<PAGE>
As filed with the Securities and Exchange Commission on December 17, 1997
Registration No. 333- __________
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
incorporation or organization) Identification No.)
2210 West Oaklawn Drive Wayne Britt
Springdale, Arkansas 72762-6999 2210 West Oaklawn Drive
(501) 290-4000 Springdale, AR 72762-6999
(501) 290-4000
(Address, including zip (Name, address, including zip Code
code, and telephone number, and telephone number, including
including area code, of area code, of agent for service)
registrant's principal
executive offices)
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 Association 450 Lexington Avenue
120 East Fourth Street New York, New York 10017
Little Rock, Arkansas 72201 (212) 450-4000
(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.[xl
<PAGE>
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [x]
Calculation of Registration Fee
________________________________________________________________
Title of each Amount to Proposed Proposed Amount of
class of be Maximum Maximum Registration
Securities to Registered Offering Aggregate Fee
be registered price offering
per unit price (1)
Debt $500,000,000 100% $500,000,000 $147,500
Securities (2) (3)
________________________________________________________________
(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 the
initial offering.
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.
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 DECEMBER 17, 1997
<PAGE>
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 (as hereafter defined) 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 January __, 1997.
<PAGE>
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. The Commission also
maintains a Web Site at http://www.sec.gov that contains reports,
proxy statements and other information. Reports and other
information concerning the Company can also be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, on which certain of the Company's
securities are listed.
This Prospectus constitutes a part of a Registration
Statement on Form S-3, as amended (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.
<PAGE>
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 September 27, 1997; and
2. The Company's Current Report on Form 8-K dated
December 16, 1997.
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
seafood products, fresh and frozen seafood products, prepared
foods, and other products such as flour and corn tortillas and
chips. Additionally, the Company has live swine, animal feed and
pet food ingredient operations. The Company's integrated
operations consist of breeding and rearing chickens, and
harvesting seafood, as well as the processing, further processing
and marketing of these food products. 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 and their distributors,
international export companies and domestic distributors who
service restaurants, food service operations such as plant and
school cafeterias, convenience stores, hospitals and other
vendors.
<PAGE>
As of September 27, 1997, Don Tyson, Senior Chairman of the
Board of Directors of the Company, directly and through the Tyson
Limited Partnership, of which he is the managing general partner,
beneficially owned 0.5% and 99.9% of the Company's Class A Common
Stock, $.10 par value per share, and Class B Common Stock, $.10
par value per share, respectively which represented approximately
90.2% of the combined voting power of the shares of such Class A
Common Stock and Class B Common Stock on such date.
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 year in the five year
period ended September 27, 1997. 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.
Fiscal Year Ended
1997 1996 1995 1994 1993
3.37 1.84 3.59 2.14 4.48
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of
the Debt Securities to refinance existing indebtedness (including
but not limited to indebtedness of Hudson Foods, Inc. to be
assumed pursuant to the acquisition thereof), 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.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated
as of June 1, 1995, as supplemented, (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
<PAGE>
Registration Statement and which is also available for inspection
at the office of the Trustee. Section references are to the
Indenture. The following summarizes the material terms of the
Indenture; however, 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. 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;
(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)
<PAGE>
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 a
"Global Security"). 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.
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
<PAGE>
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
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
<PAGE>
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
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
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
<PAGE>
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
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
<PAGE>
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) if 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
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)
<PAGE>
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
of the date Exempted Debt is being determined: 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."
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
<PAGE>
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, 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
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
<PAGE>
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 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 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
<PAGE>
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
Holders), 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
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
<PAGE>
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 an 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
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
<PAGE>
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
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
<PAGE>
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
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
<PAGE>
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
affect 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
(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
<PAGE>
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
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)
<PAGE>
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)
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
entitled to receive adequate protection of their interests in
such trust funds if such trust funds are used in such case or
<PAGE>
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 each
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
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
<PAGE>
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
Bank, N.A., and its affiliates along with a number of other banks
have extended credit facilities to the Company and its
subsidiaries.
<PAGE>
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.
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
<PAGE>
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 December 11, 1997 of approximately $62,034.
EXPERTS
The consolidated financial statements of Tyson Foods, Inc.
incorporated by reference in the Company's Annual Report (Form
10K) for the year ended September 27, 1997, 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.
The consolidated balance sheets of Hudson Foods, Inc. as of
September 27, 1997 and September 28, 1996 and the consolidated
statements of income, stockholders' equity, and cash flows for
each of the three years in the period ended September 27, 1997,
incorporated by reference in this prospectus, have been
incorporated herein in reliance on the report of Coopers &
Lybrand, L.L.P., independent accountants, given on the authority
of that 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 $147,500
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
Miscellaneous 15,000
Total $440,000
*All amounts except the Securities and Exchange Commission
registration fee 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
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.
<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
to be indemnified by the Company pursuant to applicable
provisions of the DGCL.
<PAGE>
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
would 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.
<PAGE>
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 Bylaws,
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 (incorporated by
reference to the Company's Form S-3
Registration Statement, No. 33-58177,
filed on March 22, 1995)
4 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
23.3 Consent of Coopers & Lybrand LLP
24 Powers of Attorney
25 Statement of Eligibility of Trustee (incorporated by
reference to the Company's Form S-3 Registration
Statement, No. 33-58177, filed on March 22, 1995)
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;
<PAGE>
(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;
(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
<PAGE>
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.
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 17th day of
December, 1997.
TYSON FOODS, INC.
(Registrant)
By:/S/ Wayne Britt
Wayne Britt
Executive Vice President and Chief
Financial Officer
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*
Don Tyson
Senior Chairman of the Board
December 17, 1997
/s/ Leland E. Tollett
Leland E. Tollett
Chairman, Chief Executive Officer
and Director
December 17, 1997
/s/ John H. Tyson*
John H. Tyson
Vice Chairman of Board
December 17, 1997
/s/ Donald E. Wray*
Donald E. Wray
President, Chief Operating Officer
and Director
December 17, 1997
/s/ Shelby D. Massey*
Shelby D. Massey
Director
December 17, 1997
<PAGE>
/s/ Joe F. Starr*
Joe F. Starr
Director
December 17, 1997
/s/ Neely E. Cassady*
Neely E. Cassady
Director
December 17, 1997
/s/ Fred S. Vorsanger*
Fred S. Vorsanger
Director
December 17, 1997
/s/ Barbara A. Tyson*
Barbara A. Tyson
Director
December 17, 1997
/s/ Lloyd V. Hackley*
Lloyd V. Hackley
Director
December 17, 1997
/s/ Gerald M. Johnson*
Gerald M. Johnson
Director
December 17, 1997
/s/ Wayne Britt
Wayne Britt
Executive Vice President and Chief
Financial Officer (Principal
Financial Officer)
December 17, 1997
/s/ James G. Ennis
James G. Ennis
Vice President and Controller
(Chief Accounting Officer)
December 17, 1997
*By:/s/ Wayne Britt
Wayne Britt, Attorney-in-Fact
<PAGE>
========================================================================
TYSON FOODS, INC.
as Issuer
and
THE CHASE MANHATTAN BANK, N.A.
as Trustee
___________________________________
Indenture
Dated as of June 1, 1995
___________________________________
===========================================================================
<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
- ----------
(*)Note: The Table of Contents shall not for any
purposes be deemed to be a part of the Indenture.
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......................................18
SECTION 2.8 Replacement Securities.....................................21
SECTION 2.9 Outstanding Securities.....................................22
SECTION 2.10 Temporary Securities......................................23
SECTION 2.11 Cancellation..............................................23
SECTION 2.12 CUSIP Numbers.............................................23
SECTION 2.13 Defaulted Interest........................................24
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......................................... 28
SECTION 3.5 Mandatory and Optional Sinking Funds.......................28
<PAGE>
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities......................................31
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.........................................36
SECTION 4.6 Compliance Certificates; Reports...........................36
SECTION 4.7 Waiver of Stay, Extension or Usury Laws....................37
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....................................42
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...........................44
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............................46
SECTION 6.14 Delay or Omission Not Waiver..............................46
ARTICLE 7
TRUSTEE
SECTION 7.1 General....................................................46
SECTION 7.2 Certain Rights of Trustee..................................47
SECTION 7.3 Individual Rights of Trustee...............................48
SECTION 7.4 Trustee's Disclaimer.......................................48
SECTION 7.5 Notice of Default..........................................48
SECTION 7.6 Reports by Trustee to Holders..............................49
SECTION 7.7 Compensation and Indemnity.................................49
SECTION 7.8 Replacement of Trustee.....................................50
SECTION 7.9 Successor Trustee by Merger, Etc...........................51
SECTION 7.10 Eligibility...............................................51
SECTION 7.11 Money Held in Trust.......................................52
<PAGE>
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment......................52
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.......................................58
SECTION 8.6 Reinstatement..............................................58
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.................................59
SECTION 9.2 With Consent of Holders....................................59
SECTION 9.3 Revocation and Effect of Consent...........................61
SECTION 9.4 Notation on or Exchange of Securities......................62
SECTION 9.5 Trustee to Sign Amendments, Etc............................62
SECTION 9.6 Conformity with Trust Indenture Act........................62
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939................................63
SECTION 10.2 Notices....................................................63
SECTION 10.3 Certificate and Opinion as to Conditions Precedent.........64
SECTION 10.4 Statements Required in Certificate or Opinion..............64
SECTION 10.5 Evidence of Ownership......................................65
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar................66
SECTION 10.7 Payment Date Other Than a Business Day.....................66
SECTION 10.8 Governing Law..............................................66
SECTION 10.9 No Adverse Interpretation of Other Agreements..............66
SECTION 10.10 Successors................................................66
SECTION 10.11 Duplicate Originals.......................................66
SECTION 10.12 Separability..............................................66
SECTION 10.13 Table of Contents, Headings, Etc..........................67
SIGNATURES
<PAGE>
INDENTURE, dated as of June 1, 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 Indenture 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 GAAP, 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 GAAP. 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 GAAP.
<PAGE>
"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 non-voting) 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 non-voting) 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 GAAP 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.
<PAGE>
"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 Depositary 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 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 this Indenture and secured by liens created, assumed
or otherwise incurred 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 transactions 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.
<PAGE>
"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 Securities 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 non-voting) 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 improvements,
buildings and associated 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 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 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.
<PAGE>
"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 Section Section 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.
"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.
<PAGE>
"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
<PAGE>
"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.
<PAGE>
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
<PAGE>
transferred except as a whole by the Depositary to the nominee of the
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 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 authenticated 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 registration 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 Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable 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 360-day 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;
<PAGE>
(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 Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions 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 Securities, 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 currency of the United States of America
or if other than the currency in which the Securities of the series
are denominated, 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;
(11) 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;
(12) 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;
(13) 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;
(14) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of the series;
(15) 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;
<PAGE>
(16) 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;
(17) any other events of default or covenants with respect to
the Securities of the series; and
(18) 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 denomination 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.
A series of Securities may include one or more tranches (each a
"tranche") of Securities, including Securities issued in a Periodic
Offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices,
but all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding
any other provision of this Indenture, with respect to Sections 2.2 (other
than the fourth paragraph thereof) through 2.4, 3.1 through 3.5, 6.1
through 6.14, 8.1 through 8.5 and 9.2, if any series of Securities includes
more than one tranche, all provisions of such sections applicable to any
series of Securities shall be deemed equally applicable to each tranche of
any series of Securities in the same manner as though originally designated
a series unless otherwise provided with respect to such series or tranche
pursuant to this Section 2.3. In particular, and without limiting the scope
of the next preceding sentence, any of the provisions of such sections
which provide for or permit action to be taken with respect to a series of
Securities shall also be deemed to provide for and permit such action to be
taken instead only with respect to Securities of one or more tranches
within that series (and such provisions shall be deemed satisfied thereby),
even if no comparable action is taken with respect to Securities in the
remaining tranches of that series.
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 denominations of Unregistered Securities
of any series are not so established, such Securities shall be issuable in
denominations 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.
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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.
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.
<PAGE>
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
(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.
<PAGE>
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.
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 rendered 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.
<PAGE>
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
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.
<PAGE>
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 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.
<PAGE>
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
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
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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
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
<PAGE>
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 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.
<PAGE>
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.
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)
<PAGE>
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
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)
<PAGE>
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.
(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
<PAGE>
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.
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
<PAGE>
(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.
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.
<PAGE>
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
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
<PAGE>
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 or of
all the Securities as the case may be (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 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.
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 the series affected (all such series voting
as a single 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
<PAGE>
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:
(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
<PAGE>
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 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 collected 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 installments of interest at the same rate as the rate of
<PAGE>
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 insufficient 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 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 enforcement of 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.
<PAGE>
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, 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
<PAGE>
(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
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.
<PAGE>
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.
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.
<PAGE>
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 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.
<PAGE>
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 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
<PAGE>
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 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 first priority security interest in the trust funds
subject to Section 7.7, 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
<PAGE>
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
(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:
<PAGE>
(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 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;
<PAGE>
(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 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
<PAGE>
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;
(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
sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the principal amount thereof or the rate
<PAGE>
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.
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
<PAGE>
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 classes (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
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.
<PAGE>
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.
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.
<PAGE>
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
(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,
<PAGE>
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.
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.
<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:
<PAGE>
EXHIBIT 5
ROSE LAW FIRM
120 EAST FOURTH STREET
LITTLE ROCK, AR 72201
December 17, 1997
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);
<PAGE>
(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
and the caption "Legal Matters".
Very truly yours,
ROSE LAW FIRM,
a Professional Association
By: /s/ Jeffery Gearhart
<PAGE>
Exhibit 12
TYSON FOODS, INC.
STATEMENT SETTING FORTH COMPUTATIONS OF RATIOS
OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
Fiscal Year Ended
1997 1996 1995 1994 1993
Net income for the period $185,799 $86,867 $219,191 $(2,128) $180,334
Add: Provision for Income 143,922 49,048 131,036 120,745 129,301
Taxes
Fixed Charges 137,752 156,938 134,292 102,711 88,507
Less capitalized interest (3,434) (3,774) (3,068) (1,822)
Income before taxes on 464,039 289,079 481,451 219,506 396,857
income and fixed charges
Fixed charges: Interest 118,514 137,841 114,840 86,343 73,111
(1)
Capitalized interest 3,434 3,774 3,068 1,822 1,285
Rentals at computed 11,333 11,909 12,637 9,543 8,414
interest factor (2)
Amortization of debt 4,471 3,414 3,747 5,003 5,697
discount expense
TOTAL FIXED CHARGES 137,752 156,938 134,292 102,711 88,507
Ratio of earnings to fixed 3.37 1.84 3.59 2.14 4.48
charges
(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.
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement Form S-3 No. 333-
__________ 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, 1997 with respect to the consolidated financial
statements and schedule of Tyson Foods, Inc. included or
incorporated in its Annual Report (Form 10-K) for the year
ended September 27, 1997, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG
Little Rock, Arkansas
December 17, 1997
<PAGE>
Exhibit 23.3
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement
of Tyson Foods, Inc. on Form S-3 (File No. ) of our report dated
November 10, 1997, on our audits of the consolidated financial statements
and financial statement schedule of Hudson Foods, Inc. as of
September 27, 1997 and September 28, 1996, and for each of the three years
in the period ended September 27, 1997, which report is included in the
Annual Report on Form 10-K of Hudson Foods, Inc. We also consent to the
reference to our firm under the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
- ----------------------------
Coopers & Lybrand
Tulsa, Oklahoma
December 17, 1997
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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/ Don Tyson Director November 14, 1997
Don Tyson
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 E. Tollett Director November 14, 1997
Leland E. Tollett
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 November 14, 1997
Joe F. Starr
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 November 14, 1997
John H. Tyson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 November 14, 1997
Shelby D. Massey
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 E. Cassady Director November 14, 1997
Neely E. Cassady
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 November 14, 1997
Fred S. Vorsanger
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 her substitute(s), may lawfully do
or cause to be done by virtue hereof.
/s/Barbara A. Tyson Director November 14, 1997
Barbara A. Tyson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 November 14, 1997
Lloyd V. Hackley
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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 November 14, 1997
Donald E. Wray
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes
and appoints Leland Tollett and/or Wayne Britt, 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 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended), to be
filed by Tyson Foods, Inc. with respect to the shelf registration
of up to $500,000,000 of debt securities (and such additional
amount of debt securities as may registered pursuant to Rule
462(b)), 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/Gerald M. Johnston Director November 14, 1997
Gerald M. Johnston
