EXHIBIT 10.43
DOMESTIC GUARANTY
GUARANTY, dated as of September 19, 2002, by S&C Holdco 3,
Inc., a Delaware corporation ("Holdings"), Swift & Company, a Delaware
corporation (the "Company") and each of the other entities listed on the
signature pages hereof or that becomes a party hereto pursuant to Section 25
(Additional Guarantors) hereof (collectively with Holdings and the Company, the
"Guarantors," and each a "Guarantor"), in favor of the Administrative Agent,
each Lender, each Issuer and each other holder of a Guarantied Obligation (as
each such term is defined below) (each, a "Guarantied Party" and, collectively,
the "Guarantied Parties").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement dated as of
September 19, 2002 (together with all appendices, exhibits and schedules thereto
and as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"; capitalized terms defined therein and
used herein having the meanings given to them in the Credit Agreement) among the
Company, S&C Australia Holdco Pty. Ltd. (ACN: 000 000 000) ("Australian
Holdings"), Australia Meat Holdings Pty. Limited (ACN: 011 062 338) ("Australian
Company" and together with Australian Holdings, the "Australian Borrowers," and
the Australian Borrowers collectively with the Company, the "Borrowers"),
Holdings, the Lenders and Issuers party thereto, Citicorp USA, Inc., as
administrative and collateral agent for the Lenders and Issuers and as
Australian agent for the Lenders and Issuers, JPMorgan Chase Bank, as
syndication agent for the Lenders and Issuers, Citisecurities Limited (ACN: 008
489 610), as Australian collateral trustee for the Lenders and Issuers, and
General Electric Capital Corporation, U.S. Bank National Association and
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank International",
New York Branch, each as co-documentation agents for the Lenders and Issuers,
the Lenders and Issuers have severally agreed to make extensions of credit to
the Borrowers upon the terms and subject to the conditions set forth therein;
WHEREAS, Holdings is the sole shareholder of the Company and
each Subsidiary Guarantor (as defined below) is a direct or indirect Subsidiary
of the Company;
WHEREAS, the Company is the sole shareholder of Australian
Holdings and Australian Holdings is the sole shareholder of Australian Company;
WHEREAS, each Guarantor will receive substantial direct and
indirect benefits from the making of the Loans, the issuance of the Letters of
Credit and the granting of the other financial accommodations to the Borrowers
under the Credit Agreement; and
WHEREAS, a condition precedent to the obligation of the
Lenders and the Issuers to make their respective extensions of credit to the
Borrowers under the Credit Agreement is that the Guarantors shall have executed
and delivered this Guaranty for the benefit of the Guarantied Parties;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
DOMESTIC GUARANTY
SWIFT & COMPANY
SECTION 1 DEFINITIONS
The following terms shall have the following meanings in this
Guaranty:
"Guarantied Obligations" means (a) in the case of the Company,
the Obligations of the Australian Borrowers under any Loan Document and (b) in
the case of the other Guarantors, the Obligations of the Company and the
Australian Borrowers under any Loan Document; provided, however, that in no case
shall the Guarantied Obligations include any obligation of any Loan Party under
the Australian Intercompany Credit Agreement and the Australian Intercompany
Collateral Documents.
"Subsidiary Guarantors" means each Domestic Subsidiary of the
Company party to, or that becomes party to, this Guaranty.
SECTION 2 GUARANTY
(a) To induce the Lenders to make the Loans and the Issuers to
issue Letters of Credit, each Guarantor hereby absolutely, unconditionally and
irrevocably guarantees, jointly with the other Guarantors and severally, as
primary obligor and not merely as surety, the full and punctual payment when due
and in the currency due, whether at stated maturity or earlier, by reason of
acceleration, mandatory prepayment or otherwise in accordance herewith or any
other Loan Document, of all the Guarantied Obligations of such Guarantor,
whether or not from time to time reduced or extinguished or hereafter increased
or incurred, whether or not recovery may be or hereafter may become barred by
any statute of limitations, whether or not enforceable as against any Borrower,
whether now or hereafter existing, and whether due or to become due, including
principal, interest (including interest at the contract rate applicable upon
default accrued or accruing after the commencement of any proceeding under the
Bankruptcy Code, or any applicable provisions of comparable state law or
provincial law, whether or not such interest is an allowed claim in such
proceeding), fees and costs of collection. This Guaranty constitutes a guaranty
of payment and not of collection.
(b) Each Guarantor further agrees that, if (i) any payment
made by the Borrowers or any other Person and applied to the Guarantied
Obligations of such Guarantor is at any time annulled, avoided, set aside,
rescinded, invalidated, declared to be fraudulent or preferential or otherwise
required to be refunded or repaid or (ii) the proceeds of Collateral applied to
the Guarantied Obligations of such Guarantor are required to be returned by any
Guarantied Party to any Borrower, its estate, trustee, receiver or any other
party, including any Guarantor, under any bankruptcy law, equitable cause or any
other Requirement of Law, then, to the extent of such payment or repayment, such
Guarantor's liability hereunder (and any Lien or other Collateral securing such
liability) shall be and remain in full force and effect, as fully as if such
payment had never been made. If, prior to any of the foregoing, this Guaranty
shall have been cancelled or surrendered (and if any Lien or other Collateral
securing such Guarantor's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender), this Guaranty (and such
Lien or other Collateral) shall be reinstated in full force and effect, and such
prior cancellation or surrender shall not diminish, release, discharge, impair
or otherwise affect the obligations of any such Guarantor in respect of the
amount of such payment (or any Lien or other Collateral securing such
obligation).
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DOMESTIC GUARANTY
SWIFT & COMPANY
SECTION 3 LIMITATION OF GUARANTY
Any term or provision of this Guaranty or any other Loan
Document to the contrary notwithstanding, the maximum aggregate amount of the
Guarantied Obligations of any Subsidiary Guarantor for which such Subsidiary
Guarantor shall be liable shall not exceed the maximum amount for which such
Subsidiary Guarantor can be liable without rendering this Guaranty or any other
Loan Document, as it relates to such Subsidiary Guarantor, subject to avoidance
under applicable law relating to fraudulent conveyance or fraudulent transfer
(including Section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law) (collectively, "Fraudulent Transfer Laws"), in each case
after giving effect (a) to all other liabilities of such Subsidiary Guarantor,
contingent or otherwise, that are relevant under such Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Subsidiary Guarantor
in respect of intercompany Indebtedness to the Borrowers to the extent that such
Indebtedness would be discharged in an amount equal to the amount paid by such
Subsidiary Guarantor hereunder) and (b) to the value as assets of such
Subsidiary Guarantor (as determined under the applicable provisions of such
Fraudulent Transfer Laws) of any right to subrogation, contribution,
reimbursement, indemnity or similar rights held by such Subsidiary Guarantor
pursuant to (i) applicable Requirements of Law, (ii) Section 4 (Contribution) of
this Guaranty or (iii) any other Contractual Obligation providing for an
equitable allocation among such Subsidiary Guarantor and other Subsidiaries or
Affiliates of the Borrowers of obligations arising under this Guaranty or other
guaranties of the Guarantied Obligations by such parties.
SECTION 4 CONTRIBUTION
To the extent that any Subsidiary Guarantor shall be required
hereunder to pay a portion of the Guarantied Obligations exceeding the greater
of (a) the amount of the economic benefit actually received by such Subsidiary
Guarantor from the Revolving Credit Facility, the Term Loans and the other
financial accommodations provided to the Borrowers under the Loan Documents and
(b) the amount such Subsidiary Guarantor would otherwise have paid if such
Subsidiary Guarantor had paid the aggregate amount of such Guarantied
Obligations (excluding the amount thereof repaid by the applicable Borrowers) in
the same proportion as such Subsidiary Guarantor's net worth at the date
enforcement is sought hereunder bears to the aggregate net worth of all the
Subsidiary Guarantors who have guaranteed such Guarantied Obligations pursuant
to the terms hereof at the date enforcement is sought hereunder, then such
Guarantor shall be reimbursed by such other Subsidiary Guarantors for the amount
of such excess, pro rata, based on the respective net worths of such other
Subsidiary Guarantors at the date enforcement hereunder is sought.
SECTION 5 AUTHORIZATION; OTHER AGREEMENTS
The Guarantied Parties are hereby authorized, without notice
to, or demand upon, any Guarantor, which notice and demand requirements each are
expressly waived hereby, and without discharging or otherwise affecting the
obligations of such Guarantor hereunder (which obligations shall remain absolute
and unconditional notwithstanding any such action or omission to act), from time
to time, to do each of the following:
(a) supplement, renew, extend, accelerate or otherwise change
the time for payment of, or other terms relating to, the Guarantied Obligations,
or any part of them, or otherwise modify, amend or change the terms of any
promissory note or other agreement,
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DOMESTIC GUARANTY
SWIFT & COMPANY
document or instrument (including the other Loan Documents) now or hereafter
executed by any Borrower and delivered to the Guarantied Parties or any of them,
including any increase or decrease of principal or the rate of interest thereon;
(b) waive or otherwise consent to noncompliance with any
provision of any instrument evidencing the Guarantied Obligations, or any part
thereof, or any other instrument or agreement in respect of the Guarantied
Obligations (including the other Loan Documents) now or hereafter executed by
any Borrower and delivered to the Guarantied Parties or any of them;
(c) accept partial payments on the Guarantied Obligations;
(d) receive, take and hold additional security or collateral
for the payment of the Guarantied Obligations or any part of them and exchange,
enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect,
subordinate, transfer, otherwise alter and release any such additional security
or collateral;
(e) settle, release, compromise, collect or otherwise
liquidate the Guarantied Obligations or accept, substitute, release, exchange or
otherwise alter, affect or impair any security or collateral for the Guarantied
Obligations or any part of them or any other guaranty therefor, in any manner;
(f) add, release or substitute any one or more other
guarantors, makers or endorsers of the Guarantied Obligations or any part of
them and otherwise deal with any Borrower or any other guarantor, maker or
endorser;
(g) apply to the Guarantied Obligations any payment or
recovery (x) from any Borrower, from any other guarantor, maker or endorser of
the Guarantied Obligations or any part of them or (y) from any Guarantor to the
Guarantied Obligations in such order as provided herein, in each case whether
such Guarantied Obligations are secured or unsecured or guaranteed or not
guaranteed by others;
(h) apply to the Guarantied Obligations of any Guarantor any
payment or recovery from such Guarantor or sums realized from security furnished
by such Guarantor upon its indebtedness or obligations to the Guarantied Parties
or any of them, in each case whether or not such indebtedness or obligations
relate to such Guarantied Obligations; and
(i) refund at any time any payment received by any Guarantied
Party in respect of any of the Guarantied Obligations, and payment to such
Guarantied Party of the amount so refunded shall be fully guaranteed hereby even
though prior thereto this Guaranty shall have been cancelled or surrendered (or
any release or termination of any Collateral by virtue thereof), and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of any Guarantor hereunder in respect of the
amount so refunded (and any Collateral so released or terminated shall be
reinstated with respect to such obligations);
even if any right of reimbursement or subrogation or other right or remedy of
any Guarantor is extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial, non-judicial or
other proceeding in respect of the Guarantied Obligations that impairs any
subrogation, reimbursement or other right of such Guarantor).
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DOMESTIC GUARANTY
SWIFT & COMPANY
SECTION 6 GUARANTY XXXXXXXX XXX UNCONDITIONAL
Each Guarantor hereby waives any defense of a surety or
guarantor or any other obligor on any obligations arising in connection with or
in respect of any of the following and hereby agrees that its obligations under
this Guaranty are absolute and unconditional and shall not be discharged or
otherwise affected as a result of any of the following:
(a) the invalidity or unenforceability of any obligation of
any Borrower under the Credit Agreement or any other Loan Document or any other
agreement or instrument relating thereto, or any security for, or other guaranty
of the Guarantied Obligations or any part of them, or the lack of perfection or
continuing perfection or failure of priority of any security for the Guarantied
Obligations or any part of them;
(b) the absence of any attempt to collect the Guarantied
Obligations or any part of them from any Borrower or other action to enforce the
same;
(c) failure by any Guarantied Party to take any steps to
perfect and maintain any Lien on, or to preserve any rights to, any Collateral;
(d) any Guarantied Party's election, in any proceeding
instituted under chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code or any applicable provisions of
comparable state law or provincial law;
(e) any borrowing or grant of a Lien by any Borrower, as
debtor-in-possession, or extension of credit, under Section 364 of the
Bankruptcy Code or any applicable provisions of comparable state law or
provincial law;
(f) the disallowance, under Section 502 of the Bankruptcy Code
or any applicable provisions of comparable state law or provincial law, of all
or any portion of any Guarantied Party's claim (or claims) for repayment of the
Guarantied Obligations;
(g) any use of cash collateral under Section 363 of the
Bankruptcy Code or any applicable provisions of comparable state law or
provincial law;
(h) any agreement or stipulation as to the provision of
adequate protection in any bankruptcy proceeding;
(i) the avoidance of any Lien in favor of the Guarantied
Parties or any of them for any reason;
(j) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against any Borrower, any Guarantor or any of the Borrowers' other Subsidiaries,
including any discharge of, or bar or stay against collecting, any Obligation
(or any part of them or interest thereon) in or as a result of any such
proceeding;
(k) failure by any Guarantied Party to file or enforce a claim
against any Borrower or their estates in any bankruptcy or insolvency case or
proceeding;
(l) any action taken by any Guarantied Party if such action is
authorized hereby;
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DOMESTIC GUARANTY
SWIFT & COMPANY
(m) any election following the occurrence of an Event of
Default by any Guarantied Party to proceed separately against the personal
property Collateral in accordance with such Guarantied Party's rights under the
UCC or, if the Collateral consists of both personal and real property, to
proceed against such personal and real property in accordance with such
Guarantied Party's rights with respect to such real property; or
(n) any other circumstance that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor or any other
obligor on any obligations, other than the payment in full of the Guarantied
Obligations of such Guarantor.
SECTION 7 WAIVERS
Each Guarantor hereby waives diligence, promptness,
presentment, demand for payment or performance and protest and notice of
protest, notice of acceptance, and any other notice in respect of the Guarantied
Obligations or any part of them, and any defense arising by reason of any
disability or other defense of any Borrower. Each Guarantor shall not, until the
Guarantied Obligations of such Guarantor are irrevocably paid in full and the
Commitments have been terminated, assert any claim or counterclaim it may have
against any Borrower in respect of the Guarantied Obligations or set off any of
its obligations to any Borrower against any obligations of any Borrower to it in
respect of the Guarantied Obligations. In connection with the foregoing, each
Guarantor covenants that its obligations hereunder shall not be discharged,
except by complete performance.
SECTION 8 RELIANCE
Each Guarantor hereby assumes responsibility for keeping
itself informed of the financial condition of any Borrower liable for Guarantied
Obligations of such Guarantor and any endorser and other guarantors of all or
any part of the Guarantied Obligations of such Guarantor, and of all other
circumstances bearing upon the risk of nonpayment of the Guarantied Obligations
of such Guarantor, or any part thereof, that diligent inquiry would reveal, and
each Guarantor hereby agrees that no Guarantied Party shall have any duty to
advise any Guarantor of information known to it regarding such condition or any
such circumstances. In the event any Guarantied Party, in its sole discretion,
undertakes at any time or from time to time to provide any such information to
any Guarantor, such Guarantied Party shall be under no obligation (a) to
undertake any investigation not a part of its regular business routine, (b) to
disclose any information that such Guarantied Party, pursuant to accepted or
reasonable commercial finance or banking practices, wishes to maintain
confidential or (c) to make any other or future disclosures of such information
or any other information to any Guarantor.
SECTION 9 WAIVER OF SUBROGATION AND CONTRIBUTION RIGHTS
Until the Obligations have been irrevocably paid in full and
the Commitments have been terminated, such Guarantor shall not enforce or
otherwise exercise any right of subrogation to any of the rights of the
Guarantied Parties or any part of them against any Borrower or any right of
reimbursement or contribution or similar right against the Borrowers by reason
of this Guaranty or by any payment made by such Guarantor in respect of the
Guarantied Obligations.
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DOMESTIC GUARANTY
SWIFT & COMPANY
SECTION 10 SUBORDINATION
Each Guarantor hereby agrees that any Indebtedness of any
Borrower, other than the obligations of Australian Holdings under the Australian
Intercompany Credit Agreement, now or hereafter owing to any Guarantor, whether
heretofore, now or hereafter created (the "Guarantor Subordinated Debt"), is
hereby subordinated to all of the Guarantied Obligations of such Guarantor and
that, except as permitted under Section 8.6 (Restricted Payments) of the Credit
Agreement, the Guarantor Subordinated Debt shall not be paid in whole or in part
until the Guarantied Obligations of such Guarantor have been paid in full and
this Guaranty is terminated and of no further force or effect. No Guarantor
shall accept any payment of or on account of any Guarantor Subordinated Debt at
any time in contravention of the foregoing. Upon the occurrence and during the
continuance of an Event of Default, the Borrowers shall pay to the
Administrative Agent any payment of all or any part of the Guarantor
Subordinated Debt and any amount so paid to the Administrative Agent shall be
applied to payment of the Guarantied Obligations of such Guarantor as provided
in Section 2.13(g) (Payments and Computations) of the Credit Agreement. Each
payment on the Guarantor Subordinated Debt received in violation of any of the
provisions hereof shall be deemed to have been received by such Guarantor as
trustee for the Guarantied Parties and shall be paid over to the Administrative
Agent immediately on account of the Guarantied Obligations of such Guarantor,
but without otherwise affecting in any manner such Guarantor's liability hereof.
Each Guarantor agrees to file all claims against any Borrower in any bankruptcy
or other proceeding in which the filing of claims is required by law in respect
of any Guarantor Subordinated Debt, and the Administrative Agent shall be
entitled to all of such Guarantor's rights thereunder. If for any reason a
Guarantor fails to file such claim at least ten Business Days prior to the last
date on which such claim should be filed, such Guarantor hereby irrevocably
appoints the Administrative Agent as its true and lawful attorney-in-fact and is
hereby authorized to act as attorney-in-fact in such Guarantor's name to file
such claim or, in the Administrative Agent's discretion, to assign such claim to
and cause proof of claim to be filed in the name of the Administrative Agent or
its nominee. In all such cases, whether in administration, bankruptcy or
otherwise, the person or persons authorized to pay such claim shall pay to the
Administrative Agent the full amount payable on the claim in the proceeding,
and, to the full extent necessary for that purpose, each Guarantor hereby
assigns to the Administrative Agent all of such Guarantor's rights to any
payments or distributions to which such Guarantor otherwise would be entitled.
If the amount so paid is greater than such Guarantor's liability hereunder, the
Administrative Agent shall pay the excess amount to the party entitled thereto.
In addition, each Guarantor hereby irrevocably appoints the Administrative Agent
as its attorney-in-fact to exercise all of such Guarantor's voting rights as a
creditor in connection with any bankruptcy proceeding or any plan for the
reorganization of any Borrower.
SECTION 11 DEFAULT; REMEDIES
The obligations of each Guarantor hereunder are independent of
and separate from the Guarantied Obligations. If any of the Guarantied
Obligations of such Guarantor are not paid when due, or upon any Event of
Default hereunder or upon any default by any Borrower as provided in any other
instrument or document evidencing all or any part of the Guarantied Obligations
of such Guarantor, the Administrative Agent may, at its sole election, proceed
directly and at once, without notice, against any Guarantor of such Guarantied
Obligations to collect and recover the full amount or any portion of the
Guarantied Obligations of such Guarantor then due, without first proceeding
against any Borrower or any other guarantor of the Guarantied Obligations, or
against any Collateral under the Loan Documents or joining any
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DOMESTIC GUARANTY
SWIFT & COMPANY
Borrower or any other guarantor in any proceeding against any Guarantor. At any
time after maturity of the Guarantied Obligations, the Administrative Agent may
(unless the Guarantied Obligations have been irrevocably paid in full), without
notice to any Guarantor and regardless of the acceptance of any Collateral for
the payment hereof, appropriate and apply toward the payment of the Guarantied
Obligations (a) any indebtedness due or to become due from any Guarantied Party
to such Guarantor and (b) any moneys, credits or other property belonging to
such Guarantor at any time held by or coming into the possession of any
Guarantied Party or any of its respective Affiliates.
SECTION 12 IRREVOCABILITY
This Guaranty shall be irrevocable as to any and all of the
Guarantied Obligations of each Guarantor (or any part thereof) until the
Commitments have been terminated and all monetary Guarantied Obligations of such
Guarantor then outstanding have been irrevocably repaid in cash, at which time
this Guaranty shall automatically be cancelled with respect to such repaid
Guarantied Obligations. Upon such cancellation and at the written request of any
Guarantor or its successors or assigns, and at the cost and expense of such
Guarantor or its successors or assigns, the Administrative Agent shall execute
in a timely manner a satisfaction of this Guaranty and such instruments,
documents or agreements as are necessary or desirable to evidence the
termination of this Guaranty.
SECTION 13 SETOFF
Upon the occurrence and during the continuance of an Event of
Default, each Guarantied Party and each Affiliate of a Guarantied Party may,
without notice to any Guarantor and regardless of the acceptance of any security
or collateral for the payment hereof, appropriate and apply toward the payment
of all or any part of the Guarantied Obligations of any Guarantor (i) any
indebtedness due or to become due from such Guarantied Party or Affiliate to
such Guarantor and (ii) any moneys, credits or other property belonging to such
Guarantor, at any time held by, or coming into, the possession of such
Guarantied Party or Affiliate.
SECTION 14 NO MARSHALLING
Each Guarantor consents and agrees that no Guarantied Party or
Person acting for or on behalf of any Guarantied Party shall be under any
obligation to marshal any assets in favor of any Guarantor or against or in
payment of any or all of the Guarantied Obligations of such Guarantor.
SECTION 15 ENFORCEMENT; AMENDMENTS; WAIVERS
No delay on the part of any Guarantied Party in the exercise
of any right or remedy arising under this Guaranty, the Credit Agreement, any
other Loan Document or otherwise with respect to all or any part of the
Guarantied Obligations, the Collateral or any other guaranty of or security for
all or any part of the Guarantied Obligations shall operate as a waiver thereof,
and no single or partial exercise by any such Person of any such right or remedy
shall preclude any further exercise thereof. No modification or waiver of any
provision of this Guaranty shall be binding upon any Guarantied Party, except as
expressly set forth in a writing duly signed and delivered by the party making
such modification or waiver. Failure by any Guarantied Party at any time or
times hereafter to require strict performance by any Borrower, any Guarantor,
any other guarantor of all or any part of the Guarantied Obligations or any
other
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DOMESTIC GUARANTY
SWIFT & COMPANY
Person of any provision, warranty, term or condition contained in any Loan
Document now or at any time hereafter executed by any such Persons and delivered
to any Guarantied Party shall not waive, affect or diminish any right of any
Guarantied Party at any time or times hereafter to demand strict performance
thereof and such right shall not be deemed to have been waived by any act or
knowledge of any Guarantied Party, or its respective agents, officers or
employees, unless such waiver is contained in an instrument in writing, directed
and delivered to any Borrower or such Guarantor, as applicable, specifying such
waiver, and is signed by the party or parties necessary to give such waiver
under the Credit Agreement. No waiver of any Event of Default by any Guarantied
Party shall operate as a waiver of any other Event of Default or the same Event
of Default on a future occasion, and no action by any Guarantied Party permitted
hereunder shall in any way affect or impair any Guarantied Party's rights and
remedies or the obligations of any Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal or interest owing by any Borrower to a Guarantied Party shall be
conclusive and binding on each Guarantor irrespective of whether such Guarantor
was a party to the suit or action in which such determination was made.
SECTION 16 SUCCESSORS AND ASSIGNS
This Guaranty shall be binding upon each Guarantor and upon
the successors and assigns of such Guarantors and shall inure to the benefit of
the Guarantied Parties and their respective successors and assigns; all
references herein to any Borrower and to the Guarantors shall be deemed to
include their respective successors and assigns. The successors and assigns of
the Guarantors and any Borrower shall include, without limitation, their
respective receivers, trustees and debtors-in-possession. All references to the
singular shall be deemed to include the plural where the context so requires.
SECTION 17 REPRESENTATIONS AND WARRANTIES; COVENANTS
Each Guarantor hereby (i) represents and warrants that the
representations and warranties as to it made by the Borrowers in Article IV
(Representations and Warranties) of the Credit Agreement are true and correct on
each date as required by Section 3.2(b)(i) (Conditions Precedent to Each Loan
and Letter of Credit) of the Credit Agreement and (ii) agrees to take, or
refrain from taking, as the case may be, each action necessary to be taken or
not taken, as the case may be, so that no Default or Event of Default is caused
by the failure to take such action or to refrain from taking such action by such
Guarantor.
SECTION 18 GOVERNING LAW
This Guaranty and the rights and obligations of the parties
hereto shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York.
SECTION 19 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) Any legal action or proceeding with respect to this
Guaranty, and any other Loan Document, 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 Guaranty, each Guarantor hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
hereby irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of
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DOMESTIC GUARANTY
SWIFT & COMPANY
forum non conveniens, that any of them may now or hereafter have to the bringing
of any such action or proceeding in such respective jurisdictions.
(b) Each Guarantor hereby irrevocably designates, appoints and
empowers CT Corporation System (telephone number: 000-000-0000) (telecopy
number: 212-894-8690) (address: 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 10011) (the
"Process Agent"), in the case of any suit, action or proceeding brought in the
United States of America as its designee, appointee and agent to receive, accept
and acknowledge for and on its behalf, and in respect of its property, service
of any and all legal process, summons, notices and documents that may be served
in any action or proceeding arising out of, or in connection with, this Guaranty
or any other Loan Document. Such service may be made by mailing (by registered
or certified mail, postage prepaid) or delivering a copy of such process to such
Guarantor in care of the Process Agent at the Process Agent's above address, and
such Guarantor hereby irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. As an alternative method of service, each
Guarantor irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing (by registered or certified mail, postage
prepaid) of copies of such process to the Process Agent or such Guarantor care
of the Borrowers at the Borrower's address specified in Section 11.8 (Notices,
Etc.) of the Credit Agreement or at such other addresses as the Borrowers may
specify pursuant to such Section 11.8. Each Guarantor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Nothing contained in this Section 19 (Submission to
Jurisdiction; Service of Process) shall affect the right of the Administrative
Agent or any other Guarantied Party to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against a
Guarantor in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in a Currency of Payment into
another currency, the parties hereto agree that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent could purchase such Currency of Payment with such other currency at the
spot rate of exchange quoted by the Administrative Agent at 11:00 a.m. (New York
time) on the Business Day preceding that on which final judgment is given, for
delivery two Business Days thereafter. The obligations in respect of any sum due
hereunder to any Guarantied Party shall, notwithstanding any adjudication
expressed in a currency other than the Currency of Payment, be discharged only
to the extent that, on the Business Day following receipt by such Guarantied
Party of any sum adjudged to be so due in such other currency, such Guarantied
Party may, in accordance with normal banking procedures, purchase the Currency
of Payment with such other currency. Each Guarantor agrees that (i) if the
amount of the Currency of Payment so purchased is less than the sum originally
due to such Guarantied Party in the Currency of Payment, as a separate
obligation and notwithstanding the result of any such adjudication, the
Guarantor shall immediately pay the shortfall (in the Currency of Payment) to
such Guarantied Party and (b) if the amount of the Currency of Payment so
purchased exceeds the sum originally due to such Guarantied Party, such
Guarantied Party shall promptly pay the excess over to the Guarantor in the
currency and to the extent actually received.
10
DOMESTIC GUARANTY
SWIFT & COMPANY
SECTION 20 WAIVER OF JUDICIAL BOND
To the fullest extent permitted by applicable law, the
Guarantor waives the requirement to post any bond that otherwise may be required
of any Guarantied Party in connection with any judicial proceeding to enforce
such Guarantied Party's rights to payment hereunder, security interest in or
other rights to the Collateral or in connection with any other legal or
equitable action or proceeding arising out of, in connection with, or related to
this the Loan Documents to which it is a party.
SECTION 21 CERTAIN TERMS
The following rules of interpretation shall apply to this
Guaranty: (a) the terms "herein," "hereof," "hereto" and "hereunder" and similar
terms refer to this Guaranty as a whole and not to any particular Article,
Section, subsection or clause in this Guaranty, (b) unless otherwise indicated,
references herein to an Exhibit, Article, Section, subsection or clause refer to
the appropriate Exhibit to, or Article, Section, subsection or clause in this
Guaranty and (c) the term "including" means "including without limitation"
except when used in the computation of time periods.
SECTION 22 WAIVER OF JURY TRIAL
EACH OF THE ADMINISTRATIVE AGENT, THE OTHER GUARANTIED PARTIES
AND EACH GUARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS GUARANTY AND ANY OTHER LOAN DOCUMENT.
SECTION 23 NOTICES
Any notice or other communication herein required or permitted
shall be given as provided in Section 11.8 (Notices, Etc.) of the Credit
Agreement and, in the case of any Guarantor, to such Guarantor in care of any
Borrower.
SECTION 24 SEVERABILITY
Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
SECTION 25 ADDITIONAL GUARANTORS
Each of the Guarantors agrees that, if, pursuant to Section
7.11(b) (Additional Collateral and Guaranties) of the Credit Agreement, Holdings
or any Borrower shall be required to cause any Subsidiary thereof that is not a
Guarantor to become a Guarantor hereunder, or if for any reason Holdings or any
Borrower desires any such Subsidiary to become a Guarantor hereunder, such
Subsidiary shall execute and deliver to the Administrative Agent a Guaranty
Supplement in substantially the form of Exhibit A (Guaranty Supplement) attached
hereto and shall thereafter for all purposes be a party hereto and have the same
rights, benefits and obligations as a Guarantor party hereto on the Closing
Date.
11
DOMESTIC GUARANTY
SWIFT & COMPANY
SECTION 26 COLLATERAL
Each Guarantor hereby acknowledges and agrees that its
obligations under this Guaranty are secured pursuant to the terms and provisions
of the Collateral Documents executed by it in favor of the Administrative Agent,
for the benefit of the Secured Parties, and covenants that it shall not grant
any Lien with respect to its Property in favor, or for the benefit, of any
Person other than the Administrative Agent, for the benefit of the Secured
Parties; except as otherwise permitted by Section 8.2 (Liens, etc.) of the
Credit Agreement.
SECTION 27 COSTS AND EXPENSES
In accordance with the provisions of Section 11.3 (Costs and
Expenses) of the Credit Agreement, each Guarantor agrees to pay or reimburse the
Administrative Agent and each of the other Guarantied Parties upon demand for
all out-of-pocket costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel and costs of settlement),
incurred by the Administrative Agent and such other Guarantied Parties in
enforcing this Guaranty against such Guarantor or any security therefor or
exercising or enforcing any other right or remedy available in connection
herewith or therewith.
SECTION 28 WAIVER OF CONSEQUENTIAL DAMAGES
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGE IN ANY LEGAL
ACTION OR PROCEEDING IN RESPECT OF THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
SECTION 29 ENTIRE AGREEMENT
This Guaranty, taken together with all of the other Loan
Documents executed and delivered by the Guarantors, represents the entire
agreement and understanding of the parties hereto and supersedes all prior
understandings, written and oral, relating to the subject matter hereof.
[SIGNATURE PAGES FOLLOW]
12
DOMESTIC GUARANTY
SWIFT & COMPANY
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
Guarantors as of the day and year first set forth above.
S&C HOLDCO 3, INC.,
as Holdings
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and CFO
SWIFT & COMPANY,
as Borrower
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and CFO
Subsidiary Guarantors:
XXXXXX BROS. CO., INC.
XXXXXXX FOOD DISTRIBUTION COMPANY
XXXXXXX INTERNATIONAL SALES
CORPORATION
XXXXXXX, INC.
SWIFT BEEF COMPANY (F/K/A CONAGRA
BEEF COMPANY)
SWIFT PORK COMPANY (F/K/A SWIFT &
COMPANY)
SWIFT BRANDS COMPANY
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and CFO
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP USA, INC.,
as Administrative Agent
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
[SIGNATURE PAGE TO DOMESTIC GUARANTY OF SWIFT & COMPANY'S CREDIT AGREEMENT]
EXHIBIT A
TO
GUARANTY
FORM OF GUARANTY SUPPLEMENT
The undersigned hereby agrees to be bound as a Guarantor for
purposes of the Guaranty, dated as of September 19, 2002 (the "Guaranty"), among
Swift & Company, S&C Holdco 3, Inc., and certain Subsidiaries of Swift & Company
listed on the signature pages thereof and acknowledged by Citicorp USA, Inc., as
Administrative Agent, and the undersigned hereby acknowledges receipt of a copy
of the Guaranty. The undersigned hereby represents and warrants that each of the
representations and warranties contained in Section 17 (Representations and
Warranties; Covenants) of the Guaranty applicable to it is true and correct on
and as the date hereof as if made on and as of such date. Capitalized terms used
herein but not defined herein are used with the meanings given them in the
Guaranty.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
Supplement to be duly executed and delivered as of ___________, ____.
[NAME OF GUARANTOR]
By:
-------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP USA, INC.,
as Administrative Agent
By:
-------------------------------
Name:
Title:
