EXHIBIT 10.17
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT ("Contribution Agreement"), dated
as of September 19, 2002, is entered into among Swift Foods Company, a Delaware
corporation ("Holdco"), S&C Holdco 2, Inc., a Delaware corporation ("S&C Holdco
2"), S&C Holdco 3, Inc., a Delaware corporation ("S&C Holdco 3") and Swift &
Company, a Delaware corporation ("U.S. Acquisition Co.").
RECITALS:
A. Holdco is party to that certain Agreement, as amended,
dated May 20, 2002 (the "Agreement"), among Holdco, ConAgra Foods, Inc., a
Delaware corporation ("ConAgra") and HMTF Rawhide, L.P., a Delaware limited
partnership, pursuant to which Holdco will purchase the United States beef, pork
and lamb processing businesses, the Australian beef business and the United
States cattle feeding operations of ConAgra; and
B. Pursuant to the terms of the Agreement, ConAgra has agreed
to indemnify and hold harmless (subject to the overall limitations, minimum
amounts, time limitations and limitations on recourse and other limits set forth
in Article 12 of the Agreement) Holdco and each of its subsidiaries and each of
their respective officers, directors and employees from and against any and all
damages, losses, claims, Liabilities, demands, charges, suits, proceedings,
penalties, costs and expenses arising out of certain specified actions or causes
of action; and
C. Holdco, S&C Holdco 2, S&C Holdco 3 and U.S. Acquisition Co.
desire to enter into this Agreement to provide for the contribution or payment
to U.S. Acquisition Co. of any amounts received by Holdco, S&C Holdco 2, S&C
Holdco 3 or any of their respective subsidiaries from ConAgra or its Affiliates
pursuant to indemnification claims under the Agreement.
AGREEMENT:
1. Definitions. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the Agreement.
2. Contribution Transaction. From and after the Closing, each
of Holdco, S&C Holdco 2 and S&C Holdco 3 agrees, jointly and severally, to
contribute or otherwise pay over, or cause any of their subsidiaries (other than
Swift Cattle Holdco, Inc., a Delaware corporation, and Xxxxxxx Finance Company,
Inc., a Colorado corporation) to contribute or otherwise pay over, to U.S.
Acquisition Co. any amounts they receive from ConAgra or its Affiliates pursuant
to indemnification claims under the Agreement (other than amounts required to be
refunded to ConAgra pursuant to offset provisions in the Agreement) and any
amounts obtained from other sources (including insurance claims with respect to
the Garden City plant or the proceeds from the sale of
ConAgra's United States cattle feeding operations) which are applied to offset
any indemnification claims that U.S. Acquisition Co. could otherwise make under
the Agreement.
3. Representations. Each of Holdco, S&C Holdco 2, S&C Holdco 3
and U.S. Acquisition Co. hereby represents and warrants, jointly and severally,
that (i) it has all requisite corporate power and authority, and has taken all
corporate action necessary, to execute and deliver this Contribution Agreement
and to perform its obligations hereunder, and (ii) this Contribution Agreement
has been duly executed and constitutes the legal, valid and binding obligation
of such party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and subject to
general principles of equity.
4. Assignment. Neither this Contribution Agreement nor any of
the rights or obligations hereunder may be assigned by any party hereto without
the prior written consent of each other party hereto; provided, however, that to
the extent requested by a lender pursuant to the Senior Bank Commitment Letter,
the parties shall execute and deliver such documents as may be necessary to
effect a collateral assignment of the rights arising under this Contribution
Agreement to the lenders under the Senior Bank Commitment Letter. Subject to the
foregoing, this Contribution Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
5. Miscellaneous.
5.1 Terms Generally. The headings of Sections are
inserted for convenience of reference only and are not intended to be a
part of or to affect the meaning or interpretation of this Contribution
Agreement. Unless the context shall otherwise require, any reference to
any agreement or other instrument is to it as amended and supplemented
from time to time.
5.2 Amendments. This Contribution Agreement may not
be amended or supplemented nor may any rights hereunder be waived,
except in a writing signed by each of the parties affected thereby.
5.3 Severability. If any provision or any part of any
provision of this Contribution Agreement is held to be illegal, invalid
or unenforceable, such illegality, invalidity or unenforceability shall
not affect the validity or enforceability of any other provision of
this Contribution Agreement or part hereof which shall continue in full
force and effect.
5.4 Counterparts. This Contribution Agreement may be
executed and delivered (including by facsimile transmission) in one or
more counterparts, each of which shall be regarded as an original and
all of which shall constitute one and the same instrument.
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5.5 Governing Law. This Contribution Agreement and
the legal relations among the parties hereto shall be governed by and
construed in accordance with the laws of the State of Delaware, without
regard to choice of law or conflicts of law provisions, applicable to
contracts made and performed in Delaware.
5.6 Consent to Jurisdiction. THE PARTIES HERETO
HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR DELAWARE STATE COURT SITTING IN WILMINGTON, DELAWARE
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
CONTRIBUTION AGREEMENT AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM.
5.7 Waiver. The waiver by any party of any instance
of any other party's noncompliance with any obligation or
responsibility herein shall not be deemed a waiver of other instances
or of any party's remedies for such noncompliance. No delay or failure
by a party to exercise any right or remedy against the other party will
be construed as a waiver of that right or remedy. All remedies of the
parties hereto are cumulative.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Contribution Agreement to be executed by their duly and lawfully authorized
officers or legal representatives effective as of the day and year first above
written.
SWIFT FOODS COMPANY,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
S&C HOLDCO 2, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
S&C HOLDCO 3, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
SWIFT & COMPANY,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
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