EXHIBIT 4.11
SWIFT & COMPANY
AS OBLIGOR
AND
THE GUARANTORS NAMED HEREIN
AS GUARANTORS
AND
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.
AS TRUSTEE
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THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 26, 2003
TO
INDENTURE
DATED AS OF SEPTEMBER 19, 2002
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12 1/2% SENIOR SUBORDINATED NOTES DUE JANUARY 1, 2010
THIRD SUPPLEMENTAL INDENTURE, dated as of March 26, 2003, by and among
Swift & Company, a Delaware corporation (the "Company"), the entities identified
as Guarantors on the signature pages hereto (the "Guarantors") and The Bank of
New York Trust Company of Florida, N.A., as trustee (the "Trustee").
WHEREAS, the Company and certain guarantors have heretofore executed
and delivered to the Trustee an Indenture, dated as of September 19, 2002, as
amended by the First Supplemental Indenture, dated October 14, 2002, as further
amended by the Second Supplemental Indenture, dated January 30, 2003 (together,
the "Indenture"), providing for the issuance of 12 1/2% Senior Subordinated
Notes due January 1, 2010 (the "Notes");
WHEREAS, in connection with the original issuance of the Notes to
ConAgra Foods, Inc. ("ConAgra") on September 19, 2002, the Company and the
Guarantors entered into a Registration Rights Agreement with ConAgra (the
"Original Registration Rights Agreement") providing for the registration of the
Notes under the circumstances provided in the Original Registration Rights
Agreement;
WHEREAS ConAgra has sold the Notes pursuant to a Purchase Agreement
dated March 21, 2003 among the Company, the Guarantors, ConAgra and each of
Xxxxxxx Xxxxx Xxxxxx Inc. and X.X. Xxxxxx Securities Inc. (each, individually an
"Initial Purchaser" and, collectively, the "Initial Purchasers");
WHEREAS, in connection with ConAgra's sale of the Notes to the Initial
Purchasers, the Original Registration Rights Agreement has been terminated, and
the Company and the Guarantors have entered into a new Registration Rights
Agreement with the Initial Purchasers (the "New Registration Rights Agreement");
WHEREAS, the parties hereto desire to enter into this Third
Supplemental Indenture to reflect the termination of the Original Registration
Rights Agreement and the adoption of the New Registration Rights Agreement;
WHEREAS, the execution and delivery of this Third Supplemental
Indenture has been authorized by the Boards of Directors of the Company, the
Guarantors and ConAgra; and
WHEREAS, all conditions and requirements necessary to make this Third
Supplemental Indenture a valid, legal, binding and enforceable instrument in
accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
NOW, THEREFORE, in consideration of the above premises, each party
hereby agrees, for the benefit of the others and for the equal and ratable
benefit of the holders of the Notes, as follows:
ARTICLE I
AMENDMENT OF INDENTURE
SECTION 1.1 AMENDMENT. In accordance with Section 9.02 of the
Indenture, Section 1.01 of the Indenture is hereby amended by deleting therefrom
the definition of "Registration Rights Agreement" and replacing it in its
entirety with the following:
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of March 26, 2003, among the Company, Parent, the Subsidiary Guarantors
and the initial purchasers named therein, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Company and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2.1 DEFINED TERMS. For all purposes of this Third Supplemental
Indenture, except as otherwise defined or unless the context otherwise requires,
terms used in capitalized form in this Third Supplemental Indenture and defined
in the Indenture have the meanings specified in the Indenture.
SECTION 2.2 INDENTURE. Except as amended hereby, the Indenture and the
Notes are in all respects ratified and confirmed and all the terms shall remain
in full force and effect.
SECTION 2.3 GOVERNING LAW. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 2.4 SUCCESSORS. All agreements of the Company, the Guarantors
and ConAgra in this Third Supplemental Indenture and the Notes shall bind their
successors. All agreements of the Trustee in this Third Supplemental Indenture
shall bind its successors.
SECTION 2.5 DUPLICATE ORIGINALS. All parties may sign any number of
copies of this Third Supplemental Indenture. Each signed copy shall be an
original, but all of them together shall represent the same agreement.
SECTION 2.6 SEVERABILITY. In case any one or more of the provisions in
this Third Supplemental Indenture or in the Notes shall be held invalid, illegal
or unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 2.7 TRUSTEE DISCLAIMER. The Trustee accepts the amendment of
the Indenture effected by this Third Supplemental Indenture, but on the terms
and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, and
without limiting the generality of the foregoing, the Trustee shall not be
responsible in any manner whatsoever for or with respect to any of the recitals
or statements contained herein, all of which recitals or statements are made
solely by the Company and the Guarantors, or for or with respect to (i) the
validity or sufficiency of this Third Supplemental Indenture or any of the terms
or provisions hereof, (ii) the proper authorization hereof by the Company, the
Guarantors and ConAgra by corporate action or otherwise, (iii) the due execution
hereof by the Company, the Guarantors and ConAgra or (iv) the consequences
(direct or indirect and whether deliberate or inadvertent) of any amendment
herein provided for, and the Trustee makes no representation with respect to any
such matters.
SECTION 2.8 EFFECTIVENESS. This Third Supplemental Indenture shall
become effective, once executed, upon receipt by the Trustee of a certificate of
the appropriate officers of the Company and an Opinion of Counsel (as defined in
the Indenture), each of which shall be dated no earlier than the date hereof.
[The Remainder of This Page is Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the day and year written above.
SWIFT & COMPANY,
as Obligor
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
S&C HOLDCO 3, INC.,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
SWIFT BEEF COMPANY,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
SWIFT PORK COMPANY,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
SWIFT BRANDS COMPANY,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
XXXXXX BROS. CO., INC.,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
XXXXXXX FOOD DISTRIBUTION COMPANY,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
SWIFT & COMPANY INTERNATIONAL
SALES CORPORATION,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
XXXXXXX, INC.,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
S&C RESALE COMPANY,
as Guarantor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
THE BANK OF NEW YORK TRUST
COMPANY OF FLORIDA, N.A.,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
