
offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such
Securities (before deducting expenses) received by the
Company and the total underwriting discounts and the
commissions received by the Underwriters bear to the
aggregate public offering price of the Securities. The
relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information
49
<PAGE>
and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7,
in no event shall an Underwriter be required to contribute
any amount in excess of the amount by which the total price
at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of the
Securities set forth opposite their names in Schedule II
hereto, and not joint.
The indemnity and contribution agreements
contained in this Section 7 are in addition to any liability
which the Indemnifying Persons may otherwise have to the
Indemnified Persons referred to above.
The indemnity and contribution agreements
contained in this Section 7 and the representations and
warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment
for any of the Securities.
8. The parties hereto agree that names of the
Underwriters, the stabilization legend on the inside front
cover page of and the concessions referenced in the [third]
paragraph under the caption ["Underwriting"] in the
prospectus supplement specifically relating to the
Securities constitute the only information contained in the
Registration Statement and the Prospectus relating to any
Underwriter furnished to the Company in writing by such
50
<PAGE>
Underwriter through the Representatives expressly for use
therein, as such information is referred to in Sections
6(f)(1)(viii) and 7 hereof.
9. Notwithstanding anything herein contained,
this Agreement may be terminated in the absolute discretion
of the Representatives, by notice given to the Company, if
after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may
be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers,
Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, in the
judgment of the Representatives, makes it impracticable to
market the Securities on the terms and in the manner
contemplated in the Prospectus.
10. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Securities
which it or they have agreed to purchase under this
Agreement, and the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of
the aggregate principal amount of the Securities, the other
Underwriters shall be obligated severally in the proportions
that the principal amount of Securities set forth opposite
their respective names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite
the names of all such non-defaulting Underwriters, or in
such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on
such date; provided that in no event shall the principal
amount of Securities that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent
of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities
with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Securities to
be purchased, and arrangements satisfactory to the
Representatives and the Company for the purchase of such
Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any
51
<PAGE>
such case either the Representatives or the Company shall
have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or
refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if
for any reason the Company shall be unable to perform its
obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company
agrees to reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with
this Agreement or the offering of Securities.
12. This Agreement shall inure to the benefit of
and be binding upon the Company, the Underwriters, any
controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any
other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
13. Any action by the Underwriters hereunder may
be taken by the Representatives jointly or by the first of
the named Representatives set forth in Schedule I hereto
alone on behalf of the Underwriters, and any such action
taken by the Representatives jointly or by the first of the
named Representatives set forth in Schedule I hereto alone
shall be binding upon the Underwriters. All notices and
other communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the
Underwriters shall be given at the address set forth in
Schedule I hereto. Notices to the Company shall be given to
it at 2210 West Oaklawn Drive, Springdale, Arkansas 72762-
6999; Attention: Executive Vice President - Finance.
52
<PAGE>
14. This Agreement may be signed in counterparts,
each of which shall be an original and all of which together
shall constitute one and the same instrument. This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
Very truly yours,
TYSON FOODS, INC.
By:________________________
Name:
Title:
Accepted: ________ __, 199_
[LEAD MANAGER]
[CO-MANAGER]
Acting severally on behalf of
themselves and the several
Underwriters listed in Schedule II
hereto.
By: [LEAD MANAGER]
By: ________________________
Name:
Title:
53
<PAGE>
SCHEDULE I
Representatives: ___________________________________
Trustee:
Underwriting Agreement
dated: ____________________________________
Registration Statement
No.: 33-
Title of Securities: ____________________________________
Aggregate principal
amount:
$___________________________________
Purchase Price: __% of the principal amount of the
Securities, plus accrued interest,
if any, from _____________, 19__ to
the Closing Date.
Price to Public: ___% of the principal amount of the
Securities, plus accrued interest,
if any, from _____________, 199_.
Indenture: Indenture dated as of ______________
between the Company and ____________
___________ as Trustee.
Maturity: ____________________________________
Interest Rate: ____% per annum, accruing from
_______, 19__
Interest Payment Dates: ____________________________________
Optional Redemption
Provisions: ____________________________________
Sinking Fund Provisions:____________________________________
Other Provisions: ____________________________________
Closing Date and
Time of Delivery: ____________________________________
Closing Location: ____________________________________
Address for Notices
to Underwriters: ____________________________________
54
<PAGE>
SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
[Lead Manager]. . . . . . . . . . . . $
[Co-Manager]. . . . . . . . . . . . .
________________
Total: . . . . . . . . $
55
<PAGE>
TYSON FOODS, INC.
as Issuer
and
THE CHASE MANHATTAN BANK, N.A.
as Trustee
___________________________________
Indenture
Dated as of _________ __, 1995
___________________________________
56
<PAGE>
TABLE OF CONTENTS*
Page
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. 1
SECTION 1.2 Other Definitions. 8
SECTION 1.3 Incorporation by Reference of Trust
Indenture Act 8
SECTION 1.4 Rules of Construction 9
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating 9
SECTION 2.2 Execution and Authentication 10
SECTION 2.3 Amount Unlimited; Issuable in Series 12
SECTION 2.4 Denomination and Date of Securities;
Payments of Interest 15
SECTION 2.5 Registrar and Paying Agent;
Agents Generally 16
SECTION 2.6 Paying Agent to Hold Money in Trust 17
SECTION 2.7 Transfer and Exchange 17
SECTION 2.8 Replacement Securities 21
SECTION 2.9 Outstanding Securities 21
SECTION 2.10 Temporary Securities 22
SECTION 2.11 Cancellation 23
SECTION 2.12 CUSIP Numbers 23
SECTION 2.13 Defaulted Interest 23
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article 24
SECTION 3.2 Notice of Redemption; Partial
Redemptions 24
SECTION 3.3 Payment of Securities Called for
Redemption 26
SECTION 3.4 Exclusion of Certain Securities
from Eligibility for Selection
for Redemption 27
SECTION 3.5 Mandatory and Optional Sinking Funds 27
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities 30
SECTION 4.2 Maintenance of Office or Agency 32
SECTION 4.3 Negative Pledge 33
SECTION 4.4 Certain Sale and Lease-back Transactions 34
SECTION 4.5 Notice of Defaults 35
SECTION 4.6 Compliance Certificates; Reports 35
SECTION 4.7 Waiver of Stay, Extension or Usury Laws 37
57
<PAGE>
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. 37
SECTION 5.2 Successor Substituted 38
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default 38
SECTION 6.2 Acceleration 39
SECTION 6.3 Other Remedies 41
SECTION 6.4 Waiver of Past Defaults 41
SECTION 6.5 Control by Majority 42
SECTION 6.6 Limitation on Suits 42
SECTION 6.7 Rights of Holders to Receive Payment 43
SECTION 6.8 Collection Suit by Trustee 43
SECTION 6.9 Trustee May File Proofs of Claim 43
SECTION 6.10 Application of Proceeds 44
SECTION 6.11 Restoration of Rights and Remedies 45
SECTION 6.12 Undertaking for Costs 45
SECTION 6.13 Rights and Remedies Cumulative 45
SECTION 6.14 Delay or Omission Not Waiver 46
ARTICLE 7
TRUSTEE
SECTION 7.1 General 46
SECTION 7.2 Certain Rights of Trustee 46
SECTION 7.3 Individual Rights of Trustee 47
SECTION 7.4 Trustee's Disclaimer 48
SECTION 7.5 Notice of Default 48
SECTION 7.6 Reports by Trustee to Holders 48
SECTION 7.7 Compensation and Indemnity 49
SECTION 7.8 Replacement of Trustee 49
SECTION 7.9 Successor Trustee by Merger, Etc. 51
SECTION 7.10 Eligibility 51
SECTION 7.11 Money Held in Trust 51
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment 51
SECTION 8.2 Defeasance at Any Time 53
SECTION 8.3 Covenant Defeasance 55
SECTION 8.4 Application of Trust Money 57
SECTION 8.5 Repayment to Company 57
SECTION 8.6 Reinstatement 58
58
<PAGE>
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders 58
SECTION 9.2 With Consent of Holders 59
SECTION 9.3 Revocation and Effect of Consent 60
SECTION 9.4 Notation on or Exchange of Securities 61
SECTION 9.5 Trustee to Sign Amendments, Etc. 61
SECTION 9.6 Conformity with Trust Indenture Act 62
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939 62
SECTION 10.2 Notices 62
SECTION 10.3 Certificate and Opinion as to Conditions
Precedent 63
SECTION 10.4 Statements Required in Certificate or Opinion 64
SECTION 10.5 Evidence of Ownership 64
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar 65
SECTION 10.7 Payment Date Other Than a Business Day 65
SECTION 10.8 Governing Law 65
SECTION 10.9 No Adverse Interpretation of Other Agreements 65
SECTION 10.10 Successors 65
SECTION 10.11 Duplicate Originals 66
SECTION 10.12 Separability 66
SECTION 10.13 Table of Contents, Headings, Etc. 66
SIGNATURES
59
<PAGE>
INDENTURE, dated as of _________ __, 1995, between
TYSON FOODS, INC., a Delaware corporation, as the Company,
and The Chase Manhattan Bank, N.A., a national banking association, as
Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to
time of its debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the
terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Inden ture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities or of series thereof
and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Agent" means any Registrar, Paying Agent or Authenticating
Agent.
"Attributable Debt" means, as to any particular lease under which
any Person is at the time liable, other than a Capital Lease, and at any
date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during
the initial term thereof as determined in accordance with generally
accepted accounting principles, discounted from the last date of such
initial term to the date of determination at a rate per annum equal to the
discount rate which would be applicable to a Capital Lease with like term
in accordance with generally accepted accounting principles. The net amount
of rent required to be paid under any such lease for any such period shall
be the aggregate amount of rent payable by the lessee with respect to such
period after excluding amounts required to be paid on account of insurance,
taxes, assessments, utility, operating and labor costs and similar charges.
In the case of any lease which is terminable by the lessee upon the payment
of a penalty, such net amount shall also include the amount of such penalty,
but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Attributable Debt" means, as to a Capital Lease under which any Person is at
the time liable and at any date as of which the amount thereof is to be
determined, the capitalized amount thereof that would appear on the face of
a balance sheet of such Person in accordance with generally accepted
accounting principles.
60
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"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable,
be the Financial Times (London Edition) and, in the case of Luxembourg,
will, if practicable, be the Luxemburger Wort) published in English and
customarily published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York, the
United Kingdom or in Luxembourg, as applicable. If it shall be impractical
in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice
in lieu thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by
the Secretary or an assistant secretary to have been duly adopted and to be
in full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New
York and with respect to any Security the interest of which is based on
LIBOR, in the City of London.
"Capital Lease" means, as applied to any Person, any lease of any
property which, in conformity with GAAP, is required to be capitalized on
the balance sheet of such Person.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or nonvoting) of such Person's capital stock, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or nonvoting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Consolidated Net Tangible Assets" means the excess over the
current liabilities of the Company of all of its assets as determined by
the Company and as would be set forth in a consolidated balance sheet of
the Company and its Subsidiaries, on a consolidated basis, in accordance
with generally accepted accounting principles as of a date within 90 days
of the date of such determination, after deducting goodwill, trademarks,
patents, other like intangibles and the minority interest of others.
61
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"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this
Indenture, located at 4 Chase MetroTech Center, Brooklyn, New York 11245,
Attention: Corporate Trust.
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities,
the Person designated as Depo sitary by the Company pursuant to Section 2.2
until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with
respect to the Securities of any such series shall mean the Depositary with
respect to the Registered Global Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exempted Debt" means the sum, without dupli cation, of the
following items outstanding as of the date Exempted Debt is being
determined: (i) indebtedness of the Company and its Restricted
Subsidiaries incurred after the date of this Indenture and secured by liens
created or assumed or permitted to exist pursuant to Section 4.3(b) and (ii)
Attributable Debt of the Company and its Restricted Subsidiaries in respect
of all sale and lease-back transac tions with regard to any Principal
Property entered into pursuant to Section 4.4(b).
"Funded Debt" means all indebtedness for money borrowed,
including purchase money indebtedness, having a maturity of more than one
year from the date of its creation or having a maturity of less than one
year but by its terms being renewable or extendible, at the option of the
obligor in respect thereof, beyond one year from its creation.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of this Indenture.
"Holder" or "Securityholder" means the registered holder of any
Security.
"Indenture" means this Indenture as originally executed or as it
may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections
2.1 and 2.3.
"Interest" includes interest payable on Original Issue Discount
Securities after the maturity thereof.
"Officer" means, with respect to the Company, the chairman of the
board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
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"Officers' Certificate" means a certificate signed in the name of
the Company (i) by the chairman of the board of directors, the president or
chief executive officer or a vice president and (ii) by the chief financial
officer, the treasurer or any assistant treasurer, the secretary or any
assistant secretary, complying with Section 10.4 (except Officers' Certificates
provided for in Section 4.7) and delivered to the Trustee.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory
to the Trustee and complying with Section 10.4.
"original issue date" of any Security (or portion thereof) means
the earlier of (a) the date of authentication of such Security or (b) the
date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 6.1.
"Periodic Offering" means an offering of Securi ties of a series
from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the
stated maturity or maturities thereof and the redemption provisions, if
any, with respect thereto, are to be determined by the Company or its
agents upon the issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or nonvoting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on,
the Security.
"Principal Property" means (i) land, land improve ments,
buildings and associated fixtures and factory equipment owned or leased
pursuant to a capital lease and used by the Company or a Restricted
Subsidiary primarily for processing, producing, packaging or storing its
products, raw materials, inventories or other materials and supplies and
located within the United States of America and having an acquisition cost
plus capitalized improvements in excess of 1% of Consolidated Net Tangible
Assets as of the date of such determination, (ii) any property listed on
Schedule 1.1 hereto and (iii) any asset held as of the date hereof by Tyson
Holding Company, Inc., but shall not include any such property or asset
described in clauses (i), (ii) or (iii) that is financed through the
issuance of tax exempt governmental obligations, or any such property or
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asset that has been determined by Board Resolution of the Company not to be of
material importance to the respective businesses conducted by the Company
or such Restricted Subsidiary, effective as of the date such resolution is
adopted.
"Registered Global Security", means a Security evidencing all or
a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.2, and bearing the legend
prescribed in Section 2.2.
"Registered Security" means any Security
registered on the Security Register.
"Responsible Officer" means any officer of the Trustee
specifically authorized to administer the Trustee's duties under this
Indenture.
"Restricted Subsidiary" means any Subsidiary organized and
existing under the laws of the United States of America and the principal
business of which is carried on within the United States of America which
owns or is a lessee pursuant to a capital lease of any Principal Property
or owns shares of capital stock or indebtedness of another Restricted
Subsidiary other than:
(i) each Subsidiary the major part of whose business consists of
finance, banking, credit, leasing, insurance, financial services or
other similar operations, or any combination thereof;
and
(ii) each Subsidiary formed or acquired after the date hereof
for the purpose of acquiring the business or assets of another Person
and which does not acquire all or any substantial part of the business
or assets of the Company or any Restricted Subsidiary;
provided, however, that the Board of Directors of the
Company may by Board Resolution declare any such Subsidiary to be a
Restricted Subsidiary, effective as of the date such resolution is adopted.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall
include any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the
provisions of Article 7 of this Indenture and thereafter means such
successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S. Code 77aaa-77bbbb), as in effect on the date of this
Indenture, except as provided in Section 9.6 or as used in Sections 8.2 and
8.3.
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"United States Bankruptcy Code" means the Bankruptcy Reform Act
of 1978, as amended and as codified in Title 11 of the United States Code,
as amended from time to time hereafter, or any successor federal bankruptcy
law.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for
the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock of
any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Yield to Maturity" means as the context may require the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series,
calculated at the time of issuance of such series in the case of clause (i)
or at the time of issuance of such Security of such series in the case of
clause (ii), or, if applicable, at the most recent redetermination of
interest on such series or on such Security, and calculated in accordance
with the constant interest method or such other accepted financial practice
as is specified in the terms of such Security.
SECTION 1.2 Other Definitions.
Authenticating Agent 2.2
Event of Default 6.1
Paying Agent 2.5
Register 2.5
Registrar 2.5
Security Register 2.5
SECTION 1.3 Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part
of this Indenture. The following terms used in this Indenture that are
defined by the Trust Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
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"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the Commission and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction. Unless the
context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(vi) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each
series shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more Board
Resolutions or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law, or with any rules of any securities
exchange or usage, all as may be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons
attached.
SECTION 2.2 Execution and Authentication. Two
Officers shall execute the Securities (other than coupons) for the Company
by facsimile or manual signature in the name and on behalf of the Company.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless
be valid.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") to authenticate Securities (other than coupons).
The Authenticating Agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such Authenticating Agent.
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A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the
execution and delivery of this Indenture, the Issuer may deliver Securities
of any series having attached thereto appropriate coupons, if any, executed
by the Company to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee
shall thereupon authenticate and deliver such Securities to or upon the
order of the Company. In first authenticating any Securities of a series,
the Trustee shall be entitled to receive and (subject to Article 7) shall
be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the
forms and terms of the Securities of the series were
established;
(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities, stating that the form or forms and terms of
the Securities of such series have been, or will be, when established
in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture[, and covering such
other matters as the Trustee may reasonably request]; and
(3) an Opinion of Counsel substantially to the effect that the
forms and term of the Securities of such series have been, or will be,
when established in accordance with such procedures as shall be
referred to therein, established in compliance with this Indenture and
that the Securities have been duly authorized and,
if executed and authenticated in accordance with the provisions of the
Indenture and delivered to and duly paid for by the purchasers thereof
on the date of such opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other matters
as shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute
and the Trustee shall authenticate and deliver one or more Registered
Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of all of the Securities of
such series issued in such form and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Registered Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part
for Securities in definitive registered form, this Security may not be
transferred except as a whole by the Depositary to the nominee of the
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Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Securities Exchange Act and any
other applicable statute or regulation.
SECTION 2.3 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other senior and
unsubordinated debt of the Company. There shall be established in or
pursuant to Board Resolutions or one or more indentures supplemental
hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenti cated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial issuance
of the Securities of that Series (except for
Securities authenticated and delivered upon registra tion of transfer
of, or in exchange for, or in lieu of, or upon redemption of, other
Securities of the series pursuant hereto;
(3) the date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendible);
(4) the rate or rates (which may be fixed or variable) per annum
at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, on which such
interest shall be payable and (in the case of Regis tered Securities)
on which a record shall be taken for the determination of Holders to
whom interest is paya ble and/or the method by which such rate or
rates or date or dates shall be determined and the basis on which
interest shall be calculated if other than a 360day year consisting of
12 30-day months;
(5) the place or places where the principal of and any interest
on Securities of the series shall be payable (if other than as
provided in Section 4.2), any Registered Securities of the series may
be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and where notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
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Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and condi tions upon which
Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof in case of Registered Securi ties, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of the series shall
be payable;
(11) if other than the currency of the United States of America,
the currency or currencies, including composite currencies, in which
payment of the principal of (and premium, if any) and interest on the
Securities of the series shall be payable, and the manner in which any
such currencies shall be valued against other currencies in which any
other Securities shall be payable;
(12) whether the Securities of the series or any portion thereof
will be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest thereon
and, if other than as otherwise provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less than
all Securities of the series), which provisions may be in addition to,
in substitution for, or in modification of (or any combination of the
foregoing) the provisions of Article 8;
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(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(18) any other events of default or covenants with respect to the
Securities of the series; and
(19) any other terms of the Securities of the
series (which terms shall not be inconsistent with the provisions of
this Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto, shall be substantially identical, except in the case
of Registered Securities as to denomina tion and except as may otherwise be
provided by or pursuant to the Board Resolution referred to above or as set
forth in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution or in any such indenture supplemental
hereto and any forms and terms of Securities to be issued from time to time
may be completed and established from time to time prior to the issuance
thereof by procedures described in such Board Resolution or supplemental
indenture.
SECTION 2.4 Denomination and Date of Securities;
Payments of Interest. The Securities of each series shall be issuable as
Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, if not so established with
respect to Registered Securities of any series, in denominations of $1,000
and any integral multiple thereof. If the denomina tions of Unregistered
Securities of any series are not so established, such Securities shall be
issuable in denomina tions of $1,000 and $5,000. The Securities of each
series shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plan as the officers of the Company
executing the same may determine, as evidenced by the execution thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided
pursuant to Section 2.3. The Securities of each series shall bear
interest, if any, from the date, and such interest and shall be payable on
the dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment
of the interest due on such interest payment date for such series, in which
case the provisions of Section 2.13 shall apply. The term "record date" as
used with respect to any interest payment date (except a date for payment
of defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such
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interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business
Day.
SECTION 2.5 Registrar and Paying Agent; Agents
Generally. The Company shall maintain an office or agency where Securities
may be presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"), which shall be in The City of New York. The
Company shall cause the Registrar to keep a register of
the Registered Securities and of their transfer and exchange (the "Security
Register"). The Company may have one or more co-Registrars and one or more
additional Paying Agents.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
give prompt written notice to the Trustee of the name and address of any
Agent and any change in the name or address of an Agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such. The Company may remove any Agent upon written notice to such Agent
and the Trustee; provided that no such removal shall become effective until
(i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of
a successor Agent in accordance with clause (i) of this proviso. The Company
or any Affiliate of the Company may act as Paying Agent, Registrar or
co-Registrar; provided that neither the Company nor an Affiliate of the
Company shall act as Paying Agent in connection with the defeasance of the
Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee on or before
each Interest Payment Date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in
the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust.
Not later than each due date of any principal or interest on any
Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such principal or interest.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that such Paying Agent shall hold in trust for the benefit of
the Holders of such Securities or the Trustee all money held by the Paying
Agent for the payment of principal of and interest on such Securities and
shall promptly notify the Trustee of any default by the Company in making
any such payment. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and account for any funds
disbursed, and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for
any funds disbursed. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company or any
Affiliate of the Company acts as Paying Agent, it will, on or before each
due date of any principal of or interest on any Securities, segregate and
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hold in a separate trust fund for the benefit of the Holders thereof a sum
of money sufficient to pay such principal or interest so becoming due until
such sum of money shall be paid to such Holders or otherwise disposed of as
provided in this Indenture, and will promptly notify the Trustee of its
action or failure to act as required by this Section.
SECTION 2.7 Transfer and Exchange. Unregistered
Securities (except for any temporary global Unregistered Securities) and
coupons (except for coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Company that shall be maintained for such
purpose in accordance with Section 2.5 and upon payment, if the Company shall
so require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, except as
otherwise established pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any series may be exchanged for
Registered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that
shall be maintained for such purpose in accordance with Section 2.5, with, in
the case of Unregistered Securities that have coupons attached, all unmatured
coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued
in more than one authorized denomination, except as otherwise established
pursuant to Section 2.3, such Unregistered Securities may be exchanged for
Unregistered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of
such Unregistered Securities to be exchanged at the agency of the Company
that shall be maintained for such purpose in accordance with Section 2.5,
with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so require, of the
charges hereinafter provided. Unless otherwise specified pursuant to
Section 2.3, Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Company or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company, the Registrar
and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
The Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such transaction.
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Notwithstanding any other provision of this Section 2.7, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion
of the Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or
unable to continue as Depositary for such Registered Global Securities or
if at any time the Depositary for such Registered Global Securities shall
no longer be eligible under Section 2.2, the Company shall appoint a
successor Depositary eligible under Section 2.2 with respect to such
Registered Global Securities. If a successor Depositary eligible under
Section 2.2 for such Registered Global Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee,
upon receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series, will authenticate and
deliver, Registered Securities of such series and tenor, in any authorized
denominations, in an aggregate principal amount equal to the principal
amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
The Company may at any time and in its sole
discretion determine that any Registered Global Securities of any series
shall no longer be maintained in global form. In such event the Company
will execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series and tenor in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the
form of Registered Global Securities pursuant to the preceding two
paragraphs, the Company agrees to supply the Trustee with a reasonable
supply of certificated Registered Securities without the legend required by
Section 2.2 and the Trustee agrees to hold such Registered Securities in
safekeeping until authenticated and delivered pursuant to the terms of this
Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Registered Securities of the same series and
tenor in definitive registered form on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such
Depositary new Registered Securities of the same series and tenor, of
any authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Registered Global Security; and
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(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Registered securities issued in exchange for a Registered Global
Security pursuant to this Section 2.7 shall be registered in such names and
in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Company or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any transfer or
exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent
of the Company or the Trustee shall be required to exchange any
Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Company (such as,
for example, the inability of the Company to deduct from its income, as
computed for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income
tax laws. The Trustee and any such agent shall be entitled to rely on an
Officers' Certificate or an Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, register the
transfer of or exchange Securities of any series for a period of 15 days
before a selection of such Securities to be redeemed or (ii) to register the
transfer of or exchange any Security selected for redemption in whole or in
part.
SECTION 2.8 Replacement Securities. If a mutilated
Security of any series is surrendered to the Trustee or if a Holder
provides evidence satisfactory to the Trustee that its Security of any
series has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security of such
series and tenor and principal amount and bearing a number not
contemporaneously outstanding. If required by the Trustee or the Company,
an indemnity bond must be furnished that is sufficient in the judgment of
both the Trustee and the Company to protect the Company, the Trustee and
any Agent from any loss that any of them may suffer if a Security is
replaced. The Company may charge such Holder for its expenses and the
expenses of the Trustee in replacing a Security. In case any such
mutilated, lost, destroyed or wrongfully taken Security has become or is
about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional
obligation of the Company and shall be entitled to the benefits of this
Indenture.
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To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities
outstanding at any time are all Securities that have been authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to
be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company or an Affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or
to be redeemed or repurchased on that date, then on and after that date
such Securities cease to be outstanding and interest on them shall cease to
accrue; provided, however, that with respect to Securities to be
repurchased, interest on them shall cease to accrue only when such
Securities have been physically tendered to the Trustee by the Company.
A Security does not cease to be outstanding
because the Company or one of its Affiliates holds such
Security, provided, however, that, in determining whether the Holders of
the requisite principal amount of the outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any Affiliate
of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any Affiliate of
the Company.
SECTION 2.10 Temporary Securities. Until definitive Securities
of any series are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such
temporary Securities at the office or agency of the Company designated for
such purpose pursuant to Section 4.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations. Until so
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exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 2.11 Cancellation. The Company at any time may deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and
sold. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for transfer, exchange or payment. The
Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall dispose of them in accordance with its
normal procedures or the written instructions of the Company. The Company
may not issue new Securities to replace Securities it has paid in full or
delivered to the Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use),
and the Trustee shall use CUSIP numbers or CINS numbers, as the case may
be, in notices of redemption or exchange as a convenience to Holders;
provided that any such notice shall state that no representation is made as
to the correctness of such numbers either as printed on the Securities or
as contained in any notice of redemption or exchange.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, it shall pay, or
shall deposit with the Paying Agent money in immediately available funds
sufficient to pay, the defaulted interest, plus (to the extent lawful) any
interest payable on the defaulted interest, to the Persons who are Holders
on a subsequent special record date, which shall mean the 15th day next
preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days
before such special record date, the Company shall mail to each Holder and
to the Trustee a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The
provisions of this Article shall be applicable to the Securities of any
series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 2.3 for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial
Redemptions. Notice of redemption to the Holders of Registered Securities
of any series to be redeemed as a whole or in part at the option of the
Company shall be given by mailing notice of such redemption by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to
the date fixed for redemption to such Holders of Registered Securities of
such series at their last addresses as they shall appear upon the registry
books. Notice of redemption to the Holders of Unregistered Securities of
any series to be redeemed as a whole or in part, who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, shall be given by mailing notice of such redemption, by
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first class mail, postage prepaid, at least 30 days and not more than 60
prior to the date fixed for redemption, to such Holders at such addresses
as were so furnished to the Trustee (and, in the case of any such notice
given by the Company, the Trustee shall make such information available to
the Company for such purpose). Notice of redemption to all other Holders
of Unregistered Securities of any series to be redeemed as a whole or in part
shall be published in an Authorized Newspaper in The City of New York and
in an Authorized Newspaper in London, in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor
more than 60 days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder
of any Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any
other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series
held by such Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment will be made
upon presentation and surrender of such Securities and, in the case of
Securities with coupons attached thereto, of all coupons appertaining
thereto maturing after the date fixed for redemption, that such redemption
is pursuant to the mandatory or optional sinking fund, or both, if such be
the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such
series and tenor in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more paying agents (or, if the Company is acting
as its own paying agent, set aside, segregate and hold in trust as provided
in Section 2.6) an amount of money sufficient to redeem on the redemption
date all the Securities of such series so called for redemption at the
appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are
to be redeemed, the Company will deliver to the Trustee at least 20 days
prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 an Officers'
Certificate stating that all such Securities are to be redeemed. If
less than all the outstanding Securities of a series are to be redeemed,
the Company will deliver to the Trustee at least 20 days prior to the last
date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.2 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating the aggregate
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principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such redemption is not
prohibited by such restriction.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such Series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Company in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal
amount thereof to be redeemed. For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 3.3 Payment of Securities Called for
Redemption. If notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after such date (unless the Company shall
default in the payment of such Securities at the redemption price, together
with interest accrued to such date) interest on the Securities or portions
of Securities so called for redemption shall cease to accrue, and the
unmatured coupons, if any, appertaining thereto shall be void and, except
as provided in Sections 7.11 and 8.4, such Securities shall cease from and
after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right
in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment
specified in said notice, together with all coupons, if any, appertaining
thereto maturing after the date fixed for redemption, said Securities or
the specified portions thereof shall be paid and redeemed by the Company at
the applicable redemption price, together with interest accrued thereon to
the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable
in the case of Securities with coupons attached thereto, to the Holders of
the coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after
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the date fixed for redemption, the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee, if there be furnished
to each of them such security or indemnity as they may require to save each
of them harmless.
Upon presentation of any Security of any series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be excluded
from eligibility for selection for redemption if they are identified by
registration and certificate number in a written statement signed by an
authorized officer of the Company and delivered to the Trustee at least 40
days prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Company or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by
the terms of the Securities of any series is herein referred to as an
"optional sinking fund payment". The date on which a sinking fund payment
is to be made is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in cash, the
Company may at its option (a) deliver to the Trustee Securities of such
series theretofore purchased or otherwise acquired (except through a
mandatory sinking fund payment) by the Company or receive credit for
Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 2.11, (b)
receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the
Company through any optional sinking fund payment. Securities so delivered
or credited shall be received or credited by the Trustee at the sinking
fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, the Company will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 10.4) (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied
by credit of specified Securities of such series and the basis for such
credit, (b) stating that none of the specified Securities of such series
has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Company intends to exercise its right to make an
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optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the
Company intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to
be delivered to the Trustee in order for the Company to be entitled to
credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.11 to
the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate shall
be irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Company, on or before any such sixtieth day, to
deliver such Officer's Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii)
that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 or a lesser sum if the Company shall so request with
respect to the Securities of any series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities
of such series at the sinking fund redemption price thereof together with
accrued interest thereon to the date fixed for redemption. If such amount
shall be $50,000 or less and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 is available. The
Trustee shall select, in the manner provided in Section 3.2, for redemption
on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and
shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption
under this Section if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 60
days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Company
or (b) an entity specifically identified in such Officers' Certificate as
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company. The Trustee, in the name and at
the expense of the Company (or the Company, if it shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section 3.2
(and with the effect provided in Section 3.3) for the redemption of
Securities of such series in part at the option of the Company. The amount
of any sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash sinking fund
payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such
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series shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
Before each sinking fund payment date, the Company shall pay to
the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when
any such default or Event of default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 6 and held
for the payment of all such Securities. In case such Event of Default shall
have been waived as provided in Section 6.4 or the default cured on or before
the sixtieth day preceding the sinking fund payment date in any year, such
moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company
shall pay the principal of and interest on the Securities on the dates and
in the manner provided in the Securities and this Indenture. The interest
on Securities with coupons attached (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. The
interest on any temporary Unregistered Securities (together with any
additional amounts payable pursuant to the terms of such Securities) shall
be paid, as to the installments of interest evidenced by coupons attached
thereto, if any, only upon presentation and surrender thereof, and, as to
the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest. The
interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to
or upon the written instructions of the Holders thereof and at the option
of the Company may be paid by wire transfer or mailing checks for such
interest payable to or upon the written order of such Holders at their last
addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of at
least $1,000,000 aggregate principal amount of Registered Securities so
agree, payments of interest on, and any portion of the principal of, such
Holder's Registered Securities (other than interest payable at maturity or
on any redemption or repayment date or the final payment of principal on a
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Security) shall be made by the Paying Agent, upon receipt from the Company
of immediately available funds by 11:00 A.M., New York City time (or such
other time as may be agreed to between the Company and the Paying Agent),
directly to the Holder of such Security (by Federal funds wire transfer or
otherwise within the United States) if the Holder has delivered written
instructions to the Trustee 15 days prior to such payment date requesting
that such payment will be so made and designating the bank account in the
United States to which such payments shall be so made and in the case of
payments of principal surrenders the same to the Trustee in exchange for a
Security or Securities aggregating the same principal amount as the
unredeemed principal amount of the Securities surrendered. The Trustee
shall be entitled to rely on the last instruction delivered by the Holder
pursuant to this Section 4.1 unless a new instruction is delivered 15 days
prior to a payment date. The Company will indemnify and hold each of the
Trustee and any Paying Agent harmless against any loss, liability or
expense (including attorneys' fees) resulting from any act or omission to
act on the part of the Company or any such Holder in connection with any
such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue principal, and interest
on overdue installments of interest, to the extent lawful, at the rate per
annum specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The
Company will maintain in The City of New York, an office or agency where
Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the
Trustee, located in The City of New York, as such office or agency of the
Company. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such
an agency is required to be maintained under the rules of any stock
exchange on which the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or coupon will be made upon presentation of such
Unregistered Security or coupon at an agency of the Company within the United
States nor will any payment be made by transfer to an account in, or by mail
to an address in, the United States unless, pursuant to applicable United
States laws and regulations then in effect, such payment can be made without
adverse tax consequences to the Company. Notwithstanding the foregoing, if
full payment in United States Dollars ("Dollars") at each agency maintained
by the Company outside the United States for payment on such Unregistered
Securities or coupons appertaining thereto is illegal or effectively
precluded by exchange controls or other similar restrictions, payments in
Dollars of Unregistered Securities of any series and coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Company
maintained in The City of New York.
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The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
SECTION 4.3 Negative Pledge. (a) The Company will
not, and will not permit any Restricted Subsidiary to, create, incur or
suffer to exist any mortgage or pledge, as security for any indebtedness,
on or of any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property of the Company or a Restricted
Subsidiary, whether such shares of stock, indebtedness or other obligations
of a Subsidiary or Principal Property of the Company or a Restricted
Subsidiary is owned at the date of this Indenture or hereafter acquired,
unless the Company secures or causes such Restricted Subsidiary to secure
the outstanding Securities equally and ratably with all indebtedness
secured by such mortgage or pledge, so long as such indebtedness shall be
so secured; provided, however, that this covenant shall not apply in the
case of: (i) the creation of any mortgage, pledge or other lien on any
shares of stock, indebtedness or other obligations of a Subsidiary or any
Principal Property hereafter acquired (including acquisitions by way of
merger or consolidation) by the Company or a Restricted Subsidiary
contemporaneously with such acquisition, or within 180 days thereafter, to
secure or provide for the payment or financing of any part of the purchase
price thereof, or the assumption of any mortgage, pledge or other lien upon
any shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property hereafter acquired existing at the time of such
acquisition, or the acquisition of any shares of stock, indebtedness or
other obligations of a Subsidiary or any Principal Property subject to any
mortgage, pledge or other lien without the assumption thereof, provided that
every such mortgage, pledge or lien referred to in this clause (i) shall
attach only to the shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property so acquired and fixed improvements
thereon; (ii) any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
existing at the date of this Indenture; (iii) any mortgage, pledge or other
lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property in favor of the Company or any
Restricted Subsidiary; (iv) any mortgage, pledge or other lien on Principal
Property being constructed or improved securing loans to finance such
construction or improvements; (v) any mortgage, pledge or other lien on
shares of stock, indebtedness or other obligations of a Subsidiary or any
Principal Property incurred in connection with the issuance of tax-exempt
governmental obligations; and (vi) any renewal of or substitution for any
mortgage, pledge or other lien permitted by any of the preceding clauses
(i) through (v), provided, in the case of a mortgage, pledge or other lien
permitted under clause (i), (ii) or (iv), the indebtedness secured is not
increased nor the lien extended to any additional shares of stock,
indebtedness or other obligations of a Subsidiary or any additional Principal
Property.
(b) Notwithstanding the provisions of paragraph (a) of this
Section, the Company or any Restricted Subsidiary may create or assume
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liens in addition to those permitted by paragraph (a) of this Section, and
renew, extend or replace such liens, provided that at the time of such
creation, assumption, renewal, extension or replacement, and after giving
effect thereto, Exempted Debt does not exceed 10% of Consolidated Net
Tangible Assets.
SECTION 4.4 Certain Sale and Lease-back
Transactions. (a) The Company will not, and will not permit any
Restricted Subsidiary to, sell or transfer, directly or indirectly, except
to the Company or a Restricted Subsidiary, any Principal Property as an
entirety, or any substantial portion thereof, with the intention of taking
back a lease of such property, except a lease for a period of three years
or less at the end of which it is intended that the use of such property by
the lessee will be discontinued; provided that, notwithstanding the
foregoing, the Company or any Restricted Subsidiary may sell any such
Principal Property and lease it back for a longer period (i) if the Company
or such Restricted Subsidiary would be entitled, pursuant to the provisions
of Section 4.3(a), to create a mortgage on the property to be leased
securing Funded Debt in an amount equal to the Attributable Debt with
respect to such sale and lease-back transaction without equally and ratably
securing the outstanding Securities or (ii) if (A) the Company promptly
informs the Trustee of such transaction, (B) the net
proceeds of such transaction are at least equal to the fair value (as
determined by Board Resolution of the Company) of such property and (C) the
Company causes an amount equal to the net proceeds of the sale to be
applied to the retirement, within 180 days after receipt of such proceeds,
of Funded Debt incurred or assumed by the Company or a Restricted
Subsidiary (including the Securities); provided further that, in lieu of
applying all of or any part of such net proceeds to such retirement, the
Company may, within 75 days after such sale, deliver or cause to be
delivered to the applicable trustee for cancellation either debentures or
notes evidencing Funded Debt of the Company (which may include the
Outstanding Securities) or of a Restricted Subsidiary previously
authenticated and delivered by the applicable trustee, and not theretofore
tendered for sinking fund purposes or called for a sinking fund or
otherwise applied as a credit against an obligation to redeem or retire
such notes or debentures, and an Officers' Certificate (which shall be
delivered to the Trustee and each paying agent and which need not contain
the statements prescribed by the second paragraph of Section 10.4) stating
that the Company elects to deliver or cause to be delivered such debentures
or notes in lieu of retiring Funded Debt as hereinabove provided. If the
Company shall so deliver debentures or notes to the applicable trustee and
the Company shall duly deliver such Officers' Certificate, the amount of
cash which the Company shall be required to apply to the retirement of
Funded Debt under this Section 4.4(a) shall be reduced by an amount equal
to the aggregate of the then applicable optional redemption prices (not
including any optional sinking fund redemption prices) of such debentures
or notes or, if there are no such redemption prices, the principal amount
of such debentures or notes; provided, that in the case of debentures or
notes which provide for an amount less than the principal amount thereof to
be due and payable upon a declaration of the maturity thereof, such amount
of cash shall be reduced by the amount of principal of such debentures or
notes that would be due and payable as of the date of such application upon
a declaration of acceleration of the maturity thereof pursuant to the terms
of the indenture pursuant to which such debentures or notes were issued.
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(b) Notwithstanding the provisions of paragraph (a) of this
Section 4.4, the Company or any Restricted Subsidiary may enter into sale
and lease-back transactions in addition to those permitted by paragraph (a)
of this Section 4.4 and without any obligation to retire any outstanding
Securities or other Funded Debt, provided that at the time of entering into
such sale and lease-back transactions and after giving effect thereto,
Exempted Debt does not exceed 10% of Consolidated Net Tangible Assets.
SECTION 4.5 Notice of Defaults. In the event that
the Company becomes aware of any Default, the Company, promptly after it
becomes aware thereof, will give written notice thereof to the Trustee.
SECTION 4.6 Compliance Certificates; Reports. (a)
The Company shall deliver to the Trustee, within 45 days after the end of
each fiscal quarter (90 days after the end of the last fiscal quarter of
each year), an Officers' Certificate stating whether or not the signers
know of any Default that occurred during such fiscal quarter. In the case
of the Officers' Certificate delivered within 90 days of the end of the
Company's fiscal year, such certificate shall contain a certification from
the principal executive officer, principal financial officer or principal
accounting officer that a review has been conducted of the activities
of the Company and its Subsidiaries and the Company's and its Subsidiaries'
performance under this Indenture and that the Company has complied with all
conditions and covenants under this Indenture. For purposes of this
Section 4.6, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture. If
a Default shall have occurred and be continuing, the certificate shall
describe such Default and its status. The first certificate to be
delivered pursuant to this Section 4.6(a) shall be for the first fiscal
quarter beginning after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 90 days
after the end of the Company's fiscal year, a certificate signed by the
Company's independent certified public accountants stating (i) that their
audit examination has included a review of the terms of this Indenture and
the Securities as they relate to accounting matters, (ii) that they have
read the most recent Officers' Certificate delivered to the Trustee
pursuant to paragraph (a) of this Section 4.6 and (iii) whether, in
connection with their audit examination, anything came to their attention
that caused them to believe that the Company was not in compliance with any
of the terms, covenants, provisions or conditions of Article 4 and Section
5.1 of this Indenture as they pertain to accounting matters and, if any
Default has come to their attention, specifying the nature and period of
existence thereof; provided that such independent certified public
accountants shall not be liable in respect of such statement by reason of
any failure to obtain knowledge of any such Default that would not be
disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards in effect at the date of such
examination.
(c) Within 90 days of the end of each of the Company's fiscal
years, the Company shall deliver to the Trustee a list of all Significant
Subsidiaries. The Trustee shall have no duty with respect to any such list
except to keep it on file and available for inspection by the Holders.
(d) The Company shall deliver to the Trustee all reports filed
with the Commission reasonably promptly following the filing thereof.
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SECTION 4.7 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of, or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or that may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The
Company shall not consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person (other than
a consolidation with or merger with or into a Subsidiary) or permit any
Person to merge with or into the Company unless:
(i) either (x) the Company shall be the continuing Person or (y)
the Person (if other than the Company) formed by such consolidation or
into which the Company is merged or that acquired or leased such
property and assets of the Company shall be a corporation organized
and validly existing under the laws of the United States of America or
any jurisdiction thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or transfer
and such supplemental indenture complies with this provision and that
all conditions precedent provided for herein relating to such
transaction have been complied with; and
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
SECTION 5.2 Successor Substituted. Upon any
consolidation or merger, or any sale, conveyance, transfer, lease or other
disposition of all or substantially all of the property and assets of the
Company in accordance with Section 5.1 of this Indenture, the successor
Person formed by such consolidation or into which the Company is merged or
to which such sale, conveyance, transfer, lease or other disposition is
made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein.
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ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of
Default" shall occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the principal of any
Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption, mandatory repurchase or
otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same
becomes due and payable, and such default continues for a period of 30
days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee or
to the Company and the Trustee by the Holders of 25% or more in
aggregate principal amount of the Securities of such series;
(d) an involuntary case or other proceeding shall be commenced
against the Company with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Company under the federal
bankruptcy laws as now or hereafter in effect;
(e) the Company (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or for all or substantially all of the property and assets of
the Company or (C)
effects any general assignment for the benefit of
creditors; or
(f) any other Event of Default established with respect to the
Securities of such series pursuant to Section 2.3 occurs.
SECTION 6.2 Acceleration. If an Event of Default
described in clauses (a) or (b) of Section 6.1 with respect to the
Securities of any series or in clauses (c) or (f) of Section 6.1 with
respect to the Securities of one or more but not all series then
outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Securities of each such
series then outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities
of any such series are Original Issue Discount Securities, such portion of
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the principal amount as may be specified in the terms of such series
established pursuant to Section 2.3) of all Securities of such series, and
the interest accrued thereon, if any, to be due and payable immediately,
and upon any such declaration the same shall become immediately due and
payable. If an Event of Default described in clause (c) or (f) of Section
6.1 with respect to the Securities of all series then outstanding occurs
and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then outstanding (treated as one
class), by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities
are Original Issue Discount Securities, such portion of the principal as
may be specified in the terms thereof established pursuant to Section 2.3)
of all the Securities then outstanding and interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable. If an Event of Default
described in clause (d) or (e) of Section 6.1 occurs and is continuing,
then the principal amount (or, if any Securities are original Issue
Discount Securities, such portion of the principal as may be specified in
the terms thereof established pursuant to Section 2.3) of all the
Securities then outstanding and interest accrued thereon, if any, shall be
and become immediately due and payable, without any notice or other action
by any Holder or the Trustee, to the full extent permitted by applicable
law.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to Section 2.3) of the
Securities of any series (or of all the Securities, as the case may be)
shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of each such series (or of all the
Securities, as the case may be) and the principal of any and all Securities
of each such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each
such series to the date of such payment or deposit) and such amount as
shall be sufficient to cover all amounts owing the Trustee under Section
7.7, and if any and all Events of Default under the Indenture, other than
the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then and in every such case the Holders of a majority in
aggregate principal amount of all the Securities of each such series (each
such series voting as a separate class), or of all the Securities (voting
as a single class), then outstanding, by written notice to the Company and
to the Trustee, may waive all defaults with respect to each such series (or
with respect to all the Securities, as the case may be) and rescind and
annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
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For all purposes under this Indenture, if a
portion of the principal of any Original Issue Discount Securities shall
have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount of such
Original Issue Discount Securities shall be deemed, for all purposes
hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 6.3 Other Remedies. If an Event of Default
with respect to the Securities of any series occurs and is continuing, the
Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment
of principal of and interest on the Securities of such series
or to enforce the performance of any provision of the Securities of such
series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to
Sections 6.2, 6.7 and 9.2, the Holders of at least a
majority in principal amount of the outstanding Securities of each series
affected (each such series voting as a separate class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to
the Securities of such series and its consequences, except a Default in the
payment of principal of or interest on any Security as specified in clause
(a) or (b) of Section 6.1 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 Control by Majority. The Holders of at
least a majority in aggregate principal amount of the outstanding
Securities of each series affected (each such series voting as a separate
class) may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series by
this Indenture; provided, that the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability, or that the Trustee determines in good faith
may be unduly prejudicial to the rights of Holders not joining in the
giving of such direction; and provided further, that the Trustee may take
any other action it deems proper that is not inconsistent with any
directions received from Holders of Securities pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any
Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
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(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the Securities
of such series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities
and expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of such
series have not given the Trustee a direction that is inconsistent
with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of or interest, if
any, on such Holder's Security on or after the respective due dates
expressed on such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event
of Default with respect to the Securities of any series in payment of
principal or interest specified in clause (a) or (b) of Section 6.1 occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount (or
such portion thereof as specified in the terms established pursuant to
Section 2.3 of Original Issue Discount Securities) of principal of, and
accrued interest remaining unpaid on, together with interest on overdue
principal of, and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest on, the Securities of such
series, in each case at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, and such
further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due the Trustee under Section 7.7) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor on the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies, securities or
other property payable or deliverable upon conversion or exchange of the
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Securities or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it under Section 7.7.
SECTION 6.10 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of the
Securities of any series shall be applied in the following order at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of the
several Securities and coupons appertaining to such Securities in respect
of which monies have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of such series and tenor in
reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been col lected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue instal lments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities
of such series; and in case such moneys shall be insuf ficient to pay
in full the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest or Yield to
Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal,
or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security of
such series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company
or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If
the Trustee or any Holder has instituted any proceeding to enforce any
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right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then, and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.12 Undertaking for Costs. In any suit for the
enforcementof any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, in either case in respect to the Securities of
any series, a court may require any party litigant in such suit (other than
the Trustee) to file an undertaking to pay the costs of the suit, and the
court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.12 does not apply to a suit by a Holder
pursuant to Section 6.7 or a suit by Holders of more than 10% in principal
amount of the outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except
as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities in Section 2.8,
no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay
or omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article 6 or by law to the
Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act and as set forth herein. Notwithstanding the foregoing, no provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, unless
it receives indemnity satisfactory to it against any loss, liability or
expense. Whether or not therein expressly so provided,
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every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to
Trust Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 10.4. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care;
(iv) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it
in compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of any series relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(vi) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
SECTION 7.3 Individual Rights of Trustee. The
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not the Trustee.
Any Agent may do the same with like rights. However, the Trustee is
subject to Trust Indenture Act Sections 310(b) and 311. For purposes of
Trust Indenture Act Section 311(b)(4) and (6), the following terms shall
mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
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delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by
the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
SECTION 7.4 Trustee's Disclaimer. Neither the
Trustee nor any of its agents (i) makes any representation as to the
validity or adequacy of this Indenture or the Securities, (ii) shall be
accountable for the Company's use or application of the proceeds from the
Securities or (iii) shall be responsible for any statement in the
Securities other than its certificate of authentication.
SECTION 7.5 Notice of Default. If any Default with
respect to the Securities of any series occurs and is continuing and if
such Default is known to any Responsible
Officer of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if
any Unregistered Securities of such series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
The City of New York and at least once in an Authorized Newspaper in London
and (ii) to all Holders of Securities of such series in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, unless
such Default shall have been cured or waived before the mailing or
publication of such notice; provided, however, that, except in the case of
a Default in the payment of the principal of or interest on any Security,
the Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders.
SECTION 7.6 Reports by Trustee to Holders. Within
60 days after each May 15, beginning with May 15, 1995, the Trustee shall
mail to each Holder as provided in Trust Indenture Act Section 313(c) a
brief report dated as of such May 15, if required by Trust Indenture Act
Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed upon in
writing for its services. The compensation of the Trustee shall not be
limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable out-of-
pocket expenses, disbursements and advances incurred or made by the
Trustee. Such expenses and disbursements shall include the reasonable
compensation, expenses and disbursements of the Trustee's agents and
counsel.
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The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence
or bad faith on its part arising out of or in connection with the
acceptance or administration of this Indenture and its duties under this
Indenture and the Securities, including the costs and expenses of defending
itself against any claim or liability and of complying with any process
served upon it or any of its officers in connection with the exercise or
performance of any of its powers or duties under this Indenture and the
Securities.
To secure the Company's payment obligations in this Section 7.7,
the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of and interest on
particular Securities that is so held prior to the date the Trustee first
incurs expenses or makes disbursements or advances in connection with
collecting any amounts due with respect to such Securities.
SECTION 7.8 Replacement of Trustee. A resignation
or removal of the Trustee as Trustee with respect to the Securities of any
series and appointment of a successor Trustee as Trustee with respect to
the Securities of any
series shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the Securities
of any series at any time by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee as Trustee with respect to the Securities
of such series by so notifying the Trustee in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company.
The Company may remove the Trustee as Trustee with respect to the
Securities of any series if: (i) the Trustee is no longer eligible under
Section 7.10 of this Indenture; (ii) the Trustee is adjudged a bankrupt or
an insolvent; (iii) a receiver or other public officer takes charge of the
Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to
the Securities of any series, or if a vacancy exists in the office of
Trustee with respect to the Securities of any series for any reason, the
Company shall promptly appoint a successor Trustee with respect thereto.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the outstanding Securities of such series
may appoint a successor Trustee in respect of such Securities to replace
the successor Trustee appointed by the Company. If the successor Trustee
with respect to the Securities of any series does not deliver its written
acceptance required by the next succeeding paragraph of this Section 7.8
within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority in principal
amount of the outstanding Securities of such series may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any series
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 7.7, (i) the retiring Trustee
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shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such
series to all Holders of Securities of such series. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If
the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation
or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall
be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall
always have a Trustee who satisfies the requirements of Trust Indenture Act
Section 310(a). The Trustee shall have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual
report of condition.
SECTION 7.11 Money Held in Trust. The Trustee shall
not be liable for interest on any money received by it except as the
Trustee may agree with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by
law and except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment.
Except as otherwise provided in this Section 8.1, the Company may terminate
its obligations under the Securities of any series and this Indenture with
respect to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or stolen Securities of such
series that have been replaced or Securities of such series that are
paid pursuant to Section 4.1 or Securities of such series for whose
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payment money or securities have theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.5) have
been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year or
all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee), without
consideration of any reinvestment, to pay principal of and interest on
the Securities of such series to maturity or redemption, as the case
may be, and to pay all other sums payable by it hereunder, (C) no
Default with respect to the Securities of such series has occurred and
is continuing on the date of such deposit, (D) such deposit does not
result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound and (E) the Company
delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series and of the
Securities of such series have been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.7 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the
Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11,
4.2, 7.7, 7.8, 8.5 and 8.6 in respect of the Securities of such series
shall survive until the Securities of such series are no longer
outstanding. Thereafter, only the Company's obligations in Sections 7.7,
8.5 and 8.6 in respect of the Securities of such series shall survive.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under
the Securities of such series and this Indenture with respect to the
Securities of such series except for those surviving obligations
specified above.
SECTION 8.2 Defeasance at Any Time. Except as
otherwise provided in this Section 8.2, after the period specified in
clause (D)(2)(z) of this Section 8.2, the Company will be deemed to have
paid and will be discharged from any and all obligations in respect of the
Securities of any series, the provisions of this Indenture will no longer
be in effect with respect to the Securities of such series, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same; provided that the following conditions shall have
been satisfied:
(A) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series for payment of the principal of and interest
on the Securities of such series, money or U.S. Government Obligations
or a combination thereof sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without
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consideration of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay and discharge the principal of
and accrued interest on the outstanding Securities of such series to
maturity or earlier redemption (irrevocably provided for under arrangement
satisfactory to the Trustee), as the case may be;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(C) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit or
at any time during the period specified in clause (D)(2)(z) below;
(D) the Company shall have delivered to the Trustee (1) either
(x) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders of the Securities of
such series will not recognize income, gain or loss for federal income
tax purposes as a result of the Company's exercise of its option under
this Section 8.2 and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such option had not been exercised or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above
and based upon a change in law and (2) an Opinion of Counsel to the
effect that (x) the creation of the defeasance trust does not violate
the Investment Company Act of 1940, as amended, (y) the Holders of the
Securities of such series have a valid security interest in the trust
funds, and (z) after the passage of 123 days following the deposit
(except after one year following the deposit, with respect to any
trust funds for the account of any Holder of the Securities of such
series who may be deemed to be an "insider" as to an obligor on the
Securities of such series for purposes of the United States Bankruptcy
Code), the trust funds will not be subject to the effect of Section
547 of the United States Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law in a case commenced by or against the Company
under either such statute, and either (I) the trust funds will no
longer remain the property of the Company (and therefore will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally)
or (II) if a court were to rule under any such law in any case or
proceeding that the trust funds remained the property of the Company,
to the extent not paid to such Holders, the Trustee will hold, for the
benefit of such Holders, a valid and perfected first priority security
interest in such trust funds that is not avoidable in bankruptcy or
otherwise (except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing after
the commencement of a case under such statute) and the Holders of the
Securities of such series will be entitled to receive adequate
protection of their interests in such trust funds if such trust funds
are used in such case or proceeding;
(E) if the Securities of such series are then
listed on a national securities exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
defeasance contemplated by this Section 8.2 of the Securities of such
series will not cause the Securities of such series to be delisted;
and
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(F) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of such series have
been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day
(or one year) period referred to in clause
(D)(2)(z) of this Section 8.2, none of the Company's obligations under this
Indenture with respect to the Securities of such series shall be
discharged. Subsequent to the end of such 123-day (or one year) period,
the Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11,
4.2, 7.7, 7.8, 8.5 and 8.6 with respect to the Securities of such series
shall survive until such Securities are no longer outstanding. Thereafter,
only the Company's obligations in Sections 7.7, 8.5 and 8.6 with respect to
the Securities of such series shall survive. If and when a ruling from the
Internal Revenue Service or an Opinion of Counsel referred to in clause
(D)(1) of this Section 8.2 is able to be provided specifically without
regard to, and not in reliance upon, the continuance of the Company's
obligations under Section 4.1, then the Company's obligations under such
Section 4.1 with respect to the Securities of such series shall cease upon
delivery to the Trustee of such ruling or Opinion of Counsel and compliance
with the other conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.2.
SECTION 8.3 Covenant Defeasance. The Company may
omit to comply with any term, provision or condition set forth in Sections
4.3 and 4.4 and such omission shall be deemed not to be an Event of Default
under clause (c) of Section 6.1, with respect to the outstanding Securities
of any series if:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series for payment of the principal of and
interest, if any, on the Securities of such series money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes
or other charges and assessments in respect thereof payable by the
Trustee, to pay and discharge the principal of and interest on the
outstanding Securities of such series to maturity or earlier
redemption (irrevocably provided for under arrangements satisfactory
to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound;
(iii) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that (A) the creation of the
defeasance trust does not violate the Investment Company Act of 1940,
as amended, (B) the Holders of the Securities of such series have a
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valid first priority security interest in the trust funds, (C) such
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and covenant defeasance and will
be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred and (D) after the passage of
123 days following the deposit (except after one year following the
deposit, with respect to any trust funds for the account of any Holder
of the Securities of such series, who may be deemed to be an "insider"
as to an obligor on the Securities of such series for purposes of the
United States Bankruptcy Code), the trust funds will not be subject to
the effect of Section 547 of the United States Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced
by or against the Company under either such statute, and either (1)
the trust funds will no longer remain the property of the Company (and
therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally) or (2) if a court were to rule under any
such law in any case or proceeding that the trust funds remained
property of the Company, to the extent not paid to such Holders, the
Trustee will hold, for the benefit of such Holders, a valid and
perfected first priority security interest in such trust funds that is
not avoidable in bankruptcy or otherwise (except for the effect of
Section 552(b) of the United States Bankruptcy Code on interest on the
trust funds accruing after the commencement of a case under such
statute), and the Holders of the Securities of such series will be
entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding;
(v) if the Securities of such series are then listed on a
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the covenant
defeasance contemplated by this Section 8.3 of the Securities of such
series will not cause the Securities of such series to be delisted;
and
(vi) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance
contemplated by this Section 8.3 of the Securities of
such series have been complied with.
SECTION 8.4 Application of Trust Money. Subject to
Section 8.5, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.1, 8.2 or
8.3, as the case may be, in respect of the Securities of any series and
shall apply the deposited money and the proceeds from deposited U.S.
Government Obligations in accordance with the Securities of such series and
this Indenture to the payment of principal of and interest on the
Securities of such series; but such money need not be segregated from other
funds except to the extent required by law.
SECTION 8.5 Repayment to Company. Subject to Sections 7.7, 8.1,
8.2 and 8.3, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money
held by them at any time and thereupon shall be relieved from all liability
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with respect to such money. The Trustee and the Paying Agent shall pay to
the Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years; provided that
the Trustee or such Paying Agent before being required to make any payment
may cause to be published at the expense of the Company once in a newspaper
of general circulation in the City of New York or mail to each Holder
entitled to such money at such Holder's address (as set forth in the
Security Register) notice that such money remains unclaimed and that after
a date specified therein (which shall be at least 30 days from the date of
such publication or mailing) any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another Person, and
all liability of the Trustee and such Paying Agent with respect to such
money shall cease.
SECTION 8.6 Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.1, 8.2 or 8.3, as the case may be, in respect of the Securities
of any series by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under
this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.1, 8.2 or 8.3, as the case may
be, until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section
8.1, 8.2 or 8.3, as the case may be in respect of the Securities of such
series; provided that, if the Company has made any payment of principal of
or interest on any Securities of such series because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company
and the Trustee may amend or supplement this Indenture or the Securities of
any series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material respect;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
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(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted
by Section 2.3;
(6) to provide for uncertificated Securities and to make all
appropriate changes for such purpose; or
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to
Sections 6.4 and 6.7, without prior notice to any Holders,
the Company and the Trustee may amend this Indenture and the Securities of
any series with the written consent of the Holders of a majority in
principal amount of the outstanding Securities of all series affected by
such supplemental indenture (all such series voting as one class), and the
Holders of a majority in principal amount of the outstanding Securities of
all series affected thereby (all such series voting as one class) by
written notice to the Trustee may waive future compliance by the Company
with any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder of the Securities of each series affected thereby,
an amendment or waiver, including a waiver pursuant to Section 6.4, may
not:
(i) extend the Stated Maturity of the principal of, or any
installment of interest on, such Holder's Security, or reduce the
principal amount thereof or the rate of interest thereon (including
any amount in respect of original issue discount), or any premium
payable with respect thereto, or adversely affect the rights of such
Holder under any mandatory repurchase provision or any right of
repurchase at the option of such Holder, or reduce the amount of the
principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to
Section 6.2 or the amount thereof provable in bankruptcy, or change
any place of payment where, or the currency in which, any Security of
such series or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of
mandatory repurchase, the date therefor);
(ii) reduce the percentage in principal amount of outstanding
Securities of such series the consent of whose Holders is required for
any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture;
(iii) waive a Default in the payment of principal of or interest
on, any Security of such series;
(iv) cause any Security of such series to be subordinated in
right of payment to any obligation of the Company;
(v) modify any of the provisions of this Section 9.2, except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security of any series
affected thereby.
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A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or
which modifies the rights of Holders of Securities of such series with
respect to such covenant or provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other
series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
SECTION 9.3 Revocation and Effect of Consent. Until
an amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the Security of
the consenting Holder, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to its Security or portion of its Security. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to the Securities of any series affected thereby on receipt by the
Trustee of written consents from the Holders of the requisite percentage in
principal amount of the outstanding Securities of such series.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at
such record date (or their duly designated proxies) and only those Persons
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue
to be such Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind
every Holder of such Securities unless it is of the type described in any
of clauses (i) through (v) of Section 9.2. In case of an amendment or
waiver of the type described in clauses (i) through (v) of Section 9.2, the
amendment or waiver shall bind each such Holder who has consented to it and
every subsequent Holder of a Security that evidences the same indebtedness
as the Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security of
any series, the Trustee may require the Holder thereof to deliver it to the
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Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder and the Trustee may
place an appropriate notation on any Security of such series thereafter
authenticated. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security of the same series and tenor that reflects the
changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The
Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 9 is
authorized or permitted by this Indenture. Subject to the preceding
sentence, the Trustee shall sign such amendment, supplement or waiver if
the same does not adversely affect the rights of the Trustee. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement
or waiver that affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article 9 shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. This
Indenture shall incorporate and be governed by the provisions of the Trust
Indenture Act that are required to be part of and to govern indentures
qualified under the Trust Indenture Act.
SECTION 10.2 Notices. Any notice or communication
shall be sufficiently given if written and (a) if delivered in person when
received or (b) if mailed by first class mail when so mailed, or (c) if
sent by facsimile transmission, when transmission is confirmed, in each
case addressed as follows:
if to the Company:
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762-6999 Telecopy: (501) 290-4061
Attention: Treasurer
if to the Trustee:
The Chase Manhattan Bank, N.A. 4 Chase MetroTech Center
Brooklyn, New York 11245 Telecopy: (718) 242-5886
Attention: Corporate Trust
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, and at least once in an
Authorized Newspaper in London, and by mailing to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act at such addresses as were so furnished
to the Trustee and to Holders of Registered Securities by mailing to such
Holders at their addresses as they shall appear on the Securities Register.
Notice mailed shall be sufficiently given if so mailed within the time
prescribed. Copies of any such communication or notice to a Holder shall
also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. Except as otherwise provided in this Indenture, if a notice or
communication is mailed in the manner provided in this Section 10.2, it is
duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 10.3 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 10.4 Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance by or on
behalf of the Company with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.5 Evidence of Ownership. The Company, the
Trustee and any agent of the Company or the Trustee may treat the Holder of
any Unregistered Security and the Holder of any coupon as the absolute
owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for all
other purposes and neither the Company, the Trustee, nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary.
The fact of the holding by any Holder of an Unregistered Security, and the
identifying number of such Security and the date of his holding the same,
may be proved by the production of such Security or by a certificate
executed by any trust company, bank, banker or recognized securities dealer
wherever situated satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security bearing a
specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one
or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities
specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination
of such holding (1) another certificate bearing a later date issued in
respect of the same Securities shall be produced, or (2) the Security
specified in such certificate shall be produced by some other Person, or
(3) the Security specified in such certificate shall have ceased to be
outstanding. Subject to Article 7, the fact and date of the execution of
any such instrument and the amount and numbers of Securities held by the
Person so executing such instrument may also be proven
in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.
In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a certificate of
the Registrar.
SECTION 10.6 Rules by Trustee, Paying Agent or
Registrar. The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 10.7 Payment Date Other Than a Business Day.
If any date for payment of principal or interest on any Security shall not
be a Business Day at any place of payment, then payment of principal of or
interest on such Security, as the case may be, need not be made on such
date, but may be made on the next succeeding Business Day at any place of
payment with the same force and effect as if made on such date and no
interest shall accrue in respect of such payment for the period from and
after such date.
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SECTION 10.8 Governing Law. The laws of the State of
New York shall govern this Indenture and the Securities.
SECTION 10.9 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture
or loan or debt agreement of the Company or any Subsidiary of the Company.
Any such indenture or agreement may not be used to interpret this
Indenture.
SECTION 10.10 Successors. All agreements of the
Company in this Indenture and the Securities shall bind its successors.
All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 10.11 Duplicate Originals. The parties may
sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 10.12 Separability. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.13 Table of Contents, Headings, Etc. The
Table of Contents and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of
the terms and provisions hereof.
107
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the date first written above.
TYSON FOODS, INC.
as Issuer
By:
Name:
Title:
THE CHASE MANHATTAN BANK, N.A. as Trustee
By:
Name:
Title:
_______________________________
*Note: The Table of Contents shall not for any
purposes be deemed to be a part of the Indenture.
108
<PAGE>
EXHIBIT 5
ROSE LAW FIRM
120 EAST FOURTH STREET
LITTLE ROCK, AR 72201
March 22, 1995
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762-6999
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Tyson Foods, Inc. (the "Company") in
connection with the proposed issuance and sale by the Company of up to
$500,000,000 (subject to adjustment for the issuance of securities at an
original issue discount or the denomination in a foreign currency
or currencies) aggregate principal amount of debt securities (the "Debt
Securities") to be issued pursuant to the Indenture (the "Indenture")
between the Company and The Chase Manhattan Bank, N.A., as trustee (the
"Trustee"). In rendering the opinions expressed below, we are
familiar with the actions taken by the Company in respect thereof and have
examined originals or certified or attested copies of such certificates,
records or documents as we have deemed necessary for the purposes of this
opinion.
We call your attention to the fact that the Indenture provides that it
is to be governed by and construed in accordance with the laws of the State
of New York. For purposes of our opinions expressed in paragraphs (3) and
(4) below, we have assumed, with your approval, that the Indenture would be
governed by and construed in accordance with the domestic substantive
laws of the State of Arkansas without giving effect to any choice or
conflict of laws rule or provision that would cause the application of the
domestic substantive laws of any other jurisdiction, and no opinion is
expressed herein as to any matter governed by any law other than
such laws of Arkansas, the United States of America and the General
Corporation Law of the State of Delaware.
Based on the foregoing, we are of the opinion that:
(1) when the Registration Statement relating to the Debt Securities
filed with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, has been declared effective, no further authorization,
consent or approval by any regulatory authority will be required for the
valid issuance and sale of the Debt Securities (except under the so-called
"blue-sky" or securities laws of the several states, as to the
applicability of which we do not express an opinion);
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(2) when the Board of Directors of the Company or a committee
designated thereby, or the authorized officers of the Company acting
pursuant to a delegation of authority to them by such a committee, has
determined the price and other terms and conditions relating to the
issue and sale of the Debt Securities, the Debt Securities will have been
duly authorized by the Company;
(3) upon the execution and delivery to the Trustee of the duly
executed written order of the Company, the Debt Securities will be issuable
under the terms of the Indenture; and
(4) upon the execution, certification and delivery of the Debt
Securities in accordance with the corporate and governmental authorizations
referred to above and in accordance with the Indenture, the Debt Securities
will be valid and legally binding obligations of the Company and
will be entitled to the benefits provided by the Indenture equally with any
other series of Debt Securities which may hereafter be issued under the
Indenture pursuant to the terms thereof.
The opinion expressed in numbered paragraph (4) is qualified to the
extent that enforcement of the rights and remedies in the Indenture and the
Debt Securities referred to therein is subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
We understand that this opinion is to be used in connection with the
Company's Registration Statement on Form S-3 relating to the Debt
Securities to be filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended. We consent to the filing of this
opinion with and as part of said Registration Statement and the use of our
name therein and in the related Prospectus under the caption "Legal
Matters."
Very truly yours,
ROSE LAW FIRM,
a Professional Association
By: /s/ Les R. Baledge
110
<PAGE>
<TABLE>
<CAPTION>
TYSON FOODS, INC.
STATEMENT SETTING FORTH COMPUTATIONS OF RATIOS
OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
Quarter
Ended Fiscal Year Ended
12-31-94 1994 1993 1992 1991 1990
________ ________ ________ ________ ________ ________
<S> <C> <C> <C> <C> <C> <C>
Net income for the period $ 52,235 $ (2,128) $180,334 $160,534 $145,498 $120,015
Add:
Provision for income taxes 32,032 120,745 129,301 100,505 97,025 80,054
Fixed charges 29,632 102,882 88,773 94,206 112,678 141,499
Less capitalized interest (678) (1,993) (1,551) (895) (1,420) (1,501)
________ ________ ________ ________ ________ ________
Income before taxes on
income and fixed charges $113,221 $219,506 $396,857 $354,350 $353,781 $340,067
Fixed charges:
Interest (1) $ 25,359 86,343 $ 73,111 $ 77,186 95,765 128,854
Capitalized interest 678 1,993 1,551 895 1,420 1,501
Rentals at computed
interest factor (2) 2,557 9,543 8,414 6,767 6,499 6,258
Amortization of debt
discount expense 1,038 5,003 5,697 9,358 8,994 4,886
________ ________ ________ ________ ________ ________
Total fixed charges $ 29,632 $102,882 $ 88,773 $ 94,206 $112,678 $141,499
Ratio of earnings to
fixed charges 3.82 2.13 4.47 3.76 3.14 2.40
<FN>
(1) Interest expense as reported in the Consolidated Results of Operations
plus the Company's proportionate share of interest of 50% owned
subsidiaries.
(2) Amounts represent those portions of rent expense (one-third) that are
reasonable approximations of interest costs.
</FN>
</TABLE>
111
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Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement Form S-3 No. 33-_____ and
related Prospectus of Tyson Foods, Inc. for the registration of
$500,000,000 of debt securities and to the incorporation by
reference therein of our reports dated November 14, 1994 with
respect to the consolidated financial statements and schedules of
Tyson Foods, Inc. included or incorporated in its Annual Report
(Form 10-K) for the year ended October 1, 1994, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
---------------------
ERNST & YOUNG LLP
Little Rock, Arkansas
March 22, 1995
112
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Shelby D. Massey Director March 18, 1995
- --------------------
Shelby D. Massey
113
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Joe F. Starr Director March 22, 1995
- ----------------
Joe F. Starr
114
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Neely Cassady Director March 17, 1995
- -----------------
Neely Cassady
115
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Fred S. Vorsanger Director March 20, 1995
- ---------------------
Fred S. Vorsanger
116
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, her true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for her and in her name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as she might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Barbara Tyson Director March 16, 1995
- -----------------
Barbara Tyson
117
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Lloyd V. Hackley Director March 19, 1995
- --------------------
Lloyd V. Hackley
118
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Leland Tollett Director March 15, 1995
- ------------------
Leland Tollett
119
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Donald J. Tyson Director March 22, 1995
- -------------------
Donald J. Tyson
120
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ John H. Tyson Director March 16, 1995
- -----------------
John H. Tyson
121
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Leland Tollett and/or Gerald Johnston, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-3, and any or all
amendments or supplements thereto, to be filed by Tyson Foods, Inc. with
respect to the shelf registration of up to $500,000,000 of debt securities,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney in fact and agent or his substitute(s), may lawfully do or cause
to be done by virtue hereof.
/s/ Donald E. Wray Director March 16, 1995
- ------------------
Donald E. Wray
122
<PAGE>
Securities Act of 1933 File No.
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
___________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
________________
TYSON FOODS, INC.
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-0225165
(I.R.S. Employer Identification No.)
2210 West Oaklawn Drive
Springdale, Arkansas
(Address of principal executive offices)
72762
(Zip Code)
__________________________________
Debit Securities
(Title of the indenture securities)
___________________________________________________________________________
123
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control
with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect .(See Exhibit T-1 (Item 12) , Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan Bank
(National Association) and The Chase Bank of New York (National
Association) to commence business and a copy of approval of
merger of said corporations, all of which documents are still
in effect. (See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is
in default. (Not applicable).
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of
the Exhibit heretofore filed with the Securities and Exchange Commission,
to which there have been no amendments or changes.
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NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base a responsive answer to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America,
has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City of New York,
and the State of New York, on the 16th day March, 1995.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ Timothy E. Burke
-----------------------
Timothy E. Burke
Second Vice President
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Exhibit 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on
December 31, 1994, published in response to call made by Comptroller of the
Currency, under title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
Thousands
ASSETS of
Dollars
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and coin $4,517,179
Interest-bearing balances 7,001,642
Held to maturity securities 1,593,325
Available-for-sale securities 4,669,255
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold 3,651,850
Securities purchased under agreements to resell 0
Loans and lease financing receivable:
Loans and leases, net of unearned income 50,879,818
LESS: Allowance for loan and lease losses 1,073,196
LESS: Allocated transfer risk reserve 0
Loans and leases, net of unearned income, allowance and reserve 49,806,622
Assets held in trading accounts 13,112,807
Premises and fixed assets (including capitalized leases) 1,758,500
Other real estate owned 480,982
Investments in unconsolidated subsidiaries and 55,722
associated companies
Customers' liability to this bank on acceptances outstanding 611,839
Intangible assets 787,948
Other assets 6,145,452
TOTAL ASSETS $94,193,123
LIABILITIES
Deposits:
In domestic offices $29,536,028
Noninterest-bearing $11,648,377
Interest-bearing 17,887,651
In foreign offices, Edge and Agreement subsidiaries, and IBFs 36,020,612
Noninterest-bearing 2,320,293
Interest-bearing 33,700,319
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased 1,014,936
Securities sold under agreements to repurchase 678,033
Demand notes issued to the U.S. Treasury 300,000
Trading liabilities 8,066,477
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Other borrowed money:
With original maturity of one year or less 2,940,252
With original maturity of more than one year 427,525
Mortgage indebtedness and obligations under 40,550
capitalized leases
Bank's liability on acceptances executed and 616,531
outstanding
Subordinated notes and debentures 2,360,000
Other liabilities 5,195,890
TOTAL LIABILITIES 87,196,834
Limited-life preferred stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 915,576
Surplus 4,656,010
Undivided profits and capital reserves 1,478,713
Net unrealized holding gains (losses) on (64,959)
available-for-sale securities
Cumulative foreign currency translation adjustments 10,949
TOTAL EQUITY CAPITAL 6,996,289
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL $94,193,123
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the
above named bank do hereby declare that this Report of Condition is true
and correct to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Richard J. Boyle Directors
(Signed) Donald H. Trautlein
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