Exhibit (a)(23)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CREDIT AGREEMENT
dated as of January 12, 2001
among
TYSON FOODS, INC.,
as Borrower
THE BANKS PARTY HERETO
THE CHASE MANHATTAN BANK,
as Administrative Agent
XXXXXXX XXXXX CAPITAL CORPORATION,
as Syndication Agent
and
SUNTRUST BANKS, INC.,
as Documentation Agent
-------------------------------
SUNTRUST EQUITABLE SECURITIES CORPORATION
as Arranger
XX XXXXXX
XXXXXXX XXXXX & CO.,
as Joint Lead Arrangers and Joint Book Managers
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01. Certain Defined Terms..................................................1
SECTION 1.02. Computation of Time Periods...........................................16
SECTION 1.03. Accounting Matters....................................................16
SECTION 1.04. Certain Terms.........................................................16
ARTICLE II
Amounts and Terms of the Loans
SECTION 2.01. Amounts and Terms of Commitments......................................17
SECTION 2.02. Procedure for Committed Borrowing.....................................17
SECTION 2.03. Bid Borrowings........................................................18
SECTION 2.04. Procedure for Bid Borrowings..........................................18
SECTION 2.05. Evidence of Indebtedness..............................................21
SECTION 2.06. Termination and Reduction of the Commitments..........................22
SECTION 2.07. Optional Prepayments..................................................22
SECTION 2.08. Repayment.............................................................23
SECTION 2.09. Interest..............................................................23
SECTION 2.10. Default Interest......................................................24
SECTION 2.11. Continuation and Conversion Elections for
Committed Borrowings....................................................24
ARTICLE III
Fees; Payments; Taxes; Changes in Circumstances
SECTION 3.01. Fees..................................................................26
SECTION 3.02. Computation of Fees and Interest......................................27
SECTION 3.03. Payments by the Borrower..............................................27
SECTION 3.04. Payments by the Banks to the Administrative Agent.....................28
SECTION 3.05. Taxes.................................................................28
SECTION 3.06. Sharing of Payments, Etc..............................................33
SECTION 3.07. Inability to Determine Rates..........................................33
SECTION 3.08. Increased Costs.......................................................34
SECTION 3.09. Illegality............................................................34
2
SECTION 3.10. Capital Adequacy......................................................35
SECTION 3.11. Funding Losses........................................................35
SECTION 3.12. Additional Interest on Eurodollar Loans...............................36
SECTION 3.13. Certificates of Banks.................................................36
SECTION 3.14. Change of Lending Office; Replacement Bank............................36
ARTICLE IV
Representations and Warranties
SECTION 4.01. Corporate Existence; Compliance with Law..............................37
SECTION 4.02. Corporate Authorization; No Contravention,
Governmental Authorization..............................................38
SECTION 4.03. Enforceable Obligations...............................................38
SECTION 4.04. Taxes.................................................................38
SECTION 4.05. Financial Matters.....................................................39
SECTION 4.06. Litigation............................................................40
SECTION 4.07. Subsidiaries..........................................................40
SECTION 4.08. Liens.................................................................41
SECTION 4.09. No Burdensome Restrictions; No Defaults...............................41
SECTION 4.10. Investment Company Act................................................41
SECTION 4.11. Use of Proceeds; Margin Regulations...................................41
SECTION 4.12. Assets................................................................41
SECTION 4.13. Labor Matters.........................................................42
SECTION 4.14. Environmental Matters.................................................42
SECTION 4.15. Completeness..........................................................43
SECTION 4.16. ERISA.................................................................43
SECTION 4.17. Insurance.............................................................45
ARTICLE V
Conditions Precedent
SECTION 5.01. Conditions Precedent to Effectiveness.................................45
SECTION 5.02. Conditions Precedent to All Borrowings................................48
ARTICLE VI
Affirmative Covenants
SECTION 6.01. Compliance with Laws, Etc.............................................49
SECTION 6.02. Use of Proceeds.......................................................49
SECTION 6.03. Payment of Obligations, Etc...........................................49
3
SECTION 6.04. Insurance.............................................................50
SECTION 6.05. Preservation of Corporate Existence, Etc..............................50
SECTION 6.06. Access................................................................50
SECTION 6.07. Keeping of Books......................................................50
SECTION 6.08. Maintenance of Properties.............................................50
SECTION 6.09. Financial Statements..................................................51
SECTION 6.10. Reporting Requirements................................................52
SECTION 6.11. Notices Regarding ERISA...............................................52
SECTION 6.12. Employee Plans........................................................53
SECTION 6.13. Environmental Compliance; Notice......................................54
SECTION 6.14. Acquisition and Merger Agreement......................................54
SECTION 6.15. Shelf Registration....................................................54
ARTICLE VII
Negative Covenants
SECTION 7.01. Limitations on Liens..................................................55
SECTION 7.02. Limitation on Indebtedness............................................58
SECTION 7.03. Lease Obligations.....................................................59
SECTION 7.04. Restricted Payments...................................................60
SECTION 7.05. Xxxxxxx, Etc..........................................................60
SECTION 7.06. Investments in Other Persons..........................................61
SECTION 7.07. Assets................................................................62
SECTION 7.08. Change in Nature of Business..........................................62
SECTION 7.09. Capital Structure.....................................................63
SECTION 7.10. Transactions with Affiliates, Etc.....................................63
SECTION 7.11. Accounting Changes....................................................63
SECTION 7.12. Margin Regulations....................................................64
SECTION 7.13. Compliance with ERISA.................................................64
SECTION 7.14. Speculative Transactions..............................................65
SECTION 7.15. Debt Ratio............................................................65
SECTION 7.16. Interest Expense Coverage Ratio.......................................65
ARTICLE VIII
Events of Default
SECTION 8.01. Events of Default.....................................................65
SECTION 8.02. Remedies..............................................................69
SECTION 8.03. Rights Not Exclusive..................................................69
4
ARTICLE IX
The Administrative Agent
SECTION 9.01. Appointment...........................................................70
SECTION 9.02. Delegation of Duties..................................................70
SECTION 9.03. Liabilities of Agents.................................................70
SECTION 9.04. Reliance by Administrative Agent......................................70
SECTION 9.05. Notice of Default.....................................................71
SECTION 9.06. Credit Decision.......................................................71
SECTION 9.07. Indemnification.......................................................72
SECTION 9.08. Administrative Agent in Individual Capacity...........................73
SECTION 9.09. Successor Administrative Agent........................................73
ARTICLE X
Miscellaneous
SECTION 10.01. Notices, Etc.........................................................73
SECTION 10.02. Amendments, Etc......................................................74
SECTION 10.03. No Waiver; Remedies..................................................74
SECTION 10.04. Costs and Expenses...................................................75
SECTION 10.05. Indemnity............................................................75
SECTION 10.06. Right of Set-off.....................................................76
SECTION 10.07. Binding Effect.......................................................76
SECTION 10.09. Confidentiality......................................................78
SECTION 10.10. Survival.............................................................79
SECTION 10.11. Headings.............................................................79
SECTION 10.12. Governing Law and Jurisdiction.......................................79
SECTION 10.13. Execution in Counterparts............................................79
SECTION 10.14. Entire Agreement.....................................................79
SECTION 10.15. Waiver of Jury Trial.................................................80
Exhibits
Exhibit 1.01 Form of Guarantee Agreement
Exhibit 2.02 Form of Notice of Borrowing
Exhibit 2.04(a) Form of Competitive Bid Request
Exhibit 2.04(b) Form of Competitive Bid
Exhibit 2.05(b) Form of Committed Loan Note
Exhibit 2.05(c) Form of Bid Note
Exhibit 2.11 Form of Notice of Conversion/Continuation
5
Exhibit 5.01 Forms of Opinion
Exhibit 6.09 Form of Compliance Certificate
Exhibit 10.08 Form of Notice of Assignment
Attachment A to Form of Assignment and Assumption
Exhibit 10.08 agreement
Schedules
Schedule 1.01(a) Commitments; Percentage Shares
Schedule 1.01(c) Existing Depositories
Schedule 4.05 Material Liabilities
Schedule 4.06 Pending Litigation
Schedule 4.07(a) Subsidiaries
Schedule 4.07(d) Joint Ventures/Partnerships
Schedule 4.13 Labor Matters
Schedule 4.14 Environmental Matters
Schedule 4.16 Employee Benefit Plans
Schedule 7.01/7.02 Existing Liens and Existing Indebtedness
CREDIT AGREEMENT dated as of January 12, 2001,
among TYSON FOODS, INC., a Delaware corporation (the
"Borrower"), the banks which are or may, from time to
time hereafter, become parties hereto (the "Banks"),
THE CHASE MANHATTAN BANK, as Administrative Agent
(the "Administrative Agent"), XXXXXXX XXXXX CAPITAL
CORPORATION, as Syndication Agent, and SUNTRUST
BANKS, INC., as Documentation Agent.
The Borrower intends to acquire (the "Acquisition") IBP (such
term and each other capitalized term used but not defined herein having the
meaning given it in Article I) for an aggregate purchase price, together with
the assumption and refinancing of Indebtedness, of approximately $4,700,000,000,
of which approximately $1,584,300,000 will be the portion of the purchase price
paid in cash and approximately $950,000,000 will be the cash amount required to
refinance the IBP Credit Agreement and to provide for working capital for IBP.
The parties hereto agree as follows:
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01. Certain Defined Terms. As used in this Agreement
and in any Schedules and Exhibits to this Agreement, the following terms have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Absolute Rate" means a fixed annual rate, expressed as a
percentage.
"Absolute Rate Bid Loan" means any Bid Loan that bears
interest determined with reference to an Absolute Rate.
"Acquisition" has the meaning assigned to such term in the
preamble to this Agreement.
"Acquisition Date" means the date on which the conditions set
forth in paragraphs (h) through (l) of Section 5.01 are satisfied (or waived in
accordance with Section 10.02).
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Banks, together with any successor
thereto in such capacity.
2
"Administrative Agent's Letter" means the fee letter dated
January 10, 2001, between the Borrower and the Administrative Agent.
"Administrative Agent's Payment Office" means the address for
payments set forth on the signature pages hereof in relation to the
Administrative Agent or such other address as the Administrative Agent may from
time to time specify in accordance with Section 10.01.
"Affiliate" means, with respect to any Person, any Subsidiary
of such Person and any other Person which, directly or indirectly, controls, is
controlled by, or is under common control with, such Person, and includes, if
such Person is a corporation, each Person who is the beneficial owner of 5% or
more of such corporation's outstanding common stock. For purposes of this
definition, "control" means the possession of the power to direct or cause the
direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit Agreement, as from time to time
amended, modified or supplemented.
"Aggregate Commitments" means the aggregate amount of the
Commitments of all the Banks as in effect from time to time.
"Assignee" has the meaning specified in Section 10.08(a).
"Bank" has the meaning specified in the preamble and includes
each Bank listed on the signature pages hereof and each Person which becomes a
Bank pursuant to Section 10.08.
"Bank Affiliate" means a Person engaged primarily in the
business of commercial banking and that is a Subsidiary of a Bank or of a Person
of which a Bank is a Subsidiary.
"Bid Borrowing" means an extension of credit hereunder
consisting of one or more Bid Loans made to the Borrower on the same day by one
or more Banks.
"Bid Loan" means a Loan made by a Bank to the Borrower
pursuant to Section 2.03 and may be a LIBOR Bid Loan or an Absolute Rate Bid
Loan.
"Borrower" has the meaning specified in the preamble.
"Borrowing" means a Committed Borrowing or a Bid Borrowing.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close and, if the applicable Business Day relates to any Eurodollar
Loan, means such a day on which dealings are carried on in the London interbank
market.
3
"CERCLA" has the meaning specified in the definition of
Environmental Law.
"COBRA" has the meaning specified in Section 4.16(k).
"Code" means the Internal Revenue Code of 1986 (or any
successor(s) thereto), as amended from time to time.
"Commitment" means, for each Bank, as the context may require
(a) the amount in dollars set forth in Schedule 1.01(a) opposite the name of
such Bank under the heading "Commitment" or as otherwise set forth in any Notice
of Assignment, as such amount may be reduced pursuant to Section 2.06 or as a
result of one or more assignments pursuant to Section 10.08 or (b) the
obligation of such Bank to extend credit to the Borrower hereunder in the amount
specified in the immediately preceding clause (a). The initial aggregate amount
of the Banks' Commitments is $2,500,000,000.
"Committed Borrowing" means an extension of credit hereunder
consisting of Committed Loans made, continued or converted on the same day by
the Banks ratably according to their Percentage Shares and, in the case of
Eurodollar Loans, having the same Interest Periods.
"Committed Loan" means an extension of credit by a Bank to the
Borrower pursuant to Section 2.01 and may be a Eurodollar Loan or a Reference
Rate Loan.
"Competitive Bid" means an offer by a Bank to make a Bid Loan
in accordance with Section 2.04(b).
"Competitive Bid Request" has the meaning specified in Section
2.04(a).
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense for such period, (ii) consolidated income tax expense for such
period, (iii) all amounts attributable to depreciation and amortization for such
period and (iv) extraordinary losses for such period and minus (b) without
duplication and to the extent included in determining such Net Income, any
extraordinary gains for such period, all determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
interest expense (including imputed interest expense in respect of capital lease
obligations) of the Borrower and its consolidated Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the
consolidated net income (or loss) of the Borrower and its consolidated
Subsidiaries for such period (taken as a single accounting period) determined in
conformity with GAAP, excluding (to the extent otherwise included therein) any
gains or losses, together with any related provision for taxes, realized upon
4
any sale of assets other than in the ordinary course of business; provided,
however, that there shall be excluded therefrom the net income (or loss) of any
Person accrued prior to the earlier of the date such Person becomes a Subsidiary
of the Borrower or is merged into or consolidated with the Borrower or any of
its Subsidiaries or such Person's assets are acquired by the Borrower or any of
its Subsidiaries.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or any of
its property is bound.
"Controlled Group" means, with respect to any Person, all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) which are under common control with such Person
and which, together with such Person, are treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code.
"Debt Rating" means the actual or implied rating as most
recently assigned to the Index Debt or the Borrower's senior, unsecured,
non-credit enhanced short-term debt by Moody's or S&P, as the case may be.
"Debt Ratio" means, at any date of determination, the ratio of
(a) Indebtedness for Borrowed Money at such date to (b) Total Capitalization as
of the last day of the most recent fiscal quarter or fiscal year, as the case
may be, of the Borrower for which financial statements have been delivered
pursuant to paragraph (a) or (b) of Section 6.09.
"Default" means any event or condition which, with the giving
of notice or the lapse of time, or both, would become an Event of Default.
"Domestic Lending Office" has the meaning specified in the
definition of Lending Office.
"Effective Date" means the date on which all conditions
precedent set forth in paragraphs (a) through (g) of Section 5.01 are satisfied
(or waived in accordance with Section 10.02).
"Environmental Claim" means any claim, however asserted, by
any Governmental Authority or other Person alleging potential liability for
violation of any Environmental Law or for release or injury to the environment
or threat to public health, personal injury (including sickness, disease or
death), property damage, natural resources damage, or otherwise alleging
liability for damages, punitive damages, cleanup costs, removal costs, remedial
costs, response costs, restitution, civil or criminal penalties, injunctive
relief, or other type of relief, resulting from or based upon (a) the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental
5
placement, spill, leaks, discharges, emissions or releases) of any Hazardous
Material at, in or from property, whether or not owned by the Borrower or any of
its Subsidiaries, or (b) any other circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Law" means the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. ss. 9601 et seq.)
("CERCLA"), the Hazardous Material Transportation Act (49 U.S.C. ss. 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.),
the Federal Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Clean
Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. SS. 2601 et seq.) and the Occupational Safety and Health Act (29 U.S.C.
ss. 651 et seq.) ("OSHA"), as such laws have been or hereafter may be amended,
modified or supplemented, and any and all analogous future federal, or present
or future state or local, statutes and the regulations promulgated pursuant
thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time and all regulations promulgated thereunder.
"ERISA Event" means, with respect to any Person, (a) a
Reportable Event (other than a Reportable Event not subject to the provision for
30-day notice to the PBGC under regulations issued under Section 4043 of ERISA);
(b) the withdrawal of such Person or any member of its Controlled Group from a
Plan during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA; (c) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA; (d) the institution of proceedings to terminate a Plan by the PBGC; (e)
the failure to make required contributions which would result in the imposition
of a Lien under Section 412 of the Code or Section 302 of ERISA; and (f) any
other event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan or the imposition of any liability under
Title IV of ERISA other than PBGC premiums due but not delinquent under Section
4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect from time to
time.
"Eurodollar Lending Office" has the meaning specified in the
definition of Lending Office.
"Eurodollar Loan" means any Committed Loan that bears interest
at a rate determined with reference to LIBOR.
"Eurodollar Reserve Percentage" means, with respect to any
Interest Period for any Eurodollar Loan made by any Bank, the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so
6
applicable) under regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for such Bank with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01.
"Excess Margin Stock" means that portion, if any, of the
Margin Stock owned by the Borrower and its Subsidiaries that must be excluded
from the restrictions imposed by Section 7.01 and Section 7.07 in order for the
value (determined in accordance with Regulation U) of the Margin Stock subject
to such Sections to account for less than 25% of the aggregate value (as so
determined) of all assets subject to such Sections.
"Existing Credit Agreement" means the Fourth Amended and
Restated Credit Agreement dated as of May 26, 1995, as amended, among the
Borrower and the banks and agents party thereto.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Form W-8BEN" has the meaning specified in Section
3.05(f)(i)(B).
"Form W-8ECI" has the meaning specified in Section
3.05(f)(i)(A).
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession, which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any central bank (or similar
monetary or regulatory authority)
7
thereof and any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government.
"Guarantee Agreement" means the Guarantee Agreement,
substantially in the form of Exhibit 1.01, made by IBP for the benefit of the
Administrative Agent and the Lenders.
"Hazardous Materials" means all those substances which are
regulated by, or which may form the basis of liability under, any Environmental
Law, including all substances identified under any Environmental Law as a
pollutant, contaminant, waste, solid waste, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material, or toxic
substance, or petroleum or petroleum derived substance or waste.
"IBP" means IBP, inc., a Delaware corporation.
"IBP Credit Agreement" means the $950,000,000 Nine-Month
Credit Agreement among IBP, the banks party thereto, Bank of America, N.A., as
Syndication Agent, and U.S. Bank National Association, as Administrative Agent.
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money or for the deferred purchase price of
property or services (including reimbursement and all other obligations with
respect to surety bonds, letters of credit and bankers' acceptances, whether or
not matured); (b) all obligations evidenced by notes, bonds, debentures or
similar instruments; (c) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession or
sale of such property); (d) all obligations under leases which have been or
should be, in accordance with GAAP, recorded as capital leases; (e) all net
obligations with respect to Interest Rate Contracts; (f) all direct or indirect
guaranties in respect of any obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to in clause
(a), (b), (c), (d) or (e) above; and (g) all Indebtedness referred to in clause
(a), (b), (c), (d) or (e) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and contracts rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness; provided, however, that if any Indebtedness of any
type referred to above is supported by another type of Indebtedness referred to
above, such Indebtedness shall not be considered more than once for the purposes
of this definition; and provided, further, that for the purposes of this
definition, Indebtedness shall not include any obligation of the Borrower to
make payments to or in respect of the Hogty Limited Partnership or similar
programs in connection with live inventory, consistent with past practices, or
to make payments to MetLife Leasing or a similar entity under and in respect of
a lease guaranty program or any similar live inventory program with
Arkansas-California Livestock Company, Inc. or another entity, consistent with
past practices.
8
"Indebtedness for Borrowed Money" means the sum of all
Indebtedness of the Borrower and its consolidated Subsidiaries of the type
referred to in paragraphs (a), (b) and (d) of the definition of Indebtedness.
"Indemnified Party" has the meaning specified in Section
10.05(a).
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors or other similar
arrangement in respect of the creditors of any Person generally or any
substantial portion of the creditors of such Person; in each case undertaken
under United States Federal or State law or foreign law.
"Interest Payment Date" means (a) with respect to any
Eurodollar Loan or Bid Loan, the last day of each Interest Period applicable to
such Eurodollar Loan or Bid Loan and (i) with respect to any Interest Period of
six months duration for any Eurodollar Loan, the date which falls three months
after the beginning of such Interest Period, and (ii) with respect to any Bid
Loan, such intervening date prior to the maturity thereof as may be agreed
between the Borrower and the applicable Bank and (b) with respect to any
Reference Rate Loan, the last day of each calendar quarter.
"Interest Period" means,
(a) with respect to any Eurodollar Loan, the period commencing on the
Business Day such Eurodollar Loan is disbursed or on the date on which a
Reference Rate Loan is converted into a Eurodollar Loan and ending on the date
one, two, three or six months thereafter, as selected by the Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation; and
(b) with respect to any Bid Loan, the period specified by the Borrower
in the relevant Competitive Bid Request;
provided, however, that:
(i) in the case of the continuation of a Eurodollar Loan
pursuant to Section 2.11(b), the Interest Period applicable after the
continuation of such Loan shall commence on the last day of the
preceding Interest Period;
9
(ii) if any Interest Period applicable to a Eurodollar Loan
would otherwise end on a day which is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on
the immediately preceding Business Day;
(iii) any Interest Period applicable to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of the calendar month at the end of such Interest Period; and
(iv) no Interest Period for any Loan shall extend beyond the
Maturity Date.
"Interest Rate Contracts" means interest rate protection, cap
or collar agreements, interest rate insurance, and other agreements or
arrangements designed to provide protection against fluctuations in interest
rates.
"IRS" means the Internal Revenue Service of the United States
of America.
"Lending Office" means, with respect to any Bank, (a) in the
case of a Committed Loan, the office or offices of such Bank specified as its
"Domestic Lending Office" or "Eurodollar Lending Office", as the case may be,
opposite its name in Schedule 1.01(b) or in the applicable Notice of Assignment
or such other office or offices of such Bank as such Bank may from time to time
specify in writing to the Borrower and the Administrative Agent and (b) in the
case of a Bid Loan, the office of such Bank notified by such Bank to the
Borrower as its Lending Office with respect to such Bid Loan or, if such Bank
fails to so notify the Borrower, such Bank's Domestic Lending Office listed in
Schedule 1.01(b).
"Level I Status" exists at any date if, at such date (a) the
Debt Rating is A- (or the equivalent) or higher by S&P and Baa1 (or the
equivalent) or higher by Moody's or (b) BBB+ (or the equivalent) or higher by
S&P and A3 (or the equivalent) or higher by Moody's and (c) Level IV Status does
not exist.
"Level II Status" exists at any date if, at such date (a) the
Debt Rating is BBB+ (or the equivalent) or higher by S&P or Baa1 (or the
equivalent) or higher by Moody's, (b) Level I Status does not exist and (c)
Level IV Status does not exist.
"Level III Status" exists at any date if, at such date (a) the
Debt Rating is BBB (or the equivalent) by S&P and Baa2 (or the equivalent) by
Moody's and (b) Level IV Status does not exist.
"Level IV Status" exists at any date if, at such date (a) the
Debt Rating is BBB- (or the equivalent) or lower by S&P or Baa3 (or the
equivalent) or lower by Moody's, (b) the Index
10
Debt is unrated by either S&P or Moody's or (c) the Borrower's senior, unsecured
short-term Indebtedness for borrowed money that is not guaranteed by any other
Person or subject to any other credit enhancement is rated less than A2 by
Moody's or less than P2 by S&P or is unrated by either S&P or Moody's.
"LIBOR" means, with respect to any Eurodollar Loan or LIBOR
Bid Loan for any Interest Period, the rate appearing on Page 3750 of the
Telerate Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBOR" with
respect to such Eurodollar Loan or LIBOR Bid Loan for such Interest Period shall
be the rate at which dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a
rate determined with reference to LIBOR.
"LIBOR Bid Margin" has the meaning specified in Section
2.04(b)(ii)(B).
"Lien" means any lien, charge, security interest or
encumbrance or any other type of preferential arrangement (including liens or
retained security titles of conditional vendors and capitalized leases but
excluding any right of set-off).
"Loan" means an extension of credit by a Bank pursuant to
Article II and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, the Guarantee
Agreement, any promissory notes delivered pursuant to this Agreement, the
account agreement contemplated by the last paragraph of Section 5.01, the
Notices of Borrowing, the Notices of Conversion/Continuation and the Competitive
Bid Requests.
"Majority Banks" means at any time Banks holding at least 51%
of the Commitments and, if the Commitments have been terminated, Banks holding
at least 51% of the then aggregate unpaid principal amount of the Loans made by
the Banks.
"Margin Stock" shall have the meaning given such term under
Regulation U.
11
"Material Adverse Effect" means (a) an adverse change in, or
an adverse effect upon, the financial condition, business, prospects or
properties of any of (i) the Borrower or (ii) the Borrower and its Subsidiaries
taken as a whole resulting from a single event or a series of events within any
12-month period causing the consolidated Net Worth (calculated as if the Merger
had occurred as of the Effective Date) of the Borrower to be reduced by 10% or
more; (b) any material adverse change in the rights or remedies of the Banks
under the Loan Documents or the ability of the Borrower to perform its
obligations under any of the Loan Documents; or (c) any material adverse change
in the legality, validity or enforceability of any Loan Document.
"Maturity Date" means the first anniversary of the Termination
Date.
"Merger" means the merger of IBP with and into Merger Co. in
accordance with the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger
dated as of January 1, 2001, among IBP, the Borrower and Merger Co., with no
changes therefrom adverse to the Banks.
"Merger Co." means Lasso Acquisition Corporation, a Delaware
corporation and a wholly-owned Subsidiary of the Borrower.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor to the rating agency business thereof.
"Multiemployer Plan" means, with respect to any Person, at any
time, a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA
and to which such Person or any member of its Controlled Group is making, or is
obligated to make contributions or has made, or been obligated to make,
contributions.
"Net Proceeds" means, with respect to any sale, lease,
transfer, condemnation or other voluntary or involuntary disposition of assets,
including a Permitted Disposition, or any sale or issuance of Senior Notes or
any Indebtedness or equity of the Borrower sold or issued in lieu of Senior
Notes,
(a) the aggregate amount of cash proceeds received by the Borrower or
any of its Subsidiaries from such disposition or sale or issuance;
minus
(b) the sum of
(i) all fees and expenses, including customary
brokerage commissions, appraisal fees, survey charges, legal
and investment banking fees and other similar
12
commissions, charges or fees incurred in connection with such
disposition or sale or issuance;
plus
(ii) all taxes, including filing, recording or
registration fees, recording taxes and transfer taxes paid (or
payable) and income tax paid in connection with such
disposition or sale or issuance;
plus
(iii) the amount of Indebtedness required to be paid
in connection with such disposition to satisfy any Lien
existing on the property included in such disposition.
"Net Worth" means, with respect to any Person, at any date of
determination, shareholders' equity as determined in accordance with GAAP.
"Notice of Assignment" has the meaning specified in Section
10.08(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Conversion/Continuation" has the meaning specified
in Section 2.11(b).
"Obligations" means all Loans, other Indebtedness, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrower to
any Bank, the Administrative Agent, any Affiliate of any of the foregoing or any
Indemnified Party, of any kind or nature, present or future, whether or not
evidenced by any note, guaranty or other instrument, arising under this
Agreement or under any other Loan Document, whether or not for the payment of
money, whether arising by reason of an extension of credit, loan, guaranty,
indemnification, or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term "Obligations"
includes all interest, charges, expenses, fees, attorneys' fees and
disbursements (including the allocated cost of in-house counsel) and any other
sum chargeable to the Borrower under this Agreement or any other Loan Document.
"OSHA" has the meaning specified in the definition of
Environmental Laws.
"Other Taxes" has the meaning specified in Section 3.05(b).
"Participant" has the meaning specified in Section 10.08(d).
13
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Percentage Share" means, as to any Bank, at any time, such
Bank's percentage share of the Aggregate Commitments, as set forth opposite such
Bank's name in Schedule 1.01(a) under the heading "Percentage Share" or set
forth in any Notice of Assignment delivered pursuant to Section 10.08, as such
percentage may be modified from time to time in connection with any assignment
of the Commitment of such Bank in accordance with the terms hereof.
"Permitted Disposition" means, any disposition (except as
otherwise permitted under Section 7.07) made by the Borrower or any of its
Subsidiaries of any of its assets if the net income for the most recently
completed four fiscal quarter period for which financial statements have been
delivered pursuant to Section 6.09(a) or (b) derived from the assets subject to
such disposition together with the net income for such period derived from all
other assets sold or otherwise disposed of during or after such period does not
exceed 10% of Consolidated Net Income (calculated as if the Merger had occurred
as of the Effective Date) for such period.
"Permitted Investments" means:
(a) securities issued or fully guaranteed or insured by the
United States Government or any agency thereof and backed by the full
faith and credit of the United States of America having maturities of
not more than one year from the date of acquisition;
(b) certificates of deposit, time deposits, Eurodollar time
deposits, overnight bank deposits, repurchase agreements, reverse
repurchase agreements or bankers' acceptances, having in each case a
tenor of not more than one year issued by any Bank, or by any United
States commercial bank or any branch or agency of a non-United States
bank licensed to conduct business in the United States of America
having a combined capital and surplus of not less than $100,000,000
whose short terms securities are rated at least A-1 by S&P and P-1 by
Xxxxx'x;
(c) commercial paper of an issuer rated at least A-1 by S&P or
P-1 by Xxxxx'x and in either case having a tenor of not more than 270
days; and
(d) money-market funds invested in short-term securities rated
at least as provided in clause (b) above.
"Permitted Lien Basket" means 10% of Total Capitalization.
"Permitted Liens" has the meaning specified in Section 7.01.
14
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture or Governmental Authority.
"Plan" means, with respect to the Borrower or any member of
its Controlled Group, at any time, an employee pension benefit plan as defined
in Section 3(2) of ERISA (including a Multiemployer Plan) that is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and is maintained for the employees of such Person or any member of
its Controlled Group.
"Priority Debt" means (a) any Indebtedness secured by a Lien
(including in connection with capital leases or other financing leases)
encumbering any asset of the Borrower or any of its Subsidiaries, (b) any
Indebtedness of any Subsidiary of the Borrower (other than Indebtedness of IBP
under the Guarantee Agreement and Indebtedness of IBP owed to the Borrower), (c)
any receivables purchase transaction involving receivables of the Borrower or
any of its Subsidiaries or any other securitization of assets of the Borrower or
any of its Subsidiaries and (d) any sale-leaseback transaction involving assets
of the Borrower or any of its Subsidiaries.
"Reference Rate" means the higher of (a) the Federal Funds
Rate plus 1/2% and (b) the rate of interest (the "Prime Rate") publicly
announced from time to time by the Administrative Agent, as its prime rate in
effect at its principal office in New York City. Any change in the Prime Rate
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"Reference Rate Loan" means any Committed Loan that bears
interest at a rate determined with reference to the Reference Rate.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System of the United States of America as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
"Replacement Bank" has the meaning specified in Section
3.14(b).
"Requirement of Law" means, with respect to any Person, the
charter and by-laws or other organizational or governing documents of such
Person, and any law, rule or regulation (including Environmental Laws and ERISA)
or order, decree or other determination of an arbitrator or a court or other
Governmental Authority applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
15
"Responsible Officer" means, with respect to any Person, the
Chief Executive Officer, the President, the Chief Financial Officer, the
Treasurer, the Assistant Treasurer or the Secretary of such Person.
"Senior Notes" means senior unsecured notes of the Borrower
intended to be issued in an aggregate principal amount of up to $2,000,000,000,
the proceeds of which will be used to repay commercial paper of the Borrower or,
if outstanding, Loans and to terminate Commitments hereunder.
"S&P" means Standard & Poor's Ratings Group or any successor
to the rating agency business thereof.
"Solvent" means, with respect to any Person, that the fair
value of the assets of such Person (both at fair valuation and at present fair
saleable value) is, on the date of determination, greater than the total amount
of liabilities (including contingent and unliquidated liabilities) of such
Person as of such date and that, as of such date, such Person is able to pay all
liabilities of such Person as such liabilities mature and such Person does not
have unreasonably small capital with which to carry on its business. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Stock" means all shares, options, interests, participations
or other equivalents (regardless of how designated) of or in a corporation or
other entity, whether voting or non-voting, of any class and includes, common
stock, preferred stock or warrants or options for any of the foregoing.
"Subsidiary" means, with respect to any Person, any
corporation more than 50% of whose stock having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation is at the
time owned by such Person, directly or indirectly through one or more
Subsidiaries. At all times on and after the Effective Date, IBP and its
Subsidiaries will constitute Subsidiaries of the Borrower.
"Taxes" has the meaning specified in Section 3.05(a).
"Tender Offer" means the Offer (as defined in the Merger
Agreement) of the Borrower and Merger Co. to acquire 50.1% of the issued and
outstanding shares of IBP common stock.
"Termination Date" means January 10, 2002.
16
"Total Capitalization" means, at any date, the sum of (a) the
aggregate amount of Indebtedness for Borrowed Money and (b) Net Worth of the
Borrower and its consolidated Subsidiaries.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement and the other Loan Documents, the borrowing of
Loans and the use of the proceeds thereof, the Acquisition, the Merger and the
assumption and refinancing of Indebtedness and the other transactions
contemplated by the Borrower to be effected in connection therewith.
"Tyson Limited Partnership" means that certain Delaware
limited partnership of the same name of which Mr. Xxx Xxxxx is the Managing
General Partner.
SECTION 1.02. Computation of Time Periods. In this Agreement,
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
SECTION 1.03. Accounting Matters. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP;
provided, however, all computations determining compliance with Sections 7.15
and 7.16 shall use accounting principles consistent with those applied in the
preparation of the financial statements of the Borrower referred to in Section
4.05. IBP and its Subsidiaries will be deemed to be consolidated Subsidiaries of
the Borrower at all times on and after the Effective Date.
SECTION 1.04. Certain Terms. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, including the Exhibits and Schedules hereto, as the same may from time to
time be amended, supplemented, amended and restated or otherwise modified and
not to any particular Article, Section, paragraph or clause in this Agreement.
The word "includes" and "including" when used herein is not intended to be
exclusive and means "includes, without limitation" and "including, without
limitation." References herein to an Article, Section, paragraph or clause shall
refer to the appropriate Article, Section, paragraph or clause in this
Agreement.
ARTICLE II
Amounts and Terms of the Loans
SECTION 2.01. Amounts and Terms of Commitments. Each Bank
severally agrees, on the terms and subject to the conditions hereinafter set
forth, to make Committed Loans to the Borrower (each such Loan, a "Committed
Loan") from time to time on any Business Day during the period from the
Effective Date to the Termination Date, in an aggregate principal amount not to
exceed at any time outstanding such Bank's Commitment; provided, however, that
after giving effect to any Borrowing of Committed Loans, (a) the aggregate
principal amount of
17
all outstanding Committed Loans plus (b) the aggregate principal amount of all
outstanding Bid Loans shall not exceed the Aggregate Commitments; and provided
further that no Loan shall be made at any time prior to the Acquisition Date
unless there are at such time no unused commitments under the Existing Credit
Agreement (and/or any amendment of, supplement to or replacement of the Existing
Credit Agreement). Within the limits of each Bank's Commitment, the Borrower may
on and prior to the Termination Date borrow under this Section 2.01, prepay
pursuant to Section 2.07 and reborrow pursuant to this Section 2.01. Loans
repaid or prepaid after the Termination Date may not be reborrowed.
SECTION 2.02. Procedure for Committed Borrowing. (a) Each
Committed Borrowing shall be made upon the irrevocable notice of the Borrower,
received by the Administrative Agent not later than 12:00 noon (New York City
time) (i) three Business Days prior to the date of the proposed Borrowing, in
the case of Eurodollar Loans; and (ii) one Business Day prior to the date of the
proposed Borrowing, in the case of Reference Rate Loans; provided, however, that
in case of a Committed Borrowing of Reference Rate Loans after the cancellation
of a Bid Borrowing pursuant to Section 2.04(c)(i), the Borrower may give such
notice to the Administrative Agent not later than 11:00 a.m. (New York City
time) on the date of such Committed Borrowing. Each such notice of a Committed
Borrowing (a "Notice of Borrowing") shall be in writing (including by facsimile
confirmed immediately by telephone), in substantially the form of Exhibit 2.02
specifying:
(i) the requested borrowing date, which shall be a Business
Day;
(ii) the aggregate amount of the Borrowing, which (A) shall
not exceed the unused portion of the Aggregate Commitments and (B)
shall be a minimum amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof;
(iii) whether the Borrowing is to be comprised of Eurodollar
Loans or Reference Rate Loans; and
(iv) if the Borrowing is to be comprised of Eurodollar Loans,
the duration of the initial Interest Period applicable to such Loans.
If the Notice of Borrowing shall fail to specify the duration of the
initial Interest Period for any Borrowing comprised of Eurodollar
Loans, such Interest Period shall be three months.
(b) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Bank thereof and of the amount of such Bank's
Percentage Share of such Borrowing.
(c) Each Bank shall make the amount of its Percentage Share of
the Committed Borrowing available to the Administrative Agent for the account of
the Borrower at the Administrative Agent's Payment Office by 12:00 noon (New
York City time) on the borrowing date requested by the Borrower in funds
immediately available to the Administrative Agent.
18
Unless any applicable condition specified in Article V has not been satisfied,
the Administrative Agent will make the funds so received from the Banks promptly
available to the Borrower by crediting the account of the Borrower on the books
of the Administrative Agent (or such other account as shall have been specified
by the Borrower) with the aggregate amount made available to the Administrative
Agent by the Banks and in like funds as received by the Administrative Agent.
(d) After giving effect to any Committed Borrowing, there
shall not be more than six different Interest Periods in effect in respect of
all Committed Loans together.
SECTION 2.03. Bid Borrowings. In addition to Committed
Borrowings pursuant to Section 2.01, each Bank severally agrees that the
Borrower may, as set forth in Section 2.04, from time to time on any Business
Day during the period from the Effective Date to the Termination Date, request
the Banks to submit offers to make Bid Loans to the Borrower; provided, however,
that the Banks may, but shall have no obligation to, submit such offers and the
Borrower may, but shall have no obligation to, accept any such offers; and
provided, further, that at no time shall the sum of (a) the aggregate principal
amount of all outstanding Bid Loans made by all Banks plus (b) the aggregate
principal amount of all outstanding Committed Loans exceed the Aggregate
Commitments.
SECTION 2.04. Procedure for Bid Borrowings. (a) The Borrower
may request a Bid Borrowing hereunder by delivering to the Administrative Agent
and each Bank by facsimile not later than 12:00 noon (New York City time) (i)
three Business Days prior to the date of the proposed Borrowing, in the case of
LIBOR Bid Loans; and (ii) one Business Day prior to the date of the proposed
Borrowing, in the case of Absolute Rate Bid Loans, a solicitation for Bid Loans
(a "Competitive Bid Request"), in substantially the form of Exhibit 2.04(a),
specifying:
(i) the requested borrowing date, which shall be a Business
Day;
(ii) the aggregate amount of the Borrowing, which shall be a
minimum amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof;
(iii) whether the Bid Loans requested are LIBOR Bid Loans or
Absolute Rate Bid Loans;
(iv) the duration of the Interest Period applicable to such
Bid Loans, which shall be not less than five days and not more than 183
days and which shall not extend beyond the Termination Date; and
(v) any other terms to be applicable to such Bid Loans.
(b) (i) Each Bank may, in response to a Competitive Bid
Request, in its discretion, irrevocably submit to the Borrower a Competitive Bid
containing an offer or offers to
19
make one or more Bid Loans. Each Competitive Bid must be submitted to the
Borrower by facsimile before 10:00 a.m. (New York City time) (i) two Business
Days prior to the proposed date of Borrowing, in the case of a request for LIBOR
Bid Loans and (ii) on the proposed date of Borrowing, in the case of a request
for Absolute Rate Bid Loans.
(ii) Each Competitive Bid shall be in substantially the form
of Exhibit 2.04(b), specifying:
(A) the minimum amount of each Bid Loan for which such
Competitive Bid is being made, which shall be $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, and the maximum amount
thereof, which may not exceed the principal amount of Bid Loans for
which Competitive Bids were requested (but which may exceed such Bank's
Commitment);
(B) the rate or rates of interest per annum offered for each
Bid Loan, which, in the case of a LIBOR Bid Loan, shall be expressed as
a percentage (rounded to the nearest 1/100%) to be added to or
subtracted from the applicable LIBOR (the "LIBOR Bid Margin");
(C) the applicable Interest Period for each Bid Loan offered
by it; and
(D) the identity and the applicable Lending Office of the
quoting Bank.
A Competitive Bid may contain up to six separate offers by the quoting Bank with
respect to each Interest Period specified in the related Competitive Bid
Request.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit 2.04(b) or
does not specify all of the information required by clause (ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Competitive Bid Request; or
(D) arrives after the time set forth in clause (i) above.
(c) Not later than 11:00 a.m. (New York City time) (i) two
Business Days prior to the proposed date of Borrowing, in the case of LIBOR Bid
Loans and (ii) on the date of such Bid Borrowing, in the case of Absolute Rate
Loans, the Borrower shall either
20
(i) cancel such Borrowing by giving the Administrative Agent
and the Banks notice thereof (which notice may be given by telephone,
confirmed by facsimile); or
(ii) accept one or more of the offers made by any Bank or
Banks pursuant to paragraph (b) above, in its sole discretion, by
giving notice (which notice may be given by telephone, confirmed by
facsimile) (A) to such Bank or Banks of the amount of each Bid Loan
(which amount shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the Borrower by
such Bank for such Bid Loan pursuant to paragraph (b) above) to be made
by each such Bank as part of such Bid Borrowing, and reject any
remaining offers made by the Banks and give notice to that effect, and
(B) to the Administrative Agent of the date of such Borrowing and the
aggregate amount thereof (which may not exceed the applicable amount
set forth in the related Competitive Bid Request); provided, however,
that acceptance by the Borrower of offers may only be made on the basis
of ascending LIBOR Bid Margins or Absolute Rates within each Interest
Period; and, provided, further, that if offers are made by two or more
Banks with the same LIBOR Bid Margins or Absolute Rates for a greater
aggregate principal amount than the amount for which such offers are
accepted for the related Interest Rate Period, the principal amount of
Bid Loans accepted shall be allocated by the Borrower among such Banks
as nearly as possible (in multiples not less than $1,000,000) in
proportion to the aggregate principal amount of such offers;
provided, however, that in the event the Borrower does not, before the time
stated above, either cancel the proposed Bid Borrowing pursuant to clause (i)
above or accept one or more of the offers pursuant to clause (ii) above, such
Bid Borrowing shall be deemed cancelled and provided further, that in the event
the Borrower accepts one or more of the offers pursuant to clause (ii) above but
does not expressly reject or accept the remaining offers, such remaining offers
shall be deemed rejected.
(d) (i) If the Borrower accepts one or more of the offers to
make Bid Loans made by any Bank or Banks pursuant to paragraph (c)(ii) above,
each such Bank shall, subject to the satisfaction of the conditions precedent
specified in Section 5.02, before 12:00 noon (New York City time) on the date of
the Bid Borrowing, make available to the Borrower at such Bank's Lending Office
such Bank's portion of such Bid Borrowing in same day funds.
(ii) Not later than 5:00 p.m. (New York City time) on the date
of each Bid Borrowing,
(A) the Borrower shall notify the Administrative Agent of (1)
the aggregate amount of Bid Loans made in connection with such Bid
Borrowing (which amount may not exceed the amount requested pursuant to
Section 2.04(a)(ii)), (2) each date on which any Bid Loan shall mature,
(3) the principal amount of Bid Loans which shall mature on each such
date, (4) the highest and the lowest Competitive Bid submitted by the
Banks in
21
connection with each Competitive Bid Request, and (5) the highest and
the lowest Competitive Bid accepted by the Borrower; and
(B) the Administrative Agent will in turn promptly give to
each Bank the information received from the Borrower in connection with
such Bid Borrowing.
(e) Upon being notified by the Borrower of the amount of, and
the applicable Interest Period for, any LIBOR Bid Loan, the Administrative Agent
shall determine LIBOR (as provided in the definition of LIBOR) and give prompt
notice to the Borrower and the relevant Bank or Banks thereof.
SECTION 2.05. Evidence of Indebtedness. (a) Each Bank, with
respect to amounts payable to it hereunder, and the Administrative Agent, with
respect to all amounts payable hereunder, shall maintain on its books in
accordance with its usual practice, loan accounts, setting forth each Committed
Loan, and, in the case of each Bank having made a Bid Loan, each such Bid Loan,
the applicable interest rate and the amounts of principal, interest and other
sums paid and payable by the Borrower from time to time hereunder with respect
thereto; provided, however, that the failure by any Bank to record any such
amount on its books shall not affect the obligations of the Borrower with
respect thereto. In the case of any dispute, action or proceeding relating to
any amount payable hereunder, the entries in each such account shall be
conclusive evidence of such amount absent manifest error. In case of any
discrepancy between the entries in the Administrative Agent's books and any
Bank's books, such Bank's books shall be considered correct in the absence of
manifest error.
(b) Notwithstanding the foregoing, if any Bank shall so
request for purposes of Section 10.08(e), the obligation to repay the Committed
Loans shall also be evidenced by a promissory note in the form of Exhibit
2.05(b).
(c) The obligation to repay any Bid Loan shall also, if so
requested by the Bank making such Bid Loan, be evidenced by a promissory note in
the form of Exhibit 2.05(c).
SECTION 2.06. Termination and Reduction of the Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the
Termination Date.
(b) The Borrower may, at any time and from time to time, upon
not less than three Business Days' prior notice to the Administrative Agent,
terminate the Aggregate Commitments or permanently reduce the Aggregate
Commitments by an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof; provided, however, that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayment of Loans made on the effective date thereof, the then outstanding
principal amount of Committed Loans and Bid Loans would exceed the Aggregate
Commitments then in effect and, provided, further, that once reduced in
accordance with this Section 2.06, the Aggregate
22
Commitments may not be increased. Any reduction of the Aggregate Commitments
shall be applied to each Bank's Commitment in accordance with such Bank's
Percentage Share.
(c) In the event that (i) Senior Notes are issued, or any
offering of Indebtedness or equity of the Borrower is completed in lieu of, or
in addition to, an offering of Senior Notes, or (ii) the Existing Credit
Agreement is modified, supplemented or replaced and the result is an increase in
the commitments available to the Borrower, the Aggregate Commitments shall be
reduced by (x) the Net Proceeds thereof upon the receipt by the Borrower of such
Net Proceeds or (y) the aggregate amount of such increase in commitments upon
the effectiveness thereof, as the case may be, and if such reduction would
result in the aggregate outstanding amount of Loans exceeding the Aggregate
Commitments, the Borrower shall immediately prepay Committed Loans in an amount
sufficient to eliminate such excess (and in the event an excess remains after
the prepayment of all Committed Loans, the Borrower will place in a cash
collateral account maintained with the Administrative Agent for the benefit of
the Banks cash in an amount equal to the remaining excess for application to
outstanding Bid Loans as they mature until such excess is eliminated). Any such
reduction of the Aggregate Commitments and prepayment of Committed Loans shall
be applied as among the Banks ratably in accordance with each Bank's Percentage
Share. Any such application of cash from a cash collateral account to repay Bid
Loans maturing on the same date shall be applied as among the Banks holding such
Bid Loans on a pro rata basis based upon the respective amounts of such maturing
Bid Loans.
SECTION 2.07. Optional Prepayments. (a) Subject to Section
3.11, the Borrower may upon notice to the Administrative Agent, stating the
proposed date and aggregate principal amount of the prepayment, received by the
Administrative Agent (i) not less than three Business Days prior to the proposed
date of prepayment, in the case of a prepayment of Eurodollar Loans and (ii) not
less than one Business Day prior to the proposed date of prepayment, in the case
of a prepayment of Reference Rate Loans, prepay ratably among the Banks, the
outstanding principal amount of any Committed Loans in whole or in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid. Each such partial prepayment shall be in an aggregate principal
amount of not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof; provided, however, that if the aggregate amount of Eurodollar
Loans comprised in the same Borrowing shall be reduced as a result of any
optional prepayment to an amount less than $5,000,000, the Eurodollar Loans
comprised in such Borrowing shall automatically convert into Reference Rate
Loans at the end of the then current Interest Period. If any notice of
prepayment is given, the principal amount stated therein, together with accrued
interest to the date of prepayment, shall be due and payable on the date
specified in such notice.
(b) The Borrower may not voluntarily prepay any Bid Loan prior
to the maturity date thereof.
SECTION 2.08. Repayment. (a) The Committed Loans. The
outstanding principal amount of all Committed Loans shall be repaid on the
Maturity Date.
23
(b) The Bid Loans. Each Bid Loan shall mature, and the
principal amount thereof shall be due and payable, on the last day of the
Interest Period applicable thereto; provided, however, that the outstanding
principal amount of all Bid Loans shall be repaid on the Termination Date.
SECTION 2.09. Interest. (a) Subject to Section 2.10, each
Committed Loan shall bear interest, at the option of the Borrower, as follows,
(i) if such Committed Loan is a Reference Rate Loan, at a rate
per annum equal to the Reference Rate; and
(ii) if such Committed Loan is a Eurodollar Loan, at a rate
per annum equal to the sum of LIBOR plus the applicable margin set
forth below:
Debt Rating Applicable Margin
Level I Status 0.525%
Level II Status 0.625%
Level III Status 0.725%
Level IV Status 1.075%
(b) Any change in the Debt Rating shall be effective as of the
date on which such change is first publicly announced by S&P or notified to the
Borrower by Xxxxx'x. Any change in the applicable margin due to a change in the
applicable Debt Rating shall be effective on the effective date of such change
in the Debt Rating and shall apply to all Eurodollar Loans that are outstanding
at any time during the period commencing on the effective date of such change in
the Debt Rating and ending on the date immediately preceding the effective date
of the next such change in the Debt Rating which results in a change in the
applicable margin.
(c) Accrued and unpaid interest in respect of each Committed
Loan shall be paid on each Interest Payment Date, on the date of any prepayment
or repayment of Committed Loans and, in the case of any Reference Rate Loan, on
each date such Loan is converted into a Eurodollar Loan.
(d) The Borrower shall pay to each Bank which had made a Bid
Loan interest on the unpaid principal amount of such Bid Loan from the date when
made until paid in full, on each Interest Payment Date, at a rate per annum
equal to LIBOR plus (or minus) the LIBOR Bid Margin, or the Absolute Rate, as
the case may be, as specified by such Bank in its Competitive Bid pursuant to
Section 2.04(b)(ii).
SECTION 2.10. Default Interest. During the continuation of any
Event of Default pursuant to Section 8.01(a), or after acceleration, the
Borrower shall pay, on demand,
24
interest (after as well as before judgment) on the principal amount of all Loans
then outstanding, at a rate per annum which is determined by increasing the rate
of interest then in effect pursuant to Section 2.09 by 2% per annum; provided,
however, that, on and after the expiration of the Interest Period applicable to
any Eurodollar Loan on the date of occurrence of such Event of Default or
acceleration, the principal amount of such Loan shall, during the continuation
of such Event of Default or acceleration, bear interest at a rate per annum
equal to the Reference Rate plus 2%; and, provided, further, that if so
requested by the Borrower, the Majority Banks may, in their sole discretion,
waive the provisions of this Section 2.10.
SECTION 2.11. Continuation and Conversion Elections for
Committed Borrowings. (a) The Borrower may upon irrevocable written notice to
the Administrative Agent in accordance with paragraph (b) below:
(i) elect to convert, on any Business Day, any Reference Rate
Loans (or any part thereof in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof)
into Eurodollar Loans;
(ii) elect to convert, on the expiration date of any Interest
Period, any Eurodollar Loans maturing on such Interest Payment Date (or
any part thereof in an aggregate amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof) into Reference Rate
Loans; or
(iii) elect to continue, on the expiration date of any
Interest Period, any Eurodollar Loans maturing on such Interest Payment
Date;
provided, however, that if on the expiration date of any Interest
Period the aggregate amount of outstanding Eurodollar Loans comprised
in the same Committed Borrowing shall have been reduced as a result of
the conversion of part thereof to an amount less than $5,000,000, the
remaining Eurodollar Loans comprised in such Borrowing shall
automatically convert into Reference Rate Loans on such date and on and
after such date the right of the Borrower to continue such Loans as
Eurodollar Loans shall terminate.
(b) The Borrower shall deliver a notice of conversion or
continuation (a "Notice of Conversion/Continuation"), in substantially the form
of Exhibit 2.11, to the Administrative Agent not later than 12:00 noon (New York
City time) (i) three Business Days prior to the proposed date of conversion or
continuation, if the Committed Loans or any portion thereof are to be converted
into or continued as Eurodollar Loans; and (ii) one Business Day prior to the
proposed date of conversion, if the Committed Loans or any portion thereof are
to be converted into Reference Rate Loans.
Each such Notice of Conversion/Continuation shall be by facsimile
confirmed immediately by telephone specifying therein:
25
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Committed Loans to be converted
or continued;
(iii) the nature of the proposed conversion or continuation;
and
(iv) the duration of the requested Interest Period.
(c) If, upon the expiration of any Interest Period applicable
to Eurodollar Loans, the Borrower shall have failed to select a new Interest
Period to be applicable to such Eurodollar Loans, or if an Event of Default
shall then have occurred and be continuing, the Borrower shall be deemed to have
elected to convert such Eurodollar Loans into Reference Rate Loans effective as
of the expiration date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Bank thereof or, if no timely
notice is provided, the Administrative Agent shall promptly notify each Bank of
the details of any automatic conversion. All conversions and continuations shall
be made pro rata among the Banks based on the respective outstanding principal
amounts of the Loans with respect to which such notice was given held by each
Bank.
(e) After giving effect to any conversion or continuation of
any Committed Loans, there shall not be more than six different Interest Periods
in effect in respect of all Committed Loans together.
ARTICLE III
Fees; Payments; Taxes; Changes in Circumstances
SECTION 3.01. Fees. (a) (i) The Borrower agrees to pay to the
Administrative Agent for the account of each Bank a facility fee equal to the
percentage per annum set forth below times such Bank's Commitment (regardless of
utilization) or, after the Termination Date, times the aggregate daily
outstanding amount of such Bank's Loans:
Debt Rating Facility Fee
Level I Status 0.100%
Level II Status 0.125%
Level III Status 0.150%
Level IV Status 0.175%
26
(ii) Any change in the Debt Rating shall be effective as of
the date on which such change is first publicly announced by S&P or
notified to the Borrower by Xxxxx'x. Any change in the facility fee due
to a change in the applicable Debt Rating shall be effective on the
effective date of such change in the Debt Rating and shall apply at any
time during the period commencing on the effective date of such change
in the Debt Rating and ending on the date immediately preceding the
effective date of the next such change in the Debt Rating which results
in a change in the facility fee.
(iii) The facility fee shall accrue from the Effective Date to
the Maturity Date and shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter commencing in the
calendar quarter ending on March 31, 2001 and on the Maturity Date,
provided that if any Loans shall be outstanding after the Maturity
Date, then the facility fee shall continue to accrue on the daily
outstanding amount of such Loans from and including the Maturity Date
to but excluding the date on which such Loans are repaid in full, and
such facility fee shall be payable on demand.
(b) The Borrower agrees to pay to the Administrative Agent,
for the Administrative Agent's own account, fees in the amounts and at the times
set forth in the Administrative Agent's Fee Letter.
SECTION 3.02. Computation of Fees and Interest. (a) All
computations of interest payable in respect of Reference Rate Loans shall be
made on the basis of a year of 365 days or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest under this
Agreement shall be made on the basis of a year of 360 days and actual days
elapsed. Interest and fees shall accrue during each period during which interest
or such fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Banks in the absence of manifest
error.
SECTION 3.03. Payments by the Borrower. (a) All payments
(including prepayments) to be made by the Borrower hereunder shall be made
without set-off or counterclaim and shall, except as expressly provided herein,
be made to the Administrative Agent for the ratable account of the Banks at the
Administrative Agent's Payment Office, in dollars and in immediately available
funds, not later than 12:00 noon New York City time on the date specified
herein; provided, however, that unless otherwise specified herein, each payment
in respect of a Bid Loan shall be made directly to the relevant Bank to the
Lending Office of such Bank. The Administrative Agent will promptly after
receiving any payment of principal, interest, fees and other amounts from the
Borrower distribute to each Bank its Percentage Share (or other applicable share
as expressly provided herein) of such payment for the account of its respective
Lending Office. Any payment which is received by the Administrative Agent after
12:00 noon
27
(New York City time) shall be deemed to have been received on the immediately
succeeding Business Day.
(b) Whenever any payment of a Committed Loan (and unless
otherwise stated in the relevant Competitive Bid Request, a Bid Loan) shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest and fees, as the case may be;
provided, however, that if such extension would cause any payment of principal
of or interest on Eurodollar Loans to be made in the next calendar month, such
payment shall be made on the immediately preceding Business Day.
(c) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may (but
shall not be so required), in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent the Borrower shall not have so made such payment
in full to the Administrative Agent, each Bank shall repay to the Administrative
Agent, on demand, the excess of the amount distributed to such Bank over the
amount, if any, paid by the Borrower, together with interest thereon at the
Federal Funds Rate, for each day from the date such amount is distributed to
such Bank to the date such Bank repays such amount to the Administrative Agent;
provided, however, that if any Bank shall fail to repay such amount within three
Business Days after demand therefor, such Bank shall, from and after such third
Business Day until payment is made to the Administrative Agent, pay interest
thereon at a rate per annum equal to the sum of the Reference Rate plus 1%.
SECTION 3.04. Payments by the Banks to the Administrative
Agent. (a) Unless the Administrative Agent shall have received notice from a
Bank on the Effective Date, or, with respect to each Committed Borrowing after
the Effective Date, at least one Business Day prior to the date of such
Borrowing that such Bank will not make available to the Administrative Agent for
the account of the Borrower the amount of such Bank's Percentage Share of such
Borrowing, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on the date of such Borrowing and
the Administrative Agent may (but shall not be so required), in reliance upon
such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent such Bank shall not have so made such full amount
available to the Administrative Agent and the Administrative Agent in such
circumstances makes available to the Borrower such amount, such Bank shall,
within two Business Days following the date of such Borrowing, make such amount
available to the Administrative Agent, together with interest at the Federal
Funds Rate for and determined as of each day during such period. If such amount
is so made available, such payment to the Administrative Agent shall constitute
such Bank's Committed Loan on the date of the Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent
within two Business Days following the date of such Borrowing, the
Administrative Agent shall notify the
28
Borrower of such failure to fund and, on the third Business Day following the
date of such Borrowing, the Borrower shall pay such amount to the Administrative
Agent for the Administrative Agent's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such Borrowing.
Nothing contained in this Section 3.04(a) shall relieve any Bank which has
failed to make available its Percentage Share of any Committed Borrowing
hereunder from its obligation to do so in accordance with the terms hereof.
(b) The failure of any Bank to make any Committed Loan on the
date of any Committed Borrowing shall not relieve any other Bank of its
obligation hereunder to make a Loan on the date of such Borrowing pursuant to
the provisions contained herein, but no Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by such other Bank on the
date of any Committed Borrowing.
SECTION 3.05. Taxes. (a) Subject to Section 3.05(g), any and
all payments by or on account of any obligation of the Borrower to each Bank or
the Administrative Agent under this Agreement or any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the case of each Bank
and the Administrative Agent, such taxes (including income taxes, franchise
taxes or branch profit taxes) as are imposed on or measured by such Bank's or
the Administrative Agent's, as the case may be, net income by the jurisdiction
under the laws of which such Bank or the Administrative Agent, as the case may
be, is organized or maintains a Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes, intangible taxes, mortgage recording taxes or any
other sales, excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) Subject to Section 3.05(g), the Borrower shall indemnify
and hold harmless each Bank and the Administrative Agent for the full amount of
Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.05) paid by such Bank or
the Administrative Agent, as the case may be, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be made within 30
days from the date such Bank or the Administrative Agent, as the case may be,
makes written demand therefor.
29
(d) If the Borrower shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Administrative Agent, then, subject to Section
3.05(g),
(i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.05) such
Bank or the Administrative Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions
been made;
(ii) the Borrower shall make such deductions; and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent the original or a certified copy of a receipt evidencing
such payment, or other evidence of such payment satisfactory to the
Administrative Agent.
(f) Each Bank which is a foreign Person (i.e., a Person other
than a United States Person for United States Federal income tax purposes)
hereby agrees that:
(i) it shall no later than on the Effective Date (or, in the
case of a Bank which becomes a party hereto pursuant to Section 10.08
after the Effective Date, the date upon which such Bank becomes a party
hereto) deliver to the Administrative Agent (two originals) and to the
Borrower (one original):
(A) if any Lending Office is located in the United States of
America, accurate and complete signed copies of IRS Form W-8ECI or any
successor thereto ("Form W-8ECI"), and/or
(B) if any Lending Office is located outside the United States
of America, accurate and complete signed copies of IRS Form W-8BEN or
any successor thereto ("Form W-8BEN"),
in each case indicating that such Bank is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such Lending Office or Lending Offices under this
Agreement free from withholding of United States Federal income tax;
(ii) if at any time such Bank changes its Lending Office or
Lending Offices or selects an additional Lending Office it shall, at
the same time, but only to the extent the forms previously delivered by
it hereunder are no longer effective, deliver to the
30
Administrative Agent (two originals) and to the Borrower (one
original), in replacement for the forms previously delivered by it
hereunder:
(A) if such changed or additional Lending Office is located in
the United States of America, accurate and complete signed originals of
Form W-8ECI; or
(B) otherwise, accurate and complete signed originals of Form
W-8BEN,
in each case indicating that such Bank is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such changed or additional Lending Office under this
Agreement free from withholding of United States Federal income tax;
(iii) it shall, upon the expiration of the most recent Form
W-8ECI or Form W-8BEN previously delivered by such Bank or upon such
Form becoming inaccurate, incomplete or obsolete in any respect (in
each case, other than as a result of any event mentioned in clause (ii)
above), deliver to the Administrative Agent (two originals) and to the
Borrower (one original) accurate and complete signed copies of Form
W-8ECI or Form W-8BEN in replacement for the forms previously delivered
by such Bank;
(iv) it shall, promptly upon the request of the Administrative
Agent or the Borrower, deliver to the Administrative Agent and the
Borrower, such other forms or similar documentation as may be required
from time to time by any applicable law, treaty, rule or regulation in
order to establish such Bank's tax status for withholding purposes;
(v) if such Bank claims exemption from withholding tax under a
United States tax treaty by providing a Form 1001 and such Bank sells
or grants a participation of all or part of its rights under this
Agreement, it shall notify the Administrative Agent of the percentage
amount in which it is no longer the beneficial owner under this
Agreement. To the extent of this percentage amount, the Administrative
Agent shall treat such Bank's Form 1001 as no longer in compliance with
this Section 3.05(f). In the event a Bank claiming exemption from
United States withholding tax by filing Form W-8ECI with the
Administrative Agent, sells or grants a participation in its rights
under this Agreement, such Bank agrees to undertake sole responsibility
for complying with the withholding tax requirements imposed by Sections
1441 and 1442 of the Code; and
(vi) if the IRS or any authority of the United States of
America or other jurisdiction asserts a claim that the Administrative
Agent or the Borrower did not properly withhold tax from amounts paid
to or for the account of any Bank (but only to the extent such claim
arises because the appropriate form was not delivered, was not properly
executed, because such Bank failed to notify the Administrative Agent
of a change in circumstances which rendered the exemption from
withholding tax ineffective or because of such Bank's sale of a
participating interest in a Loan), such Bank shall indemnify the
31
Administrative Agent and/or the Borrower, as applicable, fully for all
amounts paid, directly or indirectly, by the Administrative Agent
and/or the Borrower, as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent or the Borrower under this
Section 3.05(f), together with all costs, expenses and attorneys' fees
(including the allocated cost of in-house counsel).
Without limiting or restricting any Bank's right to increased amounts under
Section 3.05(d) from the Borrower subject to satisfaction of such Bank's
obligations under the provisions of this Section 3.05(f), if such Bank is
entitled to a reduction in the applicable withholding tax, the Administrative
Agent may withhold from any interest payment to such Bank an amount equivalent
to the applicable withholding tax after taking into account such reduction. If
the forms or other documentation required by clause (i) above are not delivered
to the Administrative Agent, then the Administrative Agent may withhold from any
interest payment to the Bank not providing such forms or other documentation, an
amount equivalent to the applicable withholding tax. In addition, the
Administrative Agent may also withhold against periodic payments other than
interest payments to the extent United States withholding tax is not eliminated
by obtaining Form W-8ECI or Form W-8BEN.
(g) The Borrower shall not be required to pay any additional
amounts in respect of United States Federal income tax pursuant to Section
3.05(d) to any Bank that is a foreign Person for the account of any Lending
Office of such Bank:
(i) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Bank to comply with its
obligations under Section 3.05(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Administrative
Agent and the Borrower a Form W-8ECI in respect of such Lending Office
pursuant to Sections 3.05(f)(i)(A), 3.05(f)(ii)(A) or 3.05(f)(iii) and
such Bank shall not at any time be entitled to exemption from deduction
or withholding of United States Federal income tax in respect of
payments by the Borrower hereunder for the account of such Lending
Office for any reason other than a change in United States law or
regulations or in the official interpretation of such law or
regulations by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form W-8ECI; or
(iii) if such Bank shall have delivered to the Administrative
Agent and the Borrower a Form 1001 in respect of such Lending Office
pursuant to Sections 3.05(f)(i)(B), 3.05(f)(ii)(B) or 3.05(f)(iii) and
such Bank shall not at any time be entitled to exemption from deduction
or withholding of United States Federal income tax in respect of
payments by the Borrower hereunder for the account of such Lending
Office for any reason other than a change in United States law or
regulations or any applicable tax
32
treaty or regulations or in the official interpretation of any such
law, treaty or regulations by any Governmental Authority charged with
the interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form W-8BEN.
(h) Any and all present or future Taxes, Other Taxes and
related liabilities (including penalties, interest, additions to tax and
expenses) which are not paid by the Borrower pursuant to and as required by this
Section 3.05 shall be paid by the Bank which received the principal, interest or
fees in respect of which such Taxes, Other Taxes or related liabilities are
payable. Any and all present or future Taxes or Other Taxes which are required
by law to be deducted or withheld from or in respect of any sum payable
hereunder to any Bank and which are not paid by the Borrower pursuant to and as
required by this Section 3.05 will be deducted or withheld by the Administrative
Agent without any increase in the sum payable as provided in Section 3.05(d).
Each Bank agrees to indemnify the Administrative Agent and hold the
Administrative Agent harmless for the full amount of any and all present or
future Taxes, Other Taxes and related liabilities (including penalties,
interest, additions to tax and expenses, and any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable to the Administrative Agent under this
Section 3.05(h)) which are imposed on or with respect to principal, interest or
fees payable to such Bank hereunder and which are not paid by the Borrower
pursuant to this Section 3.05, whether or not such Taxes, Other Taxes or related
liabilities were correctly or legally asserted. This indemnification shall be
made within 30 days from the date the Administrative Agent makes written demand
therefor.
SECTION 3.06. Sharing of Payments, Etc. If other than as
provided in Section 3.05, 3.08, 3.09, 3.10, 3.11 or 3.12, any Bank shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of any Committed Loan made by it and, after
acceleration of all Obligations pursuant to Section 8.02(b), in respect of any
Obligation owing to it (including with respect to any Bid Loan), in the case of
the Committed Loan, in excess of its Percentage Share of payments on account of
the Committed Loans obtained by all the Banks and, after acceleration, in excess
of its pro rata share of all Obligations, such Bank shall forthwith (a) notify
the Administrative Agent of such fact and (b) purchase from the other Banks such
participations in the Committed Loans made by them or, after acceleration, in
all Obligations owing to them, as shall be necessary to cause such purchasing
Bank to share the excess payment ratably with each of the other Banks according
to their respective Percentage Shares or, after acceleration, their pro rata
shares of all Obligations then owing to them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from such purchasing
Bank, such purchase shall to the extent of such recovery be rescinded and each
other Bank shall repay to the purchasing Bank the purchase price thereto
together with an amount equal to such paying Bank's ratable share (according to
the proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to the provisions of this Section 3.06
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of
33
set-off) with respect to such participation as fully as if such Bank were the
direct creditor of the Borrower in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding in
the absence of manifest error), of participations purchased pursuant to this
Section 3.06 and will in each case notify the Banks following any such
purchases.
SECTION 3.07. Inability to Determine Rates. If with respect to
any Interest Period for Eurodollar Loans, the Administrative Agent shall
determine, or Majority Banks shall notify the Administrative Agent, that LIBOR
for such Interest Period will not adequately and fairly reflect the cost to
Banks of making, funding or maintaining their Eurodollar Loans for such Interest
Period (after giving effect to any event giving rise to additional interest on
such Loans pursuant to Section 3.12), the Administrative Agent shall forthwith
so notify the Borrower and the Banks, whereupon the obligations of the Banks to
make or continue Committed Loans as Eurodollar Loans or to convert Committed
Loans into Eurodollar Loans at the end of the then current Interest Period shall
be suspended until the Administrative Agent upon the instruction of the Majority
Banks revokes such notice. Upon receipt of such notice, the Borrower may revoke
its Notice of Borrowing or Notice of Conversion/Continuation then submitted by
it. If the Borrower does not revoke such notice, the Banks shall make, convert
or continue the Committed Loans, as proposed by the Borrower, in the amount
specified in the applicable notice submitted by the Borrower, but such Loans
shall be made, converted or continued as Reference Rate Loans instead of
Eurodollar Loans.
SECTION 3.08. Increased Costs. If any Bank shall determine
that, due to either (a) the introduction of any Requirement of Law or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the Eurodollar Reserve Percentage) in or in the
interpretation thereof or (b) the compliance with any guideline or request from
any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Bank of agreeing
to make or making, funding or maintaining any Committed Loan, the Borrower shall
be liable for, and shall from time to time, upon demand by such Bank (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Bank, additional amounts sufficient to compensate
such Bank for such increased costs.
SECTION 3.09. Illegality. (a) If any Bank shall determine that
the introduction of any Requirement of Law, or any change in or in the
interpretation thereof has made it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for such Bank or its
Lending Office to make or continue to fund Loans as Eurodollar Loans or to
convert Loans into Eurodollar Loans, then, on notice thereof by such Bank to the
Borrower through the Administrative Agent, the obligation of such Bank to make
or to continue to fund Loans as Eurodollar Loans or to convert any Loans into
Eurodollar Loans shall be suspended until such Bank shall have notified the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist.
34
(b) If a Bank shall determine that it is unlawful to maintain
any Eurodollar Loan made by such Bank, the Borrower shall prepay in full all
Eurodollar Loans of such Bank then outstanding, together with interest accrued
thereon, either on the last day of the then current Interest Period applicable
to each such Eurodollar Loan if such Bank may lawfully continue to maintain such
Eurodollar Loan to such day, or immediately, together with any amounts required
to be paid pursuant to Section 3.11, if such Bank may not lawfully continue to
maintain such Eurodollar Loan to such day, unless the Borrower, on or prior to
the date on which it would otherwise be required to prepay such Eurodollar Loan,
converts all Eurodollar Loans of such Bank then outstanding into Reference Rate
Loans.
(c) Notwithstanding the foregoing, if the obligation of any
Bank to make or maintain Eurodollar Loans has been suspended, the Borrower may
elect by giving notice to such Bank through the Administrative Agent that all
Loans which would otherwise be made or maintained by such Bank as Eurodollar
Loans shall be instead Reference Rate Loans.
SECTION 3.10. Capital Adequacy. If any Bank shall have
determined that the compliance with any Requirement of Law regarding capital
adequacy, or any change therein or in the interpretation or application thereof
or compliance by such Bank (or its Lending Office) or any corporation
controlling such Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) from any central bank or other
Governmental Authority, affects or would affect the amount of capital required
or expected to be maintained by such Bank or any corporation controlling such
Bank and such Bank (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as a
consequence of such Bank's Commitment, loans or obligations under this Agreement
with respect to any Committed Borrowing then from time to time, upon demand of
such Bank (with a copy of such demand to the Administrative Agent), the Borrower
shall be liable for, and shall pay to the Administrative Agent for the account
of such Bank, as specified by such Bank, additional amounts sufficient to
compensate such Bank for such increase.
SECTION 3.11. Funding Losses. The Borrower agrees to reimburse
each Bank and to hold each Bank harmless from any loss, cost or expense which
such Bank may sustain or incur as a consequence of:
(a) any failure of the Borrower to borrow, continue or convert
a Eurodollar Loan after the Borrower has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;
(b) any prepayment or payment of a Eurodollar Loan on a day
which is not the last day of the Interest Period with respect thereto;
(c) any failure of the Borrower to make any prepayment after
the Borrower has given a notice in accordance with Section 2.07; or
35
(d) the conversion of any Eurodollar Loan to a Reference Rate
Loan on a day that is not the last day of the respective Interest Period
pursuant to Section 2.11;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained.
SECTION 3.12. Additional Interest on Eurodollar Loans. The
Borrower shall pay to each Bank, at the request of such Bank (but not more
frequently than once in each calendar quarter), as long as such Bank shall be
required under regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Loan of such Bank from the date such Eurodollar Loan is made until
such principal amount is paid in full, at a rate per annum equal at all times to
the remainder obtained by subtracting (a) LIBOR for the Interest Period for such
Eurodollar Loan from (b) the rate obtained by dividing such LIBOR by a
percentage equal to 100% minus the Eurodollar Reserve Percentage of such Bank
for such Interest Period, payable on each date interest in respect of such
Eurodollar Loan is payable. Notwithstanding the provisions of the previous
sentence, the Borrower shall not be obligated to pay to any Bank any additional
interest in respect of Eurodollar Loans made by such Bank for any period
commencing more than three months prior to the date on which such Bank notifies
the Borrower by delivering a certificate from a financial officer of such Bank,
that such Bank is required to maintain reserves with respect to Eurocurrency
Liabilities.
SECTION 3.13. Certificates of Banks. Any Bank claiming
reimbursement or compensation pursuant to Section 3.05, 3.08, 3.10, 3.11 and/or
3.12 shall deliver to the Borrower (with a copy to the Administrative Agent) a
certificate setting forth in reasonable detail the basis for computing the
amount payable to such Bank hereunder and such certificate shall be conclusive
and binding on the Borrower in the absence of manifest error. Unless otherwise
specifically provided herein, the Borrower shall pay to any Bank claiming
compensation or reimbursement from the Borrower pursuant to Section 3.08, 3.10,
3.11 or 3.12, the amount requested by such Bank no later than five Business Days
after such demand.
SECTION 3.14. Change of Lending Office; Replacement Bank. (a)
Each Bank agrees that upon the occurrence of any event giving rise to the
operation of Section 3.05(c) or (d) or Section 3.08 or 3.09 with respect to such
Bank, it will if so requested by the Borrower, use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Lending Office for any Loans affected by such event with
the object of avoiding the consequence of the event giving rise to the operation
of such Section; provided, however, that such designation would not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. Nothing in
this Section 3.14 shall affect or postpone any of the obligations of the
Borrower or the right of any Bank provided in Section 3.05(c) or (d) or Section
3.08 or 3.09.
36
(b) In the event the Borrower becomes obligated to pay
additional amounts to any Bank pursuant to Sections 3.05(c) or (d) or 3.08, or
if it becomes illegal for any Bank to continue to fund or to make Eurodollar
Loans pursuant to Section 3.09, as a result of any condition described in any
such Section, then, unless such Bank has theretofore taken steps to remove or
cure, and has removed or cured, the conditions creating the cause for such
obligation to pay such additional amounts or for such illegality, the Borrower
may designate another Bank which is reasonably acceptable to the Administrative
Agent and the Majority Banks (such Bank being herein called a "Replacement
Bank") to purchase the Committed Loans of such Bank and such Bank's rights
hereunder, without recourse to or warranty by, or expense to, such Bank for a
purchase price equal to the outstanding principal amount of the Committed Loans
payable to such Bank plus any accrued but unpaid interest on such Loans and
accrued but unpaid fees in respect of such Bank's Commitment and any other
amounts payable to such Bank under this Agreement, and to assume all the
obligations of such Bank hereunder (except for such rights as survive repayment
of the Loans), and, upon such purchase, such Bank shall no longer be a party
hereto or have any rights hereunder (except those related to any Bid Loans of
such Bank which remain outstanding and those that survive full payment
hereunder) and shall be relieved from all obligations to the Borrower hereunder,
and the Replacement Bank shall succeed to the rights and obligations of such
Bank hereunder.
ARTICLE IV
Representations and Warranties
The Borrower represents and warrants to the Administrative
Agent and each Bank that:
SECTION 4.01. Corporate Existence; Compliance with Law. The
Borrower and each of its Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
except where the failure to so qualify has no reasonable likelihood of having a
Material Adverse Effect;
(c) has all requisite corporate power and authority to own,
pledge, mortgage, hold under lease and operate its properties, and to conduct
its business as now or currently proposed to be conducted;
37
(d) is in compliance with its certificate of incorporation and
by-laws; and
(e) is in compliance with all other Requirements of Law except
such non-compliance as has no reasonable likelihood of having a Material Adverse
Effect.
SECTION 4.02. Corporate Authorization; No Contravention;
Governmental Authorization. The execution, delivery and performance by the
Borrower of the Loan Documents, the borrowing of the Loans, the Acquisition, the
Merger and the other Transactions:
(a) are within the corporate powers of the Borrower;
(b) have been duly authorized by all necessary corporate
action, including the consent of shareholders where required;
(c) do not and will not:
(i) contravene the certificate of incorporation or by-laws of
the Borrower;
(ii) violate any other Requirement of Law (including the
Securities Exchange Act of 1934, Regulations T, U and X of the Federal
Reserve Board or any order or decree of any court or other Governmental
Authority);
(iii) conflict with or result in the breach of, or constitute
a default under, any Contractual Obligation binding on or affecting the
Borrower or any of its properties, if such breach or default has any
reasonable likelihood of having a Material Adverse Effect, or any
order, injunction, writ or decree of any Governmental Authority to
which the Borrower or any of its properties is subject; or
(iv) result in the creation or imposition of any Lien upon any
of the property of the Borrower; and
(d) do not require the consent, authorization by or approval
of or notice to or filing or registration with any Governmental Authority or any
other Person other than those which have been duly obtained, made or given.
SECTION 4.03. Enforceable Obligations. This Agreement and the
other Loan Documents have been duly executed and delivered by the Borrower. This
Agreement and each other Loan Document are legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with their
respective terms except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws or equitable
principles relating to or limiting creditors' rights generally.
38
SECTION 4.04. Taxes. The Borrower and its Subsidiaries have
filed all Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other material taxes and assessments
payable by them, to the extent the same have become due and payable and before
they have become delinquent, except those which are currently being contested in
good faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP, provided the non-payment thereof has no
reasonable likelihood of having a Material Adverse Effect. The Borrower does not
know of any proposed material tax assessment against the Borrower or any of its
Subsidiaries and in the opinion of the Borrower, all potential tax liabilities
are adequately provided for on the books of the Borrower and its Subsidiaries.
The statute of limitations for assessment or collection of Federal income tax
has expired for all federal income tax returns filed by the Borrower for all tax
years up to and including the tax year ended in March 1992.
SECTION 4.05. Financial Matters. (a) The consolidated balance
sheet of the Borrower and its Subsidiaries as of the last day of the fiscal year
of the Borrower ended on September 30, 2000, and the related consolidated
statements of income, shareholders' equity and cash flows of the Borrower and
its Subsidiaries for such fiscal year, with reports thereon by Xxxxx & Young
LLP:
(i) are complete, accurate and fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof
and for the period covered thereby;
(ii) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as set forth in
the notes thereto; and
(iii) except as specifically disclosed in Schedule 4.05, show
all material indebtedness and other liabilities, direct or contingent,
of the Borrower and its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and
long-term leases.
(b) The consolidated balance sheet of IBP and its Subsidiaries
as of the last day of the fiscal year of IBP ended on December 25, 1999, and as
of the last day of the fiscal quarter of IBP ended on September 23, 2000, and
the related consolidated statements of earnings, changes in stockholders' equity
and comprehensive income, and of cash flows of IBP and its Subsidiaries for such
fiscal year and quarter, with, in the case of said fiscal year, reports thereon
by PriceWaterhouseCoopers LLP:
(i) except as disclosed on Schedule 4.05, are complete,
accurate and fairly present the financial condition of IBP and its
Subsidiaries as of the respective dates thereof and for the periods
covered thereby;
39
(ii) except as disclosed on Schedule 4.05, were prepared in
accordance with GAAP consistently applied throughout the periods
covered thereby, except as set forth in the notes thereto; and
(iii) except as specifically disclosed in Schedule 4.05, show
all material indebtedness and other liabilities, direct or contingent,
of IBP and its consolidated Subsidiaries as of the dates thereof,
including liabilities for taxes, material commitments and long-term
leases.
(c) The Borrower has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of March 31, 2001, prepared giving
effect to the Transactions as if the Transactions had occurred on such date and
included in the model delivered by the Borrower to the Banks prior to the date
hereof. Such pro forma consolidated balance sheet (i) has been prepared in good
faith based on assumptions believed by the Borrower to be reasonable, (ii) is
based on the best information available to the Borrower after due inquiry, (iii)
accurately reflects all adjustments necessary to give effect to the Transactions
and (iv) presents fairly, in all material respects, the pro forma financial
position of the Borrower and its consolidated Subsidiaries as of March 31, 2001,
as if the Transactions had occurred on such date.
(d) Since September 30, 2000, with respect to the Borrower and
its Subsidiaries (other than IBP and its Subsidiaries), and December 25, 1999,
with respect to IBP and its Subsidiaries, there has been no Material Adverse
Effect and no development which has any reasonable likelihood of having a
Material Adverse Effect.
(e) The Borrower is, and the Borrower and its Subsidiaries
are, on a consolidated basis, Solvent.
SECTION 4.06. Litigation. There are no actions, suits,
proceedings, claims or disputes pending, or to the best knowledge of the
Borrower, threatened, against the Borrower or any of its Subsidiaries before any
court or other Governmental Authority or any arbitrator that have a reasonable
likelihood of having a Material Adverse Effect. All pending actions or
proceedings affecting the Borrower or any of its Subsidiaries as of the date
hereof and involving claims in excess of $10,000,000 are described in Schedule
4.06.
SECTION 4.07. Subsidiaries. (a) A complete and correct list of
all Subsidiaries of the Borrower after giving effect to the transactions to
occur on the Acquisition Date, showing, as to each Subsidiary, the correct name
thereof, the jurisdiction of its incorporation and the percentage of shares of
each class outstanding owned by the Borrower and each other Subsidiary of the
Borrower is set forth in Schedule 4.07(a).
(b) All of the outstanding shares of each of the Subsidiaries
listed on Schedule 4.07(a) have been validly issued, are fully paid and
non-assessable and (other than the shares of
40
IBP) are owned by the Borrower or another Subsidiary of the Borrower, free and
clear of any Lien.
(c) The Borrower has no obligation to capitalize any of its
Subsidiaries.
(d) A complete and correct list of all joint ventures in which
the Borrower or any of its Subsidiaries is a partner is set forth in Schedule
4.07(d).
SECTION 4.08. Liens. There are no Liens of any nature
whatsoever on any properties of the Borrower or any of its Subsidiaries other
than Permitted Liens.
SECTION 4.09. No Burdensome Restrictions; No Defaults. (a)
Neither the Borrower nor any of its Subsidiaries is a party to or bound by any
Contractual Obligation, or subject to any charter or corporate restriction or
any Requirement of Law, which has any reasonable likelihood of having a Material
Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation in any respect
which, individually or together with all such defaults, has a reasonable
likelihood of having a Material Adverse Effect.
(c) No Default or Event of Default exists or would result from
the incurring of any Obligations by the Borrower or any of its Subsidiaries.
SECTION 4.10. Investment Company Act. Neither the Borrower nor
any of its Subsidiaries is an "investment company" or an "affiliated person" of,
or "promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended. The making
of the Loans by the Banks and the application of the proceeds and repayment
thereof by the Borrower and the consummation of the transactions contemplated by
the Loan Documents will not violate any provision of such Act or any rule,
regulation or order issued by the Securities and Exchange Commission thereunder.
SECTION 4.11. Use of Proceeds; Margin Regulations. No part of
the proceeds of any Loan will be used, and no Loan will otherwise be, in
violation of Regulation T, U or X of the Federal Reserve Board.
SECTION 4.12. Assets. (a) The Borrower and each of its
Subsidiaries has good record and marketable title to all real property necessary
or used in the ordinary conduct of its business, except for Permitted Liens and
such defects in title as have no reasonable likelihood, individually or in the
aggregate, of having a Material Adverse Effect.
(b) The Borrower and each of its Subsidiaries owns or licenses
or otherwise has the right to use all material licenses, permits, patents,
trademarks, service marks, trade names, copyrights, franchises, authorizations
and other intellectual property rights that are necessary for
41
the operation of its business, without infringement of or conflict with the
rights of any other Person with respect thereto, except for such infringements
or conflicts as have no reasonable likelihood of having a Material Adverse
Effect. No material slogan or other advertising device, product, process, method
or other material now employed, or now contemplated to be employed, by the
Borrower or any of its Subsidiaries infringes upon or conflicts with any rights
owned by any other Person except for such infringements or conflicts as have no
reasonable likelihood, individually or in the aggregate, of having a Material
Adverse Effect.
SECTION 4.13. Labor Matters. There are no strikes or other
labor disputes pending or, to the knowledge of the Borrower, threatened against
the Borrower or any of its Subsidiaries which have any reasonable likelihood of
having a Material Adverse Effect. Except as disclosed in Schedule 4.13, no
significant unfair labor practice complaint is pending or, to the knowledge of
the Borrower, threatened, against the Borrower or any of its Subsidiaries before
any Governmental Authority.
SECTION 4.14. Environmental Matters. Except as disclosed in
Schedule 4.14:
(a) the on-going operations of the Borrower and each of its
Subsidiaries comply in all respects with all Environmental Laws except such
non-compliance as has no reasonable likelihood of having a Material Adverse
Effect;
(b) the Borrower and each of its Subsidiaries have obtained
all environmental, health and safety permits necessary or required for its
operations, all such permits are in good standing, and the Borrower and each of
its Subsidiaries is in compliance with all material terms and conditions of such
permits;
(c) none of the Borrower, any of its Subsidiaries or any of
their present property or operations (or past property or operations) is subject
to any outstanding written order from or agreement with any Governmental
Authority nor subject to any judicial or docketed administrative proceeding,
respecting any Environmental Claim or Hazardous Material which, in each case,
has any reasonable likelihood of having a Material Adverse Effect;
(d) there are no conditions or circumstances associated with
any property of the Borrower or any of its Subsidiaries formerly owned and
operated by the Borrower or any of its Subsidiaries or any of their predecessors
or with the former operations, including off-site disposal practices, of the
Borrower or its Subsidiaries or their predecessors which may give rise to
Environmental Claims which in the aggregate have any reasonable likelihood of
having a Material Adverse Effect; and
(e) there are no conditions or circumstances which may give
rise to any Environmental Claim arising from the operations of the Borrower or
its Subsidiaries, including Environmental Claims associated with any operations
of the Borrower or its Subsidiaries, which have any reasonable likelihood of
having a Material Adverse Effect. In addition, (i) neither the
42
Borrower nor any of its Subsidiaries has any underground storage tanks (A) that
are not properly permitted under applicable Environmental Laws or (B) that to
the best of the Borrower's knowledge, are leaking or dispose of Hazardous
Materials off-site and (ii) the Borrower and each of its Subsidiaries has
notified all of its employees of the existence, if any, of any health hazard
arising from the conditions of their employment and have met all notification
requirements under Title III of CERCLA and under OSHA and all other
Environmental Laws.
SECTION 4.15. Completeness. None of the representations or
warranties of the Borrower contained herein or in any other Loan Document or in
any certificate or written statement furnished by or on behalf of the Borrower
pursuant to the provisions of this Agreement or any other Loan Document contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements contained herein or therein, in light of the
circumstances under which they are made, not misleading. There is no fact known
to the Borrower which the Borrower has not disclosed to the Banks which may have
a Material Adverse Effect.
SECTION 4.16. ERISA. (a) Neither the Borrower nor any member
of its Controlled Group contributes to any Plan other than those set forth in
Schedule 4.16.
(b) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and any other applicable Federal or
state law and rules and regulations promulgated thereunder. With respect to each
Plan (other than a Multiemployer Plan) all material reports required under ERISA
or any other applicable law or regulation to be filed with the relevant
Governmental Authority, the failure of which to file could reasonably result in
liability of the Borrower or any member of its Controlled Group in excess of
$500,000 have been duly filed and all such reports are true and correct in all
material respects as of the date given.
(c) Except as set forth in Schedule 4.16, no Plan has been
terminated nor has any accumulated funding deficiency (as defined in Section
412(a) of the Code) been incurred (without regard to any waiver granted under
Section 412 of the Code) nor has any funding waiver from the IRS been received
or requested.
(d) Neither the Borrower nor any member of its Controlled
Group has failed to make any contribution or pay any amount due or owing as
required by Section 412 of the Code or Section 302 of ERISA or the terms of any
such Plan prior to the due date (including permissible extensions thereof) under
Section 412 of the Code and Section 302 of ERISA.
(e) There has been no ERISA Event or any event requiring
disclosure under Section 4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA
with respect to any Plan or trust of the Borrower or any member of its
Controlled Group.
(f) Except as set forth in Schedule 4.16, the value of the
assets of each Plan (other than a Multiemployer Plan) equalled or exceeded the
present value of the benefit liabilities, as
43
defined in Title IV of ERISA, of each such Plan as of the most recent valuation
date using Plan actuarial assumptions at such date.
(g) There are no pending claims, lawsuits or actions (other
than routine claims for benefits in the ordinary course) asserted or instituted
against, and neither the Borrower nor any member of its Controlled Group has
knowledge of any threatened litigation or claims against, (i) the assets of any
Plan or trust or against any fiduciary of a Plan with respect to the operation
of such Plan which has any reasonable likelihood of having a Material Adverse
Effect or (ii) the assets of any employee welfare benefit plan maintained by the
Borrower or any member of its Controlled Group within the meaning of Section
3(1) of ERISA or against any fiduciary thereof with respect to the operation of
any such Plan which has any reasonable likelihood of having a Material Adverse
Effect.
(h) Neither the Borrower nor any member of its Controlled
Group has engaged in any prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code, in connection with any Plan.
(i) Neither the Borrower nor any member of its Controlled
Group (i) has incurred or reasonably expects to incur (A) any liability under
Title IV of ERISA (other than premiums due under Section 4007 of ERISA to the
PBGC) or (B) any withdrawal liability (and no event has occurred which with the
giving of notice under Section 4219 of ERISA would result in such liability)
under Section 4201 of ERISA as a result of a complete or partial withdrawal
(within the meaning of Section 4203 or 4205 of ERISA) from a Multiemployer Plan
or (C) any liability under Section 4062 of ERISA to the PBGC or to a trustee
appointed under Section 4042 of ERISA, or (ii) has withdrawn from any
Multiemployer Plan.
(j) Neither the Borrower nor any member of its Controlled
Group nor any organization to which the Borrower or any member of its Controlled
Group is a successor or parent corporation within the meaning of Section 4069(b)
of ERISA has engaged in a transaction within the meaning of Section 4069 of
ERISA.
(k) Except as set forth in Schedule 4.16, neither the Borrower
nor any member of its Controlled Group maintains or has established any welfare
benefit plan within the meaning of Section 3(1) of ERISA which provides for (i)
continuing benefits or coverage for any participant or any beneficiary of any
participant after such participant's termination of employment except as may be
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA") and the regulations thereunder, and at the expense of the
participant or the beneficiary of the participant, or (ii) retiree medical
liabilities. The Borrower and each member of its Controlled Group which
maintains a welfare benefit plan within the meaning of Section 3(1) of ERISA has
complied with any applicable notice and continuation requirements of COBRA and
the regulations thereunder, except where the failure to so comply could not
result in the loss of a tax deduction or imposition of a tax or other penalty on
the Borrower or any member of its Controlled Group.
44
SECTION 4.17. Insurance. The properties of the Borrower and
its Subsidiaries are insured with financially sound and reputable insurance
companies, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar business and owning similar
properties in localities where the Borrower and its Subsidiaries operate.
ARTICLE V
Conditions Precedent
SECTION 5.01. Conditions Precedent to Effectiveness. The
obligation of each Bank to make Loans hereunder shall not become effective until
the date on which each of the following conditions is satisfied (or waived in
accordance with Section 10.02):
(a) Credit Agreement and Notes. The Administrative Agent shall
have received (i) counterparts of this Agreement executed by the Borrower, the
Administrative Agent and each of the Banks and of any promissory notes requested
by the Banks pursuant to Section 2.05 executed by the Borrower, or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of signed counterparts) that such parties have signed such
counterparts;
(b) Board Resolutions; Approvals; Incumbency Certificates. The
Administrative Agent shall have received (i) copies of the resolutions of the
Board of Directors of the Borrower approving and authorizing the execution,
delivery and performance by the Borrower of this Agreement and of each of the
other Loan Documents to be delivered hereunder by it, and authorizing the
borrowing of the Loans, the Acquisition, the Merger and the other Transactions,
certified as of the Effective Date by the Secretary or an Assistant Secretary of
the Borrower; and
(ii) a certificate of the Secretary or Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to execute and deliver this Agreement and
all other Loan Documents to be delivered hereunder by it;
(c) Articles of Incorporation; By-laws and Good Standing. The
Administrative Agent shall have received each of the following documents:
(i) the articles or certificate of incorporation of the
Borrower as in effect on the Effective Date, certified by the Secretary
of State of Delaware as of a recent date and by the Secretary or
Assistant Secretary of the Borrower as of the Effective Date and the
by- laws of the Borrower and IBP as in effect on the Effective Date,
certified by the Secretary or Assistant Secretary of the Borrower as of
the Effective Date; and
45
(ii) good standing certificates as of a recent date for the
Borrower from the Secretaries of State of such states as the
Administrative Agent may request;
(d) Legal Opinion. The Administrative Agent shall have
received a favorable opinion, dated the Effective Date and addressed to the
Administrative Agent and the Banks of Corporate Counsel of the Borrower and its
Subsidiaries to substantially the effect set forth on Exhibit 5.01 and as to
such other matters as any Bank through the Administrative Agent may reasonably
request (and the Borrower hereby instructs such counsel to deliver such
opinion);
(e) Certificate. The Administrative Agent shall have received
a certificate signed by a Responsible Officer of the Borrower, (accompanied, if
applicable, by a supporting certificate signed by a Responsible Officer of IBP)
dated as of the Effective Date, stating that:
(i) the representations and warranties contained in Article IV
are true and correct on and as of such date, as though made on and as
of such date (which statement may be qualified as required in the event
the supporting certificate from IBP is not available);
(ii) no Default or Event of Default exists or would result
from the initial Borrowing hereunder; and
(iii) there has not occurred or become known since September
30, 2000, any condition or change that has affected or could reasonably
be expected to affect materially and adversely the business, assets,
liabilities, financial condition or material agreements of the Borrower
and its Subsidiaries, including IBP and its Subsidiaries, taken as a
whole;
(f) Other Documents. The Administrative Agent shall have
received such other approvals, opinions or documents as the Administrative Agent
or any Bank may request.
(g) Fees, Costs and Expenses. The Borrower shall have paid all
costs and expenses referred to in Section 10.04 (including legal fees and
expenses and the allocated cost of in-house counsel) for which the Borrower has
been invoiced prior to the Effective Date.
The Administrative Agent shall notify the Borrower and the Banks of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Banks to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 3:00 p.m., New York City time, on
March 30, 2001 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
The effectiveness of the obligations to make Loans hereunder
shall terminate (other than Loans made solely for the purpose of repaying
commercial paper issued on or after the Effective Date but prior to the date of
such termination, to the extent the proceeds of such commercial paper shall have
been deposited in the account referred to in the last paragraph of this Section
5.01), and any outstanding Obligations shall become immediately due and payable
at 3:00
46
p.m. on March 30, 2001 (or, in the case of Obligations incurred after such time
shall become due and payable immediately following their incurrence), unless
each of the following conditions is satisfied (or waived in accordance with
Section 10.02):
(h) IBP Guarantee. The Administrative Agent shall have
received (i) a counterpart of the Guarantee Agreement executed by IBP or (ii)
written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed counterpart) that IBP has signed such
counterpart, together with (A) a favorable opinion, dated the date of the
Guarantee Agreement and addressed to the Administrative Agent and the Banks of
counsel to IBP, to substantially the effect set forth on Exhibit 5.01 and as to
such other matters as any Bank through the Administrative Agent may reasonably
request, (B) such documents and certificates as the Administrative Agent, (B)
such documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
IBP, the authorization of the Transactions to which IBP is party and (C) if not
provided on the Effective Date, the supporting certificate referenced to in
paragraph (e) above together with a revised certificate.
(i) Tender Offer. The Tender Offer shall have been completed
(after giving effect to the application of funds made available pursuant to
clause (A)(ii) in the last paragraph of this Section 5.01) in accordance with
applicable law and the terms of the Merger Agreement and the other documentation
related to the Acquisition approved by the Banks prior to the date hereof,
without modification or waiver of any material term or condition thereof not
approved by the Administrative Agent, and the assets and liabilities of IBP and
its Subsidiaries shall be consistent with the pro forma consolidated balance
sheet referred to in Section 4.05(c).
(j) Indebtedness. All credit exposures outstanding under the
IBP Credit Agreement shall have been simultaneously repaid, prepaid, defeased or
refinanced and all commitments thereunder shall have been terminated (or
irrevocable notice of termination shall have been given by IBP), and after
giving effect thereto and to the other transactions contemplated to occur in
connection with the completion of the Tender Offer, the Borrower and its
Subsidiaries (including IBP and its Subsidiaries) shall have outstanding no
Indebtedness other than commitments and Indebtedness under or permitted by this
Agreement and the Existing Credit Agreement, Indebtedness under the Borrower's
commercial paper program and the Senior Notes, if any.
(k) Approvals and Consents. All requisite governmental
authorities and third parties shall have approved or consented to the
Acquisition to the extent such approvals or consents are required under
applicable laws or agreements or otherwise; all applicable appeal periods shall
have expired; and there shall be no governmental or judicial action, actual or
threatened, that could reasonably be expected to restrain, prevent or impose
materially burdensome conditions on the Acquisition or the Transactions. There
shall be no litigation or administrative action that could reasonably be
expected to have a material adverse effect on the
47
business, assets, liabilities or financial condition of the Borrower and its
Subsidiaries, including IBP and its Subsidiaries, taken as a whole.
(l) Existing Credit Agreement. Any amendment, waiver or other
modification of the Existing Credit Agreement required in connection with this
Agreement, the Acquisition, the Merger or any other Transaction shall have
become effective and shall be satisfactory in all respects to the Banks.
The Administrative Agent shall notify the Borrower and the Banks of the
Acquisition Date, and such notice shall be conclusive and binding. All proceeds
of any commercial paper issued by the Borrower on or after the Effective Date
but prior to the Acquisition Date shall to the extent that after giving effect
to the issuance of such commercial paper (and to any repayment of commercial
paper of the Borrower on the date of such issuance) the aggregate outstanding
principal amount of commercial paper of the Borrower is in excess of the
difference between the aggregate commitments under the Existing Credit Agreement
(and/or any amendment of, supplement to or replacement of the Existing Credit
Agreement) and the aggregate outstanding principal amount of the loans
outstanding thereunder be held in an account of the Borrower maintained with the
Administrative Agent pursuant to an account agreement satisfactory to the
Borrower and the Administrative Agent and shall (A) be made available to the
Borrower solely to finance (i) the refinancing of the IBP Credit Agreement and
other Indebtedness of IBP on or after the date when the condition set forth in
paragraph (h) shall have been satisfied and (ii) the consummation of the Tender
Offer and the related Transactions on the date on which all the conditions set
forth in paragraphs (h) through (l) are satisfied, or (B) if all such conditions
are not satisfied on or prior to March 30, 2001, or any earlier date on which
the Commitments shall have terminated, be applied solely to repay such
commercial paper as it matures and all Obligations that may from time to time be
outstanding on or after March 30, 2001, or any earlier date on which the
Commitments shall have terminated.
SECTION 5.02. Conditions Precedent to All Borrowings. The
obligation of each Bank to make any Loan on or after the Effective Date shall be
subject to the further conditions precedent that:
(a) Notice of Borrowing. In the case of a Committed Borrowing,
the Administrative Agent shall have received a Notice of Borrowing as required
by Section 2.02.
(b) Continuation of Representations and Warranties. The
representations and warranties contained in Article IV and in each other Loan
Document shall be true and correct on and as of the date of borrowing with the
same effect as if made on and as of such date (except for representations and
warranties expressly relating to an earlier date, in which case they shall be
true and correct as of such earlier date).
(c) No Existing Default. No Default or Event of Default shall
exist and be continuing or shall result from the Loan being made on such date.
48
(d) Other Assurances. The Administrative Agent shall have
received such other approvals, opinions or documents as any Bank through the
Administrative Agent may reasonably request related to the transactions
contemplated hereby.
Each Notice of Borrowing and Competitive Bid Request submitted by the Borrower
hereunder shall constitute a representation and warranty by the Borrower
hereunder, as of the date of each such notice, application or request and as of
the date of each Borrowing relating thereto, that the conditions in this Section
5.02 are satisfied.
ARTICLE VI
Affirmative Covenants
The Borrower covenants and agrees that as long as any Bank
shall have any Commitment hereunder or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Banks waive compliance in writing:
SECTION 6.01. Compliance with Laws, Etc. The Borrower shall
comply, and cause each of its Subsidiaries to comply, with all applicable
Requirements of Law, except such as may be contested in good faith by
appropriate proceedings and which has no reasonable likelihood of having a
Material Adverse Effect.
SECTION 6.02. Use of Proceeds. The Borrower shall use the
proceeds of any Loan hereunder made on or after the Effective Date to finance
the Acquisition, to refinance the IBP Credit Agreement and other Indebtedness of
IBP, to refinance the Borrower's commercial paper and for working capital and
other general corporate purposes (including capital expenditures and
acquisitions and to support the issuance of commercial paper) not in
contravention of any Requirement of Law and consistent with the representations
and warranties contained herein; provided, however, that the proceeds of any
Loan hereunder may not be used to finance the purchase or other acquisition of
Stock in any Person if such purchase or acquisition is opposed by the board of
directors of such Person.
SECTION 6.03. Payment of Obligations, Etc. The Borrower shall
pay and discharge, and cause each of its Subsidiaries to pay and discharge,
before the same shall become delinquent, all lawful claims and all taxes,
assessments and governmental charges or levies unless the same are being
contested in good faith by appropriate proceedings and adequate reserves
therefor have been established on the books of the Borrower or one of its
Subsidiaries in accordance with GAAP, provided all such non-payments,
individually or in the aggregate, have no reasonable likelihood of having a
Material Adverse Effect.
49
SECTION 6.04. Insurance. The Borrower shall maintain, and
cause each of its Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons.
SECTION 6.05. Preservation of Corporate Existence, Etc. The
Borrower shall preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights (charter and statutory)
and franchises, except as permitted under Sections 7.05 and 7.07.
SECTION 6.06. Access. The Borrower shall permit, and cause
each of its Subsidiaries to permit, representatives of the Administrative Agent
or any Bank to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower
and any of its Subsidiaries with any of their directors, officers and
independent public accountants and authorize those accountants to disclose to
such Person any and all financial statements and other information of any kind,
including copies of any management letter or the substance of any oral
information that such accountants may have with respect to the business,
financial and other affairs of the Borrower or any of its Subsidiaries, all at
the expense of the Borrower and at such times during normal business hours and
as often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that when an Event of Default exists, the
Administrative Agent or any Bank may visit and inspect, at the expense of the
Borrower, its records and properties at any time during business hours and
without advance notice.
SECTION 6.07. Keeping of Books. The Borrower shall maintain,
and cause each of its Subsidiaries to maintain, proper books of record and
account, in which full and correct entries shall be made of all financial
transactions and matters involving the assets and business of the Borrower and
each of its Subsidiaries in accordance with GAAP.
SECTION 6.08. Maintenance of Properties. The Borrower shall
maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties in good repair, working order and condition, and
from time to time make or cause to be made all necessary and proper repairs,
renewals, replacements and improvements so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 6.08 shall prevent the Borrower
or any of its Subsidiaries from discontinuing the operation and the maintenance
of any of its properties if such discontinuance is, in the opinion of the
Borrower, desirable in the conduct of its business and has no reasonable
likelihood of having a Material Adverse Effect.
50
SECTION 6.09. Financial Statements. The Borrower shall deliver
to each Bank with a copy to the Administrative Agent, in form and details
satisfactory to the Banks and the Administrative Agent:
(a) as soon as available, but not later than 45 days after the
end of each of the first three quarters of each fiscal year of the Borrower, a
copy of the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for such quarter and
for the period commencing at the end of the previous fiscal year and ending on
the last day of such quarter, which statements shall be certified by the Chief
Financial Officer of the Borrower as being complete and correct and fairly
presenting, in accordance with GAAP, the financial position and results of
operation of the Borrower and its Subsidiaries;
(b) as soon as available, but not later than 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such year
and the related consolidated statements of income, shareholders' equity and cash
flows for the period commencing at the end of the previous fiscal year and
ending with the end of such fiscal year, which statements shall be certified
without qualification as to the scope of the audit by a nationally recognized
independent public accounting firm and be accompanied by (i) a certificate of
such accounting firm stating that such accounting firm has obtained no knowledge
that a Default or an Event of Default has occurred and is continuing, or if such
accounting firm has obtained such knowledge that a Default or an Event of
Default has occurred and is continuing, a statement as to the nature thereof and
(ii) copies of any letters to the management of the Borrower from such
accounting firm; and
(c) at the same time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of the Chief
Financial Officer of the Borrower (i) to the effect that no Default or Event of
Default has occurred and is continuing (or, if any Default or Event of Default
has occurred and is continuing, describing the same in reasonable detail and the
action which the Borrower proposes to take with respect thereto) and (ii) a
compliance certificate, in substantially the form of Exhibit 6.09, setting forth
in reasonable detail the computations necessary to determine whether the
Borrower was in compliance with the financial covenant set forth in Section
7.15, in each case reconciling any differences between the numbers used in such
calculations and those used in the preparation of such financial statements.
SECTION 6.10. Reporting Requirements. The Borrower shall
furnish to the Administrative Agent (and the Administrative Agent shall promptly
furnish to the Banks):
(a) promptly after the commencement thereof, notice of all
actions, suits and proceedings before any court or other Governmental Authority
affecting the Borrower or any of its Subsidiaries which, individually or in the
aggregate, has any reasonable likelihood of having a Material Adverse Effect;
51
(b) promptly but not later than three Business Days after the
Borrower becomes aware of the existence of (i) any Default or Event of Default,
(ii) any breach or non-performance of, or any default under, any Contractual
Obligation to which the Borrower or any of its Subsidiaries is a party which has
any reasonable likelihood of having a Material Adverse Effect, or (iii) any
Material Adverse Effect or any event or other development which has a reasonable
likelihood of having a Material Adverse Effect, notice by telephone or facsimile
specifying the nature of such Default, Event of Default, breach,
non-performance, default, Material Adverse Effect, event or development,
including the anticipated effect thereof;
(c) promptly after the sending or filing thereof, copies of
all reports which the Borrower or any of its Subsidiaries sends to its security
holders generally, and copies of all reports and registration statements which
the Borrower or any of its Subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;
(d) promptly after the creation or acquisition thereof, the
name and jurisdiction of incorporation of each new Subsidiary of the Borrower;
(e) promptly, but not later than five Business Days after the
Borrower becomes aware of any change by Xxxxx'x or S&P in its Debt Rating,
notice by telephone or facsimile of such change; and
(f) such other information respecting the business, prospects,
properties, operations or the condition, financial or otherwise, of the Borrower
or any of its Subsidiaries as any Bank through the Administrative Agent may from
time to time reasonably request.
SECTION 6.11. Notices Regarding ERISA. Without limiting the
generality of the notice provisions contained in Section 6.10, the Borrower
shall furnish to the Administrative Agent:
(a) promptly and in any event (i) within 30 days after the
Borrower or any member of its Controlled Group knows or has reason to know that
any ERISA Event described in clause (a) of the definition of ERISA Event or any
event described in Section 4063(a) of ERISA with respect to any Plan, and (ii)
within ten days after the Borrower or any member of its Controlled Group knows
or has reason to know that any other ERISA Event with respect to any Plan has
occurred or a request for a minimum funding waiver under Section 412 of the Code
with respect to any Plan has been made, a statement of the Chief Financial
Officer of the Borrower describing such ERISA Event and the action, if any,
which the Borrower or such member of its Controlled Group proposes to take with
respect thereto together with a copy of the notice of such ERISA Event or other
event, if required by the applicable regulations under ERISA, given to the PBGC;
(b) promptly and in any event within five Business Days after
receipt thereof by the Borrower or any member of its Controlled Group from the
PBGC, copies of each notice
52
received by the Borrower or any such member of its Controlled Group of the
PBGC's intention to terminate any Plan or to have a trustee appointed to
administer any Plan;
(c) promptly and in any event within ten Business Days after
receipt thereof, a copy of any correspondence the Borrower or any member of its
Controlled Group receives from the Plan Sponsor (as defined by Section
4001(a)(10) of ERISA) of any Multiemployer Plan concerning potential withdrawal
liability of the Borrower or any member of its Controlled Group pursuant to
Section 4219 or 4202 of ERISA, and a statement from the Chief Financial Officer
of the Borrower or such member of its Controlled Group setting forth details as
to the events giving rise to such potential withdrawal liability and the action
which the Borrower or such member of its Controlled Group proposes to take with
respect thereto;
(d) notification within 30 days of any material increase in
the benefits under any existing Plan which is not a Multiemployer Plan, or the
establishment of any new Plans, or the commencement of contributions to any Plan
to which the Borrower or any member of its Controlled Group was not previously
contributing;
(e) notification within five Business Days after the Borrower
or any member of its Controlled Group knows or has reason to know that the
Borrower or any such member of its Controlled Group has or intends to file a
notice of intent to terminate any Plan under a distress termination within the
meaning of Section 4041(c) of ERISA and a copy of such notice; and
(f) promptly after receipt of written notice of commencement
thereof, notice of any action, suit and proceeding before any Governmental
Authority affecting the Borrower or any member of its Controlled Group with
respect to any Plan, except those which, in the aggregate, if adversely
determined, could not have a Material Adverse Effect.
SECTION 6.12. Employee Plans. (a) With respect to Plans other
than a Multiemployer Plan, for each Plan intended to be qualified under Section
401(a) of the Code which is hereafter adopted or maintained by the Borrower or
by any member of its Controlled Group, the Borrower shall or shall cause any
such member of its Controlled Group to (i) seek and receive determination
letters from the IRS to the effect that such Plan is qualified within the
meaning of Section 401(a) of the Code; (ii) from and after the adoption of any
such Plan, cause such Plan to be qualified within the meaning of Section 401(a)
of the Code and to be administered in all material respects in accordance with
the requirements of ERISA and Section 401(a) of the Code; (iii) make all
required contributions by the due date (including permissible extensions) under
Section 412 of the Code and Section 302 of ERISA; and (iv) not take any action
which could reasonably be expected to cause such Plan not to be qualified within
the meaning of Section 401(a) of the Code or not to be administered in all
material respects in accordance with the requirements of ERISA and Section
401(a) of the Code.
(b) With respect to each Multiemployer Plan, the Borrower and
each member of its Controlled Group will make any contributions required by such
Multiemployer Plan.
53
SECTION 6.13. Environmental Compliance; Notice. The Borrower
shall, and cause each of its Subsidiaries to:
(a) use and operate all of its facilities and properties in
substantial compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, license and other authorizations relating to
environmental matters in effect and remain in substantial compliance therewith,
and handle all Hazardous Materials in substantial compliance with all applicable
Environmental Laws;
(b) promptly upon receipt of all written claims, complaints,
notices or inquiries relating to the condition of its facilities and properties
or compliance with Environmental Laws, evaluate such claims, complaints, notices
and inquiries and forward copies of (i) all such claims, complaints, notices and
inquiries which individually have any reasonable likelihood of having a Material
Adverse Effect and (ii) all such claims, complaints, notices and inquiries,
arising from a single occurrence which together have any reasonable likelihood
of having a Material Adverse Effect, and endeavor to promptly resolve all such
actions and proceedings relating to compliance with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 6.13.
SECTION 6.14. Acquisition and Merger Agreement. The Borrower
will use its best efforts to complete the Acquisition and consummate the Merger
as soon as practicable and will not amend or waive without the approval of the
Administrative Agent any material term or condition of the Merger Agreement or
any other documentation related to the Acquisition delivered to the Banks prior
to the date of this Agreement.
SECTION 6.15. Shelf Registration. The Borrower shall no later
than March 16, 2001, file with the Securities and Exchange Commission a shelf
registration pursuant to Rule 415 of the Securities Act in respect of up to
$2,000,000,000 of the Company's debt securities.
54
ARTICLE VII
Negative Covenants
The Borrower hereby covenants and agrees that so as long as
any Bank shall have any Commitment hereunder or any Loan or other Obligation
shall remain unpaid or unsatisfied, unless the Majority Banks shall waive
compliance in writing:
SECTION 7.01. Limitations on Liens. The Borrower shall not
create, incur, assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any Lien upon or with respect to any
of its properties, whether now owned or hereafter acquired, other than (subject
to the final sentence of this Section 7.01) the following ("Permitted Liens"):
(a) any Lien existing on the property of the Borrower or any
of its Subsidiaries on the Effective Date and set forth in Schedule 7.01 and any
extension, renewal and replacement of any such Lien; provided any such
extension, renewal or replacement Lien is limited to the property or assets
covered by the Lien extended, renewed or replaced and does not secure any
Indebtedness in addition to that secured immediately prior to such extension,
renewal and replacement;
(b) any Lien created pursuant to any Loan Document;
(c) Liens imposed by law, such as materialmen's, mechanics',
warehousemen's, carriers', lessors' or vendors' Liens incurred by the Borrower
or any of its Subsidiaries in the ordinary course of business which secure its
payment obligations to any Person, provided (i) neither the Borrower nor any of
its Subsidiaries is in default with respect to any payment obligation to such
Person or the Borrower or the applicable Subsidiary is in good faith and by
appropriate proceedings diligently contesting such obligation for which adequate
reserves shall have been set aside on its books and (ii) such Liens have no
reasonable likelihood of having, individually or in the aggregate, a Material
Adverse Effect;
(d) Liens for taxes, assessments or governmental charges or
levies either not yet due and payable or to the extent that non-payment thereof
shall be permitted by Section 6.03;
(e) Liens on the property of the Borrower or any of its
Subsidiaries incurred, or pledges and deposits made, in the ordinary course of
business in connection with worker's compensation, unemployment insurance,
old-age pensions and other social security benefits, other than in respect of
employee plans subject to ERISA;
(f) Liens on the property of the Borrower or any of its
Subsidiaries securing (i) the performance of bids, tenders, statutory
obligations, leases and contracts (other than for the repayment of borrowed
money), (ii) obligations on surety and appeal bonds not exceeding in the
55
aggregate $5,000,000 and (iii) other obligations of like nature incurred as an
incident to and in the ordinary course of business, provided all such Liens in
the aggregate have no reasonable likelihood (even if enforced) of having a
Material Adverse Effect;
(g) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities incident
thereto which do not impair the value of any parcel of property material to the
operation of the business of the Borrower and its Subsidiaries taken as a whole
or the value of such property for the purpose of such business;
(h) (i) purchase money liens or purchase money security
interests (including in connection with capital leases) upon or in any property
acquired or held by the Borrower or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such property or to secure
Indebtedness incurred solely for the purpose of financing the acquisition of
such property and Liens existing on such property at the time of its acquisition
(other than any such Lien created in contemplation of such acquisition) which
Liens do not extend to any other property and do not secure Indebtedness
exceeding the purchase price of such property;
(ii) Liens (including in connection with capital leases)
securing Indebtedness of the Borrower or any of its Subsidiaries
incurred to finance all or some of the cost of construction of property
(or to refinance Indebtedness so incurred upon completion of such
construction) which Liens do not extend to any other property except to
the unimproved real property upon which such construction will occur;
provided the Indebtedness secured by such Liens is not incurred more
than 90 days after the later of the completion of construction or the
commencement of full operation of such property;
(iii) Liens on property in favor of any Governmental Authority
to secure partial, progress, advance or other payments, or performance
of any other obligations, pursuant to any contract or statute or to
secure any Indebtedness of the Borrower or any of its Subsidiaries
incurred for the purpose of financing all or any part of the purchase
price or the cost of construction of property subject to Liens
(including in connection with capital leases) securing Indebtedness of
the pollution control or industrial or other revenue bond type and
which Liens do not extend to any other property; and
(iv) in addition to Liens permitted under clauses (i) and (ii)
above, Liens in connection with capital leases entered into by the
Borrower or any of its Subsidiaries in connection with sale-leaseback
transactions.
provided, however, that the aggregate amount of Indebtedness secured by
all Liens referred to in clauses (i), (ii), (iii) and (iv) of this
paragraph (h) at any time outstanding, together with the Indebtedness
secured by Xxxxx permitted pursuant to paragraphs (i) and (l) below
(and any extensions, renewals and refinancings of such Indebtedness)
shall not, subject to the second proviso of paragraph (i) below, at any
time exceed the Permitted Lien Basket;
56
(i) Liens on assets of any corporation existing at the time
such corporation becomes a Subsidiary of the Borrower or merges into or
consolidates with the Borrower or any of its Subsidiaries, if such Liens (A) do
not extend to any other property, (B) do not secure Indebtedness exceeding the
fair market value of such property at the time such corporation becomes a
Subsidiary of the Borrower or at the time of such merger or consolidation, and
(C) were not created in contemplation of such corporation becoming a Subsidiary
of the Borrower or of such merger or consolidation; provided, however, that the
aggregate amount of Indebtedness secured by Xxxxx referred to in this paragraph
(i), together with the Indebtedness secured by Xxxxx permitted pursuant to
paragraph (h) above and paragraph (l) below (and any extensions, renewals and
refinancings of such Indebtedness) shall not at any time exceed the Permitted
Lien Basket; provided, further, however, that notwithstanding the foregoing
limitation, the Borrower may incur, and permit its Subsidiaries to incur,
Indebtedness secured by Xxxxx referred to in this paragraph (i) which, when
aggregated with the Indebtedness secured by Xxxxx permitted pursuant to
paragraph (h) above and paragraph (l) below, exceed the Permitted Lien Basket
if, and only if, (x) such Indebtedness remains outstanding for a period of less
than six months from the date on which such Indebtedness first exceeded the
Permitted Lien Basket or (y) such Liens are released within six months;
(j) the filing of financing statements in respect of accounts
sold by the Borrower and its Subsidiaries pursuant to a receivables purchase
transaction by the purchaser or purchasers from the Borrower and its
Subsidiaries of such accounts;
(k) judgment Liens created by or resulting from any litigation
or legal proceeding if released or bonded within 60 days of the date of creation
thereof (or such earlier date as may be required by Section 8.01(h)), unless
such litigation shall have had a Material Adverse Effect;
(l) Liens securing other Indebtedness of the Borrower or any
of its Subsidiaries not expressly permitted by paragraphs (a) through (k);
provided, however, that the aggregate amount of Indebtedness secured by Liens
permitted pursuant to paragraphs (h) and (i) above and pursuant to this
paragraph (l) (and any extensions, renewals and refinancings of such
Indebtedness) shall not, subject to the second proviso of paragraph (i) above,
at any time exceed the Permitted Lien Basket; and
(m) any Lien on Excess Margin Stock
Notwithstanding anything contained in this Agreement to the contrary, the
Borrower shall not create, incur or assume, or permit any of its Subsidiaries to
create, incur or assume, any Priority Debt (other than Priority Debt resulting
from the securing of existing Indebtedness with Excess Margin Stock), if after
giving effect to such creation, incurrence or assumption the aggregate
outstanding amount of Priority Debt at the time of such creation, incurrence or
assumption would exceed 15% of the total consolidated assets (calculated as if
the Merger had occurred as of the Effective Date) of the Borrower and its
Subsidiaries at the most recent fiscal quarter end of the Borrower for which
financial statements have been delivered under Section 6.09(a) or (b) (or
57
prior to the first delivery of such financial statements, at the respective
dates of the most recent financial statements for the Borrower and IBP referred
to in Section 4.05(a) and (b)).
SECTION 7.02. Limitation on Indebtedness. The Borrower shall
not create, incur, assume or suffer to exist, or permit any of its Subsidiaries
to create, incur, assume or suffer to exist, any Indebtedness except (subject to
the final sentence of this Section 7.02):
(a) the Loans and any other Indebtedness under this Agreement
or any other Loan Document;
(b) Indebtedness existing on the Effective Date and set forth
in Schedule 7.02, and any extension, renewal, refunding and refinancing thereof,
provided that after giving effect to such extension, renewal, refunding or
refinancing, (A) the principal amount thereof is not increased, (B) neither the
tenor nor the remaining average life thereof is reduced and (C) the interest
rate thereon is not increased; provided, however, that the industrial revenue
bonds identified by an asterisk in Schedule 7.02 may be refinanced at an
interest rate higher than the rate in effect immediately prior to such
refinancing if such rate is not in excess of any rate of interest then payable
in respect of the Loans (without taking into account any interest payable
pursuant to Section 2.10);
(c) Indebtedness of the Borrower to any of its wholly-owned
Subsidiaries, of any Subsidiary of the Borrower to the Borrower or of any
Subsidiary of the Borrower to another Subsidiary of the Borrower;
(d) surety bonds and appeal bonds required in the ordinary
course of business or in connection with the enforcement of rights or claims of
the Borrower or its Subsidiaries or in connection with judgments that do not
result in a Default or an Event of Default;
(e) trade debt (including Indebtedness for the purchase of
farm products from contract growers and other similar suppliers but excluding
Indebtedness for Borrowed Money) incurred by the Borrower or any of its
Subsidiaries in the ordinary course of business in a manner and to an extent
consistent with their past practices and necessary or desirable for the prudent
operation of its businesses;
(f) Indebtedness secured by Xxxxx permitted pursuant to
Section 7.01 subject to the limitations contained therein;
(g) Indebtedness incurred in connection with the issuance of
commercial paper; and
(h) other present and future unsecured Indebtedness provided
at the time of, and immediately after giving effect to, the incurrence of such
Indebtedness, no condition or event shall exist which constitutes an Event of
Default.
58
Notwithstanding anything contained in this Agreement to the contrary, the
Borrower shall not create, incur or assume, or permit any of its Subsidiaries to
create, incur or assume, any Priority Debt (other than Priority Debt resulting
from the securing of existing Indebtedness with Excess Margin Stock), if after
giving effect to such creation, incurrence or assumption the aggregate
outstanding amount of Priority Debt at the time of such creation, incurrence or
assumption would exceed 15% of the total consolidated assets (calculated as if
the Merger had occurred as of the Effective Date) of the Borrower and its
Subsidiaries at the most recent fiscal quarter end of the Borrower for which
financial statements have been delivered under Section 6.09(a) or (b) (or prior
to the first delivery of such financial statements, at the respective dates of
the most recent financial statements for the Borrower and IBP referred to in
Section 4.05(a) and (b)).
SECTION 7.03. Lease Obligations. The Borrower shall not
create, incur, assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any obligation for the payment of rent
for any property under lease or agreement to lease having a term of one year or
more, except (subject to the final sentence of this Section 7.03):
(a) leases of the Borrower and its Subsidiaries in existence
on the Effective Date and any renewal or extension thereof;
(b) operating leases in the ordinary course of business; and
(c) subject to the limitations set forth in Section 7.01(h)
capital leases entered into by the Borrower or any of its Subsidiaries after the
Effective Date in connection with sale-leaseback transactions; provided (i)
immediately prior to giving effect to such lease, the property subject to such
lease was sold by the Borrower or any such Subsidiary to the lessor pursuant to
a transaction permitted under Section 7.07 and (ii) no Event of Default exists
or would occur as a result of such sale and subsequent lease.
Notwithstanding anything contained in this Agreement to the contrary, the
Borrower shall not create, incur or assume, or permit any of its Subsidiaries to
create, incur or assume, any Priority Debt (other than Priority Debt resulting
from the securing of existing Indebtedness with Excess Margin Stock), if after
giving effect to such creation, incurrence or assumption the aggregate
outstanding amount of Priority Debt at the time of such creation, incurrence or
assumption would exceed 15% of the total consolidated assets (calculated as if
the Merger had occurred as of the Effective Date) of the Borrower and its
Subsidiaries at the most recent fiscal quarter end of the Borrower for which
financial statements have been delivered under Section 6.09(a) or (b) (or prior
to the first delivery of such financial statements, at the respective dates of
the most recent financial statements for the Borrower and IBP referred to in
Section 4.05(a) and (b)).
59
SECTION 7.04. Restricted Payments. The Borrower shall not:
(a) declare or make, or permit any of its Subsidiaries to
declare or make, any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of its Stock
other than (i) dividends paid by any wholly-owned Subsidiary of the Borrower to
the Borrower or any other wholly-owned Subsidiary of the Borrower; (ii)
distributions of shares of common stock of the Borrower to its management as
executive compensation and in connection with management incentive plans; (iii)
dividends or distributions payable solely in additional common Stock of the
Borrower; and (iv) other dividends to the shareholders of the Borrower, provided
at the time of, and immediately after giving effect to, the payment of such
dividends pursuant to this paragraph (a)(iv), no condition or event shall exist
which constitutes an Event of Default; or
(b) purchase, redeem, or otherwise acquire for value or make
any payment in respect of any of its Stock now or hereafter outstanding (or
permit any of its Subsidiaries to do so) except (i) purchases in the open market
to fund the Borrower's stock option plans, employee stock purchase plans, 401(k)
plans and other similar plans consistent with the past practices of the
Borrower; (ii) the redemption or purchase by any wholly-owned Subsidiary of the
Borrower of any of its Stock owned by another wholly-owned Subsidiary of the
Borrower and (iii) the purchase, redemption and other acquisition of any of its
or such Subsidiary's Stock, provided at the time of, and immediately after
giving effect to, such purchase, redemption or other acquisition pursuant to
this paragraph (b)(iii), no condition or event shall exist which constitutes an
Event of Default.
SECTION 7.05. Mergers, Etc. The Borrower shall not merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to any Person, or,
except as permitted pursuant to Section 7.06 or Section 7.09, acquire all or
substantially all of the Stock of any Person, or acquire all or substantially
all of the assets of any Person (other than live inventory) or enter into any
joint venture or partnership with, any Person, or permit any of its Subsidiaries
to do so; provided, however, that:
(a) the Borrower may merge with a wholly-owned Subsidiary of
the Borrower so long as (i) the Borrower is the surviving corporation and (ii)
at the time of, and immediately after giving effect to, such merger, no
condition or event shall exist which constitutes an Event of Default;
(b) any wholly-owned direct or indirect Subsidiary of the
Borrower may merge with or into any other wholly-owned direct or indirect
Subsidiary of the Borrower or acquire Stock of any other wholly-owned direct or
indirect Subsidiary of the Borrower;
(c) the Borrower or any Subsidiary of the Borrower may acquire
all or substantially all of the Stock or all or substantially all of the assets
of any Person, provided at the
60
time of, and immediately after giving effect to such acquisition, no condition
or event shall exist which constitutes an Event of Default; and
(d) any Subsidiary of the Borrower may merge with any other
corporation permitted to be acquired pursuant to paragraph (c) above, provided
(i) at the time of, and immediately after giving effect to, such merger, no
condition or event shall exist which constitutes an Event of Default and (ii)
and after such merger, the surviving corporation is a Subsidiary of the
Borrower.
SECTION 7.06. Investments in Other Persons. The Borrower shall
not make, or permit any of its Subsidiaries to make, any loan or advance to any
Person (other than accounts receivable created in the ordinary course of
business); or, except as permitted under Section 7.04 or 7.05, purchase or
otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise
acquire, any Stock or other equity interest or Indebtedness of any Person, or
make, or permit any of its Subsidiaries to make, any capital contribution to, or
otherwise invest in, any Person, except:
(a) Permitted Investments;
(b) loans or advances made by the Borrower or any of its
Subsidiaries to (i) employees of the Borrower or any of such Subsidiaries in the
ordinary course of business in a manner consistent with past practices and (ii)
joint ventures and partnerships in which the Borrower is a partner, provided at
the time of, and immediately after giving effect to, such loans or advances, no
condition or event shall exist which constitutes an Event of Default;
(c) loans or advances or other credit support, including the
procurement of letters of credit for its account, made by the Borrower or any of
its Subsidiaries (in addition to those permitted under paragraph (b) above) to
any Person; provided, however, that the aggregate amount of all investments
pursuant to this paragraph (c) shall not at any time exceed 15% of the
consolidated Net Worth (calculated as if the Merger had occurred as of the
Effective Date) of the Borrower;
(d) investments in Stock or other joint ventures and
partnerships (including through mergers and consolidations), provided at the
time of, and immediately after giving effect to, such investments, no condition
or event shall exist which constitutes an Event of Default;
(e) the organization or acquisition by the Borrower or any of
its wholly-owned Subsidiaries of one or more wholly-owned Subsidiaries;
(f) the acquisition by the Borrower or any of its wholly-owned
Subsidiaries of Stock permitted to be issued pursuant to Section 7.09; and
(g) intercompany Indebtedness permitted pursuant to Section
7.02(d).
61
SECTION 7.07. Assets. The Borrower shall not sell, assign,
transfer or otherwise dispose of any of its assets, or permit any of its
Subsidiaries to sell, assign, transfer or otherwise dispose of any of its
assets, except:
(a) the sale or disposition of inventory and farm products in
the ordinary course of business;
(b) the sale or disposition in the ordinary course of business
of any assets which have become obsolete or surplus to the business of the
Borrower or any of its Subsidiaries, or has no remaining useful life, in each
case as reasonably determined in good faith by the Borrower or such Subsidiary,
as the case may be;
(c) the periodic sales to third parties of live inventory and
related products and services under grow out contracts;
(d) Permitted Dispositions;
(e) the sale or disposition of Permitted Investments;
(f) the sale of accounts or other receivables for not less
than the fair value thereof by the Borrower and its Subsidiaries, without
recourse, in connection with a receivables purchase transaction; and
(g) the sale or disposition of Excess Margin Stock for not
less than the fair value thereof.
SECTION 7.08. Change in Nature of Business. The Borrower shall
not:
(a) engage in any business other than the production,
marketing and distribution of food products and any related food or agricultural
products, processes or business; or
(b) permit any of its Subsidiaries to make any material change
in the nature of its business as carried on at the date hereof except as
permitted under Section 7.05 or enter into any new business.
SECTION 7.09. Capital Structure. The Borrower shall not:
(a) make, or, except as permitted by Section 7.05, permit any
of its Subsidiaries to make, any changes in its capital structure (including in
the terms of its outstanding Stock), amend their certificate of incorporation or
by-laws, or make any changes in any of its business objectives, purposes or
operations if such change has a reasonable likelihood of having a Material
Adverse Effect; or
62
(b) permit any of its Subsidiaries to issue any Stock (other
than directors' qualifying shares) other than to the Borrower or any
wholly-owned Subsidiary of the Borrower, except if (i) after giving effect to
such issuance, such Subsidiary is still a Subsidiary of the Borrower; (ii) such
issuance has no reasonable likelihood of having a Material Adverse Effect; and
(iii) at the time of, and immediately after giving effect to such issuance,
there shall exist no condition or event which constitutes an Event of Default.
SECTION 7.10. Transactions with Affiliates, Etc. The Borrower
shall not:
(a) enter into or be a party to, or permit any of its
Subsidiaries to enter into or be a party to, any transaction with any Affiliate
of the Borrower or any such Subsidiary except (i) as otherwise expressly
permitted herein or (ii) in the ordinary course of business, to the extent
consistent with past practices, so long as any such transaction individually and
in the aggregate with other such transactions has no reasonable likelihood of
having a Material Adverse Effect;
(b) enter into, or permit any of its Subsidiaries to enter
into, any contract or other agreement or arrangement for employment of an
executive officer other than in the ordinary course of business, or enter into,
or permit any of its Subsidiaries to enter into, any contract or other
obligation for the payment of management fees by the Borrower or any of its
Subsidiaries, except for the intercompany allocation of general administrative
costs and other expenses consistent with past practices; or
(c) enter into, or permit any of its Subsidiaries to enter
into, any agreement that prohibits, limits or restricts any repayment of loans
or advances or other distributions to the Borrower by any of its respective
Subsidiaries, or that restricts any such Subsidiary's ability to declare or make
any dividend payment or other distribution on account of any shares of any class
of its capital stock or on its ability to acquire or make a payment in respect
thereof.
SECTION 7.11. Accounting Changes. The Borrower shall not make,
or permit any of its Subsidiaries to make, any significant change in accounting
treatment and reporting practices except as required by GAAP, the IRS or the
Securities and Exchange Commission; provided, however, that if any such changes
are so required to be made within a certain period of time only, such changes
may, in the discretion of the Borrower, be made at any time during such period.
SECTION 7.12. Margin Regulations. (a) The Borrower shall not
use the proceeds of any Loan in violation of Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, (other than in connection with the Acquisition) purchase or
otherwise acquire Margin Stock if, after giving effect to any such purchase or
acquisition, Margin Stock owned by the Borrower and its
63
Subsidiaries would represent more than 25% of the assets of the Borrower and its
Subsidiaries on a consolidated basis (valued in accordance with Regulation U).
SECTION 7.13. Compliance with ERISA. The Borrower shall not,
directly or indirectly, permit any member of the Controlled Group of the
Borrower to, directly or indirectly:
(a) terminate any Plan so as to result in any material
liability (in the opinion of the Majority Banks exercised reasonably) to the
Borrower or any member of its Controlled Group;
(b) permit to exist any ERISA Event, or any other event or
condition which presents the risk of a material liability (in the opinion of the
Majority Banks exercised reasonably) of the Borrower or any member of its
Controlled Group;
(c) make a complete or partial withdrawal (within the meaning
of Section 4201 of ERISA) from any Multiemployer Plan so as to result in any
material liability (in the opinion of the Majority Banks exercised reasonably)
to the Borrower or any member of its Controlled Group;
(d) enter into any new Plan or modify any existing Plan so as
to increase its obligations thereunder except in the ordinary course of business
consistent with past practice which has any reasonable likelihood of resulting
in material liability to the Borrower or any member of its Controlled Group; or
(e) permit the present value of all benefit liabilities, as
defined in Title IV of ERISA, under each Plan of the Borrower or any member of
its Controlled Group (using each Plan's actuarial assumptions upon termination
of such Plan) to materially (in the opinion of the Majority Banks exercised
reasonably) exceed the fair market value of Plan assets allocable to such
benefits all determined as of the most recent valuation date for each such Plan.
SECTION 7.14. Speculative Transactions. The Borrower shall not
engage or permit any of its Subsidiaries to engage in any transaction involving
commodity options or futures contracts other than in the ordinary course of
business consistent with past transactions.
SECTION 7.15. Debt Ratio. The Borrower shall not permit at any
time the Debt Ratio to be greater than .65 to 1.
SECTION 7.16. Interest Expense Coverage Ratio. At any time
when the Index Debt (a) is rated BBB or lower or is unrated by S&P and (b) is
rated Baa2 or lower or is unrated by Xxxxx'x, the Company will not permit the
ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense, in each
case for the period of four consecutive fiscal quarters (or shorter period
referred to in the next sentence) for which financial statements have most
recently been delivered under Section 6.09(a) or (b) at such time, to be less
than 3.0 to 1.0. If at any such time less than four full fiscal quarters have
been completed since the Acquisition Date, compliance with this Section 7.16
will be calculated based upon Consolidated EBITDA and Consolidated
64
Interest Expense for the period commencing on the first day of the first quarter
to begin after the Acquisition Date and ending on the last day of the most
recently completed fiscal quarter for which financial statements have most
recently been delivered under Section 6.09(a) or (b).
ARTICLE VIII
Events of Default
SECTION 8.01. Events of Default. The term "Event of Default"
shall mean any of the events set forth in this Section 8.01.
(a) Non-Payment. The Borrower shall (i) fail to pay when and
as required to be paid herein, any amount of principal of any Loan or any amount
of interest on any Bid Loan; or (ii) fail to pay within three Business Days
after the same shall become due and payable, any other interest or any fee or
other amount payable hereunder or under any other Loan Document or any other
Obligation;
(b) Representations and Warranties. Any representation or
warranty made by the Borrower in this Agreement or in any other Loan Document,
or which is contained in any certificate, document or financial or other
statement delivered at any time under or in connection with this Agreement or
any other Loan Document shall prove to have been incorrect or untrue in any
material respect when made or deemed made;
(c) Specific Defaults. The Borrower shall fail to perform or
observe any term, covenant or agreement contained in Article VII or Section
6.02, 6.04 (but only to the extent such failure could have a Material Adverse
Effect), 6.05, 6.06, 6.10(b) or 6.10(e);
(d) Other Defaults. The Borrower shall fail to perform or
observe any other term or covenant contained in this Agreement (including
Section 6.04 to the extent not covered by paragraph (c) above) or any other Loan
Document, and such Default shall continue unremedied for a period of 30 days
after the date upon which written notice thereof shall have been given to the
Borrower by the Administrative Agent;
(e) Default under Other Agreements. Any default shall occur
under the Existing Credit Agreement or under any other Indebtedness of the
Borrower (other than under this Agreement and other than any default under any
agreement to which the Borrower and one or more Banks are party to the extent
such default results from the transfer or pledge of Excess Margin Stock) or any
of its Subsidiaries (other than Tyson de Mexico, S.A. de C.V., a Mexican
Subsidiary of the Borrower) having an aggregate outstanding principal amount of
$10,000,000 or
65
more or under one or more Interest Rate Contracts of the Borrower or any of its
Subsidiaries resulting in aggregate net obligations of $10,000,000 or more and
such default shall:
(i) consist of the failure to pay any Indebtedness when due
(whether at scheduled maturity, by required prepayment, acceleration,
demand or otherwise) after giving effect to any applicable grace or
notice period; or
(ii) result in, or continue unremedied for a period of time
sufficient to permit, the acceleration of such Indebtedness or the
early termination of such Interest Rate Contract;
(f) Bankruptcy or Insolvency. The Borrower or any of its
Subsidiaries shall:
(i) cease to be Solvent or generally fail to pay, or admit in
writing its inability to pay, its debts as they become due;
(ii) commence an Insolvency Proceeding;
(iii) voluntarily cease to conduct its business in the
ordinary course; or
(iv) take any action to effectuate or authorize any of the
foregoing;
(g) Involuntary Proceedings.
(i) An involuntary Insolvency Proceeding shall be commenced
against the Borrower or any of its Subsidiaries or any writ, judgment,
warrant of attachment, execution or similar process shall be issued or
levied against a substantial part of the Borrower's, or any of its
Subsidiaries' properties, and any such proceeding or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution
or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy;
(ii) the Borrower or any of its Subsidiaries shall admit in
writing the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under
non-United States law) against the Borrower or such Subsidiary is
ordered in any Insolvency Proceeding; or
(iii) the Borrower or any of its Subsidiaries shall acquiesce
in the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor) or other
similar Person for itself or a substantial portion of its property or
business;
(h) Monetary Judgments. One or more judgments, orders or
decrees for the payment of money exceeding in the aggregate $10,000,000 (not
fully covered by insurance) shall
66
be rendered against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been initiated by any creditor upon such
judgment or order or (ii) such judgment or order shall continue unsatisfied,
unvacated or unstayed for a period of 20 days;
(i) Non-Monetary Judgments. Any non-monetary judgment, order
or decree shall be rendered against the Borrower or any of its Subsidiaries
which does or has a reasonable likelihood of having a Material Adverse Effect
and either (A) enforcement proceedings shall have been initiated by any Person
upon such judgment or order or (B) there shall be any period of ten consecutive
days during which a stay of enforcement of such judgment, order or decree, by
reason of a pending appeal or otherwise, shall not be in effect;
(j) ERISA. With respect to any Plan:
(i) the Borrower, any member of its Controlled Group or any
other party-in-interest or disqualified Person shall engage in
transactions which in the aggregate have a reasonable likelihood of
resulting in a direct or indirect liability to the Borrower or any
member of its Controlled Group in excess of $10,000,000 under Section
409 or 502 of ERISA or Section 4975 of the Code;
(ii) the Borrower or any member of its Controlled Group shall
incur any accumulated funding deficiency, as defined in Section 412 of
the Code, in the aggregate in excess of $10,000,000, or request a
funding waiver from the IRS for contributions in the aggregate in
excess of $10,000,000;
(iii) the Borrower or any member of its Controlled Group shall
incur any withdrawal liability in the aggregate in excess of
$10,000,000 as a result of a complete or partial withdrawal from a
Multiemployer Plan within the meaning of Section 4203 or 4205 of ERISA;
(iv) the Borrower or any member of its Controlled Group shall
fail to make a required contribution by the due date (including any
permissible extensions) under Section 412 of the Code or Section 302 of
ERISA which would result in the imposition of a Lien under Section 412
of the Code or Section 302 of ERISA;
(v) the Borrower, any member of its Controlled Group or any
Plan sponsor shall notify the PBGC of an intent to terminate in a
distressed termination, or the PBGC shall institute proceedings to
terminate, a Plan;
(vi) a Reportable Event shall occur with respect to a Plan,
and within 15 days after the reporting of such Reportable Event to the
Majority Banks, the Majority Banks shall have notified the Borrower in
writing that (A) they have made a determination that, on the basis of
such Reportable Event, there are reasonable grounds for the termination
of such Plan by the PBGC or for the appointment by the appropriate
United States District Court
67
of a trustee to administer such Plan and (B) as a result thereof a
Default or an Event of Default shall occur hereunder;
(vii) a trustee shall be appointed by a court of competent
jurisdiction to administer any Plan or the assets thereof;
(viii) the benefits of any Plan shall be increased (other than
in the ordinary course of business consistent with past practice), or
the Borrower or any member of its Controlled Group shall begin to
maintain, or begin to contribute to, any Plan, without the prior
written consent of the Majority Banks;
(ix) any ERISA Event with respect to a Plan shall have
occurred, and 30 days thereafter (A) such ERISA Event shall not have
been corrected and (B) the then present value of such Plan's benefit
liabilities, as defined in Title IV of ERISA, shall exceed the then
current value of assets accumulated in such Plan; or
provided, however, that the events listed in clauses (v)-(ix) of this paragraph
(j) shall constitute Events of Default only if, as of the date thereof or any
subsequent date, the maximum amount of liability the Borrower or any member of
its Controlled Group could incur in the aggregate under Section 4062, 4063,
4064, 4219 or 4243 of ERISA or any other provision of law with respect to all
such Plans, computed by the actuary of the Plan taking into account any
applicable rules and regulations of the PBGC at such time, and based on the
actuarial assumptions used by the Plan, resulting from or otherwise associated
with such event exceeds $10,000,000; or
(k) Change in Control. Mr. Xxx Xxxxx, the Xxxxx Limited
Partnership and "members of the same family" of Mr. Xxx Xxxxx as defined in
Section 447(e) of the Code shall cease to have at least 51% of the total
combined voting power of the outstanding Stock of the Borrower; or
(l) at any time after the delivery of the Guarantee Agreement
and prior to the completion of the Merger, the Guarantee Agreement shall not for
any reason be, or shall be asserted by the Borrower or IBP not to be, in full
force and effect and enforceable against IBP in all material respects in
accordance with its terms.
SECTION 8.02. Remedies. If any Event of Default shall have
occurred and be continuing, the Administrative Agent shall at the request of, or
may with the consent of, the Majority Banks:
(a) declare the Commitment of each Bank to be terminated,
whereupon such Commitment shall forthwith be terminated; and/or
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon and all other Obligations payable
hereunder or under any other Loan
68
Document to be immediately due and payable, whereupon the Loans, all such
interest and all such Obligations shall become and be forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
provided, however, that upon the occurrence of any event specified in Section
8.01(f) or (g) with respect to the Borrower, the Commitment of each Bank to make
Loans shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest accrued thereon and all other Obligations
shall automatically become due and payable without further action of the
Administrative Agent or any Bank. If any Event of Default shall occur and be
continuing under Section 8.01(a) due to the Borrower's failure to pay any amount
of principal on or interest of any Bid Loan, the Bank having made such Bid Loan
may send a written request to the Administrative Agent to obtain approval of the
Majority Banks to terminate the Commitments and, if such approval is not
obtained within ten Business Days after the date such request is received, the
affected Bank (or assignee) may commence enforcement of such default by any and
all legal means.
SECTION 8.03. Rights Not Exclusive. The rights provided for in
this Agreement and the other Loan Documents are cumulative and are not exclusive
of any other rights, powers, privileges or remedies provided by law or in
equity, or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE IX
The Administrative Agent
SECTION 9.01. Appointment. Each Bank hereby irrevocably
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement or any other Loan Document
and to exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities except those
expressly set forth herein or any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
SECTION 9.02. Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement and any other Loan Document
by or through employees, agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
69
SECTION 9.03. Liabilities of Agents. (a) Neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document (except for its own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by the Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value of any collateral or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of the Borrower to
perform its obligations hereunder or thereunder. The Administrative Agent shall
not be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower or any of its Subsidiaries.
(b) Each party to this Agreement acknowledges that neither the
Syndication Agent nor the Documentation Agent shall have any separate duties,
responsibilities, obligations or authority under this Agreement or any other
Loan Document in such capacity.
SECTION 9.04. Reliance by Administrative Agent. (a) The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, facsimile or telex message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon any advice and statements
of legal counsel (including counsel to the Borrower), independent accountants
and other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Majority Banks as it deems appropriate or it shall first
be indemnified to its satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request from or the consent of the
Majority Banks and such request or consent and any action taken or failure to
act pursuant thereto shall be binding upon all the Banks and all future holders
of the Loans or any portion thereof.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Bank shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Banks unless an officer of the Administrative Agent
responsible for the transactions contemplated by the Loan Documents shall have
received notice from such Bank prior to the Effective Date specifying its
objection thereto and either such
70
objection shall not have been withdrawn by notice to the Administrative Agent to
that effect or such Bank shall not have made available to the Administrative
Agent such Bank's Percentage Share of such Borrowing.
SECTION 9.05. Notice of Default. The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default, except with respect to payment defaults, unless the
Administrative Agent shall have received notice from a Bank or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Banks. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be requested by
the Majority Banks in accordance with Article VIII; provided however, that
unless and until the Administrative Agent shall have received any such request
from the Majority Banks, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Banks.
SECTION 9.06. Credit Decision. Each Bank expressly
acknowledges that neither the Administrative Agent nor any of its Affiliates nor
any officer, director, employee, agent, attorney-in-fact of any of them has made
any representation or warranty to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Borrower and its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Bank. Each Bank represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, properties, operations or condition, financial or
otherwise, and creditworthiness of the Borrower and made its own decision to
enter into this Agreement and extend credit to the Borrower hereunder. Each Bank
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, properties, operations or condition,
financial or otherwise, and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Administrative Agent hereunder, the Administrative Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, properties, operations or
condition, financial or otherwise, and creditworthiness of the Borrower which
may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION 9.07. Indemnification. The Banks agree to indemnify
the Administrative Agent (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), ratably
according to their respective Percentage
71
Shares, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including at any time after the repayment
of the Loans and all other Obligations) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any other Loan Document or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided however, that no Bank shall be
liable for the payment to the Administrative Agent of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank agrees to reimburse the Administrative Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including fees and
expenses of counsel and the allocated cost of in-house counsel) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiation, legal proceedings or otherwise) of, or legal advice in respect of
its or the Banks' rights or responsibilities under, this Agreement, any other
Loan Document or any document contemplated by or referred to herein or therein
to the extent that the Administrative Agent is not reimbursed for such expenses
by or on behalf of the Borrower.
SECTION 9.08. Administrative Agent in Individual Capacity. The
Chase Manhattan Bank and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower and its
Subsidiaries as though The Chase Manhattan Bank were not the Administrative
Agent hereunder. With respect to its Loans, The Chase Manhattan Bank shall have
the same rights and powers under this Agreement as any Bank and may exercise the
same as though it were not the Administrative Agent, and the terms "Bank" and
"Banks" shall include The Chase Manhattan Bank in its individual capacity.
SECTION 9.09. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Banks and the Borrower. Upon any such resignation, the Majority Banks shall
have the right to appoint a successor Administrative Agent which shall be a
commercial bank organized or chartered under the laws of the United States of
America or of any State thereof and having combined capital and surplus of at
least $500,000,000. If no successor Administrative Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the notice of resignation of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Banks, with
the consent of the Borrower, which shall not be unreasonably withheld, appoint a
successor Administrative Agent which shall be a commercial bank organized or
chartered under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its
72
duties and obligations under this Agreement and the other Loan Documents. After
any retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Article IX and Sections 10.04 and 10.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices, Etc. All notices, requests and other
communications provided to any party under this Agreement shall, unless
otherwise expressly specified herein, be in writing (including by telex or by
facsimile) and mailed by overnight delivery, telexed, transmitted by facsimile
or delivered: if to the Borrower, to its address specified on the signature
pages hereof; if to any Bank, to its Domestic Lending Office; and if to the
Administrative Agent, to its address specified on the signature pages hereof;
or, as to the Borrower or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties and,
as to each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Administrative Agent. All such
notices and communications shall be effective, if telexed, when confirmed by
telex answerback, if transmitted by facsimile, when transmitted by facsimile and
confirmed by telephone or facsimile, or, if mailed by overnight delivery or
delivered, upon delivery, except that notices and communications to the
Administrative Agent pursuant to Article II or IX shall not be effective until
received by the Administrative Agent.
SECTION 10.02. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or of any other Loan Document, and no consent to any
departure by the Borrower herefrom or therefrom, shall in any event be effective
unless the same shall be in writing, acknowledged by the Administrative Agent
and signed or consented to by the Majority Banks, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Banks, do any of the following:
(a) increase the Commitments of the Banks (other than by
assignment) or subject the Banks to any additional monetary obligation;
(b) reduce the principal of, or interest (other than any
default interest payable pursuant to Section 2.10) on, the Committed Loans or
any fees payable hereunder;
(c) extend the Termination Date or the Maturity Date or any
date fixed for any payment of interest on, the Committed Loans or any fees
payable hereunder;
73
(d) change the percentage of the Commitments or the percentage
of the aggregate unpaid principal amount of the Loans which shall be required
for the Banks or any of them to take any action hereunder; or
(e) amend this Section 10.02.
SECTION 10.03. No Waiver; Remedies. No failure on the part of
any Bank or the Administrative Agent to exercise, and no delay in exercising,
any right, remedy, power or privilege hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, remedy, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 10.04. Costs and Expenses. The Borrower agrees to pay
on demand:
(a) all costs and expenses incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement or any other Loan Document or any
other document to be delivered hereunder or thereunder or in connection with the
transactions contemplated hereby or thereby, or with respect to advising the
Administrative Agent as to its rights and responsibilities under the Loan
Documents, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent (including the allocated cost of in-house counsel);
(b) all costs and expenses incurred by the Administrative
Agent or any Bank in connection with the enforcement or preservation of any
rights under this Agreement or any other Loan Document or in connection with any
restructuring or "work-out" (whether through negotiations, legal proceedings or
otherwise), including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent or such Bank (including the allocated cost of
in-house counsel); and
(c) all costs and expenses of the Administrative Agent
incurred in connection with due diligence, transportation, use of computers,
duplication, appraisals, surveys, audits, insurance, consultants and search
reports and all filing and recording fees and title insurance premiums.
SECTION 10.05. Indemnity. (a) The Borrower agrees to
indemnify, defend, reimburse and hold harmless the Administrative Agent, the
Syndication Agent, the Documentation Agent, each Bank and each of their
Affiliates, and each of their respective directors, officers, employees, agents
and advisors (each, an "Indemnified Party") from and against all claims,
actions, proceedings, suits, damages, losses, liabilities, costs and expenses,
including the reasonable fees, charges and disbursements of counsel (including
the allocated cost of in-house counsel) which may be incurred by or asserted
against any Indemnified Party in connection with, or arising out of, or relating
to (i) any transaction or proposed transaction (whether or not consummated)
financed or to be financed, in whole or in part, directly or indirectly, with
the
74
proceeds of any Borrowing or otherwise contemplated in this Agreement; (ii) the
entering into and performance of this Agreement and any other Loan Document by
the Administrative Agent, the Syndication Agent, the Documentation Agent or any
Bank or any action or omission of the Borrower in connection therewith; or (iii)
any investigation, litigation, suit, action or proceeding (regardless of whether
an Indemnified Party is a party thereto) which relates to any of the foregoing
or to any Environmental Claim, unless and to the extent such claim, action,
proceeding, suit, damage, loss, liability, cost or expense was solely
attributable to such Indemnified Party's gross negligence or willful misconduct
as determined by a final judgment of a court of competent jurisdiction.
(b) The Administrative Agent, the Syndication Agent, the
Documentation Agent and each Bank agree that in the event that any
investigation, litigation, suit, action or proceeding is asserted or threatened
in writing or instituted against it or any other Indemnified Party, or any
remedial, removal or response action is requested of it or any other Indemnified
Party, for which the Administrative Agent, the Syndication Agent, the
Documentation Agent or any Bank may desire indemnity or defense hereunder, the
Administrative Agent, the Syndication Agent, the Documentation Agent or such
Bank shall promptly notify the Borrower in writing.
(c) The Borrower at the request of the Administrative Agent,
the Syndication Agent, the Documentation Agent or any Bank shall have the
obligation to defend against such investigation, litigation, suit, action or
proceeding or requested remedial, removal or response action, and the
Administrative Agent, the Syndication Agent and the Documentation Agent, in any
event, may participate in the defense thereof with legal counsel of the
Administrative Agent's choice. In the event that the Administrative Agent, the
Syndication Agent, the Documentation or any Bank requests the Borrower to defend
against such investigation, litigation, suit, action or proceeding or requested
remedial, removal or response action, the Borrower shall promptly do so and the
Administrative Agent, the Syndication Agent, the Documentation Agent or the
affected Bank shall have the right to have legal counsel of its choice
participate in such defense. No action taken by legal counsel chosen by the
Administrative Agent or any Bank in defending against any such investigation,
litigation, suit, action or proceeding or requested remedial, removal or
response action shall vitiate or any way impair the Borrower's obligations and
duties hereunder to indemnify and hold harmless any Indemnified Party.
SECTION 10.06. Right of Set-off. Upon the occurrence and
during the continuation of any Event of Default, each Bank is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrower against any and
all of the Obligations, whether or not such Bank shall have made any demand
under this Agreement. Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Bank under this Section 10.06 are in addition to
any other rights and remedies (including other rights of set-off) which such
Bank may have.
75
SECTION 10.07. Binding Effect. The provisions of this
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Bank and their respective successors and assigns,
except that the Borrower shall not have the right to assign or transfer its
rights or obligations hereunder or any interest herein without the prior written
consent of all the Banks.
SECTION 10.08. Assignments, Participations Etc. (a) (i) Each
Bank may, with the prior written approval of the Borrower and the Administrative
Agent, assign to one or more assignees, which approvals will not be unreasonably
withheld, and (ii) each Bank may, without the consent of the Borrower or the
Administrative Agent, assign to any of its Affiliates or to any other Bank,
other than a Bank replaced pursuant to Section 3.14(b), (each such Person, an
"Assignee"), all or any fraction of its Committed Loans, if any, owed to it and
its Commitment in a minimum amount of $10,000,000; provided, however, that the
Borrower shall not, as a result of an assignment by any Bank to any of its
wholly-owned Subsidiaries incur any increased liability for Taxes and Other
Taxes pursuant to Section 3.05.
(b) No assignment shall become effective, and the Borrower and
the Administrative Agent shall be entitled to continue to deal solely and
directly with each Bank in connection with the interests so assigned by such
Bank to an Assignee, until (i) written notice of such assignment, together with
an agreement to be bound, payment instructions, addresses and related
information with respect to such Assignee, shall have been given to the Borrower
and the Administrative Agent by such Bank and such Assignee, in substantially
the form of Exhibit 10.08 (a "Notice of Assignment"), and such Bank and such
Assignee shall have executed in connection therewith an Assignment and
Assumption Agreement in substantially the form of Attachment A to such Notice of
Assignment, (ii) a processing fee in the amount of $1,000 shall have been paid
to the Administrative Agent by the assignor Bank or the Assignee, and (iii)
either (A) five Business Days shall have elapsed after receipt by the
Administrative Agent of the items referred to in clauses (i) and (ii) or (B) if
earlier, the Administrative Agent shall have notified the assignor Bank and the
Assignee of its receipt of the items mentioned in clauses (i) and (ii) and that
it has acknowledged the assignment by countersigning the Notice of Assignment.
(c) From and after the effective date of any assignment, (i)
the Assignee thereunder shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to such Assignee by the assignor Bank, shall have the rights and
obligations of a Bank hereunder and under each other Loan Document, and (ii) the
assignor Bank, to the extent that rights and obligations hereunder have been
assigned by it to the Assignee, shall be released from its obligations hereunder
and under the each other Loan Document.
(d) Any Bank may at any time sell to one or more banks or
other Persons (each of such Persons being herein called a "Participant")
participating interests in any of the Loans, its Commitment or any other
interest of such Bank hereunder; provided, however, that
76
(i) no participation contemplated in this Section 10.08(d)
shall relieve such Bank from its Commitment or its other obligations
hereunder or under any other Loan Document;
(ii) such Bank shall remain solely responsible for the
performance of its Commitment and such other obligations;
(iii) the Borrower and the Administrative Agent shall continue
to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement; and
(iv) no Participant, unless such Participant is itself a Bank,
shall be entitled to require such Bank to take or refrain from taking
any action hereunder or under any other Loan Document, except that such
Bank may agree with any Participant that such Bank will not, without
such Participant's consent, approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document, to
the extent such amendment, consent or waiver would require unanimous
consent of the Banks as described in the proviso to Section 10.02.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 3.05(other than 3.05(f)), 3.06, 3.08, 3.10, 3.11 or 10.06 shall be
considered a Bank; provided, however, that (a) for purposes of Sections 3.05,
3.08, 3.10 and 3.11, no Participant shall be entitled to receive any payment or
compensation in excess of that to which such Participant's selling Bank would be
entitled with respect to the amount of such Participant's participation
interests if such Bank had not sold such participation interests and (b) a
Participant that is a foreign Person shall not be considered a Bank for purposes
of Section 3.05 unless the Borrower is notified in writing of the participation
sold to such Participant and such Participant agrees in writing for the benefit
of the Borrower, to comply with Section 3.05(f) as though it were a Bank.
(e) Notwithstanding any other provision of this Agreement,
nothing contained in this Agreement shall prevent any Bank from pledging or
assigning its interest in the Loans to a Federal Reserve Bank in the Federal
Reserve System of the United States of America in accordance with applicable
law; provided, however, that no such pledge or assignment shall release any Bank
from its obligations hereunder.
SECTION 10.09. Confidentiality. Each Bank agrees to take
normal and reasonable precautions and exercise due care to maintain the
confidentiality of all non-public information provided to it by the Borrower or
by the Administrative Agent on the Borrower's behalf in connection with this
Agreement or any other Loan Document and agrees and undertakes that neither it
nor any of its Affiliates shall use any such information for any purpose or in
any manner other than pursuant to the terms contemplated by this Agreement. Any
Bank may
77
disclose such information (a) at the request of any bank regulatory authority or
in connection with an examination of such Bank by any such authority; (b)
pursuant to subpoena or other court process; (c) when required to do so in
accordance with the provisions of any applicable law; (d) at the express
direction of any agency of any State of the United States of America or of any
other jurisdiction in which such Bank conducts its business; and (e) to such
Bank's affiliates, independent auditors, counsel and other professional
advisors. Notwithstanding the foregoing, the Borrower authorizes each Bank to
disclose to any Participant or Assignee and any prospective Participant and
Assignee such financial and other information in such Bank's possession
concerning the Borrower or its Subsidiaries which has been delivered to the
Banks pursuant to this Agreement or any other Loan Document or which has been
delivered to the Banks by the Borrower in connection with the Banks' credit
evaluation of the Borrower prior to entering into this Agreement; provided,
however, that such Participant or Assignee or prospective Participant or
Assignee agrees in writing to such Bank to keep such information confidential to
the same extent required of the Banks hereunder.
SECTION 10.10. Survival. The obligations of the Borrower under
Sections 3.05, 3.08, 3.10, 3.11, 3.12, 10.04 and 10.05, and the obligations of
the Banks under Sections 3.05(h) and 9.07, shall in each case survive repayment
or purchase of the Loans or any termination of this Agreement and the
Commitments. The representations and warranties made by the Borrower in this
Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each other Loan Document.
SECTION 10.11. Headings. The various headings of this
Agreement are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provisions hereof or thereof.
SECTION 10.12. Governing Law and Jurisdiction. (a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK; and
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO.
78
SECTION 10.13. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 10.14. Entire Agreement. THIS AGREEMENT EMBODIES THE
ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE BORROWER, THE BANKS AND THE
ADMINISTRATIVE AGENT, AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS OF
SUCH PERSONS RELATING TO THE SUBJECT MATTER HEREOF EXCEPT FOR THE FEE LETTER AND
ANY PRIOR ARRANGEMENTS MADE WITH RESPECT TO THE PAYMENT BY THE BORROWER OF (OR
ANY INDEMNIFICATION FOR) ANY FEES, COSTS OR EXPENSES PAYABLE TO OR INCURRED (OR
TO BE INCURRED) BY OR ON BEHALF OF THE ADMINISTRATIVE AGENT OR THE BANKS.
SECTION 10.15. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT,
THE BANKS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE BANKS OR
THE BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE
AGENT AND THE BANKS TO ENTER INTO THIS AGREEMENT.
79
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
TYSON FOODS, INC.,
by
--------------------------------
Name:
Title:
Address for notices:
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention:
Facsimile No.:
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by
--------------------------------
Name:
Title:
Address for notices:
Loan and Agency Services Group
Xxx Xxxxx Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx XX 00000
Attention: Xxxxx Xxxx
Xxxxxxxxx No.: (000) 000-0000
Address for payments:
ABA # 000000000
Attention: Xxxxx Xxxx
Chase Plaza, 8th Floor
New York, NY 10081
Credit to Account number:
323219551
Reference: Tyson Foods, Inc.
80
With a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx XX 00000
Attention of.:
Facsimile No.:
XXXXXXX XXXXX CAPITAL CORPORATION.,
individually and as Syndication Agent,
by
--------------------------------
Name:
Title:
XXXXXXX XXXXX BANK USA,
individually as a Bank,
by
--------------------------------
Name:
Title:
SUNTRUST BANK, individually and as
Documentation Agent,
by
--------------------------------
Name:
Title:
