ISSUING AND PAYING AGENCY AGREEMENT
This Agreement, dated as of January 12, 2001, is by and between Tyson
Foods, Inc. (the "Issuer") and The Chase Manhattan Bank ("Chase").
1. APPOINTMENT AND ACCEPTANCE
The Issuer hereby appoints Chase as its issuing and paying agent in
connection with the issuance and payment of certain short-term promissory
notes of the Issuer (the "Notes"), as further described herein, and Chase
agrees to act as such agent upon the terms and conditions contained in this
Agreement.
2. COMMERCIAL PAPER PROGRAMS
The Issuer may establish one or more commercial paper programs under
this Agreement by delivering to Chase a completed program schedule (the
"Program Schedule"), with respect to each such program. Chase has given
the Issuer a copy of the current form of Program Schedule and the Issuer
shall complete and return its first Program Schedule to Chase prior to or
simultaneously with the execution of this Agreement. In the event that any
of the information provided in, or attached to, a Program Schedule shall
change, the Issuer shall promptly inform Chase of such change in writing.
3. NOTES
All Notes issued by the Issuer under this Agreement shall be short-
term promissory notes, exempt from the registration requirements of the
Securities Act of 1933, as amended, as indicated on the Program Schedules,
and from applicable state securities laws. The Notes may be placed by
dealers (the "Dealers") pursuant to Section 4 hereof. Notes shall be
issued in either certificated or book-entry form.
4. AUTHORIZED REPRESENTATIVES
The Issuer shall deliver to Chase a duly adopted corporate resolution
from the Issuer's Board of Directors (or other governing body) authorizing
the issuance of Notes under each program established pursuant to this
Agreement and a certificate of incumbency, with specimen signatures
attached, of those officers, employees and agents of the Issuer authorized
to take certain actions with respect to the Notes as provided in this
Agreement (each such person is hereinafter referred to as an "Authorized
Representative"). Until Chase receives any subsequent incumbency
certificates of the Issuer, Chase shall be entitled to rely on the last
incumbency certificate delivered to it for the purpose of determining the
Authorized Representatives. The Issuer represents and warrants that each
Authorized Representative may appoint other officers, employees and agents
of the Issuer (the "Delegates"), including without limitation any Dealers,
to issue instructions to Chase under this Agreement, and take other actions
on the Issuer's behalf hereunder, provided that notice of the appointment
of each Delegate is delivered to Chase in writing. Each such appointment
shall remain in effect unless and until revoked by the Issuer in a written
notice to Chase.
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5. CERTIFICATED NOTES
If and when the Issuer intends to issue certificated notes
("Certificated Notes"), the Issuer and Chase shall agree upon the form of
such Notes. Thereafter, the Issuer shall from time to time deliver to
Chase adequate supplies of Certificated Notes which will be in bearer form,
serially numbered, and shall be executed by the manual or facsimile
signature of an Authorized Representative. Chase will acknowledge receipt
of any supply of Certificated Notes received from the Issuer, noting any
exceptions to the shipping manifest or transmittal letter (if any), and
will hold the Certificated Notes in safekeeping for the Issuer in
accordance with Chase's customary practices. Chase shall not have any
liability to the Issuer to determine by whom or by what means a facsimile
signature may have been affixed on Certificated Notes, or to determine
whether any facsimile or manual signature is genuine, if such facsimile or
manual signature resembles the specimen signature attached to the Issuer's
certificate of incumbency with respect to such Authorized Representative.
Any Certificated Note bearing the manual or facsimile signature of a person
who is an Authorized Representative on the date such signature was affixed
shall bind the Issuer after completion thereof by Chase, notwithstanding
that such person shall have ceased to hold his or her office on the date
such Note is countersigned or delivered by Chase.
6. BOOK-ENTRY NOTES
The Issuer's book-entry notes ("Book-Entry Notes") shall not be issued
in physical form, but their aggregate face amount shall be represented by a
master note (the "Master Note") in the form of Exhibit A executed by the
Issuer pursuant to the book-entry commercial paper program of The
Depository Trust Company ("DTC"). Chase shall maintain the Master Note in
safekeeping, in accordance with its customary practices, on behalf of Cede
& Co., the registered owner thereof and nominee of DTC. As long as Cede &
Co. is the registered owner of the Master Note, the beneficial ownership
interest therein shall be shown on, and the transfer of ownership thereof
shall be effected through, entries on the books maintained by DTC and the
books of its direct and indirect participants. The Master Note and the
Book-Entry Notes shall be subject to DTC's rules and procedures, as amended
from time to time. Chase shall not be liable or responsible for sending
transaction statements of any kind to DTC's participants or the beneficial
owners of the Book-Entry Notes, or for maintaining, supervising or
reviewing the records of DTC or its participants with respect to such
Notes. In connection with DTC's program, the Issuer understands that as
one of the conditions of its participation therein, it shall be necessary
for the Issuer and Chase to enter into a Letter of Representations, in the
form of Exhibit B hereto, and for DTC to receive and accept such Letter of
Representations. In accordance with DTC's program, Chase shall obtain from
the CUSIP Service Bureau a written list of CUSIP numbers for Issuer's Book-
Entry Notes, and Chase shall deliver such list to DTC. The CUSIP Service
Bureau shall xxxx the Issuer directly for the fee or fees payable for the
list of CUSIP numbers for the Issuer's Book-Entry Notes.
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7. ISSUANCE INSTRUCTIONS TO CHASE; PURCHASE PAYMENTS
The Issuer understands that all instructions under this Agreement are
to be directed to Chase's Commercial Paper Operations Department. Chase
shall provide the Issuer, or, if applicable, the Issuer's Dealers, with
access to Chase's Money Market Issuance System or other electronic means
(collectively, the "System") in order that Chase may receive electronic
instructions for the issuance of Notes. Electronic instructions must be
transmitted in accordance with the procedures furnished by Chase to the
Issuer or its Dealers in connection with the System. These transmissions
shall be the equivalent to the giving of a duly authorized written and
signed instruction which Chase may act upon without liability. In the
event that the System is inoperable at any time, an Authorized
Representative or a Delegate may deliver written, telephone or facsimile
instructions to Chase, which instructions shall be verified in accordance
with any security procedures agreed upon by the parties. Chase shall incur
no liability to the Issuer in acting upon instructions believed by Chase in
good faith to have been given by an Authorized Representative or a
Delegate. In the event that a discrepancy exists between a telephonic
instruction and a written confirmation, the telephonic instruction will be
deemed the controlling and proper instruction. Chase may electronically
record any conversations made pursuant to this Agreement, and the Issuer
hereby consents to such recordings. All issuance instructions regarding
the Notes must be received by 1:00 P.M. New York time in order for the
Notes to be issued or delivered on the same day.
(a) Issuance and Purchase of Book-Entry Notes. Upon
receipt of issuance instructions from the Issuer or its Dealers
with respect to Book-Entry Notes, Chase shall transmit such
instructions to DTC and direct DTC to cause appropriate entries
of the Book-Entry Notes to be made in accordance with DTC's
applicable rules, regulations and procedures for book-entry
commercial paper programs. Chase shall assign CUSIP numbers to
the Issuer's Book-Entry Notes to identify the Issuer's aggregate
principal amount of outstanding Book-Entry Notes in DTC's system,
together with the aggregate unpaid interest (if any) on such
Notes. Promptly following DTC's established settlement time on
each issuance date, Chase shall access DTC's system to verify
whether settlement has occurred with respect to the Issuer's Book-
Entry Notes. Prior to the close of business on such business
day, Chase shall deposit immediately available funds in the
amount of the proceeds due the Issuer (if any) to the Issuer's
account at Chase and designated in the applicable Program
Schedule (the "Account"), provided that Chase has received DTC's
confirmation that the Book-Entry Notes have settled in accordance
with DTC's applicable rules, regulations and procedures. Chase
shall have no liability to the Issuer whatsoever if any DTC
participant purchasing a Book-Entry Note fails to settle or
delays in settling its balance with DTC or if DTC fails to
perform in any respect.
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(b) Issuance and Purchase of Certificated Notes. Upon receipt of
issuance instructions with respect to Certificated Notes, Chase
shall: (a) complete each Certificated Note as to principal
amount, date of issue, maturity date, place of payment, and rate
or amount of interest (if such Note is interest bearing) in
accordance with such instructions; (b) countersign each
Certificated Note; and (c) deliver each Certificated Note in
accordance with the Issuer's instructions, except as otherwise
set forth below. Whenever Chase is instructed to deliver any
Certificated Note by mail, Chase shall strike from the
Certificated Note the word "Bearer," insert as payee the name of
the person so designated by the Issuer and effect delivery by
mail to such payee or to such other person as is specified in
such instructions to receive the Certificated Note. The Issuer
understands that, in accordance with the custom prevailing in the
commercial paper market, delivery of Certificated Notes shall be
made before the actual receipt of payment for such Notes in
immediately available funds, even if the Issuer instructs Chase
to deliver a Certificated Note against payment. Therefore, once
Chase has delivered a Certificated Note to the designated
recipient, the Issuer shall bear the risk that such recipient may
fail to remit payment of such Note or return such Note to Chase.
Delivery of Certificated Notes shall be subject to the rules of
the New York Clearing House in effect at the time of such
delivery. Funds received in payment of Certificated Notes shall
be credited to the Account.
8. USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT
Chase shall not be obligated to credit the Issuer's Account unless and
until payment of the purchase price of each Note is received by Chase.
From time to time, Chase, in its sole discretion, may permit the Issuer to
have use of funds payable with respect to a Note prior to Chase's receipt
of the sales proceeds of such Note. If Chase makes a deposit, payment or
transfer of funds on behalf of the Issuer before Chase receives payment for
any Note, such deposit, payment or transfer of funds shall represent an
advance by Chase to the Issuer to be repaid promptly, and in any event on
the same day as it is made, from the proceeds of the sale of such Note, or
by the Issuer if such proceeds are not received by Chase.
9. PAYMENT OF MATURED NOTES
On any day when a Note matures or is prepaid, the Issuer shall
transmit, or cause to be transmitted, to the Account, prior to 2:30 P.M.
New York time on the same day, an amount of immediately available funds
sufficient to pay the aggregate principal amount of such Note and any
applicable interest due. Chase shall pay the interest (if any) and
principal on a Book-Entry Note to DTC in immediately available funds, which
payment shall be by net settlement of Chase's account at DTC. Chase shall
pay Certificated Notes upon presentment. Chase shall have no obligation
under the Agreement to make any payment for which there is not sufficient,
available and collected funds in the Account, and Chase may, without
liability to the Issuer, refuse to pay any Note that would result in an
overdraft to the Account.
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10. OVERDRAFTS
(a) Intraday overdrafts with respect to each Account shall be
subject to Chase's policies as in effect from time to time.
(b) An overdraft will exist in an Account if Chase, in its sole
discretion, (i) permits an advance to be made pursuant to Section
8 and, notwithstanding the provisions of Section 8, such advance
is not repaid in full on the same day as it is made, or (ii) pays
a Note pursuant to Section 9 in excess of the available collected
balance in such Account. Overdrafts shall be subject to Chase's
established banking practices, including, without limitation, the
imposition of interest, funds usage charges and administrative
fees. The Issuer shall repay any such overdraft, fees and
charges no later than the next business day, together with
interest on the overdraft at the rate established by Chase for
the Account, computed from and including the date of the
overdraft to the date of repayment.
11. NO PRIOR COURSE OF DEALING
No prior action or course of dealing on the part of Chase with respect
to advances of the purchase price or payments of matured Notes shall give
rise to any claim or cause of action by the Issuer against Chase in the
event that Chase refuses to pay or settle any Notes for which the Issuer
has not timely provided funds as required by this Agreement.
12. RETURN OF CERTIFICATED NOTES
Chase will in due course cancel any Certificated Note presented for
payment and return such Note to the Issuer. Chase shall also cancel and
return to the Issuer any spoiled or voided Certificated Notes. Promptly
upon written request of the Issuer or at the termination of this Agreement,
Chase shall destroy all blank, unissued Certificated Notes in its
possession and furnish a certificate to the Issuer certifying such actions.
13. INFORMATION FURNISHED BY CHASE
Upon the reasonable request of the Issuer, Chase shall promptly
provide the Issuer with information with respect to any Note issued and
paid hereunder, provided, that the Issuer delivers such request in writing
and, to the extent applicable, includes the serial number or note number,
principal amount, payee, date of issue, maturity date, amount of interest
(if any) and place of payment of such Note.
14. REPRESENTATIONS AND WARRANTIES
The Issuer represents and warrants that: (i) it has the right,
capacity and authority to enter into this Agreement; and (ii) it will
comply with all of its obligations and duties under this Agreement. The
Issuer further represents and agrees that each Note issued and distributed
upon its instruction pursuant to this Agreement shall constitute the
Issuer's representation and warranty to Chase that such Note is a legal,
valid and binding obligation of the Issuer, and that such Note is being
issued in a transaction which is exempt from registration under the
Securities Act of 1933, as amended, and any applicable state securities
law.
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15. DISCLAIMERS
Neither Chase nor its directors, officers, employees or agents shall
be liable for any act or omission under this Agreement except in the case
of gross negligence or willful misconduct. IN NO EVENT SHALL CHASE BE
LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND
WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF CHASE HAS
BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE
FORM OF ACTION. In no event shall Chase be considered negligent in
consequence of complying with DTC's rules, regulations and procedures. The
duties and obligations of Chase, its directors, officers, employees or
agents shall be determined by the express provisions of this Agreement and
they shall not be liable except for the performance of such duties and
obligations as are specifically set forth herein and no implied covenants
shall be read into this Agreement against them. Neither Chase nor its
directors, officers, employees or agents shall be required to ascertain
whether any issuance or sale of any Notes (or any amendment or termination
of this Agreement) has been duly authorized or is in compliance with any
other agreement to which the Issuer is a party (whether or not Chase is
also a party to such agreement).
16. INDEMNIFICATION
The Issuer agrees to indemnify and hold harmless Chase, its directors,
officers, employees and agents from and against any and all liabilities,
claims, losses, damages, penalties, costs and expenses (including
reasonable attorneys' fees and disbursements) suffered or incurred by or
asserted or assessed against Chase or any of them arising out of Chase or
any of them acting as the Issuer's agent under this Agreement, except for
such liability, claim, loss, damage, penalty, cost or expense resulting
from the negligence or willful misconduct of Chase, its directors,
officers, employees or agents. This indemnity will survive the termination
of this Agreement.
17. OPINION OF COUNSEL
The Issuer shall deliver to Chase all documents it may reasonably
request relating to the existence of the Issuer and authority of the Issuer
for this Agreement, including, without limitation, an opinion of counsel
satisfactory to Chase.
18. NOTICES
All notices, confirmations and other communications hereunder shall
(except to the extent otherwise expressly provided) be in writing and shall
be sent by first-class mail, postage prepaid, by telecopier or by hand,
addressed as follows, or to such other address as the party receiving such
notice shall have previously specified to the party sending such notice:
If to the Issuer: Tyson Foods, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Chase concerning the daily issuance and redemption of Notes:
Attention: Commercial Paper Operations
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All other: Attention: Commercial Paper Service Delivery Unit
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19. COMPENSATION
The Issuer shall pay compensation for services pursuant to this
Agreement in accordance with the pricing schedules furnished by Chase to
the Issuer from time to time and upon such payment terms as the parties
shall determine. The Issuer shall also reimburse Chase for any fees and
charges imposed by DTC with respect to services provided in connection with
the Book-Entry Notes.
20. BENEFIT OF AGREEMENT
This Agreement is solely for the benefit of the parties hereto and no
other person shall acquire or have any right under or by virtue hereof.
21. TERMINATION
This Agreement may be terminated at any time by either party by
written notice to the other, but such termination shall not affect the
respective liabilities of the parties hereunder arising prior to such
termination.
22. FORCE MAJEURE
In no event shall Chase be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond
Chase's control, including, but not limited to, acts of God, flood, war
(whether declared or undeclared), terrorism, fire, riot, strikes or work
stoppages for any reason, embargo, government action, including any laws,
ordinances, regulations or the like which restrict or prohibit the
providing of the services contemplated by this Agreement, inability to
obtain material, equipment, or communications or computer facilities, or
the failure of equipment or interruption of communications or computer
facilities, and other causes beyond Chase's control whether or not of the
same class or kind as specifically named above.
23. ENTIRE AGREEMENT
This Agreement, together with the exhibits attached hereto,
constitutes the entire agreement between Chase and the Issuer with respect
to the subject matter hereof and supersedes in all respects all prior
proposals, negotiations, communications, discussions and agreements between
the parties concerning the subject matter of this Agreement.
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24. WAIVERS AND AMENDMENTS
No failure or delay on the part of any party in exercising any power
or right under this Agreement shall operate as a waiver, nor does any
single or partial exercise of any power or right preclude any other or
further exercise, or the exercise of any other power or right. Any such
waiver shall be effective only in the specific instance and for the purpose
for which it is given. No amendment, modification or waiver of any
provision of this Agreement shall be effective unless the same shall be in
writing and signed by the Issuer and Chase.
25. BUSINESS DAY
Whenever any payment to be made hereunder shall be due on a day which
is not a business day for Chase, then such payment shall be made on Chase's
next succeeding business day.
26. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and such counterparts together shall constitute but one
instrument.
27. HEADINGS
The headings in this Agreement are for purposes of reference only and
shall not in any way limit or otherwise affect the meaning or
interpretation of any of the terms of this Agreement.
28. GOVERNING LAW
This Agreement and the Notes shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard
to the conflict of laws provisions thereof.
29. JURISDICTION AND VENUE
Each party hereby irrevocably and unconditionally submits to the
jurisdiction of the United States District Court for the Southern District
of New York and any New York State court located in the Borough of
Manhattan in New York City and of any appellate court from any thereof for
the purposes of any legal suit, action or proceeding arising out of or
relating to this Agreement (a "Proceeding"). Each party hereby irrevocably
agrees that all claims in respect of any Proceeding may be heard and
determined in such Federal or New York State court and irrevocably waives,
to the fullest extent it may effectively do so, any objection it may now or
hereafter have to the laying of venue of any Proceeding in any of the
aforementioned courts and the defense of an inconvenient forum to the
maintenance of any Proceeding.
30. WAIVER OF TRIAL BY JURY
EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
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31. ACCOUNT CONDITIONS
Each Account shall be subject to Chase's account conditions, as in
effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on their behalf by duly authorized officers as of the day and
year first-above written.
THE CHASE MANHATTAN BANK TYSON FOODS, INC.
By: By:
Name: Name:
Title: Title:
Date: January 12, 2001 Date: January 12, 2001
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