Exhibit (b)(3)
================================================================================
CREDIT AGREEMENT
dated as of August 3, 2001
among
TYSON FOODS, INC.,
as Borrower
THE LENDERS PARTY HERETO
THE CHASE MANHATTAN BANK,
as Administrative Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as Syndication Agent
and
SUNTRUST BANK,
as Documentation Agent
_______________________________
SUNTRUST CAPITAL MARKETS, INC.,
as Arranger
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
as Co-Lead Arrangers and Joint Bookrunners
================================================================================
[6701-196]
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 Lenders 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
SECTION 3.10. Capital Adequacy............................................. 35
2
SECTION 3.11. Funding Losses............................................... 35
SECTION 3.12. Additional Interest on Eurodollar Loans...................... 36
SECTION 3.13. Certificates of Lenders...................................... 36
SECTION 3.14. Change of Lending Office; Replacement Lender................. 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
SECTION 6.04. Insurance.................................................... 50
SECTION 6.05. Preservation of Corporate Existence, Etc..................... 50
3
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. Sale-Leaseback Transactions.................................. 59
SECTION 7.04. Restricted Payments.......................................... 60
SECTION 7.05. Mergers, 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. Leverage 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
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
5
Schedules
Schedule 1.01(a) Commitments; Percentage Shares
Schedule 1.01(b) Indentures
Schedule 1.01(c) Lending Offices
Schedule 4.02(b) Pending Approvals
Schedule 4.05(a) Financial Matters of Borrower
Schedule 4.05(b) Financial Matters of IBP
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 5.01(j) Outstanding IBP Indebtedness
Schedule 7.01/7.02 Existing Liens and Existing Indebtedness
CREDIT AGREEMENT dated as of August 3, 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 "Lenders"), THE CHASE MANHATTAN
BANK, as Administrative Agent (the "Administrative Agent"), ▇▇▇▇▇▇▇ ▇▇▇▇▇
CAPITAL CORPORATION, as Syndication Agent (the "Syndication Agent"), and
SUNTRUST BANK, as Documentation Agent (the "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 $4,441,000,000, subject to
adjustment based on the market price of the Borrower's common stock, of which
approximately $1,576,100,000 will be the portion of the purchase price paid in
cash (the balance of the purchase price to be paid with shares of the Borrower's
Class A common stock) and approximately $1,080,000,000 will be the cash amount
required to refinance the IBP Credit Agreement.
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.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders, together with any successor thereto in
such capacity.
2
"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 Lenders as in effect from time to time.
"Assignee" has the meaning specified in Section 10.08(a).
"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
Lenders.
"Bid Loan" means a Loan made by a Lender 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.
"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 Lender, as the context may require (a)
the amount in dollars set forth in Schedule 1.01(a) opposite the name of such
Lender under the heading
3
"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 Lender to
extend credit to the Borrower hereunder in the amount specified in the
immediately preceding clause (a). The initial aggregate amount of the Lenders'
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 Lenders 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 Lender 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 Lender 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; provided that for the purposes of determining the ratios set forth in
Sections 7.15 and 7.16, Consolidated EBITDA in respect of any period of time
prior to the date that IBP becomes a Subsidiary of the Borrower shall be deemed
to equal the combined historical Consolidated EBITDA of the Borrower and IBP for
such period.
"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; provided that for
the purposes of determining the ratios set forth in Sections 7.15 and 7.16,
Consolidated Interest Expense at any date (the "Calculation Date") shall be
calculated on an annualized basis, and shall be equal to (A) the amount of
interest expense (including imputed interest expense in respect of capital lease
obligations) of the Borrower and its consolidated Subsidiaries for the period
from the date that IBP becomes a Subsidiary of the Borrower to the Calculation
Date, multiplied by (B) a fraction, the numerator of which is equal to 365 and
the denominator of which is equal to the number of days in such period.
"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
4
accounting period) determined in conformity with GAAP, excluding (to the extent
otherwise included therein) any gains or losses, together with any related
provision for taxes, realized upon any sale of assets other than in the ordinary
course of business; provided, however, that there shall be excluded therefrom
the net income (or loss) of any Person accrued prior to the 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.
"Consolidated Net Income Available for Restricted Payments" means an
amount equal to (i) the sum of $100,000,000 plus 80% (or minus 100% in case of
consolidated net loss) of Consolidated Net Income for the period (taken as one
accounting period) commencing January 1, 2001 and terminating on the fiscal
quarter of the Borrower immediately preceding the date of any proposed
Restricted Payment, less (ii) the sum of (A) the aggregate amount of all
dividends (other than dividends payable solely in Stock of the Borrower) and
other distributions paid or declared by the Borrower (for all periods on or
after January 1, 2001) or IBP (for the period from January 1, 2001 through the
Effective Date) on any class of its Stock and (B) the excess (if any) of the
aggregate amount expended, directly or indirectly, by the Borrower (for all
periods on or after January 1, 2001) or by IBP (for the period from January 1,
2001 through the Effective Date) for the redemption, purchase or other
acquisition of any shares of its Stock, over the aggregate net amount of any
cash or cash equivalents received by the Borrower on and after said date as
consideration for the sale of any shares of its Stock.
"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 ▇▇▇▇▇'▇ or S&P, as the case may be.
"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 Section 5.01 are satisfied (or waived in accordance with Section
10.02).
5
"Environmental Claim" means any claim, however asserted, by any
Governmental Authority or other Person alleging potential liability for
violation of any Environmental Law or for release or injury to the environment
or threat to public health, personal injury (including sickness, disease or
death), property damage, natural resources damage, or otherwise alleging
liability for damages, punitive damages, cleanup costs, removal costs, remedial
costs, response costs, restitution, civil or criminal penalties, injunctive
relief, or other type of relief, resulting from or based upon (a) the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spill, leaks, discharges, emissions or releases) of
any Hazardous Material at, in or from property, whether or not owned by the
Borrower or any of its Subsidiaries, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Law" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S) 9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. (S) 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. (S) 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. (S) 1251 et seq.), the Clean Air Act (42 U.S.C.
(S) 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S) 2601 et seq.)
and the Occupational Safety and Health Act (29 U.S.C. (S) 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.
6
"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 Lender, the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for such Lender 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 accounting principles generally accepted in the United
States of America as 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
7
may be in general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any central bank (or similar monetary or
regulatory authority) thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"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 dated as of December 20, 2000, among IBP, the banks party thereto,
Bank of America, N.A., as Syndication Agent, and U.S. Bank National Association,
as Administrative Agent, as amended.
"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.
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 plus all
obligations of the Borrower and its consolidated Subsidiaries under the
Receivables Facility.
"Indemnified Party" has the meaning specified in Section 10.05(a).
"Indentures" means the indentures, including supplements and/or board
resolutions establishing series of debt thereunder, and note agreements of the
Borrower and IBP and their Subsidiaries listed on Schedule 1.01(b).
"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 Lender 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 (or 14 days thereafter with the consent
of each Lender), 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:
9
(i) in the case of the continuation of a Eurodollar Loan pursuant to
Section 2.11(b), the Interest Period applicable after the continuation of
such Loan shall commence on the last day of the preceding Interest Period;
(ii) if any Interest Period applicable to a Eurodollar Loan would
otherwise end on a day which is not a Business Day, that Interest Period
shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately
preceding Business Day;
(iii) any Interest Period applicable to a Eurodollar Loan that begins
on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(iv) no Interest Period for any Loan shall extend beyond the 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.
"Lender" has the meaning specified in the preamble and includes each
Lender listed on the signature pages hereof and each Person which becomes a
Lender pursuant to Section 10.08.
"Lender Affiliate" means, (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender and (b) with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Lending Office" means, with respect to any Lender, (a) in the case of
a Committed Loan, the office or offices of such Lender specified as its
"Domestic Lending Office" or "Eurodollar Lending Office", as the case may be,
opposite its name in Schedule 1.01(c) or in the applicable Notice of Assignment
or such other office or offices of such Lender as such Lender 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 Lender notified by such Lender to the
Borrower as its Lending Office with respect to such Bid Loan or, if such Lender
fails to so notify the Borrower, such Lender's Domestic Lending Office listed in
Schedule 1.01(c).
10
"Leverage Ratio" means, at any date of determination, the ratio of (a)
Indebtedness for Borrowed Money at such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters for which financial statements have
most recently been delivered under Section 6.09(a) or (b).
"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 Lender 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 Lenders" means at any time (i) Lenders holding at least 51%
of the Commitments or (ii) after the Commitments expire or terminate or the
Loans become due and payable pursuant to Article VIII or for purposes of
declaring the Loans to be due and payable pursuant to Article VIII, Lenders
holding at least 51% of the outstanding Loans, including outstanding Bid Loans.
"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 the Borrower or the Borrower and its Subsidiaries taken as a whole; (b) any
material adverse change in the rights or remedies of the Lenders 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 January 30, 2002.
"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., as modified by the
Stipulation and Order dated June 27, 2001, with no changes therefrom adverse to
the Lenders.
"Merger Co." means Lasso Acquisition Corporation, a Delaware
corporation and a wholly-owned Subsidiary of the Borrower.
"Moody's" means ▇▇▇▇▇'▇ 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,
(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 commissions, charges or fees incurred
in connection with such disposition or sale or issuance;
12
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.
"New 364-Day Credit Agreement" means the definitive credit
documentation entered into by the Borrower, the lenders party thereto, The Chase
Manhattan Bank, as administrative agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as
syndication agent, and SunTrust Bank, as documentation agent, with respect to
the $500,000,000 364-day credit facility contemplated by the term sheet attached
to the commitment letter dated July 27, 2001, among the Borrower and the other
parties thereto.
"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
Lender, 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).
13
"Participant" has the meaning specified in Section 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage Share" means, as to any Lender, at any time, such Lender's
percentage share of the Aggregate Commitments, as set forth opposite such
Lender'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 Lender 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 Lender, 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 term securities are rated
at least A-1 by S&P and P-1 by Moody's;
(c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by
Moody's 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, Indebtedness of IBP owed to the Borrower and
Indebtedness (in an amount not to exceed the amount of the guarantee of the
Obligations under the Guarantee Agreement) of IBP), (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.
"Receivables Bridge Facility" means a senior unsecured bridge credit
facility of the Borrower in an aggregate principal amount of $350,000,000.
"Receivables Facility" means an accounts receivable securitization
established by the Borrower in an aggregate principal amount of up to
$750,000,000.
"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 Lender" has the meaning specified in Section 3.14(b).
15
"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.
"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.
"Restricted Payment" means any dividend (other than dividends payable
solely in Stock of the Borrower and dividends paid by any wholly-owned
Subsidiary of the Borrower to the Borrower or any other wholly-owned Subsidiary
of the Borrower) or any other distribution with respect to any Stock of the
Borrower or any of its Subsidiaries, whether now or hereafter outstanding, or
any payment on account of the purchase, acquisition, redemption or other
retirement, directly or indirectly, of any shares of such Stock (other than the
purchase of Stock in the ordinary course in connection with employee benefit
plans of the Borrower or its Subsidiaries, including employee stock purchase
plans and stock option plans).
"Senior Notes" means senior unsecured notes of the Borrower intended
to be issued in an aggregate principal amount of up to $2,500,000,000.
"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
16
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.
"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. ▇▇▇ ▇▇▇▇▇ 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. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. 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
17
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 Lender 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 Maturity Date, in an aggregate principal amount not to exceed at any time
outstanding such Lender's Commitment; provided, however, that after giving
effect to any Borrowing of Committed Loans, (a) the aggregate principal amount
of all outstanding Committed Loans plus (b) the aggregate principal amount of
all outstanding Bid Loans shall not exceed the Aggregate Commitments. Within the
limits of each Lender's Commitment, the Borrower may on and prior to the
Maturity Date borrow under this Section 2.01, prepay pursuant to Section 2.07
and reborrow pursuant to this Section 2.01.
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
18
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 Lender thereof and of the amount of such Lender's
Percentage Share of such Borrowing.
(c) Each Lender 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. Unless any applicable condition specified
in Article V has not been satisfied, the Administrative Agent will make the
funds so received from the Lenders 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 Lenders and
in like funds as received by the Administrative Agent.
(d) After giving effect to any Committed Borrowing, there shall not
be more than twelve 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 Lender 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 Maturity Date, request the Lenders to
submit offers to make Bid Loans to the Borrower; provided, however, that the
Lenders 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 Lenders 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 Lender 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;
19
(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 180 days
and which shall not extend beyond the Maturity Date; and
(v) any other terms to be applicable to such Bid Loans.
(b) (i) Each Lender may, in response to a Competitive Bid Request,
in its discretion, irrevocably submit to the Borrower a Competitive Bid
containing an offer or offers to make one or more Bid Loans. Each Competitive
Bid must be submitted to the Borrower by facsimile before 10:00 a.m. (New York
City time) (i) two Business Days prior to the proposed date of Borrowing, in the
case of a request for LIBOR Bid Loans and (ii) on the proposed date of
Borrowing, in the case of a request for Absolute Rate Bid Loans.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit 2.04(b), specifying:
(A) the minimum amount of each Bid Loan for which such Competitive
Bid is being made, which shall be $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, and the maximum amount thereof, which may not
exceed the principal amount of Bid Loans for which Competitive Bids were
requested (but which may exceed such Lender'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
Lender.
A Competitive Bid may contain up to twelve separate offers by the quoting Lender
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;
20
(C) proposes terms other than or in addition to those set forth in
the applicable Competitive Bid Request; or
(D) arrives after the time set forth in clause (i) above.
(c) Not later than 11:00 a.m. (New York City time) (i) two Business
Days prior to the proposed date of Borrowing, in the case of LIBOR Bid Loans and
(ii) on the date of such Bid Borrowing, in the case of Absolute Rate Loans, the
Borrower shall either
(i) cancel such Borrowing by giving the Administrative Agent and the
Lenders notice thereof (which notice may be given by telephone, confirmed
by facsimile); or
(ii) accept one or more of the offers made by any Lender or Lenders
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 Lender or Lenders 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 Lender for such Bid
Loan pursuant to paragraph (b) above) to be made by each such Lender as
part of such Bid Borrowing, and reject any remaining offers made by the
Lenders 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 Lenders 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 Lenders 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 Lender or Lenders pursuant to paragraph (c)(ii) above,
each such Lender 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 Lender's Lending
Office such Lender's portion of such Bid Borrowing in same day funds.
21
(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 Lenders in
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
Lender 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 Lender or Lenders thereof.
SECTION 2.05. Evidence of Indebtedness. (a) Each Lender, 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 Lender 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 Lender 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
Lender's books, such Lender's books shall be considered correct in the absence
of manifest error.
(b) Notwithstanding the foregoing, if any Lender 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 Lender 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 Maturity
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
22
Commitments or permanently reduce the Aggregate Commitments by an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof;
provided, however, that no such termination or reduction shall be permitted if,
after giving effect thereto and to any prepayment of Loans made on the effective
date thereof, the then outstanding principal amount of Committed Loans and Bid
Loans would exceed the Aggregate Commitments then in effect and, provided,
further, that once reduced in accordance with this Section 2.06, the Aggregate
Commitments may not be increased. Any reduction of the Aggregate Commitments
shall be applied to each Lender's Commitment in accordance with such Lender's
Percentage Share.
(c) The Aggregate Commitments shall be reduced by (i) the Net
Proceeds of the Senior Notes upon the receipt thereof by the Borrower, (ii) a
pro rata portion (based on the aggregate commitments and outstanding loans under
the Receivables Bridge Facility and the Aggregate Commitments and Loans
hereunder) of the Net Proceeds of the sale by the Borrower of any debt or equity
securities, other than the Senior Notes, upon the receipt thereof by the
Borrower, (iii) the amount of the aggregate commitments in excess of
$500,000,000 available to the Borrower under the Receivables Facility and (iv) a
pro rata portion (based on the aggregate commitments and outstanding loans under
the Receivables Bridge Facility and the Aggregate Commitments and Loans
hereunder) of the amount of any increase in the commitments available to the
Borrower (which available commitments as of the date of this Agreement are
$1,000,000,000) as a result of any modification, supplement or replacement of
the Existing Credit Agreement, and if in any such case 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 Lenders 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 Lenders ratably in accordance with each Lender'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
Lenders 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 Lenders, 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
23
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 (other than
in the case of a prepayment of a Reference Rate Loan prior to the earlier of the
Maturity Date and the date of termination of the Commitments hereunder) 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.
(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 Maturity 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 plus a margin equal to (i) on or prior to
the 120th day after the Effective Date, 0.100% and (ii) following the 120th
day after the Effective Date, 0.350%.; and
(ii) if such Committed Loan is a Eurodollar Loan, at a rate per annum
equal to the sum of LIBOR plus a margin equal to (i) on or prior to the
120th day after the Effective Date, 1.100% and (ii) following the 120th day
after the Effective Date, 1.350%.
(b) Accrued and unpaid interest in respect of each Committed Loan
shall be paid on each Interest Payment Date, on the earlier of the Maturity Date
and the date of termination of the Commitments hereunder, on the date of any
prepayment or repayment (other than a prepayment or repayment of Reference Rate
Loans) of Committed Loans.
(c) The Borrower shall pay to each Lender 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 and on the earlier of the
Maturity Date and the date of termination of the Commitments hereunder, 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 Lender 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 the rate per annum
then in effect with respect to Reference Rate Loans pursuant to Section 2.09
plus 2%; and, provided, further, that if so requested by the Borrower, the
Majority Lenders 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 Lender thereof or, if no timely
notice is provided, the Administrative Agent shall promptly notify each Lender
of the details of any automatic conversion. All conversions and continuations
shall be made pro rata among the Lenders based on the respective outstanding
principal amounts of the Loans with respect to which such notice was given held
by each Lender.
(e) After giving effect to any conversion or continuation of any
Committed Loans, there shall not be more than twelve 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) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee equal to
0.150% times such Lender's Commitment (regardless of utilization) or, after the
Maturity Date, times the aggregate daily outstanding amount of such Lender's
Loans. The facility fee shall accrue from the date of this Agreement 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 September 30, 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
account of each Lender a utilization fee equal to 0.250% times the aggregate
amount of such Lender's Loans for any day on which the aggregate outstanding
principal amount of Loans shall be greater than
26
25% of the aggregate Commitments. The utilization fees, if any, in respect of
any calendar quarter shall be due and payable quarterly in arrears on the last
Business Day of such calendar quarter and on the Maturity Date, provided that if
any Loans shall be outstanding after the Maturity Date, then the utilization 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 utilization fee shall be payable on demand.
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 Lenders 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 Lenders 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 Lender to the
Lending Office of such Lender. The Administrative Agent will promptly after
receiving any payment of principal, interest, fees and other amounts from the
Borrower distribute to each Lender 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 (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 Lenders
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
27
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent the Borrower
shall not have so made such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent, on demand, the excess of the
amount distributed to such Lender over the amount, if any, paid by the Borrower,
together with interest thereon at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, for each day from the date such amount is
distributed to such Lender to the date such Lender repays such amount to the
Administrative Agent.
SECTION 3.04. Payments by the Lenders to the Administrative Agent.
(a) Unless the Administrative Agent shall have received notice from a Lender 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 Lender will not make available to the Administrative Agent for the
account of the Borrower the amount of such Lender's Percentage Share of such
Borrowing, the Administrative Agent may assume that such Lender 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 Lender 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 Lender shall,
within two Business Days following the date of such Borrowing, make such amount
available to the Administrative Agent, together with interest at the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation 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
Lender'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 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 Lender 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 Lender to make any Committed Loan on the date
of any Committed Borrowing shall not relieve any other Lender of its obligation
hereunder to make a Loan on the date of such Borrowing pursuant to the
provisions contained herein, but no Lender shall be responsible for the failure
of any other Lender to make the Loan to be made by such other Lender on the date
of any Committed Borrowing.
28
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 Lender 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 Lender
and the Administrative Agent, such taxes (including income taxes, franchise
taxes or branch profit taxes) as are imposed on or measured by such Lender's or
the Administrative Agent's, as the case may be, net income by the jurisdiction
under the laws of which such Lender 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 Lender 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 Lender 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 Lender or the Administrative Agent, as the case may be,
makes written demand therefor.
(d) If the Borrower shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender 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 Lender 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
29
copy of a receipt evidencing such payment, or other evidence of such payment
satisfactory to the Administrative Agent.
(f) Each Lender 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
Lender which becomes a party hereto pursuant to Section 10.08 after the
Effective Date, the date upon which such Lender 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 Lender 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 Lender 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 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 Lender 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 Lender 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
30
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 Lender;
(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 Lender's tax status for withholding purposes;
(v) if such Lender claims exemption from withholding tax under a
United States tax treaty by providing a Form 1001 and such Lender 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 Lender's
Form 1001 as no longer in compliance with this Section 3.05(f). In the
event a Lender 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 Lender 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 Lender (but only to the extent such claim arises because the
appropriate form was not delivered, was not properly executed, because such
Lender failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from withholding tax ineffective
or because of such Lender's sale of a participating interest in a Loan),
such Lender shall indemnify the 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 Lender's right to increased amounts under
Section 3.05(d) from the Borrower subject to satisfaction of such Lender's
obligations under the provisions of this Section 3.05(f), if such Lender is
entitled to a reduction in the applicable withholding tax, the Administrative
Agent may withhold from any interest payment to such Lender 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 Lender 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
31
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 Lender that is a foreign Person for the account of any Lending Office of
such Lender:
(i) if the obligation to pay such additional amounts would not have
arisen but for a failure by such Lender to comply with its obligations
under Section 3.05(f) in respect of such Lending Office;
(ii) if such Lender 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 Lender
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 Lender 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 Lender
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 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 Lender 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
Lender 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
Lender 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
32
Agent under this Section 3.05(h)) which are imposed on or with respect to
principal, interest or fees payable to such Lender 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 Lender 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 Lenders and, after acceleration, in
excess of its pro rata share of all Obligations, such Lender shall forthwith (a)
notify the Administrative Agent of such fact and (b) purchase from the other
Lenders 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 Lender to share the excess payment ratably with each of the
other Lenders 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 Lender, such purchase shall to the
extent of such recovery be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price thereto together with an amount equal to
such paying Lender's ratable share (according to the proportion of (i) the
amount of such paying Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to the provisions of this Section 3.06 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such participation as fully as if such Lender 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 Lenders 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 Lenders shall notify the Administrative Agent, that LIBOR for such
Interest Period will not adequately and fairly reflect the cost to Lenders 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 Lenders, whereupon the obligations of the Lenders 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
Lenders revokes such notice. Upon receipt of such notice, the Borrower may
revoke its Notice of Borrowing or Notice of Conversion/Continuation then
33
submitted by it. If the Borrower does not revoke such notice, the Lenders 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 Lender 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 Lender 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
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional amounts
sufficient to compensate such Lender for such increased costs.
SECTION 3.09. Illegality. (a) If any Lender 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 Lender 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 Lender to
the Borrower through the Administrative Agent, the obligation of such Lender to
make or to continue to fund Loans as Eurodollar Loans or to convert any Loans
into Eurodollar Loans shall be suspended until such Lender shall have notified
the Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist.
(b) If a Lender shall determine that it is unlawful to maintain any
Eurodollar Loan made by such Lender, the Borrower shall prepay in full all
Eurodollar Loans of such Lender 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 Lender 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 Lender 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 Lender then outstanding
into Reference Rate Loans.
(c) Notwithstanding the foregoing, if the obligation of any Lender to
make or maintain Eurodollar Loans has been suspended, the Borrower may elect by
giving notice to such Lender through the Administrative Agent that all Loans
which would otherwise be made or maintained by such Lender as Eurodollar Loans
shall be instead Reference Rate Loans.
SECTION 3.10. Capital Adequacy. If any Lender 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 Lender (or its Lending Office)
34
or any corporation controlling such Lender 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 Lender or any
corporation controlling such Lender and such Lender (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines that the amount of such
capital is increased as a consequence of such Lender's Commitment, loans or
obligations under this Agreement with respect to any Committed Borrowing then
from time to time, upon demand of such Lender (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 Lender, as specified by such
Lender, additional amounts sufficient to compensate such Lender for such
increase.
SECTION 3.11. Funding Losses. The Borrower agrees to reimburse each
Lender and to hold each Lender harmless from any loss, cost or expense which
such Lender may sustain or incur as a consequence of:
(a) any failure of the Borrower to borrow, continue or convert a
Eurodollar Loan after the Borrower has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;
(b) any prepayment or payment of a Eurodollar Loan on a day which is
not the last day of the Interest Period with respect thereto;
(c) any failure of the Borrower to make any prepayment after the
Borrower has given a notice in accordance with Section 2.07; or
(d) the conversion of any Eurodollar Loan to a Reference Rate Loan on
a day that is not the last day of the respective Interest Period pursuant to
Section 2.11;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained.
SECTION 3.12. Additional Interest on Eurodollar Loans. The Borrower
shall pay to each Lender, at the request of such Lender (but not more frequently
than once in each calendar quarter), as long as such Lender 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 Lender 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 Lender 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
35
obligated to pay to any Lender any additional interest in respect of Eurodollar
Loans made by such Lender for any period commencing more than three months prior
to the date on which such Lender notifies the Borrower by delivering a
certificate from a financial officer of such Lender, that such Lender is
required to maintain reserves with respect to Eurocurrency Liabilities.
SECTION 3.13. Certificates of Lenders. Any Lender 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 Lender 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 Lender claiming
compensation or reimbursement from the Borrower pursuant to Section 3.08, 3.10,
3.11 or 3.12, the amount requested by such Lender no later than five Business
Days after such demand.
SECTION 3.14. Change of Lending Office; Replacement Lender. (a) Each
Lender 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 Lender,
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 Lender, be otherwise disadvantageous to such Lender. Nothing in this
Section 3.14 shall affect or postpone any of the obligations of the Borrower or
the right of any Lender provided in Section 3.05(c) or (d) or Section 3.08 or
3.09.
(b) In the event the Borrower becomes obligated to pay additional
amounts to any Lender pursuant to Sections 3.05(c) or (d) or 3.08, or if it
becomes illegal for any Lender 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 Lender 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 Lender which is reasonably acceptable to the Administrative
Agent and the Majority Lenders (such Lender being herein called a "Replacement
Lender") to purchase the Committed Loans of such Lender and such Lender's rights
hereunder, without recourse to or warranty by, or expense to, such Lender for a
purchase price equal to the outstanding principal amount of the Committed Loans
payable to such Lender plus any accrued but unpaid interest on such Loans and
accrued but unpaid fees in respect of such Lender's Commitment and any other
amounts payable to such Lender under this Agreement, and to assume all the
obligations of such Lender hereunder (except for such rights as survive
repayment of the Loans), and, upon such purchase, such Lender shall no longer be
a party hereto or have any rights hereunder (except those related to any Bid
Loans of such Lender which remain outstanding and those that survive full
payment hereunder) and shall be relieved from all obligations to the Borrower
hereunder, and the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder.
36
ARTICLE IV
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and
each Lender 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;
(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 except, in the case solely
of the Acquisition and the Merger, for such actions described on Schedule
4.02(b);
(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);
37
(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 (in the case of any Contractual
Obligation other than any Indenture) 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.
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 as of the last day of the fiscal
quarters of the Borrower ended on December 31, 2000 and March 31, 2001, and the
related consolidated statements of income, shareholders' equity and cash flows
of the Borrower and its Subsidiaries for such fiscal year and quarters, with, in
the case of said fiscal year, reports thereon by Ernst & Young LLP:
38
(i) are complete, accurate and fairly present the financial condition
of the Borrower and its Subsidiaries as of the respective dates thereof and
for the respective periods covered thereby;
(ii) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as set forth in the notes
thereto; and
(iii) other than as disclosed in Schedule 4.05(a), show all material
indebtedness and other liabilities, direct or contingent, of the Borrower
and its consolidated Subsidiaries as of the dates thereof, including
liabilities for taxes, material commitments and long-term leases.
(b) The consolidated balance sheet of IBP and its Subsidiaries as of
the last day of the fiscal year of IBP ended on December 30, 2000, and as of the
last day of the fiscal quarter of IBP ended on March 31, 2001, 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) 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;
(ii) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as set forth in the notes
thereto; and
(iii) other than as disclosed in Schedule 4.05(b), 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 Lenders 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 30, 2000, 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.
39
(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 Effective 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 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
40
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
Lenders 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 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;
41
(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 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 Lenders 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.
42
(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 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.
43
(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.
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.
SECTION 4.18. IBP Subsidiaries. Other than IBP Finance Company of
Canada, no Subsidiary of IBP on the date of this Agreement is an obligor or
guarantor in respect of any material Indebtedness for borrowed money.
ARTICLE V
Conditions Precedent
SECTION 5.01. Conditions Precedent to Effectiveness. The obligation
of each Lender 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 Lenders and of any promissory notes
requested by the Lenders 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.
44
(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 (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 Lenders 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 Lender 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;
(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
Lender may request.
45
(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.
(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 Lenders of counsel to IBP, to
substantially the effect set forth on Exhibit 5.01 and as to such other matters
as any Lender through the Administrative Agent may reasonably request, (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, and the authorization of the Transactions to which IBP is party and (C) the
supporting certificate referenced to in paragraph (e) above.
(i) Tender Offer. The Tender Offer shall have been completed or will
be completed substantially simultaneously (except for the making of payment by
the Borrower in connection with its purchase of the IBP Stock pursuant to the
terms of the Tender Offer) and shall be in accordance with applicable law and
the terms of the Merger Agreement and the other documentation related to the
Acquisition approved by the Lenders 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. The Administrative Agent shall be satisfied that
the Borrower and IBP have made adequate arrangements to ensure that (and the
Borrower hereby covenants that prior to the close of business on the date of the
first Borrowing hereunder) all credit exposures outstanding under the IBP Credit
Agreement shall have been substantially 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 (i) commitments and Indebtedness under or permitted by
this Agreement and the Existing Credit Agreement, (ii) Indebtedness under the
Borrower's commercial paper program, (iii) Indebtedness under the Receivables
Facility or the Receivables Bridge Facility, and (iv) the Indebtedness of IBP
listed on Schedule 5.01(j) hereto the terms of which, as amended or waived in a
manner satisfactory in all respects to the Lenders, are not violated by the
Transactions and do not, directly or indirectly, prohibit IBP from guaranteeing
Indebtedness of the Borrower or paying dividends to the Borrower; provided,
however, that in connection with the Merger, certain actions will be taken and
consents or waivers obtained prior to the closing of the Merger in respect of
certain Indebtedness of IBP and its Subsidiaries, which Indebtedness shall not
be excess of $30,000,000 and shall not in any case adversely affect the ability
of the Borrower or IBP to complete the Merger.
46
(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 business, assets, liabilities or condition
(financial or otherwise) of the Borrower and its Subsidiaries, including IBP and
its Subsidiaries, taken as a whole.
(l) Amendments to Existing Indebtedness. Any amendment, waiver or
other modification of the Existing Credit Agreement or any other agreement or
instrument governing Indebtedness of the Borrower or IBP or any of their
respective Subsidiaries 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 Lenders; provided, however, that in
connection with the Merger, certain actions will be taken and consents or
waivers obtained prior to the closing of the Merger in respect of certain
Indebtedness of IBP and its Subsidiaries, which Indebtedness shall not be excess
of $30,000,000 and shall not in any case adversely affect the ability of the
Borrower or IBP to complete the Merger.
(m) New Credit Facility. The Borrower shall have entered into a
commitment letter for a new credit facility to amend, supplement or replace the
credit facility under the Existing Credit Agreement on terms satisfactory to the
Administrative Agent and the Syndication Agent.
(n) Receivables Facility. The Receivables Facility or the
Receivables Bridge Facility shall have become effective and the terms thereof
shall be satisfactory to the Lenders.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders 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 August 31, 2001 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 5.02. Conditions Precedent to All Borrowings. The obligation
of each Lender 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.
47
(b) Continuation of Representations and Warranties. The
representations and warranties contained in Article IV and in each other Loan
Document shall be true and correct on and as of the date of borrowing with the
same effect as if made on and as of such date (except for representations and
warranties expressly relating to an earlier date, in which case they shall be
true and correct as of such earlier date).
(c) No Existing Default. No Default or Event of Default shall exist
and be continuing or shall result from the Loan being made on such date.
(d) Other Assurances. The Administrative Agent shall have received
such other approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request related to the Transactions.
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 Lender shall
have any Commitment hereunder or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Lenders 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 (i) to finance the
Acquisition and to refinance the IBP Credit Agreement and other Indebtedness of
IBP and (ii) upon completion of the purchase of the Stock in the Acquisition and
the refinancings referred to in clause (i), 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); provided, however, in each case such use of proceeds shall
not be in contravention of any Requirement of Law and shall be consistent with
the representations and warranties contained herein; provided, further, that the
proceeds of any Loans 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.
48
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.
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
Lender 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 Lender 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;
49
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.
SECTION 6.09. Financial Statements. The Borrower shall furnish to
each Lender with a copy to the Administrative Agent, in form and details
satisfactory to the Lenders 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)
commencing with the financial statements for December 31, 2001, a compliance
certificate, in substantially the form of Exhibit 6.09, setting forth in
reasonable detail the computations necessary to determine whether the Borrower
was in compliance with the financial covenants set forth in Section 7.15 and
7.16, in each case reconciling any differences between the numbers used in such
calculations and those used in the preparation of such financial statements.
50
SECTION 6.10. Reporting Requirements. The Borrower shall furnish to
the Administrative Agent (and the Administrative Agent shall (other than in the
case of clause (d) below) promptly furnish to the Lenders):
(a) promptly after the commencement thereof, notice of all actions,
suits and proceedings before any court or other Governmental Authority affecting
the Borrower or any of its Subsidiaries which, individually or in the aggregate,
has any reasonable likelihood of having a Material Adverse Effect;
(b) promptly but not later than three Business Days after the
Borrower becomes aware of the existence of (i) any Default or Event of Default,
(ii) any breach or non-performance of, or any default under, any Contractual
Obligation to which the Borrower or any of its Subsidiaries is a party which has
any reasonable likelihood of having a Material Adverse Effect, or (iii) any
Material Adverse Effect or any event or other development which has a reasonable
likelihood of having a Material Adverse Effect, notice 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 ▇▇▇▇▇'▇ or S&P in its Debt Rating,
notice 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 Lender 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
51
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 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
52
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.
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 Lenders
prior to the date of this Agreement.
SECTION 6.15. Private Offering or Public Registration. The Borrower
shall no later than October 1, 2001, use its reasonable best efforts to (a)
issue and sell pursuant to a private offering up to $2,500,000,000 of the
Borrower's debt securities, or such lesser amount as shall be required to repay
or prepay all Loans and terminate all Commitments hereunder or (b) file with the
Securities and Exchange Commission a shelf registration pursuant to Rule 415 of
the Securities Act or other registration statement on Form S-3 in respect of up
to $2,500,000,000 of the Borrower's debt securities and complete as promptly as
practicable a registered offering of up to $2,500,000,000 of the Borrower's debt
securities, or such lesser amount as shall be required to repay or prepay all
Loans and terminate all Commitments hereunder.
53
ARTICLE VII
Negative Covenants
The Borrower hereby covenants and agrees that so as long as any Lender
shall have any Commitment hereunder or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Lenders 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 aggregate $5,000,000 and (iii)
other obligations of like nature incurred as an incident to and in
54
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
Liens permitted pursuant to paragraphs (i) and (l) below (and any
extensions, renewals and refinancings of such Indebtedness) shall not,
subject to the second proviso of paragraph (i) below, at any time exceed
the Permitted Lien Basket;
55
(i) Liens on assets of any corporation existing at the time such
corporation becomes a Subsidiary of the Borrower or merges into or consolidates
with the Borrower or any of its Subsidiaries, if such Liens (A) do not extend to
any other property, (B) do not secure Indebtedness exceeding the fair market
value of such property at the time such corporation becomes a Subsidiary of the
Borrower or at the time of such merger or consolidation, and (C) were not
created in contemplation of such corporation becoming a Subsidiary of the
Borrower or of such merger or consolidation; provided, however, that the
aggregate amount of Indebtedness secured by Liens referred to in this paragraph
(i), together with the Indebtedness secured by Liens permitted pursuant to
paragraph (h) above and paragraph (l) below (and any extensions, renewals and
refinancings of such Indebtedness) shall not at any time exceed the Permitted
Lien Basket; provided, further, however, that notwithstanding the foregoing
limitation, the Borrower may incur, and permit its Subsidiaries to incur,
Indebtedness secured by Liens referred to in this paragraph (i) which, when
aggregated with the Indebtedness secured by Liens permitted pursuant to
paragraph (h) above and paragraph (l) below, exceed the Permitted Lien Basket
if, and only if, (x) 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) Liens in respect of the Receivables Facility and Liens in respect
of accounts sold by the Borrower and its Subsidiaries pursuant to a receivables
purchase transaction permitted by Section 7.07(f);
(k) judgment Liens in respect of judgments that do not constitute an
Event of Default under clause (h), (i) or (j) of Article VIII;
(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 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)).
56
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;
(c) Indebtedness of the Borrower to any of its Subsidiaries, of any
wholly-owned Subsidiary of the Borrower to the Borrower or of any Subsidiary of
the Borrower to another wholly-owned Subsidiary of the Borrower;
(d) surety bonds and appeal bonds required in the ordinary course of
business or in connection with the enforcement of rights or claims of the
Borrower or its Subsidiaries or in connection with judgments that do not result
in a Default or an Event of Default;
(e) trade debt (including Indebtedness for the purchase of farm
products from contract growers and other similar suppliers but excluding
Indebtedness for Borrowed Money) incurred by the Borrower or any of its
Subsidiaries in the ordinary course of business in a manner and to an extent
consistent with their past practices and necessary or desirable for the prudent
operation of its businesses;
(f) Indebtedness secured by Liens permitted pursuant to Section 7.01
subject to the limitations contained therein;
(g) Indebtedness incurred in connection with the issuance of
commercial paper; and
(h) other present and future unsecured Indebtedness provided at the
time of, and immediately after giving effect to, the incurrence of such
Indebtedness, no condition or event shall exist which constitutes an Event of
Default.
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
57
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. Sale-Leaseback Transactions. 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 or otherwise, in connection with a sale-leaseback transaction, except
(subject to the final sentence of this Section 7.03 and 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)).
SECTION 7.04. Restricted Payments. The Borrower shall not, and shall
not permit any of its Subsidiaries to, declare, pay or authorize any Restricted
Payment if (a) any such Restricted Payment is not paid out of Consolidated Net
Income Available for Restricted Payments, (b) at the time of, and immediately
after, the making of any such Restricted Payment (or the declaration of any
dividend except a stock dividend) a Default or Event of Default has occurred and
is continuing or (c) the making of any such Restricted Payment would cause the
Leverage Ratio to exceed the percentage pursuant to Section 7.15 which the
Borrower will be required to maintain as of the end of the fiscal quarter during
which such Restricted Payment is to be made.
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
58
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 (i) at the time of, and immediately after giving effect to such
acquisition, no condition or event shall exist which constitutes an Event of
Default, (ii) the Borrower shall be in pro forma compliance with the financial
covenants set forth in Sections 7.15 and 7.16, assuming such acquisition
occurred on the first day of the fiscal quarter most recently ended and (iii)
the Borrower shall have obtained, and delivered to the Administrative Agent,
written confirmations from S&P and ▇▇▇▇▇'▇ that, immediately after giving effect
to such acquisition, (x) the Borrower will maintain ratings of its Index Debt of
at least BBB by S&P and Baa3 by ▇▇▇▇▇'▇, (y) neither of such ratings is under
review for possible downgrade and (z) the Borrower has not been placed on credit
watch with negative implications by either such rating agency; 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) investments existing on the date hereof in any Person;
(c) loans, advances, credit support, or other investments in any
Person or Persons, in amounts which do not exceed in the aggregate at any time
outstanding 5% of the consolidated
59
total assets of the Borrower and its Subsidiaries as at the last day of the most
recently ended fiscal quarter of the Borrower;
(d) the acquisition by the Borrower or any of its wholly-owned
Subsidiaries of Stock permitted to be issued pursuant to Section 7.09;
(e) intercompany Indebtedness permitted pursuant to Section 7.02(d);
and
(f) loans or advances made by the Borrower or any of its Subsidiaries
to employees of the Borrower or any of its Subsidiaries not to exceed an
aggregate of $5,000,000.
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 by the Borrower and its
Subsidiaries in connection with the Receivables Facility or for not less than
the fair value thereof, 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
60
(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
(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; or
(b) 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.
61
(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 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 Lenders 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
Lenders 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 Lenders 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 Lenders 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. Leverage Ratio. Commencing on December 31, 2001, the
Borrower shall not permit at any time the Leverage Ratio to be greater than 5.25
to 1.00.
SECTION 7.16. Interest Expense Coverage Ratio. Commencing on December
31, 2001 and at any time thereafter, the Borrower shall not permit the ratio of
(i) Consolidated EBITDA to (ii) Consolidated Interest Expense, in each case for
the period of four
62
consecutive fiscal quarters for which financial statements have most recently
been delivered under Section 6.09(a) or (b) at such time, to be less than 2.50
to 1.00.
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, 6.05,
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 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, the Receivables Facility, the Receivables Bridge
Facility 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 Lenders 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 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
63
(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 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
64
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
Lenders, the Majority Lenders shall have notified the Borrower in writing
that (A) they have made a determination that, on the basis of such
Reportable Event, there are reasonable grounds for the termination of such
Plan by the PBGC or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan and (B) as a 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
65
Controlled Group shall begin to maintain, or begin to contribute to, any
Plan, without the prior written consent of the Majority Lenders; or
(ix) any ERISA Event with respect to a Plan shall have occurred, and
30 days thereafter (A) such ERISA Event shall not have been corrected and
(B) the then present value of such Plan's benefit liabilities, as defined
in Title IV of ERISA, shall exceed the then current value of assets
accumulated in such Plan;
provided, however, that the events listed in clauses (v)-(ix) of this paragraph
(j) shall constitute Events of Default only if, as of the date thereof or any
subsequent date, the maximum amount of liability the Borrower or any member of
its Controlled Group could incur in the aggregate under Section 4062, 4063,
4064, 4219 or 4243 of ERISA or any other provision of law with respect to all
such Plans, computed by the actuary of the Plan taking into account any
applicable rules and regulations of the PBGC at such time, and based on the
actuarial assumptions used by the Plan, resulting from or otherwise associated
with such event exceeds $10,000,000;
(k) Change in Control. Mr. ▇▇▇ ▇▇▇▇▇, the ▇▇▇▇▇ Limited Partnership
and "members of the same family" of Mr. ▇▇▇ ▇▇▇▇▇ 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) Guarantee Agreement. At any time after the delivery of the
Guarantee Agreement, 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 Lenders:
(a) declare the Commitment of each Lender to be terminated, whereupon
such Commitment shall forthwith be terminated; and/or
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon and all other Obligations payable hereunder
or under any other Loan Document to be immediately due and payable, whereupon
the Loans, all such interest and all such Obligations shall become and be
forthwith due and payable without presentment, demand, protest 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 Lender 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 Lender.
66
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 Lender 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 Lender, 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.
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 Lenders 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
Lender 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.
67
(b) Each party to this Agreement acknowledges that neither the
Syndication Agent nor the Documentation Agent shall have any 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 or facsimile 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 Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders 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
Lenders and such request or consent and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders 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 Lender 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 Lenders unless an officer of the Administrative Agent
responsible for the transactions contemplated by the Loan Documents shall have
received notice from such Lender prior to the Effective Date specifying its
objection thereto and either such objection shall not have been withdrawn by
notice to the Administrative Agent to that effect or such Lender shall not have
made available to the Administrative Agent such Lender'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 Lender 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 Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be requested by the
Majority Lenders in accordance with Article VIII; provided however, that unless
and until the Administrative Agent shall have received any such request from the
Majority Lenders, 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 Lenders.
68
SECTION 9.06. Credit Decision. Each Lender 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 Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, 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 Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, 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 Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender 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 Lenders 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 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 Lender 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 Lender 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 Lenders'
rights or responsibilities under, this Agreement, any other Loan Document or any
document
69
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 Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" 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 Lenders and
the Borrower. Upon any such resignation, the Majority Lenders 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 Lenders, 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 Lenders, 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 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 facsimile) and
mailed by overnight delivery, transmitted by facsimile or delivered, provided,
that notices and other communications required under Article V or VI hereof by
the Borrower or the Administrative Agent to the Lenders may be transmitted via
electronic transmission: if to the Borrower, to its address specified on the
signature pages hereof; if to any Lender, to its Domestic Lending Office; and if
to the Administrative Agent, to its address
70
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 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 Lenders, 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 do any of the following:
(a) increase the Commitment of any Lenders (other than by assignment)
or subject any Lender to any additional monetary obligation without the written
consent of such Lender;
(b) reduce the principal of, or interest (other than any default
interest payable pursuant to Section 2.10) on, any Committed Loan or any fees
payable hereunder without the written consent of each Lender affected thereby;
(c) extend the Maturity Date or any date fixed for any payment of
interest on, the Committed Loans or any fees payable hereunder without the
written consent of each Lender affected thereby;
(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
Lenders or any of them to take any action hereunder without the written consent
of each Lender; or
(e) amend this Section 10.02 without the written consent of each
Lender.
Notwithstanding the foregoing, if (i) any covenant or event of default or other
term in the New 364-Day Credit Agreement shall be more restrictive with respect
to the Borrower and its Subsidiaries (or more favorable to the lenders
thereunder) than any covenant, Event of Default or other term set forth in
Article VI, VII or VIII hereof, or (ii) the rate at which facility fees accrue
under the New 364-Day Credit Agreement shall be higher than the rate at which
facility fees accrue under Section 3.01(a) hereof, then in each case this
Agreement shall be deemed automatically amended, and no consent or
acknowledgment in writing or otherwise of the Borrower or any Lender shall be
required, to incorporate such more restrictive covenant, event of default or
other term, or such higher facility fee rate, into this Agreement; provided,
however,
71
that upon request by the Administrative Agent, the Borrower shall promptly
acknowledge in writing any such amendment.
SECTION 10.03. No Waiver; Remedies. No failure on the part of any
Lender 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 Lender 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 Lender (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 Lender 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 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
Lender or any
72
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 Lender 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 Lender may desire indemnity or defense hereunder, the
Administrative Agent, the Syndication Agent, the Documentation Agent or such
Lender 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 Lender 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 Lender 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 Lender 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 Lender 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 Lender 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
Lender to or for the credit or the account of the Borrower against any and all
of the Obligations, whether or not such Lender shall have made any demand under
this Agreement. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 10.06 are in addition
to any other rights and remedies (including other rights of set-off) which such
Lender may have.
73
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 Lender 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 Lenders.
SECTION 10.08. Assignments, Participations Etc. (a) (i) Each Lender
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 Lender may, without the consent of the Borrower or the
Administrative Agent, assign to any of its Lender Affiliates or to any other
Lender, other than a Lender 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 $5,000,000; provided, however,
that the Borrower shall not, as a result of an assignment by any Lender 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 Lender in connection with the interests so assigned by such Lender 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 Lender and such Assignee, in substantially the form
of Exhibit 10.08 (a "Notice of Assignment"), and such Lender 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 $3,500 shall have been paid
to the Administrative Agent by the assignor Lender 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 Lender 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 Lender, shall have the rights and obligations of a
Lender hereunder and under each other Loan Document, and (ii) the assignor
Lender, 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 Lender 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
Lender hereunder; provided, however, that
74
(i) no participation contemplated in this Section 10.08(d) shall
relieve such Lender from its Commitment or its other obligations hereunder
or under any other Loan Document;
(ii) such Lender 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 Lender in connection with such Lender's
rights and obligations under this Agreement; and
(iv) no Participant, unless such Participant is itself a Lender,
shall be entitled to require such Lender to take or refrain from taking any
action hereunder or under any other Loan Document, except that such Lender
may agree with any Participant that such Lender 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
Lenders 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 Lender; 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 Lender would
be entitled with respect to the amount of such Participant's participation
interests if such Lender had not sold such participation interests and (b) a
Participant that is a foreign Person shall not be considered a Lender 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 Lender.
(e) Notwithstanding any other provision of this Agreement, nothing
contained in this Agreement shall prevent any Lender 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 Lender
from its obligations hereunder.
SECTION 10.09. Confidentiality. Each Lender 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 Lender may
disclose such information (a) at the request of any bank regulatory authority or
in connection with an examination of such Lender by any such authority; (b)
pursuant to subpoena
75
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 Lender conducts its business; and (e) to such Lender's affiliates,
independent auditors, counsel and other professional advisors. Notwithstanding
the foregoing, the Borrower authorizes each Lender to disclose to any
Participant or Assignee and any prospective Participant and Assignee such
financial and other information in such Lender's possession concerning the
Borrower or its Subsidiaries which has been delivered to the Lenders pursuant to
this Agreement or any other Loan Document or which has been delivered to the
Lenders by the Borrower in connection with the Lenders' 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 Lender to keep such information confidential to the same extent required
of the Lenders 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 Lenders 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.
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
76
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 LENDERS 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 LENDERS.
SECTION 10.15. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE
LENDERS 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 LENDERS
OR THE BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE
AGENT AND THE LENDERS TO ENTER INTO THIS AGREEMENT.
77
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:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by
________________________________
Name:
Title:
Address for notices:
Loan and Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Address for payments:
ABA # ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit to Account number:
323219551
Reference: Tyson Foods, Inc.
With a copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention of.:
Facsimile No.:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
individually and as Syndication Agent,
by
________________________________
Name:
Title:
SUNTRUST BANK, individually and as
Documentation Agent,
by
________________________________
Name:
Title: